This past June, in a case called Snyder v. United States, the U.S. Supreme Court dealt another blow to federal anticorruption law. The defendant in Snyder was a former mayor of an Indiana town. During his time as mayor, he helped steer a city contract to a certain company, and that company subsequently paid him $13,000 in “consulting fees.” He was convicted under a federal statute, 18 U.S.C. § 666, which 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 in the case was whether this statute prohibits so-called “gratuities”—payments that are corruptly made to a government official in recognition of action that an official has taken or has committed to take, but without evidence that the promise of the payment was what induced the official to take that act. The Court held that § 666 does not prohibit gratuities. In other words, as long as there is no agreement beforehand, the Court held that § 666 allows people or businesses to reward their state and local officials for favorable government action. In so holding, the Supreme Court has in effect provided a blueprint for using money, gifts, and other material incentives to influence state and local government.

The Court’s Snyder decision is yet another in a string of recent cases that have undermined and impeded federal anticorruption prosecutions in the United States—a string that includes McDonnell v. United States, Kelly v. United States, and Percoco v. United States. These decisions have been criticized—often fairly—for their narrow, crabbed reading of the relevant statutes. But it is a bit too easy to make the Court the sole villain of the story. As the Court itself has emphasized, it is Congress’s responsibility to create clear laws. And Congress should not be given a free pass in light of its failure to respond to the Court’s decisions.

It is true, as noted on this blog (see here and here) and elsewhere (see here, here, and here), that Congress appears at best uninterested in, and at worst hostile to, enacting more robust anticorruption laws. Yet we should not be too quick to conclude that getting meaningful amendments to the laws that the Supreme Court has interpreted narrowly would be a political impossibility. Indeed, at the end of August three Members of Congress (two Democrats and one Republican) introduced the No Gratuities for Governing Act, which would amend § 666 to expressly prohibit gratuities, and in so doing would hold state and local officials to the same standard that applies to federal officials (codified at 18 U.S.C. § 201). Three Senators (all Democrats) introduced a parallel bill in the Senate, the Stop Corrupt Gratuities Act, in early September. Despite the understandable cynicism about the ability of the U.S. Congress to act on this matter, there are several reasons why this proposed legislation might actually have a fighting chance:

Continue reading →