Consider the following: 

A wealthy businessman looking to develop an experimental health product pays over $175,000 in gifts to his state’s highest-ranking official in exchange for meetings and social gatherings with other high-ranking officials about acquiring coveted research studies for his product. 

High-ranking officials of a state probation agency conspire to cater to hiring requests from members of the state legislature with the hope of obtaining favorable legislation for their agency. They do so by circumventing state hir-ing protocols and using an elaborate scheme to inflate candidate ranking scores to secure positions in the agency for preselected candidates. 

A senior state official’s right-hand aid coordinates with the local transporta-tion agency to inflict retribution on a political foe by denying the foe’s constituents access to a key bridge for several days under the guise of a government program. It causes complete chaos, as people get stuck in traffic gridlock for hours on their way to work and school. 

What do these public scandals have in common? They all occurred in the United States, and none of them resulted in criminal convictions for corruption. 

Over the past forty years, the Supreme Court has consistently narrowed the federal judicial interpretation of criminal corruption, in direct conflict with the broadened understanding of the term in the international legal community, the U.S. Congress, and the general public. The Court’s latest decision in this area, Kelly v. United States, which involves an event commonly known as “Bridgegate,” reaffirms its narrow view of what constitutes public corruption and lets evidently cor-rupt public officials off the hook for abuses of their power and official functions. 

Public corruption is traditionally defined as “the abuse of an entrusted power for private gain.” Over the past several years, anti-corruption scholars have debated whether recent federal court decisions, as well as current U.S. federal laws in combination with state laws, provide effective legal tools to combat public corruption at federal, state, and local levels. This Note contributes to this debate by arguing that—because of the Court’s narrow interpretation of criminal corruption offenses—current U.S. laws, when benchmarked against international standards, do not sufficiently guard against certain internationally recognized forms of public corruption that Congress has intended to criminalize. Specifically, this Note contends that the Court has made it nearly impossible to prosecute officials who abuse their power without quid pro quo bribery, theft, or a fraudulent scheme to obtain money or property for personal advantage. It further argues that a new abuse of functions federal criminal offense is required to address the gap in U.S. anti-corruption laws created by the Court’s jurisprudence, which currently fails to punish many of the more sophisticated forms of political corruption witnessed today.

Part I of this Note defines public corruption and identifies internationally recognized public criminal offenses under the United Nations Convention Against Corruption (“UNCAC”). The Note then benchmarks the several U.S. criminal offenses against the UNCAC criminal offenses, revealing that because Congress has not recognized an “abuse of functions” offense, a legal gap could emerge, allowing conduct the UNCAC seeks to criminalize to go unpunished in the United States. Part II argues that in narrowly construing these federal corruption statutes, the Court turned the risk of a legal gap into reality, hindering U.S. efforts to criminalize public corruption, particularly political corruption, at the state and local levels. It then details this gap’s problematic impact on the broader political process. Part III proposes that the United States remedy this gap in the form of an abuse of functions federal criminal offense. It does so by considering the emerging standard reflected in the principles of UNCAC Article 19, the United Kingdom’s recent Law Commission (“Law Commission”) proposal to establish a new statutory offense of corruption in public office, and certain U.S. state laws. Part IV concludes. 

Read More