I concur. Except for the left-wing flake part. Whether the decision is upheld or overturned doesn’t impact the correctness of the analysis, the core of which is that this is not related to Citizens United.
Probably not, but how do you prove that?
Trouble is, in America success is money, money is success. One is rich if one is successful, one hangs out with other rich and successful people. But a rising politican often makes a salary that would cover a rich person’s green fees for any given year. Its just bound to follow that such a person has friends with money, but not actually money of their own.
At any rate, how does one go about proving the motivation for generous acts of friendship?
I’m sure you’ve heard of the old expression about not seeing the forest for the trees. The issue is less about the awesome accuracy of Bricker’s technical analysis than it is about the broader philosophical issues that have driven the SCOTUS so far to the right on Citizens United and half a dozen directly related “money is speech” asinine issues, and which may impact this decision on the basis of exactly the same broad ideology. One need hardly be reminded that this pertains to a lower court decision in which McDonnell has already been convicted, so a difference of legal opinion is already extant.
It is near impossible to prove this sort of thing which is why it is such a problem. Politicians know the loopholes are big enough to drive a train through.
The solution would be that they cannot accept gifts over a certain amount except from close relatives.
There is some precedent for this. Presidents cannot accept gifts from foreign heads of state over a certain value (set by the General Services Administration). Any gift over that value that the president would like to keep needs to be purchased by the president at the appraised value.
So, just make it that the governor can’t accept gifts from anyone except close family with a value over a certain amount (so a high school football team could still gift a jersey or something with no problem). Say $200 (obviously that amount is open to debate). And of course all gifts must be reported.
The governor should at all times strive to avoid even the appearance of impropriety. Nothing new with that one either. It is part of the code of conduct for federal judges:
As for things like dinner the governor should pay for it himself (or via the state paying for it). I had dinner with a Wall Street Journal reporter awhile back and she said it was company policy that she accept no gifts and must pay for all her own meals and travel (she expenses it so the WSJ pays it) to avoid conflicts of interest.
I see no reason why the governor can’t do the same and no reason why the governor shouldn’t be held to a higher standard akin to judges.
EDIT to add: I would also say the governor or their spouse cannot collect speaking fees while in office.
Tell me, do people in Canada think this is an extension of Citizens United?
Agreed. I’d also like to know what the rules are for other elected offices and government employees. A friend of mine used to work for the FDA inspecting fish processing plants. I don’t recall the specifics, but she did once tell me that there were restrictions on what gifts she could accept. I have no trouble holding governors at least as accountable as employees.
Before anyone says it, I’m aware that governors are state and the FDA is federal. The same principle applies; restrict what gifts they can receive whether a quid-pro-quo can be proven or not.
If I am reading things correctly, it’s not even constitutional issue at all, but the question of whether the jury in a criminal case was given adequate instruction.
But…Republicans and Citizens United! That means you’re wrong! Don’t forget Canada.
To be honest, I’m not 100% sure. I’m finding it very hard to locate objective reporting about the recent arguments. Everything seem like commentary.
Absolutely true.
But when I said “the mian problem here…” the context I meant was the main problem as argued by the defense – in other words, I was rebutting the suggestion that the defense was arguing that money was speech. The defense was arguing that the main problem was imperfect jury instructions; the main problem on the table, being discussed*, was the possibility that the jury relied upon an act that does not legally fit into an “official act,” in order to convict.
But your point is absolutely correct – I should have phrased that much more clearly, because it does read as though I’m saying the defense argument is a correct statement of the law, and THAT is a conclusion that would be merely my opinion.
oyez.org offers a concise summary, the key points of which are,
McDonnell’s argument seems to be that the things he and his wife did were not “official actions”, meaning they did not directly involve his specific duties and powers as governor, hence he should not have been convicted of corruption. The case rests, as has been noted above, on whether the jury in his trial was instructed properly.
The common thread between this and Citizens United pertains to the effect of money on the political system. While not exactly a slender thread, trying to tie the two together with it is likely to snap it. “Citizens United” has become a sort of left-ish dogwhistle, like “Koch Brothers” or “Iraq”, which the author of the New Yorker piece probably ought to have avoided.
WTF? This is no different than the common thread among Citizens United and FEC v Wisconsin Right to Life (2007), Davis v FEC (2008), Arizona Free Enterprise Club Freedom Club PAC v. Bennett (2011), and other cases in which precisely the same gang of five prevailed in 5-4 decisions to enforce precisely the same dogma about the “money is speech” libertarian mythology and the right of money to purchase political power.
The issue here isn’t about a “thread”, thin or otherwise, linking this and the other cases to Citizens United, it’s about a linkage more like an umbilical cord and a symbiotic life-support system linking all of them.
The difference is that each case you mention does, indeed, deal with money, and whether the laws that clearly prohibit the use of money run afoul of the First Amendment.
THIS case asks the question, “Did the jury get the correct explanation of existing law?”
It does NOT ask, “Does existing law violate the First Amendment?”
I’m confused.
Admittedly I have not read the transcripts of the arguments and am only going on the link to Toobin’s article in the OP.
Toobin said the defense was arguing this was “speech” by Williams who gave money to McDonnell. (“In the McDonnell case, his lawyers argued that what federal prosecutors called bribery was also really just speech by Jonnie R. Williams, the McDonnells’ benefactor.”)
What am I missing here?
Here is a bit of coverage from when the verdict was handed down,
[QUOTE=“[CNN – 4/9/2014]
(http://www.cnn.com/2014/09/04/politics/virginia-mcdonnell-trial/)”]… Their defense? The 38-year marriage was so broken that the McDonnells barely spoke to each other, let alone conspired to peddle influence in the way alleged by the government… McDonnell said he didn’t commit any crime, though he acknowledged questionable judgment in accepting what he called the “personal generosity and friendship” of Williams.
Defense lawyers argued that Maureen McDonnell, seeking emotional attachment because of her loveless marriage, developed what they described as a kind of schoolgirl crush on Williams and relished the attention and gifts from him…
[/QUOTE]
Fundamentally, this is really not like Citizens United. McDonnell’s claim is that the judge failed to instruct the jury on what constitutes graft: directly selling his political power to the higher bidder. He claims that his actions – using his celebrity, as it were, to promote Star’s product – was not corruption, because it did not involve his official duties or political influence, just his public presence. Using the governor’s mansion to host a launch event for the product, he contends, is not corrupt – sleazy, perhaps, but not illegal.
If there is any mythology here, it’s that the CU decision was that “money is speech”.
You like “bribes,” and I like “Goodwill gifts”;
“bribes,” “Goodwill gifts”;
“bribes,” “Goodwill gifts”;
Let’s call the whole thing off.
You’re missing that Toobin was leading the reader to draw a conclusion that wasn’t actually true by making a statement that is technically true but unhelpful.
I suppose it’s possible that the defense lawyers said, “It’s speech,” at some point. But that doesn’t mean they were arguing, “This law criminalizing bribery is forbidden by the First Amendment.”
They were arguing that the law under which McDonnell was charged was written in a specific way: it said that money or gifts in exchange for official acts is illegal. And, they said, all the stuff that McDonnell did wasn’t any “official act.” But the jury convicted him, they said, because they were given a definition of “official act,” that was incorrect. McDonnell was just talking, as opposed to officially acting.
Maybe this will help: ask yourself what will happen if the Supreme Court agrees.
If this were truly a “Citizens United” situation, the Court would presumably hand down a ruling that ends the prosecution… “These laws violate the First Amendment!”
But what they will actually do if they agree is simply overturn his guilty verdict and leave him open to a new trial, where a jury will again have a chance to convict him, this time with a definition of “official act,” that conforms to their view of what the law requires.
See the distinction? Toobin, and other commentators with similar interests, are advocating against Citizens United. They are using this case to further that advocacy, despite the fact that the issues in this case are not really the same ones Citizens United rested upon.
One final attempt to illustrate this point from another direction: the Internet is of course full of commentators. Toobin is not a flake by any means. But despite having a degree in law, it’s fair to say he’s not a legal analyst. That is, he’s writing about broader social issues as opposed to technical legal analysis, with an audience of general readers, not lawyers.
I invite you to consider that among the Internet’s many writers of technical legal analysis, you won’t find positive comparisons between the rationale underlying Citizens United and the rationale argued by McDonnell’s defense. You see what I mean? The effort to draw a parallel between the two is not serious legal analysis.
Bricker: Correct me if I’m wrong, but it seem like this whole “money is speech” meme lends itself to that type of analysis. The fact is, CU did not claim that “money is speech”. Instead, it addressed the issue of where to draw the line considering the understanding that “a restriction on money results in a restriction on speech”. And that is an understanding that NONE of the justices disagrees with. What they disagreed on was where to draw that line without violating the 1st Amendment. And, as is often then case, reasonable people can disagree on exactly where that line should be drawn.
If we accept that “money is speech”, then you can come to all sorts of scary conclusions. But the SCOTUS did not claim that “money is speech” in CU, and so those conclusions are not necessarily valid, being based on a false assumption.
[QUOTE=“[oyez.org:Citizens United v. FEC]
({{meta.fullTitle}})”]… By a 5-to-4 vote along ideological lines, the majority held that under the First Amendment corporate funding of independent political broadcasts in candidate elections cannot be limited…
Scalia also wrote a separate concurring opinion … criticizing Justice Stevens’ understanding of the Framer’s view towards corporations. Justice Stevens argued that corporations are not members of society and that there are compelling governmental interests to curb corporations’ ability to spend money during local and national elections.
[/QUOTE]
So, yeah, CU does fairly directly address “money is speech”, though the meat of that question is not resolved.