By Katya Schwenk

courtesy of The Lver

The Supreme Court just handed down a ruling gutting the federal law that criminalizes donors giving money to politicians in exchange for favors. The Lever was the only news outlet to publish a definitive deep-dive report on this case, way back in March. That report is attached below. 

Today’s 6-3 Snyder ruling, which effectively legalizes bribery, was engineered by the conservative justices who have been accepting their own billionaire gifts as they’ve been delivering favorable rulings for billionaires.

the original article published Mar 19, 2024

he U.S. Supreme Court is about to hear an obscure case that could legalize corporations enriching public officials in exchange for lucrative government contracts and other favors. 

Though political corruption prosecutions and convictions are already near a historic low, conservative groups are pressuring justices to deliver a far-reaching precedent that would make it much more difficult for law enforcement to prosecute bribery charges against politicians who seek financial remuneration for official actions they take.

The case, Snyder v. United States, revolves around the dealings of a mayor in a small Indiana city who was convicted of bribery in 2019. The Supreme Court could have allowed the conviction to stand, but instead agreed to hear an appeal. It is the latest in a string of corruption cases in which the high court has intervened — and in each past case, the court has overturned convictions and limited the kinds of bribery charges that can be brought against public officials in the future. 

Already, multiple high-profile corruption cases in other states — including the long-awaited criminal trial of a powerful Illinois politician who for years allegedly accepted money and favors from a Chicago energy utility — have been put on hold as prosecutors wait to see how the Supreme Court rules in Snyder, a sign of how far the case’s decision could reach. 

“[Snyder] could chip away even more of what can be considered corruption,” said Kedric Payne, the vice president and senior director of ethics at Campaign Legal Center, a legal advocacy group. 

The Snyder case is particularly noteworthy, legal experts say, because it concerns a landmark federal anti-corruption law — 18 U.S. Code § 666 — which outlaws fraud or bribery within entities that receive significant federal funding, like state governments or universities. The Department of Justice has charged 3,123 people under the law since 2000, averaging about 100 people a year in recent years, federal data show.

“This is a very important statute,” said Ryan Levitt, a Chicago-based attorney specializing in white-collar defense. “This is an entire theory of prosecution, and probably the largest tool in the prosecutor’s arsenal for going after bribery cases and prosecuting them.”

The plaintiffs in Snyder are arguing that the Supreme Court should significantly limit its interpretation of the law, and rule that it should not bar “illegal gratuities,” or rewards given to an official as a thank-you for a governmental action. Legally, this is distinct from a bribe, which involves a prior agreement to exchange money before an action is taken.

The law, Snyder’s defense claims, should only criminalize explicit, quid-pro-quo bribery, which is far more difficult to prove to a jury.

This argument is backed by the array of powerful conservative groups that have flocked to file amicus briefs in the case, including the James Madison Center for Free Speech, an organization founded by conservative lawyer James Bopp, a key architect of the monumental 2010 Citizens United v. Federal Election Commission decision that legalized unlimited dark-money political spending as corporate free speech.

“The Snyder case involves no quid pro quo,” said Bopp in an interview with The Lever. “There was no, ‘Here’s a campaign contribution. I want you to, you know, vote for me on X, Y, or Z.’” If the Supreme Court backed such a framework, Bopp claimed, it “would make every campaign contribution a bribe.”

Yet if the Supreme Court sides with Bopp, legal experts say it could have ripple effects across laws that prosecutors use to bring corruption cases against politicians.

“The most extreme interpretation could be that all gratuity statutes or gratuity prohibitions require quid pro quo,” Payne said. If the Supreme Court backed that interpretation, he said, it could “defeat the whole purpose of gratuity statutes,” and make prosecuting corruption cases far more difficult in some circumstances. 

“You would absolutely see fewer cases, and you would see more of this behavior happening,” he added. “Bad actors are aware when the floodgates are open.”

David Kwok, a professor at the University of Houston Law Center who focuses on white-collar crime, agreed that the Snyder case could have “a lot of influence” on a whole range of bribery statutes, should the court opt for a broad ruling.

“Depending on what the Supreme Court keys in — what particular language they key in on [Section] 666 to answer this question about gratuities — it could have ripple effects into a lot of other statutes too,” Kwok said.

A Corrupt Mayor

The Snyder case originated with the federal criminal prosecution of James Snyder, the former mayor of the city of Portage, Indiana. Snyder was struggling financially when he took office in 2012. That fall, when the city of Portage announced it would be purchasing new garbage trucks, he appeared to see an opportunity.

Federal prosecutors say Snyder “rigged” the city’s procurement process to ensure that a friendly truck dealer won the contract for the new garbage trucks. The mayor circumvented city staff and put a close friend in charge of reviewing bids. That friend then ensured that the city’s requirements for the new garbage trucks were tailored specifically to the preferred dealer, according to the colleague’s testimony at trial.

Snyder’s preferred garbage truck company was awarded two contracts, which were together worth $1.1 million. Less than three weeks after the second contract was inked, the contractor wrote a check to Snyder for $13,000. The mayor later claimed this was a “consulting” expense, although no one was able to identify any work he had done for the truck company. 

The company’s co-owner, meanwhile, testified during Snyder’s second trial that the mayor had showed up unannounced at his offices shortly after the contracts were awarded and demanded the money.

This $13,000 check is the lynchpin of the Snyder case. Prosecutors argue this payment was a straightforward illegal gratuity: Snyder secured the contracts for the truck company, and the truck company rewarded him for it. Because this after-the-fact payment was legally considered a gratuity, rather than a bribe, prosecutors did not have to prove in court that the payment was arranged before the contracts were awarded. 

“In both cases, someone is paying a government official for a service,” explained Kwok. “‘I cut you a check because you’re doing something nice for me.’ The difference between an illegal bribe and a gratuity is that a bribe has to have quid pro quo. An illegal gratuity doesn’t have to have that. You don’t have to have an agreement.”

But Snyder’s defense wants the Supreme Court to rule that the federal bribery statute does not bar gratuities — an interpretation that runs counter to decades of legal precedent, and which could influence the way other laws that ban corrupt gifts are read.

Narrowing the law to only explicit, quid-pro-quo arrangements would make it far more difficult to bring corruption cases against politicians like Snyder or powerful individuals like the truck dealers who paid him off, legal experts say. Corrupt politicians, after all, don’t tend to sign neat contracts outlining the terms of their illicit payments.

“Unless someone’s on a wire, you’re not going to get that direct evidence of quid pro quo,” said David DeVillers, a former U.S. attorney in Ohio who now works in criminal defense. “You’re going to have to almost always rely on circumstantial corroboration — meetings with people, trying to hide the nature and source of the income.”

Other laws that prosecutors rely on in federal bribery cases — like the honest-services fraud law — require greater evidence of quid-pro-quo arrangements, in part thanks to older Supreme Court rulings that have already weakened anti-corruption laws.

“You’ve got to do a lot of work when it comes to those statutes,” DeVillers said. “For 18 § 666, you don’t, you know. Did they get money, did they get gifts, corruptly?” It’s easier to meet that burden of proof under Section 666, he said, making it an important strategy for prosecutors.

While the Supreme Court may simply reject Snyder’s argument — or perhaps issue a more narrow ruling that doesn’t have broad implications for the bribery law — what the right-wing groups backing his defense appear to want is a ruling that guts the statute and others dealing with gratuities, resulting in far-reaching implications.

Legalizing Corruption, One Case At A Time

The Snyder case could prove to be the most recent of decades of Supreme Court decisions that have increasingly narrowed the definition of corruption. 

“There’s been this pattern of raising the bar of what’s necessary to prove corruption,” said Payne of Campaign Legal Center. “If you look at the effect over the past 20 years, you will see that there appears to be more opportunities for corruption because the law is so narrow now with what’s needed to prove a violation.”

In its 2010 ruling in Skilling v. U.S., the high court narrowed a significant federal fraud statute to only bar certain bribery and kickback schemes, taking a decade off the prison sentence of the CEO of Enron, a natural gas and electricity company that epically collapsed in 2001, revealing widespread fraud. 

The landmark Skilling decision was followed in 2016 by McDonnell v. U.S., which involved former Virginia governor Bob McDonnell (R) promoting a dietary supplement maker’s products while accepting more than $175,000 worth of gifts and loans from a company executive. The court overturned McDonnell’s conviction, finding that his conduct was not illegal under the law and forcing prosecutors to drop charges in similar cases.

Then, in 2020, the Supreme Court issued a unanimous decision in Kelly v. U.S., a criminal case stemming from New Jersey governor Chris Christie (R)’s Bridgegate scandal, in which his aides allegedly plotted to create traffic congestion on the George Washington bridge as retaliation against a political rival. According to the court, while the activities were seemingly corrupt on their face, they were not technically illegal because no bribes were involved.

Finally, in May 2023, the Supreme Court opened up new loopholes in federal anti-corruption laws in Percoco v. U.S. and Ciminelli v. U.S., both relating to scandals under the administration of former New York governor Andrew Cuomo (D). 

In the Percoco case, a Cuomo aide accepted a $35,000 payment from a real estate developerbefore he helped exempt the company from contracting with local union workers. In Ciminelli, a contractor allegedly worked to rig the state procurement processto secure a $750 million contract for his firm. Yet both saw their convictions overturned unanimously by the court, weakening federal wire fraud laws.

As the Supreme Court has limited the scope of anti-corruption laws, federal prosecutions for corruption charges have steadily fallen. The number of people prosecuted on corruption charges peaked in 1998 at around 900, according to Syracuse University researchers. Over the last five years, that number has hovered around 400.

The use of the Section 666 bribery statute that was used to charge Snyder has also declined, according to data from the Bureau of Justice Statistics. About 145 people were charged under the statute per year from 1995 to 2010, but over the last five years, the average has dropped to nearly half of that.

Free Speech Or Bribery?

The corporate-backed legal groups that are pushing the Supreme Court to use Snyder to roll back Section 666 are part of the same right-wing apparatus that has fought to limit the scope of corruption laws over the years. 

The groups include the Washington Legal Foundation, a legal advocacy group funded by ExxonMobil and the Koch network; the American Center for Law and Justice, a conservative legal slush fund led by a former lawyer for Donald Trump; and Bopp’s James Madison Center.

In their amicus briefs in the Snyder case, the groups’ attorneys argue that including gratuities in the corruption law would “greatly expand the reach of the statute in disturbing ways” and would be “dangerous.” The briefs warn that overzealous prosecutors might abuse the statute to go after innocuous shows of support for politicians — an argument that ignores the precipitous decline in corruption cases under that statute and others.

Several of the groups supporting Snyder also claim that thequestion of illicit gratuities is, in fact, a matter of free speech, rather than of corruption. The tactic bears resemblance to the strategy Bopp and his colleagues used to win Citizens Unitedopening the floodgates to dark money political spending under the guise of a First Amendment case. 

For Bopp, outlawing special interests working hand in hand with politicians would jeopardize a core part of a healthy democracy.

“How could you run a government, where the people are influencing the elections of politicians, if anything that they do for their supporters… is considered corrupt?” Bopp said in an interview with The Lever. “That would mean that politicians could only do things that benefited their opponents.”

Bopp’s viewpoint is echoed in the brief submitted by the American Center for Law and Justice. 

“Without quid pro quo, campaign donations can easily be transformed into ‘rewards’ or illegal ‘gratuities,’” the group wrote — an idea reiterated in briefs submitted by several labor unions that also submitted amicus briefs supporting Snyder’s defense.

The Laborers’ International Union of North America argued in its brief that the statute was too broad, thus “chilling commonplace — and First Amendment-protected — political activity.”

But as former U.S. attorney DeVillers noted, no one ever claimed that the $13,000 that Snyder received from the garbage truck dealer was a campaign contribution, although prosecutors did note during the mayor’s trial that one of the truck company’s owners had contributed to Snyder’s campaigns in the past. 

“That’s a factual issue, and I think the Supreme Court will accept the fact that this was not a campaign contribution,” DeVillers said. 

“If this were truly a $13,000 contribution that was given to the official’s campaign and reported as a campaign contribution, yes, you can start making the argument that this falls under the rules of campaign finance,” Payne said. 

But the $13,000 check, he emphasized, “definitely was not.”

The reason the Supreme Court is taking up the Snyder case likely is due to disagreement between different appellate courts on whether gratuities are covered under the federal bribery statute. The Court of Appeals for the Fifth Circuit — a federal appellate court that is stacked with conservative judges — has already ruled, in a separate case, that the statute is limited to quid-pro-quo arrangements, breaking with most other circuit courts. This created a “circuit split.”

“[The Supreme Court justices] have to take it up when there’s a circuit split like that, so I think that factor makes the situation more opaque, and difficult to discern what’s going on in their minds,” said Levitt, the white-collar defense attorney. But, he said, he guessed that they were considering a favorable ruling to Snyder. 

“My inclination is they’re leaning toward narrowing the reach of the statute, and that’s why they [took up the case],” he said. “But predicting what the Supreme Court is going to do is a difficult thing.”

The justices will hear arguments in the case on April 15 — providing the first glimpse into how they are thinking about the Snyder case, and whether they are planning to deal yet another blow to the ability to hold corrupt politicians accountable.

Courtesy of The Lever

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art/photo: James Benet, Getty Images