Tuesday April 2, 2024; 5:28 PM EDT
- I don't think it controversial to say that much of what ills the government of the United States is caused by money. What may be controversial is that I do not think giving money is an expression of free speech, rather I think the act of giving money is an emolument. Limiting the amount of money a corporation, committee, or individual gives to an elected official is not an infringement on free speech. Common sense tells us this and yet in 1990 SCOTUS in Citizens United v. Federal Election Commission said otherwise. In order to make a more perfect union, as Madison wrote in the preamble to the Constitution, I think we need clear definition that giving of money to elected officials in our republic is an emolument rather than an express of free speech.#
- The difference between money and speech lies in how much the person receiving either needs what is offered. Today elected officials, particularly federal officials, need a lot of money. The amounts of money needed by a person to be elected to office makes it something more than speech because it enables a smaller number of people to influence the person elected. One's need of money and the receipt of that money is a quid pro quo; the giver of the money expects something in return and that expectation makes the giving of money an emolument. #
In Federalist 39 James Madison wrote, "If we resort for a criterion to the different principles on which different forms of government are established, we may define a republic to be, or at least may bestow that name on, a government which derives all its powers directly or indirectly from the great body of the people, and is administered by persons holding their offices during pleasure, for a limited period, or during good behavior. It is ESSENTIAL to such a government that it be derived from the great body of the society, not from an inconsiderable proportion, or a favored class of it; otherwise a handful of tyrannical nobles, exercising their oppressions by a delegation of their powers, might aspire to the rank of republicans, and claim for their government the honorable title of republic."
#- The founders knew how emoluments could lead to corruption because they lived in a time when it was common practice for foreign countries to gain favor from monarchs by gift giving. Emoluments are not given as an act of generosity, they are given with the expectation of something in return. If you think about it, you could say that emoluments, the giving of gifts of large sums of money, is simply capitalism at work, and here in lies the circumstances we find ourselves in today. #
- We in the United States, so accustomed to our highly capitalistic society, have become numb to the corrosive nature of money and thus think little of emoluments. If we were to write the Constitution today we might not even include emolument clauses in it because they have become such a part of everyday life. The other side of that coin, however, is that everyone in our capitalistic society knows full well that when one person or one committee or one corporation writes a check for thousands, hundreds of thousands or more dollars to a politician it is done with the expectation of something in return. Enough money from a small group of people gains more influence than a citizen could ever hope to gain through exercising their right to free speech. Isn't this how elected officials pretty much ignore what their constituents say?#
Why is it that emoluments from "any King, Prince, or foreign State" is worse than emoluments from citizens, corporations, or Political Action Committees?
#- Today, like many things, many tend to take a literal view of corruption and emoluments. Huge election donations and lobbying come with expectations that effectively buy votes, but we don't think of this as corruption, at least not legally. However, I don't know how anyone can deny that huge part of our lack of trust in the institutions of government, or media (journalism), or medicine, is not due in large part to an awareness of how much influence on decisions is being bought. The growing lack of trust in government is the corrosion (corruption) of the Republic in plain sight. (Further, if you think about it, much of the lack of trust in Biden or Trump is due to money!)#
- The founders of the United States knew full well the affect emoluments can have on a republic, which is why they included clauses in the Constitution to limit that affect. Unfortunately, the ideology of originalism says that literal words, not the meaning or intent, only matters. (Taken to its logical conclusion, originalism can mean that Supreme Court Justices could be replaced by AI.) Originalists will say, Article I, Section 9, Clause 8 only has the words "from any King, Prince, or foreign State" and there is no such prohibition of emoluments given from citizens of the United States, even if the very thing that clause was intended to prevent, which is the corruption of the government through quid pro quo, is what is happening.#