Introduction

A governor peddles a Senate seat; a mayor accepts kickbacks to push a major construction project; an undercover officer dupes a state senator into taking bribes. Public corruption captures the attention of journalists and prosecutors alike.

In cases like these, prosecutors are finding a relatively new addition to their anticorruption toolkit useful: 18 USC § 666. Section 666 targets “[t]heft or bribery concerning programs receiving Federal funds.” The statute covers “agent[s]” of government organizations and private entities receiving over $10,000 in federal funds, as well as those who attempt corruptly to influence such agents. All states and thousands of local governments exceed the $10,000 threshold, so § 666 covers any agent of these state and local governments.

But the application of § 666 has encountered impediments, as courts disagree about the reach of the statute. In particular, circuits diverge over the scope of the term “agent.” The statute defines “agent” as “a person authorized to act on behalf of another person or a government,” including employees, servants, and those in managerial positions. The statute clearly includes those directly employed by organizations receiving federal funds (“recipient organizations”), like bureaucrats or senators. But whether § 666 covers individuals more distantly related to the recipient organization is a more difficult question. To illustrate, the statute’s definition of “agent” unquestionably encompasses the corrupt mayor of a town receiving federal funds. But if the town hires a financial services firm to manage its assets, does § 666 also cover an employee of that firm? Similarly, if the town enlists an outside firm for janitorial services, do those janitors count as agents of the town?

In addition to the “agent” disagreement, § 666 faces constitutional constraints. The Spending Clause, in conjunction with the Necessary and Proper Clause, permits Congress to protect the integrity of the taxpayer money it spends. Because Congress enacted § 666 under its spending authority, courts have been forced to inquire whether the statute exceeds that authority in cases where the connection between the alleged agent and recipient of federal funds is attenuated. In particular, local, selffunded agencies, though they often operate as a part of a municipal or state government that receives federal funds, do not receive funds from the overarching municipal or state government. As these agencies therefore lack a direct financial connection to federal funds, can § 666 constitutionally reach these agencies’ employees? The answer to this Spending Clause question bears directly on § 666’s ability to capture all those who fall within the scope of the term “agent.” An individual, though she may fall within the letter of § 666(d)(1)’s definition of “agent,” cannot constitutionally be prosecuted under the statute if she lacks a sufficient connection to federal funds. The Spending Clause issue, therefore, potentially establishes the outer bounds of whom the statute can constitutionally reach.

In confronting these questions, three approaches have emerged. The Fifth Circuit has determined that the term “agent” only includes individuals with some connection to the recipient organization’s funds. The Third and Eleventh Circuits have deemed the statutory definition of “agent” to be unambiguous, encompassing anyone “authorized to act on behalf of” the recipient organization. And, finally, a lone district court has held that courts should interpret “agent” according to traditional agency principles codified in the Restatement (Second) of Agency.

This Comment addresses this disagreement with two aims. First, it seeks to clarify the scope of the discord among the circuits. Though courts disagree about the proper scope of the term “agent,” the Third and Eleventh Circuits have misconstrued Fifth Circuit jurisprudence in a way that magnifies the controversy. Second, this Comment criticizes the three existing approaches detailed above and proposes a workable interpretation of § 666(d)(1)’s definition of “agent.” This Comment ultimately submits that, for an individual to qualify as an “agent” under § 666, she must: (1) fall within one of § 666(d)(1)’s expressly included categories of agents (that is, employee, servant, partner, director, officer, manager, or representative of the recipient organization); or (2) be authorized to act in the interest of the recipient organization.

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