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Last month’s Pursuit of Justice column headlined “To control corruption, we must first define it” drew a number of interesting and even intense online comments to me.
That column described the “pay to play” scheme of corruption designed and implemented by former Prince George’s County Executive Jack B. Johnson and certain of his unelected and elected cohorts. Together they developed a network of professionals and lobbyists which effectively controlled the real estate development zoning and permitting process and even the placement of people in county government jobs.
One of the most perceptive comments, which came from friend and attorney Douglas Furlong, who has a similar interest and bent in politics to mine, was as follows: “The problem, of course, is that the representatives who would need to vote for meaningful reform are the same ones who profit from the pay to play culture. Maybe not as blatantly as Jack Johnson. But they all do it, directly or indirectly.”
This view is widely held by those paying attention to how our representative democracy works at all levels of government. It goes a long way toward explaining why Americans’ approval of Congress remains in the single digits (currently 9 percent), and is not much higher at lower levels of government in many states and localities, including our nation’s capital.
This view is further reinforced by the apparently almost limitless capacity of many (but not all) persons elected to serve in our legislatures and executive offices to forgive (and soon to forget) those whose actions are so blatant that they get caught and go to jail — Jack Johnson — or are merely sanctioned and required to make an official apology — State Sen. Ulysses Currie.
‘An engine of influence’
As Harvard Law professor Lawrence Lessig noted in referring to the quick forgiving of Newt Gingrich and Charles Rangel for their ethical transgressions: “Who would ever trust such a system?” “How can this government continue to behave like this?”
Professor Lessig provides an answer to the second question in his recent book “Republic Lost.” His answer mirrors and explains the comment about pay to play from Doug Furlong that “they all do it, directly or indirectly.” Professor Lessig points out that both parties in Washington engage in “a corruption practiced by decent people” that systematically discredits government.
Lawrence Lessig began his career as a law clerk to Supreme Court Justice Antonin Scalia. He now describes himself as a “liberal.” But he does not spare either party or philosophy from the responsibility for our representative democracy’s current condition.
As he poignantly writes in his book, “The great threat to our republic today comes not from the hidden bribery of the ‘Gilded Age,’ but from the ‘Economy of Influence’ now transparent to all, which has normalized a process that draws our democracy away from the will of the people. … We have created instead, an engine of influence that seeks simply to make those most connected to the rich, most influential.”
The Supreme Court undeniably accelerated the development of that “Economy of Influence” by handing down its decision in Citizens United v. Federal Election Commission. That ruling opened the floodgates so that monied interests can now openly and directly spend as much money directly as they want to influence the outcome of elections.
Whether you think that ruling was constitutionally mandated (it wasn’t for decades) or believe, as I do, that right or wrong constitutionally, in terms of its rationale, it was clearly one of the most naive decisions ever rendered by the court.
Demonstrably short-sighted
Exhibit 1 is the now demonstrably short-sighted statement by Justice Anthony Kennedy attempting to justify the majority’s opinion: “The appearance of influence or access, furthermore, will not cause the electorate to lose faith in our democracy.”
The two-year period since the decision demonstrates that Justice Kennedy couldn’t have been more oblivious to the reality which Citizens United would create — a world of Super PACs financed by billionaires and phony corporations set up for the purpose of hiding or even disguising a donor’s identity, as well as the accompanying potential for these interests to obliterate the benefits in the form of increased citizen involvement resulting from the recent increase in small online financial contributors.
Witness the declining numbers of voters participating in most Republican primaries to date, the propping up of candidates well beyond their political life expectancy by their Super PACs and the limited value of the Super PACs’ largely negative attack ads. If money is speech as the majority held in Citizens United, its vocabulary is severely limited.
Far more prescient was a previous dissent by Justice Scalia in Buckley v. Valeo which presaged the majority’s ruling in Citizens United. In Buckley, Justice Scalia complained that the limits on corporate political spending have “muffled the voices that best represent the most significant segments of the economy.”
Contrast that with the dissent by Justice John Paul Stevens to the removal of the muffler in Citizens — “A democracy cannot function effectively when its constituent members believe laws are being bought and sold.”
Can these two views be reconciled or must one or the other be lowered as a priority and principle which our representative democracy must honor and adhere to? We’ll explore that issue in this space in the future.
Steven I. Platt, a retired associate judge on the Prince George’s County Circuit Court, writes a monthly column for The Daily Record. He can be reached at [email protected]
