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Quid Pro What? The Supreme Court Has to Recognize Bribery Before It Can Stop It
In 1979, I testified before the House Administration Committee on campaign finance reform. Representative Jerry Lewis (R-CA), today Ranking Member of the House Appropriations Committee, interrupted my testimony:
"Mr. Rofsky, do you have evidence of bribery relative to any of the members of this committee?"
I was only 28 years old, so I did not have the presence to respond as I would today: "Sir, I think you are all evidence of bribery."
Well, one man's bribery is another's free speech. At least, that's the conclusion from the recent U.S. Supreme Court ruling that corporate political endorsements are "free speech" and protected by the First Amendment.
Space does not permit detailing all of this decision's flaws. Treating corporations as "legal persons", is fraught with problems as corporations don't vote (or inevitably die for that matter) and don't deserve any number of protections that are provided individuals
Moreover, if corporations had pure First Amendment rights, then commercial speech would be equally protected. Alcohol, tobacco, perhaps, prescription drugs, and, some would say, marijuana should be legal - the cost of making them illegal is too high. But these products should not be permitted to be advertised (with the possible exception of ingredients). The makers of beer, vodka, cigarettes, and related products should not be permitted to make their brands "cool". But that would tamper with corporate free speech rights - if they have them.
Crucial to the majority decision was Justice Kennedy's noting that bribery remains illegal. He distinguished "independent" corporate political endorsements from direct corporate contributions which remain illegal, at least for the time being.
But, of course, these "independent" endorsements are a form of campaign contributions. So, the justices have joined conservative political commentators: "Campaign contributions are almost always not bribery," Fred Barnes once asserted on CSPAN.
Can Washington really be this naive?
The Court has joined prosecutors who must enforce the strictest possible definition of bribery: the "quid pro quo," where a specific act is exchanged for some benefit, usually money.. With this definition, politicians can act offended that anyone would even think that they could be "bribed" (as, on the MacNeil-Leher News Hour, Utah Senator Robert Bennett once huffed about throwing out any favor seeker who would be so dim as to offer him cash in his office. Good for you, Senator.).
Yet, the public's common sense that millions of dollars in political donations aren't exchanged for nothing is correct.
Look up bribery in the dictionary and you will find a very different definition than the prosecutorial one. Merriam-Webster defines a bribe as: "1. money or favor given or promised in order to influence the judgment or conduct of a person in a position of trust." That's right, the key term is "influence." And campaign contributors have plenty of it.
It is also amazing that the same conservatives who believe that corporations are at the top of the organizational evolutionary pyramid, the most intelligent way to organize an economy yet developed, can then conclude that these same corporations give away hundreds of millions of dollars every two years and receive nothing in return!
If there is rarely a "quid-pro-quo", how is influence exhibited? How do legislators think about maintaining contributor support? Presumably, corporate representatives are not huddled with officeholders in the backrooms of DC pleasure palaces. Even Fred Barnes would consider that a story. So how does the game work?
As political scientists define "politics," it is the response to the demands of the public. All men may be created equal, but not all those with "demands" are treated equally. Voters are more equal than non-voters and contributors are more equal than voters. So, politicians are in the position of recognizing their demands first.
But to remain officeholders, most politicians have to respond to conflicting demands (we'll ignore gerrymandering for now). The basic principle of resolving these demands is not to give major contributors everything they want and everyone else nothing. That is not viewed as an effective strategy. Rather, your typical officeholder tries to give something to everyone. Or at least to every donor.
In other words, there is a little calculator constantly running in a politician's brain: "What do I have to do to give this contributor enough to keep the dollars flowing?" No one assumes that you have to give a corporation 5 out of 5 votes. Perhaps 4 of 5 will do it. Most likely, for an incumbent, 3 of 5 will. Maybe even 2 of 5. (It is Washington lore that various leaders have actually held legislation over from one Congress to the next just to keep the contributions coming in-but I guess the D.C. press considers this, like compassionate conservatism, to be an urban legend.)
If special interests have enough legislators who vote with them 40%, 50%, or 60% of the time, they will win a lot of votes-votes that they would not necessarily have won without their contributions.
Over-focusing on votes can also distract from the myriad opportunities that a politician has to whore (oh, excuse me, I meant "advocate") for a major contributor. As we saw in the Abramoff scandal, a mere mention in the Congressional Record may be worth selling. And, it is much easier to stop legislation than it is to enact it. Putting a "hold" on a bill or nominee or skipping certain committee meetings may be all that's required. As the Clinton Lincoln Bedroom "auction" demonstrated, there are always opportunities (and incentives) to be creative.
One former liberal Senator made it clear that he would front for two industries that were powerful in his state: the savings & loan and defense industries. A Washington journalist might say that these are prominent industries that employ lots of people in his state. Wouldn't he support them even if there were no contributions?
Then explain this: Why would this Senator devote himself to the elimination of the government board that examined defense contracts for excess profits? This has little to do with the employees of these companies and much more to do with bonuses to management and returns to shareholders.
Or explain this: if money is meaningless or if business merely supports those who share their philosophical predisposition, then why do major industries give to both candidates in a race? What can they be buying other than "influence?"
As long as we're talking crime, the flip side of today's campaign fund-raising culture is extortion--the use of one's position or powers to obtain property, funds, or patronage. Republican efforts like the K Street Project seem to meet this definition as Republican officeholders told Washington lobbyists that they would not be welcome in their offices unless they hired their friends (patronage) and received their donations (funds). And, thanks to the Supreme Court for giving the politicians another way to intimidate potential contributors.
So, don't use the terms "bribery" or "extortion" if you consider them too gauche, but spare us the defenses of Washington DC business as usual on First Amendment grounds. No group of "insiders" can be that naive. And what should we think of this group of justices when Merriam Webster knows what's going on and the Supreme Court doesn't?
Mitch Rofsky is President of the Better World Club, the nation's only eco-friendly auto and travel club, and a Director of New Voice of Business. He is a former attorney for Ralph Nader and Public Citizen's Congress Watch. Contact him at mrofsky@betterworldclub.com
29 Comments so far
Show AllStop The FASCUST (Flagrant Advocacy of Supine Corp. for US Tyranny) putsch!
Here is the strategy I propose: Where ever you are characterize campaign contributions as a bribe. This is how this will change. At every rally, every conversation, every blog and every speech everywhere. Call it what it is, a bribe. In a world where there are no campaign contributions, the people will win. The politicians will always go for the will of the people in this scenario; that's where the numbers are. The empirical evidence for this is to simply to look where they have curbed campaign contributions around the world. Do you think the aristocrats of Europe like that Democratic socialism has taken root there? No, but because of their history, average Europeans absolutely knew that their elites had no problem with mass starvation as price to pay for their narcissistic lifestyles. Average Europeans instinctively knew that large campaign contributions would leach away any "will" the people might have. This message of contributions being a bribe, needs to be repeated over and over and over...until no one will vote for someone like that. They have more money than us and always will. They only give money to democrats when they promise to be like republicans. Whats the point in that.
This has been coming for a long time. And it's time that it get stopped in it's tracks. It's time to take out ALL private money from elections, once and for all. There is NO reason why we should have to shell out money to politicians to get them to do their jobs.
A publicly funded system would remove the possibility of bribery as long as there are actual jail sentences handed out to BOTH parties involved.
If money and speech are the same thing, then I should be able to go to BOA and pay my mortgage with a really good speech. TRY IT, and see how far it gets you. You can talk all day long and at the end of it, they will still ask you where the freaking check is.
John Roberts needs to be impeached, thrown out of the judgeship and then HUNG. This is TREASON against the American PEOPLE (remember US?). The word "corporation" doesn't exist in the constitution. To give them MORE rights than the rest of us is a coup against the country. And who DIDN'T think this would happen when W put a goddamned corporate lawyer in the position? THIS is why I wrote to my senators BEGGING them to oppose his slimy ass. And for that, I got TWO senators who voted FOR this traitor.
And THAT is why money NEEDS to be removed from the equation.
I had hoped that there would be opposition to this Court ruling from paleoconservatives as well as those on the left. However, the only conservative denouncing it so far is Paul Craig Roberts (see http://counterpunch.org/roberts01272010.html ). George Will has explicitly endorsed it. Others have been silent, a disappointing result. It seems the Left will have to oppose this almost alone unless others wake up soon. If that's the case then so be it. Let's fight, including taking it to the streets with nonviolent protests and civil disobedience.
I believe the people will respond. When the Court handed down this ruling, the instant online poll on MSNBC showed 92% opposed to it, a huge percentage! I never saw a poll on Fox, possibly because they didn't want to display the heavy opposition.
"I hope we shall crush in its birth the aristocracy of our moneyed corporations which dare already to challenge our government in a trial of strength, and bid defiance to the laws of our country."
---Thomas Jefferson, from a letter in 1816
A 92% negative reaction to it by citizens. Back when the bandaid of McCain-Feingold got applied, large majorities of people were saying money corrupting politics was the nation's biggest problem. Since then, it's only gotten worse.
The interests of ordinary people have been so marginalized that talk of revolution has become common on the internets. The government aims to leave us no alternative. Maybe they want it to happen so they can do away with pretense and come out of the totalitarian state closet. Once they can jail and silence this last bit of protest, the United States of America will be no better than the Soviet Union and Communist China. We, too, will have a command economy (run through corporate influence instead of the party), a security state that spies on its own citizens, and a corrupt ruling elite. We might as well get rid of the relics like Congress and the Court and go for maximum efficiency.
I mostly agree but I think you are dreaming when you compare the future of the USA to that of China. There is no comparison. The USA will be far more brutal, cruel, and unequal and far, far worse for the great majority of citizens.
Is it the China of The Great Leap Forward and the Great Proletarian Cultural Revolution, or today's China of mercantile tyranny? In any case, you're right. A totalitarian and despotic United States will most closely resemble the fanatical regimes of Nazi Germany and Cambodia under the Khmer Rouge.
Today's China of mercantile tyranny. I have spent some time there (my wife is from the PRC) and I find it to be quite tolerable for urbanites. The farming peasants, about half the population, live in poverty and misery as they have for centuries, and are often happy to take work in factories where even the minimal wages earned offer an improvement in quality of life (I spent a weekend at such a farm once, and my guess is that the quality of life is roughly equivalent to that of peasants in medieval Europe).
As for surpassing the Cultural Revolution in creating misery, that will take some doing, but the people in charge in the Washington-Wall Street Axis of Evil appear up to the task.
It's not pretty, I agree, but if people resort to violent revolution, they'll be playing on the opposition's terms, and the opposition is very good at those. If we stick with nonviolent protests and civil disobedience, we won't be playing by their rules, and we can be effective. For details see organizations like
http://paceebene.org/
I think the opposition is very aware how much public disapproval exists over the corruption of politics by money. I think they're holding their breath right now about whether this latest Court action will be resisted. If we don't resist they get it for free. If we do, their fears are realized, and they aren't looking forward to that ...
"We, too, will have a command economy (run through corporate influence instead of the party), a security state that spies on its own citizens, and a corrupt ruling elite."
We "will...have"? We ALREADY have that.
But as long as the fawning corporate media keeps us amused and/or fearful, we will be very easy to control. No need for tanks in the streets or detention centers. At least not yet.
Much of the problematic US legislation, including legislation from the bench as in the Citizens United case, is supported by arguments based on the assumption that we are not all interconnected and all affected by everything that happens in our society. That is a pre-scientific avenue of thought that is mostly promoted by entrenched, powerful, and sophisticated interests in order to lower resistance from the unsophisticated and vulnerable who are being taken advantage of.
One does not have to assume it is a zero-sum game to note that the amount of speech of X affects the power of the speech of Y. It is quite possible in the current environment for deep pockets to generate flood speech that drowns out competing voices. Unless the protection of First Amendment speech was designed simply to serve as a means to allow the "little person" to just blow off steam, and every indication is that it was not, then Y's amount of free speech is to some degree relative, and thus limited to some degree by X's free speech, especially if excessive, and some consideration of that fact is warranted in any analysis of whether free speech is granted as intended by the amendment.
Also, on a different note, the word "person" is used often in the Constitution and its amendments, and every place it is used it means an individual. The 13th Amendment, which prohibits slavery, does not actually mention "person" or "individual" (Neither slavery nor involuntary servitude ... shall exist within the United States...), but at the time "person" meant an individual and so the prohibition against slavery would have been represented and thought of as against the enslavement of persons. So if a corporation is a "person" under the Constitution as the Justices in various rulings have concluded, it should be illegal to own a corporation and so all shares of stock should be immediately dissolved and the overseer management disbanded. Then corporations would be free -- penniless, powerless, and directionless, but free as persons must be.
But, a corporation is a state created being and is not owned. Indeed, owning stocks or bonds of a corporation is nothing more that a contract.
And the state may not impair the obligation of contracts so says Art. 1, section 10 of the US Constitution.
Therefore, corporations are free persons still.
Sorry, but having a controlling share of the stock of the corporation enables one to totally direct the corporation (through a board of directors and management if necessary) and having total control over a person is the same as enslavement of the person, regardless of whether one calls it "ownership," though it is regularly referred to as "ownership" (and would be considered de facto ownership if even one could somehow avoid the categorization as ownership de jure). So the Southern slaveholders could have gotten around the 13th Amendment by claiming that they did not "own" their African-American workers, but instead held all the stock of such workers (having created such stock without the person's awareness, as certainly a corporation has no awareness that stock is created for it), such stock having been created by a contract, and therefore they had a controlling interest and had a right to direct the workers in all their activities?
Always KNOW that lobbying is CRIMINAL BRIBERY of an elected office just as the compaign contributions are.
And going to public funded campaigns and elections is imperative but also is setting a time for campaigning like about 2 months before an election, any campaigning beyond or before that should be a felony.
All 5 of those justices should be impeached and executed as the treasonous traitors that they are.
Rofsky: "And what should we think of this group of justices when Merriam Webster knows what's going on and the Supreme Court doesn't?"
That these five justices should be impeached. They are completely incompetent if they don't know that our system and our nation are being destroyed by bribery and influence peddling. Assuming they are not incompetent, then their ruling amounts to treason - or a betrayal of their office if you prefer to mush.
Sorry Pitch Fork, those five justices are quite competent. They did exactly what they were appointed to do! It's just that a majority of the American people are to naive to recognize it.
I'm offering them the GOP two-step: "We weren't crooked; we were incompetent" defense before we hang them.
The naive and/or complacent majority should start to look carefully for a pattern: Banks screw up and get bailed out at our expense. No one of consequence goes to jail. Warmongers conduct a fraud against our nation to get war with Iraq at a very dear price to us, and no one goes to jail. In fact, they are using the exact same process for another war and Congress goes along as if they'd never heard of Iraq. Healthcare companies are expanding costs at an unsustainable rate because of congressional complicity, and no one goes to jail. Instead, they expand the mandate. Etc.
Don't be sorry. I agree completely that those judges know exactly what is going on, just as our congress does.
Quis custodiet ipsos custodes? (Who will guard the guardians, watch the watchers, etc?)
Hello Pitch Fork,
The good news is simple. We can not sustain the overburdened costs and this will probably be the cause of the downfall of the US. The faster the top gets everything the quicker everything else fails. Am inverse pyramid with all the weight at the top (wealth) can not stay erect for long. Inertia only lasts so long and then the whole comes crashing down!
...and that they live forever in infamy as "The Gang of Five".
R-nut from an R-nut 'think tank' on 'The News Hour' last week:
"Why does everyone assume corporations would use their money to influence elections in ways that hurt America or the American people? Most corporations are good patriots, just like you and me, and there's no reason to presume they all have some sort of nefarious agenda." (paraphrased)
Nope. No reason whatsoever...
You have to laugh. Reminds me of Goldman Sachs saying they're "a force for good."
These corporate forces for good that exist solely for their stockholders' profit could NEVER come into conflict with the consumers, formerly known as citizens.
Not so much here, but at other sites I was surprised to find certain left-oriented commenters pushing a "corporations are people too!" defense of this ruling.
Then I finally caught on that these were libertarian-types-- thus, their sanitized and innocuous assertions that "corporations" are just groups of ordinary people, like you and me and Papa and Mama and Bub and Sis, trying to improve their lot in a hard life by freely and peacefully entering into voluntary associations and making common cause.
What could be more virtuous, more benevolent, more Amerikan?
Even the "constitutional experts", e.g. Glenn Greenwald (whom I generally respect and admire) seem to favor a benevolent connotation of "corporation". They are of course correct to point out that there are non-profit corporations, etc., at least theoretically formed for benevolent purposes.
I don't know whether this is naïve, or disingenuous, or both. But the "corporations are people too!" advocates seem determined to ignore or avoid the inherent evil and monstrosity of the modern predatory capitalist corporation-- to treat it as if it were, at best, an unfortunate stereotype.
I think of myself as a "civil libertarian", but I refuse to admire, much less climb, a tree of "corporate free speech" that functions like a man-eating Venus fly-trap, or ignore the fact that it is rooted in a treacherous swamp of unchecked capitalist avarice and venality beneath its newly-burgeoning canopy.
· Yr Obd't Servant
I see the words "Not One Government Secret" posted on the wall of this world's future.
This means the beginning of the end for the Guardians of the Gate, who, at this hour and unknown to them, are on their ways to the trashbin of history.
For I see an "already written" here among
and a world at peace on every tongue,
where the days advance and the bells are rung.
If corporations are Persons, what are dogs?
-30-
I think it Shadowdancer who mentioned that life is one big circle and it becomes apparent to me that this recent Supreme Court decision meets that premise.
On the Declaration of Independence in the newly formed United States of America, the various states wrote Constitutions that stated who could run for Public Office.
The majority of peoples were excluded. This included outright women, Blacks and The Native Americans. They also exlcuded the vast majority of whites.
In order to run for office one not only had to be a property owner, but one had to have a Minimum of some 5000 pounds worth of property.
This meant that only the wealthiest of landowners could run for office. As has been pointed out these laws were laid down so as to ensure the PROPERTY rights of the Wealthiest Americans were protected and so that the Government would always serve that small groups best interests.
This Supreme Court decision acts very much like those laws did. It will ensure only the very wealthy can run for Public office. They want to ensure that those who run for Public office continue to provide for the best interests of the nations wealthiest people.
It has nothing to do with "freedom and Liberty" and everything to do with control.
"One former liberal Senator made it clear that he would front for two industries that were powerful in his state: the savings & loan and defense industries. A Washington journalist might say that these are prominent industries that employ lots of people in his state. Wouldn't he support them even if there were no contributions?
Then explain this: Why would this Senator devote himself to the elimination of the government board that examined defense contracts for excess profits?"
That would probably be my Jr Senator, the Ex-Democrat, Joe Lie berman (I. Tel Aviv). Married to a pHarma lobbyist and backed by Guns&Bombs Inc.
The other two industries that are dominant in CT are Prisons and Gambling. The Indians have the Gambling thing down and they probably buy legislators, but very quietly. They are doing so well that there's not much need for special legislation to make them profitable, but the Prisons would empty out if our Pot laws were removed, bad for the Bottom Line, can't have that!
I also posted this comment on CNN
Any 5-4 decision of SCOTUS is an opinion poll with an error of plus or minus 2. This will remain the case until an American self-defined as Independent is elected President and appoints at least two Independents to the Supreme Court. Failing that, we need to move to a Supreme Court of 21 rather than 9 justices, and have cases heard by judicial panels chosen at random by computer.
We have been in error for 100 years by retaining the YES NO vote of Supreme Court Justices. Each justice should distribute 99 points between the two arguments. Only this way can we the people gain a coded sense of the courts reasoning. By what point spread would you want your life and liberty determined?
I want to add here that each Republican justice who voted to geld the Florida Supreme Court in order to invest George Bush as President in 2000 had a family member who, in some way, eventually had a nice promotion or other windfall in their careers. Justice Ginsberg opined that the decision would erode the respect of Americans for the U.S. Supreme Court. Truer words were never spoken.
And while I'm at it.
I made two other wild ass proposals during the Election 2000 debacle. Florida was brimming with Canadian snowbirds so I suggested to the editor of the Miami Herald that said persons be engaged to conduct the voter recount. He laughed and laughed at me over the telephone. Do you remember the wretched details of that recount, as Republican and Democrat witnesses nearly got into fist fights over individual f**king CHADS? And look at the bloody consequences!
Next, when SCOTUS foolishly granted cert, I rapidly proposed subleasing the judicial proceeding to the justices of the Supreme Court of Canada. When people criticized that idea as preposterous I referred them to the Treaty of Ghent, ending the War of 1812, and to the subsequent kindness of King Philip of the Netherlands in moderating and attempting to resolve the International Boundary Matter.
Few Americans know that our northern boundary was marked out not by one surveying team, not by two American and British surveying teams, but by THREE surveying teams, adding neutral surveyors from other countries. All three teams were drunk when they tried to establish the location of the 45th hic parallel.
Trylon wrote this morning:
"We have been in error for 100 years by retaining the YES NO vote of Supreme Court Justices. Each justice should distribute 99 points between the two arguments. Only this way can we the people gain a coded sense of the courts reasoning. By what point spread would you want your life and liberty determined?"
Would this be a bit like betting on the point spread in a ball game? I take it you'd add up the plus/minus scores of all nine justices and the highest score wins? Do they have to reveal their scores or is the tallying done in camera?
Meanwhile, most interesting report on the history of the border with Canada. Weren't about half the Founding Fathers (and Lewis & Clark) surveyors? And also half drunk half the time...mixing their tea with their rum 'cause the water was iffy.
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