Albert W. Alschuler, the Julius Kreeger Professor Emeritus at the University of Chicago Law School, contributes the following guest post:

In the United States, the principal federal criminal statute prohibiting the bribery of federal officials, 18 U.S.C. § 201(b), forbids “corruptly” offering or giving anything of value to an official “with the intent to influence any official act.” Yet, as I argue in a recent article, defining bribery primarily in terms of the payer’s “intent to influence” is overbroad. The phrase “intent to influence” not only seems on its face to reach common and widely accepted practices; it also invites speculation about motives and may produce prosecutions and convictions based on cynicism.

There’s an alternative: The American Law Institute’s 1962 Model Penal Code defines bribery as offering, giving, soliciting or accepting any pecuniary benefit as “consideration” for an official act. As a Texas court said of a state statute modeled on this provision, the Code “requir[es] a bilateral arrangement—in effect an illegal contract to exchange a benefit as consideration for the performance of an official function.” More than two-thirds of the states now embrace an “illegal contract” definition of bribery; the federal government and the remaining states should follow suit.

To understand the problems with the “intent to influence” standard for bribery convictions, it’s helpful to consider the origins of this standard. When the common law crime of bribery emerged in England in the early 17^th century, it forbade only the bribery of judges. This common law prohibition emerged in response to the common practice of litigants giving gifts to the judges hearing their cases. The common law outlawed this practice—but at the same time permitted judges to receive gifts from family members and friends who did not “intend to influence” the judges’ work. Thus the common law definition of the crime of bribery covered “bribes” and “presents” given “with intent to influence” the actions of judges.

In the United States, the federal criminal code enacted by the first Congress in 1790 also prohibited only bribing judges. Congress did not enact a general prohibition on bribery of federal officials until 1853; when it did, it borrowed the common law definition of the crime, including the “intent to influence” requirement.

As applied to unelected judges, making the distinction between a lawful gift and a criminal bribe turn on the donor’s “intent to influence” seems sensible. True, the standard requires an assessment of a benefactor’s motives, but it does identify the gifts to unelected judges that should be punished. This standard makes little sense, however, when applied to elected officials who must collect campaign contributions to run for office, and who are appropriately subject to persuasion in social settings very different from a courtroom. Political contributions often are given in the hope that they will make their recipients more receptive to the donors’ agendas. So are lunch invitations, speaking invitations, contributions to favorite charities, and invitations to seminars, conferences, and golf outings. Ethical codes and campaign finance regulations appropriately limit this kind of influence seeking. Someone who complies with ethical codes and campaign finance regulations, however, should not go to prison simply because he or she bought lunch for an official “with intent to influence.”

The modern version of the federal anti-bribery statute requires not only that the donor have the “intent to influence,” but also that he or she offer the payment or gift “corruptly.” One might have thought that the word “corruptly” (added in 1962) would tame § 201(b), but many federal courts see this word as doing no work at all. They have made it redundant by declaring that a person acts corruptly whenever his or her conduct and mental state establish the other elements of bribery. Other courts define the term in language that is just as fudgy, open-ended, and evaluative as the term itself. They use words like “improper,” “wrongful,” “evil,” and “bad.” No federal court has embraced the common law meaning of “corruptly” by reading this word to require knowledge that an actor was violating established norms of legitimate conduct.

The Model Penal Code’s “illegal contract” definition of bribery is more suitable. For one thing, this concept of bribery probably matches the common understanding of this crime. For most people, “bribery” seems to denote an actual or contemplated exchange of something of value for favorable governmental action, not simply a unilateral act intended to make favorable action more likely. (To be clear, the “illegal contract” standard still allows for the conviction of an individual acting alone, because the crime covers offers and solicitations, as well as transactions in which one party merely feigns agreement. An offender, however, must seek a bargain with another person; it is not enough to provide a gift with intent to influence.)

Furthermore, because the “illegal contract” concept applies equally to both parties to a corrupt transaction, it solves a problem that has dogged the “intent to influence” concept. “Intent to influence” describes the mental state of a bribe giver but does not specify the mental state of a bribe taker. The language of the current statute focuses on the bribe taker’s own objective rather than on his or her knowledge of the other party’s. Yet this language appears to validate a strange defense: “I never agreed or intended to be influenced, for I had decided to do what the bribe giver asked before I took the money.”

The U.S. Supreme Court seems to recognize the problem: In a series of decisions beginning in 1991, the Court has transformed the original meaning of “intent to influence.” With a shoehorn and a shove, it has fit the “illegal contract” concept of bribery into our archaic federal “intent to influence” statutes. The Supreme Court wrote in 1999, “Bribery requires intent ‘to influence’ an official act or ‘to be influenced’ in an official act…. In other words, for bribery there must be a quid pro quo—a specific intent to give or receive something of value in exchange for an official act.” “Intent to influence” and “exchange” are not different words for the same thing, but the Court’s interpretation made the “intent to influence” standard serviceable in circumstances that differ substantially from those in which it arose.

Although the Supreme Court has embraced the “illegal contract” concept of bribery, jury instructions in many lower courts continue to recite the language of federal bribery statutes without elaboration. Juries in these circuits rarely hear the words “quid pro quo” or “exchange.” They hear only that bribe-givers and bribe-takers must intend to influence or to be influenced. Many defense attorneys are so inept that they fail to complain about these instructions. Especially from the perspective of the jury box, the federal law of bribery is a muddle. Congress should remedy the situation by amending the federal statute to require not that the donor (corruptly) intend to influence the recipient official, but rather that the donor give or offer something of value as consideration for the recipient’s performance of an official act.