The Kavanaugh Nomination and the "Bribery" of Susan Collins

A crowdfunding campaign in Maine is seeking to pressure U.S. Senator Susan Collins to oppose the nomination of Brett Kavanaugh to the Supreme Court. Collins, a moderate pro-choice Republican, is considered one of the few Republican Senators who might oppose the president’s nominee. Two progressive groups have raised about $1.4 million from nearly 50,000 individual donors, promising to donate the money to Collins’s (as yet unknown) 2020 Democratic opponent if Collins votes to confirm Kavanaugh. If she votes against the confirmation, the groups say they will return the money to the donors. Collins says the campaign is illegal. She claims two attorneys have told her it constitutes bribery and one told her it is extortion. Other Republicans also have expressed outrage. The Wall Street Journal weighed in with an editorial headlined, “You Can’t Bribe Susan Collins.” A watchdog group referred the matter to the Department of Justice and asked for a criminal investigation, claiming that it’s “pretty clear . . . that this is absolutely an act of bribery and corruption.” Actually, the opposite is pretty clear: the crowdfunding effort is neither bribery nor extortion. That doesn’t mean it’s laudable, and to many the effort does seem a bit shady somehow. But like it or not, it’s simply a slightly more explicit example of what goes on every day in our politics. What the spat really highlights is the thin and often blurry line between political corruption and our current campaign finance system.

Senator Susan Collins (R - Maine)

It's Not Bribery

The relevant section of the federal bribery statute, 18 U.S.C. 201(b)(1)(A), prohibits corruptly giving or offering a “thing of value” to a public official to influence that official in the performance of an official act. As a United States Senator, Collins is a public official as defined in the statute. And although the Supreme Court in the recent Bob McDonnell case dramatically limited the scope of the term “official act,” there’s no question that voting on a Supreme Court nominee would qualify. There’s also no question that the crowdfunding effort is an attempt to influence Collins in her performance of that official act. So far, so good, right? But the first hitch in the bribery theory is that it appears nothing is being given or offered to Collins at all. The $1.4 million is certainly a “thing of value,” but it’s being promised to some future, unknown opponent of Collins, not to Collins herself. However, the term “thing of value” has been interpreted very broadly. It includes intangibles such as promises of future contracts, job offers, and even the companionship of a significant other. I think you could make a decent argument that the promise to withhold $1.4 million from a future opponent is a “thing of value” to Collins for purposes of the federal bribery statute. It might be a bit of a stretch, particularly since her opponent is not even known yet (and I’m not sure we know for certain that she intends to run for re-election). But it doesn’t seem crazy to me. The “thing of value” in a bribery case should be something that might influence the official to act a certain way. The promise to give to -- or withhold from -- her future opponent’s campaign a substantial sum of money seems like it would have the ability to influence Collins’s actions. Indeed, that's precisely the point. The real problem with the bribery theory is the requirement of “corrupt” intent. Proving a defendant acted corruptly – knowingly and with a bad purpose to do something improper – is easier when bribes consists of secret gifts or briefcases full of cash. But campaign contributions carry almost a presumption of legitimacy. They are publicly disclosed and legal (as long as they are within proper limits). They’re also considered an essential component of the right of citizens to express their views and support candidates of their choice. It's not impossible to base a corruption case on a campaign contribution, but the bar is very high. It’s not enough simply to show that the politician acted in a way desired by someone who made a large donation. Prosecutors must demonstrate an explicit agreement that the candidate will act a certain way in exchange for the contribution. Corrupt intent typically is highlighted by the fact that such deals are struck in secret – and such evidence is very hard to come by. For example, in the recent trial of New Jersey Senator Bob Menendez, after the jury deadlocked the judge dismissed all the bribery counts where the thing of value alleged was a political contribution. The judge found that prosecutors had failed to prove the required explicit link between those contributions and any actions by Menendez. The judge did not dismiss the bribery counts involving other things of value, such as undisclosed gifts of vacations and private jet trips. But he ruled that the bribery charges based on political donations – and linked to the same alleged official acts by Menendez – had to be dismissed for lack of evidence. (After the case was gutted by the dismissal of those counts, prosecutors decided to drop the remaining counts and not re-try Menendez.) In the Collins case, the pledged contributions are within legal limit and have been publicly disclosed. There is certainly no secret deal with Collins to influence her – just the opposite. And there could be no agreement with her opponent, who isn’t even named yet. The Supreme Court’s decision in Citizens United made it clear that even if huge amounts of money are sloshing around within the political system seeking to influence candidates and elections, that alone does not demonstrate corruption. The crowdfunding effort is indeed intended to influence Collins, but that’s not enough. Lobbyists and donors seek to influence politicians all the time. Bribery requires not just an intent to influence but a corrupt intent. I don’t see how that could be shown here.

It's Not Extortion, Either

Collins has also suggested the crowdfunding effort might amount to extortion. The primary federal extortion statute, the Hobbs Act, 18 U.S.C. 1951,  prohibits extortion by force, violence or fear, or under color of official right (a popular public corruption theory). Extortion by fear includes using fear of economic harm, such as threatening to ruin someone’s business. One could argue that the threat to donate to Collins’s opponent amounts to using fear of economic or professional harm to influence her actions. But extortion requires that the defendant obtain property from the victim. The Hobbs Act defines extortion as “the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.” 18 U.S.C. 1951(b)(2). The Supreme Court made clear in Scheidler v. National Organization of Women that this statute requires both that the victim was deprived of actual property (not the broader “thing of value” used in the bribery statute) and that the defendant obtained that property. In a more recent case, Sekhar v. United States, the Court noted that the Hobbs act prohibits common law extortion, which  historically "required the obtaining of items of value, typically cash, from the victim. It did not cover mere coercion to act, or to refrain from acting." Here the crowdfunding groups are not obtaining any property from Collins. They are obtaining money from their donors, but those donations are given willingly and not due to force, violence or fear. Because Collins is not being forced to give up any property, extortion simply does not apply. So if it's not a crime, why does the effort to pressure Collins feel sort of - icky?

Crowdfunding, Bribery, and Campaign Finance

Public officials occupy a position of public trust. They are supposed to act in the best interests of the public as a whole, to do their best to further the interests of those they have sworn to serve and who pay their salaries. Bribery is a crime because a bribe causes the official to act not for the benefit of all but for the benefit of the bribe payor. The political system is corrupted because the bribe recipient acts not for the public good but for some private benefit. To prevent this type of corruption, we have laws against bribery. But at the same time, we have a system of privately-financed campaigns. Politicians have a need to raise money for their elections. They routinely campaign and seek donations by promising to vote or act a certain way if elected. Citizens have a fundamental right to express their views to elected officials and to support them financially. The tension here is obvious. Political donations, particularly very large donations from super-PACs and similar groups, are things of great value. They certainly have the potential to influence a politician who seeks those donations. If a politician votes a certain way not because she truly believes it is in the best interests of the public but because that is the wish of a major donor to her campaign, it becomes pretty hard to distinguish that from bribery. The underlying concerns are exactly the same. Indeed, one could argue that our system of privately financed campaigns is fundamentally a system of legalized, organized bribery. Politicians, of course, deny they are influenced by large donations. They say things like “my vote is not for sale,” and that their donors generally support their policies but the donations will not induce them to act in any particular way. The donors say pretty much the same thing. And the rest of us are expected just to sit back and gaze admiringly at the emperor’s new clothes. The Maine crowdfunding effort seems a bit jarring because it is so open and explicit – but it really is just politics as usual within our current system. Individuals and organizations on both ends of the political spectrum routinely promise to grant or withhold support based on particular actions they want politicians to take. Many such promises are made behind closed doors, in the proverbial smoke-filled rooms, although these days politicians are increasingly up front about such attempts to influence them. It wasn’t long ago that Republicans on Capitol Hill were saying they had to pass president Trump’s tax cuts because their big donors were telling them that if they didn’t get this done they shouldn’t ever bother calling for donations again. “Vote this way or you won’t get our money” – that’s really no different from the Maine crowdfunding plan. The professed outrage of Senator Collins and her Republican colleagues displays all the sincerity of Captain Renault in  Casablanca “discovering” there is gambling going on in Rick’s café:  “I’m shocked, SHOCKED to learn there are people who might try to influence politicians through large contributions!” The crowdfunding effort is just politics as usual -- albeit not by the usual suspects -- within the campaign finance system Congress and the Supreme Court have given us. If Collins and her colleagues don’t like it, maybe they could join with some Democrats to enact meaningful campaign finance reform. Who knows, it could be the beginning of a beautiful friendship.

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