U.S. Supreme Court nominee Brett Kavanaugh meets with U.S. Senator Susan Collins on August 21, 2018Alex Wroblewski / Reuters

Two progressive groups are gathering contributions – more than $1 million so far— pledged to a yet-to-be-named opponent to Maine Senator Susan Collins if she votes for the confirmation of Brett Kavanaugh to the Supreme Court. “Either Sen. Collins VOTES NO on Kavanaugh OR we fund her future opponent,” a crowdfunding page declares. The senator complained that this is “bribery,” a charge echoed by Senate Majority Leader Mitch McConnell.

Are Collins and McConnell serious, or is the claim mere partisan rhetoric? Do they really think this proposition amounts to a federal crime? It’s hard to say what they’re thinking, but it’s worth considering the accusation on its own terms, since it reveals something important about the topsy-turvy, down-is-up culture that now prevails in the world of campaign finance and political corruption law.

Federal bribery law makes it a crime for a person to give or offer something of value to a government official with an intent to influence an official act. In the classic scenario, a lobbyist gives a senator a briefcase full of cash in return for the senator’s vote for or against some piece of legislation. The courts call this a quid pro quo.

The Collins case doesn’t quite follow that script for two reasons. First, voters are not trying to persuade Collins to vote against Kavanaugh by offering her money to do so. Rather, they’re threatening to help her as-yet-unnamed opponent. Even if she did “accept” the proposition, she still wouldn’t see any money. In that sense, there’s clearly not been any offer of a bribe.

Second, the plan sounds more like a threat than an offer, and not all threats constitute crimes. The classic highwayman’s choice—“your money or your life”—is illegal because you have a right to both your money and your life. But if Collins flouts the progressive groups, she doesn’t really lose anything: She has no right to the donations earmarked to another party.

Legally, then, this case is unlikely to constitute a bribe. Still, the use of the word “bribery” resonates with good reason. In the zero-sum world of campaign expenditures, $1 million not given to Collins’ prospective opponent would likely benefit her almost as much as a direct donation. If her opponent doesn’t have $1 million to air costly TV ads, then Collins doesn’t need to raise $1 million to counter those ads.

The probable legality of the crowdfunders’ bribe-like gambit reveals the conundrum at the heart of our law and politics.

Bribery laws are designed to keep money from influencing political decisions. Yet Supreme Court cases holding that political giving and spending are forms of political speech are designed to let that happen. How can we prohibit the use of money as a form of political expression at the same time that we validate it?

The whole point of bribery law, as traditionally understood, was to prevent citizens using money to achieve ends that ought to be achieved through voting, and politicians from being “bought.” In a healthy democracy, Maine citizens would threaten a Kavanaugh-supporting Collins with electoral consequences, not monetary ones. In our democracy, it’s commonplace for voters to express their views at least as much with their credit cards as with their ballots, and routine for politicians to respond by adopting positions that follow the money.

There is a deep irony in this odd case. Usually, it’s large corporate donors and plutocrats who use money to exert influence on politics. The Maine crowdfunders, even as they perpetuate the money-is-political-power ethic, are challenging the status quo. The pot of cash comes from nearly 40,000 individual donors, many making pledges of less than $100. In a world where money is considered political speech, the Maine crowdfunders represent a much larger chorus than we typically see. For all the accusations of bribery and corruption, the crowdfunding model is closer than the plutocrat model to the one-person-one-vote principle on which our democracy is based.

That’s cold comfort, though. The case feels like bribery, even if it isn’t legally, because something is wrong with a system that makes political giving and spending a form of political participation.  In such a system, it will always be difficult, even in principle, to distinguish a campaign contribution from a bribe.

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