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Meaningful Campaign Finance Reform is not going to happen while Obama is in still office; get over it...

The republican party really likes Citizens United and McCutchen vs FEC and they don't want any reforms. They just don't see how badly it has worked out for them. Their Billionaire sponsors spend hundreds of millions of dollars on ads, FOX News gives them thousands of hours of free advertising, and they still can't change public opinion. A large majority of the public just doesn't like Republicans.

Even though we can't get Campaign Finance Reform passed by Congress, we can still have almost all of the benefits. There are two laws that are already on the books that when combined can make Federal Felonies out of most cases of corrupt campaign contributions.

The two laws are federal statute 18 U.S.C. 201(b)(1) which makes any significant campaign contribution followed by any official act by the elected official that benefits the contributor the crime of Bribery or Honest Services Fraud and 18 U.S.C. section 201(c)(1)(A) which makes a campaign contribution that follows any official act an Illegal Gratuity. See 18 U.S. Code ยง 201 - Bribery of public officials. Both are Felonies with serious jail time in federal prison.

Both laws have also recently been upheld by the Supreme Court in the context of campaign contributions.

Here is the plan and it only needs Obama to issue an Executive Order.

1)    In the current gridlocked Congress it is effectively impossible to pass any true reform; so propose a Campaign Finance Reform Law, but do not wait for Congress to act.

2)    Use the existing Federal Bribery statutes and the U.S. vs. Ring decision of the DC Circuit Court to define a formal standard for when an implied Quid Pro Quo will exist.

3)    Define a lower threshold contribution amount which a person earning the median income can contribute once every year. Any contribution amount below the lower threshold will be considered to be like a tree lost in a forest and so cannot result in any Quid Pro Quo absent proof of a face to face meeting and an explicit agreement.

4)    Define an upper threshold contribution amount which only a person earning more than the 95th percentile income could contribute once every year. Any contribution amount above the upper threshold will be considered to stand out and be noticed against the background of other contributions. In addition, the actual source of the contribution shall be considered to be known, even if the contribution is "Laundered" through a proxy 501(c)(3), 501(c)(4), or a Super PAC.

5)    Here is where the Federal Felonies come in: Any contribution amount above the upper threshold or between the lower and upper thresholds if there is a face-to-face meeting, which follows or is followed by any official act that directly or indirectly benefits the contributor, shall be considered to be a completed Quid Pro Quo. If the contribution follows the official act it shall be considered to be an Illegal Gratuity in violation of the federal statute 18 U.S.C. section 201(c)(1)(A). If the contribution is followed by the official act it shall be considered to be Bribery or Honest Services Fraud in violation of federal statute 18 U.S.C. 201(b)(1).

6)    The smaller the contribution, the more direct the connection must be between the contribution and the official act. On the other hand, very large contributions, even if distributed to multiple recipients where each recipient receives less than the upper threshold amount, shall be considered to be noticed by all recipients and any official act by any recipient shall establish a Quid Pro Quo.

7)    The FEC should consult annually with the IRS, Agriculture, HUD, and Justice to calculate the upper and lower threshold amounts and should publish the threshold amounts in the Federal Register each year on July 1 giving sufficient time before any primary or general election for the new thresholds to take effect.

8)    The FEC should monitor candidate financial statements and IRS filings for all 501(c)(3) and 501(c)(4) political organizations and all official acts by elected officials and notify Justice whenever evidence of a Quid Pro Quo is found. There should also be a "Tip Line" on the FEC web page where concerned citizens and journalists can report cases of apparent Quid Pro Quo.

9)    Any contribution greater than the upper threshold should be published widely and should be considered a mark of corruption unless the candidate explicitly disowns the contributor and returns the contribution. Super PACs would be effectively eliminated, since almost all contributions to Super PACs are greater than the upper threshold, all pass through contributions by Super PACs to any candidate or office holder would result in a Quid Pro Quo if any official act benefits either the Super PAC or the ultimate contributor.

10)   If even one contribution above the upper threshold results in a conviction for Illegal Gratuity, Bribery or Honest Services Fraud, then no candidate or office holder would be willing to risk accepting any contribution greater than the upper threshold since almost any official act that the contributor might like could be considered a completed Quid Pro Quo.

If the corrupting influence of large campaign contributions is removed from
politics then the true nature of each candidate will determine their actions if and
when they are elected. The voters can demand that each candidate make clear
what their true nature is and then they can vote accordingly.

The Federal Government already has all the authority it needs to enforce these existing federal laws. If new regulations are required to make the Federal Bribery, Honest Services Fraud and Illegal Gratuity statutes into effective Campaign Finance Reform, then the FEC should begin the regulatory process immediately.

Existing laws, if strictly and fairly enforced, can give the same results as a proper
Campaign Finance Reform Law would provide. Don't wait for Congress to act, contact the President and pressure him to issue an Executive Order.

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Comment Preferences

  •  Congrats! :-) & tks for focus on campaign finance! (0+ / 0-)

    Congrats to a longtime lurker for putting out a diary for us to mull over! :-)

    And thank you for keeping the focus on campaign finance, which is at the crux of so much that is wrong with contemporary American politics.

    I'm not in a position to evaluate the merits of the two laws you highlight, or your proposed mechanisms for using them. But I hope there is a way out of the current morass. What do other scholars and non-profit groups say about the potential for using these laws? Are there others besides you who have identified this as a viable path forward, and one worth focusing on? What are the arguments against it, and how do you respond?

    Many thanks again, and best wishes!

  •  That's berserk. (1+ / 0-)
    Recommended by:
    VClib

    That's berserk.

  •  After McCutcheon denied the existence of systemic (0+ / 0-)

    corruption, deeming it just politics, and that Congress had a conflict of interest in regulating it, this would be one small step. But if a genuine loophole were opened up by the Executive's interpretation, why couldn't the Court close it down as unconstitutional?

    I would prefer Obama taking direct aim at the Roberts Court, presenting court curbing legislation with big bang omnibus campaign finance regulations. At least the guns would be drawn, politicians could chose which side of the civil war they are on, make it an electoral issue subject to voter mandate. Already a supermajority supports ending systemic corruption. Lessig's amicus brief in McCutcheon  shows that the Roberts originalists are just blowing smoke, the framers saw money as the mortal enemy of free speech and the republic.

  •  Douglas - I don't see how your proposal (0+ / 0-)

    could ever be deemed constitutional. The President can't establish "safe harbors" and declare that legal contributions above a certain amount would be subject to increased scrutiny.

    "let's talk about that" uid 92953

    by VClib on Wed Aug 13, 2014 at 07:02:04 AM PDT

  •  There have been numerous prosecutions (0+ / 0-)

    There have been numerous recent prosecutions for Honest Services Fraud and those that involve government officials have been sustained by the courts. See Wikipedia: Honest Services Fraud

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