Bribery Act (1962)

Stuart P. Green

The act of bribery is the payment of something of value to a person in a position of power or trust in order to influence that person's behavior. Bribery has been subject to legal prohibitions of one sort or another since the beginning of recorded legal history. Today, despite significant variations in the level of enforcement, bribery is recognized as a criminal offense in nearly every country in the world. Indeed, it is hard to imagine a modern political or legal system that does not at least claim to condemn such practices.

In the United States, prohibitions on bribery date to the earliest days of the Republic. Bribery is one of two crimes (the other being treason) for which the United States Constitution (Article 2, section 4) specifically prescribes impeachment of public officeholders. Under earlier law, separate provisions applied to various categories of officeholder, such as members of Congress, judges, and administrative agency employees. In 1962 these provisions were consolidated into a single statute, the Bribery Act (P.L. 87-849, 76 Stat. 1119.

FEATURES OF THE ACT

Section 201 of the act makes it a crime to commit (1) an act of bribery (punishable by up to fifteen years in prison) and (2) the less serious offense of payment or receipt of an official gratuity, or a tip for some kind of service (punishable by up to two years in prison and a fine). Both offenses require proof that something of value was requested, offered, or given to a federal public official. Unlike the offence of giving a gratuity, the offence of bribery requires that something of value be given "in return for" influence over an official act and that such thing be given or received with "corrupt" intent. The offence of giving a gratuity requires merely that something be given "for or because of" an official act.

The Bribery Act is aimed primarily at corruption among officials of the federal government. It applies to a broad range of officials who work in the judicial, executive, and legislative branches, as well as to private citizens who work for organizations that receive funds from the federal government, to witnesses in various kinds of federal proceedings, and to federal jurors.

The statute does not apply to state and local officials or to employees of private firms, though such persons are subject to a range of related federal and state corruption provisions.

Despite widespread agreement about the need for antibribery laws, there remains a great deal of confusion about exactly what conduct Section 201 does, or should, make criminal. Read literally, a twenty-dollar tip to the mailman at Christmas would violate the gratuities provision, as would various run-of-the-mill political endorsements, agreements not to run for office, and instances of "logrolling" (when legislators trade votes to benefit each other's pet projects).

JUDICIAL REVIEW

Two cases illustrate the difficulty of distinguishing between illegal bribery and related forms of (presumably) legal conduct in the political and legal process. The first, a federal appeals court decision from Kansas, United States v. Singleton (1998), involved the common practice by which federal prosecutors promise a witness leniency (and, in some cases, even money) in return for the witness's agreeing to testify in a criminal case on behalf of the government. Under a literal reading of the statute, such practices surely do constitute an illegal gratuity. The court in Singleton initially reached precisely this conclusion. But federal prosecutors throughout the country argued that the effects of such a decision would be extremely troublesome. Their ability to prosecute would be seriously handicapped if they were no longer permitted to obtain testimony by promising witnesses leniency and other "things of value." As a result, and despite the literal reading of the statute, the initial decision in Singleton was quickly overruled. Prosecutors could continue to make promises of leniency in return for witness testimony.

The Supreme Court case United States v. Sun-Diamond Growers of California (1999) illustrates a similar problem of a law casting too wide a net. Sun-Diamond Growers of California was a trade association that lobbied various federal agencies and officials on behalf of its members. Like many lobbying groups, this association engaged in the common practice of "wining and dining" the officials it hoped would look favorably on its members' interests. Secretary of Agriculture Mike Espy was the recipient of some of the trade association's generosity, which included tickets to a tennis tournament and several expensive meals. At trial, the association was convicted of giving illegal gratuities. On appeal, it argued that gifts given to an official merely to build up a reservoir of good will, and not to influence any particular matter before the official, should not be regarded as an illegal gratuity. The Supreme Court agreed, reversing the conviction, and drawing an extremely fine line between cases in which a gift is given to an official simply because he is a public official, and cases in which a gift is given to an official who is actually considering, or has recently considered, some specific matter of business that is of concern to the gift-giver. The Court decided that only the latter circumstances would properly give rise to a prosecution for illegal gratuities. In so doing, the Court sought to avoid a ruling that would have criminalized "token gifts to the President based on his position and not linked to any identifiable act—such as the replica jerseys given by championship sports teams each year during ceremonial White House visits," and "a high school principal's gift of a school baseball cap to the Secretary of Education, on the occasion of the latter's visit to the school."

ENFORCEMENT

Given the potential overreaching nature of the bribery laws, it is not surprising that enforcement has tended to be somewhat less than uniform. In the 1920s, most prosecutions concerned agents enforcing Prohibition laws; in the 1940s, draft board members; and in the 1950s, tax officials. The Watergate scandal gave probably the greatest boost to anticorruption law and its enforcement. In the 1970s a whole range of new statutes, regulations, special prosecutors, and watchdog agencies were developed to fight governmental corruption of various sorts.

Perhaps the most famous bribery case in the post-Watergate era was the Abscam investigation of the late 1970s and early 1980s. FBI agents set up a fictitious company, Abdul Enterprises, to lure various public officials into accepting bribes. The agents secretly videotaped meetings between various high-ranking federal and state officials and a make-believe Arab sheik supposedly seeking various official favors. The most prominent conviction arising out of the investigation was that of Senator Harrison Williams of New Jersey, who resigned from office rather than being voted out by his colleagues. Although Abscam was successful in exposing corruption at the highest levels of the American government, it was also widely criticized for unfair entrapment techniques used to lure officials into wrongdoing.

See also: FEDERAL BLACKMAIL STATUTE.

BIBLIOGRAPHY

Green, Stuart P. "What's Wrong With Bribery?" In Defining Crimes: Essays on the Criminal Law's Special Part, edited by R.A. Duff and Stuart P. Green. Oxford: Oxford University Press, forthcoming 2005.

Noonan, John T., Jr. Bribes: The Intellectual History of a Moral Idea. New York: Macmillan, 1984.

Philips, Michael. "Bribery." Ethics 94 (1984): 621–636.

The Teapot Dome Scandal

The Teapot Dome affair was the most famous case of corruption in the scandal-plagued administration of President Warren G. Harding. In 1921, Secretary of the Interior Albert B. Fall persuaded the secretary of the navy, Edwin Denby, to transfer the naval oil reserves at Teapot Dome, Wyoming, and Elk Hills, California, from the Department of the Navy to the Department of the Interior. Shortly thereafter, Fall leased the Elk Hills fields to his friend Edward L. Doheny of Pan-American Petroleum and the Teapot Dome fields to Harry F. Sinclair of Mammoth Oil. After Harding died in August 1923, an investigation revealed that Fall had accepted $400,000 in "loans" from the two oil companies. The Senate hearings into the matter, held in early 1924, caused a sensation in the media, and the Democrats took every opportunity to spread the blame to as many Republicans as possible. Doheny, Sinclair, and Fall were acquitted of conspiracy to defraud the government, but Sinclair was jailed for contempt of Congress and jury tampering, and Fall was convicted of bribery, becoming the first cabinet member in U.S. history to serve a prison sentence. Denby and Attorney General Harry Daugherty were acquitted of charges but forced to resign. Harding had once commented to a journalist that his enemies were not a problem, "but my damned friends.... they're the ones that keep me walking the floor nights!"