What the Alleged Misdeeds of Rod Blagojevich Teach Us About Lawful Politics

By MICHAEL C. DORF
Monday, Dec. 15, 2008

The allegations in the criminal complaint filed last week against Illinois Governor Rod Blagojevich portray a level of corruption that is shocking even by the standards of a state in which four prior governors have served time in prison. If proven, the charges will almost certainly result in Blagojevich becoming the fifth.

Among the most tawdry of the allegations in the complaint are these three: (1) Blagojevich pressured the Chicago Tribune to fire editors and writers responsible for editorials critical of Blagojevich, in exchange for gubernatorial assistance with the sale by the Tribune of the Chicago Cubs; (2) Blagojevich attempted to extort campaign contributions from people and entities, including a children's hospital, in exchange for government contracts, grants, and regulatory approvals; and (3) Blagojevich conspired to extract lucrative positions for himself and his wife in government or the private or non-profit sectors in exchange for appointing a U.S. Senator to fill the seat vacated by President-elect Obama.

It is tempting to see Blagojevich as just a criminal who happened to become Governor of Illinois. Certainly, the brazenness of his conduct suggests more than run-of-the-mill political corruption. Blagojevich knew he was being investigated for "pay to play" schemes, but persisted with them anyway.

Nonetheless, the alleged misdeeds of Blagojevich differ only in degree, not in kind, from conduct that is perfectly legal. In examining what was wrong with what he did, we therefore may see the deep flaws in our regular politics. Watching Blagojevich is like looking in a funhouse mirror: the reflection, while exaggerated, is nonetheless real.

The Tribune Shakedown and the First Amendment

Blagojevich's alleged shakedown of the owner of the Chicago Tribune was not merely a violation of the criminal law. It also appears to have violated the First Amendment. The government may not condition a benefit on the relinquishment of a constitutional right.

Yet the "unconstitutional conditions" doctrine is notoriously difficult to apply in First Amendment cases, given the competing constitutional principle that permits government to favor some messages over others. As I explained in a column about a free speech case currently before the U.S. Supreme Court, the First Amendment does not require the government to be neutral among the messages it itself conveys.

For example, if the government hires an advertising agency to discourage teens from smoking, it need not pay a competing agency an equal amount to promote smoking as cool. More controversially, in the 1991 case of Rust v. Sullivan, the Supreme Court upheld the so-called "gag rule," which forbade doctors in federally-funded family- planning clinics from even mentioning abortion as an option for pregnant patients.

Rust does not directly deal with newspapers, but it does recite the general proposition that there is a constitutionally-significant difference between the government's decision not to fund some activity or message—which is permissible—and its decision to condition funding (or some other benefit) on some conduct of the recipient. Under that test, it is quite clear that Blagojevich crossed the constitutional line: He did not merely refuse to fund the Tribune; he conditioned assistance with the Cubs sale on the firing of the offending staff members.

But note that many troubling conditions fall on the constitutionally-permissible side of the line. Suppose that military recruiters place advertisements in newspapers and magazines. Aiming to get the most bang for their advertising buck, the armed services only place ads in those publications they deem sufficiently "pro-American." Accordingly, conservative but not liberal news outlets benefit from the federal advertising dollars.

Or consider a real case: the Bush Administration's practice of secretly paying columnists such as the Washington Post's Armstrong Williams to write articles favorable to the Administration's policies. The practice was disgusting, but not unconstitutional under the Rust test. Yet, as a practical matter, there is not all that much difference between Blagojevich paying for the Chicago Tribune not to criticize him, and Bush paying for the Washington Post to praise him.

The Fine Line Between Politics and Bribery

Much of the news coverage of the Blagojevich pay-to-play scandal has emphasized that Illinois has extremely lax campaign finance rules. Unlike in federal elections, in Illinois state elections, there are no limits on how much money any one individual can contribute to a candidate.

There is no doubt that the permissiveness of the Illinois campaign finance regime facilitated shenanigans by Blagojevich. A businessman seeking government contracts worth tens or hundreds of millions of dollars would be willing to pay $50,000 to the Blagojevich campaign if asked, and so Blagojevich asked. By contrast, if individual donors are limited to $2,300 per candidate--as they are for federal elections--then they are less subject to extortion.

Of course, insisting on a donation of any size as a condition of some government benefit is illegal, even in Illinois. Bribery and extortion are crimes, independent of any special campaign finance rules. But if one stops to ask why public corruption is objectionable, it becomes apparent that even perfectly legal campaign contributions of any size can themselves be problematic.

A politician who solicits or receives campaign contributions in a quid pro quo for favorable treatment—whether for a government license, contract or other benefit—harms the public interest because he makes a decision based on the wrong criteria. Instead of asking whether the donor is lawfully entitled to the benefit, the corrupt politician simply rewards the donor for providing his money. The ideal from which the corrupt politician departs is that of unbiased judgment on the merits.

Now let us eliminate the quid pro quo, and thus the illegality. Still, donors who make very large campaign contributions, as is possible in Illinois, may well be hoping that the politicians to whom they contribute will take notice and, in an effort to earn similar donations in the future, provide favorable treatment.

Capping donations at relatively low figures greatly reduces the possibility of a de facto quid pro quo—at least if the caps are not easily evaded, a very big "if" under federal law, given the possibility of independent expenditures, additional donations to parties, and other measures.

More broadly, the role of legal money in politics poses the same core risk that bribery and extortion do: the risk that policy will be responsive to private dollars rather than the public interest. Whenever anybody gives money to an electoral campaign or a party, she hopes that her money will help elect candidates who hold views similar to her own. That may be for selfish reasons; perhaps the donor is wealthy and wants to see an anti-tax candidate elected. Or the motives may be public-spirited; perhaps the donor simply wants to help elect a candidate who will do more to curb global warming.

But whatever the motive, to provide funds for a candidate is to attempt to have an influence on the electoral outcome that is greater than one can have by simply casting a ballot. On hard policy questions, we understand that politicians will typically define the public interest in terms of what the majority favors; that is simply what it means to live in a democracy. We do not expect—or at least we do not talk as though we expect—that elections will be decided based on which candidate can appeal to the people with the most money to contribute. Yet that is at least an important piece of our political reality.

The Spoils System Lives

In perhaps the crudest expression of his political philosophy, Governor Blagojevich is quoted in the criminal complaint as saying that a Senate seat "is a fucking valuable thing, you don't just give it away for nothing." Here too, Blagojevich's apparent crime is worse in degree but not different in kind from legal, and routine, political behavior.

President Andrew Jackson has historically been linked with the "spoils system," whereby a victorious politician rewards his supporters with patronage appointments. Jackson himself denied the charge, but for just about all of American history, Presidents and Governors have used the power of appointment in this way. While the establishment of the federal civil service limited the sheer number of patronage appointments available, the best jobs remain outside the civil service.

For instance, often ambassadorships to small European countries are given as sinecures to key campaign donors or other figures to whom a President feels indebted—regardless of the ambassador's diplomatic abilities. Had Rod Blagojevich chosen an Obama ally for the vacated Senate seat, and had President Obama later named Blagojevich an ambassador—one of the posts Blagojevich is heard to expressly consider in the criminal complaint—no one would have thought anything untoward had occurred. Here, as elsewhere, Blagojevich committed a crime by making explicit what decorum and the law require to be only tacit.

Make no mistake: If U.S. Attorney Patrick Fitzgerald can prove half of what is alleged in the criminal complaint against Rod Blagojevich, then the soon-to-be-former Governor of Illinois will richly deserve a felony conviction. In our zeal to scorn Blagojevich, however, we should be careful not to characterize his behavior as simply aberrant. Blagojevich is a very nasty symptom. American politics is the underlying disease.


Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University. He is the author of No Litmus Test: Law Versus Politics in the Twenty-First Century and he blogs at michaeldorf.org.



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