10

Conclusion

Protection for the Rest of Us

 

DISGRACED GOVERNOR ROD BLAGOJEVICH, who tried to sell Barack Obama’s U.S. Senate seat in Illinois to the highest bidder, is the modern symbol of corrupt politics. He seems perfectly suited to the role: the extortionist with his cartoonish hair, foul mouth, and equally foul-mouthed wife, sentenced to fourteen years in the state pen.

But what is the difference between his attempted extortion and the legal forms we have examined in this book? Perhaps Blago’s real crime was simply a blunder: he lacked the soft touch and deftness that other politicians have mastered. Knowing he was the target of a federal investigation, he told a colleague (while the FBI was listening), “Assume everybody’s listening; the whole world is listening.” But he blathered on anyway. The Senate seat, Blago said, was a “f—— valuable thing, you just don’t give it away for nothing.”¹ He told an aide, “We were approached, ‘pay to play,’ you know, he’d raise me 500 grand, an emissary came, then the other guy would raise a million if I made him a senator.”² He thought he could make “a play here” for his wife: get her a lucrative job in Washington or get her placed on some corporate boards.³

Extorting campaign donations and favors from powerful people. Getting a job for a family member. Sound familiar? Blago was certainly less sophisticated about it than most players in Washington. This is a guy who, on the day his wife was going to testify at his trial, told the media her new haircut was “beautiful,” adding, “I say that to her every day—and I’m not just saying that because she’s testifying.”⁴ And when he was caught renovating his house with non-union labor (a problem for a pro-union Democrat), he told the media that he had indeed used a “politically correct” list of contractors “and the landscaper was a lesbian.”⁵

Blago—must it be said?—lacks the soft touch. Intelligence and gaffes aside, Blago also became too greedy. The key to maximizing the returns of extortion is to restrain “piggish propensities below their full porcine potential.”⁶

Blago’s ultimate mistake was not that he extorted—but that he extorted in broad daylight. What he did—trading government action for money or favors—happens all the time in Washington. He was often referred to as a classic “Chicago pol,” suggesting that corrupt machine rule is a local affair. Yet most people forget that Blago served three terms in Congress. As Thomas G. Donlan of Barron’s posits, “Since Blagojevich is apparently not smart enough to think up these ploys by himself, it’s unpleasant but fair to believe that he learned them from experience in Washington while he was a congressman.”⁷ Chicago is a one-party town; Washington is not. But corruption can work perfectly well in either context.

What happened to Blago seems to personify the solution to political corruption: get rid of the “bad people” in government and replace them with “good people.” Certainly individuals are responsible for their misdeeds and ought to be held to account. But there shouldn’t be style points when it comes to corruption. If others are doing what Blago did, but doing it in a more subtle and sophisticated manner, that is a problem. Indeed, it might be a more severe problem because it is so hard to detect.

FBI investigations alone will never take corruption out of politics. They take too much effort, and they attack the problem serially, one target at a time. Instead, we need to start with a simple proposition: bureaucrats and politicians are just like other people. That may sound obvious, yet it is a real departure from the traditional way we think about government. We like to think our leaders are pursuing the common good. Yet if politicians and bureaucrats are ordinary people, they are going to make most of their decisions based on what benefits them personally.

This is not to say that there are no good, honest, and decent people in politics and government. But by and large people are people: politicians and bureaucrats are as self-seeking as members of other professions, such as bankers on Wall Street or film producers in Hollywood.

We also need to recognize that in Washington today corruption is driven more by extortion than by bribery. The power equation in Washington has shifted from the buyers to the sellers of influence. We all denounce “special interests,” that is, lobbying by firms and industries. We should turn our attention to their counterparts. Our reform efforts have been almost exclusively devoted to restricting the activities of these special interests—in other words, ourselves—as opposed to the activities of the Permanent Political Class. This is unusual because when it comes to most industries in America—insurance, finance, and so on—most regulatory requirements fall on sellers, not buyers. Perhaps that doesn’t happen in this case because it’s the sellers who get to make the rules.

Reforms designed to protect the Permanent Political Class from outside special interests usually backfire and end up being a tool for further extortion. Let me give you a small example of how this fake is played in Washington. In 2006, in the wake of the Jack Abramoff scandal, Congress introduced a series of ethics reforms that were supposed to dramatically limit lobbyists’ influence on Congress by restricting their ability to buy expensive meals or offer other favors to congressional staff.⁸ Sounds like a good idea, doesn’t it? But here’s what happened: with lobbyists buying meals for staffers now out of the question, politicians started organizing fund-raisers where lobbyists paid to meet with the staffers! Lobbyist Stewart Van Scoyoc noted: “Particularly with the ethics package, it’ll put more pressure on fundraising because it will limit the interaction between lobbyists and staff and push more of it into the fundraising context.” As another lobbyist put it, “Members tap us all year, so why not the staff?”⁹

While some have proposed public financing of presidential campaigns as a possible solution, this proposal has huge problems. It is more likely to aid incumbents than challengers, since incumbents have many built-in advantages. If a challenger cannot raise money to take on an incumbent and cannot outspend that person, the incumbent will win almost every time. And the courts have repeatedly found that “checkbook activism is no less protected by the First Amendment than grassroots organizing.” Donating money is a form of freedom of speech, in the eyes of our courts.¹⁰ The famous Supreme Court case on campaign finance limits, Buckley v. Valeo, noted that “virtually every means of communicating ideas in today’s mass society requires the expenditure of money” and that the ability to donate money for the causes you believe in is a constitutional right.¹¹ Many people have bitterly denounced this decision, but I do not believe any court will ever stop wealthy individuals from spending large sums to express their political views. We could tinker with various rules about what candidates may or may not do to coordinate with those individuals, but we cannot stop the “buyers”—ourselves—from entering the fray.

If spending money is a First Amendment right, the restrictions should not be placed on the spenders so much as on the candidates soliciting their help. Limiting the political extortion racket means regulating politicians and bureaucrats, not the American public.

Here are some necessary reforms:

1. Ban the solicitation or receipt of campaign contributions while Congress is in session in Washington. Extortion works best when the threat is imminent. The Mafia street thug who has a bat with him is more likely to get protection money than the distant extortionist making a phone call. The same holds true when it comes to the Permanent Political Class. Important bills that can make or ruin a company or an industry create the perfect baseball bat to use. Holding a fund-raiser in the shadow of the U.S. Capitol, where important legislation might be on the docket, is an extortionist’s dream. Twenty-seven states already have similar laws or rules in place for their state legislatures. In Buckley v. Valeo, the Supreme Court ruled that “the appearance of corruption may persist whenever a favorable legislative outcome follows closely on the heels of a financial contribution.”¹² Timing and location (proximity) are important. We need to divorce fund-raising from lawmaking as much as we can—as in Florida House rule 15.3(b):

 

A House member may neither solicit nor accept any campaign contribution during the 60-day regular legislative session or any extended or special session on the member’s own behalf, on behalf of a political party, on behalf of any organization with respect to which the member’s solicitation is regulated under s. 106.0701, Florida Statutes, or on behalf of a candidate for the House of Representatives; however, a member may contribute to the member’s own campaign.¹³

 

The Florida Senate has a similar restriction.

Extortion can occur at any time. But there is no question that there is no more advantageous time to bring leverage on and extort money than when Congress is about to vote.

Some might object that such a rule would put incumbents at a severe disadvantage. After all, Congress can be in session for months, and challengers would be free to raise money throughout that time. But if anything this restriction would force members of Congress to make efficient use of their time. So much of what happens in Washington is related to fund-raising: milker bills, congressional hearings designed to extract, and so on. Eliminating politicians’ ability to raise money while in session would force them to devote their time exclusively to their job: lawmaking.

In 2007, Speaker of the House Nancy Pelosi announced that Congress would be moving to a five-day workweek rather than the traditional three-day week. It sounded like a good idea, but what did members do with the extra time? They held more fund-raisers! “Honestly we’ve already begun to schedule them,” said Monica Notzon, a political fund-raiser. “I think we’re going to see events every day of the week.”¹⁴ A lobbyist for the National Federal of Independent Business, Dan Danner, said, “If they’re here more that’s what they’ll do. There’ll be more fundraisers.”¹⁵

Imposing this ban would not completely purify all fund-raising, of course. But it would help nudge fund-raising events in the direction of genuine support rather than extraction. As one scholar puts it, “There is little reason to believe that the genuine supporter of a candidate” would not give when Congress is out of session and when supporters are allowed to give.¹⁶

2. Place an outright ban on contributions and solicitations involving lobbyists or government contractors. Many states already have these sorts of restrictions in place.¹⁷ For example, Connecticut General Statutes §9-704 (c) provides in part that:

 

contributions from (1) communicator lobbyist; (2) members of the immediate family of a communicator lobbyist; or (3) principals of a state contractor or prospective state contractors shall not be deemed to be qualifying contributions and shall be returned by the campaign treasurer of the candidate committee to the contributor or transmitted to the State Elections Enforcement Commission for deposit in the Citizens’ Election Fund.

 

3. Restrict the ability of the Permanent Political Class to convert campaign money into a lifestyle subsidy. If you want to loan money to your campaign, that’s fine. But you shouldn’t collect interest in doing so. You have a First Amendment right to spend money on your campaign and loan money to your campaign, but you have no constitutional right to make a profitable investment out of it.

4. Ban leadership PACs. Leadership PACs have essentially become money-laundering operations. As Congressman Joe Hefley of Colorado put it, “My impression is that a lot of people use leadership PACs as a slush fund.”¹⁸ Even former FEC chairman Bradley Smith, who generally opposes restrictions on campaign financing on free speech grounds, believes that leadership PACs have to go because of how they are abused. Sometimes they are used to enhance a politician’s lifestyle, sometimes to bribe colleagues for votes. As one member of Congress put it, “Having a leadership PAC helps me tremendously with my colleagues, whether it’s getting legislation through [or] getting their support for it.”¹⁹ Members of Congress horse-trade all the time. They call it log-rolling: if you support building a bridge in my district, I will support beach restoration in yours. We cannot stop such trades. But leadership PACs are not about benefits for districts: they are about benefits for members of Congress.

Right now, politicians enjoy a nice loophole. They are provided an exemption from the provision in the Ethics Manual that prohibits soliciting or receiving contributions in congressional office buildings from fellow members. We need to extend the solicitation ban to members of Congress: selling your vote is selling your vote, whether it’s to a special interest or a colleague.

5. Restrict the ability of the Permanent Political Class to extort money for their families through political power. We need to ban immediate family members (spouses and children) from registering as lobbyists. Period. We also need to prevent members of Congress from putting family members on the payroll. Campaigns and public service should not be about self-enrichment. Putting your kids on the campaign payroll can often be a simple way of moving campaign dollars into the family bank account.

But beyond restricting the extortionist avenues for the Permanent Political Class, we must also have transparency in the legislative process so that the practice can be exposed. If the military-industrial complex has been cause for worry, today there exists a legislative-lobbyist complex as well. Laws are so complicated that bills are not even read by members of Congress. Extortive practices are easy to carry out in a cloud of legal words.

All sorts of stuff is packed into bills. In an article for the Washington Post entitled “We Need to Read the Bills,” Congressman Brian Baird wrote about a particularly embarrassing episode in which someone inserted a provision into a spending bill that would have allowed House and Senate Appropriations Committee chairmen and their staffs to examine any individual American’s income tax returns.²⁰

We can fix this problem by doing a couple of things. First, we should adopt a single-subject rule for all bills. Article III of the Florida Constitution “requires that every law shall embrace but one subject and matter properly connected therewith.” In other words, each bill needs to be focused on one specific subject. You shouldn’t be able to slip something in on an unrelated subject.

Second, we need to require members of Congress to actually read the bills they are going to vote on. This sounds like common sense to most people outside of Washington. But politicians, of course, think it’s ridiculous that lawmakers should actually read the laws they are making! Several bills that have already been introduced would try to accomplish this in some way. Some would require a seven-day waiting period between the time when a bill is ready to be voted on and when the final vote actually takes place. During this period, members of Congress would be required to read the bill. Others suggest that all bills scheduled for a full vote on the floor be read out loud—even the two-thousand-page monsters. Back in 2009, thanks to a legislative maneuver, it appeared that a monster bill with four hundred amendments might need to be read aloud on the House floor. Congressional leaders actually hired a speed-reader to comply, even though no one would have been able to understand what he was reading. “Judging by the size of the amendments, I can read a page about every 34 seconds,” said the speed-reader. Based on that estimate, it would have taken him nine hours to read the bill.²¹ If we can pass a law to make reading aloud a permanent requirement, it will need to guard against such shenanigans. (Imagine all-night readings to empty chambers.) How about simply requiring members to read the bills before a vote and to sign a legal affidavit attesting to that fact?

Such laws have to have teeth. Current Senate rules require that any bill that will be voted on be posted online beforehand, so that the general public can read it.²² But that rule is regularly suspended or ignored, without any penalty. So those who ignore the requirement to read a bill should face some sort of real sanction. After all, they are paid to be lawmakers. That is their job. How can they make laws if they don’t even read them?

Government is getting bigger—and it is getting meaner. One key reason: it is profitable for the Permanent Political Class. We need to change this reality. Dante, in The Inferno, placed corrupt politicians in the eighth circle of hell, the penultimate in eternal damnation. Yet as Lord Acton famously said, power corrupts. We must assume that the temptation to corruption is universal in Washington, and we must create earthly punishments to deter it.