Copyright © 2012 jsd
Let’s talk about government corruption, especially the system whereby powerful interests make huge “campaign donations” and then “coincidentally” benefit from special provisions in the laws. This system is spectacularly corrupt and harmful to public policy. Although it has gotten worse lately, it has been a problem for more than 100 years. For example, Teddy Roosevelt – a Republican – sounded the alarm in 1910, in his famous “New Nationalism” speech (reference 1).
An almost-excellent discussion of the current situation can be found in Lawrence Lessig’s recent book, Republic, Lost (reference 2). If you can’t get your hands on the book, you can get much of the same information by watching Lessig’s lectures, which are available online for free (reference 3). A book review can be found in reference 4.
I agree with almost everything Lessig has to say ... except for the main conclusion and main theme of the book! He says over and over again that even though the system is corrupt and ill-serves the public interest, virtually all of it remains technically legal. I’m not convinced. It seems to me that a great deal of it is illegal, just structured in such a way that the perpetrators cannot easily be caught.
This leaves us with two questions:
This is exceedingly important, as discussed in section 4.
We all agree that corruption is a problem. The next step is to better understand the details of the problem, and then formulate strategy and tactics to deal with it. Lessig’s book is an excellent source of raw data about the problem. Some of the conclusions he draws from this data make sense, but some of them strike me as highly dubious.
Here is the #1 most-prominent theme of the book, especially in the first three parts (out of four):
Any account of the failure of our democracy that places idiots or felons in the middle fundamentally misses what’s actually going on.1
Later he says:
We have good reason to mistrust. The problem with Congress is not just appearance. It is real.
....
The corruption that is our government.2
Apparently Lessig has concluded that the corruption is real, just not criminal. At the next level of detail, we can summarize his conclusions in terms of three equalities and two inequalities:
| Lessig’s Conclusion |
I am mystified by the last point, i.e. corruption that is not criminal, because this point not well supported by the examples he gives, many of which seem clearly criminal.3 Again and again he says things like:
At the federal level, bribery is almost extinct.4
However, he doesn’t do a good job of explaining this. Repetition is not explanation.
As a point of logic, of course we can distinguish between appearance and reality (left versus right in the foregoing table). Similarly it is possible for something to be contrary to the public interest, yet technically legal (third row versus bottom row, on the RHS of the table). Surely some of the evil that goes on in Washington is technically legal ... but quite a lot of it isn’t. We need to consider all the possibilities.
Here is an analogy: We can ask two separate questions:
That leaves us with four possibilities. Here is a table, showing some illustrative examples:
| toxic | not very toxic | ||||
| bad taste | : | cadaverine | denatonium saccharide | ||
| good taste | : | lead acetate | chicken soup |
I agree with Lessig that the taste issue is important, because if the food tastes bad, nobody will eat it, and the restaurant will go out of business.
It seems to me that Lessig is recommending, for tactical reasons, that we ask only about the taste, and never, never, never5 ask about the toxicity. In my judgment, this is an unwise tactic. It predictably motivates the bad guys to use good-tasting poisons. I say that we need to ask both questions. I agree that the taste issue is important, but I insist that the actual toxicity is also important.
Also note that the distinction between apparent illegality and actual illegality need not be tolerated, and must not be tolerated in the long run. That is, if corruption is legal, we can and should make it illegal. See section 3.3.
Lessig seems to imply, over and over again, that bribery laws apply only to cash-on-the-barrelhead transactions, quid-pro-quo, where the quid is explicitly, directly, and instantly connected to one particular quo. He talks6 about “bags of cash”, as if that were the only way to make payment for a bribe. I am not a lawyer, but to my eyes, the statute seems much broader than that. You can check for yourself: 18 USC 201 – Bribery of public officials and witnesses.
His most-detailed attempt to explain why the corrupt behavior is not technically illegal is this:
The guilty government official must intend to pay for the contribution made.7
I agree that to convict someone of bribery, you have to prove intent. This is as it should be. Furthermore, I agree that if you limit attention to the congressmen themselves, proving intent might be tricky in some cases. However, in other cases, including some of the examples Lessig cites, the politicians demonstrate clear intent; some examples are discussed in section 2.5 and section 2.6.
Furthermore, Lessig overlooks the fact 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 advertised8 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. Lessig calls9 it “return on investment”.
If planning 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?
Lessig seems to assocate bribery with strictly private kickbacks, directly into the politician’s personal pocket.
At the federal level, bribery is almost extinct. There are a handful of pathologically stupid souls bartering government favors for private kickbacks, but very few.10
As a minor point, I will stipulate that private kickbacks are rather rare, although some examples are known ... such as the lavish travel, meals, sports tickets, et cetera that were part of the bribes given to Congressman Bob Ney.
Be that as it may, the larger point is that the statute is much broader than this. It covers “anything of value” given “directly or indirectly”. Even in the Ney case, campaign contributions were considered part of the bribery scheme to which he pleaded guilty. Without doubt, the contributed money was a “thing of value”. That counted as bribery, even though it did not flow directly into Ney’s private pocket.
Lessig is a clever lawyer, and is very fond of litotes, i.e. double negatives and dramatic understatements. Here he seems to be saying “My client is not as stupid as Bob Ney. My client didn’t put the lobbyists’ money directly into his private pocket”.
To that I say: OK, your client is not stupid, but so what? He’s still a crook. A bribe paid into the campaign fund is still a bribe.
Here’s another example of something that seems illegal: Lessig describes how 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. Lessig 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.11
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?
Or is that the wrong question? (See section 3.4.)
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 3. | If you agree with Lessig and 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:
|
|
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?”12
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?
Or is that the wrong question? (See section 3.4.)
For what it’s worth: Lessig is a smart guy, and I strongly suspect that even he doesn’t believe the corruption is legal, just as Marcus Antonius didn’t believe a word of what he was saying when he came “to bury Caesar, not to praise him” (reference 5). Lessig practically admits as much on page 85 of the book.
I suspect he wants to inflame all his friends, Romans, and countrymen, without saying anything that is overtly inflammatory.
Everybody seems to agree that money buys access, and that access influences legislation. So, I ask again: If we wanted to make corruption illegal, what would the statute need to say that it does not already say?
Or is that the wrong question? (See section 3.4.)
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 6) 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 6, 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.”13
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 Lessig’s #1 theme, namely 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.
At the end of part III, Lessig writes:
If Congress has the power to restrict speech to limit quid pro quo corruption, and the appearance of quid pro quo corruption, it ought, in principle at least, to have the power to restrict speech to limit dependence corruption as well.14
I find this remarkable, because it means that the distinction that was so carefully cultivated, namely the distinction between corruption and illegality, is not important in the long run. As far as I can tell, a great deal of the corruption is already illegal ... but if I’m wrong about that, the first step should be to make it illegal!
It is essential for corruption to be illegal, because otherwise, none of the reforms Lessig is suggesting (in part IV of the book) will be successful. Among other things, consider what happens if there is public financing of campaigns: As always, no matter how much money you give to candidates, they will always want more. If they can get more by selling special-interest legislation, they will do so, as long as they can get away with it.
Even if there is some disagreement about the tactics, we agree on the goals, and we should keep this in mind. The goal here is to restore trust in government. I say the first step is to make the government worthy of trust.
Lessig makes a number of specific tactical suggestions, none of which are particularly easy to carry out. I am suggesting an additional tactic: We should make sure corruption is illegal, and then enforce the law. In absolute terms, this tactic may not be easy to carry out, but in relative terms, it may well be easier than some of the other tactics that have been proposed (such as a constitutional convention).
None of this is easy. If there were any easy solutions to this problem, we wouldn’t still be having the problem!
By way of analogy, consider the effect of license plates on cars. The license plate does not make it operationally harder for a bad guy to break the speed limit, or to flee the scene of an accident, or to flee the scene of a bank robbery. However, it does make it easier to catch the bad guy.
Similarly, there is not (so far as I know) any law that requires a merchant to use a cash register. However, the invention of the cash register was a stroke of genius. Any sane merchant will install one, because it makes certain types of embezzlement more difficult.
Let’s be clear: The cash register is not like a new law that suddenly makes embezzlement illegal. Instead, the cash register is a procedure that makes the long-existing law against embezzlement easier to enforce. It also helps by reducing temptation.
The same idea applies to bribery and corruption:
In fact, our tax code is riddled with the most absurd exceptions. Special rates that apply to “all corporations incorporated on January 12, 1953, in Plymouth, Massachussetts, with a principal place of business in Plymouth, employing at least 300 employees as of 2006”....15
If that provision were enacted as a stand-alone law, requiring a recorded vote, any congressman who voted for it would be vilified. It would become a campaign issue at the next election. However, such provisions never receive a recorded vote, or even any open debate. They are stuck in by the lobbyists who write the bills. The congressmen who vote for the overall bill disavow any responsibility for that provision.
It’s the perfect crime. The getaway car has no license plate, and there are 100 similar unlicensed cars on the road, so we don’t know whom to arrest. Also, there are 100 cashiers (or 435 cashiers) sharing the same till, and they all blame the embezzlement on “some other guy” so that we don’t know whom to arrest.
Therefore, we need to consider the following hypothesis: Let’s suppose that bribery is already sufficiently illegal. In that case, we don’t need to make it “more illegal” in any operational sense. We just need to make the existing laws easier to enforce.
I’m not sure how to do this.
One possibility would be to require more fine-grained accountability for official acts. As a step in that direction, it would help to get rid of “omnibus” bills, in favor of a larger number of much smaller bills. Similarly, rules against earmarks would help. This includes earmarks in tax laws, not just in spending bills. For any special provisions that remain, we should demand that some Member take personal responsibility.
The Constitution limits the power of the Senate, limits the power of the House of Representatives, limits the power of the President, et cetera. The Founders fought a long, bitter war in hopes of establishing limited government.
Now, alas, we have a situation where wealthy corporations (and sometimes wealthy individuals) exercise essentially unlimited power over all branches of government. It defeats all the checks and balances. It defeats the purpose of the Constitution.
This infuriates the Tea Party folks, infuriates the Occupy Wall Street folks, and infuriates a whole lot of folks in between. Something needs to be done.
Speaking of wars, it could be argued that buying a reprieve from Congress (as mentioned in section 2.2) is closely analogous to buying indulgences from the 15th-century Catholic Church. Recall that all 95 of Luther’s theses had to do with indulgences, and that about a quarter of them had to do specifically with buying and selling indulgences (reference 7). It simply does not matter whether this was considered technically legal at the time; it was widely considered to be intolerable. It led to civil war. Multiple civil wars.
This is serious business.
Copyright © 2012 jsd