Swindling/Selling, Bribing/Contributing, Extorting/Taxing
posted by Peter Swire
At the recent Security and Human Behavior conference, I got into a conversation that highlighted perhaps my favorite legal book ever, Arthur Leff’s “Swindling and Selling.” Although it is out of print, one measure of its wonderfulness is that used copies sell now for $125. Then, in my class this week on The Ethics of Washington Lawyering (yes, it’s a fun title), I realized that a key insight from Leff’s book applies to two other areas – what is allowed in campaign finance and what counts as extortion in political office.
Swindling/selling. The insight I always remember from Leff is to look at the definition of swindling: “Alice sells something to Bob that Bob thinks has value.” Here is the definition of selling: “Alice sells something to Bob that Bob thinks has value.” See? The exchange is identical – Bob hands Alice money. The difference is sociological (what society values) and economic (can Bob resell the item). But the structure of the transaction is the same.
Bribing/contributing. So here is a bribe: “Alice gives Senator Bob $10,000 and Bob later does things that benefit Alice, such as a tax break.” Here is a campaign contribution: “Alice gives Senator Bob $10,000 and Bob later does things that benefit Alice, such as a tax break.” Again, the structure of the transaction is identical. There are two likely differences: (1) to prove the bribe, the prosecutor has to show that Bob did the later action because of the $10,000; and (2) Alice is probably careful enough to give the money to Bob’s campaign, and not to him personally.
Extorting/taxing. Here is the classic political extortion: “Alice hires Bob, and Bob has to hand back ten percent of his salary to Alice each year.” Here is how it works when a federal or state government hires someone: “Alice hires Bob, and Bob has to hand back ten percent of his salary to Alice each year.” The structure of the transaction is the same – Bob keeps 90% of the salary and gives 10% to Alice. The difference here? Like the previous example, the existence of bureaucracy turns the bad thing (bribing or extorting) into the acceptable thing (contributing/taxing). In the modern government, Alice hires Bob, and Bob sends the payment to the IRS. The 10% does not go to Alice’s personal use, but the payment on Bob’s side may feel much the same.
For each of these, drawing the legal distinction will be really hard because the structure of the transaction is identical for the lawful thing (selling, contributing, taxing) and for the criminal thing (swindling, bribing, extorting). Skeptics can see every transaction as the latter, and there is no objective way to prove that the transaction is actually legitimate.
I am wondering, did people know this already? Are there citations to previous works that explain all of this? Or, perhaps, is this a simple framework for describing things that sheds some light and merits further discussion?