The U.S. Supreme Court is deregulating corruption, with arguably grim consequences for American democracy.
The latest example of this troubling trend was the case known as Snyder v. United States. At first glance, this may have seemed like a narrow, wonky case about whether a part of the U.S. criminal code that outlaws bribery also covers “gratuities.”
Yet the court’s decision, issued on June 26, 2024, kneecaps federal prosecutors’ power to go after corrupt government officials.
Snyder follows a pattern of the current Supreme Court I’ve documented in three books. Since John Roberts became its chief justice in 2006, the court has made prosecuting corruption, especially at the state and local level, nearly impossible for federal prosecutors.
Gift, gratuity or bribe?
The Snyder case centered on a former mayor of Portage, Indiana, who was charged with violating federal anti-corruption law while he was mayor. He accepted US$13,000 from a truck company in 2014 after the city had signed a $1.1 million contract to buy trash trucks.
Mayor James Snyder showed up at the trucking business and said, “I need money.” He claimed the payment was a consulting fee, or gratuity.
In a 6-3 decision, along ideological lines, the court’s conservative majority overruled the lower court that convicted Snyder of bribery and the appeals court that had affirmed his conviction. The mayor should not have been prosecuted, the justices said, because federal anti-corruption statute Section 666 in question covers only bribes and not gratuities.
And bribes, it said, are paid before an official action, not after that official action is complete.
In his majority opinion, Justice Brett Kavanaugh explained why it’s not desirable for federal prosecutors to go after small-time local crooks. For one thing, he argued, many states and cities already have their own laws about politicians and gratuities; thus, the Department of Justice need not play Big Brother.
“Section 666 does not supplement those state and local rules by subjecting 19 million state and local officials to up to 10 years in federal prison for accepting even commonplace gratuities,” Kavanaugh wrote.
Deregulating campaign finance
The Supreme Court has also been narrowing what counts as corruption in campaign finance.
In a 2007 case called WRTL II, the court blew a huge hole in a federal campaign finance law called the Bipartisan Campaign Reform Act, also known as McCain-Feingold. Among other regulations, McCain-Feingold had barred “electioneering communication,” when corporations and unions buy campaign ads in the lead-up to voting.
In WRTL II, the court ruled that “corruption” in political campaigns must be “of the ‘quid pro quo’ variety, whereby an individual or entity makes a contribution or expenditure in exchange for some action by an official.”
This definition means that a briber must be cartoonishly bold in demanding a specific vote from a lawmaker in exchange for cash. Most bribery in the real world is more subtle, as the Supreme Court once recognized.
Under Roberts’ predecessor, Chief Justice William Rehnquist, the majority of justices – both left-leaning and right-leaning – saw efforts by political donors to set the agenda for political parties and elected officials as an improper corruption of the political process.
As the Rehnquist Court once concluded, corruption occurs “not only as quid pro quo agreements, but also as undue influence on an officeholder’s judgment, and the appearance of such influence.”
Money in politics
The Roberts Court’s most notorious acquiescence to money in politics was Citizens United. Issued in 2010, the Citizens United decision decided that corporations have a First Amendment right to spend as much money as they want on political ads in any American election.
Limiting corporate spending on political ads has “a chilling effect” on corporate free speech, Justice Anthony Kennedy wrote, and the government’s “anti-corruption interest” does not trump that concern.
The court reiterated this stance in 2014, when it threw out the federal limit of $123,000 in total donations per person to federal candidates over a two-year election cycle. In McCutcheon v. FEC, the court again insisted that campaign finance regulations must target only quid pro quo corruption – or “dollars for political favors.”
“Campaign finance restrictions that pursue other objectives impermissibly inject the Government” into deciding who wins an election, wrote Roberts in his majority opinion.
The chief justice was unswayed by arguments that strong campaign finance rules ensure rich and poor have an equal say in elections.
“No matter how desirable it may seem, it is not an acceptable governmental objective to ‘level the playing field,’” he wrote in McCutcheon.
Today, individual donors may sink unlimited funds into a federal election.
Redefining fraud
The Roberts Supreme Court has substantially narrowed the definition of corruption in white-collar crime cases, too.
In 2016’s McDonnell v. United States, the justices declared that Virginia Gov. Bob McDonnell did nothing wrong when he touted a dubious health product on behalf of a man who had paid for McDonnell’s wife’s clothes and his daughter’s wedding.
Four years later, the Supreme Court decided that the federal government could not prosecute a woman named Bridget Anne Kelly involved in the 2013 Bridgegate Scandal, when aides to New Jersey Gov. Chris Christie, including Kelly, intentionally caused a stifling traffic jam on the George Washington Bridge to punish one of Christie’s political opponents.
“Not every corrupt act by state or local officials is a federal crime,” wrote Justice Elena Kagan, typically considered a liberal justice, in Kelly v. United States.
The Supreme Court continued this trend in a 2023 case called Percoco v. United States.
Joseph Percoco, an aide to New York Gov. Andrew Cuomo, had been convicted of fraud in 2018 for accepting $315,000 from two New York-based corporations to promote policies that favored their businesses. The Supreme Court threw out the conviction, in large part because the money exchanged hands while he was working on Cuomo’s 2014 election campaign – meaning he was not technically in government.
Yet, Percoco used a New York government phone approximately 837 times during that period, suggesting he wanted the outside world to perceive him as a government insider with access to political power.
Traditionally, private individuals found to have “dominated and controlled” government business, as Percoco was alleged to have done, could be guilty under federal law of what’s called “honest-services-fraud.” Since Percoco, that term now covers only bribery and kickbacks.
The Supreme Court’s lax stance on corruption endangers the integrity of American democracy, as I explain in my latest book, “Corporatocracy.” From McDonnell to Kelly to Percoco to Snyder, its rulings have eviscerated anti-corruption law. That sends a message to the corrupt: “You can be venal with few legal consequences.”
Corrupt people get a pass; good government takes another hit.
Ciara Torres-Spelliscy is affiliated with the Brennan Center for Justice at NYU School of Law as a fellow and is a board member of Citizens for Responsibility and Ethics in Washington (CREW).
This article was originally published on The Conversation. Read the original article.
