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Give Sponge Bob an Inch…

Accused ex-Gov. Bob McDonnell is trying to take advantage of the ever shrinking definition of corruption by mounting a Citizens United defense.

You know the phrase, “give them an inch, and they’ll take a mile?” That old adage seems spot on when it comes to the ever shrinking definition of corruption in campaign finance law and liberties that a new generation of crooked elected officials might take.

Recent Supreme Court decisions on money in politics look like a wish list from a rogue’s gallery. If campaign finance lawyers were the only people reading campaign finance cases, then I wouldn’t be so worried. But the Supreme Court writes for a far broader audience, including corrupt politicians who can find a lot to like in the latest cases. Accused ex-Governor Bob McDonnell of Virginia is trying to take advantage of this new legal landscape.

At first blush, how the Supreme Court defines corruption can seem like irrelevant semantics: it’s big money calling the tune in politics (2000), it’s disproportionate access and undue influence for donors (2003); no, it’s just quid pro quo (2010). But these shifting definitions of corruption matter in at least two big concrete ways.

First, the definition of corruption sets the boundaries for regulating money in politics. To sum up a half dozen recent campaign finance cases from the Supreme Court, right now the rule of thumb is: no risk of corruption, then no limits on campaign money. Hence there are no restrictions for spending on political ads because the money goes to the political consultant and not the politician. That flawed logic is how America got super PACs. This is why campaign finance reformers and their opponents use so many toner cartridges wrangling over the definition of corruption. Whoever wins the semantic battle gets to shape the democratic process.   

Second, the definition of corruption matters a hell of a lot to those who practice costly white collar criminal defense; especially to those with corrupt politicians as clients. The more narrowly corruption is defined, the less likely a corrupt politician will get convicted of federal or state anti-corruption laws. Thus this definition can impact who goes to jail and who gets to stay in office, which is why this fight over the definition of corruption should matter to all of us. No one  wants a crook in the White House, a con man in the governor’s mansion, or a criminal in city hall

If you think I’m exaggerating, I submit for your consideration one Bob McDonnell, the ex-Governor of Virginia, who Rachel Maddow has given the unfortunate nickname “Sponge Bob.” He and his wife used to pal around with a businessman named Jonnie R. Williams, Sr. The businessman gave them and their family lots of pricey things, including: a UVA Ping golf bag, iPhones, Armani and Oscar de la Renta dresses, a Louis Vuitton wallet, and a now infamous silver Rolex. In exchange, the McDonnells did nice things for the businessman, like touting his products at the Virginia Governor’s Mansion. 

Bob and his wife stand charged with Conspiracy to Commit Honest-Services Wire Fraud, Conspiracy to Obtain Property under Color of Official Right, Obtaining Property under Color of Official Right, False Statements, and Obstruction of an Official Proceeding. If found guilty, the McDonnells could face a million dollars in fines and decades in jail.

As captured by The Richmond Times Dispatch, Bob, who will be teaching constitutional law in his spare time at Liberty University, is mounting a defense that what he did was not criminal because of the 2010 Supreme Court decision in Citizens United v. FEC. Specifically, the part of the decision that caught Bob’s eye was Justice Kennedy’s line, “Ingratiation and access, in any event, are not corruption.” 

Chief Justice John Roberts recently doubled down on this idea in the Supreme Court’s most recent case McCutcheon vs. FEC adding, “We have said that government regulation may not target the general gratitude a candidate may feel toward those who support him or his allies, or the political access such support may afford… Any regulation must instead target what we have called ‘quid pro quo’ corruption or its appearance.”

Who knows what a jury of their peers would do with Sponge Bob or his wife. But the Supreme Court should consider whether they want to give another inch to the likes of ex-Governor McDonnell.

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

(Photo: AP Images)