What will the voters say?

Erick Erickson is a commentator on things political and hosts an evening news show on WSB radio in Atlanta. He is a lawyer, but his strength is politics. Erick opined that Georgia gubernatorial candidate and front runner Casey Cagle “arguably committed a felony” by supporting a state scholarship program, which he really opposed, in order to 1) hurt Hunter Hill, a political foe, who stood to get a $3 million donation from a foundation, and 2) Cagle wanted that money for his own campaign.

Let’s assume the alleged conversation is true. Erick says that “Georgia law makes it a felony for an elected official to advance legislation in exchange for anything of value.”  Georgia law says: “A person commits the offense of bribery when: A public official… directly or indirectly solicits, receives, accepts, or agrees to receive a thing of value by inducing the reasonable belief that the giving of the thing will influence his or her performance or failure to perform any official action.”

In the case of State of Georgia v. Agan the Supreme Court of Georgia un-linked campaign contributions to an apparent exception to bribery laws. The Court of Appeals had linked the bribery law to a newly enacted Ethics In Government law, appearing to rule that so long as someone was getting a campaign contribution for doing something, it was a thing to which he was “entitled” and thus bribery did not apply. The GA Supremes disagreed with that notion, holding that bribery is still bribery, even if you report it on state mandated forms. Said the Court: “Bribery is a well-known word, used widely and understood generally. Its ordinary signification may mean an act of influencing the action of another by corrupt inducement.” Mr. Agan, who needed a height variance on a hotel he wanted to build, got that variance by making generous campaign contributions to a particular commissioner. The Supreme Court held: “Public officers are not prohibited from receiving legitimate financial aid in support of nomination or election to public office. They do not have, nor have they ever had, the “right” to sell the powers of their offices.”

There aren’t many political bribery cases in Georgia law. Most such cases go to the federal courts for obvious reasons. The ones that have happened are so blatantly obvious that even Martin Pinckney would understand the conviction. (Martin was in my law school class. When questioned one day by a professor about the reasoning of some point of law, Martin said “Isn’t it blatantly obvious?” We thought it was funny. The professor not so much).  

Cagle clearly sought to block opponent Hunter Hill from getting a “possible” $3 million donation by supporting legislation he thought was a bad idea. Is that a “thing of value”? Maybe, but it seems too speculative to me. But if that is a thing of value, isn’t all legislation suspect? Legislators pass all kinds of stupid stuff, and sometimes smart stuff, for political reasons. The “you scratch my back and I’ll scratch yours” has been going on since cavemen first delegated duties. Are we really to the point of criminalizing a legislator’s decision to support something he thinks is bad policy because it will hurt the other side? I hope not, because the subsequent litigation will stymie the legislative process so badly that nothing will ever get done.

Now what of Cagle allegedly saying that he “wanted” that donation for himself? To me, that is no different than preventing the possible donation to Hunter Hill. Were he on video saying “yes, I’ll support this legislation and push it through if you donate $3 million to my campaign”, well, I’d convict him of bribery for that. But pushing through ill-advised legislation (it matters not whether the actual bill was a good idea or not, it’s the thought that counts) and hoping it garners support can never be bribery or we’re back to the legislative quagmire.

I started with the idea that Erick’s position was flawed, but in the end, he was safe in declaring that “Cagle arguably” is guilty of bribery. Arguably, yes. Realistically, no way. It’s certainly made a lot of hay in the gubernatorial campaign, and absent the video it would be Tippins’ word against Cagle, but did Cagle break the law? I say there is no way that a jury, even in Atlanta, would convict Cagle. I sure wouldn’t. But elect him? We’ll see what the voters say.

Kelly Burke, master attorney, former district attorney and magistrate judge, is engaged in private practice. He writes about the law, rock’n’roll and politics or anything that strikes him. These articles are not designed to give legal advice, but are designed to inform the public about how the law affects their daily lives. Contact Kelly at kelly@burkelasseterllc.com to comment on this article or suggest articles that you’d like to see and visit his website www.kellyrburke.com to view prior columns.