It looks like it’s about to become harder for the federal government to prosecute public officials on charges of corruption. But don’t blame the Supreme Court just yet.
The high court has steadily loosened restrictions meant to protect the public against politicians and other public officials behaving badly. And it’s fair to criticize the court for that. It shouldn’t be this hard to prosecute politicians who are accused of abusing the public trust.
But now in the case of Snyder v. United States, the court is faced with a federal bribery law, which may not do what it is supposed to do — protect the public from politicians and other public officials who seek to serve themselves, not us.
Let’s remember that the Supreme Court has made it harder, not easier, to prosecute politicians who are accused of abusing the public trust.
James Snyder, a former small-town mayor in Indiana, may be an example of just such a politician. He awarded city contracts to a trucking company. He then ran into financial problems and went to that trucking company asking for money. The trucking company obliged and paid him $13,000 for consulting work that never came to fruition.
But the federal law may provide an escape hatch for Snyder. The federal law bars state and local officials from “corruptly” soliciting, demanding, accepting or agreeing to accept anything valued more than $5,000 while “intending to be influenced or rewarded” for an official act. We know that the statute punishes quid pro quo agreements to take an official act in the future. But does it go further? It largely depends on how broadly or narrowly “corruptly” is defined.
It is no surprise then that the correct definition of the word “corruptly” took up much of oral arguments. The government argued that corruption includes knowing that what you’re doing is “unlawful” or “wrongful” or possessing a “consciousness of wrongdoing.” Snyder argued that corruption means something different, “deliberately and wrongfully agreeing to a quid pro quo.”
The government’s approach would punish more conduct and represents a better approach. It correctly balances competing goals. On the one hand, we want prosecutors to be able to go after officials who undertake public acts because money has or will arrive in their pockets. On the other hand, we don’t want the federal government to criminalize the acceptance of thank you gifts. There is a difference between seats to a basketball game and a no-bid contract.
The high court stands on the precipice of allowing officials like Snyder to come, hat in hand, to ask for money for those who have benefited from his official acts. This seems wrong, but the wording of the statute may just not reach the Snyders of the world. These are tough questions involving the best legal interpretation of statutes meant to uphold the public’s trust in our officials.
These difficulties are compounded by the fact that it has always been difficult to link the receipt of money or gifts to official acts and while the statute must be clarified, it shouldn’t be so narrow that it essentially fails in its purpose to protect the public. More often than not, politicians can claim that they would have taken an action that benefited a donor regardless of the donation. Few politicians are sloppy enough to leave a smoking gun behind and say something like “I’m only voting for this bill because you gave me money.”
These difficulties are compounded by the fact that it has always been difficult to link the receipt of money or gifts to official acts. And let’s remember that the Supreme Court has made it harder, not easier, to prosecute politicians who are accused of abusing the public trust. In 2016, the Supreme Court unanimously overturned the bribery conviction of former Virginia Gov. Bob McDonnell. In doing so, the court made it more difficult for the federal government to prove bribery in all cases by narrowing the definition of what constitutes an “official act” under the federal bribery statute. Critics of the court’s decision claim that the case does little more than legalize pay-to-play politics. Similarly, the court’s campaign finance cases, in decisions like Citizens United, have significantly narrowed the definition of corruption to just “quid pro quo” corruption. Arguably, the campaign finance laws therefore accomplish little more than the federal bribery laws do. And the federal bribery laws are likely about to get narrower. We want to punish the person who awards a city contract knowing that they might or intending to get something in return. We don’t want to punish the person who is thanked for an official act and never had any expectation, or perhaps even desire, for a thank you. Again, the difference hinges on the definition of the word “corruptly,” and Congress can clarify that. But given Congress’ relative inaction, the court may be left to issue an opinion which narrows the definition of corruption. Snyder undertook an official act and then asked for and received money from the group that benefited from that act. Is that the same as getting money and then taking an official act? If Snyder undertook his official act knowing he was, or intending to be, influenced by the money he received, the harm to the public is the same whether the money was given before or after the act and the statute should reflect that. For years, the Supreme Court has made it harder to prosecute corrupt officials, weakening the force and effect of anti-corruption statutes. But here, the weakness may be in the statute itself. Congress should fix this or the court should adopt a broad definition of the word “corruptly.” Anything less signals that public office is a place for those who seek to line their own pockets.
Jessica Levinson is a Loyola Law School professor and MS NOW columnist. 
