Former Virginia Gov. Robert McDonnell, whose bribery conviction was overturned June 27 by the Supreme Court, should thank his lawyers, his lucky stars and the First Amendment – in reverse order. McDonnell had been convicted by a jury for taking loans and gifts, including an inscribed Rolex watch, in exchange for calling state officials and setting up meetings for Jonnie Williams, the head of a Virginia company that claimed to have developed a nutritional supplement made from tobacco.
The court held that the governor's efforts didn't count as "official acts" as the federal bribery law required. But behind the decision was a deep worry, reflected at oral argument, that if the calls and meetings could be treated as criminal, then the entire structure of campaign finance in the U.S., protected by the First Amendment, might be made subject to criminal liability.
Before the Supreme Court, McDonnell's lawyers urged that if his conduct could be considered criminal, then much of what elected officials do for their big donors might count as criminal as well. After all, politicians receive donations, and their donors expect them to make calls and set up meetings on their behalf.
Embarrassingly enough, the Supreme Court has blessed what it calls "ingratiation and access," which are formally protected by the First Amendment. •
Noah Feldman is a Bloomberg View columnist.
