Republican donors are bribing senators and representatives by declaring they will stop contributing to Republican campaigns unless the Republicans repeal and replace the Affordable Care Act and cut taxes.
I. Corruption occurs when leaders or administrators extract resources from a collective for personal gain.
[B]ecause of the profits to be had from public funds and from office, people want to be in office continuously, as if they were sick and would be cured by being always in office. – Aristotle
People sling the label “corruption” without agreeing upon its definition,[1] and these loose definitions obscure and dilute its meaning. Too often the term becomes intertwined with theft, unethical conduct, criminal laws, or actions to which someone objects on moral grounds. To be clear, leaders and administrators act corruptly when they trade the collective’s resources for personal wealth.
John Locke divided kings from tyrants based on their intentions toward the collective’s wealth: a king “makes the laws the bounds of his power, and the good of the public the end of his government,” and a tyrant “makes all give way to his own will and appetite.”[2] Alexander Hamilton warned of corruption: “[a]n avaricious man might be tempted to betray the interests of the state for the acquisition of wealth.”[3] In the end, citizens lose their government when their leaders and administrators treat the public’s wealth as personal wealth.
Leaders and administrators can extort money from private people by promising official action in exchange for money, and private people can bribe government officials by promising money in exchange for official action. Both qualify as corruption because both seek the government official to extract resources from a collective in exchange for something valuable. By offering a policeman a bribe, for example, a criminal pits the policeman’s personal and family loyalty against his loyalty to the government. One of those loyalties must yield.[4]
Classic Corruption
II. The United States Code criminalizes bribing public officials.
“[T]he most important thing in every constitution is for it [to] have the laws and the management of other matters organized in such a way that it is impossible to make a profit from holding office.”—Aristotle[5]
The United States code makes a crime of bribing public officials with “anything of value,” and that includes campaign contributions. In particular, Title 18, Section 201(b), makes a crime of “giv[ing] . . . anything of value to any public official . . . with intent—to influence any official act . . . .” Official acts include “any decision or action on any . . . matter . . . which may at any time . . . be brought before any public official . . . .”[6]
The Supreme Court has explained that the bribery laws make criminal only the “most blatant” attempts to change federal policy.[7] The crime of bribery happens when the person manifests “a specific intent to give or receive something of value in exchange for an official act.”[8] Passing a law qualifies as the quintessential official act.[9]
The law allows courts to fine criminals up to three times the bribe, to imprison them for up to fifteen years, to disqualify them from public office, or any combination of those punishments.
III. Campaign donations in exchange for particular votes qualifies as bribery.
Republican donors admitted they are bribing officials with campaign contributions. Section 201 requires prosecutors to “prove a link between a thing of value conferred upon a public official and a specific ‘official act’ for or because of which it was given.”[10] Two donors have admitted their crimes. More donors, the senators, and the representatives have given prosecutors probable cause that they committed crimes, as well.
Doug Deason, a rich Texas businessman and member of the Koch network, admitted to bribing Republican officials. Earlier this year, he told reporters that he would close his “piggy bank” until Republicans accomplished two specific tasks: “Get Obamacare repealed and replaced, get tax reform passed.”[11] “Get it done and we’ll open [the piggy bank] back up.”[12] Deason told reporters that he has encouraged other major Texas donors to do so as well.[13] That presents clear evidence of an exchange of campaign contributions for an official act.
Senator Dean Heller (R-Nev.) abruptly flipped his vote on early proposals to repeal and replace the Affordable Care Act. He did so after speaking to Sheldon G. Adelson and Steve Wynn, two billionaire casino magnates.[14] Adelson and Wynn may have threatened Heller with contributing money to someone else or of withholding campaign contributions if he did not vote the way they wanted him to vote. Those statements would qualify as bribes. Even threatening to fund primary opponents if a lawmaker does not support a particular bill qualifies as a bribe.
Finally, the Koch Brothers may have bribed unnamed Republicans. Sean Lansing, chief operating officer for the Koch network’s political arm, Americans For Prosperity, threatened Republicans over Affordable Care Act repeal and replace and tax cuts that. “If they don’t make good on these promises . . . there are going to be consequences, and quite frankly there should be.”[15]
IV. Prosecutors could seek more evidence
These statements may come close to sufficient evidence to convict Deacon and Lansing, but they present just the tip of the iceberg. These statements give prosecutors probable cause to subpoena documents and to interview witnesses. Prosecutors could root out corruption. They could corral corrupt donors just as they did with Jack Abramoff. These alligators are infesting the swamp, and the swamp is thickening.
Notes
[1] See, e.g., Akerlof, G.A. and Shiller, R.J., Animal Spirits 155 (Princeton Press 2009) (questioning whether making a loan that is likely to default qualifies as “corrupt”).
[2] First Treatise 60.
[3] Federalist 75 at 480.
[4] Madison, Federalist 10 at 56 (“[n]o man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity.”). See Evans v. United States, 504 U.S. 255, 260, 270 (1992) (collecting cases of criminals convicted of conspiracy to extort by accepting pay for electing school-teachers, and a police officer, who received $1,000 for not arresting someone who had stolen money).
[5] Politics 155.
[6] 18 U.S.C. § 201(a)(3).
[7] Buckley v. Valeo, 424 U.S. 1, 27-28 (1976) (“laws making criminal the giving and taking of bribes deal with only the most blatant and specific attempts of those with money to influence governmental action.”).
[8] United States v. Sun-Diamond Growers, 526 U.S. 398, 404, 406 (1999) (recognizing that bribery requires some “particular official act be identified and proved.”).
[9] McDonnell v. United States, 136 S.Ct. 2355, 2369 (2016) (recognizing that an “official act” includes “something within the specific duties of an official’s position—the function conferred by the authority of his office.”).
[10] Id. at 414.
[11] The Guardian, Koch network ‘piggy banks’ closed until Republicans pass health and tax reform (June 26, 2017), available at https://www.theguardian.com/us-news/2017/jun/26/koch-network-piggy-banks-closed-republicans-healthcare-tax-reform.
[12] Id.
[13] Id.
[14] Jonathan Martin and Kenneth P. Vogel, Trump Backers ‘Furious’ That Senator Stood Against Health Care Bill, New York Times (June 30, 2017), available at https://www.nytimes.com/2017/06/30/us/politics/heller-trump-health-care-adelson-wynn.html.
[15] Steve Peoples, Donors to GOP: No Cash Until Action on Health Care, Taxes, Associated Press (June 26, 2017), available at https://www.usnews.com/news/politics/articles/2017-06-26/koch-urgency-conservative-network-fears-closing-window.
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