How far the politician can go in accomplishing political aims, or in meeting political obligations, without being corrupt is implicated in a case like McDonnell, now to be decided by the Supreme Court.  On questions like this, there is a tendency to avoid coming to terms with the element of self-interest as a feature of a political career.

The politician who holds public office can be expected to make the most of official position to advance the prospect of reelection or advancement, and this will mean special handling of political significant matters or the interests of political supporters. The Supreme Court in Citizens United and McCutcheon has concluded that the “ingratiation and access” associated with political support are not a problem of corruption.

But the case law and commentary sometimes dress up the politics in claims about the importance of freeing politicians to have contact with voters and constituents– to learn from them, to stay close to the people etc.  It is suggested that what is at stake is democracy.  The complexities of the political art, which include what it takes to be a successful politician, are delicately kept out out of the discussion.

The government’s brief in McDonnell acknowledges that there is some room for politicians to reward friends and refers to the common case of special access afforded political allies and supporters.  The line it draws is between this “procedural” access – – the opportunity to get the politician’s ear – – and the further step of exercising influence on the supporter’s behalf: “influence [of] the disposition of governmental matters by others.”  Brief for the United States in Opposition, Robert F. McDonnell v. United States of America, Docket No. 5-474 (U.S. 2015), at 25 n.9.

This seems like a sensible solution.  Offering an audience for a request is one thing; it is not the same as taking action, or exercising influence so that others act, to grant the request. But the application of the distinction is challenging.

Influence may flow just from the granting of access.  For example, often an elected official will instruct the staff to hear what the supporter has to say, and it will be the politician’s intention, and that staff’s understanding, that they should give him not just a hearing, but also a sympathetic one.  The politician wants the supporter to come away with a feeling of being heard, of being taken seriously.  What the supporter is looking for in many cases precisely a measure of “ingratiation.” Already there is a step in the direction of something more than a simple audience.

So assume that the supporter asks the staff to open the door for him to make his appeal to another legislator, or to an agency official.  On the surface, every action remains within the realm of the procedural, and yet this is not just a procedural step: there is also a clear message to the new audience, which is that this petitioner counts.  The supporter expects at least this much, a push in the right direction, even in the absence of guarantees.

The workability of these lines can be judged in part by reference to the rules that politicians, in legislative ethics does, have made for themselves.  For example, the Senate established standards for intervening with agency officials on behalf of a supporter. United States Select Committee on Ethics, Ethics Manual, 108th Cong, 1st Sess. (2003) (under revision) at 177-185.  While the rules provide that meetings with government decision-makers on an official matter cannot be arranged on the “basis of” political support, the key qualification, not “on the basis,” means political considerations cannot be determinative.  This does not have to be the case. Most of the time, there will be room for the supporter to make his case on the merits, and the politician is not stuck with admitting that political ties dictated the help provided.  The House has counseled its Members to similar same effect: they should not discriminate in favor of supporters, but also not against them, so long as the assistance provided is not explained only by the politics. Committee on Standards of Official Conduct, House Ethics Manual, 110 Cong, 2d Sess. (2008) at 308.

The question in the final analysis may turn on motives, which in most cases can be answered only by inquiring into the circumstances, like the timing of assistance in relation to the receipt of a political contribution.  But in a world in which ingratiation and access is to be expected and is legitimate, it is difficult to identify clearly the point at which the additional “procedural” consideration given to a supporter crosses over into illicit influence.

And frequently, as these things are done, the politician will make a point of advising the agency official that he is not prejudging the merits.  He just wants the supporter to have a hearing.  Or he makes what the Senate rules refer to as “a routine status inquiry” into how far along the agency is in considering the supporter’s requests or concerns. He emphasizes that he is not arguing for a particular result.  The Senate has concluded that if a status check is all that is involved, the elected official is held to a relaxed standard of familiarity with the merits.  United States Select Committee on Ethics, Ethics Manual, 108th Cong, 1st Sess. (2003) (under revision) at 183.

As the government recognizes, words can’t capture the full value of the assistance provided.  It will have an impact in many cases that the politician has gone to the trouble to make the inquiry or arrange the meeting.

Of course, whatever in the rules counsel caution in contacts with the executive branch officials don’t’ necessarily extend to other forms of help.  An example: where the politician arranges for meetings with her colleagues in the legislature.  That, too, counts for something: it is also a message that the politician cared enough about the supporter to make the special request for him to be heard.

It doesn’t follow from all this that there is no line to be drawn between procedural access and other action, or that the line-drawing is so hopeless that even preferential access should be ruled out of bounds.  It will just be hard to settle on a notion of “influence” that is grounded in a realistic view of the various forms of influence, some of them built into the recognitions that politicians, in doing what they do, owe to supporters within the general category of “ingratiation and access.”

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