The Supreme Court has mostly completed its decimation of any anti-corruption law that might have caused any more than the slightest inconvenience for the plutocracy’s political investments. Therefore the Court has now picked up its judicial supremacy ax to perform a similar demolition of laws that regulate the other side of the corruption equation. In a decision announced on June 27, timed as one of three final opinions of its 2015-16 term, the Court turned its attention to protecting the influence peddlers – who are installed by and otherwise benefit from the now freely flowing plutocratic investments – from prosecution for their delivery of the peddled policies.
The Supreme Court’s line of cases culminating in McCutcheon v. FEC (2014) granted plutocrats a First Amendment right to buy influence, under the guise of campaign finance. The Supreme Court’s bizarre interpretation that “freedom of speech” is the equivalent of freedom to make political pay-offs thus denies government the power to restrict the flow of special interest money into politician’s pockets through the various channels for campaign financing. This creates conflicts of interest for the peddlers of that influence, though it did not legalize the delivery of policy notwithstanding those conflicts. But Chief Justice Roberts signaled a change when he wrote in McCutcheon that since “[i]ngratiation and access” bought in this manner “are not corruption…. [t]hey embody a central feature of democracy.” Laws cannot not stop the creation of such conflicts in Roberts’ version of marketplace democracy.
Bribery and Undue Influence
The Supreme Court justifies its project of eliminating legal restraints on the sources of campaign finance corruption that flows to politicians on the grounds that the corrupting effects can nevertheless be prevented by prosecuting the targeted recipients of the money for commission of bribery, which the Court calls quid pro quo corruption. The Latin term lends legalistic gravitas to the Court’s otherwise unsupported distinction between the individual and transactional character of legal bribery on the one side and the systemic character of most contemporary conflict of interest, or undue influence, corruption that the Supreme Court has created and perpetuated on the other side. The Court contends that only the relatively narrow category of quid pro quo transactions, bribery, can be addressed by prosecution of both sides of the transaction.
The Court’s fatuous argument that there is a constitutional reason to enforce laws against bribery but not against systemic corruption ignores the vast difference between the remedies appropriate to address individual acts of corruption and those remedies required to treat systemic corruption, a system that operates on the purchase of conflicted interests. Bribery involves a direct two-way knowing transaction, easily concealed, or disguised as unknowing, and therefore very difficult to prosecute. The more amorphous kind of systemic influence peddling that involves unspoken networks of exchange requires an entirely different set of remedies which are themselves systemic. The Court has mostly outlawed such remedies on the purchaser of policy side of the transaction. The classic form of systemic corruption routes the flow of money through various intermediary organizations such as SuperPACs while the corresponding demand for policy is routed separately through lobbyists, leaving the essential indicia of a quid pro quo relationship only implicit, and therefore less capable of supporting a bribery charge.
Because only amateurs tend to get caught up in bribery prosecutions, the Court is grossly wrong in claiming that enforcement of bribery laws, which only work occasionally on individuals, commonly the most amateurish participants in the plutocracy, can be a solution for systemic forms of corruption. Professionals employ systemic processes that do not rely on the express agreement element of the crime of bribery, or alternatively they use organizational intermediaries capable of skillfully suppressing evidence of express agreement where systemic processes will not suffice.
Bribery laws enforced against the sellers of influence, like conflict of interest prohibitions which also operate on this demand side of the influence peddling equation, generally require politicians to recuse themselves from taking official action on behalf of special interests who have conferred benefits on the politician. These kinds of laws which regulate what the recipients of special interest benefits may do in return have been held not to implicate the First Amendment. For example, in Nevada Commission on Ethics v. Carrigan (2011) the Court held unanimously that legislative voting is nonsymbolic conduct, and therefore is not First Amendment speech subject to Supreme Court oversight. This principle could be generalized to cover all official acts involved in the conduct of government. Cf. Garcetti v. Ceballos, 547 U.S. 410 (2006)(5-4)(“public employees … statements pursuant to their official duties … are not speaking as citizens….and the Constitution does not insulate their communications” from legal restraints.)
Ever since the Supreme Court first entered the field of corrupting representative government in Buckley v Valeo (1976), it has relied mainly on its shell-game First Amendment logic to support its long line of pro-corruption decisions. Conflict of interest rules free of First Amendment scrutiny can thus be freely applied to require recusal by officials from engaging in conflicted legislative acts, and other conduct of official duties, on behalf of special interests. Pro-corruption judges cannot therefore interfere with these rules. Under the same reasoning, bribery laws that punish officials who agree to deliver official acts in return for such favors would similarly not involve First Amendment judicial scrutiny.
It has been the corrupt Congress and state legislatures, not the corrupting Court, that have been responsible all these years since Buckley for the failure to enforce traditional conflict of interest prohibitions against the increasing levels of legalized campaign finance corruption of politicians. The diversion of their delegated public powers to the service of their benefactors’ private interests and against the public interests of the electorate can be prohibited by internal legislative rule or legislation. While the Supreme Court has given the plutocratic benefactors nearly absolute First Amendment protection from any laws effectively prohibiting the supply of political investments, it is the politicians who have given themselves a free pass to deliver the influence they peddle in return for those investments. If the latter deliveries of policy were prevented by robust enforcement of disclosure and conflict of interest recusal rules, with the backup threat of bribery prosecution, plutocratic payments for undelivered purchases of policy would dry up.
Completing the Job
Since such recusal laws would thus provide a systemic remedy suited to the systemic corruption created by the Court’s project of deregulating the supply of money in politics, the Court has now, without even mentioning the subject, issued a deceptive decision that maps a retreat from its permissive doctrine with respect to regulating official conflicts of interest and bribery. It has done so by ruling that an elected official who takes money for, and then engages in, conduct within his or her official capacity in order to advance, as agreed, the special interests of a benefactor, such as by making useful introductions, setting up a meeting, talking to another official, making a product endorsement, or organizing a promotional event on government property, but which activities do not fully succeed in accomplishing the supposed grander concrete policy goal sought by the benefactor, does not commit an act that fits within the Court’s re-definition of an “official act.” It makes no difference to the judicially-revised definition that such exempted activities were unquestionably performed within the scope of the politician’s official duties. It makes no difference that the power to perform those official duties were conferred solely by the electorate. Nor does it matter that the electorate at no time indicated that it wanted those duties they delegated to the politician to be sold for the politician’s private benefit. That is why the public pays officials with a salary, not on a commission basis.
The above somewhat oversimplified description of the Court’s ruling suggests a clearer distinction than the Court’s more convoluted reasoning actually draws under the pretense of elucidating, while actually obscuring and subverting, the meaning of the statutory text. But it captures the gist of the Court’s ruling in McDonnell v. United States (2016).
At least one professional court observer was sufficiently confused about what the Court actually held to think that it was the lack of “smoking gun” evidence of the agreement that caused the Court’s ruling,. It may therefore be useful to diagram the ruling in terms of the Court’s own quid pro quo formula. The Court said: “To convict the McDonnells of bribery, the Government was required to show that Governor McDonnell committed (or agreed to commit) an “official act” in exchange for the loans and gifts.”
As for the quid consisting of “the loans and gifts,” the Court itself found them to be “extravagant” and “tawdry,” as discussed below. So the Court recognized the quid had far more than just gunsmoke for proof of that element of bribery. Similarly, the pro, the agreement by which Governor McDonnell “committed” to “exchange” something in return for the quid, had been decided by the jury on adequate evidence. “The agreement need not be explicit, and the public official need not specify the means that he will use to perform his end of the bargain. Nor must the public official in fact intend to perform the “official act,” so long as he agrees to do so…. It is up to the jury, under the facts of the case, to determine whether the public official agreed to perform an “official act” at the time of the alleged quid pro quo.” An appellate court could therefore not easily interfere with that finding of fact either without major disruption of established law.
Since all that was left in the formula to justify a pro-corruption ruling was the quo component of the crime, that is where the Court worked its changes in the law. The case thus had nothing to do with “smoking guns.” The prosecution’s evidence was rock-solid. According to the Court: “The issue in this case is the proper interpretation of the term ‘official act.’” The Court simply rewrote the law that had been on the books for over a century to eliminate the kind of official acts that were previously a clear element of the crime of bribery. It was an element that any citizen would want and expect to be part of the law of bribery who did not want those entrusted with public power to sell any part of that power for personal gain.
This latest pro-corruption decision by the Roberts Court adds to the long line of cases since Buckley whereby the Supreme Court has continuously breached the separation of powers to arrogate from the sovereign people their inherent constitutional power to defend their democracy from being overthrown by corruption. The Supreme Court throughout much of its history since the Dred Scott decision has had a net anti-democratic influence on governance. See Louis Boudin, Government by Judiciary (2 Vols.) (1932); Erwin Chemerinsky, The Case Against the Supreme Court (2014); Ian Millhiser, Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted ( 2015). This has been especially marked in its pro-corruption jurisprudence since 1976 which is responsible for the current second Gilded Age, its inequality, and its multiple policy dysfunctions in nearly every are of life.
In Burroughs v. United States, 290 U.S. 534, 546-48 (1934), a prosecution for handling campaign contributions in violation of the Federal Corrupt Practices Act of 1925, a highly conservative Court, the same Court that FDR sought to “pack.” reflected the common sense understanding of corruption that had endured through most of the country’s history prior to the “Nixon Court” of 1976. The 1934 Court found the “proposition so startling as to arrest attention” that “a government whose essential character is republican,” and is therefore dependent on the integrity of its elections, might lack the power “to secure this election from the influence of … corruption.” Burroughs ruled that a republican “government … must have the power to protect the elections on which its existence depends from … corruption.” Otherwise “the very sources of power may be poisoned by corruption,” placing “the country in danger, and … at the mercy of … unprincipled corruptionists.” Placing the country at the mercy of “unprincipled corruptionists,” otherwise known as plutocrats, has been the mission of the Roberts Court, as heir of the Nixon Court. As said by Jeffrey Toobin, The Oath: The Obama White House and The Supreme Court (2012) 258, “Roberts was on a mission – to deregulate American politics” by overturning anti-corruption laws. McDonnell illustrates, if it were not already fully clear, that if Americans want their democracy back they will have to strip the Supreme Court of the usurped power with which it carries out Roberts’ illegitimate mission.
Among those “so startling” cases since Buckley that have violated the original understanding about the sovereign power of self-defense against corruption to democracy, McDonnell arguably most “arrest[s one’s] attention” of any of them, due to its failure to attract a single dissent from the current new Gilded Age Court. The eight justices who signed on to McDonnell have now all been appointed within the corrupt post-Buckley political order operated by and for plutocrats since 1976. McDonnell is one of the more blatantly overt violations of the fundamental separation of powers doctrine that prohibits the Court from giving advisory opinions on hypothetical cases. The unanimous 8 to 0 vote perhaps also contributed to the general critical neglect of the decision by the media on a news day designed by the Court to distract attention to its two identity politics decisions, issued at the same time, about domestic gunslingers and abortion. It is important that public attention be distracted when the Supreme Court is engaged in its core business of undermining democracy for plutocrats.
Exculpation by interpretation
In McDonnell v. United States (2016), lacking any single existing, or otherwise good, legal reason to interfere with the bribery prosecution of the carelessly conflicted governor of Virginia and his venal wife, the Court confusingly combined several inadequate excuses to limit the kinds of official activities that can be prosecuted under federal bribery laws. The Court apparently intended that one or another of its shallow reasons might stick or at least create enough confusion to forestall understanding of what the Court was really doing. The strategy seemed to work with the Court’s liberal justices who for the first time all joined a pro-corruption decision having very dangerous implications as future precedent.
The Court’s tactic for extending its four-decade plutocracy project into new territory by protecting from prosecution not just corrupt plutocrats but also their corrupt politicians was to curtail the legal meaning given by Congress to the otherwise all-inclusive term “official acts.” To do this the Court defines what actions, from among the myriad of powers within their official capacity, politicians are still prohibited from selling to special interests and what they can now sell with impunity.
The new meaning of the term “official acts” that the Court dictates is different from the ordinary common-sense meaning of the term. It is also contrary to the accepted understanding of the term that was settled by the Supreme Court a century ago, and followed by the federal courts ever since: “official acts” include “[e]very action that is within the range of official duty.” This reading is consistent with both the courts’ and the ordinary common sense meaning that would include whatever an official does within the scope of his or her legally defined or traditionally practiced official capacity.
To be successfully prosecuted for bribery, the “official act” in question would have necessarily demonstrated some value in the marketplace for influence peddling. If a jury decides that the act was in fact performed in exchange for pecuniary inducements, that should be sufficient guarantee that it involved a valuable use of political influence for a special interest’s private purpose and was not just some harmless de minimis political gesture. But the Court parsed the term “official acts” in order to make a new distinction between what it considered good and bad bribery, independent of any actual understanding of the utility of the act for subverting government to private ends. It is justified by some vague suggestion that the protected sales are of lesser a priori importance and must therefore be tolerated, so as to minimize the impact of bribery prosecutions on the ongoing court-sanctioned marketplace for public policy within which its preferred plutocratic form of government operates.
The Court’s legal reasoning for its idiosyncratic interpretation of the term “official acts” is not designed to enforce the intent of Congress, which was to include all acts taken within the broad category described by a politician’s official capacity. Congress did not express any intention that politicians who slow-walk the delivery of the ultimate policy goals for which money was taken, in order to extort more money, should draw a pass from prosecution just because they had not yet delivered all the concrete results presumably desired by the buyer of influence, but had only acted to facilitate that delivery by others. Indeed, the Court even acknowledged that “fulfillment of the quid pro quo is not an element of the offense.”
The Court’s decision is something like redefining the game of football to only refer to touchdowns and field goals while excluding gains of small yardage as some private activity occurring in the same space, but where the rules of the game no longer have to be followed. The Court’s reasoning for making approximately this kind of change in the rules of conduct for officials entrusted with governmental powers is less than clear, and involves some sleight of hand. The Court starts with the unproven assertion that the common-sense meaning of acts that fall within a politician’s “official capacity” is vague. To remedy that supposed vagueness, and “clarify the meaning of ‘official acts’” the Court creates its own distinction to divide up the reasonably clear category of all official acts into some acts that can be prosecuted and those that cannot. The Court’s new distinction, which has no real basis in the statute, is far more vague than the category of “official acts” as a whole. It raises more questions than it answers, such as, How much yardage is “small yardage? Should short yardage touchdowns count?
This new definition, partly due to creating confusion where none existed before, does succeed in legalizing more corruption. As one experienced court-watcher observed, McDonnell “poses a major challenge to prosecutors seeking to police official misconduct.” The NYT and its legal sources agreed “the decision would make it harder for the government to prove corruption.” This can only increase further the current three-quarters of Americans who perceive corruption as widespread throughout government.
The Court arrives at its own boundary separating the newly legalized from the still illegal acts by logic-chopping its way through pages of unconvincing analysis of the statute and the trial court’s implementing jury instructions. Through its complex analysis the Court arrives at some vague subset of official activities that the Court deems to be exempt from prosecution under the bribery statute. These activities happened to include the kind of acts that Gov. McDonnell was proven to have committed, so he gets another chance before a new jury under the Court’s new obfuscating rules.
There is no particular reason why any subset of official actions, if that is what the jury found the buyer in fact purchased, should not be prohibited from being sold to special interests. It is not up to the Supreme Court to determine in advance what kind of official act might be valuable to a plutocrat or will undermine representative democracy by means of honest services fraud. That definition was the legislators’ job.
The Court’s opinion by Chief Justice Roberts, who has written most of the Court’s steady output of pro-corruption decisions over the past decade, concludes, without much honest support, that under “the text of the statute, the precedent of this Court, and the constitutional concerns raised by Governor McDonnell, we … adopt a more bounded interpretation of ‘official act.’ Under that interpretation, setting up a meeting, calling another public official, or hosting an event does not, standing alone, qualify as an ‘official act.’”
As for the Court’s “precedent” excuse, it mainly consists of dicta “stated” by Justice Scalia, in a 1999 corruption prosecution of the bribery of Bill Clinton’s Agriculture Secretary Mike Espy. The dicta was persuasively shown to have been erroneous by the Government’s Brief, 30. The Espy case actually ruled that an “official act of whatever identity” would suffice as an element of the crime, but that gifts given merely for reason of the official’s position in the abstract, and not for a specific act at all, would not suffice. The actual ruling in the Espy case is therefore entirely consistent with, and indeed supports, the broad definition applied in McDonnell where the purchased official acts were quite specific. Scalia meandered off into some uninformed speculations which the Court redeployed as if it were precedent, which it clearly was not. Meanwhile, copious actual precedent cited by the Government that is contrary to the Court’s ruling, 24, was either totally ignored by the Court, or inadequately explained away in one case that could not be ignored. Far from “precedent” dictating the Court’s decision, Roberts actually violated a century of precedent to reach his idiosyncratic definition of official acts. The idea that the weight of “precedent” in the legal meaning of that term supports his decision is a fraud.
As for the “text of the statute” justification for his ruling, Justice Roberts ultimately landed on one of his trademark, completely absurd propositions that goes to the heart of the matter. Roberts tends to use this tactic in his most deceptive opinions. The heart of the matter in McDonnell is, as mentioned, to define some subset of politically marketable actions which fall within a politician’s official capacity in any ordinary understanding of the term but which can nevertheless, for some reason, be defined as not being an “official action” in order to complicate the prosecution of influence peddling politicians. Roberts culminates his otherwise unpersuasive interpretation of the statute with respect to that essential issue with the following non-sequitur, masquerading as irrefutable logic: “if every action somehow related to the research study were an ‘official act,’ the requirement that the public official make a decision or take an action on that study, or agree to do so, would be meaningless.”
Well, no. In fact if “every action” within the scope of official duties, such as Governor McDonnell’s promotional activities related to the proposed state-financed official research study that the buyer of McDonnell’s influence specifically sought, “were an ‘official act,’” as common sense dictates that it is, then it would mean that the “requirement that the public official … take an action” in order to be prosecuted would be satisfied by any of those official actions that the jury found McDonnell did take that were related to the study and were made pursuant to the underlying bribe agreement. It is Roberts’ logic, not the text of the statute, that is “meaningless.”
If Roberts stopped there, Congress could still amend the statute to expressly overrule Roberts’ error of interpretation, misreading of precedent, and failure to carry out his sworn duty to enforce the intent of Congress. An amendment of the statute could make even more abundantly clear that the statute has for the past century, in fact, been intended to cover any official activity within the scope of a politician’s official duties that a jury might find was purchased by a political investor. Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007) (5-4) exemplifies a case where the Court’s ideologically motivated misinterpretation of a civil rights provision was later overruled in this fashion. But as with the case of Shelby County (2013), which similarly gutted the Voting Rights Act by reviving discredited doctrine from the reviled Dred Scott decision, a deadlocked status-quo Congress can also easily block action to reinstate what was clearly the prior expressed intent of Congress after it has been erased by judicial misinterpretation.
It is the nature of systemic corruption for legislators to be more engaged in the business of expanding the scope of corruption, alongside the Court, rather than taking any action to prevent corruption, by overturning the Court. But just in case a future Congress might be forced by public outrage to take more of a Ledbetter than a Shelby County approach, the Court goes to the next step to provide the corrupt Congress an excuse for inaction. This helps relieve the mounting pressure at the ballot box for Congress to do something effective about political corruption. Blaming the Constitution for tying its hands from doing the right thing always makes for convenient bipartisan excuses for a corrupt Congress. Senator Ted Cruz, for example, was a prominent defender of a “Bill of Rights” protection for political corruption against a strategically misguided pretense of changing the Constitution.
With his alleged “precedent” argument quickly disintegrating on even cursory inspection, and his interpretation of “text” argument descending from turgidly unconvincing exegesis ultimately into rank nonsense, Roberts next throws into this logical stew the argument that an “expansive interpretation of ‘official act’ would raise significant constitutional concerns.” What specific part of the Constitution would be significant is not made entirely clear by Roberts. But this is the only possible justification for the Court’s refusal to enforce the intent of Congress as the Court’s proper touchstone for statutory interpretation, and instead substitute its own belabored, complex and uncertain definition of “official acts” for the straightforward meaning of Congress to include all official acts.
The Court first implies that including all acts that fall within a politician’s official capacity as services prohibited from sale to special interests could violate the Constitution’s due process clause. There is a valid doctrine that text adopted by legislators in the form of law can nevertheless be so vague in its meaning as to lose the capacity of being enforced as actual law by the judiciary. E.g. Johnson v. United States, 576 U. S. ___ (2015). The Court routinely fails to apply this sound principle to its own supremacist decisions, instead treating its far-fetched interpretations of the First Amendment nowhere found in its three word text “freedom of speech,” for example, as if that text were clear enough to make law out of such bizarre and historically unsupported propositions as that “money is speech.” But there is nothing in Roberts’ opinion to support the idea that the traditional concept of acts taken within one’s “official capacity” has ever been considered vague, or is even any more vague than the new test the Court has created in its stead which it does find to pass the “void for vagueness” test.
Roberts’ newly discovered and idiosyncratic boundary between good and bad bribery is entirely without coherent definition in comparison with the well-established and often-applied line between official and private conduct. Moreover Congress can easily overcome this objection of Roberts by amendment of the law to, as clearly as possible, in no uncertain terms, re-state that all official acts of any kind are included within the meaning of “official acts.” Congress has a tradition in such cases to name the legislation after the decision being overturned – so it could be called “The McDonnell Amendment Act.” Accordingly, the Court does not rest entirely on the “due process” strand of its constitutional argument.
Next the Court suggests the possibility of some “significant federalism concerns” involved with prosecution of state officials for bribery, citing in support the barest allusion to this concept in a case involving the definition of the term “defraud.” In the cited case the Court had briefly suggested, in a single makeweight phrase, without support of further discussion or citation, its rejection of an interpretation that “involves the Federal Government in setting standards of disclosure and good government for local and state officials” solely by means of definition of the single term “defraud.” (Another cited case involved labor relations, not “good government.” It also specified that it needed clearer instructions from Congress before adopting the rejected meaning.)
The comprehensive and persuasive dissent of Justice Stevens in that case did not even take notice of this “federalism” comment, but instead showed that the meaning of “fraud” had been elaborated through abundant precedent. However Stevens did conclude with a telling observation equally applicable to McDonnell by questioning why “a Court that has not been particularly receptive to the rights of criminal defendants in recent years has acted so dramatically to protect the elite class of powerful individuals who will benefit from this decision,” a decision that strains to exempt from prosecution one obvious form of corruption otherwise covered by law and precedent. This criticism suggests a more systemic defect associated with allowing judges’ to make anti-corruption law as they see fit.
Roberts’ reference to this other case also omitted the fact that its narrowing pro-corruption interpretation was quickly overturned by Congress’ enactment of the honest services statute. This confirmed that under this “federalism concern” the Court only sought clearer expression of Congress’ intention. Whether Congress can take similar action to overturn McDonnell’s deliberately narrowing pro-corruption interpretation of “official acts” to again protect a fellow member of the elite political class will be a measure of how more corrupt Congress has become in 2016 than it was nearly three decades ago when it took about a year and a half to reverse a baseless Supreme Court pro-corruption interpretation comparable to McDonnell‘s. Overturning McDonnell, by enacting a law to “expand the definition of ‘official act’ to include any conduct that falls within the range of official duty of a public official,” would not only be easily accomplished by legislators of any integrity, it would also fall within their constitutional power, if not their constitutional duty, to do so.
Article IV, Sec. 4 of the Constitution provides that Congress “shall guarantee to every State in this Union a Republican Form of Government” (emphasis added). This duty is exercised free of any judicial second-guessing. Luther v Borden (1849). The Court’s allusion to federalism is thus no answer to Congress’ exercise of its clear and unrestrained constitutional authority to prevent the corruption of a state’s republican government. Offering vague and unarticulated “federalism concerns” by the Supreme Court cannot prevent Congress from performing its duty. It is an essential element of American federalism that the central government is responsible for preventing the entrenchment of corruption in state government that might undermine its democratic character. However, because the Court used this invalid “federalism” argument to bolster its weak constitutional arguments, its decision is open to be distinguished on this ground whenever the prosecution in question is for federal and not state official corruption to which such a “federalism” argument would be irrelevant.
In any event both of these “constitutional” suggestions are little more than ill-considered and negligibly reasoned asides lacking any coherent basis in precedent or reason. Both can easily be rejected by statutory amendment. They are typical examples of John Roberts deception. In this, as in many others of his decisions, readers can agree with then Senate Majority Leader Harry Reid who would complain: “Roberts didn’t tell us the truth” at his confirmation hearing any more than he does in his opinions.
Apparitional Free Speech
Under this same heading of alleged constitutional concerns, Roberts makes what is, in effect, an argument under the plutocrat’s best friend, especially when wielded by John Roberts. This is the New First Amendment, where plutocratic money is converted into speech by judicial decree. Chief Justice Roberts was able to imagine bribery law being used by some prosecutors to criminalize what he considered “[t]he basic compact underlying representative government [which] assumes that public officials will hear from their constituents and act appropriately on their concerns.” Unless Roberts proceeds to redefine the meaning of “official act” to legalize some kinds of corruption, his argument goes, he fears that “commonplace requests for assistance, and citizens with legitimate concerns might shrink from participating in democratic discourse. This concern is substantial” (emphasis added).
Unfortunately, Roberts makes no rational connection between this “substantial concern,” expressed in terms of First Amendment values, and the particular official acts he chose to immunize from bribery prosecutions. Roberts’ favored “citizens with legitimate concerns” and “commonplace requests” might as easily seek specific administrative rulings or delivery of a particular subsidy (i.e., touchdowns) that falls on the bribery side of Roberts’ new boundary as it might involve a strategic introduction or influential meeting (i.e., small yardage) which he has placed on the exempt side of that line. Roberts’ favored solution, immunizing some kinds of bribery, does not match the problem he has conjured up, that bribery laws might abridge “democratic discourse.”
In the absence of further interpretation, which Roberts completely fails to provide, this argument upon a moment’s reflection reveals itself to be not just an irrational response to the problem he identifies, but utter nonsense in any event. A casual reader might easily suppose that Roberts intended these noble phrases to refer to actual speech, high-minded “democratic discourse” between constituents and politicians. But that would be absurd since no actual speech of any kind, without more, could in any way trigger a bribery prosecution. Speech does not bribe, money does. These innocuous-sounding references to “democratic discourse” therefore do not refer to speech that conveys meaning, but rather money, or other things of value, that conveys influence, and which the Supreme Court has converted into “speech” by judicial alchemy in Buckley and its progeny.
Roberts strangely never mentions the necessary premise that would rescue his argument from absurdity by expressly citing Buckley v. Valeo (1976) or any of its “money is speech” progeny. These cases are all premised upon the shell-game logic that money invested in influence peddling, since it is presumed to be ultimately spent down the line on promoting political propaganda, is therefore alchemically converted into First Amendment protected speech, i.e. Roberts’ “democratic discourse.”
There is no other area of law except political corruption where a criminal statute is constitutionally overturned and the criminal conduct legalized on the basis of how the proceeds of the crime are ultimately spent. For this reason Roberts has generally tended to retreat from revisiting the original Buckley shell-game logic for his re-application of the doctrine to each of the Court’s nearly annual pro-corruption decisions that do depend upon it as precedent. In McDonnell Roberts goes even further. McDonnell’s boodle in the form of a “Ferraris, Rolexes, and ball gowns” could hardly be converted into “speech” by Roberts without expanding Buckley to new heights of absurdity and shell-game legerdemain. He therefore leaves the First Amendment entirely unmentioned, only vaguely invoked, lurking in the shadows of his opinion. Buckley’s perversion of the First Amendment hangs without attribution over Roberts’ opinion by his mention of the interest of constituents’ “in democratic discourse” or of politicians’ in “hear[ing] from their constituents” as unacknowledged euphemisms for buying and selling influence.
The alchemy process of changing money into speech that is strangely never mentioned in McDonnell, must be tacitly understood by the reader to make any sense of Roberts’ otherwise absurd concern about those “participating in democratic discourse” who might somehow get unwittingly caught up in a bribery prosecution. Roberts actually means – without citing to the source of the Court’s alchemic powers that alter the meaning of these words — those “participating in buying influence.” More precisely Roberts is concerned with protecting not what “public officials will hear from their constituents” but what “public officials will [receive of pecuniary value] from their” sponsoring plutocrats, like specifically McDonnell did from his special interest benefactor who bought and obtained his influence.
As Roberts starts out on this whole new line of pro-corruption jurisprudence intended to undermine the deterrent effect of bribery prosecutions and conflict of interest rules upon the behavior of politicians, why does he neglect mentioning Buckley or even the First Amendment? The briefs argued the issue at length, and the Government described the issue as “fundamental.” Tr. 41-42. Does Roberts find the Court’s “money is speech” cases too discredited and flimsy a prop to even mention and therefore he seeks to introduce them only surreptitiously, even though they provide the very bedrock justification for the Court’s decision? Whatever his motive for this bizarre indirection it is highly peculiar.
Another indication that the trappings of the First Amendment tacitly underlie the McDonnell ruling is Roberts’ implicit application of the First Amendment “overbreadth doctrine.” An essential element of the Court’s ruling is that the jury instructions based precisely on the law itself did not include reference to the Court’s novel exemption for some official acts, which left them and the law “significantly overinclusive” Given the tacit First Amendment basis for Roberts’ legalization of these corrupt official acts, the echo of the overbreadth doctrine can be detected in his term “overinclusive.”
The “chilling-effect” justification – the “dynamo” (83 Harvard L. Rev. 844, 846) – for the overbreadth doctrine holds that the Court may act to protect some hypothetical speaker who is not in court but who might otherwise be deterred from speaking if the Court does not immediately rewrite the law involved in the case before it to exclude that hypothetical speech from regulation. This doctrine allowing rulings on cases not in court only applies to First Amendment cases. Roberts fears that some other political investors “might shrink from participating” with some other influence peddler if the Court does not reduce the scope of federal bribery law in this case. In making this “shrink from” argument Roberts is alluding to the “chilling effect” of laws that are overinclusive (i.e. overbroad) in their affect on “discourse” (i.e. on political investments). He also quotes the brief submitted by former government officials who argued that anti-corruption prosecutions could “chill federal officials’ interactions with the people,” by which they meant “with the plutocrats.” Very few of the “people” give enough money to politicians to buy special policy favors and access.
But again Roberts avoids expressly invoking the First Amendment doctrine by name, or even by citing to cases like Citizens United (2010) which had applied the doctrine to overturn what it called the “substantial, nation-wide chilling effect caused by … prohibitions on corporate expenditures” (emphasis added). Since that specific application of the overbreadth doctrine had recently been definitively rejected in a devastating book-length critique of the Court’s legal incompetence by Yale Dean, and First Amendment scholar, Robert Post, Citizens Divided: Campaign Finance Reform and the Constitution (2014) 73-76 & n.146, Roberts may have hesitated to flaunt continued ignorance of the subject by recycling the doctrine directly, by name, in McDonnell. Being Roberts, he did so surreptitiously. Maybe the nearly universal disdain for the Court’s jurisprudence that goes under the slogan “Citizens United” has gotten through to Roberts.
Roberts has established a pattern of planting novel concepts in his decisions from which he might start to reinvent, for example, First Amendment doctrine for this new specialized purpose of legalizing bribery and conflicts of interest. Current First Amendment law contradicts his McDonnell ruling. But since he acquired a unanimous decision as fertile soil for this project, Roberts can cultivate the seeds he cleverly planted in McDonnell until they take bloom as new First Amendment doctrine in future pro-corruption cases.
It is therefore only the apparition of the First Amendment that Roberts conjures as his principal justification for excepting from corruption prosecutions his vaguely defined “more constrained interpretation” that creates a category of newly exempt but nevertheless still corrupt “official acts.” Especially disturbing about Roberts’ conjuring of First Amendment principles for this purpose is that the corrupt payments made to Governor McDonnell were not made in the form of campaign contributions, but rather as personal pay-offs, whether in cash or kind. This suggests that the Court is prepared to apply its First Amendment analysis beyond the context of campaign contributions, to which First Amendment protection of corruption has been solely applied since Buckley. The new pro-corruption doctrine would encompass any form of corrupt payments whatsoever – such as those the Clintons take-in from their Wall Street “speech-making” racket which is orders of magnitude greater than the receipts from McDonnell’s small time graft.
Judicial Supremacist Usurpation
As explained above, McDonnell was not formally a First Amendment decision. When used outside of the First Amendment context, the overbreadth (or Roberts’ “overinclusive”) doctrine violates the Constitution’s grant of jurisdiction to the Court. The First Amendment earns exemption from the normal constitutional constraints on the Supreme Court’s jurisdiction because of its supposed paramount importance for the support of democratic government. One of the many perversities of the “money is speech” formula is that it reverses this purpose of the overbreadth exception by turning it into an effective weapon – as applied in McDonnell, Citizens United, Arizona Free Enterprise Club and other cases where the supposed wronged party was not real but imagined by the Roberts Court – for facilitating the plutocratic overthrow of democracy rather than its proper functioning.
In all other cases not involving the First Amendment the Constitution’s fundamental limited grant of jurisdiction to “cases or controversies” prevents the Supreme Court from issuing advisory opinions for the purpose of redrafting laws based on hypothetical cases. The Court can only exercise judicial review in a case to which the offensive part of the law might otherwise apply, if the Court were not to exercise its powers to prevent that application. This is the original excuse for all valid judicial review as described in the seminal Marbury v Madison case.
The Court’s failure to restrict its decisions only to the cases actually before it, and instead reaching out to decide hypothetical cases of its own invention as a means to usurp the legislature’s job of drafting laws, is an illegal act of judicial supremacy. Warning that, like the elected branches of government, “the judicial department … may exercise or sanction dangerous powers beyond the grant of the Constitution,” James Madison insisted that violations of the separation of powers, “may justly be pronounced the very definition of tyranny.” (The Federalist, No. 47). Madison was not far off in describing the net effect of the Supreme Court’s pro-corruption agenda in converting the country to a plutocratic form of government by serial violation of the separation of powers.
The Court did not contend that Robert McDonnell’s own behavior should be immunized by its decision. On the contrary Roberts recited the facts that Governor McDonnell accepted from a highly interested donor – a local plutocrat with a clearly communicated special interest agenda – “over $175,000 in gifts and loans,” including such luxury goods as a Rolex watch and “$20,000 worth of designer clothing,” rounds of golf, a wedding present, a weekend trip, use of a Ferrari, and “transportation on his private airplane to assist with McDonnell’s election campaign.” Justice Roberts therefore expressly hesitates to “suggest that the facts of this case typify normal political interaction between public officials and their constituents. Far from it. But the Government’s legal interpretation is not confined to cases involving extravagant gifts or large sums of money.” In other words, no rational plutocrat would give such amounts without expectation of equivalent or greater value in policy, but Roberts can imagine some lower level of compensation that would not raise such a compelling inference of bribery. He therefore concocts such a case based on the Government’s “legal interpretation” which it becomes his duty to confine.
The Constitution does not require the Government’s “legal interpretation” – however that might even be communicated – to be so confined. It is its actual prosecution, which in turn generates a “case,” that is confined by constitutional limits. Nor does the Constitution give the Supreme Court any power to police such an Executive Branch “legal interpretation” in the abstract unless it is presented as an actual “case.” In another case, some day, the Government may prosecute bribery allegations according to its less confined “legal interpretation.” In such a case the Government’s “legal interpretation” can be subjected to valid judicial review at that time. But by fundamental principles of constitutional separation of powers the Court must confine itself to the abnormal facts of McDonnell when adjudicating McDonnell, the case before it which unquestionably did involve “extravagant gifts [and] large sums of money” as distinct from Roberts’ imaginary case which does not.
Of course, confining himself to the Court’s legitimate constitutional powers would prevent Roberts from giving his fellow Republican McDonnell a second chance to beat his corruption rap, and also prevent Roberts from executing a legislative rewrite of anti-corruption law in order to allow many other politicians to indulge in corrupt conduct on behalf of plutocrats with impunity. Roberts needs to pretend that his newly conferred impunity relates in some way to a case where the quid is less flagrantly offensive. But as explained above, Roberts’ new rule actually has no bearing at all on the quid side of the equation.
Roberts further flaunts his constitutionally illegitimate intentions: “There is no doubt that this case is distasteful; it may be worse than that. But our concern is not with tawdry tales of Ferraris, Rolexes, and ball gowns. It is instead with the broader legal implications of the Government’s boundless interpretation of the federal bribery statute.” Roberts does not claim here that the federal bribery statutes should not apply to the influence peddling actually presented in the McDonnell case before it. Roberts is unconcerned with the case before him over which he properly has jurisdiction. Rather, as an unconstitutional roving law-revision commission, he is concerned that there might be some other hypothetical cases over which he does not have jurisdiction, but which he can imagine the statute should not cover, as an excuse for rewriting it to make all bribery prosecutions more difficult.
As one of the bases for claiming the Government’s interpretation of official acts is “boundless,” Roberts invoked a trick the current Court has frequently employed, in Citizens United for example. At oral argument the Court will trick Government’s counsel into making a broader claim than necessary, which is made so as not to unnecessarily concede a point that may be of use by the Government in future cases, but is not raised by the case at hand. Blindsided by this tactic, counsel might fail to anticipate that the Court will utilize the broader, but irrelevant, claim as grounds for illegitimately adjudicating a hypothetical case the Court deems encompassed by the claim.
In McDonnell this trick was invoked by Roberts to manufacture a claim from the Government that an “official act” could be a premise for a bribery conviction if it “concern[ed] any subject, including a broad policy issue such as Virginia economic development.” Such a hypothetical was of course irrelevant to McDonnell, which involved no “broad policy issue” but rather a very special interest of virtually unique value to the briber’s own dietary supplement business interests, and probably no one else at all.
In support of his proposition that the Government committed the tactical error of making a much broader claim than necessary to win its case, Roberts provides two references, one to the Government’s Brief and the other to its oral argument. On closer inspection Roberts’ assertion is revealed as not the Government’s, but his own invention. He lied. The transcript of the oral argument does not indicate that such an assertion was ever made by Government’s counsel. The truth is that the Deputy Solicitor General Dreeben made a fairly masterful presentation of the case that did not include any such claim that Roberts’ dishonest reference to the Transcript page of the oral argument suggested that he did make. Indeed at another point in the transcript from that cited by Roberts, Roberts did try using his trick on Dreeben by asking him about “jobs for Virginia.” “Bob’s for Jobs,” was McDonnell’s campaign slogan. This was the only discussion at oral argument even relevant to the “broad policy issue such as Virginia economic development.” Tr. 44-45. Dreeben expressly refused to take Roberts’ bait on the subject. Dreeben skillfully kept his argument at all times focussed on the facts of the case and its very narrowly identified special interest.
By coincidence, after the argument, Deputy Dreeben’s exceptional experience in oral argument and exemplary advocacy in the Supreme Court was formally recognized by the Court on the occasion of his having completed a rare 100th argument. This happened to underline the skill of his argument on that same day which did not include the kind of tactical mistake that Roberts dishonestly attributed to him, nevertheless.
Roberts also cites the Government’s Brief for support of this assertion that the Government contended that an official act “concerning …. a broad policy issue” could constitute the object of a bribery prosecution. But this is a gross misreading of the Brief, where the Government mentions Governor Bob McDonnell’s interest in the broad policy of economic development as evidence to define “the scope of petitioner’s official duties,” 48, not as the hypothetical subject of prosecutable “official acts” given as a policy quo in return for a pecuniary quid. The Government quite specifically described the subject of the official acts related to the bribery offense as the narrow special interest that it was. But the Government noted that this narrow subject which was the subject of bribery fell within the broader scope of the governor’s official duties which he had defined as a core objective of his administration. The official acts related to a particular instance of the broad “Bob’s jobs” subject of economic development. The Brief was clear. It could not reasonably have been mistaken that the Government mentioned this one broad subject solely to make the obvious point that it could not be disputed as proof of the scope of the governor’s duties in this general area, within which the subject of bribery fell. After his lie about Dreeben’s argument, Roberts’ mischaracterization of this argument as if the Government contended that acts regarding a broad policy area could be the subject of prosecution can only be taken as equally dishonest.
Roberts’ dishonest characterization of the Government’s position elides the difference between advocates of the public interest who do not personally profit from their advocacy beyond participation in the general benefit to the public, and special interests who do uniquely profit by buying specific policies, and can then kick-back a share of those profits into the pockets of politicians. Generally “a broad policy issue” would not generate profits that can be corruptly channeled to special interests. Therefore advocacy of such general policies cannot be considered within the sphere of what can properly be considered as corruption. Roberts’ gratuitous insertion of this issue in the case, without discussion of this important difference, intentionally created a false impression, without expressly saying, that the government’s position on potential objects of its prosecutorial power might be so broad as to exceed the proper bounds of what could fairly be described as corruption.
Unchecked Usurpation of Separate Powers
The other hypothetical cases that Roberts imagines might arise under “the Government’s boundless interpretation,” (an inherently preposterous characterization for acts clearly restricted to those that only public officials can make) were invented by himself without any basis in fact.
The deceptive impression Roberts seeks to give is that “commonplace requests” or “most prosaic interactions” by citizens who have, presumably, endowed more modest benefits on an official than McDonnell’s benefactor did, would involve only pursuit of “general policy” reforms. No such case has been charged, tried, reached a conviction by a jury, and pursued on appeal to the Supreme Court as is required by the Constitution for the Court to act on it.
Roberts nevertheless strikes down part of the bribery statute because of an imagined application of a phoney interpretation to some other such case, not to the McDonnell case. No other criminal but a corrupt politician could get off the hook by showing that some other totally imaginary person could not be constitutionally prosecuted under the statute he has been found guilty of violating – without expressly invoking the First Amendment overbreadth doctrine, that is.
The Court is only empowered by the Constitution to decide whether the bribery law constitutionally applies to the admittedly tawdry facts of Mr. and Mrs. McDonnell, not whether it can be applied to a vague and hypothetical “commonplace” or “most prosaic” case, as well. Roberts used this same tactic in Shelby County to gut the Voting Rights Act, making future enforcement of the law more challenging, on account of some other imagined applications to which the Act might apply, rather than confining himself to the actual case before him concerning Shelby County, Alabama.
One scholar writes: “Where Congress is convinced that the Court has attempted to alter the Constitution under the guise of interpreting it, Congress has an oath-sworn duty to uphold the Constitution and resist the abuse.” Both McDonnell and Shelby County are blatant violations of the Constitution’s separation of powers that are tolerated by a Congress which is at once, respectively, too systemically corrupt and too Jim Crow racist to defend its own powers in such cases. As was said by the influential political philosopher Adam Ferguson, (1767) p. 482, about separated powers, “if any member is remiss, the others must encroach.” Congress is remiss, and the Court therefore encroaches upon its powers to extend the corrupt rule of plutocrats in what Madison would recognize as tyranny.
Roberts the juror
Those “most prosaic interactions” hypotheticals that trouble Roberts would generally be taken care of by the quid pro quo requirement for bribery prosecutions. A reasonable jury in a bribery case must find on sufficient evidence that the quid given was in fact the incentive for the quo provided in return. Roberts writes: “A jury could, for example, conclude that an agreement was reached if the evidence shows that the public official received a thing of value knowing that it was given with the expectation that the official would perform an “official act” in return.” The fact that there are other cases that might be charged under the statute which factually involve both quids and quos, but which fall below this standard of proof that there was an underlying transaction connecting the two provides no excuse for the Court’s McDonnell decision where the jury necessarily did find that there was such an underlying agreement. It constitutes one of Roberts’ typically dishonest excuses for changing the law where there is no valid reason to do so, and the hypothetical case he fears would be unlikely in the extreme to ever reach the Court.
The potential factual weakness of some other hypothetical case cannot immunize whole categories of valuable “official action” that may in some, but not all or necessarily most, cases be associated with favors and requests so insignificant that a jury would reasonably conclude that they were not the product of quid pro quo agreement. But immunize is what Roberts did anyway as if acting as a meta-jury for future possible prosecutions that occur primarily in his own imagination. But the conduct he immunized deliberately goes way beyond what a reasonable jury would find to have been a sale of valuable official power, as for example the jury in the McDonnell case properly found.
The most worrisome development of McDonnell is that Roberts’ transparently deceptive opinion outsmarted all four of the justices who, as recently as in Arizona Free Enterprise Club (2011), American Tradition Partnership, Inc. v. Bullock (2012), and McCutcheon (2014) (all 5-4 decisions), had opposed the extension of Buckley’s “money is speech” First Amendment protection for influence buying. In McDonnell, Roberts has for the first time successfully recruited all four liberals to his judicial supremacist pro-corruption project in order to protect the plutocracy by exempting its paid influence peddlers from prosecution.
Last year it was in Williams-Yulee v. The Florida Bar (2015) (5-4) that Roberts had partly succeeded in this same project of consolidating support on the Court behind political corruption. There he divided the usual four dissenters in a ruling so insignificant that he could join these liberals in order to accomplish his goal. Writing the majority decision for the liberals and himself in a “money is speech” case, Roberts held that elected state judges “cannot say, ‘Please give me money.’ They can, however, direct their campaign committees to do so.” By making this legalistic distinction that makes no substantive difference, Roberts’ opinion, as a commenter in the Atlantic observed, “upheld a very narrow reform measure, but at the same time made further reforms marginally harder to enact.”
In 2015 Roberts was able to recruit Obama’s two appointees, Justices Sotomayor and Kagan, to join his The Florida Bar opinion for the purpose of strongly reconfirming the atrociously corrupt Republican Party of Minnesota v. White, 536 U.S. 765 (2002) (5-4), the case that legalized campaign finance corruption of elected state judges. These two Obama deserters to Roberts’ pro-corruption project declined to join Justice Ginsburg’s separate decision based on the premise that “Judges … are not political actors” subjected to the same rules which have corrupted the political branches. Ginsburg restated her persuasive dissent from White, which in 2002 had been joined by four justices, that judges should not be subjected to the same “money is speech” regime as politicians are under Buckley. That the corrupt Buckley regime has become far more corrupt since 2002 under the mission of the Roberts Court made Ginsburg’s arguments even more forceful in 2015 than they were in 2002.
By joining Roberts’ opinion, instead of Ginsburg’s, the two erstwhile votes against corruption endorsed both the “money is speech” doctrine of Buckley and also that the doctrine should be applied for the corruption of elected judges, as well as to elected politicians. This left only two justices in the liberal opposition to perhaps the most extreme of the entire pro-corruption jurisprudence of the Court. White, as reconfirmed by The Florida Bar, undermines the due process of law, the last institutional defense against the effects of systemic corruption of the two elected branches. After legalized judicial corruption is fully rolled out, which is already well underway in many states, for example, like Wisconsin where the Kochs are active, the country will be a kleptocracy in fact as well as in mostly Roberts-created principle.
McDonnell completes Roberts’ cooptation of the liberal justices to the dark side. For the first time a unanimous Court has subscribed to Buckley’s money is speech doctrine, albeit if only by deceptive implication. At its inception, Justice White wrote a powerful dissent from Buckley showing the “money is speech” doctrine to be as intellectually fraudulent as it sounds, explaining “money is not always equivalent to or used for speech” even in politics. White reliably continued to write similar dissents in later cases. Justice Stevens who was the last judge appointed to the Court before Buckley was decided, also powerfully rejected the doctrine in opinions insisting that: “Money is property; it is not speech.” His dissents were joined by other justices until he retired just after issuing his powerful, comprehensive dissent from Citizens United, which was joined by four justices.
McDonnell signals that there are no such solid defenders of democracy like White and Stevens left on the Supreme Court. Roberts has outsmarted the soft-headed liberals appointed by Obama and Clinton. More committed to identity politics than democracy, they have now joined in the judicial usurpation of legislative jurisdiction so as to undermine anti-corruption laws for legally weak and logically deceptive reasons. This “treason to the Constitution,” Cohens v Virginia, 19 U.S. at 387 (1821), indicates that it is even more important than it was previously to demand that Pres. Obama make a recess appointment of an intellectually strong progressive justice to the Court who can provide immediate leadership to the current vacillating liberal contingent. With leadership, these weak justices may not have capitulated to the Roberts-led devotees of deceptive reasoning, judicial supremacy and systemic plutocratic corruption. If Obama had made such a recess appointment at the first opportunity, under pressure from the Sanders campaign, after Scalia’s February 13, 2016 death, this appallingly corrupt and deceitful decision (argued on April 27) might even have been avoided. This solution remains available if Sanders had the courage to make it his litmus test for his intended support for a plutocratic candidate.
The other solution that must now come to the fore is legislation not just to overturn McDonnell, but at the same time to solve the problem of this era caused by a corrupting judicial supremacist Court. That solution is to strip the Court under Article III of the Constitution of jurisdiction over the political question of anti-corruption legislation, whether asserted under the bogus First Amendment “money is speech” doctrine, or otherwise. This again should be a litmus test for support of members of Congress in the 2018 election.
Rob Hager, a Harvard Law graduate, is a public interest litigator who filed amicus briefs in the Montana sequel to Citizens United and has worked as an international consultant on anti-corruption policy. He is currently writing a three-part book assessing proposals for ending the political influence of special interest money. The current eLibrary draft of the first part, Hillary Clinton’s Dark Money Disclosure “Pillar,” is available online.
from the archives: