Citizens United guaranteed corporations the right to exercise political speech through political spending but, according to the Roberts Court, 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 public officials, including your U.S. Senator. A more recent ruling raised the bar to require proof that something of value has been given to a public official, who, in exchange, used the powers of their office in the making of an official act, such as a vote or the execution of a contract for the benefit of the giver.

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, and they have signaled that elected officials can be barred from voting when they have conflicts. We believe that the legislative language below meets both of the Court’s new standards.

Voters in twenty-three 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.

The legislation proposed below should be put on the ballot in every possible state. As proposed, I believe 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 its ten-year statute of limitations ensures 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. Notice that 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)It is a class A felony (5 to 20 years prison) for a public official to engage 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 but is not limited to past or future campaign contributions, past or future employment, and gifts to one’s self or family members.
  • (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) or (b) of this section.
  • (d) Prohibited conflicts, defined in (a) of this section, and official acts by public officials, defined in (b) of this section, shall be narrowly construed. This act is not applicable to contributions affecting 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 the kinds of conflicts defined in (a) of this section by entering their conflict into the record and refraining from voting. Conflicted members of deliberative bodies may participate in the debate of an issue in which they are conflicted if their conflict is announced and they refrain from voting on the issue.
  • (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. (See for more details.)

Ray Metcalfe is a two-term Alaska state legislator and was Alaska’s 2016 Democratic Party Nominee for U.S. Senate.
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