A law is an agreed-upon compromise among people’s rights, powers, privileges and immunities to serve a public interest, without burdening liberty too much. A law must be reasonable. It must set a high enough standard to serve its purpose without being so high that the average American has to jump to reach it.
Public accountability is a higher standard because we give government power. A generic definition of corruption is abusing public or private power over any rights, liberties, powers, privileges or immunities to assume, encroach on or consolidate them while limiting or separating yours. An immunity is assumed by abdicating responsibility, confusing liability, narrowing consequences or complicating enforcement.
Seven federal statutes are used most for public corruption cases:
18 USC 1341-5 Mail and Wire Fraud
18 USC 1346 Theft of Honest Services
18 USC 1952 Travel for the Purpose of Certain Criminal Acts
18 USC 1951 Interference with Commerce by Threats of Violence
18 USC 1961-68 Racketeering-Influenced/Corrupt Organizations
15 USC 78dd Foreign Corrupt Practices
18 USC 666 Federal Program Bribery
There are others, however. Look through the US Code.
The Department of Justice’s Public Integrity Section investigates corruption. If you witness federal corruption or are a victim, go (preferably with an attorney) to your US Attorney’s office. The National Conference of State Legislatures has a chart of state ethics and public corruption laws at ncsl.org/research/ethics/state-chart-criminal-penalties-for-public-corr.aspx. If you witness or are a victim of any offense covered by these, go (preferably with an attorney) to the police or your local district attorney. They may refer you to your state's attorney general or the US Attorney, but state and local corruption cases are sometimes held at the state or local level.
In US v Hudson and Goodwin, 11 US 32 (1812) the Supreme Court wisely held that federal judges cannot create criminal law. A legislature has to pass it, an executive to sign it. Hudson puts the burden on the people to pass public accountability laws and keep them effective. And while the current list is long, each statute in it has been whittled down by the courts or by later terms of Congress. We’d have a lot of ground to cover even if we weren’t also concerned with structural and procedural accountability.
For example, 18 USC 3553(a) provides that a court should avoid unwarranted sentencing disparities among defendants with similar records who have committed similar offenses. This establishes a justice baseline. But it can be dangerous if an area of law has been unjust, as is now the case with corruption law. Expanding a too-small area of criminal law makes courts work in a new framework.
And except for their deterrent effect the above statutes deal with individual offenses after the fact, not with making government more accountable in the first place. But of course we need both. You can review our slate of proposed public accountability statutes at State & US Statutes. When reviewing a proposed reform always ask, Where is the people’s interest? and keep asking it. Your answer may change as you work through the relevant principles.
Defining Public Corruption
Kings are public persons. In the USA there are no public persons, only public conduct. Does the Constitution make an express distinction between public and private conduct? Yes.
They shall in all Cases, except Treason, Felony and Breach of the Peace,
be privileged from Arrest during their Attendance at the Session of their respective Houses,
and in going to and returning from the same; (art I §6)
A member of Congress can be arrested when leaving the house to go to dinner, but (with narrow exceptions) not when leaving the house to go to the House, or to the Senate. Their work for us can’t be interfered with even to enforce the law against them.
The public interest is sometimes called state interest. A compelling state interest is a legal standard. It outweighs private and even lesser public interests. Enforcing the law is a public interest itself, but it’s a higher public priority to ensure that the people are represented when decisions are made.
But arresting a member earlier or later in the day isn’t a problem. Their House will have time to adjust the voting schedule if feasible to wait for them to address their private emergency (making bail). A clear distinction is made between public and private conduct; and no private conduct, like going out to dinner, can interfere with public conduct.
The Constitution takes the distinction between public and private conduct, and the priority of public conduct, so seriously that commuting to and from Congress is expressly distinguished from other travel.
What controls (is most important) in constitutional cases?
Begin with these:
We the People of the United States,
in Order to
form a more perfect Union,
establish Justice,
insure domestic Tranquility,
provide for the common defence,
promote the general Welfare,
and
secure the Blessings of Liberty
to ourselves and our Posterity,
do ordain and establish
this Constitution for the United States of America.
There are more, of course. The Constitution and the Declaration of Independence contain statements of our national values. Some are known around the world, like freedom of religion, speech, and the press.
The United States combines three forms of government. The resulting tensions keep the public involved in self-governance, the first American value expressed in both the Declaration of Independence and the Constitution. We ordain and establish government by exercising our civic powers (see Your Rights and Powers).
The fundamental national values the Preamble enacts include justice, liberty, and government furthering the general welfare as opposed to just benefitting an aristocracy. They include fraternity: states working together for the common good, and working with the federal government to fight crime (insuring domestic tranquility) and participate when needed in a common defense. Article V’s amendment process shows a national value of continuing progress in government, and the mandates to seek closer union among states in the future, and to secure liberty for posterity rather than just enjoying it for ourselves, establish the important value of forward thinking. These are all values of an Enlightened government, and our highest purposes for having a government at all.
The President, Vice President, and all civil Officers of the United States,
shall be removed from Office
on Impeachment for, and Conviction of,
Treason, Bribery, or other high Crimes and Misdemeanors.
(art II §4)
A high crime is when government knowingly undermines one of our purposes for giving it some of our rights and powers. Anyone sworn or affirmed to support or uphold the Constitution who deliberately abridges or endangers the unity of the people or the states, justice, public safety, or the general welfare, who attacks the nation or splits up our defenses, who abridges or endangers our freedom or the freedom of future Americans, who abridges or denies the people’s right and power to ordain and establish government or who defies the Constitution has committed a high crime.
Congress is required to protect the integrity of government, and to make laws penalizing anything that has a direct and damaging effect on the accurate representation of the public interest and on effective government. These are good starting points but don’t go far enough.
What does public integrity look like?
- Elections are public, free and fair.
- All people can participate in governance.
- All people have equal access to decisionmakers, with equal power to influence decisions, including appointments.
- Decisionmaking is transparent, and public scrutiny functions without interference.
- Decisions are made by competent process.
- Abusing public power has consequences: The justice system, regulations and regulatory structures, and institutional checks and balances function, and are free and fair. Due process is afforded equally. Internal oversight and removal of officeholders functions, and is free and fair.
Several clauses and implications ban corruption, but Article VI and the Justice clause set the first and fundamental mandate:
- A person elected or appointed to the service of the United States or of any state must swear or affirm to perform their office’s duty towards the Constitution.
- The rights and powers vested in government must be used to establish justice.
Together, these imply a ban. Since all public servants are sworn or affirmed to establish justice, you may not knowingly use your office or the rights or powers it affords to establish injustice. Here’s the implied clause in the form of law:
The Preambular Definition of Public Corruption
A person vested by election, appointment, contract or hire with a duty towards the Constitution who knowingly commits, causes or contributes to any injustice under color of any law
commits the high crime of public corruption.
The right and power to act in the people’s name is quasi-sovereignty, a discrete though intangible possession of the people. You’re invested with it by having been elected, appointed, contracted or hired by the people, or you’re not. Being so invested is an honor granted for our preambular purposes as well as for specific performance. Each preambular clause is a guiding value in applying the others, and no purpose is higher in our constitutional democratic republic than establishing justice. Using a right and power to act in the people’s name to cause injustice under any circumstance defeats the people’s high purpose (Where is the people’s interest?). Doing so knowingly not only defeats the people’s high purpose, it dishonors the people’s vestiture. That is the high crime of public corruption.
Injustice is knowingly raising or lowering someone (who could be yourself but doesn’t have to be) from their just condition in a given situation.
A just condition has a basis in or conforms to:
- fact or reason
- what is merited or deserved for or from a given person in a given situation
- and of course, any constitutional and lawfully ordained or established law, regulation or rule
Fact or reason can be verified. So can what is reasonably merited or deserved in a given situation.
While a tangible or intangible benefit may be obtained or a political or personal motive may exist, the Preamble and Article VI taken together say none is required. The knowledge requirement bars penalizing an accidental or negligent injustice as corruption. But knowledge is a lower standard than intent, and more appropriate to government action. To know that a given use of the right and power to act in the people’s name would establish an injustice is to know that such use would defeat the people’s purpose for your office and dishonor our trust in you.
commit=direct cause
cause=prime mover but attenuated
contribute to=not prime mover, indirect or partial but necessary factor
Under color of any law includes acts done under lawful authority and also acts done without and beyond the bounds of lawful authority if the act uses an impression of using governmental power or authority. This is distinguished from under color of official right, which is limited to using or misusing the office’s power or authority. Coopting an honor not vested in you dishonors the people’s vestiture in another way no matter what use is made of it, so knowingly using a false impression of governmental power or authority to establish injustice is private corruption if you’re not a public servant, public corruption if you are.
Something can be misconduct without being corruption. Misconduct isn’t “corruption only smaller.” One or more elements must be missing. Charging someone with misconduct instead of corruption to reduce its criminal, civil or social penalty is corruption.
- Sexual harassment of a subordinate is not public corruption. It’s an abuse of power but generic power, not particularly a government power. Any employer can harass. It intentionally establishes an unjust situation but a generic one. It’s misconduct.
- But a poll worker who withholds a ballot until a voter responds to flirtation is knowingly using public power to commit sexual harassment, raising their personal power above the voter’s. This is public corruption.
- A judge who accidentally falls asleep on the bench is not corrupt but has committed misconduct. The parties have a right to the court’s full attention and have been abused by government but if the judge intended to pay attention and rule justly, knowledge of the injustice didn’t begin until the judge woke up. Too late!
- Using a lifelong personal connection to get your niece a job in a bank is not very fair but it’s not public corruption, even if you happen to be a Senator.
- Relying wholly or in part on the fact that you are a Senator to get your niece a job in a bank even where a lifelong personal connection exists is public corruption.
- Passing a law or issuing a ruling that violates the Constitution isn’t corrupt. There has to be some question of governmental (or purportedly governmental) integrity. Does the law or ruling defy logic or rely on a logical fallacy? Does it distort or incorrectly apply canons of construction or doctrine? These aren’t necessarily proof, but grounds may exist for challenge. Was procedure distorted to achieve it? Now you’re talking.
Statutes derived from the Justice clause will be stronger than corruption statutes that only derive from subject clauses (like ports and duties, art I §9) or that are made backwards, starting with dubious conduct then looking for a textual ban.
A statute or ordinance can be criminally unconstitutional. Doesn’t that mean passing and signing it was illegal? It does if the violation was deliberate but that’s hard to prove, and in any event the most balanced remedy for this is usually just to throw out the law. The people elect legislators for more reasons than one law, and prosecutors and Congress avoid overturning the voters' decisions. But the people also decided to ordain and establish a Constitution as the supreme law. Knowingly passing, signing or complying with a law that violates any of the text’s definitions of corruption is corruption. A court that refuses to find these actions unconstitutional and cites Hudson is wrong.
Is the Constitution whatever the Supreme Court says it says? No.
How can that be?
It’s surprisingly easy. Sometimes it’s even unintentional.
Can the people amend without Article V? Of course, by revolution. The right to alter or abolish government is inalienable. But we wouldn’t be discussing constitutionality then. We’d be discussing the Constitution’s successor. Short of revolution, Article V is the only way to amend the text. Not even agreement by all branches and both levels could make another method legal. The government is not equal to the people’s own instrument that creates and governs it.
Courts, however, view each clause through precedent. If the points of a case or the language of a statute are badly framed or reasoned, distortions and any flaw in interpretation enter caselaw.
Over generations caselaw can drift from the text to an extent that distorts doctrine and eventually invalidly amends the text.
Less commonly, legislation or even rulings can invalidly amend in one stroke. Reluctant to break new ground, courts can rely on a clause used often even if another would be more appropriate. Caselaw drift can result. And where power is concerned the possibility of corruption always has to be considered. It’s not disrespectful to consider corruption or error. It’s the public’s job.
Caselaw drift isn’t the same as accommodating new developments, and invalid amendment is more than a ruling you disagree with. Invalid amendment effectively renders some part of the Constitution’s text unusable to define constitutionality in court. Since the legal system and executive branch of course follow the Supreme Court, which in its turn relies on Congress, invalid amendment will be followed until Congress or the Court corrects the error or amendment restores the text.
Neither statutes nor caselaw can “shape” the Constitution. No matter how much time has passed nor how long a series of statutes and rulings have invalidly amended a clause, it all remains illegal and must be corrected. The Constitution is designed to short-circuit corruption. When government deviates from any of its provisions it’s usually to reduce the public’s oversight power over them.
Invalid amendment of constitutional text has taken too many forms over the years.
It’s been done:
by ignoring it altogether;
by effectively limiting or reducing the force of law it asserts;
by allowing exceptions not made in the Constitution;
by interpreting effectiveness as temporary;
by granting any law, treaty, rule or regulation force equal to it;
by granting other provisions superior legal force to it;
by not incorporating it;
by failing to enforce it;
by rendering its enforcement impossible;
and so on.
Judges can't usually be prosecuted or impeached on the merits (for the content of a decision). This protects the justice system against intimidation or coercion.
But invalidly amending the Constitution is impeachable.
Good behavior by judges or justices excludes invalid amendment. They should know better.
Corruption
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