Campaign Contributions in the Criminal Law

April 26, 2013
posted by Bob Bauer

One of the consolations of the contribution is its regulatory clarity; the permissible sources, the limits on amount, and the reporting requirements are all well established. And yet even contributions made in good order can cause trouble for the contributor—not with the Federal Election Commission, but in defending public corruption charges in the criminal justice system.

In January, The DC Circuit Court ruled that campaign contributions, however lawful, may still be presented to a jury to establish corrupt practice in an honest services prosecution. The case, United States v. Ring (706 F.3d 460), affirmed the conviction of a colleague of the previously-convicted Jack Abramoff. Ring was charged with using gifts—entertainment tickets and meals—to store up goodwill for future use in his lobbying practice. At trial, the government introduced evidence of his political contributions, all made in a manner consistent with the relevant legal requirements.

The District Court specifically instructed the jury that the contributions were lawful. But it allowed them to be introduced into evidence, and on appeal, Ring complained that the material was prejudicial. The Court of Appeals commended his argument for its force, then rejected it. While agreeing that the contributions evidence tended to confuse and mislead, the Court sustained the trial court’s judgment that the contributions had “significant probative value” because they “gave jurors a window into the way in which lobbyists like Ring gain influence with public officials.” And this:

Perhaps even more significantly, contribution testimony amounted to strong modus operandi evidence that demonstrated Ring’s transactional relationship with officials and the manner in which he pursued his clients’ political aims. That Ring rewarded ‘good soldiers’ with campaign contributions, for example, perhaps suggests that he put other things of value to similar use.

In sum, the old saw about contributions constituting legalized bribery found its way into the case. While legal, the contributions clarified for the jury the defendant’s business model—cash for influence. The legal form of bribery, as critics would have it, supported the Government’s case against the illegal form. On their own, the contributions would have posed no legal problem; but together with the illegal gifts at the heart of the honest services case, they made trouble for the defendant.

Ring’s political money made another appearance in the case. Among the means Ring employed to “groom” Hill allies was fundraising on their behalf. Ring and his firm picked up the expenses of certain events but were not timely reimbursed by the campaign committees. These belatedly paid events appear in the indictment along with other illegal benefits enjoyed by the public officials.

The opinion is worth reading for these points of interest, but it is also the first ruling to cite the successful Spielberg film Lincoln. Noting the “ubiquity” of the lobbying practice of wining and dining elected officials, the Court selects from the film for quotation one lobbyist’s comment that “It is not illegal to bribe congressmen—they’d starve otherwise.” Now it is not the case, the Court assures us, that Congressmen can be bribed, but “gifts given to lobbyists to curry political favor do not always amount to bribes.” There follows a discussion, not very clear, about when a gift becomes a bribe. It concludes with the judicial judgment that “the distinction between legal lobbying and criminal conduct may be subtle, but, as this case demonstrates, it spells the difference between honest politics and corruption.”

And the difference may be accounted for in part by a pattern of contributions that are lawful—but also “a window into the way in which lobbyists…gain influence with public officials.”

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