By Ray Metcalfe, two term state legislator, Alaska’s 2016 Democratic Party Nominee for U.S. Senate, and whistleblower that resulted the indictment of U.S. Senator Ted Stevens.
The same Supreme Court that gave us Citizens United and narrowed the definition of prosecutable corruption when they overturned the conviction of Virginia Governor Bob McDonnell, also gave us clarity on how to draft highly effective enforceable anticorruption legislation, that could 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 from the beneficiaries of their political speech.
In a 9-0 decision, the Court did guarantee 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.
For states 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.
In a unanimous decision, (Nevada Commission on Ethics v. Carrigan), the U.S. Supreme Court upheld a Nevada ethics statute requiring elected officials to recuse themselves from voting if they have a conflict. Many Court watchers thought the Supreme Court would overturn the Nevada statute for being too broad and too vague because it doesn’t define conflict; it leaves it to the Jury to judge whether or not a conflict exists.
A Nevada jury 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 jury agreed that the elected official would not have done the same favor for a total stranger who had done him no favors, and the conviction was unanimously upheld by the U.S. Supreme Court.
The Court also upheld a federal statute known as the “Honest Services Act” when An Alaska Legislator was convicted of having violated it.
The Honest Services act simply says that every citizen has the right to expect and receive honest services from their elected officials. The case in question was Skilling v. United States. It came before the Court when Enron’s CEO Jeff Skilling appealed his conviction of having violated the “Honest Services Act” when he violated the trust of Enron’s stockholders.
Like the Nevada statute, many Court watchers thought the Court would find the “Honest Services Act” too broad and too vague, and therefore unconstitutional.
Skilling’s appeal was combined with the appeal of the convicted Alaska Legislator. The Court ruled that the “Honest Services Act” was applicable to public officials only. The Alaska Legislator’s conviction was upheld and remanded. The Skilling conviction was overturned.
The Nevada case tells us we can outlaw the practice of repaying contributors with appropriations from the public treasury by making it an illegal conflict. The federal case tells us we can make such conflicts a felony.
The ravages of Citizens United will stop when corporations can no longer buy access to the public treasury, and dark money will no longer be dark when search warrants can be served in the investigation of suspected criminal conflicts.
To comply with the McDonnell decision, the proposed legislation suggests one level of punishment for failing to recuse one’s self from voting when conflicted, and a far more serious punishment if the Court finds that the accused 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.
Even though Virginia Governor Bob McDonnell, had received $175,000 in gifts from someone for whom McDonnell was doing favors, the Court ruled that none of McDonnell’s “favors” constituted “official acts.” McDonnell’s favors were limited to introductions, recommendations, etcetera. Because McDonnell made no “formal exercise of governmental power” on behalf of his gift maker, the Court determined that none of McDonnell’s actions met the Court’s criteria for a corruption conviction. McDonnell’s conviction was reversed.
In doing so, the Court narrowed the definition of public corruption, bribery, and quid-pro-quo, to the clear intent to exchange something of monetary value for an “official act” such as a contract, executive order, or an appropriation.
The casting of votes to deliver things of monetary value to their business partners, their clients, immediate family, past, present, or sought-after employers, or their contributors, are official acts. And unlike Nevada’s conflict statute and the federal Honest Services Act, the legislation proposed is only applicable to a narrowly defined list of infractions.
This proposal should not be confused with restrictions on support for issues or candidates if the only thing expected in return is good government. Any contributor not intending to request something of monetary value be directed back to themselves need not worry. Support for widely distributed funding for widely used programs like schools, or police protection are exempt.
There are 23 states in which the voters can enact legislation by initiative. Large population states like California require several million dollars to collect enough signatures to put an issue on the ballot. In small population states like Alaska, Montana, Idaho, Wyoming, North Dakota, and South Dakota, it can be done for one to two hundred thousand dollars. It is my objective to raise one million dollars to put this issue on the ballot in six western states.
I believe that this concept will quickly catch fire and appear on ballots in several larger population states. I believe that because it is a criminal statute rather than an ethics statute, it will be binding on the U.S. Senators of the states that pass it.
If six states pass it, twelve U.S. Senators will be forced to end their participation in the pay-to-play games of Washington. And twelve U.S. Senators would have enough stroke to shut Congress down until all of Congress agrees to abide by the rules they had too.
Please see proposal below and contact me at firstname.lastname@example.org or 907-250-5442 if you have questions.
Alaska Statute Sec. 11.56.130. is repealed and replaced to read:
Prohibited conflicts and official acts by public officials.
(a) It is a class C felony 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 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 applying AS 12.10 governing limitations of actions, in a prosecution under AS 11.56.130, the statute of limitations begins to run with the last act associated with the violation and continues for ten years.