Applying Citizens United to ordinary corruption: with a note on Blagojevich, McDonnell, and the criminalization of politics.

AuthorBrown, George D.
PositionII. The Court's Jurisprudence in the Two Contexts and the Thesis That They Rest on Similar Premises B. The Supreme Court and Ordinary Corruption - Four Key Cases 3. The Hobbs Act Extortion Decisions and the Crucial Distinction Between the Electoral and Ordinary Corruption Contexts b. Evans through Conclusion, with footnotes, p. 207-234
  1. Evans

    Evans v. United States, (255) decided one year after McCormick, is a difficult case. It appears to establish that the quid pro quo requirement applies to all Hobbs Act "under color of official right" prosecutions, regardless of the official's position, but it suggests that the requirement is less stringent if the payment is not a campaign contribution. Evans's difficulty stems in part from the fact that the defendant was an elected official and that the payment took two forms: a direct cash transfer and a check payable to his campaign. (256) The Court did not analyze the case as representing solely a contribution. Instead, it treated the facts as representative of the general problem of improper payments to "public official[s]" brought about by the official's ability to favor the donor. (257)

    Justice Stevens's opinion first had to deal with the statutory requirement that the payment be "induced" by the official. (258) He did not read this requirement as the equivalent of initiation by the recipient; instead, he read it as satisfied by the "wrongful acceptance of a bribe," (259) with "the coercive element ... provided by the public office itself." (260) More serious problems were posed by the defendant's argument that the conviction rested on passive acceptance without a quid pro quo.

    The portion of the opinion rejecting this argument is not a model of clarity. Justice Stevens stated that McCormick's quid pro quo requirement was satisfied. (261) He suggested this includes an "agreement to perform specific official acts" (262) but stated the holding in the following, more general terms: "[T]he Government need only show that a public official has obtained a payment to which he was not entitled, knowing that the payment was made in return for official acts." (263) The case apparently stands for the proposition that the quid pro quo requirement established by McCormick applies in all contexts, at least in some form. (264) However, it is not clear whether the requirement has been watered down to knowing passive acceptance, or whether McCormick's explicitness test still applies beyond campaign contributions.

    Justice Kennedy, concurring, stated that Evans should be read as establishing the quid pro quo element across the board. (265) However, he appears to have abandoned explicitness. The quid pro quo is generated by the official's invocation of his authority "to induce payment of money or to otherwise obtain property." (266) The key factor is what the official intends the payor to believe:

    The official and the payor need not state the quid pro quo in express terms, for otherwise the law's effect could be frustrated by knowing winks and nods. The inducement from the official is criminal if it is express or if it is implied from his words and actions, so long as he intends it to be so and the payor so interprets it. (267) Coming on the heels of McCormick, Evans is a remarkable decision. Six members of the Court--including Justice Kennedy, the author of Citizens United--read the Hobbs Act broadly to reach a form of bribery. (268) The requirement that a payment be "inducted] ... under color of official right" was deemed met by knowing acceptance, and with the justification that any "coercive element is provided by the public office itself." (269) The Court did import the concept of quid pro quo--a term not found in the statute (270)--from McCormick. However, it treated that requirement as easily met. The majority refers to "a payment in return for [an] agreement to perform specific official acts." (271) However, Justice Kennedy seems correct in his gloss that the agreement need not be express although the reference to "specific" acts seems to preserve a degree of explicitness. Yet the Court's statement of the holding omits any reference to specificity. (272)

    Overall, the Court gave a broad construction to an anticorruption statute. Justice Thomas, in dissent, stated that "[b]y stretching the bounds of extortion to make it encompass bribery, the Court today blurs the traditional distinction between the crimes." (273) The Court also rejected a plausible argument advanced by the dissent that the "rule of lenity compels adoption of the narrower interpretation." (274) The broad definition of extortion seems to reflect an underlying view of what constitutes corrupt payments to public officials generally. (275) Evans leaves unresolved the precise operation of the quid pro quo requirement in campaign contribution cases as opposed to ordinary corruption. The payments at issue were, in part, "a campaign contribution." (276) It seems unlikely that the Court had retreated from the explicit quid pro quo requirement of McCormick in that context. (277) That case had left open the treatment of "payments made to nonelected officials or ... payments made to elected officials that are properly determined not to be campaign contributions." (278) Evans raises the possibility that these contexts still require a quid pro quo, but that it is more easily met. (279) This approach protects the electoral process, but it is problematic to have two separate standards for what is already a difficult concept.

  2. A Recapitulation and a Consideration of the Convergence Thesis

    Part II's examination of the cases appears to offer mixed empirical support for the thesis developed in Part I, that there are two separate bodies of federal anticorruption law, neither drawn from the other nor conceptually unrelated. The campaign finance cases--even though they hang by a 5-4 thread--represent a constitutionally based, wide-open view of the political process in which participants use the resources at their disposal and expect to be rewarded by policies favorable to their interests. Everyone knows there will be winners and losers. The result is a narrow view of corruption that reaches only egregious cases where contributions "buy" or "control" elected representatives. (280)

    This notion does not translate well to attempts to subvert the regular processes of government. Admittedly, the ordinary corruption cases discussed above do not present as neat a picture as the campaign finance ones.

    Sun-Diamond aligns closely with the campaign finance cases. It suggests a narrow approach to corruption, rejecting the "reservoir of goodwill" concept and emphasizing the importance of specificity of official action when attempts to influence are criminalized. (281) McCormick is a form of campaign finance case. Its explicitness requirement reflects the post-Buckley emphases on the quid pro quo and on protecting the political process, as well as the recognition that it will involve a multiplicity of interactions. (282) Skillings impact and significance are uncertain. (283) Evans emerges as the key ordinary corruption case. It has the potential to introduce great breadth to the closely related areas of extortion and bribery. (284) Overall, the ordinary corruption cases demonstrate some analytical kinship with the campaign finance cases, although they do not cite them. The harder question is whether, with the exception of Evans, they support the notion of a possible unified judicial approach to corruption.

    Academic writing on corruption varies widely in its approach to this issue. Some commentators acknowledge the existence of the two fields and choose to deal with only one. (285) Some treat one field as exemplifying the concept of corruption while seemingly oblivious to the existence of the other. (286) Others suggest possible relationships between the two. (287) I wish to discuss two contributions to the last group, those of Jacob Eisler and Zephyr Teachout. Both see the relationship between the two fields clearly and suggest a degree of convergence.

    Eisler's The Unspoken Institutional Battle over Anticorruption: Citizens United, Honest Services, and the Legislative-Judicial Divide (288) is a thorough inquiry into post-Buckley developments in both fields. Although one may disagree with his analysis of ordinary corruption, the article is a comprehensive and significant contribution. Eisler begins by noting a "striking pattern" (289) of parallel analysis in Citizens United and Skilling, which "can be framed as a clash between differing schools of anticorruption." (290) He divides the schools between "competitive and deliberative" approaches to corruption. (291) The Court is clearly in the competitive camp--its "rulings have established a consistently and uncompromisingly competitive regime." (292) Congress apparently wavers between the two. (293) The competitive approach presumes a democracy that is "self-interested and adversarial." (294) "Deliberative democracy emphasizes discourse and cooperation, rather than formal selection processes ...," (295) Eisler presents the difference as resulting from "a lively debate in democratic theory." (296) It is clear that this debate reflects differing views of the electoral process. Whether it can be translated into analyzing methods of dealing with ordinary corruption is far from clear.

    Eisler views deliberative anticorruption measures as focused on motive, while competitive anticorruption seeks bright-line rules rather than "subtle normative assessments." (297) The framework bogs down a bit at the start because Eisler admits that each approach has "ultimately normative roots." (298) He also admits that either can lead to prophylactic statutes and that "[m]any corruption laws integrate attributes of deliberative and competitive anticorruption." (299) It is also hard to follow the thesis that deliberative anticorruption measures, which follow the rigid constraints of the criminal law, can lead to "collective discourse," (300) or "subtle normative assessments of leaders' motives or probing the relationship between ethics and public service." (301) Nonetheless, Eisler makes an important point in arguing that the competitive approach leads to a preference for bright-line rules that avoid the possibility of any such inquiry...

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