For everyone who makes a living trying to influence – or just to understand – state public policy, the most important Supreme Court decision of the year may have been one of the last decisions it issued.
On the last day of its 2015-16 term, the Supreme Court vacated former Virginia Governor (and former Attorney General) Bob McDonnell’s federal bribery convictions. A unanimous court held that a phrase in federal bribery law, key to McDonnell’s convictions, means something narrower than what the trial court had told the jury.[i] Specifically, the Court parsed the phrase “official act,” and concluded that, taken alone, an official’s setting up a meeting, hosting an event, or calling another official were not enough to constitute “official acts.”[ii]
The Court also observed that the federal prosecutors’ interpretation of “official act” raised constitutional concerns, because such a broad view of that phrase would disrupt “[t]he basic compact underlying representative government[,] which assumes that public officials will hear from their constituents and act appropriately on their concerns.”[iii] In the Court’s view, convicting an official under federal bribery laws, even on the “distasteful” facts from McDonnell’s case,[iv] would leave officials wondering “whether they could respond to even the most commonplace requests for assistance,” and could cause citizens to “shrink from participating in democratic discourse,”[v] in part because adopting such a broad view of “official act” would not be confined to cases involving Rolexes and Ferrari rides.[vi] This observation was not limited to elected official-constituent relationships at either the federal or state levels.
Also notable was the Court’s concern that federal prosecutors’ broad reading of federal bribery law would disrupt federalism, because as separate sovereigns, states express their sovereignty through their governmental structures and their officials’ character. That expression, according to the Court, includes “the prerogative to regulate the permissible scope of interactions between state officials and their constituents.”[vii] Accordingly, the Court refused to read federal bribery law in a way that would involve the federal government “in setting standards [of] good government for local and state officials.”[viii] As early as McDonnell’s indictment, commentators expressed a similar concern: More than reading federal bribery law too broadly, the federal government was improperly filling a perceived gap in anti-corruption laws and enforcement at state and local levels.[ix]
Contrast McDonnell’s win at the United States Supreme Court with former Alabama House Speaker Mike Hubbard’s recent state ethics convictions in Alabama state court. In Hubbard’s case, state prosecutors argued that Hubbard used his official positions to solicit jobs and money from lobbyists and their clients, and to funnel money to businesses in which Hubbard had an interest. Hubbard contended that most of the transactions fell under Alabama ethics law’s “friendship” exemption and, at any rate, all transactions were proper.[x] A 13-day trial and a 7-hour jury deliberation resulted in a dozen guilty verdicts that could mean a decades-long prison term for Hubbard. Hubbard is appealing his conviction.
One can draw several distinctions between McDonnell’s end-of-the-line victory at the Supreme Court and Hubbard’s recent state court conviction pending appeal, but what ties the two together is that they raise questions about how courts across the country, federal and state, will view public official corruption prosecutions going forward. While McDonnell’s holding is confined to limiting the meaning of a two-word phrase in federal bribery law, its dicta shows our highest court’s willingness to rein in federal prosecutors who attempt to police public corruption at the state and local level. Further, McDonnell’s commentary on how widespread prosecutions of public officials can disrupt the compact of representative government might well resonate with state courts when considering the breadth of state anti-corruption laws.
It may well be that a post-McDonnell world is one where merely granting and gaining access will not ensnare public officials and their private-sector constituents in criminal prosecutions. That’s what McDonnell did to federal prosecutors’ attempted backfilling of state prosecutors’ role in rooting out public official corruption. And McDonnell’s broader reasoning might persuade state courts to rethink how widely public corruption should be viewed in their respective states. Until state courts confront the issue more fully, however, those seeking access to public officials at any level of government should flag the Supreme Court’s decision in McDonnell and Hubbard’s recent conviction under Alabama ethics laws as bookends in the area of public corruption prosecutions.
[i] See McDonnell v. United States, No. 15-474, slip op. at 14, 579 U.S. ___ (2016).
[ii] Id. at 16, 19-20, 22.
[iii] Id. at 22 (emphasis in original).
[iv] Id. at 28.
[v] Id. at 22.
[vi] See McDonnell, at 23.
[vii] Id. at 24.
[ix] See, e.g., David Sherfinski, McDonnell Trial to Test Definitions of Political Corruption, Washington Times, July 27, 2014.
[x] See Kelsey Davis & Brian Lyman, House Speaker Mike Hubbard Convicted on 12 Ethics Charges, Montgomery Advertiser, June 11, 2016.