The Republic of Virtue. F. H. Buckley

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СКАЧАТЬ “they are vicious—their passions may be operated upon.”⁵ That was a little over-the-top, but not a few of the delegates must have nodded their heads in agreement, given their general suspicion of democracy and mob rule.

      The Framers’ solution was to turn things on their head. The republic of virtue would not be erected from below, from Winthrop’s moral community knit together as one man, but constructed from above upon a fallen humanity. The new government would accept the reality of our ordinary vices, but would make it harder for them to infect the body politic. By dividing powers and asking one branch to check another, the Framers sought to restrain those who would use the means of government to serve wasteful private ends. And this could be done without employing Plato’s oppressive restrictions on personal freedom. That was the vision of the Framers, at once noble-minded and liberal.

      It didn’t last. If we were ever a republic of virtue, we’re not that today, as evidenced by how we rank on Transparency International’s CPI. Wholly corrupt politicians such as Louisiana’s Edwin Edwards might find themselves charged with bribery, and backroom deal-makers like Virginia’s Eric Cantor might be dumped by the voters. But it’s easy to point to successful politicians who’ve raised pay-for-play to a fine art while avoiding the threat of criminal liability. Along the way something went wrong. The Framers meant to produce a corruption-free government, but like a boomerang their Constitution flew back and hit us on the head.

The Separation of Powers

      In The Federalist Papers, the selling document for our Constitution, James Madison described a government in which the different branches—executive, legislative and judicial—would be set in equipoise, in a regime of separated powers. The separation of powers means several different things, but all of the convention delegates including Madison thought it would check the possibility of public corruption. That’s not how it turned out, however, for two reasons.

      First, the grim logic of the separation of powers ensures that over time the preponderance of power will come to reside in the executive branch.⁶ That’s what has happened in nearly every other presidential regime and it’s happening apace in the United States. The president has slipped off many of the constraints that were meant to curb his authority through the separation of powers. He makes laws by regulatory fiat and executive order, and unmakes them by refusing to enforce properly enacted legislation. He can reward friends and punish enemies in ways the Framers would not have anticipated.

      It turns out that presidential regimes are significantly more corrupt than parliamentary ones. And that’s to be expected. For one thing, the president’s role as his country’s head of state clothes him with a moral authority that prime ministers wholly lack in parliamentary governments. If presidents are the symbols of their countries, prime ministers are more apt to be figures of fun, and ridicule is a sovereign remedy against the abuse of authority. Then there’s the ability of an opposition party in Parliament to hold a government’s feet to the fire when there’s a scandal. By convention, a prime minister is required to attend a daily question period in Parliament, when he must answer his critics, and the opposition can prolong debate over government weaknesses. “No better method has ever been devised for keeping administration up to the mark,” observed Harold Laski.⁷

      Parliamentary governments have far more effective ways to discipline a misbehaving chief executive. It’s a great deal easier to remove an inconvenient prime minister through a simple no-confidence motion or party vote than it is to impeach a sitting president. Not merely are the requirements of a trial in the House of Representatives and a two-thirds majority in the Senate virtually impossible to achieve, but a president may cover up his tracks through his control of information and his ability to delay the proceedings. The separation of powers in the American Constitution was designed to discipline a misbehaving executive, but instead has had the opposite effect, insulating him from criticism.

      The separation of powers also introduced another kind of corruption, in which members of Congress demand wasteful benefits for their districts as a condition for supporting a bill. This became glaringly obvious in the debate that led to the enactment of the Affordable Care Act (Obamacare) in 2010, in a frenzied atmosphere of last-minute deal-making. To get his filibuster-proof sixty votes, Senator Harry Reid (D-NV), the majority leader, had to bargain with the members of his caucus who demanded special earmarks. Among these, the “Louisiana Purchase” gave $100 million in extra Medicaid funding to the Bayou State to help get Senator Mary Landrieu (D-LA) re-elected. Then came the “Cornhusker Kickback” for Senator Ben Nelson (D-NE), a permanent exemption from his state’s share of Medicaid expansion that would cost taxpayers an additional $45 million in the first decade. Next came “Gator Aid” for Senator Bill Nelson (D-FL), a grandfather clause that would allow Floridians to preserve their pricey Medicare Advantage program. The list went on and on.⁸ In the final bill, the Cornhusker Kickback was stripped out, but many other goodies were so well hidden in the thousand-page document that they went undetected. Seven years later, we’re still finding out what’s in it.

      The Framers’ republic of virtue has evolved into a very different country, one that is more corrupt than those it most resembles, the “settler” societies of Canada, Australia and New Zealand. We share a similar heritage and legal system, but unlike those other countries we have a presidential form of government with a separation of powers, and those features of our Constitution have, over time, made the United States more corrupt. We shaped our institutions, and then our institutions shaped us.

Federalism

      In addition to dividing powers laterally among the branches in the national government, our Constitution disperses power vertically, between Washington and the states. American federalism was not so much a conscious choice by the Framers, however, as a necessity imposed upon them by the states, a legacy of the many years of self-government in each of the thirteen colonies. In Albany, Trenton and other state capitals, Americans had created their own state constitutions and governmental institutions, and were loath to give them up. At the Constitutional Convention, the smaller states, as a condition for joining in the Union, rejected the idea of an all-powerful central government, and that is why we have a federal form of government. This division served to check corruption by bringing government closer to the voters most affected by its actions. Federalism also allows people to move from corrupt states to more honest ones. With fewer people and businesses to prey on, the corrupt state is made to pay for its lack of integrity.

      Over time, however, the federal government has assumed control over more and more powers originally left to the states. This happened partly because the Supreme Court gave an expansive definition to the federal commerce power, permitting Washington to overrule the states on purely local matters. Then, through the spending power, the federal government was permitted to condition grants to the states on compliance with federal mandates, which is how state policies on transportation, health care and education came to be often set by Washington.⁹

      On the other hand, states have been exercising powers that should be assigned to the federal government. In particular, state courts have been permitted to rule on interstate civil actions, where the plaintiffs and defendants are in different states, under a strained interpretation of the Constitution by the Supreme Court. These cases more properly belong in federal courts, since the home-state bias of state courts allows in-state plaintiffs to impose wasteful costs on out-of-state defendants. One might think this a trivial matter, but one would be wrong. A wise reform would ensure that all such cases are turned over to federal judges, as the Framers intended.

Money

      Mention corruption to a highly educated American, and chances are that he’ll complain about the baneful effects of money in politics. Pressed further, he might mention the 2010 СКАЧАТЬ