Monday’s Supreme Court decision to vacate former Virginia Gov. Robert McDonnell’s corruption verdict fits into a larger trend of relaxing federal rules for lobbyists and political donors. But some campaign finance and corruption experts say the fallout may not be far reaching.
The unanimous opinion gave donors and lobbyists some sense of relief because if the court had held up McDonnell’s conviction, many feared it would have chilled the often cozy relationship between elected officials and those seeking to influence them.
“It certainly has clipped the wings of the Department of Justice in terms of prosecutions of honest services fraud, which in my view have been overzealous,” said Ken Gross, who leads the political law practice at Skadden, Arps, Slate, Meagher & Flom. But, he added, “I don’t think this is a signal to anybody that corrupt conduct is somehow OK.”
The narrow basis for the justices’ decision related to the instructions given to the jury means that McDonnell could be tried again under different jury instructions, Gross and others said. McDonnell was convicted of accepting lavish gifts and goods valued at $175,000, including a Rolex watch from Jonnie R. Williams Sr., founder of a dietary supplement company. It was less clear what Williams got in exchange for the gifts.
“The question was one of bad jury instructions, so it’s unclear how far we should read into it,” said Sheila Krumholz, who runs the nonprofit Center for Responsive Politics, which tracks campaign money and lobbying. “It does fit into an ongoing relaxation of rules regarding lobbyists and donors, and some may interpret this as there’s less appetite for pursuing corruption cases.”
In recent years, the Supreme Court has rolled back political money regulations, including the 2010 decision in Citizens United v. the Federal Election Commission, which deregulated independent campaign expenditures. That case helped set the stage for super PACs. The court also threw out aggregate federal campaign finance limits in the 2014 McCutcheon v. FEC case.
Ethics and campaign finance watchdog organizations decried the high court’s latest ruling in favor of McDonnell.
“The repercussions are massive,” said Lisa Gilbert, director of Public Citizen’s Congress Watch. “This case was a critical test, and the court failed.”
As the Supreme Court and lawmakers have scaled back campaign finance rules in recent years, corruption cases have become more critical, Gilbert said. If the court considers only direct quid pro quo situations as corruption, then “we’re likely to see more corruption in government” because most politicians don’t engage in such obvious interactions, she said.
The McDonnell decision could have implications for other corruption cases that the government is already pursuing, such as one against Sen. Robert Menendez . The New Jersey Democrat has been charged with giving political favors to a wealthy Florida donor, Salomon Melgen, who provided gifts and trips to the senator.
“I absolutely see implications for the Menendez case,” Gross said. “That is another case where proving that conduct constituted a corrupt official act rather than a mere constituent service will be a steep hill for the prosecution, and it just got steeper.”
Jonathan Turley, a constitutional law professor at George Washington University, was less certain that the ruling would affect Menendez.
“They may be able to knock the edges off the government’s case but the core may still be viable,” Turley said.
In the Virginia case, there was no concrete evidence the gifts received by McDonnell resulted in any official action, the statute under which he was convicted, Turley said.
Menendez’s case differs, he added, because there appears to be clearer evidence the New Jersey Democrat intervened on Melgen’s behalf, complaining to top federal health care officials that billing rules for Medicare were too vague at the same time that Melgen was being investigated for allegedly overbilling the government at his clinic by nearly $9 million.
Gross said the McDonnell case had “a very strong quid and a very weak quo,” meaning that even as Williams offered the gifts in the hopes of receiving preferential official acts, such acts were not obvious.
Even before the McDonnell decision, several federal corruption efforts have been overturned in recent years, including a botched Justice Department prosecution of former Alaska GOP Sen. Ted Stevens and a probe of former Republican Rep. Tom DeLay of Texas.
Some campaign finance organizations said the McDonnell decision buoys their argument of the need for new legislation.
“Given today’s ruling, states must make it a priority to protect and preserve the integrity of our democracy by passing strong gift laws and campaign finance laws, both of which are designed to prevent bribery schemes from hatching in the first place,” said Tara Malloy of the Campaign Legal Center, a campaign watchdog group.
Lobbyist Paul Miller of Miller/Wenhold Capitol Strategies said he thought the high court made the right decision, and called the case against McDonnell largely a “political witch hunt.”
But Miller, who recently launched a new National Institute for Lobbying and Ethics, added that “Bob’s not innocent either,”saying he hopes that K Street denizens and big political donors don’t misinterpret the decision as the Supreme Court’s blessing to cross ethical lines.
“Too many lobbyists and donors are now playing loosey goosey with things,” Miller said. “Bob McDonnell’s a smart man. He should have known you don’t take gifts like a Rolex.”
Krumholz agrees. “Clearly things happened that should not have happened,” she said. “It does not engender trust in our public officials.”
Turley said he was surprised at Supreme Court’s unanimous outcome in the case.
During oral arguments in the McDonnell case, Turley said some justices appeared to favor the government’s argument that every act taken by a public official should be considered official.
“That support clearly evaporated once they got into the mechanics of the decision,” Turley said.