Di Thao, Politics, and the Problem of Political Corruption

A thin line distinguishes legitimate political contributions and solicitations from bribery and
extortion.  Assuming all the allegations are true, St Paul Council member Dai Thao and his campaign manager crossed that line when they tended votes for money.  Yet even if they did nothing illegal,  this incident should not blind us to the bigger problem of how money corrupts politics and how political influence is leveraged, and, how contrary to what the Republicans are currently doing in the State Legislature, why we need more restrictions on the use of money for political purposes.
The Dai Thao example is what is called quid pro quo corruption–the offer or exchange of money for the performance of an official governmental act such as a vote on legislation.  This is what most people think of as political bribery or extortion and it is illegal under the federal bribery and gratuity statute, 18 U.S.C. § 201, or Minnesota Statutes § 609.42.    Some will contend that the offer or exchange of money for political influence is really what all political fund raising is about, so why should not all that be illegal?  The answer is yes...and no.
First, the critical legal line possibly crossed in the Thao incident is the explicit or implied exchange of money for the performance of an official act.  Bribery laws require a showing of criminal intent, and thanks to a recent Supreme Court decision, it must be an exchange of money for an official government act.  Smart politicians correctly and legally avoid bribery by never promising to alter a vote or perform an official act conditioned upon the payment or receipt of money.  They may tell supporters that they need their money so that they can continue to do their job or protect their interests but there is not an explicit promise to change a vote.  Moreover, elected officials generally also build fire walls that separate campaign from government staff to further make sure lines are not crossed.  All these are subtle but important distinctions that at least in theory contrast bribery or extortion from legitimate fund raising.
Yet quid pro quo corruption is the thinnest and perhaps most rare example of political corruption.  Many believe that corruption is more than bribery; it also has a more structural  aspect.  The issue is not just the explicit exchange of money for an official government act, it is how money is used to by not just access but repeated access.  In theory elected officials should return all phone calls or meet with all their constituents.  However, the names of big donors are recognized and are called back first or seen  more readily.
Corruption is when some interest groups can spend large sums of money in order to lobby and gain access to decision makers.  It is when lobbyists or big donors also serve as fund raisers to help solicit money for incumbents and candidates and then are rewarded for their efforts.  It is when, as in Minnesota, the legislative caucuses and political parties and their subunits are allowed to solicit and accept in the aggregate  unlimited amounts of money from individuals, political action committees, and lobbyists.  This is a problem because the parties set the political platforms and the caucuses the legislative agenda.  Money thus influences what parties believe and what legislation is heard.
The real issue is that money should not be the mechanism that determines how political power and influence are allocated.  Money might be a great way to allocate sailboats but it should not be the medium for handing out political influence and making political decisions.  Years ago Justice Rehnquist declared in  First National Bank of Boston v. Bellotti, “It might reasonably be concluded that those properties, so beneficial in the economic sphere, pose special dangers in the political sphere.”  Similarly, in  Federal Election Commission v. National Right to Work Committee the Court declared that it was legitimate to worry that “substantial aggregations of wealth amassed by the special advantages which go with the corporate form of organization should not be converted into political ‘war chests.’” At one time the Court aligned with public opinion, recognizing a broader sense of corruption tht extended far beyond what one sees in the Thao situation, suggesting that even if what he and is campaign manager did was not actually illegal, it was still inappropriate political behavior.
Yet under Chief Justice Roberts, the Supreme Court has all but gutted political corruption laws.  In McDonnell v. United States the Court overturned the former Virginia’s bribery conviction, ruling that official acts did not extend to an exchange of gifts and money in return for arranging meetings and calling other public officials to discuss a donor’s business.  And in  McCutcheon v. Federal Election Commission, Roberts seemed to endorse the idea that purchasing influence is permissible when he declared:

Spending large sums of money in connection with elections, but not in connection with an effort to control the exercise of an officeholder’s official duties, does not give rise to such quid pro quo corruption. Nor does the possibility that an individual who spends large sums may garner “influence over or access to” elected officials or political parties.

Contrary to Roberts, many of us do think that seeking access or influence is political corruption, and the current ways that we finance our campaigns and elections is a legal form of bribery and corruption.  The solution in part is to make candidates and parties less dependent on large donations, and to encourage more disclosure.  Unfortunately, the Republican majorities in the Minnesota legislature are eliminating the system for public financing of elections in the state, and are trying to restrict the power of the state to regulate money in politics.  Such an effort if successful, will only  fuel more behavior such as what we see with Dai Thao.

Who Killed Political Reform and Ethics?

“My fellow Americans, ask not what your country can do for you, ask what you can do for your country.”
–John J. Kennedy, Inaugural speech, January 20 ,1961

“It’s very possible that I could be the first presidential candidate to run and make money on it.” –Donald Trump, (Fortune, April 3, 2000)


The political reforms of the Watergate era are over. And it was not Trump alone who killed over the reforms.  Obama did his fair share, as well as Democrats and Republicans across Minnesota and the country who have done it over at least a decade if not longer. It is less of a surprise that this has occurred than it is that no one–neither the public nor the media–seems to notice or care.
Watergate political reforms is a shorthand to refer to a collection of laws and policy initiatives at the federal, state, and local levels meant to combat political corruption and open up the  political and governing process to more transparency, fairness, and political accountability.  These reforms includes the Ethics in Government Act that addressed problems such as conflicts of interest.  It also included sunshine, open meeting, and freedom of information laws meant to ensure government decisions and data are open to public inspection.
Additionally, there were a host of campaign finance laws such as the Federal Election Campaign Act, McCain-Feingold, and at the Minnesota level, the 1994 Marty reforms that build on 1970s laws that banned lobbyist gift giving,  provided for public funding for campaigns, and otherwise created a scheme for disclosing the solicitation and expending of money for political purposes.  Collectively these laws, along with other mandatory and voluntary acts by candidates, such as statements of economic disclosure and release of candidate tax returns, went a long way to opening up the political process to more scrutiny.
Certainly there were problems with many of these reforms, but the biggest criticisms were two.  First, they may not have even gone far enough in terms of rooting out the impact that money has on the political process or in terms of extending disclosure and transparency as far as it needed to go.  In effect, the laws felt short of the reforms truly needed to be effective, or even if once effective, they failed to keep pace with efforts to do end-runs around them.
Second, many insiders–especially many  elected officials, the political parties, and lobbyists  simply did not like the reforms.   They saw them as costs of doing business, simply distasteful laws  that limited or restricted the quiet, comfortable relationships they had developed overtime.  They voted for these reforms because they had to, in part because of strong public support for these regulations in light of the Watergate abuses.  In many cases these reforms were internalized by elected officials at the time, but with the passage of time, the lessons for why these reforms were adopted has faded.
Yes the Supreme Court has not helped.  It has struck down many campaign finance reforms as violations of the First Amendment, equating money with speech.  The Court has narrowed the scope of what is considered legitimate forms of corruption regulation, limiting it to only classic forms of quid pro quo bribery in exchange for an official act (money give to buy a vote), while also ignoring the broader ways that money and power create a structural bias in the political system that political scientists repeatedly describe as one that favors the rich.
But even without the Court stepping in , both Republicans and Democrats at all levels of government has demonstrated indifference if not cynicism toward political reform.  Obama talked a great game about money in politics but he was the first major presidential candidate to reject public funding when he ran for president.  He complained about Citizens United but never took executive  actions that he could have that would addressed some aspects of it.  Now he has sold out completely,  giving $400,000 speeches to Wall Street that follow Hillary Clinton’s $500,000 speeches.
Trump flouts ethics in ways too numerous to count.  His conflicts of interest between his government role as president and his private business dealings are too numerous to count.  The same extends to his family and many of his billionaire appointments.  He has broken a presidential traditional of releasing tax returns, and in general, despite “draining the swamp,” he seems to be expanding its scope.
At the state level, Minnesota has not enacted a significant political reform since 1994.  While once a national leader, the Center of Public Integrity assigns Minnesota Ds and Fs for ethics and openness in government.  Bipartisan support eroded some parts of the gift ban law, supported increases in the amount of money that can be contributed to political campaigns, and now, as John Marty has pointed out, the legislature is poised to eliminate public funding for campaigns.   As the recent story about Dai Thao demonstrates, local officials and their surrogates are embolden in pushing the boundaries of acceptable political behavior.
And why all this happens the public seems indifferent.  Democrats dismiss the improprieties  against Obama and Republicans the same with Trump.  Corruption seems accepted, and few now seem upset by the idea that American government is up for sale.
So who  killed political reform and ethics?  Maybe it was the elected officials who walked away from reform as inconvenient, except when used as a cudgel to further partisan gains and fuel polarization.   Or maybe it was the media, much of which no longer saw promoting good government  as an issue.  Or maybe it was public who came to accept the status quo as acceptable and which no longer seemed to expect government officials to act with honesty and integrity.