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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0623%3A12

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2016

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0623%3A12. Public record. Not legal advice.