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Don’t Rebrand Corruption

No one is happier about the Supreme Court’s rebranding of corruption than sketchy politicians, argues Brennan Center Fellow Ciara Torres-Spelliscy.

Anyone who tries to tell you that corrup­tion is only a Repub­lican prob­lem or only a Demo­cratic prob­lem is a partisan hack. Corrup­tion is not the exclus­ive province of one polit­ical party and never has been. Two recent scan­dals show that corrup­tion is a bipar­tisan prob­lem.

On the Repub­lican side, earlier this month, conser­vat­ive oper­at­ive David Bossie was accused of misdir­ect­ing funds he had ostens­ibly been rais­ing for Trump-aligned Repub­lican candid­ates. Accord­ing to a Campaign Legal Center and Axios invest­ig­a­tion into Bossie’s Pres­id­en­tial Coali­tion polit­ical organ­iz­a­tion, only about $425,000, or 3 percent, of its 2017–2018 spend­ing went to direct polit­ical activ­ity. The organ­iz­a­tion, which raised $13 million last year, spent most of its money on more fundrais­ing. More than $650,000 went toward Citizens United and Citizens United Found­a­tion, which Bossie also runs. (Citizens United was the named plaintiff in the 2010 Supreme Court case that allowed corpor­a­tions to spend unlim­ited money on polit­ical ads.)  

This smells to high heaven. There hasn’t been much crim­inal litig­a­tion involving super PACs, so it’s uncer­tain whether federal prosec­utors could go after Bossie or the Pres­id­en­tial Coali­tion for defraud­ing donors. The Trump 2020 campaign distanced itself from Bossie and issued a state­ment condemning “any organ­iz­a­tion that decept­ively uses the Pres­id­ent’s name, like­ness, trade­marks, or brand­ing and confuses voters.”

On the Demo­cratic side, just days earlier, on May 2, Cath­er­ine Pugh, the Demo­cratic mayor of Baltimore, announced she would resign amid alleg­a­tions that, as a hospital board member, she engaged in a quid pro quo with the Univer­sity of Mary­land Medical System to buy 100,000 copies of a self-published chil­dren’s book she had writ­ten. The alleg­a­tion is that no one bought the mayor’s book except for health­care compan­ies that wanted busi­ness from the city and state. (The book, Healthy Holly, targeted African Amer­ican read­ers and encour­aged healthy eating habits.) Pugh is no longer in power, but federal prosec­utors may still bring a case for honest services fraud against her. The FBI has already raided her office and two homes.

In both cases, it may be more diffi­cult for federal prosec­utors to bring charges than it would have been a decade ago. As I explain in my new book, Polit­ical Brands, Supreme Court decisions like Citizens United and McCutcheon, which ruled that certain limits on campaign finan­cing were uncon­sti­tu­tional, severely narrowed the defin­i­tion of what counts as corrup­tion. For example, grant­ing special access to elec­ted offi­cials for rich donors is no longer considered corrupt by the Roberts Court. Convicted politi­cians like ex-Governor of Illinois Rod Blago­jevich have cited Citizens United and McCutcheon as reas­ons why they should not be held crim­in­ally liable. This allowed Blago­jevich to be resen­tenced.

And in the area of white-collar crime, the Roberts Supreme Court in Skilling, which considered the convic­tion of former Enron CEO Jeff Skilling, narrowed what counts as honest services fraud and McDon­nell, which considered the convic­tion of Governor of Virginia Bob McDon­nell,  defined bribery down by narrow­ing what counts as an offi­cial act by an elec­ted offi­cial.  Both Skilling and McDon­nell make it harder to prosec­ute corrup­tion. Moreover, these decisions have given appeals courts leeway to over­turn multiple convic­tions against elec­ted offi­cials on corrup­tion charges.

Indeed, no one is happier about the Supreme Court’s rebrand­ing of corrup­tion than sketchy politi­cians. In 2017, citing McDon­nell, an appeals court over­turned former New York State Assembly speaker Shel­don Silver’s 2015 corrup­tion convic­tion for accept­ing over $4 million in bribes. He was found guilty in 2018 in a second trial on another charge. Silver is still appeal­ing this second convic­tion and the Second Circuit has ruled he can remain free while he appeals. Former New York Major­ity Leader Joseph Brun­o’s 2009 convic­tion for mail fraud was also vacated by an appeals court citing Skilling, and he went on to be exon­er­ated by his second jury.

The success­ful prosec­u­tion of corrup­tion is not totally dead. The pres­id­ent’s former personal lawyer Michael Cohen just repor­ted to federal prison for, among other crimes, two campaign finance viol­a­tions. As the prosec­utors noted in Cohen’s senten­cing memor­andum, “Campaign finance crimes, because they are commit­ted in secret and hidden from the victims, are diffi­cult to identify and prosec­ute. Nonethe­less, they have tremend­ous social cost…as they erode faith in elec­tions and perpetu­ate polit­ical corrup­tion.”

DOJ should treat news of Bossie’s follies with the same seri­ous­ness as Pugh’s book deals. Polit­ics should be more than a cover for get-rich-quick schemes. And since corrup­tion is a bipar­tisan phenomenon, both Repub­lican Bossie and Demo­cratic Pugh should be held to the same ethical stand­ard.

The views expressed are the author’s own and not neces­sar­ily those of the Bren­nan Center for Justice.

(Image: Mike Kline)