There are strong echoes of this in the Roberts court’s jurisprudence. The chief justice and his colleagues, particularly the conservatives, have often treated electoral politics as inherently corrupt and self-serving. They have even done so while removing constraints on actual corruption, making the American electoral system less responsive to the public, and imposing subjective judicial vetoes across the nation’s policymaking apparatus.
In a line of cases starting with 2016’s McDonnell v. United States, for example, the court has all but recognized a First Amendment right to pay-to-play politics by narrowing federal bribery laws to only “official acts” in their most literal form. The justices could have upheld the conviction on narrow grounds while signaling that more innocuous gifts, like taking someone out to lunch, would not qualify. They chose otherwise.
Two years ago in Snyder v. United States, the conservative majority also decriminalized “gratuities”—bribes given to state and local officials after an official act is performed, instead of before it—because it feared that the law could criminalize “gift cards, lunches, plaques, books, framed photos, or the like.” It cited no cases where federal prosecutors had done that, nor did it reckon with the actual facts of the case. Instead the high court relied on amorphous federalism concerns, even though Congress had tied it to officials who spend federal funds, and it second-guessed Congress’s intent over the plain text of the statute.
