When Is a Payment a Bribe?

Our nation’s recent presidential impeachment wasn’t the first time in modern history that we’ve asked the question: When is a payment a bribe?

Squaring what is bribery — or its sibling, extortion — could be an important part of how democracy moves forward, said Professor Deborah Hellman, an expert on governmental ethics and campaign finance reform.

The federal bribery statute states, “whoever, being a public official or person selected to be a public official, directly or indirectly, corruptly demands, seeks, receives, accepts, or agrees to receive or accept anything of value personally or for any other person or entity, in return for being influenced in the performance of any official act” commits bribery.

Hellman recently outlined her theory in her paper, “A Theory of Bribery,” which won the 2019 Fred Berger Memo­rial Prize from the American Philosophical Association and was published in the Cardozo Law Review.

“What you might consider the ‘classic’ political bribe is someone who offers a public official money for a vote on a particular bill,” she said. “Money is clearly something of value. A vote on a bill is clearly an official act. The official is motivated to vote on the bill to get the money for personal gain, rather than believing that the vote is for what the constituents want.”

But is the corrupt motivation what makes this bribery? Hellman doesn’t think so.

What of the “practical politician” who argues that he wants the money to improve his chances of winning reelection, which he believes is good for his constituents?

“If this motivation absolves the politician of bribery, then the more arrogant the official, the more free he or she is to accept money or campaign contributions in exchange for official acts,” Hellman said. “That can’t be right.”

Hellman’s theory of bribery differs with conventional thinking in that she doesn’t focus on the subjective motiva­tion of the office holder. Instead, Hellman argues that bribery requires that the things exchanged be of different types.

To help explain her theory, she gave the example of poli­ticians exchanging a vote for a vote. The two things are essentially the same.

“No matter what you think of logrolling, nobody thinks it is bribery,” she said.

Hellman pointed to the case of former Illinois Gov. Rod Blagojevich to support her view. Blagojevich offered to fill Barack Obama’s U.S. Senate vacancy with Valerie Jarrett, an Obama insider who had co-chaired the president’s transi­tion team, in exchange for the governor either receiving a federal appointment or for help landing a private-sector job.

Judge Frank H. Easterbrook of the U.S. Court of Appeals for the Seventh Circuit, writing for the court, held that exchang­ing an appointment for an appointment does not constitute bribery. The court overturned five of the convictions based on that premise. But Blagojevich’s convic­tions for attempting to also sell the open seat for money were affirmed. The opin­ion, like Hellman’s theory, requires that the values exchanged be different in kind.

Another noteworthy recent case dem­onstrates the consequences of ill-defined laws.

When Virginia Gov. Bob McDonnell appealed his conviction on federal cor­ruption charges, the U.S. Supreme Court unanimously overturned the conviction.