Plutarch’s exposition of Caesar’s life touches on a couple of problems that are near and dear to me in my practice. First, he discusses a method used by Roman judges to avoid the problem of Clodius, a wealthy man, who was on the one hand clearly guilty of serious crimes, but on the other hand a favorite of the masses. The solution was that Clodius escaped punishment, because “most of the judges giving their opinions so written as to be illegible that they might not be in danger from the people by condemning him, nor in disgrace with the nobility by acquitting him.” When I read a judicial opinion that ducks the real issues of the day by appeal to procedural difficiency created by the judges, or worse yet, by the creation of a legal fiction, it seems they are employing a modern version of this technique.
Next is a discussion of Caesar’s practice of paying bribes to get his friends into office, and then having those same friends appropriate large sums of money to Caesar. As Plutarch explained, “It seemed very extravagant to all thinking men that those very persons who had received so much money from Caesar should persuade the senate to grant him more, as if he were in want.”
These two came together when the U.S. Supreme Court in Citizens United claimed that the lack of coordination between corporations who sponsor ad campaigns and the beneficiary of those campaigns means that it is impossible that at some time in the future the corporation could demand a political favor as repayment for that expenditure. This time delayed quid pro quo is either ignored, or even endorsed, by the justices in the majority in recent campaign finance cases.
I fear that the result of preventing regulators, or in the case of Arizona Free Enterprise Club v. Bennett the citizens of a state, from deterring corruption, the Court will doom us to the same extravagances observed prior to the fall of the Roman republic.