The Court May Curb Legalized Bribery

Today the Supreme Court begins hearing the case brought against former Virginia Governor Bob McDonnell for 11 counts of conspiracy to commit fraud. The case deserves much more attention than it has received so far, because it provides an opportunity for the Court to limit the harm it caused by Citizens United and previous cases by ruling that giving money to politicians amounts to free speech, and hence basically cannot be curbed. It could correct what amounts to legalized bribery by ruling that you may give all you wish -- but not get any material benefits in return.

The charges against McDonnell stem from gifts he received from Jonnie Williams, the owner of a nutritional supplement firm called Star Scientific. Former Governor McDonnell does not dispute that he received lavish gifts from Williams. Among other things, Williams gave McDonnell and his family over $100,000 in loans, plus $15,000 for his daughter's wedding, a $20,000 shopping spree in Manhattan for the governor's wife, an all-expenses paid vacation in the Virginia mountains for the McDonnell family, and a $6,000 Rolex watch for Governor McDonnell.

Nor does McDonnell deny that he used his influence to try to help Star Scientific. In fact, he invited officials from the University of Virginia and Virginia Commonwealth University to meet with Williams in order to persuade the universities to conduct clinical trials that Star Scientific couldn't afford. McDonnell arranged meetings between Williams and other state officials, and even sponsored a "product launch" for the company at the Governor's Mansion in Richmond. All of this is now public knowledge, and McDonnell does not dispute any of the details of the case.

Instead, McDonnell's defense relies on weakening the definition of corruption. In essence, McDonnell's argument is that all the gifts from Williams were legal, that such gifts merely engendered a "general gratitude" toward Williams and Star Scientific, rather than an explicit quid pro quo. McDonnell claims that the favors he did for Williams were "routine political activities" and that upholding the conviction against him would expose every federal, state, and local official to charges of public corruption.

The problem is that so far, quid pro quo is understood by the law as taking place basically only if one party explicitly ties its donations and gifts to a specific return. What the current case allows the Court to rule is that the prevailing definition of "quid pro quo" is much too narrow. Illegal quid pro quo should be understood to take place when a person contributes funds to an elected official who acts to provide substantial benefits to the contributor or to those he or she represents, but not to others. If a change in law benefits the members of a particular industry or labor union, and these special interests contribute significant amounts of money to the elected officials who provides the favor, then we have a case of quid pro quo.

The divided Court may simply let the conviction stand. This will still leave the definition of what constitutes quid pro quo rather ambiguous. Hope springs eternal that at least one of the conservative judges will realize that the Court here has a chance to undo some of the great harm it caused with Citizens United, without going back on its assumption that giving shiploads of money to public officials is viewed as form of speech.

Amitai Etzioni is a University Professor and Professor of International Affairs at The George Washington University. He is the author of several books, including Privacy in a Cyber Age. You can follow him on Twitter, Facebook, and YouTube. To receive his monthly newsletter, send an e-mail with the subject line "Subscribe" to: icps@gwu.edu