Ingratiation isn't corruption.

Photographer: Mark Wilson/Getty Images

Kaine's $160,000 in Gifts Was Legal, Unfortunately

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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Not all gifts to politicians are illegal. But it can be difficult to draw the line between what the Supreme Court has called “access and ingratiation,” which is protected by the First Amendment, and quid-pro-quo corruption, which isn’t.

The $160,000 in gifts accepted by Democratic vice-presidential nominee Tim Kaine when he was Virginia governor were completely legal. All the same, they shed a distinct light on the Supreme Court’s decision last month to absolve his successor, Bob McDonnell, of corruption charges. Comparing Kaine’s gifts to McDonnell’s suggest that there was an ethical difference -- and also that the court may have been right to find that the difference would be hard to measure legally.

Start with Virginia’s ethics laws, which were the same during the terms of both governors. The laws (which have since changed) permitted public officials to receive personal gifts of unlimited value, provided they disclosed all gifts (except those from family friends) worth more than $50. This was exceptionally lax by national standards, but by no means unheard of. At least 10 states had similar rules at the time.

If that sounds like madness, or at least an invitation to corruption, it is. It’s bad enough that the U.S. Supreme Court has ordained campaign contributions as a form of free speech, and so-called “independent” expenditures to promote candidates are protected absolutely.

But restrictions on gifts are perfectly constitutional when states (or the federal government) choose to adopt them. That’s because a gift to a public official isn’t considered political speech, at least not yet.

Since McDonnell’s receipt of gifts wasn’t a violation of Virginia law -- at least the gifts he disclosed -- he was charged by the federal government for violating the Hobbs Act, which outlaws bribery of public officials. The question before the Supreme Court in his case was whether he committed an “official act” or acts in exchange for the gifts he received from Jonnie Williams, the head of a drug company that hoped to sell a tobacco-based drug.

Here’s where the moral difference between McDonnell and Kaine is clearest. McDonnell took more than $170,000 in gifts, including a personalized Rolex, from Williams alone. Kaine’s gifts were accumulated over an eight-year period in which he was lieutenant governor and then governor, and they came from multiple parties.

More importantly, no one has alleged that Kaine did anything in exchange for the gifts he received. Ethically and morally, that distinction is pretty important. In contrast, the government alleged, and a jury agreed, that McDonnell set up meetings for Williams and called state officials on his behalf in exchange for the gifts he received.

The Supreme Court’s dismissal of the charges against McDonnell can be better understood when viewed through the lens of the gifts Kaine got. In reaching its holding, the court emphasized that the First Amendment would be threatened if politicians had to worry about crossing the corruption line when they responded to requests from constituents who had made contributions to them.

The basis for this concern is, in part, a statement from its infamous 2010 Citizens United decision: “Ingratiation and access … are not corruption,” the court said there. And in a 2014 follow up, the court added that ingratiation and access “embody a central feature of democracy -- that constituents support candidates who share their beliefs and interests, and candidates who are elected can be expected to be responsive to those concerns.”

Kaine’s gifts certainly embody features of that ingratiation and access. A pharmaceutical company gave Kaine a ride on a private jet to Aspen, and e-mails show that the firm’s representatives expected to talk to Kaine about their business interests on the flight. A state electric utility that frequently lobbies the state government took him to the Final Four basketball chamipionship.

From the Supreme Court’s perspective, it’s simply too difficult to draw a legal line between such practices and the acts of which McDonnell was accused and convicted. What if Kaine wanted to help the pharmaceutical company that flew him to Aspen, as McDonnell helped the pharmaceutical company that gave him his watch? If that were treated as a crime, the court thought, it would limit corporations’ free speech under the First Amendment.

Of course the real answer to the structural problem is for the court to reverse Citizens United and the rest of its jurisprudence that treats money as speech. An alternative, less drastic route would be to distinguish personal gifts from campaign contributions.

But since the current Supreme Court is not prepared to do either of these, it actually makes some sense for the court to have cleared McDonnell. The legal line between his receipt of gifts and Kaine’s is indeed fuzzy. Allowing McDonnell’s conviction to stand would have put other elected officials into jeopardy for receiving guests in the way Kaine did.

So the Supreme Court is wrong to treat ingratiation and access as constitutional rights. But since they do, Kaine’s gifts show that the court may have been right to let off McDonnell. There’s an optimistic thought for the middle of convention season.

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:
Susan Warren at susanwarren@bloomberg.net