ethics – Sheila Kennedy

He’ll Have The Caviar…

One of the great benefits of this blog is the education I get from readers who share information with me–and a few days ago, I got a real eye-opener from a constituent of Indiana Representative Jim Banks.

I had heard of Congressional Leadership PACs, but I was unaware of what they are and how they differ from the SuperPacs and other anti-democratic entities organized following the Supreme Court’s decision in Citizens United v. FEC–a decision that vastly increased the role of money in politics.

It turns out that all PACs aren’t the same. Some put money into the politico’s campaign; others put it in his pocket.

According to the ethics group One Issue, Congressional Leadership PACs too often function as slush funds, allowing their beneficiaries to live a far more luxurious lifestyle than they could manage on a Congressperson’s salary.

I’d not previously heard of One Issue, a relatively new organization concerned with monitoring government ethics. It is described as the

leading crosspartisan political reform group in Washington, D.C. We unite Republicans, Democrats, and independents in the movement to fix our broken political system and build a democracy that works for everyone. We educate the public and work to pass legislation on Capitol Hill to increase transparency, strengthen ethics and accountability, reduce the corrosive influence of big money in politics, and bolster U.S. elections. Issue One’s ReFormers Caucus of more than 200 former members of Congress, governors, and Cabinet officials is the largest coalition of its kind ever assembled to advocate for political reform.

The report that was forwarded to me focused on the (mis)use of Leadership PACs/slush funds by current members of Congress. The PACs were established in 1978 as accounts that would be separate from the authorized campaign committees that candidates use to run for Congress. The money was intended for use by politicians wanting to assist political allies and like-minded candidates– vulnerable colleagues or candidates running in competitive House and Senate races. The FEC made it clear that leadership PAC funds weren’t to be used to pay for lawmakers’ own re-election campaign expenses.

Today, leadership PACs are not just used by those in leadership roles. Indeed, 92% of members of Congress have them. And while most members of Congress primarily use their leadership PACs to make political contributions, new research from Issue One and Campaign Legal Center shows that scores of lawmakers are not, in fact, using the bulk of the money they raise in their leadership PACs to assist other candidates, their parties, or other political groups.

Today, it turns out that many lawmakers don’t spend the money in these PACs to assist political allies or causes, as intended.

This report shines a light on the shocking reality that far too many politicians appear to be amassing money from special interests in their leadership PACs and then using that cash to enjoy perks of lavish living that are beyond the reach of most Americans — such as meals at fancy restaurants, trips to elite resorts, rounds of golf at premier courses, and more. While such spending is purportedly done for the purpose of political fundraising, this explanation rings hollow when just a fraction of the money raised goes toward political contributions. Instead, such spending patterns give the impression that some politicians are simply raising money at one posh location to pay for the next fundraiser at the next fancy destination — creating an endless fundraising cycle at luxurious restaurants and resorts, much of which is paid for by special interest money, with no cost to lawmakers’ own pocketbooks.

It turns out that leadership PACs are “underwriting lavish lifestyles for politicians.”

Issue One looked at the two-year period between January 0f 2019 and December of 2020, and focused on lawmakers who had spent inordinate amounts on tickets for sports events, dinners at expensive restaurants, country-club dues and similar “fundraising overhead.” The report meticulously listed what it had found for each Senator and Representative.

In Indiana, the report showed that Congressman Jim Banks had raised $4,287,776 from special interests for his “Leadership PAC” and that a mere 14% of his expenditures had gone for the ostensible political purposes of that PAC–far less than other Indiana lawmakers. (Even Mike Braun spent 79% of his slush fund on the activities for which such PACs were created, and other Indiana lawmakers exceeded Braun’s percentage.)

Nationally, that puts Banks among the top abusers of these slush funds.

Isn’t it interesting that politicians like Jim Banks who are single-mindedly focused on culture war issues–the pious pretenders who constantly point to their “Christian” values and attempt to impose their misogynistic views of “righteousness” on the rest of us–always seem to be the ones with their hands in various cookie-jars?

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Is Rokita Even Worth The Pixels?

What is so depressing about living in Indiana these days is the dismal quality of our state government.

I’ve frequently posted about what the late Harrison Ullmann accurately called “The World’s Worst Legislature,” a body currently waging war on Indianapolis and higher education, among other travesties.

I actually had some residue of respect for the governor, who I thought was an “old kind” of Republican caught in the vice of MAGA world, but that respect evaporated when he sent Indiana National Guard troops to the southern border to bolster Texas’ performative pissing match with the federal government.

The embarrassment that is our current legislature is largely attributable to the gerrymandering that allows lawmakers to choose their voters, but that excuse is unavailable when we consider statewide candidates like our Attorney General, Todd Rokita, about whom I have posted more frequently that his sorry career warrants. (Put “Rokita” in the search bar, and multiple examples will come up.)

Rokita’s efforts to out-MAGA the MAGAs in his party have been so egregious and unethical that he was sanctioned by Indiana’s all-Republican Supreme Court.

As Paula Cardoza-Jones (a former member of the Disciplinary Commission) has noted, Rokita just can’t stop lying:

In 2022, Attorney General Todd Rokita spoke repeatedly and publicly about his investigation into complaints about a doctor who provided abortion services in Indiana to a 10-year-old rape victim who was unable to obtain such services in Ohio.

As a result, Rokita was accused of violating a statute that requires complaints about a doctor “be held in strict confidence until the attorney general files notice with the [Medical Licensing Board] of the attorney general’s intent to prosecute the licensee.” Ind. Code § 25-1-7-10(a) (“Confidentiality Statute”).

On September 18, 2023, the Disciplinary Commission (“Commission”) filed a Disciplinary Complaint in three counts (“Complaint”), Cause No. 23S-DI-00258, alleging violations of the following Indiana Rules of Professional Conduct (“Rules”):

(1) Rule 3.6(a)—making extrajudicial statements with a substantial likelihood of prejudicing an adjudicative proceeding;

(2) Rule 4.4(a)–using means that have no substantial purpose other than to embarrass, delay, or burden a third person; and

(3) Rule 8.4(d)—engaging in conduct that is prejudicial to the administration of justice based on his violation of the Confidentiality Statute.

Members of Indiana’s highest court agreed on the probity of those allegations, only disagreeing about the severity of the sanctions to be imposed. Rokita subsequently issued misleading pronouncements about that conclusion and was again reprimanded by the Court.

You might think being continually slapped down would teach him a lesson, but–despite his focus on Indiana schools–Rokita is clearly incapable of being educated.

As the Capital Chronicle reports:

A new dashboard unveiled Tuesday by the Indiana Attorney General’s Office makes public more than two dozen allegations of “potentially inappropriate materials” in Hoosier schools, like critical race theory materials and gender identity policies.

But numerous local officials told the Indiana Capital Chronicle they weren’t made aware of the complaints and contend the allegations were not properly vetted before the portal went live.

Attorney General Todd Rokita referred to “Eyes on Education” as a transparency tool that intends to “empower parents to further engage in their children’s education” and provide “real examples of indoctrination.”

The portal accepts submissions pertaining to K-12 classrooms, colleges, universities and “other affiliated academic entities in Indiana.” But it is unclear how, or if, they are vetting the accuracy of the allegations.

Given what we know of Rokita, it is highly unlikely that these allegations are being “vetted” at all. His “explanation” makes the politics of this new “portal” abundantly clear.

“As I travel the state, I regularly hear from students, parents and teachers about destructive curricula, policies or programs in our schools,” Rokita said in a statement, adding that the portal allows Hoosier parents to “view real examples of socialist indoctrination from classrooms across the state.”

“Our kids need to focus on fundamental educational building blocks,” he continued, “NOT ideology that divides kids from their parents and normal society.”

Several districts have pointed out that portal submissions were out of date or simply inaccurate–but of course, none of those responses appear on the portal. Representative Ed Delaney notes that–among other issues– public education matters are outside the purview of the Attorney General.

This effort to score political points with the most rabid of the MAGA cultists isn’t simply a dishonest ideological stunt; it exceeds the Attorney General’s jurisdiction.

But hey, it’s Todd Rokita–the “lawyer” who has no respect for the Constitutions of either the U.S. or Indiana, or for the rule of law.

Please vote so that I won’t have to waste pixels on this sorry excuse for a public servant after November.

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Reforming The Court

Recent disclosures ranging from ethical improprieties to clear corruption have lent urgency to longstanding calls to reform the Supreme Court.

Before those disclosures, most of the lawyers and scholars advocating for such reforms did so on the basis of work product–including the dwindling number of decisions the Court issues annually.

Even before the recent disclosures, legal theorists were concerned with the Court’s loss of democratic legitimacy. It isn’t just the appalling shenanigans of Mitch McConnell; Neil Gorsuch was the first Supreme Court justice in American history to be nominated by a president who had lost the popular vote and confirmed by senators representing less than half of the country. Brett Kavanaugh was second, and Amy Coney Barrett was third.

The subsequent evidence of Thomas’ and Alito’s corrupt behavior has been especially unsettling.

I used to defend lifetime appointments to the federal judiciary to my students, pointing out that security shielded jurists from political pressure. But justices live a lot longer than they used to, and– as my lawyer son recently pointed out– the security afforded by those lifetime appointments also provides an incentive to ignore the rules. With a closely divided Congress, and in the absence of the enforceable ethical codes that bind lower-court judges, they are effectively shielded from consequences. As a practical matter, they’re above the law.

It’s time to consider reforms.

An article by the Brennan Center, published just after the leak of Dobbs suggested several. The article began by describing the far-right Federalist Society’s decades’ long, successful effort to capture the Court.

Beginning in the 1970s, corporate interests wary of 1960s socio-political movements developed and funded comprehensive infrastructure to advance a far-right agenda, focusing on the judiciary as an instrument for social, economic, and political change. A crucial component of the plan to push back against left-leaning legal successes was the organization and mobilization of conservative lawyers and judges who could ensure that corporate America’s preferred socioeconomic and political order was upheld in the courts. It is in this ecosystem that the Federalist Society emerged and built an empire around shepherding future leaders of the conservative legal movement into judgeships. All six justices appointed by Republican presidents are current or former Federalist Society members.

Some scholars recommended reforms that would constrain the Supreme Court’s ability to invalidate certain types of legislation. Others would regularize Supreme Court appointments and require periodic judicial turnover. Still others would expand the Court.

One of the most popular suggestions would impose term limits–terms long enough to insulate jurists from political passions–18 years is popular– but short enough to avoid the negatives of lifetime tenure.

An article in Politico argued that a proposal to impose term limits could generate bipartisan support.

The most common version of this reform contemplates justices serving nonrenewable 18-year terms, staggered so that one term ends every two years. This would mean that presidents would get to nominate new justices in the first and third years of their own administrations. Retirements and nominations would occur like clockwork. The result would be a court whose membership, at any given time, would reflect the selections of the past 4 1/2 presidential administrations.

There is a significant hurdle to overcome.

Because Article 3 of the Constitution confers life tenure upon all federal judges, term limits would likely require a constitutional amendment. Yes, constitutional amendments are hard to enact. We have not amended our Constitution since 1992, and we have done so only once in the past half-century. But there is reason — even in these politically polarized times — to believe that constitutional reform is possible.

As the essay from the Brennan Center noted, however. court reform movements have a long history at the state and federal level – and have often seemed impossible until changes in the political environment made them all but inevitable.

And as Politico reported,

What is more, almost every state in the union imposes term limits on its state supreme court justices, a mandatory retirement age, or both. Only Rhode Island has a system of life tenure akin to the federal model. It should come as no surprise, therefore, that when the National Constitution Center held an exercise in 2020 for drafting new constitutions, both the conservative and progressive teams adopted 18-year limits.

It is abundantly clear that we have reached a crisis point. The current court has issued a string of decisions that are not just wildly unpopular, but at odds with decades of precedent. it has increased its misuse of the shadow docket, and all but declared war on the agencies of the administrative state. Worst of all, sitting Justices have engaged in activities that range from demonstrably corrupt (Thomas, Alito) to ethically questionable (Roberts, Gorsuch, Barrett, Sotomayor).

It’s time for substantial reforms.

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Now Alito

There’s a lot to unpack about the ongoing disclosures about Supreme Court Justices, beginning with the old adage that power corrupts.

Digging a bit deeper, it’s interesting to note just who has been shown to be morally–and probably legally–corrupt. (Hint: it hasn’t been the liberal female justices. There are stories about Elena Kagan’s refusal to accept a gift of bagels on ethical grounds!) The culprits are the far-right Justices who sit on the Court courtesy of Leonard Leo and the Federalist Society.

It began with disclosures about Clarence Thomas and his appalling wife. If a lower-level judge accepted–and hid– lavish gifts and travel from a billionaire ideologue and failed to recuse himself from cases involving that billionaire–not to mention cases in which his wife was an interested party–that judge would soon be removed from the bench.

Now we discover that Justice Alito shares more than ideology with Thomas. Pro Publica broke the story:

In early July 2008, Samuel Alito stood on a riverbank in a remote corner of Alaska. The Supreme Court justice was on vacation at a luxury fishing lodge that charged more than $1,000 a day, and after catching a king salmon nearly the size of his leg, Alito posed for a picture. To his left, a man stood beaming: Paul Singer, a hedge fund billionaire who has repeatedly asked the Supreme Court to rule in his favor in high-stakes business disputes.

Singer was more than a fellow angler. He flew Alito to Alaska on a private jet. If the justice chartered the plane himself, the cost could have exceeded $100,000 one way.

In the years that followed, Singer’s hedge fund came before the court at least 10 times in cases where his role was often covered by the legal press and mainstream media. In 2014, the court agreed to resolve a key issue in a decade-long battle between Singer’s hedge fund and the nation of Argentina. Alito did not recuse himself from the case and voted with the 7-1 majority in Singer’s favor. The hedge fund was ultimately paid $2.4 billion.

Alito–like Thomas–failed to report the trip on his required annual financial disclosure form. Ethics experts tell Pro Publica that the omission violates federal law. Those experts also report being unable to identify another instance of “a justice ruling on a case after receiving an expensive gift paid for by one of the parties.”

ProPublica’s investigation sheds new light on how luxury travel has given prominent political donors — including one who has had cases before the Supreme Court — intimate access to the most powerful judges in the country. Another wealthy businessman provided expensive vacations to two members of the high court, ProPublica found. On his Alaska trip, Alito stayed at a commercial fishing lodge owned by this businessman, who was also a major conservative donor. Three years before, that same businessman flew Justice Antonin Scalia, who died in 2016, on a private jet to Alaska and paid the bill for his stay.

Such trips would be unheard of for the vast majority of federal workers, who are generally barred from taking even modest gifts.

Alito claims he and Singer never discussed business, and that when Singer’s cases came before the court, he’d been unaware of his connection to them.

Right. And I have a bridge to sell you…..

Talking Points Memo points to the larger issue: justices groomed and chosen by the Federalist Society “remain ‘kept’ in perpetuity” by the Right-wing donor network that got them there … “Sugar Justices, if you will.”

What is especially infuriating about these disclosures is that they involve Justices who posture as moral arbiters and issue judicial opinions based upon religious dogma rather than constitutional precedent.

I have previously characterized Alito’s decision in Dobbs as profoundly dishonest, because he cherry-picked and misrepresented both history and legal precedent in order to achieve his desired (paternalistic) result. Given Pro Publica’s report, it seems Alito’s dishonesty isn’t limited to his jurisprudence.

Thomas insisted that Harlan Crowe (whom he met after he joined the Court) was a “dear friend.” Alito says he had “no idea” that Singer was connected to ten cases before the Court. Neither allegation passes the smell test. According to Pro Publica, Alito and Singer have appeared together at public events, and Singer introduced Alito’s speeches on at least two occasions– the annual dinner of the Federalist Society (where Singer told an anecdote about their fishing trip) and a dinner for donors to the equally far-Right Manhattan Institute.

The disclosures are profoundly depressing. They should also be a wake-up call.

It is past time to apply binding ethical standards to the Court. Imposing term limits, and adding Justices to the Court would dilute the influence exercised by corrupt culture warriors doing Federalist Society bidding..

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Originalism And Corruption

At what point does an ideological lens morph into dishonesty and corruption? I don’t know the answer to that, but it is a pressing question raised by some highly dubious and arguably corrupt behaviors by two current Supreme Court Justices.

In the case of Clarence Thomas, highly questionable behavior has been obvious–and criticized–for years. More recently, with the revelations about his wife Ginni and her deep involvement in Trump’s attempted coup, his refusal to recuse himself in cases that might well implicate her is nothing short of scandalous. Now, there are growing, serious concerns about the degree of dishonesty characterizing Samuel Alito’s jurisprudence and (if recent accusations are found to be accurate) improper behaviors.

The purported basis upon which these justices have based controversial opinions goes under the rubric of “originalism.”

So what, exactly, is “originalism”? As a recent post to the History News Network began,

“Originalism.”

That’s the touchstone of constitutional jurisprudence over which Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett obsess.

It makes them feel righteous to do it, because for people like themselves the doctrine is faith.

They presume that the words of the Constitution possess essentially one “original” meaning. And they also presume they have the power to determine this meaning and then lord it over everyone else.

They believe this.

As the post proceeds to note, historians, linguists, and anyone possessing an ounce of intellectual integrity consider that iteration of originalism to be simple-minded dogma.

As an article about Amy Comey Barrett put it, arguments for originalism have always rested on flimsy foundations–and conservative judges have routinely ignored the doctrine when it interfered with a desired result.

It turns out that originalism’s real utility is its transactional value as a vehicle for other legal principles. The deeper structure of constitutional jurisprudence is the pervasive and foundational but largely unacknowledged influence of Catholic natural law moral philosophy. Barrett represents more than simply the latest link in the chain of custody for originalist jurisprudence that extends from her mentor, and one of originalism’s founding fathers, former Justice Antonin Scalia, to the present day.

The article argues that a medieval form of Catholicism, rather than Evangelical fundamentalism, permeates the judiciary–and especially the current Supreme Court. The article asserts that it is Catholicism that today forms the linchpin of culture-war conservatism in the United States.

The underlying organizational and intellectual impetus for this influence derives from Thomist Catholic perspectives—on natural law, in particular—that have achieved resurgence in the last 50 years and have infused conservative foundations and think tanks alongside vast amounts of donor money.

As Ruth Marcus noted in a recent column,

When originalist arguments favor a result the conservative justices dislike, they’re content to ignore them, or to cherry-pick competing originalist interpretations that comport with their underlying inclinations. Originalism doesn’t serve to constrain but to justify. This is not a fair fight — or an honest one.

Marcus’ column is lengthy, but well worth reading; she traces the evolution of the doctrine and its embrace by conservatives unhappy with the Warren Court’s approach, which I would characterize as a correct understanding of “original intent”–namely, looking to the values the Founders were trying to protect, and endeavoring to protect those values–free speech, freedom of religion, etc.–from previously unanticipated threats emerging from an environment the Founders could never have envisioned. (The Founders said nothing about free speech on the Internet…)

Multiple historians have objected to Alito’s highly inaccurate historic references in Dobbs, and recently a former leader of the anti-abortion movement has alleged that Alito leaked his equally troubling decision in the Hobby Lobby case to one of that leader’s colleagues..

To return to my initial question: when does a fervently held ideology become a corrupt enterprise? There is, after all, a difference between bringing a particular philosophical “lens” to the law and facts of a case (as any lawyer will confirm, it is impossible not to do so) and distorting and/or fabricating those facts and mischaracterizing that law in order to reach a desired result.

Corruption is not always financial. The dictionary defines corruption as “the process by which something is changed from its original use or meaning to one that is regarded as erroneous or debased.” Alito’s jurisprudence–which many lawyers, including this one, have criticized over the years–has arguably devolved into precisely such debasement.

Senator Durban has announced that the Senate Judiciary Committee will investigate the allegations of that former leak, and there are renewed calls for the Court to adopt a binding code of ethics, which–unlike lower courts–it currently lacks.

Both that investigation and an undertaking to abide by the ethical principles that bind the rest of the legal profession are long overdue.

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