The Seventh Circuit decision in Blagojevitch is an intriguing example of judges trying to draw careful distinctions between what is criminal, and what might be acceptable, in the conduct of politicians. Their aim is to protect standard political “logrolling” from criminal prosecution. Among other counts on which he was convicted, the former Governor was charged with trading an appointment to a Senate seat for a position, for himself, in the Cabinet.   The United States threw the book at him—Hobbs Act extortion, honest services fraud, and bribery with public funds– but where the prosecutors saw perfidy, the Court found only the ways of politics. It specifically rejected the government’s emphasis on Blagojevich’s logrolling for his own benefit—this is how the prosecution would separate political logrolling from impermissible self-interestedness, but the Court was not convinced.

The opinion is short and does not bring to the surface all of its implications. One question it explicitly left open was what in this analysis remains of 18 U.S.C. §599, which prohibits a federal candidate from promising appointments “to any public or private position or employment” in return for “support in his candidacy.” This was not an issue in the case, but the Court left no doubt that it presents a First Amendment question for another day.

A broader and difficult question is what precisely separates acceptable political “logrolling” from impermissibly personal self-dealing. There is something curious or at least not fully explained in the Court’s analysis, which treats a deal made with campaign money differently from one closed with an offer of a public position. Blagojevich was convicted of trying to sell a Senate appointment for cash but found not guilty of trading it for a government job for himself. In each case he was acting for his own political advancement and proposing to pay with an official act, but the outcome depended on whether campaign cash was thrown into the suggested bargain.

The Supreme Court in Citizens United and McCutcheon appears to be trying to treat the two types of “deal” more alike, giving the politician broader protection for exchanging official “access” for campaign cash and the donor more opportunity to buy “ingratiation.” As the Fourth Circuit recently demonstrated in its rejection of former Governor McDonnell’s appeal, other courts are resisting the adoption of this view in public corruption cases.

In Blagojevitch, the Seventh Circuit finds the dealing over government-funded positions to be “everyday politics”: “political logrolling has never before been condemned as extortion,” and to call a deal for a government job

an honest-services fraud supposes an extreme version of truth in politics, in which a politician commits a felony unless the ostensible reason for an official act also is the real one.

United States v. Blagojevich, No. 11-3853, WL 4433687 at *4 (7th Cir. July 21, 2015) Even where the government job the politician is bargaining for is for himself, “it isn’t clear that this is unusual.” Id. at 5. The Court then speculates that the current Secretary of State might owe his nomination “at least in part” to “a political service for the President.” Id. Ambassadors come to their posts “as part of political deals,” and “some historians say this is how Earl Warren came to be Chief Justice of the United States.” Id.   For this Court, it all seems settled as a question of political custom or practice.

Of course, one might say—and the Supreme Court has indeed said, in cases like McCutcheon—something similar about the role of campaign contributions. But the Seventh Circuit sees a difference, and there are additional assumptions at work in its analysis that may explain its understanding of that difference.

The Court seems to believe that, where the political trading is for government posts, the cost of public corruption is somehow more limited, more tolerable. It is just a government salary’s worth of political self-dealing. Of course, it is more than that: there is also the question of the quality of administration, of service to the public. Compare that to the purchase of “access” with campaign funds, by which the donor is just offered, for her political support, a chance to make her case, and not everyone would agree on which of the two kinds of trades is more costly.

There also seems to be a belief that the deals politicians cut with each other should be given more room than the deals between politicians and their supporters or donors, because it has always been the “everyday politics” of interactions among politicians that helps the government run.   There is merit in this view, up to a point. So would say the “political realists.” Others, including some of the realists, might worry about a view of public corruption that zeros in on political supporters’ “access” while politicians trade more freely in taxpayer funds and in the services that these taxpayers are supposed to get for the money.

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