The public record is surely incomplete, and innocence is rightly presumed until guilt is established, but nothing so far known about Jack Abramoff’s conduct will attract admirers.  But this case, achieving the standing of true scandal, has, for some observers, come to represent a cause larger than the man at its center.  This is the nature of scandal: larger than life or than any one life, signifying some corruption in an institution or industry or community. 

     True to the script, the Abramoff scandal supposedly speaks to the perils presented by political contributions when they function as "bribes."  Carl Hulse, writing this weekend  in the New York Times, suggests that the investigation may show how "the American system of underwriting political campaigns," which "is often derided as legalized bribery," may also "amount to illegal bribery as well."  "Political Donations, Bribery and the Portrayal of the Nexus," New York Times (Nov. 25, 2005) at A28.  Members of the professional reform community have seized on this opportunity to argue that even contributions not quite meeting the requirements of a bribe should be investigated if they poison public perceptions of the political process.  See "BNA Report on Democracy 21 Letters Calling for Ethics Investigations," Nov. 28, 2005.

     This is the predictable direction of scandal, toward generalization and matching proposals for reform.  Larger policy agendas are advanced on the hot press of the moment.  Now that corruption has assumed human form, and its nature is revealed in vividly related narrative, a moral is drawn.  "The ways of Washington" are encapsulated, or so it is claimed, in the unfolding tale of particular people doing appalling things. 

    Then the question is: once political contributions can be criminally prosecuted, on the theory that, as one reform advocates told Hulse, " there is a line that can be crossed" between lawful politics and a crime, who draws that line?  Is it crossed only when the contribution is made as part of a broader scheme that includes more conventional pay-offs with cash or personal gifts?  Or is a pattern of contributions linked to some official act sufficient, without more, to make out a criminal offense?  When does an action lose its way in the accepted give-and-take of political bargaining and responsiveness and become actionable public corruption?

    Federal law now regulates contributions, limiting their amounts and compelling their public disclosure, with some expectation that this contributes measurably to protection against corruption or its appearance.  Yet Jeffrey Birnbaum states in this morning’s Washington Post that "As the Scanlon [Abramoff] case demonstrates, the extent of this favor-buying has gone so far"  that contributions made and reported within the lawful limits cannot escape federal criminal investigation.  "A Growing Wariness About Money in Politics," Washington Post (Nov. 29, 2005) at A1.  Aside from the question of whether this case can be said to "demonstrate" any proposition, the conclusion—the criminal prosecution of lawful contributions is needed—might justify doubts about the utility of an intricate and ceaselessly expanding campaign financing regulatory scheme.

    Prosecutions like Abramoff's can proceed without reliance, in making the case, on otherwise lawful political contributions, which is the more prudent course for them to follow.  Restraint here will serve the longer term interests of the public and the political process.  Those who would like to separate private money from politics will, of course, feel differently, but their goal is best pursued a different way, more openly and thoughtfully, outside the life-cycle of scandal.  Until we have a system of public financing, for which the public apparently has no appetite, private contributions will continue to fund our politics, and there should be wariness about leaving contributors at risk of criminal prosecution when the contributions are lawful on their face and when the line that might be crossed into criminal activity is variably and inconsistently drawn.  

    The facts of the Abramoff matter, those known and others still to come to light, may be very bad, but it is well-known what sort of law bad facts tend to make.

Bob Bauer