Snuffing Corruption

Zephyr Teachout's Corruption in America charts a steady drift from early idealism to the cynical status quo. Scott McLemee takes a first look.

September 24, 2014

Writing in 1860, a journalist depicted Washington as a miserable little Podunk on the Potomac, quite unworthy of its status as the nation’s capitol. He called it an “out of the way, one-horse town, whose population consists of office-holders, lobby buzzards, landlords, loafers, blacklegs, hackmen, and cyprians – all subsisting on public plunder.”

"Hackmen" meant horse-powered cabbies. "Blacklegs" were crooked gamblers. And cyprians (lower-case) were prostitutes -- a classical allusion turned slur, since Cyprus was a legendary birthplace of Aphrodite. Out-of-towners presumably asked hackmen where to find blacklegs and cyprians.

But sordid entertainment was really the least of D.C. vices. “The paramount, overshadowing occupation of the residents,” the newsman continued, having just gotten warmed up, “is office-holding and lobbying, and the prize of life is a grab at the contents of Uncle Sam’s till. The public-plunder interest swallows up all others, and makes the city a great festering, unbearable sore on the body politic. No healthy public opinion can reach down here to purify the moral atmosphere of Washington.”

Plus ça change! To be fair, the place has grown more metropolitan and now generates at least some revenue from tourism (plundering the public by other means). Zephyr Teachout quotes this description in Corruption in America: From Benjamin Franklin’s Snuff Box to Citizens United (Harvard University Press), a book that merits the large readership it may get thanks to the author’s recent appearance on "The Daily Show," even if much of that interview concerned her remarkable dark-horse gubernatorial campaign in New York state's Democratic primary, in which anti-corruption was one of her major themes. (Teachout is associate professor of law at Fordham University.)

The indignant commentator of 1860 could include lobbyists in the list of ne’er-do-wells and assume readers would share his disapproval. “Lobby buzzards” were as about as respectable as card sharks and hookers. You can still draw cheers for denouncing their influence, of course, but Teachout suggests that something much deeper than cynicism was involved in the complaint. It had a moral logic – one implying a very different set of standards and expectations than prevails now, to judge by recent Supreme Court rulings.

Teachout’s narrative spans the history of the United States from its beginnings through Chief Justice John Roberts’s decision in McCutcheon v. FEC, less than six months ago. One of the books that gripped the country’s early leaders was Edward Gibbon’s Decline and Fall of the Roman Empire, the first volume of which happened to come out in 1776, and Teachout regards the spirit they shared with Gibbon as something like the crucial genetic material in the early republic’s ideological DNA.

To be clear, she doesn’t argue that Gibbon influenced the founders. Rather, they found in his history exceptionally clear and vivid confirmation of their understanding of republican virtue and the need to safeguard it by every possible means. A passage from Montesquieu that Thomas Jefferson copied into his notebook explained that a republican ethos “requires a constant preference of public to private interest [and] is the source of all private virtues….”

That “constant preference” required constant vigilance. The early U.S. statesmen looked to the ancient Roman republic as a model (“in creating something that has never yet existed,” a German political commentator later noted, political leaders “anxiously conjure up the spirits of the past to their service and borrow from them names, battle cries, and costumes in order to present the new scene of world history in this time-honored disguise and this borrowed language”).

But the founders also took from history the lesson that republics, like fish, rot from the head down. The moral authority, not just of this or that elected official, but of the whole government demanded the utmost scruple – otherwise, the whole society would end up as a fetid moral cesspool, like Europe. (The tendency to define American identity against the European other runs deep.)

Translating this rather anxious ideology into clear, sharp legislation was a major concern in the early republic, as Teachout recounts in sometimes entertaining detail. It was the diplomatic protocol of the day for a country’s dignitaries to present lavish gifts to foreign ambassadors -- as when the king of France gave diamond-encrusted snuffboxes, with his majesty’s portrait on them, to Benjamin Franklin and Thomas Jefferson. In Franklin’s case, at least, the gift expressed admiration and affection for him as an individual at least as much as it did respect for his official role.

But all the more reason to require Congressional approval. Doing one’s public duty must be its own reward, not an occasion for private benefit. Franklin received official permission to accept the snuffboxes, as did two other figures Teachout discusses. The practice grated on American sensibilities, but had to be tolerated to avoid offending an ally. Jefferson failed to disclose the gift to Congress and quietly arranged to have the diamonds plucked off and sold to cover his expenses.

Like the separation of powers among the executive, legislative, and judicial branches (another idea taken from Montesquieu), the division of Congress into House and Senate was also designed to preempt corruption: “The improbability of sinister combinations,” wrote Madison, “will be in proportion to the dissimilarity in genius of the two bodies.” Teachout quotes one delegate to the Constitutional Convention referring sarcastically to the “mercenary & depraved ambition” of “those generous & benevolent characters who will do justice to each other’s merit, by carving out offices & rewards for it.”

Hence the need for measures such as the clause in Article 1, Section 6 forbidding legislators from serving simultaneously in an appointed government position. It also prevented them from accepting such a position created during their terms, after they took office. The potential for abuse was clear, but it could be contained. The clause was an effort “to avoid as much as possible every motive for corruption,” in another delegate’s words.

Corruption, so understood, clearly entails far more than bribery, nepotism, and the like – things done with an intent to influence the performance of official duties, in order to yield a particular benefit. The quid pro quo was only the most obvious level of the injustice. Beyond violating a rule or law, it undermines the legitimacy of the whole process. It erodes trust in even the ideal of disinterested official power. Public service itself begins to look like private interest carried on duplicitously.

The public-mindedness and lofty republican principles cultivated in the decades just after the American revolution soon enough clashed with the political and economic realities of a country expanding rapidly westward. There were fortunes to be made, and bribes to be taken. But as late as the 1880s, states were putting laws on the books to wipe out lobbying, on the grounds that it did damage to res publica.

Clearly a prolonged and messy process has intervened in the meantime, which we’ll consider in the next column, along with some of the criticism of Teachout’s ideas that have emerged since she began presenting them in legal journals a few years ago. Until then, consider the proposal that newspaper writer of the 1860s offered for how to clean the Augean stables of Washington: To clear out corruption, the nation’s capitol should be moved to New York City, where it would be under a more watchful eye. Brilliant! What could possibly go wrong?




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