Criminal Corruption: Why Broad Definitions of Bribery Make Things Worse

Abstract

Although the law of bribery may look profoundly under-inclusive, the push to expand it usually should be resisted. This article traces the history of two competing concepts of bribery — the “intent to influence” concept (a concept initially applied only to gifts given to judges) and the “illegal contract” concept. It argues that, if taken literally and applied to officials other than judges, “intent to influence” is now an unthinkable standard. The article defends the Supreme Court’s refusal to treat campaign contributions as bribes in the absence of an “explicit” quid pro quo and its refusal to read a statute criminalizing deprivations of “the intangible right of honest services” as scuttling the quid pro quo requirement. While recognizing that the “stream of benefits” metaphor can be compatible with this requirement, it cautions against allowing the requirement to degenerate into a “one hand washes the other” or “favoritism” standard. The article maintains that specific, ex ante regulations of the sort commonly found in ethical codes and campaign finance regulations provide a better way to limit corruption than bribery laws, but it warns that even these regulations should not prohibit all practices that may be the functional equivalent of bribery. The article concludes by speculating about whether the efforts of federal prosecutors to reduce corruption over the past 60 years have given us better government.