In a recent post Phil spotted an apparent anomaly in U.S. anticorruption laws: these laws make it is easier to get away with bribing an American politician than a non-American one.  As Phil explains, the difference arises from what seems to be the higher burden the prosecution must meet to prove that what is ostensibly a campaign contribution is in reality a bribe when the recipient is an American politician rather than a non-U.S. officeholder.

When the payment is to an American politician, the prosecution must, in the words of McCutcheon v. FEC, the Supreme Court’s most recent decision interpreting the Federal Election Campaign Act, prove “quid pro quo corruption,” which the Court defines as “a direct exchange of an official act for money.” By contrast, when the challenged payment is to a non-American office holder, the Foreign Corrupt Practices Act merely requires that the prosecution establish that the money was “corruptly” given for the purpose of “influencing any act or decision [taken in an official capacity].” Phil takes the absence of an express requirement of a quid pro quo in the FCPA as easing the prosecutor’s burden. But is Phil’s reading of the two laws correct?

Is it easier to prove bribery under the FCPA than the FECA?  In other words, is the prosecution’s burden lighter when all that must be shown is money was donated “corruptly” to influence an official?  Does the need to demonstrate a “quid pro quo” raise the bar?

One might expect that these seemingly straightforward questions of interpretation would by now have been settled.  But one would be quite wrong.  Take the cases interpreting section 666 of the federal criminal code, a law outlawing bribery in federal programs.  It provides that a state or local official commits a crime if he or she “corruptly gives, offers, or agrees to give anything of value to any person, with intent to influence or reward an agent of an organization . . . in connection with any business, transaction, or series of transactions of such organization.”  Like the FCPA provision, the statute makes the “corrupt giving” the gravamen of the offense, and like the FCPA provision it contains no mention of any requirement of a quid pro quo.  Yet, as a fine 2013 student law review article notes, three federal appeals courts have expressly held that the prosecution must establish a quid pro quo while three have expressly held a quid pro quo does not need to be shown, and two others have equivocated on the issue.

As Lowenstein and Hasen show in the chapter on bribery in their casebook on election law, the case law interpreting other federal and state antibribery laws is equally confused.  Courts sometimes hold that a quid pro quo must be proved and sometimes not.  The confusion arises, they explain, from the conflicting demands the courts face. On the one hand, there is the need to set forth a clear standard for what is and is not a bribe, one that a strict quid pro quo requirement meets. On the other side courts often face situations where the requiring a showing of a quid pro quo requirement would let a case of obvious corruption escape sanction.  Hence the oscillation between requiring and rejecting the need to show a quid pro quo.  And hence the reason why a quid pro quo is often the deus ex machina of anti-bribery law.  As with any deus ex machina, it often serves to resolve a seemingly unsolvable problem by a contrived intervention.

Phil was right to point out the anomaly between the FECA and FCPA and also right to hint in his closing paragraph that it demonstrates the inherent difficulty associated with defining corruption.  Thanks for a nice post and for prompting me to write this one.