Corruption in America

Zephyr Teachout

• Publisher: Harvard University Press
• Year: 2014
• ISBN:
  9780674745087
• Topic: Law
• Subtopic: Legal History
• Index: Law

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.

CHAPTER ONE

Four Snuff Boxes and a Horse

A GIFT CAN BE A BRIBE. A bribe can be a gift. Whether a present counts as corrupt or simply generous depends entirely upon our cultural or political frame. Gifts are often part of what is best in society: they are a way of showing other people that they are seen and valued, perhaps even loved, and a way of providing rewards in a non-transactional way. They lead to amity and warmth in a way no explicit deal can. But gifts play a potentially dangerous role in both judicial and democratic practice. They can create obligations to private parties that shape judgment and outcomes. Part of designing a political system is separating gifts from bribes—that is, defining what gifts ought be categorized as corrupting. As Daniel Hays Lowenstein argued thirty years ago, a concept of corruption or bribery “means identifying as immoral or criminal a subset of transactions and relationships within a set that, generally speaking, is fundamentally beneficial to mankind, both functionally and intrinsically.”¹

In two recent cases—Citizens United and McCutcheon v. FEC—Supreme Court justices Anthony Kennedy and John Roberts wrote that campaign contributions—gifts—given with intent to influence policy are not corrupting. As they explained it, corruption requires more than intent on the part of the gift giver; it requires something like an explicit deal between the giver and receiver. When they made these pronouncements, they claimed to be merely following precedent. In fact, they were doing what Lowenstein suggested: identifying and circumscribing a small subset of activities as corrupt. Their circle was particularly small. In the early days of the republic, the new Americans took the opposite approach. They drew a large circle around gifts that they called corrupt. They were committed to treating gifts as political threats, even when such treatment violated the law of nations and complicated vitally important international negotiations, and certainly when the gifts were not accompanied by an explicit deal.

Plato’s Republic in the New World

During and after the Revolutionary War the new Americans were driven by a fear of being corrupted by foreign powers, and a related fear of adopting the Old World’s corrupt habits. The two national powers that dominated the colonies, France and Britain, represented two different models of corruption. Britain was seen as a failed ideal. It was corrupted republic, a place where the premise of government was basically sound but civic virtue—that of the public and public officials—was degenerating. On the other hand, France was seen as more essentially corrupt, a nation in which there was no true polity, but instead exchanges of luxury for power; a nation populated by weak subjects and flattering courtiers. Britain was the greater tragedy, because it held the promise of integrity, whereas France was simply something of a civic cesspool. John Adams said of France, “there is everything here too which can seduce, betray, deceive, corrupt, and debauch.”² As Thomas Jefferson—who adored Paris—wrote in 1801, the year he became president:

We have a perfect horror at everything like connecting ourselves with the politics of Europe. It would indeed be advantageous to us to have neutral rights established on a broad ground; but no dependence can be placed in any European coalition for that. They have so many other bye-interests of greater weight, that someone or other will always be bought off. To be entangled with them would be a much greater evil than a temporary acquiescence in the false principles which have prevailed.³

This “hatred” of the European political culture and the fear of entanglement led to a problem. The new Americans wanted to be part of the international community, respect the laws and customs of nations as a matter of principle, and be respected as an autonomous new nation. But they also wanted to reject corrupt European customs. When it came to internal affairs, this was not a major conflict. But when it came to the customs of international diplomacy—like the custom of exempting ambassadors from paying duties—they wanted it both ways.

One of the customs of the international community was the giving and receiving of personal presents to ambassadors, as I described briefly in the Introduction. Expensive gifts—sometimes called presents du roi or presents du congé—functioned as “tokens of esteem, prestige items, and perhaps petty bribes,”⁴ and were embedded in the culture of international relations. Gifts were typically given at the end of diplomatic tours. They were often very expensive, and were understood to be a supplement to salaries. In some cases the value of gifts constituted a substantial part of the income received by diplomats. The value of a gift might reflect the esteem in which a diplomat was held, or the importance of the relationship with his nation.

This practice was hateful to the Americans because it symbolized and embodied part of a particular culture they rejected. Jewels themselves signify luxury. They pointed to an old-world privilege that would not come easily to even the richest Americans. In the founders’ minds, luxury represented a kind of internal corrosion—even in cases where there was no external dependency, a man could be tempted into seeking out things for himself, instead of seeking things for a country—he could, in some ways, self-corrupt. The diamonds of Franklin’s gift would have seemed ostentatious to the founders.

The Articles of Confederation included this provision: “Nor shall any person holding any office of profit or trust under the United States, or any of them, accept any present, emolument, office or title of any kind.” This ban on receiving gifts was perceived as severe and not a little eccentric. The provision was a close copy of a 1651 Dutch rule that their foreign ministers were not allowed to take “any presents, directly or indirectly, in any manner or way whatever.”⁵ The code was so far outside the normal state of affairs that it was ridiculed for its sanctimony. The Dutch political writer Wicquefort’s analysis of the Dutch prohibition against receiving gifts was scathing: “The custom of making a present … is so well established that it is of as great an extent as the law of nations itself, there is reason to be surprised at the regulation that has been made on that subject in Holland.” Wicquefort went on to write about how so scrupulously observant they are that they refuse even the most trivial presents. He accused his countrymen of silliness for making a fuss over the smallest gifts, even a plate of fruit. “I cannot tell,” he writes, “whether the authors of this regulation pretended to found a Republick of Plato in their fens and marshes,” but “it cannot be denied” that they “condemn the sentiments of all the other kings and potentates of the universe.”⁶ He may have been referring to Plato because Plato had been rather severe about gifts. Not only did he recommend dishonor for judges who were bribed by flattery, but he thought that public servants who accepted gifts should die:

Those who serve their country ought to serve without receiving gifts, and there ought to be no excusing or approving the saying, “Men should receive gifts as the reward of good, but not of evil deeds”; for to know which we are doing, and to stand fast by our knowledge, is no easy matter. The safest course is to obey the law which says, “Do no service for a bribe,” and let him who disobeys, if he be convicted, simply die.⁷

The American founders did not advocate execution for gift-acceptance, but they might have taken Wicquefort’s ridicule as a compliment—they were interested in establishing their own just republic. But their idealism quickly became difficult in the international context. The Europeans were not interested in complying with this new, self-imposed ban. During the early years of American independence, foreign princes generously loaded American emissaries with expensive gifts, and the Americans receiving the gifts had to figure out how to respond.

The first gift problem arose after the Declaration of Independence was signed. That was when American politician Silas Deane was charged with discovering whether France might be willing to aid the Americans with cannons, arms, and military clothing for the Revolution. Deane was a Yale graduate, a lawyer, a merchant, and politician who was known as “Ticonderoga” by some for his strategic role in the successful Ethan Allen capture of Fort Ticonderoga.⁸ His first effort in France was not so much diplomacy as espionage. Under the name “Timothy Jones,” he posed as a merchant trying to buy supplies for the rebels. When it became clear that France was open to trade with the colonies, he abandoned his disguise and established himself as one of the first formally commissioned representatives of the aspiring country. He was soon joined by Benjamin Franklin and Arthur Lee. The three men grew to hate each other, and the delegation was full of accusations and counteraccusations. Deane accused Lee of disloyalty, Lee thought Franklin was corrupt, and Franklin thought Lee was a lunatic.⁹

Deane’s tenure was troubled from the start, as there were rumors about his loyalty. He was accused of using his public position to make a private fortune by manipulating the commissions he received on procured goods. His financial accounting was questioned, and he was generally thought of as ambitious and too tricky by half. Adams found him untrustworthy and distasteful. In 1778 Deane was recalled to Congress, charged with fraudulent account keeping and disloyalty.¹⁰

When he left France, Deane received a jeweled snuff box for his diplomatic service from the French court. King Louis loved these boxes and frequently gave them to foreign ministers. He allegedly called them boîte à portrait instead of snuff boxes: he disliked snuff, but liked the form and frequently adorned them with portraits of himself.¹¹ Deane apparently thought the gift would help save his reputation: he offered it as proof of the great work he had done for the new country. According to Arthur Lee’s account, Deane “expected, from the effect of a French Fleet, of which he was to claim the sole merit, the brilliancy of a diamond snuff box, and complimentary letter,” that he would return to the United States with sufficient proof of his loyalties.¹² John Adams was dismissive of the use of evidence, remarking that “unthinking men may be amused with a golden snuff box.”¹³

Deane’s acceptance of the snuff box led to Lee accusing him of violating one of the core laws of the Confederation. In his papers on the matter, Lee wrote: “Deane knew that it was one of the fundamental laws of our Union that no person in the service of the United States should accept from any king, prince, or minister any present or gratuity whatsoever … yet in the face of this fundamental law, Mr. Deane accepted of a gold snuff, set with diamonds, from the King of France.”¹⁴ The disloyalty and accounting accusations against Deane were never proven, as the French did not disclose their accounting. Deane would eventually return to France, disgraced but not sentenced. But the question of the appropriate relationship to foreign gifts remained.

It turns out it was far easier to criticize the gift acceptance than to resist it: the next snuff box went to Lee himself. Lee, along with Franklin, had negotiated the 1778 treaty with France. When Lee returned to the American states in 1780, he carried with him a new jeweled snuff box, also given to him by King Louis XVI, with the king’s portrait set in diamonds. Lee was understandably concerned about the appearances of accepting the box—in part because Deane had countercharged him with disloyalty. But Lee was also worried about offending the king. He wrote to a friend that the snuff box might “excite some murmurs” and thought that the Articles of Confederation might prevent accepting the gift.¹⁵ Like most humans, he found the ethical proscriptions of others easy to understand but when he was placed in the same situation as Deane, he was less sure about what to do.

As Lee was then embroiled in accusations that he had given offense to the French court, the gift also served for him as “proof of the untruth” of the accusations against him.¹⁶ The French liaison, Vergennes, “warned his adjutant in Philadelphia that an unscrupulous politician like Arthur Lee might employ the King’s portrait … to give the impression that he (Lee) held the king’s confidence and thus could speak freely on matters of French foreign policy.”¹⁷ Lee wrote to his brother, “as you can imagine, I was embarrassed about receiving or refusing it.” He explained that he had told the court that receiving such a gift was against the rules of those he represented, but the court insisted. Lee ultimately gave the gilded box to Congress to determine what to do with it. He wrote to the Committee of Foreign Affairs on January 19, 1780:

I thought it my duty to decline accepting it, upon which his excellency told me it was a mark of his majesty’s esteem, and was never refused. After this it appeared to me improper to persist in the refusal, and I received it with a determination to leave it to the disposal of Congress.… His majesty’s portrait is graven upon my mind by the justice and virtue which constitute his character, of which gold and jewels can not enhance the value.¹⁸

Congress eventually allowed him to keep it.

The next gift that excited internal discussion was not a bôite-a-portrait, but a horse. John Jay, as the ambassador to Spain, was negotiating over navigational rights with Spain’s representative Don Diego de Gardoqui on behalf of the Americans.¹⁹ He had asked for a permit to buy a Spanish horse for breeding, but de Gardoqui told him that the king of Spain wanted to give him a horse instead. “His majesty, instead of granting a permit, ordered a horse to be sent from me to you,” a horse that, by the time the letter reached Jay, had already been chosen and sent to a port where it only awaited the arrival of a vessel that would transport the horse to Jay. Jay responded with some trepidation. He knew, of course, of the prohibition against gifts, and likely knew of the public attention that accompanied Lee’s and Deane’s acceptances of their boxes.

A few days later, he wrote back, t...