The Most Dangerous Form of Bribery

Election corruption can’t be solved by corrupt elections, so the Founders devised a special solution: impeachment.

Illustration of voting in early America
Ann Ronan Pictures / Print Collector / Getty

About the author: Soren J. Schmidt is a lawyer based in Washington, D.C.

Thus far, the facts at issue in the impeachment inquiry are relatively undisputed. President Donald Trump’s administration conditioned Ukraine’s access to U.S. decision makers and military aid on it publicly announcing investigations that would benefit the president’s reelection campaign.

Instead, the principal battleground is whether President Trump’s conduct qualifies as an impeachable offense. To answer that question, the inquiry has turned to ascertaining the Founders’ views of the explicitly listed offenses in the Constitution—especially “bribery”—as well as whether election interference itself is independently impeachable.

But while these two issues have often been considered separately, they present a compounded threat to the democratic process when they overlap—a threat not only apparent in the case of President Trump, but one that America’s founding generation also faced in their own time.

In the decades before and after the Constitution’s adoption, colonial and state legislatures took special aim at preventing bribery in and around elections. As the Harvard professor Noah Feldman testified Wednesday, early Americans were “especially worried that a president might use the power of his office to influence the electoral process in his own favor.”

Take, for an example, colonial election laws banning “treating”—the practice, common at the time, of candidates handing out food, alcohol, and other gifts near polling places on voting days.

Though treating was superficially neutral—men could accept the gifts and still vote for whomever they preferred—it was nevertheless an effective form of gaining electoral advantage because of how voting then worked. Voters gathered in regional capitals to cast their ballots, which was frequently done viva voce—vocally announcing their choices in front of not only the poll workers, but the local sheriff and the candidates for office.

In this setting, candidates could exercise substantial leverage over elections without any overt exchanges or intimidation. They simply “treated” anyone approaching the polls to victuals and then stood by with a wink and an expectant smile.

Many colonial legislatures nonetheless recognized the danger that treating posed to the democratic process. Election-related bribery thwarts the very process by which voters can normally check corruption: voting the bums out.

The origins of Maryland’s anti-treating statute illustrate how seriously the founding generation took this problem. After several particularly flagrant incidents of treating, in 1768 the state’s assembly passed—unanimously—a bill banning the practice.

The law’s language is striking; it prohibits giving not only “money, meat, drink, entertainment, or provision,” but also any “promise, agreement, obligation, or engagement.” The “greatness or smallness” of the offering didn’t matter, nor whether it was “directly or indirectly” given, so long as it was done “in order to be elected.”

The penalty for treating was unequivocal: The legislature would void the election—the functional equivalent of impeachment—of anyone found guilty.

Early American bans on treating demonstrate the robust founding-era precautions against bribery in an election context. Contrary to the typical modern conception of bribery, treating transferred gifts from officials to outside actors, rather than the other way around. Also, treating involved no quid pro quo. Candidates provided gifts, but never explicitly required anything from beneficiaries. The gift’s Election Day context, plus the wink and smile, was more than enough to convey the intended message.

Despite these appearances, treating was still considered an impeachable form of bribery. And for the guilty, penalties were not limited to removal from office. In New York, election inspectors were authorized to arrest and imprison anyone using even “indirect” corrupt means to influence an election.

The Framers of the Constitution were intimately familiar with anti-treating laws. In 1777, James Madison ran for the Virginia House of Delegates. He refrained from any form of treating, because it was not only illegal, but in his view also a “corrupting influence” and “inconsistent with the purity of moral and of republican principles.”

Unfortunately for Madison, his opponent—a local tavern owner—did not share his reservations and treated generously near the polling place. Corruption carried the day.

When Madison found out he had lost the election, he immediately sought redress from the legislature under Virginia’s anti-treating statute. The House investigated his claim, but ultimately did not find enough evidence to void the results.

Though Madison would later achieve great electoral success, the injustice of the 1777 election no doubt fueled his lifelong crusade—one shared by many of his peers—against government corruption generally and unfair elections particularly. At the Constitutional Convention, one of the specific reasons the Framers created the impeachment power was to guard against a president who would “spare no efforts or means whatever to get elected.”

This concern is at the heart of the case against President Trump. As anti-treating laws demonstrate, the founding generation did not constrain its antibribery efforts merely to instances of quid-pro-quo, money-for-official-act exchanges. Moreover, these statutes show that the Framers knew bribery in an election context was particularly dangerous and warranted special intervention.

George Mason articulated the popular sentiment: “Shall the man who has practiced corruption & by that means procured his appointment in the first instance, be suffered to escape punishment, by repeating his guilt?” The solution to election corruption cannot be a corrupt election. Election interference by a public official must instead be met with impeachment-like removal—it’s the best way to combat the compounded corruptive threat of bribery aimed at skewing the electoral process.