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Disclosing Bribes in Disguise: Campaign Contributions as Implicit Bribery and Enforcing Violations Impartially

Few Americans would question the appropriateness of assessing criminal sanctions on public officials who accept bribes in exchange for returning influence or power by wrongly capitalizing on their access to government resources. Less clear, is how government officials, federal courts, and election law scholars should solve problems relating to implicit forms of bribery that involve campaign contributions. Complicating this issue is the central role of privately funded campaigns in American elections and the idea that government officials should be able to actively solicit campaign contributions in order to run successful campaigns. Thus, any reforms in this area must strike a careful balance to avoid violating the First Amendment protections afforded to those participating in political campaigns.Accordingly, this paper attempts to address this void by arguing that implicit quid pro quo agreements between members of Congress and campaign contributors are worthy of disclosure. This paper argues that the most desirable way of addressing implicit quid pro quo agreements involving campaign contributions or independent expenditures is through non-criminal remedies that impose civil fines on members of Congress who fail to disclose these relationships under a new statute. The first part of this statute would require members of Congress to disclose solicitations when the member of Congress “knowingly” requests a campaign contribution or independent expenditure that is reasonably likely to return a tangible benefit to the contributor. The second part of this statute requires members of Congress to disclose campaign contributions and independent expenditures offered or made by the contributor. The final section of this paper suggests ways for Congress to facilitate a more impartial process of enforcing bribery violations without risking an overly politicized process.