Bouncing the Proverbial Blank Check: An Argument for Including Candidates for Public Office Within the Scope of the Hobbs Act

The Hobbs Act, codified at 18 U.S.C. § 1951, criminalizes bribery of and extortion by public officials. Under the statute, “‘extortion’ means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.” But the meaning of “under color of official right” remains ambiguous. This Note examines the ambiguity created by the phrase “under color of official right” to decide whether a candidate for public office can be held accountable under the Hobbs Act for extortion. More specifically, this Note addresses whether a candidate for office qualifies as a public official who can violate § 1951(a) of the Hobbs Act by accepting a bribe in return for a promise of future action if the candidate is elected. This Note argues that candidates for public office who accept bribes in return for a promise of future action ought to be, and in fact are, prosecutable under the Hobbs Act. Excluding candidates for public office from the reach of the Hobbs Act would be inconsistent with public policy. Indeed, this would be fundamentally inconsistent with basic Western sensibilities, which recognize that public official corruption “destroys democracy, replacing the vote of the people with the vote of the dollar.” Because of uncertainty as to whether the Hobbs Act applies to candidates for public office, prosecutors usually rely on 18 U.S.C. § 599, titled “Promise of appointment by candidate,” as an alternative to prosecute candidates for office who receive bribes. Under this weaker statutory alternative, a candidate for office who takes a bribe during an election faces at most two years in prison for his crime, compared to a maximum of twenty years in prison if the candidate is prosecuted under the Hobbs Act. This effectively hobbles the Hobbs Act, stripping away its significant deterrent value for non-incumbent candidates. Therefore, courts should stop bouncing the proverbial blank check, and treat candidates for office as public officials who can violate the Hobbs Act by accepting bribes in return for promised official action once elected. * Editor’s Note: This Note won the Gertrude Brick Prize for the best Note in Spring 2014. ** J.D. candidate 2015, University of Florida Levin College of Law; B.A. 2012, Mercer University. I would like to thank the editors and fellow members of Florida Law Review for their hard work, diligence, and dedication throughout the editing process. I would like to thank in particular Kathleen Carlson and Dane Ullian for their careful review and suggestions regarding early drafts of this work. 1 Lada: Bouncing the Proverbial Blank Check: An Argument for Including Ca Published by UF Law Scholarship Repository, 2016 364 FLORIDA LAW REVIEW [Vol. 67 INTRODUCTION 364 I. THE HOBBS ACT: AN INTRODUCTION AND BRIEF HISTORY 368 A. The Hobbs Act as Codified: 18 U.S.C. § 1951 368 B. A Historical Perspective of the Hobbs Act 368 II. PUBLIC POLICY PERSPECTIVE: WHY PUNISH CANDIDATES FOR PUBLIC OFFICE AS SEVERELY AS CURRENT PUBLIC OFFICIALS 371 A. Alternatives to the Hobbs Act 372 B. Examples of Inconsistent Cases 375 III. THE HOBBS ACT GOVERNS THE INCHOATE CRIME OF EXTORTION 377 A. An Explicit Inclusion of the Inchoate Crime of Extortion 378 B. An Overview of Existing Cases 380 C. Consistency with Federal Bribery Statutes 382 IV. A BROADER INTERPRETATION OF “UNDER COLOR OF OFFICIAL RIGHT”: THE NEED TO INCLUDE CANDIDATES FOR PUBLIC OFFICE 383 CONCLUSION 388