Outside the Beltway

The End of Legal Bribery

James Joyner · Tuesday, May 16, 2006 · 1 comment

Jeff Birnbaum has a fascinating piece in Washington Monthly arguing that campaign contributions are increasingly being treated as bribes by the Justice Department. He thinks this is a good thing.

So far, the scandal surrounding disgraced lobbyist Jack Abramoff has produced some vivid and memorable examples of modern Washington graft–skybox tickets, pricey restaurant meals, golf junkets to Scotland. Yet at the center of the scandal is something more prosaic, and potentially far more explosive: good old-fashioned campaign donations. Deep in the plea agreements won by Justice Department lawyers are admissions by the defendants–Abramoff and his cronies, ex-DeLay aides Tony C. Rudy and Michael Scanlon–that they conspired to use campaign contributions to bribe lawmakers. Even though these gifts were fully disclosed and within prescribed limits, the government said they were criminal, and the defendants agreed. This aspect of the case has received little attention. But it is sending shudders down K Street. If such prosecutions were to become commonplace, the paid persuaders of Washington and their big-money clients would be dealt a body blow. If prosecutors begin to assert as a matter of routine that lobbyist gifts and campaign contributions are a form of bribery, it could open up a whole new front on the decades-old (and largely ineffective) effort to break the nexus of money and politics in the capital.

“More than in the past, the Department of Justice seems to be trying very hard to tie campaign contributions to legislative acts by members of Congress and to draw the inference that there’s a criminal connection between the two,” says Robert K. Kelner, chairman of the election law and political law practice at Covington & Burling. “If they succeed then I think it will change the standard advice that lawyers will give their clients about political contributions and also change common practices on Capitol Hill.” Stanley Brand, a noted criminal defense attorney at the Brand Law Group in Washington, agrees. “The department is inching toward making campaign contributions the central thing of value when they charge a bribe,” says Brand. “I don’t know if they’ll get all the way there. But it would be an eight on the Richter scale for the campaign finance system if they do. Every PAC and interest group would have to ask itself if its donation is going to be grist for a prosecution.”

The earthquake would certainly upset Washington, but it would probably delight almost everyone else. For decades, opinion polls have shown that voters think their politicians are bought and sold by the rich and connected. But these same voters have also seen any number of campaign finance “reforms” put in place, only to watch the system become evermore driven by dollars. [emphasis added]

But the public is often, if not usually, wrong about such things. These are the same folks who believe that we could balance the budget if we just stopped giving all that foreign aid. Indeed, Birnbaum himself admits,

All contributions, of course, are not bribes. A politician who runs on an anti-abortion platform, takes contributions from anti-abortion supporters, and subsequently votes in line with those views, would never be subject to the bribery statute. “There’s a large segment of fundraising activity that is perfectly legal and appropriate,” notes Baran. “Candidates will always get money in legal amounts from people who support them. That’s not evidence that the public official has done anything in exchange for that money.”

The problem, of course, is differentiating this from more sketchy donations that stop short of the obvious bribery of quid pro quo transactions. There are no obvious public policy solutions to this, either, as campaign finance “reform” efforts not only squelch legitimate political speech but have proven time and again to be ineffective. And public financing of campaigns would make it even harder for challengers to be incumbents.

Birnbaum predicts that public interest groups will start to use DOJ filings as a major tool:

The Abramoff plea agreements are also sparking a reassessment among at least some public-interest groups about the best way to fight the “corrupting influence” of money in politics. For decades, such groups have poured their energies into trying to make the existing system of campaign-finance regulations and laws work better, to little avail. Now, groups like Melanie Sloan’s CREW are turning increasingly to the Justice Department rather than to Congress to find redress against abuses in the campaign-finance system. Instead of spending all its time filing complaints with congressional ethics committees (which rarely act) or pressing for new lobbying laws, CREW has also been writing letters to the Justice Department seeking investigations, for example, of Republican Reps. Pete Sessions (Texas) and Jerry Lewis (Calif.) for acting too closely in concert with their donors.

Taxpayer-financed witchhunts initiated by groups who can’t get their way in the legislative problem strikes me as a solution worse than the problem.