"Defining deviancy down" is a famous phrase coined in the 1990s by Daniel Patrick Moynihan, then a Democratic senator from New York. The phrase was how Moynihan, since deceased, billed his idea that America's primary social problem was growing general acceptance of intolerable behaviors. Moynihan prescribed a return to more traditional standards. Sociologist Andrew Karmen later summarized the nation's response to that prescription as increasing repression of the nation's underclass.
Karmen argued that Moynihan's critique was one-sided and sidestepped an opposite tendency -- namely, "defining deviancy up." That, he said, referred to "deviant behavior that went unpunished in the past (but) is now subject to penalties." Karmen noted that police brutality, hate crimes, date rape, spousal and child abuse "and other depredations by persons of greater power and privilege against people of lesser status are no longer considered acceptable."
It may well be that such intolerable behaviors among people of high status are now less acceptable to many Americans, but they remain widely practiced, if perhaps better reported -- just check any edition of your local TV news. But if defining deviancy downward or upward has conceptual merit, the most important impacts might be coming from this era's conservative political behavior.
Because, let's face it, there's a lot of anti-social behavior among today's political right. And some of that behavior extends right into the realm of defining political and legal deviancy downward. Or you could use another word to describe this: Corruption.
Consider: When Federal District Judge Rudolph Randa this week issued a decision favorable to prosecutorial persons of interest based on his strange, approvingly patriotic finding that they should be left alone because they "have found a way to circumvent campaign finance laws," we've arguably arrived in a Wonderland of American politics. It's a place where today's breed of authoritarians and their seconds think at least three impossible things before breakfast, then go out to make it all happen for themselves. And some of the worst of these manipulations continue to occur right here in once squeaky-clean Wisconsin.
Randa's ruling came in one of the most outrageous examples of the political right's increasing legal deviancy: the continuing and unprecedented conservative push-back against the current Wisconsin "John Doe" investigation. That's the case about possible illegal collusion between the Scott Walker political campaign and supposedly independent, third-party conservative groups spending anonymous "dark money" donations on the campaign's behalf. I won't rehash the entire Doe case as it's been well reported in earlier posts here and on other web sites. You, dear reader, probably know the story.
It's the latest political and legal maneuvering that's raised the intensity of this fight to an ominous new level. Non-partisan scholars and progressive activists in the legal community already are worrying that Judge Randa's ruling, which could still quash the Doe inquiry, could be bad news not just with respect to Wisconsin campaign law but the American legal system in general. Political candidates could, if the Randa ruling sticks and then spreads, work in tandem with dark-money "issue ad" groups to evade what's left of state and federal campaign contribution and disclosure rules. Paul Seamus Ryan, Senior Counsel with the Campaign Legal Center, described to the Progressive magazine in Madison how this could work:
"Scott Walker could say to a donor, 'you can give me $10,000 and have it reported, or you can spend millions by running this exact ad, and the money won't be disclosed. Here is the script [for the ad]. The ad doesn’t tell you how to vote, but its going to be really helpful. Don’t worry, it is not a coordinated expenditure, thanks to Judge Randa.'"
Similarly, under Randa's ruling, Walker (or his likely 2014 opponent Mary Burke) could solicit a million-dollar, secret donation for Wisconsin Club for Growth (or the Democrat-supporting Greater Wisconsin Committee), and tell the group how to spend it -- and it would all be legal, as long as the ads run didn't expressly say "vote for" or "vote against." The donation to the dark money group would be effectively the same as a donation to the candidate, undermining the candidate contribution limits, and raising the same concerns about corruption and undue influence as a million-dollar check directly to Walker or Burke.
"This ruling creates a real threat of corruption in Wisconsin politics," says Jay Heck, Executive Director of Common Cause Wisconsin. "It lifts the lid off of coordination rules, and essentially ends any separation between candidates and outside groups."
Previously, one target of the secret criminal investigation "outed" himself and then complained that his and his group's reputation had been sullied. It's an incoherent argument, given that the John Doe mechanism in Wisconsin was expressly designed to prevent public identification of high-profile individuals or groups who have not yet been accused of anything. Doe probes sometimes lead to charges and convictions in regular court -- as the previous Doe probe did when several Walker aides were convicted of felonies and misdemeanors for violating Wisconsin laws prohibiting political work in civil service. But sometimes they don't, and that's why they're kept confidential, and under the control of a regular state judge and, in this probe, a special prosecutor.
The targets of the on-going Doe probe up to and including Walker himself laid out big bucks for big-shot lawyers, who filed a series of lawsuits in Wisconsin and federal court trying to halt the probe based on several different arguments and complaints in several courts. One of those complaints was that the constitutionally protected speech of unidentified plaintiffs -- not yet accused or charged -- had been violated by the mere fact that prosecutors were investigating their activities and issuing subpoenas for documents.
Think about that for a moment. Imagine that a regional mafioso somewhere wants to build a controversial gambling casino in the district of a legislator who opposes the development. Imagine the mafioso contributes huge sums of money on behalf of a challenger to that legislator, taking advantage of the Supreme Court's Citizens United and other legal rulings to launder the contributions through friendly third parties. Further, let's say the mafia don sends his top henchmen to sit in on and in some cases actually coordinate the challenger's campaign strategy sessions.
Now, could you argue with a straight face that if a public prosector was tipped to this activity, he could not look into the matter because that would interfere with the mafia's "free speech"? After all, the mafia could cite the Randa ruling to argue their organization is just a private citizen and just exercising its right to say what it wants, albeit anonymously through third parties and in the context of an electoral campaign involving cash and in-kind contributions. Never mind the mafia's particular motives or methods, though, because ... free speech!
By the Randa standard it might prove impossible to investigate and collect evidence against anyone who could reasonably claim that their activity, however illegal otherwise, was protected speech -- although the conservative movement does seem to have very hazy notions about the precise differences between the first and fourth amendments to the US Constitution, not to mention what each of those amendments actually say and mean. No problem: As with the second amendment, they're working hard to revise what the language means. No nuance, no exceptions. Absolutism rules, at least in the case of those among us who like to act in absolutist ways.
You may conclude I am exaggerating, but before you do, read more of what Judge Randa, a George H.W. Bush appointee, had to say when he originally ruled in favor of the plaintiff, a conservative group called the Wisconsin Club For Growth. Randa not only issued an injunction at least temporarily halting the Doe probe, but also ordered the destruction or return of all evidence collected by the prosecutors. The latter order was soon ruled out of order by a three-judge federal appeals panel, two of which judges were Republican appointees, although that panel allowed Randa to go ahead and affirm his injunction against the Doe probe. Here's Randa's full comment on "circumvention," which might be today's flavor of what in other contexts is called "nullification":
"The plaintiffs have found a way to circumvent campaign finance laws, and that circumvention should not and cannot be condemned or restricted. Instead, it should be recognized as promoting political speech, an activity that is 'ingrained in our culture.' "
Ah, well. Apparently, if potentially deviant or even criminal behavior is "ingrained in our culture," we can safely ignore it altogether because...America! So never mind.
Randa went on to write that recent US Supreme Court decisions have, to paraphrase him, "maximized the capability" of supposedly non-profit, non-political 501(c)4 organizations to exercise their first amendment rights and (now quoting Randa directly) those shadowy third-party groups "may be the best way, as it has been in the past, to address problems of political corruption." Yes, that's right: The best way to save the chickens is to show the fox into the political hen house.
So you see, conservatives apparently believe we can prevent political corruption by defining deviancy downward so that such activity is no longer considered corruption! It's all merely a semantical problem, not a problem of actual law. Moreover, such corrupt activity will now be treated as a means to avert corruption! Mr. Orwell, GOP holding on line 3.
All this makes me think of infamous bank robber Willie Sutton, who in Randa's re-interpretation of reality might be regarded as circumventing the law to maximize his wealth. And if Sutton could use that wealth to enhance his free speech, then who is the government to try to curtail his behavior, or even examine it? Circumventing laws against robbery should not be automatically condemned or restricted, because that might restrict a private citizen's freedom and obviously would amount to government overreach if a prosecutor even dared look into the matter. [Okay, I admit it, the Sutton and mafia thought experiments are snarky, but you never know how far these dudes might try to take all this. Look at that cattle rancher stealing public resources in Nevada; he justified it on the basis of, yes, more "freedom" vaguery.]
Randa, one more time, on his ruling:
"This is not a recognition that quid pro quo corruption is the only source of corruption in our political system or that issue advocacy money could not be used for some corrupting purpose. Rather, the larger danger is giving government an expanded role in uprooting all forms of perceived corruption which may result in corruption of the First Amendment itself. … As other histories tell us, attempts to purify the public square lead to places like the Guillotine and the Gulag."
In other words: Letting the government impose reasonable regulations that limit campaign spending activity and ban candidate collusion with supposedly nonpolitical groups (who, by the way, get valuable federal tax breaks for claiming that very neutrality; remember the IRS "scandal"?) might lead us to an American Gulag, or a "let them eat cake" beheading. Silly. But what's really next? Now that the Supreme Court majority thinks corporations are people with free speech rights, what's to prevent a corporation from selling you a harmful product and then claiming in its defense that it was only exercising its "free speech" when it decided not to warn you about the defect, or maybe even lie to you?
As if all that weren't bad enough, the attorney for the plaintiffs in the Doe case said the Randa "destroy evidence" order that was canceled by the appeals court was merely "a technical oversight." Technical oversight? Gee. Usually in our legal system, when a perpetrator destroys or withholds evidence of a potential crime, that's called obstruction of justice. Perhaps the judge missed that day's lesson in law school.
But this is different, you see, because, as the lawyer went on, "The John Doe probe is an abuse of government power to target private citizens for exercising their free speech rights."
Hmmmm. Or maybe the John Doe probe is a proper exercise of government power in what looks to prosecutors an awfully lot like political interest groups disguising themselves as non-political, while engaging in secret money-laundering and illegal collusion with political campaigns. Sorry, counselor, but "free speech" doesn't mean you can yell fire in a crowded theater, nor does it mean you can subvert state or federal laws banning harmful and illegitimate campaign activity.
But Republicans and their allies all the way through the federal judiciary to the Supreme Court are busy right now defining their deviant concepts about transparency and openness downward. Way, way downward. This below-the-radar campaign is so well organized that at least one web site covering it from the conservative perspective has entitled itself "Legal Insurrection."
And the scariest thing about this federalist-cum-anti-federalist movement? When it comes to legal deviancy regarding transparent government and elections, these guys not only are defining deviancy downward -- they seem to know no bottom.
