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The Supreme Court's decision in the "Bridgegate" controversy has been the subject of intense debate. It has received strong support. However, some critics assail the decision as representative of a pattern of recent cases in which the Court has shown itself as indifferent to political corruption, if not supportive of it. Somewhat lost in the discussion is the decision's potential to be the foundation for a seismic re-alignment of anti-corruption enforcement in the United States. The current model—with federal prosecution as the norm—is not cast in stone.

The purpose of this article is to analyze the critique and McDonnell's impact on it. As for McDonnell itself, I contend that the decision gives proponents of the critique less than they claim. The opinion seems to say that an official whose case is identical to McDonnell's could, under a proper approach to bribery, be prosecuted for the same crimes, with the same facts used as evidence. Indeed, the Court raised the possibility that McDonnell himself could be successfully prosecuted in a retrial. The article begins with a discussion of the critique in order to put McDonnell in context. In particular, I examine what is new in the debate over how the federal government should handle possible corruption, and the extent to which McDonnell is part of that shift. Part I explores the critique in depth. Part II analyzes the Supreme Court's decision in McDonnell and its background. As a unanimous decision, McDonnell may be of great significance in how the legal system treats the federal government's role. Part III offers some speculation on the federal anticorruption enterprise going forward.

This article was presented at the Penn State Law Review's Symposium, Breach of the Public (Dis)Trust. The article examines the potential impact of the Supreme Court's unanimous decision in McDonnell v. United States. The analysis first focuses on a narrow reading of McDonnell, treating it as part of the Court's general approach to issues of statutory construction. However, there is a possible broader reading of McDonnell, which has the potential to be highly significant as applied to anticorruption prosecutions, federalism concerns, and the "criminalization of politics" critique. After examining a broader view of McDonnell, the article delves into whether the case is indicative of broader themes in the treatment of corruption, or potential corruption, in both the electoral and governance contexts. Next the article will analyze the surprisingly small amount of academic commentary on McDonnell, despite media interest, as well as the initial judicial interpretations and applications of the decision. The article concludes with a review of the many helpful contributions made at the Symposium, reflecting a diversity of views about McDonnell. These views are an extremely helpful starting point for grappling with the decision's uncertainties.

This article was presented at the Penn State Law Review's Symposium, Breach of the Public (Dis)Trust. The article examines the potential impact of the Supreme Court's unanimous decision in McDonnell v. United States. The analysis first focuses on a narrow reading of McDonnell, treating it as part of the Court's general approach to issues of statutory construction. However, there is a possible broader reading of McDonnell, which has the potential to be highly significant as applied to anticorruption prosecutions, federalism concerns, and the "criminalization of politics" critique. After examining a broader view of McDonnell, the article delves into whether the case is indicative of broader themes in the treatment of corruption, or potential corruption, in both the electoral and governance contexts. Next the article will analyze the surprisingly small amount of academic commentary on McDonnell, despite media interest, as well as the initial judicial interpretations and applications of the decision. The article concludes with a review of the many helpful contributions made at the Symposium, reflecting a diversity of views about McDonnell. These views are an extremely helpful starting point for grappling with the decision's uncertainties.

Federal criminal law frequently deals with the problem of corruption in the form of purchased political influence. There appear to be two distinct bodies of federal anti-corruption law — one concerning campaign finance regulation, and one addressing corruption in the form of such crimes as bribery, extortion by public officials, and gratuities to them. The latter body of law presents primarily issues of statutory construction, but it may be desirable for courts approaching these issues to have an animating theory of what corruption is and how to deal with it. At the moment, the two bodies of law look like two ships passing in the night. The Supreme Court has rendered important decisions in both areas. However, it is only in the campaign finance cases that the Court has articulated a vision of corruption. A well-known recent example is the 2010 decision in Federal Election Commission v. Citizens United. There the Court stated that "influence" and "access" brought about through campaign support, including contributions, are not corruption. The Court appears to embrace a narrow view of what is corruption, tied closely to the concept of quid pro quo. This Article raises the question whether cases such as Citizens United and other campaign finance decisions should have generative force outside the electoral context. I contend that they should not — that preventing purchased political influence, whether generalized or particularized, is central to the federal anti-corruption enterprise. The matter is presented both on a theoretical level, and through examination of Supreme Court cases in what might be called the field of "ordinary corruption." This examination yields an unclear picture. Some cases appear to be in harmony with the campaign finance decisions, raising the possibility that the Court does hold a unified view of corruption. However, the decision in Evans v. United States embraces a broad view of corruption in construing a key federal statute: the Hobbs Act. Evans has had extraordinary generative force in the lower federal courts. In particular, they have diluted any requirement of specificity in the concept of quid pro quo by emphasizing the presence of a "stream of benefits" as a means of securing somewhat generalized influence with public officials. The lower courts have thus reached results that further broad anti-corruption goals while ignoring intimations of a narrow view in the campaign finance cases. To the extent that the Supreme Court may extend this narrow view to ordinary corruption, the result could, as it has in the past, be a major ruling reining in the lower courts. The two ships would, in effect, collide.

This Article examines the role of civil suits in providing accountability for the Bush administration's conduct of the "war on terror." There have been calls for a "Truth and Reconciliation Commission" to perform this function, almost like a retroactive impeachment of President Bush. For now, the idea appears to be dead, especially since many of the policies have continued under President Obama. Increasingly, the default accountability mechanism for questioning government conduct is the array of civil suits against federal officials by self-proclaimed victims of the war, cases which might be referred to as reverse war on terror suits. Many of these suits are high profile, including Ashcroft v. Iqbal, Padilla v. Yoo, and Arar v. Ashcroft. These suits often fail at the threshold. This Article examines the specific reasons for these failures-including the Bivens doctrine, qualified immunity, and the state secrets privilege-and explores their underlying causes. It identifies both a systemic hesitation to use the tort suit as a vehicle for questioning government policy and an enhanced hesitation when the policy involves national security, an area of high judicial deference to the government. In addition to these problems, the Article concludes that the suits, like the commission proposal, suffer from the same retributive motivation and premises. The legal climate that reverse war on terror suits face may become more receptive. Perhaps, however, the goal of accountability should be re-examined and sought through other means.

This Article deals with one of the most difficult questions arising out of the war on terror: what to do about the victims. How should the legal system respond to claims of collateral damage to constitutional rights when the government has tilted in favor of security at the expense of liberty? The war on terror has already put the American legal system to a severe test, exacerbated by the divide between those who see the problem as essentially one of preserving civil liberties and those who see it as one of preserving national security.

Most of the judges in America are elected. Yet the institution of the elected judiciary is in trouble, perhaps in crisis. The pressures of campaigning, particularly raising money, have produced an intensity of electioneering that many observers see as damaging to the institution itself. In an extraordinary development, four justices of the Supreme Court recently expressed concern over possible loss of trust in state judicial systems. Yet mechanisms that states have put in place to strike a balance between the accountability values of an elected judiciary and rule of law values of unbiased adjudication are increasingly invalidated by the federal courts. This article presents an argument against this transformation of the American judiciary. It is aimed at conservatives, for they are the driving force in the movement to make campaigns for judicial offices exactly like campaigns for other "political" offices. I seek to establish, as a matter of policy, that conservative principles argue for a presumption against politicization. I review the judicial "parity" debate, and conclude that conservatives have a tremendous stake in the health and viability of state courts - and in perceptions of the quality of those courts. Broader issues of federalism are at stake as well - particularly the "laboratory" value of state experimentation in seeking the optimal balance between accountability and rule of law values. With this policy perspective in place, the article then examines the Supreme Court decision in Republican Party of Minnesota v. White, the major victory for the pro-politicization position. I argue that White rests on flawed premises and should be narrowly construed.

The federal gratuities statute, 18 USC § 201(c), continues to be a source of confusion and contention. The confusion stems largely from problems of draftsmanship within the statute, as well as uncertainty concerning the relationship of the gratuities offense to bribery. Both offenses are contained in the same statute; the former is often seen as a lesser-included offense variety of the latter. The controversy stems from broader concerns about whether the receipt of gratuities by public officials, even from those they regulate, should be a crime. The argument that such conduct should not be criminalized can be traced to, and is a part of, what I have called the "counter-revolutionary critique" of the hard line on government ethics that grew out of the Watergate scandal. This Article focuses on recent federal court decisions, including the 1999 Supreme Court Sun-Diamond case, that appear to show reservations and even hostility toward the statute. These cases express concern about its potential sweep, its possible role as a trap for the unwary, and the power it gives to prosecutors. The recent District of Columbia Circuit decision in United States v. Valdes is noteworthy in giving a narrow construction to broad language, based in part on a negative view of the statute. Nonetheless, the Article contends that the gratuities statute plays an important role as an auxiliary to bribery, serving as a prophylactic statute and permitting the prosecution of "appearances" of unethical behavior. A redrafted statute could correct undue narrowing and clear up confusion about what the statute does cover. The "prohibited source" approach discussed in connection with Sun-Diamond provides a possible model. Even with a redrafted statute, the controversy is likely to continue. The Article questions whether gifts from regulated entities to their regulators, and similar forms of public sector gratuities, are examples of innocent speech that serves a valuable social function. Campaign contributions, on the other hand are often examples of such speech. Yet the Court has permitted limiting them, despite serious First Amendment objections to limits on speech and association. The compelling governmental interest that permits this regulation bears a strong resemblance to that underlying the anti-gratuity statute: fighting corruption by curbing attempts to acquire influence that cannot be adequately reached through bribery laws. The Article traces the evolution of the anti-corruption interest in the Supreme Court's decisions beginning with Buckley v. Valeo. These decisions give added impetus to the considerations underlying anti-gratuities statutes. From Buckley onward, the Court has treated preventing the appearance of corruption as an interest more or less equal to preventing quid pro quo corruption itself. Yet once the concept of appearances is introduced, the entire notion of an anti-corruption interest acquires considerable breadth. It is possible that a Supreme Court decision in Randall v. Sorrell will cut back on the scope of the anti-corruption interest in the campaign finance context. The Court is unlikely, however, to abandon completely its gratuity-like approach to campaign finance issues. Even if it does, that will only highlight the need for the gratuities statute. [Please note that a more complete version of this paper will be available after the Sorrell decision.]

Federal prosecutions of state and local officials for political corruption are a significant feature of the American political landscape. However, they raise serious federalism questions, especially the potential impact on state autonomy and sovereignty. Thus, these prosecutions would seem to run counter to the Supreme Court's "New Federalism." The Court has never explored the issue in depth. Last term it handed down a decision highly favorable to the federal role in the case of Sabri v. United States. This paper examines Sabri, and questions the rationale that the prosecution in that case was an example of justifiable protection of federal funds. The article offers an alternative perspective, namely, that the Court was anxious to further the anti-corruption imperative demonstrated in McConnell (the Campaign Finance Reform case). The article concludes with possible alternative rationales for a strong federal role in overseeing state and local governments and for a general anti-corruption statute.