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.