The Supreme Court has mostly completed its decimation of any anti-corruption laws that might present more than the slightest inconvenience to plutocrats’ political investments. Therefore it has now picked up its judicial supremacy ax to perform the same demolition on the other side of the corruption equation. In a decision announced on June 27, one of the three final opinions of its 2015-16 term, the Court turned its attention to protecting from prosecution the influence peddlers who benefit from the now freely flowing plutocratic investments for their delivery of the peddled policies.
The Supreme Court had previously ruled in line of cases culminating in McCutcheon (2014) that plutocrats have a First Amendment right to buy, under the guise of campaign financing, undue influence which creates conflicts of interest for the peddlers of influence. It held that “[i]ngratiation and access” bought in this manner “are not corruption…. They embody a central feature of democracy.” Under the Supreme Court’s bizarre interpretation that “freedom of speech” is the equivalent of freedom to make political pay-offs, the Supreme Court thus denies government the power to restrict the flow of special interest money into politician’s pockets in the form of campaign financing.
The Supreme Court justifies its project of eliminating legal restraints on the sources of campaign finance corruption flowing politicians on the grounds that the corrupting effects can be prevented by prosecuting the targeted recipients of the money for committing bribery, which the Court calls quid pro quo corruption. The Latin term lends legalistic weight to the Court’s otherwise unsupported distinction between the individual and transactional character of bribery and the systemic character of most contemporary corruption that the Supreme Court has created and perpetuated by legalizing the flow of money into politics since 1976. The Court holds that only quid pro quo transactions, bribery, can be addressed by government.
The Court’s fatuous argument that there is a constitutional reason to enforce laws against bribery but not against systemic corruption ignores the vast difference between the remedies appropriate to address individual acts of corruption and those remedies required to treat systemic corruption. Bribery involves a direct two-way knowing transaction, easily concealed and therefore very difficult to prosecute. The more amorphous kind of systemic influence peddling that involves unspoken networks of exchange requires an entirely different set of remedies which the Court has mostly outlawed. The classic form of systemic corruption routes the flow of money through various intermediary organizations such as SuperPACs while the demand for policy is routed through lobbyists, leaving the quid pro quo relationship only implicit, and therefore incapable of supporting a bribery charge.
Because only amateurs tend to get caught up in bribery prosecutions, the Court is wrong in claiming that enforcement of bribery laws can be a solution for systemic forms of corruption. Professionals employ systemic processes that do not rely on the express agreement which is an element of the crime of bribery, or alternatively are capable of skillfully suppressing evidence of express agreement where systemic processes do not suffice.
Bribery laws, like conflict of interest prohibitions that operate on the demand side of the influence peddling equation, generally require politicians to recuse themselves from taking action that conflicts with their official duties on behalf of special interests which have conferred benefits on the politician. These kinds of laws which regulate what the recipients of special interest benefits may do in return have been held not to implicate the First Amendment. For example, in Nevada Commission on Ethics v. Carrigan (2011) the Court held unanimously that legislative voting is nonsymbolic conduct, and therefore is not First Amendment speech subject to Supreme Court oversight. Since the Supreme Court first entered the field in Buckley v Valeo (1976), it has relied solely on the First Amendment for its line pro-corruption decisions. Conflict of interest rules can thus be freely applied to require recusal by officials from engaging in conflicted legislative acts, or other official act, on behalf of special interests. Bribery laws that punish officials who fail to refrain from official acts in return for such favors would similarly not involve First Amendment speech, under the same reasoning.
Until now, it has been the corrupt Congress, not the Court, that has been responsible all these years for the failure to enforce traditional conflict of interest prohibitions against the increasing levels of legalized campaign finance corruption of politicians who divert their delegated public powers to serve the private interests of their benefactors against the interests of the people who elect them. The Supreme Court has given the benefactors nearly absolute First Amendment protection from any laws prohibiting the supply of political investments, but it is the politicians who have given themselves a free pass to deliver the influence they have peddled in return for those investments. By preventing the latter deliveries of policy by conflict of interest recusal and the threat of bribery prosecutions there would be no plutocratic purchases.
Since such recusal laws, if robustly enforced, would provide a systemic remedy for the systemic corruption created by the Court’s deregulation of the supply of money in politics, the Court has now issued a deceptive decision that maps a retreat from its permissive doctrine with respect to regulating conflicts of interest, without even mentioning the subject. It has done so by unanimously ruling that an elected official who takes money for and commits acts to advance the special interests of a benefactor, such as to make useful introductions, set up a meeting, talk to another official, make a product endorsement or organize a promotional event, but which activities do not actually succeed in accomplishing the supposed concrete goal sought by the benefactor, does not commit an act that fits within the Court’s re-definition of an “official act,” even if such activities were unquestionably performed within the scope of the politician’s official duties. This somewhat oversimplified description of the Court’s ruling suggests a more clear distinction than the Court’s more convoluted reasoning actually draws from its effort to subvert the meaning of the statutory text, but captures the gist of the ruling.
This latest case adds to the long line of cases since Buckley where the Supreme Court has continuously breached the separation of powers to arrogate from the people their inherent constitutional power to defend democracy from being overthrow by corruption. In Burroughs v. United States, 290 U.S. 534, 546-48 (1934), a prosecution for handling campaign contributions in violation of the Federal Corrupt Practices Act of 1925, the Court found the “proposition so startling as to arrest attention” that “a government whose essential character is republican,” and therefore dependent on the integrity of its elections, might lack the power “to secure this election from the influence of … corruption.” That Court held a republican “government … must have the power to protect the elections on which its existence depends from … corruption.” Otherwise “the very sources of power may be poisoned by corruption,” placing “the country in danger, and … at the mercy of … unprincipled corruptionists.” Of all those cases since Buckley that have violated this original understanding about the threat of corruption to democracy, McDonnell is arguably the most significant by failing to draw a single dissent, and also by blatantly violating the fundamental separation of powers doctrine that prohibits advisory opinions. The unanimous 8 to 0 vote contributed to the general neglect of the decision by the media on a newsday designed by the Court to distract attention to its two other identity politics decisions issued that day.
Exculpation by interpretation
In McDonnell v. United States (2016), lacking any single good existing legal reason to interfere with the prosecution of the governor of Virginia for bribery, the Court confusingly joined several inadequate excuses to limit the kinds of official activities that can be prosecuted under federal bribery laws. The Court apparently intended that one or another reason might stick or at least create enough confusion to forestall understanding. The strategy seemed to work with the Court’s liberal justices who for the first time all joined a pro-corruption decision having dangerous implications.
The Court’s tactic for extending its four decade plutocracy project by protecting corrupt politicians from prosecution is to restrict the legal meaning given by Congress to the otherwise all-inclusive term “official acts.” To do this the Court defines, as a constitutional matter, what politicians are still prohibited from selling to special interests and what they can sell with impunity. The new meaning of the term “official acts” that the Court dictates is different from the ordinary common-sense meaning of the term. It is also contrary to the well-settled understanding established by the Supreme Court a century ago, and followed by the federal courts ever since, that “official acts” includes “[e]very action that is within the range of official duty,” This is consistent with the ordinary common sense meaning that would include whatever an official does within the scope of his or her legally defined or traditionally practiced official capacity.
To be successfully prosecuted for bribery, the official act in question would have necessarily demonstrated some value in the marketplace for influence peddling. If a jury decides that the act was in fact performed in exchange for pecuniary inducements, that should be sufficient guarantee that it involved a valuable use of political influence for a special interest’s private purpose. But the Court parsed the term “official acts” in order to make a new distinction between what it considered good and bad bribery.
The Court’s legal reasoning for its idiosyncratic interpretation of the term “official acts” is not designed to enforce the intent of Congress which appeared to include all acts taken within the broad category described by a politician’s official capacity. Congress did not express any intention that a politician who slow-walks the actual delivery of the ultimate policy goals for which money was apparently taken should draw a pass from prosecution just because they had not yet delivered all the concrete results presumably desired by the buyer of influence, but had only acted to facilitate that delivery by others. The Court’s decision is like redefining the game of football to exclude gains of small yardage, but only refer to touchdowns and field goals.
The Court’s reasoning in trying to reach this approximate result is less than clear, and involves some sleight of hand. The Court starts with the assertion that the common-sense meaning of acts that fall within a politician’s “official capacity” is vague. To remedy that supposed vagueness, the Court creates its own distinction to divide up the reasonably clear category of all official acts into some acts that can be prosecuted and those that cannot. The Court’s new distinction, which has no real basis in the statute, is far more vague than the category of “official acts” as a whole. It raises more questions than it answers, How much yardage is “small yardage? Do short yardage touchdowns count? This new definition, partly due to creating confusion where there was none, does succeed in legalizing more corruption. As one experienced court-watcher observes, McDonnell “poses a major challenge to prosecutors seeking to police official misconduct.”
The Court arrives at its new uncertain boundary separating the newly legalized from the still illegal acts by logic-chopping its way through pages of analysis of the statute and the implementing jury instructions. Through its complex analysis the Court’s goal is to establish some vague subset of activities of an official that the Court deems to be exempt from prosecution under the bribery statute. These activities happen to include the kind that McDonnell was proven to have committed: “merely setting up a meeting, hosting an event, or calling another official.” There is no particular reason why any subset of official actions, if that is what the jury found the buyer in fact purchased, should not be prohibited from being sold to special interests. It is not up to the Supreme Court to determine what kind of official act might be valuable to a plutocrat and undermine representative democracy by means of honest services fraud. That would be a legislator’s job.
The Court’s opinion by Chief Justice Roberts, who has written most of the Court’s pro-corruption decisions, concludes, without much rational support, that under “the text of the statute, the precedent of this Court, and the constitutional concerns raised by Governor McDonnell, we … adopt a more bounded interpretation of ‘official act.’ Under that interpretation, setting up a meeting, calling another public official, or hosting an event does not, standing alone, qualify as an ‘official act.’”
As for the Court’s “precedent” excuse, it mainly consists of dicta in one case persuasively shown to have been erroneous by the Government Brief, 30. Meanwhile copious precedent to the contrary, 24, is either ignored by the Court, or inadequately explained away.
As for the “text of the statute” justification for his ruling, Justice Roberts ultimately landed on one of his trademark, completely absurd propositions that goes to the heart of the matter. Roberts uses this tactic in his most deceptive opinions. The heart of the matter in McDonnell is, as mentioned, to establish that there is some subset of politically marketable actions which fall within the politician’s official capacity in any ordinary understanding of the term but which can nevertheless, for some reason, be defined as not an “official action” for purposes of invalidating the prosecution of the illegal marketing of them. Roberts culminates his otherwise unpersuasive interpretation of the statute on that essential issue with the following non-sequitur, masquerading as irrefutable logic: “if every action somehow related to the research study were an ‘official act,’ the requirement that the public official make a decision or take an action on that study, or agree to do so, would be meaningless.”
Well, no. In fact if “every action” within the scope of official duties, such as were related to the proposed official research study that the buyer of McDonnell’s influence sought, “were an ‘official act,’” as common sense dictates it is, then it would mean that the “requirement that the public official … take an action” in order to be prosecuted would be satisfied by any of the official’s actions related to the study made pursuant to the bribe agreement that the jury found to exist. It is Roberts’ logic, not the text of the statute, that is “meaningless.”
If Roberts stopped there, Congress could still amend the statute to expressly overrule Roberts’ error of interpretation, and failure to carry out the intent of Congress, by making even more abundantly clear that the statute is in fact intended to cover any official activity within the scope of a politician’s official duties that a jury might find was purchased by a political investor. Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007) (5-4) exemplifies a case where the Court’s misinterpretation of a civil rights provision was later overruled in this fashion. But as with the case of Shelby County, which gutted the Voting Rights Act, a deadlocked status-quo Congress can also easily block action to reinstate what was clearly the previous intent of Congress erased by judicial misinterpretation.
It is the nature of systemic corruption for legislators to be more engaged in the business of expanding the scope of corruption, alongside the Court, rather than taking any action to prevent corruption, by overturning the Court. But just in case a future Congress might be inclined to more of a Ledbetter than a Shelby County outcome, the Court goes to the next step to provide the corrupt Congress an excuse for inaction. This helps relieve the mounting pressure at the ballot box for Congress to do something about political corruption if it can blame the Constitution for tying its hands from doing the right thing.
With his interpretation of “text” argument descending from unconvincing turgid exegesis ultimately into rank nonsense, Roberts throws into this logical stew the argument that an “expansive interpretation of ‘official act’ would raise significant constitutional concerns.” What specific part of the Constitution would be significant is not made entirely clear by Roberts. But this is the only possible justification for the Court’s refusal to enforce the intent of Congress as the Court’s touchstone for statutory interpretation, and instead substitute its own definition of “official acts” for that of Congress.
The Court first implies that including all acts within a politician’s official capacity as services prohibited from sale could violate the Constitution’s due process clause. There is a doctrine that text in the form of law can nevertheless be so vague as to lose the capacity to be enforced as actual law. E.g. Johnson v. United States, 576 U. S. ___ (2015). The Court routinely fails to apply this sound principle to its own supremacist decisions, instead treating its far-fetched interpretations of the First Amendment nowhere found in its three word text “freedom of speech,” for example, as if that text were clear enough to make law of such bizarre and historically unsupported propositions as that “money is speech.” But there is nothing in Roberts’ opinion to support the idea that the traditional concept of acts taken within one’s “official capacity” is any more vague than the new test the Court has created in its stead which it does find to pass the “void for vagueness” test. Roberts’ newly discovered and idiosyncratic boundary between good and bad bribery is entirely without coherent definition in comparison with the well-established and often-applied line between official and private conduct. Accordingly, the Court does not rest entirely on that strand of its argument.
Next the Court suggests the possibility of some “significant federalism concerns” involved with prosecution of state officials for bribery, citing in support the barest allusion to this concept in a case involving the definition of the term “defraud.” In the cited case the Court had briefly suggested in a parenthetical makeweight phrase, without further discussion or citation, rejection of an interpretation that “involves the Federal Government in setting standards of disclosure and good government for local and state officials.” The comprehensive and persuasive dissent of Justice Stevens in that case did not even take notice of this comment, though he did conclude with an observation equally applicable to McDonnell by questioning why “a Court that has not been particularly receptive to the rights of criminal defendants in recent years has acted so dramatically to protect the elite class of powerful individuals who will benefit from this decision” that strained to exempt one obvious form of corruption covered by the law from prosecution.
Roberts reference to this other case also omitted the fact that its narrowing pro-corruption interpretation was quickly overturned by Congress’ enactment of the honest services statute. Whether Congress can take similar action to overturn McDonnell’s narrowing pro-corruption interpretation of “official acts” will be a measure of how more corrupt Congress is in 2016 than it was nearly three decades ago when it took a little more than a year to reverse a baseless Supreme Court pro-corruption interpretation comparable to McDonnell‘s.
Article IV, Sec. 4 confers on Congress the authority, free of any judicial second-guessing, to guarantee a republican form of government to the states. Luther v Borden (1849). It is hardly an answer to Congress’ exercise of that clear and unrestrained federal authority, by preventing corruption of a state’s republican government, that vague and unarticulated “federalism concerns” would prevent it from doing so. It is an essential element of federalism that the central government is responsible for preventing the entrenchment of corruption in state government that could undermine its democratic character.
Both of these “constitutional” suggestions are little more than ill-considered and negligibly reasoned asides.
Apparitional Free Speech
Under this same heading, Roberts makes what is, in effect, an argument under the plutocrat’s best friend, especially when wielded by John Roberts. This is the New First Amendment, where plutocratic money is speech. Justice Roberts was able to imagine bribery law being used by some prosecutors to criminalize what he considered “[t]he basic compact underlying representative government [which] assumes that public officials will hear from their constituents and act appropriately on their concerns.” Unless Roberts proceeds to redefine the meaning of “official act” to legalize some kinds of corruption, his argument goes, he fears that “commonplace requests for assistance, and citizens with legitimate concerns might shrink from participating in democratic discourse. This concern is substantial.” (Emphasis added).
Unfortunately, Roberts makes no rational connection between this “concern,” which evokes the First Amendment, and the particular official acts he chose to immunize from bribery prosecutions. Roberts’ favored “citizens with legitimate concerns” and “commonplace requests” might as easily involve a specific administrative ruling or delivery of a subsidy that falls on the bribery side of Roberts’ new boundary as it might involve a strategic introduction or meeting which falls on the exempt side of that line. Roberts’ favored solution, immunizing some kinds of bribery, does not match the problem he has manufactured that bribery laws might abridge “democratic discourse.”
Without further interpretation that Roberts completely fails to provide, this argument upon a moment’s reflection reveals itself to be sheer nonsense. Roberts strangely never mentions the premise that rescues his argument from absurdity by citing Buckley v. Valeo (1976) or any of its “money is speech” progeny. These cases are all premised upon the shell-game logic that money invested in influence peddling, since it is presumed to be ultimately spent on promoting political propaganda, is therefore alchemically converted into First Amendment protected speech, i.e. Roberts’ “democratic discourse.”
There is no other area of law except political corruption where a criminal statute is constitutionally overturned and the criminal conduct legalized on the basis of how the proceeds of the crime are ultimately spent. For this reason Roberts has tended to retreat from revisiting the original Buckley shell-game analysis for his re-application of the doctrine to each of the Court’s nearly annual pro-corruption decisions that do depend upon it as precedent. In McDonnell Roberts goes even further. He leaves the First Amendment entirely unmentioned, only vaguely invoked, lurking in the shadows of his opinion. Buckley’s perversion of the First Amendment hangs without attribution over Roberts’ opinion by his mention of the interest of constituents’ “in democratic discourse” or of politicians’ in “hear[ing] from their constituents” as unacknowledged euphemisms for buying and selling influence.
A casual reader might easily suppose that Roberts intended these noble phrases to refer to actual speech between constituents and politicians. But that would be absurd since no actual speech could in any way trigger a bribery prosecution. Speech does not bribe. These innocuous-sounding references to “democratic discourse” therefore do not refer to speech that conveys meaning, but rather money, or other things of value, which the Supreme Court has converted into “speech” by judicial alchemy in Buckley and its progeny. This alchemy process is strangely never mentioned in McDonnell, but must be tacitly understood by the reader to make any sense of Roberts’ otherwise absurd concern about those “participating in democratic discourse” who might somehow get unwittingly caught up in a bribery prosecution. Roberts actually means – without citing to the source of the Court’s alchemic powers used to alter the meaning of these words — those “participating in buying influence.” More precisely Roberts is concerned with protecting not what “public officials will hear from their constituents” but what “public officials will [receive of pecuniary value] from their” sponsoring plutocrats, like specifically McDonnell did from his special interest benefactor.
As Roberts starts out on a whole new line of pro-corruption jurisprudence intended to undermine the deterrent effect of bribery and conflict of interest prosecutions upon the behavior of politicians, why does he neglect mentioning Buckley or even the First Amendment? The briefs argued the issue at length, and the Government described the issue as “fundamental.” Tr. 41-42. Does Roberts find the Court’s “money is speech” cases too discredited and flimsy a prop to even mention and therefore seeks to introduce them only surreptitiously, even to support the very bedrock justification for the Court’s decision?
Another indication that the First Amendment tacitly underlies the McDonnell case is Roberts’ implicit application of the First Amendment “overbreadth doctrine.” An essential part of the Court’s ruling is that the jury instructions did not include reference to the Court’s exemption for some official acts and was therefore “significantly overinclusive.” Given the tacit First Amendment basis for Roberts’ protection of these excluded official acts, the echo of the overbreadth doctrine can be detected in his term “overinclusive.”
The “chilling-effect” justification – or “dynamo” (83 Harvard L. Rev. 844, 846) – for the overbreadth doctrine holds that the Court may act to protect some other speaker, not in court, who might otherwise be deterred from speaking if the Court does not rewrite the law involved in the case before it. This doctrine only applies to First Amendment cases. Roberts fears that some other political investors “might shrink from participating” with some other influence peddler if it does not reduce the scope of federal bribery law in this case. In making this argument Roberts is alluding to the “chilling effect” of laws that are overinclusive (i.e. overbroad) in their affect on speech (i.e. on political investments). But again Roberts avoids expressly invoking the First Amendment doctrine by name, or even by citing to cases like Citizens United (2010) which applied the doctrine to overturn what it called the “substantial, nation-wide chilling effect caused by … prohibitions on corporate expenditures.” Since that specific application of the doctrine had recently been definitively rejected in a devastating critique of the Court’s legal incompetence by Yale Dean and First Amendment scholar Robert Post, Citizens Divided: Campaign Finance Reform and the Constitution (2014) 73-76 & n.146, Roberts may have hesitated to flaunt continued ignorance by recycling the doctrine directly, by name, in McDonnell. Being Roberts, he did so surreptitiously.
Roberts has established a pattern of planting novel concepts in his decisions from which he might start to reinvent, for example, First Amendment doctrine for this new specialized purpose of legalizing bribery and conflicts of interest. Since he acquired a unanimous decision as fertile soil for this project, Roberts can cultivate the seeds he cleverly planted in McDonnell for creating new law in future cases.
It is therefore only the apparition of the First Amendment that Roberts invokes as his principal justification for excepting from corruption prosecutions his vaguely defined exempt category of “official acts.” Especially disturbing about Roberts’ conjuring of First Amendment principles is that none of the payments made to Governor McDonnell were made in the form of campaign contributions, but rather as personal pay-offs. This suggests that the Court is prepared to apply its First Amendment analysis beyond the context of campaign contributions, to which First Amendment protection has been restricted since Buckley, in order to encompass any form of corrupt payment whatsoever.
Judicial Supremacist Usurpation
McDonnell was not formally a First Amendment decision. If used outside of the First Amendment context, the overbreadth (or Roberts’ “overinclusive”) doctrine violates the Constitution’s fundamental “case or controversy” requirement. The First Amendment earns exemption from the normal constitutional constraints on the Supreme Court’s jurisdiction because of its supposed paramount importance to democratic government. One of the many perversities of the “money is speech” formula is that it reverses this purpose of the overbreadth exception by turning into a tool for facilitating the plutocratic overthrow of democracy.
In all other cases not involving the First Amendment the Constitution’s limited grant of jurisdiction prevents the Supreme Court from issuing advisory opinions for the purpose of redrafting laws. The Court can only exercise judicial review in a case to which the offensive part of the law might otherwise apply, if the Court did not exercise its powers to prevent that application. This is the original excuse for judicial review described in the seminal Marbury case.
The Court’s failure to restrict its decisions only to the cases actually before it, by instead reaching out to decide hypothetical cases of its own invention as a means to usurp the legislature’s job of drafting laws, is an illegal act of judicial supremacy. Warning that “the judicial department … may exercise or sanction dangerous powers beyond the grant of the Constitution,” James Madison insisted that such violations of the separation of powers, “may justly be pronounced the very definition of tyranny.” (The Federalist, No. 47),
The Court did not contend that Robert McDonnell’s own behavior should be immunized by its decision. On the contrary Roberts recited the facts that Governor McDonnell accepted from a highly interested donor, with a clearly communicated special interest agenda, “over $175,000 in gifts and loans,” including such luxury goods as a Rolex watch and “$20,000 worth of designer clothing,” use of a Ferrari, and “transportation on his private airplane to assist with McDonnell’s election campaign.” Justice Roberts therefore expressly hesitates to “suggest that the facts of this case typify normal political interaction between public officials and their constituents. Far from it. But the Government’s legal interpretation is not confined to cases involving extravagant gifts or large sums of money.”
The Constitution does not require the Government’s “legal interpretation” to be so confined. Nor does it give the Supreme Court powers to police such Executive Branch interpretations in the abstract. In another case the Government may prosecute bribery according to its less confined “legal interpretation.” Such a case can be subjected to judicial review at that time. But by fundamental principles of constitutional separation of powers the Court must confine itself to the abnormal facts of McDonnell, the case before it, which did involve “extravagant gifts [and] large sums of money.” But, of course, confining himself to the Court’s legitimate constitutional powers would prevent Roberts from giving McDonnell a second chance to beat his corruption rap, and also prevent Roberts from executing a legislative rewrite of anti-corruption law in order to allow many other politicians to indulge in corrupt conduct on behalf of plutocrats with impunity.
Roberts further emphasizes his illegitimate intentions: “There is no doubt that this case is distasteful; it may be worse than that. But our concern is not with tawdry tales of Ferraris, Rolexes, and ball gowns. It is instead with the broader legal implications of the Government’s boundless interpretation of the federal bribery statute.” In other words, Roberts does not claim that the federal bribery statutes should not apply to the influence peddling actually presented in the McDonnell case before it. Roberts is unconcerned with the case before him over which he properly has jurisdiction. Rather, as an unconstitutional roving law-revision commission, he is concerned that there might be some other hypothetical cases over which he does not have jurisdiction but which he can imagine the statute should not cover, as an excuse for rewriting it.
As one of the bases for claiming the Government’s interpretation is “boundless,” Roberts invoked a trick the current Court has frequently employed, in Citizens United for example. At oral argument the Court will trick Government’s counsel into making a broader claim than necessary, which is made so as not to unnecessarily concede a point that may be of use by the Government in future cases but is not raised by the case at hand. Blindsided by this tactic, counsel fails to anticipate that the Court will utilize the claim as grounds for illegitimately adjudicating a hypothetical case encompassed by the claim.
In McDonnell this trick was invoked by Roberts to manufacture a claim from the Government that an “official act” could be a premise for a bribery conviction if it “concern[ed] any subject, including a broad policy issue such as Virginia economic development.” In support of that proposition Roberts provides two references, one to the Government’s Brief and the other to its oral argument. On closer inspection Roberts’ assertion is revealed as not the Government’s, but his own invention. The transcript of the oral argument does not indicate that such an assertion was ever made by Government’s counsel. The truth is that the Deputy Solicitor General Dreeben made a fairly masterful presentation of the case that did not include any such claim that Roberts deceptive, if not outright dishonest, reference to the Transcript of the argument suggests that he did make. Indeed at another point in the transcript from that cited by Roberts, Dreeben expressly refused to take Roberts’ bait on the subject of “jobs for Virginia,” the only discussion even relevant to the subject of economic development. Tr. 44-45. Dreeben skillfully kept his argument at all times focussed on the facts of the case that involving a very narrowly identified special interest, not remotely related to Roberts’ hypothetical assertion about “broad policy.”
By coincidence, after the argument, Deputy Dreeben’s exceptional experience in oral argument and exemplary advocacy in the Supreme Court was formally recognized by the Court on the occasion of his having completed his 100th argument. This happened to underline the skill of his argument on that day that did not include the kind of mistake that Roberts nevertheless attributed to him.
Roberts also cites the Government’s Brief for support of this assertion that the Government contended that an official act “concerning …. a broad policy issue” could constitute the object of bribery prosecution. But this is a misreading of the Brief, where the Government mentions Governor’s McDonnell’s interest in the broad policy of economic development as evidence defining “the scope of petitioner’s official duties,” not as the hypothetical subject of prosecutable “official acts” given as a quo in return for a pecuniary quid. The Government quite specifically described the subject of the official acts as a narrow special interest that fell within the broader scope of official duties because it was a particular instance of the broad subject of economic development that defined the one scope of the governor’s duties. Roberts’ mischaracterization of this argument as if the Government contended that a broad policy area itself could be the subject of prosecution was dishonest.
Roberts dishonest characterization of the Government’s position elides the difference between advocates of the public interest who do not personally profit from their advocacy beyond participation in the general benefit to the public, and special interests who do profit by buying specific policies, and kick-back a share of those profits into the pockets of politicians. Generally “a broad policy issue” would not generate profits to special interests and therefore advocacy of such policies cannot be considered within the general sphere of what can be considered as corruption. Roberts’ gratuitous insertion of this issue in the case therefore intentionally created a false impression that the government’s position on potential objects of its prosecutorial power might exceed the proper bounds of what could fairly be described as corruption.
Unchecked Usurpation of Separate Powers
Roberts imagines other hypothetical cases that might arise under “the Government’s boundless interpretation” as involving “commonplace requests” or “most prosaic interactions” by citizens who have presumably endowed more modest benefits on an official than McDonnell’s benefactor did in pursuit of “general policy” reforms. Such a case has not been charged, tried, reached a conviction by a jury, and proceeded on appeal to the Supreme Court as is required by the Constitution for the Court to act on it.
Roberts thus strikes down part of the bribery statute because of an imagined application to some other case, not to the McDonnell case. No other criminal but a corrupt politician could get off the hook by showing that someone else than himself could not be constitutionally prosecuted under the statute he has been found guilty of violating – without invoking the First Amendment overbreadth doctrine, that is.
The Court is only empowered by the Constitution to decide whether the bribery law constitutionally applies to the tawdry facts of Mr. and Mrs. McDonnell, not whether it can be applied to a vague and hypothetical “commonplace” or “prosaic” case, as well. Roberts used this same tactic in Shelby County to gut the Voting Rights Act, making future enforcement of the law more challenging, on account of some other imagined applications to which the Act might apply, rather than confining himself to the actual case before him concerning Shelby County, Alabama.
One scholar writes: “Where Congress is convinced that the Court has attempted to alter the Constitution under the guise of interpreting it, Congress has an oath-sworn duty to uphold the Constitution and resist the abuse.” Both cases are blatant violations of the separation of powers that are tolerated by a Congress that is at once, respectively, too corrupt and too Jim Crow racist to defend its own powers in these cases. As was said by Adam Ferguson, (1767) p. 482, about separated powers, “if any member is remiss, the others must encroach.” Congress is remiss, and the Court therefore encroaches its powers.
Roberts the juror
Those lesser “prosaic interactions” hypotheticals that trouble Roberts would mostly be taken care of by the quid pro quo requirement for bribery prosecutions. A reasonable jury in a bribery case must find on sufficient evidence that the quid given was in fact the incentive for the quo provided in return. Roberts writes: “A jury could, for example, conclude that an agreement was reached if the evidence shows that the public official received a thing of value knowing that it was given with the expectation that the official would perform an “official act” in return.” The fact that there are other cases that might be charged under the statute which factually involve both quids and quos, but which fall below this standard of proof that there was an underlying transaction connecting the two provides no excuse for the Court’s McDonnell decision where the jury necessarily found there was such an underlying agreement.
The potential factual weakness of some other hypothetical case cannot immunize whole categories of valuable official action that may in some, but not all or necessarily most, cases be associated with favors and requests so insignificant that a jury would reasonably conclude that they were not the product of quid pro quo agreement. But immunize is what Roberts did anyway as if acting as a meta-juror for future possible prosecutions that occur primarily in his own imagination.
The most worrisome development of McDonnell is that Roberts’ deceptive opinion has outsmarted all four of the justices who, as recently as in Arizona Free Enterprise Club (2011), American Tradition Partnership, Inc. v. Bullock (2012), and McCutcheon (2014), all 5-4 decisions, had opposed the extension of Buckley‘s “money is speech” First Amendment protection for influence buying. In McDonnell, Roberts has for the first time successfully recruited all four liberals to his judicial supremacist pro-corruption project to protect the influence peddlers.
Last year it was in Williams-Yulee v. The Florida Bar (2015) (5-4) that Roberts had partly succeeded in this same project by dividing the usual four dissenters in a ruling so insignificant that he could join these liberals in order to accomplish his goal. Writing the majority decision for the liberals and himself in a “money is speech” case, Roberts held that judges “cannot say, ‘Please give me money.’ They can, however, direct their campaign committees to do so.” By making this distinction without any substantive difference, Roberts’ opinion, as a commenter in the Atlantic observed, “upheld a very narrow reform measure, but at the same time made further reforms marginally harder to enact.”
Roberts was thus able to recruit Obama’s two appointees, Justices Sotomayor and Kagan, to join his opinion reconfirming Republican Party of Minnesota v. White, 536 U.S. 765 (2002), the case that legalized campaign finance corruption of elected state judges. These two renegades therefore declined to join Justice Ginsburg’s separate decision based on the premise that “Judges … are not political actors,” which restated her persuasive dissent from White which had then been joined by four justices.
By joining Roberts’ opinion, instead of Ginsburg’s, the two erstwhile votes for anti-corruption decisions endorsed both the “money is speech” doctrine of Buckley and also that the doctrine should be applied for the corruption of elected judges as well as to elected politicians. This left only two justices in the liberal opposition to perhaps the most extreme of the entire pro-corruption jurisprudence of the Court. White, as reconfirmed by The Florida Bar, undermines the due process of law, which is the last institutional defense against the effects of systemic corruption in the other two branches. After legalized judicial corruption is fully rolled out, which is already well underway in states where the Kochs are active like Wisconsin, the country will be a kleptocracy in fact as well as in principle.
McDonnell completes Roberts’ cooptation of the liberal justices to the dark side. For the first time a unanimous Court has subscribed to Buckley‘s money is speech doctrine, albeit only by implication. At its inception, Justice White wrote a powerful dissent from Buckley showing the doctrine to be intellectually fraudulent, explaining ““money is not always equivalent to or used for speech.” White continued to write such dissents in later cases. Justice Stevens also powerfully rejected the doctrine in opinions insisting that: “Money is property; it is not speech.” His dissents were joined by other justices until he retired just after issuing his powerful dissent from Citizens United for four justices.
McDonnell signals that there are no such solid defenders of democracy left on the Supreme Court. Roberts has outsmarted the soft-headed liberals to join in the usurpation of legislative jurisdiction so as to weaken anti-corruption laws under the “money is speech” fraud. This “treason to the Constitution,” Cohens v Virginia, 19 U.S. at 387 (1821), indicates that it is even more important than it was previously for Pres. Obama to make a recess appointment of an intellectually strong progressive justice to the Court who can provide leadership to the current weak liberal contingent who have capitulated to the Roberts-led deceptive reasoning and systemic corruption.