The U.S. Supreme Court has been chipping away at the federal public corruption prosecutor’s toolkit over the past decade, in cases like McDonnell v. United States, Kelly v. United States, and Percoco v. United States. This past month, the Court heard oral arguments in a case called Snyder v. United States, which may further undermine federal prosecutors’ ability to go after state and local corruption. If the Court finds in favor of the defendant in Snyder, it could create a roadmap for American state and local government officials to profit from private interests at the expense of the public they are supposed to serve.

The specific statute at issue in the Snyder case is codified at 18 U.S.C. § 666. That statute, which happens to be the most prosecuted public corruption statute in the U.S., makes it a federal crime for a state or local official to “corruptly solicit[,] demand[,] …or accept[] … anything of value from any person, intending to be influenced or rewarded in connection with any” federally funded program. The question at issue in the Snyder case is whether this statute criminalizes so-called gratuities—payments made in recognition of actions that a covered official has taken or has committed to take, but without any quid pro quo agreement to take those actions in exchange for the payment. The facts of the Snyder case illustrate this sort of payment: James Snyder, while mayor of Portage, Indiana, accepted $13,000, allegedly for “consulting services,” from a truck company shortly after that company was awarded a contract to sell garbage trucks to the city government. There is no evidence that the company offered or promised Snyder the payments in exchange for the contract. Nevertheless, the federal prosecutors successfully argued at trial that proving such an offer was unnecessary, because as long as the prosecution could show that the alleged “consulting fee” was actually a gratuity—a payment made by the company to thank, or reward, Snyder for the contract—then Snyder’s acceptance of this payment was enough to violate § 666.

It’s true, as Snyder’s lawyers argued to the Supreme Court, that the language of the statute does not explicitly include “gratuities.” But reading § 666 as covering gratuities is the only sensible way to read the statute if we are truly concerned with preventing public officials from being bought.

If the Court holds that gratuities are not criminalized under § 666, this will essentially permit a pay-to-play system in state and local governance, as companies could signal—through lucrative after-the-fact “consulting” contracts—that they will handsomely reward politicians who provide them with benefits, and companies that don’t do so may find themselves losing business. Nobody ever needs to make an explicit offer or demand. While these sorts of unlawful gratuities might already be prohibited for certain public officials under state law (for example, in Florida, Massachusetts, and Vermont), historically federal prosecutions have been essential for reining in state and local corruption.

At oral argument, several Supreme Court Justices expressed concerns that the government’s interpretation § 666 would sweep too broadly. For example, because the statute applies to all federally funded programs (not just state and local governments), the Justices asked the Government’s attorneys whether the statute could be used to prosecute teachers and doctors who receive thank-you gifts, if they work at schools and hospitals that receive federal funding. But while a concern for overbroad application of this statute is not entirely unfounded, it would be a mistake for the Justices to focus excessively on hypothetical future cases, especially when the facts of the Snyder case itself so strongly favor the Government’s interpretation of § 666. It may be true, as Chief Justice Roberts stressed at the oral argument, that the Court typically doesn’t simply trust prosecutors to use their discretion to limit the reach of a criminal statute. Yet the hypothetical risk of overreach must be balanced against the very real risks of political corruption at the state and local level that would arise if the Court read gratuities as outside the scope of the statute. 

For those who are skeptical that the outcome of this case would have immediate consequences, consider that at least two important cases, currently pending in the lower courts, might well be affected by the ruling in Snyder. First, Mike Madigan, former Illinois Speaker of the House, was indicted in 2022 with racketeering and bribery charges, including violations of § 666. The presiding judge adjourned the trial to October 2024 to see whether the Supreme Court, after Snyder, requires an explicit quid pro quo for a benefit to a public official to be deemed corrupt, rather than allowing prosecutors to try and convince the jury that a gratuity is sufficient. Second, P.G. Sittenfeld, a former Cincinnati councilman and mayoral hopeful, was convicted at trial in 2022 on bribery and extortion charges. Sittenfeld is appealing his conviction, arguing that the quid pro quo was too ambiguous to be properly considered a corrupt exchange. If the Supreme Court rules in favor of Snyder, Sittenfeld has a strong chance of winning his appeal and ending his prison sentence early.

In short, the Court in Snyder has the potential to curtail federal law enforcement’s ability to investigate and prosecute state and local public officials for corrupt acts that states may be incapable of enforcing. If the Court rules for Snyder—which unfortunately seems likely, given how the oral argument went—it will be incumbent on Congress to fill the gap in federal anticorruption law by amending § 666 to expressly cover gratuities. But even if Congress has the capacity and will to act to rectify such a concerning ruling by the Court, make no mistake: the wrong outcome in Snyder may provide guidance to those who wish to improperly influence state and local government and politics with limited political or judicial recourse for years to come.