Public corruption has already had quite a year, and now the Supreme Court has given it a big boost. A unanimous Supreme Court yesterday overturned the criminal convictions that resulted from the so-called Bridgegate scandal, when then-Governor Chris Christie’s aides ordered the realignment of bridge lanes to hurt Christie’s political opponent.
In the decision, Kelly v. United States, the Court did not deny that is what happened; rather, it concluded that this conduct did not violate any federal laws. In a sense, then, the Court accepted that this sort of partisan hackery is just how politics works. Perhaps the most awful part is that this is a self-fulfilling prophecy: By endorsing this bleak vision of the world, the Court has made it all the more difficult to prevent corruption at all—and it has done so at the same time when many government officials have adopted corruption as their way of governing.
Kelly began when then-Governor Christie’s administration decided to realign toll lanes in New Jersey leading to the George Washington Bridge. Three lanes had long been reserved for commuters coming from the town the entrance to the bridge is in—Fort Lee. But the Port Authority, without warning, reduced that number to one for a period of four days. The public officials who ordered the change stated publicly that they were conducting a traffic study; in reality, the Court explained, “they did so for a political reason—to punish the mayor of Fort Lee for refusing to support the New Jersey Governor’s reelection bid.”
The Court unanimously held that these actions were not criminal under federal law, because the officials did not obtain any money or property when they realigned the toll lanes. All they did, the Court observed, was exercise their governmental authority for corrupt and fraudulent reasons. Although the officials used government employees’ time and money to carry out the realignment scheme, that time and money was not the purpose of the scheme. What the officials really wanted was to use government power for partisan aims—to make life harder for the constituents of their political opponent. And that, the Court concluded, is not a federal crime.
The Court’s willingness to permit public officials to get away with concededly corrupt acts is nothing new. The Court previously‚ and unanimously‚ vacated the conviction of the former governor of Virginia, who gave out access to meetings in exchange for political donations. There, too, the Court accepted that that is just how government works: Even though the acts were “distasteful,” the Court expressed that the prosecution “could cast a pall of potential prosecution over” much of how the Court thought government works—namely, doling out access for political favors.
These decisions unanimously concluded that federal criminal law does not currently prohibit the defendants’ conduct. So could Congress pass a law criminalizing this sort of behavior? That’s not clear—the Court doesn’t seem to like that idea either. In the case involving the Virginia governor, for example, the Court intimated that there were “significant constitutional concerns” with the federal government’s attempt to prosecute a government official for taking a bribe, which the Court viewed as ordinary, if untoward, government conduct.
Such statements are not mere abstractions. The Court’s conservatives have invalidated several statutes that were designed to combat public corruption, on the grounds that money in politics is not only how government works, but perhaps even enshrined in the Constitution. Citizens United v. Federal Election Commission invalidated the federal limits on corporate campaign expenditures. The federal government argued that the limits were necessary to reduce quid pro quo corruption and the appearance of corruption; the majority dismissed the idea that large campaign expenditures gave rise to the appearance of corruption. In a subsequent decision, McCutcheon v. FEC, the Court struck down related aggregate limits on campaign contributions that were designed to prevent the superrich from purchasing political favors, among other things.
Part of what is striking about the Court’s decision in the Bridgegate scandal is that it comes at a moment of very public government corruption that jeopardizes Americans’ health and safety during a dangerous pandemic. Take the press conference where the president claimed that he had instructed Vice President Mike Pence not to return the calls of unappreciative governors. Or when he claimed to send ventilators to Colorado because of Republican Senator Cory Gardner, who is up for a tough reelection fight this year. The Democratic governor of Michigan, Gretchen Whitmer, has alleged that the federal government has encouraged businesses not to provide any support to the state. The president and Senator Mitch McConnell have openly acknowledged that their views on coronavirus-relief packages are based on whether the states in need happen to be led by Democrats or Republicans. And the Department of Justice now refuses to prosecute the president’s formal national security adviser for lying to the federal government and secretly working for a foreign government.
Under the theory that the Supreme Court embraced yesterday, this is all just how politics works, and Americans should accept that. As the Court sees things, government officials do not act in the national interest nor do they have to. Instead, they can grant access to government officials and exercise regulatory authority to dole out political favors. The Court acknowledged that those decisions “jeopardized the safety of” private citizens. But again, in the Court’s view, that is just politics.
That may very well be how politics works today, but that does not and should not have to be the way that politics works tomorrow. Yet the Supreme Court has made it harder for the country to get to that tomorrow. In the other, incredibly minor opinion that the Court issued on the same day as Kelly, the Court observed that “[C]ourts are essentially passive instruments of government.” Perhaps that statement should have been part of the Bridgegate opinion, as the Court stood by and allowed public officials to loot our government for partisan ends.