Legalized political corruption in America

In the years leading up to the 2010 USSC decision in Citizens United v. Fed. Election Commission, Republican federal judges had been nibbling away at laws that tried to tamp down on political corruption. The Citizens United decision blew a huge hole in anti-corruption laws, paving the way for the massive, shameless corruption that now poisons American state and federal governments.

By legalizing corruption, euphemistically called “protected free speech” by pro-corruption, authoritarian Republican judges, America’s radical right authoritarian wealth and power movement was greatly empowered. It aggressively expanded its decades-long effort to (i) take power from federal and state governments, and (ii) take civil liberties and the power that protected them from citizens. As much of that power and attendant wealth flowed to corrupt politician, business, and religious elites as they could possibly get away with grabbing and keeping. The new power to be corrupt was at least as useful as the new cash.

A current example of legalized corruption comes from the prosecution of US Senator Bob Menendez (D-NJ). CBS News reports:

Prosecutors trying to prove that New Jersey Sen. Bob Menendez wielded his political influence in exchange for bribes cannot show jurors evidence that they argue is “critical” to their case, a federal judge ruled Friday.

U.S. District Court Judge Sidney Stein said prosecutors could not use text messages from 2019 that allegedly show Menendez, who was the top Democrat on the powerful Senate Foreign Relations Committee, assuring Egypt and the New Jersey businessmen who are alleged to have bribed him that he was not delaying military aid to the country after Egypt heard he had put a hold on it.

The jury also cannot see another text from 2022 in which the senator's wife, Nadine, allegedly told one of the businessmen that “Bob had to sign off on this.” The text included a link about two pending foreign military sales to Egypt, according to prosecutors.

Prosecutors argued last week that Egypt was “frantic about not getting their money's worth,” which is why it contacted Menendez through two of the New Jersey businessmen, who allegedly gave the senator cash, gold bars, and other things of value. The text involving Menendez's wife signaled, “You keep the bribes flowing, and he is going to keep giving you what you want on the military aid,” prosecutor Paul Monteleoni told Stein before the decision.

But Stein determined the Constitution's “speech or debate” clause, which protects lawmakers against prosecution over official legislative acts, applied to the evidence.

“The core legislative act is clearly the hold or releasing the hold. I don't think it matters that there was mistaken information here,” Stein said Tuesday, before making his decision official in an order later in the week.

Such an interpretation would prohibit “some of the core most critical evidence,” Monteleoni countered.

The judge here, Sidney Stein, is a Democrat appointed to the bench by Bill Clinton. That probably makes Stein a neoliberal who is inherently sympathetic to elite white collar criminals. Or maybe the law is such that high-level corruption like this simply cannot be prosecuted any more. Unless I misunderstand this reporting, if a federal politician entangles corruption like bribe-taking with official business, it is legal. 

The American Prospect wrote about the Menendez legal situation last March:

One More Way the Supreme Court Has Legalized Corruption

The Menendez story also illustrates a subtle way the Supreme Court’s de facto legalization of corruption interacts with other aspects of the campaign finance system. You see, he has not officially dropped out of the race—and has even floated that he will run as an independent in the general election—because pretending like he’s still a candidate lets him spend his campaign cash on his legal defense.

The context is important here. The sheer comical excess of the Menendez indictment illustrates how rampant political corruption is in this country. The reason people getting nailed by law enforcement for corruption tend to be people with literal gold bars and stacks of cash sewn into their jackets is because of Supreme Court decisions making it impossible to prosecute instances of corruption that are somewhat more deniable. In McDonnell v. U.S., the Court unanimously overturned the conviction of a former Virginia governor and his wife who had set up meetings with officials for a pharmaceutical company while taking valuable gifts from the company’s owner. In FEC v. Ted Cruz for Senate, it ruled that candidates can loan their campaigns money, and then pay themselves back with donor cash after the election is over and the victor is known—effectively opening a window labeled “bribes here.” And in Citizens United v. FEC, of course, they legalized effectively limitless corporate spending in politics.

Partly as a result of these decisions, Washington, D.C., is absolutely awash with people being effectively bribed, morally if not legally. Lobbyists are throwing all kinds of money and gifts around all the time. As a politician, if you behave well in office as a senator or representative, you can expect to be offered all kinds of cushy lobbyist or no-show “consulting” jobs that are actually worth much more than a sack of gold ingots.

So while Menendez was doing the kind of idiotic corruption that actually may have run afoul of the remaining shreds of anti-corruption law, now he is taking advantage of a more subtle variety: spending his campaign money on his legal bills. Should he actually contest the Senate election this year, he is absolutely certain to lose—a recent poll found him with 75 percent disapproval among New Jersey residents—and he’s already given up on seeking re-election as a Democrat. But pretending to be running allows him to spend his remaining campaign funds on his legal defense. Just between October and December last year, he spent $2.3 million out of his campaign coffers on legal fees. And as of the end of December, there’s still another $6.2 million in that account.

This is not just about corruption of federal politicians and the federal government. The corruption problem is in the states too. Last February, The Economist wrote about the flow of power to state Attorney General politicians, like the shamelessly corrupt Ken Paxton of Texas:

State attorneys-general are shaping national policy

Despite not being elected to do so

To foreigners looking in, it is unusual enough that America elects most of its top prosecutors. More shocking is the amount of money going into political campaigns. Now the two have come together in a way that would make even the least wonky American curious. Between 2008 and 2022 the cost of state attorney-general races rose from $17m to $222m. Over that period governors’ contests became only eight—rather than 12—times pricier and those of state senators merely doubled.

The cashflow reflects something much bigger: the role of state attorney-general has been recast. The job used to be about defending state laws and prosecuting cheats, fraudsters and corporate bullies. Today attorneys-general shape nationwide politics and policy by pushing strategic lawsuits through their favorite courts. Their quiet rise to power has made the states’ top lawyers some of America’s most unchecked partisan players.

Two attorneys-general, one a Republican and one a Democrat, exemplify the new breed. First there is Ken Paxton of Texas. Between 2021 and 2023 he refused to represent state agencies in court at least 75 times, according to ProPublica and the Texas Tribune, both news outlets—often seemingly for ideological reasons. He has dropped child-sexual-assault cases after losing track of the plaintiffs, let payments to crime victims lapse and taken decreasing interest in catching Medicaid cheats. Instead he chose to energize his Trumpian base by relentlessly suing the Biden administration. Mr. Paxton has blocked vaccine mandates and banned abortion when it was still protected under the federal constitution. Most recently he brought the country’s attention to a bitter row over whether Texas can enforce its own immigration regime at the southern border.  

[In a 2000 decision,] the Supreme Court ruled that due to the threat of rising sea-levels the Massachusetts attorney-general could lead the charge. Massachusetts v EPA set the precedent for a single state to challenge the federal government in court. That drastically expanded the reach of attorneys-general—Republicans soon raced to sue Barack Obama when he took office. Over time attorneys-general realized that if they banded together with like-minded colleagues across the country, they could handpick the district with the most sympathetic judges in which to bring their case. One federal judge’s injunction in their favor, and against Washington, could shut down a policy for the whole country until a higher court ruled on its appeal. “Not only can they play on their home-turf, they can now choose the referee,” says Steve Vladeck of the University of Texas at Austin. 

The strategy took off when Mr. Trump became president. Democratic attorneys-general sued the federal government more times in four years than they had in the previous 16, says Paul Nolette, a political scientist. Republicans took it a step further under Joe Biden, aiming their litigation not just at Democratic policies but at the administrative state itself. Today these lawsuits are masterfully co-ordinated to maximise partisan wins, says James Tierney, a former attorney-general of Maine who teaches at Harvard University. With that in mind it is less surprising that Mr Trump’s Muslim travel ban was halted by a judge in Honolulu and mifepristone, an abortion pill, was temporarily outlawed by a judge in the Texas Panhandle. 

Follow the money

Dark-money groups caught on to the fact that attorneys-general had sway and that their races were cheaper to influence than congressional ones. The Concord Fund, a conservative one, has pumped at least $9.5m into the contests since 2020. That cash no doubt helped unseat moderates: a five-term Republican attorney-general of Idaho who refused to be a political activist was booted out in 2022. The left is no more tolerant of impartiality. The Democratic Attorneys General Association, which funds candidates, announced in 2019 that it would no longer back Democrats who were not explicitly pro-choice. For aspiring attorneys-general the calculus has become clear: get more political, get elected.

The Economist, which is inherently anti-government and anti-Democratic Party, also singled out New York’s Democratic attorney-general Letitia James for (i) prosecuting Donald Trump for lying to lenders about his finances (finance fraud), and (ii) prosecuting the bosses of the National Rifle Association for corruption. The Economist grudgingly concedes that the James prosecutions “may have more legal merit” than some of what Paxton has done in Texas. That is an understatement. It reflects the pro-business, anti-government bias The Economist usually brings to the table. And, the case for equivalence between Republicans and Democrats The Economist makes is not persuasive to me.  

But as one can see, there are multiple ways to be corrupt in politics and get away with it.