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December 08, 2003

More on Why Contributions Not Bribery

In response to my post on why promised contributions to Nick Smith's son's campagin for a Medicare vote didn't constitute bribery, a number of people quoted the federal definition of bribery:

"Whovever directly or indirectly, corruptly gives, offers or promises anything of value to any public official or person who has been selected to be a public official, or offers or promises any public official or any person who has been selected to be a public official to give anything of value to any other person or entity, with intent -
(A) to influence any official act; or..."
Which is all very well, but it doesn't establish whether a political contribution is "something of value" or whether it is an individual expression of political speech.

The Supreme Court has actually established a pretty tough standard in regard to political contributions. See this 1991 case:

Serving constituents and supporting legislation that will benefit the district and individuals and groups therein is the everyday business of a legislator. It is also true that campaigns must be run and financed. Money is constantly being solicited on behalf of candidates, who run on platforms and who claim support on the basis of their views and what they intend to do or have done. Whatever ethical considerations and appearances may indicate, to hold that legislators commit the federal crime of extortion when they act for the benefit of constituents or support legislation furthering the interests of some of their constituents, shortly before or after campaign contributions are solicited and received from those beneficiaries, is an unrealistic assessment of what Congress could have meant by making it a crime to obtain property from another, with his consent, "under color of official right." To hold otherwise would open to prosecution not only conduct that has long been thought to be well within the law but also conduct that in a very real sense is unavoidable so long as election campaigns are financed by private contributions or expenditures, as they have been from the beginning of the Nation.
There is a bit of ambiguity in the decision of when an explicit quid pro quo-- essentially a contract -- might convert a political contribution into a bribe, but since no quid pro quo contract was established in the Nick Smith case, all you'd have is a non-existent crime of "attempted bribery."

Why This Matters: I'm making these arguments not because I think all these promises of political contributions are not malignant, but because a narrow focus on quid pro quo promises is such a minor problem in the swamp of corporate corruption of politics.

Without ever having to make quid pro quo deals, corporate contributors can make sure that pro-corporate politicians with honestly held rightwing beliefs are well-funded and outperform their anti-corporate opponents. Campaign money essentially changes the whole ecology of who even is competitive in political races-- that is bribery of our democracy far more dangerous, yet completely unregulatable by criminal law.

I think a debate on the Nick Smith contribution is useful, but putting it in terms of criminal conduct would narrow the debate to the tiny fraction of cases where a quid pro quo deal was necessary. Criminalization of this narrow set of acts de facto legitimizes the rest of the corruption of our politics by corporate money.

I'd rather have the far broader political debate on the POLITICAL implications of the broader corporate interests involved in the votes for the Medicare bill, not a narrow CRIMINAL debate on the specific circumstances of Nick Smith's vote.

Posted by Nathan at December 8, 2003 10:54 PM