Posted by John Denker:
Let’s talk about government corruption, especially the system whereby powerful interests make huge “campaign donations” and then “coincidentally” benefit from special provisions in the laws. This system is spectacularly corrupt and harmful to public policy. Although it has gotten worse lately, it has been a problem for more than 100 years. For example, Teddy Roosevelt – a Republican – sounded the alarm in 1910, in his famous “New Nationalism” speech.
A good discussion of the current situation can be found the recent book Republic, Lost by Lawrence Lessig. If you can’t get your hands on the book, you can get much of the same information by watching Lessig’s lectures, which are available online for free. Our esteemed blogmeister, Michael Bryan, has posted a review in this forum.
I agree with almost everything Lessig has to say ... except for the main conclusion and main theme of the book! He says over and over again that even though the system is corrupt and ill-serves the public interest, virtually all of it remains technically legal. I’m not convinced.
As a point of logic, of course it is possible for something to be contrary to the public interest yet still be legal, and surely some of what goes on in Washington falls into this category ... but not all of it. It seems to me that a great deal of it is illegal, just structured in such a way that the perpetrators cannot easily be caught.
Lessig seems to underestimate the breadth of the exiting bribery laws. He seems to imply, over and over again, that the statute applies only to cash-on-the-barrelhead transactions, quid-pro-quo, where the quid is explicitly, directly, and instantly connected to one particular quo. He talks about “bags of cash”, as if that were the only way to make payment for a bribe. I am not a lawyer, but to my eyes, the statute seems much broader than that. You can check for yourself: 18 USC 201 – Bribery of public officials and witnesses.
- The statute clearly says “directly or indirectly” ... not just directly.
- It clearly speaks of “anything of value” ... not just “bags of cash”.
- It clearly speaks of “influence” ... not just immediate, single-factor causation.
To convict someone of bribery, you have to prove intent. This is as it should be. Lessig emphasizes this point, and I agree. Furthermore, I agree that if you limit attention to the congressmen themselves, proving intent might be tricky in some cases. However, in other cases, including some of the examples Lessig cites, the politicians demonstrate clear intent, e.g. as discussed here and here.
Furthermore, Lessig overlooks the fact that giving a bribe is just as illegal as receiving a bribe. In most cases, the lobbyist has obvious intent, since influencing legislation is the lobbyist’s advertised business plan and raison d’être. Similarly, the the big-money “contributors” have blazingly obvious intent. Big corporations spend billions of dollars on lobbying. They would not do this if they did not expect to get something in return. Lessig calls it “return on investment”.
If planning to get a big return on investment is not “intent” within the meaning of the bribery statute, I don’t understand why not. Can somebody explain this?
I reckon that prosecuting a corrupt lobbyist is about as hard as prosecuting a mafia don. It requires years of effort, and even then is not always successful.
This leaves us with two questions:
- If this corrupt, selfish, and destructive behavior is not already illegal, what do we have to do to make it illegal?
- If/when it is illegal, how to we remove the barriers to enforcement, so as to make sure the laws are enforced in practice?
Lessig suggests some partial solutions, although he recognizes that his suggestions are not entirely practical, and “the prognosis is not good”. I have some additional suggestions about this.
Lessig argues that corruption defeats the goals of the Left ... and defeats the goals of the Right. It drains hundreds of billions of dollars per year from the treasury, to no good purpose. I would add that it defeats the purpose of the Constitution, insofar as it bypasses all the checks and balances and gives virtually unlimited power to large corporations. It defeats the purpose of having elections, insofar as both parties are in the pocket of the special interests. This infuriates the Tea Party guys, infuriates the Occupy guys, and infuriates a lot of people in between.
When power becomes so vast and so corrupt that laws cannot be enforced and elections cannot solve the problem, some people start talking about secession and/or armed insurrection. The very name of the Tea Party is an allusion to insurrection. Sharron Angle, while a Republican candidate for US Senate, spoke openly of “second amendment remedies”. Rick Perry, the Republican governor of the largest state, spoke openly about secession.
It’s hard to imagine anything more important than this. The cost of inaction is extraordinarily high, and could get even higher. All this is discussed in more detail, with examples and footnotes et cetera, at http://www.av8n.com/politics/republic-lost.htm.