OPINION
During both the original trial and the retrial of this public-corruption case, the court in its instructions to the jury provided a definition of a quid pro quo. The court is of the opinion that these instructions should be memorialized and made more accessible to the public.
I. THE COURT’S JURY INSTRUCTIONS
Extortion, federal-programs bribery, and honest-services mail and wire fraud are different crimes with distinct elements. For all these counts, however, the court treated a “quid pro quo” as an element of the offense. Cf. United States v. Siegelman,
“For a defendant to be guilty under this statute, the government must prove that there was a quid pro quo. The term ‘quid pro quo’ is Latin for ‘this for that,’ or ‘these for those.’ For all of the alleged bribes in these counts, the thing of value allegedly promised or exchanged took the form of a campaign contribution. Campaign contributions and fund-raising are an important, unavoidable and legitimate part of the American system of privately financed elections. The law recognizes that campaign contributions may be given to an elected public official because the giver supports the acts done or to be done by the elected official. The law thus also recognizes that legitimate, honest campaign contributions are given to reward public officials with whom the donor agrees, and in the generalized hope that the official will continue to take similar official actions in the future.
*1311 “Lobbyists, as well as private individuals and other entities, often donate to the political campaigns of public officials and there is nothing illegal about this practice. Official acts that advance the interests of a lobbyist’s clients, taken shortly before or after campaign contributions are solicited or received from the lobbyist, can, depending on the circumstances, be perfectly legal and appropriate.
“Therefore, the solicitation or acceptance by an elected official of a campaign contribution does not, in itself, constitute a federal crime, even though the donor has business pending before the official, and even if the contribution is made shortly before or after the official acts favorably to the donor.
“However, when there is a quid pro quo agreement, orally or in writing, that is, a mutual understanding, between the donor and the elected official that a campaign contribution is conditioned on the performance of a specific official action, it constitutes a bribe under federal law. By this phrase, I mean that a generalized expectation of some future favorable action is not sufficient for a. quid pro quo agreement; rather, the agreement must be one that the campaign contribution will be given in exchange for the official agreeing to take or forgo some specific action in order for the agreement to be criminal. A close-in-time relationship between the donation and the act is not enough to establish an illegal agreement.
“A promise of a campaign contribution or a solicitation of a campaign contribution may be an illegal quid pro quo, as well. But to be illegal (1) it must be a promise or solicitation conditioned on the performance of a specific official action as I explained that phrase in the preceding paragraph; (2) it must be explicit; and (3) it must be material. To be explicit, the promise or solicitation need not be in writing but must be clearly set forth. An explicit promise or solicitation can be inferred from both direct and circumstantial evidence, including the defendant’s words, conduct, acts, and all the surrounding circumstances disclosed by the evidence, as well as the rational or logical inferences that may be drawn from them.
“Finally, the word material is a legal term, and it does not indicate whether something is tangible or intangible. Rather, it means that the promise or solicitation is one that a reasonable person would view as having the capacity or natural tendency to influence a person’s decision. It does not matter whether the decision-maker actually accepted the promise or solicitation and acted accordingly. Again, a close-in-time relationship between the donation and the act is not enough to establish an illegal promise or solicitation.”
Jury Instructions (Doc. No. 2388) at 20-24 (emphasis in original).
II. BACKGROUND
The indictment charged the defendants with federal-programs bribery, extortion, honest-services mail and wire fraud, money laundering, making a false statement, obstruction of justice, and conspiracy to commit federal-programs bribery.
Because campaign contributions implicate significant First Amendment rights, courts have fashioned heightened standards of proof to ensure that protected political activity is not criminalized or unduly chilled. These standards, however, are not a model of clarity. While eight defendants have been acquitted of all charges and this case is now over, the court writes on this issue to highlight a murky field of federal law.
III. QUID PRO QUO
Corruption undermines democratic institutions and distorts the representative process by substituting private interests for the will of the people. The public will have confidence in their government only if their votes matter. A vibrant democracy cannot ignore corruption in its midst.
Of course, corruption takes many forms. A bureaucrat can extort a business owner when approving a license. A police officer can pocket drugs and look the other way. And a politician can direct a government contract to a company in exchange for a personal check.
Those are relatively clear-cut examples. Bribes to unelected government officials often do not raise constitutional questions because those payments cannot be construed as campaign contributions. But corruption can take a more sophisticated form. Whenever private donations fund political campaigns, there is always potential for a bribe to masquerade as a campaign contribution.
Candidates and donors have a First Amendment right to accept or give campaign contributions, so long as those payments are not bribes. Indeed, the Supreme Court defines campaign contributions as political speech but has upheld limitations on campaign contributions to candidates in the interest of preventing corruption or the appearance of corruption. Buckley v. Valeo,
These concerns are particularly salient because private funding of campaigns is the norm in the American system of government. Regardless of whether a candidate is running for president or city council, he or she must raise substantial sums of money for advertisements, support staff, and get-out-the-vote efforts. Candidates typically call potential donors, hear their concerns, and request a contribution. For donors, campaign contributions are a way of participating in the political process and expressing support for their candidate of choice. Given this political reality, distinguishing an illicit bribe from a genuine donation is sometimes no easy task.
To illustrate this line-drawing problem, the court borrows an example that the defendants frequently cited as a model of
This example begs the question: when is a campaign contribution a bribe? It is axiomatic that citizens give money to politicians that they support. But a campaign contribution transforms into a bribe when it is tied to a specific act. In other words, when there is a quid pro quo or a “this for that.”
Three cases provide guidance on the definition of quid pro quo. In the first two, the Supreme Court demarcated the general boundaries, of a quid pro quo. More recently, the Eleventh Circuit Court of Appeals refined the standard. The court addresses each in turn.
A. McCormick and Quid Pro Quo
In McCormick v. United States,
During his 1984 re-election campaign, McCormick mentioned to Vandergrift that “his campaign was expensive, that he had paid considerable sums out of his own pocket, and that he had not heard anything from the foreign doctors.” McCormick,
McCormick was charged under the Hobbs Act, which 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.” Id. at 261 n. 2,
The Supreme Court recognized that an extortion conviction for receiving campaign contributions was fraught with constitutional and pragmatic concerns. As the Court explained:
“Money is constantly being solicited on behalf of candidates, who run on platforms and who claim support on the basis of their views and what they intend to do or have done. Whatever ethical considerations and appearances may indicate, to hold that legislators commit the federal crime of extortion when they act for the benefit of constituents or support legislation furthering the interests of some of their constituents, shortly before or after campaign contributions are solicited and received from those beneficiaries, is an unrealistic assessment of what Congress could have meant by making it a crime to obtain property from another, with his consent, ‘under color of official right.’ ”
Id. at 272,
Despite these concerns, the McCormick Court held that campaign contributions could form the basis for an extortion conviction. To obtain a conviction under the Hobbs Act’s “color of official right” language, the government must establish a “quid pro quo.” Id. at 273,
Thus, McCormick makes clear that a quid pro quo is required for a conviction when a campaign contribution is alleged to be a bribe. The Court defined a quid pro quo as a “this for that.” A bribe needs to be in exchange for a specific official act or omission. The McCormick Court, however, did not expand on what constitutes an “explicit promise or undertaking.” The definition of “explicit” remains hotly contested.
B. Evans and Inducement
A year after McCormick, the Supreme Court decided another case about the scope of the Hobbs Act. In Evans v. United States,
Evans was an elected member of a Georgia county commission. An FBI agent posed as a real estate investor and, over the course of several months, requested Evans’s assistance in re-zoning a plot of land. At the end of one meeting, the agent handed Evans an envelope with $7,000 in cash and a $1,000 check made payable to Evans’s campaign. Evans re
Regarding the question presented, the Court held that an affirmative act of inducement was not required for a conviction under the Hobbs Act. Id. at 265-66,
Evans also challenged the jury instructions as a violation of McCormick’s quid pro quo requirement. The jury instructions stated in relevant part: “if a public official demands or accepts money in exchange for [á] specific requested exercise of his or her official power, such a demand or acceptance does constitute a violation of the Hobbs Act regardless of whether the payment is made in the form of a campaign contribution.” Id. at 258,
In his concurring opinion, Justice Kennedy argued that the last sentence quoted above “can be interpreted in a way that is consistent” with McCormick’s quid pro quo requirement. Id. at 272,
Justice Kennedy then expanded on his definition of a quid pro quo:
“The requirement of a quid pro quo means that without pretense of any entitlement to the payment, a public official violates [the Hobbs Act] if he intends the payor to believe that absent payment the official is likely to abuse his office and his trust to the detriment and injury of the prospective payor or to give the prospective payor less favorable treatment if the quid pro quo is not satisfied. The official and the payor need not state the quid pro quo in ex*1316 press terms, for otherwise the law’s effect could be frustrated by knowing winks and nods. The inducement from the official is criminal if it is express or if it is implied from his words and actions, so long as he intends it to be so and the payor so interprets it.”
Id. at 274,
Justice Kennedy’s distinction between an “express” versus an “implied” quid pro quo becomes salient in the final case of this trilogy.
C. Siegelman and Express
The last case that addresses the quid pro quo standard also comes from Alabama. In United States v. Siegelman,
On appeal, the defendants asserted that the jury instructions “failed to tell the jury not only must they find that Siegelman and Scrushy agreed to a quid pro quo ... but that this agreement had to be express.” Id. at 1171 (emphasis in original). According to the defendants, a quid pro quo required evidence of actual conversations, either oral or written. In other words, defendants contended that an explicit quid pro quo had to be stated expressly.
The Eleventh Circuit rejected this argument. The court interpreted McCormick’s use of the word “explicit” to describe “the sort of agreement that is required to convict a defendant for extorting campaign contributions. Explicit, however, does not mean express.” Id. (emphasis in original). Rather, the Siegelman court read Evans as clarifying that an agreement must be in “return for a specific official action — a quid pro quo. No generalized expectation of some future favorable action will do.” Id. (emphasis in original). Under both McCormick and Evans, therefore, “there is no requirement that [an] agreement be memorialized in writing, or even ... be overhead by a third party.” Id. Such a burdensome requirement would not only be impractical but would also allow defendants “to escape criminal liability through ‘knowing winks and nods.’” Id. (quoting Evans,
D. Current State of the Law
As this case demonstrates, there is considerable debate over what McCormick, Evans, and Siegelman require. The defendants argued that campaign contributions could not be considered “bribes” under the federal-programs bribery statute. The defendants rehashed the arguments raised in Siegelman that an explicit quid pro quo had to be express. The defendants also asserted that a quid pro quo
The Circuit Courts of Appeals have struggled with these questions. The Second Circuit, for example, has limited Evans to non-campaign contribution bribes even though the defendant in Evans claimed that the payments were campaign contributions. Moreover, the Second Circuit interpreted Evans as holding that, in the non-campaign contribution context, a quid pro quo need not be explicit. United States v. Ganim,
The question, then, is how to harmonize McCormick, Evans, and Siegelman.
IV. DISCUSSION
The court believes that its jury instructions clarified the law in numerous ways. As an initial matter, the instructions have a long introduction about the appropriateness of privately funded campaigns. This language provides context for how campaigns are actually funded and reminds the jury that a mere coincidence of interest between the alleged bribegiver and official is insufficient to sustain a conviction.
More importantly, the court’s instructions attempted to resolve the quid pro quo debate. Too often, courts have conflated a “quid pro quo” with an agreement. But a quid pro quo is simply Latin for “this for that.” Federal corruption laws are not limited to completed agreements to exchange a vote for a campaign contribution. Thus, the court’s instructions distinguished between a quid pro quo agreement and a quid pro quo promise or solicitation.
An agreement is the paradigmatic example of a corrupt quid pro quo. An agreement requires a ‘meeting of the minds’ and typically results from negotiations about the ‘price,’ i.e. how much bribe money is needed to purchase a specific official action. In other words, a quid pro quo agreement is a corrupt bargain that exchanges a specific official action for a campaign contribution.
By contrast, a promise or solicitation is one-sided. Federal corruption laws criminalize the offering of a bribe (a promise) or a request for a bribe (a solicitation). The court, therefore, rejected the defendants’ argument that a solicitation was insufficient for a conviction because one-sided extortion is still criminal. An extortionate politician should not go free merely because the victim refuses the corrupt bargain. And yet, a rule requiring a quid pro quo agreement would have that perverse result.
A few hypothetical scenarios may prove useful:
Quid Pro Quo Agreement: Mayor Doe tells businesswoman Jones that he will award her company a contract if she donates $5,000 to his campaign. Jones responds by affirming that she will send a check for $5,000 to Doe’s campaign the next day.
Quid Pro Quo Promise: Businesswoman Jones tells Mayor Doe that she will*1318 donate $5,000 to Doe’s campaign if he awards her company a contract.
Quid Pro Quo Solicitation: Mayor Doe tells businesswoman Jones that he will award her company a contract if she donates $5,000 to his campaign.
As these examples illustrate, a party’s criminal liability can be determined based upon these distinctions. An agreement makes both parties liable. A promise may implicate only the bribegiver, while a solicitation may make only the public official liable.
In delineating between these concepts, the court was careful to include additional requirements for a quid pro quo promise or solicitation. Under the court’s instructions, the jury could find a quid pro quo agreement if there was a corrupt exchange for a specific official action. However, for a quid pro quo promise or solicitation, the jury had to conclude that the corrupt exchange was specific, explicit, and material. The court adopted these distinctions for several reasons.
First, unlike the Second and Sixth Circuits, this court interprets Evans as applying in the campaign-contribution context. Evans was prosecuted both for the $7,000 in cash and the $1,000 check made payable to his campaign. Evans,
Similarly, this court disagrees with the contention that Evans dilutes McCormick. The Evans Court granted certiorari to determine whether an “inducement” was a necessary element for conviction under the Hobbs Act. Evans,
“Also misplaced is the government’s reliance on the Supreme Court’s statement in Evans that the quid pro quo requirement is satisfied where it is established that ‘a public official has obtained a payment to which he was not entitled, knowing that the payment was made in return for official acts.’ The question in Evans was ‘whether an affirmative act of inducement by a public official, such as a demand, is an element of the offense of extortion’ prohibited by 18 U.S.C. § 1951. The statement relied upon by the government was nothing more than an answer by the Court to that question.”
United States v. Dean,
Second, this court included the “explicit” and “material” requirements for quid pro
The court further defined “material” as an offer “that a reasonable person would view as having the capacity or natural tendency to influence a person’s decision.” Jury Instructions (Doc. No. 2388) at 24. The material requirement ensures that jokes or promises of a pittance do not trigger criminal liability.
For a quid prop quo agreement, this court required only a specificity showing because agreements are, by definition, explicit. Under the court’s instructions, an agreement is “a mutual understanding, between the donor and the elected official.” Jury Instructions (Doc. No. 2388) at 22. Once again, under contract law, such a ‘meeting of the minds’ demonstrates that the terms of the agreement have been formalized — whether through writing, oral statements, winks and nods, or conduct. When there is a quid pro quo agreement, “the official asserts that his official conduct will be controlled by the terms of the promise or undertaking.” McCormick,
Additionally, the court did not include a “material” requirement for quid pro quo agreements because agreements have been negotiated and consented to. If a politician is willing to sell his vote for a steak dinner and the bribegiver agrees, that deal should still trigger criminal liability.
Finally, the court rejected the defendants’ argument that a bribe offer has to be “express” because Siegelman provides controlling authority. As the Eleventh Circuit recognized, an “express” requirement creates an unrealistic burden, especially if there are no electronic recordings of the relevant conversations or if sophisticated actors are offering or requesting bribes.
It is often true that “unexamined assumptions have a way of becoming, by force of usage, unsound law.” McCormick,
Much ink has been spilled over the contours of campaign finance law. Far less
The court hopes that its jury instructions and this opinion have helped clarify the case law. Ultimately, the Supreme Court needs to address this issue and provide guidance to lower courts, prosecutors, politicians, donors, and the general public.
Notes
. Given the numerous opinions already issued in this case, the court assumes a certain familiarity with the facts. For a thorough discussion of this litigation, see United States v. McGregor,
. Part of the confusion about Evans’s holding may stem from Justice Thomas’s dissent, which addressed an unbriefed argument. Justice Thomas contended that extortion was limited to wrongful takings under false pretense of official right. When extortion is involved, only the public official is the wrongdoer; but in a bribery case, both the official and the bribegiver may be at fault. Id. at 283,
. Justice Thomas’s dissent interpreted the majority opinion as requiring a quid pro quo, which he regarded as a "made up” standard but a "step in the right direction.” Id. at 287,