STOCK MARKET WATCH -- Thursday, 20 November 2014

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20. Lobbying Used to Be a Crime: A Review of Zephyr Teachout’s New Book on the Secret History of Corrupt

http://www.nakedcapitalism.com/2014/11/matt-stoller-lobbying-used-crime-review-zephyr-teachouts-new-book-secret-history-corruption-america.html?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+NakedCapitalism+%28naked+capitalism%29

By Matt Stoller, who writes for Salon and has contributed to Politico, Alternet, The Nation and Reuters. You can reach him at stoller (at) gmail.com or follow him on Twitter at @matthewstoller. Originally published at Medium and Firedoglake

If there’s one way to summarize Zephyr Teachout’s extraordinary book Corruption in America: From Benjamin Franklin’s Snuff Box to Citizens United, it is that today we are living in Benjamin Franklin’s dystopia. Her basic contention, which is not unfamiliar to most of us in sentiment if not in detail, is that the modern Supreme Court has engaged in a revolutionary reinterpretation of corruption and therefore in American political life. This outlook, written by Supreme Court Justice Anthony Kennedy in the famous Citizens United case, understands and celebrates America as a brutal and Hobbesian competitive struggle among self-interested actors attempting to use money to gain personal benefits in the public sphere.

What makes the book so remarkable is its scope and ability to link current debates to our rich and forgotten history. Perhaps this has been done before, but if it has, I have never seen it. Liberals tend to think that questions about electoral and political corruption started in the 1970s, in the Watergate era. What Teachout shows is that these questions were foundational in the American Revolution itself, and every epoch since. They are in fact questions fundamental to the design of democracy.

Teachout starts her book by telling the story of a set of debates that took place even before the Constitution was ratified — whether American officials could take gifts from foreign kings. The French King, as a matter of diplomatic process, routinely gave diamond-encrusted snuff boxes to foreign ambassadors. Americans, adopting a radical Dutch provision banning such gifts, wrestled with the question of temptation to individual public servants versus international diplomatic norms. The gifts ban, she argues, was evidence of a particular demanding notion of corruption at the heart of American legal history. These rules, ‘bright-line’ rules versus ‘corrupt-intent’ rules, govern temptation and structure. They cover innocent and illicit activity, as opposed to bribery rules which are organized solely around quid pro quo corruption.

The Constitution is full of such bright-line rules. For instance, the residency requirement was intended to protect against ‘adventurers’ and the takings clause protects private property and has an anti-monopoly interpretive framework. The census, rules on representation of House members, the regular electoral cycle of two year terms, age requirements (to prevent dynasties), requirements for legislative journals, salary payments for legislators, and prohibitions on holding legislative and other offices are all anti-corruption provisions. The founders, Teachout argues, were obsessed with corruption. They had seen their beloved British system fall into the trap of corruption, with ‘place men’ (members of parliament dependent on the king) and rotten boroughs, and sought to prevent a recurrence in America.

Teachout points out something fairly obvious, but not recognized today — the theoretical underpinning of the American revolution was that a corrupt government had no legitimacy to govern....MORE