Is It A Gift Or Is It A Bribe?

In its McDonnell v. United States decision, a unanimous Supreme Court affirmed states' right to regulate "the permissible scope of interactions between state officials and their constituents."
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Co-authored by Marian Currinder, Policy Director for government accountability, Transparency International-USA.

In its McDonnell v. United States decision, a unanimous Supreme Court affirmed states' right to regulate "the permissible scope of interactions between state officials and their constituents." It is not the federal government's role, according to the Court, to set standards of "good government for local and state officials."

The Court's position on state sovereignty in the McDonnell decision is notable--and not just for the irony it presents. Had Virginia lawmakers put strict gift laws into effect years ago, the corruption case against former Virginia Gov. Bob McDonnell would have been much more straightforward. McDonnell might even have made different choices and avoided the corruption charges that effectively ended his public career.

McDonnell's predecessor, U.S. Senator Tim Kaine, also accepted gifts during his tenure as Virginia's governor. The more than $160,000 in gifts that Kaine received over the course of his four-year term came from multiple individuals and companies, some with business before the state. But unlike McDonnell, Kaine disclosed all of the gifts he received in a timely manner; it wasn't until after he was selected as Hillary Clinton's running mate that these gifts received closer scrutiny.

The McDonnell and Kaine examples demonstrate why strict gift laws that go beyond simple disclosure are so necessary. When McDonnell and Kaine accepted gifts, Virginia law required them to disclose those gifts but placed no limits on what they could accept. Kaine, for example, was "gifted" $45,075 in political and campaign related travel expenses in 2008 when he was traveling the country to campaign for President Obama. And McDonnell accepted a Rolex watch, designer clothes, and catering costs for his daughter's wedding. All of these gifts were legal--as long as they were disclosed and there was no quid-pro-quo, where gifts were given in exchange for an official act.

In its McDonnell decision, the Court said it is not the federal government's role to set standards of good government for public officials. Citizens can voice dissatisfaction, as they did in the McDonnell case, and push for stricter laws but it's ultimately up to lawmakers to act. Given the Court's position that states are responsible for regulating the interactions between public officials and constituents, it's worth considering how states with weak ethics laws and/or histories of political corruption might handle this responsibility.

Many state gift laws are decidedly vague and this lack of clarity creates problems for public officials and prosecutors alike. Laws that exempt gifts from "personal friends," for example, let lawmakers decide whether the lobbyist who bought them a lavish meal or flew them to a conference is a personal friend or a lobbyist. And some states make no distinction between friends and lobbyists. Earlier this year, Missouri lawmakers failed to pass legislation banning gifts from lobbyists. This means that it's perfectly legal for lawmakers to, for example, "receive unlimited tickets to baseball games, concert tickets, spa services and steak dinners" from lobbyists.

New York, which last year held the distinction of "most corrupt state," has repeatedly failed to strengthen its ethics laws despite the recent federal convictions of its top legislative leaders. State lawmakers can accept gifts of any value as long as there is no intent to influence. The McDonnell decision highlighted how difficult it is for prosecutors to prove an official quid pro quo; perhaps it's no surprise, then, that New York politicians Sheldon Silver and Dean Skelos have appealed their convictions based on the McDonnell ruling.

Pennsylvania received an F grade in a 2015 state integrity investigation, in part because of its notoriously lax gift laws. Lawmakers can accept gifts and hospitality as long as there is no explicit quid pro quo. If public officials accept gifts worth $250 or more, they are required to disclose. Last December, state Representative Louise Bishop resigned from office after admitting to accepting and not disclosing a gift worth $1,500. Bishop and five other state lawmakers were implicated in an undercover money-for-political-favors sting operation launched by the Pennsylvania Attorney General's office. Despite 40 lawmakers and legislative aides being found guilty of public corruption in the past four decades, Pennsylvania lawmakers routinely fail pass stricter ethic rules.

These examples scratch the surface of what is a widespread problem. Gift rules that are riddled with loopholes and exceptions contribute to the perception--and sometimes the reality--of corruption. Whenever individuals, businesses, and organizations give gifts to elected officials, we should ask why.

And we should expect our leaders to answer honestly and comprehensively. Ethics laws should prohibit all public officials and their immediate family members from soliciting or accepting gifts over a nominal value. Laws should require timely disclosure of all gifts over a nominal value and make clear that quid pro quos are illegal. There should be no exemptions for gifts from "personal friends," as these friends may also have business before the state. Gift laws also should place restrictions on travel expenses and require disclosure of travel and expenses associated with "widely attended" events. Exempting travel and hospitality expenses simply because 20 or 25 people attend an event wrongly assumes that lawmakers can only be influenced in one-on-one scenarios. States should also ensure that there is even-handed and strict enforcement of ethics rules.

A review of state gift rules reveals that there are more exceptions than limits to the rules. The opposite should be true. In the absence of clear and comprehensive rules, too many lawmakers will opt to follow the custom rather than the law.

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