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:
private entities are immune from liability under the antitrust laws for attempts to influence the passage or enforcement of laws, even if the laws they advocate for would have anticompetitive effects. Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 135 (1961); United Mine Workers v. Pennington, 381 U.S. 657, 670 (1965).
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.
In short, as the International Committee of the Red Cross says about torture, "It is always dangerous to go into too much detail {about torture} -- especially in this domain. However great the care taken in drawing up a list of all the various forms of infliction, it would never be possible to catch up with the imagination of future torturers who wished to satisfy their bestial instincts; the more specific and complete a list tries to be, the more restrictive it becomes. The form of wording adopted is flexible, and, at the same time, precise."
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:1. Immunity for damages resulting from petitions or contacts with Legislative or Judiciary branches, (Noerr-Pennington)
2. Immunity for damages results from the outcome in the form of laws, subpoenas, orders, costs of litigation, regulations, or judgments, (Noerr-Pennington), and
3. (depending on the Honest Services appeal presently in the Supreme Court) immunity in fact from deprivation to the public of the honest services of our public servants/public officials.
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.