In 1785, having spent several years representing American interests, Benjamin Franklin left Paris in possession of a parting gift from Louis XVI: a golden case adorned with the King’s portrait and 408 diamonds. Though the gift was in line with common courtesy throughout Europe, in the new United States such a luxurious present was perceived as having the power to corrupt its recipient. As legal scholar Zephyr Teachout writes in her forthcoming history of the American concept of corruption, Franklin’s snuff box was “a symbol of seduction, addiction, dependency, luxury, and the confusion about the relationship between politics, power, intimacy, and friendship.” In 18th century America such gifts were regulated transactions requiring Congressional approval.
In Corruption in America: From Benjamin Franklin’s Snuff Box to Citizens United, Teachout reminds us that the particularly demanding notion of corruption represented by that early gifts rule is central to American law and democracy. This notion of corruption, she explains, is not limited to the blatant bribes and explicit quid pro quo to which Chief Justice Roberts referred in this week’s McCutcheon v. FEC ruling, and Justice Kennedy in Citizens United before that. The foundational American understanding of corruption encompassed emotional, internal, psychological relationships in an effort to protect the morality of interactions between official representatives of government and private parties, foreign parties, or other politicians.
As the story of Franklin’s gift shows, and as Teachout details, corruption is not just a criminal law term. It plays a larger role in American history, that of a broadly conceived taboo policing the line between acceptable and unacceptable political behavior. Departing from European norms in an effort to constitute a society with civic virtues, the American founders created not only a new country but a powerful new political grammar built on a concern for temptation and influence, not mere material transaction. Inspired by Teachout’s work here, Lawrence Lessig and others mapped how the constitution’s framers used the word “corruption” and found, as Lessig noted in the Daily Beast, that it was “absolutely clear from that research…that by ‘corruption,’ the Framers certainly did not mean quid pro quo corruption alone. That exclusive usage is completely modern.” Complete modernism, of course, is a funny stance for the originalists on the court’s right to adopt.
Google Ngram showing frequency of words “corrupt” and “corruption”
in corpus of American English books, 1700-2000
Teachout describes the laws meant to prevent corruption in American history as prophylactic, in that they were designed to clearly prohibit certain behaviors that may result in undue influence, rather than allowing them and attempting later to identify corruption clearly enough to warrant conviction. The laws, in other words, accounted for ambiguity, instead of imagining some readily sniffed smoking gun accompanying quid pro quo exchange. The latter, of course, is the approach apparently favored by Chief Justice Roberts, and so his court continues its reshaping of American law in that image, ignoring 200 years of judicial respect for public morality. In the absence of strict campaign spending limits the Supreme Court would have us rely on explicit bribery laws that would punish only lazy politicians if defined narrowly, while posing too much potential for abuse if too sweeping. “After two centuries of attempts,” writes Teachout, “no one has been able to craft a bribery law that covers something in between the two, because influence simply doesn’t work through contract-like arrangements.” And yet five members of the current Supreme Court openly prefer bribery laws to prophylactic campaign spending limits.
Teachout writes for a deeper understanding of the complex ways in which private and public morality intersect, and greater respect for the political dangers that flow from untethered self-interest. Her hope is that such an understanding will lead to judicial support for clear rules that pre-commit us, instead of judicial preference for after-the-fact punishments. She argues, too, for legislative campaign finance reform, making the case in yesterday’s Washington Post for a system that would take away the corrupting threats posed by unlimited independent expenditures while freeing politicians from begging “at the feet of oligarchs.” For while gifts from the King of France may no longer threaten, we have today our own lords of industry upon whom political candidates depend for contributions. What we newly lack, Teachout shows, is the deep American impulse to protect our society from their corrupting influence. Corruption in America will be published this September, a moment when unlimited midterm election spending will likely make American corruption all too apparent.