On June 27, the U.S. Supreme Court overturned the federal criminal bribery conviction of former Virginia Governor Bob McDonnell. Writing for a unanimous court, Chief Justice John Roberts observed:
“There is no doubt that this case is distasteful; it may be worse than that. But our concern is not with tawdry tales of Ferraris, Rolexes, and ball gowns,” Roberts wrote. “It is instead with the broader legal implications of the Government’s boundless interpretation of the federal bribery statute.”
Heeding the advice of former Supreme Court Justice Robert Jackson, I’m not going to discuss whether the Court’s decision in the McDonnell case was wise because, as Jackson said, “we are not final because we are infallible, but we are infallible only because we are final.” Nor am I going to predict whether the federal government will attempt to re-try McDonnell or whether Congress will attempt to amend the federal bribery laws.
Instead, let’s focus on the implications of the McDonnell decision for further Virginia ethics reform.
Bob McDonnell’s 2014 bribery conviction spurred grudging reforms to Virginia’s ethics laws in the next Virginia legislative session. One of the key arguments for the 2015 reforms was that McDonnell’s conduct was then legal under Virginia state law. However, several leading Virginia legislators made it clear in 2015 that they were only supporting the reforms because of media pressure. The highlight of the law passed in 2015 was the creation of a $100 annual limit on gifts from lobbyists and some others to any single public official.
Perversely, now that the Supreme Court has ruled that McDonnell’s conduct did not violate federal criminal law, some of the same Virginia legislators who never wanted to reform Virginia’s ethical practices in the first place have started dropping hints that they would like to loosen things up again. That would be a grave mistake.
The Supreme Court’s ruling in the McDonnell case makes it clear that the states retain the power to decide whether politicians who do what Bob McDonnell did should be:
- excused for having done something that is just part of the normal political process (“they all do it”), or
- subject to significant penalties for doing something that the public has decided is wrong.
Virginia Democratic Delegate Marcus Simon recently drew the correct lesson, “the fact that he didn’t break any laws doesn’t mean that our ethics laws aren’t broken.”
In the 2017 Virginia legislative session, the 2015 ethics reforms should be further strengthened not weakened. Virginia should create a new, independent Ethics Review Commission with teeth, including subpoena and enforcement power. A large majority of other states, including Massachusetts, South Carolina, and Pennsylvania have permanent ethics commissions. In Massachusetts, for example, its Ethics Commission can impose the following penalties:
- A civil penalty of up to $10,000 for each violation of the conflict of interest law or the financial disclosure law, and
- A maximum civil penalty of $25,000 for bribery.
They all shouldn’t do it. Virginia should strengthen significantly its penalties for conduct like Bob McDonnell’s. Our legislators should be able to find a model for Virginia that combines effective enforcement power with safeguards against partisan abuse.