We should make ‘pay-to-play’ politics a crime

In 2010, the U.S. Supreme Court, in a decision known as Citizens United, ruled that limiting the money one can spend on political speech violates one’s First Amendment right of free speech. The decision opened floodgates of unlimited dark money pouring into independent expenditure campaigns — money that expects favors in return.

Independent expenditures not coordinated with or controlled by a candidate are not considered to be campaign contributions. Corporations and wealthy individuals can spend as much as they wish to support a candidate, so long as they do not coordinate with the candidate.

In July, Alaska’s campaign limits received another blow. In an Alaska case, as directed by the U.S. Supreme Court in a remand, the Ninth Circuit reconsidered and reversed its previous decision, which pretty much wiped out Alaska’s direct to the candidate contribution limits.

In effect, the courts have increased how much wealthy individuals can pay and how much politicians can accept, for unspoken favors delivered or promised.

Commonly known as “pay-to-play,” from the school board to the U.S. President, selling favors is how America finances political campaigns.

Honest candidates can’t compete, and if elected, they seldom have the money to get re-elected unless they bend to the will of the system and hook up with a political ‘Sugar Daddy.’

In a commentary published Aug. 15, in the ADN, Sharman Haley, a retired professor of economics and public policy, said, “Our only possible solution for this judicial coup d’etat is to pass a constitutional amendment that will override the courts and establish that we do have the power to enact reasonable and evenhanded limits on the amount of money that can be expended to influence our elections.”

But in fact, there is a much easier and far more effective solution that Professor Haley and his friends have chosen to ignore.

In a 9-0 decision, the Supreme 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.

In a case involving a Nevada ethics statute requiring elected officials to recuse themselves from voting if they have a conflict (Nevada Commission on Ethics v. Carrigan), a Nevada court concluded that a contribution created a conflict, and in this case, the receiving elected official was required by Nevada law to recuse himself from voting to give a gaming license to his contributor. The court concluded that the elected official would not have secured a gaming license for someone who had done him no favors. The conviction was upheld 9-0 by the U.S. Supreme Court.

While Citizens United guaranteed wealthy individuals and corporations the right to exercise political speech through political spending but, according to the Roberts Court’s 9-0 decision in the Nevada case, Citizens United did not guarantee corporations the right to receive political favors in return.

Bottom line, the Supreme Court has said not to fix this problem by limiting speech, but by making “pay-to-play” a crime.

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 fail to recuse one’s self from voting on legislation that repays contributors with appropriations or delivers unfair advantages over competitors.

Constitutional amendments are extremely difficult, and it is highly unlikely that we will see Sharman Haley’s constitutional amendment fixing this problem any time soon. Women’s right to vote took 70 years. Equal rights for women never made it. If the big spenders see a constitutional amendment on the horizon, they will spend billions to stop it.

Comparatively, 23 states can pass anticorruption statutes by initiative. Anticorruption initiatives are popular with voters and hard to stop.

For the amount of time and money already spent by those seeking a constitutional amendment, many states could have already passed legislation barring conflicted legislators from voting. And even if such a constitutional amendment does pass, contributions limited by reimposed limits given in anticipation of favors would still be legal.

We could have fixed this for a fraction of the money already spent chasing a constitutional amendment.

What corporation would spend a dime to help a candidate if, once elected, the candidate they contributed to would be barred by conflict from helping them access the public purse?

Ray Metcalfe is a former legislator/whistleblower who, in 2006, helped the FBI investigate and convict Veco owner Bill Allen and six legislators for bribery.

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