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A LAWYERLY LOOK AT RULES FOR PRIVATE AND PUBLIC GIVEAWAYS

July 18, 2014

A LAWYERLY LOOK AT RULES FOR PRIVATE AND PUBLIC GIVEAWAYS
I have a niece who works for a philanthropic organization. Her job, she has told me, is to give away money. It is not my niece’s money; she and my nephew and their two children are of moderate means. Among other things, one of my niece’s duties on her job is to assess the need and desirability of sharing her employer’s foundation funds with specific prospective beneficiaries. The foundation has certain criteria which must be met in order for the beneficiary to win an award and part of her job is to see that such criteria are met. She does not give the money away; she rather assembles the information so that those who have the checkbook can make informed decisions on how they want to spend the foundation’s money – to whom and for what.
It strikes me that the Congress is in a similar position as that of my niece; both are involved in giving someone else’s money away, but with this key difference: My niece does not actually give away someone else’s money, whereas the Congress is in charge of both determining who gets what and how much, and it seems that its members’ sole criterion for awarding such prizes to beneficiaries is how much such prospective beneficiaries can stuff into their reelection campaigns and/or what comfy and overpaid jobs await them upon their respective exits from “serving the people” while in Congress.
My niece is an ethical person bound by criteria she did not make; Congress seems to be made up of many who are not ethical and are on the take day and night for “campaign contributions” via criteria they themselves make. Under the cover of House and Senate “Rules,” all sorts of chicanery find a hiding place secure from public discovery, from “add-ons” for bridges to nowhere to seemingly innocuous amendments of the internal revenue code (amended on average of once a day!), last-minute amendments that in some instances have saved billions to specific taxpayers at our expense (since we have to make up what such favored taxpayers do not pay). Many of such giveaways are not in either a spending bill or any amendment to it, were never debated in relevant committees, but just somehow are in the language of the final bill as passed. The culprit – or cover? “Rules.”
There are all sorts of parliamentary games that can be played under the aegis of the “Rules,” and courts are reluctant to involve themselves in matters relating to legislative “Rules” because the second paragraph of Article I, Section 5 of our Constitution reads: “Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.” The courts cite the separation of powers doctrine as a rationale for their non-interference in legislative matters (though they made a notable exception in Bush v. Gore in which the court clearly interfered with the legislative as well as judicial affairs of the State of Florida).
A close reading of this subsection of the Constitution above cited shows that its design is procedural, that is, that it has to do with rules of procedure rather than substance as found in legislation considered and/or passed. For instance, let’s assume that a member of the House of Representatives takes money from JP Morgan Chase (an admitted briber in China) deposited in a Swiss bank for a legislative favor and that the House for whatever reasons refuses to discipline such a miscreant. The Constitution reads “Each House MAY; not Each House MUST; so if the House refuses to discipline one of its own and the courts will not intervene, then where are we? Have we invited wholesale and open graft and corruption into our legislative process because there is reluctance by the House to punish and the courts will not take cognizance of the situation because of their interpretation of the separation of powers doctrine?
It’s not quite all that bad, because local prosecutors can indict and convict such congressional thieves since neither legislative immunity nor rule covers criminal conduct, and if the defense argues that both the crime and conspiracy to commit it (as well as associated crimes) occurred in Switzerland and thus outside the jurisdiction of the United States, there is always the federal criminal statute known as the Foreign Corrupt Practices Act that covers such jurisdictional arguments, though our AG – Holder – has not brought charges against JP Morgan Chase Bank, an admitted briber of officials in China for favorable banking contracts, which raises the question of just how far prosecutorial discretion extends. When you or I admit to robbing a bank, we are arrested, jailed, tried and sent away for years, but the bank walks.
Given the present political chaos and finger-pointing in Washington, it is perhaps understandable that the courts do not want to get into defining and setting the rules of either house of Congress, since if they did, there would be a blizzard of lawsuits on every bill and amendment launched in the legislative process; federal trial courts (already overworked) would be further inundated with litigation, and government would come to a standstill.
On the other hand, government in our legislative halls has come to a standstill anyway (due to Republican intransigence and pretense to principle), so if this laziest of the lazy do-nothing Congresses ever is to continue its “take no prisoners” approach, perhaps the Supreme Court could take another look at both the Constitution’s empowerment of the Congress to make its rules and the separation of powers doctrine and come up with at least some limited holding that certain conduct in not covered via either. Such a holding would have to be narrow in scope so as not to invite torrents of litigation, but could end the dictatorial reigns of such as DeLay and Issa types, a worthy result in and of itself.
What have we the people got to lose if such were to happen? What government we have is for the rich anyway as most anything that might be people oriented is waylaid in Republican House Committees or filibustered to death by Republican senators on the other side of the building. Half a loaf is better than none, so we should take what we can get. What chance is there that the Supreme Court will intervene along the lines above outlined? Nil – or close to it. The status quo is working for the superrich – let it be.
Meanwhile, we should start looking with a jaundiced eye at the ethical qualifications of all candidates for public office, local, state and federal, because their pretended stands (straight out of their political hacks’ playbooks) on low taxes, “big government,” welfare etc. doesn’t tell the whole story by any stretch of the imagination. We should be interested in how they handle their inevitable back room encounters with lobbyists and heavy potential campaign contributors. Do they throw them out or get in on the fix? House Rules do not cover such back office quid pro quos. The courts won’t do anything about it, the prosecutors will not prosecute, so we are the last line of defense on how our tax money is spent, and in a larger context, whether our democracy can and will survive if we the people don’t end this charade of collecting from the many and handing it over to the superrich. Enough is enough!
Other nation states in the past have fallen to political deadlock, greed, graft and corruption. Could we be next in line? What are we going to do about it, and when? GERALD E

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