States must step up on public corruption

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.

Meet the Author

Jamie Hoag

Administrator and adjunct law professor, College of the Holy Cross and Suffolk University Law School
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. 

  • Mhmjjj2012

    I wanted to check out the report by the Massachusetts Task Force on Integrity in State and Local Government but I gave up. Why does it take forever to get access to such a report?

  • Mhmjjj2012

    I thought I gave up but the download kept on going until somewhere around 20 minutes the report appeared. There was nothing of substance in it but the report did include some very interesting public testimony on a loophole in the regulations that allows legislators to receive “very substantial gifts” from lobbying organizations. One such group, the Jewish Community Relations Council of Greater Boston, financed “study” trips to Israel for Massachusetts legislators while at the same time trying to get legislation passed rejecting the boycott, divestment and sanctions campaign against Israel. A member of the public submitted a written statement on those “junkets to Israel.” She wrote about legislators who receive “all-expense-paid trips to Israel and then vote on legislation designed to shield Israel from the reasonable anger of people trying to help the Palestinians have some rights…I heard a lot of hand wringing about whether legislators had to declare every last cup of coffee (It was agreed that they didn’t) but no one seemed too concerned about all-expenses-paid trips to Israel. It’s so clearly unethical. I hope you all can see this.” Imagine, besides a full-time salary, health insurance and a pension, legislators get 9 and 10 day trips to Israel. That’s Beacon Hill. A task force made up of legislators, their appointees, the Senate Counsel, Chief Legal Counsel to the House of Representatives and the Attorney General’s designee worry about “cups of coffee” and other nonsense while doing nothing about lobbyists showering all expense paid trips to Israel. Great, just great.