One Congressional Achievement: Legalizing What Used To Be Viewed As Corruption
Congress, for good reason, is held in disrepute by most Americans. The latest Gallup Poll tells us that only eight percent of Americans think Congress is doing a good job. It is difficult to imagine who these eight percent might be, other than relatives or employees of those holding office.
But if Congress has no inclination to fulfill its constitutional responsibilities when it comes to going to war, or balancing the budget, protecting our borders, or performing the many other essential tasks left undone, it has been successful in one area. Both Republicans and Democrats, in bipartisan cooperation, have done their best to legalize their own conduct, which, in many cases, used to be viewed as corruption.
In an important new book, Corruption In America: From Benjamin Franklin’s Snuff Box to Citizens United, Professor Zephyr Teachout of Fordham Law School argues that corruption is the most pressing problem our democracy faces. In her view, corruption — broadly understood as placing private interests over the public good in public office — is at the root of what ails American government.
The Framers themselves predicted that corruption would be a constant threat. George Mason warned, “if we do not provide against corruption, our government will soon be at an end.” In James Madison’s notebook from the summer of 1787, “corruption” appears 54 times. Teachout writes, “Corruption, influence, and bribery were discussed more often in the convention than factions, violence, or instability.”
By corruption, the Founders did not mean simply the exchange of cash for votes, what the Supreme Court in Citizens United came to call “quid pro quo corruption.” Teachout reports that the word “corruption” came up hundreds of times in the Constitutional Convention and the ratification debates, yet “only a handful of uses referred to what we might now think of as quid pro quo bribes,” constituting “less than one-half of one percent of the times corruption was raised.”
The Framers believed that corruption involved using public office for private ends, which was the opposite of public virtue. A republican form of government required that men act as citizens concerned for the public good, not as private, self-interested individuals.
The philosopher Baron de Montesquieu, who had great influence on the founding fathers, maintained, “The misfortune of a republic… happens when the people are gained by bribery and corruption: in this case, they grow indifferent to public affairs, and avarice becomes their predominant passion.”
James Madison believed that without civic virtue, “no theoretical checks, no form of government, can render us secure. To suppose that any form of government will secure liberty or happiness without any virtue in the people is a chimerical idea.”
Professor David Cole of the Georgetown Law School notes, “The concern with corruption, broadly conceived, has remained a dominant theme of American law and politics. Indeed, because of these concerns, lobbying itself was treated as illegal for much of the nation’s history.
“This seems inconceivable in today’s political culture, in which ‘K Street’ lobbying dominates Washington’s political and financial economies alike. But until the twentieth century, lobbying was considered contrary to public policy. Some states such as Georgia made it a crime. And even where lobbying was not a crime, courts refused to enforce contracts for lobbying on the ground that such conduct was contrary to public policy.”
Consider the 1874 case of Trist v. Child, in which the Supreme Court declined to enforce a contract for lobbying. N. P. Trist, an elderly man too frail to travel to Washington, hired a lawyer, Linus Child, to try to persuade Congress to authorize the payment of an 18-year-old debt owed to Trist. Trist told Child he would get one-fourth of the recovery as his fee. When Child succeeded, however, Trist’s son refused payment, and Child sued to recover the fee.
The Supreme Court declined to enforce the contract. Lobbying was contrary to public policy because the lobbyist was paid to advocate not for the public good, but for someone’s private interest. It risked corrupting the political process. The Court reasoned that if individuals were allowed to hire lobbyists, soon corporations would be doing so, a practice “every right-minded man would instinctively denounce.”
The Court declared: “If any of the great corporations of the country were to hire adventurers who make market of themselves in this way, to procure the passage of a general law with a view to the promotion of their private interests, the moral sense of every right-minded man would instinctively denounce the employer and employed as steeped in corruption, and the employment as infamous.”
Now, in 2014, we see a much different picture, in which Republicans and Democrats, self-proclaimed “liberals” and “conservatives,” work closely together not to advance the public interest, but to promote their own — and they have made it all legal.
In 1974, only three percent of retiring or defeated members of Congress became lobbyists. Today, that number is 42 percent for members of the House and 50 percent for Senators. In 2010, Sen. Evan Bayh (D-IN), after writing in The New York Times about the “corrosive system of campaign financing,” joined with Andrew Card, the former Bush chief of staff, in the U.S. Chamber of Commerce to lobby against corporate regulatory reform. After its oil spill in the Gulf, BP recruited a former top spokesman for Dick Cheney and the Democratic fundraiser Tony Podesta as lobbyists.
Two of the top three political action committee donors to Democratic Senate Majority Leader Harry Reid and Republican Senate Minority Leader Mitch McConnell are the same: Comcast and AT&T. Former Republican Senate leader Trent Lott and former Democratic House Leader Dick Gephardt are united in lobbying for GE. And Members of Congress often go to work, for million-dollar salaries, for the very industries they were responsible for regulating while in Congress. Former House Majority Leader Eric Cantor, who regulated banking in Congress, is now at work on Wall Street. And this clear conflict of interest is legal, because members of Congress, in bipartisan agreement, have made it so.
Trust in our democracy is eroding. In 1964, 29 percent of voters believed that government was “run by a few big interests looking out for themselves.” By 2013, 79 percent felt that way. In 2006, 59 percent of Americans were convinced that corruption in government was widespread; by 2013, that number had jumped to 79 percent.
Since Congress writes the laws, we have seen members of both parties simply make legal what would ordinarily be viewed as corruption. Consider Leadership PACs, which permit politicians to solicit and spend money without the same restrictions they face when using their campaign committees.
According to Peter Schweitzer, a fellow at the Hoover Institution of Stanford University, these groups have become slush funds that enable lavish lifestyles while they exist, in theory, to help members of Congress finance their own campaigns and help political allies. He cites such examples as these:
• Sen. Saxby Chambliss (R-GA) presided over a leadership PAC that spent $10,000 on golf at Pebble Beach; nearly $27,000 at Ruth’s Chris Steakhouse; and $107,752 at the Breakers resort in Palm Beach, Florida.
• Sen. Roy Blount (R-MO) spent $65,000 at a resort at Kiawah Island, South Carolina.
• Rep. Charles Rangel (D-NY) used his leadership PAC to spend $64,500 on a painting of himself.
• Rep. Rosa DeLauro (D-CT) used hers to pay for catered parties at her home several times a month.
Beyond the abuse of money, Members of Congress regularly pass laws for the rest of us from which they exempt themselves. In the recent controversy over the Affordable Care Act, Americans learned that Congressional staff members were to receive subsidies not available to other Americans.
Traditionally, Congress has exempted itself from laws and regulations it imposes upon other Americans — from Social Security, to affirmative action, to occupational health and safety rules. Recently, Sen. Rand Paul (R-KY) introduced a Constitutional amendment stating, “Congress shall make no law applicable to a citizen of the United States that is not equally applicable to Congress.”
Much time is spent lamenting the “gridlock” in Congress. But there is bipartisan cooperation between Republicans and Democrats, liberals and conservatives, when it comes to making legal what has historically been viewed as corruption, and which most Americans properly understand to be corruption today. The fears of the Founding Fathers have become our current reality, to the detriment of all — except the favored few who have enriched themselves at the public trough and cleverly avoid any penalty for doing so by making their self-serving acts perfectly legal.