Could America Become a Banana Republic?

The Supreme Court’s recent McCutcheon ruling paves the way for a new era of political corruption in the U.S.

A picture shows bananas on sale at a market in London on February 23, 2014. According to the British Fairtrade organization the UK consumes over five billion bananas each year. The price of a banana in the UK has almost halved due to supermarket pricing wars, they say. The organisation has started in London on February 24, 2014 a campaign to try to end this war that causes producers in mostly Latin American countries to sell bananas at a price that can be even below production cost, with dire economic consequences for those farmers.
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Norm Ornstein
April 16, 2014, 3:31 p.m.

Last week, I was in Prague for the third an­nu­al World For­um on Gov­ernance, which brings to­geth­er people from coun­tries around the world, in­clud­ing East­ern and Cent­ral Europe, Rus­sia, China, Ukraine, Tur­key, Egypt, South Africa, In­dia, and Bolivia in search of best gov­ern­ing prac­tices.

One high­light of the for­um — which I co­dir­ect with Tom Mann of Brook­ings and Steph­en Dav­is of Brook­ings and Har­vard Law School — was a con­ver­sa­tion with Pietro Grasso, pres­id­ent of the Itali­an Sen­ate. Grasso is best known as the long­time chief of the anti-Mafia squad, who sur­vived death threats and ac­tu­al as­sas­sin­a­tion at­tempts to bring down a series of Mafia lead­ers and hol­low out the or­gan­iz­a­tion. He gave a stir­ring talk on the in­ter­na­tion­al nature of cor­rup­tion, but his ad­vice to those as­sembled also em­phas­ized the im­port­ance of clean­ing up cam­paign fin­ance.

Cor­rup­tion is a can­cer that af­flicts so­ci­et­ies strug­gling to ad­opt demo­crat­ic val­ues and forms of gov­ernance, and those that make no or few pre­tenses about demo­crat­ic val­ues. It also hits all es­tab­lished and ven­er­ated demo­cra­cies. It can come in big forms — lead­ers such as Tur­key’s Ra­cep Tayyip Er­dogan or Rus­sia’s Vladi­mir Putin and their cronies, and ol­ig­archs pil­ing up for­tunes; and it can come in smal­ler forms — pro­fess­ors in Kenya de­mand­ing sexu­al fa­vors or money in re­turn for grades, or loc­al of­fi­cials in In­dia de­mand­ing bribes for ser­vices. It can be il­leg­al or leg­al, in­clud­ing, as Grasso poin­ted out, cor­rupt or­gan­iz­a­tions and in­di­vidu­als laun­der­ing their ill-got­ten gains through le­git­im­ate or­gan­iz­a­tions they pur­chase.

Laws are ne­ces­sary to com­bat cor­rup­tion, but the laws need to be en­forced by hon­est pro­sec­utors and judges, and they need to be bolstered by a cul­ture that sup­ports and abets hon­est gov­ernance. Both the Czech Re­pub­lic and Slov­akia moved to cre­ate in­de­pend­ent ju­di­ciar­ies by hav­ing 12-year terms for judges, in­su­lat­ing them from polit­ic­al pres­sure. But the Czech Re­pub­lic, thanks to Vaclav Havel, picked judges of ster­ling char­ac­ter, while Slov­akia, with no Havel, picked some shady ones who now op­er­ate in a cor­rupt fash­ion, and has no abil­ity to re­move or con­strain them.

Many Amer­ic­ans come to the World For­um on Gov­ernance, and our role, in part, has been to of­fer ad­vice to re­formers in­side and out­side gov­ern­ments from around the world that we would nor­mally view as “less de­veloped” in their demo­crat­ic cul­ture and in­sti­tu­tions. Not this year. Lots of non-Amer­ic­ans knew about the U.S. Su­preme Court’s Cit­izens United and Mc­Cutcheon de­cisions and wondered how the United States could be slip­ping back so much.

That is a long in­tro­duc­tion to a column about Mc­Cutcheon. Many ana­lysts have writ­ten a lot about the de­cision, with a nat­ur­al fo­cus on its dir­ect im­plic­a­tions for cam­paigns. Those are huge and im­port­ant. But they are, I be­lieve, over­shad­owed by the im­pact of the de­cision on cor­rup­tion in Amer­ica.

Here, Rick Hasen and Dah­lia Lith­wick, two of the best leg­al ana­lysts in the coun­try, have weighed in, and I want to add my weight.

Some have sug­ges­ted that Mc­Cutcheon was not a ter­ribly con­sequen­tial de­cision — that it did not really end in­di­vidu­al con­tri­bu­tion lim­its, that it was a minor ad­just­ment post-Cit­izens United. Oth­ers have said that it may have a sil­ver lin­ing: more money to parties, more of the money dis­closed. I dis­agree on both counts. Justice Brey­er’s pen­et­rat­ing dis­sent to the de­cision poin­ted out the many meth­ods that cam­paigns, parties, and their law­yers would use to laun­der huge con­tri­bu­tions in ways that would make a mock­ery of in­di­vidu­al lim­its. Chief Justice Roberts pooh-poo­hed them as fanci­ful. And, of course, they star­ted to emerge the day after the de­cision.

As for dis­clos­ure, the huge amounts that will now flow in through polit­ic­al parties will be channeled through joint com­mit­tees, state and loc­al party com­mit­tees, and oth­ers in com­plex ways that will make real dis­clos­ure im­mensely dif­fi­cult, if not im­possible.

More sig­ni­fic­ant, in any case, were Roberts’s sweep­ing con­clu­sions about cor­rup­tion and the ap­pear­ance of cor­rup­tion in the de­cision. The chief justice took the shaky con­clu­sion reached by Justice An­thony Kennedy in the Cit­izens United de­cision — that money giv­en “in­de­pend­ently” of cam­paigns could not in­volve cor­rup­tion or its ap­pear­ance — and ap­plied it in an even more com­pre­hens­ive fash­ion to money giv­en dir­ectly to can­did­ates and cam­paigns. Thanks to Mc­Cutcheon, only quid pro quo cor­rup­tion is suf­fi­cient to trig­ger any re­stric­tions on cam­paign con­tri­bu­tions — mean­ing, dir­ect bribery of the Ab­scam or Amer­ic­an Hustle vari­ety, pre­sum­ably cap­tured on video­tape for the world to see. The ap­pear­ance of cor­rup­tion? For­get about it. Re­stric­tions on elec­ted of­fi­cials so­li­cit­ing big money? For­get about them, too.

To any­one who has ac­tu­ally been around the law­mak­ing pro­cess or the polit­ic­al pro­cess more gen­er­ally, this is mind-bog­gling. It makes leg­al what has for gen­er­a­tions been il­leg­al or at least im­mor­al. It re­turns law­mak­ing to the kind of fa­vor-trad­ing bazaar that was com­mon in the Gil­ded Age.

With in­tense com­pet­i­tion between parties over elec­tion out­comes, with the stakes in­cred­ibly high over who will cap­ture ma­jor­it­ies in a po­lar­ized era, and with money every­where and in­tense com­pet­i­tion for dol­lars, the trade of fa­vors for money — and the threat of dam­age for the fail­ure to pro­duce money — will be every­where. Ac­cess to law­makers, pres­id­ents, their aides, and sub­or­din­ates is pre­cious, in­clud­ing when they are ac­tu­ally mark­ing up le­gis­la­tion. In the af­ter­math of Roberts’s de­cisions, this pre­cious ac­cess will be sold to the highest bid­ders.

I re­mem­ber well the pre-re­form era where there were “Speak­er’s Clubs” and “Pres­id­ent’s Clubs” with menus for soft-money donors: for $10,000, lunch with key com­mit­tee chairs and a day hob­nob­bing with im­port­ant law­makers and com­mit­tee staffers; for $25,000, all that and a small break­fast or lunch with the speak­er; and so on. Those will be back, with the dol­lar amounts high­er and the ac­cess more in­tim­ate. Big donors will make clear to party lead­ers that mul­ti­mil­lion-dol­lar dona­tions are one step away — and will be forth­com­ing if only the lead­ers will un­der­stand the le­gis­lat­ive needs of the donor. Mc­Cutcheon not only made all that leg­al but also gave it the Su­preme Court’s seal of ap­prov­al.

Ol­ig­archs will rule.

Roberts has, over the past few years, taken a meat-ax to 50 years and more of law and pre­ced­ent on cam­paign fin­ance, even as he took a meat-ax to vot­ing rights. In both areas, he showered con­tempt on Con­gress and its laws. All after he as­sured sen­at­ors dur­ing his con­firm­a­tion hear­ings that he would bend over back­ward to rule nar­rowly, find con­sensus, and re­spect pre­ced­ent. It is hard to es­cape the con­clu­sion that he de­lib­er­ately misled the Sen­ate to win con­firm­a­tion.

Many of those who cel­eb­rate these de­cisions say they simply re­flect the Con­sti­tu­tion. Wrong.

They re­flect five ideo­lo­gic­ally driv­en justices and their world views. If not for the de­cision of Sandra Day O’Con­nor to re­tire from the Court to care for her hus­band and his Alzheimer’s dis­ease, we would have ex­per­i­enced the op­pos­ite de­cisions in Cit­izens United, Shelby County, and Mc­Cutcheon. Vot­ing rights would be pro­tec­ted and not sup­pressed, cor­rup­tion would be re­strained and not cel­eb­rated, ol­ig­archs would be lim­ited and not reign­ing su­preme.

Ben Frank­lin fam­ously answered a ques­tion about our emer­gent form of gov­ern­ment fol­low­ing the Con­sti­tu­tion­al Con­ven­tion by say­ing, “A Re­pub­lic, if you can keep it.” Thanks to Chief Justice Roberts, we have kept a re­pub­lic — but it is mov­ing rap­idly to­ward the ba­nana vari­ety.


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