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Sunday, April 1, 2012

The Root of Political Corruption?

“Emolument”.  What a very strange word.  Not one you would use often, if ever.  It’s more for the 18th century than for our modern era.  Yet, it may contain within itself the root cause of our own difficulties with the political system that we call our own. 

It carries the literal meaning from the Latin of “a fee for grinding grain”.  But, it also contains the meaning of any fee, profit, remuneration, payment, compensation, or benefit, usually for the performance of some completed work or service.  Somewhere along the line, perhaps in the 18th century, the word seems to have acquired the meaning of a “tip” for work done and then morphed into a compensation as a result of holding an office; a profit by virtue of the position one held. 

More especially, an emolument became something akin to a gift given to an ambassador or foreign official whose service had been particularly notable.  For instance, the King of France around the time of our nation’s founding, made it a practice to give expensive gifts to departing ambassadors when they had successfully negotiated a treaty.  In 1780, he gave Arthur Lee of Virginia a portrait of himself set in diamonds and fixed above a gold snuff box.  In 1784, he gave Benjamin Franklin a similar portrait, also set in diamonds.  The practice was common throughout Europe.  In fact, the king of Spain gave John Jay a horse upon his departure.  These gifts raised a question for the founders of our nation: would agents of the new Republic keep clear about their loyalties if in the background they had in view such gifts from foreign kings? (Republic Lost: How Money Corrupts by Lawrence Lessig).

Thus, we find the framers of the constitution, no doubt worried about this practice, adding to our Constitution a strange, but profound clause, in Article I, Section 9, clause 8:

“No Title of Nobility shall be granted by the United States; And no person holding any Office of Profit or Trust under them, shall, without the consent of the Congress, accept of any present, emolument, Office or Title, of any kind whatever, from any King, Prince, or foreign State.”

Is it just me, or does it seem prescient, that the framers saw the trouble the Republic could be in -- then, and in the future -- if office-holders were allowed to accept gifts or emoluments by virtue of the importance of their office?  This clause, with its strange word, has been treated quite cavalierly by so many that it has lost its potency.  The Supreme Court’s decision in Citizens United seems to overlook it entirely.  Weren’t the founders and framers trying to tell us something of grave importance: that corruption comes easily when office-holders accept any gifts whatsoever for simply being in office? Such emoluments were viewed as a form of corruption even if there was never a clear quid pro quo tied to the gifts.  Such emoluments create a dependency that is as much an addiction as any drug might engender, so that one becomes unable to live without the “tips” that can accrue to one from the mere fact of holding office and being in a position of power.  Perhaps, then it is this flagrant dependence upon easy money that now gnaws at the very roots of our system of government.  As Lessig indicates:

“The (framers’) fear…was that a dependency might develop that would draw the institution away from the purpose it was intended to serve: the people.”

I believe we are at a moment in our history when we must be as bold and forthright as were our founding fathers about this one thing: we must get all gifts, emoluments, presents, tips -- whatever you want to call them -- out of politics.  The framers put it succinctly when they said no present or emolument “of any kind whatever.”  That is where we must take our stand.  And, since the current Congress is so very dependent upon such emoluments, we cannot allow “consent of Congress” to any such gifts.  In other words, we have to amend our founding document in such a way that all gifts, and not just quid pro quo gifts, are removed from our system, and that most certainly includes campaign finance contributions.

There are already several proposed amendments out there that address this issue.  Perhaps the best known is the one that Dylan Ratigan of MSNBC is touting to “Get Money Out” of politics.

    “No person, corporation or business entity of any type, domestic or foreign, shall be allowed to contribute money, directly or indirectly, to any candidate for Federal office or to contribute money on behalf of or opposed to any type of campaign for Federal office. Notwithstanding any other provision of law, campaign contributions to candidates for Federal office shall not constitute speech of any kind as guaranteed by the U.S. Constitution or any amendment to the U.S. Constitution. Congress shall set forth a federal holiday for the purposes of voting for candidates for Federal office.”

This amendment concentrates its subject matter most specifically to overturning Citizens United, which is a very important objective.  However, it does not fully address public financing of election contests,  the problem of gifts of lobbyists to office-holders, or the need to prevent former office-holders from entering lobbying firms as soon as they leave office.  It also does not specifically address the formation of PACs, although it implies that they will not be allowed.  It may even contain an inherent contradiction in that it prevents any contributions from individuals or corporations to candidates for federal office, but then indicates that ”campaign contributions” shall not “constitute speech of any kind.”

Looking further, the Fair Elections Now Act (S. 752 and H.R. 1826) was introduced in the Senate by Sens. Dick Durbin (D-Ill.) and Arlen Specter (D-Pa.) and in the House of Representatives by Reps. John Larson (D-Conn.) and Walter Jones, Jr. (R-N.C.). The bill would allow federal candidates to choose to run for office without relying on large contributions, big money bundlers, or donations from lobbyists, and would be freed from  constant fundraising in order to focus on what people in their communities want.'s Proposed 28th Amendment to the Constitution also addresses Citizens United as well as elections:

“Section 1 [A corporation is not a person and can be regulated]
The rights protected by the Constitution of the United States are the rights of natural persons only.
Artificial entities, such as corporations, limited liability companies, and other entities, established by the laws of any State, the United States, or any foreign state shall have no rights under this Constitution and are subject to regulation by the People, through Federal, State, or local law.
The privileges of artificial entities shall be determined by the People, through Federal, State, or local law, and shall not be construed to be inherent or inalienable.
Section 2 [Money is not speech and can be regulated]
Federal, State and local government shall regulate, limit, or prohibit contributions and expenditures, including a candidate’s own contributions and expenditures, for the purpose of influencing in any way the election of any candidate for public office or any ballot measure.
Federal, State and local government shall require that any permissible contributions and expenditures be publicly disclosed.
The judiciary shall not construe the spending of money to influence elections to be speech under the First Amendment.
Section 3
Nothing contained in this amendment shall be construed to abridge the freedom of the press.”

Rep. Marcy Kaptur of the 9th district of Ohio has proposed a constitutional amendment that speaks to both the overturning of Citizens United, and to election reform.  To wit:

"Waives application of the First Amendment to the political speech of any corporation, partnership, business trust, association, or other business organization with respect to the making of contributions, expenditures, or other disbursements of funds in connection with public elections.
Grants Congress the power to set limits on the amounts of contributions and expenditures with respect to candidates in a federal election.
Grants a state the power to set limits on the amounts of contributions and expenditures with respect to candidates in a state or local election.”

In my humble opinion, the Constitution should only be amended when that Amendment addresses a basic problem that goes to the foundations of our democracy, or which threatens an individual right, or the freedom, welfare or pursuit of happiness by a majority of our citizenry.  Emoluments, or the conferring of gifts on people who hold elective office, or who are running for the same, is at the heart of much of what we believe to be fairness, equal opportunity, and justice.  It must be addressed, or political cronyism and the coerciveness of money will rule the land, and the votes of the electorate will become  meaningless.

Listen to Lessig once again:

“In a way that is so hard to see (because so pervasive), and certainly hard to model (because so complex), lobbyists have become the center of an economy of influence that has changed the way Washington works.  They feed a frantic dependency that has grown among members of Congress --  the dependency on campaign cash -- but they can feed that dependency only if they can provide something of value to their clients in return.  On the one side of this economy (of influence) are the members, frantically searching for cash.  On the other side are interests that increasingly find themselves needing or wanting special favors from the government.  As government grows…‘no serious industry or interest can function without monitoring, and at least trying to manipulate, Washington’s decision makers‘.”

About fifty years ago, Senator Paul Douglas (D-Ill; 1949-1967), described the “Washington culture” in this way:

“Today the corruption of public officials by private interests takes a…subtle form.  The enticer does not generally pay money directly to the public representative.  He tries instead by a series of favors to put the public official under such a feeling of personal obligation that the latter gradually loses his sense of mission to the public and comes to feel that his first loyalties are to his private benefactors and patrons.  His final decisions are, therefore, made in response to his private friendships and loyalties rather than to the public good.”

It is this atmosphere of dependency, obligation and misplaced loyalty that demands a constitutional remedy for this cancer of “emoluments” at the heart of our governmental system.