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It's Getting Chilly: Federal Courts Continue to Wrestle With Impact of Aggressive DOJ Public Corruption Cases
In an environment of aggressive federal prosecution and regulation both businesses and public officials are challenged to identify the permissible line between proper financial transactions — things like campaign contributions and business entertainment — and unlawful payments. And, in what the First Circuit called a "novel theory of Hobbs Act extortion," public officials now have to struggle with the scope of permissible advocacy — when does advocacy for constituents become extortion? United States v. Brissette, 919 F.3d 670, 684 (2019).
The federal regulators have long taken an expansive approach with regard to policing official / constituent interactions at both the state and federal level. For decades, the U.S. Supreme Court has more or less methodically tried to limit these various assertions of federal power, by repeatedly imposing a quid pro quo requirement for federal criminal prosecutions.
The DOJ pushed for years to expand corruption prosecutions to almost any situation where a public official receives a personal benefit. And, the Supreme Court's resistance can be traced back nearly a generation. In McCormick v. United States, 500 U.S. 257 (1991), the Court grappled with the dilemma of the Hobbs Act's seeming prohibition on public officials obtaining anything of value "under color of official right" while also recognizing campaign contributions are made every day with an expectation that the official will be acting in an official capacity as to matters of concern to donors. The Court decided, in the campaign contribution context, that the Hobbs Act requires proof of a quid pro quo transaction. Id. at 266-67, 274. It is only a crime, "if the payments [we]re made in return for an explicit promise or undertaking by the official to perform or not to perform an official act" — i.e., when "the official asserts that his official conduct will be controlled by the terms of the promise or undertaking." Id. at 273. Campaign contributions with a mere hope or even unilateral expectation of benefit are not Hobbs Act violations.
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