Friday, May 28, 2010

The White House's "Quid Pro Quo" with Sestak

A quid pro quo refers to a relatively equal exchange of goods and services. In the emerging controversy over whether or not the White House had attempted to bribe Congressman Joe Sestak, the quid would be the White House job offer and the quo would be the return favor that Sestak drop out of the Pennsylvania Senate Democratic Primary.

The White House has four ways of getting out of the legal trouble of having potentially offered a bribe. The first two are inconsistent, the third is persuasive, and the fourth is circular, but an utterly unassailable argument.

1. There was no quid.

The White House has centered its response on saying that there really was no quid offered, because only an uncompensated board membership was offered. White House Counsel Robert Bauer issued a memo on the Joe Sestak "job" talks on Friday, saying "Efforts were made in June and July of 2009 to determine whether Congressman Sestak would be interested in service on a Presidential or other Senior Executive Branch Advisory Board ... The advisory positions discussed with Congressman Sestak, while important to the work of the Administration, would have been uncompensated."

What is interesting is that while the White House is admitting that a quo was suggested, a quid was never offered. An uncompensated advisory position, according to the White House, is not a job or at least no one that rises up to being a premise for a quid pro quo.

2. There was no pro quo.

In contrast, Congressman Sestak has acknowledge that while a job offer was made, he has thus far not claimed that attached to it was an explicit and directly connected White House request which he was bound to honor should he accept this job.

The Congressman realizes that he has spoken out of line and angered many Democratic Party leaders, because he has given fodder to the Republicans to create a potential Obamagate. That is why, he felt compelled to justify himself. On Meet the Press last Sunday, he said, "I felt that I needed to answer that question honestly ... I was offered a job, and I answered that." Importantly, he did not say that he was offered a job in return for not running for the Senate. If no quo, then no quid pro quo.

3. Quid pro quos are not illegal.

US Code Section 600 reads:

"Whoever, directly or indirectly, promises any employment, position, compensation, contract, appointment, or other benefit, provided for or made possible in whole or in part by any Act of Congress, or any special consideration in obtaining any such benefit, to any person as consideration, favor, or reward for any political activity or for the support of or opposition to any candidate or any political party in connection with any general or special election to any political office, or in connection with any primary election or political convention or caucus held to select candidates for any political office, shall be fined under this title or imprisoned not more than one year, or both."

The fact is no one takes US Code Section 600 seriously. This law makes almost every political action (and therefore no political action) illegal in so broadly stating that any one who indirectly promises any benefit to any person as reward for any political activity for the support of any political candidate engages in criminal activity. Well, to this Robert Bauer's memo rightly notes: let s/he who is guiltless cast the first stone.

4. For better or for worse, quid pro quos are a legitimate part of our democracy.

Bauer's memo articulated a rationale for the White House's horse-trade, arguing that "the Democratic Party leadership had a legitimate interest in averting a divisive primary fight and a similarly legitimate concern about the Congressman vacating his seat in the House." This is the major principle being debated here and it is ultimately one that no Democrat or Republican can consistently deny.

Even though parties are not constitutionally sanctioned, the Democratic and Republican party have become quasi-constitutional entities. There is no moral justification for their duopolistic hold on American democracy, but our democracy is unthinkable save in terms of them. Things are as they are and that is why not many top Republican leaders are pushing back hard on the White House's misdemeanor.

I'll let a conservative Justice quoting a Democratic politician make their collective case. In his dissent to a case put before the Supreme Court in 1980, Rutan v. Republican Party of Illinois, Justice Antonin Scalia quoted George Washington Plunkitt of New York's corrupt Tammany Hall political machine:

"I ain't up on sillygisms, but I can give you some arguments that nobody can answer. First, this great and glorious country was built up by political parties; second, parties can't hold together if their workers don't get offices when they win; third, if the parties go to pieces, the government they built up must go to pieces, too; fourth, then there'll be hell to pay."

And that is that. This controversy will circle around a bit but go nowhere because the real quid pro quo is between the Democratic and Republican Parties, both of which will scratch the other's back in order to protect their continued capacity to pursue techniques that would promote loyalty and discipline within their own ranks.

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