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Monday, April 21, 2014

Undue influence and Dependency Corruption or why the Supreme Court Decision was so corrupt

In my last few posts I quoted from Justice Roberts Majority decision in the McCutcheon Case [http://www.supremecourt.gov/opinions/13pdf/12-536_e1pf.pdf] to illustrate why the decision was not only wrong headed but corrupt. Essentially the problem is that they redefined half of what is obvious corruption as "embody[ing] a central feature of democracy—that constituents support candidates who share their beliefs and interests, and candidates who are elected can be expected to be responsive to those concerns." And they went on to say that "Any regulation must instead target what we have called “quid pro quo” corruption or its appearance." I've already talked about how that is a corrupt decision as most corruption reflects inequality and a balance of power that is in favor of those who have excess power and wealth and who use that power and wealth to protect that power and wealth.

Defining the only kind of permissible corruption that the government can go after is "Quid Pro Quo" is deliberately making it impossible to go after 90% of corruption, including all but the most obvious quid pro quo corruption. The Supreme court in one swoop of deeper and deeper intentional process corruption after another has eviscerated 500 years of lessons on what corruption is and how to fight it, including the forms of corruption that the Founding fathers criticized. What Lessig calls "dependency corruption." A friend at the "Robin Hood Tax Site" rips into this with this graphic from an article at "Talking Points Memo":

I already talked some about "undue influence" but the author Lawrence Lessig explains that what we are talking about is further defined as "dependence corruption" which he explains in this article in Harvard Review [http://harvardmagazine.com/2012/07/a-radical-fix-for-the-republic] as a kind of systematic corruption where representatives lose the independence necessary to perform their function of representing and serving the people and become dependent on some outside force.

“the Framers wanted to avoid…Parliament’s loss of independence from the Crown” resulting from royal gifts of “offices and perks” that pulled members “away from the view of the people they were intended to represent.” The Founders were aware of the fragility of the system they had fledged: when Franklin walked from Independence Hall as the Constitutional Convention ended, Lessig writes, a woman asked what he had wrought. “A republic, madam,” he replied, “if you can keep it.”

Fighting dependency corruption was the reason for separation of powers.

Founders were fighting Systematic Corruption

Lessig, writing for the Daily Beast wrote [http://www.thedailybeast.com/articles/2014/04/02/originalists-making-it-up-again-mccutcheon-and-corruption.html]:

"The roots of that argument were handed to the government from an unlikely source: the Framers of our Constitution. Building upon the work of Zephyr Teachout, two researchers and I scoured every document that we could from the framing of our constitution to try to map how the Framers used the word “corruption.” What was absolutely clear from that research was that by “corruption,” the Framers certainly did not mean quid pro quo corruption alone. That exclusive usage is completely modern. And while there were cases where by “corruption” the Framers plainly meant quid pro quo corruption, these cases were the exception. The much more common usage was “corruption” as in improper dependence. Parliament, for example, was “corrupt,” according to the Framers, because it had developed an improper dependence on the King. That impropriety had nothing to do with any quid pro quo. It had everything to do with the wrong incentives being allowed into the system because of that improper dependence."

The right of course, loves "dependency corruption" because it reflects their efforts to create a new "dependency" aristocracy in which their shills would be the new "middle class" and pretty much everyone else can kiss their wealth and influence good bye. This article Seth Barrett Tillman can be found all over the internet, probably well advertized: http://news.yahoo.com/why-professor-lessig-dependence-corruption-not-founding-era-100206490--politics.html So naturally he claims that:

"No such unified concept existed in 1787-1788" as "a stable, unified meaning as to how the Framers (and the public during the Framers’ era) understood corruption in relation to the Constitution of 1787-1788: the Constitution of the Framers and Ratifiers."

Tillman is (of course) parsing. The Founders didn't use the words "improper dependence" alone but also talked about the "undue influence" of the Crown. Undue influence exists because it creates a dependence on the corruptor on the part of the corrupted, or simply involves raw power. So when the founders used the term "undue influence" or "improper dependence" they were using terms that are referring to a balanced system where money, influence and power are balanced. The line between "undue", "improper" dependence and independence are often political, arbitrary and shifting. Corruption is not just about law-breaking, but also about whether a system is functional for all it's stakeholders, optimized for the few, or completely FUBAR for the majority. So yes Mr. Tillman is right in that the founders didn't have an objective, by the numbers, standard by which to judge undue influence or dependency, but that is a straw argument. They had a definition of corruption that the entire constitution sought to remedy. And it was an imperfect remedy by imperfect (and thus corruptible) people, so the result was an imperfect document. Indeed you see just this sort of corruption referenced in the Anti-Federalist warnings about ratifying the constitution, one "Republicus":

(referring to President's powers).... "is it not probable, at least possible, that the president who is to be vested with all this demiomnipotence - who is not chosen by the community; and who consequently, as to them, is irresponsible and independent-that he, I say, by a few artful and dependent emissaries in Congress, may not only perpetuate his own personal administration, but also make it hereditary?"

For both Federalist and Anti-Federalist (who wrote this, corruption and tyranny are tied. Almost all of whom were influenced by John Locke, and when they talked about corruption they were more likely to be referring to the tyranny of monied classes and aristocrats than to someone putting a bag of coins on a desk. The subversion of dependency is process corruption that ultimately results in concentration of power and aristocracy:

By the same means, he may render his suspensive power over the laws as operative and permanent as that of G. the 3d over the acts of the British parliament; and under the modest title of president, may exercise the combined authority of legislation and execution, in a latitude yet unthought of. Upon his being invested with those powers a second or third time, he may acquire such enormous influence-as, added to his uncontrollable power over the army, navy, and militia; together with his private interest in the officers of all these different departments, who are all to be appointed by himself, and so his creatures, in the true political sense of the word; and more especially when added to all this, he has the power of forming treaties and alliances, and calling them to his assistance-that he may, I say, under all these advantages and almost irresistible temptations, on some pretended pique, haughtily and contemptuously, turn our poor lower house (the only shadow of liberty we shall have left) out of doors, and give us law at the bayonet's point.

The anti-Federalists rightly feared the corruptive influence of concentrated power.

Or, may not the senate, who are nearly in the same situation, with respect to the people, from similar motives and by similar means, erect themselves easily into an oligarchy, towards which they have already attempted so large a stride? To one of which channels, or rather to a confluence of both, we seem to be fast gliding away; and the moment we arrive at it-farewell liberty". . . .

So for the founders the fear was the creation of an oligarchy or monarchy where the people would be dispossessed and oppressed.

"To conclude, I can think of but one source of right to government, or any branch of it-and that is THE PEOPLE. They, and only they, have a right to determine whether they will make laws, or execute them, or do both in a collective body, or by a delegated authority. Delegation is a positive actual investiture"....
http://www.thisnation.com/library/antifederalist/72.html

The fact is that when Lessig did a search on terms in the founders writings before he wrote about this he notes:

"The results were striking. A significant majority of the times the Framers use the term “corruption,” corruption is predicated of an entity, not an individual (57%). Every instance of “quid pro quo” corruption is describing individual corruption, not entity corruption. And for the significant number of cases in which the Framers are discussing “improper dependence” as a kind of corruption, they are describing entity corruption (67%) not individual corruption (33%)."

And he concludes:

These numbers make it hard to believe that the Framers of our Constitution would have used the term “corruption” to refer to “quid pro quo” corruption alone. Or put more sharply, these number suggest that only a non-originalist could support the idea that “corruption” refers to “quid pro quo” corruption alone." Src: [http://www.lessig.org/2013/07/the-original-meaning-of-corruption]

Thus indeed the main reason for separation of powers, for the first 10 Amendments, and for institutions like trial by jury was to resist "undue influence" and corrupt dependency. The remedy for undue influence being representation. The remedy for corrupt dependency being independent branches, defined powers and rule of law. And the remedy for corruption being good and functional government. "A well regulated" government is one where corruption is so minimized it's not an issue. So all his examples don't prove Lessing wrong. If they took the word "corruption" out of the impeachment clause it's because it is entirely possible for the corrupt to engage in impeachment by projection of their own designs and motives. As we saw when the Republicans impeached Bill Clinton for having sex with a page and lying about it, when later it turned out the principles making the charges were guilty of the same crime. Corruption is often a subjective thing. But it's a "I see it when I see it, and I can smell it when it's present" thing too. An objective standard for "dependency corruption" is as fraught with peril as any other remedy. But certainly there are limits to what we should let our oligarchs get away with -- and we'd be a lot better off without them. Lessig is write and this author is blowing smoke.

I wrote about this somewhat in my blog on the subject. http://holtesthoughts.blogspot.com/2014/03/corrupt-court-and-undue-influence-and.html but quoting from the same source I find this argument for Jury trials:

"The excellence of the trial by jury in civil cases appears to depend on circumstances foreign to the preservation of liberty The strongest argument in its favor is that it is a security against corruption As there is always more time and better opportunity to tamper with a standing body of magistrates than with a jury summoned for the occasion there is room to suppose that a corrupt influence would more easily find its way to the former than to the latter."[The Federalist and Other Constitutional Papers by Hamilton, Jay ..., Volume 1 edited by Erastus Howard Scott

Hamilton in this excerpt pretty much assumes that there would be attempts to corrupt Juries too, but that the combination of Judge and Jury and other process guards can "provide a check on corruption".."decreasing it's obstacles to success" and reducing the prospect of Judicial "prostitution" which judges would otherwise be tempted to engage in. Sounds like Hamilton was warning of the Roberts Court. Too bad he doesn't have to convince a Jury of his rulings. They sound like Judicial prostitution to me.

Further Reading:

This is the latest of a series:
A Corrupt Court, Tuesday, June 26, 2012: http://holtesthoughts.blogspot.com/2012/06/corrupt-court.html
A corrupt decision blind to corrupt access and influence October 8, 2013: http://holtesthoughts.blogspot.com/2013/10/a-corrupt-decision-blind-to-corrupt.html
Corruption, Racketeering and the Supreme Court, Wednesday, October 16, 2013: http://holtesthoughts.blogspot.com/2013/10/corruption-racketeering-and-supreme.html
Corrupt judges on the Supreme Court. October 23, 2013: http://holtesthoughts.blogspot.com/2013/10/corruption-judges-on-supreme-court.html
Corrupt Court and Undue Influence and access according to Founders, Thursday, March 27, 2014: http://holtesthoughts.blogspot.com/2014/03/corrupt-court-and-undue-influence-and.html
The Expected Corrupt Decision by a corrupt court, Saturday, April 5, 2014: http://holtesthoughts.blogspot.com/2014/04/the-expected-corrupt-decision-by.html
Is Quid Pro Quo the only kind of corruption that Government can regulate. April 5, 2014: http://holtesthoughts.blogspot.com/2014/04/is-quid-pro-quo-only-kind-of-corruption.html
Undue influence and Dependency Corruption or why the Supreme Court Decision was so corrupt, April 21st, 2014: http://holtesthoughts.blogspot.com/2014/04/undue-influence-and-dependency.html
Sources for this post:
http://republic.lessig.org/links.php
http://www.thedailybeast.com/articles/2014/04/02/originalists-making-it-up-again-mccutcheon-and-corruption.html
The Federalist and Other Constitutional Papers by Hamilton, Jay ..., Volume 1 edited by Erastus Howard Scott

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