McDonnell Decision and the Future of Federal Conflict of Interest Laws

June 30th, 2016 3:57 pm

I am sure that my wisdom pales before that of a deeply-divided Supreme Court that somehow unified long enough to unanimously overturn the conviction of former Virginia governor Bob McDonnell. There are innumerable ways that the Court might have justified such an outcome; however, concluding that his intercession in arranging meetings for Jonnie R. Williams, Sr. did not constitute “official acts” stretches credulity. Moroever, as one who spent the majority of his Federal career involved in government ethics, I am left to wonder after this decision, “why bother with government ethics at all?”

The Court seemed to be in alignment with the notion that an action taken by a public official (on official time and dime) in order to get another public official to consider taking an official action is not, in and of itself, an official act. I confess that I am not as smart in this realm as they, but I would have assumed that when a private citizen wants the Commonwealth of Virginia to use his company’s products and contacts the governor to arrange a meeting regarding the use of that product by the Commonwealth, that he is hoping that the governor’s intercession will involve use of the clout that governors usually only have as a result of their official status. But, that’s just me, I guess. Yet, If these are not “official acts,” what are they? Private? Quasi-private?

In essence, the Court has said that if the highest elected official of your jurisdiction takes the time to walk into your office and tell you to meet with person x about product y, there is nothing that you, the subordinate official, should (1) assume about the intended outcome of that meeting, or (2) fear about your career path should the outcome not go in a given direction. And, of course, you as a citizen should pay no attention to the hundreds of thousands of dollars in gifts and opportunities provided by the man/woman “behind the curtain” to your highest public official unless you can absolutely prove that those gifts/opportunities were provided for a reason other than for the public official to do his/her best for the public as a whole.

I take no solace in the reassurance by Justice Roberts that this decision does not prevent the government from prosecuting corruption in general—perhaps only corruption by the stupid. Only a dumb organized crime boss would tell a subordinate to kill someone. A smart boss would simply infer to an underling that the to-be-murdered-person’s absence through an unfortunate occurrence would be “shall we say, beneficial.” Similarly, only the stupid corruptor would clearly and succinctly state to a public official that he/she is specifically providing a payment of $100,000 to that official specifically in return for a given favorable decision. The smart one would as here, have someone with clout arrange a “meeting to discuss” the matter with an subordinate official. I don’t know. Maybe “thinning the herd” is as desirable goal in corruption as it is in nature–survival of the fittest and all that. for those who remember the TV comedy “Cheers,” it seems more like Cliff Claven’s “Buffalo Theory” to me. Look it up.

We in government ethics talk all the time about officials not even giving the appearance of a conflict of interest. As in most human endeavors, we find that noble principles are best supported by a few punitive laws or rules for those who do not “see the light.” Over two centuries, Federal conflict-of-interest laws and ethics rules have punished appearances of corruption because of the overarching need in a government based on popular sovereignty for the citizenry to trust in the integrity of its governing officials. Sadly, the Court has said that appearances/ethics are in the eye of the beholder. Rod Blagojevich, get that appeal started.

Unfortunately, I fear that as the Citizens United decision turned the electoral side of our democracy fully over to the rich and powerful, the McDonnell decision will turn the policy side fully over to the rich and powerful as well.