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Does the First Amendment Protect Corruption?

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Mcdonnell

Bob McDonnell is a very special man. He’s claiming that his corruption should be protected by the First Amendment.

McDonnell’s bribery charge centered on his receipt of about $175,000 in cash and gifts from businessman Jonnie Williams. Aside from the Rolex, Williams gave McDonnell and his wife several large loans, payments for their daughters’ weddings, and a shopping trip to Bergdorf Goodman. The jury found that in exchange, McDonnell tried to help Williams and his company, Star Scientific, promote a dietary supplement called Anatabloc. Williams had wanted Virginia’s public universities to perform costly studies on Anatabloc that could lead to its approval by the FDA. The governor and his wife directed staff to set up meetings between Williams and state employees, and hosted the launch of Anatabloc at the Governor’s Mansion. At one point, McDonnell had even pulled a bottle of Anatabloc from his pocket and pitched it to the state’s secretary of administration, who controlled the state employee health plans.

At trial, McDonnell claimed that his support for Anatabloc was unrelated to Williams’s gifts. But the jury disagreed. Among other pieces of evidence, jury members learned that six minutes after e-mailing Williams about the status of a $50,000 loan, McDonnell had texted an aide about the proposed Anatabloc studies. The jury heard testimony that Maureen McDonnell told Williams, “The governor says it’s okay for me to help you … but I need you to help me.” The jury convicted McDonnell under several federal laws that punish the exchange of money for official government acts.

McDonnell and his supporters argue that even if he did help with Anatabloc in exchange for Williams’s gifts, the First Amendment protects his conduct—Williams’s gifts were simply buying access to the government, letting him make his case for a project that did not ultimately succeed. McDonnell points to the Supreme Court majority’s holdings in two recent campaign-finance cases—Citizens United v. FEC and McCutcheon v. FEC—that narrowed the definition of corruption. In McCutcheon, the Court identified “only one legitimate governmental interest for restricting campaign finances: corruption.” In both McCutcheon and in Citizens United, which invalidated limits on political spending, the Court concluded that “ingratiation and access … are not corruption.”

If Scalia was alive, I would guess the Supreme Court would uphold McDonnell’s absurd claims. As is, they at the very least won’t be roundly rejected.

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