Is deficit commission guilty of criminal misconduct?

Sam Smith


News that the salaries of two senior staffers on Obama's deficit commission are being paid for by conservative foundations seeking to cut entitlements raises a critical question: is the commission guilty of criminal misconduct?

To get a handle on this, consider the reaction if it turned out that a pro-marijuana foundation was funding the salary of the DEA director or if a rightwing nonprofit funded the Attorney General's salary during the Bush administration.

The legal problem is much the same one as with water boarding. Because the law doesn't specifically say that water boarding is illegal, corrupt attorneys and former presidents glibly argue that it is okay.

But even if foundations are not specifically excluded form using their funds to try to buy government decisions - which is what is really happening in this case - you don't have to have gone to law school to know that there is nothing in the Constitution that gives anyone the right to bribe officials just because they're a non-profit.

I first ran across this sort of abuse last summer and reported:

||||||||||| When we think of bribery we usually envision a check or cash being passed on the sly to public officials. But what if it is right out in the open, concealed only by the fact that the briber is a foundation created by Bill Gates rather than some back street shyster?

Here is how a news story describes it: "Now the foundation is taking unprecedented steps to influence education policy, spending millions to influence how the federal government distributes $5 billion in grants to overhaul public schools. The federal dollars are unprecedented, too. President Barack Obama persuaded Congress to give him the money as part of the economic stimulus so he could try new ideas to fix an education system that most agree is failing. The foundation is offering $250,000 apiece to help states apply, so long as they agree with the foundation's approach."

If you or I did something like this, even at an infinitesimally smaller scale, we could likely be headed for prison. It is a criminal act to use money to influence official positions in such a manner.

And it gets worse, as the story related: "Duncan's inner circle includes two former Gates employees. His chief of staff is Margot Rogers, who was special assistant to Gates' education director. James Shelton, assistant deputy secretary, was a program director for Gates' education division. . .The administration has waived ethics rules to allow Rogers and Shelton to deal more freely with the foundation, but Rogers said she talks infrequently with her former colleagues."

This is even before one considers broadly understood restrictions on political lobbying by non-profits. But then who needs to bother with lobbying if you can just deliver the cash and get your way?

A particularly gross example of this upscale, and so far legal, bribery was revealed by Bill Turgue, in the Washington Post in April:

"The private foundations pledging to help finance raises and bonuses for D.C. teachers have placed themselves in the middle of the city's mayoral race with one of the conditions for their largesse: If Schools Chancellor Michelle A. Rhee leaves, so could the money.

"The private donors have told the District that they reserve the right to reconsider their $64.5 million pledge if leadership of the school system changes. . .

"Should the foundations pull their funding after the agreement is finalized, the District could be liable for at least $21 million -- the amount of private money earmarked to pay teacher salaries. . .

The leadership condition [is] set out in letters to District officials from the Walton Family Foundation, the Robertson Foundation, the Laura and John Arnold Foundation and the Broad Foundation."

On a national scale, we have the unprecedented and increasing control of national education by a foundation created by a single billionaire. The thing driving these standards is not wisdom or public choice but the money:

"I think the reality of it is the Gates Foundation has been the major funder of the national standards and the three major reports on which the Massachusetts recommendation is based are funded by Gates. It's a little like being judge and jury," said Jamie Gass, director of the Center for Education Reform at the Pioneer Institute.

Wrote Matt Murphy wrote in the Lowell Sun:

"The Gates Foundation since January 2008 has awarded more than $35 million to the Council of Chief School Officers and the National Governors Association Center for Best Practices, the two main organizations charged with drafting and promoting common standards.

"In the run-up to his recommendation, Chester told the Board of Elementary and Secondary Education that he would base his decision on analysis being done by his staff, as well as independent reports prepared by three state and national education research firms -- Achieve, Inc., The Fordham Institute, and the Massachusetts Business Alliance for Education.

"Achieve, Inc., a Washington, D.C.-based education-reform organization, received $12.6 million from the Gates Foundation in February 2008, according to data provided to the Washington Post by the foundation.

"The Fordham Institute has accepted more than $1.4 million from the Gates Foundation, including nearly $960,000 to conduct Common Core reviews."

If an individual were to influence governmental decisions with this sort of money, it would be clearly a criminal offense. Why should it be any different for a foundation?

Gates has opened the door to an manifestly corrupt approach to government where a handful of well funded groups and individuals override the democratic legislative process by the prospect of funding or the threat of losing it. If you can't go to jail now for doing this, there should be laws that make it clear that you do from here on out. |||||||||

Now the stakes are even higher: two private foundations with a rightwing political agenda are helping to pay for a supposedly objective report from the White House on the deficit. It is far worse than anything Charlie Rangel may have done, it is definitely unconstitutional, and if it isn't criminal, it sure as hell ought to be.