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OpEdNews Op Eds    H2'ed 7/5/16

Supreme Court Legalizes Influence Peddling: McDonnell v. United States

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Among those "so startling" cases since Buckley that have violated the original understanding about the sovereign power of self-defense against corruption to democracy, McDonnell arguably "arrest[s one's] attention" more than any of them, due to its failure to attract a single dissent from the current new Gilded Age Court. The eight justices who signed on to McDonnell have now all been appointed within the corrupt post-Buckley political order operated by and for plutocrats since 1976. One of the services that corrupt politicians perform for plutocrats is to appoint judges who will perpetuate and expand the plutocracy.

Bob McDonnell
Bob McDonnell
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McDonnell's unanimous 8 to 0 vote perhaps also contributed to the general critical neglect of the decision by the plutocratic media on a news day designed by the Court to distract attention to its two identity politics decisions, issued at the same time, about domestic gunslingers and abortion. It is important that public attention be distracted when the Supreme Court is engaged in its core business of undermining democracy for plutocrats.

Exculpation by interpretation

In McDonnell v. United States (2016), lacking any single existing, or otherwise even good, legal reason to interfere with the bribery prosecution of the carelessly conflicted governor of Virginia and his venal wife, the Court confusingly combined several inadequate excuses to limit the kinds of official activities that can be prosecuted under federal bribery laws. The Court apparently intended that one or another of its shallow reasons might stick or at least create enough confusion to forestall understanding of what the Court was really doing. The strategy seemed to work with the Court's vapidly liberal justices who for the first time all joined a pro-corruption decision having very dangerous implications as future precedent.

The Court's tactic for extending its four-decade plutocracy project into new territory by protecting from prosecution not just corrupt plutocrats but also their corrupt politicians was to curtail the legal meaning given by Congress to the otherwise unproblematic, all-inclusive term, "official acts." To do this the Court defines what actions, from among the myriad powers within their official capacity, politicians can now sell with impunity to special interests and what they are still prohibited from selling.

The new meaning of the term "official acts" that the Court dictates is different from the ordinary common-sense meaning of the term. It is also contrary to the accepted understanding of the term that was settled by the Supreme Court a century ago, and followed by the federal courts ever since: "official acts" include "[e]very action that is within the range of official duty." This reading is consistent with both the courts' and the ordinary common sense meaning that would include whatever an official does within the scope of his or her legally defined or traditionally practiced official capacity.

To be successfully prosecuted for bribery, the "official act" in question would have necessarily demonstrated some value in the marketplace for influence peddling. If a jury decides that the performance of the act was in fact exchanged for pecuniary inducements, that should be sufficient guarantee that it involved a valuable use of political influence for a special interest's private purpose and was not just some harmless de minimis political gesture available to all constituents. But the Court parsed the term "official acts" in order to make a new distinction between what it considered good and bad bribery, independent of any actual understanding of the utility of the act for subverting government to private ends. It is justified by some vague and deceptive suggestion by the Court that the protected sales are of lesser a priori importance and must therefore be tolerated, so as to minimize the impact of bribery prosecutions on operations in the ongoing court-sanctioned marketplace for public policy within which its preferred plutocratic form of government prevails.

The Court's legal reasoning for its idiosyncratic interpretation of the term "official acts" is not designed to enforce the intent of Congress, which was to include all acts taken within the broad category described by a politician's official capacity. Congress did not express any intention that politicians who slow-walk the delivery of the ultimate policy goals for which money was taken, in order to apparently enhance its extortionate price, should draw a pass from prosecution just because they had not yet delivered all the concrete results presumably desired by the buyer of influence, but had only acted to facilitate that delivery by others. Indeed, the Court even acknowledged that "fulfillment of the quid pro quo is not an element of the offense."

The Court's decision is something like redefining the game of football to only refer to touchdowns and field goals while excluding gains of small yardage as some private activity occurring in the same space, but where the rules of the game no longer have to be followed. The Court's reasoning for making approximately this kind of change in the rules of conduct for officials entrusted with governmental powers is less than clear, and involves some sleight of hand. The Court starts with the unproven assertion that the common-sense meaning of acts that fall within a politician's "official capacity" is vague.

The behavior of officials that falls either within or beyond their official capacity has been defined without trouble by ordinary legal tests of some vintage in such matters as official immunity, First Amendment rights, and exemption of federal officials from state criminal law, among others. For example, the Court would never think of contracting its enormous gift to the political class of their judicially-created official immunity from violating laws or the Constitution because the definition of their official duties is too vague. As recently as Lane v. Franks, (2014) these same justices who found it difficult to understand the term "official duties" in McDonnell somehow decided a case in which the central issue involved action taken "by a public employee outside the scope of his ordinary job duties" without any mention about the definition of a public employee's "ordinary job duties" being too vague for them to apply.

To "clarify the meaning of 'official acts'" for purposes of the McDonnell case, and thereby remedy this pretextual vagueness of the term solely in this context, the Court creates its own new distinction that makes it easier for powerful politicians to escape bribery prosecutions and perhaps other conflict of interest rules. That distinction divides up the reasonably clear category of all official acts into acts that can be prosecuted and those that cannot. The Court's new distinction, which has no real basis in the underlying statute, is far more vague than the category of "official acts" as a whole. The Court's new definition raises more questions than it answers, comparable to asking, How much yardage is "small yardage? Should short yardage touchdowns count?

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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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