We can fix Citizens United, one state at a time.
By Ray Metcalfe, a two term Alaska state legislator, Alaska’s 2016 Democratic Party Nominee for U.S. Senate, and whistleblower that resulted the indictment of U.S. Senator Ted Stevens and consulted with the FBI for two years as they investigated, prosecuted, and convicted six Alaska Legislators and four lobbyists for bribery.
Halloween 2019 will mark the five hundred and second year anniversary of the day Martin Luther nailed his theses to the Catholic Church door, demanding an end to the Church’s practice of selling indulgent certificates to forgive one’s sins.
Luther’s demands sparked the reformation, the rise of the Lutheran Church, and several Protestant Christian faiths.
For one gold florin and a confession, your sins were forgiven, and Heaven’s doors opened. For 20,000 florins, you could become an Archbishop and sell indulgent certificates yourself.
But Luther’s demands didn’t stop the selling of indulgences; the practice was expunged from the Church and moved to Washington.
Banks crash our economy and, for a few million campaign dollars, Washington bails them out. Need a billion dollar favor for your drug company? Arrange a few fundraisers and your prayers are answered. The majority of those in Congress, your Legislature, your Assembly, and your School Board, finance their campaigns by selling favors.
However, there’s hope. The same Supreme Court that gave us Citizens United and narrowed the definition of prosecutable corruption when they overturned the conviction of Virginia Governor McDonnell, also gave us clarity on how to draft legislation, to end pay-to-play and the flood of corporate campaign spending.
While Citizens United guaranteed corporations the right to exercise political speech through political spending, Citizens United did not guarantee corporations the right to receive political favors in return.
In a 9-0 decision, the Court guaranteed every state the right to make it a crime for elected officials to reward contributors by voting to give them money from the State Treasury or a leg up on their competitors.
To take advantage of this 9-0 decision, states must first pass legislation that complies with the Court’s definition of public corruption and makes it a crime to repay one’s contributors with appropriations or unfair advantages over competitors.
The Supreme Court upheld a Nevada ethics statute requiring elected officials to recuse themselves from voting if they have a conflict. (Nevada Commission on Ethics v. Carrigan) Many Court watchers thought the Supreme Court would overturn the Nevada statute for being vague and too broad because it doesn’t define conflict; it leaves it to the trial court or jury to judge whether or not a conflict exists.
A Nevada court determined that an elected official had violated Nevada’s ethics statute when he proposed, and voted for, legislation that provided his contributor with a gaming license.
The court agreed that the elected official would not have done the same for someone who had done him no favors. The conviction was upheld unanimously by the U.S. Supreme Court.
The Supreme Court also upheld a federal statute known as the “Honest Services Act” when an Alaska Legislator, appealed his conviction of violating it. The Honest Services Act” simply says that you are entitled to honest services from all of your elected officials, including your US Senator, and it leaves it to the trial court or jury to judge what is or is not honest services.
Bottom line, the Supreme Court signaled that they will uphold legislation enacted to prevent local, state and federal elected officials from repaying contributors through official acts that deliver valuable favors.
Voters in 23 states can enact legislation by initiative. Large population states like California require several million dollars to collect enough signatures to put an issue on their ballot. In Small population states like Alaska, Montana, Idaho, Wyoming, North Dakota, and South Dakota, it costs between one and two hundred thousand dollars. If enough of our elected officials are forced by their home states to end their practice of repaying contributors from state and federal treasuries, they will soon demand their colleagues end the practice as well.
It is my objective to raise one million dollars to put the legislation proposed below on the ballot in six western states. As proposed, it meets the Supreme Court’s narrowed definition of corruption, penalizes the elected, and those who bribe them; the severity of punishment if caught makes it self-enforcing, and it’s ten year statute of limitations insures that would be perpetrators would have to consider that the prosecutors they bribe to look the other way today, may not be there to protect them ten years later.
NOTE: The full draft of the proposed legislation would not be applicable to widely distributed appropriations appropriated for the general welfare of large segments of society.
The proposed legislation reads:
(a) It is a class C felony (1 to 5 years prison) for public officials to legislate or engage in the formal exercise of governmental power to regulate or otherwise create competitive advantages for, or direct appropriations to themselves, their business partners, their clients, their immediate family, persons who have given them gifts, their past, present, or sought-after employers, or their contributors, including contributors to independent expenditure campaigns intended to increase the probability of their election.
(b) The penalty is increased to a class A felony (5 to 20 years prison) if the Trial Court also finds that a public official who has violated (a) of this section, also engaged in an “official act,” resulting in, or attempting to result in, a quid pro quo intended to convey something of monetary value, for something of monetary value in return. In return includes past or future campaign contributions.
(c) It is a class A felony to receive an appropriation or secure a competitive advantage over competition for profit through regulation or statute by inducing public officials to violate (a) of this section.
(d) Prohibited conflicts and official acts by public officials shall be narrowly construed. It is not applicable to contributions effecting votes on public policy unless that public policy also has a narrowly focused and substantial monetary impact on a select few. It is applicable to transactions with narrowly focused monetary consequences. Actions affecting legislation and/or regulations which similarly impact a broad spectrum of the population, and have relatively minor fiscal impacts incidental only to implementation, are exempt. Members of deliberative bodies may absolve themselves of potential conflict by entering their conflict into the record and refraining from voting.
(e) For purposes of governing limitations of actions, in a prosecution under this act, the statute of limitations begins to run with the last act associated with the violation and continues for ten years.
(f) The provisions of this Act are independent and severable. If any portion is found to be unconstitutional, the remaining portions remain enforceable.
Dark money will no longer be dark if prosecutors can serve the source with a subpoena. What corporation would spend a dime to help a candidate if, once elected, the candidate would be barred by conflict from helping them access the public purse?
Members of Congress are exempt from state ethics and state campaign contribution limits. They are not exempt from the criminal statutes of their home state. That is one of the many reasons the above is proposed as a criminal statute rather than an ethics statute. If a Congressman uses elective office to provide a competitive advantage to a contributing constituent, to the detriment of a non-contributing constituent, could they be prosecuted in their home state? While I believe they could, it’s probably a question for the Supreme Court, but who would want to be the first to test it?
If the proposal above gains traction, I believe it will catch fire with voters and sweep the nation. If it does, it will level the playing field and change America.
PO Box 231007
Anchorage Alaska, 99523