The Trend began in 1999 when a Supreme Court Case called United States v. Sun Diamond Growers of California chipped away at the Government’s Ability to Prosecute Officials for taking what are known as Gratuities, or Minor Gifts, given to them by Businesses or Allies. The Opinion found that Gratuities were Illegal only if the Government could Connect the Gifts to Specific Favors by Officials, establishing a Visible Quid Pro Quo.

In 2010, the Court attacked another Anti-Corruption Tactic, narrowing the Definition of what is known as Honest Services Fraud. The Ruling in this Case came as the Justices Reversed parts of the Criminal Conviction of Jeffrey K. Skilling, the former Enron Chief Executive who had been found Guilty of Charges related to his Company’s Collapse. Although Mr. Skilling was a Private Citizen, the Opinion had a Political Effect, the Newly Limited Fraud Law had frequently been used to go after Politicians who served themselves at their Constituents’ Expense.

But the Court’s most Substantial Opinion on Corruption came last year when it Redefined the very Nature of Political Graft in throwing out the Bribery Conviction of Bob McDonnell, the former Republican Governor of Virginia. A Jury determined that Mr. McDonnell had helped a wealthy businessman by setting him up with influential people in an effort to Promote a Dietary Supplement he was selling. But even though the Businessman had given the Governor several Gifts and Loans, the Court concluded it was not Illegal. It Ruled that Mr. McDonnell’s part of the Arrangement, making introductions and setting up meetings, was not in fact a Betrayal of his Office, or what the Law describes as an “Official Act.”

So today, if you take or agree to, what was previously called, a Bribe but don't complete the request, it's not illegal.


A reproduction of an 1871 Thomas Nast cartoon about a Tammany Hall scandal. Credit: North Wind Picture Archives, via Associated Press

Zephyr Rain Teachout is an American Academic, Political Activist, and former Political Candidate, wrote a book about how Corruption and Quid Pro Quo Bribery was handled through history called ‘Corruption in America’. I was honored to be at the book signing.

The first few American Generations, Teachout reminds us, saw things very differently; for them, Corruption was a “National Fixation.” Drawing on Montesquieu and their understanding of ancient history, the Founders fretted about the countless ways a Republic might be undone from within. “They saw their task this way,” Teachout writes: “How could they create a system that would be most likely to be filled with men of civic virtue but avoid creating temptations that might corrode that virtue?” Their answer was to Build Structural Barriers keeping Public and Personal interests separated, without getting lost in considerations of whether a Forbidden Activity did or did not amount to what our Current Court calls a “Quid Pro Quo.”

Teachout admonishes, because the Founders’ understanding of Corruption has been methodically Taken Apart by a Supreme Court that cynically pretends to Worship the Founders’ every word. “We could lose our democracy in the process,” Teachout warns, a bit of hyperbole that maybe it’s time to start taking seriously.









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