Snyder: Let’s Not Overreact
The Supreme Court’s recent 6-3 decision in Snyder v. United States overturning the conviction of the former Mayor of Portage Indiana for accepting a $13,000 from a local contractor immediately set off a wave of jeremiads among anti-corruption commentators. An Esquire headline exclaimed “The Supreme Court Majority Has Legalized Bribery So Long As You Do It Right” and claimed that “the carefully manufactured conservative majority maintained its unshakable fealty to corporate oligarchy by completing the work of legalizing bribery that began with the decision in Citizens United.”[1] A Guardian headline stated “The US supreme court just basically legalized bribery” and explained that the Supreme Court had held that “’gratuities’ … are not technically ‘bribes’ and therefore not illegal.”[2] A Vox article “The Supreme Court rules that state officials can engage in a little corruption, as a treat” informed readers that the Court had ruled that “state officials may accept ‘gratuities’ … despite a federal anti-corruption statute that appears to ban such rewards.”[3] And these are only a few examples. Unfortunately, this hyperbolic reaction obscured what the Court actually did, what it did not do, and how its concerns can be addressed by Congress to ensure that federal prosecutors have a complete and robust legislative arsenal to combat corruption.
What the Court Did and Did Not Do
The Court in Snyder addressed only one question: whether 18 USC 666 which criminalizes bribes to state and local officials in connection with programs receiving federal funds also covers “gratuities” (defined by the Court as “payments made to a public official after an official act as a reward or token of appreciation”). It concluded that 18 USC 666 is worded ambiguously and does not clearly cover gratuities. That is it. The Court did not say that gratuities are permissible. It did not prohibit states from using state law to prosecute those who give or receive gratuities. It did not prohibit the federal government from prosecuting cases involving gratuities paid to federal officials. (To the contrary, it noted repeatedly that 18 USC §201 clearly criminalizes the payment of gratuities of federal officials.) It did not change the law covering the payment of bribes (defined by the Court as “payments made or agreed to before an official act in order to influence the public official with respect to that future official act.”)
Thus, while Snyder will deprive federal prosecutors of the ability to charge state officials for receiving gratuities, it will have no effect on anti-corruption cases brought under the basic federal bribery statute (18 USC §201) the Hobbs Act (which, among other things, criminalizes extortion under color of official right), the Foreign Corrupt Practices Act (FCPA) or the recently passed Foreign Extortion Prevention Act (FEPA).
Rather, the only effect of Snyder will be to prohibit the federal government from using 18 USC §666 to prosecute the payment of gratuities to state officials. This is not nothing. But it is not everything either. §666 has not been a common prosecutorial tool in major federal corruption prosecutions. It did not figure, for example, in the prosecutions of former Illinois Governor Rod Blagojevich or former Virginia Governor Bob McDonnell. And almost all of the §666 prosecutions cited by Justice Jackson in her dissenting opinion involved relatively small payments (a $5,000 cash gratuity in connection with school district contracts; a $1,000 payment in connection with a municipality’s multimillion dollar loan application; gratuities of $5,000, $1,200, and $1,000 in connection with real-estate development projects). Only one involved more significant benefits – regular cash payments of thousands of dollars, first class plane tickets to India, and an apartment at below market rates.
But while §666 may not be the most important anti-corruption statute and while state prosecutions of public officials for receipt of gratuities will continue, there are good reasons for criminalizing the receipt of gratuities at the federal, as well as state, level. These include the obvious fact that it can often be difficult for state officials to prosecute other state officials. Therefore, the gratuity provision of §666 is worth salvaging. Fortunately, this can be done relatively easily.
How it can be fixed
The Court’s decision was the result of ambiguity in the statute. The specific provision at issue, 18 USC §666(a)(1)(B) provides:
Whoever …being an agent of an organization, or of a State, local, or Indian tribal government, or any agency thereof [that receives more than $10,000 in federal funds annually] corruptly solicits or demands for the benefit of any person, or accepts or agrees to accept, anything of value from any person, intending to be influenced or rewarded in connection with any business, transaction, or series of transactions of such organization, government, or agency involving any thing of value of $5,000 or more … shall be fined under this title, imprisoned not more than 10 years or both. (emphasis added).
The majority interpreted the phrase “intending to be … rewarded” as referring only to an ex ante expectation of receiving a payment in exchange for an official act yet to be taken, i.e., a bribe. The minority interpreted it as referring equally to after the fact gratuities. (As Justice Jackson wrote “[t]he term ‘rewarded’ easily covers the concept of gratuities paid to corrupt officials after the fact – no upfront agreement necessary.”) In reaching its conclusion, the majority contrasted the language of §666(a)(1)(B) with the language of the federal anti-gratuity statute, 18 USC §201(c)(1)(B), which explicitly criminalizes the solicitation, receipt or acceptance by a public official of anything of value “for or because of any official act performed or to be performed by such official or person.” On the basis of this comparison, the majority concluded that if Congress had intended to criminalize gratuities in §666, it would have used the same language it used in §201(c)(1)(B). Its failure to do so, the majority reasoned, makes clear that it did not intend §666 to cover gratuities. While many (most notably Justice Jackson and her fellow dissenters, Justices Sotomayor and Kagan) have attacked this reasoning as tortured, it has the virtue of making the fix easy – Congress need only conform the language of §666 to the language of §201(c)(1)(B) to address the majority’s concerns.
This solution is so obvious that a leading member of the white collar defense bar and former federal prosecutor, Justin Weitz, proposed it in a 2011 article written when he was still a law student. As Weitz presciently wrote “Congress’ inartful drafting birthed the current mess, and Congress bears ultimate responsibility for cleaning it up. If Congress fails to fix §666, the Supreme Court may decide to weigh in. If it does, the Court is likely to significantly constrain the Act.”[4] Thus, he suggested, “[i]f Congress wishes to criminalize gratuities, it must act clearly by parroting the language of §201(c).”[5] If the solution was obvious to a law student (granted a very intelligent one) in 2011, it should be even more obvious now, after Snyder.
This is the second of the “Synder” series. Click here to view the first post.
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[4] Justin Weitz, The Devil is in the Details: 18 U.S.C. §666 After Skilling v. United States, 14 N.Y.U. J. LEGIS. & P. POL’Y 805 (2011), available at https://nyujlpp.org/wp-content/uploads/2012/10/Justin-Weitz-The-Devil-is-in-the-Details-18-U.S.C.-666-After-Skilling-v.-United-States.pdf
[5] Id.