McDonnell's Misapprehension of the Role of Access in Politics and Public Corruption

In its decision overturning former Virginia Governor Bob McDonnell’s bribery conviction in McDonnell v. United States, the United States Supreme Court narrowly construed the definition of official act, which is an element under most criminal public corruption statutes. The Court did so because it feared limiting gift-giving constituents’ access to public officials would limit all constituents’ access, thus inhibiting the political process. However, in doing so, the Court did not give adequate consideration to the countervailing policy arguments surrounding access in politics and misconstrued how federal corruption laws function. The Court acted as if only the definition of an official act separated ordinary constituent services from public corruption, but federal corruption laws have multiple elements. Included amongst those elements is a mens rea element, which the Court could have used to differentiate situations where public officials provide ordinary constituents public services and where they corruptly provide special favors to parties only because they gave the official a gift. Instead of protecting the political process as it hoped, the Court actually weakened representative democracy by widening the opportunity for preferential access.

Further, the McDonnell decision incorrectly narrowed the focus on which of a public official’s actions constitutes an “official act.” Federal public corruption crimes have several elements, and an official act is only one of them. The Court, however, did not analyze how these elements already constrain which “official actions” constitute violations, especially the mens rea component. Had the Court done so, it would have seen that providing ordinary constituent services is illegal only when officials act with some malevolent intent—ultimately deviating from their responsibility as a delegate of the people. Instead, the Court unnecessarily challenged itself to draw a line using only one element instead of all elements. In doing so, it developed a standard that still may be broad enough for lower courts to apply it in good faith but nonetheless make seemingly contradictory decisions based on the lower court’s differing policy conclusions. Consequently, the cramped viewpoint in McDonnell creates an impractical distinction when it could have simply relied on a public official’s corrupt intent as the way to best protect ordinary constituents.

This Recent Development disputes the Court’s policy arguments in McDonnell and explains why the Court should have been more concerned about the role preferential access plays in a public official’s day-to-day decisions. It posits that the mens rea element, not the “official act” element, in federal public corruption crimes is the correct way to distinguish political access for a concerned constituent and a wrongly motivated donor. It then analyzes how federal courts have applied McDonnell’s definition of “official act” thus far and considers how this seemingly narrow definition may still give courts room to follow this precedent while using contrary policy arguments to reach their holdings.


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