Does the Constitution protect corruption?

tags: Constitution, Zephyr Teachout

Jill Lepore, a staff writer, has been contributing to The New Yorker since 2005. She is the author of “The Name of War,” which won the Bancroft Prize; “New York Burning,” which was a finalist for the Pulitzer Prize in history; “The Whites of Their Eyes”; “The Mansion of Happiness,” which was a finalist for the Carnegie Medal for Excellence in Nonfiction; “The Story of America” (2012), which was short-listed for the PEN Literary Award for the Art of the Essay; and, most recently, “Book of Ages,” a biography of Benjamin Franklin’s sister Jane.

...the political consultant Mark McKinnon and the Harvard Law School professor Lawrence Lessig are using the deregulation of the campaign- finance system to raise what they hope will be an overwhelming amount of bipartisan money from small and big donors to get both Democratic and Republican reformers elected to Congress, so that they can support efforts regulating the very spending that got them elected. Lessig and McKinnon have launched a Super PAC called Mayday, one of whose objectives is to make Super PACs illegal. Lessig says, “Embrace the irony.” Tragedy, more like.

Zephyr Teachout’s argument in “Corruption in America” follows an argument that Lessig made in his book “Republic, Lost” (2011). Lessig countered the Court’s cramped understanding of corruption [that it's corruption when there's a quid pro quo] with a sprawling one, defining corruption as “the economy of influence.” By that, he meant the overpowering—by outspending—of the will of the many by the will of the few, a corruption he describes as “the banal evil of second-rate minds who can’t make it in the private sector and who therefore turn to the massive wealth directed by our government as the means to securing wealth for themselves.” Teachout believes that Lessig’s definition of corruption is the framers’ definition of corruption. If Lessig’s gambit is to outspend the spenders, Teachout’s is to out-original the originalists. The first half of her book is a long essay on the role of corruption in eighteenth-century political thought—Hobbes and Montesquieu, Pufendorf and Locke. Indisputably, in the eighteenth century corruption meant a great deal more than bribery. “By corruption, the early generations meant excessive private interests influencing the exercise of public power,” Teachout writes. Of the hundreds of times that the subject of corruption was raised during the Constitutional Convention and the ratification debates, as Lessig pointed out in an amicus brief in McCutcheon, only a handful of times—about one per cent of the time—did it mean anything as narrow as quid pro quo.

This isn’t uninteresting, but it’s not especially helpful, either. Teachout, while writing from the left, makes the same rhetorical moves as the Tea Party. She loves Benjamin Franklin and James Madison, and she is certain that they are on her side. Her chief complaint is that Americans have abandoned the Founding Fathers. Another complaint is that “the Court has become populated by academics and appellate court justices,” rather than by people who have experience with “real problems.” Admittedly, there are only so many cards in the populist deck. But gushing about the Founding Fathers and demeaning intellectuals is a weak hand.

Only in passing does Teachout note that an element of corruption, in republican political theory, is “dependence.” The Declaration of Independence declared independence from a corrupting dependence on the king and his council. Another and deeper meaning of dependence had to do with structural economic dependence on other people: the dependence of women on their husbands, of servants on their masters, of workers on their bosses, and of tenants on their landlords. In the early American republic, people who were economically dependent on other people were not allowed to vote, because their votes were considered inherently corrupt: they lacked the independence that made civic virtue possible. Property requirements for voting were struck down, in the nineteenth century, only by the force of the argument that the cost of disenfranchising the dependent outweighed the risk of corruption. So, while it’s certainly true that the attempt to stamp out “corruption” was very much a part of the founding of the United States, it’s not an idea that can simply be lifted out of the eighteenth century to overturn Citizens United, any more than “liberty” can be lifted out of the eighteenth century by the Tea Party to overturn the Court’s decision on the constitutionality of the Affordable Care Act.

There may be good reasons to define corruption broadly. But fighting corruption through democratic action requires embracing a set of ideas about democracy that the framers did not...

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