Last month’s hung jury in the trial of New Jersey Senator Robert Menendez, coming hard on the heels of appellate court decisions to vacate the convictions of former U.S. Congressman William Jefferson and New York state legislators Dean Skelos and Sheldon Silver, has increased public attention to domestic U.S. anti-bribery laws—and the Supreme Court’s interpretation of those laws. As Professor Zephyr Teachout puts it, the Court, beginning in the 1999 case Sun-Diamond Growers and continuing up through last year’s decision in McDonnell, has steadily “hollowed out” U.S. anti-bribery laws, making it much more difficult to convict “anyone but the most inept criminals.”
Now, some of the recent commentary, particularly on the impact of the McDonnell case, may overstate things a bit. As Maddie pointed out in a recent post, the fact that the Skelos and Silver convictions (and, she might have added, the Jefferson conviction) were vacated in light of McDonnell doesn’t necessarily imply that the conduct alleged in those cases is now legal. Rather, the appellate decisions held that the jury instructions were improperly phrased, and left the door open for a retrial (which will occur in these other cases, even though the government declined to retry McDonnell). And we don’t really know how much of an effect the Supreme Court’s decision in McDonnell or other cases affected the jury’s inability to reach a verdict in Menendez; it’s possible that even with a jury instruction identical to the one found deficient in McDonnell, some of the Menendez jurors would have voted to acquit. All that said, there are certainly good reasons for concern about the seemingly narrow scope of U.S. anti-bribery law.
Some of this blame, as Professor Teachout persuasively argues, can be laid at the feet of the Supreme Court. Indeed, I argued that McDonnell’s conviction should have been affirmed, and criticized the Court’s unanimous decision to vacate it. That said, I do think there’s an argument in favor of the Supreme Court’s ruling in McDonnell, at least if the holding is read narrowly as concerning the phrasing of the jury instructions. Likewise, in Sun-Diamond Growers, the Court’s holding is actually quite plausible as a reading of the unlawful gratuities statute. (The Court held that a conviction under this statute, which prohibits corruptly giving anything of value to a public official “because of any official act” performed by that official, requires the government to show a connection between the gift and a specific official act, rather than relying on the more general claim that the recipient is in a position to make decisions that affect the giver’s welfare. The Court’s interpretation of the statutory language, while contestable, is certainly reasonable.)
Moreover, if we’re looking for an institution to blame for the current state of U.S. anti-bribery law—or to lobby for improvements in that law—the Supreme Court is perhaps not the only target. There’s also the U.S. Congress, which could, and arguably should, amend the hodge-podge of anti-bribery laws to fill some of the gaps that we find in current law, as interpreted by the Supreme Court. After all, though the Court has dropped occasional troubling hints about possible constitutional concerns with a broad reading of the anti-bribery statutes, most of the Court’s rulings in this area, in contrast to the related but distinct campaign finance context, are statutory rather than constitutional. And that means that Congress could conceivably step in to fix the problem.Indeed, this has happened before in this area. Prior to 1988, no federal law clearly prohibited bribery involving state or local officials (at least if no federal funds were involved). But federal prosecutors routinely brought cases against both the bribe-taking officials and those who bribed them under the mail and wire fraud statues, on the theory that bribery and other forms of corruption counted as a “scheme or artifice to defraud” (the statutory language), because public corruption was a kind of scheme to deprive the public of their intangible right to the “honest services” of their public officials. That interpretation was attractive as a policy matter but entailed a real stretch of the statutory language—a stretch that the U.S. Supreme Court ruled went too far in a 1987 case called McNally v. United States. McNally held that the “scheme or artifice to defraud” language in the statute applied only to schemes to defraud victims out of money or other tangible property. But in 1988, the U.S. Congress passed (and the President signed) a statute endorsing the “honest services” fraud theory. That statute amended the mail and wire fraud statutes to say explicitly that “the term ‘scheme or artifice to defraud’ [as used in those other statutory prohibitions] includes a scheme or artifice to deprive another of the intangible right of honest services.”
So, perhaps those of us who are distressed by the Supreme Court’s crabbed interpretations of the anti-bribery statutes currently on the books (or who find those interpretations unsatisfying as a policy matter even if they are legally plausible) should start thinking about generating and advocating amendments to the anti-bribery statutes, ones that would address the gaps and limitations of existing law, and perhaps also take some steps to clarify certain ambiguities and bring a bit more order to the current mishmash of separate statutes that touch on this issue.
Now, a sensible reader might well ask: What’s the likelihood that the U.S. Congress, particularly the current Congress, will actually pass any amendments to the anti-bribery statutes–amendments that strengthen rather than weaken those laws? My answer is: Very, very low. But not zero. And probably a bit higher than the odds that the Supreme Court will be much influenced by journal articles and blog posts complaining about their overly narrow interpretations of the existing statutes. And while it’s true that members of Congress may be reluctant to enact stricter laws that could ensnare themselves and their political allies, it’s worth keeping in mind three potentially countervailing considerations:
- First, people (including voters) really don’t like bribery, so pushing for stricter bribery laws might be a winning issue for at least some members of Congress.
- Second, much as we have a tendency to be extremely cynical, it’s quite possible that some members of Congress really do see an important distinction between their own fundraising activities and conduct that looks much more like rank corruption.
- Third, enterprising lobbyists might exploit partisan instincts by subtly emphasizing, to each relevant audience, the corruption of its partisan adversaries. (That is, when lobbying Republicans, one can talk a lot about Menendez, while when lobbying Democrats, one can talk a lot about McDonnell.)
Again, I’m not so naïve as to think there’s much chance, at least in the short term, that we’ll see significant legislative amendments to federal anti-bribery laws. But if it really is true, as many have argued, that our current laws, as interpreted by the Supreme Court, are too weak, then it seems to me that now might be a good time to start developing a package of potential amendments, and working with lobbying and advocacy groups to try to get this on the legislative agenda—if only to lay the groundwork for the future. I haven’t started the hard work of actually doing this, but I hope to do so soon, and I’d encourage others to do the same.