When corrupt people who want something from the government come together in common cause with corrupt government officials, the results are not pretty. Thus Virginia businessman Jonnie Williams, who wanted Virginia’s public universities to study a nutritional supplement that his company made, came together with Virginia’s Governor Bob McDonnell and his wife. Soon $170,000 in loans, gifts, and other benefits had flowed from Williams to the McDonnells, and Governor McDonnell had arranged meetings, hosted events, contacted government officials, promoted Williams’ products, and recommended that state officials meet with Williams’ executives. Prosecutors alleged that McDonnell had performed “official acts” in exchange for bribes. The jury, the federal district judge, and the Fourth Circuit Court of Appeals all agreed.
The Supreme Court disagreed last week, unanimously reversing McDonnell’s conviction. The Court held that what McDonnell had done in exchange for the $170,000 was not sufficient to constitute an “official act.” Jack Abramoff, subject of our documentary In It to Win, who went to jail for paying bribes to receive access like this (and, no doubt, more), was upset that the Supreme Court did not see fit to send a politician receiving such bribes to jail. Abramoff, who since leaving prison has worked to reform the corrupt system he exploited, complained of the decision, noting:
“When somebody petitioning a public servant for action provides any kind of extra resources—money or a gift or anything—that affects the process….People come to think those seeking favors and giving you things are your friends, your buddies. Human nature is such that your natural inclination is ‘He has done something for me. What can I do for him?’ The minute that has crept into the public service discussion, that is a problem.”
I am not going to take an official position on the Court’s interpretation of the term “official acts” or its application to this particular case. But I do worry that the Supreme Court underestimated the corrupting power of money (see our blog “Money, Money, Money! It Changes Everything…”) and the human tendency to reciprocate.
Research from the fields of behavioral ethics, evolutionary biology, behavioral economics, and related fields bears out what Abramoff exploited as perhaps the most effective lobbyist ever – the fact that man is homo reciprocans. Humans are evolutionarily endowed with a strong tendency to reciprocate when they have been given something. Anything. Whether the evolution is culturally – or biologically – based is unclear (probably both), but it is for most people a very strong drive.
Readers in my age range will remember Unification Church followers, then known as “Moonies,” who were formed into mobile fundraising teams that drummed up donations by handing out flowers and candy to passersby in airports and other public places. Eventually people in airports learned not to look at the Moonies or to accept the flowers thrust at them. Because even when people know that they are being given gifts with the purpose of influencing them, they still feel strongly that they should reciprocate.
“The norm of reciprocity – the obligation to help those who have helped you – is one of the guiding principles of human interaction.” (Sah & Fugh-Berman). Both lobbyists and pharmaceutical companies have built their industries upon this basic aspect of human psychology about which the Supreme Court seemed insufficiently concerned in McDonnell.
And this is not the first time. Again omitting a detailed legal analysis of the merits of the case, it is also quite arguable that the Supreme Court’s holding in Citizens United underestimated the corrosive effect of money on our political process.
During oral argument in the McDonnell case, Justice Breyer observed that the conviction “for better or worse, puts at risk behavior that is common, particularly when the quid is a lunch or a baseball ticket, throughout this country.” I believe that Abramoff raises the more weighty concern. One hundred and seventy thousand dollars is in a whole different category from lunches and baseball tickets. Abramoff is right: we ought to be trying to raise our day-to-day political conduct to the standard of the law, and not lower the law to the level of our day-to-day political conduct.
Dan Ariely, The (Honest) Truth About Dishonesty (2012).
Andrew W. Delton & Max M. Krasnow, Adaptationist Approaches To Moral Psychology, In The Moral Brain: A Multidisciplinary Perspective 19 (Jean Decety & Thalia Wheatley, Eds) (2015).
Simon Gachter, Human Prosocial Motivation And The Maintenance Of Social Order, In The Oxford Handbook Of Behavioral Economics And The Law (Eyal Zamir & Doron Teichman, Eds) (2014).
Carl Hulse, Is the Supreme Court Clueless About Corruption? Ask Jack Abramoff, New York Times, July 5, 2016.
Dacher Keltner, Aleksandr Kogan, Paul K. Piff & Sarina R. Saturn, The Sociocultural Appraisals, Values, and Emotions (SAVE) Framework of Prosociality: Core Processes from Gene to Meme, 65 Annual Review of Psychology 425 (2014).
Ulrike Malmendier & Klaus Schmidt, You Owe Me, CEPR Discussion Paper No. DP9230 (2012).
Michael M. Oldani, Think Prescriptions: Toward an Interpretation of Pharmaceutical Sales Practices, 18 Medical Anthropology Quarterly 325 (2004).
Sunita Sah & Adriane Fugh-Berman, Physicians Under the Influence: Social Psychology and Industry Marketing Strategies, 14 Journal of Law, Medicine & Ethics 665 (No. 3, Aug. 2013).
Lynn Stout, Cultivating Conscience: How Good Laws Make Good People (2011).