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The January guilty plea by Jack Abramoff has many people in Washington feeling anxious. Lobbyists and lawmakers are looking over their shoulders, wondering whether that nice steak dinner last month could now bring federal agents knocking at their doors. Some have suggested that the rules of the game are changing and that prosecutors are criminalizing Washington “politics as usual.” The fact is that “politics as usual” is increasingly indistinguishable from the kind of corruption that the bribery laws are designed to combat. The anxiety is therefore understandable. Sadly, it is also unnecessary. The difficulty of proving corruption suggests that criminal charges will remain the exception rather than the rule. Even if the current firestorm on Capitol Hill produces some tinkering with lobbying reform, the criminal law will be largely unaffected. And corruption’s corrosive effects will continue to eat away at our political system. YOU SCRATCH MY BACK . . . Laws against bribery seek to ensure that public officials act in the public’s interest, not to line their own pockets. You can’t give valuable goods and services — golfing vacations, skybox seats, and the ever-popular cash — to a public official with the corrupt intent to influence his actions. The flip side of this unholy bargain is also a crime: Public officials may not accept goodies in exchange for agreeing to be influenced. Despite the criminal prohibition, this type of mutual back scratching takes place all the time. Politicians solicit contributions while promising to act in certain ways. Donors contribute money, sponsor lavish “fact-finding tours,” or hand out other gifts while quite openly expecting something in return. Indeed, our entire system of privately financed campaigns is little more than an organized bribery scheme. So why aren’t there more prosecutions? The first reason stems from the nature of the crime itself. With most crimes the government may rely on victims and innocent witnesses to report the facts and help gather further evidence. But the secretive nature of public corruption makes it particularly difficult to detect. Neither side wants the prosecution to learn what happened. There are rarely outside witnesses, and the victim — the body politic — has no idea the crime has occurred. The second reason that bribery cases are rare is the type of evidence required. The courts recognize the potentially seismic effect of ruling that merely contributing to a politician with the hope of influencing her vote amounts to bribery. To avoid criminalization of our entire campaign finance system, courts have imposed strict proof requirements in public corruption cases. A bribery prosecution therefore requires proof of a direct link between the benefit given and a specific official act. There has to be a quid pro quo — a clear agreement that in exchange for the gift, the public official will do a particular thing. Parties to a bribe must have this corrupt intent to influence, or be influenced in, the performance of some identifiable official act. WHAT LOOKS LIKE A DUCK Such stringent legal requirements do more than just define what constitutes a bribe; they also serve as a road map to avoiding prosecution. For example, suppose a corporation and its lobbyists urge Congressman A to support a certain law or earmark that benefits the company. Around the same time, they donate thousands to his political action committee or take him on a nice ski trip. Shortly thereafter, he does exactly what they wanted. This may look, walk, and quack like a quid pro quo, but it’s unlikely to see the inside of a courtroom. The mere sequence of timing — lobbying and contribution, followed by favorable action — is not enough to make a case. If asked, Congressman A will say that he knew of the corporation’s contributions and interest, but he exercised his own independent judgment when he acted. The company and lobbyists will say that they generally support Congressman A’s policies and hoped he would vote their way, but they certainly did not have any guarantee. In the absence of a clear deal, each side leaves the table with plausible deniability. Corrupt transactions may be consummated with winks, nods, and tacit understandings. Nothing so crass as an express agreement need be uttered. It’s pretty tough to translate winks and tacit understandings into proof beyond a reasonable doubt. THE WHIFF OF CORRUPTION So how do prosecutors prove a dirty deal took place? Circumstantial evidence often plays an important role. For example, the more unusual the gifts are, the more likely that they signal criminal conduct. Allowing a congressman to live rent-free on your yacht certainly fails the smell test — a fact apparently lost on ex-Rep. Randy “Duke” Cunningham. Hiring a congressman’s wife for $50,000 a year to do nothing also tends to look suspicious. Unusual financial arrangements, particularly if accompanied by steps to conceal them from the public, are telltale signs of a corrupt deal and a guilty mind. Other corruption cases are easier to prove because of the nature of the public official’s actions. If a congresswoman votes on a bill in a way fully consistent with her past record and with her constituents’ interests, it may be difficult to demonstrate that she was bribed. On the other hand, if a congressman from Ohio, with no ties to Florida or to casino-boat gambling, suddenly takes action concerning the proposed sale of a Florida casino-boat line, it seems likely that he is responding to contributions from an involved party. The alternative explanation — that it was all a remarkable coincidence — is not likely to fly. The most difficult cases, of course, lack these unusual features. It’s common for contributors to donate heavily to a congresswoman’s campaign or PAC and then to see her perform official acts that support their interests. So long as all the donations are openly given, legally limited, and properly reported, there’s almost a presumption of regularity. Proving a corrupt deal, if there is one, could be nearly impossible. In any corruption investigation, the cooperation of one party to the bargain is usually key. In the most famous congressional corruption case, the Abscam scandal, that party was actually an undercover agent, and the crimes were captured on videotape. Most often, though, the government’s best hope is to build a case against one party and persuade him to plead guilty and cooperate against the others. This is why the guilty pleas and promised cooperation of Jack Abramoff and Michael Scanlon are such significant developments in that investigation — and why the diners at The Palm are so nervous. ONLY THE MOST BRAZEN Given the difficulty of proving corruption cases, however, the bribery laws will remain primarily a trap for the unwary. Only the most brazen or reckless — the Abramoffs and the Cunninghams — will be ensnared. The more widespread and insidious corruption will still be practiced by those savvy enough not to be too explicit about what they’re doing. To be fair, the relative lack of criminal prosecutions does not mean that all misconduct goes unpunished. A lot of unsavory activity simply does not rise to the level of a crime. Some violations of ethics or campaign rules may result in sanctions imposed by Congress itself or by other agencies. And every elected official faces the ultimate sanction from disgruntled voters at the ballot box. But for now, despite the high-profile prosecutions, politicians continue to raise staggering amounts of money, while claiming that the cash has no influence on them. Those who spend millions courting politicians ask us to believe they’re just throwing their money away year after year. And the rest of us are expected to just gaze admiringly at the emperor’s new clothes. Criminal prosecutions are important, but can’t fix the real problem: the corruption inherent in our campaign finance system. “Politics as usual” looks an awful lot like bribery. Cleaning that up is going to require much more than simply jailing a few of the most inept offenders.
Randall D. Eliason teaches white-collar criminal law at American University and George Washington University law schools. He previously served as head of the Public Corruption/Government Fraud Section in the U.S. attorney’s office for the District of Columbia.

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