Facing an uphill fight to avoid a prison term for bribery, former Virginia Gov. Bob McDonnell is making a bold argument in the Supreme Court this week that buying access and influence with public officials is protected by the 1st Amendment.
And to back up his claim, his attorneys have pointed to passages in the court’s controversial Citizens United decision.
In that case, the conservative majority not only freed corporations and unions to spend unlimited sums on politics, but — in a less noticed clause — described buying access with officials as a time-honored part of American democracy.
“The possibility that an individual who spends large sums may garner influence over or access to elected officials” is not evidence of bribery or corruption, Chief Justice John G. Roberts Jr. said two years ago in striking down the limits on how much in total a single donor may give to a field of candidates. “Ingratiation and access... are not corruption,” he said, quoting from the Citizens United opinion.
McDonnell’s attorneys have latched on to that legal rationale to argue that doing small favors for big donors is protected under the 1st Amendment.
“Paying for ‘access’ — the ability to get a call answered or a meeting scheduled — is constitutionally protected and an intrinsic part of our political system,” they said in their appeal. “If Gov. McDonnell can be imprisoned for giving routine access to a gift-giver, an official could equally be imprisoned for agreeing to answer a donor’s phone call about a policy issue.”
The justices will hear arguments Wednesday in McDonnell vs. United States.
The Justice Department says McDonnell’s claim, if accepted by the high court, would “radically restrict” bribery laws and “allow the purchase and sale of much of what government employees do.”
Defenders of the campaign-funding laws say they were surprised to see them invoked in a case involving gifts and cash given secretly to a public official.
“This is an apples and oranges comparison, and they are working with the wrong fruit,” said Fred Wertheimer, president of Democracy 21, a group that supports tighter limits on money in politics. "We think they are just wrong to say personal gifts are protected speech under the 1st Amendment.
This is an apples and oranges comparison, and they are working with the wrong fruit.
Forty years ago, in the Buckley vs. Valeo decision, the court said contributions to candidates could be limited as a way to avoid corruption or “the appearance of corruption.” But more recently, the Roberts Court has said that only bribes amount to corruption. “The government may not seek to limit the appearance of mere influence or access,” Roberts wrote two years ago.
McDonnell, a Republican and former state attorney general, was elected governor in 2009. He was seen then as a rising star and was talked about as a possible vice-presidential running mate for Mitt Romney in 2012.
But McDonnell and his wife were deeply in debt. Jonnie Williams, a free-spending Virginia businessman, offered to improve their "financial situation” if they helped promote his tobacco-based dietary supplement.
Over two years, he secretly gave the couple more than $175,000 in loans, vacations and gifts, including a New York shopping spree by McDonnell’s wife and an engraved Rolex watch for the governor.
The trial also featured a photo of McDonnell proudly driving a Ferrari that Williams had lent him to use during a vacation.
Prosecutors showed evidence that within minutes of speaking to Williams about personal loans, the governor called or emailed aides and state health officials, asking them to come to the governor’s mansion to hear more about the dietary supplement. McDonnell used the governor’s mansion for a product launch for the new supplement. And he carried a bottle of pills in his pocket and suggested state employees might want to try them.
But the state’s health advisors and researchers at the state universities walked away unimpressed. In the end, the state did no testing or research on the supplement Williams was promoting.
McDonnell was charged with bribery and corruption, and a jury convicted him in 2014 on 11 counts. A U.S. appeals court upheld the convictions and said the governor had taken bribes in exchange for “using the power of his office to influence governmental decisions.”
But last year, the Supreme Court shielded McDonnell from going to prison while his appeal was considered.
McDonnell’s lawyers insist the governor took no “official action” to benefit Williams. In their view, meetings and phone calls did not count unless the state took a formal action, such as awarding a contract or funding a research study.
The death of Justice Antonin Scalia has greatly diminished the chances that McDonnell will prevail because the liberal justices are not expected to support his legal position, particularly if it is based on the Citizens United decision.
If the court splits 4-4 on the case — as has happened more frequently since Scalia’s death — the lower court ruling would stand, meaning McDonnell’s conviction and prison term would be upheld.
On Twitter: @DavidGSavage