BRIBERY

The act or practice of benefiting a person in order to betray a trust or to perform a duty meant to be performed freely, bribery occurs in relation to a public official and, derivatively, in private transactions. This article will deal with both species in terms of (1) the tradition; (2) modern law; and (3) problems.

The tradition

Roots. Like many American legal concepts, the notion of bribery has its roots in the ancient Near East. As in most archaic societies, peaceful relations with strangers were here established in two ways, by gift and by contract. The gods or God were similarly made approachable by offerings or covenants. Against the norm of reciprocal relations ran two concepts. First, the ruler was the protector of the powerless, of "the widow and the orphan," as texts from Lagash (2400 B.C.), Babylon (1700 B.C.), and Israel (600 B.C.) expressed it. Second, man was judged by the gods impartially, as shown by the sales in the judgment scene of the Egyptian Book of the Dead (2500 B.C.). A ruler who aids the powerless is not responsive to gifts, nor is one who judges in the place of the gods. These religious insights crystallized in an image of a judge who does not take gifts for his judgment, an ideal apparent in Egyptian texts by 1500 B.C. The ideal received an expression of great influence on Western culture in Deuteronomy (seventh century B.C.), where it was stated that God in judging "does not take reward" (Deut. 10:17) and man in judging should not "take reward" (Deut. 16:19). The total biblical message on reciprocity was mixed but provides the main religious outlook from which the bribery prohibition of the West developed.

Biblical hostility to bribery was reinforced by a political tradition that appeared in the Greek city-states and had a strong impact on the ideals of the Roman Republic. The classic expression was provided by Cicero in his prosecution of Verres (whose name in Latin means "hog"), among the worst of whose offenses was "taking money for judgment," a crime described as "the foulest" (Against Verres, pp. 2, 3, 78). The essential sanction was supernatural, and climactically Cicero called on various gods to punish Hog.

The antibribery ethic, reflecting the biblical and classical sources, was conveyed by Christian moralists like Augustine and reinforced by the special aversion developed against a subspecies of bribery, the sin of simony, or sale of spiritual offices or goods. Denounced as a heresy, simony was the periodic object of reformers from Gregory I (A.D. 600) to Gregory VII (A.D. 1073). The notion of a spiritual domain that should not be sold complemented that of nonvendible justice. Papal pronouncements such as Innocent III's Qualiter et quando of 1205 (Gregory IX, "Decretales") insisted that judges must put aside "favor and fear" and "have God alone before their eyes."

Secular law followed suit. The antibribery ethic was firmly set out in Henry de Bracton's great mid-thirteenth-century treatise on English law (pp. 302–303), where the taking of bribery was condemned by biblical and Roman law and the judge who takes was said to be "corrupted by filth." Two notions, central to the idea of a judge in English law, were embodied in the antibribery ethic: trust should not be betrayed, acts of judgment cannot be sold. All subsequent development flows from these two ideas.

Literature and linguistics. The strongest teacher of the prohibition of bribery was literary. At the center of the European tradition stood Dantes Divine Comedy, in which bribery and simony constituted sins of fraud, more reprehensible than sins of violence because they involved misuse of man's intellect; those who sold secular justice were punished even more severely than the ecclesiastics, by immersion in a boiling, sticky pitch. Lucca, where "No becomes Yes for money," is eternally stigmatized as a symbol of civic corruption (Inferno, canto 21). Shakespeare fixed the English literary-moral tradition, especially with passages on bribes and corruption in Julius Caesar (act 4, scene 3) and with an entire play, Measure for Measure, which contrasts Christian spiritual reciprocities with foul redemption by a bribe. From Shakespeare to Henry Adams (Democracy ) and Robert Penn Warren (All the King's Men ), the moral offensiveness of criminal bribery has been a significant theme in English and American literature.

The classical languages had a single word—shohadh in Hebrew, doron in Greek, and munus in Latin—meaning gift, reward, bribe. The ambiguity reflected moral and legal ambivalences. By the sixteenth century, English used bribe unambiguously in its present moral and legal sense. By the same period to bribe, bribery, and briber were in use, as well as the colloquial expression to grease, meaning to bribe. Bribee, graft, and grafter are nineteenth-century terms, the latter two American. Slush fund, a source from which bribes are paid, and payoff are twentieth-century Americanisms. The association of bribes with dirt, dirty hands, and grease goes back to classical times. Euphemisms for bribe are gift, gratuity, reward, contribution, and kickback. Conflict of interest is sometimes used for a good-faith dilemma, sometimes as a euphemism for a situation produced by bribery.

Paradigms. In the Anglo-American tradition there have been several cases in which the defendant was so prominent that his prosecution was exemplary. (1) The paradigmatic trial of a bribe-taking judge was that of Francis Bacon, chancellor of England, convicted by the House of Lords in 1621. (2) The classic trial of a corrupt administrator was that of Governor-General Warren Hastings of Bengal, impeached by the House of Commons in 1787. Although ultimately acquitted, Hastings was irretrievably damaged in reputation, and his prosecution by Edmund Burke, modeled on Cicero's of Hog, set the standards for the nineteenth-century British civil service. (3) The trial of Oakes Ames, a Massachusetts congressman and a central figure in the Union Pacific–Credit Mobilier scandal, served as a double paradigm for bribers and legislators. Ames was censured by the House of Representatives in 1873 for bribing members of Congress. Legislative investigation created each paradigm. In each, multiple acts of bribery were established. The essential sanction in each was public shame.

Modern law

Nonstatutory sanctions. Bribery, along with treason, is one of two crimes for which the United States Constitution (art. ii, sec. 4) specifically prescribes impeachment for the President, Vice-President, and "all civil officers of the United States." Two federal judges have been impeached and convicted of corruption; more than a dozen others have resigned in the face of threatened impeachment. Indication of investigation has produced other resignations, most notably of a Justice of the Supreme Court.

Since 1873, Congress has censured members for bribe-taking or bribe-giving, and in 1980 it actually expelled a member after his criminal conviction. A more common sanction has been electoral, although belief that a candidate is a bribe-taker is more apt to act as a comparative disadvantage than an absolute disqualification. Lawyers convicted of bribery are subject to disbarment. In descending order of frequency, electoral disadvantage, forced or prudential resignation, disbarment, censure, impeachment, and expulsion have been sanctions for bribery in high American office. In enforcing them, the role of the press has been crucial.

Statutes. Modern statutes, state and federal, have four common characteristics. (1) They apply equally to receivers and givers. (2) They are comprehensive, including as officials all employees of government and those acting in a government capacity, such as jurors and legislators. More recent statutes include party officials and even party employees. (3) They treat bribery as a crime that can be committed by the briber even though the bribee is not influenced. (4) They treat bribery as a felony.

American statutes differ in that some treat a bribe as any "benefit," thereby including nonpecuniary favors, whereas others restrict the term to pecuniary benefits. Some, such as the New York Penal Code, permit extortion to be a defense for the bribe-giver (N.Y. Penal Law (McKinney) § 200.05 (1999)), but this defense is disapproved by the Model Penal Code (§ 240.1). Older statutes use corruptly to qualify the condemned giving and receiving, whereas more recent ones eliminate corruptly and speak more specifically. An essential component of modem statutes is an antigratuity provision making it criminal to confer any benefit on an official "for or because of any official act" (18 U.S.C. § 201(c)(1)(A)(1994)). Excepted, of course, are benefits provided by law. The provision eliminates a need to show that the benefit was "to influence" performance. The giver is guilty if he gave for the act; the recipient is guilty if he took on account of the act. Some statutes also criminalize compensation for a past official act, obviating difficulty in proving bribery (Model Penal Code § 240.3). Some statutes also criminally forbid private employment in a matter on which, as an official, one had acted, assimilating such conflicting interest to a bribe. An example of such a statute is the Bribery, Graft, and Conflicts of Interest Act of 1962, as amended, 18 U.S.C. §§ 201–208 (1999)).

Prosecutions. Neither the state nor the federal statutes have been systematically and uniformly enforced against all offenders. Usually either political investigation or particularly outrageous corruption has triggered prosecution. Routine federal cases show topicality: bribees were prohibition agents in the 1920s, draft-board members in the 1940s, revenue agents in the 1950s. Celebrated convictions include those of Secretary of the Interior Albert Fall for accepting bribes in connection with the Teapot Dome oil leases (Fall v. United States, 49 F.2d 506 (D.C. Cir. 1931)) and of Circuit Court Judge Martin Manton (United States v. Manton, 107 F.2d 834 (2d Cir. 1938)).

The 1970s were marked by a more sustained federal effort, in particular by the temporary Watergate Special Prosecution Force, by the permanent Office of Public Integrity in the Justice Department, and by the project known as Abscam, where the use of decoys and the filming of transactions led to the conviction of half a dozen members of Congress and a senator.

Auxiliary legislation. Evidentiary difficulty in proving bribery, conceptual difficulty in distinguishing bribes from campaign contributions, and experience with the effect of money on elections have led to the adoption of state and federal laws generically known as anticorrupt practice acts. Typically, these limit the amount of campaign contributions, require that they be made only to identified committees, specify that they be reported, and prohibit certain classes of contributors from contributing anything. Offenses under such statutes have, in general, been misdemeanors rather than felonies. The laws have been limited and sometimes invalidated by federal or state constitutional requirements.

For the most part the effectiveness of these statutes has rested chiefly on their being observed by law-abiding corporate managers, lawyers, auditors, and campaign officials. Before the 1970s there was almost no criminal enforcement of the federal law against corporations, contractors, or candidates. The Securities and Exchange Commission (SEC), by requiring the confession of illegal contributions by corporations with stock registered under the Securities Exchange Act, and the Watergate Special Prosecution Force, showed that the laws were often violated. John McCloy's report on Gulf Oil was particularly revealing, disclosing that a slush fund had been maintained for fifteen years, from which leading American politicians, including Senate Majority Leader Lyndon Johnson, were supplied with envelopes containing cash. The difference between such access payments and bribes was difficult to detect.

While federal agencies began to give vigor in the 1970s to the Corrupt Practices Act, federal involvement in prosecuting state and local bribery underwent an enormous expansion. Mail fraud law was used to catch the bribery of Governor Otto Kerner of Illinois. Failure to report the income led to the prosecution of Vice-President Spiro Agnew for bribes taken as governor of Maryland. In addition, on the books were (1) the Travel Act of 1961, as amended, 18 U.S.C. § 1952 (1999), making it a federal felony to use interstate facilities to commit what was bribery under state law; and (2) the much older Hobbs Act, 18 U.S.C. § 1951 (1999), covering any act affecting interstate commerce and defining extortion as obtaining property from another person with that person's consent "under color of official right." This definition was interpreted to include payoffs expressly or tacitly sought by a governor, a state legislator, a city alderman, or a policeman (for example, United States v. Braasch, 505 F.2d 139 (7th Cir. 1974)).

These laws were eventually overshadowed by the Racketeer Influenced and Corrupt Organizations (RICO) Act of 1970, 18 U.S.C. 1962 (1999) § 1961, punishing as "racketeering" any "pattern" (two or more acts) of bribery. Under this act, bribe-taking bail bondsmen, sheriffs, and traffic court employees—typical small-time grafters—as well as state revenue officials, state senators, and a state governor, were federally indicted as racketeers. Acquittal under state law was no defense to the federal crime, and state statutes of limitations did not apply. Armed by RICO with powerful weapons, the Justice Department became a formidable adversary of local corruption. By the 1970s, state officials were being federally prosecuted at the rate of several hundred per year.

Foreign corrupt practices. In the 1970s the SEC took the position that payments of bribes overseas constituted material information, to be disclosed on reports to the SEC. More than four hundred American companies confessed to making such payments. A small percentage of registered corporations, they included such giants as Lockheed Corporation, which spent $6 million a year in overseas bribes. In response to public furor, Congress enacted the Foreign Corrupt Practices Act of 1977, 15 U.S.C. §§ 78dd-1–dd-2 (1999). This legislation was notable in four respects: (1) The statute made it a crime to bribe an official of another country, an extension of jurisdiction never attempted before in regard to bribery. (2) It applied only to bribers, whereas other bribery laws apply to bribees as well. (3) Under criminal penalty, it required one class of bribers, those registered under the securities laws, to make a public report of its crime. (4) As to all bribers, it was more stringent than federal law on bribery in the United States in that (a) it applied to bribing political parties; (b) it applied to all domestic businesses and all American citizens; and (c) it specified a heavier financial punishment, up to $1 million. The act's effect has depended on cooperation by lawyers, auditors, corporate managers, and outside directors.

Commerce and contests. Criminal statutes against the bribery of private persons began with New York in 1881. They were enacted in England and several states in the early twentieth century, numbered seventeen by 1934, and doubled by 1980. The earlier statutes tended to specify employments—gardeners in Maryland, chauffeurs in Illinois! The more recent tendency, reflected in the Model Penal Code, has been to include all employees, agents, and fiduciaries. Seeking to reach payola in the recording business, the Code, followed by several states, also includes anyone who professionally is a disinterested expert. The statutes in substance make it a crime to confer a benefit on a fiduciary with intent to influence the recipient's conduct in his principal's affairs. Consent of the principal is a defense, and penalties vary. The statutes have sometimes been invoked civilly to invalidate a contract, but they have rarely led to criminal convictions. Persons injured have more incentive to hold the bribee liable for the bribe or to make the briber turn over his gain.

Between 1947 and 1980, thirty-four states made it a crime to influence sporting contests by bribes to officials or participants. The state statutes are rarely used, but occasionally they have been harshly applied—for example, ten years' sentence of imprisonment was imposed for fixing a basketball game in Iowa. Concern with the effect on sports of professional gamblers connected with organized crime led in 1964 to a federal law which has been extended to apply to jockeys rigging their own race (18 U.S.C. § 224 (1999)). Responding to rigged television contests, the Model Penal Code (§ 224.9) and eight states have included not only sports but every "publicly exhibited contest." The Code and three states specified a criminal penalty for any participant who knows that the contest has been fixed.

Dynamism. Modern bribery law has tended to expand enormously those subject to the criminal law, to increase the acts covered, to multiply indirect attacks on bribery, to develop more effective techniques of detecting the crime, to expand federal jurisdiction at home and abroad, to increase the number of prosecutions, and to increase the severity of sanctions. The movement of the law has been the reverse of Henry Maine's famous dictum, "from status to contract." The law here has gone from reciprocity to nonreciprocity, determined by status. Its continued expansion could be confidently predicted, were it not for three problems now to be addressed.

Problems

Quantification. Bribery is not normally reported by briber or bribee, nor boasted of. No statistics exist as to the number or amount of bribes or the percentage of transactions affected by them. Consequently, although many historians speak of a government, a country, or an era as "corrupt," there is no quantifiable evidence on which they rest their judgments. By extrapolation from the disparate data available, guesses conceivably might be made that would compare one regime with another as more or less corrupt. But such comparative guesses have not been developed. Historians often take an era in which there is greater legislation against bribery or greater prosecution of it and conclude that this period was more corrupt than an era without legislative or prosecutorial activity. Nothing could be more fallacious. Greater activity indicates greater opposition to bribery and has no necessary connection with an increase in bribery. To take a contemporary American comparison, were the 1970s more corrupt than the 1950s? No one has done the work that can provide a rational answer to this question.

Since bribery is an unquantified phenomenon, it is impossible to say whether the multiplication of laws and prosecutions is reducing it, keeping even with it, or falling behind. In the absence of a quantitative basis for evaluating the efficacy of criminal law in this area, the success of the law is measured in terms of its symbolic impact. The law is more specially vindicated when a powerful person is subjected to it. Hence bribery prosecutions often have a political aspect.

Prosecutorial discretion. Prosecutorial discretion determines to a very large degree the application of the law. Discretion exists at the federal level as to state crimes. Virtually any local bribery has an aspect touching interstate commerce and thus could be federally prosecuted. Prosecution depends on decisions by regional district attorneys and by Washington. Discretion also exists at the charging level. For example, a campaign contribution by a corporation, criminal under federal law, can be prosecuted for having been made or accepted (a misdemeanor); for not being reported (a misdemeanor usually treated lightly); for being made by a federal contractor (a felony; most corporations are federal contractors to some extent); for being a gratuity (a more serious felony); or for being a bribe (a very serious felony).

Prosecutors again have discretion to interpret custom to modify the statutes. A Christmas present to a mailman, for example, is a federal felony if the anti-gratuity law is read literally. Prosecutorial discretion saves the law from being absurd. In a more debatable exercise of discretion, no prosecutor charged Governor Nelson Rockefeller of New York with a crime for giving large loans, as much as $500,000, to public employees in literal violation of an antigratuity statute. In a more central area of concern, many legislative deals or compromises fall literally within the terms of a bribery statute. The older type of statute, providing that giving must be done "corruptly," has left the prosecutor to interpret this vague term with the help of custom to exclude the legislative arena.

Historically, prosecutors have depended on chance to bring cases to their attention. To take the example of a particularly elaborate investigation, the congressmen prosecuted in Abscam became targets when criminal middlemen boasted that they could deliver them. No overall plan to test the members of Congress existed. Since the mid-1970s it has been the conscious policy of the Justice Department to give priority to cases involving high federal or state officials—members of Congress, judges, and governors. This exercise of discretion, rationally defensible, could be followed by a second exercise of discretion, to monitor closely the activities of, say, all members of Congress. Experienced observers suggest that almost any area of government, if probed, will yield evidence of corruption. To what extent shall the prosecutor with limited resources wait for an informant? To what extent shall he probe? The bite of the law depends on his decision. The political power resident in his exercise of discretion is substantial. Coupled with the political aspect of many bribery cases, prosecutorial discretion means that bribery, to an extent unusual in the criminal law, is a crime whose prosecution depends on political, but not necessarily partisan, choices.

Rigorism, cynicism, and relativism. Reciprocities run through human relations, including the political. They can as easily be removed from society as moisture from the atmosphere. Confronted with their ubiquity, one can take three positions. (1) The rigorist —every bargain, even looked-for reciprocation in the area of political judgments, is wrong. Each judgment is to be made on its merits. The standards applied to judges should apply equally to presidents, legislators, and voters. (2) The cynical —most political reciprocities go uncondemned and unpunished. Legislators logroll, presidents use patronage, voters are rewarded by bills that favor their interest. The isolation of a few specific trades as corrupt is hypocritical pretense. In the main, reciprocities rule. A Marxist view of Western society approaches the cynical, even though actual communist societies afford a basis for even greater cynicism. (3) The relativist —custom determines which reciprocities are bad and which are acceptable. No trade is intrinsically evil. The antibribery ethic is sufficiently enforced by a few spectacular cases showing the kinds of trades our society rejects.

Each of these positions has an effect on the criminal law. The internal dynamism of the antibribery ethic pushes toward rigorism. The result is perceptible in the Model Penal Code and modern statutes struggling with definitions that will not make a criminal prosecutor the judge of legislative compromises and election promises. The cynical view is the inevitable reaction to rigorism when it becomes apparent that all reciprocity cannot be eliminated. This view undermines enforcement and even observance of the law. The relativist position is that of the liberal, comfortable with society as it is, who believes that ideal disinterestedness in political judgments can be encouraged if not guaranteed and that its violation can be vindicated in flagrant instances. The relativist, however, has little reason to condemn corruption abroad and, viewing what constitutes corruption as arranged by social convention, has a small moral investment in the criminal law. The removal of moral fire from the law weakens its efficacy.

Conclusion

There exists, however, a fourth position, the social-personalist one. It holds bribery to be a moral issue, that is, it affects both the good of society and the good of persons—the good of society by its impact on the ideals of the society, the good of persons by involving them in acts unworthy of their nature. A breach of trust and a sale of what should not be sold, bribery violates a divine paradigm set out in Jewish tradition and Christian tradition. Because of its deep moral content, the antibribery ethic requires embodiment in the law.

The social-personalist position denies the cynic's charges of hypocrisy, insisting that selective, symbolic, and dramatic enforcement is educative. It challenges the relativist's belief that all is conventional, pointing to fundamental needs for trust, gratuitous action, and disinterested judgment that are protected, although imperfectly and variously. It has affinities with the rigorist position, rejoicing in the expansion of the ethic, especially its belated inclusion of legislators; yet it differs from the rigorist position by rejecting its reliance on criminal sanctions, in particular imprisonment. Rooted in history, the fourth position favors attacking bribery in multiple ways.

In particular, three measures should be considered. (1) Increasing the legal profession's efforts against bribery. Lawyers have been very frequently involved in modern bribery as advisers, bagmen, couriers, directors, lobbyists, or recipients. Meanwhile law schools, like legal scholars of every era, ignore the profession's involvement. A key class of participants could be educated, disciplined, and motivated to take a more active stand against bribery. (2) Extending the requirements of the Foreign Corrupt Practices Act to all corporations as to domestic bribes and political contributions. There is no reason to be more concerned with corruption overseas than at home. The record-keeping provisions and heavy financial penalty of the act are appropriate deterrents to use against all corporations. (3) Relying more on disgrace, censure, and electoral reprisals than on imprisonment. At a time when there are general doubts about incarceration, it is odd to rely on it as a remedy here. Historically, bribery has been punished by shame attached to acts unworthy of human persons.

John T. Noonan, Jr.

Dan M. Kahan

See also Federal Criminal Law Enforcement; Obstruction of Justice; White-Collar Crime: History of an Idea.

BIBLIOGRAPHY

American Law Institute. Model Penal Code and Commentaries: Official Draft and Revised Comments. 3 vols. Philadelphia: ALI, 1980.

Bond, Edward A., ed. Speeches of the Managers and Counsel in the Trial of Warren Hastings. 4 vols. London: Longman, 1859–1861.

Borkin, Joseph. The Corrupt Judge: An Inquiry into Bribery and Other High Crimes and Misdemeanors in the Federal Courts. New York: Clarkson Potter, 1962.

Bracton, Henry de. On the Laws and Customs of England. vol. 2. Translated with revisions and notes by Samuel E. Thorne. Cambridge, Mass.: Harvard University Press, Belknap Press, 1968.

Cicero, Marcus Tullius. Against Verres. Translated by L. H. G. Greenwood. Cambridge, Mass.: Harvard University Press, 1928–1935.

Gregory IX (Pope). "Decretales" (1234). Corpus Juris Canonici, vol. 2. 2d Leipzig ed. Edited by Emil Albert Friedberg and Aemilius Ludwig Richter. Graz, Austria: Akademische Druck und Verlagsanstalt, 1955, cols. 1–927.

Lindgren, James. "The Theory, History, and Practice of the Bribery-Extortion Distinction." University of Pennsylvania Law Review 141 (1993): 1695–1740.

Lowenstein, Daniel Hays. "Political Bribery and the Intermediate Theory of Politics." University of California Los Angeles Law Review 32 (1985): 784–851.

McCloy, John J.; Pearson, Nathan W.; and Matthews, Beverly. The Great Oil Spill: The Inside Report—Gulf Oil's Bribery and Political Chicanery. New York: Chelsea House, 1976.

Noonan, John T., Jr. Bribes. New York: Macmillan, 1984.

Note. "Campaign Contributions and Federal Bribery Law." Harvard Law Review 92 (1978): 451–469.

Note. "Control of Nongovernmental Corruption by Criminal Legislation." University of Pennsylvania Law Review 108 (1960): 848–867.

Ruff, Charles F. C. "Federal Prosecution of Local Corruption: A Case Study in the Making of Law Enforcement Policy." Georgetown Law Journal 65 (1977): 1171–1228.

BRIBERY

BRIBERY , making a gift to a person in authority, especially a judge. The injunction not to take bribes is several times repeated in the Bible, twice with the reason given that "bribes blind the clear-sighted and upset the pleas of the just" (Ex. 23:8; Deut. 16:19). This was later interpreted to mean not only that a corrupt judge tends to identify the interests of the donor with his own and is thus blind to the rights of the other party (Ket. 105b, Shab. 119a), but also that such a judge would not grow old without becoming physically blind (Pe'ah 8:9). The warning is also sounded that the taking of bribes might lead to the shedding of innocent blood (Deut. 27:25). God is praised as being unreceptive to bribes (Deut. 10:17, et al.), and as human judges are generally exhorted to imitate divine qualities (Shab. 133b; Mekh, Shirah 3) so they are urged to be impartial, and not susceptible to bribes (ii Chron. 19:7), and reminded that judicial services should be given free (Bek. 29a). There is no penalty and no non-penal sanction prescribed in the Bible for taking bribes. The donor of bribes is blamed as a tempter or accomplice of the taker (Maim. Yad, Sanhedrin 23:2; Sh. Ar., Ḥm 9:1), transgressing the injunction "you shall not place a stumbling block before the blind" (Lev. 19:14). Bribery seems to have been rather widespread (cf. i Sam. 8:3), or else the prophets would hardly have denounced it so vehemently (Isa. 1:23; 5:23; 33:15; Ezek. 22:12; Amos 5:12; Micah 7:3), but it was in the nature of unethical misconduct rather than of a criminal offense.

Under talmudic law, where no penalty was prescribed in the Bible for the violation of a negative injunction, the transgressor was liable to be flogged (Mak. 16a; Tosef., Mak. 5:16; see Minḥat Bikkurim for reading). In the case of bribery this provision was largely academic, as the requisite witnesses would not normally be available – the act being always committed in secret (cf. Ibn Ezra to Deut. 27:14). The rule was therefore evolved that taking a bribe invalidates the judge's decision, and this was extended even to the taking of fees (Bek. 4:6). The invalidation of the proceeding was regarded as a quasi-penalty (kenas) imposed on the judge for taking bribes or fees (Tos. to Kid. 58b top; Sma, Ḥm 9:5), and it may have counted toward the judge's liability to pay damages where a party had already acted on his judgment. The prohibition against a judge taking fees was mitigated by a renowned jurist, Karna, who allowed both parties to reimburse him in equal shares for the loss he had actually suffered by sitting in court instead of earning his wages as a winetaster (Ket. 105a). This precedent was not applied to a judge who took a fee for the loss of his time without proving actual loss of money: while his decisions remained unaffected he was called "ugly" (ibid.). Other talmudic jurists carried the rule against bribery to extremes by refusing to sit in judgment over any person who had shown them the slightest courtesy, such as helping them to alight from a boat (ibid.).

Originally, judges were remunerated from Temple revenues (ibid.), which furnished the legal basis for their remuneration, in later periods, from communal funds. As all members were required to contribute to the communal funds, so were litigants later – as today in the rabbinical courts in Israel – required to pay court fees, not to any particular judge but into a general fund out of which all court expenses were defrayed. There are, nevertheless, occasional instances of judges demanding exorbitant fees for their services (e.g., the incident reported by Obadiah of Bertinoro to Bek. 4:6).

Bribing non-Jewish rulers, officials, and judges was regarded as legitimate at all times. In view of their bias against Jews it is not difficult to understand such an attitude. Not only was it quite usual to bribe kings (i Kings 15:19; ii Kings 16:8; Ber. 28b; et al.), but expenses involved in bribing judges and sheriffs were often expressly included in the expenses recoverable from debtors (cf. Gulak, Oẓar, 237, no. 249).

In the State of Israel the taker and the donor of bribes are equally punishable. Demanding a bribe is tantamount to taking it, and offering or promising one to giving it. Even the intermediary between the donor and the taker (or the intended taker) bears the same criminal responsibility. No extraneous evidence being normally available, the taker is a competent witness against the donor, and vice versa, and though they are accomplices their evidence need not be corroborated (Penal Law Amendment (Bribery) Law, 5712–1952).

[Haim Hermann Cohn]

In the Penal Law Amendment (Bribery) Law, 5712–1952, later incorporated in the Penal Law 5737 – 1977 (§290–297), an entire area of Israeli Criminal Law was constituted on the basis of the principles and sources of Jewish Law. The explanatory note to the draft proposal emphasized that "the proposal follows in the path of Jewish Law, which equates giving a bribe with partiality." The Law includes a number of distinctive elements based on Jewish Law: the imposition of criminal liability on both the giver and the recipient of the bribe, and the immateriality of whether the bribery caused an injustice or not: "Thou shall not take bribes."

"It is obviously forbidden when the intention is to pervert justice, but even if the intention is to acquit the innocent and convict the guilty it is still forbidden" – Maim., mt, Hilkhot Sanhedrin 23:1, in accordance with Sifrei Devarim §144)

On the other hand, Israeli law differs fundamentally from the position adopted in Jewish Law on two counts, also mentioned in the draft proposal. It does not obligate the recipient of a bribe to return it to the person who gave it, as opposed to the requirement to do so in Jewish Law (mt, Yad, ibid.). It also contains a provision allowing the court to confiscate the sum of the bribe, in the form of a fine. Interestingly, not a single mk challenged this departure from Jewish Law, in contrast to the staunch opposition to any deviation from Jewish Law expressed by mks (from religious parties) in other cases. It may be that they agreed to this particular deviation because the provisions of Jewish Law requiring the return of the bribe to the briber contradict currently prevailing social and moral sentiments, a point made in the draft proposal. Another possible explanation is that the obligation of restitution is in fact a religious obligation, in the framework of the briber's repentance, between himself and his Creator (and not an act of monetary restitution in the usual sense).

In the decisions of the Israel Supreme Court, as well as in halakhic discourse, it was emphasized that in Jewish Law the offense involved in bribery is not restricted to the relations between the litigant and a person fulfilling a judicial role, as indicated in the biblical sources cited above, and as discussed and decided in practice in the Talmud and the halakhic literature mentioned above. It applies to any person discharging a public function who is in a position to adopt decisions that may either benefit or harm the briber. In this context the comments of Rabbi J.M. *Epstein, in his book Arukh ha-Shulḥan (Ḥm 9.1), were cited: "And not only the judge is enjoined from receiving bribery, but all officials and persons involved in public matters, even though their decisions do not have the status of the law of the Torah, are forbidden to be biased in any matter as a result of friendship or hostility, and all the more so by the taking of bribery."

These remarks were cited by the court (Justice Elon) in State of Israel v. Darwish (Cr.A. 121/88), 45 (2) 663). The case concerned the State's appeal against the acquittal of Jerusalem Municipality employees who had accepted benefits from a tour company in return for their recommendation to all of the Municipality's employees to avail themselves of the tour company's services:

In concluding this matter I would add that the laws of bribery were discussed extensively in Jewish Law … The issues raised in our case can be illuminated and reinforced by the principles of Jewish Law on this issue, although this is not the forum for their explication. But it should be mentioned that while the principles governing the offense of the Jewish sources were set forth primarily with respect to people discharging judicial roles (see Deut. 16:18–19, 25; Micah 2:11, and other biblical sources, and even in Maimonides, Hil. Sanhedrin 23; Tur and Shulḥan Arukh (Ḥm 9), where the rules of bribery appear in relation to judges), the prohibition was also applied to "all those engaged in public affairs," and was not restricted to judicial or quasi-judicial frameworks …[In this context, mention was generally made of the aforementioned comments of Arukh ha-Shulḥan – me.] Those dealing in public affairs should "devote themselves conscientiously to the needs of the community" (Tanya Rabbati, Hilkhot Shabbat, 16. Sabbath Morning Service). This is especially applicable to those serving the needs of the public in Jerusalem, where the high-minded people were meticulous in their habits and their conduct (see Sanh. 23a and other sources). (ibid., 689–90).

Another kind of bribery dealt with in case law of the Israel Supreme Court and in halakhic literature over the last few years is election bribery (Cr.A. 71/83 Flatto Sharon v. State of Israel, 38 (2) pd 757). In this case the Court heard the appeal of a candidate for the Knesset who was convicted for having promised payment to those who would vote for him. In its ruling the Court (Justice D. Levin) ruled that certain halakhic authorities regarded election bribery as bribery for all intents and purposes, citing the responsum of Ḥatam Sofer:

This was the ruling and the view of our Sages regarding bribery in general, and similarly with respect to what we refer to as an election bribe. R. Moses Sofer (Ḥatam Sofer), a prominent Hungarian rabbi during the last part of the eighteenth century and the first part of the nineteenth century, ruled already in his day that, where there were competent witnesses who testified that, during the elections for community rabbi, some members of the electoral body received bribes, it would invalidate the appointment of the rabbi, and necessitate new elections. He further added that: "if there are witnesses that the rabbi himself offered a bribe, then he is absolutely disqualified from being a rabbi until he repents." As for the recipients of bribery, the view was expressed that they might be disqualified for any public office, but in any event were no longer permitted to participate in the new elections for the appointment of the communal rabbi, even if they had returned the bribe they received, had repented, and had undertaken by oath never to repeat such actions. The reason given was "for they already have an affinity for him and they will always remain biased …" (Resp. Ḥatam Sofer; pt. 5, Ḥm 160; cf. Resp. Minḥat Eliezer, pt. 1:6) (p. 773 of judgment).

The Ḥatam Sofer's responsum, coupled with others, also served the Supreme Court in an additional ruling (lca 83/94 Hisrallah v. Election Clerk, 49 (3) pd 793, Justice Goldberg), which ruled that election bribery constitutes grounds for their nullification.

In another judgment the Supreme Court emphasized that the prohibition on bribery in Jewish Law applies not only to money but also to a bribe by way of "words" (i.e., action): "If the recipient mistakenly thought that the prohibition on bribery only applied to a monetary bribe, the Sages corrected him; for the taint of bribery and its impropriety apply not only to a monetary gift, but also to any matter liable to produce the negative result, in accordance with the Sages' teaching, 'And thou shalt take no gift' – there was no need to speak of [the prohibition of] a gift of money, but even a bribe of words is also forbidden, for Scripture does not write, 'And thou shalt take no gain' [but rather 'thou shalt take no gift' – in other words, it is not necessarily pecuniary – me]" (Cr.A. 355/88 Levi v. State of Israel, 43 (3) 221, 229 per Justice Levin).

[Menachem Elon (2^nd ed.)]

bibliography:

et, 1 (1951) 266; 3 (1951), 173ff. add. bibliography: M. Elon, ilr, 4 (1969), 99ff.; idem, Ha-Mishpat ha-Ivri (1988), 3:1376–77; idem, Jewish Law (1994), 4, 1640–42; A.Z. Sheinfeld, "Netinat Shoḥad le-Oved Ẓibbur," in Teḥumin, 5 (1984), 332; E. Shohetman, Ma'aseh ha-Ba ba-Averah (1981), 231.

Bribery

The offering, giving, receiving, or soliciting of something of value for the purpose of influencing the action of an official in the discharge of his or her public or legal duties.

Representatives Robert Ney, William Jefferson Face Bribery Charges

It started with an announcement, in August 2006, that Representative Robert W. Ney (R-Ohio) would not seek a seventh term in the U.S. House of Representatives. Ney, 52, was the last of three House members to fall under an ongoing federal investigation into widespread bribery and influence-peddling in Congress. Representative Randy "Duke" Cunningham (R-Cal.) had pleaded guilty to accepting more than $2.4 million in bribes from defense contractors, and Representative Tom DeLay (R-Tex.) resigned from the House after two of his former aides pleaded guilty to corruption charges. Ney and his former longtime chief of staff, Neil G. Volz were implicated in several guilty pleas entered by former lobbyist Jack Abramoff and three co-conspirators, whose activities triggered the expanding investigation two years earlier.

Abramoff and Volz (who had since joined Abramoff's lobbying firm) had already pleaded guilty to related charges, and as part of that plea, agreed to help investigators. (Volz's confession included language that he had conspired to unjustly enrich himself by providing "a stream of things of value with the intent to influence and reward official acts.") Moreover, three senior Ney aides had already resigned when a fourth was ordered by federal prosecutors to provide documents and testify before a federal grand jury regarding Ney's dealings with Abramoff. Buckling under the investigation and at the behest of House Speaker Dennis Hastert, Ney had given up the chairmanship of the Administration Committee in January 2006. Notwithstanding, Ney denied and wrongdoing and stated that he resigned for political and personal family reasons, not legal considerations. According to filed campaign reports, Ney spent nearly $300,000 in campaign funds to pay for legal expenses.

Court documents alleged that, at Abramoff's request, Ney helped secure government contracts, promoted the gambling interests of Indian tribes, and helped delay minimum wage legislation helpful to a garment maker in the Northern Mariana Islands. He did this mostly by making floor speeches in Congress helpful to these causes and inserting favorable statements in the Congressional Record. In return, Ney accepted lavish gifts from Abramoff and his associates, including a golf vacation to Scotland, a trip to the Fiesta Bowl in Arizona, trips to New Orleans and Lake George, New York, meals and entertainment, and tickets to a U2 concert, the value of which was estimated at well over $170,000. Other charges included his acceptance of thousands of dollars in campaign contributions in return for official favors for Abramoff clients. He also allegedly accepted more than $50,000 in gambling chips from a foreign businessman seeking to gain an exemption from U.S. laws that prohibit the selling of domestically-manufactured aircraft and aircraft parts in a foreign country. A Senate Indian Affairs Committee report suggested that Ney had made untrue statements to committee investigators as well.

In September 2006, news broke that Ney had agreed to enter guilty pleas to criminal charges of conspiracy and making false statements in the U.S. District Court in Washington, DC. He was the first member of Congress to confess to crimes in the Abramoff scandal. As part of his guilty plea, Ney admitted to concealing gifts by filing false reports with U.S. Customs and false travel and financial disclosure reports required by the U.S. House. He also admitted to encouraging Volz ("conspiring") to violate the one-year ban against lobbying by former staff members. Ney further admitted that he attempted to insert four provisions into a 2002 campaign finance bill in order to help a Texas Indian tribe and Abramoff client reopen a casino; helping another Abramoff client, a foreign beverage distiller, to improperly label its imported products; causing the General Services Administration (GSA) to transfer property to a religious school founded by Abramoff; helping another Abramoff client secure a wireless communications contract at the Capitol; and inserting statements in the Congressional Record to help Abramoff and a partner purchase the SunCruz casino ship line.

Following the announcement that Ney had agreed to plead guilty to one count each of con-spiracy and making false statement charges, Ney's formal plea was delayed while he voluntarily entered a one-month alcohol treatment program. Upon completion, he appeared in federal court to enter formal plea before U.S. District Court Judge Ellen S. Huvelle. He made no statement in court, but repeatedly answered, "That's accurate, Your Honor," as she read his admissions. With the acceptance of the guilty pleas, Ney became the eighth person convicted in connection with the Abramoff investigation. After his court appearance, Ney issued a formal statement that he was "ashamed" that his long career in public service had ended this way.

Ironically, in early 2006, Ney's committee passed ethics legislation intended to strip pension benefits from convicted members of Congress, but the bill died in the House. Ney had personally championed the bill.

One month after entering his guilty pleas, and only days before the November elections, Ney resigned his seat in Congress. Printed under his House letterhead, his resignation letter stated: "Having completed all outstanding work in my congressional office, I now hereby resign from the United States House of Representatives effective close of business on Friday, Nov. 3, 2006."

In January 2007, Judge Huvelle sentenced Ney to 30 months in prison and a $6,000 fine. The sentence was three months more than the 27-month imprisonment requested by prosecutors, because Ney had violated the trust placed in him as a public official, Huvelle said. She also ordered his enrollment in a prison alcohol treatment program. Ney was to serve his time at a federal prison in Morgantown, West Virginia and complete two years' probation upon release.

Born in Wheeling, West Virginia, Ney is a former teacher (B.S. Ohio State University) who previously served as program manager of health and education for the Ohio Office of Appalachia. He also served for several years as an Ohio state legislator prior to being elected to the U.S. House of Representatives

Ney was not the only Congressman to face bribery charges. William Jefferson, a Democratic congressman from Louisiana. Jefferson, who had faced called for ethics committee investigations in Congress, was finally indicted in June 2007 on charges that he had solicited bribes and used his office to make business deals for himself and family members. His indictment includes 16 charges, including racketeering and wire fraud, and could lead to a maximum of 235 years in prison. FBI videotape shows Jefferson accepting a box of cash from an informer, and a later raid of his home found $90,000 in a box in his freezer.

Jefferson claimed complete innocence, pleading not guilty to all the charges and pledging to fight them to the fullest. Upon his indictment, the House Ethics Committee announced it would also begin an investigation of Jefferson. Jefferson had resigned from his position on the Small Business Committee before he could be voted off of it. Jefferson's situation became another field of verbal battle between Democrats and Republicans, as both sides tried to paint the other as hypocritical over the handling, or lack thereof, of Jefferson's case. Jefferson is expected to go on trial in January of 2008.

BRIBERY

The offering, giving, receiving, or soliciting of something of value for the purpose of influencing the action of an official in the discharge of his or her public or legal duties.

The expectation of a particular voluntary action in return is what makes the difference between a bribe and a private demonstration of goodwill. To offer or provide payment in order to persuade someone with a responsibility to betray that responsibility is known as seeking undue influence over that person's actions. When someone with power seeks payment in exchange for certain actions, that person is said to be peddling influence. Regardless of who initiates the deal, either party to an act of bribery can be found guilty of the crime independently of the other.

A bribe can consist of immediate cash or of personal favors, a promise of later payment, or anything else the recipient views as valuable. When the U.S. military threatened to cancel a Texas relocation company's contracts to move families to and from military bases, the company allegedly gave four representatives in Congress an all-expenses-paid weekend in Las Vegas in January 1989, and $2,500 in speaking fees. The former president of the company was indicted by a federal grand jury in 1994 on bribery charges for both gifts.

No written agreement is necessary to prove the crime of bribery, but usually a prosecutor must show corrupt intent. Bribery charges may involve public officials or private individuals. In the world of professional sports, for example, one boxer might offer another a payoff to "throw" (deliberately lose) an important fight. In the corporate arena, a company could bribe employees of a rival company for recruitment services or other actions at odds with their employer's interests. Even when public officials are involved, a bribe does not need to be harmful to the public interest in order to be illegal.

When a public official accepts a bribe, he or she creates a conflict of interest. That is, the official cannot accommodate the interests of another party without compromising the responsibilities of her or his position.

There is not always consensus over what counts as a bribe. For instance, in many states and at the federal level, certain gifts and campaign contributions are not considered bribes and do not draw prosecution unless they can be linked to evidence of undue influence. In this regard, negative public perception of private contributions to elected officials as payola has caused most states to establish legislative ethics committees to review the public-private relationships of house and senate members. Furthermore, both houses of the U.S. Congress passed legislation in 1994 restricting gifts to no more than $20 in value.

The Supreme Court further clarified the law by setting standards for federal bribery statutes in United States v. Sun Diamond Growers, 526 U.S. 398, 119 S.Ct. 1402, 143 L.Ed.2d 576 (1999). This case grew out of the prosecution of Mike Espy, secretary of agriculture in the Clinton administration, for allegedly accepting bribes. After Espy was acquitted of all charges, the independent counsel charged Sun Diamond Growers, a trade association for a large agricultural cooperative, with violating a federal gratuities law that prohibits giving gifts to public officials in exchange for favorable government actions.

After Sun Diamond was convicted of the charges it took its case to the Supreme Court. The Court concluded that a person did not violate the law merely by giving a gift to a public official. Prosecutors must show that there was a connection between a specific official act in the past or future and the gift. Justice antonin scalia noted that if the government did not have to prove this linkage then a token gift such as the presentation of a sports jersey by a championship team to the president could be regarded as a criminal act.

The Court also noted differences in various federal bribery statutes, which included broad prohibitions. In the present case, the language of the gratuities statute did not reveal a similar intent by Congress; instead, the Court viewed this law as one strand of a complicated web of laws and regulations addressing official behavior.

It is common for both the recipient and the provider of a bribe to be accused, although bribery is not a joint offense—that is, one person's guilt does not affect the other's. Such was the case when a popular Massachusetts state senator allegedly accepted monthly payments from an investment broker in exchange for trying to persuade state officials to send state pension business to the broker. The legislator and the broker were both indicted on misdemeanor charges in early 1995.

U.S. companies that engage in international bribery can become targets of investigation at home. In January 1995, a former sales director of Lockheed Corporation pleaded guilty to violating the federal Foreign Corrupt Practices Act, 15 U.S.C. § 78dd-1 et seq., Allen R. Love told a U.S. district court that he had paid and helped to cover up a bribe to an Egyptian politician for arranging Egypt's 1989 purchase of three Lockheed transport planes.

Congress adopted the Foreign Corrupt Practices Act in 1977 to outlaw payments that are intended to win contracts from foreign officials. Ironically, the law's passage was triggered by testimony from a former vice president of the same Lockheed Corporation at a U.S. congressional hearing in 1976. In that case, the company's vice president admitted to bribing the prime minister of Japan with more than $1.9 million in the early 1970s, so that Japan would buy Lockheed's TriStar wide-body jets.

The severity of bribery can reach the felony level, punishable by a fine or imprisonment, or both. However, charges are sometimes reduced in exchange for helping to convict accomplices. For instance, in June 1994, Love pleaded innocent to felony charges of bribery and conspiracy. Later, he pleaded guilty to one misdemeanor count of "indirectly" conspiring, as part of a plea agreement in which he agreed to testify against the corporation itself, which was also a defendant.

The international sports community was rocked by a bribery scandal involving the 2002 Winter Olympic Games in Salt Lake City, Utah. Two officials of the Utah committee that secured the games were indicted in 2000 on charges of wire and mail fraud, conspiracy, and interstate travel in aid of racketeering. They were charged with paying an official of the U.S. Olympic Committee (USOC) to help influence the selection of Salt Lake City by the International Olympic Committee (IOC). The USOC official who received the bribes later pleaded guilty to several criminal charges including the accepting of a bribe.

Federal prosecutors contended that the two officials had paid $1 million to influence votes of several IOC members. In addition, they had allegedly diverted some $130,000 of the bid committee's income, and had altered books and created false contracts to conceal their actions. The two officials denied that they had done anything wrong, contending that the payments were intended as grants and scholarships for poor athletes. Following the indictments, ten members of the IOC either resigned or were expelled from the organization, and many reforms were undertaken to prevent bribery. The USOC also authorized an independent review of its practices.

However, the two Utah officials successfully challenged the bribery charges. In July 2001, a federal judge dismissed the bribery charges, finding that a Utah bribery statute could not be applied to the defendants' actions. In December 2001, the judge dismissed the remaining criminal counts.

further readings

McChesney, Fred S. 1997. Money for Nothing: Politicians, Rent Extraction, and Political Extortion. Cambridge, Mass.: Univ of Harvard Press.

Noonan, John Thomas. 1984. Bribes. New York: Macmillan.

PBS: Online NewsHour. February 11, 1999. "IOC: Cleaning House." Available online at <www.pbs.org/newshour/bb/sports/jan-june99/olympics_2-11.html> (accessed June 6, 2003).

Bribery

BIBLIOGRAPHY

In the strictest sense, bribery is defined as the giving of money or other valuables to public officials in exchange for that official not performing his or her required duties. For example, traffic police may be paid to overlook a traffic violation, or a judge to render a decision favorable to the briber. The concept of bribery often is used outside the context of government officials to include any instance of a person disregarding the obligations of his or her position in return for a payment; for example, a salesperson may pay the purchasing manager at a client firm to continue to order their goods. A useful working definition is given by Harvey James (2002): “any payment made to an agent is a bribe if the agent retains the payment” (p. 199). A payment made to a government official that stays with that official and is not deposited into government coffers is considered a bribe.

As is often the case in economics, James’s definition does not distinguish between bribery and extortion. Extortion refers to a situation in which an agent demands payment for a good or service that the payee has a right to have without any payment; in contrast, in bribery the agent demands payment for an extra benefit. Although there may be philosophical, moral, or ethical differences between the two terms, for economists they often fall under the same category, largely because of the similar effects of these types of payments in competitive situations. If all of a firm’s competitors offer to bribe a government official to speed up the delivery of a required permit, then that firm must also pay the bribe in order to avoid falling behind the competition. Here the distinction between bribery and extortion is blurred.

Andrei Shleifer and Robert Vishny (1993) suggest that bribery harms firms more than an equivalent tax because of the secrecy associated with bribery. Government officials may encourage firms to produce goods or invest in sectors that are more easily subject to bribery. The effort to create bribe opportunities can make economies more inefficient. Paolo Mauro (1995) finds that countries with higher levels of corruption have lower investment and lower economic growth. At the microlevel, Simon Johnson, John McMillan, and Christopher Woodruff (2002) find that firms that are faced with paying bribes reinvest less of their profits back into their business. Bribery can cause firms to make inefficient decisions that can interfere with the overall growth of an economy.

International agencies such as Transparency International and the World Bank have focused international attention on the problem of bribery. Both publish country rankings based on perceived levels of corruption and bribery. Developing countries usually occupy the lower rungs of these rankings. These rankings, along with the evidence on the correlation between low growth and corruption, have made bribery a key issue in economic development. Although bribery is conceptualized as primarily an interaction between two individuals, a bribe-payer and a bribe-taker, it has far-reaching effects for firms and entire economies.

SEE ALSO Corruption; Ethics, Business

BIBLIOGRAPHY

James, Harvey S. 2002. When Is a Bribe a Bribe? Teaching a Workable Definition of Bribery. Teaching Business Ethics 6 (2): 199–217.

Johnson, Simon, John McMillan, and Christopher Woodruff. 2002. Property Rights and Finance. American Economic Review 92 (5): 1335–1356.

Mauro, Paolo. 1995. Corruption and Growth. Quarterly Journal of Economics 110 (3): 681–712.

Shleifer, Andrei, and Robert W. Vishny. 1993. Corruption. Quarterly Journal of Economics 108 (3): pp. 599–617.

Larry W. Chavis