01/17/2009 05:12 am ET | Updated May 25, 2011

Is Governor Blagojevich's Conduct Any Different From Those in Congress?

The outrage expressed over Illinois Governor Rod Blagojevich's conduct is a little hard to swallow. Of course, attempting to sell a U.S. Senate seat is bad. Ditto, trying to force a newspaper to fire a testy newspaper editor. And trading government action for campaign contributions? I am shocked, shocked, shocked, to learn such back scratching takes place in the halls of government.

Isn't trading official action for campaign contributions how our system works? Or did I miss the excellent foreign service exam scores of the large donors who become ambassadors? And all the lobbyists who donate exclusively to members of Congress on the committees with jurisdiction over their issues? Simply endorsing sound policies. Defense contractors contributing generously to appropriators who generously earmark? Undoubtedly a coincidence.

By the mere fact of issuing a criminal complaint, prosecutors are claiming the Blagejovich case is somehow different, but I don't see why.

Over half of the complaint is filled with allegations of the governor trading contracts and government jobs, not for cash, gifts or other personal benefits, but for campaign contributions. While it is not unprecedented for the Department of Justice to prosecute a bribery case if it can prove a quid pro quo between an official act and a campaign contribution, the general policy has been to prosecute politicians who are personally enriched. In the Abramoff scandal, government officials have been charged with accepting meals, tickets to sporting events, and travel in exchange for official acts. So too, former Rep. Randy "Duke" Cunningham (R-CA) accepted antiques, Persian rugs and help with his mortgage, while Rep. William Jefferson (D-LA) was found with $90,000 in his freezer. None of these cases were predicated upon campaign contributions.

Here though, setting aside the section of the complaint in which the governor is alleged to have sought a job for himself and corporate board positions for his wife in return for awarding the U.S. Senate seat, Governor Blagojevich is alleged to have traded campaign contributions for official acts. If the Department of Justice is prepared to prosecute this case, can we expect to see the indictment of Rep. Jerry Lewis (R-CA) and Cerebrus Capital Management for exchanging $133,000 in contributions for a $160 million for a Navy project critical to the firm? Will Rep. John Murtha be prosecuted for the seemingly endless array of earmarks he has arranged for an equally endless slew of defense contractors? Will former Majority Leader Tom DeLay finally be called to account for the infamous K Street Project? Does this mean that we could even see Charlie Rangel prosecuted for trading a tax break to Nabors Industries in return for contributions by Nabors' chief executive officer to the Charles B. Rangel Center at City College, New York?

The only obvious distinction between Governor Blagejovich's conduct and these other cases is that the governor made his demands explicitly. If all of these politicians have the same mens rea, however, i.e. the same intent to trade government action for campaign contributions, why is Governor Blagejovich more or less blameworthy? Really, wasn't he just less subtle? And perhaps unlucky? If the FBI tapped the phones of many other politicians or bugged their campaign offices, I'd venture to guess we might hear similar conversations to those revealed in the Blagojevich complaint.

The governor also lacks one not to be underestimated advantage of members of Congress: the benefit of the Speech or Debate Clause in the Constitution. This clause protects members of Congress from having their own official acts used against them to obtain indictments or convictions. Rep. Rick Renzi has been charged with using his position on the House Resources Committee to corruptly engineer a land swap for his personal financial benefit. Like Gov. Blagojevich, Rep. Renzi had his phone tapped by the FBI, but in a twist, the House Counsel's Office has filed a brief arguing that Rep. Renzi's indictment should be dismissed because prosecutors improperly listened to Rep. Renzi's phone calls and overheard discussions about legislative action in violation of the Speech or Debate Clause.

There is no excuse for Governor Blagojevich's conduct, but it doesn't seem much worse than what goes on in our nation's capitol every day.