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Influence Peddling Gets First Amendment Protection

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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Former Virginia Governor Robert McDonnell, whose bribery conviction was unanimously overturned today by the Supreme Court, should thank his lawyers, his lucky stars and the First Amendment -- in reverse order. McDonell had been convicted by a jury for taking loans and gifts including an inscribed Rolex watch in exchange for calling state officials and setting up meetings for Jonnie Williams, the head of a Virginia company that claimed to have developed a nutritional supplement made from tobacco.

The court held that the governor’s efforts didn’t count as “official acts” as the federal bribery law required. But behind the decision was a deep worry, reflected at oral argument, that if the calls and meetings could be treated as criminal, then the entire structure of campaign finance in the U.S., protected by the First Amendment, might be made subject to criminal liability.

The case arose because Williams’s company, Star Scientific, wanted to get Food and Drug Administration approval of its product Anatabloc, a supplement made from anatabine, a chemical compound found in tobacco. For that the company needed some actual scientific evidence of the product’s benefits. Williams hoped that Virginia’s public universities would do the research -- rather than his company -- and that it would be paid for by a grant from Virginia’s state tobacco commission.

Williams insinuated himself into McDonnell’s orbit with a mix of gifts and loans. The most blatant was the Rolex, which Williams bought and gave to McDonnell’s wife after she admired Williams’s Rolex and said she’d like to get a similar one for her husband.

McDonnell took five separate actions that the government later said -- and the jury agreed -- were responses to Williams’s inducements. He introduced him to the state’s secretary of health and human resources. He held a lunch at the governor’s mansion for researchers from public Virginia universities at which samples of Anatabloc were given out, as well as eight $25,000 checks from Star Scientific as start-up research funds. McDonnell also met with senior state health officials, told them he was taking Anatabloc, and urged them to meet Williams.

None of these efforts went anywhere. The state officials were skeptical, and no research on Anatabloc ever took place. But to get a bribery conviction under the federal Hobbs Act, you don’t need to show that the bribe was effective -- only that there was a quid pro quo, an exchange of something valuable for some official act.

A jury saw this as bribery, and the U.S. Court of Appeals for the Fourth Circuit affirmed McDonnell’s conviction. As a matter of common sense, you can’t fault either the jury or the appeals court. It seems pretty clear that McDonnell was engaged in a recognizable form of what we usually consider corruption, in effect selling access to his power and influence.

Enter the First Amendment. Before the Supreme Court, McDonnell’s lawyers urged that if his conduct could be considered criminal, then much of what elected officials do for their big donors might count as criminal as well. After all, politicians receive donations, and their donors expect them to make calls and set up meetings on their behalf.

Embarrassingly enough, the Supreme Court has blessed what it calls “ingratiation and access.” Not only don’t those count as corruption, according to a 2014 opinion, they actually “embody a central feature of democracy.” Ingratiation and access are formally protected by the First Amendment.

The First Amendment argument put the justices in a very delicate position. If they were to find that McDonnell’s conduct was criminal, they would need to articulate some distinction between what he did and the ingratiation and access they have made constitutionally protected.

One possibility might have been to say that McDonnell took the gifts directly, whereas campaign contributions go to a campaign. But at oral argument, it became clear that the Justice Department believes that campaign contributions can be the basis for a bribery charge. That view of the law may actually be right; and in any case the justices didn’t want to deal with the issue.

The only remaining solution was to find that McDonnell’s conduct somehow wasn’t illegal. And the only way to do that was to hold that making calls and setting up meetings don’t count as “official acts” for purposes of bribery. That not only put McDonnell in the clear. It also cleared the way for all elected officials to set up meetings and make calls for their donors without running the risk of criminal conviction.

For good measure, the court, in an opinion by Chief Justice John Roberts, said that the calls and meetings weren’t on a “question or matter” because they didn’t involve pending legislative proposals.

Roberts had the good grace to acknowledge that any other result “would raise significant constitutional concerns.” But he shaded the issue by saying that in the presence of a broader rule, “officials might wonder whether they could respond to even the most commonplace requests for assistance” if they had taken campaign contributions from the donors.

At the same time, Roberts had to admit that “the facts of this case” didn't “typify normal political interaction between public officials and their constituents. Far from it.”

It’s too bad -- although understandable – that the justices didn’t take the opportunity to draw a sharp distinction between personal gifts and campaign contributions. But what’s really unfortunate is that campaign-finance jurisprudence forced the justices to protect political influence peddling. The court has made a historic mistake in reading the First Amendment to protect access and ingratiation. The founders would have recognized those forms of influences as corruption. So should we.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
James Greiff at jgreiff@bloomberg.net