Spring Reading: Corruption in America I

Submitted by Anonymous on Sun, 03/29/2015 - 20:00

This is the first of four blog posts in which I will look at Zephyr Teachout's excellent new book, <a href="http://books.google.com/books?id=dctwBAAAQBAJ&printsec=frontcover#v=one…; target="”_blank”">Corruption in America</a>: From Benjamin Franklin's Snuff Box to Citizens United (Harvard Univ. Press), from a government ethics viewpoint. <a href="http://www.cityethics.org/content/winter-reading-zephyr-teachouts-forgo…; target="”_blank”">I have already reviewed</a> Teachout's seventh chapter (which appeared separately in draft form), on the history of lobbying regulation, particularly by courts, and have included a discussion of it in <a href="http://www.cityethics.org/files/draft-lobbying-chapter-%20Robert-Wechsl…; target="”_blank”">my new chapter on Local Lobbying</a>. 
 
The first thing that one should know about the book is that it is not a history of corruption in the United States, but rather a history of the idea of corruption in the U.S. Teachout's focus is on "the anticorruption principle," which she believes was central to the Founders' vision of the United States, and which has, in recent years, been lost sight of. Teachout is very passionate about both the principle and the way the courts have turned their back on it, and this passion is what makes the book so readable and, even, moving. Although it is full of history and appraisals of judicial decisions, it is not just an academic exercise. 
 
The most important thing about this book to government ethics specialists is that Teachout's discussion of corruption is limited to influence on government officials via (1) gifts, including campaign contributions, and (2) lobbying. As she says in the book's introduction, "There are important areas of corruption law that this book only lightly touches on, like contracting rules, transparency laws, [and] state and local government conflict of interest laws ..." 
 
Although this is not a book about the core conflicts of interest issues or about the conflicts of interest programs, Teachout does raise a number of issues and ideas that are relevant to all aspects of government ethics. It is these issues and ideas that my posts will discuss. 
 
She also provides some grist for the government ethics mill. That is, she sees government ethics as important. It is refreshing to find someone who locates America's special conception of corruption "at the foundation of the architecture of our freedoms." I don't often see our field given so much respect. She also says things like, "prophylactic rules designed to limit temptations are not a backwater but a cornerstone of what is best in our country. " She ends a section of her introduction by positing a good government advocate's dream: "What if we could add 'anticorruption' to citizens' sense of national identity?" It certainly helps that Teachout was the first director of the <a href="http://sunlightfoundation.com/" target="”_blank”">Sunlight Foundation</a>, which focuses on transparency issues at every level of government. 
 
Teachout shows throughout her book that civil anti-corruption rules are not just a post-Watergate thing. In fact, she shows that they have not only been around since the founding of the country, but were for most of our country's history more important than bribery and other criminal laws. 
 
Corruption 
First, I should give Teachout's definition of corruption or, at least, of the traditional American view of corruption:

<blockquote>[A]n act is corrupt when private interests trump public ones in the exercise of public power, and a person is corrupt when they use public power for their own ends, disregarding others.</blockquote>

This is an unnecessarily narrow definition, in that it leaves out the use of public power to give preferential treatment to others, and it is narrowed even more by Teachout's focus on gifts, which are only one variety of newly-created conflicts of interest (as opposed to the many pre-existing conflicts). 
 
I should say here that I don't like talking about government ethics in terms of "corruption," because of the personal, emotional, and criminal connotations that accompany this loaded term. I tend to use the term primarily with respect to "institutional corruption," which involves misconduct that is both legal and common to a particular government ethics environment. Ethics environments can "corrupt" individuals, but in government ethics it doesn't matter if someone has been corrupted or not. What matters is the prevention of misconduct through the guidance of laws, training, advice, disclosure, and enforcement proceedings. 
 
One concrete example of why thinking in terms of "corruption" is limiting is that in Teachout's appendix listing "Anticorruption Constitutional Provisions," a subject that is one of the most valuable aspects of the book, she leaves out one of the most important provisions, the Speech or Debate Clause in Article I, Section 6: "[F]or any Speech or Debate in either House [Senators and Representatives] shall not be questioned in any other Place." 
 
This clause looked back to the British situation where the executive (the king) could threaten members of Parliament (MPs) with civil suits or arrest in order to get them to do his bidding by preventing or ensuring certain speech or votes. What such threats did was to put the MP’s personal interest in not being sued or arrested ahead of the public interest in having an MP represent his constituents. It also forced the MP to show preferential treatment to the King. In other words, it put the MP into a conflict of interest situation. 
 
The drafters of the Constitution worried that a future president, or anyone with an interest in a matter before Congress, could use the court system to put the same sort of pressure on members of Congress. Rather than requiring that such conflicted representatives withdraw from participation, the drafters of the Constitution chose to prevent the conflict from occurring by prohibiting such suits and arrests. Without the power to sue or arrest, a president’s threats would be meaningless. It was an excellent solution. 
 
It seems to me that the reason Teachout left this constitutional clause out of her book is that it isn't about influence in a positive manner, which is her focus. The Speech or Debate Clause involves influence in a negative manner. A perspective based on conflicts of interest and preferential treatment would have seen not only how damaging this kind of threat could be, but also how ridiculous it is for government officials to use this government ethics clause as a defense against allegations of government ethics violations, including violations of some anti-corruption laws. By focusing on corruption, Teachout has joined a long list of scholars who have missed how damaging the abuse of this clause by government officials has been (see <a href="http://www.cityethics.org/files/lgep1-0%20-%20Robert%20Wechsler.htm#Leg…; target="”_blank”">the section of my book</a> on the Legislative Immunity Defense). 
 
<a href="http://www.cityethics.org/content/spring-reading-corruption-america-ii"… in America II</a> 
<a href="http://www.cityethics.org/content/spring-reading-corruption-america-iii… in America III</a> 
<a href="http://www.cityethics.org/content/spring-reading-corruption-america-iv"… in America IV</a> 
 
Robert Wechsler 
Director of Research-Retired, City Ethics 
 
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Spring Reading: Corruption in America I

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