The Bribery Double Standard: Leveraging the Foreign-Domestic Divide.

• Author: Manee, Anna A.

Table of Contents Introduction I. A Conceptual and Legal History of U.S. Bribery Laws A. Bribery in the Early Years: 1787-1850 B. The Spread of Bribery: 1850-1910s C. The Era of Good Governance: 1920s-1970s D. The Solidification of the Antibribery Regime: 1970s-2010 II. The Era of Permission: An Examination of Recent Cases A. Skilling v. United States, 2010 B. Citizens United v. FEC, 2010 C. McCutcheon v. FEC, 2014 D. McDonnell v. United States, 2016 III. The Domestic Bribery Statute: Disconnected from Popular Perception IV. Proposed Reforms A. The Foreign Corrupt Practices Act as a Practical Model for Facilitating Sought-After Reform B. Proposed Amendments 1. Improper-advantage provision 2. Attorney General provision for guidelines and opinions C. Proposed Statutory Language V. Responses to Critiques A. A Stronger Bribery Law Will Not Chill Democracy B. A Stronger Bribery Law Would Bolster Integrity of Office C. A Stronger Bribery Law Would Align Foreign and Domestic Definitions of Bribery Conclusion Introduction

On July 30, 2005, Congressman William Jefferson of Louisiana arrived at the Ritz-Carlton Hotel in Arlington, Virginia, and accepted a leather briefcase containing $100,000 in cash. (1) According to wired recordings made at the time, Jefferson accepted this briefcase with the understanding that he would use a portion of the money, as well as his position, to influence U.S. and Nigerian government officials to provide favorable treatment to iGate, a tech company based in Louisville, Kentucky. (2) Five days later, much of the $100,000 was recovered from Jefferson's freezer, with some of this money even hidden inside a piecrust box. (3) Based on a mountain of evidence--including photographs of Jefferson's freezer--Jefferson was convicted of "11 charged counts, including conspiracy to commit bribery, [to commit] honest services wire fraud and to violate the Foreign Corrupt Practices Act (FCPA), as well as substantive convictions of bribery, honest services by wire fraud and a violation of the Racketeer Influenced Corrupt Organization Act." (4) Jefferson's initial appeals were unsuccessful, and in 2012, he began serving a thirteen-year sentence, the longest ever given to a once-sitting member of Congress. (5)

But something curious happened to Jefferson's sentence in 2017. Jefferson argued that, although he sought to use his position to help iGate in exchange for money, his actions did not constitute bribery because he had not engaged in an "official act." (6) The federal judge agreed and threw out Jefferson's convictions for wire fraud, money laundering, and soliciting bribes. (7) Puzzlingly, the federal judge retained the charge related to violating the Foreign Corrupt Practices Act (FCPA) in planning to bribe Nigerian officials. (8) In other words, a private company could use money to influence Jefferson, a domestic public official. But Jefferson could not use the same money to influence foreign public officials. In essence, Jefferson encountered a legal double standard involving domestic versus foreign bribery laws.

What gave rise to this double standard? To be guilty of bribing a domestic official, one must seek to influence the commission of an "official act," which is defined as "any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official, in such official's official capacity, or in such official's place of trust or profit." (9) Before 2016, courts interpreted the term "official act" to include a range of actions that an official would take in the ordinary course of her duties. (10) This interpretation was narrowed to the point of futility in 2016 with the Supreme Court's ruling in McDonnell v. United States. (11) As Virginia's governor, Robert McDonnell had accepted over $175,000 in gifts and loans from an associate, Jonnie Williams; in return, McDonnell introduced Williams to high-ranking government officials, implicitly encouraged his subordinates to conduct activities that would aid Williams's business, and promoted Williams's business during events at the Governor's Mansion. (12) At trial, a jury found that McDonnell had illegally accepted the gifts as bribes. (13) On appeal, however, the Supreme Court disagreed with the jury and found that McDonnell's actions--like encouraging his subordinates to buy Williams's products, arranging meetings between Williams and senior government officials, and throwing events in government buildings to advertise Williams's company--were not "official acts." (14) The Supreme Court reasoned that an "official act" must not only involve a formal exercise of government power but also be something that is "specific and focused that is 'pending' or 'may by law be brought' before a public official." (15) McDonnell was released and prosecutors dropped the charges. (16) As a result of the newly pared-down definition of "official act," prosecutors struggled to prosecute several other high-profile bribery cases, including a 2017 case against U.S. Senator Robert Menendez of New Jersey. (17) Moreover, individuals who had previously been convicted of bribery successfully had their charges thrown out. (18) Among these individuals was William Jefferson. (19)

Jefferson was unable to escape the FCPA charge, however. Passed in 1977 in the wake of the Watergate scandal, (20) the FCPA is widely recognized as a powerful tool in the fight against venality. Among other provisions, the FCPA criminalizes attempts to influence foreign public officials to secure an "improper advantage." (21) This approach is distinct from, and broader than, the approach of the domestic bribery law, which focuses more narrowly on exchanges of influence for an "official act." (22) Like the domestic bribery law, or similar conflict-of-interest laws for that matter, (23) the FCPA nevertheless contains wording that could be interpreted in a number of different ways. The FCPA does not define what precisely constitutes "influence," nor does it delineate what should be considered an "improper advantage." (24) What makes the FCPA so much more potent than the domestic bribery law, however, is that the FCPA allows flexibility in defining these terms. Unlike the domestic bribery statute, which specifies what should be considered an "official act," (25) the FCPA directs the Attorney General to issue guidance in the form of guidelines and opinions regarding its current enforcement policies, including what constitutes an "improper advantage." (26) Such guidance gives the law flexibility and specificity, thereby strengthening its enforcement. (27)

Much of the prior scholarship on bribery, corruption, and conflicts of interest focuses on how various terms should be defined, interpreted, and applied. (28) Based on these proposals, one can determine whether an actor like Jefferson or McDonnell should be considered guilty of bribery. We suggest, however, that the double standard between domestic and foreign bribery presents a deeper, more fundamental question: Should bribery laws be designed to narrowly define in their text what constitutes improper influence, or should bribery laws specify an executive actor who issues guidance as to how the law should be interpreted?

In this Article, we argue that the FCPA's approach of enabling the Attorney General to issue guidance produces a superior bribery law, one that is easier to interpret before the commission of an act and is easier to enforce once an act is committed. Moreover, such an approach does not remove Congress or the courts from the equation. If Congress wanted to add or clarify certain provisions in a bribery law that also offered guidance, it could amend the law; likewise, the courts could rule on the applicability of the law or the guidance itself. Our analysis of the differences between the domestic bribery statute and the FCPA offers concrete ways in which the domestic bribery law can be reformed.

Before continuing, it is worth underscoring the stakes involved in delineating bribery. Unlike many other criminal laws, confusion about what constitutes bribery can produce particularly destabilizing consequences for the United States. Consider the 2020 impeachment proceedings of then-President Donald Trump, in which the House Judiciary Committee sought to investigate whether Trump had engaged in bribery, an impeachable offense in line with treason, high crimes, and misdemeanors according to the U.S. Constitution. (29) During the proceedings, legal scholars hotly debated whether Trump's actions--withholding congressionally mandated aid to Ukraine (30)--amounted to a bribe. (31) Constitutional scholar Pamela Karlan argued that the Framers would have interpreted bribery broadly to include any act where "an official solicited, received, or offered a personal favor or benefit to influence official action--that is, putting his private welfare above the national interest." (32) Her counterpart, Jonathan Turley, disagreed. Turley maintained that delaying the release of congressionally mandated aid did not constitute an "official act." (33) Because the House of Representatives decided not to pursue bribery charges against Trump, (34) this debate was not settled. As it stands, the only way this debate will be resolved is if another official commits a similar action and Congress or the courts take up this matter again. If, instead, guidance could be issued beforehand, future officials would know whether their actions constitute bribery and would not have to wonder where the line is drawn.

This Article proceeds as follows. Part I reviews the history of bribery laws in the United States. These laws have traditionally been written or reformed reactively--usually following a major scandal--with lawmakers focusing on two objectives. First, lawmakers have sought to ban specific acts of undue influence from recurring. Second, lawmakers have expressed...