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Is It a Crime to Trade Votes for Earmarks?

Q: I am an ethics reform activist who is pleased with the recent attention to the issue but eager for more. My question concerns your May 27 column regarding trading earmarks for votes. You suggested that the recent amendments to House Rule 23 potentially could forbid the age-old practice of logrolling with earmarks. If this turns out to be the case, I think it is great news. But, in my view, ethics violations sometimes result in little more than a slap on the wrist from the ethics committee, so I’d like to go one step further and make trading earmarks a crime. In fact, as a former practicing attorney, I think a case can be made that, under the current federal bribery statute, trading earmarks for votes already is a crime. After all, if it is bribery for a Member to trade legislative action for money, it seems it also should be bribery to trade his legislative action for another Member’s vote in favor of his earmark. Is it? And, if not, does the House’s change to Rule 23 mean that earmark trading is now a crime?

A: In his 1992 book “Earth in the Balance,” Al Gore wrote: “I have followed the general rule that I will vote for the established farm programs of others in farm states … in return for their votes on behalf of the ones important to my state.” Given your views on ethics reform, you might consider this an incriminating admission. But I suspect that most people would disagree. After all, Gore was merely acknowledging his participation in the long-standing legislative practice of trading votes. For a Senator and presidential candidate to be so candid about this suggests that, at the time of Gore’s book, no one had any serious doubts that trading earmark votes was legal. [IMGCAP(1)]

However, in the 15 years since Gore’s book was published, things have changed. There are few hotter issues today than ethics reform, and earmarks are at or near the top of the agenda. But have things changed so much that trading earmark votes is now a crime?

To answer this question, the place to start is the federal bribery statute. Under this statute, it is a crime if a Member “corruptly” accepts or solicits “anything of value” for himself or for any other person or entity in return for being influenced in his performance of an official act.

To make the case that this statute covers trading earmarks, the first hurdle you face is establishing that when a Member bargains for a vote in favor of his earmark, he solicits or accepts anything of value. In the typical bribery case the anything of value is money. For example, former Rep. Duke Cunningham (R-Calif.) pleaded guilty to bribery for accepting money from defense contractors in exchange for favorable treatment.

Yet anything of value need not always be money. Courts have found a variety of non-monetary benefits to qualify, including loans and sexual favors, among others. Yet, no federal court has ever held that the term “anything of value” applies to a legislative vote.

Despite this precedent, an argument exists that an earmark vote should qualify as anything of value. The value a Member receives when someone votes in favor of his earmark, you could argue, is the political benefit he reaps from increased popularity among his constituents. You could even argue that the very fact that Members enter into earmark vote trades in the first place proves that such votes are things of value. If they were not something of value, you might say, why would Members trade them?

Yet, even if you could establish that earmark votes qualify as anything of value, to make your bribery case, there is an even bigger legal hurdle you would need to clear. Under the statute, you would need to establish that when Members trade earmarks they are behaving corruptly.

The reason this is such a difficult hurdle in this case is that, to interpret terms such as “corruptly,” courts often look to tradition and customary practice. In the 45 years since passage of the federal bribery statute, no court has ever convicted a Member for trading earmarks. This may be in part because the Supreme Court has said, albeit in a different context, that the federal bribery laws “deal with only the most blatant and specific attempts of those with money to influence governmental action.”

In the face of this precedent, you could argue that the House’s new earmark rule changes things. The new rule, you could argue, reflects that the times when a Member now trades earmarks, he is acting corruptly.

The problem with this argument is that an amendment to the House ethics rules would be an awfully odd (and likely unconstitutional) way to effect a dramatic expansion of the scope of the federal bribery statute. If the House intended to make earmark trading a crime, it could have sought to amend the bribery statute itself, which, of course, also would have required passage in the Senate and the signature of the president. The House did not do so, and the language of the bribery statute is just the same as it has been throughout the long history in which Members have traded earmark votes.

Yet the good news for you is that my view regarding the inapplicability of the bribery statute is no guarantee that a federal prosecutor will not seek to apply it. A prosecutor who shares your zeal for ethics reform might try to invoke your reading of the statute. In today’s climate, what better way for a reform-minded prosecutor to make front-page news than to be the first to prosecute a Member for trading earmarks? Therefore, though your bribery case seems a difficult one to make, your question is a reminder that today’s earmark traders in Congress not only face potential ethics charges but also run the risk of being the guinea pig for an enterprising prosecutor.

C. Simon Davidson is an attorney in the Washington, D.C., office of McGuireWoods LLP. Click here to submit questions. Readers should not treat his column as legal advice. Questions are not confidential and do not create any attorney-client relationship.

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