Corruption News Central: March 2009

How Outlawing Self-Enrichment Through Public Office
Can Eliminate Most of Alaska’s Corruption

By Ray Metcalfe 03/15/20009

Some reviewers of my proposal have raised the issue of vagueness. They are correct in that the first reaction from most attorneys is that my proposal to make self-enrichment through public office a felony is too vague to pass courtroom scrutiny. However, I disagree and I am prepared to argue the question in court if necessary.

There is a method to the strategy behind the precise wording of this initiative. I played with the wording for several days to compact as much wallop into fifty words as possible. State statute limits the printed description of propositions placed before the voters on the official voter’s ballot to not more than fifty words. By limiting this proposition to fifty words, we will be in position to ask the Court to tell the Division of Elections to place the proposition on the ballot verbatim if the Division of Elections, at the direction of the Lieutenant Governor, tries to describe the proposed initiative as anything other than what it is.

The petition would create a statute reading as follows:

* "Anyone found using their public office to enrich themselves, their relatives, close friends, business associates; past, present, or anticipated employers or contributors, is guilty of a class A felony. Anyone found securing enrichment by inducing public officials to violate this statute is guilty of bribery, a class A felony.”

Believe it or not, what you just read is not illegal. The difficulty in prosecuting politicians like John Cowdery, who got six month home detention for offering a $25,000 bribe, is that much of what you would think is illegal is not. Politicians have exempted themselves from punishment through loopholes. Prosecutors find themselves relying on statutes made intentionally flimsy by the politicians they prosecute. Placing the above proposition on the ballot will bring an abrupt halt to the overwhelming majority of the corrupt practices that plague Alaska’s political system. A class A felony is punishable by up to 20 years in jail.

Under no stretch of the imagination is anyone going to mount a campaign that would successfully persuade a majority of voters to vote against something that effectively says: "If you use your public office to enrich your self, you go to jail." It will need no advertising to gain voter approval and no amount of advertising in opposition can stop it.

The Legislature will have the option of passing a substantially similar statute with more words to clarify what the statute means. In the absence of an agreement as to what constitutes “substantially similar” the proposal would remain on the ballot for the voters to decide.

The Legislature would have to negotiate the language with me and gain my concurrence or face the high probability that I would sue them and the probability that the Alaska Supreme Court would rule that their replacement statute was not "substantially similar." In such an event, the Court would order the proposition back on the ballot.

It will only require $100 and 100 signatures to see if the Lieutenant Governor is going to defend or oppose the proposal. If the Lieutenant Governor defends the proposal, it is smooth sailing. The state will then print and deliver the signature gathering petition booklets and defend against any other challenges.

If the Lieutenant Governor rules that it is too vague to meet constitutional muster and therefore refuses to print the signature gathering petitions, I will sue and show the Court that several Federal Circuit Courts have already upheld "Honest Services," a federal statute that is far less precise than my proposal, and the U.S. Supreme Court has refused to review their rulings on grounds of vagueness.

About twenty years ago, Congress passed a federal statute for fighting corruption that is far more vague than my proposal. Known as the “Honest Services Act.” The statute for all practical purposes says public figures are obligated to deliver “honest services” to the public. It has been upheld by the Ninth Circuit and several other jurisdictions. In comparison to the “Honest Services” statute, my proposal is as clear as a bell. That is the reason I believe we can win in court on the issue of vagueness.

You will find three files attached to this email that can bring you up to speed on honest services, plus a fourth file, the actual petition.

Lobbyist Bill Bobrick and Governor Murkowski's chief of staff, Jim Clark, were both charged and convicted of violating the Honest Services statute. When Congress wrote the law Bobrick and Clark broke, Congress deliberately left it up to the Courts to define the fine points of what is meant by "Honest Services."

Justice Antonin Scalia disagreed with the majority opinion in refusing to consider the vagueness of Honest Services. However his dissent made it clear that the decision was a decision by the U.S. Supreme Court to allow Congress to pass vague laws, deliberately leaving it up to the Courts to clarify the fine points of the intent of the statute.

Alaska is a comparative petri dish for initiative experiments. It costs millions in other states to do what can be done for $100,000 here. I believe that if we get this rolling here we will be able to get help from concerned deep-pockets around the nation with an interest in seeing if this can work. I believe that if we succeed, we will be able to export our idea to concerned citizens in every state that has an initiative process available to its voters.

There are 24 states with some form of initiative process. If a significant number follow our lead, it is probable that Congress will eventually do the same. If it works, it will close the book on a history of buying favors that has plagued this country for 200 years.

Excuses & Answers

What’s wrong with the concept that the only reason a person should contribute is because they actually believe that the person they are contributing to will deliver good honest open government? If this became law, those who sought to pass “Clean Elections” would achieve their goal. Those who have in the past given money with self enriching strings attached would face jail time if they continue the practice.

With their primary source of funding gone “Clean Elections” would suddenly look far more palatable to those in the Legislature. Those who continue to contribute and do so expecting nothing of personal monetary value in return will be few and far between.

One person asked; “what would happen if I were to give $25, then testify on environmental issues?”
Answer: Such scenarios would not adversely impact anyone if my proposed statute becomes law. Not unless the contributor also asked the politician to whom they had contributed to also give them something that contributed to their personal wealth and the politician delivered.

Another asked; “what about legislators voting on their own pay?”
Answer: What’s wrong with the concept that legislators should raise pay only for future legislatures but not their own, requiring existing legislators to set out a term before taking advantage of the new pay scale?

"What about a legislator who is a Realtor, voting on real estate issues or an oil company employ voting on oil issues?"
Answer: If it doesn’t clearly act to enrich yourself or your employer, don’t worry. If it does, don’t vote and don’t participate in the debate.

People paying for favors has been so ingrained into our system that, even the good guys tend at first glance, think of it as a right and wonder how the wheels of government could turn without it.

Paying for favors is a crime. It has just gotten really hard to prove, thanks to a little confusion that's been engineered into our statutes by the politicians it is meant to restrain.

The first corporations in America were for the construction of canals for barges. At the time corporations could only be created for public purposes, much as we view public utilities today. Look at what we have forgotten and where we have come as a result. Corporations have become vehicles to shield people from responsibility from their acts (Think Exxon Valdez). They send people to Washington to ask for money that they distribute to those rich enough to have bought their stock. Think AIG, bank bailouts and golden parachutes made possible by your tax dollars.

This petition doesn’t outlaw pleading poverty and asking for relief, it doesn’t outlaw lobbying, it just outlaws delivering contributions and then lobbying for governments delivery of cash, contracts, monopolies, or government assets or resources in return. Inventers of a better mouse trap would no longer be required to out-contribute entrenched owners of obsolete mouse traps to get Congress to consider their product. Corporations would be better advised to instruct their executives not to be donating to congressmen they expect to lobby and congressmen who had received donations would likely refer their contributors to other congressmen, when approached for favors. Corporate contributions to politicians would likely become a thing of the past. Huge speaking fees and book deals for seated members of Congress would also fall by the wayside, as would fat lobbying contracts and consulting fees for their spouses.

Standard practice today is for Alaska’s legislators to announce their conflict of interest and then vote anyway. What’s wrong with the concept that when the Legislature is voting on something that has a direct impact on your employer, family or business, you should announce your conflict and refrain from voting. When in doubt, don’t vote.

If you want to help clean up this states corruption problem, print out the attached petition, get a few signatures, scan them and email them to RayinAK@aol.com, or drop them in the snail mail.

Felon-Enrichment-Petition.doc
Honest-Services-Definition.doc
Honest-Services-Supreme-Court.doc
Honest-services-cases.doc

Ray Metcalfe

Chairman of Citizens for Ethical Government
P.O. Box 233809, Anchorage Alaska, 99523
907-344-4514 –– RayinAK@aol.com

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