There Goes the Fig Leaf

Perhaps you read that the oil industry is already gearing up its campaign-contribution machine, with the American Petroleum Institute (API) announcing that for the first time it will start making direct contributions to candidates, instead of leaving that task to its individual member companies. But you almost certainly overlooked the fact that in making the announcement, API stripped the fig leaf that, since the end of the 19th century, has enabled both corporations and politicians to pretend that giving a public official money to run a political campaign was somehow not bribery.

The crucial admission came from Martin Durbin, API's executive vice president for government affairs, who announced the new strategy this way: "At the end of the day, our mission is trying to influence the policy debate." You might not have taken particular note of his statement because (if you are like most Americans, most reporters, and most politicians or donors) you already assume that campaign contributions influence policy choices, and that senators, congressmen, governors, state legislators, and city council members are all more responsive to the needs, concerns, and views of those who give them money than they are to the desires of the rest of us. It's almost a "duuuh" moment.

And since individual companies and executives in the oil industry have already given $238 million in federal campaign contributions over the past 20 years, (almost all of it to politicians who then voted to continue the oil industry's outrageous subsidies and environmental bailouts), this is one of those secrets that's been hidden in plain sight.

But there is one crucial group of Americans who for more than 100 years have held it as an article of faith that a campaign contribution is different than a bribe -- federal judges. The judiciary has accepted the argument made by big donors and politicians that when Exxon gives money to Senator James Inhofe, it is trying only to influence the voters of Oklahoma and to help Inhofe to win their support. But, the argument has run, Exxon is not trying to influence Inhofe's votes in the Senate. Exxon might be buying the election, but it is not changing Inhofe's actions as a senator. (Spending money to influence legislative acts would be bribery.)

Politicians insist that they are selling "access" -- not "influence." They concede that big donors, whether they are constituents or not, get meetings that ordinary constituents don't. They can hardly argue this point since both parties routinely "sell" such access by soliciting big gifts, in specific amounts, in exchange for the right to attend various events, ranging from breakfasts to luxurious weekends, with elected officials. It has somehow passed everyone's notice that if a judge announced that he would only listen to the motions and arguments made by lawyers who had made contributions to his reelection committee, he would be impeached and then jailed. Why this should be different when it is a governor or a senator who auctions off public access has never been clear.

But somehow the courts have accepted the argument that, in making campaign contributions, there was a critical distinction between campaign contributions to influence elections (constitutionally protected), encouraging such contributions by auctioning off "access" (acceptable), and paying money to influence a legislator's vote (bribery). But the fig leaf on which our entire system of campaign finance depends is the idea that campaign contributions don't influence legislative outcomes. The American Petroleum Institute's recent announcement, perhaps because it hasn't previously been part of this particular inside game, blew the cover off of this stunningly implausible public fiction. If API is making its campaign contributions to influence the policy debate, then it is engaging in bribery. And if API is engaging in bribery, then so is Exxon-Mobil when it makes similar gifts to the same politicians at the same time.

And why might API have chosen this time to get into the business of "influencing the policy debate" with campaign contributions? Perhaps because the oil industry, in spite of last fall's election, is really, really worried. The industry's subsidies and bailouts have been highlighted repeatedly by the Obama administration and the Democrats as an example of a good way to help reduce the federal deficit. In his State of the Union message, President Obama said, "instead of subsidizing yesterday's energy, let's invest in tomorrow's."

Senator Robert Menendez followed up with his Close Big Oil Tax Loopholes Act of 2011, which would repeal over $20 billion in handouts earmarked for some of the world's largest and most profitable corporations. In the recent votes on the House floor on HR 1, a number of conservative Republican members broke ranks to vote against subsidies for big agribusiness and defense contractors -- and the oil industry is worried that its tax welfare might get added to the same bipartisan hit list.

But while API has stripped the cover story off the campaign-bribery racket that federal courts have allowed for over a century, don't expect federal judges to have a sudden "a-hah" moment. Justice, after all, is legendarily blind -- so it may not even notice the missing fig leaf. Instead, the risk is that, as the Supreme Court did in its Citizens United opinion, the federal courts will open the floodgates even more broadly to legalized bribery by big economic corporations.

In Arizona, a state law that encourages candidates to accept public financing of their campaigns if they will give up accepting large bribes from private donors is being challenged before the U.S. Supreme Court in a case called McComish v. Bennett. A lower court overturned the law, but the 9th Circuit upheld it. Now the Supreme Court will have a chance to at least leave open a possible solution to the problem of legalized bribery. The Sierra Club, along with Common Cause, the League of Women Voters, and other reform groups, is filing an amicus brief in the case. Depending on the outcome, the case could be either the first step back toward true democracy in this country or another Supreme Court body blow toward plutocracy.