Two weeks ago, Pittsburgh Tribune-Review columnist Brad Bumsted gave his take on the indictment of South Philadelphia state Sen. Larry Farnese. It was an unusual op-ed for a man who has spent most of his career outing crooked pols.
"This was politics, not government” he wrote. “Dirty politics? Yes. Sleazy? No question. But was it a crime? Hard to see that.”
Perhaps unwittingly, Bumsted was essentially echoing the sentiments of most of Pennsylvania’s political class – and perhaps a few Supreme Court justices – who wonder what precedent this and similar cases could set for politics writ large.
Farnese stands accused of using $6,000 in reported campaign spending to influence the outcome of a ward election. The “quid” was cash to send a Democratic committeeperson’s daughter on a college semester abroad; the “quo” was purportedly said apparatchik’s vote in an intraparty election in which she did not actually vote.
It is, to echo Bumsted’s summary, a strange sort of bribery case. The aggrieved party, according to the Department of Justice’s indictment, appears to be the Democratic Party itself – deprived of the chance to select honest political leadership. To some actual members of the local party, that’s hogwash: This kind of wheeling and dealing within the party structure is political leadership.
This is essentially what Mark Sheppard, Farnese’s lawyer, has already said, but where the law actually comes down is a grey area. The case cuts to the heart of the hazy status political parties enjoy in America, existing essentially as private clubs that have gained immense privileges as they’ve become intertwined with government functions.
“A bribe is when a person gives money to a public official to influence an official act; the question is whether this is an official act or whether it falls into the category of club activity,” said Boston College professor George Brown, who specializes in government ethics. “The parties are so close to the government apparatus that this could be conceived of as an official act.”
Brown said that when it comes down to the “criminalizing politics” argument, he thought Farnese’s actions ought to be criminal, but he wasn’t so sure federal judges would agree. He predicted the state senator’s lawyers would move to have the case thrown out for not constituting bribery.
“There is a tradition of judges perceiving bribery statutes very narrowly,” he said. “A narrow read could say it wasn’t brought before the state senator, it was brought before a member of the party, that he wasn’t given anything in his official capacity. It’s a tough case. It’s going to be a close one.”
In higher-profile cases with much more serious ethical compromises, justices in the country’s highest courts have been notably split on the broader issue.
In a case currently before the US Supreme Court, former Virginia Gov. Bob McDonnell was convicted of peddling influence in exchange for hundreds of thousands of dollars in legal gifts from political contributors. But both liberal and conservative Supreme Court justices struggled to precisely define when a politician crosses over from politicking to “official acts.”
McDonnell, a Republican, is accused of helping to arrange lunches and parties between government officials and a businessman in exchange for the gifts. Supreme Court Justice Elena Kagan worried that if “a party becomes an 'official act' or calling somebody just to talk about [a] product becomes an 'official act,'” then any action by a politician could be similarly construed.
Aside from possibly angling for cooperation in some larger, unspecified investigation, why is the DOJ bothering to bring a case that even good-government types, like Bumsted, think is iffy?
Some sources speculated that the department simply wanted to dispel the notion that family connections to law enforcement – specifically, the wife of one of Farnese’s political aides works for the US Attorney’s office – could act as a shield from prosecution.
St. Joseph’s University political science professor Randy Miller thinks it’s ultimately a bigger play than that.
“This case might be a bridge too far, but it might be seeing how far the bridge goes,” he opined. “It’s almost exploratory. It’s a fishing expedition, an opportunity to show ‘pay-to-play’ is over.”]
Miller said the case, which he described as “very strange,” would be precedent-setting regardless of the outcome for Farnese – either signaling that federal prosecutors had wide-ranging authority over local party politics or, alternatively, curbing recent high-profile anti-corruption efforts.
“The big concern is about the precedent this sets for the role of the federal government in the most mundane political activities,” he said. “Longstanding behavior that might have been questionable is now going to be called into question. But it’s also about how far you can go in looking for corruption.”