Former Virginia Gov. Robert F. McDonnell accepted $177,700 in gifts and loans from a businessman hoping to curry favor with the state, which resulted in McDonnell’s conviction on 11 counts of corruption. Sentenced to two years in prison, McDonnell is currently free on bond as his case is reviewed on appeal. Recently, the Supreme Court has agreed to hear his case, and its decision could redefine what public corruption is.
McDonnell’s position is that, yes, he accepted the presents and the sweetheart deals, but since the man who provided them never got anything in return, they shouldn’t be held against him. Should this argument prevail, the new legal standard of corruption would require proof of a quid-pro-quo arrangement, where a bribe can be directly linked to a specific government action taken as a result. Such a standard would be almost impossible to verify, and it would give public officials far greater leeway in how they interact with “generous” constituents who show their appreciation by way of gifts bestowed on office holders who have the power of government at their disposal.
That’s an unsettling prospect to consider.
The reason there are such strict rules surrounding gift-giving is that demonstrating a direct linkage between what a government does and why it does it is extraordinarily difficult. For example, politicians receive campaign contributions from like-minded individuals, but the officials usually insist that they would vote the same way with or without the donations. That may very well be true in many or even most instances, but few would contend that it is always true. That’s why federal campaign finance rules have been repeatedly upheld by the courts, as the possibility of corruption clearly exists even when a quid-pro-quo arrangement can’t be definitively established.
A new standard that requires proof that gifts produced specific favors may have repercussions here in Utah, where former attorneys general Mark Shurtleff and John Swallow face similar corruption charges. Ironically, both Shurtleff and Swallow have made statements similar to McDonnell’s arguments — they acknowledge that they received expensive gifts, but they deny that those gifts had any influence on their actions. It seems unlikely that prosecutors in either case will be able to demonstrate a clear quid-pro-quo, but that doesn’t necessarily mean that Shurtleff and Swallow behaved appropriately.
The specifics of McDonnell’s case may mitigate the scope and impact of any Supreme Court decision, but, as a general rule, the idea that only a quid-pro-quo arrangement constitutes corruption is a dangerous one. In practical terms, it’s a recipe for disaster.