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Is the Bartering of Official Acts a Criminal Act?

Q: I have a question about the law on bribery. I heard that someone had filed an ethics complaint against Sen. David Vitter (R-La.), claiming he had committed a crime because he threatened to vote against a pay increase for a Cabinet member unless the member took an action Vitter wanted. As a Senate staffer, I need to know: Is this really a crime?

A: Last week, Citizens for Responsibility and Ethics in Washington filed an ethics complaint against Vitter with the Senate Ethics Committee. The complaint alleges Vitter committed bribery by threatening to block a proposed pay raise for Interior Secretary Ken Salazar unless Salazar’s department issued a minimum number of deep-water exploratory permits in the Gulf, an action strongly advocated by Vitter.

The key facts of this case are not in dispute, as they played out in public. In late May, Vitter’s website posted a letter the Senator had sent to Salazar. The letter said Vitter had been asked to support legislation granting Salazar a $20,000 salary increase. Vitter wrote: “Given the complete unsatisfactory pace of your department’s issuance of new deepwater exploratory permits in the Gulf, I cannot possibly give my assent.” Later in the letter, Vitter said that when the rate of new deepwater permits increases to six per month, “I will end my efforts to block your salary increase.”

As an aside, Salazar’s pay raise was proposed to make his salary equal to that of other Cabinet members. When a Senator leaves the Senate for a Cabinet post, the Senator is typically paid at his lower Senate salary level until his Senate term would have expired. This is in part to prevent Senators from voting to increase the salary for a Cabinet position and then moving into that same position. In Salazar’s case, he was elected to the Senate in 2004, and his term would have ended last year had he not left the Senate to join President Barack Obama’s Cabinet. The bill to increase Salazar’s pay would have raised his salary from about $180,000 to about $200,000, to square it with the salaries of others in the Cabinet.

CREW’s letter states that Vitter’s conduct is “exactly the type of quid pro quo the bribery statute was intended to prevent.” But is it?

The federal bribery statute makes it a crime for someone to corruptly give, offer or promise “anything of value” to a public official with intent to influence an official act.

In the classic case of bribery, someone provides money to a government official in exchange for an official act. Suppose, for example, someone had offered Salazar $20,000 in cash in exchange for a deepwater exploratory permit.

But is this the same thing? To answer that question, there are at least two other questions to ask. First, did Vitter offer Salazar “anything of value”? CREW’s complaint says he did. Specifically, the complaint states Vitter attempted “to induce official action by the Secretary by offering to support legislation granting his $19,600 pay raise.”

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