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McCutcheon: Plutocracy is Corruption

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(Article changed on October 20, 2013 at 19:38)

plu-toc-ra-cy

  1. Government by the wealthy.

  2. A country or society governed in this way.

The big pigs and bigger pigs figuratively jostled each other at the trough October 8 as the Supreme Court heard oral arguments in what has become its annual dismantling of campaign-finance law. There is not much such law left to dismantle, so this contest concerns very few people. This is a contest that concerns those who buy public policy by spending on federal elections every year more than the U.S. median income and those who want to spend up to 30 times that much.

This party of the pigs provides an occasion to take stock of what the Roberts Court has been doing the past seven years in service of these porcine plutocrats.

  1. Big-Bang Theory: A Philological Preface

A secret of anti-corruption specialists is that in a systemically corrupt political environment, piecemeal, incremental, partial, "better than nothing" reforms are not. They make matters even worse. A Swedish scholar was curious about how his own country emerged from its era of extreme corruption to become the paragon of integrity and equality it is today, while other countries failed to change. His research showed that cleaning up political corruption takes a comprehensive set of reforms that amount to a "big bang" rather than "incremental policies which ... are likely to worsen the problem and make corruption and similar practices more ingrained." Bo Rothstein, Anti-Corruption: A Big-Bang Theory (2009). Prof. Rothstein reasoned that systemically corrupt institutions, dominated by corrupt networks, typically demonstrate considerable skill in corrupting those very tactics and policies deployed to fight corruption in a less-than-systemic manner.

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If the opinion of its citizens is to be believed, contemporary politics in the United States has produced just such systemically corrupt institutions. Only 28% of voters say they think that most members of Congress are not corrupt. The term "corrupt" has many meanings. With respect to the most narrowly specific meaning of political corruption, 60% think most members of Congress sell their vote, while 69% think members will "break the rules" for their contributors.

Bribery of individual politicians is the crudest way for money to influence politics. When the polling question is phrased more inclusively so as to reach the most quotidian form of corruption, that which the Supreme Court (pre-Roberts) defined as "undue influence on an officeholder's judgment," FEC v. Beaumont, 539 U.S. 146, 152-54 (2003), the answers show even broader agreement. The country universally (95%) understands that big money enters politics for the purpose of the large financial returns that it earns by controlling government, and 86% think this control is sold by politicians even when it violates the national interest. The public understands this crony-capitalist economy of "undue influence," which explains its almost universally low regard for Congress as an institution and low consent of the governed. Only 8% would vote to keep the current Congress.

To perpetuate this systemic corruption of the US government, it is only necessary to assure that any notion to reform it remains partial and incremental, commonly addressing just a few tiles of the larger corrupt mosaic and certainly not the whole ugly picture. Nevertheless, partial reforms are useful for politicians who seek to maintain the appearance that there is some sort of system in place to deal with political corruption, or eventually will be if you give them your vote and money. Meanwhile the complexity of the piecemeal reforms conveys the impression that only specialists can actually understand the system.

This piecemeal approach to anti-corruption relies on its own specialist language for slicing and dicing into separate pieces the otherwise fairly straightforward objective of banning all private-interest money from politics. The specialized verbal distinctions are designed to limit regulation to some pieces of the mosaic while keeping others safely off-limits to permit the continued feeding of those pigs at the trough of the corrupt system.

The Supreme Court has been the principle overseer of this fluctuating sorting process, assuring that some, actually since 2006 many, crucial components are omitted from anti-corruption laws. For example, in Citizens United the Roberts 5 majority reversed Supreme Court precedent to hold that the Constitution prohibits Congress from being concerned about the "undue influence" kind of corruption. The "5" newly discovered that the Constitution only authorizes the prevention by legislators of bribery and not of ordinary influence peddling, although no language suggesting such a distinction appears in the document itself.

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Many distinctions in this area of law seem technical and complex, enough even to intimidate lawyers who are not initiates in campaign finance law. The judge-made rules provide a "confusing and largely senseless background," in the words of Jeffrey Toobin, The Oath: The Obama White House and The Supreme Court (2012) 257.  An academic specialist summarizes: "The Court's three decades of work with campaign finance law have produced little more than a mess. Campaign finance law is an unsatisfying, unworkable tangle that enormously complicates the practice of politics and makes innovative reform in campaign finance almost impossible." Another academic even more bluntly says: "Campaign finance law is lousy. The Congress and especially the Supreme Court, by constantly leaving only half of various regulatory programs standing, have made it inconsistent, infuriating, and incomprehensible. ... It is chocked full of distinctions without a difference and loopholes that are, well, loopy."  Justice Scalia, who as much as anyone has helped create these loopholes, blurted during oral argument in McCutcheon that "this campaign finance law is so intricate that I can't figure it out."

The purpose of this preface is to define a few of these concepts to show they are not intimidating so much as they are themselves a large part of the problem. Just as there is no rational explanation -- other than to perpetuate the corrupt system -- for the Roberts 5 to be the first judges to discover in the Constitution, after more than two centuries, a prohibition on state and federal power to combat influence peddling, although that is the most common form of political corruption, these distinctions lack plausible justification. They were created to assure that corruption will continue under a superficially purposeful patina of regulatory complexity that is impenetrable by the wider public. This allows room for the political cover of occasional "little bang" reforms that actually "are likely to worsen the problem" rather than solve it. How both of the currently touted reforms, FENA (with its inherent mass-media subsidy) and DISCLOSE (which facilitates otherwise illegal coordination between "independent" and candidate campaign expenditures) fit this pattern is a subject for another day.

Any close analysis of the Supreme Court's nearly completed attack on campaign-finance regulation must use this slicing and dicing terminology, no matter how fundamentally meaningless and deliberately obfuscating it may often be. To reduce the intimidation factor, the following short glossary of campaign-finance terminology pairings is provided here for easing navigation of the article that follows. From http://www.flickr.com/photos/37089490@N06/10354910305/
by thart2009

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Rob Hager is a public-interest litigator who filed a Supreme Court amicus brief n the 2012 Montana sequel to the Citizens United case, American Tradition Partnership, Inc. v. Bullock, and has worked as an international consultant on legal (more...)
 

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