Last March, while President Trump and House Speaker Paul Ryan were trying—ultimately unsuccessfully—to muster enough votes for the first version of their proposed Obamacare replacement, the American Health Care Act (AHCA), the Koch brothers’ political organizations announced that they would set up a fund to provide substantial campaign support to all Republicans who voted against the AHCA (which the Koch brothers opposed on the grounds that it didn’t go far enough in repealing the health insurance expansions brought about by the Obamacare). Stripped to its essence, the Koch brothers said to Republican House Representatives: “If you vote the way we want on this bill, we’ll donate (more) money to your campaigns; if you don’t, we won’t.”
Was that offer a violation of the federal anti-bribery statute? In a provocative essay, Louisiana State University Law Professor Ken Levy says yes, it was. Professor Levy reasons as follows: The anti-bribery statute, codified at 18 USC § 201(b), prohibits any person from “giv[ing], offer[ing] or promis[ing] anything of value to any public official … with intent to influence any official act.” The Koch brothers certainly “offered” or “promised” campaign donations, and campaign donations indubitably count as a “thing of value.” Moreover, the Koch brothers made this promise in order to influence a vote in the legislature, clearly an official act. Moreover, as Professor Levy points out, although many people seem to think that the Supreme Court has ruled that providing campaign donations in exchange for votes is constitutionally protected, in fact the Court has held the opposite: promising campaign donations in exchange for an “official act” does qualify as an unlawful bribe, so long as there’s a quid pro quo; in the absence of a quid pro quo, Congress’s power to regulate campaign donations or expenditures is more limited. Thus, all the elements of a §201(b) violation are present, and at least in principle, the Koch brothers could be prosecuted, convicted, and sentenced to a prison term of up to 15 years and/or a fine of up to three times the value of the thing of value offered (which this case could run into the tens of millions of dollars).
Professor Levy’s legal analysis seems, at least on a first reading, to be correct. At the same time, I find it unthinkable that any federal prosecutor—not just Jeff Sessions, but even someone like Preet Bharara—would bring criminal charges in this case, or that any judge would allow a conviction to stand. Professor Levy’s provocative essay has forced me to think a bit harder about why that is. The fact that I can’t imagine a federal bribery case could or should be brought against the Koch brothers for their announced campaign support plan, despite the fact that the conduct seems clearly to violate the letter of the law, suggests that something has gone seriously awry with how U.S. law, and U.S. political culture, think about the relationship between campaign donations, political speech, and criminal bribery.
In working through why I feel like Professor Levy’s analysis of the law here is both clearly correct, and at the same time can’t possibly be correct, perhaps it’s helpful to consider the implications of his argument about the meaning of § 201(b) for other federal criminal offenses. The next section of the very same statute, §201(c), creates the offense of “unlawful gratuities,” which resembles the bribery offense but, crucially, does not require a quid pro quo. Rather, a party violates the prohibition on paying unlawful gratuities when he or she “gives, offers, or promises anything of value to any public official … for or because of any official act”; the Supreme Court has read the “for or because of” language to require a sufficient nexus to a specific official act, but the statute does not require an explicit quid pro quo, or even a promise. This creates a conundrum, if we treat campaign donations as a “thing of value.” Suppose, for example, that the Koch brothers had never made any overt promise, but they had made their opposition to the ACHA known. Suppose further that the first version of the AHCA had come up for a vote, and in the next election cycle the Koch organization gives substantial sums only to Republicans who had voted against the bill, even though in the past they had donated to all Republicans. Could a prosecutor charge the Kochs with violating §201(c)? I assume Professor Levy would have to say yes. After all, in that hypothetical scenario the Kochs would have given something of value to public officials (the campaign contributions), and even though we don’t have a smoking gun, the circumstantial evidence seems strong enough for a jury to conclude, beyond a reasonable doubt, that those donations were made “because of” a specific official act (the “no” vote). But doesn’t that seem weird? People support candidates who do things they agree with—and for single-issue voters or donors, that might be one specific vote on one specific bill. Do we really think that people who act this way are committing a federal crime?
Things get weirder still when we keep in mind that the “anything of value” category in both the bribery offense and the unlawful gratuities offense is in principle quite broad. It could include not only monetary campaign donations but also, for example, an offer to mobilize other voters, for example through endorsements. To illustrate, suppose that the National Rifle Association says that it will only endorse legislators who oppose a pending gun control bill. Has the NRA committed a criminal bribery offense? Maybe the answer in that hypothetical example is that the Constitution’s Free Speech Clause would bar the application of the bribery statute, since an endorsement is closer to “pure political speech” than campaign expenditures, and so even the government interest in fighting quid pro quo corruption is not strong enough to limit such speech. Perhaps. But we can come up with other examples that also seem problematic. Suppose, for instance, that I’ve been a regular volunteer at my congressional representative’s phone bank in every election for the last dozen years, but I hear that she’s thinking of voting for a bill I think is terrible, and I call up her office and leave a message saying that if she votes for this bill I’ll never volunteer for her again. Did I just commit a federal crime? After all, I offered something of value (my unpaid campaign work) in order to influence an official act (a legislative vote), and I framed the offer as an explicit quid pro quo.
What’s weird about these examples, at least for me, is that when it comes to taking “ordinary” political action in support of (or in opposition to) a candidate for office, a quid pro quo doesn’t necessarily seem like such a bad thing. If you vote for this bill, I’ll vote for you. If you vote for this bill, I’ll endorse you. If you vote for this bill, I’ll volunteer for your campaign. If you vote for this bill, I’ll give services to your campaign. If you vote for this bill, I’ll give money to your campaign. If you vote for this bill, I’ll tell all my friends to vote for you. If you vote for this bill, I’ll buy an ad in the newspaper telling everyone to vote for you. And so forth. To me, none of these statements seems inherently reprehensible, even though they all involve a quid pro quo, or a but-for relationship with an official act. As long as everyone in the democracy has roughly equal leverage, I’d actually be fine with everyone publicly announcing their own quid pro quos, just like the Koch brothers did. Things start to get problematic, at least from my perspective, when certain individuals or entities have such disproportionate resources at their disposal that their quid quo pro offers mean several orders of magnitude more than others’ offers do. The U.S. Supreme Court has flatly rejected a “political equality” rationale for campaign finance regulation, suggesting that the prevention of quid pro quo corruption (or its appearance) is the only constitutionally legitimate justification for such regulation. I’m actually sympathetic to some aspects of the Court’s reasoning, but one of the things that Professor Levy’s essay so usefully drives home (even if this was not his intent) is that, at least when we’re talking about political action—as opposed to the provision of private benefits—it may be inequality of resources, not the presence or absence of a quid pro quo as such, that is the real problem.
Yet another instance perhaps of corporate interaction with U.S. officials being viewed differently than corporate interaction with “foreign officials” under the FCPA. For numerous examples, below is a link to an article titled “The Uncomfortable Truths and Double Standards of Bribery Enforcement.”
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Excellent essay. I pretty much agree with everything Prof. Stephenson says here in response to my article on CounterPunch (“The Right’s Selective Enforcement of Criminal Law”).
I’ve also learned something. Prof. Stephenson has helped me to see that the “anything of value” part of 201(b) and (c) is way too broad. My thought now is that it should be narrowed to money and items with significant monetary value (for example, stock options and expensive gifts); all other kinds of return favors – for example, endorsements and campaign efforts – should be explicitly excluded. (Of course, there’s no use proposing this revision to a Republican Congress; only when there is a Democratic majority again will it be feasible.)
Descriptively, Prof. Stephenson is spot on. Given how infrequently the bribery/gratuities statutes are enforced and their very narrow construction when they are enforced, especially after McDonnell and Citizens United, very rich campaign donors will almost never be prosecuted under 201(b) and/or (c), even if their actions violate the letter of these statutes. Prosecutors and judges have clearly tailored their interpretation of 201(b) and (c) to fit Citizens United and modern campaign-financing practice more generally.
Still, normatively, I think that this is all very wrong. (And my sense is that Prof. Stephenson mostly agrees with me here.) Because we now live in a country where there are effectively no limits on how much rich individuals and organizations may donate to campaigns, they have disproportionately more power than the rest of us. Too many of them use their wealth (which, incidentally, most of them did not earn from hard and constructive work) to manipulate politicians into serving their needs (really wants) rather than the needs and wants of the vast majority of much less affluent constituents whom they are supposed to represent.
It might help a little to vote all the “crooked bums” out. But until at least Citizens United and (I think) McDonnell are overturned, the same problem would likely infect the fresh new crop of candidates. No matter how much integrity a given candidate may start out with, it’s very hard to say no to hundreds of thousands or millions of dollars. And once she gets this first “fix,”, it becomes that much harder to say no to the next one. Money is a drug, and power corrupts…
In the end, we have reached the point where the top 1% bribing our politicians, whether legally or illegally, is standard practice. As many others – like Bernie – have warned: this is not democracy; it’s plutocracy. This isn’t good.
One reason for the problem is, as Professor Alschuler pointed out in an April 2016 post, that the general antibribery law was lifted wholesale from the statute written to outlaw bribing judges. https://globalanticorruptionblog.com/2016/04/27/guest-post-fixing-the-federal-definition-of-bribery-from-intent-to-influence-to-illegal-contract/
This is indeed a necessary debate that we, as scholars of corruption, should be engaged in. What makes a specific behavior corrupt, while making another one a legitimate form of interest articulation? I believe James C. Scott hits the nail on the head in his paper Handling Historical Comparisons Cross-Nationally when he discusses the difference between influence at the input and output stages, positing that when “[i]nfluence before legislation is passed, it often takes the form of ‘pressure-group politics’; influence at the enforcement stage often takes the form of ‘corruption’ and has seldom been analyzed as the alternative means of interest articulation which in fact it is.” On top of this, we have the difference between individual and group influence at the core of our current handling of corruption, for, as Arnold J. Heidenheimer describes in Perspectives on the Perception of Corruption, “[t]he giving of gifts to public officials and nepotism may be regarded as “black,” or punishable, if favors are exchanged at the level of the individual official of firm, but their equivalents are likely to be tolerated if the funds in question are “collectivized” through devices such as party campaign treasuries.” Thus, it’s probable that our definition of corruption is biased towards implicitly condoning patterns of modern democracy, drawing the line (somehow at random) at some point between private and collectivized interests in the input stage of the policy making process.
Reblogged this on Matthews' Blog.
The cultural/sociolegal issues you mention relate to the way we have come to focus on corruption as primarily an issue of individual rights/behavior rather than institutional integrity and public trust. As Teachout argues, equal representation is a public good that isn’t adequately or feasibly protected by reactive efforts to ferret out quid pro quos. Just as judicial ethics rules safeguard institutional integrity and mitigate the burdensome exercise of evaluating corrupt intent, would the scenarios you describe (volunteering, endorsements as “things of value”) not be more effectively addressed by classifying behavior in prophylactic campaign finance/ethics rules?