Gregory M. Gilchrist (University of Toledo College of Law) has posted Decriminalizing Politics on SSRN. Here is the abstract:
Federal bribery law fails in two ways. First, it fails to meaningfully limit the influence of money on public officials. Second, it fails to comport with basic legality principles and due process.
American politics is awash in money. Campaigns are expensive and candidates spend a good deal of time asking people to fund them. Those who fund campaigns do so for various reasons. First, they agree with and prefer the policy goals of the candidate. Second, they hope the candidate will support governmental action that could benefit them. Third, they wish to establish good will with someone who may soon be in public office. None of this is a secret and all but the most obtuse candidates know this.
At the same time, otherwise lawful campaign contributions can serve as the basis for federal bribery charges. Any bribery prosecution must show that the campaign contribution was given or received as part of a quid pro quo by which the candidate agreed to take an official action in exchange for the contribution.
This rule, which sounds fine in the abstract, works great mischief in the American political system. The line between lawful contributions and illicit bribes suffers from an epistemic problem and an ontological problem: it is often impossible to discern and, in some cases, may be entirely fictitious. Simply put, in a political system where people are allowed and even encouraged to contribute financially to their preferred candidates, there is little basis on which to discern which contributions are democratic participation and which are corrupt; worse, there may be no difference at all.
While some vagueness is a necessary evil in codified criminal laws, the vagueness in federal bribery law is pernicious. It introduces injustice because it will tend to inure to the detriment of smaller, less sophisticated, or less well-staffed campaigns. Worse, it threatens to chill democratic participation.
Whereas courts find solace in the face of potential vagueness and overbreadth in the sound use of prosecutorial discretion, that provides little comfort here. Since the subject of the law is politics, discretionary decisions introduce the specter that the executive could use the criminal law to weaken political opponents. There’s as much reason to worry about the weaponization of this rule as to hope for wise discretionary calls.
Recommended.
This Article proposes a simple fix. Campaign contributions should never be a basis for federal bribery charges. Federal bribery charges could still be brought in cases involving non-campaign payments and issues of corruption involving campaign contributions would be governed by the extensive and evolving laws that already exist.