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.

It is understandable that the D.C. Circuit's Wagner decision upholding the federal contractor ban would attract a good bit of attention.  The federal courts are suspected of harboring animus toward the campaign finance laws and here is a major decision going the other way and on fairly broad grounds.  So it has been described as having the potential to be highly significant.

The decision was notable for the clarity and thoroughness of its presentation.  The Court also deftly reinforces the available authority by use of case law stressing the particular dangers presented by political pressure on, or from, government employees.  A strength, perhaps also a surprise, was the unanimity of the opinion.

It was also a relief to the decision’s admirers that the Court left open the question of whether federal contractors barred from contributing could make independent expenditures, or contribute to a Super PAC.  So this fight is for another day. Hopes have been raised within the reform community that the Court's emphasis on the special threats posed by federal contractors’ direct giving might justify limits on their independent spending.

This is one impression the case leaves – that without dissent, and for this class of contributors, the Court was prepared to affirm unambiguously affirm the government’s regulatory authority.  But then, after a step back, Wagner also illustrates how much excitement in this day and age of declining expectations about the campaign finance reform laws can develop around a case with limited practical effect that exposes problematic features of the current regulatory regime and its defense.

Strong critics of gerrymandering and other examples of political self-dealing can count an attentive audience—politicians using power to keep power, such as in drawing lines or raising money. There is no denying the legitimacy of the concern. But sometimes the attack can be taken up with zeal, and the proposed solution takes the form of aggressive constitutional innovation. The argument is made, and the Supreme Court is called on to agree, that regular constitutional process and ordinary politics must yield to extraordinary mechanisms installed in their place.

In the Arizona case, the Court ruled that legislatures could be ousted by initiative from the redistricting process  Arizona did not impose checks on legislative self-dealing; it relieved legislators of any role altogether. The Court had to know that it was sanctioning the substitution of one form of politics for another-- the politics of direct democracy for that of the legislative process. To accomplish the flip, it had to deify direct democracy, by referring to it as a conduit for the expression of the popular will, and to render so harsh a judgment on legislatures and their anti-democratic ways that legislators were disqualified from further participation in drawing district lines.

In choosing this direction, the Court appears to have bought into what John Sides and Eric McGhee refer to as the “zombie myths” about the grossly anti-competitive effects of this mode of political self-dealing. Because it was redressing what it takes to be a major evil, the majority could sanction drastic measures on an enterprising construction of the constitutional text, concluding that “legislature” meant no role for the legislature. In sum, the Court treated the case before it as presenting a major dysfunction of governing institutions, justifying an extraordinary response, and it acted accordingly.

The next few days of commentary on the Arizona redistricting decision will include the usual debate about which side had the better of the “legal argument.”   And, in truth, both the majority opinion and the chief (Roberts) dissent can be defended.  Each is effectively drawn, making the most of the materials available to it.  Each also takes the usual liberties with the construction of precedent and the standards by which particular points—an example being the majority’s reliance on 2 U.S.C. §2(a)(c)—are deemed relevant.  More interesting is the way that the majority weighs the reform objective.  The majority in the Arizona case adheres to a model familiar in political reform arguments, within and outside the Court.

For this majority, the constitutional question cannot be considered apart from the reform objective served by the initiative creating the Independent Redistricting Commission.  The “people” are seen to be taking urgent steps to protect against officeholder self-interestedness. So, as Justice Thomas points out in dissent, the Court here lauds the exercise of direct democracy, which at other times is given the back of its hand.  The reason for the difference is simple: the objective that, in this case, the tools of direct democracy have been wielded to bring about.