Political Contributions and Bribery: Let the Donor and Recipient Beware!

If you are someone who contributes to political candidates with the expectation of developing professional contacts that will benefit you or your business in tough economic times, then you should closely examine a recent decision from the 11th Circuit Federal Court of Appeals:  U.S. v. Siegelman, 640 F.3d 1159.

The Siegelman decision must be examined in relation to the current U.S. political system.  Politics in America, as columnist George Will correctly notes, is transactional in nature.  Political candidates routinely solicit the support of special interest groups with the idea that “if you vote for me, I will do x.”  Likewise, special interest groups solicit willing candidates by stating that the candidate will receive the vote if the candidate agrees to do something in return.

It is against this backdrop the issue in Siegelman arose.  Donald Siegelman – a democrat – was elected as the Governor of Alabama in 1998 and defeated when he ran again in 2002.  While in office, Siegelman advanced a ballot issue to create a state lottery in which the revenues derived would benefit Alabama schools.  The ballot issue was unsuccessful, leaving the state democratic party with a large debt.

As Governor, Siegelman had the sole authority to appoint members of a state health care board which was responsible for the certification of health care providers in the state.  Richard Scrushy, founder and former CEO of HealthSouth Corporation – a major health care provider with hospitals and physical therapy clinics throughout Alabama – supported Siegelman’s opponent in the 1998 Governor’s race with large financial contributions.  After the election, Scrushy, who had served on the state health board under three predecessor to Siegelman, contacted Siegelman’s representatives and was informed of the lottery ballot debt.  At the same time, Siegelman’s representatives became aware of Scrushy’s desire for reappointment.

At this point, one must ask the following question:  Is it not unreasonable that Scrushy – an astute businessman – would ingratiate himself by raising money to relieve debt in the hopes of a reappointment and that Siegelman – a successful politician – would show his gratitude to Scrushy’s efforts with a reappointment?

This is exactly what happened.  Scrushy used his wealth and influence to raise $500,000.00 toward relieving the lottery debt.  Thereafter, Siegelman used his discretion to reappoint Scrushy to the health care board.

The question for our analysis is simple: is this bribery or part of the fabric of American politics and protected by the First Amendment?  At the trial level, a jury decided that this was in fact bribery and sentenced both Siegelman and Scrushy to seven years in federal prison.

On appeal, Siegelman argued that the law required only evidence of a quid pro quo (this for that), but that the agreement had to be express.  The federal appellate court in Alabama disagreed and held that the agreement had to be explicit, but not express.  This decision appears to be inconsistent with  an opinion authored by Justice Sotomayor, when she sat on the Second Circuit Court of Appeals.  In U.S. v. Ganim, which was decided in 2007, the Court held that proof of an express agreement was required when payments are made in the form of campaign contributions. recognizing that the majority of said contributions derived from special interest groups, businesses, and the wealthy arrive with some expectation of a benefit from the candidate if he or she is elected.

In early June of this year, the U.S. Supreme Court refused to hear Siegelman’s appeal, thereby affirming his conviction.  Siegelman was supported by over 100 former State Attorneys General who asked the Court to review the case in order to impose higher standards.  As it stands now, they argued. the law gives unwarranted latitude to federal prosecutors in targeting – for whatever reason – those politicians and contributors whose lives and careers they wish to imperil.

A precise definition of bribery and what evidence is needed to sustain a conviction of the same is needed to bring cohesion to campaign finance law as well as to alert politicians, donors, and the public.  Because of this reason, the Supreme Court should have accepted Siegelman’s appeal, thereby establishing a clear standard in this area.  As prosecutions continue and people are convicted, the Supreme Court will eventually have to accept a case and decide this murky area.

Until then, elected officials, their representatives, and donors should all beware when connecting campaign contributions to benefits for fear of receiving a fate similar to that of former-Governor Siegelman.