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Criminal Corruption: Why Broad Definitions of Bribery Make Things Worse

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Criminal Corruption: Why Broad Definitions of Bribery Make Things Worse University of Chicago Law School Chicago Unbound Journal Articles Faculty Scholarship 2015 Criminal Corruption: Why Broad Definitions of Bribery Make Things Worse Albert W. Alschuler Follow this and additional works at: https://chicagounbound.uchicago.edu/journal_articles Part of the Law Commons Recommended Citation Albert Alschuler, "Criminal Corruption: Why Broad Definitions of Bribery Make Things Worse," 84 Fordham Law Review 463 (2015). This Article is brought to you for free and open access by the Faculty Scholarship at Chicago Unbound. It has been accepted for inclusion in Journal Articles by an authorized administrator of Chicago Unbound. For more information, please contact [email protected]. CRIMINAL CORRUPTION: WHY BROAD DEFINITIONS OF BRIBERY MAKE THINGS WORSE Albert W. Alschuler* Although the law of bribery may look profoundly underinclusive, the push to expand it usually should be resisted. This Article traces the history of two competing concepts of bribery—the “intent to influence” concept (a concept initially applied only to gifts given to judges) and the “illegal contract” concept. It argues that, when applied to officials other than unelected judges, “intent to influence” is now an untenable standard. This standard cannot be taken literally. This Article defends the Supreme Court’s refusal to treat campaign contributions as bribes in the absence of an “explicit” quid pro quo and its refusal to read a statute criminalizing deprivations of “the intangible right of honest services” as scuttling the quid pro quo requirement. While recognizing that the “stream of benefits” metaphor can be compatible with this requirement, it cautions against allowing the requirement to degenerate into a “one hand washes the other” or “favoritism” standard. This Article maintains that specific, ex ante regulations of the sort commonly found in ethical codes and campaign finance regulations provide a better way to limit corruption than bribery laws, but it warns that even these regulations should not prohibit all practices that may be the functional equivalent of bribery. This Article concludes by speculating about whether the efforts of federal prosecutors to reduce corruption over the past sixty years have given us better government. I. THE CORRUPTION DILEMMA ................................................................. 464 II. TWO DEFINITIONS OF BRIBERY ........................................................... 466 A. “Intent to Influence” Bribery ................................................... 466 1. The Basic Standard ............................................................ 466 2. The Adverb ........................................................................ 467 3. The Bribe-Taker’s Mental State ......................................... 469 * Julius Kreeger Professor Emeritus of Criminal Law and Criminology, the University of Chicago. This Article is part of a symposium entitled Fighting Corruption in America and Abroad held at Fordham University School of Law. For an overview of the symposium, see Jed Handelsman Shugerman, Foreword: Fighting Corruption in America and Abroad, 84 FORDHAM L. REV. 407 (2015). 463 464 FORDHAM LAW REVIEW [Vol. 84 B. “Illegal Contract” Bribery ....................................................... 472 C. The Federal Amalgam .............................................................. 474 III. EFFORTS TO BEND, BREAK, OR CIRCUMVENT THE QUID PRO QUO REQUIREMENT ................................................................................ 476 A. Honest-Services Fraud ............................................................. 477 B. “Stream of Benefits” or “Course of Conduct” Bribery ........... 479 IV. WHY DEFINITIONS OF BRIBERY SHOULD REMAIN UNDERINCLUSIVE ........................................................................... 482 V. EX ANTE REGULATIONS AND WHY THEY MUST BE UNDERINCLUSIVE TOO ................................................................... 484 VI. FROM STEVENSON TO BLAGOJEVICH: HAS THE EFFORT TO CLEAN UP GOVERNMENT THROUGH CRIMINAL PROSECUTION MADE THINGS BETTER? ............................................................................ 487 CONCLUSION ............................................................................................. 491 I. THE CORRUPTION DILEMMA The scholarship of Zephyr Teachout and Lawrence Lessig has reminded us of the classic definition of corruption.1 Corruption in its classic sense describes something that has become impure or perverted.2 In Aristotle’s words, “The true forms of government . are those in which [rulers] govern with a view to the common interest; but governments which rule with a view to the private interest . are perversions.”3 New York Times columnist Bob Herbert explains why our government fits the ancient definition: The corporate and financial elites threw astounding sums of money into campaign contributions and high-priced lobbyists and think tanks and media buys and anything else they could think of. They wined and dined powerful leaders of both parties. They flew them on private jets and wooed them with golf outings and lavish vacations and gave them high- 1. See LAWRENCE LESSIG, REPUBLIC, LOST: HOW MONEY CORRUPTS CONGRESS—AND A PLAN TO STOP IT 15–20, 230–47 (2011) [hereinafter LESSIG, REPUBLIC, LOST]; ZEPHYR TEACHOUT, CORRUPTION IN AMERICA: FROM BENJAMIN FRANKLIN’S SNUFF BOX TO CITIZENS UNITED 9, 38–39, 41 (2014) [hereinafter TEACHOUT, CORRUPTION IN AMERICA]; Lawrence Lessig, What an Originalist Would Understand “Corruption” to Mean, 102 CAL. L. REV. 1 (2014); Zephyr Teachout, The Anti-Corruption Principle, 94 CORNELL L. REV. 341 (2009); Lawrence Lessig, “CORRUPTION,” ORIGINALLY., http://ocorruption.tumblr.com (“A blog collecting every use of the term ‘corruption’ among the records of the Framers.”) [http://perma.cc/K7L3-3WWJ]. 2. See generally Richard Mulgan, Aristotle on Legality and Corruption, in CORRUPTION: EXPANDING THE FOCUS 25 (Manuhuia Barcham et al. eds., 2012). 3. ARISTOTLE, POLITICS 114 (Benjamin Jowett, trans., Oxford Univ. Press rev. ed. 1967) (c. 350 B.C.E.). 2015] CRIMINAL CORRUPTION 465 paying jobs as lobbyists the moment they left the government. All that money was well spent. The investments paid off big time.4 In at least one sense, the practices Herbert decries are the functional equivalent of bribery.5 Quid pro quo bribes produce decisions not in the public interest—they corrupt—and unconditional contributions and gifts do too. Declaring that implicit agreements and understandings lie behind these practices, however, would be too cynical. The problem is not that corrupt agreements are left to winks and nods. Instead, with rare exceptions, there are no agreements, express or implied. Campaign contributions and other benefits are accompanied by hope but not by an understanding that a recipient will provide anything in return. As Herbert says, the hope may turn out to be justified often enough to make the contributions good investments. Quid pro quo exchanges are rarely how corruption happens. If a public official were to do nothing to aid one of his benefactors, the benefactor usually would not say even to himself that the official had broken an implicit promise. When the goal is to root out Aristotelian corruption, the law of bribery, extortion, and fraud looks profoundly under-inclusive. The push of prosecutors, judges, journalists, and reformers to expand this law is easily understood. The thesis of this Article, however, is that the push usually should be resisted. America can better achieve James Madison’s wish “that the national legislature be as uncorrupt as possible”6 through specific, ex ante regulations—what Zephyr Teachout calls structural or prophylactic rules.7 These regulations include, in particular, campaign finance limitations of the sort today’s Supreme Court strikes down,8 gratuity prohibitions, and ethical codes forbidding the creation of some conflicts of 4. Bob Herbert, Opinion, When Democracy Weakens, N.Y. TIMES (Feb. 11, 2011), http://www.nytimes.com/2011/02/12/opinion/12herbert.html [http://perma.cc/4Z7D-G8F9]. 5. Many people, including former President Jimmy Carter, former Governor Jesse Ventura, and former lobbyist and prisoner Jack Abramoff, have described our campaign finance system as one of legalized bribery. See LESSIG, REPUBLIC, LOST, supra note 1, at 8 (quoting Jack Abramoff) (“I was participating in a system of legalized bribery. All of it is bribery, every bit of it.”); Editorial, The Line at the “Super PAC” Trough, N.Y. TIMES (Feb. 15, 2014), http://www.nytimes.com/2014/02/16/opinion/sunday/the-line-at-the-super-pac- trough.html (“This election year will be the moment when individual candidate super PACs—a form of legalized bribery—become a truly toxic force in American politics.”) [http://perma.cc/K4FE-RRYZ]; Thomas L. Friedman, Opinion, Calling America: Hello? Hello? Hello? Hello?, N.Y. TIMES (Nov. 2, 2013), http://www.nytimes.com/2013/11/03/ opinion/sunday/friedman-calling-america-hello-hello-hello-hello.html (“[O]ur Congress has become a forum for legalized bribery.”) [http://perma.cc/ZF2T-62LW]; Ray Henry, Jimmy Carter: Unchecked Political Contributions Are “Legal Bribery”, HUFFINGTON POST (July 17, 2013, 1:21 PM), http://www.huffingtonpost.com/2013/07/17/jimmy-carter-bribery_n_3 611882.html [http://perma.cc/4TCY-2C5L]; Bruno J. Navarro, Jesse Ventura Likens Politics to Bribery, CNBC (June 19, 2012, 10:23 PM), http://www.cnbc.com/id/47883494 [http:// perma.cc/42Y3-TABR]. 6. James Madison, The Journal of the Constitutional
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