I’ve been following Snyder v. United States closely, not only because I am interested in bribery and illegal gratuities law but also because I based my Legislation course final exam on the case.

To me, it presents a fascinating and close question, and I’m not sure how I would have voted had I been asked what to do. Both the text and legislative history arguments can point in either direction. It is notable, however, that the conservative majority that usually rejects legislative history as unreliable relies on legislative history here to describe the purpose of an amendment to the statute. Majority opn. at 4-5 (“In 1986, Congress amended §666 and thereby avoided the law’s “possible application to acceptable commercial and business practices.” H. R. Rep. No 99–797, p. 30 (1986); see 100 Stat. 3612–3613.”). See also dissent at The House Report the majority quotes as explicating §666 confirms that §666 was meant to track §215—not §201(b), as the majority claims. See H. R. Rep. No. 99–797, at 30, n. 9.”).

How did THIS get by the textualists on the Court (including J. Kavanaugh, who wrote the decision)?

On the merits, this case is likely to increase state and local graft on the margins. Those who engage in outright bribery and take federal funds can still be prosecuted for bribery under section 666. But those who take illegal gratuities and avoid the magic words of a quid pro quo are more likely to be off the hook. Putting this case together with other recent ones, like McDonnell, it’s becoming harder and harder for federal prosecutors to pursue graft at the state and local level.

WaPo:

The Supreme Court on Thursday overturned the 2018 conviction of a former aide to New York Gov. Andrew M. Cuomo (D), once again expressing skepticism of the ways federal prosecutors combat public corruption and influence peddling.

The justices took the case to determine whether Joseph Percoco could be convicted of depriving the public of his “honest services” given thathe was working for Cuomo’s reelection campaign — rather than in his former role as an aide to the governor — when he accepted $35,000 in payments from a construction company.

Percoco made calls to state officials on the company’s behalf just before returning to government employment.

He was convicted on instructions “that required the jury to determine whether he had a ‘special relationship’ with the government and had ‘dominated and controlled’ government business,” Justice Samuel A. Alito Jr. wrote for his unanimous colleagues.

“We conclude that this is not the proper test for determining whether a private person may be convicted of honest-services fraud.”

In a separate case, the court was also unanimous in overturning the conviction of business executive Louis Ciminelli and others who won a $750 million development contract as part of Cuomo’s Buffalo Billion revitalization project.

NYT: “[I]in key rulings in the past dozen years, the U.S. Supreme Court narrowed the law governing corruption, resulting in the overturning of the convictions of at least three prominent former New York lawmakers. And with the court’s announcement June 30 that it would review the high-profile 2018 convictions of two men closely identified with former Gov. Andrew M. Cuomo’s administration, legal experts say the justices may be ready to further limit what constitutes graft — and therefore what’s illegal in New York’s capital.”

Ron Collins:

The case is Roberson v. United States, a case that may well find its way to the “cert. granted” side of the docket. The issues raised in the case are:

1. Whether, in a bribery prosecution based on issue-advocacy payments that would otherwise enjoy First Amendment protection, the government must prove that the payments were explicitly linked to official action.
2. Whether a jury must be instructed that merely “expressing support” for a policy cannot support a conviction under the federal bribery laws.

Here’s the quote I gave Ron about the case: “Roberson looks to be just the kind of case that could interest the Justices, involving the line between political influence permissible under the First Amendment and impermissible bribery. Bribery laws stand likely to be further weakened on First Amendment grounds if the Court agrees to hear this case.”