Prosecuting Elected Officials for Corruption: A Tale of Four Governors

As Phil and Rick pointed out a few months ago, America’s domestic anti-bribery laws and the attendant court interpretations are, for lack of a better term, a hot mess. In principle, the crime of bribery is straightforward: To secure a conviction, the prosecutor need only convince the jury that (1) there was some agreement (explicit or otherwise) whereby (2) the official would receive something of value (3) in exchange for using his official position in some manner. Unfortunately, though, that burden of proof often becomes far more complicated when the alleged bribe recipient is a high-ranking elected official. When a politician regularly solicits campaign contributions and simultaneously wields political influence to the benefit of constituents, it is often hard to see where politics ends and corruption begins. And after the U.S. Supreme Court’s decisions in cases like Citizens United and Skilling, prosecutors are left wondering when the corrupting influence of money on politics can still be prosecuted as “corruption.”

Today, I want to step back from this confusion and distill a few lessons that I believe still hold true for any US prosecutor investigating an elected official for bribery. To do that, I consider allegations that have been made against four past and present governors — Rod Blagojevich (Illinois), Andrew Cuomo (New York), Don Siegelman (Alabama), and Robert McDonnell (Virginia) — and ask one loaded question: what does it take to prove that an elected official misused his position in exchange for something of value?

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Is Corruption Destroying American Democracy? Zephyr Teachout’s Corruption in America

Fordham University Law Professor Zephyr Teachout earned a place of distinction among anticorruption activists for making the fight against corruption the centerpiece of her spirited campaign to oust the incumbent in New York’s September 9 gubernatorial primary (as well as a good deal of attention on this blog, click here and here).  Her effort also deserves special recognition in academia: surely no other professor has produced evidence to undercut her own academic work so fast as Professor Teachout. Appearing days before the primary, her Corruption in America: From Benjamin Franklin to Citizens United contends that large private donations to political candidates so favor candidates supported by the wealthy that the future of American democracy is at risk.  Yet while preliminary figures suggest the well-known, well-organized incumbent outspent her by somewhere between 40 to 50 to 1, she did surprisingly well, polling 180,336 votes to the incumbent’s 327,150.  If money so dominates American political campaigns, it is hard to see why Professor Teachout got so far with so little. Of course, she did lose the election.  More to the point, even if she had won, her claim that money is overwhelming American elections cannot be dis-proven by a single example.  It may be that her race was an outlier and that most of the time, money does talk.  So what does the accumulated research on the influence of money on American elections show? Continue reading