The federal crime of gratuities prohibits people from giving gifts to federal public officials if the gift is tied to an official act. Both the donor and the donee are liable. The gratuities crime is dysfunctional in two main ways. It is overinclusive in that it covers conduct indistinguishable from bribery. It is underinclusive in that it does not cover conduct that is clearly dangerous: gifts to public officials because of their positions that are not tied to a particular official act.
This Article argues that Congress should extend the crime of gratuities to cover gifts because of an official’s position rather than leaving the crime to cover only gifts because of particular official acts. The danger to bias-free government because of gifting based on official positions is demonstrated in recent research on influence and reciprocity. The rule for reciprocity is powerful and hard to fight because participants are generally unaware it is operating on them. Gifting officials based on their positions is not adequately controlled by mandated disclosure or ethics prohibitions. This Article urges Congress to amend the gratuities crime to expand it and avoid the dangers of overcriminalization by inserting mens rea terms into the crime. The appropriate mens rea terms are knowledge of the facts for donees and knowledge of the facts and law for donors. Congress should also address the overbreadth of the crime by taking one situation, when donors transfer value to donees because of future official acts, out of the gratuities crime because it is indistinguishable from the crime of bribery. This Article proposes amendments to implement these changes in terms familiar to the federal criminal law.