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| Figure 1: Mask Representing Guido Fawkes | Figure 2: Mask Representing Dionysos | |
Corruption is the big issue. We should focus attention on what matters, namely corruption.
Political campaigns are very expensive. Members of the House and Senate spend about half of every day trying to raise money. The problem isn’t money per se, but rather the fact that the money-raising process tends to make office-holders unduly beholden to a few large donors.
Some examples of corruption are described in reference 1.
The current system whereby lobbying is connected to campaign donations is corrupt. It’s also illegal. It’s called bribery. The first amendment does not prevent us from enforcing the bribery laws. In particular, a meeting in furtherance of a bribery conspiracy is not protected by freedom of assembly. A conversation in furtherance of a bribery conspiracy is not protected by freedom of speech.
Some people are under the mistaken impression that bribery consists of saying, “Senator, if you cast such-and-such vote on the floor of the Senate today, I will give you a sack of cash that you can put directly into your pocket.”
In fact, the bribery statute is much broader than that. You can check for yourself: reference 2.
| It clearly speaks of “anything of value” ... not just “sacks of cash”. | This is important, because campaign advertising is considered valuable. |
| It clearly speaks of giving “directly or indirectly” ... not just directly. | This is important, because it means making a payment to an office-holder’s favorite PAC is just as illegal as putting cash directly into his pocket. |
| It clearly speaks of “influence” ... not just immediate, single-factor, direct causation. | This is important, because it means bribery is still illegal, even if there are multiple bribes paid over a long period of time, producing multiple results. Long-running large-scale bribery is still bribery. Just because it is impossible to associate any single payment with any single result doesn’t make the overall scheme any less illegal. |
| It clearly applies to “any official act” ... not just a roll-call vote. | This is important, because some of the most fiendishly corrupt acts take place in smoke-filled rooms, during the drafting and mark-up process. It may be that nobody except the bribe-payer and the bribe-taker will remember who inserted the corrupt special-interest provisions into the bill. |
In parallel with the bribery statute 18 USC §201 (reference 2) we also have the Hobbs act 18 USC §1951 (reference 3) which has been interpreted to forbid extortion, which includes demanding or receiving payment “in exchange for official acts”.
To convict someone of bribery or extortion, you have to prove intent. This is as it should be. If you limit attention to the office-holders themselves, proving intent might be tricky in some cases, because they could say they were just helping out a constituent. However, in other cases, the politicians demonstrate clearly corrupt intent; some examples are discussed in section 6.1 and section 6.2.
On the other hand, in the special case where somebody makes a “gift” directly to a Member of Congress or any other Federal officer or employee, it is not even necessary to show intent. With narrow exceptions, the personal gift is automatically illegal. This is not covered by the bribery statute, but by a separate statute, reference 4.
Furthermore, keep in mind that giving a bribe is just as illegal as receiving a bribe. In most cases, the lobbyist has obvious intent, since influencing legislation is the lobbyist’s advertised1 business plan and raison d’être. Similarly, the the big-money “contributors” have blazingly obvious intent. Big corporations spend billions of dollars on lobbying. They would not do this if they did not expect to get something in return. They are not being altruistic. If planning2 to get a big “return on investment” is not intent within the meaning of the bribery statute, I don’t understand why not. Can somebody explain this?
The corruption problem is fixable. For reasons discussed in section 7, enforcing the bribery laws against entrenched, highly-organized criminals is not easy. However, it needs to be done.
This will not happen unless we apply political pressure.
Some of them have threatened “second amendment remedies” i.e. armed insurrection (reference 7).
If the far left and the far right agree that we have a problem, and are willing to protest in dramatic fashion, then we definitely have a problem.
The Tea Party guys and the Occupy guys disagree about the root cause of the problem, even though they agree as to the consequences of the problem. The Tea Party guys tend to blame the government for being corrupt, whereas the Occupy guys tend to blame the big corporations for corrupting the government. I say both are to blame.
Here is a constructive suggestion: Let’s get the far left and the far right and everybody in between to march in the streets, demanding an end to corruption, an end to bribery, an end to lobbying based on donations.
It seems to me that if we are going to have people marching in the streets, rather than having them demand overthrow of the government, it is much nicer to have them demand that the laws be faithfully executed.
After all, who could object to people demanding that the laws be faithfully executed?
Let us now discuss the Supreme Court ruling in the case of Citizens United v. Federal Election Comission 558 US 310 (2010). Before you read the 57-page majority opinion written by Justice Kennedy (reference 8, you should read the stinging 90-page dissent by Justice John Paul Stevens , joined by Justice Ginsburg, Justice Breyer, and Justice Sotomayor in large part (reference 9).
Note the contrast:
| Citizens United is a problem: | Fixing this problem is neither necessary nor sufficient: |
| The ruling is ridiculous. It is based on wrong facts and insane reasoning. | It is only a small part of the overall problem. Corruption is the problem. |
| It makes the corruption worse. | Overturning Citizens United is not sufficient for getting rid of corruption. Keep in mind that there was terrible corruption before Citizens United. By the same token, if the Citizens United decision were somehow overturned tomorrow, we would still have terrible corruption. |
| There is no practical way of overturning the Citizens United anytime soon. In particular, amending the constitution is prohibitively difficult, and even if it were possible it would take too long. | Getting rid of Citizens United is not necessary for getting rid of corruption. There are other ways of dealing with the corruption problem. This is an important point, because it tells us where we should spend our resources. |
Here are just a few of the many points made by Justice Stevens and others:
Some people criticize the Citizens United ruling for giving corporations the same first-amendment rights as people ... but it is actually much worse than that. It gave corporations more rights than we give to some individual citizens.
... we now conclude that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.
That’s really quite astonishing. The «reasons» that allegedly supported this conclusion were beyond pathetic.
This means that merely tracking expenditures misses the point.
There may be a silver lining here, because Congress could reasonably find that as a matter of fact, independent expenditures (by corporations and by wealthy individuals) have given rise to corruption and the appearance of corruption. It could then be argued that since the factual basis of the Citizens United decision is no longer true, the decision as a whole is no longer valid. Congress could pass laws to deal with the corruption.
The Government may regulate corporate political speech through disclaimer and disclosure requirements, ....
You can’t blame the Supreme Court for the fact that Congress has failed to pass much-needed reforms to strengthen transparency and disclosure requirements. This failure is most easily explained in terms of corruption. Congress is more interested in protecting big donors than in protecting democracy itself.
The Constitution places limits on the power of the Senate, limits on the power of the House, limits on the power of the President, et cetera. The Bill of Rights in particular is clearly intended to protect individuals against concentrated power.
The idea that the first amendment (or any other part of the Constitution) could be interpreted in such a way as to give overwhelming political power to corporations (or anybody else) is just completely perverse.
To a first approximation, a corporation is an abstract entity that can own stuff in its own name. This idea has been around for a long time. Indeed, for most of human history, for tens of thousands of years, large tracts of land were owned by the tribe collectively (rather than by individual persons), and we can consider the tribe to be a corporation. Even today, cities and towns are corporations in this sense. We speak of incorporated towns and unincorporated suburbs.
For thousands of years, craftsmen’s and tradesmen’s guilds have existed and have acted as corporations. Similarly, for hundreds of years, universities have existed and have acted as corporations. Both guilds and universities are direct ancestors of modern industrial corporations.
Corporations can become quite large.
| Large size makes corporations capable of doing good things on a grand scale. | Large size also makes corporations capable of doing evil things on a grand scale. |
| Some corporations are necessary, unless you want to go back to a stone-age or pre-stone-age level of civilization. | Obviously we should not give corporations free rein to do whatever they want. |
| If you want a cell phone, you cannot go to a local artisan and ask him to cobble up a working cell phone. A fabrication line for producing cell-phone chips costs well over a billion dollars, and your local artisan doesn’t have a billion dollars lying around. | Power tends to corrupt. For this reason, powerful corporations need more regulation than small corporations and/or ordinary individuals. The problem is that due to corruption, powerful corporations and wealthy individuals tend to get less regulation, often to a very unhealthy degree. This in turn leads to more corruption, leading to a vicious circle: power ⇒ corruption ⇒ deregulation ⇒ more power et cetera. |
| Similarly, suppose you give some money to a clerk to buy a theater ticket, an airline ticket, or a life-insurance policy. It makes no sense to hold the clerk personally responsible for providing the services you want. As a practical matter, the theater company as a whole should be held responsible. The airline company as a whole should be held responsible. The insurance company as a whole should be held responsible. The corporation is the only entity in sight that has the resources to deliver the desired services. | There need to be effective ways whereby the corporation can be held accountable. In practice, this is nontrivial, because sometimes powerful corporations use “the law of the jungle” to take what they want and avoid responsibility. Also, in the case of large-scale wrongdoing, it may be hard to decide whether ultimate responsibility attaches to the corporate officers and/or to the overall corporation. |
I mention this because there are surprisingly large groups of people running around demanding that we abolish corporate personhood. There are two sub-groups, as we now discuss.
Some people suggest we should abolish corporations altogether, plain and simple.
This is idiotic, for reasons mentioned above. Do you really want to abolish cities, towns, and tribes? Do you really want to abolish clubs, guilds, and trade unions? Do you really want to abolish the Salvation Army and the Nature Conservancy? Do you really want to abolish universities, theaters, airlines, insurance companies, and telephone companies? Do you really want to hold the sales-clerk personally responsible for providing the goods and services you have purchased? That’s just ridiculous ... but that is exactly what you get if you abolish corporations.
Talking about abolishing all corporations is exactly the sort of thing that makes moderate voters think that left-wingers are stupid and dangerous. If you claim to speak for “the 99%” or even if you hope to speak to “the 99%” you’d better not be talking about abolishing all corporations.
Some other people have the much narrower goal of limiting corporate power.
| If you want to end corporate corruption, fine, say so. Say what you mean and mean what you say. | Abolishing corporate personhood means abolishing the corporation entirely. If this is not what you intend, don’t blither about corporate personhood. |
| If you want to place some limits on corporate power, fine, say so. Say what you mean, and mean what you say. | Eliminating all corporate power means abolishing the corporation entirely. If this is not what you intend, don’t blither about corporate personhood. |
| If you want to limit the free-speech rights of corporations, fine, say so. Say what you mean and mean what you say. | The Supreme Court did not say that we must give the same free-speech rights to all persons. Indeed, the Citizens United decision means corporate persons have more free-speech rights than some flesh-and-blood persons do. |
As discussed in section 5.1, a “corporate person” is a corporation, nothing more, nothing less. There is no way to abolish corporate personhood without abolishing the corporation entirely. See section 5.1. In particular, corporate personhood does not mean that corporations have the same rights and privileges as individual human beings. It is completely obvious that the law – whenever it wants to – can distinguish between corporate persons and flesh-and-blood persons.
If you cannot make this distinction, or if you think the law cannot make this distinction, then anybody who has any clue will know you are clueless.
Focusing attention on corporations misses the point anyway. The #1 key issue is still corruption.
Corruption comes from unduly concentrated power. Income inequality in the US has become so great that corporations are not the only threats to democracy. There are now hundreds of individuals with enough money to seriously corrupt the system. Several billionaires played conspicuous roles in financing political campaigns in 2012.
The word “person” comes from the Latin word “persona” which means mask, as discussed in section 5.3. In the law, the word “person” may or may not refer to a human being. When used in a broad sense, it refers to any legal entity that can act in its own name. A corporation can own stuff. It can sue and be sued. If you are offended by the idea of a corporate “person”, call it a corporate entity instead. It means the same thing.
| Nobody is stupid enough to think that the law is required to treat corporate entities the same as human beings. Corporations are not created in the same way. They are not taxed in the same way. They cannot be sent to prison in the same way. They do not count toward the census. They do not have voting rights. They are not endowed with any unalienable rights. | On the other hand, certain parts of the law are intended to treat corporations and human beings on the same footing. For example, most of the traffic laws apply equally to corporate-owned vehicles and to individually-owned vehicles. |
When writing certain laws, such as traffic laws, it is sometimes useful to have a catchall term that covers human beings and corporations collectively. Lawyers have chosen to use the word “person” for this purpose. If you don’t like this choice, that’s tough, but there is nothing you can do about it. Specifically:
Lawyers are notorious for using words in ultra-strict ways, sometimes twisting words to produce counterintuitive and deceptive results. However, they do not always adhere to their own strict standards. In particular, in some cases the word “person” is used to refer to natural persons only, while in other cases, it refers to natural persons and corporate persons collectively. Here are two contrasting examples:
| Consider Article I section 2 of the US Constitution, as modified by the 14th amendment. It apportions congressional representation according to “the whole number of persons in each State”. In this context, the word “persons” refers to human beings only. Nobody is stupid enough to think that it includes corporations. | The law allows a “person” to register an aircraft, in accordance with federal regulations. Some parts of these regulations apply equally to corporate persons and to individual persons. Meanwhile, other parts carefully distinguish corporations from individuals. There is absolutely no doubt that the word “person” (as used here) covers both corporations and individuals. There is also no doubt that the law sometimes treats corporate persons the same individual persons ... and sometimes differently. |
As a minor point of terminology, there is an 2000-year-old Latin word for a legislative body or any other body of people acting together. The word is corpus, corporis. This is the root of the English word corporation. It is also the root of the word corpse, meaning dead body.
Under the law, a corporation is sometimes said to be a body without a soul. Even then, it is an abstract body, in the sense that the senate is a legislative body. On the other hand, the corporation (despite the name) does not have a tangible body the way a human being does.
Edward Thurlow, 1st Baron Thurlow said: “Corporations have neither bodies to be punished, nor souls to be condemned; they therefore do as they like.”
We can paraphrase this by saying: “Corporations have no body that can to to jail, and no soul that can go to hell; they therefore do as they like.”
We can also say that a corporation is a persona without a soul and without a carcass.
As another minor point of terminology, as previously mentioned, the word “person” comes from the Latin word “persona” which means mask. A persona is not a human being. Masks have been around for a long time. Consider the following examples:
| The mask shown in figure 1 is supposed to represent Guido Fawkes. It is sometimes considered the personification of Occupy Wall Street and the Occupy movement in general. | The 2000-year-old theatrical mask in figure 2 is supposed to represent Dionysos (also known as Bacchus). It is the personification of drunkenness, debauchery, decadence, and bad governance ... so, loosely speaking, it is the opposite of what the Occupy movment is trying to achieve. |
Note the contrast between ideas and terminology:
| Ideas are primary and fundamental. | Terminology is tertiary. It is important only insofar as it helps us formulate and communicate the ideas. |
| If your ideas are correct, defend and explain the ideas. | Don’t defend the terminology. |
| Sometimes changing the terminology is the best way to defend and explain the ideas. | If somebody tries to trick you into arguing about the terminology, do not take the bait. |
| The crucial idea has to do with power and corruption. Large corporations and ultra-wealthy individuals have vastly too much political power. Plutocrats’ money has severely corrupted all three branches of our government. | Do not talk about corporate personhood. If you want to abolish corporations entirely, just say so. Do not talk about corporate personhood. If you want to rein in corporate power, just say so. Do not talk about corporate personhood. |
| If you argue with lawyers about legal technicalities, you’re going to lose. So don’t go there. |
No matter what terminology you use, two simple facts remain:
Here’s a prime example of something that seems illegal: Increasingly-many provisions of law have expiration dates, and must be extended every so often. This occurs even with provisions that everybody agrees are good policy. Reference 13 calls this “extender mania”, and says the “obvious” purpose is to
create the incentive for people to contribute to campaign coffers
...
create a mechanism that threatens a tax increase unless a reprieve can be bought, and ... you are certain that the reprieve will be bought.3
One can quibble about whether this should be classified as bribery or extortion, but either way, I do not understand how it could possibly be non-criminal. Seriously, are you trying to tell me that buying a reprieve from Congress is legal? Really? To say it the other way: If we wanted to make this illegal, what would the law need to say that it does not already say?
Note the contrast:
| If you were to tell me the current contribution-based lobbying system is illegal, but the law is difficult to enforce ... I would understand that. Enforcement issues are discussed in section 7. | If you try to tell me the system is corrupt but not illegal ... I don’t understand that. I don’t understand how it could possibly be legal. I’m willing to listen to explanations, but I haven’t yet heard one that passes the giggle test. |
Also, let’s be clear about another contrast:
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Lessig writes:
Gore’s team took the idea to Capitol Hill. One aide to Gore summarized to me the reaction they got, “Hell no! If we deregulate these guys, how are we going to raise any money from them?”4
This seems like obvious intent to set up a bribery scheme, to increase the number of salable regulatory details. We know the quid, we know the quo, we know the quid-pro-quo relationship, and we know the intent.
How can this not be illegal? To say it the other way, again: If we wanted to make this illegal, what would the statute need to say that it does not already say?
This is a good news / bad news story.
The good news is that the case shows it is possible to successfully prosecute a corruption case.
A total of 21 persons were convicted, including including Abramoff himself, White House officials J. Steven Griles and David Safavian, U.S. Representative Bob Ney, and nine other lobbyists and Congressional aides.
Abramoff pled guilty to several felony counts, including bribery in violation of 18 USC §201(b). So I reckon we can take it as a matter of settled law that he really did commit bribery.
The scary thing is that a lot of powerful officials seemed to think what Abramoff did was OK. For example, before the trial, Rep. Dana Rohrabacher (R-Calif.) said: “I think he’s been dealt a bad hand and the worst, rawest deal I’ve ever seen in my life. Words like bribery are being used to describe things that happened every day in Washington and are not bribes”.
Similarly Abramoff asked “Why me? What have I done that’s any different than anybody else?” Indeed. Good question.
Abramoff said: “Well, I, legally, I didn’t ‘bribe anyone’ but of course I bribed people. It goes on everyday. Anytime a lobbyist or a lobbyist client conveys a financial interest to a public servant with the interest of that public servant doing something on their behalf, it’s a bribe. So I was deeply enmeshed in a system of legalized bribery”.
I say these guys need to stop talking about legalized bribery. It’s not legalized. It’s just bribery. They’ve got some double-talk scheme to convince themselves that it’s legal, but it’s not.
By way of analogy, note that celebrity-related homicide cases often result in no conviction. However, this does not make homicide legal. As I see it, Ronald Goldman and Nicole Brown Simpson were the victims of a brutal crime, and it’s still a crime, even if the perpetrator (whoever that may be) will never be convicted.
So it is with bribery. I say widespread, long-term bribery is still bribery, and it’s still a crime, even if the perpetrators cannot easily be brought to trial.
I sympathize with the prosecutor, who has a hard job ... but I also sympathize with the crime victims. It would be very offensive to crime victims to tell them that arson or homicide or bribery is “not illegal” just because the perpetrator is wealthy and/or politically well-connected.
I agree with Glenn Greenwald (reference 14) that it is a scandal of the highest order that wealthy, politically-connected persons are now (mostly) immune from the laws that apply to everyone else. Whatever happened to “equal justice under law”?
Cynics used to say that “the law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread”. (Anatole France, 1894.) Evidently things are much worse now, in the following sense: A hundred-dollar bribe paid to the local postmaster is a serious felony ... but a million-dollar bribe paid to a senator’s super-PAC is business as usual. This is an outrage. It’s got to stop.
There has never been perfect justice, but are we no longer even trying, or even pretending to try?
As recently as the latter half of the George W. Bush administration, political interference in the decisions of the United States District Attorneys was considered scandalous. Alas, things have gotten much worse since then. At the beginning of the Obama administration, almost nobody in Washington batted an eyelash when it was decided, for purely political reasons, not to prosecute certain prominent persons who had publicly boasted of violating the Convention Against Torture.
If it is impossible to prosecute prominent persons for torture, it is an easy extrapolation to think that it might be difficult to prosecute prominent persons for bribery. The bribers have two lines of defense here: (a) pressuring the prosecutors, and (b) changing the law. As discussed in reference 14, we have seen both of these before, for example in connection with the illegal wiretapping carried out during the Bush administration. First of all, prosecutors simply refused to bring criminal charges, despite abundant, incontrovertible evidence that what had been done was exactly what the law forbids (and was meant to forbid). Secondly, faced with the possibility of civil sanctions, the telecom companies lobbied for the law to be changed. I am not a lawyer, but as I understand it, the Bush-era wiretapping remains illegal and unconstitutional, and the special provisions in the new law don’t even pretend to make it legal; they just prevent the case from being heard in court. Reference: 50 USC 1885a – Procedures for implementing statutory defenses
Again I say: Bribery is still a crime, even if the perpetrators cannot easily be brought to trial.
Consider the following type of behavior:
“One never writes if one can call,
never calls if one can speak,
never speaks if one can nod, and
never nods if one can wink.”5
When I first read that, I thought it was describing the behavior of Vinnie the Chin or some other mafia don interacting with his capos ... but no, it was meant to describe the DC lobbying scene.
I mention this for two reasons:
First of all: This pretty much destroys the #1 theme of reference 13, namely the notion that “good souls” have been unwittingly drawn into a system that, despite their best efforts, ill-serves the public interest. I say that folks who don’t dare keep records of what they are doing simply must know they are up to no good. They know they are engaging in bribery, quid-pro-quo, and they know they need to hide the connection between the quid and the quo ... not to make it legal, but merely to make the crime hard to prosecute.
Secondly: I reckon prosecuting a lobbyist would be about as hard as prosecuting a mafia don. It requires years of effort, and even then is not always successful. Still, I insist that it needs to be done.
I’m not an expert in such things, but I imagine that the process is similar in both cases: You start by turning a low-level informant, which produces enough probable cause for a wiretap, and then you’re off to the races. Proving intent is never easy, but a wiretap helps. Ask Blagojevich.
There are 535 Members on the hill, and thousands of staffers, and thousands upon thousands of lobbyists. To get the enforcement ball rolling, you only need one of these to have a road-to-Damascus moment, where he decides to support the 99.9 percent of the citizens who need protection against the 0.1 percent who benefit from the existing pattern of corruption. You then hope for a snowball effect, where the criminals turn on each other.
Also note that there is some record of successful sting operations, where law enforcement is not just a passive observer, but takes a somewhat more active role. I’m not saying any of this is easy, but it’s not impossible.
We have a big problem with bribery and corruption. The problem is not corporations per se. The problem is not Citizens United. The problem is bribery and corruption. This is a fixable problem.