How Bribery Became Legal: U.S. Code 18.666 and the Robert's Court.

"If we do not provide against corruption, our government will soon be at an end."¹ George Mason at the Constitutional Convention

Here is how you legally purchase a government official in the United States. First, let the official do what you want. Second, pay them afterward. Do not say "this payment is for that thing you did." That sentence is illegal. Everything else is fine.

This is federal law after the Supreme Court finished with it. James Snyder was the mayor of Portage, Indiana. In 2013, the city awarded contracts worth $1.1 million to Great Lakes Peterbilt, a local truck company. In 2014, a company executive wrote Snyder a check for $13,000. Federal prosecutors called it corruption. A jury agreed. Snyder went to prison.²

In June 2024, the Supreme Court overturned his conviction. Justice Brett Kavanaugh, writing for six justices, explained that Section 666 of the federal criminal code covers bribes but not gratuities. A bribe is a payment made before an official act to influence it. A gratuity is a payment made after an official act as a token of appreciation. The $13,000 came after. Therefore it was a tip, not a bribe.³

Kavanaugh worried that a broader reading might criminalize innocent conduct. "Is a $100 Dunkin' Donuts gift card for a trash collector wrongful?" he asked. "What about a $200 Nike gift card for a county commissioner who voted to fund new school athletic facilities?"³

Justice Ketanji Brown Jackson, dissenting, had a different view. "Snyder's absurd and atextual reading of the statute is one only today's Court could love," she wrote. The law explicitly targets officials who accept payments "intending to be influenced or rewarded." Everyone knows what a reward is. Congress meant to criminalize it. "Officials who use their public positions for private gain threaten the integrity of our most important institutions," Jackson continued. "Greed makes governments, at every level, less responsive, less efficient, and less trustworthy from the perspective of the communities they serve."⁴

The majority was unmoved. The distinction between bribes and gratuities now governs federal corruption law. Pay before, go to prison. Pay after, go on vacation.

This used to be illegal. For decades, Section 666 was the workhorse federal anti-corruption statute. Courts understood that corruption did not require an explicit exchange. In 2003, the Supreme Court itself said so. In McConnell v. Federal Election Commission, Justices Stevens and O'Connor wrote that Congress's legitimate interest "extends beyond preventing simple cash-for-votes corruption to curbing undue influence on an officeholder's judgment, and the appearance of such influence."⁵ Corruption was not confined to bribery. It included the subtler rot that occurs when money purchases access and access purchases outcomes.

That understanding is now dead and the Roberts Court killed it.

Buckley v. Valeo in 1976 established that spending money on politics is speech protected by the First Amendment. The Court permitted limits on direct contributions to candidates but struck down limits on independent expenditures. It acknowledged that preventing corruption justified some regulation. The framework allowed restrictions on money in politics so long as they targeted corruption or its appearance.⁶

Citizens United v. Federal Election Commission in 2010 changed what corruption meant. Justice Anthony Kennedy, writing for five justices, declared that corporations have First Amendment rights to spend unlimited sums on elections. More significantly, Kennedy redefined the government's anti-corruption interest. "Ingratiation and access are not corruption," he wrote. The concern that donors might gain influence over officials? "The appearance of influence or access will not cause the electorate to lose faith in this democracy."⁷ Only explicit quid pro quo exchanges counted. The broad understanding from McConnell, decided just seven years earlier, was gone.

McCutcheon v. Federal Election Commission in 2014 completed the inversion. Chief Justice John Roberts struck down aggregate limits on how much one person could contribute to all federal candidates combined. He recast what McConnell had called corruption as a democratic virtue. "Ingratiation and access," Roberts wrote, "embody a central feature of democracy, that constituents support candidates who share their beliefs and interests, and candidates who are elected can be expected to be responsive to those concerns." Government "may not target the general gratitude a candidate may feel toward those who support him."⁸ Gratitude was no longer a vector for corruption. It was responsiveness.

McDonnell v. United States in 2016 extended this logic to criminal prosecutions. Bob McDonnell, the former governor of Virginia, had accepted more than $175,000 in gifts, loans, and luxury items from a businessman seeking state help with his dietary supplement company. A Rolex. Use of a Ferrari. Oscar de la Renta gowns for his wife.⁹ McDonnell arranged meetings with state officials, hosted events at the governor's mansion, and made phone calls on the businessman's behalf. A jury convicted him of corruption.

The Supreme Court unanimously reversed that decision. Roberts, writing for all nine justices, held that arranging meetings, making phone calls, and hosting events do not constitute "official acts" under federal bribery law. An official act must involve "a formal exercise of governmental power" on a "specific and focused" matter pending before the government.¹⁰ Using your office to help someone who has showered you with gifts does not qualify unless you take or promise a specific formal action. "There is no doubt that this case is distasteful," Roberts acknowledged. "It may be worse than that. But our concern is not with tawdry tales of Ferraris, Rolexes, and ball gowns."¹⁰

Then came Snyder, and the architecture was complete. Citizens United and McCutcheon narrowed corruption in campaign finance law. McDonnell narrowed official acts in criminal law. Snyder added the timing rule: payments after official acts are gratuities beyond federal prosecution. The exits are now well-marked. Anyone seeking to purchase official action can do so legally. Wait until afterward. Do not say the obvious thing out loud.

The conservatives on this Court have built careers on originalism, the claim that the Constitution must be interpreted according to its original public meaning. On corruption, they have betrayed that project entirely.

The founders were obsessed with corruption. The word appears more than fifty times in the Constitutional Convention debates.¹¹ On June 23, 1787, George Mason told his fellow delegates, "If we do not provide against corruption, our government will soon be at an end."¹ He warned against putting "a man of virtue in the way of temptation."¹ The concern was not merely with venal officials but with creating conditions where even honest ones might be compromised.

Alexander Hamilton devoted Federalist N°68 to the danger. "Nothing was more to be desired than that every practicable obstacle should be opposed to cabal, intrigue, and corruption," he wrote. "These most deadly adversaries of republican government might naturally have been expected to make their approaches from more than one quarter."¹² In Federalist N°22, Hamilton observed that republics "afford too easy an inlet to foreign corruption."¹³

The founders understood corruption broadly. Not as explicit bribery but as dependency, as gratitude that clouds judgment, as the subtle influence that gifts create. The thinkers they read, Montesquieu and Locke and Blackstone, defined it the same way. Blackstone's Commentaries described bribery as occurring when a judge "takes any undue reward to influence his behavior in his office."¹⁴ Undue reward. Influence. Not explicit exchange.

The Constitution reflects this understanding. The Foreign Emoluments Clause prohibits federal officials from accepting "any present, Emolument, Office, or Title, of any kind whatever" from foreign states without congressional consent.¹⁵ Of any kind whatever. The language is not ambiguous.

Apparently, the originalists understand that since Qatari jets and crypto schemes didn't exist 250 years ago, they don't fall under the category "of any kind whatever."

This clause exists because of a snuff box. In 1785, King Louis XVI of France presented Benjamin Franklin, the departing American ambassador, with a small portrait of the king set in a gold case encrusted with 408 diamonds.¹⁶ The gift generated immediate concern. At the Virginia ratifying convention in 1788, Edmund Randolph explained that this incident "operated in producing the restriction" on foreign gifts.¹⁷ The founders wrote it into the Constitution "in order to exclude corruption and foreign influence."¹⁷

The critical point: no one believed Louis XVI was literally bribing Franklin. Franklin had no pending decision to sell. The concern was that he "might be more favorable to French economic interests" because of the gift.¹⁸ Gratitude itself was the problem. A gift creates dependency. Dependency corrupts judgment. The appearance of such influence undermines republican government even when no explicit bargain exists.

The Roberts Court has ruled the opposite. Roberts in McCutcheon: government "may not target the general gratitude a candidate may feel toward those who support him."⁸ Kennedy in Citizens United: "The appearance of influence or access will not cause the electorate to lose faith in this democracy."⁷ The founders wrote a Constitution to prevent gratitude from corrupting officials. The Roberts Court has declared that regulating gratitude is unconstitutional.

While narrowing corruption law, members of this Court have accepted exactly the kind of undisclosed gifts the founders designed the Constitution to prevent.

Justice Clarence Thomas has received luxury travel, goods, and payments from billionaire Harlan Crow since 1996.¹⁹ The documented gifts include a $19,000 Bible that belonged to Frederick Douglass.²⁰ A $15,000 bust of Abraham Lincoln.²⁰ Yacht cruises in New Zealand.¹⁹ In 2009, Crow provided $500,000 to a conservative advocacy group founded by Thomas's wife.²¹ Between 2006 and 2008, Crow paid tuition for Thomas's grandnephew at two private boarding schools, a sum of approximately $100,000.²² In 2014, a Crow company purchased Thomas family properties in Savannah for $133,363, including the house where Thomas's mother lives.²³ She remains there rent-free. Crow spent $36,000 on renovations and pays the property taxes.²³

In 2019, Crow flew Thomas by private jet to Indonesia, where they boarded a 162-foot superyacht for a nine-day cruise through the Lesser Sunda Islands.¹⁹ ProPublica has documented at least 38 destination vacations and 26 private jet flights from Crow to Thomas over two decades.¹⁹ Thomas disclosed almost none of it.

Justice Samuel Alito flew on a private jet belonging to hedge fund billionaire Paul Singer to Alaska in July 2008 for a fishing trip.²⁴ Singer's hedge fund, Elliott Management, subsequently came before the Supreme Court at least ten times. In Republic of Argentina v. NML Capital in 2014, the Court ruled 7-1 in Singer's favor in litigation that ultimately yielded Singer's fund $2.4 billion.²⁵ Alito did not recuse himself. He did not disclose the trip.²⁴

The timeline is what matters. Thomas has received gifts from Crow since 1996. The undisclosed Indonesia trip occurred in 2019. Citizens United was decided in 2010. McDonnell was decided in 2016. Snyder was decided in 2024. Thomas and Alito voted in the majority for all three decisions. They have spent two decades narrowing the legal definition of corruption while receiving exactly the conduct that a broader definition would have covered.

The consequences are measurable. Federal corruption prosecutions peaked at 1,304 defendants charged in 2008. By 2023, that number had fallen to 543, a decline of 58 percent.²⁶ McDonnell has been cited in numerous subsequent cases seeking to overturn convictions.²⁷ The decision led directly to the reversal of convictions for former New York Assembly Speaker Sheldon Silver, former New York Senate Majority Leader Dean Skelos, and former Louisiana Congressman William Jefferson.²⁸ After Snyder, federal prosecutors can no longer charge state and local officials with accepting gratuities under Section 666 at all. They must prove an explicit agreement existed before the official act. The law now requires what sophisticated corruption never provides: a paper trail.

They have simply defined corruption so narrowly that the conduct they engage in falls outside it. Gratitude is not corruption. It is a central feature of democracy. Influence is not corruption. It will not cause the electorate to lose faith. Gifts that create dependency are not corruption. They are personal hospitality between friends.

The founders knew better. They understood that corruption operates through gratitude, through dependency, through the slow accumulation of obligation that bends judgment without any explicit exchange. They worried about putting virtue in the way of temptation. They prohibited gifts of any kind whatever. They did this because they had studied how republics die.

The Roberts Court has overruled the founders. It has constructed a permission structure for the very conduct the Constitution was designed to prevent. The rule is simple enough for anyone to follow. Pay after. Do not say the thing. That is the law now.

What's the solution? Step on jurisdiction. State legislatures pass aggressive legislation criminalizing corruption and making it prosecutable at the state level for any officials conducting those acts. Model it after New York's Martin Act, which gives broad powers to investigate and criminally prosecute financial fraud. Do that for political corruption and we get our country back. Whine about jurisdictions and overreach and we keep losing while the bad guys consolidate. — The Existentialist Republic has activist training materials available to download for free at BuyMeACoffee.com/TheER. We are currently drafting this exact anti-corruption model legislation to get it in the hands of state representatives. If you can contribute, your support will help us direct resources toward that effort and fund our first print run of physical copies for the public, representatives, and activist organizations. —

References

1. Mason, G. (1787, June 23). Statement at the Constitutional Convention. In M. Farrand (Ed.), The records of the Federal Convention of 1787 (Vol. 1, p. 392). Yale University Press.

2. Snyder v. United States, 603 U.S. ___, 144 S. Ct. 1947 (2024).

3. Snyder v. United States, 603 U.S. ___, 144 S. Ct. 1947, 1954-1955 (2024) (majority opinion).

4. Snyder v. United States, 603 U.S. ___, 144 S. Ct. 1947, 1970-1971 (2024) (Jackson, J., dissenting).

5. McConnell v. Federal Election Commission, 540 U.S. 93, 150 (2003)

6. Buckley v. Valeo, 424 U.S. 1 (1976).

7. Citizens United v. Federal Election Commission, 558 U.S. 310, 360 (2010).

8. McCutcheon v. Federal Election Commission, 572 U.S. 185, 192 (2014).

9. McDonnell v. United States, 579 U.S. 550, 556-558 (2016).

10. McDonnell v. United States, 579 U.S. 550, 574-575 (2016).

11. Teachout, Z. (2014). Corruption in America: From Benjamin Franklin's snuff box to Citizens United. Harvard University Press.

12. Hamilton, A. (1788). Federalist N°68. In C. Rossiter (Ed.), The Federalist Papers (pp. 410-414). Signet Classic.

13. Hamilton, A. (1787). Federalist N°22. In C. Rossiter (Ed.), The Federalist Papers (pp. 143-152). Signet Classic.

14. Blackstone, W. (1769). Commentaries on the laws of England (Vol. 4, p. 139). Clarendon Press.

15. U.S. Const. art. I, § 9, cl. 8.

16. Amar, A. R. (2005). America's Constitution: A biography (pp. 182-183). Random House.

17. Elliot, J. (Ed.). (1891). The debates in the several state conventions on the adoption of the federal Constitution (Vol. 3, p. 465). J.B. Lippincott.

18. Teachout, Z. (2009). The anti-corruption principle. Cornell Law Review, 94(2), 341-413.

19. Kaplan, J., Elliott, J., & Mierjeski, A. (2023, April 6). Clarence Thomas and the billionaire. ProPublica. https://www.propublica.org/article/clarence-thomas-scotus-undisclosed-luxury-travel-gifts-crow

20. Elliott, J., Kaplan, J., & Mierjeski, A. (2023, August 10). Clarence Thomas had a child in private school. Harlan Crow paid the tuition. ProPublica. https://www.propublica.org/article/clarence-thomas-harlan-crow-private-school-tuition-hidden-hills

21. Mierjeski, A., Elliott, J., & Kaplan, J. (2023, May 4). Clarence Thomas's benefactor Harlan Crow gave $500,000 to a group that paid Ginni Thomas. ProPublica. https://www.propublica.org/article/harlan-crow-gave-500000-to-group-paid-ginni-thomas

22. Elliott, J., Kaplan, J., & Mierjeski, A. (2023, August 10). Clarence Thomas had a child in private school. Harlan Crow paid the tuition. ProPublica. https://www.propublica.org/article/clarence-thomas-harlan-crow-private-school-tuition-hidden-hills

23. Elliott, J., & Kaplan, J. (2023, April 13). Billionaire Harlan Crow bought property from Clarence Thomas. The justice didn't disclose the deal. ProPublica. https://www.propublica.org/article/clarence-thomas-harlan-crow-real-estate-scotus

24. Kaplan, J., & Elliott, J. (2023, June 20). Justice Samuel Alito took luxury fishing vacation with GOP billionaire who later had cases before the court. ProPublica. https://www.propublica.org/article/samuel-alito-luxury-fishing-trip-paul-singer-scotus

25. Republic of Argentina v. NML Capital, Ltd., 573 U.S. 134 (2014).

26. U.S. Department of Justice, Criminal Division. (2024). Report to Congress on the activities and operations of the Public Integrity Section for 2023 (Table II). https://www.justice.gov/criminal/media/1384436/dl

27. National Association of Attorneys General. (2018, February 1). What McDonnell v. United States means for state corruption prosecutors. NAAG Journal. https://www.naag.org/attorney-general-journal/what-mcdonnell-v-united-states-means-for-state-corruption-prosecutors/

28. United States v. Silver, 864 F.3d 102 (2d Cir. 2017); United States v. Skelos, 707 F. App'x 733 (2d Cir. 2017); United States v. Jefferson, 674 F.3d 332 (4th Cir. 2012).