As bizarre as the U.S. presidential campaign has been so far, it may get even more so this summer. There is a chance (although maybe not a probability) that the Republican Party will have its first contested convention since 1976. If no candidate has a majority of delegates on the first ballot, then many “bound delegates” can switch their vote to any candidate for the nomination (here is a brief primer on how a contested convention might work). If that happens, might some candidates (or, more likely, their surrogates) actually try to buy delegates’ votes—offering them cash or other crude material inducements in exchange for support? Donald Trump recently told a friend—apparently (and hopefully) in jest—he would “buy the delegates” if he did not obtain a majority in the primaries.
Such conduct would certainly be corrupt in the traditional sense. Believe it or not, however, such vote buying might not be against the law. Buying votes in a federal election is certainly illegal. But, as a recent Bloomberg article explained, “There is nothing in the [Republican National Committee]’s rules that prohibits delegates from cutting a deal for their votes, and lawyers say it is unlikely that federal anti-corruption laws would apply to convention horse-trading. (It is not clear that even explicitly selling one’s vote for cash would be illegal.)” Similarly, when respected former Republican National Committee counsel Ben Ginsberg was recently asked whether an unbound delegate to the convention could legally accept a suitcase full of cash in exchange for a vote for a candidate for the nomination, Ginsberg replied, “That is a great legal question that I’m not sure there’s an answer [to]. It’s not official  action.” (Ginsberg did, however, emphasize that most lawyers “would not want to be defending somebody who just took a suitcase of cash for a vote at a convention.”)
So while outright vote buying at a contested convention is not exactly likely, it’s a serious enough concern to make it worthwhile to assess the risks, the current law that might apply, and the steps that Congress and the political parties can take to do something about this concern.
There are a few federal criminal statutes a U.S. Attorney might use against a delegate who accepted cash to vote for a nominee in a brokered convention. But none are explicit in covering that sort of transaction. And even if a federal judge interpreted one or more statutes to prohibit delegate vote buying, that decision would likely come long after the quid pro quo occurred, potentially allowing a candidate to win the Republican nomination by means that are later ruled illegal. (I am not convinced a concerned candidate or citizen could obtain a declaratory judgment determining that federal law prohibits delegate vote buying in advance of the convention.) At that point, however, it would probably be too late to go back and redo the nomination process.
Given the potential gravity of that situation, Congress should take steps to explicitly prohibit delegate vote buying, and the party committees should prohibit it in their own rules, too.
Let’s start with a quick review of the laws currently on the books. The federal law that some think comes closest to expressly prohibiting candidates from buying delegate votes at a party nominating convention is 18 U.S.C. § 600, which reads, “Whoever, directly or indirectly, promises any employment, position, compensation, contract, appointment, or other benefit, provided for or made possible in whole or in part by any Act of Congress, or any special consideration in obtaining any such benefit, to any person as consideration, favor, or reward for any political activity or for the support of or opposition to any candidate or any political party in connection with any general or special election to any political office, or in connection with any primary election or political convention or caucus held to select candidates for any political office, shall be fined under this title or imprisoned not more than one year” (emphasis added).
The text might cover delegate vote buying, but it’s not clear whether the “Act of Congress” proviso applies to the entire section or whether the “any special consideration” applies to the second portion. If someone as knowledgeable about election law as Ben Ginsberg isn’t convinced this statute prohibits delegate vote buying, it’s likely a candidate with access to experienced counsel could mount a serious legal argument that this provision relates entirely to improper use of federal funds (given the Act of Congress clause), and the candidate would have the rule of lenity (the principle that ambiguities in criminal statutes are resolved in favor of the defendant) on his side. What’s more, the language about political conventions predates the 1976 amendments to the statute, which were enacted primarily to bolster provisions (§ 600 along with § 601) that the Senate Judiciary Committee defined as “protecting federally-funded employment and programs from partisan favoritism.” Given the ambiguity of the text, the Congressional intent behind § 600 from the legislative history, and the rule of lenity, I think a delegate who sold his or her vote at the convention probably has a winning hand (the trump card, even) against a charge under § 600.
Delegate vote buying might implicate a few other federal criminal statutes, but none of them expressly prohibit the conduct:
- First, the federal bribery statute, 18 U.S.C. § 201, covers only bribing a federal “public official,” and § 201’s definition of “public official” excludes delegates to party nominating conventions. (Although the word, “delegate” appears in the definition, the context suggests that this term does not refer to a delegate to a national party nominating convention.)
- Second, there is an argument that the Hobbs Act applies to a delegate, but it does not seem to me that a delegate could ever be deemed to act “under color of official right” because a political party is not a state actor in the conventional sense. Indeed, the Supreme Court has generally (where unconstitutional discrimination is not involved) instructed that federal courts should stay out of the business of political parties, noting in O’Brien v. Brown (a challenge to delegate seating decisions at the 1972 Democratic National Convention) the “large public interest in allowing the political process to function free from judicial supervision.”
- Third, the prohibition on buying or selling public office does not appear to apply either, because a nomination is not a public office.
Of course, there is an argument to the contrary with respect to all of these statutes and others, which Brian Svoboda (a partner at the law firm Perkins Coie) makes ably. Yet given the uncertainty about whether any current federal law in fact prohibits delegate vote buying, and the risk that a nominee might buy the nomination before a judge has the chance to clarify the law, Congress should pass a simple fix to make express that delegate vote buying is illegal. The easiest way to do this would either be to include delegates to party national conventions in the definition of public official in § 201, or to remove the Act of Congress provision from § 600 and broaden that statute to cover quid pro quo activities not associated with federal funding but associated with political activity.
Of course, knowing that Congress is unlikely to act in the next few months, it is equally important that the respective national parties amend their own rules to prohibit delegate vote buying so that delegates who sell their votes for the nomination are stripped of their seats on the convention floor.
Without these changes, if we indeed see a contested convention this summer, we should not be surprised if it descends into the dirtiest of dirty politics: money changing hands in exchange for votes.