The Problems with “Corrupt Motive” Bribery Laws
There are two kinds of bribery laws: prophylactic bribery laws, like the aggregate contribution limits at issue in McCutcheon v. FEC, and laws that require a corrupt motive, or intent to influence, as an element of the crime.
One thing I’d like to see the Court question McCutcheon on is the problematic nature of the laws that turn on motive. If they are broad, they are deeply chilling — far more so than a clear limit–because they criminalize gifting a thing of value with intent to influence, even in some cases where the thing of value is an otherwise legal campaign contribution. If they are broad, they give enormous power to prosecutors, and juries, and can be used for political leverage. If, on the other hand, they are narrow, they apply only to a small, fumbling bunch of keystone cops who foolishly admit, on paper or with an exaggerated wink, that they are giving their gift because of a particular political action they want to cause or reward.
Motive-based bribery and corruption laws are a weak instrument, as one 19th century casebook called them, with which to fight corruption.
Prophylactic rules–like the Australian Ballot, the Pendleton Act, and contribution caps–don’t cover only corrupt actions, but they clearer, less chilling, and less subject to political manipulation.