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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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Chief Justice Roberts was able to imagine bribery law being used by some prosecutors to criminalize what he considered "[t]he basic compact underlying representative government [which] assumes that public officials will hear from their constituents and act appropriately on their concerns." Roberts does not share the framers view, as reflected in Burroughs that corruption is the most serious threat to representative government, short of violence. Instead unless Roberts proceeds to redefine the meaning of "official act" to legalize some kinds of corruption, his argument goes, he fears that "commonplace requests for assistance, and citizens with legitimate concerns might shrink from participating in democratic discourse. This concern is substantial" (emphasis added).

Unfortunately, Roberts makes no rational connection between this "substantial" concern, expressed in terms of First Amendment values, and the particular corrupt official acts he chose to immunize from bribery prosecutions. Roberts' favored "citizens with legitimate concerns" and "commonplace requests" might as easily seek specific administrative rulings or delivery of a particular subsidy (i.e., touchdowns) that fall on the bribery side of Roberts' new boundary as it might involve a strategic introduction or influential meeting (i.e., small yardage) which he has placed on the exempt side of that line. Roberts' favored solution, immunizing some kinds of bribery, does not match the problem he has conjured up, that bribery laws might abridge "democratic discourse."

In the absence of further interpretation, which Roberts completely fails to provide, this argument upon a moment's reflection reveals itself to be not just an irrational response to the problem he identifies, but utter nonsense in any event, even if there were a rational relationship between the identified problem and the solution Roberts decreed.

A casual reader might easily suppose that Roberts intended these noble phrases to refer to actual speech, high-minded "democratic discourse" between constituents and politicians. But that would be absurd since no actual speech or discourse of any kind, without more, could in any way trigger a bribery prosecution. McDonnell was obviously not prosecuted for merely hearing from his constituent or "participating in democratic discourse." Speech does not bribe; money does. These innocuous-sounding references to "democratic discourse" therefore do not refer to speech that conveys meaning, but rather money, or other things of value, that conveys influence, and which the Supreme Court has converted into "speech" by judicial alchemy in Buckley and its progeny.

Roberts strangely never mentions the necessary premise that would rescue his argument from absurdity by expressly citing Buckley v. Valeo (1976) or any of its "money is speech" progeny. These cases are all premised upon the shell-game logic that money invested in influence peddling, since it is presumed to be ultimately spent down the line on promoting paid political propaganda, is therefore alchemically converted into First Amendment protected speech, i.e. Roberts' "democratic discourse."

There is no other area of law except political corruption where a criminal statute is constitutionally overturned and the criminal conduct legalized on the basis of how the proceeds of the crime are ultimately spent. For this reason Roberts has generally tended to retreat from revisiting this Robin Hood defense created by the original Buckley shell-game logic for his re-application of the doctrine to each of the Court's nearly annual pro-corruption decisions that do depend upon Buckley as precedent.

In McDonnell Roberts goes even further. McDonnell's boodle in the form of "Ferraris, Rolexes, and ball gowns" could hardly be converted into "speech" by Roberts without expanding Buckley to new heights of absurdity by even more facile shell-game legerdemain. He therefore leaves the First Amendment entirely unmentioned, only vaguely invoked, lurking in the shadows of his opinion. Buckley' s perversion of the First Amendment hangs like an apparition over Roberts' opinion by his mention of the interest of constituents' "in democratic discourse" or of politicians' in "hear[ing] from their constituents" as unacknowledged euphemisms for buying and selling of influence.

The alchemy process of changing money into speech that is strangely never mentioned in McDonnell, must be tacitly understood by the reader to make any sense of Roberts' otherwise absurd concern about those "participating in democratic discourse" who might somehow get unwittingly caught up in a bribery prosecution. Roberts actually means -- without citing to the source of the Court's alchemy powers that are deployed to alter the meaning of these words -- those "participating in buying influence." More precisely Roberts is concerned in McDonnell with protecting not what "public officials will hear from their constituents" but what "public officials will [receive of pecuniary value] from their" sponsoring plutocrats, like specifically McDonnell did from his special interest benefactor who bought and obtained his official influence.

As Roberts starts out on this whole new line of pro-corruption jurisprudence intended to undermine the deterrent effect of bribery prosecutions and conflict of interest rules upon the behavior of politicians, why does he neglect mentioning Buckley or even the First Amendment? The briefs argued the issue at length, and the Government described the issue as "fundamental." Tr. 41-42. Does Roberts find the Court's "money is speech" cases too discredited and flimsy a prop to even mention and therefore he seeks to introduce them only surreptitiously, even though they provide the very bedrock justification for the Court's decision? Whatever his motive for this bizarre indirection, it is highly peculiar.

Another indication that the trappings of the First Amendment tacitly underlie the McDonnell ruling is Roberts' implicit application of the First Amendment "overbreadth doctrine." An essential element of the Court's ruling is that the jury instructions based on the precise text of the law itself did not include reference to the Court's novel distortion of the text to exempt some official acts. In Roberts' opinion this left the instructions and the unadorned law "significantly overinclusive." Given the tacit First Amendment basis for Roberts' legalization of these corrupt official acts, the echo of the overbreadth doctrine can be detected in his term "overinclusive."

The "chilling-effect" justification -- the "dynamo" (see 83 Harvard L. Rev. 844, 846) -- for the overbreadth doctrine holds that the Court may act to protect some hypothetical speaker who is not in court but who might otherwise be deterred from speaking if the Court does not immediately rewrite the law involved in the case before it, so as to exclude that other hypothetical speech from regulation. This doctrine allowing rulings on matters not in court only applies to First Amendment cases.

Roberts fears that some other political investors, unlike McDonnell's briber, "might shrink from participating" with some other influence peddler if the Court does not reduce the scope of federal bribery law in this case. In making this "shrink from" argument Roberts is alluding to the "chilling effect" of laws that are overinclusive (i.e. overbroad) in their affect on "discourse" (i.e. on political investments). He also quotes the brief submitted by former government officials who directly argued that anti-corruption prosecutions could "chill federal officials' interactions with the people," by which they meant "with the plutocrats." Very few of the "people" give enough money to politicians to even arguably buy special policy favors and access from which they might be "chilled."

But again, Roberts avoids expressly invoking the First Amendment doctrine by name, or even by citing to cases like Citizens United (2010) which had applied the doctrine to overturn what it called the " substantial, nation-wide chilling effect caused by ... prohibitions on corporate expenditures" (emphasis added). Since that specific application of the overbreadth doctrine had recently been definitively rejected in a devastating book-length critique of the Court's " pervasively confused" legal incompetence by Yale Dean, and First Amendment scholar, Robert Post, C itizens Divided: Campaign FinanceReform and the Constitution (2014) 73-76 & n.146, Roberts may have hesitated to flaunt continued ignorance of the subject by recycling the doctrine directly, by name, in McDonnell. Being Roberts, he did so surreptitiously. Maybe the nearly universal disdain for the Court's jurisprudence that goes under the slogan "Citizens United" has gotten through to Roberts?

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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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