A theme appearing in a number of post-McDonnell commentaries and editorials is that the Court has made more difficult the prosecution of bribery-based public corruption. It is certainly true that the Court has pared down the reading that could be given to bribery, and especially of the pay to play sort: paying for access alone, in the “typical form, such as arranging a meeting or phone call for someone to make a case for government action. As a practical matter, however, there remains considerable peril in access-buying. How much of a problem prosecutors will now face in bringing these cases is an open question.

In many corruption cases, some person’s (P’s) wish to have official A contact official B, to open up the channels of communication and advocacy, does not arise because B is somehow unavailable. B is or has been available, just not on the terms that the private party finds advantageous. B might rarely takes private meetings, requiring more formal submissions, or delegates much of the responsibility for face-to face encounters to staff. Or B has had the meeting with others present, and P would like a more private discussion. Or B has had the meeting, and P wants another, not confident that the first did the trick.

So P is looking for something he could not otherwise get, or so he believes, by having A ask B to provide the opportunity. Because B might not otherwise grant the audience, B is getting a message from A in many such cases—that A has a special interest in P, if not in P’s cause.

Depending on the facts, these circumstances, usually together with other facts, can constitute a trial question of exerted “pressure” from A on B, which the Court in McDonnell retained within its narrowed definition of “official act.” Neither P nor A are in the clear if P provided benefits to A in return for help with B.

This is the text of my piece published this morning on McDonnell in the Washington Post:

A unanimous Supreme Court held Monday that it is not - certainly not under any and all circumstances - a crime for someone to pay for "access" to government decision-makers. Careful not to say so too explicitly, the court is signaling that political favor-seeking fueled by cash and gifts may well be repellent, but there is only so much the legal system can - or should - do about it.

Amid all the election-year talk about a "rigged" political system, the room left by this opinion for pay-to-play politics strikes a somewhat discordant note. Two years ago, in a case involving overall contribution limits, Chief Justice John G. Roberts Jr. wrote that contributors can reasonably expect some measure of "ingratiation and access." Now, Roberts has taken another, aggressive step in that same direction, this time involving personal gifts rather than political contributions. He has brought the court along with the view that the bribery laws don't necessarily reach purely personal benefits provided to a government official in return for help arranging meetings or scheduling calls.