Public corruption is something all Americans abhor, even the appearance of it.  That is especially true when it comes to our elections, the fundamental building blocks of the democratic process.  But acts of corruption are only illegal to the extent that the law says so.  One cannot commit an illegal act where the law does not prohibit such conduct.  Christopher Geary, a one-time hopeful for the Nebraska Legislature, is living proof of this principle.

Nebraska’s 7th Legislative District encompasses parts of downtown Omaha and neighboring Douglas County.  During the 2012 election cycle, District 7’s residing incumbent was Jeremy Nordquist.  Christopher Geary challenged Nordquist in the officially non-partisan primary and funded his campaign with mostly personal expenditures.  Geary ultimately lost by a significant margin.  Instead of immediately removing his name from the general election ballot, however, Geary decided to attempt a recovery of his personal funds spent on the campaign.  He did so with the following email to Nordquist: 

“I wanted to let you know that I just talked to the sec[re]tary of state’s office. I asked them how I can remove my name from the ballot         in November. They told me that all that I would need to do is to send them a notarized letter and ask them to remove it.

If you would like to pay me for the money that I spent on the campaign, we can do this yesterday. I don’t want to lose any money from        what I already spent or have you spend any more money than you have to on running.

The reason why I am contacting you is because since I beat their candidate, the Republican Party contacted me and wants to give me        money and want you out of office. They are planning on hitting the area hard for November. This [is] not why I ran.

Let me know and we can wrap this up.”

At first glance, it appears as if Geary illegally offered to remove his name from the general election ballot in exchange for money.  In fact, that is exactly what happened, except that such an offer is not so illegal.  One would think this is the type of conduct public corruption and election laws would prohibit.  Even Douglas County Attorney Don Kleine stated that Geary’s offer may fit the bribery statute.  But a quick glance at Nebraska state law reveals that Geary’s offer was neither a bribe nor a violation of state election law.

In Nebraska, case law regarding bribery of a public servant clearly requires that he or she be “actually swayed or induced to act or not act in his or her official capacity.”  Nebraska v. Kao, 531 N.W.2d 555, 558 (Neb. Ct. App. 1995).  Nordquist quickly rejected Geary’s offer, meaning Geary never actually influenced Nordquist’s decisions or actions.  Therefore, without any actual influence, Geary’s offer was not an illegal bribe of a Nebraska public servant.

Furthermore, Geary’s offer was not a violation of state election law.  Section 32-1513(2) of the Nebraska Code states that anyone who accepts money in return for removing his or her name from a primary election is guilty of a Class III misdemeanor.  The law makes no mention of a general election.  Because Geary’s offer occurred within the context of removing his name from the general election ballot, he did not violate state election law.

There is an argument to be made that Geary committed criminal attempt of bribery.  However, the larger concern is that the Nebraska Code so poorly handles a situation such as Geary’s offer.  Citizens know an impropriety when they see one, and they expect the legislature to substantively prohibit such improprieties.  Regardless of whether Geary did not make the offer in bad faith, the situation still reeks of suspicion, suspicion that Nebraskans surely detest.

Perhaps the Nebraska Legislature should consider amending both the bribery and election laws.  One might argue that the bribery law does not need fixing because the criminal attempt statute sufficiently captures Geary’s conduct.  At the very least, however, the legislature should amend Section 32-1513 to include the prohibition of removing a candidate’s name from a general election ballot in exchange for money.  The appearance of impropriety arising from a Geary-like offer in a primary election does not cease to exist once the general election begins.  In fact, Nebraskans would likely argue that removing one’s name from a general election ballot in exchange for money is much worse conduct than in the primary election context.

Either way, Geary’s situation goes to show that Nebraska’s corruption laws are not flawless.  Furthermore, it is up to the legislature to enact laws that adequately capture all improper actions.  Without such adequacy in the Nebraska Code, the legislature effectively gives legal force to apparent improprieties.

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