Completing the Job
Since such recusal laws would thus provide a systemic remedy suited to the systemic corruption created by the Court's project of deregulating the supply of money in politics, the Court has now, without even mentioning the subject, issued a deceptive decision that maps a retreat from its permissive doctrine with respect to regulating official conflicts of interest and bribery. It has done so by ruling that an elected official who takes money in exchange for conduct within his or her official capacity to advance the special interests of a benefactor, such as by making useful introductions, setting up a meeting, talking to another official, making a product endorsement, or organizing a promotional event on government property, but which activities do not fully succeed in accomplishing the supposed grander concrete policy goal sought by the benefactor, does not commit an act that fits within the Court's re-definition of an "official act."
It makes no difference to the judicially-revised definition that such exempted activities were unquestionably performed within the scope of the politician's official duties. It makes no difference that the power to perform those official duties was conferred solely by the electorate. Nor does it matter that the electorate at no time indicated that it wanted those duties they delegated to the politician to be sold for the politician's private benefit. That is why the public pays officials with a salary, not on a commission basis.
The above somewhat oversimplified description of the Court's ruling suggests a clearer distinction than the Court's more convoluted reasoning actually draws under its pretense of elucidating, while actually obscuring and subverting, the meaning of the statutory text. But it captures the gist of the Court's ruling in McDonnell v. United States (2016).
At least one professional court observer was sufficiently confused about what the Court actually held to mistakenly think that it was the lack of "smoking gun" evidence of the agreement that produced the Court's ruling. It may therefore be useful to diagram the ruling in terms of the Court's own quid pro quo formula. The Court said: "To convict the McDonnells of bribery, the Government was required to show that Governor McDonnell committed (or agreed to commit) an "official act" in exchange for the loans and gifts."
As for the quid consisting of " the loans and gifts," the Court itself found them to be "extravagant" and "tawdry," as discussed below. So the Court recognized the quid had far more than just gunsmoke for proof of that element of bribery. Similarly, the pro, the agreement by which Governor McDonnell "committed" to "exchange" some official act in return for the quid, had been decided by the jury on adequate evidence. The law is clear: "The agreement need not be explicit, and the public official need not specify the means that he will use to perform his end of the bargain. Nor must the public official in fact intend to perform the "official act," so long as he agrees to do so.... It is up to the jury, under the facts of the case, to determine whether the public official agreed to perform an 'official act' at the time of the alleged quid pro quo." An appellate court could therefore not easily interfere with that finding of fact either, without major disruption of established law.
Since all that was left in the formula to justify a pro-corruption ruling was the quo component of the crime, that is where the Court worked its changes in the law. The case thus had nothing to do with "smoking guns." The prosecution's evidence was rock-solid. According to the Court: "The issue in this case is the proper interpretation of the term 'official act.'" The Court simply rewrote the law that had been on the books for over a century to eliminate the kind of official acts that were previously a clear element of the crime of bribery, in order to legalize sales of those acts.
What the Court legalized for sale to supplement officials' incomes was an element of the crime that any citizen would want and expect to be part of the law of bribery who did not want those entrusted with public power to sell any part of that sovereign power for personal gain. A former federal prosecutor, and knowledgable academic blogger on anti-corruption matters wrote of McDonnell: "The Court's artificially narrow concept of 'official action' has once again carved out a safe harbor in federal corruption law for behavior that most would consider not just unseemly, but criminal."
This latest pro-corruption decision by the Roberts Court adds to the long line of cases since Buckley whereby the Supreme Court has continuously breached the separation of powers between its judicial powers and those of Congress in order to arrogate from the sovereign people their inherent constitutional power to defend their democracy from being overthrown by corruption. The Supreme Court's powers to veto legislation throughout much of its history since the Dred Scott decision has had a net anti-democratic influence on governance. See Louis Boudin, Government by Judiciary (2 Vols.) ( 1932 ); Erwin Chemerinsky, The Case Against the Supreme Court (2014); Ian Millhiser, Injustices: The Supreme Court's History of Comforting the Comfortable and Afflicting the Afflicted ( 2015). . This has been especially marked in its pro-corruption jurisprudence since 1976 that has legalized the systemic corruption which is responsible for creating the current second Gilded Age, its gross inequality, and its multiple policy dysfunctions in nearly every aspect of public life.
In Burroughs v. United States , 290 U.S. 534, 546-48 (1934), a prosecution for handling campaign contributions in violation of the Federal Corrupt Practices Act of 1925, a highly conservative Court -- the same Court that FDR sought to "pack" for arrogating economic sovereignty to itself -- reflected the common sense understanding of corruption that had endured through most of the country's history prior to the "Nixon Court" of 1976. The 1934 Court found the "proposition so startling as to arrest attention" that "a government whose essential character is republican," and is therefore dependent on the integrity of its elections, might lack the power "to secure this election from the influence of ... corruption, and of fraud." Burroughs ruled that a republican "government ... must have the power to protect the elections on which its existence depends from ... corruption." "To say that Congress is without power to pass appropriate legislation to safeguard ... an election from the improper use of money to influence the result is to deny to the nation ... the power of self-protection. Congress undoubtedly possesses that power, as it possesses every other power essential to preserve ... government ... whether threatened by force or by corruption. " Otherwise "the very sources of power may be poisoned by corruption," placing "the country in danger, and ... at the mercy of ... unprincipled corruptionists."
Placing the country "at the mercy of ... unprincipled corruptionists," otherwise known as plutocrats, has been the mission of the Roberts Court, as heir to the 1976 Nixon Court. As said by Jeffrey Toobin, The Oath: The Obama White House and The Supreme Court (2012) 258, "Roberts was on a mission - to deregulate American politics" by overturning anti-corruption laws. McDonnell illustrates, if it were not already fully clear, that if Americans want their democracy back they will have to strip the Supreme Court of the usurped legislative power with which it carries out Roberts' illegitimate mission.