Is it bribery if you would have done it anyway?

Imagine you are a state legislator. Imagine there’s a bill before the legislature to offer incentives to companies to relocate to your state. Suppose you’re inclined, from your interpretation of the interests of the state, to support the bill.

A visitor comes to your office. You recognize him as a lobbyist for a large corporation considering relocation to your state. He offers you $50,000 to vote in favor of the bill.

You accept the money. You vote in favor.

Are you guilty of taking a bribe?

The question has two aspects, the legal and the moral. Bribery statutes typically require something of value to be exchanged for some action by a public official. $50,000 is something of value. But if you were going to vote in favor of the bill anyway, can it said to be in exchange for that? Maybe it's just a gift.

Bribery laws are often paired with gratuity laws. Public officials are not allowed to receive something of value in exchange for an official act. This is supposed to cover gifts, but it runs into the same problem.

Which is why some states forbid receipt of anything of value for any reason whatsoever. Yet all states allow the receipt of campaign donations. So you could just call it a campaign donation. Maybe the lobbyist called it that himself.

The legal questions have kept attorneys busy for generations. One of the most notorious bribery cases in American history involved the construction company of the Union Pacific Railroad in the 1860s. Congress had voted to fund construction of a transcontinental line from Nebraska to California. The Union Pacific would build the eastern half of the line. The UP contracted with a second firm, called Credit Mobilier, to do the actual construction and receive payment for the work. Except that the payments were vastly inflated, to the detriment of shareholders of UP and the benefit of the insiders who owned Credit Mobilier. This ring made a killing at the public expense. To keep Congress from investigating too closely, the insiders cut influential lawmakers in on the deal.

Word of the arrangement leaked. Congress was compelled to investigate itself. It came to the striking conclusion that although bribes had been culpably given, none had been culpably received.

What about the moral aspect of bribery? This was what got the takers of the railroad money off the hook. They claimed they supported the railroad already. They had nothing they wouldn't have done anyway. Bribery laws are supposed to protect the public interest. The public interest had not suffered.

If anyone had suffered, it was the railroad men who were foolish enough to pay for votes they would have gotten for free. Big corporations were as unpopular then as they often are today. No tears were shed for them. No demands for justice were made on their behalf.

So was this scandal a flap about nothing?

Not nothing. The Gilded Age marked a nadir in public confidence in government. Boss William Tweed and his minions in Tammany Hall in New York were infamous for padding their pockets out of the public purse. The presidency of Ulysses Grant witnessed corruption in the management of Indian affairs, as well as a nearly successful attempt by speculators to corner the gold market with the assistance of officials of the treasury. The Credit Mobilier affair added to the burden of distrust of government.

This exacted a cost. One reason Reconstruction ended when and how it did was that conservatives in the South complained that the Reconstruction state governments, which were trying to enforce civil rights laws, were corrupt. Some were, but not as corrupt as the conservatives made them out to be. Yet the impression of corruption caused the national public to agree to let the South run its own affairs.

“Caesar's wife must be above suspicion," said the famous Julius in casting Pompeia aside. He had other reasons besides alleged infidelity for divorcing her, but the idea stuck that government officials ought to be above suspicion.

Distrust is a kind of moral tax on the operations of government, especially in a democracy. The one thing democracy has going for it above other forms of government is legitimacy. The people choose their rulers. But corruption, or even the perception of corruption, erodes legitimacy. As legitimacy wanes, government becomes more difficult and less competent. It loses even more legitimacy. It breaks down entirely or tempts officeholders to step outside the Constitution.

If you take the $50,000, it might not be bribery. But it's bad. Don't do it.