Corruption in America

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

ZEPHYR TEACHOUT
Copyright Date: 2014
Published by: Harvard University Press
Pages: 360
https://www.jstor.org/stable/j.ctt7zswx5
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  • Book Info
    Corruption in America
    Book Description:

    When Louis XVI gave Ben Franklin a diamond-encrusted snuffbox, the gift troubled Americans: it threatened to corrupt him by clouding his judgment. By contrast, in 2010 the Supreme Court gave corporations the right to spend unlimited money to influence elections. Zephyr Teachout shows thatCitizens Unitedwas both bad law and bad history.

    eISBN: 978-0-674-73622-1
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. Introduction
    (pp. 1-16)

    When Benjamin Franklin left Paris in 1785 after several years representing American interests in France, Louis XVI gave him a gorgeous parting gift. It was a portrait of King Louis, surrounded by 408 diamonds “of a beautiful water” set in two wreathed rows around the picture, and held in a golden case of a kind sometimes called a snuff box. The snuff box and portrait were worth as much as five times the value of other gifts given to diplomats. One historian has called it the “most precious treasure in [Franklin’s] entire estate.”¹ It depicted the king with powdered hair...

  4. CHAPTER ONE Four Snuff Boxes and a Horse
    (pp. 17-31)

    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...

  5. CHAPTER TWO Changing the Frame
    (pp. 32-55)

    A republic flourished politically and culturally for centuries, until a slow corruption of public life by private concerns destroyed it. This republic sustained itself for as long as it did because of the moral habits of private men in their public roles, not because of the brilliance of individual leaders. Its decline, according to a famous interpreter, came from the power and increasing corruption of an elite group who had the power to remove its most powerful citizen. These guardians became increasingly involved in intrigue and abuse of power, lost a sense of civic virtue, and in so doing, lost...

  6. CHAPTER THREE Removing Temptations
    (pp. 56-80)

    In the early spring of 1787, Benjamin Franklin, eighty-one years old, wrote an old friend from France about pigeons, lightning, mutual friends, and the “art of ballooning.” Showing off both his enthusiasm and his sense of a declining body, he wrote about his dream of having a French balloon that was large enough to lift him, “being led by a string held by a man walking on the ground.”¹ Franklin, as ever, believed in the possibilities of progress but wanted to be sure that his flights—into electricity, politics, and air travel—were grounded. A little more than six weeks...

  7. CHAPTER FOUR Yazoo
    (pp. 81-101)

    If you were a politically active American in the 1790s and early 1800s, you would have had an opinion about Yazoo. Alexander Hamilton was pro-Yazoo. John Randolph, the powerful speaker of the U.S. House of Representatives, was anti-Yazoo. Patrick Henry and Supreme Court justice James Wilson were both tainted by their relationship to Yazoo. James Madison was (as described below) both pro- and anti-Yazoo, depending on whether you were asking him about law or policy. Joseph Story was pro-Yazoo. Jefferson disdained Supreme Court justice John Marshall for his Yazoo leanings. People sometimes called them-selves “Yazoo men.” Others called Yazoo “marked...

  8. CHAPTER FIVE Is Bribery without a Remedy?
    (pp. 102-124)

    In the early 1850s in Britain, Sir John Eardley Eardley-Wilmot, Second Baronet, a prolific writer, dedicated himself to two topics: cold water baths and political reform. In this, he followed Benjamin Franklin, who also loved reform and frigidness (Franklin was partial to cold air baths). Sir John’s successfulTribute to Hydropathywent through three editions—the final one in 1855—as he detailed the wonders of plunging oneself in cold water and covering oneself in a wet sheet while taking the “Water Cure.” He described being treated by a bath-man (a “bad man,” in Sir John’s words), who, “in a...

  9. CHAPTER SIX Railroad Ties
    (pp. 125-143)

    In mid-nineteenth-century America, railroads signified growth, progress, and romance. They made America seem simultaneously bigger and smaller, promising transformation of individuals and each state of the union. They were also the engines, so to speak, of corruption. Railroad moguls sought state and federal support for incorporation, approval of track placement, cheap loans, subsidies, and land grants. Their demands were sometimes legitimate: without governmental backing, few private funders would have invested. But many railway projects were accompanied by allegations, often true, that legislators’ favorable treatment of railroads came from conflicts of interest, not conviction.

    During Reconstruction, lawmakers and superlatives came cheap....

  10. CHAPTER SEVEN The Forgotten Law of Lobbying
    (pp. 144-173)

    Lobbying poses a central challenge to the liberal political vision. Information and reason are among the highest values in the liberal tradition, and lobbying involves the production and communication of information and reason.¹ When viewed in this light, it should be not only protected but elevated. On the other hand, the social function of lobbying is to take money and turn it into political power. Lobbyists are hired as alchemists, to turn money into power through the production of information and the careful use of influence. That they do it within the rhetoric of reason (instead of through brute force)...

  11. CHAPTER EIGHT The Gilded Age
    (pp. 174-182)

    After a civil war fought in the name of abolishing slavery, southern African Americans were almost entirely politically and economically disenfranchised. After a powerful women’s suffrage movement, women couldn’t vote. After a constitutional commitment to equality, the country was divided between rich and poor. And after a flourishing of political parties and populist ideas, top-down corporate politics triumphed over valiant grassroots movements. The country had changed from a largely agrarian to an increasingly urban society and grew five times greater in population from 1830 to 1880 (from 12 million to 50 million). The number of voters outpaced population growth as...

  12. CHAPTER NINE Two Kinds of Sticks
    (pp. 183-194)

    Political corruption laws come in two general types, both of which were used by Teddy Roosevelt. First, there are corrupt intent laws, laws that prohibit actions only when they are accompanied by some kind of intent on the part of the giver (or receiver) to influence or reward official behavior. Corrupt intent laws include laws criminalizing gifts given with intent to influence government action. Because many interactions with government involve a wish to influence, and value is a deeply subjective idea, these laws can theoretically encompass a great deal of democratic activity, and certainly all offers of mobilization and support...

  13. CHAPTER TEN The Jury Decides
    (pp. 195-204)

    It was the mid-1930s in New Orleans. Huey Long had just died, and one of Long’s closest associates, Abraham Shushan, was using political connections to make money. The political economy of prosecution was changing in the early twentieth century, with the press eager to cover corruption scandals. Elected prosecutors, keenly aware of how they were portrayed in the media, knew they could gain political acclaim—which could lead to political power—for prosecuting elected officials under corruption statutes. As these public prosecutors flexed their newfound abilities to take on those in power, courts affirmed their convictions with references to the...

  14. CHAPTER ELEVEN Operation Gemstone
    (pp. 205-214)

    It was called Operation Gemstone—a name that King Louis might have approved. The plan was to disrupt the Democratic National Convention (DNC) and to protect the Republican National Convention from agitators. Instead, in June 1972, police caught five burglars in the DNC offices with cameras, cash, and electronics. They were there to bug the phone of the Democratic chairman.

    H. R. “Bob” Haldeman, Nixon’s White House chief of staff, played a key role in the cover-up of the burglary, now known as Watergate. He directed and approved efforts to hide connections to the president. Haldeman was convicted of conspiracy...

  15. CHAPTER TWELVE A West Virginia State of Mind
    (pp. 215-226)

    When, if ever, is a campaign donation corrupt? Is a $15 contribution designed to influence a state senator on fracking policy corrupt? What about a $15 million contribution? Outside of lobbying and independent spending, these are among the hardest questions in modern corruption law, modern campaign finance law, modern First Amendment law, and arguably modern democratic theory.¹

    The questions are so difficult because electoral democratic practice poses problems for defining corrupt or corruption that do not exist to the same degree when defining corruption in judicial or executive branch interactions. It doesn’t seem hard to say that a judge is...

  16. CHAPTER THIRTEEN Citizens United
    (pp. 227-245)

    The gift of a framed print was at the heart of a little-noticed case that foreshadowed the Supreme Court’s political theory inCitizens United. The case came to court after a trade association, Sun Diamond Growers, gave Secretary of Agriculture Mike Espy tickets to the 1993 U.S. Open Tennis Tournament worth $2,295, luggage worth $2,427, and $665 in meals, as well as the print and a crystal bowl worth $524.¹

    When the gifts came to light, the government prosecuted Sun Diamond for violating the federal gratuities statute, a section of the 1962 bribery law that forbids gifts “for or because...

  17. CHAPTER FOURTEEN The New Snuff Boxes
    (pp. 246-257)

    Private interests spent about $12.5 million on lobbying in 2012 for every member of Congress.¹ Most of that came from a few hundred companies and individuals. That money, like the king’s money of the pre-Revolutionary era, is well spent in realigning the moral obligations of our representatives.

    Recall how the king and his promises of well-paid places, dangled in front of parliamentarians, corrupted government as representatives served the king instead of the public. Conventional framing-era wisdom held that the “principal source of corruption in representatives, is the hopes and expectations of offices and emoluments.”² What is often called the revolving...

  18. CHAPTER FIFTEEN Facts in Exile, Complacency, and Disdain
    (pp. 258-275)

    Facts, Justice Scalia suggested in a 2013 oral argument, do not matter in determining whether or not a law might dissuade corruption.¹ At issue was whether the lawyers had been given a full chance to bring evidence of how a law limiting aggregate contributions might work, and what would happen were it struck down. While some of his colleagues asked for evidence and wondered how they could decide the case without it, Scalia rejected the need to develop the record:

    Justice scalia: Ms. Murphy, do—do we need a record to figure out issues of law?

    Ms. murphy: And that’s...

  19. CHAPTER SIXTEEN The Anticorruption Principle
    (pp. 276-290)

    I am trying to bring corruption back. Not as a societal ill. As you have read, we have enough of that already. But as an idea, something we fight and worry about. My hope is that courts and citizens will recognize that the anticorruption principle is a foundational American principle and will incorporate it into jurisprudence and public debate.

    A revival of the anticorruption principle will depend upon engaging difficult concepts of public interest and private interest, excessiveness and greed. Corruption describes a range of self-serving behaviors. Corruption is “abuse of public power for private benefit”¹ or “those acts whereby...

  20. Conclusion
    (pp. 291-306)

    Benjamin Franklin’s will gave the king’s snuff box portrait to his daughter, Sarah, requesting that “she would not form any of those diamonds into ornaments either for herself or daughters, and thereby introduce or countenance the expensive, vain, and useless fashion of wearing jewels in this country; and those immediately connected with the picture may be preserved with the same.”¹ Instead, Sarah sold several of the diamonds and used the proceeds to help pay for a trip to Europe. The present is now dismembered, all the diamonds taken out: the portrait sits at the American Philosophical Society in a barren...

  21. APPENDIX ONE Anticorruption Constitutional Provisions
    (pp. 307-310)
  22. APPENDIX TWO Major Nineteenth- and Twentieth-Century Anticorruption Laws
    (pp. 311-312)
  23. Notes
    (pp. 313-350)
  24. Cases Cited
    (pp. 351-356)
  25. Further Reading
    (pp. 357-358)
  26. Acknowledgments
    (pp. 359-360)
  27. Index
    (pp. 361-376)