Corruption Comes in Many Flavors

One of the elements of the recent McCutcheon decision that has had many lawyers shaking their heads is the majority’s airy dismissal of concerns about the many ways dollars corrupt the system.

The majority limited the definition of corruption to the receipt of a quid pro quo.

Now, obviously, the exchange of money for a legislator’s vote is a corrupt act. It is also illegal. The majority seems to believe that only such blatant and illegal acts–outright bribes–are unethical.

If that cramped understanding of the ethical obligations of citizens and public servants carries the day, it won’t take long until we inhabit a society that has lost whatever is left of its moral center.

Let’s look at a couple of examples that are currently playing locally.

State Representative Eric Turner is currently being investigated for working feverishly behind the scenes to derail a law that would have hurt his son’s nursing home business. (According to the Indianapolis Star last Sunday, Turner also had significant personal investments that would have been negatively affected by the legislation.) If the allegations are proven, Turner is probably guilty of breaking a law, although that isn’t entirely clear–but even if his behavior didn’t actually violate a statute, is there any doubt that such actions were unethical?

Then there’s the smoke alarm ordinance that I blogged about awhile back. Counselor Scales (who seems to be the only City-County Counselor at all concerned about the fact that it would hand one vendor a probable monopoly) asked for and received an opinion from legal counsel. She was told that an offer–a quid pro quo, actually–that didn’t enrich anyone personally isn’t a violation of the City’s ethics ordinance.

If you’ll recall, the ordinance would require property owners to purchase smoke alarms with non-removable, non-replaceable “sealed” batteries with a ten-year life.  The company that manufactures those alarms, and would benefit from the requirement, promised IFD “free smoke detectors, payment for TV and radio public-service announcements, press events and donations to IFD-favored charities” in exchange for IFD’s support for the ordinance.

No firefighter was bribed, but the department would certainly benefit from the “generosity” of the vendor–and needless to say, the vendor would benefit financially from passage of that ordinance. IFD didn’t solicit “bids” and didn’t give other smoke alarm companies an opportunity to match the “gifts.” That said, no law was broken. The Ethics ordinance wasn’t violated.

The McCutcheon majority would dismiss these–and countless similar examples–as mere persuasion. Free speech. The prerogative of those who are engaged in commerce.

The fact that such behaviors take place behind closed doors is a pretty good indication that the people involved know that such activities–legal or not–aren’t kosher. Legal doesn’t equal ethical, no matter how disconnected from reality the Court’s majority remains.

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What’s the Threshold for Embarrassing?

When Todd Rokita was Secretary of State, he was the person primarily responsible for Indiana’s effort to disenfranchise poor and minority voters by requiring photo IDs.

He piously assured Hoosiers that this effort was prompted by his concerns over rampant “vote fraud.”

Of course, research has conclusively shown that instances of in-person vote fraud are virtually non-existent; they constitute an infinitesimal percentage of votes cast, and most of those cases occur as part of absentee voting, not in-person casting of a ballot.

Now that he is a U.S. Representative,  Rokita has emerged as a climate-change denier. (Why am I not surprised? Clearly, facts and empirical evidence are irrelevant to  him.)

So–Rokita sees things that aren’t there (vote fraud) and doesn’t see things that are there (climate change). I think it’s time for an intervention–starting with a removal from public office, where delusional people can do real damage.

The Hoosier state has far too many embarrassments posing as elected officials. We really need to thin the herd.

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And Furthermore….

The McCutcheon decision, with its political privileging of the very wealthy, should focus our attention on the realities of the American economic landscape.

Thomas Piketty’s new book–which has been hailed as an “instant economic classic”– does just that. In Capital in the Twenty-First Century, Piketty asks whether we can stop the relentless accumulation of wealth by the richest few, and if so, how.

As Eduard Porter summarized Piketty’s core message in the Times, “the economic forces concentrating more and more wealth in the hands of the fortunate few are almost sure to prevail for a very long time.” Piketty says that as the return to capital exceeds economic growth, an ever larger share of national income goes to the owners of capital, the managers of capital and to their heirs, and he warns that economics cannot reverse this. Policy–political action–will be required.

Unfortunately, in the wake of Citizens United and McCutcheon, the wealthy–who already had far more political clout than the rest of us–seem likely to continue calling the policy shots.

In a thoughtful essay in The Nation, Ari Berman explains why policy change will be so difficult: the Court has made it easier for the wealthy to influence elections at the same time it has made it harder for poor folks to vote.

These are not unrelated issues—the same people, like the Koch brothers, who favor unlimited secret money in US elections are the ones funding the effort to make it harder for people to vote. The net effect is an attempt to concentrate the power of the top 1 percent in the political process and to drown out the voices and votes of everyone else.

Berman calculates that 322,000 average Americans would have to give an equivalent share of their net worth to match Sheldon Adelson’s $91.8 million in Super Pac contributions. And he points out that, since Shelby County  (the voting rights case), eight states that had been covered under Section 4 of the Voting Rights Act have passed or implemented new voting restrictions (Alabama, Arizona, Florida, Mississippi, Texas, Virginia, South Carolina, and North Carolina), and other states have been encouraged to follow suit.

According to the New York Times, “nine states [under GOP control] have passed measures making it harder to vote since the beginning of 2013.”

So–more ways for the “haves” to “express themselves.” Fewer avenues for participation or influence by the rest of us.

Can we spell oligarchy?

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Free Speech and Democratic Institutions

David Schultz is an election law expert who teaches at Hamline University and the University of Minnesota law school. (He and I also co-authored my last book, a Law and Policy textbook.) When the Court handed down the McCutcheon decision, he took to his own blog to analyze it. 

On one level the Supreme Court yet again issued a decision in which it examined one issue about American politics and elections–the role of money or the right of individuals to make political contributions–without adequately considering the broader impact of that decision on the actual performance of American democracy.  The Court treats in isolation one aspect of our political democracy–the right of an individual to spend money–without considering other competing values and how they come together to form a more complete theory about government, politics, and elections.  Yes individuals may have a right to expend for political purposes, and such an act may further an important value of free speech, but that is not the only act and value that must be furthered or considered in a democracy.

Democratic theorists such as Robert Dahl point out that a theory of democracy includes several values, such as voting equality, effective participation, enlightened understanding, control of the agenda, and inclusion.  For each of these values there is a need to construct institutions that  help sustain them or give them meaning.   Effective participation includes institutions that create for example free and fair elections, opportunities for non-electoral participation, and competitive parties. However, none of these values operates in isolation; a real concept of democracy requires that one understand how they interact, coming together to form a fuller theory of American Democracy.

Someone once said that the problem with the contemporary Supreme Court is that none of the Justices ever held elective office–that we’d be better served if one of these brilliant jurists had ever had to run for county sheriff.

It may be time to sign on to the effort to amend the constitution.

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Sold!

The sale of American democratic institutions hasn’t exactly been a market transaction. After all, in order for a market to operate, you need a willing buyer and a willing seller, both of whom are in possession of all relevant information.

Instead, we have the House of Representatives, controlled by Republicans who owe their current majority to gerrymandering and voter suppression, preparing to endorse Paul Ryan’s most recent budget. Not only are the American people not willing buyers, those “selling” this travesty are doing their level best to ensure that we have only the haziest notion of what it would really do.

As a fiscally-savvy friend of mine–a REPUBLICAN–posted to Facebook

The Ryan Plan in the House GOP’s own words: “Promotes saving by eliminating taxes on interest, capital gains, and dividends; also eliminates the death tax. “

In short, the Kochs and the Waltons, two families each at over $100 billion net worth, each worth more than 40% of Americans combined, would likely receive $2-3 billion a year in passive dividend income tax-free, used to buy back more shares from the public and into their own hands to earn more dividends, all compounding and passed on as ever more massive estates to their heirs, who also would received billions a year on income and never pay taxes. Meanwhile, you and I would be paying taxes on our earned income to provide these families with the secure and educated society on which the preservation and growth of their fortunes depend. The end of American capitalism and civil society as we know it. Outrageous. Abominable. Grotesque. Indefensible.

I stole his description because he said it better than I could.

The only thing standing between the 99% and this abomination is a Democratic-controlled Senate–and Nate Silver tells us the GOP has a 60% chance of retaking the Senate in November.

The fact that Federal lawmakers are falling over each other to do the bidding of the wealthy can be explained by lobbying and campaign contributions. What is inexplicable is why the Supreme Court–whose members are insulated from such pressures (and apparently from reality as well)–would further open the floodgates and invite the plutocrats to buy America.

The decision in McCutcheon was about “speech” only in the sense that money talks. More about that tomorrow.

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