Yesterday Matthew wrote that using “passive bribery” to describe a public official’s acceptance of a bribe was an abuse of language. His complaint: “passive” suggests a bribe taker is less culpable than a bribe payer: “’Passive bribery,’” he explained, “sounds less bad, and less serious, than ‘active bribery,’ even though most people would view the two parties to the bribe transaction as equally culpable.”
Calling bribe-taking “passive” is indeed an abuse of language. But it is not, as Matthew’s headline reads, “An Almost Entirely Trivial Complaint.” Nor is the abuse “No big deal” as he writes in the post. To see why, consider two different “passive bribery” scenarios.
In scenario one, a government employee promises a company it will win a forthcoming tender for public contract though not qualified to do the work if the company pays the employee a bribe. In scenario two, a government employee demands a bribe to enroll a child in a public school that by law the child is entitled to attend without charge.
Affixing the term “passive bribery” to the government employee’s conduct in both scenarios masks an important difference. In the public contract scenario, the bribe payer gets something to which it is not entitled. In the public school scenario, parents must pay for something to which they are entitled by law.
In both scenarios, the government employee is guilty of taking money for violating his or her duties as a public servant. But is the level of culpability the same? That is, should the punishment for both offenses be the same? Or should demanding a bribe from a citizen for something to which a citizen is entitled be punished more severely? Suppose instead of a free public education, a parent had to pay a bribe to secure life-saving treatment for a child?
As many will recognize, the difference between the two scenarios is commonly put as the difference between bribery and extortion. A public official demanding money to provide something to which a citizen is entitled is extorting the citizen; one asking for money to provide something to which the citizen is not entitled is soliciting a bribe. While, as James Lindgren explains in the seminal article on the subject, the difference between the two is not always clear and has confused American and British judges over the centuries, there remains at bottom a real and important distinction between extorting money from an innocent citizen and taking a bribe from a guilty one. A distinction lost when both acts are labelled “passive bribery.”
Moreover, the one scenario you describe is not even captured by the FCPA’s anti-bribery provisions because of the facilitation payments exception (not to mention the corrupt intent element).