When are Lobbying Donations Considered Bribes?

Posted by Anthony Dimond on April 10, 2019

An American lawyer living in Asia last week described to me the ubiquitousness of bribes for most interactions with Asian governments. For example, to get the court clerk in the national capital to forward paperwork to a provincial court he had to bribe the judge, clerk, and provincial court clerk @$100 US each. Prof. Frank Cavico discusses bribes as essential to business in the Middle East and Asia in “Baksheesh or Bribe: Cultural Conventions and Legal Pitfalls.” This renowned litigator said that US government is equivalently corrupt. He illustrated his equivalency comment using campaign donations. But is the US as corrupt as Asia?
A US government official taking a bribe for an official action brings criminal liability to both payer and recipient. In Asia taking bribes is a major and customary perquisite of civil service and constitute part of the civil servant’s compensation package. No equivalency because one goes to jail in the US for doing what is normal in Asia.
For campaign contributions to be bribes there must be a quid pro quo, “this for that” If money is the quidwhat is the quo? The bribe argument would say votes. However, when deciding how to vote, legislators have more important things to think about than your campaign contribution. A few of many include:

1. Lawmakers first satisfy the people putting and keeping them in office, namely their supporters, voters, and to a     lesser degree their constituents. Lawmakers are not going to abandon them for your dollars.
2. Voting contrary to their caucus, party, and instructions from chamber leadership could ruin their careers. They will take your money but won’t change their vote to get it.
3. Next, legislators don’t change their long-held political values for money. Were they to do so, potential opponents would call them “flip-floppers,” and nobody likes a political flip-flopper.
4. Incumbents have earned political interest-group “scores. ” They are not going to endanger these scores for your donation, especially since scores impact support received from entire subsets of donors.

If money doesn’t get votes, then why do some interest groups give so much to campaigns?
They give money because they don’t have anything better to give; money is all they’ve got. They can’t give candidates what they need, and that is votes. “Interest groups with individual members may be able to deliver voters to a candidate but most organized groups-in particular corporations, businesses, and professions-cannot deliver votes. But they can deliver dollars; and they do so to the best of their ability, for a number of reasons.” 1 The fewer the number of votes special interests can deliver, the more money they need to give to purchase any measure of influence with lawmakers.
A significant donation surely makes a lawmaker feel warmer toward the donor. You’ve shown the lawmaker you are on his or her team and presumably not on the opponent’s team. But warmer feelings do not rise to the level of quo. Further, unlike Asia where the civil servant spends the bribe on himself, in the US a campaign donation spent on oneself is also a crime.

Finally, making campaign contributions is a form of free speech. Buckley v. Valeo, 424 U.S. 1 (1976) If one form of free speech is bribery, then other types of support must also be bribery such as friendly letters to the editor, holding campaign signs, even voting for the candidate.
During my lobbying career only once did a state lawmaker ever ask me for a campaign donation. I didn’t make it and my bill still became law. Nor do I recall this lawmaker voting against my bill.
Without a quo a political donation isn’t a bribe. But even accepting this brilliant litigator’s theoretical link, the quidand quo are far removed from each other. Further, my quidis lost among the thousands of other donors that I would have no hope for a unique quo. Our hoped-for collective quo is a lawmaker who will vote the way we want and save us from the candidate we didn’t want.
There is at best a weak equivalence as to theory but no equivalence as to practice.

1. Alan Rosenthal, Engines of Democracy (Washington, D.C.: CQ Press, 2009), 166

August 31, 2018

Last modified on May 7, 2019

Categories: National
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