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Don’t Change the Subject: Interpreting Public Discourse over Quid pro Quo

Published online by Cambridge University Press:  23 January 2015

Andrew Stark
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Abstract:

A quid pro quo is an exchange of value between a citizen or group—often a businessperson or organization—and an official; what the citizen or group offers can take either monetary or nonmonetary form and what the official supplies, in return, is some kind of public act. Despite the fact that instances of quid pro quo seem continually to compel public attention, very few rise to the level of bribery; i.e., the level in which they are resolved judicially. In part, quid pro quo eludes judicial forums for factual reasons: It is difficult to prove. And in part, the reasons are normative: The distinction between objectionable quid pro quo and acceptable democratic norms—on which citizens and groups ought to be able to support officials who are in turn responsive to them—is difficult to draw. Hence, a great gray area of quid pro quo finds itself resolved (or at least debated) in political forums. In what follows I examine central strands of American public discourse over the factual and normative issues of quid pro quo. My purpose is to articulate those principles which most parsimoniously account for its structure, and to explore what presuppositions various discourse-participants either explicitly or implicitly bring to bear in determining whether a situation constitutes a troubling quid pro quo.

Type
Articles
Information
Business Ethics Quarterly , Volume 7 , Issue 3 , July 1997 , pp. 93 - 116
Copyright
Copyright © Society for Business Ethics 1997

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References

Notes

1 Daniel Hays Lowenstein, “Political Bribery and the Intermediate Theory of Politics,” UCLA Law Review 32 (1985), p. 819.

2 See Bennett L. Gershman, “Abscam, the Judiciary and the Ethics of Entrapment,” Yale Law Journal 91 (1982), p. 1582; Jane Fritsch, “A Bribe’s Not a Bribe When It’s a Donation,” New York Times January 28, 1996, Section 4 p. 1.

3 Christine MacKinnon, “Hypocrisy, With a Note on Integrity,” American Philosophical Quarterly 28 (1991), p. 327.

4 See Norman Malcolm, “Subjectivity,” Philosophy 63 (1988), p. 147.

5 Will Kymlicka, Contemporary Political Philosophy (Oxford, 1990), p. 214; see also Harry Frankfurt, “Identification and Wholeness,” in Ferdinand Schoeman, ed., Responsibility, Character and the Emotions (Cambridge: 1987), p. 34.

6 Spoken at the confirmation hearings for Secretary of Agriculture-designate Earl Butz. See Hearings, U.S. Senate Committee on Agriculture and Forestry, 92nd Conress, 1st Session (1971), p. 57.

7 Lowenstein, “Political Bribery,” p. 819.

8 I draw the term “classical” contract law from Melvin Aron Eisenberg, “The Responsive Model of Contract Law,” Stanford Law Review 36 (1984), p. 1108. Classical contract jurisprudence is to be distinguished from what might be called a “critical” or “revisionist” approach to contract law, which I discuss below.

9 Stanley D. Henderson, “Promises Grounded in the Past: The Idea of Unjust Enrichment and the Law of Contracts,” Virginia Law Review 57 (1971), pp. 1165, 1180; see also Collord v. Cooley 94 Idaho 789, 793, 451 P. 2d 535, 539 (1969).

10 Henderson, “Promises,” p. 1161.

11 Michael D. Bayles, “Legally Enforceable Contracts,” Law and Philosophy 4 (1985), pp. 331, 333; Melvin Aron Eisenberg, “The Principles of Consideration,” Cornell Law Review 67 (1982), p. 642.

12 Melvin Aron Eisenberg, “The Bargain Principle and Its Limits,” Harvard Law Review 95 (1982), p. 742.

13 Henderson, “Promises,” p. 1143.

14 Eisenberg, “The Bargain Principle,” p. 745.

15 Henderson, “Promises,” p. 1156.

16 Henderson, “Promises,” p. 1128; see also Richard Hooley, “ Consideration and the Existing Duty,” Journal of Business Law (1991), p. 19; and James D. Gordon III, “Consideration and the Commerical-Gift Dichotomy,” Vanderbilt Law Review 44 (1991), p. 283. Throughout, I leave aside the perpetual question of whether promises and not simply performances or acts can constitute contractual consideration. Henceforth, I use interchangeably the terms “performance,” “act,” “benefit,” “consideration,” or “transfer of value,” on the one hand, and “commitments” or “promises” to perform, act, provide benefits or consideration, or transfer value on the other.

17 Bayles, “Legally Enforceable Rules,” p. 328.

18 Eisenberg, “The Responsive Model,” p. 1118.

19 Ibid., p. 1107.

20 Eisenberg, “The Responsive Model,” p. 1107. The classical approach, it should be emphasized, does contemplate the possibility that a contract could be unconscionable—that one party to a particular contract may have exerted duress or otherwise manipulated the mental state of another such that an unconscionably disproportionate, hence voidable, exchange took place. Such a possibility, however, is of a piece with classical jurisprudence’s subjective approach to proportionality, in that it “depends on a determination of the parties’ mental states.” And it remains inconsistent with newer approaches (to be discussed below) which would void contracts (i.e., declare them nonexistent) on objective grounds; i.e., for simply failing to meet certain social or market standards of fair or proportionate exchange.

21 Bayles, “Legally Enforcable Contracts,” p. 333.

22 Ibid., see also Eisenberg, “The Responsive Model,” p. 1115.

23 Gordon, “Consideration,” p. 310; Jane B. Baron, “Gifts, Bargains and Form,” Indiana Law Journal 64 (1989), pp. 155–203.

24 Eisenberg, “The Principles of Consideration,” p. 656.

25 Eisenberg, “The Bargain Principle,” p. 745.

26 Paul H. Douglas, Ethics in Government (Cambridge, MA.: 1952), p. 89; Ronald M. Levin, “Congressional Ethics and Constituent Advocacy in an Age of Mistrust,” Michigan Law Review 95 (1996), pp. 68., 87.

27 Quoted in Burt Solomon, “Bite-Sized Favors,” National Journal October 11, 1986, p. 2149.

28 The Staff of Congressional Quarterly, ed., Dollar Politics 3rd edition (Washington: Congressional Quarterly, 1982), p. 48.

29 Paul H. Douglas, Ethics in Government (Cambridge: Harvard, 1952), p. 90.

30 See Donna Fenn, “Using Husbands as Business Cards: Political Wives in Compromising Positions,” Washington Monthly June 1982, p. 42.

31 See also U.S. v. Arthur (544 F. 2d 730 (4th Cir. 1976) and U.S. v. Hoste (609 F. 2d 796 (5th Cir.) cert. denied 449 U.S. 833 (1980).

32 Amitai Etzioni, Capital Corruption: The New Attack on American Democracy (San Diego: Harcourt, Brace, Jovanovich, 1984), p. 71.

33 Eisenberg, “The Responsive Model,” p. 1109.

34 Gordon, “Consideration,” p. 310.

35 Steven Chibnall and Peter Saunders, “Worlds Apart: Notes on the Social Reality of Corruption,” British Journal of Sociology 28 (1977), p. 146.

36 182 file 5163 (cite to come)

37 See the account in Chibnall and Saunders, “Worlds Apart,” pp. 146–147.

38 Baron, “Gifts,” p. 196; see also some of the discussion in William Ian Miller’s chapter “Requiting the Unwanted Gift,” in Humiliation: And Other Essays on Honor, Social Discomfort and Violence (Ithaca: Cornell University Press, 1993), especially p. 23.

39 Ross F. Cranston, “Regulating Conflict of Interest of Public Officials: A Comparative Analysis,” Vanderbilt Journal of Transnational Law 12 (1979), p. 245; Comment, “Questioning the Impartiality of Judges,” Temple Law Quarterly 60 (1987), p. 704.

40 182 file 5166 (cite to come)

41 U.S. Senate, Code of Official Conduct (101st Congress, 2nd Session), March 1, 1990, p. 34. On pettiness, see Neil A. Lewis, “Corruption, Too, is in the Eye of the Beholder,” New York Times June 12, 1994, p. E4; editorial, Washington Post April 30, 1989 (“Jim Wright violated the spirit of the law for just a few dollars—the very triviality condemns him”); column by Charles Krauthammer, Washington Post April 21, 1989 (“I am as titillated as the next pundit by corruption on a grand scale, but corruption on this scale I find sad”). On greed, see Chibnall and Saunders, “Worlds Apart,” p. 146; Susan Rose-Ackerman, Corruption: A Study in Political Economy (New York: Academic Press, 1978), p. 50; and John T. Noonan, Bribes (New York: MacMillan, 1984), p. 697.

42 Lowenstein, “Political Bribery,” p. 819.

43 Eisenberg, “The Responsive Model,” p. 1109.

44 For a different but (I think) not incompatible interpretation of some of these situations, see Dennis F. Thompson, Ethics in Congress: From Individual to Institutional Corruption (Washington: Brookings, 1995), pp. 113–114.

45 William Ashworth, Under the Influence: Congress, Lobbies and the American Pork Barrell System (New York: Dutton, 1981), pp. 78–9.

46 In D.C. Federation of Civic Associations v. Volpe, 459 F. 2d 1231, 1246 (D.C. Cir. 1971), cert. denied, 405 U.S. 1030 (1972), the Circuit Court overturned a District Court ruling explicitly allowing Transportation Secretary John Volpe to approve construction of a bridge through D.C. park land in return for a Congressman’s willingness to vote funds for the construction of the D.C. subway system. While a number of issues governed the decision, it is worth noting that the construction of the subway would arguably have made the need for a bridge even less compelling to Volpe, in the same way that the bridge would have made the need for the subway—if anything—less compelling to the Congressman.

47 I bring bribery back into the discussion here because, in exploring the normative structure of the bribery offense (at least in some of its aspects) I am better able to showcase the extent to which the integrity of the official subject remains the one concern that most animates discourse over others kinds of quids and quo’s.

48 Lowenstein, “Political Bribery,” p. 828.

49 Lowenstein, “Political Bribery,” p. 807; Cranston, “Regulating Conflict of Interest,” p. 223; see also U.S. v. Brewster 408 U.S. 501, 554–55 (1972).

50 Lowenstein (“Political Bribery,” p. 827) illustratively reports that when the California Marshalls’ Association was accused of making unethical contributions to the speaker of the state assembly, the president of the association said “we’re just participating in the legislative process.” “A naive observer,” Lowenstein pointedly comments, “might have imagined that campaign contributions were part of the electoral process.” See also some of the discussion in Thompson, Ethics in Congress, pp. 115–121; Joseph R. Weeks, “Bribes, Gratuities and the Congress,” Journal of Legislation 13 (1986), pp. 127, 145; Comment. “Federal Disclosure of Lobbying,” American University Law Review 26 (1977), p. 972. Along similar lines, as Rep. William M. Thomas puts it, “PACs have given up the attempt to change who is in the seat but now simply influence the person in it” (Campaign Finance Reform, Hearings held before the Task Force on Campaign Finance Reform, Committee on House Administration (102nd Congress, 1st Session), March 22, 1991 (Washington: GPO, 1991), p. 41).

51 Buckley v. Valeo, 424 U.S. 1, 21, 38, 58 (1976).

52 Of course, in addition to moving a legislator actually to vote in a certain way on a particular issue, lobbying could simply lead her to advocate (or cease advocating) a certain stance to her colleagues or the executive branch on that issue. See Alan Rosenthal, The Third House: Lobbyists and Lobbying in the States (Washington: Congressional Quarterly, 1993), pp. 138, 141.

53 Richard L. Hall, and Frank W. Wayman, “Buying Time: Moneyed Interests and the Mobilization of Bias on Congressional Committees,” American Political Science Review 84 (1990), pp. 799, 802–3.

54 Richard A. Smith, “Advocacy, Interpretation and Influence in the U.S. Congress,” American Political Science Review 78 (1984), p. 59.

55 Conversely, lobbying that is meant to move legislators—but on an array of issues, not just one—is also treated relatively more benignly. To the extent that lobbyists engage in “general advocacy” as opposed to lobbying on a specific bill or case, they escape what regulation there is. See Comment, “Federal Disclosure of Lobbying,” p. 1014.

56 Heinz Eulau and John D. Sprague, Lawyers in Politics (Indianapolis: Bobbs Merrill, 1964), p. 19.

57 House Ethics Manual (102nd Congress, 2nd Session) April 1992 (Washington: GPO, 1992), p. 54.

58 Rev. Rul. 78–248, 1978–1 C.B. 154, Situation 4.

59 See Campaign Finance Reform, pp. 18. 32.

60 Frank J. Sorauf, Inside Campaign Finance Reform: Myths and Realities (New Haven: Yale University Press, 1992), pp. 199, 208, 228. See David Frum, “An End to Money Grubbing: Changing the Campaign Finance System,” The Weekly Standard, January 15, 1996, p. 25: Our current system “make[s] it dramatically more convenient to get money from narrow pressure groups than from persons motivated by a broad range of national interests...[U]nlike individuals, who are motivated surprisingly often by disinterested civic-mindedness, political action committees exist exclusively to promote specific material interests. The chairman of Exxon might give $1,000 to a candidate because he agrees with the candidate’s views...The various energy industry PACs, however, distribute their largesse on the crassest quid pro quo basis. And Congress has seized the opportunities presented by the PAC-finance system by hugely manipulating the number of subcommittees, ensuring that almost every congressman has some important quo’s to return for the PACs’ quids. When reformers allege that the system of financing congressional elections has deterioriated into legalized bribery, they come uncomfortably close to the truth.”

61 Rev. Proc. 142–2, 11, 19; 25–6, 1987–3 C.C. 193, 301; see also H.R. Conf. Report No. 100–495, 100th Cong. 1st Session (1987) 10–21.

62 What is prohibited is “the reinforcement of an interested citizen’s initial support” of a given issue position [38] [see Rev. Proc. 86–43, 1986–2 C.B. 79; Lee A. Sheppard, “Is Gingrich’s Think Tank Too Partisan for Exemption?” Tax Notes, December 5, 1994, p. 1175] Rev. Proc. 86–43, 1986–2 C.B. 729

63 Comment, “Governmental Speech in the Democratic Process,” Washington University Law Quarterly 65 (1987) p. 210. In other words, officials’ attempts to influence citizens in single-issue referendum campaigns could have spillover effects onto their own candidacies, just as citizens’ attempts to support officials’ campaigns through contributions could have spillover effects in influencing the official on a particular issue.

64 See e.g., Mark G. Yudof, When Government Speaks: Politics, Law and Government Expression in America (Berkeley: University of California Press, 1983), p. 48; Note, “Conflicts of Interest of State and Local Legislators,” Iowa Law Review 55 (1969), p. 461; David Cole, “Beyond Unconstitutional Conditions: Charting Spheres of Neutrality in Government-Financed Speech,” New York University Law Review 67 (1992), p. 714.