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Supreme Court Legalizes Influence Peddling: McDonnell v. United States

By       Message Rob Hager     Permalink
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The Roberts' Court has mostly completed its decimation of any anti-corruption law that might have caused more than the slightest inconvenience for the plutocracy's political investments. Therefore the Court has now picked up its judicial supremacy ax to perform a similar demolition of laws that regulate the influence peddling side of the corruption equation. In one of the three final opinions of its 2015-16 term, the Supreme Court turned its attention to protecting the influence peddlers -- those who are installed by, and otherwise benefit from, the now freely flowing plutocratic investments -- from prosecution for delivery of their peddled policies in exchange.

The Supreme Court's line of cases culminating in McCutcheon v. FEC (2014) granted plutocrats a First Amendment right to buy influence with money paid under the guise of campaign finance. The Supreme Court's bizarre interpretation that "freedom of speech" is the equivalent of freedom to make political pay-offs denied government the power to restrict special interest money from reaching politician's pockets from the various channels through which campaign financing flows. This created the systemic conflicts of interest that define the current era. The Court's decisions did not go so far as to legalize the delivery of policy under the influence of those conflicts.

Chief Justice Roberts signaled a coming change when he wrote in McCutcheon that since "[i]ngratiation and access" bought in this manner "are not corruption.... [t]hey embody a central feature of democracy." Laws cannot stop the creation of such conflicts in Roberts' vision of marketplace democracy operated by and for plutocrats.

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Bribery and Undue Influence

The Supreme Court justifies its project of eliminating legal restraints on the sources of campaign finance corruption that flows to politicians on the grounds that the Court allows the corrupting effects to be prevented by prosecution of the targeted recipients of the money for commission of bribery, which the Court calls quid pro quo corruption. The Latin term lends legalistic gravitas to the Court's otherwise unsupported distinction between the individual and transactional character of legal bribery on the one side and the systemic character of most contemporary conflict of interest -- or undue influence -- corruption that the Supreme Court has created and perpetuated on the other side. The Court contends that only the relatively narrow category of quid pro quo transactions -- i.e., bribery -- can be addressed by prosecution of both sides of the transaction.

The Court's fatuous argument that there is some valid constitutional reason to enforce laws against bribery but not against systemic corruption ignores the vast difference between the remedies appropriate to address individual acts of corruption and those remedies required to treat systemic corruption, that is, a system which operates upon the normalized purchase of conflicted interests.

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Bribery involves a direct two-way knowing transaction, easily concealed, or disguised as unknowing, and therefore very difficult to prosecute. The more amorphous kind of systemic influence peddling involves unspoken networks of exchange that require an entirely different set of remedies. The only effective remedies for systemic corruption are themselves systemic. The Court has mostly outlawed such remedies that operate upon the source of money, or plutocrat, side of the transaction.

The classic form of systemic corruption routes the flow of money through various intermediary organizations such as SuperPACs, many of which can now keep their money dark due to both the inactivity and help of President Obama. Meanwhile the corresponding demand for policy sought in exchange for the money is routed separately through lobbyists, leaving the essential indicia of a quid pro quo relationship only implicit, and therefore less capable of supporting a bribery charge. If the demands of the lobbyists are not favorably received, the money flow changes direction without the need of communication that could be interpreted by a jury as quid pro quo agreement.

Because only amateurs, or professionals who get sloppy due to expected non-enforcement, tend to get caught up in bribery prosecutions, the Court is grossly wrong in claiming that enforcement of bribery laws, which only work occasionally on individuals, commonly the most amateurish participants in the plutocracy, can be a solution for systemic forms of corruption. Professionals employ systemic processes that do not rely on the express agreement element of the crime of bribery, or alternatively they use organizational intermediaries capable of skillfully suppressing evidence of express agreement where systemic processes will not suffice. The onus for systemic prevention of corruption must fall upon preventing the deliveries of policy by politicians wherever their conflicts of interest can be identified.

Bribery laws enforced against the sellers of influence, like conflict of interest prohibitions which also operate on this demand side of the influence peddling equation, generally require politicians to recuse themselves from taking official action on behalf of special interests who have conferred known benefits on the politician. These kinds of laws which regulate what the recipients of special interest benefits may do in return for their supplies of campaign finance have been held not to implicate the First Amendment. For example, in Nevada Commission on Ethics v. Carrigan (2011) the Court held unanimously that legislative voting is nonsymbolic conduct, and therefore is not First Amendment speech subject to Supreme Court oversight. This principle could be generalized to cover all official acts involved in the conduct of government. Cf. Garcetti v. Ceballos , 547 U.S. 410 ( 2006 )(5-4)("public employees ... statements pursuant to their official duties ... are not speaking as citizens....and the Constitution does not insulate their communications" from legal restraints.)

Ever since the Supreme Court first entered the field of corrupting the fundamental basis of representative government in Buckley v Valeo (1976), it has relied mainly on its shell-game First Amendment logic to support its long line of pro-corruption decisions. Conflict of interest rules free of First Amendment scrutiny can thus be freely applied to require recusal by officials from engaging in conflicted legislative acts, and other conduct of official duties, on behalf of special interests. Pro-corruption judges cannot interfere with these rules. Under the same reasoning, bribery laws that punish officials who agree to deliver official acts in return for such favors from special interests would similarly not involve First Amendment judicial scrutiny.

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It has been the corrupt Congress and state legislatures, not the corrupting Court, that have been responsible all these years since Buckley for the failure to enforce traditional conflict of interest prohibitions against the increasing levels of legalized campaign finance corruption of politicians. For example, all otherwise lawful campaign contributions are expressly permitted by Senate Rule 35.1(c)(2), which in turn exempts them from the Senate's conflict of interest recusal Rule 37.

The normalized diversion of Senators' delegated public powers to the service of their financial benefactors' private interests and against the public interests of the electorate can be prohibited by an internal legislative rule change, or legislation. While the Supreme Court has given the plutocratic benefactors nearly absolute First Amendment protection from any laws effectively prohibiting their supply of political investments, it is the politicians who have given themselves a free pass to deliver the influence they peddle in return for those investments. If the latter deliveries of policy were prevented by robust enforcement of disclosure and conflict of interest recusal rules, with the backup threat of bribery prosecutions in cases where an evidence trail of express exchange exists, plutocratic payments for undelivered purchases of policy would dry up.

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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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