The Republic of Virtue. F. H. Buckley

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СКАЧАТЬ donors such as the Koch brothers. He’ll say that we would get more honest government by eliminating the scandal of money in politics, but his actual aim may be to disarm those he disagrees with and prevent a successful challenge to the incumbents he favors. Instead of making government more honest, restrictions on campaign spending may help protect corrupt incumbents from the wrath of fed-up voters.

      What democracy offers as a cure for corruption is competition and the chance to throw the bums out. What the bums want to do, therefore, is neutralize the opposition by restricting its spending and therefore its ability to make its voice heard. That can’t happen here, since the Supreme Court ruled in the seminal case of Buckley v. Valeo (1976) that campaign spending caps would trench on First Amendment rights.¹¹ It’s true that some other countries, lacking the equivalent of our First Amendment, have enacted campaign spending caps without making their political races less competitive. And it’s true that our own elections don’t appear all that competitive, since few seats are ever seriously in play in congressional races. But that doesn’t mean we could adopt stricter spending limits here at no cost in competitiveness, for laws that work elsewhere cannot simply be copied in the United States with the same results. Each country must work out its own compromise between corrupt and competitive politics. If spending in American elections were capped, the result might well be less competition in politics and more corruption in government, given the particular dynamics at work here.

      The campaign finance laws we have now are mostly worse than useless. They don’t get in the way of clever donors or officials who know how to skirt the rules, but they’re a snare for the little guy. They’re like a fisherman’s net with the curious feature that the big fish escape while the small ones are caught. Worse still, they’re an invitation for flint-eyed ideologues, ambitious prosecutors, and partisan officials to criminalize political differences.

      Rather than imagine a fanciful scenario of politics without money or corruption, we should begin by recognizing that draconian reforms that restrict our freedoms might actually make things worse. When countries already have a certain amount of corruption, there’s a tipping point where stronger anticorruption laws produce more corruption, particularly when they are exploited as partisan political weapons. As Justice Scalia noted, “nothing is so politically effective as the ability to charge that one’s opponent and his associates are not merely wrongheaded, naïve, ineffective, but, in all probability, ‘crooks.’”¹² And politically motivated prosecutions for corruption can themselves be a form of corruption. In the United States, this problem may not reach the level of the old Soviet Union, where the prosecutor Lavrenti Beria infamously said, “Show me the man and I’ll show you the crime.” But some of those facing politically charged prosecution here may be forgiven for feeling that it isn’t much different.

Three Proposals

      If stricter campaign finance limits and more anticorruption laws won’t help, what can we do? Some things, such as our basic constitutional structures, can’t be changed. Nor can we rely upon the innate wisdom and goodness of the voters. The Framers, with their awareness of human fallibility, believed that a purely democratic government isn’t always a good government, and that a virtue-driven constitution must at times blunt the voters’ desires. This wisdom has sadly been forgotten by today’s campaign finance reformers, whose vision of good government resembles John Winthrop’s close-knit Puritan community, in which corruption is simply a departure from the popular will. The Framers had the better of the argument, for the most corrupt officials are often those most attentive to what the voters want. Broad democratic reforms will not ring in a reign of virtue, and the work of combatting corruption is rather a matter of smaller rules here and there.

      Here are three proposals for election law reform that would curb corruption rather than aggravate it:

       • Unless they are lobbyists, donors should have an unimpeded ability to contribute anonymously to campaign committees and political parties without fear of intimidation or harassment. But when the money is paid into the official’s pockets, that changes things, and a bribery charge properly applies if pay-for-play is promised or given.

       • While they can give useful information about proposed rules to overworked congressional staffers, lobbyists should be barred from leveraging their influence through campaign contributions and fundraising for elected officials.

       • Lobbyists should not be permitted to “capture” a legislator or congressional staffer with the promise of a high-paying job after he leaves government. To prevent this practice, a Chinese Wall should be erected between lobbying and legislating to close off the revolving door between the two activities.

      And that’s it. The existing set of contribution limits and disclosure requirements should be repealed. As we’ll see, they haven’t done anything except make our government more corrupt.

      We needn’t tolerate America’s mediocre ranking on cross-country measures of government integrity if we can do something about it. But the optimal level of corruption is not zero, for achieving it would require a Robespierre to weed out those who fail to live up to the most exacting standards of republican virtue. Nor should we subscribe to the sociological fallacy which supposes that pathologies such as corruption can be attributed entirely to deep and immutable social causes. If culture matters, so do the legal rules and institutions that shape our culture and behavior. To understand America’s problems with corruption, we’ll look more closely at some of those institutions, beginning with the most fundamental one of all, the Constitution.

       PART TWO

       THE SEPARATION OF POWERS

       If the Legislature elect, it will be the work of intrigue, of cabal, and of faction.

       —Gouverneur Morris

       — 5 —

       An Anticorruption Covenant

      IN 1789, Thomas Jefferson returned from Paris to become America’s first secretary of state. As neither he nor President Washington wanted entangling alliances with other countries, he would have time on his hands, but soon he became something more than a cabinet member. He also led a growing political movement that was troubled by a centralizing Federalist Party. Jefferson’s party came to be called Democratic-Republicans, and he would run as their candidate for president in 1796 and win the highest office in 1800.

      In Paris, Jefferson had witnessed the eruption of the French Revolution—the Tennis Court Oath, the storming of the Bastille, the Declaration of the Rights of Man. He returned “in the fervor of natural rights, and zeal for reformation” to what seemed to him a sadly conservative country.¹ In France the aristocracy had lost its feudal privileges, but in postrevolutionary America a new hereditary aristocracy appeared to be emerging around the Society of the Cincinnati’s officer class. Writing from France, Jefferson warned Washington that so much as a single fiber of the society left in existence “will produce an hereditary aristocracy which will change the form of our governments from the best to the worst in the world.”² There was also a rising moneyed aristocracy, based in New York and Philadelphia, composed of urban merchants whom the agrarian Democratic-Republicans saw as their natural enemy. The new financial class was led by Washington’s brilliant but imprudent secretary of the treasury, Alexander СКАЧАТЬ