The Arkansas legislature, SCOTUS and the 'normalization of influence peddling' | Arkansas Blog

The Arkansas legislature, SCOTUS and the 'normalization of influence peddling'

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BOB MCDONNELL: The former Virginia governor, a Republican, was let off the hook by the Supreme Court. - WIKIPEDIA
  • WIKIPEDIA
  • BOB MCDONNELL: The former Virginia governor, a Republican, was let off the hook by the Supreme Court.

On Friday,
staff at the Arkansas House of Representatives released the chamber's social calendar for legislative orientation this week. It's packed to the gills with lobbyist-sponsored lunches and receptions for state lawmakers: From Sunday evening to Friday at noon, that means 15 meals in a row sponsored by groups representing such industries as poultry, telecoms, nursing homes, hospitals, forestry, banking, oil and gas, contractors, insurance and much more.

The core complaint about this practice is that it violates the spirit (at the very least) of Amendment 94, the ballot measure that was sold to Arkansas voters two years ago as an ethics reform package. (It was Issue 3 on the 2014 ballot.) The truly outrageous thing is that informed citizens in 2014 thought they were voting for a compromise measure that contained both a carrot and a stick for public officials. The carrot was a loosening of term limits and the formation of a commission to determine elected officeholders' salaries, which has resulted in significantly higher pay for legislators, constitutional officers and others.

The stick was supposed to be a restriction on lobbyist gifts and to lawmakers, including meals, plus tighter revolving-door rules.

Then, when the amendment went into effect, it turned out the stick was ... actually another carrot. By hosting "planned events" near the Capitol at which they feed any legislator in attendance, lobbyists get to court lawmakers while nominally evading Amendment 94's prohibition on gift-giving. Or so says the legislature in its interpretation of Amendment 94, and the Arkansas Ethics Commission evidently agrees. It appears the public isn't invited to attend these events. Everything currently on the House calendar is marked with a parenthetical: "Members of the 91st General Assembly & Staff only."

But I want to address a larger question here. Amendment 94 aside, what's the problem with industry groups hosting events for legislators? These are big private interests, yes, but they represent the backbone of the state economy and employ hundreds of thousands of workers. Businesses have a legitimate stake in the laws passed by the General Assembly — and as such, don't they need access to legislators to articulate their positions on policy? Isn't that how the system works?

From past conversations I've had with lawmakers in both parties, I believe most legislators sincerely feel this is the case. They think it's unfair to pillory elected officials for the routine give-and-take with constituents that is part of their job. Moreover, they feel it's absurd to imply that they're being somehow bought off by, say, the petroleum industry, just because the Arkansas Petroleum Council co-hosts a few dinners.

Which reminds me of an article by Amy Davidson of the New Yorker written after the U.S. Supreme Court issued its "bribery-blessing" decision in McDonnell v. United States in June. In the original case, former Virginia Gov. Bob McDonnell, a Republican, was convicted on corruption charges for his acceptance of lavish loans and gifts (a Rolex, designer clothes, catering for his daughter's wedding, etc.) from a businessman, Jonnie Williams, whose interests the governor appeared to support by arranging meetings with state officials, among other things. A Virginia jury said McDonnell broke the law. But the Supreme Court said the jury was wrong and vacated his conviction. It was an 8-0 decision, meaning such liberal lights as Justices Ruth Bader Ginsberg and Sonia Sotomayor joined conservatives like John Roberts in saying McDonnell's actions did not constitute bribery, since he never seemed to perform an "official act" in exchange for gifts from his "friend."

Davidson wrote this about the decision:
One fear [the justices] had, apparently, was that, if McDonnell’s conviction stood, politicians across the country would live in a state of fear, sure that anyone could go to prison. “Conscientious public officials arrange meetings for constituents, contact other officials on their behalf, and include them in events all the time,” Roberts wrote. If McDonnell’s conviction stood, it would “cast a pall of potential prosecution over these relationships.” This point came up during the oral arguments, when Justices across the Court’s ideological spectrum came up with scenarios out of idyllic mid-century county seats that could be construed as corrupt, such as going to baseball games or barbecues. As SCOTUSblog noted, Roberts had worried about the governor who discusses a possible plant opening during an afternoon of trout fishing with a C.E.O. (McDonnell, at times, skipped the discussion part, playing several rounds of golf with his sons and going on a country-club pro-store shopping spree that Williams paid for without even being present.)

It is tempting to think that the Justices are awfully naïve about politics, which often takes place in the space between agenda items, but perhaps they’re just contentedly cynical, at peace with the idea that this is how politics works. The decision in the McDonnell case may be an acknowledgement that if trading cash, favors, or expensive experiences for recognized crony status is a crime, then a lot of people are guilty. Roberts, in his decision, mentioned an amicus brief filed by a number of former White House counsels, who suggested that the business of politics as we know it would be impeded if the McDonnell decision were upheld. If a standard is too hazy, prosecutions can be politicized. That is always a concern. But there is a lot of room between impossibly vague and where the Court landed. And would challenging a culture of normalized influence-peddling really be such a bad thing? Making the law even laxer does not seem like the most effective way to push politicians to be better. The Court, in Citizens United and now in McDonnell, has looked upon the worst, most endemically corrupt aspects of American politics and enshrined them.
The point here is not that all eight Supreme Court justices are irredeemably corrupt or consciously conspiring to prop up corrupt elected officials. It's that the culture of "influence peddling" by the wealthy and well-connected is seen as simply The Way Things Are, and therefore acceptable — essential, even, to a functioning political system. Similarly, I am fairly sure the 135 legislators at the Arkansas Capitol don't think their attending a petroleum-funded cocktail reception constitutes a tacit bribe, especially when all of their colleagues are joining in. Why would they? If I were a freshman legislator, would I turn my back on such networking events — signaling my aloofness and distancing myself from the levers of legislative power — meal after meal, day after day, week after week? Or would I take a seat at the table?

Of course, that's why changing the system requires passing laws that apply to everyone. And that makes the lax nonexistent enforcement surrounding Amendment 94, which was supposed to change the system in Arkansas, all the more infuriating. Lobbyists bankrolling a full social calendar of "planned events" for legislators is insidious exactly because so few of the people involved perceive their actions as wrong.

(By the way: The McDonnell decision underlies both defendants' appeals in the two highest profile bribery cases of the year in Arkansas. Arkansas businessman Ted Suhl and former circuit judge Michael Maggio both cite McDonnell in their appeals to the federal Eighth Circuit.)


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