Former VA governor McDonnell to argue before SCOTUS that we have the right to buy influence

Early last year, former Virginia governor Bob McDonnell was sentenced to two years in prison and two years on supervised release for, among other things, “obtaining property under color of official right.” His wife, Maureen, was convicted of the same charge, which stemmed from the two’s receipt of over $120,000 in gifts, loans and trips from Jonnie Williams, who ran a dietary supplement company. Williams also donated $100,000 to Governor McDonnell’s political action committee.

Governor McConnell appealed his case up to the Supreme Court, which is set to hear oral arguments today. And as the Los Angeles Times is reporting, his argument boils down to the idea that the exchange of goods for political considerations that he engaged in shouldn’t be illegal.

It says so, his lawyers claim, right there in Citizens United. From the Times:

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.

Bob McDonnell, via Wikimedia Commons

Bob McDonnell, via Wikimedia Commons

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.”

Setting aside for the moment that McDonnell did far more than simply arrange meeting with Williams — he also used the governor’s mansion to host a launch party for one of Williams’s products, he personally pitched Williams’ supplements to state officials and his wife actively helped arrange meetings for Williams with people who could help his company — his case sets an absurdly high bar for political corruption.

If the Court accepts his restatement of the logic set forth in Citizens United, it would be all but impossible to define anything outside of the stereotypical situation involving suitcases full of cash being exchanged in a parking garage as a bribe. Everything short of that is just two friends exercising their rights to speech and association.

The argument is essentially that, yes, McDonnell accepted six-figure sums from Williams in the form of loans, watches, vacations and wedding expenses; and yes, he in turn helped the person who gave him those gifts by giving them a competitive advantage in the marketplace. And sure, that may look like a bribe, but trust him; it isn’t. Because he says so.

Were Antonin Scalia still alive, it’d be not only possible but likely that McDonnell would win this case. Until very recently, there were five votes on the Court in favor of defining corruption as narrowly as possible. However, given what is likely to be a deadlocked 4-4 Court, he is unlikely to be able to overturn the his loss in lower court, and could be headed to prison soon.

At least when he gets out he’ll still be able to vote.

Update: Oral arguments just wrapped up, and folks who were in the room are saying that it doesn’t look good for anti-corruption laws:

Jon Green graduated from Kenyon College with a B.A. in Political Science and high honors in Political Cognition. He worked as a field organizer for Congressman Tom Perriello in 2010 and a Regional Field Director for President Obama's re-election campaign in 2012. Jon writes on a number of topics, but pays especially close attention to elections, religion and political cognition. Follow him on Twitter at @_Jon_Green, and on Google+. .

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