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 firstname.lastname@example.org