Bribery of government officials is as old as government itself.[1] Bribery plagued ancient Egypt and Israel.[2] In England, the Star Chamber bribery cases date back to the mid-1550s.[3] Edmund Burke denounced the corrupt influence on Britain’s Parliament of the East India Company and its even greater corruption of local officials in India.[4] After the 1773 Tea Act granted the same East India Company a monopoly on sale of tea in America,[5] colonists in Boston refused to buy it, insisted the tea be sent back to England, and, when it was not, dumped the tea into Boston harbor.[6] Clearly, corruption of the British colonial administration was a significant factor motivating the American Revolution.[7]
Fighting bribery and other forms of corruption is vitally important to the survival of any form of government. Even authoritarian regimes combat corruption, as China is now doing on a massive scale.[8]
How well is the United States doing fighting bribery today? Not so well, as this Article will discuss. Indeed, legal remedies for bribery are fading under relentless pressure from the Supreme Court, which has narrowly construed federal corruption statutes, imposed constitutional constraints on Congress’s power to regulate corruption, and bestowed broad immunity from criminal prosecution on the President.[9] The problem is magnified by the fact that the Supreme Court itself is facing a corruption crisis.[10]
Part I of this Article discusses the traditional understanding of bribery that existed at common law at the time of the Founding and presumably is embodied in the reference to bribery in the Impeachment Clause of the Constitution. Part I additionally discusses the Emoluments Clause of the Constitution, which prohibits holders of federal office from receiving gifts, offices, and emoluments from foreign governments without consent of Congress. Part II discusses recent judicial developments weakening the traditional notion of bribery. Specifically, Section II.A discusses how the Supreme Court has narrowed the definition of bribery in the federal criminal code. Section II.B discusses how the Supreme Court has immunized the President from prosecution for official capacity crimes and made prosecution of a President even for some personal capacity crimes, such as bribery, difficult. Section II.C discusses how the Supreme Court has made bribery via campaign finance almost impossible for Congress and the states to regulate. Section II.D discusses how the Supreme Court has made itself immune from anticorruption regulation such as an enforceable ethics code. Part III discusses more current developments under the second Trump Administration, including scaling back of enforcement of the Foreign Corrupt Practices Act and Foreign Agents Registration Act, as well as the Justice Department seeking dismissal of New York City Mayor Eric Adams bribery indictment on political grounds and the rise and potential threat of cryptocurrency in the context of bribery. Part IV discusses the implications of a weakened notion of bribery on representative democracy. This Article concludes that bribery and other forms of corruption are a serious risk to representative democracy in the United States and that voters and officeholders in all three branches of our government must prioritize reform.