Two Yale law professors think they know what, exactly, the APPEARANCE of quid pro quo corruption looks like. They don’t. But I do.
If the president is to be taken seriously, it’s time for him to make campaign finance a centerpiece of the upcoming campaign. Despite appearances, serious reform remains possible within the new limits set out by the Roberts court. Obama should take full advantage of the chief justice’s explicit recognition that the “appearance of corruption” serves as a compelling rationale for controlling contributions. This provides a meaningful roadmap for concrete reforms that will call a halt to the rise of plutocracy in American politics.
Consider, for example, the pathologies surrounding Wall Street’s defense of the loophole allowing big money to pay only 15 percent tax on investments as “carried interest.” To defend their right to pay lower rates than the average worker, hedge funds have doubled their political contributions from $20 million in 2008 to $40 million in 2012; yet more recently, private equity firms have entered the contribution business in a big way for the first time.
— All Eyes on Obama: Obama needs to put his money where his mouth is on campaign finance reform, Bruce Ackerman and Ian Ayres, Slate, yesterday
In this post of mine here on Thursday, I mentioned that Roberts said in McCutcheon that Congress could still “regulate campaign contributions to protect against corruption or the appearance of corruption,” but then limited “corruption” to an actual quid pro quo. Which I think there’s no question that he did. I then said this raises the question of what, exactly, the appearance of quid pro quo corruption looks like. “Y’know, as opposed to the real thing,” I said.
Ackerman and Ayres, both of them Yale law professors, want Obama to try to push Congress to hold Roberts to the “appearance of corruption” thing. Which, as reflected in that quote above, would require an express statutory bar to large campaign contributions–to candidates and also, presumably, political parties–by anyone who made the contribution in order to obtain or prevent an end to favorable tax, subsidy or regulatory legislation, if that candidate wins (or that party wins control) and then does the bidding of the contributor.
That conduct is comfortably within most Americans’ definition of actual (if legal) corruption, I think, but it is expressly precluded from Roberts’ definition of “corruption” and also from his definition of the appearance of corruption. Still, the professors go on to say:
The impact of this rapid expansion in large gifts was recently on display when Republican Dave Camp, chairman of the House Ways and Means Committee, proposed a sweeping tax reform that would have eliminated this, and many other, loopholes that allow the top 1 percent to pay taxes at lower rates than those imposed on the average working family. Within days, threats of campaign retribution had generated widespread opposition in congressional ranks, leading a despairing Camp to announce that, despite his powerful position, he would not seek another term in office.
This stunning defeat of a reigning congressional baron, together with the escalating sums of big money, is more than enough to establish the “appearance of corruption.” Under present law, for example, federal contractors are not allowed to “make any contribution of money or other things of value” to “any political party, committee, or candidate.” After reviewing relevant case-law, a federal district judge upheld the ban because it “guards against ‘pay-to-play’ arrangements, in which people seeking federal contracts provide financial support to political candidates in return for their help securing government business.”
The same rationale should lead President Obama to propose a ban on contributions from taxpayers benefiting from the “carried interest” loophole. Going further, he should cap donations on any person who pays a lower tax rate than the rate of the average worker.
I assume that Ackerman and Ayres are sarcastically making the point that I tried to make: that McCutcheon actually limits campaign-finance laws to prohibiting what already violates criminal law: bribery.
But this illustrates an even more important point. A key modus operandi of that crowd is to effectively amend the Constitution by redefining common English-language words and phrases, to the extent needed to achieve their goal.
“Corruption” means only smoking-gun quid pro quo. The “appearance of corruption” means only smoking-gun quid pro quo.
“Freedom” does not include actual physical non-imprisonment; to the contrary, “freedom” means states’–or actually, state courts’—and prosecutors’ freedom to violate criminal defendants’ constitutional rights, to their heart’s content.
“People” means “states,” except that it really doesn’t, usually; it only does when the Voting Rights Act is being challenged as an unconstitutional infringement of the Fourteenth Amendment’s guarantee of due process and equal protection of the law. Heretofore (that is, since that Amendment’s ratification in 1868, until last year) the Fourteenth Amendment was thought to guarantee those rights only to human beings, and its sole purpose was interpreted to protect only against states’ violations of those rights, since that is what it says; the Amendment does limit the guarantees to “people” and protects only against state–not the federal government’s–violations of those rights.
Just so you know, the section of the Fourteenth Amendment that Roberts, Kennedy, et al. said they were relying on to strike a key section of the Voting Rights Act last year, upon their stated conclusion that that section guarantees states the right to equal protection of federal laws, reads:
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
And, of course, “people” means for-profit corporations, for purposes of First Amendment freedoms.
This is a seriously dangerous tactic, being employed now, regularly, by a bare majority of our country’s Supreme Court. They de facto amend the Constitution to change its very nature, and of course not incidentally the very nature of the electoral process, simply by giving unconventional meanings to common words.
I do disagree, strongly, though, with Ackerman’s and Ayres’ proposition that Obama himself constitutes the end-all-and-be-all of making McCutcheon a significant campaign issue this year (or not). A huge problem for the Democrats, throughout the Obama administration, has been the failure of members of Congress and candidates for Congress to pick up Obama’s bizarre slack–on the ACA, on Keynesian economics, and on other critically important policy issues. Obama’s not going to change. So what? This year’s Dem candidates can get these messages across on their own.
If they want to. And they should want to.
*Post edited substantially and expanded. 4-6
** Now cross-posted at my own newly minted blog, called … The Law of the Jungle.
The train left the station on defending “Keynesian economics” long ago. Democratic acquiescence (an oxymoron?) has let it happen without objection for too long. “Keynesian” enjoys more or less the same opprobrium with huge segments of the population — the seeing red factor without the slightest awareness of why — as “liberal” or “Krugman.” (Most of the rest don’t have a clue what it means. ) I prefer always to call it “job-creating infrastructure projects” or something similar that doesn’t scream “bigger deficits” without the positive flip side, “millions of jobs.”
And if Democratic candidates want the hard workers who can generate the turnout they need, they better figure out how to advocate the basically populist economic positions those potential workers believe are critical to the good of the country. It’s the Democratic base that does all of that work, not Third Way devotees.
At what level of rhetoric is a quid pro quo happening when a person hands money to a candidate?
Is it:: I want you to vote to favor Israel.
Is it: I want you to vote to favor prayer in school
Is it: I want you to vote to raise taxes on those earning more than me.
Is it: I want you to vote to expand highway funds.
Is it: I want to have a private meeting with you do determine the extent of my support for you.
It’s all quid pro quo at some level.
Its the point of view. To the Moneyman and the Politician, why, its all good and Moneyman’s backers as well. To the rest of US, probably not so good.
None the less, its STILL 99 to 1, think about it.
Why shouldn’t the affluent have more say in government? Without them, the economy, along with government (including budget deficits) would be much smaller.
Ha, ha, ha; I hope that is sarcasm coming from you.
Did you actually read what you wrote before you posted it? I mean, wow! Just WOW!
Though maybe I’ve read you wrong because you are suggesting the affluent are the drivers of the deficits? Ok, then tax them to pay for their debt.
Daniel, do you actually understand what other people write? Be happy you have a ride, particularly, if you’re a “free rider.”
Some people here believe the private sector should pay tribute to the government for allowing it to succeed. This is a case where it does work both ways. Also, it should be noted, government is paid well, and many in government are affluent.
Urban Legend, I definitely don’t recommend using the term “Keynesian economics”. I just think it’s really critical for progressives to point out that huge numbers of government jobs, federal, state, and local, were eliminated since 2008, that that has been a huge drag on the economy–and why.
It’s actually very easy to explain. Teachers, firefighters, cops, librarians, have mortgages, by groceries, clothes, electronics, cars, go to restaurants, etc.
Krugman has explained this in clear, concise, non-technical-language terms a zillion times. And, really, as he keeps pointing out, all you have to do is look at various European countries–Britain vs. Germany, for example.
The Dems make a huge mistake in presuming that any concept or fact that’s even slightly sophisticated can’t be explained easily to the public. Obama has made that his absolute credo. Which is why the Republicans have controlled the policy agenda throughout his presidency.
And even when he sporadically does attempt this, he completely scrambles is. “You didn’t build that.” “The private sector’s doing fine.” It’s absolutely stupifying.
Some day you support your ideological bs with actual facts with a link from a real authoritative source.
But not today…
EMichael, what “ideological bs” are you talking about? Why should I link the obvious.
Do you want a link to GDP, taxes, government spending, income or wealth of government employees?
Maybe, if you believe the top 20%, for example, just went away, the country would be better off.
“government is paid well, and many in government are affluent.”
There you go. A real link to real facts would be nice.
Spare me the usual suspect like the AEI, etc. And anecdotes also.
And it terms of tribute, almost everyone pays tribute to the government for allowing them to succeed.
Without a government there would be absolutely no chance for success. Examples of this in history are many. Mostly when societies degenerated into the plutocracies you advocate we should have.
EMichael, why don’t you ask postal workers about their wages & compensation – or any government employee – or look up how many millionaires are in Congress.
Without a private sector, there’d be no government.
The private sector can survive without a government, except for national defense and a basic legal system.
I’ll talk to my postal worker the next time I see him.
And, I believe in a meritocracy, not a plutocracy.
So the Koch brothers are the result of a meritocracy?
Strange, I thought they won the gene pool.
You wrote: Why shouldn’t the affluent have more say in government? Without them, the economy, along with government (including budget deficits) would be much smaller.
Now, I can properly break that out to:
1. Why shouldn’t the affluent have more say in government? Without them, the economy, would be much smaller.
2. Why shouldn’t the affluent have more say in government? Without them, the government would be much smaller.
3. Why shouldn’t the affluent have more say in government? Without them, the budget deficits would be much smaller.
You tell me, did I read you wrong? Are you not saying those 3 things? Please, I’m giving you an opportunity to clarify, as I tried prior.
As to the top 20% going away. I would be fine with that because their share would be divided up in some way to the remaining 80% which would now actually be the new, yet smaller in number 100% and we would still have a top 20%.
Go read my bio hear at AB. I’ll wait for your apology regarding the “free ride”.
Daniel, I thought my statement was clear.
And, how will the top 20% distribute their human capital, assets, and dollars when they’re no longer in the country?
Are you saying there are no free rides, if necessary, or can be taken advantage of?
And, why should I apologize for your sensitivity or defensiveness? Will reading your bio make you correct?
Ok then Peak,
We agree. You are saying the affluent are responsible for the high deficit. That is, without them it would be lower. Ok then I can see that.
Oh, you are saying the top 20% would leave the country with their money. My mistake. It’s the Galt thing you were suggesting. Well, it still does not change the fact that there will be a top 20% within the remaining 80% that is now the new 100%. That new 100% I’m sure will be fine without the departed 20% who as you suggest were raising the deficit any ways. Guess my taxes will be less now as I assume that 20% Galt group will take their excess share of the deficit they created when they leave?
Free ride? You were suggesting I was a free rider or was getting some kind of a ride as I read your words. Read my bio.
Daniel Becker: NO need to worry about the top 20% leaving with their money.
1. Where on earth would the leaches go?
2. Its Federal Reserve Notes, WE can just print more, no problemo.
still pondering Supremes notion of crucial issue being appearance of corruption….wondering about prevention of corruption — how come they cannot consider prevention
“require an express statutory bar to large campaign contributions–to candidates and also, presumably, political parties–by anyone who made the contribution in order to obtain or prevent an end to favorable tax, subsidy or regulatory legislation, if that candidate wins (or that party wins control) and then does the bidding of the contributor.”
So size is the only thing that matters? Also, would the reaction of special interest in the Dave Camp example be considered extortion?