When Are Quid Pro Quo Campaign Contributions Corrupt? When Are They an Embodiment of Democracy?

Recent developments in the nomination of Brett Kavanaugh to the U.S. Supreme Court have been dramatic, to say the least. As I type this, most of the discussion of Judge Kavanaugh’s nomination has focused on allegations that, while in high school, he and a friend sexually assaulted a 15-year-old girl. Events are moving so fast that by the time this post is published (which will likely be a few days from now, since I typically write these things in advance), there may be more new developments. But I actually don’t want to talk here about the issues that have (rightly) taken center stage with respect to this nomination. Rather, I want to discuss another controversy connected to Kavanaugh’s nomination that had been getting a fair bit of press until it was overshadowed by the disclosure of the sexual assault allegations. That controversy concerned a coalition of civil society groups in Maine that used crowdfunding to raise over $1 million, and declared that they would donate these funds to the opponent of Republican Senator Susan Collins of Maine the next time she is up for re-election (in 2020) if she votes to confirm Judge Kavanaugh to the U.S. Supreme Court.

Is that corrupt? Senator Collins and several of her political allies think so. Senator Collins denounced the campaign as “bribery or extortion.” Other commenters agreed (see here and here). And a group called the Foundation for Accountability and Civic Trust (FACT) wrote to the Department of Justice (DOJ) to call for an investigation of the groups that organized the crowdfunding campaign, alleging that conditioning a campaign donation to Senator Collins’ opponent on whether Senator Collins supports Kavanaugh is “an illegal attempt to influence an elected official’s specific vote” in violation of 18 U.S.C. §201(b), the section of the federal bribery statute that makes it a crime to “directly or indirectly, corruptly … offer[] … anything of value to any public official … with intent to influence any official act.” It’s perhaps worth noting that although FACT describes itself as a “non-partisan ethics watchdog,” its ethics complaints are targeted overwhelmingly (though not exclusively) at Democrats, and it is funded entirely by an anonymous trust fund (a so-called “pass-through”) favored by ultra-wealthy conservative donors, including Charles Koch. So reasonable people might take FACT’s own conclusions with more than a grain of salt. Still, though, the allegation that the grassroots campaign targeting Collins is engaging in illegal “bribery,” though in my view wrong as a matter of both law and ethics, is worth taking seriously, because it highlights some of the fundamental problems with the regulation of campaign finance in the United States—in particular the use of a “corruption” paradigm to address what’s mainly a political equality problem. Continue reading

Is It a Crime To Promise To Support a Legislator Who Votes the Way You Want?

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. Continue reading

Anticorruption Tools in the Anti-Trump Toolkit: A Primer

[Kaitlin Beach provided helpful research and thoughtful contributions to this post.]

Since Donald Trump’s election, critics have asserted that his presidency presents unprecedented risks of corruption, cronyism, and conflict of interest. Many argue that President Trump and members of his administration are already engaging in conduct that is not only unethical, but also illegal. Because it can be hard for non-specialists to keep track of the myriad rules that have been referenced in the context, this post provides a brief, non-technical overview of the most important federal laws and regulations that are designed to prevent corruption, conflict-of-interest, and self-dealing in the U.S. government, focusing on those that have been most widely or most creatively discussed in relation to fighting a purportedly corrupt Trump administration.

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Guest Post: Fixing the Federal Definition of Bribery–From “Intent to Influence” to “Illegal Contract”

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. Continue reading