Tomorrow the U.S. Supreme Court will take up ex-Virginia Governor Bob McDonnell’s appeal of his 11-count corruption conviction stemming from his relationship with a wealthy businessman, Jonnie Williams. McDonnell’s trial made headlines back in 2014, but in this off-the-wall election year his Supreme Court appeal has mostly flown under the radar. That’s a shame, because in many respects the case is a window into why American democracy is where it is today.
McDonnell was Virginia’s governor from 2010 to 2014. While in office, he cultivated a relationship with Williams, the CEO of a company called Star Scientific. Star produced a dietary supplement called Anatabloc that it wanted the FDA to classify as a drug (allowing it to charge much more per dose). Obtaining such a classification requires expensive clinical trials to show that the purported drug actually has some medical benefit. Rather than have Star spend millions to do those trials, Williams hoped the state would do the research at one of its universities.
McDonnell and his wife Maureen were enthusiastic boosters of this scheme. They hosted the Anatabloc product launch at the governor’s mansion and repeatedly pressured senior officials to arrange meetings between state researchers and Star employees. In one memorable scene, McDonnell literally pulled a bottle of Anatabloc out of his pocket and pitched it on the spot to officials in charge of the state’s health plan.
Such high-level salesmanship doesn’t come cheap. At trial it emerged that Williams had given the McDonnell family more than $175,000 in expensive gifts and cash, including luxury vacations and golf outings, a shopping spree at Bergdorf Goodman for Maureen, a Rolex watch for Bob, and help with paying for the weddings of both McDonnell daughters. The transactional nature of these gifts was perfectly clear. At one point Maureen McDonnell literally said to Williams: “The governor says it’s okay for me to help you . . . but I need you to help me.”
Fast forward to today. What is remarkable about McDonnell’s case is not the technical arguments he makes, but the sheer brazenness with which he and many his supporters defend his conduct. McDonnell’s cert. petition asserts that his dealings with Williams were nothing more than “ordinary politics,” akin to attending a coffee event with supporters or a trade association roundtable. One amicus brief — filed on behalf of an esteemed group of ex-officials including two former U.S. attorneys general — analogizes the largesse McDonnell received from Williams to the “complementary lunch” a politician might consume at a speaking engagement. Another piously intones that affirming his conviction will “suffocate the air of liberty” and undermine our democracy. Most of these submissions are unwilling to concede that McDonnell’s behavior was at all morally problematic, let alone reprehensible. The picture they paint of public service in America borders on the surreal.
Some of the blame for this situation surely lies with the Court itself. The vision of democracy on which McDonnell and his supporters lean is rooted partly in cases like Citizens United and McCutcheon, where five members of the Court appeared — at least to many observers — to embrace the idea that there is a constitutional right to use large campaign contributions and expenditures to buy influence over those in power. While there are good reasons to think McDonnell’s actions were beyond the pale even for this Court, you can’t entirely fault him for trying.
The fact that such a broad swathe of the elite seem to have bought into such arguments is striking, however. Many of these same people are no doubt horrified by the tenor of this year’s presidential election. They may worry — with justification — that a campaign animated by little more than raw disgust at the political system is unlikely to lay the groundwork for an effective governing agenda. And they may also be deeply troubled by the fact that the public’s trust in all institutions of government continues to hover at or near record lows. Yet they and many other members of the political establishment remain curiously unreflective about how we got to this point.
The truth is that McDonnell’s case is not an easy one even for many committed advocates of political reform. One can wholeheartedly reject the suggestion that his actions were nothing more than “ordinary politics” entitled to First Amendment protection, while still being uneasy about use of the heavy hammer of criminal bribery laws to police norms of official conduct. Arguably everyone involved in this case (including the McDonnells) would have been better served by a system of clear, bright-line limits on both campaign contributions and personal gifts to elected officials and their families.
At the end of the day, though, those safeguards only work if the broader political culture accepts their legitimacy. The public is clearly troubled by the sort of self-dealing such rules aim to prevent; too many elites seem to feel differently. One way or another, this disconnect will have to be addressed if we are to have any hope of restoring confidence in the integrity of our political system.
Daniel I. Weiner is senior counsel in the Democracy Program at the Brennan Center for Justice at NYU School of Law.