Christopher Robertson - Remedies for Institutional Corruption: Disclosures, Blinding, and Criminal Prosecution

The first Lab seminar of the 2015 spring semester was presented by Edmond J. Safra Lab Fellow, Christopher Robertson. Christopher Robertson is an Associate Professor at the James E. Rogers College of Law at the University of Arizona and an affiliated faculty member at the Petrie Flom Center at Harvard Law School. Robertson’s research focuses on how the law can improve decisions by individuals and institutions attending to informational limits, conflicting interests, and cognitive biases. For his Lab presentation, Robertson discussed his project titled, “535 Felons: An Empirical Investigation into the Law of Political Corruption,” which explores the brightness of the legal line between legal campaign contributions and bribery using mock jury research, which he hopes will shed light on public perceptions of corruption.

Robertson began the seminar by first explaining that the project is still very much a work in progress given that the data was collected only 45 days prior to the Lab presentation, and in light of this, he welcomed feedback. The larger context of the project is the problem of money in politics. Specifically, more and more money is flooding into politics, while at same time trust in the government is also faltering. In fact, Robertson explained that we’re actually reaching all time lows for people thinking the United States government is doing the right thing for them. Despite this, the Supreme Court since 2007 has been dismantling prophylactic campaign finance limits. By prophylactic Robertson means limits you can draw, bright line rules, on who can spend what and when they can spend it. In recent years, we’ve seen limits on how much we can spend on an election, or how many days prior to an election issue advertising can be spent, all designed to reduce money’s influence on politics, and the Supreme Court in a series of cases has struck down such limits:

  • Buckley 1976 (upholding contribution limits)
  • McConnell 2003 (upholding soft money limits)
  • Wisconsin Right to Life (2007) (striking down limits on “issue ads”)
  • Citizens United (2010) (striking down limits on corporate spending)
  • McCutcheon (2014) (striking down overall limits on contributions) 

At the same time, scholars like Dennis Thompson, Lawrence Lessig, and Zephyr Teachout, have spoken in very clear and passionate terms about corruption in this broader sense in which money is distorting political outcomes, bending the curve toward private interest rather than public interest. And so this broader conception of corruption provides a critical perspective on what’s happening. At the same time, the Supreme Court has been insisting on a much narrower conception of corruption. Recently, in McCutcheon, the Court has insisted that corruption must be narrowly defined as “Quid Pro Quo” corruption: “Any regulation [of political speech] must instead target what we have called quid pro quo corruption or its appearance” (McCutcheon). And the Supreme Court has been very clear to say that merely having influence or good will or preferred access does not constitute that type of corruption, so quid pro quo corruption is essential to any future regulation of politics, at least short of a constitutional amendment. But in Robertson’s view, this really begs the question what “quid pro quo” corruption actually is. When does it appear? In Latin, quid pro quo means “this for that” in exchange for one thing or the other. This is the core, the paradigm, in cases of bribery or extortion. Robertson argues in his paper that when it comes to quid pro quo corruption we have to ask if there are actually pros that link between the quids and the quos. So are there, the law asks, agreements to make these exchanges, whether implicit or explicit is the question. And is there a corrupt intent of one to influence the other.

Moving on, Robertson explained that bribery and extortion statutes require a corrupt intent to either influence through the exchange of things of value, and in recent terms these things have been defined very broadly. They’ve all been defined in a way that recur on the fact finder, the jury, to determine if something is a thing of value, or if the intent was corrupt, or what was the state of mind. The Supreme Court, at times, has tried to figure out, to cabin this conception of bribery, to make it have a bright line character, but nonetheless recognize that bribery can happen through winks and nods, through exchanges that are just short of an explicit agreement. So far the Supreme Court has allowed that something short of an explicit agreement could nonetheless constitute bribery if a jury finds that corrupt intent in the exchange. Indeed, in recent years the Supreme Court has declined certiorari on key cases where they could have clarified this. They’ve repeatedly declined to go further to clarify the law. It strikes Robertson that they are relying on the lower courts to put meaning into an important concept that’s really hard to define. This drives us to ask: when does modern politics create the appearance of quid pro quo corruption? And Robertson suggests that appearance means that this should be an empirical question. Note that the doctrine Robertson quoted earlier allows regulation of both corruption and the appearance of corruption, as long as they are both quid pro quo corruption. Robertson suggested in his paper that one way, maybe the only way to get at this concept is to use the laws that we have on the books and the Supreme Court’s doctrine of interpreting the laws that actually define bribery. Robertson doesn’t know what else could be quid pro quo corruption, if not bribery. Maybe it’s a slightly broader concept. But bribery is definitely at the core; it would be a paradigm case of quid pro quo corruption.

Next Robertson discussed the method of his study. He explained that grand juries and petit juries make these types of factual determinations in our legal system and political systems, so therefore he conducted two experiments: a Grand Jury experiment, and a guilt phase experiment. The Grand Jury experiment was one whether they should issue an indictment. The method was to recruit 45 participants from Tuscon, Arizona, where Robertson lives and works, by approaching people at the polls after voting, by sending cards to local courthouses to give to jurors as they were dismissed, by posting the opportunity on social media, and by offering the opportunity to employees of the university. Participants were then offered $20 for three hours of their time. Robertson explained that the group they recruited was quite diverse. The research team then obtained the official Grand Jury orientation video produced by the federal courts and jury handbook experiments, drafted a realistic seven-page indictment quoting the statutory crimes, and used the real forms that grand juries use to decide whether the issue is called a “true bill.” Robertson also recruited an experienced prosecutor who tried many cases to be the attorney. Robertson recruited two live witnesses who served as the assistants for each of the primary defendants who testified on the core factors of the case. And then juries actually deliberated in three groups of each (these were videotaped for further analysis). Interestingly, this experiment was done just shortly after the Ferguson and New York race cases, and for Robertson it was insightful to see the juries deliberating in earnest, over a three hour period, as they were grappled by the big questions of money in politics. Significantly, so far, this is the only large scale grand jury experiment that has been performed. The grand jury is so far been largely shrouded in secrecy, their deliberations are supposed to be secret, their identities are largely secret; and so this is one institutional in the federal system that we know virtually nothing about how it works, so we’re hoping as a secondary benefit it will shed some light on the grand jury itself, despite the peculiar topic.

Continuing with the presentation, Robertson briefly sketched the grand jury core case facts, which involved a routine case of money in politics in the U.S. It involved a company called Health Industries, Inc. and a United States Congressman. The two defendants in the case were the CEO of Health Industries, Richard Anderson, and United States Congressman, Ron Davis. These two parties, Davis (public) and Anderson (private), were connected by a middle person, a lobbyist, named Eric Hansen, who was hired by Health Industries to push a particular rider that would deregulate a product that Health Industries sold. In separate conversations, Hansen told Anderson that he would need to help out Davis in his reelection efforts, and once this had happened, Hansen told Davis that Anderson had contributed $50,000 to a dark money organization, and upon hearing this Davis became willing to promote the interests of the company through a rider. Some other important facts: no money went directly to Davis’s campaign account, Anderson and Davis never spoke directly to each other, the lobbyist never expressed an exchange agreement, he merely said “you might get better results, it might help.” This was a classic case where the jury was invited to infer that the money caused, and was intended to cause, the congressman to change his position and that the congressman’s vote was given exchange for that campaign financing.

At this point in the presentation, Robertson went on to share the results from the Grand Jury experiments. In the three Grand Juries, two voted for indictment, and one was hung and unable to issue an indictment. Overall, that gave Robertson 72% of jurors voting to indict giving them a confidence interval that allows them to reject the hypothesis that most jurors would decline indictment. Further, in practical terms, the decision rule in grand juries allows us to conclude that quite often prosecutors will be able to get indictments on these sorts of every day behaviors where there’s no explicit quid pro quo, applying (with emphasis), the federal statutes on bribery. In terms of mock jury experiments, Robertson explained that this is one of the richest that has been done, and the only one in the Grand Jury context, in particular. Robertson’s vignette, the stimulus that the jurors saw allowed them to sharpen down the focus on the question of interest. Of course, one could alternatively look to real trials that have happened, but these are often confounded with other factors, not just one campaign expenditure, or quid, or campaign expenditure. Instead a governor has months and months of various interactions, travel expenses, etc., making it difficult for us to assess whether the political speech alone could be prosecuted as a quid. By allowing us to write the script in this way Robertson was able to sharpen on the political speech alone on the alleged quid. This is best understood as a proof of concept, a showing of what seems to be a real possibility of criminal jeopardy, but it leaves open as many questions as it answers. For future research, the team still has a large amount of qualitative data that hasn’t yet been analyzed from the jury deliberations that have yet to be transcribed.

-Summary composed by Joseph Hollow