It’s time to drive a wooden stake through the heart of the corruption that grips Alaska’s Legislature once and for all.
The same Chief Justice John Roberts that gave corporations and individuals the right to spend as much as they wish on campaigns also gave the rest of us the right to put them in jail if they demand and receive access to the public purse in exchange. What corporation would spend a dime on a campaign if it didn't buy access to the public purse?
Those on the right and the left wishing to combat political corruption need to stop talking past each other and pay more attention to what Roberts has been saying. This time, in McCutcheon v. Federal Election Commission, Roberts clarified:
"The government has a strong interest, no less critical to our democratic system, in combating corruption and its appearance," Roberts wrote. "We have, however, held that this interest must be limited to a specific kind of corruption quid pro quo corruption in order to ensure that the government's efforts do not have the effect of restricting the First Amendment right of citizens to choose who shall govern them."
In other words, stop trying to control the breadth and volume of other people's speech and focus on the billion-dollar favors the loudest voices often extract in exchange for their million-dollar speech. Criminalize the quid pro quo and the court will uphold your statute.
In a 9-0 decision (Nevada Commission on Ethics v Carrigan), the Roberts court upheld a Nevada statute requiring public officials to recuse themselves from voting on, or advocating the passage or failure of; “a matter with respect to which the independence of judgment of a reasonable person in his situation would be materially affected by,” inter alia, “(h)is commitment in a private capacity to the interests of others.”
At the request of his campaign manager, an elected official in Nevada, in violation of a Nevada statute, proposed and voted to provide a casino gaming license to the best friend of his campaign manager. The Roberts court rejected arguments that the Nevada statute is either too broad and/or too vague and that, therefore. it is unconstitutional. The Roberts court also rejected arguments that a legislator's voting privilege is an expression of a legislator's freely expressed opinion and therefore a form of protected speech.
What sets Nevada's statute apart from ethics laws in most states is that most states require prosecutors to prove the meaning of a wink and a nod. A winning defense can be as simple as, "That contribution I got from those people had no bearing on my decision to appropriate a million bucks to them." In the absence of a video with audio record of a promise made in exchange for cash received, prosecutors seldom touch it. Nevada's statute reduces the necessary evidence to a paper trail. A copy of a legislator's reported contributions and voting record can be sufficient to win a conviction.
In Skilling v. United States, the Roberts court narrowed but preserved the use of a federal statute commonly referred to as the "honest services fraud" law. so called because it simply says the public is entitled to honest services from public officials -- leaving it to judges and juries to be the judge of what constitutes dishonest services. Violation of the "honest services fraud" law is a felony. When Jeffrey Skilling's company, Enron, collapsed, prosecutors attempted to apply the "honest services fraud" law to his dishonest dealings with Enron's stockholders. Many Supreme Court watchers expected the court to declare the act to be unconstitutionally vague, but they did not. They clarified that its use was restricted to public corruption, not private institutions such as Enron.
Roberts added the word "corruption," to his reference to "quid pro quo," implying that a stronger criminal act is the solution, not more ethical or reporting requirements. The U.S. Senate and House have their own reporting requirements and ethics statutes that exempt members of both houses from state reporting and ethics requirements. However, as former House Majority Leader Tom Delay learned in Texas, members of Congress are not exempt from the criminal statutes of their home states. One of Delay's money-raising schemes resembled a Texas statutory definition of money laundering. He was indicted, convicted, and is to this day locked in a series of appeals and reversals.
The moral of this story: Any state that chooses to define the act of using one's public office to provide themselves, their families, employers, partners, contributors and/or issue-ad supporters with access to the public purse or a leg up on their competition as money laundering or felony bribery can bring a rapid end to the practice.
What corporation or lobbyist would spend a dime on contributions or issue ads if it didn't buy them an unfair advantage or access to the public purse?
The next hurdle comes in the form of reluctant legislators whose campaigns are, in every state in the nation, almost entirely dependent on contributions from the beneficiaries of their legislation.
Solution: 23 states have the option of creating law by initiative. In Alaska, if a ballot initiative is fewer than 50 words it goes on the ballot verbatim, and we have therefore proposed 49 words reading:
Public officials who regulate or legislate competitive advantages for, or direct appropriations to themselves; business partners; clients; immediate family; past, present, or sought-after employers or contributors; donors to independent expenditures supporting their election; and persons profiting from inducing public officials to violate this statute, commit a class A felony.
Intentionally short enough to read while in the voting booth, it would be difficult to persuade voters that the things addressed in the 49 words shouldn't be illegal. However, the lack of in-depth definition in 49 words leaves much to the discretion of judges and juries, which is likely to scare an otherwise reluctant Legislature into a compromise. The makers of the proposed petition have therefore drafted a 2,757 word alternative. If we collect enough signatures to insure that our 49-word petition is destined for the ballot, we will offer to withdraw it if the Alaska Legislature passes our proposed alternative.
The first time a U.S. senator recuses him or herself from voting while explaining that to vote on the act under consideration would make him or her a criminal in their home state, will make national headlines. Citizens will mount initiatives in other states. If a handful of states pass similar legislation, those senators forced to forgo the wink and smile language of favor-trading will soon force all of Congress to abide by the same.
Voters in five Western states with populations of 1 million or less have the option of changing statutes by initiative. Due to their low population, initiatives can be placed on the ballot for less than $200,000 per state. For $1 million, we can solve this problem. A constitutional amendment on corporate personhood will require the defeat and replacement of half the U.S. House, the Senate and the reversal of control in a majority of state legislatures. For those of us who don't want to wait 50 to 100 years for an amendment, this is our best chance to see a relatively corruption-free government within one lifetime.
Ray Metcalfe lives in Anchorage. He is a former member of the Alaska House, and is the president of an Alaska government watchdog organization, Citizens for Ethical Government.
The views expressed here are the writer's own and are not necessarily endorsed by Alaska Dispatch News, which welcomes a broad range of viewpoints. To submit a piece for consideration, email commentary(at)alaskadispatch.com.