Wednesday, September 30, 2015

Corruption, Lobbying, Judicial Prerogatives, and Term Limits for the Supreme Court

Recent history provides several examples where 200 years of judicial findings have been overturned because a few Supreme Court Justices decided that they knew better.  The Constitution had not changed, but politics and political influence had.  The lesson to be learned is that the Constitution, just as the Bible, can be used to justify almost anything.  Words are ambiguous, and become more so over time.  A text intended to convey one meaning can be reinterpreted to produce an entirely different result.    Time, place, and cultural evolution render a written constitution surprisingly indeterminate.

Zephyr Teachout provides a well-documented history of how judicial interpretation evolved over time in her important book Corruption in America: From Benjamin Franklin's Snuff Box to Citizens United.  She makes the case that the writers of the Constitution were determined to avoid the types of corruption that were common in England and other European countries such as the presentation of gifts to public officials.  The belief was that the best way to avoid a problem with a gift from a foreign power was to make any such gift disbursable only with the concurrence of the Congress.

“The argument of this book is that the gifts rule embodies a particularly demanding notion of corruption that survived through most of American legal history.  This concept of corruption is at the foundation of the architecture of our freedoms.  Corruption, in the American tradition, does not just include blatant bribes and theft from the public till, but encompasses many situations where politicians and public institutions serve private interests at the public’s expense.  This idea of corruption jealously guards the public morality of the interactions between representatives of government and private parties, foreign parties, or other politicians.”

Allowing corporations to contribute their wealth to enhance the electability of a specific lawmaker would have sent our founders into cardiac arrest.  They believed that the best way to avoid corruption was to eliminate the possibility of it occurring.  Teachout refers to these types of rules as structural or prophylactic rather than criminal.  A campaign contribution of any kind from a private entity can be corrupting—therefore it must not be allowed to happen.

For 200 years the Supreme Court issued rulings that were generally consistent with the intentions of our founders.  However, recent rulings have changed things entirely, making what was once considered corruption an integral part of our political and economic lives. 

Teachout is particularly incensed over the Citizens United ruling that allowed unlimited use of wealth to influence election outcomes, a result that left the once-corrupt Europeans laughing at us and our folly. 

Teachout provides an interesting but lesser-known history of the legal status of lobbying that also serves to make her point about the changing perception of corruption.  The issue of lobbying is particularly problematic because it can be beneficial as well as harmful to the public good.

“….lobbying involves the production and communication of information and reason.  When viewed in this light, it should be not only protected but elevated.  On the other hand, the social function of lobbying is to take money and turn it into political power.  Lobbyists are hired as alchemists, to turn money into power through the production of information and the careful use of influence….Where it is effective, lobbying means that the full power of the government shifts itself to serve the social goals of those who can afford lobbyists.  Lobbying, at its worst, enables the extraction of public resources from the public.”

While providing knowledge and advice is a useful task, lobbyists are not required to provide unbiased information.  The effective ones can manipulate data to their advantage and confuse as well as enlighten.  Even worse, they become adept at implying offers of assistance to politicians.  A suggestion that campaign funds may be forthcoming, or perhaps a hint of a remunerative job, or any number of other enticements can be effective at getting what they want without breaking any explicit bribery laws.  Both parties are expert in playing this game.

Originally lobbying was viewed as highly suspect, but writing an explicit law to deal with it was not easy.  An individual pleading his own case to a lawmaker was considered the extent to which lobbying could be tolerated.  Paying someone else to plead his case was considered corrupting.  Early on, paid lobbying was dealt with in the courts as a contract issue.  One could hire a lobbyist, but any associated contract was invalid.  Teachout attributes to one Supreme Court Justice this quote:

“….all agreements for pecuniary considerations to control the….ordinary course of legislation are void as against public policy.”

In Trist v. Child (1874) the Supreme Court issued this statement on the matter of paid lobbying.

“If any of the great corporations of this country were to hire adventurers who make market of themselves in this way, to procure the passage of a general law with a view to the promotion of their private interests, the moral sense of every right-minded man would instinctively denounce the employer and employed as steeped in corruption, and the employment as infamous.”

Such statements express an opinion on lobbying but do not eliminate it.  The state of Georgia was so outraged at the practice—and its effectiveness—that it was moved to declare lobbying a punishable crime in its 1877 constitution.

“The majority of the Georgia convention represented the mainstream view of a different time in American history.  Throughout the country, from the early 1830s through the early 1930s the sale of personal influence was treated as a civic wrong in the eyes of the law.  A citizen did not have a personal right to pay someone else to press his or her legislative agenda.  Nor did anyone have a right to be paid to use personal influence for legislation.  Paid lobbying was looked down upon, criminalized in some cases, and treated as against public policy.”

Teachout tells us that legal and public attitudes gradually changed as time went on.  The sanctity of contracts, lobbying or otherwise, became more important than any odious characteristic of the contract.  Lobbyists, of course, sold themselves as professionals providing a valued service rather those who would choose to bribe a legislator.  Indeed, the definition of bribery itself changed.  Only strict quid pro quo acts could be considered as criminal.  One would have to be caught exchanging a bag of money to be legally liable for one’s actions.  Exercising undue influence became the norm, perfectly acceptable as a democratic response.  And, perhaps most important of all, the First Amendment gained more importance for the crop of legal specialists active in the middle of the twentieth century.  The freedom of speech of an individual became more important than the equitable workings of legislatures for the benefit of society as a whole.  And, of course, corporations became individuals.

“One might think—reasonably—that a major Supreme Court decision was required to overturn this massive body of law.  But the lobbying cases were never directly overturned; they were gradually shunted aside.  When the Supreme Court in Citizens United mentioned in passing that ‘Congress has no power to ban lobbying itself.’ it could cite no direct reference”

It is interesting to consider that the people most affected by lobbying and influence pedaling, those who must face corruption issues on a daily basis, were the most interested in erecting bars to private parties exercising too much influence.  The Supreme Court basically announced that it understood what corruption meant better than the senators and congressmen themselves and overruled them.  Teachout rendered this assessment:

“The Court has become populated by academics and appellate court justices, and not by people with experience of power and politics, who understand the ways in which real problems of money and influence manifest themselves.  The lack of experience is compounded by a tendency to decide cases without full factual development.”

The Citizens United decision and the results that followed find no justification in the Constitution, and are definitely at odds with the intentions of the writers of the Constitution.  Yet the Justices who voted in favor advertise themselves as various flavors of “originalists.”

What lessons are to be drawn from this discussion?  Teachout most fears that the Court has paved the way for the wealthy to rule the nation: an oligarchy.  That is of course true. 

It appears true that the Court can do what it wants irrespective of legal precedent and constitutional ambiguity.  It also appears true that the Court can be influenced by public opinion.  A fundamental error may have been made when it was decided to shelter Supreme Court Justices from political influence by providing them with lifetime terms of office.  It is not possible to shield anyone from political influence.  No person ever arrived at the Court without a set of political biases.  In fact, they are generally nominated for the Court because of the way in which they are biased.

If political influences are unavoidable, perhaps it would be more efficacious to ensure that Justices more closely represented current political sentiments of the majority of the voting public, rather than pretend such influences don’t exist.  Justices are nominated by the sitting President, and the presidency is the only office determined by voters all across the nation.  The President comes closest to being a representative for all the people.  Why not provide the sitting president more power to define the makeup of the Court? 

A nine-person Court serving 12-year terms, with three being replaced every four years might be a more effective way of representing the will of the people.  Added protection from judicial overreach could be attained by instituting a need for six votes to approve a ruling that overturns judicial precedent.

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