Is bribery political speech?

In his latest column, arch-conservative George Will comes to the defense of a Democratic politician. The former governor of Alabama, Don Siegelman, is appealing his conviction for having taken a bribe from a health-care businessman (who was also convicted). As Will explains, the businessman contributed money to the governor's campaign for a state lottery, which failed in a referendum. Siegelman then renewed the businessman's appointment to a state health board. In what was seen widely at the time as a partisan persecution instigated by the Bush Administration, prosecutors convinced a jury that the businessman's donation to the lottery referendum fund constituted a bribe, in return for which he was rewarded with the reappointment. Siegelman has been freed on appeal and wants the conviction overturned because the law in question violates due process by failing to "give due notice of proscribed behavior." At issue is what can be said legally to constitute a bribe in an era when, in Will's words, "seeking [political contributions] is not optional for a politician in America's privately-funded democracy." Since contributions themselves have been recognized as a First Amendment-protected form of political speech since the 1970s, it is argued that a contribution in itself can't be seen as a bribe. The fact that the businessman benefited by being reappointed to that board should not be considered damning, Siegelman contends, because (again in Will's words) "elected officials must undertake official acts [and] some will be pleasing or otherwise beneficial to contributors." By the loosest possible standard, any policy that can be seen as benefiting a contributor could be seen as proof of bribery. Siegelman (and Will) argue for the strictest possible standard, one that has been promulgated in a circuit court by the present Justice Sotomayor of the Supreme Court, that would require proof of an explicit quid-pro-quo arrangement, i.e. a recorded agreement by which a politician agrees to do something in return for (and implicitly only in return for) a campaign contribution. It seems very unlikely that anyone will ever be convicted of bribery should that standard prevail; politicians may often seem stupid when making speeches or "debating," but practically speaking they can't be that dumb.

The case against recognizing political contributions as speech shouldn't really be about the suspicion of bribery. It remains for historians to demonstrate whether the country's rightward turn since the 1960s resulted from a particular infusion of money into politics, and even if that can be proven the "bribery" will have taken place at a macro level at which individual politicians might not be blamed and voters could be just as guilty. Bribery is a tough charge to sell because many of us still think of it as an enticement with money  to do something you otherwise wouldn't. We're more likely to believe in bribery if we see money changing minds. Instead, money flows to candidates who already espouse the beliefs and endorse the desires of the contributors. If money has corrupted the political process, the damage is most likely done at the stage which determines whom the rest of us can vote for, and not after an election. The real case against unrestricted contributions is based on the harmful effect of wealth "occupying" the public sphere, so to speak, to the exclusion of disadvantaged voices. As for Alabama, the simple solution to Siegelman's trouble would have been to pass a law excluding campaign contributors from holding appointed offices. On the federal level, this would end the time-honored practice -- still honored by President Obama -- of rewarding big contributors with prestigious diplomatic posts, but who'd mourn the passing of that tradition? Of course, such a regulation would require complete disclosure of contributions -- something Republicans in particular wish to avoid out of an avowed fear that contributors may suffer reprisals for taking political stands. The real heart of the trouble is the admission that soliciting contributions is "not optional." That's virtually an admission that the process itself is corrupt, but a publicly-funded democracy probably isn't a reliable alternative so long as partisanship prevails. You may not agree, but we should agree on a need to discover the roots of this dependency on contributions and to get at the root of it in a literally radical way.