Are laws against corruption unconstitutional?

[theprestige]

Even direct bribery, the illegality is on the bribery, not on the exercise of, say, the veto itself, which may be made for any reason. To do otherwise allows the legislature to restrict the executive's power of veto. This came into greater focus in the Texas case, where mere political arm twisting was involved.

The Texas case wasn't a bribery case. Perhaps it would help if you were to define what you mean by bribery, and how you think it's different from, say, having a second job.

 

[Ziggurat]

The Texas case wasn't a bribery case.

True, but the issue still came up.

 

[theprestige]

True, but the issue still came up.

Thanks for the reminder.

The problem is accepting money in exchange for performing official acts. It's a crime for the governor to sell the veto. Without that exchange of quid pro quo, there's no bribery.

The question I'm asking here, is what official acts is the governor supposed to have sold? It seems pretty clear that he accepted payment in exchange for performing certain acts. However, none of them appear to be official acts taken in his capacity as governor.

 

[Beerina]

He would, however, be using his bully pulpit power and fame to sell products. Is that an abuse? Does the tit for tat have to use an official power? And how is what he did different from compensation for work outside being a governor?

 

[Ziggurat]

He would, however, be using his bully pulpit power and fame to sell products. Is that an abuse? Does the tit for tat have to use an official power?

That would depend upon how the law was written. The problem is that it's very hard to write a law to cover non-official use of power that still has a reasonable limiting principle.

And how is what he did different from compensation for work outside being a governor?

I was under the impression that most people in such a position need to declare any other jobs they have, and can get in trouble if they don't, even if the work would be OK had they declared it.

 

[theprestige]

He would, however, be using his bully pulpit power and fame to sell products.

Of course. Thus getting paid to do it.

Is that an abuse?

That's the question, isn't it? I don't like it, but I'm not (yet) convinced that it's something that could be prohibited without falling afoul of the Constitution.

Does the tit for tat have to use an official power?

Have to? I would say it's hard to show corruption without it. And harder still to legislate against it, without infringing on the person's rights of speech and association.

And how is what he did different from compensation for work outside being a governor?

Indeed, how is it different? And also, why is that important? Is the governor not allowed to have an outside job?

 

[Beerina]

I admit I have no idea how to craft a law about bribery, separate from political donations and "paid access". Which is kind of the point the judges are dealing with.

 

[Freddy]

I admit I have no idea how to craft a law about bribery, separate from political donations and "paid access". Which is kind of the point the judges are dealing with.

I'd say the real question, and the reason SCOTUS took the case, is what else would qualify as "honest services fraud" if the government's position were to prevail. It's less about McDonnell and more about whether the government's position requires an interpretation of the fraud statute that would also criminalize too much hypothetical innocent conduct.

 

[theprestige]

Looks like my argument about official acts was more or less right:

http://www.supremecourt.gov/opinions/15pdf/15-474_ljgm.pdf

The court unanimously overturns McDonnell's conviction. And it looks like Freddy's guess was pretty accurate as well:

But conscientious public officials arrange meetings for constituents, contact other officials on their behalf, and include them in events all the time. The basic compact underlying representative government assumes that public officials will hear from their constituents and act appropriately on their concerns—whether it is the union official worried about a plant closing or the homeowners who wonder why it took five days to restore power to their neighborhood after a storm. The Government’s position could cast a pall of potential prosecution over these relationships if the union had given a campaign contribution in the past or the homeowners invited the official to join them on their annual outing to the ballgame. Officials might wonder whether they could respond to even the most commonplace requests for assistance, and citizens with legitimate concerns might shrink from participating in democratic discourse.​

 

[ChristianProgressive]

^Biggest load of BS since Citizen's United.

Excuses the most blatant fraud and bribery so long as they stop short of using the "magic" words: "If I give you [x] then I expect you to [y]..."

Those were bribes. You know it. I know it. The crooked governor and the crook he serviced knew it when they did it. Everyone watching the case knew it.

Crooked lawyering strikes again.

 

[Ziggurat]

^Biggest load of BS since Citizen's United.

Excuses the most blatant fraud and bribery so long as they stop short of using the "magic" words: "If I give you [x] then I expect you to [y]..."

Lots of people don't understand the Citizens United decision. You are clearly one of them. You clearly don't understand the current case either.

Those were bribes. You know it. I know it. The crooked governor and the crook he serviced knew it when they did it. Everyone watching the case knew it.

"Bribes" to do what? That's the problem in this case, and that's what the state had no reasonable standard for. If I'm a governor, and my neighbor pays me $100 and I mow his lawn in return, is that a crime? Should it be a crime?

There's a reason that the decision to overturn the conviction was unanimous. The court left open the possibility to convict on narrower grounds, but the legal theory under which this conviction happened is ridiculous.

 

[ChristianProgressive]

Lots of people don't understand the Citizens United decision. You are clearly one of them. You clearly don't understand the current case either.

I understand it just fine: SCOTUS ruled that spending money = speech, which has led to a relative handful of rich elites and corporations being able to drown out the voices of millions of US citizens who don't have the money to compete with them.

This directly violates a fundamental provision of democracy: one equal man, one equal voice, one equal vote.

"Bribes" to do what? That's the problem in this case, and that's what the state had no reasonable standard for. If I'm a governor, and my neighbor pays me $100 and I mow his lawn in return, is that a crime? Should it be a crime?

No, but pressuring universities to write research reports supporting the safety and efficacy of your products IS a crime. That activity is part of the public record.

And it wasn't even in exchange for campaign contributions, but direct PERSONAL gifts of substantial value.

scotusblog summarizes it thus:

Everyone, including the Court, agrees the facts in this case are “tawdry.” Jonnie Williams, whose business was to market a nutritional supplement he had developed, gave Governor Bob McDonnell and his wife numerous lavish gifts – a Rolex watch, $20,000 worth of designer clothes, a $10,000 wedding gift, $15,000 in wedding expenses, a $50,000 loan, and more. These were not innocent gifts to a friend, offered without strings attached. Williams was quite clear that these gifts were about his business and that he needed “help” from McDonnell to promote his product.

In return for the gifts, McDonnell took several specific actions to help Williams market his nutritional supplement. McDonnell agreed to introduce Williams to Virginia’s secretary of health and human resources. He asked the secretary to send an aide to meet with Williams. He hosted a lunch event to feature Williams’s company, at which free samples of the nutritional supplement were distributed. He asked state university researchers at the event whether there was reason to explore the supplement further. He touted the benefits of the nutritional supplement in a meeting with top state advisers to discuss the state’s health plan, and asked those advisers to meet with company representatives.

To the American people, all this would seem to be the essence of government corruption – simply put, trading financial benefits for assistance from an officeholder. There is little reason to doubt that a corrupting bargain was at work in the dealings between McDonnell and Williams.

Yet the Court found that there was nothing sufficiently formal or official about the actions taken by McDonnell to bring these sordid dealings within the statute that requires government officials to provide “honest services.” None of this, the Court concluded, rises to the level of official government action within the scope of the anti-corruption law.

In so ruling, the Court has disarmed the ability of the American people to prevent similar kinds of corrupt practices in the future. This decision is bound to further undermine the already low level of confidence that citizens have in their officeholders and government.

Thus, the Court’s decision narrowly reads the “honest services” statute to allow a public official to freely receive lavish gifts from a businessman who is seeking government promotion and help for his business, and in return to set up meetings and provide access to and help with other officials for the businessman.

This means, for instance, that it is now okay under the laws involved in this case for elected officials to charge money for the opportunity to meet with them or members of their staffs. Indeed, arranging meetings with other government officials, directions to staff to look into a matter, and phone calls from an officeholder urging agency officials to give a matter further study can be overtly sold to those interested in a government outcome.

The Court put the best spin it could on McDonnell’s actions by dryly summarizing what he did in exchange for lavish gifts as “arranging meetings, hosting events and contacting other government officials.”

But far from being the kind of minor and innocent courtesy that the Court makes it out to be, the obtaining of access to government officials and the opportunity to influence their decisions is central to influence peddling. And when that access to, say, a member of the governor’s cabinet, is arranged by a call from the governor himself, the favor-seeker has an important head start in obtaining the official action he wants. And that head start was purchased by the favor-seeker with the expensive gifts and benefits he provided to the governor.

It is true, of course, that a governor or other high-level official could arrange a meeting for a constituent or business leader as a matter of common courtesy and within the normal course of government business. Thus, the Court may be right that the kinds of actions McDonnell took are something that government officials do routinely, and non-corruptly. As the Court said, “conscientious public officials arrange meetings for constituents, contact other officials on their behalf, and include them in events all the time.”

The facts in this case, however, do not portray a “conscientious public official” engaging in the routine activities of the job. They portray a brazen exchange of very substantial financial benefits given in return for help from an officeholder to promote his benefactor’s business product within the government headed by the officeholder.

While elected officials can be expected to share the views of their political supporters and constituents, it is not “responsiveness” for an officeholder to promote the views of a constituent in return for being showered with gifts, thousands of dollars’ worth of expensive clothing for their spouses, and tens of thousands of dollars of loans.

It is corrupt practices.

It is behavior that increases the public view that the system is rigged to allow those who pay the piper to call the tune.

http://www.scotusblog.com/2016/06/s...y-to-prevent-corruption-and-protect-citizens/

There's a reason that the decision to overturn the conviction was unanimous. The court left open the possibility to convict on narrower grounds, but the legal theory under which this conviction happened is ridiculous.

Not ridiculous at all. You don't trade access to government officials and institutions for personal gifts like $2000 Rolexes, wedding presents, etc.

That's bribery pure and simple, and everyone other than crooks and crooked judges on SCOTUS (who have had plenty of problems with getting gimmies for themselves and their families then ruling on cases involving those who gave the gimmies).

 

[Ziggurat]

I understand it just fine: SCOTUS ruled that spending money = speech

You tell me you understand it, and then you prove that you don't. Impressive.

which has led to a relative handful of rich elites and corporations being able to drown out the voices of millions of US citizens who don't have the money to compete with them.

It's cute how you think McCain-Feingold somehow prevented that from happening. Quite naive, but cute.

This directly violates a fundamental provision of democracy: one equal man, one equal voice, one equal vote.

American constitutional democracy has never, ever been based upon the notion of "equal voice", whatever that even means. And nothing changed about the vote.

No

OK then. So taking money to do things doesn't suffice. What other elements are necessary to make it a crime?

but pressuring universities to write research reports supporting the safety and efficacy of your products IS a crime.

And what exactly distinguishes this from my scenario? That's what you really don't have a handle on, because you don't understand how the law works.

And it wasn't even in exchange for campaign contributions, but direct PERSONAL gifts of substantial value.

Why does the amount matter? Do you think that in cases of clear-cut bribery (ie: veto that bill and I'll give you money), do you think funneling it through a campaign would make it legal? And given that my hypothetical involved a personal payment, why does this even matter here?

scotusblog summarizes it thus:

Their summary is wrong. In particular, this part:

"Yet the Court found that there was nothing sufficiently formal or official about the actions taken by McDonnell to bring these sordid dealings within the statute that requires government officials to provide “honest services.” None of this, the Court concluded, rises to the level of official government action within the scope of the anti-corruption law."

Well, no. That's NOT what the court ruled. The court ruled that the prosecution's theory of the law in question was invalid, and the instructions to the jury wrong. The court explicitly left open the possibility of a retrial, which means that, contrary to that summary, they did NOT rule that the acts were not within the scope of anti-corruption law. Had they done so, then there could be no possibility of a retrial.

 

[ponderingturtle]

I am waiting for them to through out all those unconstitutional laws against personal gifts and such from lobbyists to lawmakers. It is outrageous that only the govenor in new jersey is allowed to get gifts of hundred thousand dollar vacations paid for by foreign leaders when it should be a perk open to all government officials.

 

[3point14]

If you scale it up, what level of 'gift' would be appropriate for the President?

 

[ponderingturtle]

If you scale it up, what level of 'gift' would be appropriate for the President?

We will see with president trump. After all he has hundreds of millions of dollars in renegotable loans to banks that have had to pay fines for illegal activity in the US.

 

[Ziggurat]

I am waiting for them to through out all those unconstitutional laws against personal gifts and such from lobbyists to lawmakers.

Yet another person demonstrates that they don't understand the law. A blanket prohibition on personal gifts to lawmakers from lobbyists is actually quite easy to defend. It has a clear-cut limiting principle.

It is outrageous that only the govenor in new jersey is allowed to get gifts of hundred thousand dollar vacations paid for by foreign leaders when it should be a perk open to all government officials.

New Jersey lawmakers have it within their power to change that, should they so choose. And they can change it in either direction as well.

 

[ponderingturtle]

Yet another person demonstrates that they don't understand the law. A blanket prohibition on personal gifts to lawmakers from lobbyists is actually quite easy to defend. It has a clear-cut limiting principle.

They are just gifts absent any dirrect employment of their power in a properly clear quid pro quo relationship. Such prohibitions should be as unconstitutional as this ruling.

 

[Ziggurat]

They are just gifts

Doesn't matter, they can still be outlawed. And the reason they can be outlawed is that the dividing line can be made clear and unambiguous.

You just keep proving that you don't understand this case.

 

[stevea]

Lots of people don't want to understand the Citizens United decision. ...

Minor nit, but I thought I'd FTFY. People obviously have a heavy political investment in certain directed misunderstandings of CU that fit their agenda.