Ex-Governor of Illinois Rod Blagojevich’s lawyers are trying to get him sprung from jail using an argument that could do real damage to the legal definition of corruption.
Blagojevich’s efforts come at a time when American courts are narrowing what counts as corruption in cases like Skilling v. US — which is awesome if you are a corrupt politician, but is a bane for the rest of us. This matters in money in politics because as the legal definition of corruption shrinks, so, too, does the set of legal justifications for regulating money in politics.
This all dates back to 1976’s Buckley v. Valeo when the Supreme Court reviewed the Federal Election Campaign Act (FECA), the post-Watergate reform to clean up the way federal candidates were elected. The Court declared that preventing corruption and the appearance of corruption justified having campaign finance regulations ranging from disclosure to contribution limits to public financing.
Over the past four decades, the Supremes have embraced a range of conceptions of what counts as corruption. The high watermark for an expansive definition came in 2003 when the Court held in McConnell that increased access to politicians by big political donors was corrupting and justified bans on soft money as well as bans on corporate and union expenditures on certain political ads. As the Court said in Shrink Missouri in 2000, if big donors call the tune in politics, then the general public can loose its faith in the integrity of the American democratic process.
Fast forward to 2006, when Justice Alito joined Chief Justice Roberts on the Court. These two brought a very crabbed view of what counts as corruption to the bench. Their narrow conception was on display in Citizens United in 2010, when the Court’s 5–4 majority stated that having access to or being ingratiated with elected officials, is not corruption. According to the Citizens United ruling, the only thing that justifies limiting the amount of money in elections is quid pro quo corruption.
Enter Rod Blagojevich and his legal team stage right. In 2011, after two trials, Mr. Blagojevich was convicted on 17 counts including that he shook down people for campaign contributions and attempted to trade appointing Valerie Jarrett to President Obama’s vacant senate seat for an appointment for himself from the Obama administration.
(In)famously, then-Gov. Blagojevich was recorded on a federal wiretap stating that the senatorial appointment was “f—ing golden and he wasn’t going to give it up for f—ing nothing.” (Except he didn’t self censor the way I’m doing now.) These words came back to haunt him, first during his impeachment trial by the Illinois Legislature, and then in his federal criminal trials. He was removed from office and is currently sitting in federal prison serving a 14 year sentence.
Blagojevich is appealing his conviction, arguing through his counsel to the Seventh Circuit, “I thought this was political horse trading,” and that as an avid student of history, he thought he was not crossing the legal line.
The brief submitted to the Seventh Circuit by his lawyer, Leonard Goodman, claimed:
[T]he political deal Blagojevich attempted to make with President-elect Obama was not a federal crime. Thus it was error for the lower court to instruct the jury … that Blagojevich’s request for a public service job from Obama was just the same as “asking for a car, for money … [A]ny one of those is illegal. The law makes no exception for political jobs.”
At the December 2013 oral argument, Seventh Circuit Judge Frank Easterbrook compared what Blagojevich did to the apocryphal deal that allegedly put Earl Warren on the Supreme Court in exchange for his support of Dwight Eisenhower at the 1952 Republican National Convention. Judge Easterbrook queried the prosecutors, “if I understand your position, Earl Warren should have gone to prison, Dwight Eisenhower should have gone to prison. … Can that possibly be right?”
Blagojevich’s argument basically boils down to a claim that unless actual money exchanged hands, then there is no crime — just politics as usual. The Seventh Circuit doesn’t have a record of being lenient on convicted felons, but it has been known to fumble the ball on election law issues. So, who knows if it will buy what Blagojevich’s legal team is peddling?
Whichever side loses at the Seventh Circuit is likely to appeal to the Supreme Court. If the Supreme Court agrees with Blagojevich’s “political horse trade” gambit, then we’ll enter into a brave new world where unless a politician accepts a briefcase full of cash “American Hustle” style, it is not a real bribe. In short, this would create a loophole big enough to accommodate a Chicago L train.
This could matter not just for future politicians who abuse their positions of power, but it could also bleed over into how the Court thinks about campaign finance laws.
It could even have an impact on a pending Supreme Court case called McCutcheon, where the issue is whether the government has a sufficient justification to impose aggregate contribution limits on individuals who want to spend more than $123,200 in federal elections every two years. The long-standing justification for this limit used to be that it prevented political corruption. But that core concept is falling apart before our eyes and Blago’s argument could be one more nail in the coffin for reasonable campaign finance regulations — something he has a long record of treating with utter distain.
The views expressed are the author’s own and not necessarily those of the Brennan Center for Justice.