Q: I have a question about job offers to induce candidates to exit a political race. Stories about these offers seem to have been in the news a lot lately, but I have seen no clear answer as to whether they are permissible. Some have suggested that it violates the law to offer someone a federal job in exchange for his or her withdrawing from a political race. Others have disagreed. Are these kinds of deals illegal?

[IMGCAP(1)]A: The last few months have seen several stories of jobs being offered to political candidates to entice them to drop out of races.

First there was Rep. Joe Sestak, who was allegedly offered a job by the White House in exchange for dropping his challenge to Sen. Arlen Specter in the Pennsylvania Democratic Senate primary, which Sestak ultimately won. In a February interview with Philadelphia television news anchor Larry Kane, Sestak answered yes when asked whether he was “offered a political job to get out of this race.” He also replied yes when asked whether the offer was “by the White House.”

In late May, White House Counsel Bob Bauer released a memorandum responding to the allegations. The memorandum acknowledged that there had been discussions with Sestak regarding unpaid positions on certain White House advisory boards.

White House Chief of Staff Rahm Emanuel, it said, had enlisted former President Bill Clinton to discuss the positions with Sestak. The memorandum explained that there was no impropriety, however, because Democratic leadership had a “legitimate interest in averting a divisive primary fight and a similarly legitimate concern about the Congressman vacating his seat in the House.” According to the memorandum, the positions discussed with Sestak would not have required him to leave the House.

Next there was Colorado state Speaker Andrew Romanoff. Last year the White House allegedly dangled several federal jobs in front of Romanoff to persuade him to drop out of his Democratic primary race against Sen. Michael Bennet. According to Romanoff, in September 2009 White House Deputy Chief of Staff Jim Messina called Romanoff and told him that the White House would support Bennet and mentioned three positions that “might be available” to Romanoff if he were to drop out of the primary. Romanoff later told Messina that he intended to remain in the race.

The White House released a slightly different account of events, but the accounts are consistent in that they both say the White House never promised Romanoff a job.

So, are these types of deals illegal? The most discussed charge has been bribery, which federal law defines, roughly, as providing something of value to a federal official with the intent to influence an official act. For a bribery charge, there must be a quid, a thing of “value,” and a quo, an “official act.” The act of dropping out of a primary, however, does not appear to qualify as either. Indeed, no federal court has ever held that it does. Moreover, bribery charges are notoriously difficult to prove — so difficult, in fact, that federal prosecutors rarely try.

Several other statutes in the U.S. Code have also received attention. For example, 18 U.S.C. 600 prohibits the promise of employment as a reward for any “political activity … in connection with any primary election.” 18 U.S.C. 211 prohibits soliciting a thing “of value” in exchange for the “use of influence in obtaining for any person any appointive office.” And, 18 U.S.C. 595 prohibits administration employees from using their authority for the purpose of “interfering with, or affecting, the nomination or the election of any candidate.”

Again, however, no court has ever applied any of these statutes to circumstances remotely like Sestak’s or Romanoff’s. Moreover, many pundits have observed that this type of political horse-trading is routine.

Yet, there is one more issue to consider: state laws. While there is no federal precedent for criminalizing inducements to stay out of a primary election, there is some precedent at the state level. In 1978, New York state legislator Alan Hochberg was convicted of several state crimes after he promised Charles Rosen a job in the legislature if Rosen agreed not to run against Hochberg in the primary. A New York state appeals court upheld the convictions, holding that Rosen’s agreement not to run in the primary was a sufficiently direct benefit to Hochberg to qualify as a “thing of personal advantage” under New York law.

But, even there, what was critical to Hochberg’s conviction was the fact that Hochberg himself was in the primary, so he stood to benefit directly from Rosen’s agreement not to run. By contrast, in the stories regarding Sestak and Romanoff, there has been no suggestion that their primary opponents were involved in any way.

To return to your question, then, is it legal to use a job offer to entice a candidate to exit a political race? Hochberg’s conviction proves that the answer is not always yes. But, Hochberg’s was an egregious case. In the more run-of-the-mill cases of political horse-trading, I would not bet on anyone going to jail.

C. Simon Davidson is a partner with the law firm McGuireWoods LLP.
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