Respond to this Article June 2006

The End of Legal Bribery

How the Abramoff case could change Washington.

By Jeffrey Birnbaum

So far, the scandal surrounding disgraced lobbyist Jack Abramoff has produced some vivid and memorable examples of modern Washington graft--skybox tickets, pricey restaurant meals, golf junkets to Scotland. Yet at the center of the scandal is something more prosaic, and potentially far more explosive: good old-fashioned campaign donations. Deep in the plea agreements won by Justice Department lawyers are admissions by the defendants--Abramoff and his cronies, ex-DeLay aides Tony C. Rudy and Michael Scanlon--that they conspired to use campaign contributions to bribe lawmakers. Even though these gifts were fully disclosed and within prescribed limits, the government said they were criminal, and the defendants agreed. This aspect of the case has received little attention. But it is sending shudders down K Street. If such prosecutions were to become commonplace, the paid persuaders of Washington and their big-money clients would be dealt a body blow. If prosecutors begin to assert as a matter of routine that lobbyist gifts and campaign contributions are a form of bribery, it could open up a whole new front on the decades-old (and largely ineffective) effort to break the nexus of money and politics in the capital.

"More than in the past, the Department of Justice seems to be trying very hard to tie campaign contributions to legislative acts by members of Congress and to draw the inference that there's a criminal connection between the two," says Robert K. Kelner, chairman of the election law and political law practice at Covington & Burling. "If they succeed then I think it will change the standard advice that lawyers will give their clients about political contributions and also change common practices on Capitol Hill." Stanley Brand, a noted criminal defense attorney at the Brand Law Group in Washington, agrees. "The department is inching toward making campaign contributions the central thing of value when they charge a bribe," says Brand. "I don't know if they'll get all the way there. But it would be an eight on the Richter scale for the campaign finance system if they do. Every PAC and interest group would have to ask itself if its donation is going to be grist for a prosecution."

The earthquake would certainly upset Washington, but it would probably delight almost everyone else. For decades, opinion polls have shown that voters think their politicians are bought and sold by the rich and connected. But these same voters have also seen any number of campaign finance "reforms" put in place, only to watch the system become evermore driven by dollars.

Unlike overhaul efforts in the past, though, which have relied on politicians cleaning up the very system that keeps them in power, the Justice Department's Abramoff case opens up the possibility of genuine change. Imagine, for instance, if the oil companies and their executives could no longer link their campaign contributions to their interests in energy legislation. Or if trial lawyers couldn't do the same with tort reform legislation. Robbed of much of their ability to bend the power structure with donations and other gifts, these industries would have less reason to give at all. They'd be forced instead to rely on the persuasiveness of their arguments rather than the power of their pocketbooks.

Legalized bribery

Campaign finance laws are built on a legal fiction. To wit: Electoral donations are considered within the law even though they are actually bribes at root. Think of them as "legalized bribery." Through bundled contributions and PAC giving, industries, labor unions, and interest groups of all stripes try to persuade lawmakers to vote their way on the issues they care most about. Donors do not express their desire just that way. They use euphemisms like "buying access" to wink and nod their way toward the same thought. But the truth is the truth. Interests give money to buy votes. Unfortunately for those interests, lawmakers receive funds from so many sources, and also sometimes make their legislative decisions based on factors that have nothing to do with money, that the contributions do not always produce the result they desire. Still, the basic fact remains. The dollars would not be offered unless the donors hoped they would lead to a very specific result.

At the same time, congressional campaigns must be privately funded. Candidates for elective office have no choice but to raise the money they need to pay for advertising, consultants and the like. And that, in turn, has forced the legal system to attempt the impossible: to clear the way for financial gifts while also trying to limit the influence those gifts inevitably bestow on the recipients. The result has been an elaborate set of monetary limits and disclosure requirements that superficially transform outcome-directed gratuities into federally sanctioned benefits.

The compromise has never worked very well. Numerous campaign finance overhauls enacted since Watergate, up to and including the 2002 McCain-Feingold bill, have driven out many of the grossest abuses--for instance, lawmakers blithely accepting envelopes of money in exchange for favors. And disclosure requirements have at least given citizens the ability to see who's trying to purchase influence from whom. But by providing the imprimatur of respectability to campaign contributions, the so-called reforms also helped increase the flow of that money, and bred in donors and lawmakers alike a sense of invulnerability.

The laws certainly didn't stop former Rep. Tony Coelho, head of the Democratic Congressional Campaign Committee in the 1980s, from openly demanding that GOP-leaning lobbyists share their largesse with the reigning Democrats as the price of having their concerns considered. Nor did they hinder Abramoff, DeLay, and others from melding K Street and the GOP into a modern-day political machine. By placing loyalists in key K Street jobs, and cutting out Democrats when they could, GOP leaders gave themselves the ability to divert rivers of donations (from, say, Indian tribes or drug companies) to whichever close House race or subterranean independent expenditure they wished. And they've attempted to punish lobbying organizations that wouldn't cooperate. DeLay was even warned about the practice by the House ethics committee in 1999 after he and others tried to prevent an electronics association from hiring a Democrat as its president. "That was incredibly objectionable and, I thought, illegal; legislation was so clearly tied to finances. And DeLay made no bones about it. He even kept a list of Republican contributors in his desk," said Melanie Sloan, executive director of Citizens for Responsibility and Ethics in Washington (CREW). "Now, it seems the Justice Department is coming around to thinking that it is illegal, and that is an excellent thing."

When is a bribe not a bribe?

Whether they knew it or not, donors have always been under threat of bribery charges if they overtly tried to buy a lawmaker's vote with their campaign contributions--and the lawmaker acquiesced in the deal. But both donors and politicians have been largely shielded from the consequences of their actions in part because bribery cases involving campaign contributions are hard to prove in court.

Still, such cases are winnable if prosecutors are willing to put in the time. Former South Carolina state representative Paul Derrick was convicted in 1999 on extortion and conspiracy charges related to taking a fully disclosed, $1,000 campaign contribution in exchange for his vote on a gambling bill. Authorities conducted a sting operation (called, appropriately, "Operation Lost Trust") that directly connected the technically legal donation to the vote.

"If somebody follows the legislature's rules to the letter but it's then proven that they took something including a campaign donation in exchange for some official act, they nonetheless would be violating criminal law," says Jan Baran, an expert on campaign- finance law with Wiley Rein & Fielding. Kathleen Clark, a professor at Washington University Law School in St. Louis agrees: "The court has put obstacles in the way of prosecutions of special interest campaign contributions, but has never made them impossible."

All contributions, of course, are not bribes. A politician who runs on an anti-abortion platform, takes contributions from anti-abortion supporters, and subsequently votes in line with those views, would never be subject to the bribery statute. "There's a large segment of fundraising activity that is perfectly legal and appropriate," notes Baran. "Candidates will always get money in legal amounts from people who support them. That's not evidence that the public official has done anything in exchange for that money."

The shorthand way of expressing when a legal contribution can be a bribe is this: When a person gives anything of value, including a nominally legal campaign contribution, to a public official in exchange for what's known in the trade as an "official act," that is a bribe. Sun-Diamond Growers of California was convicted during the Clinton administration of giving illegal gratuities to Agriculture Secretary Mike Espy, including tennis tickets, luggage and other gifts worth about $5,900. But the Supreme Court let the agricultural cooperative off the hook in 1999 when it wrote, "For bribery there must be a quid pro quo--a specific intent to give or receive something of value in exchange for an official act." Espy had gotten plenty from Sun-Diamond, but had done nothing in return for the gifts. Therefore, no crime was committed.

Sounds simple, right? Well, it isn't. UCLA law professor Daniel H. Lowenstein wrote an entire chapter in a 2004 scholarly book, Private and Public Corruption, that he entitled "When Is a Campaign Contribution a Bribe?" His answer to the question he posed was, essentially, "Well, it's hard to know." The law on the subject, he wrote, is "unstable," "cloudy," and "hopelessly confused." What about the instance, he asked, in which a lawmaker promises to support a major donor "whenever I can"? Is that illegal? Or how about when a lawmaker changes his position on an issue right after a big contribution is given by a company that wants him to vote that way? Can that possibly be okay?

Experience tells us that lawmakers and lobbyists almost never say directly what they mean when it comes to what an average person would consider to be graft. Neither side of such a transaction is generally dumb enough to speak the following sentence for example: "Okay, here's the deal, for $100,000, the vote will go the way we agree." (The now-incarcerated former representative Randy "Duke" Cunningham actually did write out a bribe list--$50,000 for every $1 million in appropriated funds he would obtain--on congressional stationery no less. But he is the exception.) If a lawmaker accepts money to vote in favor of a briber's interest, that is almost certainly a crime. But beyond that, the issue is not clear-cut. "It's very difficult to make campaign contributions into a bribe, especially in the absence of undisputable video or audio recordings," says Baran.

In addition to the difficulty of gathering sufficient incriminating evidence of an explicit quid pro quo, prosecutors must also contend with recent court rulings that have narrowed the definition of what constitutes an "official act." In a 2 to 1 decision by a federal appeals court panel in February, the illegal gratuities conviction of a former D.C. Metropolitan Police Department detective named Nelson Valdes was overturned because his actions were not a "formal" part of his job and, therefore, were not deemed to be an "official act." Valdes ran license plate numbers through law enforcement databases and provided the vehicle-ownership information that he collected to a person who paid him cash. But the court ruled that since the collecting of such data represented a "casual and informal use of government resources" and was not part of his normal duties, his 2002 conviction had to be reversed. The ruling makes it that much harder to win bribery cases involving campaign contributions. "Now, virtually every time the government tries to bring an official-acts prosecution," says Boston College law professor George Brown, "the defense will cite the Valdes case."

A new supply of red ink

Yet despite all the obstacles, federal prosecutors have gathered enough incriminating evidence of campaign donation bribery in the Abramoff affair to convince those involved (and their high-priced lawyers) to own up to their crimes rather than take their chances in court. The pleas stemming from the Abramoff scandal all involve campaign donations. According to Abramoff's plea agreement, he, ex-DeLay aide Michael Scanlon, and others "engaged in a course of conduct through which one or both of them offered and provided a stream of things of value to public officials in exchange for a series of official acts.... These things of value included, but are not limited to, foreign and domestic travel, golf fees, frequent meals, entertainment, election support for candidates for government office, employment for relatives of officials, and campaign contributions." The plea deal for Tony Rudy, also a former DeLay aide, lists "election support" among the things of value he gave with Abramoff and others.

The Abramoff and Scanlon pleas get very specific. The contributions that they swapped for favors included $4,000 to the campaign committee of "Representative #1" and $10,000 in contributions to the National Republican Congressional Committee "at Representative #1's request." Representative #1 has been widely identified as Rep. Bob Ney (R-Ohio), who is under investigation as part of the Abramoff scam. Ney denies any wrongdoing. Officials close to the investigations say that possible campaign-donation bribery is also being looked at as part of the ongoing probes of as many as six other lawmakers.

The Abramoff incident has thrown official Washington into a whirl of self-examination and relative self-denial. All sorts of accepted rules and behaviors are being reconsidered. Many lawmakers and congressional staffers are voluntarily staying away from the fancy dinners and lunches that lobbyists love to host, at least for the time being. And one of Capitol Hill's sweetest and most widely available perks--travel to golf resorts underwritten by private pleaders--has become a rarely sampled treat.

But the most interesting signs of potentially big changes to come can be seen in the advice that beltway lawyers are giving to their clients. Ken Gross, head of the political law practice at Skadden, Arps, Slate, Meagher & Flom, has been swamped this year with requests for information and analysis from big corporations and trade associations eager to know how to stay out of trouble in post-Abramoff Washington. Gross is warning his big business clients to be extra careful about how they handle their millions of dollars in contributions to candidates for federal office. Tying those gifts even subtly to a request to take a specific action, he warns, could put both the giver and the receiver into legal jeopardy. Under this theory, for example, real-estate brokers would be prohibited from saying even tangentially that their donations are intended to protect the home-mortgage-interest deduction even though, of course, they are.

As a result, Gross and his team at Skadden are looking more minutely than ever at a wider variety of money-solicitation communications sent out by the political action committees they represent, and weeding out explicit language. Whenever the lawyers see wording that even suggests what the PACs want in return for their donations, they recommend that the offending text be removed. "I don't say that any of these things are legally actionable," Gross says. Yet he edits them out anyway. "I've had to get a new supply of red ink," he says.

These retrenchments are minuscule compared to the burgeoning reassessment of campaign giving, which is the biggest potential alteration that Abramoff could bring to town. If 2006 brings a slew of indictments against members of Congress and their aides, and those charges produce an uprising at the ballot box in November, almost anything can happen. Lawmakers could decide not to hold as many lobbyist-sponsored fundraising events, especially in Washington, for fear of bad publicity (and possible indictment against themselves) and raise much more of their money from small-dollar Internet-based sources and from their own constituents back home. So much of what denizens of the capital do revolves around raising money that if the Abramoff affair even slows campaign donations a little, Washington could be transformed a lot.

The Abramoff plea agreements are also sparking a reassessment among at least some public-interest groups about the best way to fight the "corrupting influence" of money in politics. For decades, such groups have poured their energies into trying to make the existing system of campaign-finance regulations and laws work better, to little avail. Now, groups like Melanie Sloan's CREW are turning increasingly to the Justice Department rather than to Congress to find redress against abuses in the campaign-finance system. Instead of spending all its time filing complaints with congressional ethics committees (which rarely act) or pressing for new lobbying laws, CREW has also been writing letters to the Justice Department seeking investigations, for example, of Republican Reps. Pete Sessions (Texas) and Jerry Lewis (Calif.) for acting too closely in concert with their donors. It thinks it has a strong chance for success there given the Abramoff cases. "Although the Justice Department has always been entitled to look at campaign contributions as bribes, it hasn't done so traditionally," Sloan said. "But now the department is making a change."

Groups for or against abortion don't just work to elect lawmakers who support their positions. They also bring lawsuits that challenge the constitutionality of, say, South Dakota's ban on abortion or California's stem-cell agency. With these suits, they hope not only to win specific battles but also to get judgments that set new legal precedents. Similarly, if groups devoted to reining in Washington's money culture really wanted to make headway, perhaps they would be wise to focus not only on pushing elected officials to change the system but also on ginning up investigations that might put lawmakers and their donors in jail and perhaps would force the courts to clarify their cloudy definitions of bribery. Money will always have a say in politics. But nowadays, its voice is deafening. Maybe the work of diligent prosecutors will soon allow average voters to be heard more often as well.

Jeffrey Birnbaum is a columnist and national correspondent for The Washington Post and a political analyst for FOX News Channel.


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