• William Warmke

Contribution or Corruption?

The line between donating to a candidate’s campaign and bribery isn’t always so clear.

For former Alabama Governor Don Siegelman, this line between campaign contributions and criminally defined bribery remained ever so elusive until an investigation into his donations occurred. Siegelman asserted “If I had known I was coming close to the line where a campaign contribution becomes a bribe and a crime, I would have stopped”. The Alabama Governor was sentenced to six and a half years for bribery.

The judge in this case drew that line with ease. Under federal law, it is a crime to solicit or accept money with the intent of being rewarded or influenced in official actions. The Supreme Court has allowed for campaign contributions to be part of such a scheme, ruling in 1991 that campaign contributions could be a bribe if prosecutors proved a “quid pro quo” arrangement. This means prosecutors would have to prove that the contribution was “made in return for an explicit promise or undertaking by the official to perform or not to perform an official act.” For Siegelman, there was overwhelming proof when witnesses saw a contributor deliver a check for $250,000 and leave it in Siegelman’s hands in return for a favor.

With the American public’s fear of political corruption rising all the way to America’s top elected official for the 2016 Presidential Election, it is fair to say that the public’s concern for the corrupting effects of money in politics is valid. However, unfortunately for the public, not every deal is as bright-lined as was depicted in Siegelman’s case. While Justice Kennedy on the Supreme Court has affirmed that the “quid pro quo” need not be expressly stated, Justice Thompson also mentioned that “distinguishing an illicit bribe from a genuine donation is sometimes no easy task.

When someone qualifies a favor as a condition before or after receiving campaign contributions, there can be bribery implications. After all, in our American democracy, a politician is supposed to represent their constituency and not favor any one specific person or corporation’s view simply because they donated funds. But if it’s as simple as that, what was Justice Thomas warning us about?

Loopholes. As with most things in politics, there is a run-around way of achieving the same goal but through “legal” means. This makes prosecutions for bribery extremely difficult, and this complicates campaign finance regulations, and enforcing campaign finance regulations, to a whole new level.

For example, there are ways around directly donating to a political candidate’s campaign, primarily through donating to Super PACS instead. Super PACS are independent expenditure-only committees, which may raise unlimited sums of money from corporations, unions, associations and individuals. Then, these Super PACS may spend unlimited sums to overtly advocate for or against political candidates – as long as the candidate receiving the benefit from this spending is not involved in coordinating these activities even ever so slightly.

Donating to these Super PACS allows contributors to indirectly sway a politician's views to suit the benefactor's personal motives. The Citizens United ruling by the Supreme Court essentially paved the way for legalizing bribery by allowing unlimited independent expenditures for any political candidate (by Super PACS). This way, “you're not paying THE politician, you're paying FOR him.

So how do we draw line between donating to a candidate’s campaign and bribery? The answer – as with most legal questions – is it depends. But with the current streak of Supreme Court decisions opening the floodgates for money in politics, it does not seem that this line will be distinctly drawn anytime soon except for in rare cases, like former Alabama Governor Don Siegelman, that do not fall within the loophole exceptions.