The End of Legal Bribery: How the Abramoff Case Could Change Washington
Birnbaum, Jeffrey, The Washington Monthly
So far, the scandal surrounding disgraced lobbyist Jack Abramoff has produced some vivid and memorable examples of modern Washington graft--skybox tickets, pricey restaurant meals, golf junkets to Scotland. Yet at the center of the scandal is something more prosaic, and potentially far more explosive: good old-fashioned campaign donations. Deep in the plea agreements won by Justice Department lawyers are admissions by the defendants--Abramoff and his cronies, ex-DeLay aides Tony C. Rudy and Michael Scanlon--that they conspired to use campaign contributions to bribe lawmakers. Even though these gifts were fully disclosed and within prescribed limits, the government said they were criminal, and the defendants agreed. This aspect of the case has received little attention. But it is sending shudders down K Street. If such prosecutions were to become commonplace, the paid persuaders of Washington and their big-money clients would be dealt a body blow. If prosecutors begin to assert as a matter of routine that lobbyist gifts and campaign contributions are a form of bribery, it could open up a whole new front on the decades-old (and largely ineffective) effort to break the nexus of money and politics in the capital.
"More than in the past, the Department of Justice seems to be trying very hard to tie campaign contributions to legislative acts by members of Congress and to draw the inference that there's a criminal connection between the two," says Robert K. Kelner, chairman of the election law and political law practice at Covington & Burling. "If they succeed then I think it will change the standard advice that lawyers will give their clients about political contributions and also change common practices on Capitol Hill." Stanley Brand, a noted criminal defense attorney at the Brand Law Group in Washington, agrees. "The department is inching toward making campaign contributions the central thing of value when they charge a bribe," says Brand. "I don't know if they'll get all the way there. But it would be an eight on the Richter scale for the campaign finance system if they do. Every PAC and interest group would have to ask itself if its donation is going to be grist for a prosecution."
The earthquake would certainly upset Washington, but it would probably delight almost everyone else. For decades, opinion polls have shown that voters think their politicians are bought and sold by the rich and connected. But these same voters have also seen any number of campaign finance "reforms" put in place, only to watch the system become evermore driven by dollars.
Unlike overhaul efforts in the past, though, which have relied on politicians cleaning up the very system that keeps them in power, the Justice Department's Abramoff case opens up the possibility of genuine change. Imagine, for instance, if the oil companies and their executives could no longer link their campaign contributions to their interests in energy legislation. Or if trial lawyers couldn't do the same with tort reform legislation. Robbed of much of their ability to bend the power structure with donations and other gifts, these industries would have less reason to give at all. They'd be forced instead to rely on the persuasiveness of their arguments rather than the power of their pocketbooks.
Campaign finance laws are built on a legal fiction. To wit: Electoral donations are considered within the law even though they are actually bribes at root. Think of them as "legalized bribery." Through bundled contributions and PAC giving, industries, labor unions, and interest groups of all stripes try to persuade lawmakers to vote their way on the issues they care most about. Donors do not express their desire just that way. They use euphemisms like "buying access" to wink and nod their way toward the same thought. But the truth is the truth. Interests give money to buy votes. Unfortunately for those interests, lawmakers receive funds from so many sources, and also sometimes make their legislative decisions based on factors that have nothing to do with money, that the contributions do not always produce the result they desire. …