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Tuesday, October 8, 2013

A corrupt decision blind to corrupt access and influence

The Citizens United Case was an incredibly corrupt decision. At first I laid the source of the corruption to it's resurrection of the "right of personhood" to corporations, but the reality is simpler.
On September 30, 2013, in an article by Richard L. Hasen in today's Slate titled "The Next Citizens United?" [] writing about the upcoming "McCutcheon v. Federal Election Commission," which is likely to overthrow most controls over influence pedalling and bribery, Hasen quotes Justice Kennedy:
"In Citizens United, Justice Kennedy wrote for the court majority that “there is only scant evidence that independent expenditures even ingratiate. … Ingratiation and access, in any event, are not corruption.”
But ingratiation and access are the core of corruption. The New York Times further quoted him with this nonsense:
" “The appearance of influence or access, furthermore, will not cause the electorate to lose faith in our democracy.”
That decision sure caused a lot of people I know to lose faith in our democracy. The decision itself was corrupt.
But the problem is not mere access, it is "preferential access". And the problem is not "influence" it is undue influence, preferential influence, "private, separate advantage" [Locke,199] and these amount to tyranny.
The New York times article also notes:
In 2003, in McConnell v. F.E.C., the Supreme Court said there was “no meaningful distinction between the national party committees and the public officials who control them.” Large contributions to parties “are likely to create actual or apparent indebtedness on the part of federal officeholders,” the court said, and “are likely to buy donors preferential access to federal officeholders.”
The appearance of corruption is often an indicator of the reality of corruption, and we have judges all over the country being convicted for taking bribes from private companies running jails or other influential people. Often folks they do business with while playing Golf on the Links or getting a rubdown in a country club. Fact is that ingratiation and access, especially private separate access, are at the heart of corruption in the USA, and since the Supreme Court made it's Citizens United, the level of perceived and actual corruption we are witnessing nationwide has gone up exponentially.
So the real problem with Citizens United is that Kennedy gutted the definition of corruption. Heather K. Gerken in the Prospect published an article immediately after the decision []:
"For many years, the Court had gradually expanded the corruption rationale to extend beyond quid pro quo corruption (donor dollars for legislative votes). It had licensed Congress to regulate even when the threat was simply that large donors had better access to politicians or that politicians had become "too compliant with the[ir] wishes." Indeed, at times the Court went so far as to say that even the mere appearance of "undue influence" or the public's "cynical assumption that large donors call the tune" was enough to justify regulation. "Ingratiation and access," in other words, were corruption as far as the Court was concerned. Justice Kennedy didn't say that the Court was overruling these cases. But that's just what it did. "
The problem with "quid pro quo" corruption is that most corruption occurs on the Golf Links or in the lockeroom in a country club.
"If the Court rigidly insists that Congress can regulate only to prevent quid-pro-corruption, narrowly defined, then Citizens United has implications that extend well beyond what corporations can do. Justice Kennedy's own opinion even hints at the possibility, as he notes that the evidence supporting the "soft money" limits – which apply across the board -- rests on evidence about the connection between money and political access. While Justice Kennedy backed off from saying anything definitive, we may find that it was the Court's discussion of corruption, not corporations, that matters most in the long run."
If the Supreme Court applies this rule to the McCutcheon case, which it probably will, then we'll be further down the road to shameless corruption under the protection of the first amendment as "free speech."
Fact is that money buys access which leads to influence which leads to collusion and is corruption. Corrupt court illustrates this at work, when they make decisions that legalize corruption while drawing outside income from teaching, speech making, and become blind to the reality that "access = influence". Judges used to avoid even the appearance of Corruption. Thanks to being exempt from Judicial ethic rules all other judges are supposed to live by some of the court justices on the Supreme Court now display openly their corrupt associations. This is destroying peoples faith and trust in the government and is enabling flagrantly corrupt politicians to get elected by flagrantly venal wealthy individuals. When Justice Scalia hunted with Dick Cheney and then selected his choice to be President, that is corruption. When folks graduate from universities, become lawyers work for a corrupt official, and then take a job at a company as a reward for corrupt decisions as a regulator, and then gets appointed to offices as a result of corrupt decisions in private practice, that is known as the "revolving door" and there is never a Quid Pro Quo that one can identify -- but it is incredibly corrupting. There doesn't have to be direct quid pro quo to run a corrupt enterprise, and US Penal Law represents "influence" as criminal when it is coerced. It's also criminal when it's not -- but thanks to the Supreme Court only morally.
Kennedy's decision was either morally blind, or morally corrupt.
The Swiss define corruption this way:
"Corruption means any abuse of a position of trust in order to gain an undue advantage. This involves the conduct of both sides: that of the person who abuses his position of trust as well as that of the person who seeks to gain an undue advantage by this abuse."
And "private, separate advantage" was the core part of John Locke's definition of tyranny, so corruption, oppression, usurpation and tyranny are always connected. And the Swiss (SECO) go on:
"Corruption can occur in relation to officials as well as between private persons. It is particularly prevalent in certain kinds of transactions (for example, when awarding public contracts), in certain economic sectors (for example, in extractive industries), and in certain countries. Corrupt practices can range from small favours in anticipation of a future advantage to the payment of large sums of money to senior members of governments."
By those definitions "undue influence" is at the heart of corruption. Kennedy's decision was not just incorrect, it itself was corrupt, because it gives advantage to corruptors and the corrupt by forcing the government to a narrow and hard to prove definition of corruption.

Published: 10/18/2013

Further reading:
Montana Decision: Corrupt Court

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