Flipping Their Wigs

The framers would be shocked at how far conservative jurists have narrowed the definition of what constitutes political corruption.

When New York Governor Andrew Cuomo won his Democratic primary last fall, he praised his upstart opponent, Zephyr Teachout, for running a “spirited campaign” and “engaging in the democratic process.” That was certainly an understatement. Though she had once played a key role in Howard Dean’s presidential bid as a very young activist, she’d never run for public office herself and had been living the life of a Fordham law professor when she decided to challenge Cuomo. Teachout spent less than $300,000 on her campaign, compared to Cuomo’s $19 million, yet she still took 34 percent of the vote in a race with one of the most powerful and ambitious crown princes of the Democratic Party.

One lesson of that performance may be that other big-name politicians should also look out for unexpectedly potent insurgent challengers from within their own party. Democrats rooting for someone to take on Hillary Clinton from the left certainly took heart from Teachout’s performance. But another important lesson focuses on Teachout’s individual virtues and talents, which make her someone very much worth watching in national politics. Though a generation younger than Massachusetts Senator Elizabeth Warren, Teachout shares the profile of being both a crusading reformer by temperament and also an academic who has set down her ideas about politics and government with intellectual vigor.

Jan15-Teachout-BooksCorruption in America:
From Benjamin Franklin’s
Snuff Box to Citizens United

by Zephyr Teachout
Harvard University Press, 376 pp.

The key to Teachout’s political philosophy is expressed in her recently published book, Corruption in America: From Benjamin Franklin’s Snuff Box to Citizens United, which she started working on long before she decided to run for governor, and which was still in press at the time of the primary election. She wrote the book, she says, primarily in answer to conservative members of the Supreme Court, who, in a series of decisions climaxing in Citizens United v. Federal Election Commission in 2010, have successively narrowed the legal definition of corruption to the point that it now effectively includes only outright bribery. In Citizens United, for example, the majority struck down corporate spending limits in politics on the grounds that there is nothing inherently corrupting about corporations trying to buy influence with politicians so long as there is no explicit quid pro quo.

Teachout spends much of her book showing just how naive, dangerous, and, frankly, anti-American the Founding Fathers would have considered such reasoning. She makes the point vivid by recounting the story of the snuffbox presented by Louis XVI to Benjamin Franklin upon completion of Franklin’s diplomatic service in Paris.

Featuring the king’s portrait surrounded by 408 diamonds “of a beautiful water,” set in two wreathed rows around the picture, the gift was an object of great material value. No one mistook it for a bribe, but nor did Franklin’s American contemporaries imagine that such Old World examples of money in politics amounted to anything other than an attempt at corrupting him.

The Founders’ alertness to the psychological effects of gifts found expression in the Articles of Confederation and later in the Constitution, which states, in one of its more strongly worded prohibitions, that “[n]o person holding any office of profit or trust under them [the United States], shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state.” Franklin had to turn the gift over to Congress and ask permission to keep it, which Congress granted, making Franklin beholden to that body rather than to the king of France.

The Founders believed that politicians are responsible for furthering the public good, but that they can do so only if their reason is not clouded by corrupting influences. Franklin himself, in a speech written for the Constitutional Convention, argued that executive-branch officials should work for free, so that “posts of honor” do not become “places of profit.” The idea was shot down, but it sparked a debate that led to residency requirements for House and Senate members and a constitutional prohibition against holding appointed and elected office at the same time.

The framers defined the problem of corruption broadly, so that it included not just simple bribery, but, says Teachout, any behavior or system that “leads to excessive private interest in the exercise of public power.” The goal was to create a legal “bulwark against temptation” that would deter future lawmakers and special interests from acquiring too much wealth and power.

Judges followed suit by upholding expansive corruption laws for the next two hundred years. Federal and state laws held that acts can have a corrupting influence even if they don’t involve an overt bribe. Until the 1920s, courts even refused to enforce contracts that were secured by paid lobbyists, much as they refused to enforce contracts that involved prostitution, because lobbying was considered to have a corrupting influence on politicians. As one Supreme Court ruling from 1853 put it, lobbyists “sully the purity” of lawmakers who are supposed to “act from high considerations of public policy.”

The bulwark against corruption was slowly dismantled in the twentieth century, with ideological attacks that came from both the left and the right. Teachout recounts how many liberal legal theorists came to view corruption as not a significant problem in itself. Rather, they saw unequal access to the political system as the main threat. Under this view, what we really need to worry about is the fact that rich people are able to buy more influence than poor people, not the fact that politicians have come to have a transactional relationship with all their constituents.

Teachout, by contrast, argues that while the problems of unequal political influence are real, a distinct problem of corruption arises when serving “the public interest” comes to mean simply being a broker among different contending interests. It’s a view of government that she credibly associates with James Madison, but with which Andrew Cuomo and even many left-wing Democrats might well disagree. Those who celebrate “pluralism,” for example, tend to view the public interest as whatever occurs when all the interests in society are accorded a fair role in the process, not as a truth that is independent of politics and discoverable by reason.

Yet while liberals have played some role over the last generation in de-emphasizing the relationship between corruption and the public interest, the real harm has been done by conservatives, particularly through their increasing grip over the judiciary. Here, Teachout sees the ideological damage coming from legal theorists who have adopted a Hobbesian view of human nature under which no one ever acts for noble or patriotic causes, but only out of pursuit of material self-interest. In effect, the mind-set holds that since there really is no such thing as public spiritedness (only “public choice” game playing and “rent seeking”), there can’t exist anything that corrupts a politician’s pursuit of the public good. Political corruption, if it exists at all, is in the realm of criminal bribery statutes and property crime, not an existential threat to liberty and self-government as the framers of the Constitution saw it.

This conservative view first became embodied in law with the Supreme Court’s 1976 decision in Buckley v. Valeo, which diminished the framers’ concept of corruption beyond recognition even as it extended the meaning of “free speech” beyond any historical meaning. In Buckley, the Court established a new distinction between political campaign contributions and political expenditures. The Court held that regulating contributions is valid, but placing a limit on expenditures is not, because they are less likely to result in “quid pro quo” corruption. The ruling paved the way for future challenges to campaign finance law, and laid the groundwork for Citizens United. It is certainly refreshing to watch Teachout remind jurists who pretend to wrap themselves in the mantle of strict construction just how at odds their views of human nature and the role of government are with those of the framers.

Today, Teachout writes, we need to re-conceptualize corruption so that it once again includes “the vast range of inappropriate dependencies and self-serving behavior that made up the web of the world of corruption for the founders.” Such behaviors include, in Teachout’s analysis, not only the casual buying and selling of influence that is dressed up these days as lobbying or exercises in plutocratic “free speech.” It also includes the corruption of public purpose that inevitably results when economic power becomes too concentrated—a tendency that can only be checked by reinventing another lost tradition of American life: rigorous antitrust enforcement. Bringing about such change is a generational project, she concedes, but surely she is right in insisting that it must begin by reacquainting Americans with the foundational role that the concept of corruption has played in preserving American freedom and democracy.

Daniel Bush

Daniel Bush is a political journalist for Greenwire in Washington, D.C. Before joining Greenwire, he worked as a newspaper reporter in New York City and South America.