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.

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