States must step up on public corruption
In Mass., give Ethics Commission more power
IF YOU BLINKED, you likely missed the recent release of the report of the Massachusetts Task Force on Integrity in State and Local Government, which was established by state law to review and recommend updates to our ethics laws. After seven public hearings and testimony from the State Ethics Commission, legislators, and members of the public, among others, the task force members mostly punted, deciding not to take a position on any proposed legal or regulatory changes but instead tasking legislative committees with most of the heavy lifting. The legislative committees should pick up where the task force left off. On a national level, ethics laws have become a frequent topic of discussion as lawyers and pundits attempt to unwind the Trump administration’s conflicts of interest. Beyond the national political climate, this conversation is also timely at the state level because of a legal case involving a once-rising star in the Republican Party that will test whether state ethics laws are equipped to tackle public corruption.
A year ago, the United States Supreme Court considered the appeal of former Virginia governor Robert McDonnell, who was found guilty of federal corruption charges for accepting $175,000 in preferential loans and gifts from a Virginia businessman in exchange for performing a series of official acts. Those acts included arranging meetings and hosting an event in the governor’s mansion all to promote the businessman’s product. The case seemed like a slam dunk – a straightforward violation of the public trust: an elected official using his official position to financially benefit himself and his family in the form of golf outings, a New York City shopping spree, and money to help pay for his daughter’s wedding, among other things.
On appeal to the Supreme Court, McDonnell’s defense team claimed that the case was not so straightforward. His lawyers argued that his conviction should be overturned because the government’s definition of an official act was too broad and criminalized routine acts that government officials do every day for constituents. None of McDonnell’s actions on behalf of the Virginia businessman, they contended, rose to the level of “official” and, therefore, were not covered by the federal corruption statutes.
The Supreme Court agreed, rejecting the government’s view of official act in favor of a “more bounded interpretation.” The court ruled that an official action must involve some concrete exercise of government power, not routine acts such as organizing a meeting. For the unanimous court, the case was partly a matter of statutory interpretation, but also involved federalism and policy concerns. Throughout the case, McDonnell’s defense team argued that the principle of federalism demanded that the federal government defer to states to govern the ethics of their public officials. The Supreme Court agreed, concluding that the government’s broad interpretation of “official act” raised “significant federalism concerns” and would result in the federal government improperly setting standards of “good governance for local and state officials.”
Jamie Hoag served as deputy chief legal counsel and ethics adviser to former governor Deval Patrick. He is currently an administrator at the College of the Holy Cross and adjunct law professor at Suffolk University Law School.