Corruption, Continued

In 2009, the Cornell Law Review published an article called “The Anti-Corruption Principle” by Zephyr Teachout, then a visiting assistant professor of law at Duke University. In it she maintained that that the framers of the U.S. Constitution were “obsessed” (that was Teachout’s word) with the dangers of political corruption – bribery, cronyism, patronage, the making of laws designed to benefit a few at the expense of public well-being, and so on.

Such practices, and the attitudes going with them, had eaten away, termite-like, at the ethos of the ancient Roman republic and done untold damage to the spirit of liberty in Britain as well. The one collapsed; the other spawned “rulers who neither see, nor feel, nor know / but leech-like to their fainting country cling,” as Shelley in a poem about George III’s reign wrote some years later. But in Teachout’s reading, the framers were obsessed with corruption without being fatalistic about it. The best way to reduce the chances of corruption was by reducing the opportunities for temptation – for example, by preventing any “Person holding any Office of Profit or Trust” from “accepting any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State” without explicit permission from Congress. Likewise, a separation of powers among the executive, legislative, and judicial branches was, in part, an expression of the anti-corruption principle.  

Teachout indicated in a footnote that her argument would be expanded in a forthcoming book, called The Meaning of Corruption, due out the following year. It was delayed. For one thing, Teachout moved to Fordham University, where she is now an associate professor of law. And for another, her law-review article gained the unusual eminence of being cited by two Supreme Court Justices, Antonin Scalia and John Paul Roberts, in their opinions concerning the landmark Citizens United v. Federal Elections Commission decision.

Now Teachout’s book has appeared as Corruption in America: From Benjamin Franklin’s Snuff Box to Citizens United, from Harvard University Press – an appreciably livelier title, increasing the likelihood (now pretty much a certainty) that it will inform the thinking of many rank-and-file Democratic Party supporters and activists.

Whether it will resonate with their leaders beyond the level of campaign rhetoric is another matter. Each of the two parties has a revolving door between elected office and the lobbying sector. While discussing the book here last week, I mentioned that suspicion and hostility toward lobbying were conspicuous in American political attitudes until fairly recently. They still are, of course, but with nothing like the intensity exhibited when the state of Georgia adopted a constitution outlawing the practice in 1877: “Lobbying is declared to be a crime, and the General Assembly shall influence this provision by suitable penalties,” including a prison sentence of up to five years. Other efforts to curtail lobbying were less severe, though nonetheless sharper than today’s statutes requiring lobbyists to register and disclose their sources of funding.

“[T]he practice of paying someone else to make one’s arguments to people in authority,” writes Teachout, “threatened to undermine the moral fabric of civil society…. In a lobbyist-client relationship, the lobbyist, by virtue of being a citizen, has a distinct relationship to what he himself might believe. He is selling his own citizenship, or one of the obligations of his own citizenship, for a fee.”

The lobbyist’s activity is “more akin to selling the personal right to vote than selling legal skills,” as a lawyer does. Nor is that the only damage lobbying does to the delicate ecology of mutual confidence between state and citizen. It “legitimates a kind of routine sophistry and a casual approach towards public argument. It leads people to distrust the sincerity of public arguments and weakens their own sense of obligation to the public good” – thereby creating “the danger of a cynical political culture.” (So that’s how we got here.)

Clearly something went wrong. The anti-corruption principle, as Teachout formulates it, entails more than the prevention of certain kinds of acts – say, bribery. It’s also supposed to strengthen the individual citizen’s faith in and respect for authority while also promoting the general welfare. But private interest has a way of seeing itself as public interest, as exemplified in a railroad lobbyist’s remarks to Congress during the Gilded Age: If someone “won’t do right unless he’s bribed to do it,” he said, “…I think it’s a man’s duty to go up and bribe him.”

Teachout refers to an erosion of the anti-corruption principle over time, but much of her narrative documents a recurring failure to give anti-corruption laws teeth. “Criminal anticorruption laws were particularly hard to prosecute” during the 19th  century, she writes, because “the wrongdoers – the briber and the bribed – had no incentive to complain,” while “the defrauded public was dispersed, with no identifiable victim who would drive the charge.” The concept of corruption has dwindled to that bribery defined as quid pro quo in the narrowest possible terms: “openly asking for a deal in exchange for a specific government action.”

In a colloquy appearing in the Northwestern University Law Review, Seth Barrett Tillman, a lecturer in law at the National University of Ireland Maynooth, suggests that a core problem with Teachout’s argument is that it overstates how single-mindedly anti-corruption the framers of the U.S. Constitution actually were. The Articles of Confederation made broader anti-corruption provisions on some points, for example.

And “if the Framers believed that corruption posed the chief danger to the new Republic,” he writes, “one wonders why corrupt Senate-convicted and disqualified former federal officials were still eligible to hold state offices—offices which could indirectly affect significant operations of the new national government—and were also (arguably) eligible to hold congressional seats, thereby injecting corrupt officials directly into national policy-making.”

Concerned about corruption? Definitely. “Obsessed” with it? Not so much. There is much to like about Teachout’s book, but treating the framers of the Constitution as possessing the keys to resolving 21st-century problems seems extremely idealistic, and not in a good way.