Zephyr Teachout's (previously) 2014 book Corruption in America is an incredibly important, timely book about the way that American policy and politics have been distorted by money, something that's gotten steadily worse as it is supercharged by (and supercharges) wealth inequality.
But Teachout's been on this subject for her whole career, and in 2009, she published The Anti-Corruption Principle in the Cornell Law Review, and as ridiculous as this sounds, if you only read one nine-year-old, 74 page law review article this weekend, you should read this one.
Teachout is a wonderful writer, and has the gift of making abstruse and technical questions of Constitutional law jump off the page, bringing to life the underlying principles and the human consequences of them, along with the stories of the Constitutional framers who established the American conception of corruption, and the wealthy power-brokers who systematically dismantled it over the past 50 years.
Teachout's history revolves around Buckley v Valeo, a decision that has been cited in hundreds of corruption cases, but which is not "an amendment to
the Constitution, or, for that matter, a particularly coherent opinion. But courts treat it as if it carried the weight of all of these." For 40 years, Buckley has been a kind of Dremel tool deployed by apologists for corruption, used to grind away the Framers' expansive conception of corruption to a worn-out little nub that defines corruption as a direct quid-pro-quo in which a politician gets a sum of cash for taking a specific action to benefit the giver — anything less is handwaved away as a form of "speech" (see, e.g., Citizens United).
But as Teachout shows, the Constitutional Convention, the Federalists Papers, the framers' diaries and letters, and the Constitution itself sets out a much more expansive definition of corruption: "self-serving use of public power for private ends, including, without limitation, bribery, public decisions to serve private wealth made because of
dependent relationships, public decisions to serve executive power
made because of dependent relationships, and use by public officials
of their positions of power to become wealthy."
The framers were worried that their new nation would fall prey to the corruption that had turned them away from England. The structure of the government they created in the USA was designed to prevent corruption, by spreading around powers, by making it hard for secret conspiracies to flourish, by creating checks and balances. The contemporary conservative account of this separation of powers is that it is designed to stop a despot, not a crook — but the framers' own words tell a very different story.
The framers were obsessed with Montesquieu and his idea of a corrupt society, "when the people have been corrupted by silver; they become cool, they grow fond of silver, and they are no longer fond of
public affairs; without concern for the government or for what is
proposed there, they quietly wait for their payments." They believed that people could be motivated by a desire for public service, but that this pure intent could be corrupted by money, and created systems to serve as Ulysses pacts in which public servants voluntarily subject themselves to unbreakable promises that make private gain harder to wring from the system. As Bruce Schneier has pointed out, the Constitution can be viewed as a security system designed to protect humans from their own frailties.
Teachout's paper, nine years old, is fantastically prescient in predicting our current moment, right up to last week's Republican tax plan in which rogue Republicans were brought into line one at a time by having language added to the bill to specifically give each of them titanic tax breaks.
It's also a fascinating look at the way that the Reagan years represent a sustained attack on the idea of public service and the common good. Rand and Hayek and their disciples held that acting in your own self-interest produced the best possible outcomes, and their mathematically inclined acolytes at the University of Chicago produced endless shitty equations to prove that selfishness was Pareto-optimal.
But Teachout doesn't talk about inequality and neoliberal economics in this 2009 paper, though I think she'd be more inclined to do so today. We've gone through a tipping point, the Piketty singularity in which it is rhetorically acceptable to observe that markets make rich people richer and magnify their bad ideas into catastrophic ones, without being dismissed as a relic of the last century's Marxist left.
We're undergoing a similar tipping point today. As Trevor Noah recently pointed out, racists have managed to make pointing out racism into a graver sin than racism itself, forcing us to talk about Donald Trump and his base as "ethno-nationalists" and "alt-righter" and other such euphemisms. Soon enough, we'll just call a Klansman a Klansman.
After all, the conservative conception of corruption is obviously wrong. Sam Walton — arch-conservative founder of Walmart — famously refused to allow his buyers to accept anything, even a glass of water, from a seller's representative. He knew that any exchange of value distorts priorities, and would turn his employees into de facto agents of his suppliers. Yet, Walmart directly and indirectly funnels tens of millions of dollars to public servants and insists that this is in no way untoward, and will not distort those public officials' judgments.
Two hundred and thirty years later, courts have become bombarded with cases concerning the law of the political process,
questions about what regulations are acceptable to curb the influence
of money and the seductions of power, and questions about the
proper relationship of speech to self-serving public actors. The idea
of corruption has forced itself on the Court with increased frequency
in recent decades, as legislatures—responding to intense popular
pressure—have repeatedly passed laws attempting to limit the capacity
of groups, companies, and individuals to use money to influence polit-
ical and issue campaigns. It is true that discussions of the concept of
corruption—its meaning and scope—have inevitably emerged from
these cases. But in the last several decades of extremely important
decisions, the anti-corruption principle as embedded in the Constitution has been absent. In my forthcoming book, I offer some explanations for the loss of history (the changing makeup of the Court, the
criminalization of bribery, among others),
190
but for purposes of this
Article what is important is that the history
is
absent. Instead of turning to history or structure, modern Courts turn to
Buckley.
The Anti-Corruption Principle [Zephyr Teachout/Cornell Law Review]
(via Naked Capitalism)
