Stop Picking on "Quid Pro Quo"

Poor “Quid Pro Quo”! It really was just a nice Latin phrase, minding its own business, when suddenly, it’s getting mentioned all over the place - and being treated as if it’s a bad thing. And that’s not fair… because most Quid Pro Quos are good. Which is why we need to focus on proper terminology. Let’s take a look...

QUOD ORIGINEM A "QUID PRO QUO"

The Latin phrase “Quid Pro Quo” (literally “something for something” or “this for that”) likely dates back to the Renaissance period. Even back then, economic exchanges often did involve the transfer of some form of coinage, but of course, many other exchanges had to be done without the benefit of an agreed-upon currency. In those exchanges, the parties had to accept that the exchange was of items or services of comparable value.

Such an exchange was a “Quid Pro Quo”. Nothing wrong with that!

In addition, often the “Quid pro Quo" was for intangibles (as are many exchanges) — a peasant's loyalty in exchange for a lord’s protection was a very common theme. It’s difficult to assess whether both “loyalty” and “protection” have the exact same value in terms of measurable currency, but when done as a “Quid pro Quo,” the exchange is implied to be one of equivalent values. Of course, such exchanges could be done under duress, in which case that “protection” was also from the lord himself — but better to be under some lord’s protection, than have no protection. Those were rough times.

TERMINUS USUS EST IN LEGE

The term “Quid Pro Quo” evolved (as do many Latin phrases) into a legal term, in some cases referring to a benign exchange — for example, in contract law, an exchange of value (not necessarily monetary) is necessary to make a contract “binding"… there needs to be a “Quo” for the “Quid”. And that’s a good thing for the parties involved (and usually of no consequence for those outside the exchange).

Of course, the term “Quid Pro Quo" is also used in criminal law, to refer to an exchange for illicit purposes — for example, if a company executive receives an envelope of cash from Mr B in exchange for extending a company subcontract to Mr B’s company, well, that’s a Quid Pro Quo too…but a bad kind. And we give it a special name — we call it a “bribe”.

Or, as another example, if Mr. E has compromising photos of a company executive, and tells that executive that he must divert company funds to Mr E, otherwise he will release those photos, the exchange of company funds (value!) for “not releasing the photos” (value!) is also a “Quid Pro Quo”. But this one is especially ugly, so we give it a special name as well — we call it “extortion”.

Let’s look at each of these a little more closely...

QUID PRO QUO - THE GOOD (ECONOMIC EXCHANGE)

We have “Good” (or benign) Quid Pro Quos all the time in a free society. If you buy a cupcake (a little money in exchange for a pastry), get homeowner insurance (a little money in exchange for a lot of money if there’s a fire), or pay for college tuition (a lot of money in exchange for the right to earn college credit), you are engaging in a Quid Pro Quo. And that’s totally cool.

Occasionally, one party or another will need to be induced to engage in a “Quid Pro Quo”. For example, I may not want to pay for homeowner’s insurance, but my mortgage lender insists on it. Or perhaps I don’t want to buy the cupcake, but my son had walked behind the counter and ran his finger through the icing — so I have to buy it.

But these are still totally “good" Quid Pro Quos. I was “forced" into the transactions — in the first case by my bank, in the second by my kid — but the exchanges themselves are legitimate. When I get a mortgage, I know that I need to have insurance with the bank as a named party, and I can choose with which insurance company I’d like to transact. And when I bring my son to a bakery, it’s on me to keep him from walking behind the counter. Once he touches a cupcake, it becomes ours, and I owe money in exchange.

QUID PRO QUO - THE BAD (BRIBERY)

Let’s expand that cupcake example and say that the reason we were in the bakery in the first place was that I offered to buy my son a cupcake if he first did his homework. I offered something of tasty value (a cupcake) in exchange for something of intangible value (his effort in doing his homework). That’s a Quid Pro Quo, right? But still not a bad one (apart from possibly an exhibition of questionable parental judgment).

But what if, rather than my kid and me, we swapped in Mr B and a Congressman. And rather than homework and a cupcake, we swapped in “vote for this legislation” and “an envelope of cash”. So now the Quid Pro Quo would be Mr B saying to a Congressman: “If you first vote for this legislation, then I’ll give you an envelope of cash.” That sure does sound like a bribe, right? What changed? The structure of the Quid Pro Quo is the same — still “something for something”.

What’s different here is that 18 U.S.C. § 201(b) (a.k.a. "The Federal Bribery Statute”) explicitly prohibits the offer of anything of value to a public official in exchange for any official act, as well as the inverse (i.e. the solicitation of such by a public official). It doesn’t contain language prohibiting a parent from "offering anything of value to a child in exchange for performance of homework or other childhood duties.”

And bribery is not only illegal when dealing with elected officials. Mr B's offer (earlier in this post) of cash to a company executive in exchange for a contract would be illegal under state bribery laws (e.g. Section 641.3 in California) -- and could be prosecuted as well under federal wire fraud and other statutes.

In these cases, a Quid Pro Quo is a necessary condition for bribery, but not a sufficient condition. To be bribery, the act has to corruptly influence either a government official or a company executive — or even attempt to do so. Even though I jokingly refer to some of my inducements to my kids as “bribes”, the government wouldn’t see them the same way. And that’s a good thing!

QUID PRO QUO - THE UGLY (EXTORTION)

In the case of bribery, someone offers something desirable (often money) in exchange for an act or service in violation of a federal and/or state law. That’s bad. But what’s ugly is the threat of something undesirable in exchange for that act or service. That often goes by names such as “extortion”, “blackmail,” “threat,” and “shakedown”. If I am an employee who threatens to report my employer’s crimes to authorities unless he promotes me, well then I’m engaging in extortion.

Other ways to extort someone are threatening to post damaging photos, drain someone's bank account, engage in physical violence… but there needs to be something requested/given in exchange for *releasing* the threat. If I just distribute illicit photos of someone, that’s likely illegal and wrong, but if I haven’t threatened to release them unless that person pays me money, or drops a lawsuit, or provide/do something else of value, there’s no Quid Pro Quo, so there’s no extortion.

Even though extortion is usually in the form of a threat of something undesirable, that threat of something undesirable could be the withholding of something desirable & due. For example, if a worker is owed a paycheck, but the employer refuses to pay — and threatens to report the worker to INS if she makes a complaint, then the employer is engaging in extortion. (Depending on the particulars of the extortion, it could be prosecuted under any number of federal and state statutes.)

The reason that extortion is uglier than bribery is that while bribery (and accepting a bribe) is bad, the bribed party is a willing participant in the Quid Pro Quo. However, in extortion, the extorted party is forced to participate in the Quid Pro Quo. That is, the “Quo” is something that the extorted party would never have to face if the extorting person were not acting illicitly. It is forced upon the other party, rather than being a choice.

A WILDLY UNBELIEVABLE HYPOTHETICAL EXAMPLE

So when does the totally good “Quid pro Quo” cross the line into the bad “Bribery” and/or ugly “Extortion”? Let me come up with a crazy example that would never happen in the real world…

Let’s say that the U.S. Congress has approved military aid to a country, and that country’s president (we’ll call him “Mr Z”) is made aware that the desperately-needed aid is being withheld by the U.S. President (we’ll call him "Mr T”) until Mr Z announces an investigation into one of Mr T’s political rivals (and his son). Moreover, the Mr T offers to have Mr Z come meet him at the White House if (and only if) he publicly announces the investigation.

Well, that’s essentially 2 Quid Pro Quos (both with the same “Quid” ): The Quid? Mr Z must *announce* an investigation into one of Mr T's political rivals. The Quos? (a) A White House meeting for Mr Z, and (b) the release of Congressionally approved military aid.

Based on the definitions above, these fall into 2 different categories:

a) The White House meeting is an offer of something desirable, and since a White House meeting is an “official act,” that Quid Pro Quo would be called "a bribe".

b) The Congress has already approved the aid, meaning it was due to be received by Mr Z’s country (and desperately needed). So threatening to not release the aid, unless Mr Z first provides the Quid… that would be called “extortion”.

No money needs to exchange hands. No one needs to explicitly say “I’m making a threat now,” or “Here’s the bribe.” And in fact, the exchange doesn’t even need to be successfully consummated for it be both pretty bad and ugly.

But it’s ok, since y’know, it’s just a hypothetical — nothing this overtly bribe-y or blackmail-y would happen in the real world. If it did, you certainly wouldn’t hear it just referred to as a “Quid Pro Quo” — since that wouldn’t be very nice at all to a perfectly nice Latin phrase.

Thanks for reading! Feel free to email me your thoughts.