Corruption in America: From Benjamin Franklin’s Snuff Box to Citizens United

When Louis XVI presented Benjamin Franklin with a snuff box encrusted with diamonds and inset with the King’s portrait, the gift troubled Americans: it threatened to “corrupt” Franklin by clouding his judgment or altering his attitude toward the French in subtle psychological ways. This broad understanding of political corruption—rooted in ideals of civic virtue—was a driving force at the Constitutional Convention. For two centuries the framers’ ideas about corruption flourished in the courts, even in the absence of clear rules governing voters, civil officers, and elected officials. Should a law that was passed by a state legislature be overturned because half of its members were bribed? What kinds of lobbying activity were corrupt, and what kinds were legal? When does an implicit promise count as bribery? In the 1970s the U.S. Supreme Court began to narrow the definition of corruption, and the meaning has since changed dramatically. No case makes that clearer than Citizens United. In 2010, one of the most consequential Court decisions in American political history gave wealthy corporations the right to spend unlimited money to influence elections. Justice Anthony Kennedy's majority opinion treated corruption as nothing more than explicit bribery, a narrow conception later echoed by Chief Justice Roberts in deciding McCutcheon v. FEC in 2014. With unlimited spending transforming American politics for the worse, warns Zephyr Teachout, Citizens United and McCutcheon were not just bad law but bad history. If the American experiment in self-government is to have a future, then we must revive the traditional meaning of corruption and embrace an old ideal.

About the Author :
Zephyr Teachout is Associate Professor of Law at Fordham University.

Review :
At last someone has written a book that puts a name to what is perhaps the most significant factor shaping American politics today: corruption. In a masterly work of scholarship, Zephyr Teachout…traces the history of American approaches to what was long considered a mortal threat to the republic. She demonstrates that recent jurisprudence, which has whittled down the definition of corruption to encompass only a contractual exchange between briber and public official, represents nothing less than ‘a revolution in political theory.’… Teachout calls for a return to the Framers’ preference for across-the-board rules to help prevent corrupt acts before they are perpetrated, rather than relying on punishment after the fact. In Corruption in America, an eloquent, revealing, and sometimes surprising historical inquiry, Teachout convincingly argues that corruption, broadly understood as placing private interests over the public good in public office, is at the root of what ails American democracy. Teachout’s book is filled with colorful anecdotes about Americans getting away with all sorts of chicanery… Corruption in America shows that it is possible to establish and maintain governmental institutions that shield us from our worst instincts. This was the goal of Madison and his peers, and it could still be achieved with a better public-election finance system, which could be constitutional under Citizens United if the system did not restrict private donations. Democrats who will be looking for a fresh agenda in 2016 should read Teachout’s book carefully. [A] groundbreaking book. You have probably heard pundits say we are living in an age of ‘legalized bribery’; Corruption in America is the book that makes their case in careful detail… State governments subject to wealthy corporations? Check. Speculators in legislation, infesting the capital? They call it K Street… And all of it has happened, Teachout admonishes, because the founders’ understanding of corruption has been methodically taken apart by a Supreme Court that cynically pretends to worship the founders’ every word. [Teachout] has written an intelligent, stimulating, and wide-ranging retort to the Roberts Court’s constrained view of corruption. In Corruption in America, she argues that for democracy to thrive, we need a far more capacious characterization of this key concept… Her book in part [is] a greatest hits of court cases and laws dealing with bribery and lobbying, full of corrupt land deals and railroad intrigue… While there is obviously plenty to debate and disagree over in how we might define and delineate corruption, the broad unsettledness of the concept is perhaps Teachout’s point. She has some ideas on how we might think about corruption, and she highlights others’ ideas as well. But mostly, she just wants us to debate and discuss corruption more, to view it as a controversial issue, and not to let the Roberts Court sweep it away into a marginal corner so that it can then declare it irrelevant, thus clearing the way for unlimited campaign contributions… Teachout’s book may be just the rousing call to arms we need for the fight ahead. [Teachout] wrote [this] book, she says, primarily in answer to conservative members of the Supreme Court, who, in a series of decisions climaxing in Citizens United v. Federal Election Commission in 2010, have successively narrowed the legal definition of corruption to the point that it now effectively includes only outright bribery. In Citizens United, for example, the majority struck down corporate spending limits in politics on the grounds that there is nothing inherently corrupting about corporations trying to buy influence with politicians so long as there is no explicit quid pro quo. Teachout spends much of her book showing just how naive, dangerous, and, frankly, anti-American the Founding Fathers would have considered such reasoning… It is certainly refreshing to watch Teachout remind jurists who pretend to wrap themselves in the mantle of strict construction just how at odds their views of human nature and the role of government are with those of the framers. A serious scholarly take-down of the American campaign finance system. After a thorough and almost agonizingly detailed grand tour of dozens of often conflicting federal and state court decisions differing on the precise legal meaning of ‘corruption,’ Teachout ends up with a book that should become required reading in constitutional law classes. A book that merits the large readership it may get… Teachout’s narrative spans the history of the United States from its beginnings through Chief Justice John Roberts’s decision in McCutcheon v. FEC. Zephyr Teachout argues that recent court decisions—and a lax attitude toward corruption—are putting private interests over the public good. Teachout complains of the revolving-door practice of congressional representatives retiring and becoming lobbyists. She says the policy breeds ethical conflicts and tainted decision-making. This is an important book. Teachout explores case law and controversies before the 1970s and finds that many generations of jurists and politicians had a much broader conception of political corruption and a richer sense of civic duty and viewed any sort of gift-giving from private citizens to public officials as ethically dubious and undermining of democratic legitimacy. Though there was quite a bit of public corruption in the old days, there was also a respect for public virtue for which modern jurisprudence has little patience. The Supreme Court’s dramatic turn away from an older tradition leaves Congress unable to regulate lobbying and campaign spending wisely, should it chose to do so. With public confidence in government low and Washington politics driven by the agendas of corporations and the wealthy, Teachout’s argument is timely, compelling, and important. Teachout’s beautifully written and powerful book exposes a simple but profound error at the core of the Supreme Court’s McCutcheon v. FEC decision. The originalists on the Court forgot their history. This is that history—and eventually it will provide the basis for reversing the Court’s critical error. This is a wonderful and important book. Zephyr Teachout shows what’s wrong with how the Supreme Court thinks about democracy and political corruption, how we got to this terrible place, and that it wasn’t always this way—and doesn’t have to be. There’s a lot of learning and original synthesis here, and also an unmistakable voice, which blends a lively intelligence with passion for democracy as a way of life.