Deborah Hellman (University of Virginia - School of Law) has posted A Theory of Bribery (Cardozo Law Review, Forthcoming) on SSRN. Here is the abstract:Highly recommended at the Legal Theory Blog.
In a unanimous opinion in McDonnell v. United States, the Supreme Court invalidated the conviction of the former Governor of Virginia on charges of bribery and called attention to the critical role that bribery laws play in democratic government. Bribery laws fulfill this function by determining what actions of governmental officials are, and are not, for sale. Bribery laws also undergird the Court’s campaign finance cases. Campaign finance doctrine rests on the assumption that a legitimate campaign contribution is distinguishable from a bribe, a least in theory. But is it? In order to answer this question, we need a theory of bribery. This is no easy task.
This article offers a new theory of bribery according to which agreements to exchange official acts for something else only constitute bribery when the value exchanged for the political act is something external to politics. According to this “external value” account, trading a legislative vote for money is bribery while trading it for another vote is not.
An “external value” theory of bribery explains why campaign contributions are controversial. Contributions can be seen as money or politics. However recent Supreme Court cases treat giving money to the campaigns of political candidates and elected officials as a central form of political participation. But if the campaign contribution is a purely political act, it becomes increasingly difficult to distinguish a campaign contribution from a bribe.
The connection between legal standards for bribery and campaign finance, and the need for a better theoretical conceptualization of these offenses is timely and appropriate.