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.


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.