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.




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7 Responses

  1. Just by way of clarification, how would you define the mens rea element of bribery, simply as acting “knowingly or purposefully?” That would seem to accord with wide if not rather generous discretion as well. Does not the addition of the “intention to corrupt” as it were capture unsuccessful “attempts” at bribery? And without some specification of the end or consequence of the action, how do we define an intention with regard to acting knowingly or purposefully? The intention to corrupt can be specified, it seems to me, apart from the various motives that my lurk behind that intention (e.g., political power, increased esteem, personal gain, what have you). So, in short, can we not, and should we not, distinguish between “intent to influence” and the various motives that might give rise to that intent (in which case I would agree that such motives should not be construed as mental elements of the crime)?

  2. Brett Bellmore says:

    I don’t see how you strip the definition of bribery of motive. I honestly don’t. What you’re proposing there, once the element of motive is removed, are not “bribery” laws, but “giving somebody money” laws. Unless your intended end game is the criminalization of all campaign donations, (And some ‘reformers’ do have this goal, clearly.) the chosen means are wildly over-inclusive.

    It’s like calling my taking my date out to dinner, and then getting lucky, ‘in kind prostitution’. Motive matters a lot. You have to take it into account unless your aim is to radically alter the subject you’re regulating.

  3. Shag from Brookline says:

    Brett’s anecdotal attempt at analogy:

    “It’s like calling my taking my date out to dinner, and then getting lucky, ‘in kind prostitution’.”

    doesn’t seem to involve public integrity/interest – a victimless crime by standards of even moderate libertarians – unless perhaps there may be a Mann Act alleged violation because of the crossing of state lines. There is the matter of positive law and malum prohibitum and malum in se distinctions in addressing issues of public integrity/interest.

    Of course there is the matter of perhaps Brett’s date “getting lucky,” in which case which of them would be the prostitute?

  4. Actually, insofar as ascertainment of a precise motive is rather difficult, requiring proof of motive for a crime (the mens rea element) can create an almost insuperable obstacle to prosecution. We can of course infer motives from action (omission being one species of such), but as motives can be and in fact often are, quite mixed, such inferences are notoriously hazardous and uncertain. The simple or general intentional or knowledge element of action (or both): from mere negligence or recklessness to a more direct form of causation of or awareness (knowledge) of the consequences that result in description of a criminal act (hence ‘willful’ or ‘purposeful’) is, however, as a species of voluntary action, easier to determine and is importantly distinguishable from motive, especially when combined with a knowledge requirement (so, for instance, the accused had knowledge of—knew or should have known—the risk involved or was aware of the probable consequence of her action). One can commit a crime intentionally but from a variety of motives: who is to say which, if any motive predominates: greed, jealousy, anger, malice…? To believe in the importance of distinguishing intention from motive as in the proposition that wrongdoing is independent of motivation, is not to claim the two are somehow separated in the mind of the defendant. Nonetheless, we can frequently ascertain the reasons for an action, what constitutes its wrongfulness, before any attempt to discern a specific motive or motives. In fact this is one reason why criminal law does not perfectly track our moral judgments: they come apart, as it were. We may attempt to ascertain motives in various ways of course based on prior and subsequent behavior or actions, statements by the defendant, and so forth, but such an attempt is usually more relevant in criminal law after the determination of guilt, with sentencing, and thus as mitigating or aggravating factors. The requirement of a “specific intent” for some crimes in international criminal law (e.g., genocide) gets closer to, if it does not in fact amount to, an attribution of motive. In any case, it speaks to a wider scope for the role of (circumstantial) knowledge. In such cases, the burden of proof for prosecution is intended to be more stringent. Some of the discussion in my post, “Ascertaining the Motives of a Rebellious Slave,” may, in a roundabout way, also be helpful, although it is not about criminal law.

  5. Zephyr Teachout says:

    Thanks for all the comments. I have to run off to class, but there is a key point here that I think I need to underline (its something Kennedy and Thomas regularly get wrong).

    There is no clear set of what is a “bribery” law.

    Bribery laws as those laws designed to dissuade bribery, including:

    – Laws enabling the secret ballot
    – Campaign finance laws

    The first bribery statutes only applied to gifts to judges, and, like FECA or BCRA, required only general intent–the intent to give a gift. FECA and BCRA, like those early bribery statutes, criminalizes most campaign gifts, but excepts some (those under $2600). They are bribery laws.

  6. Joe says:

    Teaching the misinformed in various ways, I see.

    Look forward, if possible, for your analysis of today’s oral arguments, including any misunderstandings.