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84 Fordham L. Rev. 463 (2015-2016)
Criminal Corruption: Why Broad Definitions of Bribery Make Things Worse

handle is hein.journals/flr84 and id is 481 raw text is: CRIMINAL CORRUPTION: WHY BROAD DEFINITIONS OF BRIBERY MAKE THINGS WORSE Albert W. Alschuler* Although the law of bribery may look profoundly underinclusive, the push to expand it usually should be resisted. This Article traces the history of two competing concepts of bribery-the intent to influence concept (a concept initially applied only to gifts given to judges) and the illegal contract concept. It argues that, when applied to officials other than unelected judges, intent to influence is now an untenable standard. This standard cannot be taken literally. This Article defends the Supreme Court's refusal to treat campaign contributions as bribes in the absence of an explicit quid pro quo and its refusal to read a statute criminalizing deprivations of the intangible right of honest services as scuttling the quid pro quo requirement. While recognizing that the stream of benefits metaphor can be compatible with this requirement, it cautions against allowing the requirement to degenerate into a one hand washes the other or 'favoritism standard. This Article maintains that specific, ex ante regulations of the sort commonly found in ethical codes and campaign finance regulations provide a better way to limit corruption than bribery laws, but it warns that even these regulations should not prohibit all practices that may be the functional equivalent of bribery. This Article concludes by speculating about whether the efforts offederal prosecutors to reduce corruption over the past sixty years have given us better government. I. THE CORRUPTION DILEMMA ..................................... 464 II. Two DEFINITIONS OF BRIBERY ............................. 466 A. Intent to Influence Bribery .............................. 466 1. The Basic Standard ........................ 466 2. The Adverb .......................... ...... 467 3. The Bribe-Taker's Mental State................... 469 * Julius Kreeger Professor Emeritus of Criminal Law and Criminology, the University of Chicago. This Article is part of a symposium entitled Fighting Corruption in America and Abroad held at Fordham University School of Law. For an overview of the symposium, see Jed Handelsman Shugerman, Foreword: Fighting Corruption in America and Abroad, 84 FORDHAM L. REv. 407 (2015). 463

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