Politicians have been running against corruption since politicians got into the governing business. Zephyr Teachout, congressional candidate and Fordham University law professor, has written a book on the subject that seems very much with us.
She begins by saying the founding fathers were concerned with corruption as inimical to a democracy. They were thinking of England and France, where kings bestowed favors, often for service or payments—a system that kept the royal edifice going, but the people suffered. The founders posited political morality as governing for the public good and not for private benefit.
Teachout traces the history of legislation that attempts to keep government free of corruption. In her view there two kinds of laws. The simplest are bright-line laws that cast easily identifiable actions as criminal or illegal. Limiting campaign contributions is simple and absolute and does not depend on intent, something difficult to prove. Laws preventing all corporations from making any campaign contributions were introduced in 1907 by Teddy Roosevelt. These laws are simple to enforce.
Then there are the laws that try to define corrupt practices. Defining corruption, it appears—after several centuries of trying—is a frustrating and largely self-defeating business. Courts have played it safe; vague notions do not fly. Intent is difficult to establish. There were bribery laws; but what about practices less egregious than bribery—like favoring party regulars, allowing party politics to influence government contracts, dishing out jobs to those who contribute a certain amount to the party in power, or appointing judges known to be politically reliable? We generally think of these practices as corrupt, but they are not generally viewed as corruption of the actionable kind.
Being a law professor, Teachout uses cases to trace the progression of laws attempting to legislate government free of corruption. The post−Revolutionary War Yazoo land fraud case is a good beginning. In that case speculators in pursuit of 35 million acres, more or less, in Georgia made sure that a sufficient number of Georgia legislators were shareholders in the enterprise to assure passage of a bill approving the sale. The deal went through at a purchase price of $500,000 for the land, or 1.4 cents per acre. Outraged, Georgia voters elected a new legislature, a committee reported that the transaction was unconstitutional, and the legislature rescinded the sale. In the meantime land was sold to third parties, who claimed they were innocent purchasers in good faith and entitled to the benefit of their bargain. The U.S. Supreme Court’s Fletcher v. Peck decision (1810) upheld the sale. The Supreme Court did not support the Georgia legislature; it supported the sanctity of contract. Thus an early legislative attempt to correct a corrupt transfer of public land fell victim to a court that supported land speculation and land speculators.
Case law has not treated anticorruption statutes kindly. The last straw was Citizens United v. Federal Election Commission (2010), the case that said any limit on corporate “independent” spending for (or against) a candidate violated the free speech guaranteed by the First Amendment.
In between those cases, lawmakers tried to limit obvious areas of corruption by limiting contributions to campaign funds. These laws were eroded by PACs and other devices. An offer of a job in lobbying to a sitting legislator is a popular way to win over legislators; the practice that is difficult to regulate but is prevalent in Washington, DC.
Teachout makes her pitch to go back to the general principles and reinvigorate the idea of corruption as any scheme or practice that subverts the integrity of democratic institutions of government. Equality, or equal access, is a talking point. Teachout seems to like equality as a measure of corruption; any act that makes one person or interest “more equal” than everyone else is corrupt. In the real world, however, this measure does not work. Everyone in government has friends, and those friends become more equal. They helped the politician get elected, they give him or her money, maybe lots of it, and, surprise! They get better treatment than everyone else.
Teachout laments the latest Supreme Court decisions, which seem to accept the free-market view of how politics works: interests compete in the marketplace for political favor. That’s the way the system works, it seems, and Teachout is not happy about it.
The Court, says Teachout, is Hobbesian. She remains an idealist in the mold of Montesquieu.
Publisher site: Harvard University Press