Roberts has established a pattern of planting novel concepts in his decisions from which he might start to reinvent, for example, First Amendment doctrine for this new specialized purpose of legalizing bribery and conflicts of interest. Current First Amendment law contradicts his McDonnell ruling. But since he acquired a unanimous decision as fertile soil for such a deceptive project, Roberts can cultivate the seeds he cleverly planted in McDonnell with a new legal vocabulary until they take bloom as new First Amendment doctrine in future pro-corruption opinions he may write.
So as not to raise suspicion from the Court's consenting liberals, it is only the apparition of the First Amendment that Roberts conjures as his principal justification for excepting from corruption prosecutions his vaguely defined "more constrained interpretation" that creates a category of newly exempt, but nevertheless still self-enriching "official acts."
Especially disturbing about Roberts' conjuring of First Amendment principles for this purpose is that the corrupt payments made to Governor McDonnell were not made in the form of campaign contributions, but rather as personal pay-offs, both in cash and kind. This suggests that the Court is prepared to apply its First Amendment analysis beyond the facade of campaign contributions, to which First Amendment protection of corruption has been solely applied since Buckley. The new pro-corruption doctrine would encompass any form of corrupt payments whatsoever -- such as those the Clintons take-in from their Wall Street "speech-making" racket which is orders of magnitude greater than the receipts from McDonnell's small time graft.
The new shell game argument would be different than Buckley's. It would posit that in the new systemically corrupt politics created by Buckley those constituents who have access to ask for favors would naturally have also greased the wheels with money of some kind. Therefore politicians' conflicts of interest and short-yardage bribery have become such a normal part of politics that laws against such conduct interfere with the normalized corruption of political life. This can be generally characterized, for purpose of justifying judicial interference to make it thus, as First Amendment activity, the "democratic discourse" concept that McDonnell introduces to constitutional corruption jurisprudence. As the New Yorker's Amy Dickinson aptly characterizes it, the "contentedly cynical" justices' argument is thus "an acknowledgement that if trading cash, favors, or expensive experiences for recognized crony status is a crime, then a lot of [politicians] are guilty.... The Court, in Citizens United and now in McDonnell, has looked upon the worst, most endemically corrupt aspects of American politics and enshrined them."
Judicial Supremacy
To be sure, McDonnell was not formally a First Amendment decision. When used outside of the First Amendment context, the overbreadth (or Roberts' "overinclusive") doctrine violates the Constitution's express grant of jurisdiction to the Court. The First Amendment earns exemption from the normal constitutional constraints on the Supreme Court's jurisdiction because of its supposed paramount importance for the support of democratic government. One of the many perversities of the "money is speech" formula is that it reverses this purpose of the overbreadth exception by turning it into an effective weapon for facilitating the plutocratic overthrow of democracy, rather than its proper functioning. This is how the overbreadth weapon was applied in McDonnell, Citizens United, Arizona Free Enterprise Club and other cases where the supposed wronged party was not real but rather imagined by the Roberts Court as an excuse for judicial legislation.
In all other cases not involving the First Amendment the Constitution's fundamentally limited grant of jurisdiction only for "cases or controversies" prevents the Supreme Court from issuing advisory opinions for the purpose of redrafting laws based on hypothetical cases. The Court can only exercise judicial review in a case to which the offensive part of the law would otherwise apply, if the Court were not to exercise its powers to prevent that application on constitutional grounds. This is the original excuse for all valid judicial review of legislation as described in the seminal Marbury v Madison case.
The Court's failure to restrict its decisions only to the cases actually before it, and instead reaching out to decide hypothetical cases of its own invention, usurps the legislature's job of drafting laws, and is an illegal act of judicial supremacy. Warning that, like the elected branches of government, "the judicial department ... may exercise or sanction dangerous powers beyond the grant of the Constitution," James Madison insisted that violations of the separation of powers, specifically, "may justly be pronounced the very definition of tyranny." (The Federalist, No.47). Madison was not far off from describing the net effect of the Supreme Court's pro-corruption agenda for converting the country to a plutocratic form of government, which has been achieved by its serial violation of the separation of powers.
McDonnell is one of the more blatantly overt violations of the fundamental separation of powers doctrine that prohibits the Court from giving advisory opinions on hypothetical cases. The Court did not contend that Robert McDonnell's own behavior should be immunized by its decision. On the contrary, Roberts recited the facts that Governor McDonnell accepted from a highly interested donor -- a local plutocrat with a clearly communicated special interest agenda involving nutritional supplements -- "over $175,000 in gifts and loans," including such luxury goods as a Rolex watch and "$20,000 worth of designer clothing," rounds of golf, a wedding present, a weekend trip, use of a Ferrari, and "transportation on his private airplane to assist with McDonnell's election campaign."
Justice Roberts therefore expressly hesitates to "suggest that the facts of this case typify normal political interaction between public officials and their constituents. Far from it. But the Government's legal interpretation is not confined to cases involving extravagant gifts or large sums of money." In other words, no rational plutocrat would give such amounts without expectation of equivalent or greater value in policy, but Roberts can imagine some lower level of compensation that would not raise such a compelling inference of bribery. He therefore concocts such a case based on the Government's "legal interpretation" which it becomes his duty to confine by improvised constitutional doctrine.
But the Constitution does not require the Government's "legal interpretation" -- however that might even be communicated -- to be so confined. It is the Government's actual prosecution which generates a "case" that may be confined by constitutional limits. The Constitution give the Supreme Court no power to police such an Executive Branch "legal interpretation" in the abstract unless it is eventually presented by the Government to determine the outcome of an actual "case." In another case, some day, the Government may prosecute bribery allegations according to its supposedly less confined "legal interpretation." In such a case the Government's "legal interpretation" can be subjected to valid judicial review at that time. But by fundamental principles of constitutional separation of powers the Court must confine itself to the abnormal facts of McDonnell when adjudicating McDonnell, the case before it which unquestionably did involve "extravagant gifts [and] large sums of money" as distinct from Roberts' imaginary cases which do not.
Of course, confining himself to the Court's legitimate constitutional powers would prevent Roberts from giving his fellow Republican McDonnell a second chance to beat his corruption rap, and more importantly also prevent Roberts from executing a legislative rewrite of anti-corruption law in order to allow many other politicians to enrich themselves by indulging in sales of public policy to plutocrats with impunity. Roberts needs to pretend, for polemic purposes, that his newly conferred impunity relates in some way to a case where the quid is less flagrantly offensive. But since, as explained above, Roberts' new rule actually has no bearing at all on the quid side of the equation, but rather the quo, this is simply more of his typically deceitful argument.
Roberts further flaunts his constitutionally illegitimate intentions: "There is no doubt that this case is distasteful; it may be worse than that. But our concern is not with tawdry tales of Ferraris, Rolexes, and ball gowns. It is instead with the broader legal implications of the Government's boundless interpretation of the federal bribery statute." Roberts does not claim here that the federal bribery statutes should not apply to the influence peddling actually presented in the McDonnell case before it. Roberts is unconcerned with the case before him over which he properly has jurisdiction. Rather, as an unconstitutional roving law-revision commission in search of "implications." He is concerned that there might be some other hypothetical cases over which he does not have jurisdiction, but which he can imagine the statute should not cover, as an excuse for rewriting it to make all bribery prosecutions more difficult.
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