It is even worse than we thought
Normalizing and Legalizing Political Corruption
I'm an amateur at law and constitutional scholarship. For most of my life the Supreme Court of the USA, (SCOTUS), was like a rock to me. You could rely on it, mostly, to uphold the spirit as well as the letter of the law and constitution. Those laws have been chipped away, again, over the past 20+ years by a corrupt Supreme Court and now we are seeing the consequences.
We've gotten so used to bribery in all its forms that we've redefined it, parsed it, normalized it and made it legal. The fact is that campaign donations, even when indirectly connected to seeking private, separate advantage, are tied to bribery as envisioned by the Founders.
In the context of what is happening now with Trump's impeachment trial, it is even worse than I thought at the time. The Supreme Court at this point is corrupt, they have legalized undue influence and improper access and as a result most forms of bribery. Now we are seeing the Senate cede power (Power of the Purse, and now impeachment power) to the President that are part of the checks intended on the Presidency. It is no joke that we are really close to becoming a dictatorship.
The corrupt Bush V Gore decision
My faith was shaken in Bush V Gore, when the Supreme Court over-ruled a state constitution on a specious and "one-time" basis, outside its constitutional mandate, to select George W. Bush as President #43. It was a corrupt and badly decided case. First they stayed a recount of votes that would have given the election to Al Gore. Then they used the results of that stoppage to give the election to George W. Bush, with disastrous consequences for the country and Supreme Court. And finally they were overstepping their authority as, elections are in the purview of States according to the constitution. But that decision was just the beginning of a slide.
More:
Citizens United legalized Bribery
Citizens United took the cake. The Supreme Court went from Bush V Gore on to make even worse decisions. In Citizens United, they decided that improper access and undue influence were not subject to regulation and were not necessarily corrupting, and went on from their to give money gifts, bribes!!! first amendment protection!
Indirect Bribery and Extortion = Undue Influence and improper Access
Citizens United, legalizing indirect Bribery and Extortion = Undue Influence
As I wrote back in 2014:
The problem with the Citizens United case, is that the most eggregious error of the Citizens United decision wasn't the “corporate personhood” fiction. Corporate personhood is just a legal fiction that the courts have used to exempt companies from laws and responsibilities at State or County level. The huge error was their defenestring of corruption/bribery laws through their failure to recognize “undue influence” and “improper access” as corruption, leading to a form of bribery, despite 200 years of legal jurisprudence establishing these as the heart of corruption.
The Montana Case affirmed that the Courts didn't care if there was a trial record of donations, undue influence and improper access leads to bribery. And the McCutcheon case defenestred bribery further:
“the collective interest in combating corruption can only be pursued as long as it does not unnecessarily curtail an individual's freedom of speech”
So basically they established a right to bribery.
Catch 22: Justice, Injustice and Legal Fictions
If anything, the legal fiction of “corporate personhood” reflects the influence of years of indirect bribery on our legal system and courts. The history of it becoming part of the law is well documented. It is one example of a legal fiction being adopted in order to paper over corrupt laws.
There are many examples of legal fictions. Some date to Slavery days. Some are older
- Corporate Personhood
- Contractual [coerced] Consent
- minimal due process (de minimis) vs substantive due process
- Infallibility of official witnesses
- Slavery Personhood/non personhood
All tend to be catch 22 type situations. Catch 22 was based on a provision in legal regulations, that a person who wanted to use a plea of insanity had to apply to be taken off flight lists but that:
“by applying for exemption from highly dangerous bombing missions on the grounds of insanity, the applicant proved himself to be sane”
Legal Fictions are usually Frauds
Legal fictions start with such absurd formulations, and proceed by government offices and judges using them to give corrupt behavior, such as slavery, the label of justice. Slavery was injustice, but the legal system tied itself in pretzel logic defending it. That was injustice.
Legalizing Fraud
I would say that much in our campaign donation, independent expenditure and corporate power system is founded on legal fictions and that such "fictions" are in fact fraud. The Citizens United decision was itself an instance of fraud, reinforcing one legal fiction (corporate personhood) and creating a new one, that "Bribery has first amendment protection." Personhood is a necessary legal fiction for some purposes of law, but it is a fraud when used to grant rights properly belonging to natural persons. Giving bribery first amendment protection is pure fraud.
Legalized Indirect Quid Pro Quo
The Court has used this CU decision to justify the truly awful argument that:
““Moreover, while preventing corruption or its appearance is a legitimate objective, Congress may target only a specific type of corruption—“quid pro quo” corruption. As Buckley explained, Congress may permissibly seek to rein in “large contributions [that] are given to secure a political quid pro quo from current and potential office holders.” 424 U. S., at 26. In addition to “actual quid pro quo arrangements,” Congress may permissibly limit “the appearance of corruption stemming from public awareness of the opportunities for abuse inherent in a regime of large individual financial contributions” to particular candidates. Id., at 27; see also Citizens United, 558 U. S., at 359 (“When Buckley identified a sufficiently important governmental interest in preventing corruption or the appearance of corruption, that interest was limited to quid pro quo corruption”
Indirect Quid Pro Quo and Bribery
Yet, all bribes involve quid pro quo. When a person makes a decision favorable to a litigant, and then subsequently works for that litigant or gets money from that client. Even if this occurs years later, it is quid pro quo; and the decision was bribery. Claiming that other forms of corruption aren't related to bribery because they are separated in time (undue influence) and space (improper access), is a fraud. The reason laws and regulations didn't use the word bribery is that it is impossible to prove beyond a reasonable, or in the case of white collar crime, beyond any doubt, that an event separated in time and space from the relationship with the accused, was bribery. Legalizing such relationships, is itself corrupt. And recent records showing the degree to which judges interact with, socialize with, influence and are influenced by, politicians and monied interests is well documented. This shows the degree of corruption involved. Hamilton wrote about how certain posts in the British Parliament were sought on a partisan basis because, being near to power, was itself part of the kind of bribery that gave them wealth and riches, and gave colonial officers land and property in the new world during British rule. The “Ins” of a period found it a happy situation:
“The ins being nearest to the disposition of the offices of honor and profit and in the way of obtaining patents for vacant lands and being from time to time joined by other crown officers and dependents who flocked to and settled in this colony since the year 1763 had the means of making use of undue influence to retain their situations which made the outs at last despair of ever having a turn unless the elections were by ballot.”
and the “outs” despaired of getting access to equivalent resources, which was itself an incentive for “outs” to join “ins” and thus the “ins” to game the situation. Giving first amendment to such people, seems to follow the fact that too many legislators and justices spend all their time forming political factions that are really devoted to economic advantage.
Modern terms like, indoctrination, brain washing, etc... all derive from the older simpler term bribery. So that is why these decisions are so corrupt.
I've got a lot more to say on this but I'll wait til later.
Further Reading
- Related Posts:
- A Corrupt Court
- A corrupt decision blind to corrupt access and influence
- The Expected Corrupt Decision by a corrupt court
- Seven Reasons Issa Cut Cumming's Mike
- Corruption Racketeering and the Supreme Court
- Corrupt Court and Undue Influence
- Is Quid Pro Quo the Only Kind of Corruption?
- Corporate Personhood:
- Justice, injustice and Legal Fictions
- Further Reading:
- Ellerman's writings on Legal Fiction
- Huffington Post about Koch influence on Thomas and Scalia
- https://www.scotusblog.com/case-files/cases/mcdonnell-v-united-states/
- https://www.csmonitor.com/USA/Justice/2012/0625/Supreme-Court-strikes-down-Montana-law-reaffirming-Citizens-United
- https://www.forbes.com/sites/insider/2016/07/13/scotus-quid-pro-quo-analysis-in-mcdonnell-may-broadly-affect-bribery-insider-trading-prosecutions/#ac8c26d1ef99
- https://promarket.org/how-the-supreme-court-is-rebranding-corruption/
- McCutcheon: https://www.oyez.org/cases/2013/12-536
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