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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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With his alleged "precedent" argument quickly disintegrating upon any cursory inspection of the cases, and his interpretation of "text" argument descending from turgidly unconvincing exegesis ultimately into rank nonsense, Roberts next throws into this logical stew the argument that an "expansive interpretation of 'official act' would raise significant constitutional concerns." What specific part of the Constitution would be significant is not made entirely clear by Roberts. But blaming corruption on the Constitution provides useful justification for the Court's refusal to enforce the intent of Congress as the Court's proper touchstone for statutory interpretation. Invoking the Constitution enables the Court to instead substitute its own belabored, complex and uncertain definition of "official acts" for the straightforward meaning of Congress, which Congress might reassert as its intended meaning.

Under this heading, the Court first implies that including all acts that fall within a politician's official capacity as services prohibited from sale to special interests could violate the Constitution's due process clause. There is a valid doctrine that text adopted by legislators in the form of law can nevertheless be so vague in its meaning as to lose the capacity of being enforced as actual law by the judiciary. E.g. Johnson v. United States , 576 U. S. ___ ( 2015 ). The Court routinely fails to apply this sound principle to its own supremacist decisions, instead treating its far-fetched interpretations of the First Amendment nowhere found in its three word text "freedom of speech," for example, as if that text were clear enough to make law out of such bizarre and historically unsupported propositions as that "money is speech." But there is nothing in Roberts' opinion to support the idea that the traditional concept of acts taken within one's "official capacity" has ever been considered vague, or is even any more vague than the new test the Court has created in its stead which it does find to pass the "void for vagueness" test.

Roberts' newly discovered and idiosyncratic boundary between good and bad bribery is entirely without coherent definition in comparison with the well-established and often-applied line between official and private conduct. Moreover Congress can easily overcome this objection of Roberts by amendment of the law to, as clearly as possible, and in no uncertain terms, re-state that all official acts of any kind are included within the meaning of "official acts," and then also provide as explicit examples those acts that Roberts excluded to remove any possible notion of vagueness. Congress has a tradition in such cases to name the legislation after the decision being overturned -- so it could be called "The McDonnell Anti-corruption Amendment Act." Accordingly, the Court does not rest entirely on the "due process" strand of its constitutional argument.

Next the Court suggests the possibility of some "significant federalism concerns" involved with prosecution of state officials for bribery, citing in support the barest allusion to this concept in a case involving the definition of the term "defraud." In the cited case the Court had briefly suggested, in a single makeweight phrase, without support of further discussion or citation, its rejection of an interpretation for several reasons including that it "involves the Federal Government in setting standards of disclosure and good government for local and state officials" solely by means of definition of the single term "defraud." (Another cited case involved labor relations, not "good government." It also specified that it needed clearer instructions from Congress before adopting the rejected meaning of a federal law.)

The comprehensive and persuasive dissent of Justice Stevens in that case did not even take notice of this "federalism" comment, but instead showed that the meaning of "fraud" had been elaborated through abundant precedent. However Stevens did conclude with a telling observation equally applicable to McDonnell by questioning why "a Court that has not been particularly receptive to the rights of criminal defendants in recent years has acted so dramatically to protect the elite class of powerful individuals who will benefit from this decision," a decision that strains to exempt from prosecution one obvious form of political corruption otherwise covered by law and precedent. This criticism suggests a more systemic defect associated with allowing unelected judges who are themselves selected from the elite elements of the political class to make anti-corruption law for their peers, as they see fit.

Roberts' reference to this fraud case also omitted the fact that its narrowing pro-corruption interpretation of federal law was quickly overturned by Congress' enactment of the honest services statute involved in McDonnell. This confirmed that under this "federalism concern" the Court had only sought clearer expression of Congress' intention. Whether Congress can take similar action to overturn McDonnell's deliberately narrowing pro-corruption interpretation of "official acts" to similarly protect a fellow member of the elite political class will be a measure of how more corrupt Congress has become in 2016 than it was nearly three decades ago when it took about a year and a half to reverse a baseless Supreme Court pro-corruption interpretation comparable to McDonnell's interpretation. Overturning McDonnell, by enacting a law to "expand the definition of 'official act' to include any conduct that falls within the range of official duty of a public official," would not only be easily accomplished by legislators of any integrity, it would also fall within their constitutional power, if not their constitutional duty, to do so.

Article IV, Sec. 4 of the Constitution provides that Congress "shall guarantee to every State in this Union a Republican Form of Government" (emphasis added). This duty is exercised free of any judicial second-guessing. Luther v Borden (1849). The Court's allusion to federalism is thus no answer to Congress' exercise of its clear and unrestrained constitutional authority to prevent the corruption of a state's republican government. As held in Burroughs, 290 U. S. at 54 5-47 (1934) since "open violence and insidious corruption" are the "two great natural and historical enemies of all republics" then "the free use of money in elections ... presents equal cause for anxiety" about republican government as does the "danger from lawless violence."

Offering vague and unarticulated "federalism concerns" by the Supreme Court cannot prevent Congress from performing its Article IV duty. It is an essential element of American federalism that the central government is responsible for preventing the entrenchment of corruption in state government that might undermine its democratic (i.e., republican) character. However, because the Court used this invalid "federalism" argument to bolster its weak constitutional arguments, its decision is open to be distinguished on this ground whenever the prosecution in question is for federal corruption to which such a "federalism" argument would be irrelevant.

In any event, both of these "constitutional" suggestions are little more than ill-considered and negligibly reasoned asides lacking any coherent basis in precedent or reason. Both can easily be overcome by statutory amendment. They are typical examples of John Roberts deception. In this, as in many others of his decisions, readers can agree with then Senate Majority Leader Harry Reid who would complain: " Roberts didn't tell us the truth " at his confirmation hearing any more than he does in his opinions.

Apparitional Free Speech

Under this same heading of alleged constitutional concerns, Roberts makes what is, in effect, an argument, though a deceptive one, under the plutocrat's best friend, especially when wielded by John Roberts. This is the New First Amendment, where plutocratic money is converted into speech by judicial decree. His powers of deception are on full display here.

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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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