Monday, March 23, 2015

Defining Corruption in America: A History

This guest post was authored by Marguerite Most, Reference Librarian and Senior Lecturing Fellow.

The library's National Library Week speaker for 2015 is Zephyr Teachout, Duke Law '99. Teachout, an Associate Professor at Fordham Law School, will talk about her latest book Corruption in America: From Benjamin Franklin's Snuffbox to Citizens United on Tuesday, March 24 in room 3041. This event is co-sponsored by the Duke Program in Public Law, the student branch of the American Constitution Society, and the Goodson Law Library. The event is open to the public.

In 2014, when Teachout sought the Democratic Party nomination for Governor of New York against incumbent Andrew Cuomo, she captured over 34% of the primary vote in a campaign with a central focus on anti-government corruption. Teachout supports public financing of elections and limits on corporate donors, and explores these issues, as well as the abuse of political power and the history of campaign finance reform in her recent book.

Zephyr Teachout defines corruption as an act or system that leads to excessive private interests in the exercise of public power. In her book she aims to awaken citizens and the courts to what she calls the anti-corruption principle, and to how this principle played a major role in the concerns of our nation's founders as they struggled with the writing and adoption of our Constitution. She surveys state and federal legislation and court decisions dealing with corruption from the nation's founding to the present. And she tells stories from history of abuse of political power for private gain – stories that have influenced the thinking and actions of our legislative branches and courts.

The first attempt to regulate campaign finance came in 1867 when Congress passed the Naval Appropriations Bill, which prohibited government employees from "shaking down" yard workers. More anti-corruption laws followed. The 1881 assassination of President James Garfield by an office seeker, who believed he had been promised a job in the Garfield administration, led to the passage of a "merit system" to replace the old "patronage" system for government posts. In a 1905 speech to Congress, President Theodore Roosevelt proposed that corporations be forbidden by law from contributing "to any political committee or for any political purpose." Two years later Roosevelt signed the Tillman Act, prohibiting money contributions to national campaigns by corporations and national banks. In the years between 1907 and 1966, Congress enacted other campaign finance laws to limit the disproportionate political influence of wealthy individuals and special interest groups and to regulate individual contributions in federal campaigns. The power of enforcement, however, was also with Congress and was routinely ignored.

In the years leading up to and during the Vietnam War, growing anger over the war and citizen advocacy groups such as Common Cause kept campaign finance reform in the public eye, and in 1972 the Federal Election Campaign Act (FECA) was passed. The law tightened disclosure requirements for federal candidates, political parties and political action committees (PACs). Following reports of abuses in the 1972 presidential campaign, FECA amendments limited contributions by individuals; 1974 amendments established the Federal Election Commission (FEC), an independent agency. Additional amendments followed a constitutional challenge in the Supreme Court case Buckley v. Valeo. The 2002 Bipartisan Campaign Reform Act of 2002 (BCRA) (the McCain-Feingold Act) banned national parties from raising or spending nonfederal funds (so-called "soft money"), restricted issue ads, and increased contribution limits.

Two recent Supreme Court decisions, Citizens United v. FEC & and McCutcheon v. FEC, have eroded restrictions on campaign finance spending. In Citizens United, the Court ruled that independent political expenditures by corporations and unions are protected under the First Amendment and are not subject to government restriction. The Court struck down a ban on campaign expenditures by corporations and unions – a ban that applied to non-profit corporations like Planned Parenthood and the National Rifle Association, as well as for-profit corporations like General Motors and Microsoft.

In McCutcheon, the Court struck down aggregate limits on the amount an individual may contribute during a two-year period to federal candidates, parties and political action committees combined, concluding instead that "they intrude without justification on a citizen's ability to exercise 'the most fundamental First Amendment activities.'" In a plurality opinion, Chief Justice Roberts wrote: "Congress may target only a specific type of corruption—'quid pro quo' corruption ..." and that "spending large sums of money in connection with elections, but not in connection with an effort to control the exercise of an officeholder's official duties, does not give rise to quid pro quo corruption."

The FEC website provides links to these cases, to campaign laws, to regulations, to an Election Law Library of research materials and to a Campaign Finance Disclosure Portal with "Hot Topics" such as Super PACs and maps showing 2014 House and Senate election expenditures. In addition to court decisions, amendments to the BCRA and regulations implemented by the FEC continue to change campaign finance law. The website also provides a resource for help with reporting and compliance under current law.

As Teachout notes, corruption was a major concern of our nation's founding fathers, a focus of debate during the Constitutional Convention of 1789, and a topic in the popular press in 1789. Headlines about corruption continue to appear in the popular press. In 2014 former mayors of Detroit and New Orleans and former Virginia governor Bob McDonnell were charged or convicted of political malfeasance. A 2013 New York Times article declared, "corruption is a growing business."

The current display in the Riddick Rare Book and Special Collections Room highlights Teachout and her book, as well as an article about her in the Duke Magazine. The display also features books about corruption in politics yesterday and today and several books from the Library's rare book collection, including a rare volume of Spirit of Laws by Charles de Montesquieu. Montesquieu's Spirit of Laws was well known to the drafters of the Constitution. Corruption and the abuse of power were themes in all his discussions from commercial laws to criminal laws. He argued that the executive, legislative, and judicial functions of government should be assigned to different bodies to prevent any one branch of government from overpowering the others. His theories about the separation of powers are said to have had an enormous impact on the framers of the Constitution.

In his blog "The Original Meaning of Corruption," Harvard Law Professor Lawrence Lessig notes that the framers spoke about corruption not only as "quid pro quo"corruption, but also in describing "improper dependence." A blog identifying uses of the word in records of the framers sets out each use by founder’s name and links to a digital copy of the source. Teachout explains in the introduction to her book, "My passion for the book springs out of my own civic patriotism. To quote James Madison, 'My wish is that the national legislature be as uncorrupt as possible.'"

And as Teachout notes – the debate continues. Today the potential payoff for abuse of political position is not the diamond-decorated snuffbox presented to Benjamin Franklin when he returned to America from Paris, but rather new snuff boxes – for example, consider the revolving doors through which some members of Congress and staffers move on to lucrative positions as high-paid lobbyists. Ask North Carolina State Senator Floyd McKissick his view on how donors and money have the potential to change elections. Or read his June 11, 2014 testimony to the Senate Judiciary Committee during a hearing held to discuss a proposed amendment addressing the Court’s ruling in Citizens United.

The debate continues.

--Marguerite Most, Reference Librarian and Senior Lecturing Fellow