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Wednesday, October 16, 2013

Corruption, Racketeering and the Supreme Court

Racketeer Influenced and Corrupt Organizations And the Supreme Court

Anyone who has studied corruption and racketeering in America will certainly find the reasoning in the Citizens United Case specious at best, and astoundingly corrupt at worst, not for the corporate personhood provisions, but for the corrupt deliberate obtuseness of Justice Kennedies opinion that;

"That speakers may have influence over or access to elected officials does not mean that those officials are corrupt. And the appearance of influence or access will not cause the electorate to lose faith in this democracy".

This is one of those decisions that reminds one of a judge who has a mafioso enforcer in front of him and a treasure chest full of evidence of his murders and who says "just because he was in proximity to all those murders, and owned the murder weapon doesn't mean he's the murderer." You hear a judge say that and you wonder how much the Mafioso attorney paid him. The smell gets even stronger when you realize that the case Justice Kennedy cites; Caperton v. A. T.Massey Coal Co., 556 U. S. ___, distinguished. Pp. 40–45. (2010 decision) is one where the mere appearance of possible corruption was justification for disqualifying a judge from hearing a case. Yet this "gang of 5" on the supreme court cites the Massey case to create an impossible standard for preventing or enforcing bribery. Mafioso lawyers must be salivating at the chutzpah, that RICO law will be next. But on the other hand the differences between mafioso methods and modern political business in general have disappeared. The Michael Corleone depicted in the last episodes of the Godfather would feel at home in the Vatican chambers of the Supreme Court here.

But it Gets Worse

Racketeer Influenced and Corrupt Organizations (RICO), Background

When RICO laws were first drafted, the evolving and somewhat arbitrary distinctions between who is a legitimate citizen and who is a "crook" were defined differently then they are now. And they had evolved over time as factions in the country sought to paint themselves as "good citizens" and other factions fought them and sought to beat down the doors to equal protection of the law and protection of their interests. The earliest laws about corruption were "common law" and were imposed by judges based on customs dating back to the dark ages.

In Andrew Cohen's masterful book on racketeering [THE RACKETEER’S PROGRESS Commerce, Crime, and the Law in Chicago, 1900-1940 ANDREW W. COHEN Syracuse University] he notes:

"According to common law, two or more individuals, acting in concert, pursuing an illegal end or achieving a lawful end by unlawful means, made up a criminal conspiracy." [Src: Cohen's book]

Unfortunately that definition makes it difficult to identify or separate simple access and legal influence from it's corrupt cousins. Criminal conspiracy may be easy to spot after the fact or in theory, but in practice it is difficult to spot and even harder to run down and prove. Worse the law's social enforcement meant that folks could be seeking a lawful end and be held liable for criminal conspiracy if the State deems their means unlawful. What those 'criminal ends' and "criminal means' are had to be defined to be useful, and often were defined conveniently to those who held the franchise, or paid the lawyers who defined it. For example for most of the late 19th century railroad, transportation, banking and other corporations enjoyed legal advantages and talked a lot about "free markets" - - but targetted tradesmen and their unions under "criminal conspiracy laws." Cohen's book notes:

"Craft governance depended upon a web of agreements" but "early-twentieth-century judges barely acknowledged the right of workers to organize. Before the bar, unions were mere voluntary associations of individuals with no official legal standing. [Cohen: page 3] They could negotiate a contract with the employer, but this was the limit of their formal authority. The lawprescribed that each individual worker should sign his or her own agreement and ensure the employers’ obedience to its terms. Some unions gained official capacity by obtaining corporate charters from the state, but most declined because this required they grant politicians power over the creation of new organizations and subject themselves to judicial supervision." [Cohen: page 4]

So tradesmen were not full citizens under the law in the 19th century. They had no or limited rights to petition the government, to representation, or to their contracts and interests being honored. But as with all oppression, the infringement on a right pretty much starkly illustrates that right. Cohen also notes how modern authors fail to appreciate:

"the craftsmen’s preoccupation with governance, a fascination that defined their worldview and granted them some measure of control over Chicago’s future. Craft unions were consumed with enforcing rules governing wages and production, with controlling entry into the labor market, and with pressuring the rank and file to obey union discipline. Often in alliance with their own employers, craft workers established informal but fairly stable systems of private regulation that deflected corporate economic development and maintained their position in the city’s commercial life. Tradesmen were conservative, but they wer also ambitious, asserting total authority over many urban industries. In doing so, they challenged not only the right of wealthy businessmen to operate unfettered in the city but also the supremacy of the state.[Cohen: page 3]"

This self governance was deemed illegal by the officials and influential members of society and thus these small businessmen and workers came under persecution as "criminals." As with all folks whose rights are denied, they fight back. An evil system turns legitimate leaders into illegitimate ones, and creates people who embody the "Robin Hood" archetype as they seek to defend the interests of their people by illegal means. Essentially Criminal conspiracy by officials creates criminal conspiracy by members of groups defined as outlaws by a repressive or suppressive system. The right of people to assemble and form their own organizations was denied to them:

"The law prescribed that each individual worker should sign his or her own agreement and ensure the employers’ obedience to its terms. Some unions gained official capacity by obtaining corporate charters from the state, but most declined because this required they grant politicians power over the creation of new organizations and subject themselves to judicial supervision.[Cohen: page 4]"

At the time the more "white collar" business community of lawyers, engineers and corporations had unfettered access to courts, but that was not the case for unions, small business or tradesmen. From the point of view of the law, Union Contracts and trade-groups were criminal conspiracy.

"the courts used common law definitions of criminal conspiracy to go after craftsmen and union members. Given this hostile climate, craftsmen unsurprisingly preferred to enforce their rules and agreements outside of court through pickets, boycotts, and violence. This led to craft workers, union members and tradesmen to be in constant conflict with the police and the courts. [see page 4]"

This worked for the companies, banks, and upper classes as long as they were genuinely wedded to free market and individualistic principles. But Individualism sounds good until people figure out they get further by colluding together. It was easy for monopolistic companies and trusts to collude without leaving a paper trail, but craftsmen weren't even allowed to breath the same air without being accused of criminal conspiracy. And the courts used criminal conspiracy to go after craftsmen and union members:

"Though such cases largely failed to uproot craft governance, public officials themselves were dedicated to the open shop and its individualistic assumptions. [Cohen]

Juries were not going to convict their own leaders of criminal conspiracy, and the jury system saved craftsmen from effective repression though not from being labeled as criminals for defending their rights illegally.

"Given this hostile climate, craftsmen unsurprisingly preferred to enforce their rules and agreements outside of court through pickets, boycotts, and violence" This led to craft workers, union members and tradesmen to be in constant conflict with the police and the courts. As long as corporations and the "upper classes" were wedded to principles of free enterprise this worked.

But then between the 1880's and the 1920's businesses realized they could make bigger profits and operate more efficiently by organizing themselves too. This led to talk of "free markets" being increasingly hollow. By 1902 this led to Theador Roosevelt surprising J.P. Morgan by prosecuting his company under anti-trust law: [More: http://www.theodorerooseveltcenter.org/Learn-About-TR/Themes/Capitalism-and-Labor/The-Northern-Securities-Case.aspx]. Roosevelt eventually found himself having to distinguish between "good trusts" and bad "trusts" but over the next 20 years it became increasingly difficult to distinguish New Jersey Corporations and Trusts from the kinds of conspiracies local prosecutors regularly went after -- except that the big trusts got away with a lot more. So, as Cohen notes:

during the 1920s, Chicago’s criminal justice system retreated from this position [cracking down on unions and shop keepers]. Of at least 133 indictments issued against craft unionists between 1920 and 1929, only 12 ended in conviction or a guilty plea, and some were property crimes largely unrelated to the question of craft governance, such as robbery and petit larceny.With each year, the numbers grewstarker. Jurors granted prosecutors victory in only 4 cases—the candy jobbers, bootblacks, bakers, and the machinery movers—out of 39 indictments issued between 1925 and 1929. Many times, the state’s attorneys declined to prosecute union officials, fearing the wrath of their constituents. In 11 cases between 1921 and 1929, cleaners, machinery movers, teamsters, garageworkers, and other tradesmenwon their freedom, largely because of the sympathy that some jurors felt for unions. Many of those convicted successfully obtained pardons from Illinois Governor Lennington Small." [page 11]

The difference between the Carnagies, Morgans and the dry cleaners, movers, teamsters, garage workers and other tradesmen had pretty much vanished except in the pretensions and tirades of muckrackers. Most companies instead of practicing free markets (they still preach free markets to this day) went to managing markets through legal deals, managing employees, and the use of advertizing. As Cohen notes:

"As corporations abandoned the free market for managed competition, the ideological assumptions underlying their legal assault on local craftsmen grew increasingly strained. If conspiracy laws restricted building contractors, team owners, barbers, and butchers from forming associations, then the same rules might implicate organizations of steel manufacturers, meatpackers, and railroads. As corporate executives experimented with private regulation, they searched for a legal regime that distinguished their associations from those established by craftsmen during the previous decades."[Cohen page 12]

And they found their new regime by rebranding a word and inventing a crime, "Racketeering":

"In a series of promotional writings, including a monthly newsletter and a popular book titled It’s a Racket, Hostetter advanced a new word—racketeering— seeking to equate certain local unions and trade associations with criminal gangs. The EA secretary defined a racket as a “scheme by which human parasites graft themselves upon and live by the industry of others, maintaining their hold by intimidation, force and terrorism.” Acknowledging that the public used the term to describe varied forms of illicit enterprise such as bootlegging, prostitution, and gambling, Hostetter purposefully added another category: organizations that set prices and wages in trades like laundry, dry cleaning, barbering, construction, and trucking." [Cohen page 13]

Apparently the invention of the term was meant to provide wealthy establishment businessmen, and their police and courts, a new Justification for prosecuting labor, tradesmen and other "criminal groups" rather than treating them as legal equals. It was founded on real misbehavior by these tradesmen, mobsters, union officials, and others as they struggled with the issue of doing business without the benefit of being part of a legitimate business framework. Cohen also notes:

"To note that racketeering is a historical artifact is not to say that Gordon Hostetter fabricated everything he wrote about assault, bribery, and price fixing. Rather, it is to appreciate his stories as subjective interpretations that shaped public attitudes and affected the legal status of labor unions and collective bargaining. It is to understand that the history of crime is inseparable from the history of ideas about crime. [page 17]"

Cohen's notes about crime point to the fact that what is criminal in one society and for one set of courts, can be standard practice in another part of society and not even noticed as criminal behavior. Unfortunately for establishment business, financiers and their lawyers, these theories of Hosteter's were specious and racketeering type behavior was as common among establishment business as among the people he labeled as "racketeers". Unions were more often the victim of Mobsters than mobsters, or gunmen hired by establishment business, as perpetrators. Mobsters got much of their power from the fact that tradesmen and workers were already being criminalized and oppressed by that establishment. Once housing markets and stock markets crashed, largely due to their fraudulent and reckless bheavior, and along came revelations that they crashed largely due to fraud, chicanery, and parastism by so called "upright" establishment figures. The definitions and legal approach to Racketeering had to adjust and become more progressive too. This occured during the new deal.

"More obviously, the New Deal radically overturned criminal law and especially Hostetter’s notion of racketeering. NIRA gave credibility to agreements that had been criminal just a few years before. Cook County grand juries still indicted craftsmen, but local juries refused to convict them, seeing them as lawful components of the recovery effort. At the same time, NIRA greatly increased the importance of keeping gunmen out of labor unions. The first federal antiracketeering law, also passed in 1933, proposed to protect collective bargaining from exploitative criminals like Murray “The Camel” Humphreys rather than to discourage trade agreements. In essence, the NewDeal made the word racketeer synonymous with gangster, validating the views of social scientists and union officials. Racketeering became a crime perpetrated upon organizations by evil individuals rather than a crime committed by those same groups.[page 17]"

For the next few years racketeering and gangsterism became synonymous, but at some point the FBI and other law enforcement folks tried to pretend it wasn't a problem anymore. The Head of the FBI, J. Edgar Hoover, denied there was any such thing as a "mob" or "mafia", publicly. Possibly because the Mafia had photos of him betting horses up in Laurel, or maybe other photos of him and his advisor Tolbert, or maybe simply because he didn't want to deal with the subject. But thanks to the Kennedy Administration and some high profile prosecutions he eventually had to admit there was such a thing, and in any case in 1970 Congress passed the Racketeer Influenced and Corrupt Organizations Act (RICO) to go after organized crime. [WSJ Article on RICO: http://online.wsj.com/news/articles/SB10001424052748704881304576094110829882704]

"The law allows federal prosecutors to stitch together crimes going back many years, from extortion and loan sharking to murder, in a single case. It is easier for them to convict mob defendants when they wrap in evidence of the "broader context in which the crime was committed, along with the pattern of conduct that led up to the crime," said Samuel Buell, a professor at Duke University School of Law."

RICO has helped make life safer for ordinary citizens in some ways. But unfortunately, the convergence of Racketeering and ordinary business has also continued non-stop since Prohibition, especially among wealthier people. It's gotten so it's hard to tell them apart.

"RICO's reach has expanded well beyond the mob in recent years. Businesses can be considered enterprises subject to the law, said Peter Henning, a law professor at Wayne State University, in Michigan. Victims of an alleged fraud can use RICO to file civil suits and recover triple the amount of damages they suffered. The Gulf of Mexico oil disaster has prompted civil racketeering suits. Some alleged conspirators of Ponzi schemer Bernard Madoff have been charged under RICO, as have tobacco companies and prominent political figures."[WSJ Article]

Now can politicians be subject to RICO? Not if their racketeering and corruption is considered "free speech" or folks can't see it.

"Over time, Mr. Henning noted, the law has become controversial. "RICO is often criticized because of its use in civil cases to deal with business disputes that have nothing to do with mob activity," he said."[WSJ Article]

Again we have that social definition of criminality Cohen and others talk about. Equal application of the law gets trumped by social prejudice:

"RICO's first big test came in 1979, when the law was used to prosecute the Hell's Angels motorcycle gang in California. The bikers were acquitted. With their long hair and tattoos, they didn't look like an organized-crime enterprise to the jury."[WSJ Article]

Nevermind that groups like the Hells Angels and other Gangs have pretty much moved into the Mob orbit of outlaw business. They didn't look like Gambini's or Corleone's. Fraud, racketeering, and corrupt organizations only seem like "rackets" to some people if they are run by career criminals whose names end in Gambini, or who are from minority groups.

Citizens United is a Racketeers Dream decision

Racketeering is hard to prove unless there is a long trail of corpses, because crooks don't come out and say "We'll make you an Offer you can't refuse" while being recorded or in a tweet. They use indirect language, like leaving a horses head in a bed, or dropping a 'campaign contribution" on a politicians desk. Requiring proof of a quid pro quo in every case of bribery, or a dead body in every assassin conviction, is not only setting the bar high, it is setting up a Mafia lawyers wet dream. Denying the connection between influence and access and corruption is the current equivalent of Hoover denying there was an organized crime in the 1960's. Racketeers will be able to cite it when avoiding prosecution. "Just because this man is my associate doesn't mean he worked for me. I didn't tell him to knock off Louie the snitch." Or "I was just exercising my first amendment right to buy the judge."

The lawyers on the Supreme court know there is corruption all around them. In the Massey case that Justice Kennedy cites; they write:

"the judge in question should have recused himself from the case because "There is a serious risk of actual bias when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case..."

Thus their citation of Massey is all the stranger for them to cite in their claim that we don't need to put limits on separate assets and influence. Indeed Justice Stevens spends a number of pages of his dissent dissecting Kennedy's citation of this case. The case cited demonstrates that such influence at the very least looks corrupt. I don't get it. Instead it looks like Stevens was referring to the line; "Though not a bribe or criminal influence, Justice Benjamin would nevertheless feel a debt of gratitude to Blankenship for his extraordinary efforts to get him elected" in the Massey case. The Court holds that Benjamin should have recused himself from the case and then denies that those "extraordinary efforts to get him elected" are corrupt influence, even though it is pretty obvious in this case, it's ruling, and the fact that it had to go to the supreme court in the first place -- that that was their intended effect. Like I said, Mafioso Attorneys must be salivating at the prospect of a comeback.

McCutcheon as evidence of a corrupt supreme court.

On top of their racist and obtuse comments in the current session, their dismissal of long existent laws limiting corruption in states across the country, each backed by a long and well documented history, tells me this court isn't merely obtuse, it is corrupt. A recent Washington Post article referred to their questioning on the McCutcheon case:

"They expressed skepticism about “wild hypotheticals that are not obviously plausible” — when in fact we’ve already seen those scenarios play out. They talked a lot about the FEC’s “earmarking” and “coordination” rules, but they didn’t seem to recognize that those rules are impossible to police and that a dysfunctional FEC isn’t doing much policing anyway. And the conservatives on the court seemed to fail to understand what leads to corruption or the appearance of corruption — with Justice Samuel Alito going so far as to suggest that giving a very large check to a political fundraising committee isn’t inherently a problem, because the committee could take the money and burn it. “Well, they’re not,” replied Solicitor General Donald Verrilli. “They are not going to burn it.”[Wash Post story]

Sounding like a Politician claiming that the money he received from the mob wasn't a bribe. The author of the article says that the Supreme Court needs to "get smarter" about corruption. But I don't buy that argument. Their statements in past decisions shows that they know what they are doing. This level of deliberate obtuseness is itself corrupt. The last few cases they received they cited citizens United without even considering the content of the complaints. They aren't stupid. That leads the deduction that they are corrupt.

"Many court-watchers have described McCutcheon as the next Citizens United, to the extent that it could continue dismantling campaign finance laws that have sought to protect our political system from corruption for decades. Whereas Citizens United v. FEC jettisoned the ban on corporate election spending, the petitioners in McCutcheon seek to eliminate the $123,200 cap on an individual’s total donations to candidates, parties and political committees in a two-year election cycle."[Wash Post story]

And considering previous cases since Citizens United, it is pretty obvious that is their intention. They aren't even hiding it. The Author of the article gives them more credit than they deserve:

Tuesday’s exchanges suggested a further parallel to Citizens United: Despite being out of their depth, the justices seem perfectly comfortable being the ones to decide whether to transform the landscape of campaign finance. They don’t want to defer to Congress on a subject it is obviously more familiar with. Instead, they are forging ahead without understanding the consequences.

They have to understand the consequences. Their path is just reckless and corrupt. Each of them is going to be (those who aren't already) a millionare as a result of these decisions. And the difference between the Republican Party and the Mafioso is going to disappear. And maybe they'll gut RICO next. The Washington Post Reporter explains how:

"The comment about “wild hypotheticals” came from Alito in response to the solicitor general’s calculation that if the aggregate donation limit were eliminated, but the limits on how much an individual can give to each candidate, party or political committee remained, then a joint fundraising effort could bring in as much as $3.6 million from a single donor. Alito dismissed that idea as lacking “any empirical support.”

With Alito denying the empirical evidence just given him. This is corruption at work. The author notes:

In fact, in the 2012 election, President Obama and Republican presidential nominee Mitt Romney each established a joint fundraising committee consisting of his campaign committee, his party’s national committee and several state party committees. As I laid out in the amicus brief I filed with the court on behalf of the Campaign Legal Center, those joint committees raised hundreds of millions of dollars by collecting the maximum amount from donors that the aggregate limit allows. That’s pretty strong evidence that, Alito’s skepticism notwithstanding, candidates and parties will push the law as far as it will go.

The talks about other artifacts from the long chain of evidence that campaign reform is necessary to control and that unchecked money is almost always defacto bribery. And he concludes:

"Tuesday’s exchanges suggested a further parallel to Citizens United: Despite being out of their depth, the justices seem perfectly comfortable being the ones to decide whether to transform the landscape of campaign finance. They don’t want to defer to Congress on a subject it is obviously more familiar with. Instead, they are forging ahead without understanding the consequences."

They did the same thing with Civil Rights laws, and a whole host of decisions that have been on the Federalist Society Agenda since the society was created. Too bad it is difficult to prosecute a Supreme Court Justice for RICO.

Further reading and source:

THE RACKETEER’S PROGRESS Commerce, Crime, and the Law in Chicago, 1900-1940 ANDREW W. COHEN Syracuse University URL: http://www.sagepub.com/lippmanccl2e/study/articles/Cohen.pdf
Also: Google Books Racketeers Progress
Citizens United Decision: http://www.supremecourt.gov/opinions/09pdf/08-205.pdf
http://www.supremecourt.gov/opinions/08pdf/08-22.pdf
http://www.forbes.com/sites/rickungar/2011/02/22/a-secret-deal-between-gov-walker-and-koch-brothers-buried-in-state-budget/
TR: http://www.ushistory.org/us/43b.asp
Wall Street Journal, They Call It RICO, and It Is Sweeping http://online.wsj.com/news/articles/SB10001424052748704881304576094110829882704
Washington Post article

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