The inherent tension between the regulation of political corruption and the right to spend money to influence politicians and election outcomes has played out repeatedly in Supreme Court jurisprudence over the past 40 years. Older decisions justified limitations on financial contributions to politicians to prevent even the appearance of influence. More recently, however, the court has made clear that corruption is limited to those cases in which the government establishes a quid pro quo sale of “official action”—payments being made in return for an explicit promise or undertaking by the official to perform an official action.1
In granting certiorari in the case of former Virginia Governor Robert McDonnell, the Supreme Court has again ventured into the quagmire of defining what constitutes an illegal quid pro quo arrangement. In McDonnell, the issue centers upon the meaning of “official action” under the federal criminal corruption laws. The prosecution of McDonnell and his wife for receiving gifts and loans valued at $177,000 from a campaign donor drew criticism in some quarters for criminalizing politics as usual.2 The McDonnells insist that they took no “official action” in exchange for what were customary gifts—gratuities that were not even illegal under Virginia state law. The Supreme Court’s decision in McDonnell as to what constitutes a corrupt act almost certainly will have an impact on the business of politics, as well prosecutions under other criminal statutes containing a quid pro quo requirement.
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