McDonnell and Anti-Corruption's Last Stand

Abstract

In McDonnell v. United States, the Supreme Court constrained the reach of federal anti-corruption law, declared the inevitability and even desirability of representatives aggrandizing favored constituents, and asserted patronage to be a hallmark of democracy. The unanimous decision is the latest and clearest indication that the Court will frustrate regulations that require officials to discharge their roles with disinterested neutrality.

This article demonstrates the impact of the Court’s minimalist view of integrity through political philosophy and game theory. Given the Court’s hostility to regulatory prohibition of self-interested political behavior, the final bulwark of public-minded governance is the electorate, which must use the ballot box to reject corrupt representatives. Additionally, the Court’s position erects significant obstacles for reform of campaign finance and political institutions. The article concludes that implementing civic anti-corruption requires either jurisprudential innovation or novel approaches to enforcement.

This article thereby integrates the history of modern anti-corruption law with the latest leading decision on the topic, weaves together the Court’s blackletter doctrine with its substantive politics, describes the impact of the law on democratic governance, and points the way forward for both scholarship and policy.

Keywords: corruption, constitutional law, McDonnell, honest services, politics, democracy, game theory, political philosophy, 2015 term, elections, institutional corruption, political reform, bribery, American federal law, American Supreme Court

JEL Classification: D72, D73, H77, K14, K42