Spring Reading: Corruption in America II

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

This is the second of four blog posts on 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). 
 
A Culture of Gift Giving 
In the book's introduction, Teachout notes that, back in the 18th century, the idea of elected officials accepting gifts was already very different in America than it was in Europe. Gifts had "positive associations of connection and graciousness" in Europe, and "negative associations of inappropriate attachments and dependencies" in America. Americans had a more puritanical view of such gifts as "seductive," "luxurious," and "Old World." Therefore, all gifts to officials, including diplomats, had to be approved by Congress, making them public rather than private. The goal was not to prevent bribery, but rather, as Teachout says, to prevent "a culture of gift giving." More positively, the goal was to create "an aristocracy of virtue and talent" instead of an aristocracy of power and wealth (quoting Gordon S. Wood, Radicalism of the American Revolution (Knopf, 1992, p. 183)). 
 
But even then, it was hard for officials to reject or disclose gifts. Teachout tells a story of Thomas Jefferson failure to disclose an expensive gift from the French king, which ends: "his simultaneous disdain for European gifts and his inability to resist them foreshadow a long American practice: our desire to reject and accept the old practices simultaneously." 
 
Teachout points to an early opponent of officials accepting gifts: Cleinias, as quoted by Plato, who said, "Those who serve their country ought to serve without receiving gifts, and there ought to be no excusing or approving the saying, 'Men should receive gifts as the reward of good, but not of evil deeds'; for to know which we are doing, and to stand fast by our knowledge, is no easy matter. The safest course is to obey the law which says, 'Do no service for a bribe,' and let him who disobeys, if he be convicted, simply die." (Book II, Laws (360 B.C.E.), tr. Benjamin Jowett) Compared to Cleinias, today's good government advocates look very kindly on those who accept bribes. 
 
In the early days of the United States, "bribery" was not a money-for-action crime, but the use of a gift, political office, or even flattery "to persuade someone to change a course of action," whether legal or not. Teachout says that what we now consider bribery "constituted less than one-half of 1 percent of the times corruption was raised." 
 
I like what Teachout says about campaign contributions later in the book, which is applicable to any gifts, direct or indirect:

<blockquote>[D]emocracy's internal threat (responsiveness to donors) is deeply intertwined with democracy's greatest promise (responsiveness to citizens).</blockquote>

This shows that far from being a minor, ethics issue, gift giving undermines a central tenet of representative democracy. 
 
The Republican Tradition and Citizen Obligations 
Two important American traditions found fault with ethical misconduct: the republican and the Christian traditions. Teachout notes that, in the republican tradition, "corruption was the cancer of self-love at the expense of love of country. It existed at a personal and structural level. … [in both traditions] systemic corruption occurs in political/ethical structures that create temptations and encourage private-seeking behavior over public-seeking behavior. Republicans believed it was society's job to channel those temptations." Republicans (with a small r) tied ethical standards to patriotism and national ideals in a way few people still do today. 
 
Teachout summarizes the republican tradition as follows: "The task of structuring political society is to align self-interest with the public interest, not because people will only be self-interested, but because people will often be self-interested." The solutions the Founders pushed for were structural. The best-known structure was the separation of powers. It is only the twentieth-century tradition of individualism that sees solutions in individual decision-making, with no advice, no formal structures, and no sanctions. 
 
In fact, some republicans, at least in the past, felt that even citizens have public obligations, that they should put the nation's interest ahead of their own, and should guard against improper influence on them (especially, back then, influences from abroad, a concern that is still alive in the form of bans on campaign contributions from abroad, the rare area where no showing of quid pro quo is required). Montesquieu, whose philosophical works had a great effect on the Founders' philosophy, felt that the true danger in a republic is mass disaffection with public life, citizens putting their private roles above their public roles, which is largely the case today. 
 
Teachout places great emphasis on the role citizens have to play in preventing corruption, insisting that they have civic duties as important as those of their representatives. A major concern of hers is that citizens are becoming "atomized" into roles such as consumer and taxpayer, and that government is seen "transactionally instead of as part of a social political whole." Teachout is an idealist who passionately wants politics to work the way the Founders wanted it to, although in a modern manner. In her Conclusion, she writes that, relative to officials,, "I believe the public sees corruption more as the country's framers did." 
 
Corrupt Intent and Innocent Activity 
Teachout notes that the Founders' structural, or "prophylactic," anti-corruption rules cover "innocent activity as well as insidious transactions. They stand in contrast to laws that require corrupt intent to convict. They work through changing incentives before the fact instead of punishing activity after the fact." Thus, Teachout (like me) is critical of dealing with corruption via criminal laws (if laws are too narrow, she says, they will only catch very clumsy politicians; if too broad, they can be used to punish political enemies). One of the most important things about her presentation here is that it involves a recognition that some "innocent activity" is prevented by ethics laws, and that is the way it has to be if ethical misconduct is to be prevented, that is, if prevention is the principal goal of a government ethics program. 
 
This is why one of the first government ethics laws was that no gift be given to or accepted by a government official without congressional approval. The difference now is that a gift must be approved (or a waiver provided) by an ethics commission, that is, by a citizen oversight board. The assumption is that a gift may be, or appear to be, corrupting, even if it might be "innocent." If this is not the case, an ethics commission should be allowed to provide a waiver, after a public hearing and with a clear reason given for the exception. 
 
<a href="http://www.cityethics.org/content/spring-reading-corruption-america-i">… in America I</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 II

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