The Court continued in relevant part: This conclusion not only flows from the Legislature’s expression but by the way our courts have always looked at bribery, recognizing as long ago as Ellis that it is no defense to anyone charged with bribery that the bribe receiver was incapable of performing his part of the bargain. 33 N.J.L. at 105 (recognizing that the defendant committed bribery even though the bribe was paid to a member of the Jersey City council for an easement over city street that the council had no authority to grant). Bribery has traditionally been a reciprocal crime; the bribe giver is as culpable as the bribe taker. As it was in the common law, see State v. Begyn, (1961), this reciprocity concept became a principal theme of N.J.S.A. 2C:27-2. The New Jersey Criminal Law Revision Commission recognized that “the offense is reciprocal: whenever it is a crime to receive a bribe it is a crime to tender one.” See 2 Final Report of N.J. Criminal Law Revision Commission, cmt. to § 27-2 at 263 (1971). Even defendant does not argue otherwise. It therefore runs counter to everything our courts have ever said about bribery to conclude that somehow the Legislature wanted to treat bribe receivers better than bribe givers in this or any other instance.
Indeed, the provision expresses the very thing that defendant argues is excluded. It not only renders irrelevant the fact that the bribe receiver was incapable of fulfilling his end of the deal, but also that the bribe receiver had not assumed the office needed to complete the deal, just like a candidate who does not get elected. To be sure, the no-defense provision states that it is irrelevant that the bribe receiver “had not yet assumed office” (emphasis added), but the provision’s remainder, which incorporates the bribe receiver’s inability to fulfill his promise because he “lacked jurisdiction, or for any other reason” (emphasis added), more than amply covers all those instances – such as a candidate’s failure to get elected, as here. There is nothing about this broad language to suggest that somewhere in the provision’s interstices lurked a legislative intent to give candidates for office carte blanche to accept bribes without consequence up until the moment they take office or if they never take office.
While the Court is critical of the defense argument, the Legislature is also to blame. Their inexact language and use of the emphasized term “yet” creates unnecessary ambiguity.