Brad Smith Also Rejects Claim That Fundraising Against Collins Should She Vote for Kavanaugh is Bribery, But He Has Another Concern

Smith in WaPo:

The first relevant statute is 18 U.S.C. 201, which prohibits any person from “corruptly” offering “anything of value to any public official . . . with intent to influence any official act.” The organizers and donors here clearly want to influence an official act — Collins’s vote on Kavanaugh. But are they doing so “corruptly”?

Others have suggested the statute doesn’t apply because the funders are not offering anything to Collins — they’ll be giving it to someone else. Is it a “thing of value” to not give money to a candidate’s opponent?

I think the answer to each of these questions is a clear “no.” Few would consider it an illegal bribe, for example, if an advocacy group threatened to turn out 100,000 opposition voters unless the officeholder went the right way on a crucial issue. But could an ambitious U.S. attorney get an indictment or a plea bargain on the theory that this is a corrupt offer of “anything of value”? I’m guessing probably yes. Whether a jury would convict is another question.

Smith does raise another concern, which I had not focused on before:

Then there is the Maine People’s Alliance, which is also an incorporated entity. Thanks to the Supreme Court’s Citizens United v. Federal Election Commission decision, the group can spend money urging votes for or against a candidate. But it is still prohibited by law from using its corporate resources to raise funds for a candidate’s campaign, meaning the Alliance may have run afoul of the law. It wants to overturn Citizens United but, perhaps, it should be calling to expand it.

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