08/06/2007 05:49 pm ET Updated May 25, 2011

Bribe or Permissible Political Deal?

A commenter discussing the Ninth Circuit's decision that vote-swap site are protected by the First Amendment writes:

I think the court has confused what is going on (vote buying) with the purpose of what is going on (doing interesting political stuff).

Plainly, something of value is being given in exchange for a vote. That's vote buying. Would it have mattered if the safe-state guy was given money to vote for Nader? How is that different? The court talks about an "illegal" exchange "for private profit," suggesting that motivation is the key, not the purchase of the vote itself. But I think the purchase is the evil, since motives are notoriously hard to show.

If you want Nader to get a lot of votes in "safe" states, you should urge people in those states to vote that way; you shouldn't pay them to do so, whether with money or your own vote somewhere else.

An interesting analysis, which sounds appealing -- and yet this isn't the way we reason as to political decisions, is it? Senator Smith to Senator Jones: "I'll pay you $10,000 if you vote my way." Criminal bribe. Senator Smith to Senator Jones: "I'll vote your way on the bill you like if you vote my way on the bill I like." Legislative business as usual, sometimes slimy but sometimes necessary for politics to function; clearly not illegal, and perhaps constitutionally protected (not that anyone has tested this). Yet "something of value is being given in exchange for a vote," no? (In fact, if the Senators fear losing reelection if they don't make deals like this, then the something of value translates into something of financial value for them -- their salaries.)

OK, you say, legislative deals are special. But why should the sovereign voters have fewer rights to make deals than their servants in Congress? And in any event, let's set aside the legislator-legislator deal. Millionaire Smith to Senator Jones: "I'll pay you $10,000 if you vote my way." Criminal bribe. Millionaire Newspaper Publisher Smith to Senator Jones -- or for that matter Middle-Class Advocacy Group Director Smith to Senator Jones -- "I'll endorse you for reelection if you vote my [or my organization's] way," or, if you prefer "if you vote the wrong way, we'll editorialize strongly against you." Political business as usual, I take it, legal, not even slimy if publicly disclosed, and likely constitutionally protected (though that again hasn't, to my knowledge, been tested).

Yet "something of value is being given in exchange for a vote," no? And of course an endorsement by a leading newspaper or advocacy group is worth much more than a single vote by a voter.

My colleague Dan Lowenstein has written in detail about how many unclear boundary cases there are in this area (see Daniel H. Lowenstein, Political Bribery and the Intermediate Theory of Politics, 32 UCLA L.Rev. 784 (1985)), and how many cases there are -- such as the ones I mention above -- in which the clear bribe and the clear permissible deal are separated by only one factor that might at first not seem dispositive (here, whether the deal is vote-for-vote or endorsement-for-vote on one hand, or money-for-vote on the other). But in any case, I hope these examples illustrate that one can't simply equate trading votes for money with trading votes for other votes.