Bribery

Nonstatutory sanctions. Bribery, along with treason, is one of two crimes for which the United States Constitution (art. ii, sec. 4) specifically prescribes impeachment for the President, Vice-President, and "all civil officers of the United States." Two federal judges have been impeached and convicted of corruption; more than a dozen others have resigned in the face of threatened impeachment. Indication of investigation has produced other resignations, most notably of a Justice of the Supreme Court.

Since 1873, Congress has censured members for bribe-taking or bribe-giving, and in 1980 it actually expelled a member after his criminal conviction. A more common sanction has been electoral, although belief that a candidate is a bribe-taker is more apt to act as a comparative disadvantage than an absolute disqualification. Lawyers convicted of bribery are subject to disbarment. In descending order of frequency, electoral disadvantage, forced or prudential resignation, disbarment, censure, impeachment, and expulsion have been sanctions for bribery in high American office. In enforcing them, the role of the press has been crucial.

Statutes. Modern statutes, state and federal, have four common characteristics. (1) They apply equally to receivers and givers. (2) They are comprehensive, including as officials all employees of government and those acting in a government capacity, such as jurors and legislators. More recent statutes include party officials and even party employees. (3) They treat bribery as a crime that can be committed by the briber even though the bribee is not influenced. (4) They treat bribery as a felony.

American statutes differ in that some treat a bribe as any "benefit," thereby including nonpecuniary favors, whereas others restrict the term to pecuniary benefits. Some, such as the New York Penal Code, permit extortion to be a defense for the bribe-giver (N.Y. Penal Law (McKinney) § 200.05 (1999)), but this defense is disapproved by the Model Penal Code (§ 240.1). Older statutes use corruptly to qualify the condemned giving and receiving, whereas more recent ones eliminate corruptly and speak more specifically. An essential component of modem statutes is an antigratuity provision making it criminal to confer any benefit on an official "for or because of any official act" (18 U.S.C. § 201(c)(1)(A)(1994)). Excepted, of course, are benefits provided by law. The provision eliminates a need to show that the benefit was "to influence" performance. The giver is guilty if he gave for the act; the recipient is guilty if he took on account of the act. Some statutes also criminalize compensation for a past official act, obviating difficulty in proving bribery (Model Penal Code § 240.3). Some statutes also criminally forbid private employment in a matter on which, as an official, one had acted, assimilating such conflicting interest to a bribe. An example of such a statute is the Bribery, Graft, and Conflicts of Interest Act of 1962, as amended, 18 U.S.C. §§ 201–208 (1999)).

Prosecutions. Neither the state nor the federal statutes have been systematically and uniformly enforced against all offenders. Usually either political investigation or particularly outrageous corruption has triggered prosecution. Routine federal cases show topicality: bribees were prohibition agents in the 1920s, draft-board members in the 1940s, revenue agents in the 1950s. Celebrated convictions include those of Secretary of the Interior Albert Fall for accepting bribes in connection with the Teapot Dome oil leases (Fall v. United States, 49 F.2d 506 (D.C. Cir. 1931)) and of Circuit Court Judge Martin Manton (United States v. Manton, 107 F.2d 834 (2d Cir. 1938)).

The 1970s were marked by a more sustained federal effort, in particular by the temporary Watergate Special Prosecution Force, by the permanent Office of Public Integrity in the Justice Department, and by the project known as Abscam, where the use of decoys and the filming of transactions led to the conviction of half a dozen members of Congress and a senator.

Auxiliary legislation. Evidentiary difficulty in proving bribery, conceptual difficulty in distinguishing bribes from campaign contributions, and experience with the effect of money on elections have led to the adoption of state and federal laws generically known as anticorrupt practice acts. Typically, these limit the amount of campaign contributions, require that they be made only to identified committees, specify that they be reported, and prohibit certain classes of contributors from contributing anything. Offenses under such statutes have, in general, been misdemeanors rather than felonies. The laws have been limited and sometimes invalidated by federal or state constitutional requirements.

For the most part the effectiveness of these statutes has rested chiefly on their being observed by law-abiding corporate managers, lawyers, auditors, and campaign officials. Before the 1970s there was almost no criminal enforcement of the federal law against corporations, contractors, or candidates. The Securities and Exchange Commission (SEC), by requiring the confession of illegal contributions by corporations with stock registered under the Securities Exchange Act, and the Watergate Special Prosecution Force, showed that the laws were often violated. John McCloy's report on Gulf Oil was particularly revealing, disclosing that a slush fund had been maintained for fifteen years, from which leading American politicians, including Senate Majority Leader Lyndon Johnson, were supplied with envelopes containing cash. The difference between such access payments and bribes was difficult to detect.

While federal agencies began to give vigor in the 1970s to the Corrupt Practices Act, federal involvement in prosecuting state and local bribery underwent an enormous expansion. Mail fraud law was used to catch the bribery of Governor Otto Kerner of Illinois. Failure to report the income led to the prosecution of Vice-President Spiro Agnew for bribes taken as governor of Maryland. In addition, on the books were (1) the Travel Act of 1961, as amended, 18 U.S.C. § 1952 (1999), making it a federal felony to use interstate facilities to commit what was bribery under state law; and (2) the much older Hobbs Act, 18 U.S.C. § 1951 (1999), covering any act affecting interstate commerce and defining extortion as obtaining property from another person with that person's consent "under color of official right." This definition was interpreted to include payoffs expressly or tacitly sought by a governor, a state legislator, a city alderman, or a policeman (for example, United States v. Braasch, 505 F.2d 139 (7th Cir. 1974)).

These laws were eventually overshadowed by the Racketeer Influenced and Corrupt Organizations (RICO) Act of 1970, 18 U.S.C. 1962 (1999) § 1961, punishing as "racketeering" any "pattern" (two or more acts) of bribery. Under this act, bribe-taking bail bondsmen, sheriffs, and traffic court employees—typical small-time grafters—as well as state revenue officials, state senators, and a state governor, were federally indicted as racketeers. Acquittal under state law was no defense to the federal crime, and state statutes of limitations did not apply. Armed by RICO with powerful weapons, the Justice Department became a formidable adversary of local corruption. By the 1970s, state officials were being federally prosecuted at the rate of several hundred per year.

Foreign corrupt practices. In the 1970s the SEC took the position that payments of bribes overseas constituted material information, to be disclosed on reports to the SEC. More than four hundred American companies confessed to making such payments. A small percentage of registered corporations, they included such giants as Lockheed Corporation, which spent $6 million a year in overseas bribes. In response to public furor, Congress enacted the Foreign Corrupt Practices Act of 1977, 15 U.S.C. §§ 78dd-1–dd-2 (1999). This legislation was notable in four respects: (1) The statute made it a crime to bribe an official of another country, an extension of jurisdiction never attempted before in regard to bribery. (2) It applied only to bribers, whereas other bribery laws apply to bribees as well. (3) Under criminal penalty, it required one class of bribers, those registered under the securities laws, to make a public report of its crime. (4) As to all bribers, it was more stringent than federal law on bribery in the United States in that (a) it applied to bribing political parties; (b) it applied to all domestic businesses and all American citizens; and (c) it specified a heavier financial punishment, up to $1 million. The act's effect has depended on cooperation by lawyers, auditors, corporate managers, and outside directors.

Commerce and contests. Criminal statutes against the bribery of private persons began with New York in 1881. They were enacted in England and several states in the early twentieth century, numbered seventeen by 1934, and doubled by 1980. The earlier statutes tended to specify employments—gardeners in Maryland, chauffeurs in Illinois! The more recent tendency, reflected in the Model Penal Code, has been to include all employees, agents, and fiduciaries. Seeking to reach payola in the recording business, the Code, followed by several states, also includes anyone who professionally is a disinterested expert. The statutes in substance make it a crime to confer a benefit on a fiduciary with intent to influence the recipient's conduct in his principal's affairs. Consent of the principal is a defense, and penalties vary. The statutes have sometimes been invoked civilly to invalidate a contract, but they have rarely led to criminal convictions. Persons injured have more incentive to hold the bribee liable for the bribe or to make the briber turn over his gain.

Between 1947 and 1980, thirty-four states made it a crime to influence sporting contests by bribes to officials or participants. The state statutes are rarely used, but occasionally they have been harshly applied—for example, ten years' sentence of imprisonment was imposed for fixing a basketball game in Iowa. Concern with the effect on sports of professional gamblers connected with organized crime led in 1964 to a federal law which has been extended to apply to jockeys rigging their own race (18 U.S.C. § 224 (1999)). Responding to rigged television contests, the Model Penal Code (§ 224.9) and eight states have included not only sports but every "publicly exhibited contest." The Code and three states specified a criminal penalty for any participant who knows that the contest has been fixed.

Dynamism. Modern bribery law has tended to expand enormously those subject to the criminal law, to increase the acts covered, to multiply indirect attacks on bribery, to develop more effective techniques of detecting the crime, to expand federal jurisdiction at home and abroad, to increase the number of prosecutions, and to increase the severity of sanctions. The movement of the law has been the reverse of Henry Maine's famous dictum, "from status to contract." The law here has gone from reciprocity to nonreciprocity, determined by status. Its continued expansion could be confidently predicted, were it not for three problems now to be addressed.