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.