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.
[1] See generally John T. Noonan, Jr., Bribes: The Intellectual History of a Moral Idea (1984) (recording the history of bribery and efforts to combat it over two thousand years).
[2] See Hassan El-Saady, Considerations on Bribery in Ancient Egypt, 25 Studien zur Altägyptischen Kultur 295 (1998) (documenting examples of bribery and various punishments for bribery in Ancient Egypt based on the textual evidence from administration, biographies, and religious texts).; Exodus 23:8 (“You must not take a bribe, for a bribe blinds the clear-sighted and corrupts the words of the righteous”) (Christian Standard Bible).
[3] Noonan, supra note 1, at 315; see also Brian Smith, Edmund Burke, the Warren Hastings Trial, and the Moral Dimension of Corruption, 40 Polity 70 (2008) (detailing Edmund Burke’s long effort to hold Warren Hastings accountable for corruption in his impeachment trial and expose the corrupt activities of the British East India Company in India).
[4] Edmund Burke, Mr. Burke’s Speech, on the 1st December 1783: Upon the Question for the Speaker’s Leaving the Chair, in Order for the House to Resolve Itself into a Committee on Mr. Fox’s East India Bill (Dec. 1, 1783) (transcript available in the University of Michigan Library) (describing the East India Company’s abuse of global monopoly powers bestowed on it by Parliament).
[5] The Tea Act of 1773, 13 Geo. 3 c. 44.
[6] Boston, December 20, Boston-Gazette, Dec. 20, 1773, at 3 (“On Tuesday last the body of the people . . . assembled at the old south meeting-house, to inquire the reason of the delay in sending the ship Dartmouth, with the East-India Tea back to London, and having found that the owner had not taken the necessary steps for that purpose . . . . A number of brave [and] resolute men, determined to do all in their power to save their country from the ruin which their enemies had plotted, in less than four hours, emptied every chest of tea on board the three ships commanded by captains Hall, Bruce, and Coffin, amounting to 342 chests, into the sea ! ! without the least damaged done to the ships or any other property.”).
[7] Thomas Paine, Common Sense (3d ed., 1776) (“[B]ribery, corruption, and favouritism, are the standing vices of Kings . . . .”).
[8] Li Yang, Branko Milanovic & Yaoqi Lin, Anti-Corruption Campaign in China: An Empirical Investigation, 85 Eur. J. Pol. Econ., Dec. 2024, at 1, 1 (providing a database of officials who have been found guilty of corruption by China between 2012 and 2021 and noting that “[b]y 2012 corruption became the most compelling challenge confronting the ruling power of the Communist Part[y] of China”).
[9] Trump v. United States, 603 U.S. 593 (2024) (holding that the President has absolute immunity from criminal prosecution for official acts within core constitutional powers, a presumption of immunity for other official acts, but no immunity for personal capacity acts).
[10] Richard W. Painter, SCOTUS House: Can a Supreme Court Ethics Lawyer and Inspector General Help Get This Fraternity Under Control?, 37 Geo. J. Legal Ethics 347 (2024).