Kristina D.C. Hoeppner/Creative Commons
The Supreme Court just made giving this bill to a public official legal, as long as it’s after they perform an official act for you.
The U.S. Supreme Court issued a ruling today that effectively legalizes bribery for state and local officials, so long as they receive the cash or gifts after taking the official act that the briber wants. To put it differently, the Court, in a 6-3 decision split along partisan lines, legalized slightly more sophisticated or modern forms of bribery that do not include a secret meeting and an overt quid pro quo agreement before the fact—which is probably how much, if not most, corrupt dealmaking and graft happens today. The case began as a long-shot appeal by a small-town mayor who was convicted of public corruption and bribery. James Snyder, the former mayor of Portage, Indiana, was convicted in 2021 after a two-week trial in which federal prosecutors showed that he and a friend he’d appointed to a city board had improperly steered contracts worth more than $1 million to a local truck dealership. Shortly afterward, Snyder showed up at the dealership asking for money, and accepted $13,000 from the company. More from Hassan Ali Kanu Snyder argued in his appeals that the federal anti-corruption law that applies to state officials criminalizes “bribes,” which typically include payments made or agreed to before an official act, but not “gratuities,” which are typically an after-the-fact reward or token of appreciation. The statute’s text makes it a crime for most state and local officials to “corruptly” solicit, accept, or agree to accept “anything of value” with the intent “to be influenced or rewarded in connection” with official business. That language, common sense, international norms, and certainly the word “rewarded” would suggest that Congress intended to prohibit bribes and other means of corrupting officials without regard to whether the official received a benefit before or after taking some official action. Yet, the Court’s right-wing majority agreed with Snyder, saying their conclusion is supported by six different considerations, including the text of the statute, how Congress has regarded and approached the law, and concerns about so-called “federalism,” or the balance of power between the states and federal government. (You’ll notice here that this is basically the “states’ rights” notion, which has been deployed for decades by segregationists and right-wingers to bolster policy arguments that are otherwise unsupportable or just plainly bigoted.) On the whole, though, the Court’s ruling in fact turned on a single, almost unbelievably flawed premise: that it’s nearly impossible to figure out what actually constitutes a corrupt gift or “gratuity,” and that the statute would therefore “create traps for unwary state and local officials” if it’s interpreted to cover after-the-fact gifts. Never mind that the bribery statute was universally understood and interpreted to cover gifts and gratuities for decades before this case, and that no one, really, had an issue with that—except maybe those unlucky few who’d been convicted under the law, of course.
The conservative justices gutted the section of the law that bars certain gifts because they don’t think those kinds of “gratuities” should be illegal.
The ruling is more fairly described as a mere policy preference. The conservative justices gutted the section of the law that bars certain gifts because they don’t think those kinds of “gratuities” should be illegal, despite the fact that Congress said so, and despite how painfully obvious it is that people can influence an official’s future actions with gifts, regardless of whether those gifts are explicitly tied to past official action. (That would be one reason why Congress and basically everyone else is very concerned with the “gratuities” bestowed on Justices Clarence Thomas and Samuel Alito by billionaires and other wealthy benefactors, regardless of the timing.) The three dissenting liberals certainly thought that their colleagues’ real reasoning was mostly their concern about overenforcement of anti-corruption laws, as Justice Ketanji Brown Jackson put it in the dissenting opinion. “Ultimately, it appears that the real bone the majority has to pick … is its concern about overregulation” of bribery, she wrote. Even Justice Neil Gorsuch—who joined the majority ruling—also wrote separately simply to point out that everything in the majority opinion boils down to the (supposed) lack of clarity about what constitutes a “corruptly” solicited or accepted gift. “Call it what you will,” Gorsuch said. “The Court today speaks of inferences from the word ‘corruptly,’ the statute’s history and structure, and … concerns of fair notice and federalism. But the bottom line is that, for all those reasons, any fair reader of this statute would be left with a reasonable doubt about whether it covers the defendant’s charged conduct.” Let’s take that premise seriously for a second, setting aside the reality that prosecutors, a jury, a federal district court, and a court of appeals had no problem applying the law in Snyder’s case, nor in thousands of other cases over the past couple of decades. In their dissenting opinion, the liberal justices wrote that “everyone knows what a reward is.” That does seem like a sort of truism, and I would argue that the same goes for a “bribe,” at least in common usage. For example, would it be a bribe if I gave a Washington, D.C., trash collector a $200 Dunkin Donuts gift card for his punctuality? Or if someone in Portage gave a county official who also happens to be a neighbor a $100 gift card for her diligent work on a new park? Can students take their public-college professor out to Chipotle for an end-of-semester celebration? What if it’s a steak dinner at the Inn at Little Washington, the D.C. area’s only three-starred Michelin restaurant? Or what if a mayor appoints an unqualified official who unlawfully steers a million-dollar contract to a local business, and then the mayor shows up and says, “I need money,” and the business cuts him a check for $13,000? My guess is that there’s very little “reasonable” doubt about whether the statute covers the first four examples. But according to the conservative justices, these are all close, or hard cases. All of the examples above are from their majority opinion, meant to illustrate the risks of criminalizing “gratuities.” Of course, those examples do not actually play out in real life, except the last one, which is Snyder’s case, for which he was uncontroversially convicted. The statute, in other words, is not half as unclear as the right-wing justices suggested, at least not to any “fair reader.” Here’s how Jackson put it in dissent: Most “of the clear lines the majority seeks already exist—they come from the text of the statute,” Jackson wrote. The plain text of the law, including words like “corruptly,” as well as more than two decades of actual enforcement, gives fair notice to officials that “commonplace gratuities are typically not within the statute’s reach, and they suffice to prevent prosecution of the gift cards, burrito bowls, and steak dinners that derail today’s decision,” Jackson said. After today’s ruling, federal prosecutors have a much more limited ability to prosecute obviously corrupt conduct, like what happened in Snyder’s case. (Snyder was also convicted of obstructing and impeding collection efforts of the IRS in 2019, the Justice Department noted in its announcement of his bribery conviction.) It’s the kind of shocking and jarring conclusion that brings to mind some scholars’ observation that the never-ending U.S. “culture wars” are often inflamed by politicians—and the Supreme Court in recent years—to obscure the fact that all branches of government have spent several decades continuously enacting policies that give more and more advantages to the rich and the wealthy, and fewer and fewer to everyone else. Indeed, this is not the first time that the Court’s conservatives have defined down public corruption. In McDonnell v. U.S., the majority overturned Virginia Gov. Bob McDonnell’s conviction for bribery, setting the precedent that only strictly defined quid pro quo corruption for a specific official act is illegal under the bribery statute. That ruling helped New Jersey Sen. Bob Menendez get out of his first corruption indictment; he’s currently standing trial for a second. We are already living through the aftershock of Citizens United, and the specter of dark money controlling our democracy. Moreover, thanks in part to earlier rulings by the Court, the number of official corruption cases for bribery, graft, and conflicts of interest brought by the federal government have dropped steadily over the last 35 years, after peaking in 1998, when just 906 defendants across the country were prosecuted. And now, even as we await another ruling on abortion, the Court has decreed more national policy that will allow the rich to exert even greater, outsized influence on public officials than they already do—and to do so “corruptly,” as that word is understood in common parlance, if not under the Court’s new interpretations.
Prospect staff writer Hassan Ali Kanu is an award-winning reporter covering everything from courts and access to justice, to politics, labor, and more. He is a Sierra Leonean, now living in Washington, D.C. Follow @hassankanu Read more by Hassan Ali Kanu
