Prosecuting Corruption Cases in an Economy of Influence

The consensus reaction by readers to my last few columns on the subject of “corruption” and its pervasive effect on our political culture and the mixed economy which produces it appears to be, “Prosecute the hell out of them.”  As I have pointed out before, however, this strategy is problematical at best in our representative democracy which is and will continue to be privately financed unless the American people have a sharp change of mind about the value of public financing of political campaigns.
Elected officials, candidates for public office, and every person who contributes money to candidates in elections with the expectation that certain promises will be kept, should want the definition of “quid pro quo” clarified, hopefully by the Supreme Court of the United States, if they care about the rule of law.  Until it is, the law will be unclear.  As a result, the limits of prosecutorial discretion will vary with the view of the prosecutor exercising it.
Now that the Supreme Court in Citizens United v. Federal Election Commission has seen fit to open the floodgates to allow unlimited, open and direct spending by wealthy individuals, corporations and labor unions to influence the outcome of elections, it should acknowledge the reality it created even though it clearly didn’t anticipate doing so.  That reality, as columnist George F. Will has pointed out, is that “politics in a democracy is transactional.”  Honest and decent candidates routinely solicit the support of interest groups, corporations and wealthy individuals and such entities regularly solicit the solicitousness of candidates.  It is therefore not uncommon for wealthy individuals to support candidates lavishly for elective offices at every level of government with the expectation of receiving in return, jobs, ambassadorships, appointments to Boards and Commissions and/or with the hope that the candidate, if elected, will show gratitude for their generosity in the form of implementing policies desired by their financial benefactors.
Is this “quid pro quo-corruption?”  Until this question is answered directly by the U.S. Supreme Court, honest Americans running for public office risk criminal prosecution because of the wide discretion prosecutors arguably possess to criminalize the financing of their campaigns.  Conversely, in the absence of a bright line limiting prosecutor’s authority, convictions obtained by dedicated prosecutors trying to root out and punish corruption by aggressively holding corrupt candidates and their contributors accountable are seriously at risk.  This is because it is well settled constitutional law that fundamental due process is denied when the law does not give proper notice of what kind of behavior is proscribed criminally.  It is this due notice that circumscribes prosecutorial discretion in corruption cases.  This was the reason that the convictions of several high profile elected officials and corporate officers for “depriving citizens of home services” were overturned on appeal by the U.S. Supreme Court and several federal circuit courts of appeals.
The federal circuit courts however differ on what evidence is required to establish bribery involving political contributions.  One circuit court has held that to establish bribery involving political contributions requires proof of an “explicit” quid pro quo meaning “an express promise.”  The Oxford English Dictionary defines “explicit” as “stated clearly and in detail, leaving no room for confusion or doubt.”
    Another circuit court, however, has held that “explicit” does not mean an “express” or an actually and clearly stated promise that a particular official action will be controlled by a contribution.  This far less rigorous standard holds that “explicit quid pro quo” can mean only a “state of mind inferred from perhaps suspicious circumstances.”  This opens the breadth of prosecutorial discretion dangerously beyond the other standard.  More importantly it would in the opinion of this writer tempt zealous prosecutors and perhaps ultimately judges and juries to ascribe unspoken but criminal mental states to elected officials who are already held in low esteem generally.  
    This is not a long term or even a temporary solution to the increased visibility of corruption in our system.  The problem in a nutshell, as George F. Will pointed out not too long ago, is that “the line is blurry between the exercise of constitutional rights and the commission of a crime.”  That line needs to be straightened and brightened.  It needs to be straightened with a vision of what the U.S. Supreme Court recognized in Caperton v. Massey Coal, but then afterward ignored in Citizens United— “whether after a realistic appraisal of psychological tendencies and human weakness” there is such a “risk of actual bias of prejudgment by the official” as a result of campaign contributions “that the practice must be forbidden if the guarantee of due process is to be adequately implemented.”

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