Laws Prohibiting Solicitation: When Is It Criminal To Accept Money To Obtain Public Office?

"[A] democracy is effective only if the people have faith in those who govern, and that faith is bound to be shattered when high officials and their appointees engage in activities which arouse suspicions of malfeasance and corruption." So wrote Supreme Court Chief Justice Earl Warren in 1961. Indeed, corrupt politicians have tested democracy in the United States throughout history.

While public offices have been bought and sold on the theory of "you scratch my back, I'll scratch yours," federal laws prevent bribing politicians. Federal law prohibits soliciting or accepting money to obtain public office in the United States.

Below, you'll find key information on situations where people may try to buy influence with public officials and other decision-makers to obtain public office. This includes a brief history of the law and where to go for more information.

Public Officials and Their Official Duties

Public officials are people elected or nominated to a public position. They also generally include employees of any federal, state, or local governmental entity, although some exceptions apply.

The U.S. Office of Government Ethics (OGE) is an independent federal agency that seeks to prevent conflicts of interest and maintain ethical compliance in over 130 federal government agencies. It does so by establishing policies and providing guidance. Ethical considerations were initially addressed through the executive orders of former U.S. President George H.W. Bush. These directives were later outlined in the Code of Federal Regulations (see 5 CFR § 2635.101).

Public servants must follow the law and specific ethical rules of public service. These rules include the following, among others:

• Remain loyal to the Constitution and the law
• Do not use public office for private gain
• Do not use public funds for private gain
• Avoid conflicts of interest
• Do not hold financial interests that conflict with the performance of their duty
• Do not solicit or accept gifts from a person or entity seeking official action from the public official's agency
• Do not solicit or accept gifts from someone who would benefit from the public official's action or non-action of their duties
• Act impartially and do not favor any private entity or individual (such as a nonprofit organization or immediate family member)
• Avoid any actions that may create the appearance they are violating the law, standards of ethical conduct, or any executive orders

These ethical rules safeguard the public's trust in public officials. As Thomas Jefferson said, “When a man assumes a public trust, he should consider himself public property." But with public office comes power. And, as the saying goes, power corrupts.

History of Public Corruption Laws

There's a long history of safeguarding against the corruption of public officials in the United States. The Founding Fathers incorporated this into the U.S. Constitution. Article IV, Section IV, of the U.S. Constitution provides that "[t]he United States shall guarantee to every State in [the] Union a Republican Form of Government . . ."

In guaranteeing the "Republican Form of Government," lawmakers provided a process to impeach public officials. Impeaching a public official involves charging them with misconduct. It's the first step in removing someone from public office. Congress and the Senate may impeach the following public officials:

• President
• Vice President
• Other executive branch officers
• Cabinet secretaries
• Judges

Members of Congress may be subject to expulsion by their respective bodies.

Congress also passed laws to protect public confidence in their officials. These laws included the following:

• Bribery statutes
• Mail fraud laws
• The Foreign Corrupt Practices Act (FCPA)

The federal government may impose criminal penalties if public officials abuse their official position. Public servants may also be subject to civil penalties if they act improperly in their official capacity. A state ethics committee may file a civil case against the corrupt official. The committee may also refer the matter to the attorney general.

Examples of Public Corruption and Disciplinary Action

To illustrate corruption laws, it helps to have examples. Below are several examples of the Department of Justice's and Federal Bureau of Investigation's (FBI) work to uncover corruption by public servants.

Watergate

The federal government arrested five men for breaking into the Watergate Hotel in 1972. The men wanted President Richard Nixon to win his re-election campaign. To further their plan, they tried to spy on the Democratic Party's Headquarters located in the hotel. Law enforcement caught these men in June of 1972, the second time they broke into the hotel.

Nixon denied any knowledge of the men or the break-in. He ultimately won his re-election campaign.

Two reporters from the Washington Post continued to dig into the break-in. An anonymous FBI source contacted the reporters and told them Nixon and other White House staffers were involved in covering up the break-in. As it turned out, Nixon provided “hush money" to the men who broke into the hotel. He also used the Central Intelligence Agency (CIA) to prevent the FBI from investigating the break-in.

The Supreme Court eventually ordered Nixon to produce his tape recordings from the Oval Office. The tape recordings revealed Nixon tried to cover up the break-in. Before Congress impeached him, he resigned. President Gerald Ford succeeded Nixon. Ford pardoned Nixon, so he never faced criminal charges. All told, 48 people were convicted for their role in the Watergate scandal.

ABSCAM

In 1978, the FBI set up a fake company, ABSCAM. They posed as a wealthy Arab sheik who wanted to buy artwork. Through its investigation, the FBI recovered over $1 million in stolen art and stopped roughly $600 million in securities fraud.

The investigation ultimately led them to Washington, D.C., where corrupt politicians accepted bribes from FBI agents. For example, members of Congress accepted bribes in exchange for granting the fictional sheik asylum in the United States. Other politicians took bribes to grant ABSCAM a gambling license in New Jersey.

The ABSCAM investigation resulted in the arrest of a senator, six members of Congress, and other corrupt officials.

Tennessee Waltz

In 2002, the FBI began investigating widespread corruption by Tennessee public officials. The FBI started by investigating reports of fraud and corruption by a lobbyist in the Juvenile Court Clerk's office. The lobbyist eventually became an FBI informant. He recorded conversations between himself and a public servant close to state legislators. The public servant informed the lobbyist that he could purchase some legislators' votes for the right sum.

Eventually, the FBI set up a fake business. The business paid public officials over $150,000.00 in bribes for political purposes. The legislators went so far as to propose legislation the “business" drafted.

By the time the Tennessee Waltz investigation concluded in 2008, 12 people were convicted or pled guilty. This included several state senators and other public officials.

Soliciting or Accepting Money for Public Office Overview

Let's discuss the federal law against soliciting or accepting money for public office more specifically.

In this article, solicitation refers to a public official seeking something - like money or something of value - in exchange for a promise to use their influence to appoint that person to public office.

Under 18 U.S.C. § 211, accepting money to obtain public office can lead to federal criminal charges:

Whoever solicits or receives, either as a political contribution, or for personal emolument, any money or thing of value, in consideration of the promise of support or use of influence in obtaining for any person any appointive office or place under the United States, shall be fined under this title or imprisoned not more than one year, or both. Whoever solicits or receives any thing of value in consideration of aiding a person to obtain employment under the United States either by referring his name to an executive department or agency of the United States or by requiring the payment of a fee because such person has secured such employment shall be fined under this title, or imprisoned not more than one year, or both . . .

Let's visualize this scenario further. Imagine there was a candidate for the California State Senate. They accept a campaign contribution from a wealthy donor in exchange for the promise that they'll appoint the donor to public office. The candidate wins their political campaign and follows through on their commitment to the donor. The donor is appointed Postmaster. Here we have all the elements of solicitation:

1. An elected official
2. Accepts a political donation
3. From a donor
4. On the promise that the donor will be appointed to a federal position
5. The elected official appoints the donor to the federal position as agreed upon

It's a federal misdemeanor to solicit or accept a bribe in this way. If the government successfully prosecutes someone under this law, they can expect to receive up to one year of imprisonment, a fine, or both.

Charged With a Federal Crime? Get Legal Help

Federal crimes can carry serious consequences. If the government has charged you in federal court, consider contacting a local criminal defense attorney. An experienced criminal defense lawyer can provide you with advice regarding the following:

• The basics of criminal law and how it applies to your case
• Restrictions on using a public service position to obtain privileges or exemptions
• The various duties public servants owe to the public and government agencies
• How to legally donate to a political committee or political party

If you are facing criminal charges, contact a criminal defense attorney today. A criminal defense attorney—who is licensed to practice in and has experience in federal court—will help you navigate the process and ensure your rights are protected.