Amicus Curiae Brief — McDonnell v. United States, 136 S. Ct. 891 (2016) (No. 15-474)

IN THE

Supreme Court of the Hnited States

ROBERT F MCDONNELL,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF OF AMICI CURIAE PUBLIC POLICY

ADVOCATES AND BUSINESS LEADERS

IN SUPPORT OF PETITIONER

GREGORY N. STILLMAN

Counsel of Record

EDWARD J. FUHR

WILLIAM J. HAUN

JOHNATHON E. SCHRONCE

HUNTON & WILLIAMS LLP

2200 Pennsylvania Avenue NW

Washington, D.C. 20037

(202) 955-1500

gstillman@hunton.com

Counsel for amici curiae public policy advocates and

business leaders

l

TABLE OF CONTENTS

INTEREST OF AMICI CURIAE........................0000000 1

SUMMARY OF ARGUMENT .....0000000......ececeeeeeeeeeeees 2

REASONS FOR GRANTING CERTIORAR] ............ 3

I. THE FOURTH CIRCUIT FAILED TO

FOLLOW THIS COURT'S LIMITATIONS ON

“OFFICIAL ACT,” IN CONFLICT WITH

Se EO as dated nrittitpesiintinestobdecinvcincesivianssenss 3

I]. THE FOURTH CIRCUIT'S DEFINITION

OF “OFFICIAL ACT” CRIMINALIZES FIRST

PIPE PU EE VEE Gee cctcscccisscviccscessesesssevesiees 10

Ill. THE FOURTH CIRCUIT'S DEFINITION

OF “OFFICIAL ACT” WILL LEAD TO

SELECTIVE PROSECUTIONG. .......................008 12

SI itches piece btcducistebanlthhdcsabisbhainnsnsénaces 17

ul

TABLE OF AUTHORITIES

Page(s)

Cases

Beach v. United States,

19 FBG Ta Cee Ce. TOFD veccosiccckidcreecce 7

Buckley v. Valeo,

424 U.S. 1 (1976) (per curiam)......................... 9,13

Citizens United v. Fed. Election Comm'n,

BOE UF. SI Ce ccc cknncaxtstctasomnc ee 10, 11, 15

City of Columbia v. Omni Outdoor Advert.,

Inc.,

GBB UB. SES CHBG AED cvncicscscsersceiecisbactiees ee 12

Davis v. Fed. Election Comm'n,

BBG UBB. TIE Ge ve iv eniwescecscosstskastiucticuaaea 13

Evans v. United States,

Jo Bik So) «eee FS 3, 14

Grayned «. City of Rockford,

BOB UT. WG CI Fae cctkncovecescvtestaedscecs eae 16

McConnell v. Fed. Election Comm’n,

540 U.S. 93 (2003) (opinion of Kennedy,

BD .) sccvssenssencsonedociotaciaoeiaans ase 3, 9, 10, 11

McCormick v. United States,

eae es: | rte aie 14

McCutcheon v. Fed. Election Comm'n,

BBG TH. CR. BOG CI vncsrcinccsiectsstecicceatnne passim

i

Skilling v. United States,

sc assansuadosacsosse 3

United States v. Biaggi,

Le SEI 7

United States v. Derrick,

EO, BOOED gc cccnccacncccuccesccccoscs 14

United States v. Inzunza,

638 F.3d 1006 (9th Cir. 2009) ........00000 0000. 14

United States v. Kemp,

500 F.3d 257 (3rd Cir. 2007), cert. denied,

EE 4

United States v. Loftus,

EE GO, OED... cccaccacncdeccnsecacccsece 8

United States v. Muntain,

gS 6 a) s

United States v. Parker,

ee ED GP, BOIIUDD ..cccccccaccevecccncacecncccosces 7

United States v. Rabbitt,

5 SD) 7

United States v. Siegelman,

640 F.3d 1159 (11th Cir. 2011)........................... 14

United States v. Sun-Diamond Growers,

i a cnessantacens passim

United States v. Urciuoli,

Bee eee Be OMe GU. BTID. .oncccccccccccccncsccccccccess. 13

1V

Valdes v. United States,

475 F.3d 1319 (D.C. Cir. 2007) (en banc) ......... 7,9

Vill. of Hoffman Estates v. Flipside, Hoffman

Estates, Inc.,

Ie iy Ne INI siivcrvectcinteveecnctntnitnnatinsiedinnctienith 9

STATUTES

Fs Oe IR siiccsdttenvincittncrinnstckiokucheerstnidamanndiendlimived 4

ee rr eee 3

OTHER AUTHORITIES

Pe II seiieacincntcttitindenidoednncsnanmancaniieutt passim

OO as I ee 1

Fe I UNE BU gendceccttnnecestcsnnctndonastenctinns 12, 16

Pe I EN TD ces ceeeeeeeen 12

INTEREST OF AMICI CURIAE'

Amici Curiae—including U.S. Congressman E.

Scott Rigell, former Arizona Governor Jan Brewer,

former Georgia Governor Sonny Perdue, and former

Mississippi Governor Haley Barbour—axe a broad

collection of current and former elected officials,

business leaders, public policy leaders, and political

consultants. By nature of their respective

professions, every individual within this group has

an acute interest in clear legal guidance on how to

interact with public officials, structuring effective

compliance programs around public corruption laws,

avoiding political prosecutions, and seeing political

participation protected in full by the First

Amendment.

A full list of Amici is provided as an Appendix

to this brief.

' Counsel of record for both parties received timely notice of

the intent to file this brief. See S. Ct. Rule 37(a). Counsel for

both parties have submitted blanket consent to the filing of

amicus briefs in this case. No counsel for a party authored the

brief in whole or in part. No person, other than Amici Curiae,

their members, or their counsel, made a monetary contribution

that was intended to fund preparing or submitting this brief.

2

SUMMARY OF ARGUMENT

This Court should grant certiorari to reverse

the Fourth Circuit’s decision upholding Governor

McDonnell’s honest services and Hobbs. Act

convictions. The Fourth Circuit defined “official act”

under those statutes to include an elected official

speaking with aides, asking a staff member to attend

a meeting, and asking questions at a product-launch

event. As this Court continues to hold, political

access is not unlawful influence, but rather inheres

in democracy. The Fourth Circuit's definition cannot

square with this Court's First Amendment

pronouncements.

By granting certiorari, the Court can clarify

the definition of “official act” under the federal

bribery statutes. The Fourth Circuit’s holding on

“official action” brings erroneous uncertainty to the

definition in at least three ways: (1) failing to follow

this Court’s limits on “official action,” as other

circuits do; (2) defining “official act” so as to

encompass ordinary political activity protected in

several First Amendment decisions; and (3) inviting

selective, political prosecutions with a vague

understanding of “official act.” To not chill political

participation, this Court should grant certiorari and

restore a clear definition to “official act.”

3

REASONS FOR GRANTING CERTIORARI

L. THE FOURTH CIRCUIT FAILED TO

FOLLOW THIS COURT’S LIMITATIONS

ON “OFFICIAL ACT,” IN CONFLICT

WITH OTHER CIRCUITS.

“{I]n the context of the real world only a single

definition of corruption has been found to identify

political corruption successfully and to distinguish

good political responsiveness from bad—that is quid

pro quo. Favoritism and influence are not, as the

Government's theory suggests, avoidable in

representative politics.” McConnell v. Fed. Election

Comm'n, 540 U.S. 93, 297 (2003) (opinion of

Kennedy, J.). Both the Hobbs Act and the honest

services statute require thet the Government prove

quid pro quo—that is, “a specific intent to give or

receive something of value in exchange for an official

act.” See United States v. Sun-Diamond Growers,

526 U.S. 398, 404-05 (1999) (emphasis in original).

Consistent with their borrowing quid pro quo’s

definition from the federal bribery statute, the Hobbs

Act and honest services statute also borrow its

definition of “official act.”2 That statute defines

2 See Skilling v. United States, 561 U.S. 358, 412-13 (2010)

(application of the honest-services statute “draws content

from federal statutes proscribing—and defining—similar

crimes,” and citing 18 U.S.C. § 201(b)): see also Evans v. United

States, 504 U.S. 255, 260 (1992) (describing extortion.

proscribed by the Hobbs Act, as the “rough equivalent of what

we would now describe as ‘taking a bribe.”). While the

gratuities statute was at issue in Sun-Diamond, the definition

of quid pro quo quoted above applied to the definition of

bribery. Further, the gratuities statute and the “official act”

definition for bribery are part of the same statutory scheme.

4

“official act” as “any decision or action on any

question, matter, cause, suit, proceeding or

controversy” before the public official. 18 U.S.C. §

201(a)(3).

The Fourth Circuit's gloss on “official act”

ignored this Court's requirement that the

Government identify “a particular ‘official act.” See

Sun-Diamond, 526 U.S. at 408. As the Government

explained when defending its jury instruction—

adopted verbatim by the district judge and affirmed

by the Fourth Circuit: any type of action can be part

of “a series of steps to exercise influence,” App.275a.,

including simply posing for photos or “comments at

ribbon cuttings” in exchange for money, App.264a.

“Whatever it was, it’s all official action.” App.263a.

The Fourth Circuit concluded that anything

that has the “purpose or effect” of “influencing”

official action as it is defined in statute will suffice as

an “official act.” App.54a-55a. As a result, “asking a

staffer to attend a briefing, questioning a university

researcher at a product launch, and directing a policy

advisor to ‘see’ him about an issue” were Governor

McDonnell’s “official acts” because they had the

“purpose or effect” of “influencing” official action as

the statute defines it. App.73a-74a. The Fourth

Circuit’s “purpose or effect” gloss is heedless of Sun-

Diamond.

Circuit courts thus have no difficulty applying Sun-Diamond’s

“official act” analysis to Hobbs Act or honest services

prosecutions. See, e.g., United States v. Kemp, 500 F.3d 257,

281 (3rd Cir. 2007) (finding that Sun-Diamond’s quid pro quo

bribery analysis “is equally applicable to bribery in the honest

services fraud context”), cert. denied, 552 U.S. 1223 (2008).

5

This Court could not have been clearer that

some “acts” taken by a public official “are not ‘official

acts’ within the meaning of the statute ” Sun-

Diamond, 526 U.S. at 407-08. And yet, the Fourth

Circuit ignored the similarity between the political

courtesies Sun-Diamond explained as outside the

definition of “official act” with those attributed to

Governor McDonnell. For example, this Court

explained that the Secretary of Agriculture giving a

speech to farmers on “matters of USDA policy” is not

action “on” those matters. /d. at 406-07. But, to the

Fourth Circuit, Governor McDonnell asking a

question, arranging a meeting, and making an

introduction about research studies is action “on” the

research studies because they have the “purpose or

effect” of “influencing” action “on” them. Under the

same reasoning, the Agriculture Secretary's speech

to farmers on USDA policy could be “official action” if

it has the “purpose of effect” of “influencing” official

action “on” USDA policy—Sun-Diamond’s plain

language notwithstanding.

This Court admonished that “a statute in this

field that can linguistically be interpreted to be

either a meat axe or a scalpel should reasonably be

taken to be the latter.” Jd. at 412. But the Fourth

Circuit rejected the idea that certain actions are not

“official actions,” see App.54a-55a., leaving the

determination of “official act” to piecemeal litigation

based on its “purpose or effect.”. This interpretation

gives “official act” the same breadth that the

definition rejected by this Court in Sun-Diamond

possessed: any “ability to favor the donor in

executing the functions of his office.” 526 U.S. at

406. The conflict between this Court and the Fourth

(/~cuit is clear.

6

The Fourth Circuit’s understanding of “official

action” casts a criminal cloud on all political

courtesies—again, heedless of Sun-Diamond. The

Fourth Circuit understood “official act” to include

any act “taken in furtherance of [the favored

individual's] longer-term goals” App..6a. (internal

citation omitted). This sweeping characterization

neglects what Sun-Diamond appreciated: Seldom do

interactions between CEOs, political consultants, or

policy advocates with public officials occur in one-off

scenarios. The individual builds a relationship with

the official over time—asking the official to meet,

lend a friendly face at events, or make supportive

speeches. While these individuals may, over time,

give the official various tokens in the course of these

acts, that does not make those acts “official acts.”

Rather, they are part of the “multitude of unspecified

acts” that occur “now and in the future” affected by

the individual giving the official tokens “to build a

reservoir of goodwill.” See 526 U.S. at 405. While

Sun-Diamond understood that it is a matter of

sensibility—not illegality—that inspires advocates

such as Amici Curiae to develop longstanding

relationships with public officials, the Fourth

Circuit’s unreflective “purpose or effect” test makes

them, as the Government said, “all official action.”

App.263a.

“The line between quid pro quo corruption and

general influence may seem vague at times, but the

distinction must be respected in order to safeguard

basic First Amendment rights.” McCutcheon v. Fed.

Election Comm’n, 134 S. Ct. 1434, 1451 (2014).

Consistent with this Court, other circuits recognize

the commonsense principle that official action

requires “inappropriate influence on decisions that

7

the government actually makes.” Valdes v. United

States, 475 F.3d 1319, 1325 (D.C. Cir. 2007) (en

banc). The D.C. Circuit recognized that a definition

“focus[ed] on those questions, matters, causes, suits,

proceedings, and controversies that are decided by

the government” comports with a long line of cases

decided by the circuits in this field. See id. (citing

United States v. Parker, 133 F.3d 322 (5th Cir. 1998)

(“a clerk’s manufacture of official government

approval of a Supplemental Security Income

benefit”); United States v. Biaggi, 853 F.2d 89 (2d

Cir. 1988) (“a congressman’s use of his office to

secure Navy contracts for a ship repair firm”); Beach

v. United States, 19 F.2d 739 (8th Cir. 1927) (“a

Veterans’ Bureau official’s activity securing a

favorable outcome on a disability claim[.]”)). Most

importantly, this definition follows from this Court's

admonition in Sun-Diamond: interpret “official act”

reasonably with a scalpel, rather than sweep through

First Amendment activity with a meat axe. See 526

U.S. at 412.

Courts have overturned convictions for federal!

corruption charges when, as here, a public official

provided only access without offering to advocate or

exert his influence. See United States v. Rabbitt, 583

F.2d 1014 (8th Cir. 1978). In Rabbitt, the Eighth

Circuit reversed a Hobbs Act conviction against

Rabbitt, a state representative. Rabbitt was alleged

to have connected an architectural company with

individuals who could secure state construction

contracts. Yet, “[eJach architect knew the most

Rabbitt could do was recommend them to state

contractors as qualified architects and thereby gain

them a friendly ear.” See id. at 1028. Such a

recommendation did not cross the line from political

8

access to unlawful influence. As the Eighth Circuit

later explained, Rabbitt “promised only to introduce

the firm to influential persons; he did not promise to

use his official position to influence those persons.”

United States v. Loftus, 992 F.2d 793, 796 (8th Cir.

1993). Because “[iJngratiation and access are not

corruption,” McCutcheon, 134 S. Ct. at 1441 (citation

omitted), merely arranging a meeting, asking

general questions in light of a _ constituent’s

suggestions, and appearing at social functions to

lend a friendly face—Governor McDonnell’s

purported “official acts’—provide no basis for a

criminal conviction.

Similarly, in United States v. Muntain, the

D.C. Circuit reversed the bribery conviction of an

assistant at the Department of Housing and Urban

Development (HUD). See 610 F.2d 964 (D.C. Cir.

1979). The Government’s “official act” theory was

that the defendant had “encourage[d] his

subordinates at HUD to assist in promoting group

automobile insurance.” See id. at 969. There, the

Court found that the “crucial question [was]

whether in directing his subordinates to act,

Muntain himself engaged in an ‘official act.” See id.

As the promotion of automobile insurance could uot

“properly, by law, be brought before him as Assistant

to the Secretary for Labor Relations at HUD,”

encouraging his subordinates to assist in promoting

the insurance could not be an official act. See id. As

the D.C. Circuit would later explain, “corralling

subordinates into [Muntain’s] insurance promotion

enterprise” is not “behavior meeting the statutory

definition of ‘official act”—meaning, it is not

inappropriate influence on “decisions that the

9

government actually makes.” See Valdes, 475 F.3d

at 1324, 1325.

The crucial distinction between political access

and unlawful influence is destroyed by a definition of

“official act” that includes Governor McDonnell’s

acts—“asking a staffer to attend a_ briefing,

questioning a university researcher at a product

launch, and directing a policy advisor to ‘see’ him

about an issue,” App.73a. At no point did these acts

ever accompany the exercise of government power.

Instead, they manifest the unavoidable “[fJavoritism

and influence” of democratic politics. See McConnell,

540 U.S. at 297 (opinion of Kennedy, J.). Proscribing

this innocuous activity leaves the contexts in which

they are criminal to be determined either in a

prosecutor's office (in deciding whom to indict) or

through a criminal trial.

“[P]erhaps the most important factor affecting

the clarity that the Constitution demands of a law is

whether it threatens to inhibit the exercise of

constitutionally protected rights. If, for example, the

law interferes with the right of free speech or of

association, a more stringent vagueness test should

apply.” Vill. of Hoffman Estates v. Flipside, Hoffman

Estates, Inc., 455 U.S. 489, 499 (1982). If the Fourth

Circuit's vague definition of “official act” were

allowed to stand here, Amici Curiae would be unable

to develop effective compliance procedures regarding

their interactions with public officials. As explained

further infra, this Court’s First Amendment case law

renders that outcome untenable. See Buckley v.

Valeo, 424 U.S. 1, 41 n.48 (1976) (per curiam)

(finding that vague distinctions between politics and

corruption “not only trap the innocent by not

10

providing fair warning or foster arbitrary and

discriminatory application but also operate to inhibit

protected expression by inducing citizens to steer far

wider of the unlawful zone than if the boundaries of

the forbidden areas were clearly marked.”) (internal

quotation marks and citations omitted).

II. THE FOURTH CIRCUITS DEFINITION

OF “OFFICIAL ACT” CRIMINALIZES

FIRST AMENDMENT ACTIVITY.

The Fourth Circuit’s “purpose or effect” gloss

on “official act” is vague and can only be clarified

through future prosecutions. But this Court rejects

“substantial htigation” to interpret vague rules on

political activity—that “create[s] an inevitable,

pervasive, and serious risk of chilling protected

speech pending the drawing of fine distinctions that,

in the end, would themselves be questionable. First

Amendment standards must give the benefit of

any doubt to protecting rather than stifling speech.”

Citizens United v. Fed. Election Comm’n, 558 U.S.

310, 326-27 (2010) (internal quotation marks and

citation omitted). Because it rejected the need to

find that Governor McDonnell’s “acts” accompanied

an exercise of official power, the Fourth Circuit’s

“official act” definition relies on a “generic favoritism

or influence theory” See id. at 359-60 (citation

omitted). This approach cannot be squared with this

Court’s seminal First Amendment decisions “because

it is unbounded and susceptible to no limiting

principle.” McConnell, 540 U.S. at 296 (opinion of

Kennedy, J.).

Consistent with an exercise of official power

being required for an “official act,” this Court permits

1]

only a narrow class of restrictions on political

activity. These proscriptions only bar political

activity that does not “allow[{] governmental entities

to perform their functions.” See Citizens United, 558

U.S. at 341 (emphasis added). Thus, when an

individual makes an “effort to control the exercise of

an officeholder’s official duties” a quid pro quo is

established. McCutcheon, 134 S. Ct. at 1450-51

(emphasis added). If, however, an individual secures

from the official “mere influence or access,” no quid

pro quo is established. See id. at 1451 (citing

Citizens United, 558 U.S. at 360). This sensible

distinction prohibits “official action” being defined as

the mere manifestation of a supporter’s political

influence or favored status. After all, “[iJt is in the

nature of an elected representative to favor certain

policies, and, by necessary corollary, to favor the

voters and contributors who support those policies.”

Id. at 359 (quoting McConnell, 540 U.S. at 297

(opinion of Kennedy, J.)).

In contrast with this Court’s pronouncements,

the Fourth Circuit did not—and could not—identify

that Governor McDonnell ever directed or requested

the research studies purportedly sought. Rather, it

reasoned that, because Governor McDonnell sought

information about this research, he engaged in

“official action” in response to benefits the supporter

gave to him. App.73a-74a. But this understanding

of official action amounts to “target{ing] the

political access such [financial] support may afford,”

see McCutcheon, 134 S. Ct. at 1441, not an improper

exercise of official power on government decisions.

To the Fourth Circuit, however, the enjoyment of

mere political access has the “purpose or effect” of

“control[ling] the exercise of an officeholder’s official

12

duties” id. at 1450, or not “allowing governmental

entities to perform their functions,” Citizens United,

558 U.S. at 341, thereby any manifestation of

political access can be an “official act.” Under this

view, this Court’s careful distinction between

politica] activity and official action lacks a difference.

The Fourth Circuit’s holding gives those in Amici

Curtae’s shoes no basis to determine when their

general influence and secured favoritism will send

them to federal prison.

Ill. THE FOURTH CIRCUITS DEFINITION

OF “OFFICIAL ACT” WILL LEAD TO

SELECTIVE PROSECUTIONS.

The Fourth Circuit’s decision is a cautionary

tale in trying to suffocate the “air” of liberty to

extinguish the “fire” of factional advocacy. Cf. THE

FEDERALIST No. 10, at 78 (James Madison) (Clinton

Rossiter ed., 1961). Because lobbying for political

access inheres in American democracy, permitting

open-ended discretion to prosecute abuses of political

advocacy is a remedy that the author of our

Constitution considered “worse than the disease.”

See id. Electoral accountability, checks and

balances—in short, making “[a]mbition

counteract ambition,” id. No. 51, at 322—provides

remedies to abuses in political advocacy that do not

chill political advocacy. They should thus be

preferred to proscription. See City of Columbia v.

Omni Outdoor Advert., Inc., 499 U.S. 365, 379-80

(1991) (“[I]t is obviously peculiar in a democracy, and

pe” aps in derogation of the constitutional right ‘to

petition the Government for a redress of grievances,’

to establish a category of lawful state action that

citizens are not permitted to urge.” And, further, it is

13

“irrelevant” that “a private party’s political motives

[in petitioning the government] are selfish.”) (citation

omitted).

Where legal rules may restrict political

advocacy, they still may not permit a fog that

detriments individuals who engage in “robust[]”

political activity. See McCutcheon, 134 S. Ct. at 1438

(quoting Davis v. Fed. Election Comm'n, 554 U:S.

724, 739 (2008)). Here, the Government relied on the

degree of a supporter’s political interaction with

Governor McDonnell to craft a federal crime. The

Fourth Circuit’s holding leaves Amici Curiae without

a standard to determine when the Government will

“target the general gratitude a candidate may fee!

towards [them], or the political access [their] support

may afford’—despite that being prohibited by the

First Amendment. See id. at 1441; Buckley, 424 U.S.

at 41 n.48.

The Fourth Circuit’s, and the Government’s,

definition of “official action” exists in a reality-free

vacuum. Networking or social functions hosted by

private companies, law firms, lobbying firms, or

individuals «ould become “official acts” if an iavited

public official attends. This “halo effect” theory, if

recognized by this Court, would extend the definition

of an “official act” well beyond its statutory definition

and criminalize the most ordinary of political

interaction. See, e.g., United States v. Urciuoli, 513

F.3d 290, 296 (1st Cir. 2008) (noting that a state

legislator’s “title and (possibly improper) use of

senate letterhead assured him access and attention

but his position guaranteed that in any event and

its invisible force would have existed even if he

emphasized that he was present solely as a paid

14

advocate.”). With a nebulous definition of “official

act,” there are no principled limits left on the

Government's ability to prosecute individuals for

securing political influence.

While the Government insists that this case

only deals with gifts and loans, no principle stops its

reasoning from applying to individual campaign

contributions. Campaign contributions may be the

basis for Hobbs Act and honest services prosecutions.

See McCormick v. United States, 500 U.S. 257, 273

(1991); United States v. Derrick, 163 F.3d 799, 816-17

(4th Cir. 1998). Further, this Court has already held

that a campaign contribution may serve as a “quid.”

See Evans, 504 U.S. at 266-71. And, even when a

campaign contribution is involved, circuit courts hold

that a quid pro quo need not be evinced by express

agreement. See, e.g., United States v. Siegelman,

640 F.3d 1159, 1171 (11th Cir. 2011) (holding that an

“explicit” agreement in the campaign contribution

context “does not mean express.”) (emphasis in

original); United States v. Inzunza, 638 F.3d 1006,

1014 (9th Cir. 2009). Now, the Fourth Circuit

contributes an understanding of “official act” that

can be met not by the term’s statutory definition, but

by any act with the “purpose or effect” of

“influencing” official action as it is defined. Any form

of political activity can now serve as the “quo” to a

campaign contribution’s “quid.” In short, an

individual could be sent to federal prison for

engaging in activity that—from start to finish—is

constitutionally protected.

As was the case here, the mere possibility of a

meeting with Governor McDonnell—not’ even

necessarily obtaining a meeting or any discussion of

15

such meetings between Governor McDonnell and a

contributor—constituted “official action” in light of

the contributor’s visible financial support to the

Governor. Individuals like Amici Curiae could be

sent to federal prison because they robustly

contributed to a candidate and then, months or

years later, sought a meeting with that now-elected

official. This cannot be squared with this Court’s

pronouncements in McCutcheon and _ Citizens

United—let alone the First Amendment.

How may robust political participants like

Amici Curiae know what relationships to avoid if any

relationship untied to any particular official act may

be criminal? When is a politician committing a

federal crime by asking an aide to meet with a

constituent about a request? Is a donor committing a

federal crime by asking an elected official to arrange

a staff meeting? For this Court, the anewer to all of

these questions comes in “official act” being limited

to the exercise of power over a decision made by the

Government. See Sun-Diamond, 526 U.S. at 406-07

(explaining that an 0official’s attendance at

receptions, visits, and speeches that come with gifts

and other tokens, “while they are assuredly ‘official

acts’ in some sense—are not ‘official acts’ within the

meaning of the statute”). Yet for the Fourth Circuit,

these questions do not have definite answers—stay

tuned for the next public corruption prosecution to

find out. See App.54a. (distinguishing Sun-

Diamonds examples as_ involving § “strictly

ceremonial or educational” actions that are “rarely”

illegal, but may be).

The telltale sign of a vague law is its

“jmpermissibl[{e] delegat[ion] [of] basic policy matters

16

to policemen, judges, and juries for resolution on an

ad hoc and subjective basis, with the attendant

dangers of arbitrary and discriminatory application.”

Grayned v. City of Rockford, 408 U.S. 104, 108-09

(1972). Yet the Government's definition of “official

act”—embraced wholesale by the Fourth Circuit—

presumes that every action by Governor McDonnell

in his official capacity, “[w]Jhatever it was, it’s all

official action.” App.263a. The Government cannot

possess the ability to decide when it can relieve itself

of proving a particular official act and still assert

that the phrase’s definition is knowable to those that

must shape their political participation around it.

The Court should take this opportunity to

ensure that the democratic values evinced in

lobbying for political access are not discarded by an

open-ended definition of “official act.” If the only

safeguard against the use of the criminal process to

destroy an_ elected official's career—or a

constituent’s—is a factual determination of “purpose

and effect” based on circumstantial evidence at trial,

that hardly offers public officials—or anyone that

interacts with them—protections against the ruinous

effects of simply defending themselves. What is

more, for public officials, a definition of “official act”

that hinges on prosecutorial discretion and the

ordeal of a trial deprives their constituents of at ieast

two critical services: politicians focused on public

service rather than asserting their innocence, and

the citizens’ ability to use the democratic process to

decide for themselves whether certain exercises of

political access warrant condemnation. As was

discredited at our nation’s founding, the Government

is attempting to extinguish the “fire” of advocacy by

suffocating the “air” of liberty. Cf. THE FEDERALIST

17

No. 10, at 78. Amici Curiae respectfully ask this

Court to keep resisting that effort.

CONCLUSION

For the foregoing reasons, Amici Curiae

respectfully request that this Court grant the writ of

certiorari.

Respectfully submitted,

Gregory N. Stillman

Counsel of Record

Edward J. Fuhr

William J. Haun

Johnathon E. Schronce

Hunton & Williams LLP

2200 Pennsylvania

Avenue, NW

Washington, D.C. 20037

(202) 955-1500

gstillman@hunton.com

APPENDIX

la

Thomas W Adams

President and Chief Executive Officer

Custom Structures, Inc.

John W Ainslie

President of Production

Ainslie Group, Inc.

S. Bradford Antle

Chief Executive Officer

Salient Federal Solutions, Inc.

Elizabeth Atkinson

Founder/Owner

Atkinson Realty

Ed Augustine

President & CEO

Paramount Builders, Inc.

Nathan Dulaney Bachman

Michele Bachmann

Former Congresswoman

United States House of Representatives

John C. Backus

Managing Partner

New Atlantic Ventures

Stanley F Baldwin

Haley R. Barbour

Principal, BGR Group

Former Governor of Mississippi

2a

Walter Cason Barco

President

Inlet Station Marina

J. F Barnwell, Jr.

President/CEO

Design and Production, Inc.

David R. Barrett

President and Chief Executive Officer

Barrett Capital Management, LLC

David Bartholomew

Managing Partner

Bay Water, Inc.

Michael E. Bennett

CFO/Partner

Ourisman Automotive of Virginia

G. Douglas Bevelacqua

Former Inspector General]

Behavioral Health & Developmental Services

Associate Inspector General

Office of the State Inspector Genera!

John F Biagas

President/CEO

Bay Electric Co., Inc.

Scott Bisciotti

President and CEO

Command Post Technologies, Inc.

3a

John K. Bishard

Co-Founder

Bishard Homes and Bishard Development

Corporation

John Bolino

SES (Retired)

Chery! Boyd

Founder and CEO

Surge Force

James M. Boyd

President

Boyd and Boyd, P.C.

Raymond W Breeden, Jr.

President and CEO

The Breeden Company

Jan Brewer

Former Governor of Arizona

Harvey L. Bryant

Former Supervisory Assistant United States

Attorney, Eastern District of Virginia

Commonwealth’s Attorney, City of Virginia

Beach (Retired)

David Byler

President

Byler Construction Co.

Carlos Campo, PhD

President

Ashland University

4a

James L. Chapman, IV

Partner

Crenshaw, Ware & Martin, P.L.C.

Thomas M. Chamberlain, PharmD

Founder and CEO

EdLogics

James S. Cheng

Former Virginia Secretary of Commerce &

Trade

David Cohen

President

Zion Importing and Manufacturing Co. and

Boyers Jewelers

Curtis Dixon Colgate

Colgate Enterprises, LLC

David E. Collier

President

First Atlantic Restoration, Inc.

Douglas Combs

Honorable Sean T. Connaughton

Timothy J. Costen

President

Chesapeake Lawn and Garden

Philip James Cox

Former Executive Director

Republican Governors Association

5a

Virginia Sancilio Cross

Owner/Partner

Atlantic Land and Development Company

Wiliam Barry Cross

President and CEO

Ashdon Builders, Inc.

Stacy Cummings

Vice President and Chief Financial Officer

Priority Automotive Group

Joe Damico

Co-Chairman

Roundtable Healthcare Partners, LLC

John Robert Dawson, Jr.

Campaign Contributor to Governor McDonnell

Master Sergeant, US Marine Corps (Retired)

Kamlesh N. Dave, M.D.

FACC

Peter G, Decker, II]

Partner

Decker, Cardon, Thomas, Weintraub &

Neskis, P.C.

Doug Domenech

Founder

Natural Resources Strategies and Solutions

Former Virginia Secretary of Natural

Resources

6a

Helen Dragas

President and CEO

The Dragas Companies

Captain Ike Eichelkraut

President

Southwest Airline Pilots’ Association

Jasen Eige

President

Atticus Strategies, LLC

Lavonne P Ellis

Retired Professor

Tidewater Community College

Dennis Ellmer

President, Chief Executive Officer

Priority Auto Group

Brian N. Ewald

Capital Area Sales Director

Spectranetics Corp.

Jerry L. Falwell, Jr.

President

Liberty University

Kevin Fay

Vice Chairman and Chief Executive Officer

Alcalde & Fay

Keith S. Fimian

Chairman & CEO

U.S. Inspect, LLC

Ja

Eric Finkbeiner, Esq.

Cornerstone Government Affairs

Scott P Foisy, Ph.D.

President

William-Thomas Consulting, Inc.

Heywood Fralin

Douglas W Fuller

Chairman

Precon Marine, Inc.

Edward S. Garcia, Jr.

Chairman of the Board

The ESG Companies, LLC

F. Gary Garczynski

President

National Capital Land & Development Co.,

Inc.

Greggory R. Garrett

CEO and Managing Director

Gregg Garrett Realty

Joseph E. Gelardi

CEO

Ventrona, LLC

Michael F Gelardi

Executive Vice President

The ESG Companies, LLC

8a

Valerio M. Genta, M.D.

Medical Director

Sentara Virginia Beach Laboratory

Leslie F Gilliam

Vice President

Cumberland Development Co., LLC and

Manager

Richard and Leslie Gilliam Foundation

Richard B. Gilliam, Sr.

President

Cumberland Development Co. LLC.

Jim Goetz

Co-President

Goetz Companies

Bob Golden

Chief Executive Officer

The GBS Group/GBS Connected

William Goodwin

Chairman and President

CCA Industries (Retired)

Rector

University of Virginia

Thomas E. Gottwald

CEO and President

Newmarket Corp.

Robert Y. Green, Jr.

CEO

Caliper Inc.

9a

John Hall

General Manager

Resource Contracting, LLC

Earle Greene Hall

Partner

Bluewater Yacht Sales

Patrick Harlow

Operating Partner

Gridiron Capital

Jill Roseland Harris

President

Jill Roseland Harris, P.C.

Toby Harris

Executive Vice President, Co-Owner

Movement Mortgage

Andrew P Heye

Phil Hightower

Charles T. Hill

Retired Chairman, President & CEO

SunTrust Bank, Mid-Atlantic

George Holm

CEO and President

Performance Food Group

William Horan

President

Operation Blessing International

10a

André Hutchinson

Physical Plant Director

University of Portland

Founder and President

Dillon Stone Corporation (former Virginia

corporation)

Thomas Inman

President

MMI Properties, LLC

Louis A. Isakoff

Senior Vice President & General Counsel

Regent University

Kay C. James

Former Director

U.S. Office of Personnel Management

Robert M. Johnson

Founder and President

The Johnson Group, LLC

Reginald N. Jones

Partner

Williams Mullen

Kal Kassir

Former Business Executive (Retired)

Anthony K. Kesman

Kesman Group LLC

David Kilby

President

FinFit of Virginia Beach

lla

Bobbie Kilberg

Andrea Kilmer

President and CEO

The ESG Companies, LLC

David King

President

King Vineyard

Rick Lalley

CEO

Oceana Sensor, Inc.

Mark Landon

V.P., Health Systems

Salter Labs

John R. Lawson, II

President and CEO

W M. Jordan Company

Gary D. LeClair

Attorney at Law

LeClair Ryan

Deborah Lesyshyn

William E. Woods Realtors

Edward F Lewis

President

Harrisonburg Nissan, Inc. and

Covington Honda & Nissan, Inc.

12a

John Littel

Former Executive VP

Amerigroup Corporation/Anthem, Inc.

Alan Kent Little

Managing Director and CEO

Poseidon Capital Investors, LLC

Gary M. Lisota

President/Chief Executive Officer

Valkyrie Enterprises, LLC

Aubrey Eugene Loving, Jr.

Chairman and Chief Executive Officer

Max Media, LLC

William P Magee, Jr., DDS, MD

Chief Executive Officer and Co-Founder

Operation Smile

Frederic V Malek

Chairman

Thayer Lodging Group

Robert Maroon

Managing Member

The Therapy Network, LLC

Chairman

Health Care Alternatives NPO

Regina M. Marscheider

Executive Director

Stop Abuse

13a

John V Mazza

President

Medallion Swimming Pool Company, Inc.

Vincent J. Mastracco, dr.

Partner/Senior Lawyer

Kaufman & Canoles

Dario O. Marquez, Jr.

President, Chairman/CEO and Co-Founder

MVM

John Marshall

SES (Retired)

Co-Founder and CTO

Gemini II Technologies, Inc. and Marshall

Consulting, Inc.

Ned W Massee

Croatan Advisors

Doug McAuliffe

President

DMS+C

John McConachie

Maureen C. McDonnell

Principal

The McDonnell Group, LLC

Cheryl P McLeskey

President and Chief Executive Officer

McLeskey and Associates, LLC

Alexander B. McMurtie, Jr.

l4a

Keith Miller, Ph.D.

Past President

Lockhaven University and Virginia State

University

Robert S. Miller, III, PE, FNSPE

Partner

MSA, P.C.

W. Sheppard Miller, III

Chairman

KITCO Fiber Optics

William R. Miller, III

Page Atkinson Miyares

Atkinson ERA Realty

Donna S. Morea

Chief Executive Officer

Adesso Group

Scott Morgenthaler

Vice President

J.P Morgan Private Bank

Lowell W Morse

Empsy Marshall Wiliams Munden

Frederick J. Napolitano, Sr.

Chairman of the Board

Pembroke Enterprises, Inc.

15a

Vince Napolitano

President

Napolitano Homes

Dr. Joe Niamtu

Sheila S. Noll

Board of Supervisors

York County Virginia

Richard E. Nottingham

President

Cape Financial Inc.

Jeffrey Novak

Daniel G. Oakey

Chief Executive Officer

Advantus Strategies, LLC

Richard E. Oliveri, Sr.

President

Pembroke Enterprises, Inc.

John Orlando

Chief Executive Officer

Financial Security Group

Martin A. Palacios

President

Zero’s Mr. Submarine, Inc.

Sonny Perdue

Partner

Perdue Partners

Former Governor of Georgia

l6a

Harris Pezzella

Marathon Consulting

Channing A. Pfeiffer

Chief Executive Officer

Tidewater Builaers Association

G. Conaly Phillips

Former Member

Norfolk City Council

Thomas Reynolds Pritchard

President

Petroleum Marketers of Virginia, Inc.

Honorable Rob Quarte]l

Former US Federal Maritime Commissioner

Chairman and CEO

NTELX, Inc.

Saleem Raja

President & CEO

Eco Technologies

James W Rawles, Jr., M.D.

Paul Rehpelz

President

Charlies Seafood Restaurant, Inc.

Frank J. Reidy

Director

Pennsylvania General Energy

17a

Gary L. Rhodes, Ed.D

President

J. Sargeant Reynolds Community College

Cynthia Rickman

Managing Partner

Cynthia Rickman, LLC

Allen B. Rider, III

Colonnade Capital] L.L.C.

E. Scott Rigell

Congressman

United States House of Representatives

M. G. “Pat” Robertson

Founder/Chairman of the Board

The Christian Broadcasting Network, Inc.

Founder/Chancellor/CEO

Regent University

Benjamin Rod Rodriguez

Chief Executive Officer

Bay Mechanical

Mark Rosenfield

Managing Director and President

Poseidon Capital Investors, LLC

Joel Rubin

President

Rubin Communications Group

John H. Rust, Jr.

President

Iron Ox Consulting, Inc.

18a

Arthur B. Sandler

Executive Vice-President

L. M. Sandler and Sons, Inc.

Dwight C. Schaubach

President

Schaubach Companies of Virginia Inc.

Bradley J. Schwartz

President and Chief Executive Officer

Blue Canopy Group, LLC

Whitt G. Sessoms, III

President

Cape Development & Real Estate Company

Jean Siebert

President

Siebert Realty

Robert Clarkson Sledd

Former President

Performance Food Group and

Senior Economic Advisor

Governor Robert F McDonnell

Diane Smalley

Owner

Performance Pilates

Ramsay Smith

President

Pembroke Commercial Realty. LLC

19a

Carl Spraberry

Founder, President, and CEO

Advanced Integrated Technologies

Frank Spadea

Chief Executive Officer

Fanciscus Homes

A. Donald Stallings

Robert M. Stanton

Chairman

Stanton Partners, Inc.

Layne Tarbutton

Tarbutton Associates

Bruce Thompson

President and Chief Executive Officer

Gold Key/PHR Hotels and Resorts

Steven Tibbetts

Chief Operating Officer

The GBS Group

Russell Turner

CDR, U.S. Navy (Ret)

CEO Managing Member

Turner Strategic Technologies

Raul Danny Vargas

President

VARCom Solutions, Inc.

20a

Ross D. Vierra

CEO/President

Axis Global Enterprises, Inc.

Timothy G. Vigotsky

Chairman and CEO

Kelly, Anderson & Associates, Inc.

Jeffrey D. Wassmer

CEO/Chairman

Spectrum Comm Inc.

Howard E. West, Jr.

Principal

Timmons Group

Richard T. West, Jr.

President

Weaver Bros. Insurance

John Whitlock

Chairman

Whitlock Group

Robert Allen Widener

Vice President, Chief Financial Officer

Widener Corporation

Jerry Williams

President

Progressive Graphics

Rosemary Wilson

Virginia Beach City Council

2la

Dorothy L. Wood

President and Chief Executive Officer

JD&W, Inc.

Deborah Cox Wood, Ph.D., N.D.

Chief Executive Officer

Renova Wellness

Michel Zajur

President, Chief Executive Officer

Virginia Hispanic Chamber of Commerce