Abstract
Bribery is an agreement to exchange something of value for an official act. According to the dominant view, bribery is wrong because this agreement violates the professional or positional duties of the official. This chapter argues that this duty-based account is flawed. Instead, the author argues that the key features of bribery, as compared to other sorts of exchanges, reside in the fact that goods or services of different types are exchanged.
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Notes
- 1.
On this account, the definition of bribery also includes other elements, but the duty violation is one of its central features.
- 2.
There are multiple ways of understanding the duty that elected officials owe to constituents. For example, some accounts focus on constituent interests (as does Green’s), while others focus on constituent preferences.
- 3.
Those with the positional duties targeted by bribery statutes include sports officials (N.Y. Penal Law § 180.40 (Consol. 2000)), bank officers (18 U.S.C. App. § 2B4.1), lawyers and doctors (Fla. Stat. § 838.15), and witnesses (18 U.S.C. § 201 and Wis. Stat. Ann. § 946.61 (West 2015–16)).
- 4.
It is not exactly clear whether the duty-based account is an account of what bribery is or if it is an account of what makes bribery wrong.
- 5.
Examples of such states include Colorado (Colo. Const. art. 5, § 40), Wyoming (Wyo. Const. Art. 3, § 42), and North Dakota (N.D. Const. art. 4, § 9).
- 6.
Whether the legislator’s promise not to raise taxes does violate her duty to her constituents depends, in part, on how one understands those duties. Depending on whether one understands the duty as requiring the legislator to do what the constituents want or instead what the legislator believes to be in the interests of the constituents, this promise might violate the legislator’s duties. For a discussion of several ways to understand how these factors interrelate, see Hellman (2017, pp. 1965–70).
- 7.
- 8.
United States v. Blagojevich, 794 F.3d 729 (7th Cir. 2015).
- 9.
Blagojevich, 794 U.S. at 734.
- 10.
15 F.3d 888, 894 (9th Cir. 1994). For a discussion of how the boundary-crossing account better explains why plea bargaining is not bribery, see Hellman (2017, pp. 1947–1992).
- 11.
Sandel discusses a similar example (Sandel 2012, p. 78).
- 12.
This view is consistent with the parent holding the view that while paying kids for good grades bribes them, nevertheless, paying for good grades is the right thing to do, all things considered. Of course the parent might not mean the comment seriously. However, even in this case, the fact that this language functions metaphorically in the way that it does is illuminating.
- 13.
Under current law, an agreement to exchange a campaign contribution for an official act does constitute bribery, see Evans v. United States, 504 U.S. 255 (1992) and McCormick v. United States, 500 U.S. 257 (1991), but a contribution that merely induces official action (without an implicit or explicit agreement) likely does not constitute bribery. This question isn’t definitively settled because bribery statutes themselves do not require an agreement and in fact explicitly state that a “gift, offer or promise” of something of value for an official act constitutes bribery. Yet, when the thing of value being offered for the official act is a campaign contribution, courts insist on an agreement rather than simply that the contribution is given for (i.e. in order to induce) the official action. For an analysis of the distinction between quid pro quo and an agreement, see Hellman (2017, pp. 1958–1961).
- 14.
McDonnell v. United States, 136 S. Ct. 2355 (2016). McDonnell was charged under four statutes, among them 18 USC § 201, which prohibited bribery. The Supreme Court remanded the case after setting parameters for the definition of “official act,” and the government subsequently dropped the charges.
- 15.
Ibid. at 2372 (suggesting that a definition of “official act” that includes setting up meetings will lead to a situation in which “officials might wonder whether they could respond to even the most commonplace requests for assistance, and citizens with legitimate concerns might shrink from participating in democratic discourse”).
- 16.
18 U.S.C. § 201(b)(2)(A).
- 17.
See United States v. Malkus, 696 Fed.Appx. 251 (9th Cir. 2017); United States v. Repak, 852 F.3d 230 (3d Cir. 2017); United States v. Bruno, 661 F.3d 733 (2d Cir. 2011); United States v. Bradley, 173 F.3d 225 (3d Cir. 1999).
- 18.
Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 360 (2010).
- 19.
291 F.Supp.3d 606 (D.N.J. 2018).
- 20.
Ibid. at 613.
- 21.
This, under 18 U.S.C. § 201(c)(1)(B), would still be considered an illegal gratuity. Illegal gratuities do not require an intent to influence or be influenced, and thus there does not need to be a quid pro quo for an official to be charged with violating the statute. The requirement is that an official receives something of value “for or because of any official act.” See, for example, United States v. Verrusio, 762 F.3d 1 (D.C. Cir. 2014) (where the defendant, former policy director of the House Transportation Committee, violated the gratuities statute by accepting comped travel, hotel stays, and World Series tickets from a lobbying group which were offered because of his work on a federal highway bill).
References
18 U.S.C. § 201.
18 U.S.C. App. § 2B4.1.
Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 360 (2010).
Colorado Const. art. 5, § 40.
Evans v. United States, 504 U.S. 255 (1992).
Fl. Stat. § 838.15.
McCormick v. United States, 500 U.S. 257 (1991).
McDonnell v. United States, 136 S. Ct. 2355 (2016).
N. Y. Penal Law § 180.40 (Consol. 2000).
North Dakota Const. art. 4, § 9.
United States v. Blagojevich, 794 F.3d 729 (7th Cir. 2015).
United States v. Bradley, 173 F.3d 225 (3d Cir. 1999).
United States v. Bruno, 661 F.3d 733 (2d Cir. 2011).
United States v. Dorri, 15 F.3d 888, 894 (9th Cir. 1994).
United States v. Malkus, 696 Fed.Appx. 251 (9th Cir. 2017).
United States v. Menedez, 291 F.Supp.3d 606 (D.N.J. 2018).
United States v. Repak, 852 F.3d 230 (3d Cir. 2017).
United States v. Verrusio, 762 F.3d 1 (D.C. Cir. 2014).
Wisc. Stat. Ann. § 946.61 (West 2015–16).
Wyoming Const. Art. 3, § 42.
Alldridge, Peter. 2000. Relocating criminal law. Dartmouth: Dartmouth Publishing Company.
Carney, Jordain. 2015. Bernie Sanders to fight for campaign finance reform. The Hill. http://thehill.com/blogs/ballot-box/presidential-races/250187-sanders-campaign-finance-system-amounts-to-legalized. Accessed 26 Feb 2019.
Green, Stuart P. 2005. What’s wrong with bribery? In Defining crimes: Essays on the special part of the criminal law, ed. Antony Duff and Stuart P. Green, 143–165. Oxford: Oxford University Press.
Hellman, Deborah. 2017. A theory of bribery. Cardozo Law Review 38: 1947–1992.
Kohn, Alfie. 2011. The case against grades. http://www.alfiekohn.org/article/case-grades/?print=pdf. Accessed 20 July 2018.
Sandel, Michael J. 2012. What money can’t buy: The moral limits of markets. New York: Farrar, Strauss and Giroux.
Walzer, Michael. 1983. Spheres of justice: A defense of pluralism and equality. New York: Basic Books, Incorporated.
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Hellman, D. (2019). Understanding Bribery. In: Alexander, L., Kessler Ferzan, K. (eds) The Palgrave Handbook of Applied Ethics and the Criminal Law. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-22811-8_7
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