The Growing IMMUNITY of Political Bosses from the Rule of Law

Throughout American history, unelected "political bosses" have had political roles ranging in power from influential to controlling. Most never become as well known as Boss Tweed.

Starting in the 60s and accelerating pace in recent years, the laws and legal infrastructure of the United States has been substantially altered in the direction of providing immunity to private-sector political bosses or any other persons or corporations that use the arm of government to hurt others. Although qualified immunity of government officials is a more familiar topic, this immunity is more remarkable because it applies to private sector persons or corporations, who, because they are private sector, are also immune from constitutional claims, which only apply to the government.

For example, under what is called the Noerr-Pennington doctrine, the antitrust or anti-monopoly/unfair competition laws are subverted and immunity is provided for anyone powerful enough to control Congress or the legislature. Precisely, Noerr-Pennington doctrine states as follows:



For its rationale, the Noerr-Pennington doctrine claims to be vindicating First Amendment protection of political speech as well as the right to petition any branch of government for a redress of grievances, and further based "upon a recognition that the antitrust laws, 'tailored as they are for the business world, are not at all appropriate for application in the political arena.' " City of Columbia v. Omni Outdoor Advertising, Inc., 499 U.S. 365, 380 (1991) (quoting Noerr, 365 U.S. 127, 141 (1961).

Let's just note that it is truly odd and striking for this "not for politics" rationale to be stated Because the antitrust laws are plainly and expressly designed to preempt or override the end-product of politics - state or federal laws -- to the extent they are inconsistent with the Sherman Antitrust Act. It is thus a plain lie or a complete distortion to say there's no intent in the Sherman Act to apply antitrust laws to the outcomes of the "political arena."

Nevertheless, the Noerr-Pennington doctrine is invoked to insulate from liability any political bosses or actors who successfully obtain government action for any liability as to EITHER:

A) the petition or lobbying itself, and/or
B) the outcome or results of the petition or lobbying, whether it be a law, court action, etc.

Expansion of Noerr-Pennington Immunity Beyond Antitrust/Unfair Competition Law

Since its formulation, the doctrine has been extended to confer immunity from a variety of tort claims. These extensions include the laws of

1. trademark law: Thermos Co. v. Igloo Products Corp., 1995 WL 745832, *6 (N.D. Ill. 1995) (holding “attempts to protect a valid and incontestable trademark” privileged under Noerr-Pennington);

2. tortious interference, Virtual Works, Inc. v. Network Solutions, Inc., 1999 WL 1074122 (E.D. Va. 1999) (applying Noerr-Pennington doctrine to tortious interference);

3. abuse of process. Brownsville Golden Age Nursing Home, Inc. v. Wells, 839 F.2d 155, 159-60 (3d Cir. 1988) (recognizing applicability of the doctrine to abuse of process and other claims);

4. the broad category of "common law" claims: Baltimore Scrap Corp. v. David J. Joseph Co., 81 F.Supp.2d 602, 620 (D.Md. 2000), aff'd, 237 F.3d 394 (4th Cir. 2001) (holding that Noerr-Pennington immunity applies to common law claims).

And, last for this little list but not least nor the last of all examples:

6. The Ninth Circuit relatively recently held Noerr-Pennington doctrine also immunizes private sector political bosses (not their term used) against RICO Act claims when a defendant has sent thousands of demand letters threatening suit. Sosa v. DirectTV, Inc., 437 F.3d 923, 935 (9th Cir. 2006).

As to RICO act claims for thousands of demand letters threatening suit, please note that insurance companies and such can be fully expected to send such letters in the thousands to demand their mandatory payments of insurance premiums.

But that is not the end of the story, because immunity is not yet total. The last gaps are being filled now.

Even though Noerr-Pennington immunizes the actual petition or appeal to the legislative or judicial branches for any damages caused by this communication, and also immunizes for any damage caused by the end-product result, whether a law or a judicial decision or other form of process from any liability for abuse of process or any of the other claims listed above, there's still something it isn't able to cover:

Liability for a government official acting IMPROPERLY in response to a communication or contact or request for any governmental process of some kind by a private political boss or corporation or other "person" thus depriving the public of the honest exercise of power given to government servants IN TRUST for exercise in furtherance of the public good.

This is where the current case pending before the US Supreme Court comes in, litigating the constitutionality of "honest services" statutes-- statutes that make it a crime to deprive the public of the honest services of government officials. The complaint, generally speaking, is that such statutes, by "vaguely" outlawing schemes or artifices to defraud the public of the honest services of its public servants, are unconstitutionally vague and otherwise don't sufficiently specify what is legal or illegal. {!} See. e.g., http://www.saratogian.com/articles/2009/12/09/news/doc4b1f107211234729907960.txt

Of course, if that argument prevails, the very similar language outlawing schemes or other artifices to defraud in Anti-Corruption statutes, securities fraud statutes, consumer protection statutes, election fraud statutes and other criminal and civil laws will also fall or be subject to directly analogous challenges.

If legislative branches are forced to specifically list prohibited practices, they will likely do so, but this will be no match whatsoever for the creativity of the human mind, especially the human political and criminal minds funded by lots of money. Anti-corruption legislation will be reduced to lists of what's prohibited which also by implication give a green light to any distinguishable practice that is not specifically listed. Heck, the main reason the tax code is so huge and keeps changing, beyond "incentivizing" behavior and pork barrel tax benefits, is to keep up with the enormous intelligence and creativity used to evade income taxation by armies of lawyers and CPAs.



But even without these additional losses of protection from fraud and corruption that would likely occur,just the case itself presently before the US Supreme Court would fill the gap of Noerr-Pennington, and provide an apparently complete immunity for private sector political bosses:



I hope you "enjoyed" seeing the developing terrain and methods for how private sector political bosses and big corporations can use the government like a sock puppet and then claim immunity from any liability no matter how much damage they cause. It's up to us to start out by calling this what it is: illegitimate and void. If the USA means anything it means no one's exempt from the Rule of Law, and that the rule of law, without justice as well, is nothing but naked law which is the favorite tool of tyrants everywhere.

will do in a case before the supremes to be decided in a month or two?

Corporations control what we watch on TV, what we hear on most radio,
what we read in our newspapers and now corporate money for our
candidates???

Look up the real definition of Fascism!!!
It involves corporate influence on all the
levers of power in a so-called democracy.

If that's true, may I say that they should hold out, to the bloody end.

and all restrictions on corporate campaign donations thereby unenforceable, than they can w/ a somewhat limited decision. Justice Ginsburg pointed out the inconvenient fact that many large corporations have significant foreign investors which causes conflict w/ the laws on the books designed to prevent foreign influence in U.S. elections. So a more limited decision may be unavoidable.

The fact that the Supreme court is deciding the case on its merits would vacate any binding effect of a lower court opinion. That's not really in play here (the lower court opinion is not making all restrictions unenforceable to the best of my knowledge, if it is please send links/info)

for affiliation with the Federalist Society and the Federal Rules of Judicial Ethics requiring
NO INVOLVEMENT with the appearance of bias. The Federalist Society has as their agenda the advancement
of conservatism {which they will include in the case of Corporate Fascism}

in violation of current law, how could the FEC prosecute them while the law was being challenged? Wouldn't the FEC feel it needed to wait for the ruling? So there is now a de facto repeal of all applicable regulations, if a corp. is willing to risk the off-chance that the ruling might not allow what they did and FEC was willing to prosecute way after the fact.

On the hand, if Ginsburg's thorny objection forces the majority to go w/ a very limited relaxation of some of the regulations, and they issue the ruling quickly, then most corporate donations will be prevented from the minute the ruling is public.

Am I confused?

The defending party could also conceivably move for a stay pending the outcome, but the judge would likely deny that if the case was just in discovery stage (though a delay in trial might be granted in the hopes of clarifying applicable law)

And thank you for being here. You were missed.

Were it so, Sir. Certainly that was the vision of the founders, but sadly of late I see no evidence that doctrine is still in force.

:hi:

On a happier note, it is good to see you posting again.

-Hoot

people like yourself.

with the fairness of the law being bestowed upon blacks or women, oddly (or the lower class in general, actually). A strange doctrine you'd like to see back in force.

The founders did not exclude blacks or women or the poor from access to the courts. Nor did they create a privileged class which was above the law or separate courts for the landed.

I think maybe you've confused the law with the franchise.

-Hoot

and to a person, they all believed it would be eradicated in their lifetime (it took a few decades longer and a civil war costing 365,000 american deaths, which was no easy task to say the least, and thus its unfair to suggest that "Founders" could have unilaterally accomplished what it ultimately took a civil war to accomplish). For example, Jefferson's first bill introduced at age 26 in the Virginia House of Burgesses was to outlaw slavery.

THen why didn't he release the couple hundred slaves he inherited??? Debt -- up to his eyeballs in debt which only increased due to a lifetime of public service, and since slaves were legally "property" banks naturally had a security interest in all the slaves and letting them go would have been illegal and cause for foreclosure on all of Monticello (a working farm that included the slaves).

As to women, aside from Abigail Adams laying some foundations for feminist awareness (but only foundations) there wasn't even a feminist awareness really on the radar screen. Look at THomas Paine, the architect of the American revolution, who WAY ahead of his time advocated social security and also universal suffrage with no one ever to lose the right to vote, not even "felon disfranchisement" which didn't start in force til after the Civil War btw, except for the act of attempting to take away others' rights to vote, and even then disfranchisement, he held, should only be for a limited time. PAINE IS AHEAD OF US STILL TODAY as most progressives still actually tolerate felon disfranchisement instead of working against this injustice, even if they don't particularly like it....

And yet, Thomas Panie, who was indisputably visionary and effective, writing the best selling (in a single year) publication in the history of america on a per capita basis (Common Sense) was speaking of universal male suffrage. I really believe that if female suffrage was even remotely acceptable to even a strong minority of 10% Thomas Paine would have fought for it. I think Susan B. Anthony and others KNEW that, and that's why they had no problem quoting Paine freely in the women's suffrage movement, and using him in their speeches.

One day our time will be judged for what it did, or didn't do, about felon disfranchisement. For folks like Jefferson on the issue of slavery, simply being against it, writing bills against it and working large parts of his life for its eradication is not enough to escape censure. If that's fair, then I don't know anybody personally who will escape condemnation on the issue of felon disfranchisement, and few indeed who can escape condemnation on any of the other great moral political issues of our day.

The American Revolution was more about Corporations with quasi-governmental authority.

I stand by the comment. Any roots in the Magna Carta do nothing to diminish the statement I made - it does not assert originality of any kind, just that IF America means anything, it must stand for the rule of law plus justice.

The Magna Carta was a settlement agreement between the aristocracy and the king that vindicated certain ideas, but only for the aristocracy.

The stuff about corporations being what the Revolution was "more" about is baloney, unless you mean it was about, for example, tossing the tea of the East India corporation into the water, and Rusticus saying "Beware the East India" company...

legal language so this question may already be answered in the OP and I just didn't understand it.

But, while as you say, all those petitioning Congress appear to have immunity from the law, what about Congress? Eg, if someone comes to them asking for something that is not in the public's interest, even if THEY cannot be prosecuted, isn't it the duty of a member of Congress to refuse to cooperate with any scheme that is against the public's interest? I guess my question is 'are members of Congress covered by the immunity granted to the petitioners?'

I'll read the OP again, but I didn't see anything that gives Congress the same immunity the first time I read it.

Btw, thanks for the post. It's hard to keep up with the many ways they scheme to screw the American people.

from suffering the consequences of their graft long ago. The result of this is that Congress, and the executive, has no obligation to serve their constituents after the election is over.

It is incumbent on us to get rid if them, and even then, they just go through the revolving door into the private sector they helped afterward. Something, BTW, that President Obama said he was going to address.

Let's see what happens...

in the OP. Sorry about missing it the first time.

there's still something it isn't able to cover:

Liability for a government official acting IMPROPERLY in response to a communication or contact or request for any governmental process of some kind by a private political boss or corporation or other "person" thus depriving the public of the honest exercise of power given to government servants IN TRUST for exercise in furtherance of the public good.

Edited to add:

And I see also that they are trying to cover that too. A country of laws is not much use if those laws are not applied. We are letting our democracy slip away without even a whimper.

Thanks to you for keeping people informed. I wonder why the MSM doesn't cover stories like this? :sarcasm:

It's up to us to not hand the media more power by confusing lack of repitition ad nauseum in the media with lack of "reality". DU is real. Neighbors and friends are as real as it gets. I know lots of people very opposed to this kind of stuff, and even more - I don't know anyone who likes it.

the media has the power to reach many more people than we do. Although the internet has compensated for the lack of information available from the media, it still doesn't have the same reach. I do believe that a vast majority of the American people would definitely not support much of what is done in their name, if they knew about it.

Watching CNN this week eg, covering the 'underwear bomber', was simply painful. Rather than bring on people who are credible to discuss the incident, they had an array of Bush era war criminals and people like Chertoff who contributed to the loss of an entire US city, and not once were they asked about their own failures. These were presented as 'experts on security' and included such luminaries as Bremer and Dan Burton. And no challenges were made by the anchors to their presenting themselves as 'national security experts'. On the contrary they were introduced with a long list of their 'accomplishments' presenting them to the viewing public as people whose opinions were valuable.

As long as we have a media like this, the progress will be slow. I imagine sometimes what it would be like to have real news. But I guess the powers that be fully understand how dangerous that would be for them.

residents do NOT accept the official theories of 9/11 -- a phenomenon that HAS TO BE due almost 100% to the power of word of mouth and especially the internet, along with a few underground-style books, etc. Similar things can be said about election fraud and black box voting issues -- no real US media coverage, but widespread awareness nonetheless.

If you turn this very common wish to see "our issues" in the corporate media around (so long as it remains corporate) one is wishing to see a corporate-lens treatment or distortion of these things, which would be, as you describe, PAINFUL and woefully inaccurate.

I think it's best not to wish our issues into the mainstream corporate media unless and until it is freed from corporate and rightwing bias and control. Until then, we need to always remember that what's most real is NEVER in the media, along with the age old advice "you can't believe what you read in the newspaper".

But I know the urge to wish to see one's own truth and the truth generally in the media dies hard, and, ironically, lives side by side with the awareness that the media will distort all it gets its hands on. Go figure! I deal with the same thing but try to be conscious of this tension or contradiction, and instead affirm the truths I receive from friends and other sources besides media.

media as long as it remains corporate controlled, to be trusted with handling real news.

As far as your point that so many do not accept the official story of 9/11, I have been impressed by that. I know that when it happened, the media at first actually did a good job of covering the story, including statements from eye witnesses and questions about the way the buildings fell. Later it appears they got the message and were handed the memos of what was allowed to be discussed. I do think though that people remember what they saw in that early coverage. And the fact that what everyone expected to happen immediately, a thorough investigation, never happened, caused many people to feel uneasy to say the least.

I suppose I wish that a new media was possible, that we had respect for, not a fear of, good investigative journalism which is all but extinct in the MSM. But yes, word does get around, even to those who do not have access to the internet. And things are changing, not soon enough to save the many lives that have been lost. But on a personal level, in 2004 I could not even discuss politics with some of my friends and family members, Republicans who voted for Bush. Now, however, they have changed their views, and are more than willing to admit that 9/11 was most likely cynically used to get us into two unnecessary wars. I know they do not support torture and would not object to seeing Cheney et al prosecuted. I feel good about having informed people of things they did not know, or want to know just a few years ago.

I just wish we could speed up the process as so much is at stake for so many people.

I appreciate your excellent and thoughtful post though.

stained blue dress the media watchdogs are lapdogs. You have to have a stained blue dress. The newspapers are getting their just desserts and the broadcasters will get theirs too. Our media (propaganda) outlets have played a major role in Democracy's demise.

This abuse of the law is a reason some liberals dislike it. When you look into the history of the case you see that Siegelman's persecution relied heavily on expecting a sympathetic judge, a compromised prosecutor, and fraudulent evidence. I'm not a lawyer, but that indicates to me that the HSA by itself wouldn't have worked, so you may be right that it's a reasonable law.

They think that circling the wagons, so to speak, through protective laws will make them
immune from future prosecution when it all goes to shit, which it has already (they're so
insulated, they just don't know it). They're used to fixing the laws so they get away with
everything and they lack a basic understanding of history. When it all goes to shit, people
change the laws to serve the higher purpose of justice and also retribution. They're wasting
their time.

Very well done, and much appreciated!

...Otherwise, you wouldn't be able to spend the loot.

Is it a coincidence the CEOs are so, eh, conservative?

From one BushDespiser to another, it's great to have your input here again.

shall arise and dispel the leeches.

Be well, my friend.

turned the tide against the Republicans. If DUers pick any cause to trumpet, this is the one I would recommend.

prevail. I just hope that all those laws apply just to the federal level, and not local or my cause is lost. Which is what I fear is happening. What if the corporation or political boss is or was a campaign donor to a democratic president's inner circle? And what if the shenanigan they're trying to hide did affect a situation at a local level. Does that mean that a single individual who is looking for answers can expect every criminal agency to dummy up and never tell you who was behind the mess that was left behind?

reversing this mind frame...

So what do you want me to do? Petition the SCOTUS?

When have they ever been held accountable?

Bookmarking.

even though you're the proximate victims of the villains. Just one thing on top of another.

you open up the slippery slope to maybe we can't, either.

Immunity from liability would be a matter of law and is not always there, either. If a corporation "hurts" you, you can sue it most of the time.

This is overwrought and an attempt to stir up hysteria over nothing. Selective legal quotes coming from someone trying to do that are suspect.

-- that is when the legislative branch is successfully lobbied (happens all the time) or when the judiciary is used as a tool or recourse (happens literally thousands of times daily). this is not "overwrought" in any way, and if quotes are "selective" in the sense of omitting material case law or results leading to the opposite results of those suggested then please post them asap. Short of that, your surmise or suspicion that it's overwrought or a naked opinion that "you can still sue" begs the question and is meaningless because it's just a conclusion bereft of any facts to support it.

:kick:

(and Rec)

I'm just sorry it's too late to rec this.
:thumbsup:

:kick: