Abstract
Citizens United has stimulated a cottage industry of legal scholarship on corruption. A prominent stream of this literature is self-consciously atheoretical and suggests that the current state of corruption jurisprudence suffers from a misconceived reliance on liberal political theories and a rejection of the public good. We argue that it is impossible to understand specific acts of corruption without a political theory explaining why such actions are wrong. We show that the current jurisprudence relies on a mistaken intellectual history of the public good and a political theory of American constitutionalism that commodifies citizenship and treats political participation as a market good. Pace Teachout, we cannot draw the bright lines many legal scholars desire without a better political theory of the primary goods we want to protect.
Keywords
I. Introduction
How ought we address the problem of corruption in America? In her impressive study of the history of anti-corruption efforts, Zephyr Teachout has an answer. Her comprehensive history explains how the framers designed the structures of government to channel the pursuit of self-interest toward ends beneficial to the commonweal. Her reasoning shows a much more complex idea of corruption than the reductionist quid pro quo transactional approach that recent Supreme Court cases reflect. Her solution to these misinterpretations is to move away from the bribery model to reconceive corruption as an issue that is both fundamental for, and prior to, other issues of constitutional design. She argues that the failure to understand and tackle corruption has come from the failure of legal and political theories of American Constitutionalism to put corruption first.
While Teachout’s critique dismantles the reasoning of current jurisprudence, her solutions seem more ad hoc and unfocused. This is no accident. Part of her critique of the current state of understanding is that it focuses too much on political theories of justice that themselves fail to take the problem of corruption seriously. We think this diagnosis is mistaken. Indeed, as we suggest, treating corruption as a phenomenon unconnected to any system obscures the pathology it represents and which helped bring us the current jurisprudence. While the disconnect between the idea of corruption and theories of justice has been noted, 1 this fissure persists in the legal literature and legal decisions that rely on it.
Our aim in this article is to show why any practical, political, or legal program to address corruption requires one to understand it within the context of some theory of politics that explains why certain behavior is pathological. Without engaging in this basic step of connecting an idea of wrongdoing to a theory of what is right, moral condemnation risks degenerating into moralism without any connection to political context. 2 Indeed, we show in the latter part of this essay that Teachout’s claims about the framers’ ideas of virtue are disconnected from what they understood to be the political theory of the system they were creating.
In this essay, we address two problems that undermine Zephyr Teachout’s plan to address corruption in the political process. First, we believe that her framing of the founders’ understanding of corruption relies on a faulty intellectual history of both the founding era and the thinkers they relied on. The founders’ view of virtue was less selfless than she depicts. They were not as uncomfortable with self-interest so long as it was properly contained. Second, we think that Teachout’s proposal to understand corruption ahead of, and apart from, any philosophical context misperceives the role of political theory generally, and the meaning of liberal political theory in particular. 3 Our ultimate goal in this essay is to show that addressing the corruption of American democracy requires a political theory of American Constitutionalism that explains why certain behavior is corrupt. One cannot simply develop a new idea of corruption outside of some comprehensive political morality. While we suggest how our political theory might look, in this article we are principally concerned with showing why it is necessary to engage with political theory to solve the problem of corruption in America.
To illustrate the problem, we will focus on Teachout’s interpretation of Montesquieu and his influence on the founders as an example. In part, this problem may be attributable to the originalist strategy she used in her earlier article, “The Anti-Corruption Principle,” to delineate how the framers understood the meaning of corruption and virtue to identify authoritative normative standards and constitutional principles for regulating corruption. 4 Whatever merit such an approach has as a means to influence the judiciary in the present, it comes at the cost of radically simplifying the historical record as described by historians. At the same time, her approach to contemporary legal and political normative theory is also problematic. In our view, she does not seem to recognize its indispensability to address the issues that our analysis raises and to provide a foundation for normative standards that historical research is unlikely to supply.
II. Political Theory and The Role of Justice in Understanding Corruption
Perhaps the first challenge in eradicating corruption is to define what constitutes a corrupt practice. The plasticity of this concept is illustrated by Teachout in a story she tells about a diamond-encrusted snuff box that Benjamin Franklin received from Louis XVI on the diplomat’s departure from France. While the opulence of the gift was regarded as a triumph for Franklin in the French Court, the same splendor made it suspect in the American Congress by clouding the diplomat’s true loyalty. 5 One can take many lessons from this story. One might infer that Teachout regards the concept of corruption as rooted in the political cultures of diverse communities. So, while the sale of military commissions in contemporary America would corrupt the idea of a public office, the sale of commissions in seventeenth- and eighteenth-century Europe, where people sometimes had a property interest in public offices, was simply how that resource was distributed.
This is not the lesson that Teachout wants us to learn from her parable. Corruption, in her view, is not rooted in a particular conception of justice gone wrong. Indeed, she decries the focus on concepts of justice in attempting to understand the nature of corruption. For her, corruption is a matter of public virtue being replaced by private self-interest. Teachout makes a compelling case that the narrow idea of quid pro quo bribery that has emerged from American jurisprudence as the standard for corruption is far too narrow. Yet her solution to this problem rests, in our view, on a misreading of American constitutional history, as well as on a misconception about the role of equality and self-interest in liberal theory. Moreover, her understanding of the role of political theory in defining corruption seems not only wrong but self-defeating. How can anyone call for a recommitment to public virtue, absent some deeper reason that makes such virtue valuable? Teachout does not rely on constitutional grounds because, as we will show, the framers did not share her conception of public virtue. Nor can she rely on a given theory of justice because she rejects any such conception as a source of understanding about corruption.
In this essay, we hope to retain Teachout’s important insight into the problematic construction of corruption in American jurisprudence. Its reduction to mere quid pro quo bribery is a constrained and hollow foundation for liberal democratic government. Yet through an examination of our constitutional history, as well as modern political and legal theory, we hope to construct a framework for addressing the problem of corruption that does not require citizens or officeholders to become angels—which, after all, is something our founders explicitly rejected. 6 While Citizens United is a repudiation of the founders’ concern with corruption, Teachout cannot make this argument, let alone construct the theory of corruption she advocates, without invoking some theory of justice that makes selling public offices wrong. 7 She explicitly rejects this practice, although her misunderstanding of the nature and purpose of political theory means that she simply smuggles these metrics in without realizing she is doing so. Moreover, her description of liberalism and its reliance on equality seems inapt.
a. A Brief Etiology from Speech to Quid Pro Quo Corruption
While American courts may have developed a constricted definition of corruption, one would be hard-pressed to trace this to any general theory of justice, let alone a liberal one. If the path to the current legal status of quid pro quo corruption started with any conception of political morality, then it must be attributed to a peculiar conception of speech that, as it happens, most liberal commentators have rejected.
The contemporary trajectory of democratic corruption jurisprudence began with the case of Buckley v. Valeo. 8 In that case, the Supreme Court invalidated parts of a campaign finance law seeking, among other things, to restrict the ability of citizens to spend money in support of candidates for public office. The court stated that protecting the integrity of the democratic process was insufficient justification to override the free speech rights of people to express their views, through the expenditure of money, for the political candidates and ideals of their choice. It is important to note that the court explicitly gave greater weight to protecting speech than the government’s interest in protecting political equality of everyone in the democratic process. The importance of this factor will become apparent below when we consider Teachout’s assertion that we have ended up in this situation because of liberalism’s excessive focus on equality. It turns out that, had the court been more concerned with equality, spending restrictions might well have been upheld.
The court’s protection of spending as a form of speech raised concerns about access to this speech right. While wealth disparity among individuals is substantial, the disparity of wealth between individuals and for-profit corporations is several orders of magnitude greater. In order to prevent this wealth differential from crowding individual citizens out of the democratic process, many states, and the federal government, had prohibited corporations from contributing to electoral campaigns out of their general treasuries. In Citizens United v. F.E.C. 9 , however, the court extended this spending as a speech right to corporations, arguing that there was no basis to deny them privileges and immunities simply because they are not natural persons. Quite apart from the court’s greater concern for speech over democratic equality, no version of liberalism from John Locke to John Rawls would support the idea that corporations, as the product of contracts themselves, have the type of natural personhood that gives them rights to marriage, religion, or any other privileges and immunities. Locke never said that corporations were all the progeny of Adam nor did Rawls contemplate that corporations would participate behind the veil of ignorance. Indeed, for Rawls, the nature and form of corporations, if any, would be the product of prior, more fundamental calculations behind the veil. So blaming liberalism for Citizens United and modern American campaign law is unfounded.
As if the focus on quid pro quo corruption was not already problematic, the Supreme Court further constrained the protection it provided to democratic government by narrowing the scope of the quo that could get a government official in trouble for receiving quid. In the case of McDonnell v. U.S., 10 the former governor of Virginia was convicted of bribery for receiving over $175,000 in gifts and loans in return for arranging meetings and promoting a friend’s product to state officials who served under him. The Supreme Court vacated his conviction on the grounds that merely promoting a person’s products to government officials in charge of decision-making was not sufficient to count as an official act. Now, in order for a government official to be convicted of bribery, he or she would have to pass a law or issue a regulation to be guilty of corruption. The reasoning of the court in this decision begs the question of whether payments to a government official not to pass a law or not to issue a regulation would count as quid pro quo bribery. Given that not acting includes no official acting, one would think not. If so, this decision is highly problematic given that many, if not the majority of donations are given explicitly for this blocking purpose. When an oil trade group gives money to a candidate, it is often to convince the official not to raise CAFÉ standards; when the NRA donates to candidates, it is so that they will not enact arms regulations.
The reasoning of Buckley and Citizens United presaged the loosening of the quid pro quo standards in McDonnell. The latter two cases institutionalized a money relationship between donors and politicians in the political process, while pretending that it did not arise to a quid pro quo exchange. So long as donations to government officials are defined as the speech of the donor, then there is no quid pro quo. To an untrained observer, the money might look like a material resource being transferred. In the court’s view, however, the dollars are transubstantiated into an exchange of ideas that are simply part of reasoned persuasion.
The problem with this logic is that the donors of these ideas (contributions) have come to expect something in exchange for the benefit of their wisdom (money). 11 So politicians provide access to those who give them money and we need to come up with some way to define the corruptive element away. In the McDonnell case, the Governor was putting the money to personal use rather than political ends. But McDonnell’s desire to be elected is a personal goal as much as his desire for a Rolex watch. Whether he wants the money for his daughter’s wedding or his election, they are both personal goals as he defines them. Except that in the former case it was considered quid pro quo corruption, while in the latter he was merely helping out a constituent. Such help is so deeply embedded in the life of elected officials that prohibiting it would make the system collapse. So instead, the court defined the act of connecting donors with decision makers out of the official responsibilities that can constitute a quid for anyone’s quo. Note that arranging meetings was not excluded because it is so attenuated from what we think of as official duties, but precisely because it is so ubiquitous among public officials. So the court decided that receiving money to do what all public officials regularly do as part of their official functions is not an exchange of money for an official act.
President Trump presented the logical denouement of this reasoning in his first impeachment trial. His lawyers made several arguments, which, if ultimately adopted by a court, would write the crimes of bribery and extortion out of the criminal code. One of these arguments put forward by Alan Dershowitz asserts that it does not matter whether there is an actual quid pro quo arrangement so long as the ultimate sincere intention of the actor is to serve the public interest. One needn’t worry about the contestability of the concept of public interest because, as Dershowitz argued, a defendant’s subjective belief that his or her re-election is in the public interest is sufficient scienter to absolve a public official of any wrongdoing. 12 This position was widely criticized by legal scholars who pointed out, correctly, that the state has no interest in any particular candidate getting elected. Yet Dershowitz’s theory only makes explicit what is logically implicit in the Supreme Court’s jurisprudence on election law. Given that every candidate believes his or her election would serve the public interest, no amount of quid pro quo could constitute corruption.
b. The Anti-Corruption Principle and Systemic Reform
Teachout appears to understand the logic behind this predicament and argues, quite persuasively, that the failure to address corruption stems from the failure by the court to define it properly. Yet she then seems to ignore the court’s reasoning and insists the problem is not the court’s incorporation of quid pro quo exchanges into the political process, but rather a misguided reliance on legal and political theory generally. Her particular targets are liberalism because of its reliance on equality; democratic theory because of its justification of self-interest; and legal and political theory for focusing on the more general concepts of law and justice, instead of engaging with the idea of corruption directly as their primary concern. Most concepts of justice, Teachout complains, relegate corruption to a mere symptom of something else gone wrong. Liberal theorists commit this error, she believes, by making everything subordinate to equality. This is a mistake in her view because equality cannot do the heavy lifting required to root out corruption. Treating everyone equally bad is not the opposite of corruption. This problem is exacerbated in Teachout’s view by the behaviorist model in the social sciences that reduces human nature to atomistic beings perpetually seeking to maximize their own interests. 13 This behavioral model treats the forum of politics as a zero-sum game in which each person only joins with others to the extent it serves that person’s self-interest. It essentially reduces political action to market exchanges.
Teachout believes the only solution is to put corruption front and center of any political theory of justice. In particular, she wants the courts to embrace, or re-embrace depending on one’s view, Montesquieu’s idea of virtue as the political theory of American constitutionalism. This means that all citizens and, a fortiori, those holding positions of public trust, must be motivated by an idea of the public good. Politics in America is not merely the aggregation of selfish private interests, let alone those selfish interests of a privileged few. A focus on what Teachout calls the “anti-corruption principle” would attempt to extrapolate to society at large the care and interest that a parent exercises in the rearing of a child. While ostensibly rejecting Montesquieu’s demand to love only the country as a whole, Teachout embraces the idea that in carrying out their duties, public officials should always prioritize the public good over any lesser group or private interests. 14
How would this translate into practice? How can we know when officials are motivated by the public good over more venal interests given that several overlapping motivations can be in play simultaneously? In criminal law, this is typically done by looking for the intentions of the actors. Teachout rejects this practice on the grounds that it is impossible to know the emotional state of mind of someone when their behavior could be both innocent and corrupt. The answer, in her view, has to be structural: by which she means that certain sorts of behavior must simply be prohibited in bright-line rules. Rather than look at the intention of the actor, look at the impact on the public good. If it’s bad, then prohibit the action completely and clearly. Just as the law requires people to be 30 years old to serve in the Senate, the anti-corruption principle would simply ban gifts and other behavior outright that is corruptive of the public good.
c. Teachout’s Liberal Agonistes
Teachout’s structural approach to corruption by applying clear bright lines has many attractions. Yet her arguments impede its realization. Indeed, we believe that her misplaced criticism of legal and political theory, as well as her mischaracterization of liberal political theory, kicks the support out from under her proposal. Even if people were as self-interested as both political science and economic models of human nature suggest, liberalism would still provide for robust protections against corruption that go well beyond bribery. Fundamentally, the structural approach is impossible without a conception of how the structure should work. One cannot have bright line rules delineating the public good without a clear idea of what that good is. Recall that President Trump’s lawyers thought his quid pro quo exchange was justified by the public good that would result from his reelection.
It is the function of political theory to define what the public good entails. Teachout might eschew political theory by arguing that this job was already accomplished by the framers. So American constitutionalism dictates a particular political theory for us. Unfortunately, as we will show, American constitutional history of the founding era does not provide the bright-line rules that she envisages. Our brief intellectual history of the framers belies her argument. 15 Perhaps more importantly, the judges who have interpreted the framers’ political theory do not appear to have shared her reading either.
Teachout’s anti-corruption principle is rather inchoate. She appears to endorse a whole spectrum of approaches that appear to have nothing in common other than the fact that they are addressing corruption directly, rather than merely as the defect of some other problem. So she endorses the moralism of Laura Underkuffler, who thinks that corruption is the capture of the individual and society by evil, 16 while at the same time endorsing the work of Lawrence Lessig, who argues in a similar vein to Hannah Arendt that the problem of corruption is not evil people but good people operating in structures that incorporate corruptive practices. Indeed, the things that make those structures bad, in Lessig’s view, are not anything evil about the structures themselves but rather that they are incompatible with our constitutional democratic republic. 17
Teachout’s embrace of these and other authors addressing corruption directly raises two important problems. First, the several different approaches she endorses, including the two mentioned above, are incompatible with each other. Underkuffler and Lessig are making the opposite arguments. While the former is arguing that corruption is a dispositional phenomenon of individuals being captured by evil, the latter denies that corruption, at least in America, is the product of evil people. While Lessig does not deny the existence of evil people who bribe officials, he regards the serious corruption that is a threat to the republic as the structural role that money plays in crowding individual citizens out of the political process.
The second problem with Teachout’s endorsement of these various models is that none of them are meaningful outside of some larger political morality that makes corruption each of their target concerns. Underkuffler bases her idea of corruption on some sort of free-floating moral wrong. This approach is merely a circular label that covers anything she believes is evil. The activity she calls corruption is only morally wrong in the context of some larger moral framework that defines it as wrong. Lessig understands this issue. His concern is the preservation of a constitutional republic grounded in democratic control. Were he interested in preserving an aristocratic regime grounded in wealth, his current concerns about campaign financing would fade away.
Moreover, while Teachout blames twentieth-century political theories for their failure to address corruption, they actually offer her the tools to identify what it is and how to defeat it. To show how this can be accomplished, it is first necessary to show the role of theory in developing a general concept of justice from which to infer a particular conception of corruption. Before addressing that issue, however, it is necessary to address her treatment of modern liberal theory.
There are two problems with Teachout’s account of contemporary liberal political theory and its misplaced obsession with equality. The first is that her conception of liberalism fails even to amount to a caricature. Indeed, many of the people she invokes are not liberal political theorists at all. The second is that the people she castigates who are liberal political theorists either do not prioritize equality at all or, if they do, they explicitly reject the interest group pluralism positive social science model she attributes to them. One of those she calls a liberal political theorist, Bruce Cain, is a positive political scientist who rejects the incorporation of moral reasoning into the understanding of political phenomena that is the foundation of liberal political theory. Positive political theory is interested in theory only in the methodological sense of developing descriptive models of human behavior. To the extent it cares about equality or any other moral value is simply in the respect that it purports to be reporting what other people say they care about. It has no independent moral interest in equality or in any moral value because such things cannot be empirically measured or evaluated. At most, moral values can only be reflected in the behavior of people; but then, its value is only as an observable phenomenon. Liberal political theory, on the other hand, attempts to define conceptions of political morality that have moral content. In other words, they are valuable because of their moral argument, not merely as reflections of what a certain group of people might believe.
Teachout’s main quarrel with modern liberalism is that it concerns itself too much with equality, and the wrong type of equality at that. Rather than adopting Montesquieu’s or Rousseau’s vision of equality that is more cognizant of corruption in her view, she believes liberals care about equality only in a formal sense of like being treated alike. Such equality, Teachout correctly observes, would accommodate all sorts of nefarious behavior so long as everyone is treated equally badly. That description of equality, however, has only a glancing relationship to liberalism. Only Bentham’s act utilitarianism could sometimes be accused of justifying this version of equality, and liberals from Mill onwards have rejected it.
The people Teachout names who can plausibly be described as liberal (or libertarian) theorists either do not care all that much about equality or, if they do, they explicitly reject the formal equality that she attributes to liberalism. Targets like John Locke and Richard Nozick do not root their theories of justice in the idea of equality at all. Locke’s primary political concern is the sovereignty of each person in the sense of each person owning his or her self. Locke’s concern with property is motivated by this self-ownership. Because we own ourselves, we own the fruits of the labor that we freely decide to engage in. Locke is not completely indifferent to equality. He points out that as the progeny of Adam, we are all equally entitled to the undeveloped land to which we apply our labor. He also notes that we can accumulate common property into our own so long as there remains enough and as good left for others. But these sentiments are all in service to his concern with self-ownership, and hence, freedom. Even in this subordinate position, Locke’s concern with equality is nothing like the thin equality of like being treated alike. 18
Nozick’s rejection of equality as a patterned form of distributive justice is the core of his idea of justice. While Rawls’ idea of justice includes a commitment to two principles of equality, neither the minimax decision principle for distribution nor the consequent rules limiting inequality and requiring equal opportunity have anything to do with the crude formal equality that concerns her. His conception of equality is rooted in ideas of fairness and the idea that each of us are reasoning creatures pursuing an idea of the good. Similarly, Dworkin’s conception of equal concern and respect specifically rejects the crude majoritarian equality that Teachout attributes to liberalism.
Teachout’s second concern with liberal political theory is that it is too abstract and disconnected from the concrete problem of corruption. In her view, any theory worth caring about must put corruption as its primary concern. This concern is mistaken on two levels. First, it is wrong to describe either Rawls’ or Dworkin’s work as disconnected from problems of corruption. Dworkin’s political theory of American constitutionalism frequently addresses the problem of corruption directly related to the problem of campaign financing. Indeed, his development of the idea of “Partnership Democracy’’ is designed to reject the crude sort of majoritarianism advocated by some constitutional theorists who he believed provided the mistaken intellectual foundation for the flawed campaign finance decisions of the Supreme Court. 19
Yet even if American Constitutionalism were rooted in majoritarianism, as people like Bork and Ely have posited, it is not true that Rawls’ theory of justice is divorced from the idea of corruption. Indeed, his idea of pure procedural justice, which is one conception of his general concept of justice, addresses the corruptive impact of the Supreme Court’s campaign financing decisions. Majoritarianism is a form of pure procedural justice in which there is no agreement on the ends of society. Instead of an agreement on ends, majoritarian justice depends on an agreement that the decision-making procedure is fair. The types of corruption reflected in the American electoral process go directly to the fairness of procedural justice and whether it is a fair decision-making procedure. Rawls’ conceptual framework explains why the campaign finance system corrupts the democratic process in America. His idea of pure procedural justice explains why the bright lines Teachout advocates are necessary in the first place. Their failure to be implemented in Citizens United was not because the majority relied too heavily on Rawls.
d. The Theory and Practice of Theories
The problem isn’t political theory or the liberal version of it that prevents us from developing a plausible principle of corruption. Indeed, far from being the problem, political theory is a necessary part of any solution. Teachout’s critique misunderstands the purpose of theory in general and political theory in particular. The job of theory is to define the things that constitute the world we hope to understand. She says that we need a new theory of corruption, yet her argument focuses on the framers’ understanding of corruption. Teachout isn’t calling for a new theory of corruption, but rather a new constitutional theory of what corruption is under American constitutionalism. Were she actually to focus on a theory of corruption itself, and not what the framers may have thought it was, then she would need to begin with some conception of justice that shows us what is to count as corruption.
Whatever we think corruption means under our system of government, in the most abstract sense corruption represents the failure of a model. Corruption in a political system is some form of failure of a conception of justice in practice. Before one can identify the failure of a model of justice, one first has to define that model. Doing it in reverse, and putting the idea of corruption at the center of a model of justice as Teachout suggests, would be like trying to define a model in terms of one way in which it can go wrong. What constitutes “going wrong” in the first place depends on the conceptual model one has established.
The job of theory is to develop a general concept, not a specific conception of how that concept might be properly or incorrectly implemented. Blaming political theorists for not putting corruption at the center of justice is like blaming Newton for failing to explain how a suspension bridge might collapse without sufficient support. Newton’s project was to explain the force of gravity. Engineers use the concept of gravity he defined to build bridges. But if a bridge design is flawed, or if the contractor uses defective concrete, we don’t blame Newton for not having a better definition of gravity. Engineers and contractors rely on Newton’s theory of gravity, but their mistakes do not suggest that the concept of gravity is wrong, or that we shouldn’t bother to have such a theory in the first place.
The object of Teachout’s discontent is not any known version of liberalism, but a behavioral theory of American Constitutionalism interpreted as a marketplace. Under this model, the idea of political power is simply another commodity like potatoes and televisions that are justly distributed according to market principles. The economic models of law and democracy are interesting and powerful analytical tools. But whether they fit and justify American Constitutionalism is a different matter altogether. Teachout treats liberalism as proxies for Ronald Coase’s idea of law and Anthony Down’s theory of democracy. But those theories are as distant from liberalism and originalist interpretations of the Constitution as is her depiction of Montesquieu.
To begin constructing a political theory of corruption, we must address what it means in our system. In this analysis, political theory and history can unite to identify what corruption means in America. Doing so clarifies both the principles of just distribution of power in America and the institutional remedies to the corruption of that distribution. While Teachout did not provide us with a political theory of corruption, she claims to have told us how the framers wanted us to treat this subject. We must now turn to the actual historical context to test that proposition. Doing so will enable us to see what the social meaning of political power is in America, and hence what steps need to be taken to put its distribution into its proper sphere.
III. Teachout’s Use of History
We recognize the value of Teachout’s originalist strategy to challenge cases such as Citizens United. Yet her attempt to capture the fuller meaning of corruption to the framers carries some significant limitations. For example, she mistakenly assumes that the understandings of virtue and corruption were static or unchanging in the founding era. She also seeks to delimit the meaning of corruption at the abstract level by severing it from any connection to civil strife, inequality, and violence. This kind of conceptual demarcation cannot be tenably applied to the republican tradition. Both critics and defenders of republican polities from their very inception recognized the inter-relationships among these phenomena.
Teachout seeks to recover the normative standards of the founders as a means of redressing the deficiencies she sees in pluralist interest group theory. Yet her zeal to differentiate the founders’ understanding of politics from liberal theorists today leads her to mischaracterize the former. Teachout is wrong in suggesting that the framers believed the survival of a modern republic depended on the collective virtue of either its citizenry or its leaders.
IV. Montesquieu, Republicanism, and the American Founders
Teachout synthesizes multiple traditions to show the founders’ understanding of virtue and corruption. She emphasizes how they drew their ideas from the discourses of liberalism, republicanism, and Protestantism. This interpretive approach fits squarely in the mainstream of historical scholarship. 20 However, critics have raised two challenges to this interpretation which she does not consider. The first is that it ignores another tradition that in some ways cuts across all others, namely an illiberal, undemocratic tradition based on wide-ranging notions of ascriptive hierarchy, which was invoked during the founding era to justify slavery, the subordination of women, and the seizure of territory from Native American tribes. 21 The second criticism of this approach is that it leaves as many questions unanswered as it answers. For example, does “the presence of several traditions in the writings of the founders,” the historian Alan Gibson asks, “mean that they indiscriminately drew on a multiplicity of political traditions without concern for theoretical consistency or coherence? Most importantly, if the Founders coherently combined republicanism and liberalism, then what were the terms of this synthesis?” 22 Far from grappling with such questions, the brevity and generality of Teachout’s survey of the traditions she discusses do little more than suggest some affinities among the conceptions of virtue and corruption.
Such an approach obscures, as James Farr observes, the “[c]onceptual fissures and fault lines [that] ran everywhere, what with the competing languages of classical humanism, natural and common law, Puritan Calvinism, Lockean radicalism, Enlightenment rationalism, and Scottish political science. Those fissures and fault lines exposed many contradictions, and along these lines, conceptual change and political innovation traveled.” 23 In Teachout’s account of this era, nearly all of the ambiguities, tensions, inconsistencies, and holes in the constitutional thinking of the American founders are smoothed over. 24 The problem with her interpretive strategy is compounded by her inattention to the evolution of the founders’ views and goals as they strove to come to terms with their experiences in politics, war, and economic upheavals. It was much easier to be confident in the superior virtue of the American people and capacity for responsible collective self-government in 1776 than it was in 1787. The Constitution’s intricate design based on the premise that “ambition must be made to check ambition” and that the “interest of the man must be connected with the constitutional rights of the place” reflects this more chastened standpoint. 25 The more heavily the founders came to rely on elaborate institutional devices and structures to curb abuses of power, the less confidence they showed in relying on the virtue of either the people or their leaders to do the same.
In explaining the grounds of the founders’ concern with virtue and corruption, Teachout underscores the influence of Montesquieu’s republican model in The Spirit of Laws. 26 “Virtue, for the baron,” she observes, “was necessary for good government, and good structure was necessary for virtue.” 27 He defined this virtue “as love of the laws and the homeland. This love, requiring a continuous preference of the public interest over one’s own. . .” 28 In a popular republic, he added, this kind of commitment includes a “love of democracy” and a “love of equality.” 29 From this basis, Teachout concludes that “corruption for Montesquieu lay in the erosion of this love.” 30 As this erosion occurs, citizens lose their commitment to putting the public interest before their pursuit of private interests. 31
One of the problems with how Teachout invokes Montesquieu as an authority is that he was speaking here of ancient democratic republics. 32 In developing this analysis, he emphasized the importance in politics of enforcing laws to check the growth of material inequality between the classes, establishing measures to prevent citizens from falling into poverty, and providing rigorous education for the young to inculcate virtue. 33 Teachout never examines to what degree the founders were committed to such policies. In his portrait of these classical democratic republics, Montesquieu stresses the austerity of this kind of virtue that entails “a renunciation of oneself, which is always a very painful thing.” 34 Consistent with that view, he contends that such virtue requires not only a love of equality but also a “love of frugality,” 35 which “are strongly aroused by equality and frugality themselves, when one lives in a society in which both are established by laws.” 36 As Montesquieu recognizes, this demanding ethic raises serious questions about its applicability in a modern commercial economy. 37 Ignoring the tensions involved in reconciling such a conception of virtue with a commercial economy, Teachout simply notes that “whereas the most extreme civic humanists believed that one should submerge oneself in the public good, the Madisonian modification was that one should not suppress or override private interests, but rather pursue them in congruence with the public good.” 38 Why Madison made this “modification” or how he expected it to work in practice is never explained. 39
The problems surrounding Teachout’s narrow focus on Montesquieu’s portrait of ancient democratic republics to explicate our understanding of the founders’ views are compounded by the fact that it is at best unclear whether Montesquieu thought this regime model would even be viable under the modern conditions. While he seems to have admired aspects of these ancient republics, it remains unclear whether he believed that it would be desirable to recreate them.
40
Nowhere does Montesquieu argue that republican government is superior to monarchical government.
41
Even if Teachout had attempted to construct a cogent case that Montesquieu believed in their continuing feasibility and desirability, there would remain another unaddressed problem. Namely, that Madison and other founders were sharply critical of the ancient democratic republics.
42
“Had every Athenian citizen been a Socrates,” Madison declared, “every Athenian assembly would still have been a mob.”
43
Seeking to defend the framers’ design of a republic based on the political principle of representation, he blamed the turbulent record of democratic ones for sullying the reputation of republics generally.
44
Teachout ignores not only Madison’s criticisms of democratic republics, but also his praise of representative government as an institutional device for minimizing popular political participation.
45
As the historian Lance Banning observes, this argument for the advantages of representative government served “to turn the classical, or Montesquieuan image, of republics nearly on its head.”
46
For his part, Montesquieu commended the emergence of modern representative government (exemplified for him in eighteenth-century England) as superior to the ancient republican models. In explaining his rationale, Montesquieu observed: The people should not enter the government except to choose their representatives; this is quite within their reach. For if there are few people who know the precise degree of a man’s ability, yet every one is able to know, in general, if the one he chooses sees more clearly than most of the others.
47
Montesquieu’s reasoning here was similar to that of Madison, who invoked the “great republican principle, that the people will have the virtue and intelligence to select men of virtue and wisdom” to represent them in government. 48 Consistent with Montesquieu’s view, Madison stops short of affirming that the people are capable of responsibly participating in actual governing.
In describing eighteenth-century England, Montesquieu referred to it as “a republic [that] hides under the form of monarchy.” 49 In his view, it was the only state in the modern world “whose constitution has political liberty for its direct purpose.” 50 The key to this constitutional order was its separation of powers, which illustrated how the most effective curb to abuses of power is, in his view, an institutional arrangement by which power checks power. 51 Competition between the political parties (Whigs and Tories) and struggles between the executive and legislature helped to energize the parliamentary system. However, as his stinging criticisms of Oliver Cromwell’s commonwealth make clear, Montesquieu did not believe its people and especially its leaders exhibited the kind of virtue he identified with the ancient democratic republics. 52 Reflecting on the customs and mores of a nation that loves liberty, “all the passions are free there, hatred, envy, jealousy, and the ardor for enriching and distinguishing oneself would appear to their full extent.” 53 At the same time, Montesquieu interprets the Crown’s use of patronage to advance its political interests in Parliament as merely another feature that explains how the political system operates. 54 This form of corruption does not extend beyond the people’s representatives, so the people themselves are not tainted by it. Moreover, the English nation’s passion for liberty makes them more resistant than most to the threat of tyranny. 55
In Montesquieu’s view, another powerful factor that has shaped the English people’s character 56 is that their society is the most commercially advanced in the world. 57 Emphasizing the beneficial effects of growing commerce, he observes that it “cures destructive prejudices, and it is an almost general rule that everywhere there are gentle mores, there is commerce and that everywhere there is commerce, there are gentle mores.” 58 A focus on the pursuit of interest encourages a pragmatic rationalism while also having a disciplining effect on unruly passions, such as the love of glory, which was a hallmark of the classical spirit of virtue. “And, happily,” Montesquieu observes, “men are in a situation such that, though their passions inspire in them the thought of being wicked, they nevertheless have an interest in not being so.” 59 However, Montesquieu also called attention to the potential adverse effects of commerce, such as the commodification of all personal and moral values. 60
“Commercial republics like ours,” Hamilton postulated, “will be governed by mutual interest, and will cultivate a spirit of mutual amity and concord.” 61 However widely shared Hamilton’s specific view of the American Republic’s future was at the time, he could have found some support in Montesquieu’s assessment that a democratic republic is, in principle, compatible with the spirit of commerce. While it may undermine older forms of virtue, that “spirit brings with it the spirit of frugality, economy, moderation, work, wisdom, tranquility, order, and rule.” 62 The wealth that commercial activity produces, he concluded, has no necessary negative effect on a republic so long as the scale of inequality among the citizenry remains relatively modest. As inequality grows, so too will disorders arising from it. 63 By this view, then, significant inequality not only corrupts civic life in a republic, but also corrupts the spirit of commerce itself. In her account of Montesquieu’s analysis, Teachout never discusses his understanding of the role of commerce, the character of commercial republics, or civil strife, inequality, and luxury as major factors contributing to corruption. 64
Consistent with his vision of a commercial republic, Hamilton as the first U.S. Secretary of Treasury proposed sweeping financial reforms against the opposition of James Madison and Thomas Jefferson.
65
Through a series of articles published in the National Gazette, Madison sought to awaken the broader public to the danger of Hamilton’s proposals. In his article “Spirit of Governments,” he sketched a typology of three government models to supersede the typology that Montesquieu had developed, but which Madison deemed to be flawed.
66
To what extent Madison’s criticisms here are indicative of his divergence from Montesquieu? Teachout does not say or even show that she has considered.
67
Madison’s first model concerned governments that relied heavily on military power to maintain their authority. His second model was meant to highlight the broader ramifications of the policies that Hamilton and his allies were pursuing: A government operating by corrupt influence; substituting the motive of private interest in place of public duty; converting its pecuniary dispensations into bounties to favorites, or bribes to opponents; accommodating its measures to the avidity of a part of the nation instead of the benefit of the whole.
68
Madison’s third model was his idealized conception of a republican regime responsive to the collective will and aggregate interests of the majority: A government, deriving its energy from the will of the society, and operating by the reason of its measures, on the understanding and interest of the society. Such is the government for which philosophy has been searching, and humanity been sighing, from the most remote ages. Such are the republican governments which it is the glory of America to have invented, and her unrivalled happiness to possess.
69
In contrast to Montesquieu’s model of a classical democratic republican polity, there is no discussion here of virtue as the animating spirit. In this series of articles, he had come to regard “public opinion” as the “sovereign of every free government,” so defenders of the American republican experiment should strive to ensure that it is as enlightened as possible (as he believed he was doing through these articles). 70 However, he also cautioned that in an extended republic, discerning the authentic content of that opinion is much more difficult than in a smaller polity.
The constitutional thinking of the American founders was heavily influenced by the wide-ranging debates among intellectual elites on both sides of the Atlantic. The “critical problem of the eighteenth-century political and social philosophy,” Richard Sher observes, involved “how to reconcile liberty, virtue, and commerce.” 71 While Montesquieu was one of the pivotal Enlightenment thinkers grappling with this problem, his answers to it were hardly dispositive. His approach illustrates not only how complex and even open-ended the issues involved were, but also one of many ways Enlightenment thinkers sought to make sense of a world changing around them. In her account of the founding era, Teachout seeks to show these issues are resolved. Even if that were true, any such solutions would reflect the assumptions, perspectives, and agendas of thinkers situated in the historical context of the late eighteenth century, so any solutions would at best be temporary as the context continued to change. Besides, the founders were often divided on many fundamental issues, which precludes the possibility of ever finding consensus among them on issues of corruption.
V. Prolegomenon to a Theory of Corruption
Teachout’s effort to put corruption at the center of our political discourse is salutary. The Supreme Court’s reductionist approach to campaign finance has normalized quid pro quo relationships in the political process. This has altered the measure of fairness inherent in the pure procedural justice of majoritarianism. People accept the justice of majoritarian outcomes not because they necessarily agree with the policies enacted, but because they accept that once voting accurately establishes a majority, it is fair to let it have its way. Treating money as speech has altered the calculus. Majorities are now forced to give way to a small minority of donors’ preferences when the two diverge. 72
Democratic theorists like Burke might object that a representative is not supposed to be a mere agent of the majority. Burke’s argument only applies, however, when representatives substitute their reason for the self-interest of the majority, not when they merely substitute their own self-interest. American politicians have made it clear that their reason for opposing the majority is motivated by their desire for future donations of money (or speech as the Supreme Court might say) rather than by any interest of their constituents. 73
This perversion of the procedural justice of majoritarianism eliminates the fairness that justifies its use in the first place. One might even call this distortion corruption. Teachout, however, cannot do so absent some conception of how the procedural justice of majoritarianism functions properly in the first place. Teachout’s project is too important to abandon. Corruption is a serious problem that must be addressed even if her program to address it has important gaps. While space limitations prevent us from presenting a full-fledged theory of corruption, we do wish to provide the outline of what such an argument would look like. If nothing else, it will show that a theory of corruption built on an idea of justice that fits our actual historical practice is possible.
To define corruption, we begin at the most abstract level and then apply it with more specificity to each instantiation. At this most abstract level, political corruption is a system failure or pathology of relations amongst people. In particular, it connotes a failure of some people to give others what they owe them. Once we narrow our concern to this moral sense of system failure, or corruption, we can discover what we, in our context, owe each other such that failure to deliver amounts to a corruption of our practice. Here our differences with Teachout become important. Deciding what we owe each other is the province of a concept of justice. But as Rawls noted, people who decide to live in a society of justice do not abandon an idea of, or interest in, where they stand in relation to others. Moreover, our historical account suggests that the framers agreed that, at least in the American context, no renunciation of self-interest was required to live in a society of justice.
This begs the question of which types of self-interest are permissible and which are corrupt. Some insight into resolving this problem can be gleaned from the ethical concept of role differentiated behavior. People enter into relationships with each other which, when routinized over time, give rise to expectations about how people ought to behave. When these relationships are generalized across society, they create group expectations about how people in a certain role are expected to act.
Perhaps the classic example of role differentiation is parenthood. In becoming a parent, one’s moral universe is altered. The calculus of respect one is expected to show toward people is changed. Rather than showing equal concern toward everyone, parents are expected, indeed in some cases legally obligated, to show special concern toward their own children. 74
While parents are not required to completely abandon their self-interest, when those interests conflict with the role-related interests of the child, they must suppress their own goals. Once the parameters of what is owed to others in a particular role are established, behavior that damages those interests amount to corruption. A parent can pursue his or her professional interests by accepting a job assignment in a different state even though the child wishes to remain with his or her friends. However, a parent cannot pursue his or her own interest in sexual gratification with the child no matter how willing the child is, and no matter how much parents might sincerely believe in the benefit of incestuous sexual relationships for child development. In this place and time, our definition of a minor child’s interest and what he or she is owed prohibits this relationship.
While this example presents clear bright lines, the actual legitimate expectations one can expect from different role relationships must be interpreted from the social forms of a community. This entails a historical examination of social and political institutions to see how primary and secondary goods in a community are distributed. That, in turn, requires a theory of justice that explains the meaning of different types of relationships and the legitimate expectations of interests they engender. We must interpret what it means to hold public office, what the concept of citizenship entails, and ultimately what people inhabiting these roles owe each other. This is a multidisciplinary approach including history, as well as social and political theory. 75
Perhaps the clearest models for interpreting the different roles we occupy and the obligations and duties they engender come from Charles Taylor’s work on the interpretation of identity, and from Michael Walzer’s ideas of pluralism and complex equality in his “Spheres of Justice.” 76 Justice, Walzer observes, is about the proper distribution of goods of all types. None of these goods come with a label dictating how they ought to be distributed. Why is a criminal defense lawyer considered a right but not 75-inch televisions? The reason we are inclined to distribute due process rights differently than iPhones is due to our collective understanding of what these goods are.
Walzer argues that there is a plurality of goods in a society that have different meanings. It is by looking at the social practices attached to a specific good that we can interpret, from within the social practice, the appropriate standard of justice for distributing it. On this view there is no single overarching theory of justice for the distribution of goods such as utility, free exchange, or God’s will. The reason why we are content to let people sell iPhones on eBay, but not to sell kidneys, is that we think there is something about the meaning of human organs that make this type of exchange odious. So a society establishes a type of complex equality in which different conceptions of justice rule in their proper sphere. The problem arises when one sphere of justice invades the sphere of other social goods and attempts to exert suzerainty over every sphere of justice. Walzer calls this invasion of one sphere by another tyranny, but he might have just as accurately described it as corruption.
Walzer is particularly concerned that money will rule outside its sphere. Because this good is simply a medium of exchange, it can easily be used to facilitate the exchange of other goods in other spheres. The problem is that inequality in wealth then leads to unequal access to other goods that are not justly distributed according to principles of market exchange. This would be particularly troubling to Walzer if it invaded the sphere of politics because it would threaten the one good that must be distributed equally. That good is citizenship. 77 Any distributive principle from any sphere that threatens equal citizenship is problematic for Walzer because the purpose of government is to rule on the proper sphere of justice for each good. Unless everyone has equal citizenship, every good is at risk of being distributed according to those citizens with political power and not according to what its true meaning might be. While the unequal allocation of money is not inherently unjust, it can challenge the possibility of equal citizenship. If political power is distributed according to market exchange, then unequal wealth becomes a threat to equal citizenship. 78
This is where Teachout needs to begin. While she devotes much thought to the proper moral attitude and requirements of public officials, there is almost no discussion of the meaning of citizenship. 79 We cannot tell what public officials owe to citizens without defining the nature of citizenship. If there is a conflict of interest created by money in politics, then we must know the nature of the primary good we call citizenship. How do we distribute this good and what are people occupying this role entitled to from those occupying other social roles like public officials?
Rather than run from political theory, Teachout needs to provide one of American Constitutionalism that prohibits the sort of monetary contributions that are corrupting our political process. This begins with explaining the goods that are democracy and citizenship. The court has constructed a political theory through its campaign financing cases among numerous other lines of jurisprudence. In Teachout’s reading, this jurisprudence gives pride of place to the self-interest inherent in the democratic theory of interest group pluralism and the legal theory of law as market exchange. The problem with conceptions of law and democracy based on these principles is that they entail the distribution of social goods like power, citizenship, and individual rights as if they were commodities like apples and iPhones.
Following Walzer’s contextual approach, Michael Sandel examined directly the transformation from a market economy into a market society. His approach explains why the benefits of markets apply to some goods, like televisions, but not to other goods, like democratic government. To do that, we must have a particular understanding of each thing we are putting up for sale in the marketplace. 80 So it is necessary to have both an interpretive social and moral account of items like law, speech, citizenship, exchange, and democratic power before we can apply bright lines between what is for sale and what is not.
We cannot complete such an interpretive project in this essay, but we suggest that it begin with the interpretation of these primary goods. That will yield an account of what citizens and public officials owe each other in our conception of democracy. Teachout’s mistake was to confuse liberal political theory with behavioral political science. The latter rejects the interpretation of practices from an internal perspective in favor of the behaviorist observation of amoral human behavior. This practice has stripped the idea of obligations among citizens and reduced the democratic process to the registration of preferences in the model of interest-group pluralism. Law and economics has similarly asked us to change the idea of what role law plays in shaping our social order and our relationships with each other. The moral basis of law and economics is efficiency, and this model asks us to view each other as rational maximizers trying to get the most that we can from each other in voluntary exchanges. In that paradigm, the market exchange for public offices and legislation is not only acceptable, it is the efficient thing to do.
These assaults on law and politics have certainly affected the idea of what we owe each other in our different social, political, and legal roles, and have affected the court’s understanding of speech and democratic participation. Were we to apply Taylor and Walzer’s interpretive methodology, we would see that the meaning of primary goods like citizenship has become commodified so that our relationship to each other is more akin to consumers in a marketplace bidding on goods. Once our relationship has metamorphosed into simple mutual participation in a voting market, what we owe each other, and the interests we have, are altered dramatically.
The relationship of consumers to the retailers of cars and clothing is different from the relationship of citizens to their democratic representatives distributing primary goods like legal rights and political power. Nevertheless, the courts have ratified this commodification of citizenship in many spheres beyond democratic elections. Access to justice, in the form of adequate legal representation, bail, or an actual trial, are just a few examples of this trend. Our sense that elements of the political and legal process are corrupt reflects this misalignment, or even, maldistribution of primary goods like political power and a fair trial. There is a discrepancy between our understanding of the meaning of these goods and our roles in society versus the actual distributive practice.
VI. Conclusion
While our criticisms of Teachout’s methodology are serious, they do not undermine her basic insight of how current Supreme Court jurisprudence radically misconceives the nature of corruption in America or its harm to the political process. What we do show, however, is that to address this problem, a better intellectual history and social and political theory of American Constitutionalism needs to be attempted. Our aim is to point the direction where that future research needs to go.
While the social practice of democracy is under pressure, for now at least, an insider interpretation of what public officials owe to citizens in America begins with equal concern and respect. This sort of equal citizenship is incompatible with the distribution of power according to market principles in a time of historic wealth inequality. Our sense of corruption reflects a system failure where primary goods are being distributed according to incorrect meanings. Public officials who see their role in the political process as retailers of goods for sale will necessarily conflict with the interests of voters who see their role in the political process as equal citizens. Tackling the problem of corruption begins with a clear articulation of this relationship and a realignment of the distribution of these goods according to what we believe is their proper meaning and our proper role in society.