Jacob Eisler, Lecturer at Cambridge University, contributes the following guest post:
As Matthew observed in his blog post earlier this summer on the Supreme Court’s unanimous decision to vacate the conviction of former Virginia Governor Bob McDonnell, there are two different ways one might interpret this decision. One could read McDonnell narrowly as a case that focuses on overly expansive jury instructions on the meaning of “official act” in the statutory definition of bribery. Alternatively, a more expansive reading would focus on language in the opinion that suggests the Court has a lenient attitude towards self-serving behavior by (high-ranking) public officials. As I argue at length in a forthcoming article, the broader—and for anticorruption activists more troubling—reading of the case is the right one, and the decision therefore has potentially extensive implications for American politics.
McDonnell is only the latest example of the Supreme Court’s permissive treatment of corruption, though McDonnell is the first case to articulate the underlying political principles. The Court has generally favored defendants, and a narrow view of corruption, in its jurisprudence on official corruption, most notably in the Sun-Diamond and Skilling cases. While each of these opinions has formally narrow doctrinal foundations – much like McDonnell – a collective reading of the cases shows that the Court has little interest in enforcing a broad notion of corruption. In short, when given the opportunity to classify conduct as corrupt or not, the Court will tend to classify that behavior as not corrupt.
If McDonnell is unique in this line of cases, it is because the opinion’s treatment of representation (with the most relevant passage discussed in Matthew’s blog post) explicitly reveals the Court’s willingness defend the ability of officials to favor constituents toward whom they feel affection or gratitude. This position commits to a vision of politics as reciprocal power relationships between representatives and the citizens who support them, with government disproportionately favoring constituents who have ingratiated themselves with political leaders. This view is founded on a more general minimalist theory of the rules of political competition, a theory that tolerates self-interested and reciprocal conduct except when such conduct is so egregious that it becomes bribery akin to theft from the public. While this minimalist political theory may have been implied in the previous official corruption case law, McDonnell is the first opinion that makes the Court’s political commitments explicit.
These commitments have broad ramifications for American politics. The Court implicitly rejects the claim that representatives can be legally obligated to discharge their duties in a public-minded manner. By nullifying the use of anticorruption prosecutions to punish “defectors” from commitment to the public good, the Court makes it less risky for officials to engage in self-interested conduct (of which McDonnell’s behavior was a particularly egregious example). This in turn encourages a vicious cycle in which all participants in politics are encouraged to adopt a defensively self-interested posture, because there are few structural incentives not to do so. Indeed, McDonnell is distinctive precisely because it declares the Court endorses this self-interested view of politics. As a result, officials are encouraged to see politics as the opportunity to do no more than advance their self-interest (including through aggressively seeking re-election), and constituents are encouraged to select representatives who will have as their only mandate advancing the constituents’ partisan benefit.
This judicial hostility to civic-minded anticorruption has one universal political consequence: it puts the onus of advancing civic integrity on the electorate, which remains the sole instrument for denying office to self-aggrandizing representatives. Yet there are tremendous challenges to advancing a civic-minded approach to politics through the electoral system alone. A system that lacks internal mechanisms for encouraging disinterested conduct will be structurally unstable, as it has no apparatus for encouraging cooperation directed towards the mutual good. Moreover, the increasingly fractious and divided character of the electorate in modern liberal democracies suggests that it may be difficult to achieve the unity necessary to advance civic-minded governance through elections.
The judicial treatment of anticorruption and the view of democracy revealed therein also have significant implications for attempts to reform related domains of law. While a civic view of corruption in the campaign finance domain has its apparent champions on the Court, the unanimity of McDonnell suggests there may be obstacles to formulating a satisfactory progressive theory of political integrity. While the doctrinal questions may differ, the shared issue of representative obligation means a failure to reconcile the treatment of governance between campaign finance law and official corruption law will inevitably create tensions. The unanimity of the bench regarding official corruption further suggests that the Court may staunchly oppose the use of criminal law to achieve broader political reform.
As you know, I share both your criticism of the outcome in McDonnell and your dismay at some of the language in Chief Justice Roberts’ opinion, suggesting a comparative lack of concern about overly cozy relations between elected officials and private interests. At the same time, I think you might be over-reading the language of the opinion or exaggerating its significance. I do not read the McDonnell opinion as rejecting the idea that politicians are supposed to be civic-minded, or even that it might be illegal if a politician were to forgo her civic obligations in exchange for cash. Indeed, the opinion indicated that quid pro quo, if proven, would still be a (serious) federal crime. I took the opinion as making something more like a “chilling effects” argument: The idea is that some interactions between private interests and elected politicians are not only acceptable but desirable, in that part of the democratic process the ability of private parties to make their case to government decision-makers, and in practice, when these guys are all running in the same circles, they’re likely to try to ingratiate themselves to get meetings, contacts, etc. The Court’s worry seems to be that, even though some of that might end up crossing the line into improper attempts to influence politicians through material inducements, if the anti-bribery statutes are read too broadly, the result will be over-deterrence of legitimate interactions. I agree that the Court is working with a particular vision of democracy, but I don’t think it’s quite the one that you describe in your post. I think Chief Justice Roberts might reply that you (and his other critics) are working with an overly thin, abstract, bloodless version of democracy in which politicians sit in their offices, dispassionately gathering data, and forming some Platonic notion of the Public Interest without ever interacting with representatives of various constituencies. That’s a caricature, and one that I don’t endorse. And I think the two of us are closer in our views than either of us is to Chief Justice Roberts. But I do think it would be more accurate to characterize his concern as a “chilling effect” concern, along with the notion that interactions between politicians and business leaders, labor leaders, or others can often be benign. As I said in my earlier post, I think he’s greatly overestimating the benefits and underestimating the risks of this sort of interaction. But that does seem to be his vision, at least on my reading.
Matt- Thanks for the thoughtful comment. I agree with you that that’s probably how Roberts would reply to defend the opinion; but I suppose I have three particular points of pushback: 1) defending ‘agonist’ politics from regulation, regardless of the justification, will tend to produce a vicious spiral inducing all participants in politics to be ‘agonist’ rather than ‘civic’, as agonist conduct out-competes civic conduct (I cover this in the article, and it’s hard to recap in brief); 2) the Court has shown a real interest in protecting political elites from corruption prosecutions (see, for example, Skilling and Sun-Diamond, and, on a related note, Citizens United), which is odd given the general narrowing of the Court’s interest in such rights (see, for example, Utah v Strieff); 3) given the disproportionate power wealthy donors have in the political process, the idea that the Court needs to be particularly protective of elite political insiders seems odd. I would further observe that the Court’s narrow legal conclusion is only really beneficial to political elites, because the type of ‘soft’ conduct McDonnell exonerates (making recommendations to subordinates, the application of soft pressure) is only available to those high in the political hierarchy. If you’re a lowly administrator or factotum, you can trade money for explicit acts, and that’s it, because you have few opportunities to engage in ‘soft’ acts.
I suppose, speaking more broadly, there are two ways to categorize McDonnell: 1) as a statement of the Court’s view that external or discretionary regulation of political practice should be limited, including, inter alia, preventing ‘chilling’ of reciprocal democratic relationships by zealous prosecutors. One could argue this has particular bite when federalism concerns are activated, and that McDonnell is exemplary of the Court’s belief that the federal government should be hands-off regarding state affairs, ie, a fierce (and basically conservative) interpretation of federalism. In these vein, McDonnell should be associated with the eg Shelby v Holder; 2) as further demonstration of the Court’s failure to recognize the capability of wealth to corrupt politics, and of the complicity of political elites with such infiltration of politics by money. If we think money is overly shaping high-level politics, and McDonnell is an egregious example of precisely the type of conduct we *don’t* want, and the Court’s narrow doctrinal conclusion would only benefit political elites- well, it’s an odd move to exonerate McDonnell on rather convoluted doctrinal grounds. The goal is to try to squeeze money out of politics, not find excuses to permit it in. In this view, critics of McDonnell might see it as the general kin of a case like Citizens United.
I definitely fall into camp 2) here; I think McDonnell is dangerous (especially as a unanimous opinion) because it shows the Court’s failure to appreciate the impact of disproportionate citizen power due to wealth inequalities, and creates another barrier to effectively limiting it. I don’t think there’s anything wrong with pushing towards a more ‘bloodless’ conception of democracy, because such a ‘bloodless’ conception might produce more civic-minded leadership. You seem more willing to accept aspects of 1), insofar as you accept that that is type of argument the Court should credibly advance in this situation. I just think the problems of 2) are so exigent and obvious that I’m not particularly compelled by an argument based in 1) – I find those arguments obtuse at best (in that they ignore political realities), and weaselly and evasive at worst.
One could, I suppose, conclude that a ‘realist’ view of democracy will be far more tolerant of reciprocal relationships, and concede that the rich will just have more political power than the poor, including through backroom channels, and that interfering in the organic interplay between wealth and political power will only impose transaction costs and worsen governance. But I’m not yet willing to concede that as a matter of principle. There might just also be a general difference in temperament guiding our responses – in general it seems like you have a less alarmed view of American politics, and a more conservative (in terms of being more cautious, as opposed to substantively conservative) approach to the law.
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