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Corruption Law After McDonnell: Not Dead Yet

The Supreme Court waited until the last day of its October 2015 Term to issue an opinion in McDonnell v. United States. One can almost imagine the chagrinned Justices not wanting to stick around for the reaction of an increasingly cynical public: money buys votes and money buys action; government of the people, by the people, and for the people is no more. Indeed, the case ends with an unusual sort of elegy: “There is no doubt that this case is distasteful; it may be worse than that. But . . . .”

Could it be that the Court, still battered by two decisions that many continue to feel were more baldly political than most, was embarrassed by this latest decision? Probably not. The Chief Justice wrote the McDonnell decision on behalf of a unanimous Court. The indicia of raw politics from those earlier cases are absent. No doubt, the behavior at issue in McDonnell is shameful, but the shame rests with lax state regulations and those enticed by lucre, not with the Court.

Predictably, the decision has been received with some degree of panic. Corruption is never popular, and the ruling will make it more difficult to prosecute. But claims that federal corruption laws are dead are overstated. This Essay examines the McDonnell opinion in light of corruption law generally and identifies avenues by which corruption can, and will continue to be, prosecuted. Indeed, while McDonnell narrows the path, it also adds some clarity to the difficult nexus between free speech, free elections, representative government, and bribery.