If it is generally agreed that politics should not be criminalized, there is uncertainty about the sort of “politics” that should be protected. Jeffrey Bellin warns about prosecutors with unfettered discretion who can aim vaguely drafted laws at public officials.  And he and others have noted the concern triggered by the McDonnell prosecution over the breadth of the definition that may be given to the term “official act” in prosecuting public corruption cases. The task is to distinguish the official from the political act, or to decide when an action motivated by both official and political purposes is properly accountable under the criminal laws.

In jury instructions consistent with those advocated by the U.S. Government, the court adopted the definition of official act that includes settled or customary “practice” by which an officeholder’s duties are defined. The instructions cite United States v. Jefferson, 674 F.3d 332 (4th Cir. 2012), which in turn relies on a 1914 case entitled United States v. Birdsall, 233 U.S. 223 (1914).  In Jefferson, the court took settled practice to include actions by which the official performs “constituent services.” 674 F.3d at 337.  And this is where the attempted separation of politics from official activity begins to pose problems.

When rendering constituent services, an elected official regularly balances the official with the political.  The constituent may be a voter; or as Professor Fishkin—and more recently Larry Lessig—have acknowledged,  he may be a political supporter residing outside the voting jurisdiction.  The relationship in either case is also a political relationship that the practicing politician must manage—if she is to be a successful politician, or if by any sensible understanding of term, she is to act as a politician at all.  The range or types of service she provides may as a legal or ethical matter vary with the kind constituent that she is dealing with: in many circumstances, if not most of the time, the voter will have more of a call on the politician’s attention than the donor or influential supporter.  But there is little question that in serving the constituent, the politician is engaged in activity with a political as well as an official dimension.

The question when constituent service necessarily situated within a political relationship presents legal or ethical problems surfaced most notably in “The Keating Five” case. Select Committee on Ethics, Investigation of Senator Alan Cranston, S. Rep. No. 223, 102d Cong., 1st Sess. (1991).  There the Senate considered charges against five United States senators who had the political support of a contributor and fundraiser and in various ways represented his interests in dealings with an administrative agency.  The Senate censured one of the five, Senator Alan Cranston; it also found ethical infractions by two others, and issued to the remaining senators letters disapproving of their poor judgment.  In the action against Cranston, the Senate concluded that the interventions with the administrators represented substantial and  improper “linkage” between political (fundraising) activities and official duties.

Thereafter the Senate adopted a new rule meant to provide guidance to Senators in determining when intervention with federal administrators on behalf of constituents was permissible. Political motivation was disallowed. Action on behalf of say a campaign contributor, or notable political supporter, when taken for those reasons alone, would contravene the rule and subject the Senator to internal discipline.

But the Senate rule applies to one branch of government’s intervention with another to influence what is by definition official action—action by the administrative officials. It is one kind of “constituent service.”  Another may involve only actions taken  entirely within the legislator’s or executive’s office, affecting choices made about her own time and the resources within her control. Examples would be the ways legislators answer constituent requests, schedule meetings, or make staff available to provide information or guidance. There the elected official may—and in the practice of the political craft, generally should—accommodate constituent demands in a fashion that reflects both official and political priorities.

We see a glimmer of this behavior in the McDonnell case in the arrangement the former Governor made for his benefactor to have or attend events at the governor’s mansion, and to meet with other executive branch officials , to showcase his product. McDonnell argued that he was doing the least he might do—extending courtesies, ones that were easily arranged, without selling law, rule or policy.  But the prosecution is not terribly effective in clarifying the issue of “criminalized politics,” and particularly in sorting out which constituent services fall on the wrong side of the law, because the case involves a personal relationship entailing personal rather than political benefits to the governor.

But on different facts a constituent might be offered similar benefits out of a political motive, with no personal gain (other than in the pursuit of political objectives), and it would be apparent that the conjunction of politics and official activities in rendering constituent service presents a hard question.  How that question is answered will determine the extent to which, by treating various types of constituent services as “official acts,” politics will be in danger of criminalization.