November 19, 2018
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Raising money for a Collins’ opponent is not a bribe, but it may be ineffective

Jose Luis Magana | AP
Jose Luis Magana | AP
Sen. Susan Collins, R-Maine, speaks with Supreme Court nominee Judge Brett Kavanaugh at her office, before a private meeting on Capitol Hill in Washington on Tuesday, Aug. 21, 2018.

Threatening to crowdfund money to support a candidate to run against Sen. Susan Collins were she to vote to confirm Brett Kavanaugh as a Supreme Court Justice is not bribery, as the senator called it. Federal law is clear on that. The real question is whether it can it actually impact Collins’ decision. The simple answer is that it depends.

Federal law, such as United States Code Title 18, Section 201, requires several conditions be met for something to be bribery. Plainly speaking, there must be a quid pro quo. That is, there must be a giving of money to a public official in return for the performance of an official act. Second, there must be corrupt intent on the part of the giver. Corrupt intent may be getting a special favor or benefit, not simply trying to persuade someone to vote a specific way.

None of these conditions exist with this threat from Mainers for Accountable Leadership and the Maine People’s Alliance, which has raised nearly $1.3 million. There is no giving money to a public official. No public official is being asked to perform an official act in return for money. There is no corrupt intent on the part of the initiators of the crowdfund plan or potential donors. There is no quid, pro or quo.

What is this threat? It is no more than the time-honored political act of telling an elected official that if you take a position I oppose I will support a candidate to run against you. That is exactly how our American election system is supposed to work. Telling officials you want them to vote a specific way and threaten support of someone else is how we hold officials accountable. If this were bribery, then this would mean that all political donors who gave money with the hope that their political preference would be supported by a candidate would be violating the law.

But do threats like this work? It depends on several factors. Initially, the question is does Collins plan to run for re-election? If not, she can vote how she wishes and not fear retaliation.

Even if she does plan to run, her vote to confirm Kavanaugh may not be needed. The Republicans can afford one senator to vote no and Kavanaugh is still confirmed, with the 50-50 tie broken by Vice President Mike Pence. This assumes a straight party-line vote. But several Democrats in Trump-leaning states may vote for Kavanaugh, making it possible for the Republicans in the Senate to let her vote no.

But assume her vote is needed by the Republicans in the Senate to confirm Kavanaugh, party discipline and pressures are now so strong that she may not be able to vote no. Collins may also fear that if she were to vote no she would face a primary challenge within her own party. Whether she would face a credible challenge from within her party depends on how much support she has in it and whether there is a likely challenger to her. In effect, does voting yes or no better reflect the views of the voters in the Maine Republican Party?

Additionally, assume she does vote no and wishes to run again. Raising money against her is important, but how much money will donors give to Collins if she votes yes? Will there be a credible Democrat to run against her? Will voters care about this one issue several years from now? Simply raising money for a yet-to-be determined candidate will be hard, even if voters dislike Collins’s decision. But even with all this money, how will it be used to the advantage of an unnamed opponent? Campaign contribution limits may prevent this money from being directly given to the opponent. If this money is the seed for a PAC, who will run it or decide how to spend it?

Finally, even if all of the above logistical issues are addressed, there is something both good and troubling about this crowdfunding idea. It is good in the sense of allowing small donors to pool money to support candidates, bad in the sense that it encourages single-issue politics to be backed by fundraising for every vote an official casts. This approach only makes worse the role of money in politics and the power it may cast over how public officials vote and act.

David Schultz is a professor of political science at Hamline University in St. Paul, Minnesota where he teaches American politics. He is also a professor of law at the University of Minnesota where he teaches election law. He is a former executive and president of Common Cause Minnesota and a member of the Scholars Strategy Network.

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