How the Supreme Court Is Rebranding Corruption – – ProMarket

In thirteen years of hostile decisions, the Roberts Supreme Court has done all it can to legalize corruption. With the Bridgegate case, it gets a chance to wreak even more havoc and possibly end the use of the term “corruption” as a useful legal concept.

From its very first term, the Roberts Supreme Court has been rebranding the meaning of the word “corruption” both in campaign finance cases as well as in white-collar crime cases. And in Kelly v. United States (better known as the Bridgegate case), the Supreme Court may do even greater damage to the concept of corruption.

The Roberts Court Rebrands Corruption

The Roberts Supreme Court, November 30, 2018. Photo by Fred Schilling, Collection of the Supreme Court of the United States.

What has the Roberts Supreme Court done to corruption? I discuss this in my recent Harvard Law & Policy Review article, “Deregulating Corruption,” and in my soon to be released book, Political Brands. First, they have narrowed the meaning of the word in a series of election law cases that address the constitutionality of various campaign finance laws. In cases like Citizens United v. FEC, which allowed corporations the First Amendment right to spend an unlimited amount of money on political ads, and McCutcheon v. FEC, which allows the rich to support as many congressional candidates as they want with contributions, the Roberts Supreme Court has ruled 5-4 that “corruption” only means quid pro quo exchanges.

This approach to corruption sets the Roberts Supreme Court apart from other Supreme Courts. For over a century, previous Supreme Courts upheld campaign finance laws and other regulations which try to keep graft and political intimidation at bay precisely because as the Supreme Court recognized in Ex parte Yarbrough in 1884, “[i]n a republican government like ours, where political power is reposed in representatives of the entire body of the people, chosen at short intervals by popular elections, the temptations to control these  elections by  violence and by corruption  is a constant  source  of  danger….  no  lover  of  his  country  can shut his eyes to the fear of future danger from both sources…”

Even the Rehnquist Supreme Court—no bastion of liberals— was more thoughtful about political corruption than the Roberts Court is. For example, in 2003, the Rehnquist Supreme Court ruled in FEC v. Beaumont that there is a “public interest in ‘restrict[ing] the influence of political war chests funneled through the corporate form.’ ; ‘[S]ubstantial aggregations of wealth amassed by the special advantages which go with the corporate form of organization should not be converted into political ‘war chests’ which could be used to incur political debts from legislators.’”

In a twin 2003 decision, McConnell v. FEC, the Rehnquist Court asserted that the “crabbed view of corruption”—which would limit the term to actual quid pro quo corruption—“ignores precedent, common sense, and the realities of political fundraising.” The Roberts Court has rapidly put that capacious concept of political corruption in exile and knocked down nearly every campaign finance law it has been asked to review. (The Supreme Court left in place a ban on foreigners spending in US election and a ban on judges personally asking donors for money, but these are the exceptions that prove the rule.)

But wait, there’s more. The Roberts Supreme Court has also rebranded corruption by changing what counts as white-collar crimes. In Skilling v. US (a case brought by disgraced ex-CEO of Enron Jeff Skilling challenging his 24-year prison sentence for defrauding the company’s shareholders), the Supreme Court agreed with Skilling that he should not have been charged with honest services fraud because his crimes did not involve a bribe or a kickback. This Supreme Court decision led to Skilling getting 10 years shaved off of his original sentence. He was released from jail in 2018 and left his halfway house in 2019. He is now a free man.

Also in the criminal context, the Roberts Supreme Court invalidated the conviction of ex-Governor of Virginia Bob McDonnell. McDonnell, who had money troubles while he was Governor of Virginia, accepted money and gifts from a businessman named Jonnie Williams who wanted to sell his tobacco pills (I’m not making any of this up) to Virginia employees. The Governor set up a few meetings for Williams and once touted a bottle of the tobacco pills in a meeting.

In McDonnell v. US, the Supreme Court decided that none of what Governor McDonnell did was “an official act,” and thus he could not be guilty of a quid pro quo exchange with Williams. No one disputed that Williams had given the governor lots of money. What the Supreme Court didn’t buy was that the Governor did enough in return for the largess to constitute a crime.

“Corruption isn’t a partisan matter. Both Democratic and Republican politicians have been accused of abusing their offices for private gain. And using the Roberts Supreme Court cases to their advantage is equally bipartisan.”

Criminals Love This

As I discuss in my article and my book, the Supreme Court’s role in gutting corruption has been keenly watched by shady politicians and their lawyers. If you pull the legal briefs in criminal cases charging politicians of crimes like bribery and fraud, what you will find is citations to white-collar crime cases like Skilling and McDonnell, as well as citations to campaign finance cases like Citizens United and McCutcheon, as reasons why whatever awful thing the politician did is not actually a crime.

Corruption isn’t a partisan matter. Both Democratic and Republican politicians have been accused of abusing their offices for private gain. And using the Roberts Supreme Court cases to their advantage is equally bipartisan. Not so surprisingly, convictions of some politicians have been overturned. For example, the conviction of Republican Joseph Bruno, the New York State Majority Leader, was overturned using the cases cited above. So too was the conviction of Democrat Sheldon “Shelly” Silver, the Speaker of the New York State Assembly. Bruno was acquitted in his re-trial. Silver was convicted again but is presently appealing that second conviction using the Supreme Court’s gutted corruption cases as his defense.

Could it Get Worse? Yes.

As bad as the Supreme Court’s jurisprudence on corruption is today, it could always get worse. And the Bridgegate case could give the conservative majority on the Court a chance to wreak even more havoc.

The issue in Bridgegate is whether a public official “defrauds the government of its property by advancing a public policy reason for an official decision that is not her subjective real reason for making the decision.” Bridget Anne Kelly worked for New Jersey Governor Chris Christie when two of three toll lanes on the George Washington Bridge were closed to punish the Mayor of Fort Lee for not supporting Christy politically. Ms. Kelly, then Christie’s deputy chief of staff, sent a famous email to David Wildstein, a Christie appointee at the Port Authority, that said, “Time for some traffic problems in Fort Lee.” When public outrage at the deadly traffic followed (ambulances couldn’t get through it with normal alacrity), Kelly and others in the administration lied to the public and said that the closure was part of a bogus traffic study.

Kelly has been convicted of misusing property of an organization receiving federal benefits; conspiring to commit, and actually committing, wire fraud; and conspiring to injure and oppress certain individuals’ civil rights, among other crimes. She is appealing, arguing that her conviction is inappropriate because prosecutors were trying to criminalize politics. Kelly’s lawyers cite repeatedly to the Skilling and McDonnell cases in their Supreme Court briefs.

The Kelly case gives the Roberts Supreme Court, which now has two Trump appointees on the bench, another bite at the corruption apple, which is nearly completely devoured after the thirteen previous years of hostile decisions. One more bite and “corruption” could really be done as a useful legal concept. And the Supreme Court is doing all of this while there is a bumper crop of corruption scandals springing up—from the President, to his cabinet, to his 2016 campaign, to his inaugural committee.

But President Trump and those in his orbit may be counting on the Supreme Court to make prosecuting them harder, if not impossible.

Ciara Torres-Spelliscy is a Brennan Center Fellow, a Professor at Stetson Law and the author of the book Political Brands.

The ProMarket blog is dedicated to discussing how competition tends to be subverted by special interests. The posts represent the opinions of their writers, not necessarily those of the University of Chicago, the Booth School of Business, or its faculty. For more information, please visit ProMarket Blog Policy