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.”

In the aftermath of the McDonnell decision, legal commentators have expressed concern that it will constrain the federal government’s ability to combat public corruption.  How could McDonnell’s behavior, which was a clear misuse of his office, not be criminal? The court assured that there was still ample room for prosecuting public corruption cases even under its narrower view of what constitutes an official act. But the recent case of Sheldon Silver casts doubt on that assurance. Silver, once the powerful speaker of the New York State Assembly, was convicted of accepting nearly $4 million in payments in return for performing a series of official acts to benefit private interests. Despite convincing evidence, the US Court of Appeals for the Second Circuit overturned the conviction. Citing the McDonnell decision, the appeals court concluded that the jury instructions in Silver’s trial included an overly broad and incorrect definition of official act. Federal prosecutors have promised to retry the case.

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The full impact of the McDonnell decision on federal corruption prosecutions is still unclear.  One thing is clear:  the McDonnell case exemplifies the important role states can and should play in combating pubic corruption.  That is why the states should take steps to ensure they have the tools in place to address public corruption in their own backyards.  Massachusetts can lead by example and make certain that its state ethics laws are strong enough to fill a likely federal vacuum created by the McDonnell decision.  As a start, the Legislature should act on one recommendation included in the task force’s report: expanded regulatory authority for the State Ethics Commission.  Currently, the commission’s regulatory authority extends only to creating exemptions from the conflict of interest law. The authority should be expanded to allow the commission to launch a public rule-making process that would clarify existing ethics laws.  This would be the start of an important conversation to ensure public confidence in the integrity of our state government at a pivotal time in our nation’s history.

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.