Defin­ing cor­rup­tion down

In their unan­i­mous McDon­nell de­ci­sion, the jus­tices are defin­ing cor­rup­tion away

Bloomberg Businessweek (Asia) - - CONTENTS -

The best way to re­duce cor­rup­tion, ac­cord­ing to the U.S. Supreme Court, is to de­fine it so nar­rowly that no one can be found guilty of com­mit­ting it.

On June 27 the court unan­i­mously tossed out a ver­dict reached by a Vir­ginia jury find­ing former Gov­er­nor Bob McDon­nell guilty of im­prop­erly as­sist­ing vi­ta­min sales­man Jon­nie Wil­liams. Wil­liams lav­ished McDon­nell and his fam­ily with $175,000 in money and gifts, in­clud­ing $15,000 for his daugh­ter’s wed­ding and $10,000 for another daugh­ter’s en­gage­ment. McDon­nell helped Wil­liams by con­ven­ing meet­ings, host­ing re­cep­tions, and pes­ter­ing his staff for up­dates about Wil­liams’s busi­ness re­quests.

Never mind. Ac­cord­ing to the court, McDon­nell may have acted law­fully. Fed­eral law makes it a crime for a pub­lic of­fi­cial to “re­ceive or ac­cept any­thing of value” in re­turn for be­ing “in­flu­enced in the per­for­mance of any of­fi­cial act.” But the court has been defin­ing de­viancy down for politi­cians and in­flu­ence ped­dlers. Two years ago, in a case in­volv­ing cam­paign con­tri­bu­tion lim­its, it de­fined gov­ern­men­tal cor­rup­tion as acts in­volv­ing a quid pro quo: “a di­rect ex­change of an of­fi­cial act for money.” Now the court has de­cided that a lot of what elected of­fi­cials do all day isn’t, ahem, “of­fi­cial.”

Ac­cord­ing to the court, an of­fi­cial act “must in­volve a for­mal ex­er­cise of gov­ern­men­tal power that is sim­i­lar in na­ture to a law­suit be­fore a court, a de­ter­mi­na­tion be­fore an agency, or a hear­ing be­fore a com­mit­tee.” Elected of­fi­cials, how­ever, rou­tinely ex­er­cise power and wield in­flu­ence in more sub­tle ways.

The court’s de­ci­sion was based on an overblown con­cern: “Of­fi­cials might won­der,” wrote Chief Jus­tice John Roberts, “whether they could re­spond to even the most com­mon­place re­quests for as­sis­tance, and cit­i­zens with le­git­i­mate con­cerns might shrink from par­tic­i­pat­ing in demo­cratic dis­course.” Yet since the adop­tion of fed­eral an­tib­ribery laws decades ago, the lob­by­ing in­dus­try has ex­ploded, and elected of­fi­cials per­form an ever-widen­ing ar­ray of con­stituent ser­vices. The high court is ig­nor­ing a real prob­lem out of con­cern for an imag­i­nary one.

Fed­eral prosecutors now must de­cide whether to retry McDon­nell. His ac­tions may have been per­mis­si­ble un­der Vir­ginia’s no­to­ri­ously lax ethics laws, and his “un­of­fi­cial” acts may be ac­cept­able to the Supreme Court. But a jury may still find that he ex­erted un­due pres­sure on his un­der­lings.

How­ever the case is re­solved, the pub­lic should de­mand tougher and more ex­plicit an­ti­cor­rup­tion laws at all lev­els. “Of­fi­cial acts” should be de­fined more broadly. Gifts of any amount should be il­le­gal. Cam­paign do­na­tions from those with busi­ness be­fore the govern­ment should be se­verely re­stricted. Dis­clo­sure of per­sonal fi­nances should be re­quired. Jus­tice can’t be blind to cor­rup­tion, even if the Supreme Court is.

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