Martin Dyckman: In wake of Bob McDonnell case, Congress needs to close bribery loophole

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What might have been only a run-of-the-mill bribery case became a major chapter in Florida history, and a forerunner of a recent deeply disturbing decision at the U.S. Supreme Court.

A Ft. Lauderdale labor union local wanted to dig a canal on property it owned. Seeking a shortcut, the president and two henchmen passed $1,000 in cash to a county commissioner. He was wearing a wire. The law was watching.

In April 1973, the Florida Supreme Court voted 4-2 to throw out the resulting convictions and prison sentences. The majority concluded that the union would not have needed the commission’s permission after all. As there was no point in bribing the commissioner, there was no crime. Never mind the criminal intent, or the fact that at the time everyone thought a permit was necessary.

The two dissenters, Joseph A. Boyd Jr., and Richard Ervin, were the only justices who had held any political office other than judge — Boyd as a Dade County commissioner and Ervin as attorney general. They understood retail politics and the danger of, as Boyd put it, “the scurrilous peddling of one’s influence …”

“Because of personal and political connections, public officials can persuade others vested with legal authority to grant favors to people which he (sic) could not personally grant through his own single vote or through the exercise of his official duties,” Boyd protested.

The Legislature plugged the enormous hole that case created with Florida’s present law criminalizing unauthorized compensation to an official who either thinks he has a duty in the matter or tries to influence someone else.

It also led to the resignation, under threat of impeachment, of Justice David L. McCain, who had cast the decisive vote for the defendants, campaign supporters of his. Earlier, he had tried to fix the case by influencing judges of the lower court that first heard the appeal. I wrote that McCain himself had been bribed.

Boyd’s dissent in that old case describes to a precise T what (former) Virginia Gov. Bob McDonnell did to earn his recently overturned corruption conviction in federal court.

He took $175,000 in loans, gifts and favors — including a Rolex watch for him and $20,000 worth of designer clothing for his wife — from a man named Johnnie Williams, who wanted Virginia’s universities to conduct research studies on a nutritional supplement his company had developed. McDonnell set up a series of meetings between Williams and university officials to help Williams.

It didn’t work. The universities politely practiced passive resistance, and McDonnell never actually ordered them to do anything. As the prosecution saw it, however, McDonnell had broken several federal laws just by peddling his influence.

But as the U.S. Supreme Court saw it — unanimously — McDonnell had taken no “action,” nor had he agreed to do so, on behalf of Williams.

“The District Court,” Chief Justice John Roberts wrote, “should have instructed the jury that merely arranging a meeting or hosting an event to discuss a matter does not count as a decision or action on that matter.”

In reversing the conviction, the court left an opening to the prosecution to retry McDonnell. But it’s an infinitely slim one. Consider Roberts’s closing remarks:

“There is no doubt that this case is distasteful. It may be worse than that. But our concern is not with tawdry tales of Ferraris, Rolexes and ballgown. It is instead with the broader legal implications of the Government’s boundless interpretation of the federal bribery statutes. A more limited interpretation of the term ‘official act’ leaves ample room for prosecuting corruption, while comporting with the text of the statute and the precedent of this Court.”

Balderdash. If “official act” is limited to something like a signature on legislation or on a direct order, that’s a loophole wide enough to drag the entire District of Columbia through it, and the Grand Canyon besides.  It might even be large enough to let Rep. Corinne Brown of Jacksonville wriggle out of her freshly minted federal corruption indictment.

The Roberts opinion reflects either a naiveté or lack of concern with what it’s like in the grubby trenches of retail politics; they crawl with people eager to find and patronize influential politicians who can pull strings with colleagues or regulatory agencies.

No one on that court has any real-world experience appropriate to cases like McDonnell’s. Not since Sandra Day O’Connor‘s appointment 35 years ago has there been a justice who ever ran for any office, and she retired 10 years ago.

So there was no dissent.  It took Jack Abramoff, the celebrated and repentant political fixer, to explain what’s wrong with the McDonnell decision.

“When somebody petitioning a public servant for action provides any kind of extra resources—money or a gift or anything — that affects the process,” he told The Washington Post.

That is, of course, true of campaign contributions, a million times more so. But the law recognizes a distinction — even if there is no practical difference — between money intended to elect someone and largesse for his personal use.

One bridge at a time.

Congress needs to do what the Florida Legislature did: make it a crime for someone to offer, or an official to accept, monetary favors for wielding his or her influence.

I’m not holding my breath.

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Martin Dyckman is a retired associate editor of the newspaper now known as the Tampa Bay Times. He lives in suburban Asheville, North Carolina.

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