Crimes and Campaign Contributions

By Joel M. Androphy and Lawrence D. Finder

Assume that as a judge, commissioner, legislator, or other elected official, you solicit and receive a $1,000 check payable to your campaign for elective office. The check is from a local attorney. The objective of the contribution is simply for an advantage or assistance in a particular endeavor and not for benevolent purposes. Although there is an “understanding” that some benefit will result from this largesse, there is no coercion or inducement on your part; hence, you assume if you report the funds, there is no impropriety. Acceptable political activity? You think so. But others may call it extortion under the Hobbs Act. Recent cases from the United States Supreme Court discuss this issue.

The Hobbs Act 1 prohibits the obstruction of commerce2 by extortion, which defines as “the obtaining of property from another, with his consent, induced by wrongful use or actual or threatened force, violence, or fear, or under color of official right.” Hobbs Act violations based on extortion by a public official need not include proof of threat, fear, duress, or coercion.3 It is now established that the “under color of official right” portion of the Act is not unconstitutionally vague.4 What is less clear is the type of conduct which transforms a public official’s quest for campaign contributions to extortion under the Hobbs Act.

The Fifth Circuit has had several significant occasions to examine the extortion aspect of the Hobbs Act. An early case concerning the sometimes difficult distinction between legitimate campaign contributions and those induced under color of official right was United States v. Dozier5 where the court was called upon to decide the limits of lawful solicitation of funds by elected officials. Gilbert Dozier was the elected Commissioner of Agriculture for the State of Louisiana. While holding office, Dozier was charged with extorting approximately $300,000 from separate individuals for official acts including assistance in dealing with a state agency, appointment to a state board, a state contract or loan guarantee, etc. Dozier unsuccessfully maintained that the monetary solicitations were nothing more than legitimate campaign fund-raising activities. The government argued that Dozier committed extortion, i.e., obtained property from others, without their consent, under color of official right.

The court of appeals acknowledged the legitimate and “important function of financial contributions in expressing support for candidates and fueling political debate.”6 However, the court distinguished between a lawful campaign contribution and an extortionate shakedown as “[w]hether described familiarly as a payoff or with the Latinate precision of quid pro quo, the prohibited exchange is the same: a public official may not demand payment as inducement for the promise to perform (or not to perform) an official act.”7

The Court also distinguished between demands for money by nonelected and elected public officials. The nonelected official – who does not have to concern himself with financing an election – who demands money to do or refrain from doing an official act likely commits extortion per se, because the inherent power of public office makes any such demand coercive. The elected official, who is allowed to solicit campaign donations, – wades in murkier waters. He may request financial support from individuals or entities. He may not sell favors. The court in Dozier had no problem upholding the jury’s verdict of extortion under the Hobbs Act, because under the facts of the case the defendant clearly conditioned his official acts on the payment of fees.

Meanwhile, other courts were struggling with the quid pro quo aspect of Hobbs Act cases, i.e., a promise of official action or inaction in exchange for any payment or property received in the context of legitimate campaign contributions versus the sale of official services. Quid pro quo is defined as “something for something,” “mutual consideration which passes between the parties to a contract.”8 The quid pro quo inquiry is whether the link between extorted property and official power is sufficiently specific. This issue was not lost upon the Justice Department either. In 1984, the Justice Department issued a monograph to federal prosecutors on the Hobbs Act. In announced a criminal division policy “that a campaign contribution will only be considered induced under color of official right where it corresponds to a specific, identifiable quid pro quo.”9 Even with this policy, the issue was far from settled.

In McCormick v. United States,10 the Supreme Court was called upon to decide if the quid pro quo was a requirement for a conviction under the Hobbs Act. McCormick was a state representative in West Virginia – a state which suffered from a shortage of medical doctors. The shortage of doctors was so bad that the state allowed foreign medical school graduates to practice medicine under temporary permits while studying for the state licensing exams. Some of these “temporarily licensed” doctors formed an organization and hired a lobbyist to extend the expiration of the temporary permit program. McCormick was a leading advocate of this program and helped obtain legislation to extend the licenses for a year. Buoyed by their success, the organization sent the lobbyist back to McCormick with the request to introduce legislation which would grant the “temporary licensed” doctors permanent medical licenses. McCormick agreed to sponsor the legislation, but told the lobbyist that his campaign for reelection was costly, “that he had paid considerable sums out of his own pocket and that he had not heard anything from the foreign doctors.”11 The lobbyist said he would convey the message. Within days, brought McCormick envelopes of cash from some individual foreign doctors. McCormick neither reported the cash as campaign contributions nor as income on his tax returns. Following the receipt of the cash, McCormick sponsored the requested legislation and a law favorable to the organization of foreign doctors was enacted. Within days, McCormick received another cash payment from the doctors.

McCormick was indicted for extortion under the Hobbs Act as well as filing a false income tax return. He was convicted for one of the extortion counts as well as the tax fraud count. On appeal, McCormick argued that the trial court did not instruct the jury that in the case of an elected official, it had to find proof of a quid pro quo before it could convict. The Fourth Circuit disagreed, finding that there was no quid pro quo requirement in the statute where the parties never intended the payments to be voluntary campaign contributions: the circuits were split as to whether the government had to prove a quid pro quo in such cases. The Supreme Court reversed the court of appeals for two reasons. First, the Supreme Court held that the court of appeals, not the jury, found that the doctors never intended the payments to be campaign contributions. Second, the court held that the receipt of political contributions is illegal under the Hobbs Act as having been taken under color of official right “only if the payments are made in return for an explicit promise or undertaking by the official to perform or not to perform an official act.”12 In its sharply worded opinion, the Court said that it was unrealistic to hold that legislators commit the crime of extortion whenever they act for the benefit of constituents and solicit or accept money from those constituents. The Court wrote:

Serving constituents and supporting legislation that will benefit the district and individuals and groups therein is the everyday business of a legislator. It is also true that campaigns must be run and financed. Money is constantly being solicited on behalf of candidates, who run on platforms and who claim support on the basis of their views and what they intend to do or have done. Whatever ethical considerations and appearances may indicate, to hold that legislators commit the federal crime of extortion when they act for the benefit of constituents or support legislation furthering the interests of some of their constituents. an unrealistic assessment of what Congress could have meant by making it a crime to obtain property from another, with his consent, “under color of official right.” To hold otherwise would open to prosecution not only conduct that has long been thought to be well within the law but also conduct that in a very real sense is unavoidable so long as election campaigns are financed by private contributions or expenditures, as they have been from the beginning of the Nation. It would require statutory language more explicit than the Hobbs Act contains to justify a contrary conclusion.13

A general expectation of the benefit by the party being solicited is not enough to qualify as a quid pro quo; it must be clear, unambiguous, and leave no uncertainty about the terms of the agreement. Therefore, the Hobbs Act prohibits campaign contributions made in exchange for a explicit promise or favorable action. It does not prohibit campaign contributions made with the anticipation of favorable action.

Left unresolved by McCormick, which clarified the law on quid pro quo, was whether the public official had to engage in an affirmative act of inducement, such as a demand to fall within the “under color official right” language of the Hobbs Act. In Evans v. United States,14 the Supreme Court answered that question in negative.

Evans was an elected country commissioner in Georgia. As such he was involved in zoning decisions affecting his county. An undercover FBI agent, posing as a land developer, initiated numerous conversations with Evans over 15 month period concerning rezoning a particular tract of land. Early in their dialogue, the FBI agent told Evans that he needed to tell his investors that due to his contacts on the county board of commissioners, he had a “leg up” on other developers. The FBI agent also asked Evans how much a meaningful election contribution might be, and Evans replied that contributors were encouraged to give $1,000 each. Over the ensuing months, the FBI agent and Evans would meet to discuss rezoning the tract as well as the expenses of the reelection bid. Finally, Evans told the agent that he had a $7,895 campaign “shortfall,” and if the agent gave $1,000 or $6,000 that Evans would help in the rezoning. Evans subsequently received from the agent $7,000 in cash and a check for $1,000 made payable to the campaign. Within two weeks, the County Commissioners voted to rezone the property. When interviewed by the FBI, Evans reported the $1,000 contribution, but did not disclose the $7,000 to the agents or to the Internal Revenue Service.15 Evans was indicted for extortion and tax fraud.

At trial, Evans claimed that the entire $8,000 was a legitimate campaign contribution. He was convicted on both counts. On appeal to the Eleventh Circuit, it was Evans’ position that “the crime of extortion under color of official right requires that a public official initiate some action which induces the victim to part with money or property.”16 In other words, Evans argued that the Hobbs Act requires an affirmative act of inducement by the public official to sustain a conviction under “color of official right” provision. The court of appeals disagreed, stating, that “passive acceptance of a benefit by a public official is sufficient to form the basis of a Hobbs Act violation if the official knows that he is being offered the payment in exchange for a specific requested exercise of his official power. The official need not take any specific action to induce the offering of the benefit.”17

The Supreme Court adopted the position of the Eleventh and eight other circuits as in accord with the common law definition of extortion, where “[e]xtortion by the public official was the rough equivalent of what we would know now describe as taking a bribe.”18 The Court also noted that the Hobbs Act addresses two types of extortion: 1) the offense by the private individual; and 2) the offense by the public official. As regards the public official, the Court’s interpretation of extortion now reads: “The term ‘extortion’ means the obtaining of property from another, with his consent, under color of law.”

Indeed, the Supreme Court held “that the Government need only show that a public official has obtained a payment to which he was not entitled, knowing that the payment was made in return for official acts.”19 The corrupt public official does not have to take an affirmative step to induce the offering of the benefit, because passive acceptance of a benefit is sufficient to form the basis of the extortion if the official knows that he is being offered the payment in exchange for a specific requested exercise of his official power. As for the quid pro quo requirement of McCormick, “the offense is completed at the time when the public official receives a payment in return for his agreement to perform specific official acts; fulfillment of the quid pro quo is not an element of the offense.”20

The state of mind of the public official on trial for a Hobbs Act violation is, of course, germane to the ultimate issue. Invariably, the public official will testify that he neither induced anybody to part with property nor intended to corruptly sell his office. However, the state of mind of the victim is also relevant and admissible. In United States v. Williams,21 a victim testified that he was aware of the defendant’s public office and if the defendant had not been a school board member, he would not have given the defendant money. In United States v, Dozier,22 the trial judge allowed victims to testify to their respective reasons for paying Dozier the solicited funds. The court of appeals held, “[t]he victim’s fearful state of mind is a crucial element in proving extortion … State-of-mind evidence is admissible in a trail for extortion under color of official right even though proof of direct coercion is not required (citations omitted).”23 More recently, in United States v. Stephens,24 the defendant, who was a town alderman as well as a bail bondman, was convicted of the Hobbs Act in a conspiracy to fix traffic tickets. The trial judge allowed a victim to testify that he paid the defendant $1,040 because he “believed that Stephens had the power to fix [the victim’s] ticket.”25

In conclusion, the elected official must act prudently when soliciting contributions. The official would be wise to avoid tying any official action or inaction to the receipt of the contribution. For example, assume that attorney D.P. Pockets has a contested hearing before Judge I.B. Taken. The Judge is in the midst of a close reelection campaign and can no longer, in good conscience, host weekly golf tournaments to raise campaign funds. The sensitive man that he is, Pockets offers the Judge a check moments before the judge takes the bench at the hearing while whispering, “This is for your campaign, Your Honor, and there will be plenty more if I win this hearing.” The Judge responded, “Don’t worry.” Crime completed.

NOTE: The opinions and advice contained herein are those of the authors and do not necessarily reflect the policies of the U.S. Department of Justice or any of its components. The article is not intended to confer any rights, privileges or benefits upon actual or prospective witnesses or defendants. See United States v. Coceres, 440 U.S. 741 (1979).

  1. 18 U.S.C., § 1951 provides in pertinent part:
    (a) Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined not more than $10,000 or imprisoned not more than 20 years, or both;
    (b) As used in this section – (2) The term “extortion” means the obtaining of property from another with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.
  2. The interstate commerce element of the Hobbs Act will seldom act as a bar to prosecution. “The impact on interstate commerce need not be substantial to meet the statutory requirement. All that is required is that commerce be affected by the extortion in any way or degree.” United States v. Wright, 797 F.2d 245, 249 (5th Cir. 1986) reh’g denied, 804 F.2d 843. The interstate commerce connection is determined on a case-by-case basis. United States v. Stephens, 964 F.2d 424, at 428-29 (5th Cir. 1992). Of course, it is conceivable that certain types of payments to public officials will not affect commerce. For example, one might argue that the sale of a pardon by a public official to an individual does not affect interstate commerce. But see United States v. Sisk, 476 F. Supp 1061 (M.D. Tenn 1979), aff’d sub nom. United States v. Thompson, 685 F.2d 933 (6th Cir. 1982) (selling of pardons and communications by governor’s office a predicate offense for RICO violation).
  3. See United States v. Dozier, 621 F.2d 531, 536 (5th Cir. 1982); United States v. Williams, 621 F.2d 123, at 123-24 (5th Cir. 1980).
  4. See United States v. Williams, supra. at 125 (“We hold the terms of this statute to be sufficiently precise to give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.”)
  5. 672 F.2d 531 (5th Cir. 1982.)
  6. Id. at 537.
  7. Id.
  8. Black’s Law Dictionary 1248 (6th ed. 1990), 4th Ed. Rev. (1972).
  9. Organized Crime and Racketeering Monograph, The Hobbs Act, 18 U.S.C. 1951 (May 8, 1984).
  10. 111 S. Ct. 1807 (1991).
  11. Id. at 1810.
  12. Id. at 1816.
  13. Id.
  14. 112 S. Ct. 1881 (1992).
  15. See United States v. Evans, 910 F.2d 790, at 792-95 (11th Cir.).
  16. Id. at 795.
  17. Id. at 796.
  18. Evans v. United States 112 S. Ct. at 1885.
  19. Id. at 1889.
  20. Id.
  21. 621 F.2d 123, 125-26 (5th Cir. 1980).
  22. 672 F.2d 531 (5th Cir. 1982).
  23. Id. at 542.
  24. 964 F.2d 424 (5th Cir. 1992).
  25. Id. at 430.

For more information and case citations, please see “Federal False Claims Act and Qui Tam Litigation,” published by Law Journal Press (2006).


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