Is Citizens United a Get-Out-of-Jail-Free Card for Bob McDonnell? The U.S. Supreme Court Will Decide

Brendan Fischer
Apr 26, 2016
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It is a common refrain that cases like Citizens United allow for “legalized bribery.”

But few argue that the U.S. Supreme Court has literally legalized pay–to-play politics; such descriptions are usually shorthand for the systemic ways that big money in elections has tilted the political system toward the donor class.

Former Virginia Governor Bob McDonnell, however, is hoping that Citizens United did, in fact, legalize bribery.

On Wednesday, the U.S. Supreme Court will hear arguments in an appeal of McDonnell’s conviction on public corruption charges for accepting $175,000 in gifts and loans – including a Rolex watch, a custom golf bag, and expensive vacations and shopping sprees – from multi-millionaire Jonnie Williams, and then using his official position to promote the interests of Williams and his company, Star Scientific.

                                                              

Among other arguments, McDonnell is asking the court to declare that cases like Citizens United actually created a constitutional right for wealthy individuals like Williams to “buy access,” and for politicians like McDonnell to sell it.

If McDonnell were to prevail in these claims, then those allegations about the U.S. Supreme Court “legalizing bribery” would no longer be so hyperbolic.

Can Citizens United Keep McDonnell Out of Jail?

McDonnell’s defense rests, in part, on a wildly expansive reading of the court’s recent campaign finance cases like Citizens United and McCutcheon.

In those decisions, the court’s five-justice majority appeared to narrow the sorts of policy reasons that it would accept as justification for campaign finance laws. The majority held that generalized concerns about individuals who spend large sums gaining access to elected officials, or elected officials feeling gratitude towards their campaign supporters, were not enough to sustain limits on corporate independent spending (in Citizens United) or large aggregate giving (in McCutcheon) – at least in the absence of a legislative record.

These decisions are problematic on their own; the Campaign Legal Center filed friend-of-the-court briefs in both cases asking the court to recognize a broader set of policy justifications for campaign finance laws.

McDonnell, however, is trying to stretch Citizens United and McCutcheon beyond the breaking point, arguing that these cases held that “paying for access” is a “fundamental constitutional right.”

This is a wildly inaccurate reading, as CLC argued in its brief.

In cases like Citizens United and McCutcheon, the rights the Supreme Court sought to protect were an individual’s right to political expression and association – as conveyed through campaign contributions and expenditures – not an individual’s purported right to purchase access to officeholders.

Although a donor’s “access” to an elected official may be a byproduct of campaign spending, the high court has only held that general fear about such access is an inadequate justification for campaign finance limits, not that such “access” is protected in and of itself.

Just because preventing ingratiation and access won’t justify certain campaign finance limits doesn’t mean that “buying access” is therefore a protected constitutional right – and it certainly doesn’t mean that an actual corrupt exchange of gifts and loans for official acts is no longer bribery.

McDonnell Provided His Benefactor Far More Than “Access”

In any case, McDonnell afforded Williams far more than the sort of “access” envisioned in Citizens United and McCutcheon, such as posing for a picture, sending a thank-you note, or taking a phone call.

Several months after being sworn into office, Williams lent McDonnell his private jet for a cross-country trip to a political event in California. Williams then took a commercial flight to California so he could join McDonnell on the return trip, because he wanted “five or six hours” with the newly-elected governor to make his pitch.

As the pair soared back to Virginia in Williams’ private jet, the Star Scientific CEO explained to the governor that his company was developing a dietary supplement called Anatabloc, and he wanted the FDA to approve it as a pharmaceutical – but that getting such an approval required costly scientific testing, which Williams could not afford.   

Williams hoped that Virginia’s state medical schools would conduct the necessary testing – at taxpayer expense – and he wanted McDonnell’s help in making that happen.

In the months and years to follow, Williams would shower McDonnell and his wife with over $175,000 in gifts and loans. A few months after the cross-country plane trip, Williams took McDonnell’s wife on a $20,000 shopping spree in New York, followed by a dinner at the governor’s mansion where the discussion centered on Anatabloc and Star Scientific’s need for independent testing. McDonnell was in financial trouble, and Williams extended a series of loans amounting to $70,000 – which the governor did not begin to repay until he learned he was under investigation. 

As the gravy train continued to flow, McDonnell and his wife both took steps to advance Williams’ interests. McDonnell hosted a “launch event” for Anatabloc at the governor’s mansion, and invited university officials and handed out samples of the product, with the goal of “encouraging [the] universities to do research on [Anatabloc].”

Sometimes McDonnell’s actions were closely tied to Williams’ gifts.

In one instance, McDonnell e-mailed Williams about a $50,000 dollar loan, and then six minutes later, e-mailed an aide to check on scientific studies for Williams’ product.

In another, Williams invited McDonnell and his family to a free vacation at his multi-million-dollar lake house, then let McDonnell borrow his Ferrari to drive back to Richmond. The night that McDonnell returned home, he directed a representative of the Department of Health to meet with Williams and his wife at the governor’s mansion to discuss the proposed studies. After those meetings Williams bought the governor a Rolex watch.

What do any of these pay-to-play activities have to do with the sort of “access” described in Citizens United, like photo ops or courtesy phone calls? Nothing.

So McDonnell makes up a new term – “procedural access” – which he construes to include a politician’s use of official authority on a benefactor’s behalf to “access” and influence other government officials.

This claim is likely a step too far, even for the Roberts court.

Williams Gave McDonnell Vacations and Custom Golf Bags, Not Campaign Donations

Notably, all of McDonnell’s illicit activity took place entirely outside the realm of election spending. The “quid” in the quid pro quo here was not campaign donations or expenditures, but instead shopping sprees, loans, Ferrari rides, and Rolex watches.

That is another reason why decisions like Citizens United have little bearing on this case. The U.S. Supreme Court has treated campaign donations and expenditures as forms of political association and expression protected under the First Amendment. A campaign donation can be a way of expressing support for a candidate’s policy goals or ideology, the court has held, and an expenditure can be a form of political speech.

Gifts, loans, and free vacations, however, do not implicate the First Amendment in any significant way.  A candidate needs money to run for office, but once elected, he doesn’t need a Rolex watch.

In campaign finance cases like Citizens United, the court has sought to balance those purported First Amendment rights against the public interest in preventative campaign finance restrictions – which apply across the board to all contributions, regardless of a particular donor’s intent.

A bribery conviction, in contrast, doesn’t involve any analogous balancing: it instead requires proving that a particular officeholder knowingly entered into a corrupt agreement to exchange an “official act” for something of value. 

Scalia’s Passing Might Change Outcome

The chances that the court will adopt McDonnell’s expansive reading of Citizens United dropped after Scalia’s death – and the former Governor knows it.

McDonnell’s petition asking the court to take the case, filed last October, leaned heavily on cases like Citizens United, with the apparent expectation that the five-justice majority would be open to expanding the reach of its campaign finance cases.

But then, after the court took the case, Scalia unexpectedly passed. Given the court’s new 4-4 split, McDonnell backed away from his most brazen First Amendment arguments when he filed his full brief in the case earlier this year. 

McDonnell’s appeal doesn’t entirely rely on his strained reading of Citizens United. The former governor additionally argues that the steps he took to advance Williams’ interests didn’t amount to an “official act,” which is a required element for a bribery or public corruption conviction. He claims that he only offered Williams “innocuous favors” and never “put a thumb on the scale” of an official governmental decision, which are highly questionable contentions. 

Ultimately, the McDonnell case comes down to a question of who we should expect elected officials to be working for – their constituents, or the highest bidder. 

Read Campaign Legal Center's friend-of-the-court brief in McDonnell v. United States.  

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