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Draft Conflict of Interest Recusal Law - the most easily adopted among the effective solutions to political corruption

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Message Rob Hager


Corrupt politicians cannot be expected to draft a law that would shut down their common business model of systemic political corruption. The product of any such attempt would be riddled with opaque loopholes. Instead, they use their offices and allies to divert fed-up constituents to ineffective reforms that waste political energy for futile, piecemeal , and often counterproductive ends.

After forty years , it could not be any more clear that even the best of politicians in this corrupt system need help from the public in formulating effective strategy, which would include among other initiatives , drafting of an effective conflict of interest law that recognizes campaign financing as the leading contemporary means for creating conflicts.

Legal text, like the Constitution of the United States itself, when not written to deliberately confuse, can serve as a political document. The following draft law is published here for both public discussion and to demonstrate a fairly simple and intuitively sensible approach to contain political corruption which politicians in state and federal legislative bodies have avoided for the past forty years since Buckley v Valeo (1976) first opened the spigots for an ever-increasing supply of legalized bribes to elected officials.

These officials probably fear the very mention of such a law. They hope to blame their own appalling ethics on the Constitution by advocating futile amendments. Although the Supreme Court's perversion of constitutional text for plutocratic ends bears a large share of culpability for the corrupt system, the systemic ethical breaches of politicians happen to be their own responsibility, not the Court's. The judicial supremacist Court may be able to force lackluster politicians to accept the system of legalized bribery that five judges have built out of the words "the freedom of speech." But the Supreme Court cannot force Congress to allow its members to provide the political services that those bribes were intended to buy.

Once it becomes illegal to actually deliver the influence that politicians peddle, the market for influence peddling itself, and Court-legalized special interest money that drives it, will disappear from politics, not because it is illegal again, but because it would be useless for its intended purpose of buying influence.

The Supreme Court by constitutionalizing corruption under its surreal principle that "money is speech," has prohibited any effective effort to block or neutralize the supply of money to elected influence peddlers. Five plutocratic justices on the Court have constructed a complex legal sieve through which vast amounts of special interest money can easily flow. Now that there are only four of them, the opportunity for a new swing justice who will commit to throwing the "money is speech" doctrine into the garbage where it belongs is of essential importance. But after forty years of entrenching corruption throughout all levels of government, reversal of the Supreme Court, although necessary, will no longer be sufficient as it might have been even a few years ago. A dramatic reversal in the US Supreme Court membership will still leave behind a thoroughly corrupt Congress which, along with Obama , has since McCutcheon (2014) largely taken over the Courts' previous job of making the corrupt system even more corrupt.

The draft law presented below for public discussion seeks to focus on effectively ending the systemic plutocratic corruption of state and federal politics by strengthening the traditional rules regulating the demand side of the corruption equation. This proposal avoids for now -- rather than attempting to change -- the US Supreme Court's bizarre theories about the supply of money in politics being the equivalent of speech, rather than the cause of systemic corruption.

Conflict of interest recusal rules, or laws, that have existed since the founding of the republic, by addressing the demand side of the corruption equation rather than the supply side, fall entirely outside the ambit of even the Supreme Court's wildest re-interpretations of the First Amendment to serve plutocratic ends. By operating only upon the unethical conduct of the other separate branches, this demand-side approach also lies far across that wall for the separation of powers which the Constitution erected to keep the judiciary out of legislative matters.

Enforcement of conflict of interest rules does not depend upon subjective intentions or on the existence of witnesses to quid pro quo deals. The test for violating conflict of interest rules is whether a reasonable person would have perceived a conflict in performing honest services in the public interest after having received the money or other benefit from a special interest. Appearances count, not subjective excuses. This legal standard strips Hillary Clinton, for example, of her "anyone who knows me" exceptionalism, when the whole country knows that her speaking fees will corrupt her decision-making with respect to her Wall Street and corporate benefactors, just as it would any ordinary person in her situation. An overwhelming majority of Americans know that politicians are not given billions of dollars free from expectations of reciprocal favors worth far more.

Polls consistently show low public regard for formerly democratic institutions , understanding about the lack of consent of the governed for those now hollowed out institutions, disdain for the current system of money in politics that has rotted their core, majority disaffiliation from both corrupt ruling parties, and overwhelming dissatisfaction with the economic inequality that they have produced within a relatively short time. The public is aware that the whole corrupt system runs on conflicted interests. What is needed is a law that effectively imposes ethics obligations on the politicians who operate this corrupt system.

When adopted in the form of a rule, this proposal for more robust conflict of interest enforcement is also the easiest of all possible effective policy changes to introduce. This reform may be adopted by either house of Congress or of any state legislature. A rule change can be adopted separately by majority vote of either chamber of a bicameral legislature without further approval by the other chamber or by the executive branch.

This modest beginning has potential for leveraging further effective reform. One reformed chamber of a legislature can demand similar reform of other elements of government. For example, one chamber can exercise veto power for purposes of blocking corrupt appropriations , or shutting down any other part of the assembly line for corrupt policy deliveries to plutocrats.

Until the other chamber and the other branches clean up their act in a similar manner by adopting and enforcing similar recusal rules, one reformed chamber having the actual consent of the governed can shut down the corrupted parts of government that only have the consent of plutocrats. That design is a thoughtful gift from the framers of the Constitution.

Bernie Sanders' Senate office has been asked to consider introducing this pragmatic and progressive reform. Please contact his office (Attn: Lori Kearns, Esq .) to encourage him to introduce it. The US Senate's adoption of this rule can uniquely circumvent a filibuster and thereby strip plutocrats of their usual partisan polarization excuse for inaction.

A strengthened conflict of interest recusal rule, such as proposed below, could be adopted in the first hour of the 115th Congress after the Sanders landslide election creates a Democratic Senate majority. The cooperation of Joe Biden as lame-duck Senate President would be required to kick off this reform as the Senate's first order of business. Until he is sworn as president a couple weeks later, Sanders could likely still remain a Senator for the few minutes required for him to be recognized by Biden, just prior to Sanders' resignation from his Senate seat, in order to make a dramatic motion for Congress to obey the will of the people by enacting this reform which will be his administration's top legislative priority.

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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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