[EL] ELB News and Commentary 5/16/16

Tue May 17 14:12:39 PDT 2016

Hello all –

The McDonnell case is a fairly easy case as the law currently stands.  Of course, the Court can change the law if it wants.

Official acts have been defined broadly for years.  They do not involve mere ingratiation or access.  Governor McDonnell was convicted of honest services mail fraud (which is limited to bribes and kickbacks) and Hobbs Act violations (which require bribes in this case).  There is little question that Governor McDonnell took money/goods/gifts and that he engaged in official acts on Jonnie Williams’ behalf.  The question is whether he engaged in the official acts in exchange for the money/goods/gifts.  The jury determined that he did.  I cover this and a couple of additional issues in my short piece, The McDonnell Case: A Clarification of Corruption Law or a Confusing Application of Corruption Law, 50 U. Rich. L. Rev. 237 (2015).

The Supreme Court and some commentators have focused on Citizens United.  However, given the facts of this case, it is just a bright shiny object.

-Hank

Henry L. Chambers, Jr.
Professor of Law
University of Richmond School of Law
28 Westhampton Way
Richmond, Va. 23173
(804) 289-8199
hchamber at richmond.edu

Posted in campaigns<http://electionlawblog.org/?cat=59>
“With Bob McDonnell Appeal, SCOTUS Can Clarify Line Between Politics and Crime”<http://electionlawblog.org/?p=82739>
Posted on May 13, 2016 7:41 am<http://electionlawblog.org/?p=82739> by Rick Hasen<http://electionlawblog.org/?author=3>

I have written this oped<http://www.nationallawjournal.com/id=1202757547658/With-Bob-McDonnell-Appeal-SCOTUS-Can-Clarify-Line-Between-Politics-and-Crime?cmp=share_twitter> for the National Law Journal. It begins:

You don’t have to be a lover of the U.S. Supreme Court’s noxious Citizens United v. FEC case to be troubled by the corruption prosecution of Virginia governor Bob McDonnell. And if the Supreme Court rules in his favor in his appeal, it’s not likely to open the door up to “legalized corruption.” Instead, a ruling for McDonnell can be an important step to avoid the unfortunate criminalization of ordinary politics and prevent what appears to be unjustified prosecutions of John Edwards, Tom DeLay, former Alabama Governor Don Siegelman and others. We need to use other levers to stop politicians from selling access to the highest bidder….

It concludes:

A court ruling for McDonnell will not legalize corruption, as Jeffrey Toobin<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.newyorker.com_news_daily-2Dcomment_the-2Dsupreme-2Dcourt-2Dgets-2Dready-2Dto-2Dlegalize-2Dcorruption&d=DQMDaQ&c=RAhzPLrCAq19eJdrcQiUVEwFYoMRqGDAXQ_puw5tYjg&r=z5u3mYs2IBA70RvKORXpCG810817uPwdZNEHRluuZO4&m=AJdfxrmz27JwELpjtrCygcnYX5xmDGURQE7zd-ElMkw&s=_wP7Tbr-jvGbWoXXJzI4StZatpmL6CK4s_8vSs7sGaI&e=> and Zephyr Teachout<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.nytimes.com_2016_04_29_opinion_theres-2Dno-2Dsuch-2Dthing-2Das-2Da-2Dfree-2Drolex.html-3F-5Fr-3D0&d=DQMDaQ&c=RAhzPLrCAq19eJdrcQiUVEwFYoMRqGDAXQ_puw5tYjg&r=z5u3mYs2IBA70RvKORXpCG810817uPwdZNEHRluuZO4&m=AJdfxrmz27JwELpjtrCygcnYX5xmDGURQE7zd-ElMkw&s=sh1bjnpkSq5M10RGGknGrXTo8Ytx_fWHSIt3OK8ndyE&e=> have both charged. McDonnell’s conduct could easily be made illegal by Virginia and should be (if it is not now already illegal). A Supreme Court ruling that the federal law under which McDonnell was prosecuted is unconstitutionally vague would not open the floodgates of corruption. It would still be a crime to exchange a Rolex or something else of value for an attempt to influence a government decision. If the government can prove that McDonnell actually pressured Virginia officials to do something for Williams or his company in exchange for the gifts McDonnell received, that would still count as bribery.

And how then to deal with the problem of the sale of access? Would a ruling in McDonnell’s favor allow for politicians to set a price for access to such officials?

Aside from having strong gift bans and ethics rules, we need tighter campaign finance rules. The court needs to go back and visit Citizens United itself. In that case, Justice Anthony Kennedy wrote for a conservative Supreme Court majority that ingratiation and access are not corruption. Even if Kennedy is right that the sale of access itself is not corruption, it can still facilitate corruption, and sensible limits on money in politics are a less Draconian way than throwing people in jail to deal with the problem.

McDonnell’s conduct is odious. But if we threw all politicians who do odious things in jail we’d need to build more jails. Let’s save the jails for politicians who cross a clear line by using their power to influence government decision-making.

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Posted in campaign finance<http://electionlawblog.org/?cat=10>, chicanery<http://electionlawblog.org/?cat=12>, Supreme Court<http://electionlawblog.org/?cat=29>

--

Rick Hasen

Chancellor's Professor of Law and Political Science

UC Irvine School of Law

401 E. Peltason Dr., Suite 1000

Irvine, CA 92697-8000

949.824.3072 - office

949.824.0495 - fax

rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>

http://www.law.uci.edu/faculty/full-time/hasen/

http://electionlawblog.org
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