Editors

Harry Cassin
Publisher and Editor

Andy Spalding
Senior Editor

Jessica Tillipman
Senior Editor

Richard L. Cassin
Editor at Large

Elizabeth K. Spahn
Editor Emeritus

Cody Worthington
Contributing Editor

Julie DiMauro
Contributing Editor

Thomas Fox
Contributing Editor

Marc Alain Bohn
Contributing Editor

Bill Waite
Contributing Editor

Shruti J. Shah
Contributing Editor

Russell A. Stamets
Contributing Editor

Richard Bistrong
Contributing Editor

Eric Carlson
Contributing Editor

Bill Steinman
Contributing Editor

McDonnell walks. Reforms needed

The Justice Department on September 8 announced that it is dropping its corruption case against former Virginia Governor Bob McDonnell and his wife, Maureen. 

Earlier this year, the U.S. Supreme Court decided to throw out McDonnell’s conviction on the grounds that jurors had been provided an erroneous definition of “official act.” The Court’s unanimous decision made a re-trial unlikely; it also highlighted why states need strong ethics rules.

As we have argued here and here, the case against McDonnell would have been much more straightforward if Virginia had put strict gift rules into place years ago.

Whenever individuals or organizations give gifts to elected officials, we should ask why. This is especially important when the gift is of significant value and the giver may have interests before the state.

If a public official accepts a gift, he or she should publicly disclose the gift in a timely manner. Where the law does not require disclosure, public officials have a choice. As we have previously discussed, elected officials can — and in some states, absolutely should — go beyond what is required by the law and voluntarily disclose.

They can also just say no to gifts. Consider the example set by Virginia State Sen. Stephen D. Newman (R-Lynchburg), who keeps a sign on his desk reminding visitors that he won’t accept any gifts, no matter how small. Newman, who has voluntarily refused gifts for about 10 years, says ”… (i)t’s just very easy. There’s no question about where the line is.”

Newman’s policy is a smart one, considering the troublesome loopholes contained in Virginia’s ethics rules. The state, for example, exempts gifts from “personal friends” and lets lawmakers decide whether the lobbyist who bought them a lavish meal (or, in McDonnell’s case, a Rolex watch) is a personal friend or lobbyist.

While the McDonnell saga has ended, pay-to-play politics unfortunately lives on in state houses throughout the country. Scandal has a way of prompting reform. We hope that the McDonnell case makes clear the urgent need for states to strengthen their ethics laws and eliminate the loopholes that encourage lawmakers to disclose less, rather than more.

______

Shruti Shah is a contributing editor of the FCPA Blog. She’s Vice President of Programs and Operations at Transparency International-USA. She can be contacted here.

Marian Currinder is the Policy Director for the government accountability portfolio at Transparency International-USA.

Share this post

LinkedIn
Facebook
Twitter

5 Comments

  1. With respect, having been both a federal investigative team leader and a defense lawyer, I have seen both sides on a federal investigation. Mr McDonnell may not be incarcerated, but he paid a steep price. The real problem is that, as with the prosecution of former Senator John Edwards, this Department of Justice brought prosecutions against former political enemies on the basis of statutory interpretations that reflected what they thought the statute should say rather than what it actually does say.

    That is not to say that the conduct of either defendant was admirable, but not all that is distasteful is – or should be – illegal.

  2. What a mild and tame article on a genuine tragedy.

    The conclusion that the combination of Supreme Court and US Department of Justice decisions prompts is that unless there is a smoking gun to explicitly demonstrate a quid pro quo, then it is OK. This brings huge comfort to the public officials and representatives of all kinds of interest groups who can now do all manner of acts together that smell wrong, look wrong, are unethical – yet are legal.

    Crooks like New York's Sheldon Silver may go free as a result of the decisions in the McDonnell case.

    Your readers need to be reminded that the McDonnells took over $177,000 from one businessman and arranged all manner of meetings introductions for him to assist his business.

    Their actions should be illegal.

    Sincerely,
    Frank Vogl

  3. A victory for the McDonnell's is a step back in the fight against political corruption in the US. The US once led the global fight against this form of corruption. As countries around the world increasingly enact anti-bribery and corruption laws the US is now seen as a hypocrite. On one hand we condemn other countries corruption, while on the other hand we allow (through legislation and the playing with how our anti-corruption laws are worded) corruption within our borders to be legal. Now is the time for states and the Federal government to tighten corruption laws to include a common definition of corruption that is understood by all.

  4. After listening to the arguments of the case, although apalled personally at McDonnell's behavior and very clearly seeing the bribes for what they are, I did understand why the Supreme Court felt they couldn't set a precedent regarding this case.

    One of the main threads of argument was the idea that we have a system where we make donations and that is one way through which our voices are heard. If we forbid any person from being allowed to visit or talk to our officials unless they pay a certain amount (of if they donate too much) is that not also infringing on the fact that (in the system we have currently) money = speech?

    In addition, all the evidence presented shows that he merely introduced the individuals (as shady as that is) responsible for making decisions, but did not actually exert any influence on the decisions, and in the end the colleges ended up not doing the studies anyways.

    In the end, I think this case just proves that we need to rework our laws and current systems so that our elected officials can be held to real standards of ethics.

  5. Sadly, Ms. Brown is correct. A tougher gift rule would help, but a "gift" rule is the kid brother of what was charged–bribery (well actually the charges were the "Honest Services Fraud" statute and Hobbs Act, but via a bribery theory. SCOTUS, in the Skilling decision, limited the horizons for Honest Services to bribery and kickbacks). Those statutes are why there was jurisdiction in Federal court, vice trying this through the State court system. Be it 18 USC 201(b)–the Federal bribery statutory provision, or the Virginia statute, the definition of "official act" was the same–in effect a particular matter involving specific parties. Had McDonnell been a Federal elected official, maybe a charge of conspiracy to bribe, or even 18 USC 203, may have been employed. That said, being a cynic, I felt that McDonnell wouldn't spend a day in jail. I was fearful that SCOTUS would finally eliminate the Wire Fraud and Honest Services Fraud acts. Thankfully, they did not (be concerned Pam Bondi). However, it leaves wide open the right of high-level officials to pressure lower level officials through suggestion, kind of like the organized crime kingpin who says amongst his underlings "It sure would be nice if Joey were no longer here to concern us" and then claims in court that he never meant to have Joey "offed."


Comments are closed for this article!