In a single sentence issued Tuesday, a three-judge panel of the Seventh US Circuit Court of Appeals rendered a powerful defense of political horse-trading in American jurisprudence — a ruling that protects the soft corruption essential to the functioning of our government.
The judges' conclusion was used in throwing out five of the counts on which former Illinois Gov. Rod Blagojevich was convicted in 2011. Back then, he was sentenced to 14 years in prison after being found guilty on a series of charges stemming from two schemes: the extortion of a Chicago-area hospital and his effort to trade the power to appoint Barack Obama's Senate successor for money and favors.
Here's the backstory: As governor, Blagojevich held the sole power to appoint Obama's successor. Believing that Obama wanted confidant Valerie Jarrett to take his Senate seat, Blagojevich offered to appoint her in exchange for Obama selecting him for a Cabinet post, helping him land a high-paying job at an existing foundation, or lining up $10 million for him to start his own charity.
Under the trial judge's instructions, the jury could have found Blagojevich guilty on the charges related to his unsuccessful effort to wheel and deal with Obama if it concluded that he had offered the seat for any of the concessions he sought from the president.
That's where the decision gets really interesting. A job outside of government or a $10 million stake could be determined to represent a personal benefit to Blagojevich, in violation of federal anti-bribery law. The basic rule is that public officials can't seek "something of value" in exchange for an official act. But, the panel ruled, a Cabinet post doesn't count. Here's the big sentence:
The judges think Blagojevich is a criminal, and most of the convictions rightly stand. But they wisely make a critical distinction that recognizes not all trading between public officials is illegal — or even bad. The line, which is toed but not crossed in Blagojevich's effort to get a Cabinet post, is between private personal benefit to him — money and/or a private sector job — and the political consideration of appointing him to a public post.
In essence, the judges said that politicians can leverage their power over official action to trade with one another. In Washington, that means a senator can agree to vote for a bill important to the president in exchange for him appointing one of her constituents to a federal judgeship, or the House majority leader can agree to bring up a rank-and-file member's bill in exchange for that member voting for the annual budget.
That's an incredibly important distinction in the conduct of politics. Washington couldn't function without a little horse-trading. In fact, it might not even be the capital if not for vote-trading between our Founding Fathers (more on that later).
Questions about the propriety of logrolling? Ask the judges.
The ruling goes on to outline a variety of modern-day examples of how politicians swap favors to help run the country — and serve their constituents at the same time.
"Governance would hardly be possible without these accommodations, which allow each public official to achieve more of his principal objective while surrendering something about which he cares less, but the other politician cares more strongly," Judge Frank Easterbrook wrote in the unanimous decision from the panel.
The judges concluded not only that the offer from Blagojevich was standard political practice but that there's no precedent for a corruption conviction based on logrolling among public officials.
Typically, the people most frustrated by political horse-trading are the ones whose priorities are defeated by it on any given matter. But our system is designed to force representatives and branches of government with competing interests to work together. It depends upon collaboration — and, yes, swapping favors.
Washington itself is the product of vote-trading
The Constitution was purposely silent on the question of where to locate the capital city. When the first Congress met in New York in 1790, the options for locating the federal city were two towns in Pennsylvania.
Virginians Thomas Jefferson and James Madison were determined to bring it farther south, to a spot on the Potomac River. At the same time, Alexander Hamilton, the nation's first Treasury secretary, was trying to get Virginia to agree to a federal assumption of debts. Because Virginia was a prosperous state, and thus had the most to lose under Hamilton's plan, its representatives in Congress were none too keen on that idea. Over dinner at Madison's house that June, the three men struck a deal, as Jefferson recalled.
It was observed, I forget by which of them, that as the [debt assumption] pill would be a bitter one to the Southern states, something should be done to soothe them; and the removal of the seat of government to the [Potomac] was a just measure, and would probably be a popular one with them, and would be a proper one to follow the assumption.
Hamilton corralled the necessary votes from the New York delegation, and Jefferson and Madison delivered Virginia's votes. After Philadelphia held the title for a decade — as part of the arrangement — Washington, DC, became the capital city.