Political contributions, bribes – and a barrel of worms

A congressman from Texas once said, “Ethics is a barrel of worms,” which, according to this article, is “a pungent summing up of the problem of deciding who is ethical in politics.”  And when it comes to deciding when political contributions cross the line into bribery, the criminal law – to protect First Amendment rights – gives considerable leeway to pungent activity.

In a recent opinion from a political corruption case,  a federal judge reviewed the law in this area, noting, as a threshold matter, that “[c]ampaign contributions  and fundraising are an important, unavoidable and legitimate part of the American system of privately financed elections.”  Given this framework, the burden of proving illegality in a political contribution must necessarily be a high one.

The judge identified two sorts of situations in which this burden can be met.  First, where a contribution has actually been made,  it can be considered a bribe only where there is an agreement between donor and official that the “contribution is conditioned on the performance of a specific official action,”  i.e.,  a quid pro quo.  That is, a “generalized expectation of some favorable future action is not sufficient” to sustain a corruption conviction,  and proof of a “close in time relationship between the donation and act” is not sufficient either.

Second, even without a contribution having been made, the promise or solicitation of  such in return for an official act can be unlawful.  However, the promise/solicitation must be specific, explicit and material to be illegal, according to the judge’s ruling in this case.  These additional requirements apply to “promises or solicitations because one-sided offers can be misinterpreted.”

In sum, this area of law leaves a whole lotta room to maneuver for campaign contributors seeking favorable treatment from legislators  and – in light of the necessary role that contributions play in our political system – legitimately so, at least as a purely legal matter.  But from a purely ethical perspective one  can view actions as fundamentally criminal even if they are not technically illegal.  And so the last word in this piece goes to Mark Twain, who said, “It could probably be shown by facts and figures that there is no distinctly native American criminal class except Congress.”

 

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