Critics of the McDonnell prosecution have argued that elected officials engage in “routine” political behaviors that should not be confused with the “official acts.”   Politicians are kind to their campaign contributors and supporters, helping them where they can; they exercise “influence” for their benefit, within acceptable limits, solely to recognize and maintain these politically valuable relationships.  But this influence is not an exercise of government power and it is not the “quid” that makes for quid pro quo corruption.

As presented, for example, in a well-crafted brief by former federal officials, the argument includes the insistence that this routine behavior is also broadly “beneficial”, in the sense that it is “essential to the day-today functioning of any representative government.”  Failure to allow for this activity would “cast a shadow of illegality over legitimate, pro-democratic activities,” such as hosting special events or providing privileged access for contributors.

This is skillfully argued, but it is a point sure to run into resistance because it does not squarely address the element of political self-interest.  The politician romances prospective donors, and rewards the ones who come through with the money, in order to win and keep an office.  Some of these moves may well have a “pro-democratic” function or value, constituting constructive “opportunities to interact with the public.” But at the bottom of it all is mostly raw political give-and-take, or wheeling and dealing, which is what politicians do—and what they have to do, if they are to be successful politicians.

There are advantages to confronting this head-on, without squeamishness.  One advantage is acknowledging what is going on, and not seeming to hide from it.  It is widely appreciated that politicians pursue self-interest in this fashion, which is one of the reasons why there is skepticism about its value to anyone else and support for legal controls.  Why, some ask, should a politician “get away with it,” using even mere “influence” for his personal—that is to say, political, benefit?  They doubt that closed-door hobnobbing with wealthy contributions are “interactions with the public” valuable to those who can’t pay their way into the room.

But by facing up to this self-interest, the role of the law, in its intersection with ordinary, inevitable self-interested politics, may become clearer.

Voters accept that politicians bid for support by offering only what someone with power, or the prospects of acquiring it, can provide.  Least controversially they agree that politicians can pledge, if elected, to vote in such and such a way on issues: “if you vote for me, I will do X.”  There is general agreement that this is legitimate and, more, absolutely good: the voters should know what a politician appealing for election proposes to do with his victory.  The politician isn’t getting away with anything.  To the contrary, he is being held accountable.

But a politician who promises to hire someone’s uncle only to win political support is cutting a sordid deal.  It is sordid because the politician is paying for the vote, in this instance with public resources, and the politician has struck no balance–done nothing to manage the conflict–between the accountability to the public for performance, as in putting in public positions people selected on merit, and maneuvering within acceptable boundaries to win office.

The balance to be struck is the question.  It manages the tension between accountability in the widest sense, and self-interest– between obligations to the public, and the political imperatives of building and holding political support.  If a politician directs her staff to make sure supporters are well treated, that their calls are returned and their meetings promptly scheduled, the basic procedure seems defensible – – provided that she does not go overboard in favoring allies over all others entitled to representation.  It’s a different case altogether if the politician instructs the staff to never or rarely return calls or schedule meetings for constituents known not to have voted for or support her.

This balance is not defined by proportions, as in a 50-50 or 51-49 allocation of attention to public duty and self-interested political business, which would accommodate an alarmingly, preposterously high level of the latter.  It is more defined by temperament and judgment– balance in the sense that someone shows balanced judgment, being (by the dictionary definition) sensible, practical, commonsensical, and so able to build self-interest into official behaviors with skill and restraint.  This is what distinguishes the good politician from the bad one, and at the extreme, the good and not-so-good from the ones who let self-interest slip so far out of control that that they are deemed corrupt.

The judgment involved in finding that balance includes consideration of the means, such as public resources, used to do so.  How much everyone should pay for a politician to court his or her voters is, in the end, also a question of accountability.  The politician who assigns staff to give supporters a special tour of the office is using public resources, but only in the most limited sense.  The one who slips in an earmark without regard to the merits simply to pay off a political obligation has more to answer for.

The question is whether in a concededly political world, the politician is working to find this balance between her obligations as a public servant and her self-interest as a politician.  This is a major challenge for prosecutors and judges who are not necessarily the best at evaluating effective politics and may have limited or no tolerance for it.  They can build or sustain a case built on apparent, rank self-interest, a trading of influence for political support, and disregard this question of balance.  The law then winds up where it is today: ill-defined, a weapon seemingly available for use against both ordinary-course and corrupt political self-interest.