The Triumph of Corruption
The Triumph of Corruption
Corruption today represents not a failure of individual ethics, as the Supreme Court renders it, or a side-effect of poorly designed laws, but an intensifying standoff between capitalism and democracy.
Corruption in America:
From Benjamin Franklin’s Snuff Box to Citizens United
by Zephyr Teachout
Harvard University Press, 2014, 384 pp.
Zephyr Teachout is an impresario of the ways that organized people can outflank organized money. In 2014, she challenged New York’s sitting governor, Andrew Cuomo, and took more than a third of the vote in a last-minute, scantily-financed primary challenge in which he outspent her about 40-1. A decade earlier, she shaped Howard Dean’s internet strategy, making his the first campaign to realize the web’s long-touted organizing potential. But while Teachout believes in the twenty-first-century version of shoe-leather politics, she argues in Corruption in America that superior footwork is not enough. Organized money is going to win unless we change the rules of politics, constitutional law, and the economy.
The Supreme Court drove—or beckoned—Teachout to her topic. The Court’s opinion in Citizens United, which has become a notorious symbol of money’s power in politics, gave “corruption” a central place. The Court reasoned that because political spending is a form of speech, it is protected by the First Amendment, and Congress can restrict it for only one reason: to prevent “corruption.” The Court defined corruption as, basically, an explicit bribe, a quid pro quo in which a politician trades a favor for a donation or a political ad. That is a very thin stay against money in politics. It leaves essentially no room to limit the massive “independent expenditures” by individuals and corporations that flooded recent campaigns.
It is a bleak irony that the Supreme Court’s narrow definition of corruption has swelled a great wave of political spending, which the justices define as ordinary democratic politics, and which many ordinary citizens would call corruption. After all, many of us find it obvious that a system awash in “dark money” and the empires of patrons like Sheldon Adelson, Tom Steyer and a handful of other magnates is thoroughly corrupt, whatever five of the nine justices of the Supreme Court call it.
This more ordinary sense of corruption has deep historical roots. Teachout dug into the records of constitutional debates and found that the framers thought of corruption in a way that is very different from today’s Supreme Court, and much closer to the angry opponents of Citizens United. The founders’ conception of corruption may support the common perception that our politics, influenced as it is by organized capital, is corrupt.
Eighteenth-century republicans were obsessed with an idea of corruption that was not at all restricted to bribery. For them, a politician or official became corrupt when he was inappropriately dependent on some patron or superior and put that person’s interests before the public interest. What made you corrupt was that you came to power, or stayed there, on someone else’s say-so, which meant your judgment was always susceptible to your patron’s priorities.
This concern had its ideological and political roots in English politics: Whigs abhorred the corrupting influence of royal patronage, and reformers denounced the “rotten boroughs” from which a few hundred villagers, generally in the pocket of some local grandee, could send the grandee’s favorite off to Parliament. This old idea of corruption also reflects a republican vision of the political citizen, one dedicated to the commonwealth over private advantage. To prevent this kind of corruption, Teachout shows, the Constitution’s framers ensured that Congressional districts would be updated regularly and prohibited Congressmen from serving simultaneously in other paid jobs—such as plum positions that the president might hand out. In these and other respects, the Constitution is an anti-corruption document. One of the framers’ goals, therefore, was not merely to protect free speech but also to ensure the freedom of politics from the corruption of private interests.
The kind of corruption that the Constitution was written to prevent, then, is not bribery, as recent Supreme Court rulings have narrowly construed it. It is structural corruption: dependence that emerges from the way the system brings people to power and keeps them there. This matters because when people call our politics corrupt, they are pointing to structural corruption: the way private money brings politicians into office, keeps them there, and absorbs their attention as long as they serve. Bribery is a crudely inadequate description of our problem—it describes only one type of political corruption—and yet by constitutionalizing corruption-as-bribery, Justice Kennedy and the Court’s four conservatives have exiled a worry about structural corruption that is at the base of the document’s design.
How did we fall so far? As usual with history, the story is much more complicated than a simple decline from virtue. First of all, early Americans disagreed about everything (like their descendants), including corruption. The usual argument against a broad conception of corruption today is that it is a moralizing and subjective notion, impossible to pin down reliably in the hurly-burly of interest, ideology, and influence that is politics. Teachout traces this skepticism back to the early republic, alongside the anti-corruption civic idealism that she wants to revive. Chief Justice John Marshall argued in 1810 that corruption is in the eye of the beholder and no issue for judges to decide, as he upheld a massive, dirt-cheap sale of public land by a bought-and-paid-for Georgia legislature.
Teachout replies that the skeptics have a point—but one which is rather beside the point. Of course it’s difficult and controversial to assess whether a specific vote or piece of legislation is corrupt or not. If you tried, you would run aground on the futility of mind-reading, and probably end up falling back on a narrow and legalistic definition—like bribery, where the Supreme Court ended up. But this is precisely the reason to regulate structural corruption, the channels of influence and dependence that skew decisions toward narrow and powerful interests.
Our current law of money-in-politics is an unintended reductio ad absurdum of the idea that corruption could be regulated on the individual rather than the structural level. Taking that path will inevitably lead either to clashing versions of moralizing or to narrow legalisms, like bribery. Battling structural corruption, by contrast, doesn’t mean calling your political opponents “corrupt” because they listen to the wrong people, or take account of the wrong interests. It means shaping the channels of political power so that many—ideally all—perspectives and interests will have some path to power, not just those that happen to be backed by great fortunes. Structural corruption can do without any idea of personal corruption. Once patronage and dependence are in place, they are sure to have their way, often subtly and even without self-aware bad faith.
Jill Lepore has described Teachout’s elaboration of founding-era republicanism as trying to “out-original the originalists.” Originalists believe that the views of the founding generation should decide the meaning of constitutional law today. Teachout’s use of history is something else: that of a rational traditionalist. She thinks there is a lot to learn from the way earlier generations of judges, politicians, citizens, even our “founders” talked about corruption. She thinks they knew something about power, wealth, and self-government that has been eclipsed by a peculiar modern blend of sophistication and myopia. Originalism rests on either a profoundly pessimistic judgment on the ability of the living to govern themselves or a superstitious reverence for national fathers. Teachout’s approach to founding-generation ideas expresses a willed optimism that a country can make good use of its imperfect history.
Teachout’s scholarship outside this book points toward a political economy of democracy. She has helped to revive the idea that antitrust law is not just economic regulation but also political regulation, because it structures the economic power that will translate, one way or another, into political power. She and her New York primary running-mate, Tim Wu, have pointed to the importance of next-generation antitrust-style problems, such as the danger that media-and-internet companies like Time Warner may close off equal public access to the web in favor of fast-tracking profit-making content (or net neutrality, as it is commonly referred to). Antitrust law—and Teachout and Wu’s invocation of it—contains powerful insights: that economic structure involves power, and that controlling and directing that power is the task of a democracy.
Teachout’s recognition of the need to reshape the economy and its laws in the service of democracy highlights a chasm between early Americans’ idea of structural corruption and the problems she wants to confront today. Although she doesn’t put it this way, Teachout’s theory of structural corruption arises from a confrontation between democracy and capitalism. At the center of her vision is the growing economic inequality in this country that poses a challenge to its claim to uphold equal citizenship. A resurgence in great fortunes has taken the country to levels of economic inequality not seen since before the Depression. In 1976, the Supreme Court decided Buckley v. Valeo, protecting political spending as speech and invalidating all spending limits on campaigns and individuals. When money accumulates in economic life, it tends, by an almost hydraulic law, to spill over into other spheres: the rich will try to buy cultural cachet, social standing, influence over ideas, and, of course, political power.
There’s a lazy version of this observation, a favorite of pundits like David Brooks, which amounts to a shrug: money will get into politics somehow, so why worry? Teachout, on the other hand, is exhorting Americans not to become a country of David Brookses. Her point is that structural corruption today crystallizes a conflict between an economic order that fosters—even celebrates—inequality, and a political ideal of equal citizenship. Economic inequality threatens democracy when it translates into deep, systemic inequalities in political power. This is the problem that “corruption” names today: not a failure of individual ethics, as the Supreme Court renders it, or a side-effect of poorly designed laws, but an intensifying standoff between capitalism and democracy.
It’s unclear where Teachout’s civic-minded founders would fall in this conflict between democracy and capitalism. George Washington, John Marshall, and many others were land speculators who benefited hugely from sweetheart deals like the Yazoo giveaway, the Georgia boondoggle that occasioned Marshall’s see-no-evil refusal to put the concept of corruption to use. They might well have signed onto Ronald Reagan’s pronouncement that he wanted to see an America where anyone could become rich—especially the prominent and well-connected. The Constitution contains clauses forbidding states from legislating debt relief, intended to ensure that creditors got paid. James Madison, in his famous discussion of “faction” in Federalist Number 10, cites redistribution as an evil that constitutional design should prevent. Madison thought a majority might well support such policy—he was responding to the fact that majorities in some states already had; but in his view, such a majority would be a “faction” because it would be operating against the (property) rights of other citizens and the long-term (economic) interests of the country. In other words, a people that pressed back democratically against economic power might be acting against the public interest, as Madison and other elites imagined it.
The founders wrote a constitution intended to ensure robust protection of the interests of wealth; they mainly shared those interests. So, when Justice Kennedy wrote in Citizens United of the importance of ensuring a political voice for the “most significant” (largest) economic interests, he was sporting a long constitutional pedigree, and not one Teachout and her fellow progressives would embrace.
For Teachout, un-corrupt government—the government she hopes we will have—is defined by civic virtue, a propensity to consider political questions in light of the public interest, rather than one’s selfish interest or the interest of one’s patrons. She writes with intensity about this sentiment, describing it as a form of love—and there is no indication that she would take that back after running a campaign of her own. Although their language would have been more neo-Roman than Romantic, many of the founders would have agreed.
But can we call public interest into being by urging people to care about it? Or is it just a sententious name for one’s own interests and the views one happens to hold? After all, Madison’s view that debt relief and redistribution were corrupt and factional goals may seem obviously self-interested to progressives today, but he and his cohort were our pioneers in the conceptions of civic virtue and structural corruption. Where is virtue’s lodestar in today’s wearying partisan politics?
This difficulty might be a weakness when it comes to defining the contours of Teachout’s own vision of civic virtue. Isn’t structural corruption too somewhat in the eye of the beholder? But part of Teachout’s point is that today’s Supreme Court seems to have decided this question without saying so: its decisions presuppose that politics is just a war of interests. Its cynicism is highest when assessing Congress and state legislators: the money-in-politics cases effectively treat any law regulating elections as a bid to entrench incumbents and their friends. That might seem reasonable in the abstract, but the facts somewhat belie it. The spending and donation limits that the Supreme Court has struck down in cases like Citizens United and McCutcheon (invalidating a cumulative limit on individual political donations) are often very plausible efforts to limit the role of money in campaigns, bearing a fair resemblance to laws that work well enough in other countries widely regarded as free and democratic. They are not, as the Supreme Court has assumed, palpable acts of narrow legislative self-interest.
Teachout sees the Supreme Court as equal parts cynical and naïve, and in all the wrong ways. The Court cynically sees legislation governing elections as venal and selfish, in effect denying the very possibility of civic virtue in the ground rules of politics. It seems at the same time complacent about democracy. But it is also historically naïve. Unlike early Americans, who were obsessed with the decline and fall of republics, the justices seem to suppose that, once established, democracy cannot fail. This view flies in the face of history. It also suggests why the justices seem so complacent about the danger that their own rulings will erode democracy.
It is unclear what the Supreme Court justices think they are doing in the money-in-politics cases. Maybe they have such confidence in American democracy that they see money, at worst, as a distraction in our flourishing polity. Maybe they have such faith in capitalism that they want to ensure that money has a voice, over and against the kinds of redistribution that once set Madison’s teeth on edge. Maybe they mistrust Congress with a fierce suspicion that no legislative record can assuage. First Amendment law has long been premised on a healthy wariness of government restricting argument and ideas. With the money-in-politics cases, this wariness seems to have merged with the general contempt for government, legislation, and politics that has consumed a disillusioned yet partisan country in the last decade-plus. In this vision, the idea that there is a public interest or civic spirit that could play the good against the bad of corruption seems rank nonsense.
It’s an irony of neoliberal politics that, guided by a reflexive contempt for democratic politics, it tends to starve, constrain, and distort governance until it has produced contemptible institutions. In constitutionalizing a politics where everything is for sale except the vote itself, the current Supreme Court is fairly called neoliberal; but its neoliberalism is most acute in this self-fulfilling prophecy. “You don’t disrespect politics yet?” the justices seem to ask: “Well, just wait!”
Against this cycle of cynicism-inducing cynicism, Teachout’s willed optimism—her faith in civic virtue and the politics of public interest—is a gamble, but it also might be a way out. Famously, people have to make history under conditions they don’t get to choose. One of those conditions, which they do halfway choose, is what they believe is possible. For Teachout, the point is: if people do not believe that citizenship is distinct from being a worker, consumer, or boss; if they do not believe it is possible to think and argue in good faith about something called the public interest; if they do not believe democracy really is more than an awkward attendant to twenty-first-century capitalism; then the idea of corruption will no longer make sense to them, and they will have lost a measure of their power to govern themselves—that is, to make history. That power is especially important and fragile at a time when economic inequality is weakening the institutions of democracy that are our only means for creating a more just society.
Americans live in an economic order that tells us in a hundred daily ways that all choice, even political choice, is consumer choice, all efforts and relationships are investment, all rationality is economic rationality—and that democracy takes a back seat to markets. Teachout wants us to understand the damage caused by this way of thinking and to recover an alternative politics of civic virtue and public interest. But the mainstream of republican idealism has never entirely reckoned with the great fortunes and small thefts that dispose of so much of the country’s power, and until we begin to make this conflict between democratic equality and capitalist inequality more explicit, this alternative politics will only offer half an answer. But Teachout has touched the right nerve. Democratic citizenship has often been the version of equality that resonates most strongly with Americans, the thing they will fight for, even against long odds and great power. We should renew that fight while we still can.
Jedediah Purdy teaches at Duke and is the author, most recently, of A Tolerable Anarchy: Rebels, Reactionaries, and the Making of American Freedom.
