"The Gratuities Debate and Campaign Reform - How Strong is the Link?"

George Brown has posted this paper on SSRN. Here is the abstract:

The federal gratuities statute, 18 USC Section 201(c), continues to be a source of confusion and contention. The confusion stems largely from problems of draftsmanship within the statute, as well as uncertainty concerning the relationship of the gratuities offense to bribery. Both offenses are contained in the same statute; the former is often seen as a lesser-included offense variety of the latter. The controversy stems from broader concerns about whether the receipt of gratuities by public officials, even from those they regulate, should be a crime. The argument that such conduct should not be criminalized can be traced to, and is a part of, what I have called the
counter-revolutionary critique of the hard line on government ethics that grew out of the Watergate scandal. This Article focuses on recent federal court decisions, including the 1999 Supreme Court Sun-Diamond case, that appear to show reservations and even hostility toward the statute. These cases express concern about its potential sweep, its possible role as a trap for the unwary, and the power it gives to prosecutors. The recent
District of Columbia Circuit decision in United States v. Valdes is noteworthy in giving a narrow construction to broad language, based in part on a negative view of the statute. Nonetheless, the Article contends that the gratuities statute plays an important role as an auxiliary to bribery, serving as a prophylactic statute and permitting the prosecution of appearances of unethical behavior. A redrafted statute could correct undue narrowing and clear up confusion about what the statute does cover. The prohibited source approach discussed in connection
with Sun-Diamond provides a possible model.

Even with a redrafted statute, the controversy is likely to continue. The Article questions whether gifts from regulated entities to their regulators, and similar forms of public sector gratuities, are examples of innocent speech that serves a valuable social function. Campaign contributions, on the other hand, are often examples of such speech. Yet the Court has permitted limiting them, despite serious First Amendment objections to limits on speech and association. The compelling governmental interest that permits this regulation bears a strong resemblance to that underlying the anti-gratuity statute: fighting corruption by curbing attempts to acquire influence that cannot be adequately reached through bribery laws. The Article traces the evolution of the anti-corruption interest in the
Supreme Court's decisions beginning with Buckley v. Valeo. These decisions give added impetus to the considerations underlying anti-gratuities statutes. From Buckley onward, the Court has treated preventing the appearance of corruption as an interest more or less equal to preventing quid pro quo corruption itself. Yet once the concept of appearances is introduced, the entire notion of an anti-corruption interest acquires considerable
breadth. It is possible that a Supreme Court decision in Randall v. Sorrell will cut back on the scope of the anti-corruption interest in the campaign finance context. The Court is unlikely, however, to abandon completely its gratuity-like approach to campaign finance issues. Even if it does, that will only highlight the need for the gratuities statute. [Please note that a more complete version of this paper will be available after the Sorrell decision.]

Posted by Rick Hasen at June 20, 2006 07:21 AM