Federal Tool Against Local Corruption Faces Supreme Court Test

The Supreme Court is hearing an appeal on Monday that could substantially limit the federal programs bribery statute—long a go-to tool for US prosecutors targeting corruption by state and local public officials.

The statute, 18 U.S.C. § 666, is unquestionably broad in terms of who it covers, but it’s less clear what it covers. Monday’s case, Snyder v. United States, seeks to limit the statute to quid pro quo bribery—that is, a bribe paid pursuant to a tit-for-tat agreement.

That could have major implications for public corruption enforcement, Elisha Kobre, a former Southern District of New York prosecutor now with Bradley Arant Boult Cummings LLP, said.

“As a prosecutor, it was one of the first statutes we would look to because of its breadth,” Kobre said.

It has been particularly useful for prosecutors as the Supreme Court has repeatedly narrowed other anti-corruption statutes.

Section 666 applies to any agent of any private, state, or local entities that receive federal benefits in excess of $10,000 in a single year. It penalizes anyone who “corruptly” pays, solicits, demands, accepts, or agrees to accept anything of value from any person, with the intent “to be influenced or rewarded” in any matter involving $5,000 or more of the agency’s business, with up to 10 years’ imprisonment.

Two circuits have held the statute covers only quid pro quo bribery. Five circuits have held that it also reaches “gratuities” paid after a local agent has taken the desired action, even without any advance agreement.

Section 666 has been a particularly important anti-corruption statute in jurisdictions like the Northern District of Illinois, where federal prosecutors tend to focus on local corruption, according to Nixon Peabody LLP partner Chris Hotaling. Before joining the firm, Hotaling spent 16 years at the US Attorney’s Office in Chicago.

Everyone isn’t so convinced it will be a sea change. Philadelphia-based criminal defense attorney Lisa Mathewson said she wasn’t optimistic that a ruling in favor of Snyder would have a lasting effect.

“I have a sad confidence in the government’s ability to come up with another novel theory to fill the gaps between the cases,” Mathewson said.

It like “a game of whack-a-mole,” she said.

A Matter of Proof

The government has said it’s unclear whether the scope of Section 666 “is outcome-determinative in a significant number of cases,” but it’s a lot harder to prove a quid pro quo than a gratuity.

“At least under the federal officials bribery statute, proving a gratuity doesn’t require proving as much about the defendant’s timing and intent as bribery does,” Murad Hussain, a white-collar lawyer at Arnold & Porter LLP, said.

Looking at the Commonwealth Edison prosecutions in Chicago—involving bribes allegedly paid to former state House Speaker Michael Madigan for his assistance in advancing legislation favorable to the company—a lot of the official acts came before he received anything of value, Hotaling said. They just look a lot more like gratuities than bribes, he said.

And even if many gratuity cases could be recast as bribery cases, some will be off the Section 666 table, Kobre said.

But that doesn’t mean, as Mathewson said, that federal prosecutors won’t try to find a way to criminalize even pure gratuities.

Whack-a-Mole

Twenty years ago, the Hobbs Act was the most frequently used lead charge in official corruption cases. But for the last two decades, Section 666 has “consistently been the most frequently recorded lead charge,” according to the Transactional Records Access Clearinghouse, a data research organization at Syracuse University.

Though Section 666 has been a critical tool for bribery prosecutions since its inception more than four decades ago, it has become even more important as the Supreme Court has limited other theories—like Hobbs Act extortion and honest services fraud—that could have otherwise reached the same conduct, Columbia Law professor and former prosecutor Daniel Richman said.

Because Section 666 is broader than either, it has provided a backstop of sorts, he said.

If the high court rules gratuities out of Section 666’s scope, prosecutors could pivot to the Travel Act, just like they pivoted to Section 666 to fill gaps left by the Supreme Court’s interpretation of other corruption statues, Richman said.

The Travel Act basically prohibits anyone from using the instrumentalities of interstate commerce to commit unlawful acts. Such acts could be predicated on state laws, and some states do explicitly prohibit gratuities and other potential conflicts of interest, Richman said.

Mathewson also sees the Travel Act as an alternative prosecutors may seek to use, at least where state-law predicates have broader definitions of bribery.

And regardless what happens in Snyder’s case, there’s still plenty of ambiguity remaining for the government to exploit, because what constitutes a quid pro quo isn’t even settled, she said.

Checking Prosecutorial Overreach

It’s impossible to say with certainty if Section 666 will get winnowed, but the Supreme Court “really sees itself as a check on the government’s use of these bribery statutes, particularly as they relate to public corruption,” University of Chicago law professor Sharon Fairley said.

The court has, in a lot of contexts, taken the view that “one man’s public corruption is another man’s politics,” she said.

If Congress intends for the federal government to meddle in local politics, the court has required it to speak clearly.

Fairley said she found the government’s textual arguments in Snyder compelling. The statute’s use of the word “reward” alone suggests that it reaches gratuities, she said. But pointing that out might not be enough for the government.

Even if it has a stronger text-based argument, and even if Section 666 does have a spending clause hook—reducing federalism concerns—the Supreme Court might still find a way to reach its desired policy outcome, Richman said.

“Nothing will short-circuit their efforts if they really want to get somewhere,” he said.

The case is Snyder v. United States, U.S., No. 23-108, oral argument 4/15/24.