Clean Government Decisions – with a Civil Bribery Law

Clean Government Decisions Law

Copyright 2003-2005 David Dilworth

Imagine  —

  • Prohibiting Elected Officials from voting on legislation or projects where Weapons Manufacturers, and Pollution Industry Lobbyists and Developers give them campaign contributions – before or after they vote,
  • Prohibiting Weapons Manufacturers, and Pollution Industry Lobbyists from offering jobs to government staff, working on their projects, and even —
  • Prohibiting Weapons Manufacturers, and Pollution Industry Lawyers from having hearings in front of Judges to whose campaigns they’ve contributed.

 

Legalized Bribery
Campaign contributions to candidates from those who get political favors are often called “legalized bribery,” yet for more than 100 years Americans have struggled with and been unable to adequately restrict the influence of campaign contribution money in political decision making.

Until now there were only three ways to stop this type of corruption – criminal bribery laws, conflict of interest laws and campaign finance reform laws. All three have major problems or loopholes. 

Criminal Bribery laws are essentially worthless because they generally require the equivalent of an FBI sting to prosecute. The problem is that they are criminal laws. So no matter how much proof you have, unless one of the two people admit the bribery, no prosecutor will ever press charges. — Even when you have proof that an elected official approved a project and the same day took a $1000 campaign contribution from the project owner there is nothing provably illegal unless one of the two people admit to the bribery on tape.

This is because criminal statutes properly require proof “beyond a reasonable doubt.” 

California’s Conflict of Interest law is called “The Political Reform Act of 1974.” It completely allows huge campaign contributions if they are made 3 months after a decision. It even allows developers to give up to $250 during the 3 months after they get a vote of approval. It also allows any business or gifts acquired by the elected official after they make a decision! Finally, it does not prohibit gifts to sitting judges. 

Campaign finance laws are fundamentally handicapped by constitutional free speech provisions. In 1976 the US Supreme Court declared that campaign contributions are almost as privileged as any other political speech. This is the infamous “money equals speech” decision in Buckley v. Vallejo. Until this is corrected, or at least significantly improved, campaign contribution limits cannot constitutionally get lowered below that which is painfully obvious to influence politicians. 

Vision

What is needed is a different way to stop the influence of campaign contributions on specific government decisions that are in reality corrupt business transactions.  A bonus is doing it without stepping on developer’s and polluter’s rights to free speech.

After working to adopt campaign finance reform laws for some 17 years I decided to take a new look at the problem. Buried in the magnificent resources, the book”Money and Politics” I found two ways to genuinely address this problem.

One way is to create a civil bribery law. The other method is more narrowly focused on prohibiting participation in governmental decisions by those who give or take money, rather than the very broad restrictions on everyone of campaign contribution limit laws.

Of course one can also do both.

There are three kinds of private money in campaigns: Soft money, Hard money and Diamonds for Puppets. Relative “Hard”ness indicates the degree of directness of the money to a political decision. “Soft” money does not go to a candidate, but it does promote them specifically. Hard money is given directly to a candidate. Diamonds for Puppets (diamonds because they are the hardest material) are those contributions given directly to a candidate explicitly intended (but never admitted) to influence their vote or influence on a project or legislation which directly benefits the donor.

Beautifully, the more direct the campaign contribution, the easier it is to prohibit as courts are more open to enforcing direct and obvious conflicts of interest.

Halting Political-Financial Conflict of Interest campaign contributions is the heart the prize, of what we’re trying to achieve; and stopping them in this manner does not run afoul of the free speech limits of traditional campaign finance contributions.

(Update: Nor does the “Citizens United” decision have any effect on this.)

This new method needs no restrictions on campaign contributions, thereby avoiding the “campaign contributions equal free speech” problem. Just as importantly because it is a civil law, as opposed to a criminal law, which only requires “a preponderance of the evidence” (meaning only 51%” of the evidence) making it far easier to prosecute.

At is most extreme, it would allow even the most reprehensible corporation or its legal firm or lobbyists to essentially pay for a candidate’s entire election campaign, to buy them a house or pay for their children’s schooling — allowing them unlimited “free speech.”

But if they do so, that public official is then prohibited from voting on, making a decision upon, or even trying to influence any decision where the contributor, their clients, or any immediate family members of those businesses would realize a benefit, financial or otherwise – greater than any member of the general public.

Notably, it prohibits a campaign contribution or a gift after the public official makes a decision on their project.

It also requires each public official to create and maintain a list of those donors who might have legislation or projects in front of them where they must step down.

The serious penalties for violating the public’s trust in this way are intended to prevent rather than simply cure.

It is important to realize that any government official can choose not participate in any specific governmental decision and they are never required to accept any campaign contribution, personal gift or business transaction. Because of this freedom of choice, if a public official despoils the sanctity of clean government decisions – they are permanently removed from office and their vote or decision is rescinded even if the “contribution” occurs at a later date. 

It is also important to understand this does not restrict a politician from voting on an issue a public interest groups advocates when they have donated to his/her campaign unless there is a financial benefit to the public interest group, or one of their donors, that is greater than members of the general public realizes.

The contributor, who also is never required to give any campaign contribution, personal gift or conduct any business transaction, who wrongly benefits from such a vote must pay a fine equal in value to the benefit that they would have realized – for each separate violation. 

So far no one has been able to describe a constitutional conflict with this proposal. Indeed, perhaps more than a few corporations are tired of paying “protection” money to politicians who demand campaign contributions from them.

For California, to prevent electeds from quietly rescinding this law, it would be most likely passed by a vote of the public – an initiative.

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The Clean Government Decisions Ordinance

By David Dilworth*

(I donate this model ordinance to the public domain.)

A Civil Bribery Law to Halt Personal Financial Benefits with Political Decisions.

Whereas government decisions must not be tainted by any interests or loyalties other than for the Public Interest;

Whereas Public Officials must perform their duties in an impartial manner, fully free from any bias caused by their own financial interests and the financial interests of persons who support them;

Whereas gifts of public funds are prohibited by California’s Constitution;

Whereas all Public Officials are prohibited from influencing any issue in which they have a financial interest;

Whereas any County Public Official may step down on any issue which comes before them and may refuse any campaign contribution;

Whereas no person is ever obligated to contribute to a political campaign;

Any Public Official is guilty of a Harmful Political Financial Conflict of Interest who votes upon, makes a final decision upon, or influences, any issue which benefits any contributor to the official’s benefit, including any of their election campaigns or by any way described by Government Code Section 87103 (included below).

Any person is guilty of a Harmful Political Financial Conflict of Interest when:
(a) They offer, or contribute in any way, directly or indirectly, to that Public Official’s benefit, including any of their election campaigns; and

(b) They, or a client of theirs, receive any benefit, distinguishable from its effect on the public generally, from any issue that Public Official votes on, makes a final decision upon, or advocates upon.

No campaign contribution with a value of $100 or more may be deposited or spent until there is a public disclosure of the name, address and employer and the names of the contributor and all persons who solicited the contribution.

All votes, approvals, decisions or contracts made by any Public Official with a harmful political financial conflict of interest are void when made and shall be rescinded as soon as possible after it is affirmed by a court. No reapplication for the same or a similar activity may be made for 3 years.

Each person found guilty of contributing to a harmful political financial conflict shall pay a fine of ten times the value of the benefit which would have been reasonably realized by the vote, approval, decision or contract. Fines collected shall be used exclusively for enforcement of this ordinance.

Any Public Official violating this section shall be removed from governmental office and employment, and may never again hold elected or appointed office or be employed by that government agency.

If an item must be considered prior to a deadline, but the body does not have the needed quorum due to a Public Official having to recuse themselves by this provision, the item shall be recorded as denied.

Before taking office each government official shall prepare and maintain a list of those businesses, people and entities from which she or he and their immediate families have received any financial benefit. This list shall be continually updated no later than every month. The list shall be a public record and published on the web. Any vote cast by a public official in their official position shall be void if their list is in any significant way incomplete.

Intervenor Compensation. When successful enforcement of this ordinance is brought and accomplished by any person or entity other than the Attorney General, the successful plaintiff is to be awarded $5,000 civil penalty from defendant and any other fees and costs deemed appropriate by the court including those awarded pursuant to Code of Civil Procedure Section 1021.5

This ordinance should be liberally construed and strictly enforced to accomplish its purposes.

There is no statute of limitations for enforcing this ordinance.

DEFINITIONS
“Benefit” means financially or by anything of value or advantage, tangible or intangible.

“Any person” includes any member of the person’s immediate family, or their businesses.

“Public Official” means every elected, appointed or employed government decision maker including every member, officer, employee or consultant; their immediate families and their businesses as defined by Government Code Section 87103.

SEVERABILITY
If any provision of this ordinance or the application thereof to any person or circumstances is held invalid, such invalidity shall not affect other provisions or applications of the ordinance which can be given effect without the invalid provision or application, and to this end the provisions of this ordinance are severable.

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California Government Code 87103.

A public official has a financial interest in a decision within the meaning of Section 87100 if it is reasonably foreseeable that the decision will have a material financial effect, distinguishable from its effect on the public generally, on the official, a member of his or her immediate family, or on any of the following:

(a) Any business entity in which the public official has a direct or indirect investment worth two thousand dollars ($2,000) or more.

(b) Any real property in which the public official has a direct or indirect interest worth two thousand dollars ($2,000) or more.

(c) Any source of income, except gifts or loans by a commercial lending institution made in the regular course of business on terms available to the public without regard to official status, aggregating five hundred dollars ($500) or more in value provided or promised to, received by, the public official within 12 months prior to the time when the decision is made.

(d) Any business entity in which the public official is a director, officer, partner, trustee, employee, or holds any position of management.

(e) Any donor of, or any intermediary or agent for a donor of, a gift or gifts aggregating two hundred fifty dollars ($250) or more in value provided to, received by, or promised to the public official within 12 months prior to the time when the decision is made. The amount of the value of gifts specified by this subdivision shall be adjusted biennially by the commission to equal the same amount determined by the commission pursuant to subdivision (f) of Section 89503.

For purposes of this section, indirect investment or interest means any investment or interest owned by the spouse or dependent child of a public official, by an agent on behalf of a public official, or by a business entity or trust in which the official, the official’s agents, spouse, and dependent children own directly, indirectly, or beneficially a 10-percent interest or greater.

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