Among the phony prosecutions pursued by the feds recent years, one of the flimsiest has to be the prosecution of former Virginia governor Bob McDonnell. Of course, he was convicted; and his conviction was affirmed by the Fourth Circuit. His appeal reached the Supreme Court last week. The smart money is betting on reversal.
Out on the campaign trail, we have Bernie and Hillary telling the world that if elected they will appoint Supreme Court justices to get the Citizens United case reversed, and then advocate for legislation to criminalize most if not all private "money in politics." But meanwhile in the McDonnell prosecution we have a great illustration of how this strategy would not only not solve the alleged problem, but would make things far worse. Granted, the facts of the McDonnell case are not pretty. On the other hand, the more you get into those facts, the harder it is to figure out how, as long as we have privately funded political campaigns, every single politician in the country will not be equally subject to conviction under the same theory. So from Bernie and Hillary we get the only remaining answer -- that only money from the government itself can remain in politics. But wait a minute: money coming from the government is far and away the most corrupt money of all, always and everywhere used to advocate for the growth in size and power of government and to oppose all attempts to rein the government in. The disease may be bad, but the cure is far worse.
For the most favorable view of the facts of the McDonnell case from the government’s side, check out its brief here. While he was governor of Virginia, McDonnell and his wife “solicited and secretly accepted more than $175,000 in money and luxury goods” from a businessman who wanted the state-controlled University of Virginia to conduct clinical tests on his company’s product. In return, McDonnell allegedly talked up the product to various university officials, invited the businessman to a reception where university officials would be present, arranged meetings between some officials and the businessman, and followed up as to why nothing was happening with the businessman’s proposals. But in the end the university declined to conduct the trials.
McDonnell was convicted under 18 U.S.C. Section 201. That section makes it a federal crime for a “public official” to “corruptly demand[ ], seek[ ], receive[ ], accept[ ], or agree[ ] to receive or accept anything of value . . . in return for . . . being influenced in the performance of any official act.” McDonnell’s lawyers rightly point out on appeal that the government cannot name the “official act” that McDonnell agreed to or did perform in return for the gifts. Is setting up a meeting or talking up a product an “official act” that a politician cannot legally perform on behalf of anyone who has made a contribution to his campaigns?
At scotusblog, Lyle Denniston has a report on the Supreme Court argument last Wednesday. If the drift of the justices' questions proves a good predictor of the outcome, as it almost always does these days, McDonnell is very likely to get a reversal. Justices from both sides of the political divide (Roberts, Breyer, Kennedy, Kagan) actively picked the conviction apart during the questioning. Much of the questioning centered around what is the “limiting principle” that would make it such that not every elected official who arranges a meeting on behalf of a campaign contributor is guilty of a federal felony. Seems that the Deputy Solicitor General who argued on behalf of the government didn't have a good answer to that one.
If you think that McDonnell's conduct really must be illegal somehow, consider this about President Obama from one of the amicus briefs filed on behalf of McDonnell (by the American Center for Law and Justice):
During President Obama’s reelection campaign, in 2012, Hoffman [founder of LinkedIn] and Pincus [founder of Zynga] each gave a million dollars to Priorities USA, the Democratic Super PAC. Since then, they have had the opportunity to spend time with Obama. In a private forty-five-minute meeting in the Oval Office in 2012, Pincus gave the President a presentation on what he calls “the product-management approach to government.” Obama telephones him now and then, sometimes at home, and Pincus and his wife have been Obama’s dinner guests. In June, Hoffman helped organize the guest list for a dinner party for Obama in San Francisco, and he has had conversations with Obama at several meetings and dinners at the White House.
Legal or illegal? As a clue, it is not a sufficient answer to say "Obama controls the prosecutors, and therefore he will never be prosecuted for this."
Meanwhile back in New York, official corruption is all over the news. U.S. Attorney Preet Bharara, fresh off convictions of the two most powerful legislators in our state (Assembly Speaker Sheldon Silver and Senate Majority Leader Dean Skelos), has active investigations going of campaign fundraising practices of both Governor Andrew Cuomo and Mayor Bill de Blasio. Bharara, of course, has been paying no attention whatsoever to the statutory requirement of some "official act" in return for the alleged pay-off. The Skelos conviction, in particular, is on very weak ground. The most important piece of Skelos's alleged crime was leaning on his friends in the government of Nassau County to approve a contract with a company that agreed to employ his son. But Skelos himself had no official position with Nassau County, and no say in the approval of the contract.
In the New York Post yesterday, Nicole Gelinas asks if we are "tired of New York's pay-to-play politics," and laments that the Supreme Court may be "about to make it harder to secure corruption convictions." Are New York's politics really more corrupt than those of any other state? Sure they are, but in my view it's not because our politicians are any more corrupt, or really any different from the politicians anywhere else. Nor is it because corruption convictions are too hard to obtain. The difference in New York is that we have adopted full-blown progressivism; and therefore our government is bigger and more intrusive than that of any other state, and engages in massive state capital allocation, all in the effort supposedly to create perfect justice and fairness between and among all people, and to remove all downside risk from human life. We merciless persecute our most successful businesses (banks, oil and gas) and periodically subject them to prosecutorial shakedowns, while doling out special permits and billion dollar handouts to loser businesses that only exist at the sufferance of politicians (casinos, solar, taxi medallions). As a result, literally everyone in New York who has enough money to contribute noticeably to a political campaign has some "business before the state," and some interest in some state decision of some kind. Cuomo takes money from people who want to ban fracking, or want approval of casinos, or want subsidies for solar panel factories; de Blasio takes money from the teachers' unions on the eve of a multi-billion-dollar contract settlement, or from people who want to ban horse-drawn carriages from Central Park, or from taxi medallion owners. Are any of these "bribes"? How do you tell?
So what's the answer? We can have the Hillary/Bernie answer, where we do away with the First Amendment, nobody is allowed to push back against the growth of the government, and the only "money in politics" is government money. Then the only voice we will be allowed to hear is the voice of government agencies seeking to expand their own budgets and power: the billion dollar government advertising campaigns to expand Obamacare; the EPA taxpayer-funded social media astroturf campaigns to generate hundreds of thousands of fake letters supposedly supporting EPA regulatory initiatives; the massive government promotion of expansion of food stamp dependency; the government fake "food insecurity" surveys fraudulently designed to sell the American people on the idea that millions are hungry; the government "anti-poverty" programs specifically structured to keep poverty high so that the public can be sold on yet more "anti-poverty" spending; the phony GDP accounting that fraudulently pretends that the most wasteful government spending is a 100% addition to GDP rather than a subtraction; etc., etc., etc.
Or we can reduce (although not eliminate) "pay-to-play culture" and corruption in politics by shrinking the footprint of government.