One line of argument in the McDonnell case briefing accepts that supporters might expect some preferential treatment—“procedural access,” like a meeting—but not official influence to carry the supporter’s case on the merits.  This is one way that routine politics would be distinguished from corrupt politics.

Professor Jeffrey Bellin, thoughtfully but also passionately, says that this won’t do, and that routine politics, including rewarding supporters with access, ought to be criminalized.  Getting any preferential consideration for money is quid pro quo corruption.  If the Court will establish and hold this line, Professor Bellin argues, it will reduce the significance of money in politics and “the big money will dry up.”

One question is how the Court would fashion a workable rule along these lines.  Without a “per se rule” barring an elected official from ever scheduling meetings with a contributor, or making similar accommodations, the approach Bellin favors would require scrutinizing the motives, often mixed, of politicians.  A politician might schedule a meeting requested by a contributor because she has given, but also because she has something to say that the elected official would like to hear.  Or the politician might even have something to say to the donor—something she, the politician, would like to have understood by the industry or interests that a donor might represent.  The contributor might also have provided other forms of support that the officeholders might wish to recognize—like help on the campaign trail.  It is difficult to say where the raw politics end and the rotten, corrupt kind begin, and no easier to believe that prosecutors and courts are in the best position to judge the question.

But there are additional problems with this emphasis on money. Supporters who deliver votes, endorsements or favorable media commentary are also banking plenty of goodwill with an elected official, and they will also expect that their calls will be returned and that their requests for meetings will be answered affirmatively.  They are being recognized for their political speech (and other actions that are expressive in character). Why would giving money, within the legal limits of the law, be treated as somehow so different that we would deny these speakers comparable treatment, then subject them to the criminal laws if they get it? In what way is money different?

How far the politician can go in accomplishing political aims, or in meeting political obligations, without being corrupt is implicated in a case like McDonnell, now to be decided by the Supreme Court.  On questions like this, there is a tendency to avoid coming to terms with the element of self-interest as a feature of a political career.

The politician who holds public office can be expected to make the most of official position to advance the prospect of reelection or advancement, and this will mean special handling of political significant matters or the interests of political supporters. The Supreme Court in Citizens United and McCutcheon has concluded that the “ingratiation and access” associated with political support are not a problem of corruption.

But the case law and commentary sometimes dress up the politics in claims about the importance of freeing politicians to have contact with voters and constituents-- to learn from them, to stay close to the people etc.  It is suggested that what is at stake is democracy.  The complexities of the political art, which include what it takes to be a successful politician, are delicately kept out out of the discussion.

The government’s brief in McDonnell acknowledges that there is some room for politicians to reward friends and refers to the common case of special access afforded political allies and supporters.  The line it draws is between this “procedural” access – – the opportunity to get the politician’s ear – – and the further step of exercising influence on the supporter’s behalf: “influence [of] the disposition of governmental matters by others.”  Brief for the United States in Opposition, Robert F. McDonnell v. United States of America, Docket No. 5-474 (U.S. 2015), at 25 n.9.

This seems like a sensible solution.  Offering an audience for a request is one thing; it is not the same as taking action, or exercising influence so that others act, to grant the request. But the application of the distinction is challenging.

A number of political candidates over the years have recounted the experience of raising too much money, too much of the time, for their campaigns.  They find it awkward and embarrassing to ask for the money, and the pace and intensity of this fundraising consume too much time that could be diverted to more productive uses. They understand the suspicions it raises in those looking on from the outside. Congressman Steve Israel is the most recent to write about experience, and he is a respected elected official whose contribution to this narrative will not be ignored.

Israel is not talking about fundraising events to which tickets are sold, or about appeals on line or in the mail. It is about the person asked for money face to face, or ear to ear: the direct "ask", which will be answered positively, negatively, or somewhere in between.  It is a personal appeal, but one that is managed and strained: the candidate crammed in the cubicle with a phone, staff at his side, reading off notecards with bits of data about the fundraising target on the other end of the line.

Reform theorists worry about the risk in this contact of trading policy for money, or about the dangers of intense association over time with people who have lots of money.  On the conscious level, the politician may be tempted to offer something for cash; on the subconscious level, he simply may come to prefer the company of rich people and identify with their policy objectives and interests.

But it can be more complicated than that.  Gift theorists—not to be confused with reform theorists—tell us that the psychology of giving and receiving is never simple. William Ian Miller has written that “central to the notion of the gift is the way in which reciprocity is effected and enforced,” and this is tricky business, because gift giving and receiving have the potential to “threaten, humiliate, annoy, manipulate, and vex.” William Ian Miller, Humiliation (1993), 21, 23.

The Seventh Circuit decision in Blagojevitch is an intriguing example of judges trying to draw careful distinctions between what is criminal, and what might be acceptable, in the conduct of politicians. Their aim is to protect standard political “logrolling” from criminal prosecution. Among other counts on which he was convicted, the former Governor was charged with trading an appointment to a Senate seat for a position, for himself, in the Cabinet.   The United States threw the book at him—Hobbs Act extortion, honest services fraud, and bribery with public funds-- but where the prosecutors saw perfidy, the Court found only the ways of politics. It specifically rejected the government’s emphasis on Blagojevich’s logrolling for his own benefit—this is how the prosecution would separate political logrolling from impermissible self-interestedness, but the Court was not convinced.

The opinion is short and does not bring to the surface all of its implications. One question it explicitly left open was what in this analysis remains of 18 U.S.C. §599, which prohibits a federal candidate from promising appointments "to any public or private position or employment" in return for "support in his candidacy.” This was not an issue in the case, but the Court left no doubt that it presents a First Amendment question for another day.

A broader and difficult question is what precisely separates acceptable political “logrolling” from impermissibly personal self-dealing. There is something curious or at least not fully explained in the Court’s analysis, which treats a deal made with campaign money differently from one closed with an offer of a public position. Blagojevich was convicted of trying to sell a Senate appointment for cash but found not guilty of trading it for a government job for himself. In each case he was acting for his own political advancement and proposing to pay with an official act, but the outcome depended on whether campaign cash was thrown into the suggested bargain.

The Fourth Circuit Court of Appeals had its chance to clarify the distinction between criminal and lawful politics, and it seems to have missed it.  Among other issues, it was called on to consider the question of what constitutes an "official act.” In extensive briefing, the Court was warned that whatever one thinks of former Governor McDonnell's behavior, the jury was not properly instructed about where, in the world of politics, mutual backscratching ends, and bribery or honest services fraud begins.  The cases cited included Citizens United (along with McCutcheon v. Federal Election Commission) and their declaration that ingratiation and access are elements of ordinary political interaction, not corruption.

But the Court in McDonnell rejected the relevance of these cases.  It insisted that an official act included “customary” or “settled” practices of the widest variety that cannot be known except upon the consideration of the facts in particular cases. The Court conceded that it might not be enough for such an act to simply relate to official duties. But it did not explain the nature of the required connection. So long as the officeholder might act in a fashion that could connect in any way and at any point to official duties--to any “question, matter, cause, suit, proceeding or controversy” to come before the government--it would be sufficient to qualify as an official act on which a criminal prosecution would be based.  The connection would not have to be direct: the alleged official action could be one of a series of steps over time toward the accomplishment of the desired end.