Thursday, August 8, 2019

How the Supreme Court Is Rebranding Corruption — Ciara Torres-Spelliscy

In thirteen years of hostile decisions, the Roberts Supreme Court has done all it can to legalize corruption. With the Bridgegate case, it gets a chance to wreak even more havoc and possibly end the use of the term “corruption” as a useful legal concept....
That the purpose, wasn't it? If this is not judicial activism, what is?
This approach to corruption sets the Roberts Supreme Court apart from other Supreme Courts. For over a century, previous Supreme Courts upheld campaign finance laws and other regulations which try to keep graft and political intimidation at bay precisely because as the Supreme Court recognized in Ex parte Yarbrough in 1884, “[i]n a republican government like ours, where political power is reposed in representatives of the entire body of the people, chosen at short intervals by popular elections, the temptations to control these elections by violence and by corruption is a constant source of danger…. no lover of his country can shut his eyes to the fear of future danger from both sources."...
But wait, there’s more. The Roberts Supreme Court has also rebranded corruption by changing what counts as white-collar crimes. In Skilling v. US (a case brought by disgraced ex-CEO of Enron Jeff Skilling challenging his 24-year prison sentence for defrauding the company’s shareholders), the Supreme Court agreed with Skilling that he should not have been charged with honest services fraud because his crimes did not involve a bribe or a kickback. This Supreme Court decision led to Skilling getting 10 years shaved off of his original sentence. He was released from jail in 2018 and left his halfway house in 2019. He is now a free man....
As I discuss in my article and my book, the Supreme Court’s role in gutting corruption has been keenly watched by shady politicians and their lawyers. If you pull the legal briefs in criminal cases charging politicians of crimes like bribery and fraud, what you will find is citations to white-collar crime cases like Skilling and McDonnell, as well as citations to campaign finance cases like Citizens United and McCutcheon, as reasons why whatever awful thing the politician did is not actually a crime.

Corruption isn’t a partisan matter. Both Democratic and Republican politicians have been accused of abusing their offices for private gain. And using the Roberts Supreme Court cases to their advantage is equally bipartisan....
Is the intent to install plutonomy, the oligarchy of wealth, under the veneer of representative democracy?

Interestingly, in Western liberal "democracies", the oligarchy of wealth called plutonomy is institutionally formalized through the "sanctity of private property," which includes hereditary transfer of ownership through inheritance, establishing a wealthy elite in power across generations. Looks more like neo-feudalism.

How the Supreme Court Is Rebranding Corruption
Ciara Torres-Spelliscy | Brennan Center Fellow and Professor at Stetson Law

1 comment:

Blissex2 said...

There is a very important "detail" here: what the Roberts court is finding is that there are few things in the USA *Constitution* that explicitly punish or forbid corruption. I am pretty sure that there are similarly few things in the Constitution that explicitly punish or forbid theft and securities fraud.

That's a job for Congress to legislate upon, and for voters to elect a Congress that would legislate that. But many voters are as corrupt or more than legislators, except for a few regarded as annoying "jimini crickets" by many others. Two typical quotes, the first from de Tocqueville, the second from "historian" N Gingrich:

“Consequently, in the United States the law favors those classes that elsewhere are most interested in evading it. It may therefore be supposed that an offensive law of which the majority should not see the immediate utility would either not be enacted or not be obeyed.

In America there is no law against fraudulent bankruptcies, not because they are few, but because they are many. The dread of being prosecuted as a bankrupt is greater in the minds of the majority than the fear of being ruined by the bankruptcy of others; and a sort of guilty tolerance is extended by the public conscience to an offense which everyone condemns in his individual capacity.”

“And I don't want to offend anybody, but let me suggest to you that the American cultural response to the challenge of speed limits has been dramatically different than the German one. For most Americans speed limit is a benchmark of opportunity. This is not a light insight. If you have a society where almost every middle class person routinely fudges the law, that's telling us something. We have laws that matter-murder, rape, and we have laws that don't matter. Speed limits are an example. Why would you think that a regulatory, process-oriented bureaucratic model would work?

The first thing that every good American says each morning is "What's the angle?" "How can I get around it?" "What does my lawyer think?" "There must be a loophole!" Then he proceeds to work the angle, and the bureaucracy spends its time chasing that and writing new regs to stop him.”