COR RUP T IO N

IN AMERICA
 C O R RU P T IO N
I N AMER IC A

j
from b enj a min fr ankl in’s snuff b ox
to c i tizens united

ZEPHYR
TEACHO U T

Harvard University Press

Cambridge, Massachusetts • London, England • 2014
Copyright © 2014 by the President and Fellows of Harvard College
All rights reserved
Printed in the United States of America

Library of Congress Cataloging-in-Publication Data

Teachout, Zephyr.
Corruption in America : from Benjamin Franklin’s snuff box
to Citizens United / Zephyr Teachout.
pages cm
Includes bibliographical references and index.
ISBN 978-0-674-05040-2 (alk. paper)
1. Political corruption—United States—History. 2. Judicial
corruption—United States—History. 3. Political culture—
United States. 4. United States—Politics and government—
Moral and ethical aspects. I. Title.
JK2249.T43 2014
364.1'3230973—dc23 2014010417
 To Aly, Waylon, Jed, Celia, Sargent,
Zoe, Dewey, Esme, Garth, Elise, and Elva,
my big-hearted, big-dreaming nieces and nephews
 Contents

Introduction 1
1 Four Snuff Boxes and a Horse 17
2 Changing the Frame 32
3 Removing Temptations 56
4 Yazoo 81
5 Is Bribery without a Remedy? 102
6 Railroad Ties 125
7 The Forgotten Law of Lobbying 144
8 The Gilded Age 174
9 Two Kinds of Sticks 183
10 The Jury Decides 195
11 Operation Gemstone 205
12 A West Virginia State of Mind 215
13 Citizens United 227
14 The New Snuff Boxes 246
15 Facts in Exile, Complacency,
and Disdain 258
viii contents

16 The Anticorruption Principle 276

Conclusion 291

Appendix 1:
Anticorruption Constitutional Provisions 307
Appendix 2:
Major Nineteenth- and Twentieth-Century
Anticorruption Laws 311
Notes 313
Cases Cited 351
Further Reading 357
Ac know ledgments 359
Index 361
 Introduction

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 trea-
sure in [Franklin’s] entire estate.”1 It depicted the king with pow-
dered hair and red cheeks, wearing white lace around his throat,
two gold chains on his shoulders, and a blue robe with gold
fleurs-de-lis.2
In Europe, gifts were socially required upon a diplomat’s de-
parture. A valuable gift indicated a regent’s great favor and a job
well done. But in the new United States, the snuff box signified
danger. Such a luxurious present was perceived as having the po-
tential to corrupt men like Franklin, and therefore it needed to be
carefully managed. In Europe, in other words, the gift had posi-
tive associations of connection and graciousness; in the United
2 corruption in america

States, it had negative associations of inappropriate attachments

and dependencies. The snuff box stood for friendship or old
world corruption, respect or bribery, depending on the perspec-
tive. For the Americans it was a symbol of seduction, depen-
dency, luxury, and a European confusion about the proper rela-
tionship between politics, power and intimacy, and friendship.
According to an idiosyncratic anticorruption rule in the Ar-
ticles of Confederation, Franklin’s present had to be approved by
Congress, as did all gifts from foreign officials. By going through
Congress, and requiring a congressional stamp, the direct rela-
tionship between the king and Franklin was complicated, made
public, and partially reconstituted as a relationship between Con-
gress and Franklin. It was no longer in the realm of private reci-
procity and relationships, but was instead a regulated transaction.
As I will describe later, this rule was initially taken out of the pro-
posed Constitution but reinserted when some of the delegates to
the convention worried that its absence threatened corruption.
The argument of this book is that the gifts rule embodies a par-
ticularly demanding notion of corruption that survived through
most of American legal history. This conception of corruption
is at the foundation of the architecture of our freedoms. Cor-
ruption, in the American tradition, does not just include blatant
bribes and theft from the public till, but encompasses many
situations where politicians and public institutions serve private
interests at the public’s expense. This idea of corruption jealously
guards the public morality of the interactions between represen-
tatives of government and private parties, foreign parties, or other
politicians.
The king’s gift threatened this kind of corruption because it
encouraged a positive tacit relationship between France and
 introduction 3

Franklin, built on diamonds. This could interfere with Frank-

lin’s obligations to the country at large. No one charged the
king’s agent with explicit promises or threats. Instead, the worry
was that intimate obligations that arise from large gifts could
interfere with public commitments. Imagine anyone receiving
a gift of 408 diamonds “of the best water,” and then, a few hours
later, describing the gift giver in unattractive terms. The recipi-
ent would sound rude, ungrateful, and ungracious; we expect
that gifts lead to some warmth and generosity toward the giver,
if not official favors. Such private generosity, however, could vio-
late the posture that the diplomat is supposed to have toward
the leadership of the host country—the allegiance ought be
firmly to America. At the level of basic human intercourse,
Franklin owed something to the king after receiving such a gift.
These subtle sympathies threatened to corrupt Franklin because
they could interfere with his responsibility to put the country’s
interest first in his diplomatic judgments, and cloud his judg-
ments about French actions. The concern held even though
Franklin never planned to return to his post.
Americans started their experiment in self-government com-
mitted to expanding the scope of the actions that were called
corrupt to encompass activities treated as noncorrupt in British
and French cultures. Disappointed with Britain and Europe,
Americans felt the need to constitute a political society with
civic virtues and a deep commitment to representative respon-
siveness at the core. They enlisted law to help them do it, reclas-
sifying noncorrupt, normal behaviors from Europe as corrupt
behaviors in America. During the revolutionary period, the
Americans not only created a new country but crafted a power-
ful political grammar. The concept of corruption in Franklin’s
4 corruption in america

America drew on old traditions but augmented them and gave

them power. He and his cohort believed that if you don’t take
care to support public emotional attachments of those in power,
you can’t build a representative government. When they spoke
about corruption, the framers focused on the moral orientation
of the citizens and representatives, the most essential building
blocks of the republican state. Other political traditions focus
on the more material problems of stability, anarchy, inequality,
or violence. The American one focuses on the virtues of love for
the public and the dangers of unrestrained self-interest. As I
show throughout this book, this commitment to a broad view
of corruption stayed largely the same in the courts for the coun-
try’s first 200 years.
Corruption is often equated with modern criminal bribery
and extortion law, with kickback arrangements between mayors
and contractors, and with officials who accept cash to change
votes. But it plays a larger social and political role. The snuff box
incident demonstrated the belief that temptation and influence
work in indirect ways, and that corruption is not merely transac-
tional, or “quid pro quo,” as it is sometimes called.
The law that governed the portrait in a snuff box also exem-
plifies the founders’ preference for a certain kind of anticorruption
rule. These rules—which I call structural, or prophylactic—cover
innocent activity as well as insidious transactions. They stand
in contrast to laws that require corrupt intent to convict. They
work through changing incentives before the fact instead of
punishing activity after the fact. In the gifts clause and dozens
of other constitutional provisions, the framers built their bul-
warks against corruption through structural rules. For instance,
the residency requirement in the Constitution limits the freedom
 introduction 5

of people to run for Congress to where they live but is a worth-

while rule because it protects—imperfectly but practically—
against “adventurers.” Instead of requiring a jury to determine
whether Franklin was in fact in secret communications with
France, or whether there was in fact some whispered explicit deal,
the only demand the prophylactic gift rule makes is that no gift
be given without congressional approval.

• • •

The particular word corruption has a long tradition of playing

an important role in our country’s political transformation.
Charges of corruption and its variants were an essential force
in the creation of the Constitution and part of almost every
debate about governmental structure. In the first hundred
years of the Republic the problem of corruption drove key de-
cisions about how to structure government and business, and
how to restrain self-interested legislators. Corruption rhetoric
dominated the Jacksonian era. Corruption rallied people to
pass several of the post–Civil War constitutional amendments,
including the Seventeenth Amendment (allowing for the direct
election of Senators) and the Twenty-Seventh Amendment
(providing that congressional salary raises do not take effect
until the beginning of the next session of Congress). Charges of
system-wide corruption led to the 1880s antitrust statutes and
the twentieth-century enforcement thereof. Corruption, cor-
rupt, and related words were a major part of the grammar of
the populists and the progressive reformers and were accusa-
tions that supported the rise of prosecutorial post-Watergate
culture.
6 corruption in america

In its parallel life in the law, the concept of corruption has

also been transformative. Legal disputes around the meaning
of the concept of corruption—and in some cases the meaning of
the words corruption, corrupt, or corruptly—have often been so
vexing that they have forced courts to be inventive in other ar-
eas. This book focuses its attention on these moments of judi-
cial uncertainty and ingenuity. A corruption case about land
speculation in Georgia was the first case in which the Supreme
Court invalidated a state law on federal constitutional grounds.
The trail of corruption law leads to the public trust doctrine (an
important environmental rule), the mail fraud statute, Water-
gate, and independent expenditures. This book follows land and
debt scams through Tennessee and Chicago to the Oregon
Coast. It follows lobbying as it shifts from a civic wrong to a First
Amendment right. It explores legal responses to multicolored
ballots and a late 1920s scheme to abuse the public trust in New
Orleans. In bribery statutes, courts had to decide how to in-
struct juries about the meaning of “corruptly” in statutes. The
relationship of corruption to law has led to a series of consequen-
tial questions that are inevitably entangled with political theory.
The meaning of the concept of corruption is now at the cen-
ter of the most vital legal dispute in our democracy, one that
threatens to unravel what the framers built. This dispute has its
roots in Buckley v. Valeo, a 1976 case that struck down a law lim-
iting campaign spending. While the Buckley Court recognized
that there was a legitimate reason the public might want to stop
corruption, it concluded that the provisions limiting spending
did not have much to do with corruption. It did not define cor-
ruption or completely narrow it to explicit transactions—that
came later—but it set up an awkward jurisprudential frame-
 introduction 7

work in which civic interests in blocking corruption are set up

in opposition to First Amendment speech rights. Buckley also
put the brakes on experimentation in the states, although it left
some campaign finance rules untouched.
An aggressive misreading of Buckley that began in 2006 led to
Citizens United in January 2010, when the U.S. Supreme Court
made one of the most consequential decisions in American po-
litical history. Citizens United effectively gave wealthy individuals
and wealthy corporations the right to spend as much money as
they wanted attempting to influence elections and policy. The
Court concluded that, as a matter of law, uncoordinated corpo-
rate spending was archetypal political speech and such spending
did not corrupt candidates or the political system.
The crux of the Citizens United opinion is a claim about the
nature of corruption and its historical role in American law. Jus-
tice Kennedy, writing for the majority of the Court, defined
corruption as bribery, and bribery as quid pro quo. By quid pro
quo he meant not the contract law phrase quid pro quo, which
has traditionally meant equal exchange, but a particular under-
standing of quid pro quo that has developed in the corruption law
context since Buckley. For Kennedy, quid pro quo meant explicit
exchange of something of value for a specific, identifiable legisla-
tive or executive act. In applying this definition, he wrote that “in-
dependent expenditures, including those made by corporations,
do not give rise to corruption or the appearance of corruption.”
He argued that “the fact that speakers may have influence over or
access to elected officials does not mean that these officials are
corrupt.” In 2014, Justice Roberts’s decision in McCutcheon v.
FEC confirmed this analysis. The only constitutionally cogniza-
ble corruption, he wrote, is quid pro quo corruption.
8 corruption in america

This new legal order treats corruption lightly and in a limited

way. It narrows the scope of what is considered corruption to
explicit deals. It reclassifies influence-seeking as normal and de-
sirable political behavior. It purportedly avoids difficult prob-
lems of definition. It attempts to wring the moral content out of
the term corruption and tell a story about corruption that is con-
sistent with a world populated by self-interested actors.
Such efforts are misguided. They do not really avoid the defini-
tional problems, because quid pro quo, while sounding specific, is
itself a contested term with a range of meanings. Most impor-
tantly, they are very dangerous to the health of the nation. The
a-historical—and potentially tragic—mistake made by the
Kennedy-Roberts model flows in part from a modern tendency to
look at political-legal problems through the lens of the First Amend-
ment, and in part from a belief that the corrupting influence of
money is moot because everyone in politics is already on the take.
The justices have also likely been influenced by many politi-
cal scientists and legal scholars who have adopted the selfish-
man theory of human nature in the late twentieth century, an
assumption that people will be self-interested in their behavior
in all areas. As one theorist put it: “There is one human motiva-
tor that is both universal and central to explaining the divergent
experiences of different countries. That motivator is self-interest.”
Such a theory of human nature is incompatible with the tradi-
tional American theory of corruption. The two most abrupt
breaks with the historical meaning of corruption—Buckley and
Citizens United—have occured when no politicians were on the
Court. This suggests that biography may also explain the recent
abandonment of old ideas. While lower courts and state courts
have consistently expanded the scope of corruption laws, an op-
 introduction 9

posite movement has happened on high. The Court has become

populated by academics and appellate court justices, and not by
people with experience of power and politics, who understand
the ways in which real problems of money and influence mani-
fest themselves. The lack of experience is compounded by a ten-
dency to decide cases without full factual development.

• • •

The Citizens United decision was not merely bad law; it was bad
for politics, and displayed an even worse understanding of his-
tory. Americans from James Madison onward have argued that
it is possible for politicians and citizens alike to try to achieve a
kind of public good in the public sphere. The traditional view is
not naive—it does not assume that people are generally public-
regarding. It assumes that the job of government is to create
structures to curb temptations that lead to exagerated self-
interest. It certainly recognizes the power of self-interest; but in-
stead of endorsing it, the traditional American approach makes it
government’s job to temper egocentrism in the public sphere. The
traditional conception implicates difficult questions: What is self-
orientation and public orientation, and what is the public good?
But it does not discard these distinctions because they are dif-
ficult ones to parse. A classical American approach engages the
complexity. Like liberty, speech, or equality, corruption is an
important concept with unclear boundaries. It refers to exces-
sive private interests in the public sphere; an act is corrupt when
private interests trump public ones in the exercise of public
power, and a person is corrupt when they use public power for
their own ends, disregarding others.
10 corruption in america

Corruption in America is my effort to fill in the history that

Citizens United ignored. It provides a previously neglected story
of the use of the concept in American law and a much-needed
account of the different kinds of meanings attached to it
throughout the political life of the country. I show that for most
of American history, courts remained committed to a broad
view of corruption. The book draws primarily upon the texts
used by lawyers: the Constitutional Convention, cases, and
statutes. It shows how, starting in the late 1970s, everything be-
gan to change around this issue. The Supreme Court, along
with a growing subset of scholars, began to confuse the concept
of corruption and throw out many of the prophylactic rules that
were used to protect against it. This rejection has led to an over-
flow of private industry involvement in political elections and a
rapid decline in the civic ethic in Congress and the state houses.
The old ideas about virtue were tossed out as sentimental, but
the old problems of corruption and government have persisted.
Interest-group pluralists who reject these ideas do not, I believe,
have an answer to the problem of corruption and in fact have
been part of the problem.
The contemporary era is full of proverbial diamond-encrusted
gifts, although they are less likely to come from the king of France.
Instead, they come from the lords of highly concentrated, mo-
nopolistic industries who, like the king of France in 1785, have an
intense and personal interest in the political choices of the legis-
lative branches and a casual disregard for the civic process. Can-
didates are dependent upon the gifts of wealthy individuals in
the form of campaign contributions and businesses in the form
of independent political expenditures. The impulse to resist
these presents is a deeply American one, going all the way back
 introduction 11

to the founding. But in order to protect this resistance, we will

need tools and approaches that are alien to the modern law and
economic transactional understandings of corruption.
The book argues that prophylactic rules designed to limit
temptations are not a backwater but a cornerstone of what is
best in our country. In our modern prosecutorial culture, one
might be tempted to think that white-collar bribery laws, which
I categorized as “corrupt intent” laws, would be the appropriate
tool for fighting corruption. But they are problematic. If a brib-
ery statute is narrowly drawn (or interpreted), it covers only
brazen, unsophisticated exchanges and does not actually solve
problems of money being used to influence policy and under-
mine representative government. A narrow law will punish only
clumsy politicians like William Jefferson, who hid his rolls of
cash in a freezer. More broadly interpreted corrupt intent laws
are troubling for the opposite reason: since they proscribe giv-
ing a “thing of value” with “intent to influence” governmental ac-
tion, they can be used to punish political enemies. By their
terms, they can even cover a politician’s promise to help a teach-
ers’ group in exchange for an endorsement. A criminal law “War
on Corruption” is arguably like the wars on drugs or terror—
nearly impossible to win in arraignments. Corruption is far bet-
ter fought through changing basic incentive structures. This
might seem intuitive to anyone involved in politics, but the ma-
jority of the current Supreme Court openly prefer bribery laws
to prophylactic campaign spending limits: one of their justifica-
tions for striking down campaign finance rules is that corrupt
intent laws provide better protection.
I seek to enrich the way American judges, scholars, and citi-
zens imagine the concept of corruption and its relationship to
12 corruption in america

our legal system. The book challenges four commonly held mis-
conceptions: that corruption law began in the post-Watergate
era, that criminal bribery law is the dominant sphere in which
corruption law plays out, that bribery law is coherent and con-
sistent, and that quid pro quo is the heart of corruption law. A
deeper understanding of the tradition of corruption can enrich
our civic culture and our laws.
If the Supreme Court can better remember our past, it might
overturn dozens of cases that have limited the capacity of elected
legislatures to make their own experiments in democracy. And if
we, as citizens, can remember our past, it could augment the way
we think about our founding principles. What if we could add
“anticorruption” to citizens’ sense of national identity?

• • •

We are a nation of dreamers and reformers, and in our struggle

with corruption, tens of thousands of reforms have been offered
up, some more colorful than others. In 1860 a correspondent of
the Chicago Press and Tribune had a big idea about how to re-
spond to the corruption he saw in Washington. The city, he
said, was an

out-of-the-way, one horse town, whose population con-

sists of office-holders, lobby buzzards, landlords, loafers,
blacklegs, hackmen and cyprian—all subsisting on public
plunder. . . . The paramount, overshadowing occupation
of the residents, is office-holding and lobbying, and the
prize of life is a grab at the contents of UNCLE SAM’s till.
The public plunder interest swallows up all others, and
 introduction 13

makes the city a great festering, unbealable sore on the

body politic. No healthy public opinion can reach down
here to purify the moral atmosphere of Washington.3

What reform did the writer advocate? Moving the capital to

New York City. There, he argued, the office-jobbers would get
swallowed up in a less corrupt culture. This book cannot
describe all the reforms proposed and rejected or adopted. In-
stead, I use examples of different kinds of reforms in order to
discuss the interaction of the courts with the law of corruption.
In the Conclusion, however, I introduce two of the most impor-
tant structural reforms allowed by current jurisprudence: public
funding of elections and new antimonopoly laws.
For better or worse, American corruption law is so hydra-
headed that my book cannot do its intrigues full justice. There-
fore, after examining the founding era, I focus on cases in which
there are powerful competing ideas about corruption, or com-
peting ideas about who should define it. There are important
areas of corruption law that this book only lightly touches on,
like contracting rules, transparency laws, state and local govern-
ment conflict of interest laws, administrative law, and judicial
recusal laws. The great battle between machine politicians and
reformers is for another day. Boss Tweed shows up only as an
exception. His case violated the general rule that criminal brib-
ery laws, for most of the nation’s history, were a weak and rarely
seen flank in the anticorruption fight.
As Jack Burden learns in the great American novel All the
King’s Men, there are no untainted men or women. His boss,
the populist politician Willie Stark, charges him with finding
something sordid about a seemingly completely virtuous father
14 corruption in america

figure in his life: “I said, ‘But suppose there isn’t anything to

find?’ And the Boss said, ‘There is always something.’ And he
said, ‘Man is conceived in sin and born in corruption and
he passeth from the stink of the didie to the stench of the
shroud. There is always something.’ ”4 A call for a return to tra-
ditional conceptions of corruption should not be confused with
a call for a return to some golden era, or to a culture of moral
purity. There is no such time.
Instead, I hope for a deeper understanding of the complex
ways in which private and public morality intersect, and greater
respect for the political dangers that flow from untethered self-
interest. That understanding will lead to judicial support for
clear rules that prevent us from succumbing to temptation. To
borrow the lesson of one of the greatest works of political fic-
tion, if we do not bind ourselves to the mast beforehand, we
could end up in a graveyard alongside other former republics.
The book is divided into four sections. The first provides
an introduction to corruption in the Constitutional period; the
second examines the development of corruption law from the
founding to the late nineteenth century in three different areas
(criminal bribery laws, corruptly passed laws, and lobbying);
the third traces campaign finance and bribery laws in the twen-
tieth century; and the fourth addresses the revolution epito-
mized by Citizens United.
My passion for the book springs out of my own civic patrio-
tism. To quote James Madison, “My wish is that the national
legislature be as uncorrupt as possible.” This is not a modest
wish. But the United States has a profound civic culture, ex-
pressed all the time in the myriad ways in which people ask each
other “what should we do?” instead of “what do I want?” when
 introduction 15

faced with public policy questions. If the structure of society

stops being responsive, the latter question will inevitably over-
take the former. I believe that the concept of corruption may be
a difficult one, but we need it to survive. As the political theorist
Hannah Arendt writes, no one in the classical tradition thinks
that democracy is either the end of history or inevitable. In other
words, democracy is always threatened. The point is not that it
is easy, but that it is possible.
After the Philadelphia convention, a woman famously asked
Benjamin Franklin, “What have we got, a republic or a monar-
chy?” Franklin allegedly replied, “A republic, madame, if you can
keep it.” His own gift to the country may have been his peculiar
blend of persistent pessimism and persistent optimism, which
inserted itself powerfully into the Constitutional Convention.
Speaking before the convention in Philadelphia in 1787, Frank-
lin said that the Constitution was “likely to be well adminis-
tered for a course of years, and can only end in despotism, as
other forms have done before it, when the people shall become
so corrupted as to need despotic government, being incapable of
any other.” Franklin’s political philosophy epitomized twin
American desires to privilege private behavior and celebrate the
precious nature of public-oriented government. In his youth he
valorized thrifty private behavior; in his later years he turned
outward and spoke about corruption in a deeply visceral way.
Franklin’s understanding of politics included a theory of power,
and how power could be exercised through inveiglements and
the promise of future employment. Franklin was at heart a prac-
tical politician and had spent decades abroad and decades in the
politics that preceded the Revolutionary era. His own love of
luxury and the good elements in life may have made him wary
16 corruption in america

of the power of temptations. Temptation is a central theme of

the book: as you will soon see, even the antiaristocratic Thomas
Jefferson could not resist the temptation of hiding diamond
gifts from the king when there were debts to pay.
What America now faces, if we do not change the fundamen-
tal structures of the relationship of money to legislative power, is
neither mob rule nor democracy, but oligarchy.
 chapter one

j
Four Snuff Boxes and a Horse

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 am-
ity and warmth in a way no explicit deal can. But gifts play a
potentially dangerous role in both judicial and democratic prac-
tice. They can create obligations to private parties that shape
judgment and outcomes. Part of designing a political system is
separating gifts from bribes—that is, defining what gifts ought
be categorized as corrupting. As Daniel Hays Lowenstein ar-
gued thirty years ago, a concept of corruption or bribery “means
identifying as immoral or criminal a subset of transactions and
relationships within a set that, generally speaking, is fundamen-
tally beneficial to mankind, both functionally and intrinsically.”1
In two recent cases—Citizens United and McCutcheon v.
FEC—Supreme Court justices Anthony Kennedy and John
Roberts wrote that campaign contributions—gifts—given with
18 corruption in america

intent to influence policy are not corrupting. As they explained

it, corruption requires more than intent on the part of the gift
giver; it requires something like an explicit deal between the
giver and receiver. When they made these pronouncements, they
claimed to be merely following precedent. In fact, they were do-
ing what Lowenstein suggested: identifying and circumscribing
a small subset of activities as corrupt. Their circle was particu-
larly small. In the early days of the republic, the new Americans
took the opposite approach. They drew a large circle around
gifts that they called corrupt. They were committed to treat-
ing gifts as political threats, even when such treatment violated
the law of nations and complicated vitally important interna-
tional negotiations, and certainly when the gifts were not ac-
companied by an explicit deal.

Plato’s Republic in the New World

During and after the Revolutionary War the new Americans
were driven by a fear of being corrupted by foreign powers, and
a related fear of adopting the Old World’s corrupt habits. The
two national powers that dominated the colonies, France and
Britain, represented two different models of corruption. Britain
was seen as a failed ideal. It was corrupted republic, a place
where the premise of government was basically sound but civic
virtue—that of the public and public officials—was degenerat-
ing. On the other hand, France was seen as more essentially
corrupt, a nation in which there was no true polity, but instead
exchanges of luxury for power; a nation populated by weak sub-
jects and flattering courtiers. Britain was the greater tragedy,
because it held the promise of integrity, whereas France was
 four snuff boxes and a horse 19

simply something of a civic cesspool. John Adams said of France,

“there is everything here too which can seduce, betray, deceive,
corrupt, and debauch.”2 As Thomas Jefferson—who adored
Paris—wrote in 1801, the year he became president:

We have a perfect horror at everything like connecting

ourselves with the politics of Europe. It would indeed be
advantageous to us to have neutral rights established on a
broad ground; but no dependence can be placed in any
European coalition for that. They have so many other bye-
interests of greater weight, that someone or other will al-
ways be bought off. To be entangled with them would be
a much greater evil than a temporary acquiescence in the
false principles which have prevailed.3

This “hatred” of the European political culture and the fear

of entanglement led to a problem. The new Americans wanted
to be part of the international community, respect the laws and
customs of nations as a matter of principle, and be respected as
an autonomous new nation. But they also wanted to reject cor-
rupt European customs. When it came to internal affairs, this
was not a major conflict. But when it came to the customs of
international diplomacy—like the custom of exempting ambas-
sadors from paying duties—they wanted it both ways.
One of the customs of the international community was the
giving and receiving of personal presents to ambassadors, as I
described briefly in the Introduction. Expensive gifts—sometimes
called presents du roi or presents du congé—functioned as “tokens
of esteem, prestige items, and perhaps petty bribes,”4 and were
embedded in the culture of international relations. Gifts were
20 corruption in america

typically given at the end of diplomatic tours. They were often

very expensive, and were understood to be a supplement to sala-
ries. In some cases the value of gifts constituted a substantial
part of the income received by diplomats. The value of a gift
might reflect the esteem in which a diplomat was held, or the
importance of the relationship with his nation.
This practice was hateful to the Americans because it sym-
bolized and embodied part of a particular culture they rejected.
Jewels themselves signify luxury. They pointed to an old-world
privilege that would not come easily to even the richest Ameri-
cans. In the founders’ minds, luxury represented a kind of inter-
nal corrosion—even in cases where there was no external de-
pendency, a man could be tempted into seeking out things for
himself, instead of seeking things for a country—he could, in
some ways, self-corrupt. The diamonds of Franklin’s gift would
have seemed ostentatious to the founders.
The Articles of Confederation included this provision: “Nor
shall any person holding any office of profit or trust under the
United States, or any of them, accept any present, emolument,
office or title of any kind.” This ban on receiving gifts was per-
ceived as severe and not a little eccentric. The provision was a
close copy of a 1651 Dutch rule that their foreign ministers were
not allowed to take “any presents, directly or indirectly, in any
manner or way whatever.”5 The code was so far outside the nor-
mal state of affairs that it was ridiculed for its sanctimony. The
Dutch political writer Wicquefort’s analysis of the Dutch pro-
hibition against receiving gifts was scathing: “The custom of
making a present . . . is so well established that it is of as great
an extent as the law of nations itself, there is reason to be sur-
prised at the regulation that has been made on that subject in
 four snuff boxes and a horse 21

Holland.” Wicquefort went on to write about how so scrupulously

observant they are that they refuse even the most trivial presents.
He accused his countrymen of silliness for making a fuss over
the smallest gifts, even a plate of fruit. “I cannot tell,” he writes,
“whether the authors of this regulation pretended to found a Re-
publick of Plato in their fens and marshes,” but “it cannot be de-
nied” that they “condemn the sentiments of all the other kings and
potentates of the universe.”6 He may have been referring to Plato
because Plato had been rather severe about gifts. Not only did he
recommend dishonor for judges who were bribed by flattery, but
he thought that public servants who accepted gifts should die:

Those who serve their country ought to serve without re-

ceiving gifts, and there ought to be no excusing or approv-
ing the saying, “Men should receive gifts as the reward of
good, but not of evil deeds”; for to know which we are do-
ing, and to stand fast by our knowledge, is no easy matter.
The safest course is to obey the law which says, “Do no
service for a bribe,” and let him who disobeys, if he be con-
victed, simply die.7

The American founders did not advocate execution for gift-

acceptance, but they might have taken Wicquefort’s ridicule as
a compliment—they were interested in establishing their own
just republic. But their idealism quickly became difficult in the
international context. The Europeans were not interested in
complying with this new, self-imposed ban. During the early
years of American independence, foreign princes generously
loaded American emissaries with expensive gifts, and the Amer-
icans receiving the gifts had to figure out how to respond.
22 corruption in america

The first gift problem arose after the Declaration of Indepen-

dence was signed. That was when American politician Silas
Deane was charged with discovering whether France might be
willing to aid the Americans with cannons, arms, and military
clothing for the Revolution. Deane was a Yale graduate, a lawyer,
a merchant, and politician who was known as “Ticonderoga” by
some for his strategic role in the successful Ethan Allen capture
of Fort Ticonderoga.8 His first effort in France was not so much
diplomacy as espionage. Under the name “Timothy Jones,” he
posed as a merchant trying to buy supplies for the rebels. When
it became clear that France was open to trade with the colonies,
he abandoned his disguise and established himself as one of the
first formally commissioned representatives of the aspiring
country. He was soon joined by Benjamin Franklin and Arthur
Lee. The three men grew to hate each other, and the delegation
was full of accusations and counteraccusations. Deane accused
Lee of disloyalty, Lee thought Franklin was corrupt, and Frank-
lin thought Lee was a lunatic.9
Deane’s tenure was troubled from the start, as there were ru-
mors about his loyalty. He was accused of using his public posi-
tion to make a private fortune by manipulating the commissions
he received on procured goods. His financial accounting was
questioned, and he was generally thought of as ambitious and
too tricky by half. Adams found him untrustworthy and dis-
tasteful. In 1778 Deane was recalled to Congress, charged with
fraudulent account keeping and disloyalty.10
When he left France, Deane received a jeweled snuff box for
his diplomatic service from the French court. King Louis loved
these boxes and frequently gave them to foreign ministers. He
allegedly called them boîte à portrait instead of snuff boxes: he
 four snuff boxes and a horse 23

disliked snuff, but liked the form and frequently adorned them
with portraits of himself.11 Deane apparently thought the gift
would help save his reputation: he offered it as proof of the great
work he had done for the new country. According to Arthur Lee’s
account, Deane “expected, from the effect of a French Fleet, of
which he was to claim the sole merit, the brilliancy of a diamond
snuff box, and complimentary letter,” that he would return to the
United States with sufficient proof of his loyalties.12 John Adams
was dismissive of the use of evidence, remarking that “unthinking
men may be amused with a golden snuff box.”13
Deane’s acceptance of the snuff box led to Lee accusing him
of violating one of the core laws of the Confederation. In his
papers on the matter, Lee wrote: “Deane knew that it was one of
the fundamental laws of our Union that no person in the service
of the United States should accept from any king, prince, or
minister any present or gratuity whatsoever . . . yet in the face of
this fundamental law, Mr. Deane accepted of a gold snuff, set
with diamonds, from the King of France.”14 The disloyalty and
accounting accusations against Deane were never proven, as the
French did not disclose their accounting. Deane would eventu-
ally return to France, disgraced but not sentenced. But the ques-
tion of the appropriate relationship to foreign gifts remained.
It turns out it was far easier to criticize the gift acceptance
than to resist it: the next snuff box went to Lee himself. Lee,
along with Franklin, had negotiated the 1778 treaty with France.
When Lee returned to the American states in 1780, he carried
with him a new jeweled snuff box, also given to him by King
Louis XVI, with the king’s portrait set in diamonds. Lee was
understandably concerned about the appearances of accepting
the box—in part because Deane had countercharged him with
24 corruption in america

disloyalty. But Lee was also worried about offending the king.
He wrote to a friend that the snuff box might “excite some mur-
murs” and thought that the Articles of Confederation might
prevent accepting the gift.15 Like most humans, he found the
ethical proscriptions of others easy to understand but when he
was placed in the same situation as Deane, he was less sure about
what to do.
As Lee was then embroiled in accusations that he had given
offense to the French court, the gift also served for him as “proof
of the untruth” of the accusations against him.16 The French li-
aison, Vergennes, “warned his adjutant in Philadelphia that an
unscrupulous politician like Arthur Lee might employ the King’s
portrait . . . to give the impression that he (Lee) held the king’s
confidence and thus could speak freely on matters of French
foreign policy.”17 Lee wrote to his brother, “as you can imagine, I
was embarrassed about receiving or refusing it.” He explained
that he had told the court that receiving such a gift was against
the rules of those he represented, but the court insisted. Lee
ultimately gave the gilded box to Congress to determine what to
do with it. He wrote to the Committee of Foreign Affairs on
January 19, 1780:

I thought it my duty to decline accepting it, upon which

his excellency told me it was a mark of his majesty’s es-
teem, and was never refused. After this it appeared to me
improper to persist in the refusal, and I received it with a
determination to leave it to the disposal of Congress. . . .
His majesty’s portrait is graven upon my mind by the jus-
tice and virtue which constitute his character, of which
gold and jewels can not enhance the value.18
 four snuff boxes and a horse 25

Congress eventually allowed him to keep it.

The next gift that excited internal discussion was not a bôite-
a-portrait, but a horse. John Jay, as the ambassador to Spain, was
negotiating over navigational rights with Spain’s representative
Don Diego de Gardoqui on behalf of the Americans.19 He had
asked for a permit to buy a Spanish horse for breeding, but de
Gardoqui told him that the king of Spain wanted to give him a
horse instead. “His majesty, instead of granting a permit, or-
dered a horse to be sent from me to you,” a horse that, by the
time the letter reached Jay, had already been chosen and sent to
a port where it only awaited the arrival of a vessel that would
transport the horse to Jay. Jay responded with some trepidation.
He knew, of course, of the prohibition against gifts, and likely
knew of the public attention that accompanied Lee’s and
Deane’s acceptances of their boxes.
A few days later, he wrote back, thanking his correspondent
for the honor of having a horse purchased and exported for him.
However, he said that he did not “consider himself at Liberty to
accept the horse without the previous Permission of Congress.”20
Two days later, after he shared the letters with Congress, they
gave him permission to keep the horse.
The final notorious gift in the post-Revolutionary period was
the snuff box and portrait given to Benjamin Franklin. This os-
tentatious, diamond-decorated gift was troubling in general,
but Franklin’s place in the American imagination, and his well-
known affection for the French, likely made it an especially
worrisome gift. Franklin was notoriously adored by the French
court. He was well loved in the United States as well, but not
above the suspicion that other diplomats were subject to. Many
of Franklin’s cohorts did not trust him. Franklin had spent
26 corruption in america

most of the post-Revolutionary years in France and had fallen in

love with it. His veneration of France was such that even Sam
Adams was concerned that he had turned Tory.21 Two unsuc-
cessful recall efforts had been launched against him by some re-
publicans, concerned about his close connections to the French
royalty. William Lee called England “the old mule,” and Frank-
lin “the old fox,” a sly way of calling him too sly by half. Arthur
Lee called Franklin “the most corrupt of all corrupt men.”22
Franklin’s diamonds embodied a whole set of fears about pa-
triotism in general, loyalty in a republic, and the particular, time-
sensitive concerns about how extremely elaborate gifts might
sway Franklin’s attitude toward his semi-permanent residence—
Paris—and against his American home. Given Franklin’s out-
sized role in the American political landscape, and France’s
wealth, this particular gift portended more than warmth and
friendship. It was a show of power. France loomed large and
threatening in American political life. The Franco-American re-
lationship was halfway between troubled and passionate—the
Americans deeply admired France and hoped for their contin-
ued alliance against the British, but at the same time feared
that France aspired to slide into the colonial role from which
they had violently ejected Britain. Newspapers were full of
suggestions that the French government had designs on the
country. In 1785 Franklin turned the portrait over to Congress
and asked for approval to keep it, which, in the spring of 1786,
they granted.23
At the Constitutional Convention, many parts of the Arti-
cles of Confederation were changed, but the framers kept the
portion that would become Article I, Section 9 of the Constitu-
tion. It is one of the more strongly worded prohibitions in the
 four snuff boxes and a horse 27

Constitution: “No person holding any office of profit or trust

under them [the United States], shall, without the consent of the
Congress, accept of any present, emolument, office, or title, of any
kind whatever, from any king, prince, or foreign state.” The initial
draft of the new Constitution that was circulated and debated
throughout the summer of 1787 did not include this provision,
but merely prohibited titles of nobility. On August 23, however,
delegate Charles Pinkney “urged the necessity of preserving for-
eign Ministers & other officers of the U. S. independent of exter-
nal influence” and moved to reinsert the radical Dutch clause.
The gifts section softens the prohibition of the Articles of
Confederation, inasmuch as it allows for gifts and emoluments
if they are approved by Congress—the initial version declared a
complete ban.24 However, the softening may have merely ad-
justed the language to the contemporary meaning as it had been
interpreted in both countries. According to John Quincy Adams,
when he asked a Dutch friend about how they enforced their
similar provision, the friend explained that a gift was almost
always allowed when it was first presented to the government
for approval.25
The clause was not extensively discussed in the Constitu-
tional Convention, but there is some evidence that it was ac-
tively contemplated in connection with the corrupting potential
of one of the snuff boxes, possibly Franklin’s.26 Virginian Ed-
mund Randolph, describing the clause to the Virginia delegates
as they were deciding whether or not to ratify the Constitution,
explained:

This restriction was provided to prevent corruption. . . . An

accident, which actually happened, operated in producing
28 corruption in america

the restriction. A box was presented to our ambassador by

the king of our allies. It was thought proper, in order to
exclude corruption and foreign influence, to prohibit any
one in office from receiving or holding any emoluments
from foreign states.27

The lack of an exception for small tokens in the gifts clause is

striking. The clause does not merely stop at “no gifts,” but em-
phasizes the prohibition through the use of “any kind whatever,”
underlying the extreme importance of the prohibition.28 More-
over, it forbids presents—not bribes. No exchange or agreement
is required to bring it within the ban. That fierce rejection “of
any kind whatever” reveals a commitment to transforming the
political culture that persisted from the Revolutionary era to the
Constitutional era. It was a ban on a culture of gift giving.

Jefferson’s Brilliants
The last Constitutional-era snuff box never made it in front of
Congress. When Thomas Jefferson, after the Constitution was
ratified, took his own turn as a diplomat to France, he thought
at first that he could be free from the custom of receiving gifts,
which he found distasteful. As one of his biographers put it,
“Jefferson thought it mercifully prohibited by the Constitution.”29
Nonetheless, the French court gave him a snuff box at the end of
his tour, embedded with “brilliants” surrounding a portrait of the
king. It was valued slightly less—but only slightly—than the one
given to Franklin. He wrote to his assistant William Short,
asking him to let the appropriate parties know that the gifts
clause meant that he could not accept the customary present
 four snuff boxes and a horse 29

from the king. “Explain to them that clause in our new constitu-
tion which [says] ‘no person holding any office of profit or trust
under the U.S. shall accept any present, emolument, office, or
title of any kind whatever from any king, prince or foreign state.’ ”
Jefferson recognized that he could go through Congress for ap-
proval but told Short he did not choose “to be laid on the grid-
iron of debate in Congress for any such paltry purpose,” so he
should not even let the relevant parties know about it. “Be so good
as to explain it in such a manner as to avoid offence.” The difficul-
ties attending the gift caused Jefferson “considerable anguish,”
but he eventually accepted it.
Instead of going through Congress, he asked his secretary to
take the gilded frame, remove the diamonds, catalogue and value
them, sell the most valuable, put the money toward Jefferson’s
own private account, and not report it. Literary historian Mar-
tha Rojas describes his response as “both calculated and tor-
tured,” and argues that it may have been driven by concerns
about money. His letters to Short on the matter were written in
cipher. He asked him to take out the diamonds and sell them,
and then safely return the portrait, doing whatever was neces-
sary to keep attention away.30 Upon Short’s instructions, the
banker extracted the diamonds.31 The money raised from the
sale of the diamonds was put into his own account and used to
pay for the diplomatic presents and embassy debts. When it was
done, Short wrote: “I send you . . . the remains of what I received
for you, agreeably to your desire. The secrecy you requested is
fully observed.”32
Whether Jefferson did not want to offend the French or could
not resist the temptation of a chance to pay off debts, we cannot
know. But his simultaneous disdain for European gifts and his
30 corruption in america

inability to resist them foreshadow a long American practice:

our desire to reject and accept the old practices simultaneously;
our inability, at a deep level, to wrestle with how to allow wealthy
presents and politics to coexist. The fate of the “dismembered”
portrait of France is unknown.
The new political process envisioned by the new Americans
gradually took hold. Congress appears to have taken its job seri-
ously. A relative of Charles Pinckney was given gifts after his
tours in Madrid; while the Senate approved receiving the gifts,
the House did not, saying that it was against public policy. In
the following years, horses, lions, and medallions were submit-
ted to Congress for approval.33
In Joseph Story’s 1829 commentary on the Constitution, he
found great importance in the gifts clause. He argued that there
“cannot be too much jealousy in respect to foreign influence.
The treasures of Persia were successfully distributed in Athens;
and it is now known that in England a profligate prince and
many of his venal courtiers were bribed into measures injurious
to the nation by the gold of Louis XIV.” He argued that the
clause should be extended to cover all citizens (an amendment
circulating at the time would have had that effect). His proposed
solution? “Disfranchisement, or a deprivation of all the rights of
a citizen, seems the most appropriate punishment that could be
applied, since it renders the seduction useless to those who were
the authors of it, and disgraceful to the person seduced.”
Was Franklin corrupted by his gift? Were Lee, or Deane,
corrupted by their boxes or Jay by his horse? The constitutional
gifts provision does not provide an answer, but it does announce
an attitude toward corruption and a way of thinking about it.
The clause was, as Lee called it, “fundamental,” in part because
 four snuff boxes and a horse 31

it expressed a new view of the appropriate way to be a public

representative of a country. It reflected a broad view of what con-
stitutes corruption, a broad view of the importance of protecting
against even the slightest temptation, and a commitment to us-
ing absolute, prophylactic rules to support a civic society in
which people put public interests first in their public roles. The
work that it took to change a culture highlights the strain of a
country attempting to reject old traditions and replace them with
their own, and to declare unconstitutional that which was only
recently “good diplomacy.”
In retrospect, all the fuss about diamond boxes and horses
may seem like an amusing footnote to the larger discussions
about redefining liberty and ambitions of true self-government.
But they were not amusing to a country living in fear of the fate
of all republics.
 chapter t wo

j
Changing the Frame

A republic flourished politically and culturally for

centuries, until a slow corruption of public life by private con-
cerns 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 in-
creasingly involved in intrigue and abuse of power, lost a sense
of civic virtue, and in so doing, lost the republic.
This republic is not America. It was Rome, as analyzed by
Edward Gibbon. In 1776, the same year that independence was
declared, Gibbon published volume 1 of The History of the De-
cline and Fall of the Roman Empire. It was a popular success. In a
literary letter to Benjamin Franklin, a friend referred to the first
volume as one of only two recently published books worth men-
tioning, along with Adam Smith’s The Wealth of Nations.1 In
1781, the year the Articles of Confederation were ratified, Gib-
bon published the second and third volumes. In 1788 and 1789,
 changing the frame 33

as the Constitution came into effect, Gibbon published his last

installment of The Decline and Fall, the fourth, fifth, and sixth
volumes. For the avid reader of that generation, Rome collapsed
while America was born.
Gibbon covered 500 years of history, a remarkably minute
description of petty and profound arguments, scheming, and
treachery, and the battles at the edges of the collapse of the great
empire. But he did not merely stick to the past. Gibbon argued
that representative bodies, structured wisely and fairly, could
allow liberty to survive. He contemplated how the right consti-
tutional forms could have allowed the golden era of Roman cul-
ture to persist. He argued that if “an institution, which gave
the people an interest in their own government, had been uni-
versally established by Trajan or the Antonines, the seeds of
public wisdom and virtue might have been cherished and prop-
agated in the empire of Rome.” Representative assemblies might
have prevented the “abuses of an arbitrary administration” and
foreign invasion.
“Under the mild and generous influence of liberty, the
Roman empire might have remained invincible and immortal;
or if its excessive magnitude, and the instability of human affairs,
had opposed such perpetual continuance, its vital and constitu-
ent members might have separately preserved their vigour and
independence.”2
Gibbon both reflected and influenced the intellectual cur-
rents of eighteenth-century intellectuals, with a particular mes-
sage for the new revolutionaries trying to build sustainable po-
litical architecture. The Americans read the story of Rome as a
direct analogy to the corruption in the British Empire and a cau-
tion for the future. Gibbon’s blended tones of caution and hope
34 corruption in america

were evident throughout the American elite around the time

of the Constitutional Convention. The Roman narrative held a
strong grip on the imaginations of the framers. After he bor-
rowed it from a friend, Benjamin Franklin was “quite absorbed”
in Gibbon, so much so that repeated requests to return it were
unavailing.3 Jefferson had his own copy of The Decline and Fall.
In one section he transcribed in the margins a poem attributed
to the fictitious Irish warrior-poet Ossian:

I have seen the walls of Balclutha, but they were desolate.

The stream of Clutha was removed from its place by the
fall of the walls. The thistle shook there its lonely head.
The moss whistled to the wind. The fox looked out from
the windows: the rank grass of the wall waved round his
head.

He, and the other framers, were haunted by the spector of fu-
ture desolation.
But Gibbon was not the only source of the preoccupation
with Rome. The pamphleteers and letters of the time show that
the most important activists and intellectuals read the Roman
writers directly.4 They cited Plutarch, Sallust, and Cicero—each
of whom pointed to corruption as the core reason for political
decline. Jefferson thought Tacitus was the greatest writer of any
generation, and John Adams emotionally embraced the writing,
saying that it was as if he were reading a history of his own po-
litical times.5 The founding fathers’ “scrutiny of the late Roman
republic resembled an autopsy.”6 Throughout the Constitutional
Convention and the ratification debates, the framers refer to
Roman and Greek corruption. The names Brutus, Cassius,
 changing the frame 35

Cicero, and Tacitus were cited everywhere, barefaced nods to

the great Roman orators.
Republic meant something very particular to the readers of
Gibbon: a society dedicated to liberty in which people are not
subjects, but rather participatory citizens infused with civic vir-
tue. Eighteenth-century Americans were heavily influenced by
republicanism, and understood their country to be living on the
verge of either great flourishing, or a fatal sickness. Their bleak
outlook, combined with the equally powerful optimism, proved
fertile soil for extraordinary ambition. Corruption is inevitable,
and corruption defeats liberty, but corruption’s worst dangers
may be overcome by structure and culture: versions of these
three ideas showed up everywhere. Entrepreneurialism and pes-
simism were bound together. The Irish philosopher Edmund
Burke thought this came from the deep infusion of law in the
colonies. Men were “prompt in attack, ready in defence, full of
resources.” Americans were both more hopeful and risk-taking—
therefore open to structural experiment, and more wary—
therefore anxious to trust no individual with power. “Here,”
wrote Burke, “they anticipate the evil, and judge of the pressure of
the grievance by the badness of the principle. They augur misgov-
ernment at a distance; and snuff the approach of tyranny in every
tainted breeze.”7
Rome held such sway because it resembled Britain, which they
knew well and perceived as a failed polity. Corruption in Britain
was embodied by the king and his placemen, the term used to
describe subservient political appointees. The king used wealth
and patronage to gain influence over British parliamentarians,
undermining constitutional government. This perception existed
on both sides of the Atlantic. British reformers were quicker than
36 corruption in america

the Americans to call Britain corrupt. When Benjamin Frank-

lin arrived in Britain in the mid-eighteenth century, he found
that many of its citizens believed England was “universally cor-
rupt and rotten from head to foot.”8 Franklin himself found
England less corrupt than he had been told but still worried
that it might be a lost cause. Franklin later came to believe that
America had sufficient elements—primarily of character—to
protect itself against the rotting of civic virtue. His late-century
transformation reflected a transformation in the country as a
whole: in America in the years leading up to the war, references
to Britain became increasingly accompanied by charges of cor-
ruption. At the same time, the corruption anxiety shifted focus:
public writers in the American colonies in the early part of the
eighteenth century were more likely to be concerned with pri-
vate or religious corruption. But once the conflict with Britain
began, American public intellectuals became more worried about
civic corruption in their own country.
Britain was the best example of structured self-government
that the framers could imagine; therefore it was a tragedy, wracked
by a culture of pandering and angling. Even the most radical of
American patriots, like Patrick Henry, held up Britain as a great
aspiration gone awry, writing, “Look at Britain: see there the
bolts and bars of power: see bribery and corruption defiling the
fairest fabric that ever human nature reared!”9 Britain provided
both the model government and the harbinger of doom because
of its current corrupt government. Small features of the British
government were examined closely, to see if they held a fatal
flaw. South Carolinian delegate to the Constitutional Conven-
tion Pierce Butler said:
 changing the frame 37

We have no way of judging of mankind but by experience.

Look at the history of the government of Great Britain,
where there is a very flimsy exclusion—Does it not ruin
their government? A man takes a seat in parliament to get
an office for himself or friends, or both; and this is the great
source from which flows its great venality and corruption.10

To compound their fear of impending corruption, charges of

corruption at home bedeviled many states after the Revolution.
Several of the states sent their delegates to the Constitutional
Convention with statements of purpose: the Virginia Act ap-
pointing delegates to the Constitutional Convention explained
that the states were “giving way to unManly Jealousies and Prej-
udices or to partial and transitory Interests.”11 “What led to the
appointment of the convention?” John Francis Mercer, a Virginia
delegate to the Constitutional Convention, later asked rhetori-
cally. His answer was corruption, “the corruption and mutabil-
ity of the Legislative Councils of the States.”12 To be sure, some
of those charges simply represented upper-class distaste for de-
mocracy, but some involved real concerns that legislators were
using power for plunder.
The founders were not worried that their government would
become nonrepresentative in form (like contemporary France).
However, they were worried that it would become nonrepre-
sentative in fact (like contemporary Britain) because of struc-
tural dependencies that would transform self-government into
oligarchic or despotic rule. In the 1960s, a group of historians—
including Gordon Wood, Bernard Bailyn, and J. G. A. Pocock—
began to painstakingly detail the ideology of the founding era.
38 corruption in america

They showed that the framers were “perpetually threatened by

corruption.”13 Corruption fears—fears of a “conspiracy against
liberty . . . nourished by corruption” “lay at the heart of Revolu-
tionary movement.”14 The fear of corruption was “near unani-
mous” and there was a sense that corruption needed to be “avoided,
that its presence in the political system produced a degenerative
effect.”15 While liberty was not the opposite of corruption, cor-
ruption precluded liberty, and corruption encompassed not
merely leaders but society as a whole. The Americans were anx-
ious about the “torrent of corruption, which ‘like a general flood,
has deluged all.’ ”16 As the Constitutional Convention got under
way, George Mason, a strong Anti-Federalist from Virginia, said,
“If we do not provide against corruption, our government will
soon be at an end.”17
By corruption, the early generations meant excessive private
interests influencing the exercise of public power. An act was
corrupt when private power was used to influence public power
for private ends. A system was corrupt when the public power
was excessively used to serve private ends instead of the public
good. A person was corrupt when they use public power for pri-
vate ends. There was no way for government to work without
virtue, and “no substitute for good men in office.”18 A successful
political society needs to create, in Jefferson’s words, an “aristoc-
racy of virtue and talent” instead of an aristocracy of power and
wealth.19 They saw their job as designing conduits for ambition
and instilling dams to slow greed and limit abuse of power.
“Controlling and channeling the overweening passions of these
extraordinary men . . . seemed to many to be the central politi-
cal problem of the age.”20 For John Adams, for example, patrio-
 changing the frame 39

tism and corruption were opposites; a patriot was one who puts
the country’s interest “in his care,” whereas a corrupt courtier is
one who puts his own interests in his care when in public ser-
vice.21 Adams had come to reject the king because he saw the
role as leading to nothing but private interests and therefore not
worthy of governing.22
Early American conceptions of what corruption meant flowed
from two related but distinct sources. The first was Aristotelian
and republican, embodied in the thinking of the French politi-
cal philosopher Baron de Montesquieu; the second was Chris-
tian, puritanical, and intertwined with theories of natural law,
embodied in the theories of the English philosopher John Locke.
In both traditions, the core metaphor of corruption was organic
and derived from disease and internal collapse. Corruption was
a rotting of positive ideals of civic virtue and public integrity. It
“most often brought to mind a fuller, more coherent, and more
dreadful image of a spreading rot. A frequent metaphor com-
pared corruption to organic cancer, eating at the vitals of the
body politic and working a progressive dissolution.”23 In the re-
publican tradition, corruption was the cancer of self-love at the
expense of love of country. It existed at a personal and structural
level. The individual was a metaphor for the state, and the state
was the metaphor for the individual; both were complex psy-
chological institutions that could fall prey to weaknesses that
would corrode them from within. In the Christian tradition,
corruption was the loss of personal virtue and expressed itself
through hedonism, sloth, arrogance, and laziness at the ex-
pense of the love of God and the good. In both traditions, sys-
temic corruption occurs in political/ethical structures that create
40 corruption in america

temptations and encourage private-seeking behavior over public-

seeking behavior. Republicans believed it was was society’s job to
channel those temptations.

Montesquieu
The framers were well-read and drew on many sources. How-
ever, as historian Bernard Bailyn persuasively argued, the “chief
authority” for the Constitutional framers was the eighteenth-
century French political philosopher Charles-Louis de Secon-
dat, Baron de La Brède et de Montesquieu. The Spirit of the Laws
was written just thirty years before the Constitutional Conven-
tion and was a foundational part of their political education.
Montesqueiu’s name “recurs far more often than that of any
other authority in all of the vast literature on the Constitution.
He was the fountainhead, the ultimate arbiter of belief; his
ideas were the standard by which all others were set. The
framers reverted to his authority at every turn.”24 Therefore,
understanding the way that Montesquieu thought about hu-
man nature, government, and corruption enriches our own un-
derstanding of the meaning of corruption during the Constitu-
tional era.
Montesquieu is most known for his support of different
branches balancing powers against each other. But his advocacy
for mixed government was a direct outgrowth of his beliefs
about human nature. Montesquieu’s approach was Aristotelian.
Aristotle set out six ways a government can constitute itself:
three kinds of governments, and three perversions. The rule of
one is monarchy or tyranny; the rule of a few is either an aris-
tocracy or an oligarchy; and the rule of the public is either a
 changing the frame 41

polity or mob rule. The fundamental difference between the

good and perverted form of government, or good and corrupted
state, is the psychological orientation of those that govern. The
“deviation from monarchy is tyranny; for both are forms of one-
man rule, but there is the greatest difference between them; the
tyrant looks to his own advantage, the king to that of his sub-
jects.” A tyrant is a king who “pursues his own good”; an oligar-
chy is an aristocracy that pursues its own good; mob rule is a
publicly governed polity whose constituent parts each pursue
their own good.25
Following this view, Montesquieu wrote about the “calama-
ties” that can befall “human nature” because he argued there are
potential changes between one way of being (self-oriented) and
another (public oriented). He believed that people can be self-
interested but can also be public interested. Virtue, for the
baron, was necessary for good government, and good structure
was necessary for virtue. For Montesquieu, corruption and
love of country were opposites. His methods were institutional:
he supported a legislative, executive, and judicial branch with
mixed government in the legislative branch as between the house
representing people and the house representing the aristocracy.
His final goal, however, was representative government, and for
him representation depended in part on the civic attitudes of
citizens.
His idea of civic virtue is not reductionist, but intimate. “Vir-
tue,” for Montesquieu, is “the love of the laws and of our coun-
try.” The love is a “sensation, and not a consequence of acquired
knowledge: a sensation that may be felt by the meanest as well
as by the highest person in the state.” His definition of the na-
ture of this love is demanding:
42 corruption in america

Such love requires a constant preference of public to pri-

vate interest, it is the source of all private virtues; for they
are nothing more than this very preference itself. This love
is peculiar to democracies. In these alone the government
is entrusted to private citizens. Now a government is like
everything else: to preserve it we must love it. Everything
therefore depends on establishing this love in a republic.26

Thomas Jefferson copied these passages into his common-

place book, where he recorded his literary interests. Jefferson,
like the other framers, believed that one cannot be dispassion-
ate without risking corruption; there is a necessarily intimate,
emotional role for the state in our hearts. The love must be greater
than a mere identification along the lines of nationalism. In-
stead, the nature of the love must extend to a love of the ideal
form of the country. “A love of the republic in a democracy is a
love of the democracy; as the latter is that of equality.”27 Mon-
tesquieu believed that love is more likely to spring from the “com-
mon people” and most likely to be eroded by elites. “It is very
rarely that corruption commences,” he argued, with “the common
people,” compared to “those whom we call gentlemen.” The com-
mon people have a “stronger attachment to the established laws
and customs.”28
Because Montesquieu returned again and again to the prob-
lem of public virtue, he was understandably equally focused on
its opposite, which he called corruption. Corruption for Mon-
tesquieu lay in the erosion of this love. Again, he described it in
emotional, romantic, and necessarily imprecise terms. For him,
corruption was the erosion of the love—passionate, sensible
love—for one’s country and the rules of the country. The pas-
 changing the frame 43

sionate, sensational love of the rule of law, and love of the spirit
of law itself, is the basis on which a country can govern itself.
If Montesquieu established the thesis of government and
citizenship for the framers, the Scottish philosopher Thomas
Hobbes represented the antithesis. Hobbes rejected the idea
that people should or could be virtuous. He dismissed the “bab-
bling philosophy of Aristotle” and argued that there is no dif-
ference between monarchy and tyranny, or between a corrupted
democracy and an uncorrupted one. They are just the same
things, he said, by different names: the word monarchy is used
by those who like a particular leader, and tyranny by those who
hate him. In the seventeenth century, Montesquieu picked a
fight with Hobbes. Hobbes saw entirely self-interested citizens as
inevitable human nature, whereas Montesquieu saw them as the
greatest threat to political society. Montesquieu set out to wrest
realism from Hobbes: in his view, not only was Hobbes’s psycho-
logical portrait inaccurate, but his political science would lead to
more unstable governments. He directly attacked what he saw as
Hobbes’s falsely dark, and possibly naive, description of human
nature. Simone Goyard-Fabre calls him the “anti-Hobbes.”29
Hobbes—like some modern justices—believed that people
are fundamentally egoist. Corruption was an incoherent idea
for Hobbes—a view we find dormant for hundreds of years, but
then recurrent in late-twentieth-century Supreme Court doc-
trine. The founders read Hobbes, but most of them also rejected
him and his view of human nature. Adams thought he treated
men “like cattle” and misunderstood the role of context, reason,
and law.30 Jefferson “lamented” that a contemporary was going to
adopt Hobbes’s view of human nature. Hobbes saw no justice or
injustice, but “only convention.”31 Jefferson believed that systems
44 corruption in america

supported or undermined justice. The only significant contribu-

tor to the Constitution who was deeply influenced by Hobbes
was Alexander Hamilton, and even Hamilton rejected the
amoralism of Hobbes. And at the Constitutional Convention,
his monarchist plans for the country largely failed.
John Locke and similar influential writers who were more fo-
cused on property rights and individual freedom brought a non-
Hobbesian theory of corruption as well.32 A Unitarian and mor-
alist, Locke was deeply concerned with virtue and the “moral
implications of political action.”33 Corruption and virtue were
also part of Locke’s grammar. For Locke, corruption was often
more associated with a loss of innocence and a fall from a natural
state of virtue. One can be corrupted by “education,” or “custom”
or “fashion,” or “common opinion.”34 There was a sense of indi-
vidual corruption that is unconnected with the state. But he also
had a very traditional public sense of corruption. In his discus-
sion in Of the Dissolution of Government, he argues that it is a vio-
lation of trust to use

the force, treasure, and offices of the society to corrupt the

representatives and gain them to his purposes, when he
openly pre-engages the electors, and prescribes, to their
choice, such whom he has, by solicitation, threats, prom-
ises, or otherwise, won to his designs, and employs them
to bring in such who have promised beforehand what to
vote and what to enact.

This kind of corruption “cut[s] up the government by the roots,

and poison[s] the very fountain of public security.”35 Another
influential scholar associated with the liberty school, German
 changing the frame 45

jurist Samuel Pufendorf, also used corruption as a central con-

cept. Historian Barry Alan Shain cites a widely read publicist
of the time, explaining that common good was the proper goal
of government: “If the authority of Locke, Montesquieu and
natural reason are not sufficient to prove this position, and if
anyone desires further satisfaction . . . we would refer them to
Pufendorf.”36 He argues that citizens have duties to the state
that depend upon their position, and that failure to perform
those duties is, within his structure, corruption. Individuals, to
be virtuous, must attempt to put the state’s interest first; to re-
main free of corruption they must guard against efforts to influ-
ence them.37 He was particularly concerned with those tempted
by foreign interests: “Those whose services the state employs in
foreign countries, should be careful and circumspect, skilled in
distinguishing the unreal from the real, the true from the ficti-
tious, very tenacious of secrets, persistent in the interest of their
state as against corruption in any form.”38 Pufendorf also argued
that the corruption of states can be located either in individuals
or in the systems themselves.
Inasmuch as Locke and Pufendorf were drawing from Chris-
tian tradition, they drew on Christian notions of sin and corrup-
tion. Public corruption is not the sine qua non of corruption, but
a variation of the epicenter of corruption: moral corruption. The
Christian understanding carried with it a more clearly dichoto-
mous understanding—the corrupt is opposite to the noncor-
rupt, and corruption is personal. The Christian vision of corrup-
tion, like the secular vision of corruption, is psychological and
moral, not transactional. However, when in the public realm, the
Christian notion took on republican overtones. In Noah Web-
ster’s 1832 History of the United States, he argued that the Christian
46 corruption in america

tradition was fundamentally entangled with republican theory.

Citizens have a duty to elect “principled men” or “the government
will soon be corrupted; laws will be made not for the public good
so much as for the selfish or local purposes,” which will lead to
the “rights of the citizens” being “violated or disregarded.”39

Corruption and Self-Interest

One of the most famous passages of the Federalist Papers, the
widely circulated essays written in favor of state ratification of
the Constitution, can be found in Federalist No. 51: “If men were
angels, no government would be necessary. If angels were to
govern men, neither external nor internal controls on govern-
ment would be necessary.” This passage is sometimes referred to
as support for the argument that James Madison believed that
human beings are fundamentally selfish.
This might seem to create a contradiction. An essential self-
interest thesis is, on its face, incompatible with the founding-era
grammar of virtue and corruption. Madison clearly believed in
virtue, and in other speeches he appeared to put his entire faith
in the virtue of the people; “no theoretical checks,” he said, “can
render us secure” if the people are without virtue. This is the
“spring” of “virtue” that Baron de Montesquieu described as
necessary for a popular state in his Spirit of Laws: “It is the spring
that moves republican government, just as honor is the spring
that moves monarchy.”
In short, we have two thoughts: (1) men are not always angels,
and therefore structures must help us; and (2) virtue is neces-
sary, and structures alone cannot help us. The reconciliation
between these two Madisonian beliefs holds the key to under-
 changing the frame 47

standing the moral psychology of most of the framers. These can

both be true if one perceives a dynamic relationship between
constitutional structure and political morality. Because men are
not always virtuous, structures must be enacted in order to dis-
courage self-serving behavior in public life. The public orienta-
tion that flourishes in these structures in turn helps maintain
the structures, which in turn helps maintain the virtue.
The task of structuring political society is to align self-interest
with the public interest, not because people will only be self-
interested, but because people will often be self-interested, and
incentives can reduce both the damage of the first and the likeli-
hood of the second. Corruption cannot be made to vanish, but
its power can be subdued with the right combination of culture
and political rules.
Moreover, as Montesquieu was translated into the Constitu-
tional framing discussions, his highly demanding vision of citi-
zenship and public office was somewhat tempered. Whereas the
most extreme civic humanists believed that one should submerge
oneself in the public good, the Madisonian modification was that
one should not suppress or override private interests, but rather
pursue them in congruence with the public good. The virtuous
citizen will not see the two interests in conflict, whereas the cor-
rupt citizen will both perceive and act on the conflict. There is a
space for a private realm, but in the execution of public duties, the
public good ought to be sought first. The citizen should and can
be both self-regarding and other regarding. Historian Lance Ban-
ning synthesizes it this way:

[The citizen] was expected to contribute to political deci-

sions precisely on the basis of his independent understanding
48 corruption in america

of his needs, choosing what was good for him as well as for
the whole. He was not expected to surrender his particu-
lar self-interest. Instead, he was thought of as pursuing his
particular desires while still remaining conscious of the
interests of his peers and participating in a collectivity of
equals.40

This belief in flexibility—that man can be either good or

bad, but incentive structures will have an impact—is a pro-
foundly American belief and part of our national ideology. The
nature of a person is not fixed. This belief has also led to the
American devotion to education, and to our collective belief
that a person can rise from rags to riches and transcend inher-
ited circumstances.
The framers’ virtue focus creates another question: Doesn’t
that mean that people are corrupt most of the time, because we
normally care about ourselves, and only rarely devote ourselves
to the public? No. Even the most expansive concept of civic cor-
ruption did not include everything that was not public and vir-
tuous. Instead, corruption was invoked only in the worst in-
stances of private interests trampling on public ones. Corruption
was invoked in a variety of ways, but with a limited range—it
tended to refer to situations in which a public officer or set of pub-
lic officers were systematically using public resources for their own
enrichment or advancement. Corruption was not, as Justice Scalia
would later claim, an unbounded word describing every kind of
“moral decay.” A corrupt political actor would either purposely ig-
nore or forget the public good as he used the reins of power.
The relationship between corrupt acts and corrupt thoughts—
between faith and works, to crib from Christian doctrine—was
 changing the frame 49

not always clear. There are no debates about whether a good out-
come derived from a corrupt mental state would be classified as
a corrupt “act” or merely a corrupt actor. It was, however, clear
that the framers believed that corrupt mental states tended to
lead to corrupt actions, and therefore fixing structures to en-
courage certain sympathies was a primary job of Constitutional
design. Again, they perceived a dynamic relationship between
acts and thoughts.
In Federalist No. 55 Madison wrote about how corruption
might “subdu[e] the virtue” of senators.41 Pennsylvania delegate
Gouverneur Morris spoke about how “wealth tends to corrupt
the mind & to nourish its love of power, and to stimulate it to
oppression.”42 Morris was clearly talking about a transforma-
tion in “the mind,” a fundamental corrosion of the interior life
that would then lead to a corrosion of practices (stimulating
it to oppression). When Madison, in Federalist No. 10, puzzles
on the problem of bias in self-government and notes by analogy
that “no man is allowed to be a judge in his own cause, because
his interest would certainly bias his judgment, and not improb-
ably corrupt his integrity,”43 he is making a claim about the inte-
rior life of the mind—the moral attitude taken by an individual.
He is claiming that exterior forces have the power to shape the
moral orientation of a person, just as a powerful flow of water
might shape the soil around it. Money has an alchemical effect—
not just leveraging action, but in so doing, changing the nature of
the agent that it works upon. The language is both technical
and moral.
A set of actions were treated as archetypal corruption, regard-
less of the mental state. The king’s use of his power to bestow
offices to create allegiances among parliamentarians was corrupt.
50 corruption in america

(On this, the outlier was Alexander Hamilton, who argued that
the king’s using offices to create “attachments” was not corrupt,
but merely influence. His belief in the legitimacy of such influ-
ence was entangled in his monarchism. For the rest, the king’s
use of power was treated as implicitly corrupting, whether or
not the parliamentarians would have supported the king with-
out the promised offices.) Bribery and extortion were likewise
considered per se corrupt, but such crimes were rarely punished
criminally, so invocations of bribery were rarely in reference to
criminal law standards and were more often in reference to the
use of a gift, political office, or flattery to persuade someone to
change a course of action.
One thing shines through all the usages: the way corruption
was referred to at the time was rarely in conjunction with viola-
tions of criminal law. There were relatively few criminal laws of
corruption at the time, as I’ll show. Gouverneur Morris explic-
itly said that the corruption concern encompassed lawful abuses
of power, not merely unlawful abuses or usurpations.44 Morris
argued, as an example of predictable legal corruption, that legis-
latures might want to print money in ways that enriched them
personally, using legitimately granted public power for private
gain. Though the word corruption was used hundreds of times
in the convention and the ratification debates, only a handful of
uses referred to what we might now think of as quid pro quo
bribes.45 That constituted less than one-half of 1 percent of the
times corruption was raised. In direct contradiction to the inter-
pretation of corruption in Citizens United, the concept of corrup-
tion encompassed, but was not equated with, explicit exchange
or explicit embezzlement.46
 changing the frame 51

Citizens and Institutions

The framers rarely attached corruption to individuals separate
from their institutions: parliament could be corrupt, or bor-
oughs could be corrupted. The collective, and the institution it-
self, could become a servant of private, instead of public, ends.
But corruption was not limited to officials. The framers believed
that a citizen could be corrupt: he could use his public roles for
private gain instead of public good, he could be extractive in-
stead of supportive of the polity. A citizen has several public
functions: the vote, the jury, and public speaking about matters
of public importance. When a citizen is petitioning the govern-
ment, he is acting in his public role. Citizens are the foundation
and fabric of the country and are fundamentally responsible for
the integrity of their government. All citizens—especially pow-
erful citizens—are responsible for ensuring that public re-
sources generally serve public ends. Historian Bernard Bailyn
writes that the framers “never abandoned the belief that only an
informed, alert, intelligent, and uncorrupted electorate would
preserve the freedoms of a republican state.”47 The electorate—
not just the elected—must be dissuaded from corruption. Be-
cause the new government was founded on the authority of the
people, the people themselves must have integrity and be pub-
licly minded in order for the nation to thrive.
But, as with the institution of parliament, citizen corruption
was often seen collectively. Montesquieu put citizens at the cen-
ter of the thriving republic. For him, the true danger in a repub-
lic is mass disaffection with public life, when society turns away
from trying to influence government and citizens instead turn
52 corruption in america

toward their own preoccupations and examining how they can

personally benefit from particular laws. Montesquieu argued
that government breaks down when citizens do not care about
it: “The misfortune of a republic is when intrigues are at an end;
which happens when the people are gained by bribery and cor-
ruption: in this case they grow indifferent to public affairs, and
avarice becomes their predominant passion. Unconcerned about
the government and everything belonging to it, they quietly wait
for their hire.”48
Citizens are collectively virtuous inasmuch as they have the
kind of attention to a love of country and the public good, and
corrupt inasmuch as they use their public role for private ends.
A virtuous citizenry will put private goods ahead of other, pub-
lic concerns, and will not primarily perceive government as a
potential source of personal gain but as a source of collective
gain. Good citizens may be self-seeking in other areas, but in
their public functions they will eschew the pursuit of wealth for
the pursuit of liberty—a public, political liberty, a statewide
freedom from oppression. Citizens as governors are not con-
sumers but holders of a public trust. George Washington
wrote to the Marquis de Lafayette about the threat of “cor-
ruption of morals, profligacy of manners, and listlessness for
the preservation of the natural and unalienable rights.” “So
long as there shall remain any virtue in the body of the peo-
ple,”49 he wrote, the country might not decline into an oppres-
sive regime. Without the virtue of the people, Madison ar-
gued, “no theoretical checks, no form of government, can render
us secure. To suppose that any form of government will secure
liberty or happiness without any virtue in the people is a chime-
rical idea.”50 Wilson reinforced this idea in his claim that the
 changing the frame 53

opposition to Britain was not against the king but against “a

corrupt multitude.”51

Dependency
One of the most dangerous structures, one that was likely to
lead to corruption, was the dependent one. The language of de-
pendence and corruption was so intertwined at the founding
that in some cases, corruption and independence could sound
like opposites. Contemporary theorists sometimes used “corrup-
tion” and “dependence” together, indicating that they saw cor-
ruption as the natural result of dependence. Scottish philoso-
pher David Hume, for example, in discussing the relationship
of the Crown to the kind of public offices that were frequently
given out as rewards for loyalty, wrote that “we may give to this
influence what name we please . . . we may call it by the invidi-
ous appellations of corruption and dependence.”52
The Declaration of Independence was in part a declaration of
freedom from corruption. While modern rhetoric often treats
independence and liberty or freedom as interchangeable, liberty
referred to either a Christian conception of rationally limited
human action or a set of substantive privileges and immunities,
or freedom from enslavement.53 Independence, on the other hand,
was not invoked in the discussions of liberty and was more re-
lated to the rhetoric of corruption. Independence is the absence
of (in) a power relationship (of the pendant). Independence was at
its core a relational word, which symbolized the rejection of a
kind of relationship. Dependence could refer to a kind of struc-
tural dependence (where a person is actually dependent upon
others financially and therefore must do their bidding) or a
54 corruption in america

psychological dependence (where a person’s character is cor-

rupted by another’s influences to think and act differently), but
most often it referred to the situation where financial depen-
dence led to psychological dependence. It could be a direct kind
of dependency, where a representative’s well-being and financial
income depended upon a salary paid by the king, or a subtler
kind of dependency, where people’s mental independence could
become soft—corrupted—because they rather liked the gifts
bestowed on them, the flattery given them, or other trinkets
and phrases that obscured their independent judgment and ca-
pacity to think and decide as truly free men. In each instance,
though to varying degrees, the dependent figure would shift
his actions to align himself with the desires of the person who
had power over him. A contemporary commentator claimed that
Virginia’s executive had “not a single feature of Independence”
because the executive was “paid, directed, and removed by the
Legislature.”54 A man might become dependent upon another
because the other had provided him a job, so he could not live—or
live as well—without the other’s favors. Lawrence Lessig argues
that an essential form of corruption for the framers was “depen-
dence corruption.”55
Dependence did not define corruption, but it was a part of
the cluster of structural relationships that led to corruption.
One of the clear goals of the Constitutional Convention was
freedom from a political culture where dependence was the pri-
mary mode of advancement. The job of political architecture was
to discourage dependencies and temptations that might lead to
corruption. The most rigid view held that the citizen should be
“free from dependence and from the interests of the market-
place. Any loss of independence and virtue was corruption.”56 A
 changing the frame 55

dependent relationship with the king, or with a wealthy foreign

sponsor, could lead citizens or representatives to misunderstand
themselves and believe, falsely, that their own ends were more
valuable than the public ends. But other reasons—narcissism,
ambition, or luxury—could lead people to place private gain be-
fore public good in their public actions.
All the writers of the era also believed that luxury tended to
move people away from the love of democracy.57 As Gouverneur
Morris stated, “wealth tends to corrupt the mind & to nourish
its love of power, and to stimulate it to oppression. History proves
this to be the spirit of the opulent.”58 In Morris’s view, the fact of
wealth causes internal distortion, and the “spirit” of wealth be-
comes antagonistic to the spirit of republicanism. Luxury seeking
perverts a culture of civic virtue. “An avaricious man might be
tempted to betray the interests of the state to the acquisition of
wealth,” wrote Hamilton in Federalist No. 75.59 Perhaps because
he understood the appeal of luxury, the “most corrupt of all cor-
rupt” old men—Benjamin Franklin—was well placed to insist on
a radical vision into the Constitutional Convention, floating on a
sedan chair, carrying a prepared speech.
 chapter thr ee

j
Removing Temptations

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 after writing his letter, Franklin attended the opening of
the American Constitutional Convention, not lifted by a hot
air balloon but carried on a sedan chair. He was too weak to
walk. But he was not only aware of his own body’s degeneration.
Rather, he saw how the body politic could degenerate if given
a chance.
Franklin’s first speech—his major contribution to the
convention—was about money, power, and the inconsistencies
of the ambitious human heart. At stake was short-term stabil-
ity, but also the nature of the new country. Would it be able to
 removing temptations 57

justify its violent separation from England, or would it become

another corrupt failure?
The convention had begun a week earlier, on May 29, 1787,
with delegates from seven states (New Hampshire arrived later)
dedicated to reconstituting the political society and power rela-
tions among the newly independent colonies. It was meant to
enable a major revision to the Articles of Confederation, which
had been adopted in 1781 as a collective coordination security
pact. The thirteen states had agreed to provide for shared de-
fense in case of attack, to maintain basic sovereignty in other
matters, and to allow for freedom of movement between the
states. The Articles were passed “for their common defense, the
security of their liberties, and their mutual and general welfare,
binding themselves to assist each other, against all force offered
to, or attacks made upon them.”
Chaos and domination, outside power and internal insurrec-
tion: this was the context of the event. The fifty-five delegates
were worried about the disagreements between the states, the
threat of foreign powers that might use military force to over-
run the country, and growing friction between creditors and
debtors. But the big fear underlying all the small fears was
whether they’d be able to control corruption as England and
France had not. Alexander Hamilton eventually described the
Constitutional Convention this way: “Nothing was more to be
desired than that every practicable obstacle should be opposed
to cabal, intrigue, and corruption.”2 In Madison’s notebook from
the summer of 1787, the word corruption is scrawled in longhand
fifty-four times. Corruption, influence, and bribery were dis-
cussed more often in the convention than factions, violence, or
instability.3
58 corruption in america

Many of the delegates had “Shays’ Rebellion” in the backs of

their minds. In 1786, Daniel Shays, a former officer of the Con-
tinental army, led a violent protest of farmers in response to
growing foreclosures, high taxes, and deflation that had en-
riched elite bondholders at the expense of farmers. Shays was
able to assert control of part of western Massachusetts for al-
most half a year, terrifying politicians and elites elsewhere in
the country. The revolt was particularly jarring because Massa-
chusetts had been viewed as a relatively stable political commu-
nity. And its policy predicament was not unusual: the early
years of the confederation had been extremely trying, and many
states were burdened with debt and wracked with economic in-
security. States owed bondholders money from the war. They
tried different tactics to relieve the debt, including printing
more money and raising taxes. Real income shrank, and many
people called for nonpayment of bonds to the wealthiest Ameri-
cans. The national government had financial trouble of its own,
due to the unanimity requirement for raising funds in the Ar-
ticles of Confederation. The parchment power to raise a navy
and to defend against these incursions seemed meaningless
without the practical ability to raise the money and resources
needed to do so. At the same time, European powers occupied
parts of the continent that infringed on the confederation—
Spain in the south and Britain in the northwest. Early negotia-
tions with foreign states led negotiators to feel weak.
In the first few days of the Constitutional Convention, the
conversation was framed around these sets of threats: what could
foreigners and farmers do to us? But it shifted during the con-
vention to a more introspective question: what could we do to
ourselves? During the long, notoriously hot summer of 1787, the
 removing temptations 59

framers of the Constitution began building more of a psycho-

logical document: their radicalism lay in their belief that pas-
sions, like water, could be redirected, not merely contained.
The “unique and universal crisis” of corruption as experienced
by the framers drove their thinking during the convention.4 Un-
like Hobbes, they did not see human nature as uncontrollable, or
self-interested behavior as irreducible. But they did see a polity
destroyed by corruption as the most likely outcome. The question
that haunted the convention was this: would these men manage
to wrangle the worst impulses of rulers and ruled and transform
them into representatives and citizens? If so, for how long?

The Problem of Placemen

On May 29, 1787, Edmund Randolph, a well-to-do lawyer and gov-
ernor of Virginia, opened the convention with a prepared speech.
Randolph described the reason for the convention in terms of the
external and internal threats of violence facing the confederacy.
He argued that there was no security against foreign invasion, be-
cause Congress had no power to punish treaty infractions and be-
cause states might, on their own, cause foreign conflict. In the case
of a full-scale war, neither a draft nor militia would be successful;
the country would need to enlist soldiers, and such enlistment
would be very costly and beyond the financial capacity of the
Continental Congress. Moreover, there were potentially great
commercial advantages to joining: states could collectively bargain
better with other nations. For the next few days, the discussion
generally followed Randolph’s framing. The delegates debated
whether or not the states should join into a federal government
and submit to a supreme government at all.
60 corruption in america

But a few days later, Franklin intervened with his own pre-
pared speech, which was read out loud for him.5 Franklin’s big-
gest concern was a version of the modern revolving door be-
tween Congress and well-paying lobbying jobs: the problem of
people going into office not to represent the public but in order
to get a well-paid job. They called this the problem of “placemen.”
Randolph had proposed to pay salaries to members of the execu-
tive branch. Franklin disagreed: he thought officials should work
for free and the expenses be merely defrayed. His speech expressed
a peculiar—and rather wonderfully radical—American contri-
bution to thinking about government and corruption. Just as the
Articles of Confederation had taken “gifts” from the category of
diplomacy and put them in the category of corruption, Franklin
was trying to take “payment for offices” out of the category of
“practices of governing” and put it in the category of “corruption.”
Franklin presented a model of human behavior in which men
are flexible and can be “good” and virtuous in one setting, yet
destructive and corrupt in another. Franklin’s speech was full of
broad claims about human nature and its relationship to power:
delegates ought to watch carefully the powerful influences of
ambition and greed, or what he called “the love of power, and the
love of money.” Power and money can spur action, “but when
united in view of the same object, they have in many minds the
most violent effects.” One cannot “place before the eyes of such
men” jobs that have both honor and money in them. If a “post of
honor” is “at the same time a place of profit,” then men “will move
heaven and earth to obtain it.” He wrote that the disorder and
troubles in Britain had come from the existence of lucrative ex-
ecutive posts. These could lead to factions that then divide the
nation, distract the government, and encourage “fruitless and
 removing temptations 61

mischievous wars” and some dishonorable terms of peace.

When the twin temptations are joined, moderates will not seek
office. The temptations will create so much heat and contention
that “men of strong passions and indefatigable activity in their
selfish pursuits” will become “your Government and be your rul-
ers.” Even these bold, violent men will be disappointed, he prom-
ised, because the system will perpetually be creating an engine
for more faction, dissension, and tearing down, and be motivated
to “distress their administration, thwart their measures, and
render them odious to the people.”
He imagined ever-growing salaries, because there would always
be some reason proclaimed and groups who would speak in favor
of increasing salaries. For him the question of the scope of pay-
ment represented a fundamental struggle that appeared between
rulers and ruled, which could lead to “great convulsions, actual
civil wars, ending either in dethroning of the Princes, or enslaving
of the people.” In these struggles, the “ruling power” generally
wins, and the “revenues of princes” just continues to increase. The
greater increase in the power of princes leads to greater dissatisfac-
tion, which in turn leads to a greater need for a well-funded police
force. His particular fear was the tendency of governments to be-
come monarchic. Without serious intervention, those in power
could control elected representatives in a way that would lead
them away from public service. He claimed he saw the seeds of the
monarchy in the mere existence of any government. His goal was
to delay the onset by making sure that “posts of honor” are not
“places of profit.”
Government inclines toward centralized executive power, he
argued, and that tendency is exaggerated when people who
would be servants of the state get paid well to do so, because
62 corruption in america

they then become dependent upon the centralized power that

pays them. As James Madison noted, the proposal was not
taken seriously. But it may have shifted the terms of debate.
In these two prepared speeches—Randolph’s and Franklin’s—
there is a difference in the framing of the problems leading to
the convention and the framing of the solutions coming out
of the convention. For Randolph, the concerns were specific to
that point in history and a response to short-term difficulties.
For Franklin, the concerns were universal and related to human
nature and power. For Randolph, the natural starting place was
the states as actors; for Franklin, the natural starting place
was the individual and his passions and motivations. The base-
line of the discussion was money, power, politics, personal cor-
ruption, and human nature. By mid-June, they no longer spoke
of niggling, particular problems, but rather of the universal
dilemma of people’s relationship to power. Debaters defended
their positions by using corruption as a villain; and during rati-
fication debates, Madison and Hamilton, who started from
different ideological premises, used corruption to explain their
final proposed solutions to the public. They saw their task this
way: how could they create a system that would be most likely
to be filled with men of civic virtue but avoid creating tempta-
tions that might corrode that virtue?
James Madison—diminutive and weak, having all the pres-
ence of “half a bar of soap” according to some accounts—was the
greatest intellectual force behind the Constitution. Though he
may have dismissed Franklin’s proposal for free executive branch
labor, he was deeply concerned about the powers of appoint-
ment and the creation of posts, places, and perks. The problem
of offices—and who should appoint them—led to some of the
 removing temptations 63

most passionate discussions at the convention. Madison’s the-

ory of government derived from Montesquieu’s: “If there is a
principle in our Constitution, indeed in any free Constitution
more sacred than another, it is that which separates the legisla-
tive, executive and judicial powers.” That principle had its most
difficult application in deciding who had the power to appoint
officers to governmental positions.6
Government depended on officers appointed to carry things
out. In Britain, these offices had become the great prize that
others sought after, and legislators and the king had used the
power of appointments to enrich themselves and their friends.
There seemed no way to avoid the problem of placemen. If
Congress was given the power to give offices, the framers worried
that members of Congress would use their position to enrich
themselves and their friends and would see public office as a
place for gaining civil posts and preferences instead of as a pub-
lic duty.7 George Mason worried that if legislators were al-
lowed, they would “make or multiply offices, in order to fill
them.”8 Elbridge Gerry argued that if the Senate had the power
to appoint ambassadors, they would “multiply embassies for
their own sakes,” akin to “nurseries” where infant ambassadors
could be coddled.9
The other option was equally dangerous. If the executive had
the power to appoint, it would aggrandize his power and lead to
a return to British corruption. Franklin had argued that if all
profitable offices are given to the executive, “The first man put at
the helm will be a good one. No body knows what sort may
come afterward. The Executive will be always increasing here,
as elsewhere, till it ends in a Monarchy.” Thomas Paine’s Com-
mon Sense put it this way: “That the crown is this overbearing
64 corruption in america

part in the English constitution needs not be mentioned, and

that it derives its whole consequence merely from being the
giver of places and pensions is self-evident.”10 Even Hamilton,
the strong advocate for vesting appointment power in the exec-
utive, was concerned that the power of appointments might cor-
rupt both the Congress and the president. He disliked a model
that would have given the Senate a role in selecting the presi-
dency because it would lead to the president using his power of
appointments to curry favor with Senators.11 In other words, a
would-be president would promise senators appointments in
exchange for their support of his candidacy.
The main proposal was that representatives should be banned
from holding elected and appointed office simultaneously. But
some objected that the prohibition would lead to the best people
refusing the job. Mason replied: “Are gentlemen in earnest? Are
we not struck at seeing the luxury and venality which has already
crept in among us?” The structural task of the present, he said,
was to

remove the temptation. I admire many parts of the British

constitution and government, but I detest their corrup-
tion. Why has the power of the crown so remarkably in-
creased the last century? A stranger, by reading their laws,
would suppose it considerably diminished; and yet, by the
sole power of appointing the increased officers of govern-
ment, corruption pervades every town and village in the
kingdom. If such a restriction should abridge the right of
election, it is still necessary, as it will prevent the people
from ruining themselves; and will not the same causes
here produce the same effects?12
 removing temptations 65

Representatives, it was feared, would be seduced to ignore

their duties by the promises of future offices. “A man takes a seat
in parliament to get an office for himself or friends, or both; and
this is the great source from which flows its great venality and
corruption,” Butler said.13 Some proposed a one-year revolving
door, or an absolute ban on office holding for all senators and
members of Congress.
The appointments power “was thrown into different shapes”14
before it was adopted as it is in the Constitution, giving the
president the power to appoint, with the advice and consent of
the Senate, the “Ambassadors, other public Ministers and Con-
suls . . . and all other Officers of the United States, whose Ap-
pointments are not herein otherwise provided for.” At the same
time, “Congress may by Law vest the Appointment of such infe-
rior Officers, as they think proper, in the President alone, in the
Courts of Law, or in the Heads of Departments.” The founders
hoped they blocked “the avenues by which corruption was most
likely to enter”15 by parceling power between the president and the
legislature. Part of the appointments were given to the legislature
to keep the executive from developing dependent placement. An
accompanying clause prevents elected officials from simultaneous
appointment as civil officers. It also prevents legislators from tak-
ing jobs when they are out of office that they created while in of-
fice, or for which they increased the salary while in office.
It was not universally loved. Charles Pinckney sought to strike
the proposal and Mason satirized him. As Madison’s notes
reflect:

Col. MASON ironically proposed to strike out the whole

section, as a more effectual expedient for encouraging that
66 corruption in america

exotic corruption which might not otherwise thrive so

well in the American Soil—for compleating that Aristoc-
racy which was probably in the contemplation of some
among us, and for inviting into the Legislative Service,
those generous & benevolent characters who will do jus-
tice to each other’s merit, by carving out offices & rewards
for it. In the present state of American morals & manners,
few friends it may be thought will be lost to the plan, by
the opportunity of giving premiums to a mercenary &
depraved ambition.16

Maryland delegate James McHenry summarized the debate

as one of “division in sentiment” but finding compromise around
the principle “to avoid as much as possible every motive for cor-
ruption.”17 Later, Mason described these clauses as the “corner-
stone” of the new republic.18
Some of this discussion, and Madison’s later reflection on it,
demonstrates that much of what we think of as “separation of
powers”—applied to the revolutionary context—can be under-
stood as a set of concerns about dependency and corruption flow-
ing from the problems of who should be able to appoint officials:

The Executive could not be independent of the Legislure

[sic], if dependent on the pleasure of that branch for a re-
appointment. Why was it determined that the Judges
should not hold their places by such a tenure? Because
they might be tempted to cultivate the Legislature, by an
undue complaisance, and thus render the Legislature the
virtual expositor, as well the maker of the laws. In like
manner a dependence of the Executive on the Legislature,
 removing temptations 67

would render it the Executor as well as the maker of laws;

& then according to the observation of Montesquieu, ty-
rannical laws may be made that they may be executed in a
tyrannical manner.

Separate branches without independent capacity to fund are

not truly separate, as Madison argues. In his mind, separation of
power is the key, not separation of function—and the key power
that needed to be separated was the power of appointment, to
prevent corrupt officers and the corruption that attends civil of-
fices as institutions.
Two hundred years later, a different problem of placemen
arose, as I explore later. The founders’ fears that legislators would
go into public office in order to get a job became realized when
lobbyists starting hiring over half the members of Congress and
many of their staffers after they left office.

Elections
Madison described the essence of good government this way:

It is essential to such a government that it be derived from the

great body of the society, not from an inconsiderable pro-
portion, or a favored class of it; otherwise a handful of ty-
rannical nobles, exercising their oppressions by a delegation
of their powers, might aspire to the rank of republicans, and
claim for their government the honorable title of republic.19

Elections are necessary to create this relationship. Without

elections, nobles can be tyrannical at whim. But elections are not
68 corruption in america

sufficient in themselves; an elected body could become its own

cabal and plunder the resources of the country. Virtue, James
Wilson argued, is an inadequate protection for the legislature if
all the legislative authority resided in one place.20 Therefore, the
framers split power between two different legislative bodies.
The framers brought a range of views about whether the Sen-
ate or House would be more corrupt: some, like Mercer, worried
about excesses of democracy; others worried about aristocracy.
The majority view was that the Senate was more inclined to
corruption—Randolph argued that “the Senate will be more
likely to be corrupt than the H. of Reps.”—and the House to
irrationality or supporting projects of the lower classes that
hurt elite interests. While Morris, among others, expressed a
fear that senators had shared interests that were not the inter-
ests of the people, he hoped the Senate might be resistant to
corruption because the elites have some dignity. The House of
Representatives’ resistance would derive from its size: the
supposition was that it would be impossible for various repre-
sentatives to all have similar interests that could be similarly
exploited.21
Both, according to Madison, were likely to engage in “schemes
of usurpation or perfidy”—without a check, each on the other, a
single body could come under the sway of “ambition or corrup-
tion” and government would betray the people. The difference
between the two bodies would make corruption across both
highly difficult. “The improbability of sinister combinations will
be in proportion to the dissimilarity in the genius of the two
bodies.”22 In order to protect the legislature from self-corruption
it had to be divided.
 removing temptations 69

What about size? The argument for a large House of Repre-

sentatives and the argument for a small House of Representa-
tives were both based on the same foundational principle: each,
it was claimed, would lead to less corruption. The argument for
a large body was that it would make it harder for representatives
to coordinate and intrigue for their own gains. Massachusetts
delegate Elbridge Gerry (best remembered for his association
with the “gerrymander”) argued that small groups of people who
came together would shift their alignment from those they repre-
sented to the new small group, finding similar personal interests
within the small group that would override their other obliga-
tions. “The larger the number, the less the danger of their being
corrupted,” Gerry argued. “It is a lesson we ought not to disre-
gard, that the smallest bodies in G. B. are notoriously the most
corrupt.”23 If this is the starting point, one would want to give
the smaller legislative body less power, because of the many op-
portunities for intrigue, thus the Senate was more prone to cor-
ruption because of its size. “The Senate are more liable to be
corrupted by an Enemy than the whole Legislature,”24 and “The
Senate will be more likely to be corrupt than the H. of Reps.
and should therefore have less to do with money matters.”25
Magistrates, small senates, and small assemblies were easier to
buy off, and it was easier for small groups to find similar mo-
tives and band together to empower themselves at the expense
of the citizenry. Larger groups, it was argued, simply could not
coordinate well enough to effectively corrupt themselves. “Be-
sides the restraint of integrity and honor, the difficulty of acting
in concert for purposes of corruption was a security to the pub-
lic. And if one or a few members only should be seduced, the
70 corruption in america

soundness of the remaining members would maintain the in-

tegrity and fidelity of the body,” Madison said.26
George Washington’s only contribution to the Constitutional
Convention arose in the context of a debate about the size of the
House of Representatives. He argued that it should be larger, so
as to ensure accountability to the people.27 With a large body,
differences between legislators would lead to factional jealou-
sies and personality conflicts if the same corrupting official tried
to buy, or create dependency across, a large body: the sheer size
and diversity of the House would present a formidable obstacle
to someone attempting to buy its members. Madison explained
that the framers had designed the Constitution believing that
“the House would present greater obstacles to corruption than
the Senate with its paucity of members.”28 Several delegates
noted that Holland was a small state, and its smallness was one
of the reasons it was easily corrupted by French influence.
Related to size was the vast geography of the country. Dis-
tance and inconvenience were seen as good defenses to corrup-
tion. Hamilton argued in Federalist No. 68:

The business of corruption, when it is to embrace so con-

siderable a number of men, requires time as well as means.
Nor would it be found easy suddenly to embark them,
dispersed as they would be over thirteen States, in any
combinations founded upon motives, which though they
could not properly be denominated corrupt, might yet be
of a nature to mislead them from their duty.

But the roads were too bad, the distances too great, and the
numbers too formidable to allow for the concerted redirection
 removing temptations 71

of the minds of men to private gain and the interests of the state
to private or foreign interests. While traditional republican the-
orists had always argued that only small countries could be re-
publics, Madison and the founders argued that larger countries,
among other attractions, provided better protections against
corruption.
The frequency of elections was also tied up in corruption.
How to use elections to make each branch dependent on the
people instead of on a different branch? The problem, as later
explained by Madison, was that in Britain, members of the House
of Commons were elected for seven years, and only a small num-
ber of people participated in the election.29 The longer terms
strengthened the legislators’ bonds with the executive and weak-
ened them with the people. Two-year periods would not lead to
the same kind of corruption. But if the political terms were too
short, the legislature might be too erratic, as the body itself
would constantly change. If terms were too long, however, legis-
lators would come to entrench themselves and use their offices
for their own advantage. Madison argued that election enabled
“an immediate dependence” and “intimate sympathy” with the
people. Frequent elections were “the only policy” that secured
this kind of psychological tie to the public. A short term would
ensure accountability and make it difficult to run too far on the
public purse. But a long term, Williamson argued, would make it
more likely that men of good character would undertake the
commitment to service—that is, a short term would attract only
weaker men, whose characters were capable of corruption.30
The framers were also vexed about the Senate selection pro-
cess. Pinckney wanted to replace the method of selecting the
Congress, switching its selection from “by the people” to “by the
72 corruption in america

legislature.” Gerry objected because he thought it would lead to

dependency flowing both ways, between state and national leg-
islatures, instead of to the people. He had a pessimistic view of
the capacity of state legislatures: “If the national legislature are
appointed by the state legislatures, demagogues and corrupt
members will creep in.”31 But these arguments failed, at least for
the next hundred years. Over a century later, the Seventeenth
Amendment allowed for direct election of senators, motivated
because the people thought the process corrupt. Hamilton ex-
plained the final compromise between direct elections and state
legislative elections: senators would bring with them a virtuous
attitude toward government, something deemed less likely in
the democratic rabble. But inasmuch as power and wealth could
corrupt them, too, the elections would ensure that those cor-
rupted would not be reelected.32 Of course, Hamilton believed
that corruption would still follow—leading members would be-
come corrupt and then in turn, through “arts and influence,” con-
vince the majority to follow them in policies that are “odious to the
community.” However, “if the proofs of that corruption should
be satisfactory,” the public resentment would show itself and the
leading members would be sacrificed at the next election.

Rotten Boroughs
Above all, the framers didn’t want representatives who did not
work for the public but rather worked for themselves or for a
powerful patron. They saw how rotten boroughs had enabled
that in England. In the New York state convention, Alexander
Hamilton explained that “the true source of the corruption
which has so long excited the severe animadversion of zealous
 removing temptations 73

politicians and patriots” was the way in which these boroughs

were “in the possession and gift of the king.”33 The term borough
referred to a municipal region with a right to have representa-
tion in the British House of Commons. A rotten borough ex-
isted in England when a disproportionately small number of
voters had outsized political power, which they often sold. The
elected representative of the borough would then be directed by
a wealthy member of the elite. They were often controlled by the
same family for many generations, and the votes were directed
by people who had no interest in what was actually happening in
the borough. Revolutionary writer Thomas Paine, in The Rights
of Man, complained of rotten boroughs when he said:

The county of Yorkshire, which contains near a million

souls, sends two county members; and so does the county
of Rutland which contains not a hundredth part of that
number. The town of Old Sarum, which contains not
three houses, sends two members; and the town of Man-
chester, which contains upwards of sixty thousand souls,
is not admitted to send any. Is there any principle in these
things?

The name rotten borough was arguably both a technical term

for a borough with exaggerated representation and a moral de-
scription of a borough that was fundamentally in the “posses-
sion and gift” of the king. A young John Dickinson claimed it
was thought that there was “not a borough in England in which
[bribery] is not practiced.”
In England, commentators of the day would mock the empty
parks that were well represented in Parliament while the huge
74 corruption in america

cities had no voice.34 In March 1776, the Whig John Wilkes,

who later supported the Americans, made a forceful speech de-
manding the end of the rotten borough system. He detailed
borough after borough—each with only a dozen people, yet
represented equally in Parliament. Because these parliamentar-
ians had so few voters to contend with, they were easily bought
by the Crown: the king would give offices to the representative,
who would in turn pay off the voters. Wilkes thought the rotten
boroughs were the primary cause of corruption and that “the
disfranchising of the mean, venal, and dependent boroughs
would be laying the axe to the root of corruption and treasury
influence, as well as aristocratical tyranny.”35 In England, how-
ever, the reformers felt stuck in a system with no release: those
in power were not likely to give it up.36
In the United States, they had a chance to start fresh. The
census provision became the constitutional protection against
rotten boroughs and the corrupting influence of disproportion-
ate power. There were two census protections in the original
Constitution. The first required that legislators (and taxes) be
tied to the number of people in each state—or, more precisely,
tied to the number of white people and three-fifths of all other
people, but not including untaxed Indians. The provision re-
quired a new census every ten years and provided a set of
formulas for determining representation, starting with one
representative for every 30,000 people. The second provision,
later amended by the Sixteenth Amendment, prohibited Con-
gress from imposing direct taxes that are not in proportion to
the census. The debate at the convention over these provisions
was largely a debate about slavery, and not the reasons for the
census.
 removing temptations 75

Age and Time

Corruption concerns also led to the constitutional provisions
that limit who can run for office. Representatives need to be
American citizens for seven years and at least twenty-five years
old; and senators need to be residents of their state, at least
thirty, and American citizens for nine years. Inhabitancy in
the represented state was included as a requirement for House
members in part because it protected against corruption. The
framers feared that wealthy nonresidents would purchase elec-
tions. George Mason argued that “if you do not require it—a
rich man may send down to the Districts of a state in which
he does not reside and purchase an Election for his Dependt.
We shall have the Eng. Borough corruption.”37 After extensive
deliberation—some wanted even greater protection, including
a term-of-years residency requirement in the particular area in
which the person was seeking election—the word resident was
switched to inhabitant to clear up confusion, and the residency
requirement, with no time requirement, was kept.
The clause demanding seven years’ citizenship in the United
States for House members also stemmed from a concern about
corruption. Mason, who introduced the bill, said he was all “for
opening a wide door for emigrants; but did not chuse to let for-
eigners and adventurers make laws for us & govern us.”38 One of
the meanings of adventurer, then as now, was someone who seeks
out wealth or power through illegal or unscrupulous means. As
the passage indicates, Mason was wary of people who would take
advantage of democratic forms to pursue their own ends. The dis-
tinction between “emigrants” and “foreigners and adventurers”
shows that the baseline anxiety for Mason was not that people
76 corruption in america

came from elsewhere but that they exploited the system and did
not truly belong to or intend to respond to the residents. The par-
allel nine-year citizenship requirement for senators was also heav-
ily debated—Mason again taking the charge and telling stories of
cabal and adventurers—but they ultimately settled on nine (in-
stead of three, fourteen, or thirteen) as fittingly more than that
for the House “because they would have more power.”
The age requirements for federal office come from an effort
to limit the power of family dynasties. The age limits make it
harder for one to come into power just by being a child of a
wealthy or political family. The provisions were “aimed to prevent
wealthy candidates from gaming the system.”39 Those most af-
fected by age limits would be the wealthy sons of a political
dynasty—not those without means. As Mason said, “If residence
be not required, Rich men of neighboring States may employ with
success the means of corruption in some particular district and
thereby get into the public Councils after having failed in their
own State. This is the practice in the boroughs of England.”40

Accounting
Giving the legislature the power of the purse was supposed to
stop corruption.41 The founders were concerned that an execu-
tive with the power of appropriation would use it to create de-
pendency by giving out money to political leaders.42 The Con-
stitution required that the treasury be accounted to ensure that
money was not stolen from the national treasury.43 All military
appropriations were limited to two years. The appropriations
clause also ensures that this happened by including a require-
ment that funds be appropriated transparently. The transpar-
 removing temptations 77

ency requirement gives the public a tool with which to govern

the elected representatives, because they can identify—and then
refuse to reelect—those who spend money in a way that is self-
serving instead of public serving. Likewise, the journal clause
requires accountability, such that secret intrigue cannot occur.

Takings and Givings

The initial Constitution did not protect citizens from having
their property taken by government. But one of the amend-
ments, ratified in 1781, elaborated that any private property that
was taken should be, in some sense, paid for: “Nor shall private
property be taken for public use, without just compensation.”
This has become known as the “takings clause,” and the reason
it was included in the amendments was unclear, as no state re-
quested it.
The takings clause is sometimes treated as a pure expression
of property rights, although most historians who have reviewed
the evidence conclude that it is less about property law and
more about protecting against process failures, including cor-
ruption. Legal historian William Treanor’s masterful history of
the takings clause concludes that the most likely source was a
set of political process failures—situations in which the system
would not work, and therefore individuals should have the right
to demand fair compensation. William Fischel has argued that
the use of the word just compensation—instead of the compen-
sation demanded by the property owner—shows that some-
thing more than simply asserting property rights was driving
the law. Malla Pollack argues further that the takings clause was
partially James Madison’s version of a proposed antimonopoly
78 corruption in america

clause. The ability to grant monopolies (or other special privi-

leges) and to take private property were intimately related. They
are both forms of state power susceptible to corruption.44 For
hundreds of years, the English Crown had used its power to
grant special privileges to businesses—sometimes called mo-
nopolies—in exchange for fees. The Crown got payments from
companies, and those companies would then be able to make
profits from their special privilege. The middlemen—agents of
the Crown who operated like early lobbyists—would get some
fees. The monopoly privileges tended to corrupt because they
bypassed the public scrutiny that follows taxing and spending.
The House of Commons denounced monopoly patents as cor-
rupt, and lucrative patents frequently went to courtiers. In 1599,
the famous jurist Sir Edward Coke held that the grant of exclu-
sive right to sell was against the fundamental public commit-
ments of English law. Monopolies “do not conduce to the public
weal.” Some of the anti-British sentiment two centuries later
was against the use of monopolies by the Crown. The riot in
Boston where tea was dumped into Boston Harbor—the origi-
nal Tea Party—was in part a protest against the British East
India Company’s monopoly on the importation of tea. Monop-
olies often enriched the Crown and private interests at the cost
of the public. Several states asked for an antimonopoly provi-
sion in the Constitution, which Thomas Jefferson also sup-
ported. Many Anti-Federalists—and some of the delegates to
the convention—ultimately refused to sign it because the con-
vention refused to adopt proposed antimonopoly provisions.
Pollack argues that the takings clause—taken in hand with
the copyright and patent clause—was intended as at least a par-
tial limitation on the power to corruptly sell special property
 removing temptations 79

privileges. Most of the argument is speculative—there is no re-

cord of why Madison included the takings clause or why he
refused to support an antimonopoly clause that was twice intro-
duced by Massachusetts delegate Elbridge Gerry. However,
Madison’s later expression of his theory of property suggests
that government may not take away the power of a merchant to
do something (which a patent effectively does):

That is not a just government, nor is property secure

under it, where arbitrary restrictions, exemptions, and
monopolies deny to part of its citizens that free use of
their faculties, and free choice of their occupations. . . .
What must be the spirit of legislation where a manufac-
turer of linen cloth is forbidden to bury his own child in a
linen shroud, in order to favour his neighbour who manu-
factures woolen cloth; where the manufacturer and wearer
of woolen cloth are again forbidden the economical use of
buttons of that material in favor of the buttons of other
materials!

Furthermore, some Federalists, criticizing Gerry’s final re-

jection of the Constitution for its failure to include an antimo-
nopoly provision, suggested that the patent and copyright clause
implicitly limited the scope of congressional monopoly power.
That clause gives Congress the power “to promote the progress
of science and useful arts, by securing for limited times to au-
thors and inventors the exclusive right to their respective writ-
ings and discoveries.” By the principle that what is not expressed
is not granted, there is evidence that at least some contempo-
raries believed that this grant of power was intended as the sole
80 corruption in america

grant. The “limited times” part of the clause showed that the
framers wanted monopolies (which both represented corruption
and led to temptations) to be carefully constrained.

Treaties
While most of these provisions related to internal governance,
the specter of foreign power was always present. In one proposal,
treaties could be approved with half of the Senate’s approval.
Gerry, however, “enlarged on the danger of putting the essential
rights of the Union in the hands of so small a number as a majority
of the Senate, representing, perhaps, not one fifth of the people.
The Senate will be corrupted by foreign influence.”45 The dele-
gates, in turn, enlarged the requirements, demanding two-thirds
of senators to agree to a treaty. As Lawrence Lessig puts it, “The
Framers didn’t want a Congress that was a farm league for the
French Riviera.”46 The executive was given the treaty-making
power after much disturbed debate.
 chapter four

j
Yazoo

If you were a politically active American in the 1790s and

early 1800s, you would have had an opinion about Yazoo. Alex-
ander 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 with fraud,
injustice and villainy” and akin to “perjury and murder, and
every other species of villainy.”1 Opponents accused supporters
of “Yazooism.”2
What was this controversy with a funny name? Superficially,
it was a big bribery scandal where speculators paid legislators
to sell state land for much less than it was worth. But at heart, it
was a case about power and politics. Your view on Yazoo de-
pended on your view about who gets to decide when something
82 corruption in america

is corrupt: courts or legislatures. Back in the 1780s the Consti-

tutional Convention had defined the republic as a nation preoc-
cupied with corruption. A decade later, corruption was still a
national fixation. In this case, it circulated around the relation-
ship of state legislators to land sales rather than the relationship
of kings to parliamentarians.
The scandal happened in Georgia. Land speculation flour-
ished in early America, and some of the cheapest land deals were
in state houses. States barely knew their own borders, so the
public might not even notice that land was sold, or how much.
Successful speculators were well connected and used personal
influence to persuade their political friends that selling land was
good for all parties: the state would get income, speculators
would get land, and the public wouldn’t miss it. Some investors
would buy land from the state with little evidence that it even
existed because it was so cheap, hoping for big profits from nat-
ural resources.
Georgia was particularly ripe for this kind of speculation be-
cause it claimed jurisdiction over vast masses of land that the
state did not control. Members of several Native American tribes
lived in those regions—and were resistant to colonization—
while other sections were deserted. Georgia’s governor had the
power to give small tracts of land to people who tilled it for at
least twelve months, a system designed to encourage homestead-
ing. In practice, neither the small tract rule nor the tilling rule
was closely followed. Instead, millions of acres—some of them
nonexistent—were given away in tracts as large as 50,000 acres
to people from all over the country who had no intention of
working the soil.
 yazoo 83

The politician Patrick Henry is best known to history for his

provocative speech to the 1775 Virginia convention in support of
the American Revolution, where he allegedly shouted: “Give me
liberty or give me death!” In 1789 Henry led a coalition of com-
panies that successfully secured an agreement with the state of
Georgia to buy thirty-five million acres of land close to the Yazoo
River (mostly within what is now Mississippi). When word of
the deal leaked, the public reacted angrily, and the Georgia
government quickly modified the contract to appease them. It
was a move worthy of Shakespeare: the state promised to keep
to their bargain, but insisted that the land be paid for only in
gold or silver. Henry and his associates lacked the precious met-
als, and the modification successfully killed the deal.
But he was not dissuaded. A few years later, new companies
were created with the same goal. The Virginia Yazoo Company,
the South Carolina Yazoo Company, and the Tennessee Com-
pany joined in the “Combined Society.” This time they were
more prepared. Henry and his associates made sure that Geor-
gia’s legislators were invested in the commercial associations.
When the bill came in front of them, they would want to sup-
port a sale.3 The companies’ records showed that “every member
of the legislature—with a single exception—who voted for the
bill was a shareholder in the purchases.”4 It was no surprise,
then, that the first bid of $250,000 for thirty-five million acres
passed the legislature. But the governor vetoed it. The next offer
for $500,000 again passed the legislature and was this time ac-
cepted by the governor. Some acres sold for less than one cent.5
It has been called by one commentator the “greatest real estate
deal in history.”6
84 corruption in america

These actions laid the groundwork for legal disputes about

how courts would struggle with the concept of corruption for
the next 200 years. The voters in Georgia were at first stunned
and then outraged. “Anti-Yazooist” factions sprang up and peo-
ple held meetings around the state. James Jackson, one of Geor-
gia’s great politicians, rushed back from Washington to lead the
protests. In the next election, according to one account, “the
only issue was Yazoo and anti-Yazoo.” The public threw out
every lawmaker who had voted for the deal, and once the new
legislature was elected, “there was no other business before the
General Assembly until this matter was disposed of. The body
was flooded with the petitions and remonstrances that had
been sent to the convention.”7 The new anti-Yazoo legislature
immediately created a committee (with Jackson at its head) to
investigate the Yazoo sale. It took them less than a month to
come to a conclusion. The committee reported that the initial
act was unconstitutional and had been fraudulently passed. In
response, the new legislature passed a law declaring the act void
and a nullity. But revocation was not enough for the betrayed
Georgians. They needed to actually set fire to the prior act:

The feeling of the Legislature was so strong, that, after the

Yazoo act had been repealed, it was decided to destroy all
the records and documents relating to the corruption. By
order of the two Houses a fire was kindled in the public
square of Louisville, which was then the capital. The en-
rolled act that had been secured by fraud was brought out
by the secretary of state, and by him delivered to the Pres-
ident of the Senate for examination. That officer delivered
the act to the Speaker of the House. The Speaker in turn
 yazoo 85

passed it to the clerk, who read the title of the act and the
other records, and then, committing them to the flames,
cried out in a loud voice, “God save the State and preserve
her rights, and may every attempt to injure them perish as
these wicked and corrupt acts now do!”8

For some individuals, the legal battle ended with the new leg-
islative act. Several people who had purchased Yazoo land from
the initial companies voluntarily gave up their titles and got
their money back. But the corruption controversy didn’t die
in the fire. The Yazoo companies, in defiance of Georgia, con-
tinued to sell claims to the land throughout the country. Ac-
cording to the sellers and buyers, a deal is a deal, even if it is a
bad one, and the land was no longer owned by the State of
Georgia. Through these proliferating land sales, the local issue
quickly became national.
Pro-Yazoo and anti-Yazoo divisions largely—but not
completely—reflected the lines between the early parties: Feder-
alists (who favored strong central governments) and Democratic-
Republicans. Political pamphleteers got in on the act and dis-
tributed screeds about the sale. The Yazoo scandal became a
political litmus test for politicians outside of Georgia.
Yazoo supporters argued that the sale could not be nullified.
From their point of view the state was bound by the contract to
sell the land. It didn’t matter if the motives of all the legislators
were obviously self-interested, and it didn’t matter whether or
not it reflected the will of the people. Their vision of a republic
depended on stable property rights: whether or not the purchas-
ers were exactly disinterested or innocent, purchasers needed as-
surance that what they bought wouldn’t be snatched away from
86 corruption in america

them by the whimsy of state houses. Their ideology reinforced

their interest: many Federalists came from the upper classes of
society and were closely associated with businessmen, the spec-
ulators of the time. But race and attitudes toward slavery also
percolated through the Federalist concern—many of the most
prominent Georgian anti-Yazooists were slaveholders. There-
fore, being pro-Yazoo was associated with anti-slavery senti-
ment: by the time Yazoo became a national scandal, all of the
northern states had either abolished slavery or taken steps to
abolish it. To support the slaveholders, even if they had a legiti-
mate democratic complaint, was to support men who had em-
braced a deeply corrupt and self-serving theory of democracy.
The anti-Yazoo faction—largely Democratic-Republican—
thought that the Georgia legislature clearly had the right to
void a corrupt contract. A leading Republican newspaper, Phil-
adelphia’s Aurora, denounced Yazoo as “melancholy proof of the
depravity of human nature” and as one of the worst examples
of unchecked land speculation.9 Some of the debate was on
“small-d” democratic grounds (the people have the right not to
be saddled with corrupt choices). Some of it was on contract law
grounds. The anti-Yazooists tended to be very wary of the na-
tional government and the elite institutions of the Supreme
Court, which they did not trust. For them, the Yazoo repeal
was a case of a state using its powers of self-government to
self-govern. The initial act was illegitimate, and the revocation
was legitimate. In contract terms, the anti-Yazooists regularly
reminded their adversaries that every company that sold Yazoo
lands refused to give a warranty against a defect in title. This
should have put a purchaser on notice of the problems with
the sale.
 yazoo 87

John Randolph was a Jeffersonian republican, the Speaker of

the House, and perhaps one of the most extraordinary orators
of his time. The scandal that bothered him the most—in a long
career in politics—was Yazoo. It seemed madness to him that a
group of confidence men could take over the government, give
land to themselves, and then walk away scot-free, losing only
their elected positions, nothing more, and taking with them the
full value of the property they had given themselves. “At his
coolest moments the word Yazoo was to him what the sight of a
bodkin was to Sir Piercie Shafton,” his biographer wrote. At
other times “the effect was beyond all measure violent.”10 Ran-
dolph kept insisting that the citizens of Georgia had acted
exactly as they should and in the only way in which they
could: they had elected representatives, they had paid attention
to their representatives’ actions, and then, when their represen-
tatives had betrayed them, they had immediately and forcefully
ejected them from office. From his point of view, the voters of
Georgia “had instantly, publicly, violently disavowed those agents
and repudiated their act, calling upon all the parties who had
meanwhile paid value for lands, under the obnoxious grants, to
receive back their money and surrender their titles. What more
could they have done? What more should they be required to
do?”11 He proudly proclaimed anti-Yazooism the project at the
center of his heart, and committed that he would “never desert
or relinquish till I shall have exercised every energy of mind
and faculty of body which I possess in refuting so nefarious a
project.”12
Yazoo made for clear political positions, but complicated le-
gal ones. In this, it prefigured campaign finance law cases today,
where it is easier to identify corruption as a political incident
88 corruption in america

than make sense of it legally. In the heat of the public debate,

the legal status of the land remained unclear. The anti-Yazooists
said that Georgia retained the title to the land; the pro-Yazooists
said that the purchasers had the title. In response to the crisis,
President Jefferson appointed three commissioners, including
then–Secretary of State James Madison, to resolve the legal
questions surrounding their claims to the land. Madison and
the other commissioners unequivocally concluded that the ini-
tial sale was void. Their report to Congress stated that they “feel
no hesitation in declaring it as their opinion, that under all the
circumstances which may affect the case . . . the title of the claim-
ants cannot be supported.”13
The Georgia lands commission also concluded that it was in
the best interest of the country to come to a compromise with
the claimants. As the U.S. government had bought the disputed
land, they were in the position to pay the claimants some por-
tion of what they thought they were owed. Their recommenda-
tion was vilified by angry populists as being a compromise with
corruption, and rejected by the certificate holders as too weak.
But Congress adopted the report and in a federal act provided
a method for claimants who had received lands under the “act
or pretended act” to sell their purported interest in the lands
and release their legal claims to the United States.14 The report
led to a split in the Democratic-Republican Party, much to the
Federalists’ delight. Randolph was furious about the Jefferson-
Madison compromise and broke with the party over it, starting
a party called “quids”—the first third party—that harked back
to old republicanism as against the federal tendencies of the
government.
 yazoo 89

Some claimants took the opposite view: they considered the

compromise insufficient and pursued legal remedies to get the
full value of the land, which is how the struggle ended up in
the Supreme Court. The new Court, testing its own powers,
had to make sense of this constitutionally weighty concept and
who had the power to enforce it.

The Concept of Corruption in the Court

In 1810 the third presidential succession—from Jefferson to
Madison—had gone smoothly, resolving the last doubts that
the United States would persist as a unified, federal nation. Six-
teen years had passed since the initial Yazoo land sale. The Su-
preme Court’s capacity to judge corruption was litigated for the
first time. A New Hampshire citizen, Robert Fletcher, bought
some Yazoo land from Massachusetts citizen John Peck and
then sued him for violating the warranties of good title. Peck
hired first John Quincy Adams, then Joseph Story, to defend
the good title of the land he sold. The case quickly went to the
Supreme Court. The case was about corruption, but it arose
under dubious circumstances, calling into question the integrity
of the Court itself. Many commentators—then and now—believed
the Fletcher-Peck sale was merely a pretense for initiating the
lawsuit. The land claimants were itching for a case and saw a
possibility of winning in the Supreme Court while the federal
payouts stalled.15 This suspicion that Fletcher was put up to the
task clearly troubled some justices—it violated the principle
that courts should not address theoretical questions but actual
legal disputes. Justice Marshall scolded Joseph Story from the
90 corruption in america

bench for representing a case that was “manifestly made up.”

Justice Johnson concluded that it was a “feigned case.”
It was hardly an equal match-up. Peck’s attorney, Joseph Story,
was a famous Massachusetts lawyer. Fletcher’s attorney, Luther
Martin, was considered brilliant and principled, but he was also
a notorious alcoholic or “Lawyer brandy bottle.” An acquain-
tance explained wryly that “his potatoes may sometimes per-
haps coagulate, but they will never acidify the fluid with which
it is so well replenished.”16 His once great oratory was declining.
In the Yazoo appearance in the Supreme Court, Martin was
too drunk to make any sense, and the case was suspended while
he sobered up.
But perhaps the most troubling aspect of the case was the ap-
pearance of conflict on the part of the most powerful decision-
maker. The Chief Justice of the Supreme Court, John Mar-
shall, had a history of land speculation that closely resembled
the Yazoo speculators’. Biographer R. Kent Newmyer describes
how, after the war, he became a lawyer for many officers, and in
that role

Marshall was well placed to garner a sizeable piece of the

action; to buy at a discount and sell at a profit, or to sell a
part to pay for the rest. Judging from his dealings with
Arthur Lee and James Monroe, he was not only successful
but aggressive. As he confessed to Monroe regarding his
various land dealings, “If I succeed I shall think myself a
first rate speculator.”17

As a congressman from Virginia ten years earlier, he had ar-

gued to the House of Representatives that the federal commis-
 yazoo 91

sioners should not investigate the legitimacy of the claims to the

western lands of Georgia. His personal and political history
cast a pall over his role as the final arbiter in the case. When the
Yazoo case came before him, he had become a speculator of a
different sort, one of the most important justices in U.S. Su-
preme Court history.
The technical issue before the Supreme Court was whether
Peck had breached the terms of his contract with Fletcher by
selling land he didn’t own. But that legal question turned on
deeper questions of political design: Was the initial act a nullity
because it was procured by corruption? And, if not, was the sec-
ond act valid in its revocation of the first act?18
These are hard questions on their own, but consider the in-
tellectual difficulties posed by these questions in the context
of the Revolutionary philosophy of the founding era. Francis
Hutcheson, a Scottish Enlightenment philosopher who greatly
influenced the framers of the Constitution, argued that when
the governors of a state act corruptly, the trust they have been
given “is violated, and the Grant thereby made void.”19 Richard
Price, an English supporter of the Revolutionary War, wrote
that governments “possess no power beyond the limits of the
trust for the execution of which they were formed.” Government,
he wrote, dissolves itself when it attempts to exercise power that
it has not been given by its constituents.20 Or, as Locke argued,
the “legislative constituted” by society “can never be supposed to
extend farther than the common good,”21 implying that when it
extended beyond that, it ceased to exercise legislative authority.
A representative is imagined as an agent or fiduciary of the public.
Just as an agent has no authority to act if she stops acting as an
agent of those who hired her, a representative lacks authority if
92 corruption in america

he is no longer accountable to his constituents.22 All of these

theories helped build the theoretical justification for the Rev-
olution. But what happened when the same dynamics played
out on a smaller scale? Could corruption in a legislature jus-
tify a state “overthrowing” a law passed by a bribed body of
representatives?
When state-level protections against corruption failed spec-
tacularly, the Supreme Court had to confront the legal version
of the Revolutionary claim: that a law could be so tainted with
bribery accompanying its passage that it was not a law. The
Courts had three options: The first was Yazooism. This approach
would forbid either judicial or legislative review of whether a
law was passed corruptly. A law is a law, and the process by which
it was passed is irrelevant. The second was a judicial review of
corruption. The Court could void laws passed because of brib-
ery. This approach requires courts to determine when a law is
corruptly passed and distinguish those cases from the routine
case of a law being passed with some private reasoning done by
legislators. The third was a democratic review of corruption.
The Court could treat the initial law not as void but voidable—
capable of repeal. This approach gives legislators wide latitude
to reverse their policies and grants of power. Which way would
the Court go? As with many later corruption cases, the decision
would impact legal history in cases outside of corruption law.
Luther Martin argued that the initial act was void because it
was corrupt. He also argued that the second act (destroying the
contract) was within the power of the people of the state to
change laws. His argument depended on how one imagined the
legislature’s relationship to the people of the state of Georgia. If
one treated the principal to the contract as the people of Georgia,
 yazoo 93

the legislature was like an agent acting outside its authority in

selling the people’s lands. To continue the analogy, it would be
like a company (the public) hiring a lawyer (the representatives)
to negotiate, but the lawyer making deals far outside what the
company hired him for. In general, an agent’s actions outside
the scope of a contract aren’t enforceable as against the principle.
Story and the Yazooists argued that it didn’t matter if the
initial act was corrupt. “The grossest corruption will not autho-
rize a judicial tribunal in disregarding the law” because “this
would open a source of litigation which could never be closed.
The law would be differently decided by different juries; in-
numerable perjuries would be committed, and inconceivable
confusion would ensue.” As to Martin’s second argument, the
Yazooists argued that the Georgia legislature was the party to
contract, not the people. In voiding its own law, the legislature
had done something entirely unacceptable: entered into a con-
tract and then later pronounced its own action invalid. To con-
tinue the analogy above, it would be as if a company directly
negotiated with someone to buy an order of chairs, and then,
after leadership changed hands, unilaterally announced the ini-
tial contract was void. Such an action would be against the basic
principles of contract.
In the opinion deciding the case, Fletcher v. Peck, Marshall
concluded that in the abstract, a legislative act might be void if
secured by bribery, but the posture of this case did not allow for
that examination. He concluded that the corruption challenge
to the law could not be brought in that particular way, “collaterally
and incidentally” to a case about a private contract. It would be
“indecent, in the extreme, upon a private contract, between two
individuals, to enter into an inquiry respecting the corruption of
94 corruption in america

the sovereign power of a state.” However, he strongly indicated

discomfort with the idea that a court could ever explore the cor-
ruptness of legislation as a process matter, even if the subject was
not a private contract. He wrote that it would be very difficult to
find a process violation based on “the impure motives which in-
fluenced certain members of the legislature which passed the
law.” It would be hard to know what constitutes corruption and
hard to create a rule that would allow for judicial review.23
Courts, he suggested, do not have the competence to exam-
ine the motives of legislators and determine corruption. How
much can a court look into the “particular inducements” offered
to form the contracts? Could it be possible that the “validity of a
law depends upon the motives of its framers”? If so, how would
one possibly look into the minds of the framers of the law, and
would not the court become so entangled in motive that no law
could withstand it?

If the principle be conceded, that an act of the supreme

sovereign power might be declared null by a court, in con-
sequence of the means which procured it, still would there
be much difficulty in saying to what extent those means
must be applied to produce this effect. Must it be direct
corruption, or would interest or undue influence of any
kind be sufficient? Must the vitiating cause operate on a
majority, or on what number of the members? Would the
act be null, whatever might be the wish of the nation, or
would its obligation or nullity depend upon the public
sentiment? If the majority of the legislature be corrupted,
it may well be doubted, whether it be within the province
of the judiciary to control their conduct, and, if less than a
 yazoo 95

majority act from impure motives, the principle by which

judicial interference would be regulated, is not clearly
discerned.

His language was less positivist or Hobbesian than despair-

ing. For a positivist—someone for whom there is no moral con-
tent to law—corruption is a very troubling legal idea because it
is so deeply intertwined with a moral idea, or a baseline attitude
toward what constitutes “good” politics. In Marshall’s rejection,
he did not reject the possibility of corruption but was clearly
troubled by the idea of law (the judiciary) having anything par-
ticular to say about corruption, because it would mean that the
act of law giving would be the act of assessing the good or evil
about a particular kind of political behavior. Marshall was also
bothered that corruption lacks precise definition as a matter of
law. Because it has no clear bounds, setting aside a law on the
grounds of corruption opens up all laws to similar charges. This,
then, could undermine law itself, as it would leave ambiguous
what laws were legitimate expressions of authority and what
laws were illegitimate expressions, depending upon a later judg-
ment by a subjective court.
Marshall’s decision sided with the Yazooist: the legislature is
the principal because the people never act except through the
legislature. The public is unlike individuals, who can act directly,
without agents. Because this is the sole mode in which “the people”
exist and enter into arrangements, to dispute the legitimacy of
one agent (one legislature), the only way to do it is through a sub-
sequent agent (another embodiment of that legislature).
As Marshall saw it, if a legislature could revoke its own cor-
rupt prior actions, it would either be either acting as a judge in
96 corruption in america

its own tribunal, or, if not acting as a court, “exerting a mere act
of power in which it was controlled only by its own will.” Since
he did not want to give the legislature the authority to act either
as a judge upon itself or as unconstrained mere power, he con-
cluded that the only way to examine the revocation is through
the traditional common-law lens of contracts—with the legisla-
ture (not the public) as the relevant actor. Within the realm of
contracts, then, he turned to the public policy goal of making
sure that titles are secure and the importance of keeping open
“the intercourse between man and man.” It was of utmost im-
portance to protect innocent third parties.24 While initial con-
veyances might be set aside because they were procured by cor-
ruption, once they had passed into an innocent third party’s
hands, they became enforceable.
Marshall reasoned that Georgia was asking for legislatures
to get special treatment in contract law. To treat the legislature
as a special category for purposes of these kinds of conveyances
would lead to the legislature being able to “devest any other in-
dividual of his lands, if it shall be the will of the legislature so to
exert it.” In order to support the right of the legislature to re-
voke its own grants, Fletcher would have to argue this principle:
“That a legislature may, by its own act, devest the vested estate of
any man whatever, for reasons which shall, by itself, be deemed
sufficient.”
In some ways the most radical move was Marshall’s charac-
terization of the land grant as a contract.25 This allowed Mar-
shall to place the case in the context of the contracts clause of
the U.S. Constitution, Article I, Section 10, which says that no
state may “pass any Bill of Attainder, ex post facto Law, or Law
impairing the Obligation of Contracts.” According to Marshall,
 yazoo 97

this clause was designed as a limit on emotional democracy and

excessive democracy:

Whatever respect might have been felt for the state sover-
eignties, it is not to be disguised that the framers of the
constitution viewed, with some apprehension, the violent
acts which might grow out of the feelings of the moment;
and that the people of the United States, in adopting that
instrument, have manifested a determination to shield
themselves and their property from the effects of those
sudden and strong passions to which men are exposed.
The restrictions on the legislative power of the states are
obviously founded in this sentiment; and the constitution
of the United States contains what may be deemed a bill
of rights for the people of each state.

The effect of the second act on Fletcher would be, according

to Marshall, like the effect of an ex post facto law. In his reading
of an ex post facto law, the legislature is “prohibited from pass-
ing a law by which a man’s estate, or any part of it, shall be seized
for a crime which was not declared, by some previous law, to
render him liable to that punishment.” Without this prohibi-
tion, emotional actions and excessive instability would be forth-
coming. Therefore, the purchasers of the land were entitled to
the full value. However, Marshall was also moved by a sense of
natural law that protected the sanctity of property.
There is no evidence that most of the framers intended the
contract clause to operate this way. To be fair, the reason for the
contracts clause is unclear—it seems a redundancy. It is likely
that its sole purpose was to limit state interference with private
98 corruption in america

contracts—unless it was snuck in by Alexander Hamilton, as

one historian speculated.26
The ideological underpinnings of the case undermined any
democratic check on corruption. In Marshall’s way of thinking,
the scope of government largely ought not extend to the ability
to transfer property:

It may well be doubted whether the nature of society and

of government does not prescribe some limits to the legis-
lative power; and, if any be prescribed, where are they to
be found, if the property of an individual, fairly and hon-
estly acquired, may be seized without compensation. To
the legislature all legislative power is granted; but the
question, whether the act of transferring the property of
an individual to the public, be in the nature of the legisla-
tive power, is well worthy of serious reflection.

Marshall’s logic leads to nonreviewable giveaways and tak-

ings, because he perceived democratic review as destabilizing.
A legislature that could take back what it has given would leave
property rights uncertain, which could limit economic growth
and development. The passions that excite citizens in a democ-
racy would be too fickle, according to Marshall, and must be
restrained by the contract clause and common law of contracts,
or commerce would not be allowed to develop in a stable way.

Democratic Power to Fight Corruption

The impact of Fletcher was enormous, and largely unanticipated.
The Fletcher-created contract clause “served in the antebellum
 yazoo 99

era as the most significant constitutional limitation on state power

to regulate the economy.”27 After Fletcher, the Marshall Court fol-
lowed the same logic and declared a tax repeal unconstitutional,
and modifications of corporate charters unconstitutional. The
doctrine became a radical restriction on the scope of legislative su-
premacy. Fletcher was the first time that the Supreme Court struck
down a state law on constitutional grounds. It set in motion a gen-
eration of cases in which courts invalidated legislative actions.
Scholars have questioned Marshall’s motives, his logic, and his use
of the impairments of the obligations of contract.
The contract clause reading created a barrier to electoral re-
straint of corruption because the capacity of the legislature to
reverse policy in one direction acted as an invitation to corrup-
tion in that area. Any time a legislature corruptly granted water
rights, a monopoly in bridge building, land, or reduced tax rates
for a certain class of companies, the public was stuck. For the
democratic theory of corruption control to work, the people must
be able to throw out the legislature and elect a new legislature to
revoke the water rights, revoke the monopoly, revoke the corpo-
rate charter, revoke the land grant, and change the tax rates.
Thomas Jefferson and James Madison were not pleased. Two
months after the decision came down, Jefferson wrote to Madi-
son: “Really the state has suffered long enough by having such a
cypher in so important an office, and infinitely the more from the
want of any counterpoise to the rancorous hatred which Marshall
bears to the government of his country, & from the cunning &
sophistry within which he is able to enshroud himself.”28
According to Jefferson, “His twistifications in the case of Mar-
bury, in that of Burr, & the late Yazoo case, shew how dexterously
he can reconcile law to his personal biasses.”29 They used the
100 corruption in america

word Yazooism as shorthand for Marshall’s reasoning and the

reasoning of anyone who supported the certificate holders over
the power of the state legislature. Jefferson later advocated for a
candidate for the Supreme Court, noting that he had been
“interested in Yazooism” but was now “clear of it.”30 President
Madison, however, rejected the candidate on the grounds that
he was still “infected with Yazooism.”31 Madison’s impulse to-
ward federalism was greater than his impulse toward judicial
review. In 1788 he worried about too much judicial power and
argued that it was neither intended nor proper that the judicial
department be paramount to the legislature.32 Nor did he call
upon judicial review as a check on legislative powers in the Fed-
eralist Papers. While he supported some scheme of national fed-
eral review, he never suggested judicial review of state laws. If he
had believed in judicial review, it is almost certain—especially
given his own review of the Yazoo scandal as a commissioner—
that the review would not extend to invalidating an act of a state
legislature on contract clause grounds.
Marshall’s opinion in Fletcher v. Peck foreshadowed some of
the central intellectual disagreements in corruption cases 200
years later. The first disagreement is over how abstract to be.
Can corruption make sense separate from the particular politi-
cal context? Justice Marshall described the case in general terms,
not in terms of the particular wholesale bribery and theft. That
enabled him to use the difficult meaning of corruption as a way
to avoid the particular issue, arguing that the specificity of the
facts ought not obscure the abstract issue. This prefigured the
move in the campaign finance law cases, where modern justices
describe corruption in purely abstract terms and therefore nar-
row its meaning.
 yazoo 101

It also foreshadowed the modern corruption nihilism of the

kind we see again in Chief Justice John Roberts. Determining
what corruption is constitutes neither a judicial nor a legislative
task. Judicial intervention will lead to instability, and legislative
intervention will lead to instability. The legislature should not
have complete freedom to upend settled property laws on the
mere charge of corruption, but the judiciary should not intrude
unnecessarily in the workings of the legislature because it would
lead to a troubling intervention in political activities. Marshall
noted with sorrow and condemnation that “corruption should
find its way into the governments of our infant republics, and
contaminate the very source of legislation.” But his answer, in ef-
fect, was that nothing can be done about it. As we turn to bribery
laws, we peer into the precise shape of that nothing.
 chapter fiv e

j
Is Bribery without a Remedy?

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 fol-
lowed Benjamin Franklin, who also loved reform and frigidness
(Franklin was partial to cold air baths). Sir John’s successful
Tribute to Hydropathy went 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 novel and vehement pro-
cess of pushing and pulling, tugging and tightening” left him
“like a chrysalis, incapable of motion.”1
These dousings and massages freed him of recurrent sick-
ness, reinvigorated him, and allowed him to pursue his passion
for law. In 1853 he published a long open letter to Lord John Rus-
sell, the leader of the House of Commons. The letter, or tract,
was called Is Bribery without a Remedy?, and it addressed itself to
the bribery of and by parliamentarians. Sir John approached the
sickness of the body politic—and its potential cures—as he had
 is bribery without a remedy ? 103

analyzed the sicknesses and cures of the body. No one, he ar-

gued, could ignore the “cancer” that had been “slowly developing
itself in the political body.”2 He detailed the proliferation of
bribery in parliamentary elections and the absence of prosecu-
tions. Unlike the bribery of judges, which had long been pun-
ished as a heinous act in Britain, bribery around parliamentary
elections seemed barely criminal. Instead, legislators regulated
themselves, holding the rare impeachment trial, and typically
ignoring the problem.
Sir John could only find one instance of a member of parlia-
ment being punished for bribery. Why? He had two main spec-
ulations. First, serving in parliament had previously been seen
more as a chore than a prize, so bribery had not been a problem
because earlier generations of lawmakers would not bribe to get
something so invaluable. Second, parliament jealously protected
its traditional privilege to judge its own members through im-
peachment proceedings, and courts were wary of stepping into
a different branch’s internal affairs.
But the deeper reason likely lay elsewhere, in the history of
extortion and bribery laws, which came into being when En-
gland was less democratic. Extortion occurs when a public offi-
cial demands payment for something he is already supposed to
do; bribery occurs when a private party pays an official for influ-
ence or a particular favor. While both kinds of law have come to
apply to elected officials, neither began that way. Bribery laws
largely grew out of judicial rules, whereas extortion statutes grew
out of rules governing appointed officials.
The word bribe, according to the prominent seventeenth-
century jurist Sir Edward Coke, “commeth of the French word
briber, which signifieth to devoure, or eat greedily, applied to the
104 corruption in america

devouring of a corrupt judge.”3 The archetypal bribery occurred

when a litigant paid a judge. The initial English bribery statute,
put in force in the 1380s, prohibited judges from taking a “robe,
fee, pension, gift, nor reward of any but the King, except reward
of meat and drink, which shall be no great value.”4 Enforcement
was potentially severe, but practically depended upon the whims
of the Crown.5 Even after parliament’s power had expanded, the
widely read jurist William Blackstone described bribery in
relation to judges and those involved in the administration of
justice.6
Extortion, on the other hand, applied to all public ministers.
“For the difference between bribery and extortion is this,” Coke
wrote, “bribery is only committed by him, that hath a judicial
place, and extortion may be committed by him, that hath a
ministerial office.” The oldest Anglo-American extortion rules
were codified in 1275 in the Statute of Westminster, prohibiting
an officer of the king from taking payment—except from the
king—for his public duties. Blackstone, writing in the 1760s,
described extortion as “an abuse of public justice, which consists
in any officer’s unlawfully taking, by color of his office, from any
man, any money or thing of value that is not due him, or more
than is due, or before it is due.”7 While the word officer might
include elected officials, it typically referred to appointed offi-
cials, and the archetypal extortion involved a local functionary
demanding extra money from a citizen.8
These crimes preceded the existence of a powerful parlia-
ment and were not initially designed to police the flow of money
around elected representatives. Therefore, bribery seemed to
have no remedy: the common-law crimes of bribery and extor-
tion did not fit well, and parliamentarians—who reserved for
 is bribery without a remedy ? 105

themselves the “sole and exclusive right to punish their members

for the acceptance of a bribe in the discharge of their office” 9—
did not seem inclined to punish their own. The common law did
include crimes against what was called treating—giving food or
drink to a voter—but they were also rarely enforced.

Confusions in the First Generation

But what about America, the country formed on anticorruption
concerns? The baronet’s anxious question—is there a remedy?—
applied just as well to the United States. When the Americans
inherited the English tradition of using criminal law to prose-
cute corruption in a republic, it was a weak inheritance. The
Constitution may have been designed to protect against corrup-
tion by creating incentive structures, but when bribery slipped
through the cracks, would criminal law provide a second line of
defense?
The newly formed American federal government did not
pass a general bribery or extortion statute, or any bribery stat-
ute directed at legislators. Instead, they passed an antibribery
statute prohibiting the giving or receiving of bribes to certain
judges, customs officers, and tax officers.10 The punishment was
a fine and imprisonment. The absence of a general federal legis-
lative crime led to a series of early confusions about federal com-
mon law and the authority of Congress.
At the same time, federal prosecutors were not sure whether
they had power to indict anyone for bribery who was not listed
in the limited federal law. The issue came to the fore in the build-
ing of a lighthouse. Ten years after the Constitutional Conven-
tion, Congress gave the commissioner of the revenue, Tench
106 corruption in america

Coxe, the authority to select a builder for a Cape Hattaras light-

house. An eager contractor, Robert Worrall, wrote Coxe describ-
ing his skill and suggesting that if he got the commission, he
would share some of the proceeds with Coxe. Coxe promptly
shared the letter publicly, and federal prosecutors indicted Wor-
rall. In United States v. Worrall, the District Court of Pennsylva-
nia had to decide a foundational legal question: does the United
States have a criminal common law? Worrall argued that he
could not be convicted of bribery because there was no relevant
statute. A three-judge panel was split. Then Supreme Court jus-
tice Samuel Chase (riding circuit) concluded that Congress had
power to define and punish crimes, but without congressional
action, there was no bribery.11 Judge Peters, disagreeing, believed
that the capacity to prosecute bribery was an essential feature of
what it means to be a government:

Whenever a government has been established, I have al-

ways supposed, that a power to preserve itself, was a nec-
essary, and an inseparable, concomitant. But the existence
of the Federal government would be precarious, it could
no longer be called an independent government, if, for the
punishment of offences of this nature, tending to obstruct
and pervert the administration of its affairs, an appeal must
be made to the State tribunals, or the offenders must es-
cape with absolute impunity.

In the absence of agreement—and an apparent lack of will-

ingness of the defendant to appeal to the Supreme Court—they
compromised: the defendant received a fine and three months’
imprisonment. No meaningful precedent was set.
 is bribery without a remedy ? 107

While it seemed there was no federal common law of bribery,

it also was not clear whether the new country had inherited the
English tradition of legislative bodies having authority to pun-
ish corrupting behaviors in their own halls. In 1795 two land
speculators, Robert Randall and Charles Whitney, offered con-
gressmen land and money in exchange for supporting their plan
to buy nearly twenty million acres of land abutting Lake Erie.
The lawmakers reported the attempted bribes, and Randall and
Whitney were taken into custody at the House of Representa-
tives and questioned by the Speaker of the House. Throughout
the imprisonment and interrogation there was confusion about
Congress’s authority and the correct internal process, but a su-
permajority supported bringing corruption charges. Randall
was found guilty of contempt of the body for “attempting to
corrupt the integrity of its members” and punished by a repri-
mand from the Speaker and being held by the sergeant at arms
“until further order.” A week later, Randall successfully peti-
tioned to be released. Whitney was absolved because he had of-
fered a bribe to a member-elect, not a sitting member, and the
offer occurred away from the scene of the House of Representa-
tives.12 It seemed that Congress had the power to make life an-
noying, but little else, for those who tried to bribe its members.
Twenty years later, the role of Congress in punishing bribery
was still confused. On January 7, 1818, North Carolinian con-
gressman Lewis Williams “laid before the house” a letter from a
“John Anderson,” who had offered him $500 as “part pay for ex-
tra trouble,” in relation to help he was requesting regarding the
Raisin River. Anderson was arrested by the sergeant at arms, but
the House was split on its authority to punish him. Some mem-
bers claimed that the 1795 Randall contempt hearing represented
108 corruption in america

“high handed” “British notions” that predominated in Wash-

ington’s presidency and should be abandoned. Others argued
that contempt power was essential to protect the integrity of
the House. A committee was constituted to manage the affair,
and it resolved that Anderson should be “brought to the bar of
the House and interrogated”; after extensive debate (and with
several members adamantly opposed), the vote authorized the
contempt proceedings. For two days, January 15 and 16, the Speaker
of the House interrogated Anderson about his alleged bribe; An-
derson had a lawyer and presented witnesses. He was found guilty
of contempt and punished by being brought before the Speaker
and reprimanded “for the outrage he has committed.”13
Anderson promptly sued for assault, battery, and false impris-
onment. His argument was that the Constitution did not vest in
Congress the power to punish for contempt. When the case
came before the Supreme Court, it concluded that while there
was no explicit provision, the structure and purpose of Congress
implied its power to protect itself. The case, Anderson v. Dunn, is
remembered for establishing congressional authority to use the
contempt power, but in a limited way—no imprisonment could
exist past the adjournment of the legislative session.14 And Con-
gress seemed to still lack power to punish bribery that did not
happen in the physical jurisdiction of the legislature.
In the states, on the other hand, a patchwork of statutory and
common laws covered a small set of potentially corrupting ac-
tivities. Extortion was more likely to be criminalized than brib-
ery, perhaps because the power dynamic of an official extorting
a citizen was more dangerous than a citizen bribing an official.15
States recognized common-law crimes of bribery and extortion
but rarely used them. To the extent there were bribery laws di-
 is bribery without a remedy ? 109

rected at elections, they tended to criminalize vote buying (a

candidate paying for a vote) instead of law buying (paying a can-
didate to get a law passed). These laws, as I mentioned earlier,
were called treating laws, covering election day bribery of voters
with food and drink and cash. For instance, the Maryland rule
in 1776 was that “if any person shall give any bribe, present or
reward, or any promise . . . to obtain or procure a vote . . . or to
be appointed to . . . any office of profit or trust . . . [he] shall be
forever disqualified to hold any office of trust or profit in this
state.”16 Georgia, in 1799, passed a law imposing a penalty of up
to $100 for anyone caught bribing a voter. North Carolina
passed an 1801 statute that prohibited giving voters meat or
drink or anything else of value on election day. An 1825 Dela-
ware law imposed penalties of $50 to $200 for the use of influ-
ence in getting a free elector to cast his vote for a particular can-
didate running for office. An 1823 Tennessee statute made it a
crime “for any person offering himself as a candidate for any
office of honor, profit, or trust, to treat the electors, for the pur-
pose of obtaining their votes, with spirituous liquors.”17 In Vir-
ginia, candidates who gave money, meat, drink, or reward for
elections would be expelled from office (if they held it) and not
able to run for office for another three years, unless the food and
drink was provided in the normal course of hospitality. The
New York rule in 1787 was that any individual who would “di-
rectly or indirectly, attempt to influence any free elector of this
state” would have to pay 500 pounds and be “utterly disabled,
disqualified and incapacitate, to hold exercise or enjoy any office,
or place of trust or profit, whatsoever within this state.”18
For non-election-related crimes of bribery and extortion,
punishments on the books could be quite severe. Michigan and
110 corruption in america

Maryland passed statutes with fairly heavy penalties in the first

decade of the 1800s: Michigan allowed for a fine of up to $800,
five years’ hard labor, and disqualification from offices of honor,
trust, or profit; and Maryland punished bribery with twelve
years in prison. New Jersey in 1795 passed a statute directed at
judges, with a punishment of up to five years of hard labor, an
$800 fine, and permanent disqualification. Taking extra salary
for ministerial and judicial offices was punishable by up to two
years’ hard labor and a $400 fine.
Most reported cases (typically, those in which there was an
appeal) involved a bribed judge or juror, or local law enforce-
ment.19 In general—though the lines were not neatly drawn—
bribery retained its historical association with judicial wrongs
in the early republic and up through the late 1820s, whereas
extortion was more associated with executive offices. The as-
sociation was not absolute, but it reflected a general conceptu-
alization of bribery punishments as primarily protecting the
sanctity of trials, whereas extortion punishments were intended
to protect the sanctity of governmental processes. In an early
Virginia case from 1795, a lawyer could argue that bribery “can
be committed only by a person in a judicial capacity. . . . Extor-
tion may be committed by him who acts ministerially, but brib-
ery cannot.”20 The argument was unpersuasive to the court, but
its formulation shows how the language of bribery was still as-
sociated with the judicial sphere, and similar arguments show
up in cases for the next few decades.
In the political arena, the punishment was primarily politi-
cal, as the New York statute suggested. As in England, common-
law bribery and extortion were misdemeanors, albeit serious
ones. They were called “high misdemeanors.” The “high” indi-
 is bribery without a remedy ? 111

cated that they were within the category of wrongs that dis-
qualified one from office or public service—regardless of the
size of the criminal penalty. Several states kept this tradition.
For example, the original New Hampshire constitution included
this provision: “No person shall ever be admitted to hold . . . any
office of trust or importance under this government, who in the
due course of law, has been convicted of bribery, or corruption,
in obtaining an election or appointment.”21 And of course the
U.S. Constitution retained this feature, making it an impeach-
able offense to commit “high crimes and misdemeanors.” One
might not be jailed for extortion, but it disqualified one from
public office.
Neither corruption nor bribery nor extortion were uniformly
or clearly defined. A 1797 Delaware list of “indictable crimes”
described bribery broadly, as “an offense against public justice,”
constituted by undue reward for one in the administration of
public justice, in an attempt “to influence him against the known
rules of law, honesty, or integrity, or [constituted by] giving or
taking a reward for offices of a public nature. He who accepts
and he who offers the bribe are both liable to punishment.”22
Because extortion cases were more frequently appealed than
bribery cases, we have a better sense of what constituted “cor-
rupt” behavior in the extortion context in the early years of the
country.
Courts were split both on whether some kind of corrupt
intent was required to prove a violation, and on what kind of
evidence was required to show corrupt intent.23 Criminal cor-
ruption law in Maryland was close to an absolute “bright-line”
rule—a rule in which the act is examined without regard to
whether there is corrupt intent—in that no officer was allowed
112 corruption in america

to take more than his statutory salary. The Maryland court held
that intent did not matter—the crime was complete upon the
illegal taking, even though, “No doubt he received the fee under
an entire conviction that he had a right to it.”24 As the Mary-
land judge argued, if you needed to prove corrupt intent, there
would be few convictions. In an 1827 Pennsylvania case, where a
justice of the peace took money from someone charged with as-
sault, the justice of the peace appealed a conviction of extortion
on the grounds that there was no proof he took the money with
corrupt intent. The Supreme Court of Pennsylvania rejected
the appeal because of the danger that “pretexts would never be
wanting.” Therefore, “sound policy” led the court to conclude that
“the absence of a corrupt motive, or the existence of an agreement
by the party injured, furnishes no justification for doing what the
law forbids.”25 In contrast, a Massachusetts court concluded that
corrupt intent was an essential element of the extortion statute.
“Unless the excess [fee was] wilfully and corruptly demanded and
received, it was not within the statute.”26 Some courts held that
corrupt intent could be deducted by circumstance. A 1796 North
Carolina case included the indictment that the defendant “took
eight shillings for a certain service by colour of his office, and for
wicked gain sake.” The defendant said that it was by mistake,
but because the amount taken was above the legal fee, there was
sufficient evidence of a crime and the wicked gains sake require-
ment was presumptively satisfied.27 All of these issues return
in later years to make bribery laws difficult to pin down.
One 1795 Virginia case foreshadowed another interesting
question in bribery law: is it illegal if you bribe someone who
does not have the power to make a difference? A candidate for
county clerk promised one of the justices of the peace that if the
 is bribery without a remedy ? 113

justice of the peace would vote for his candidacy, he would share
the profits he earned if elected. A judge puzzled over whether it
was possible to say that corrupting one of a group of electors
constituted bribery. He concluded no: one cannot be convicted
of selling an office when only one of many of the electors is of-
fered a payment, because the electing body is larger than the
individual whose vote might be influenced.28
There is little case law evidence that these laws were broadly
enforced.29 Furthermore, bribery laws were not mentioned in
the Yazoo scandal; they were treated skeptically in Anderson v.
Dunn; and there are less than a dozen reported political corrup-
tion cases in the first fifty years after the ratification of the Con-
stitution. One would have to conduct a study of trial records of
the period to know more precisely how often they were used,
but they were not a significant part of the discourse in the early
republic.

Expansion of Corruption Laws to Legislative Activity

James Monroe’s inaugural speech in 1817 reaffirmed the most
basic principles of the Constitutional era, that the biggest threat
to a democracy was the corruption of its people:

It is only when the people become ignorant and corrupt,

when they degenerate into a populace, that they are inca-
pable of exercising the sovereignty. Usurpation is then an
easy attainment, and an usurper soon found. The people
themselves become the willing instruments of their own
debasement and ruin. Let us, then, look to the great cause,
and endeavor to preserve it in full force. Let us by all wise
114 corruption in america

and constitutional measures promote intelligence among

the people as the best means of preserving our liberties.30

His language is Montesquieu’s. The effort to stave off politi-

cal parties had failed by this point, and politics was partisan,
but the essential role of the citizen has retained its force.
In 1816, six years after Fletcher v. Peck annulled Georgia’s ef-
fort to repeal a corrupt law, the state passed a broadly worded
statute that directly addressed legislative bribery, unlike most
of the prior laws. The Georgia statute provided a punishment of
five years for any person who tried to “influence” the “opinion,
judgment, decree, or behavior of any member of the general As-
sembly, or any officer of this State, Judge, or Justice.”31 Georgia
represented the beginning of a new trend in corruption laws—
the expansion to cover legislative activity.
After the 1820s, most states that passed new antibribery laws
included bribery of legislative officers as a crime. For instance, a
few years after becoming a state, Illinois passed a bribery law
that covered judges and members of the general assembly. Brib-
ery was punishable by a $1,000 fine and one year in prison, with
disqualification from holding offices; attempt was punishable
by up to $500.32 Legislative bribery was typically described
broadly, encompassing far more than simply selling a particular
favor. Officials were guilty if they were found to be partial or to
treat one side more favorably, and bribers were guilty for trying
to influence anything, even judgment. For example, in Michigan,
the briber was guilty if he gave something of value “with intent to
influence his act, vote, decision, or judgment on any matter.”33 In
Colorado it was illegal to give or receive a gift in exchange for in-
tent to treat one side more favorably than the other.34
 is bribery without a remedy ? 115

Starting in the middle of the century, the elements of bribery

and extortion were increasingly fused, and the bribery statutes
become even broader. Kentucky’s 1851 statute provided that “if
any member of the general assembly, or if any executive or min-
isterial officer, shall take or agree to take, any bribe to do or
omit to do any act in his official capacity,” he shall forfeit his
office, be disqualified from holding office, forfeit the right to
vote for ten years, and be fined.35 Minnesota’s 1859 statute said:
“No person shall give, deliver, receive or accept, or offer to give,
deliver, receive, or accept, either directly or indirectly, any sum
of money or other valuable thing, or from any person or per-
sons, to procure or aid, or for having procured or aided, the pas-
sage or defeat of any measure or Legislative enactment acted
upon or passed by the Legislature of either House thereof.”36
As institutional capacity grew, the number of reported cases
grew as well, albeit at a snail’s pace. There remained a discon-
nect between an apparent prosecutorial tolerance of bribery and
the virulent denunciation of it when a rare case appeared in
court. In theory, for instance, treating (giving food or drinks for
a vote) was a foundational wrong. The North Carolina Supreme
Court in 1850 held that treating is “among the most corrupting
practices of candidates for office, is the one we are considering
in this case; it is bribery of the most vicious and destructive
tendency.”37 But it seems to have happened all the time, and was
rarely punished.
As the statutes expanded, so did the common-law understand-
ing. Most state courts recognized some kind of common-law
crime of bribery or extortion. Blackstone provided the common-
law definition: extortion was a failure of trust by “taking, by co-
lour of his office, from any man, any money or thing of value,
116 corruption in america

that is not due to him, or more than is due, or before it is due.”38

In 1881 the Maine Supreme Court had to decide whether it was
against the law to bribe someone to vote. There were no prece-
dents or statutes, but the court concluded that vote buying “strikes
at the foundation of republican institutions. Its tendency is to
prevent the expression of the will of the people in the choice of
rulers, and to weaken the public confidence in elections. When
this confidence is once destroyed, the end of popular govern-
ment is not distant.” The practice “shakes the social fabric to its
foundations.”39 Therefore, it was implicitly illegal.
Federal statutory law also expanded. The first general federal
U.S. bribery law was passed in 1853 after concerns about fraud-
ulent claims related to the Mexican War.40 It was directed at
the misuse of federal funds by any person charged with a public
trust, but the terms of the act were broad enough to encom-
pass a broad variety of behaviors. It prescribed punishment
for anyone who promised something of value (or accepted it),
to officers of the United States, including legislative officers,
with the intent to influence “his vote or decision on any ques-
tion, matter, cause, or proceeding which may then be pending,
or may by law, or under the Constitution of the United States,
be brought before him in his official capacity, or in his place of
trust or profit.”41
After the Civil War, the states continued the march toward
capacious statutes. An 1871 Indiana statute, covering judicial,
legislative, and executive offices, forbade anything that would
“influence” the “behavior” of a public official in the discharge of
official duty.42 The 1873 Louisiana statute appeared determined
to cover all possible kinds of behavior that might plausibly be
called bribery. I quote a substantial part of it here, highlighting
 is bribery without a remedy ? 117

the most expansive sections, to illustrate the sprawling nature

of bribery statutes. A person is guilty of bribery if they

Shall directly or indirectly promise, offer or give, or cause

or procure to be promised, offered or given, any money,
goods, rights or valuables, bribe, present or reward, or
any other valuable thing whatever . . . [to any officer] . . .
whether such officer be legislative, executive, judicial or
ministerial, or in the discharge of any official function un-
der or in connection with any department of the govern-
ment of the State of Louisiana, or under the Senate or
House of Representatives of the State of Louisiana, after
the passage of this act, with intent to influence such officer
or Senator or representative in the decision of any ques-
tion, matter, cause or proceeding which may then be
pending, or may by law or under the constitution of the
State of Louisiana be brought before him in his official
capacity, or in his place of trust or profit.43

Under this statute, any gift of any kind to any legislator with
intent to influence official activity is illegal. On its face, it would
cover any campaign contribution designed to influence policy
(let alone the wheelbarrows of cash that were reportedly in
fashion). Law, practice, and culture were disconnected, each
from the other.
Perhaps the best example of the the transformation of brib-
ery law from a judicial realm to the legislative realm is a much-
cited 1868 case interpreting the common law of corruption. The
New Jersey Supreme Court concluded that despite the early
association of bribery with the judicial realm, the weight of the
118 corruption in america

British common-law authority was toward a broader under-

standing. Faced with a choice of defining common-law bribery
narrowly as a payment to a judge, and more broadly as “the tak-
ing or giving of a reward for offices of a public nature,” the court
chose the latter. “Any attempt to influence an officer in his official
conduct, whether in the executive, legislative, or judicial depart-
ment of the government, by the offer of a reward or pecuniary
consideration, is an indictable common law misdemeanor.”
The court relied on the eighteenth-century British jurist Lord
Mansfield’s broad understanding of bribery and on cases that
had found that the common-law understanding of bribery in-
cluded paying people to vote for members of a corporation. Re-
call how the founders reclassified gifts as bribes? The New Jersey
court’s analysis conclusively reclassified bribery as a tool to fight
legislative corruption. Otherwise, “votes of members of council
on all questions coming before them, could be bought and sold
like merchandise in the market.”44
Other states, faced with similar questions of whether bribery
included all kinds of offices and behaviors, took the same ap-
proach, reading a broad background bribery principle for repre-
sentative democracy. Illinois had an 1845 statute that did not
cover aldermen, but in an 1872 case involving charges of an alder-
man being bribed, the court nonetheless concluded that common-
law bribery must cover this offense, working from these general
principles and the threats to public integrity. Temptation—a
watchword for the founding era—grounded the Illinois court’s
reasoning:

The offer is a sore temptation to the weak or the depraved.

It tends to corrupt, and, as the law abhors the least ten-
 is bribery without a remedy ? 119

dency to corruption, it punishes the act which is calcu-

lated to debase, and which may affect prejudicially the
morals of the community. The attempt to bribe is, then, at
common law a misdemeanor; and the person making the
offer is liable to indictment and punishment.45

The case involved the question of attempts; attempts to bribe

were also punishable, for their tendency to corrupt the morals
of the community. But it reflects how the ethos of the common
law of contracts—which I discuss later—blended into the crimi-
nal common law.
Some courts still did not require corrupt intent in extortion
cases.46 Two major commentaries on the criminal law, however,
concluded that corrupt intent was an essential element of con-
viction for bribery or extortion. Bishop’s Commentaries said: “No
act, carefully performed, from motives which the law recognizes
as honest and upright, is punishable as a crime. And it has al-
ways been held that extortion proceeds only from a corrupt
mind.”47 Wharton’s widely read treatise on criminal law claimed
that “both by statute and at common law, it is necessary that the
taking should be willful and corrupt.”48
Few cases examined the scope of what it meant to bribe a
legislator, in part because there were so few convictions. One of
the closest examinations of the scope of bribery and its relation-
ship to corruption may appear in a libel case, in which the de-
fendant brought forth extensive evidence of what it considered
bribery in its libel defense. The Detroit Evening News wrote a
damning article about Michigan state legislator James A. Ran-
dall, arguing that he inappropriately corrupted other mem-
bers of the legislature by providing all kinds of inducements
120 corruption in america

and entertainments, in forcing through a bill that would never

have passed if the public alone were asked. Randall sued for
libel and won, but on appeal the Michigan Supreme Court
remanded the case because there was no direct evidence of
a contractual exchange. The lower court, it held, appropriately
instructed the jury that there was no evidence of bribery be-
cause the evidence consisted largely of Randall holding open
house and providing liquor and food. “To give entertainments
for the purpose of unduly influencing legislation is wholly bad
in morals, but does not constitute the crime of bribery.”49 How-
ever, the jury could still conclude that the “entertainments were
given by plaintiff for the purpose charged, viz. improperly influ-
encing the legislature, the truth of which would be a complete
defense to this portion of the article.” In other words, the court
held, the Evening News was well within its rights to call Randall
corrupt, even if there was no evidence of criminal bribery. Like
the framers of the Constitution, that court saw that corruption
and quid pro quo bribery were different things and played dif-
ferent legal roles.
The libel court avoided the trickiest issues that came to dom-
inate twenty-first-century bribery law: to constitute bribery,
how specifically must one describe an official action or actions
that one intends to influence? Does a gift alone constitute a
bribe, if no official act is ever talked about? What if a gift is
given to influence a whole suite of actions or an agenda, but nei-
ther the gift giver nor the official signals the desired actions or
agenda? There were hints of these future debates. A Hawaii in-
dictment failed, for instance, when a defendant gave a deputy
sheriff $20, but the indictment did not state the acts the $20
were intended to influence.50 On the other hand, a Texas court,
 is bribery without a remedy ? 121

addressing the bribery of a lawyer, noted that it is easy to define

the scope of acts that executives or judicial officers might have
before them but much harder in other cases—and therefore a
Texas indictment need not allege with specificity the kinds of
things a lawyer might do in response to a bribe, so long as it al-
leges that the bribe is intended to influence.51
That Texas court noted the most striking feature of nineteenth-
century bribery law: “Prosecutions for bribery have not been fre-
quent in our courts.” What was true in Texas was true all over the
country, and particularly true with regard to legislative officials.52
In the rare conviction, when Tammany Hall’s Boss William
Tweed was convicted on corruption charges (after an initial hung
jury), the court did not examine whether his activity was “cor-
rupt” or not—there was ample evidence that he had taken a cut of
publicly raised money in his role on the board of supervisors—
but a divided court, in a lengthy opinion, held that the attorney
general had the right to bring the action.53 It had few American
cases to call upon because similar cases were so rare.54
The lack of enforcement in the early years needs to be un-
derstood in terms of the much smaller role criminal law played
in society.55 Criminal anticorruption laws were particularly
hard to prosecute in the political economy of the time. The
wrongdoers—the briber and the bribed—had no incentive to
complain. While a victim of a robbery might complain, the
defrauded public was dispersed, with no identifiable victim
who would drive the charge. Moreover, it likely took great cour-
age to indict local politicians—who might be related to local
prosecutors—using political bribery laws.
In his book Bribes, Judge Noonan details the dozens of cases
of known bribery in which there were no criminal prosecutions,
122 corruption in america

noting that although a handful of council members were

prosecuted, major bribery cases were not subject to major brib-
ery prosecution. He writes:

Legal realists, understanding by “the law” the statutes actu-

ally applied, would have to conclude that no criminal law
against the bribery of these high officers [Presidents, vice
presidents, federal judges, members of the cabinet] was in
force in the early years of the Republic, in the entire nine-
teenth century, or in the first quarter of the twentieth cen-
tury. Over 140 years of American history elapsed before any
one of this rank was criminally convicted as a bribetaker.56

Federal bribery laws mattered for a brief moment, largely be-

cause of the brave efforts of Kentucky native Benjamin Bristow.
Bristow was a Republican reformer dedicated to breaking up
the Klu Klux Klan and a strong supporter of African-American
rights. He had been a Union Civil War general and was the na-
tion’s first solicitor general and the secretary of the Treasury
under Ulysses Grant. In his tenure at the Treasury he discovered
that the tax revenue from liquor was far below what would be
expected. Bristow—without the knowledge of the president—
set up sting operations and exposed a “whiskey ring” scheme
involving hundreds of government agents, distillers, and shop-
keepers who were defrauding the Treasury of millions of dollars.
According to reports, over 110 people were convicted, but Grant
was worried that Bristow was getting too close to his own ad-
ministration and forced him to resign.
The Whiskey Ring prosecutions are important for how un-
usual they were. The country did not lack for bribery scandals,
 is bribery without a remedy ? 123

but when one looks at the most notorious corruption cases of

the hundred years after the nation’s founding—the XYZ affair
in 1797–1798, the 1850 Galphin Affair, charges against Lincoln’s
secretary of war Simon Cameron, Crédit Mobilier in 1872, the
dozens of other Ulysses Grant scandals—no one was convicted
under criminal bribery laws. They resigned, fled the country, or
simply soldiered on, but criminal bribery laws played more of a
symbolic role, naming the behavior that was dubious instead of
leading to prosecutions.
In 1906, political scientist George Henry Haynes published a
popular book called The Election of Senators, carefully detailing
all the arguments for and against direct election of senators, an
issue of intense popular interest. Under the constitutional re-
gime, senators were elected by state legislatures. Reformers ad-
vocating for direct election argued that the system then in place
corrupted both the senators and the state legislatures, because can-
didates for Senate office would pledge money and promise offices
to state legislators to secure support. Haynes reviewed the substan-
tial evidence of bribery and corruption in the election of senators,
including national scandals in seven states between 1890 and 1906
and ten Senate investigations into bribery by senators from
California, Pennsylvania, Ohio, Kansas, Arkansas, and Mon-
tana. None of the investigations led to censure, although twice
the accused senator resigned before action. These ten cases did not
include the countless ones that never even made it to investigation.
The Senate, according to Haynes, “has shown extreme reluctance
to investigate such charges, and has bound itself by precedents
which make not only the unseating of a member, but even the pur-
suit of a thoroughgoing investigation, practically impossible, except
where the evidence of guilt is overwhelming and notorious.”57
124 corruption in america

Haynes did not even consider or discuss whether there were

any criminal investigations of senators. The default expectation
appears to have been that, as in England, corrupt senators
were a matter for the chamber to deal with, not criminal law.
Or, to answer Sir John Eardley-Wilmot’s question at the begin-
ning of the chapter, there was a remedy for bribery—sort of.
There was a remedy for judicial bribery and bribery of police
officers, jurors, and voters. There were remedies for legislative
bribery and the corruption of legislative officials, at least on
the books. But, at least at the higher levels of government, that
remedy rarely led to successful criminal prosecution and more
often consisted of public shaming, failure at the polls, or noth-
ing at all.
 chapter six

j
Railroad Ties

In mid-nineteenth- century America, railroads signi-

fied 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 en-
gines, so to speak, of corruption. Railroad moguls sought state
and federal support for incorporation, approval of track place-
ment, 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’ fa-
vorable treatment of railroads came from conflicts of interest,
not conviction.
During Reconstruction, lawmakers and superlatives came
cheap. Union Pacific Railroad and Crédit Mobilier were discov-
ered in what, according to the Sun newspaper, was “the most
damaging exhibition of official and private villainy ever laid bare
to the eyes of the world.”1 Congress had given the companies
nearly $150 million—over $2 billion in today’s dollars—ostensibly
to pay for railroad services across the country. However, the
126 corruption in america

appropriation was partly a sophisticated Yazoo scam, where the

companies gave lawmakers stock to distribute among their col-
leagues, assuring that they would continue to subsidize the rail-
roads and not investigate fraudulent accounting for expenses.
Massachusetts Republican Oakes Ames was at the center of the
scheme. He was deeply invested in Union Pacific and Crédit
Mobilier, and sold stock to members of Congress, the vice presi-
dent, and the Speaker of the House far below the market rate.
When the bad books were exposed, Ames’s defense was simply
that the conflicts of interest he created had no impact. He hadn’t
needed to bribe anyone in government because they were al-
ready completely supportive. His attitude exemplified a Gilded
Age split between popular and political meanings of corruption,
but it didn’t save him from censure. He was also the epitome of
growing fear that the “gigantic associations which command
great influence” threatened the liberty of the country. Congress
investigated his activities, and in February 1873 Ames was for-
mally reprimanded.2 The offenses, the committee held, “were
not violations of private rights, but were against the very life of a
constitutional government by poisoning the fountain of legisla-
tion.”3 No criminal charges were ever brought.
The Crédit Mobilier scandal is now remembered as a symbol
of corruption in the Gilded Age and for threatening the newly
united country’s faith in itself through a scandal that touched
legislators from every party. But it should also be remembered
as a monument to the weakness of criminal bribery laws, as ex-
plained in the previous chapter.
Instead, some of the most interesting legal discussions came
when judges were faced with three choices, echoes of the three
options facing Justice Marshall in the Yazoo case. Most courts
 railroad ties 127

did nothing, although one overturned a corrupt law, and the

Supreme Court pretended to follow Fletcher v. Peck while actu-
ally creating a surprising new doctrine.

The Longest Case in Tennessee History

Mid-century Tennessee had a bad case of what was sometimes
called “railroad fever.” The state borrowed heavily in order to
finance the building of railroads. The fever came back to haunt
it in the early 1880s when Tennessee struggled with how to deal
with a crushing state railroad debt held by northern bondhold-
ers. The state’s political class disagreed on the best way to settle
the debt. Republicans were generally in favor of paying it off, but
Democrats literally split into two parties, the “low tax” Demo-
cratic Party and the “debt paying” Democratic Party, who ran
against each other in the gubernatorial election of 1881. The divi-
sion handed Alvin Hawkins, a Republican, a victory with 100,000
votes because the Democratic vote was so divided.4 After
Hawkins’s election, a Republican bill was proposed to repay $27
million by issuing bonds at 3 percent. Given the politics of the
Tennessee General Assembly, everyone assumed that the bill
would not pass. The first time it was introduced, indeed it did
fail as expected.
But then, to everyone’s surprise, the debt repayment bill was
reintroduced on April 5, 1881, at 11:30 a.m., and passed. The vote
was big news, reported in the New York Times as “sudden as it
was startling.” A “scene of disorder ensued in both houses.” The
debt-paying people across the state rejoiced, and the low tax
people denounced it. It was a “red letter day in Tennessee’s his-
tory.”5 Why was everyone so surprised? Senator Smith had
128 corruption in america

switched votes. He had been no fence-sitter, but was an avowed

low tax man whose politics were tied to his pledge to the public
to oppose any bonds. He had even told another senator that he
would sooner “have his right arm cut off ” before voting to pay off
the debt. In case a missing arm was not vivid enough, he had
sworn he would “live on potatoes and molasses before he’d do it.”6
According to the low tax opponents, the only possible expla-
nation for the changed vote was that Smith had been bribed.
Several taxpayers sued, asking for the law to be declared invalid.
As they argued, Smith’s vote was suspect because “no new ar-
gument or fact addressed to his reason or light shed on his
conscience, was presented to him which could have changed
his convictions and absolved him from his pledges to his con-
stituents.” Smith changed his mind because he was “influenced
to do so by the use of considerations other than reasons, or argu-
ments to his judgment or conscience.”7
They had evidence to support their claim. Smith had alleg-
edly told a colleague he had been offered $15,000 to vote for the
bill. Senator Barrett from another low tax district had allegedly
asked a colleague about the ins and outs of stocks, long and short
sales, and asked whether it would be wrong to engage in bet-
ting on legislation. Barrett had suspiciously asked “if he could
resign in case an investigation would be made, or if he could
avoid an investigation by resignation.”8 The lawsuit charged that
Barrett bought the stock, voted for the bill, and also received
$10,000. A third senator allegedly was given $5,000, but then he
changed his mind, gave the money back, and voted against the
bill.9 The litigants claimed that a “powerful, active and efficient
lobby” was charged with “persuading” the legislature to change
its position.
 railroad ties 129

The lawsuit led to violence.10 The New York Times reported

that in the state Senate after the trial on the facts, Senator
Smith stood up and called the lead attorney, John Vertrees, a
“liar, and asked for an investigation. . . . Vertrees was within 10
feet of Smith when the latter called him a liar, and immediately
all eyes were turned in that direction, but no disturbance was
made.”11 People were anxious enough about a fight that they
called for “five stalwart policemen” to be present in the Senate
chamber. Smith appeared “somewhat excited.” He sat down to
read a paper—or at least claims he was about to—when Vertrees
walked up to him, “spat in his face, drew a revolver, and as Smith
rose, fired at him.” That was Smith’s account. According to
friends of Vertrees, Smith was drawing a pistol. The first bullet
missed; the second stuck in his shoulder. The shooting was not
fatal—the bullet was removed and Smith recovered. In the wake
of the shooting, Vertrees’s friends followed him around, wanting
to be available if any further dispute erupted. The Louisville
Courier-Journal, which followed the trial closely, said that “affairs
look decidedly warlike.”12
The legal issue that flowed from these wars and cross-allegations
was less violent but equally difficult. Putting aside the question
of whether anyone was bribed, should evidence of bribery in-
validate a law? It was the Yazoo moment for Tennessee. The
railway kickbacks were different than the land scams of Yazoo
in the evidence presented, and in the fact that there were at least
some bribery laws available for willing prosecutors to take on
Smith and Bartlett. But in essence this was a state law replay of
Fletcher, with state judges who did not like the Fletcher precedent
but were bound by it. As in Yazoo, the public stakes were high.
An attorney said in a speech twenty years later to the Tennessee
130 corruption in america

Bar Association: “Perhaps no case has been before our courts in

which the whole people took so lively an interest. The question
had been so long in controversy that the position of every public
man, including the Judges, as to whether the settlement was a
wise one, was well known.”13
Court watchers likely guessed that the law would be upheld.
Three of the judges were “state credit” men, and inclined to sup-
port such a bond; two others were “low tax” judges, and inclined
against it. Justice Robert McFarland said: “No case of greater im-
portance, I suppose, has ever been presented to this court.” They
had to decide two issues. First, whether bribery in the process
made what appeared to be a law, not a law. Second, whether the
law was unconstitutional on its face because the bond measure
would tie the hands of the sovereign state of Tennessee for up to
ninety-nine years.
Judicial opinions in cases about the law of corruption are no-
toriously long, overwrought, and anguished. Judges and justices
disagree about the basics of what corruption means, who should
police it, and whether it is even a constitutionally weighty con-
cept. The longest cases in U.S. Supreme Court history involve
corruption. Buckley v. Valeo—the longest Supreme Court case,
about the right of Congress to fight corruption through limiting
campaign expenditures—was 76,000 words, or a little longer
than The Catcher in the Rye. The second longest—McConnell v.
FEC, about the right of Congress to pass a suite of laws govern-
ing election-related spending—ran to 70,000 words, or a little
longer than The Sun Also Rises. They are long in part because
more justices write separately than in other opinions. And of
course, the recent notorious iteration of corruption and democ-
racy discourse, Citizens United, ran to 48,000 words, “or about
 railroad ties 131

the length of The Great Gatsby.”14 The case deciding these issues
in Tennessee, Lynn v. Polk, was no exception. It became the lon-
gest case ever published by the Tennessee Supreme Court, about
the length of Faulkner’s As I Lay Dying.
All five justices wrote separate opinions. Justice Turney found
the law unconstitutional on the grounds that it fundamentally
violated the legislative sovereignty to bind future iterations of
the government. One legislature should not be allowed to “exceed
the length of its own life in its appropriations of public moneys.”
Instead, each legislature should only be allowed to “provide for
the contingencies of the two years intervening between stated
sessions.” To do otherwise would be to force the state into a po-
sition where, in “prosperity or adversity, in peace or war, in health
or pestilence, in plenty or famine, still nothing can be drawn from
the treasury until the creditor has been paid annually eight-tenths
of a million dollars.” The current legislature was actually taking
sovereignty away from the future, because it in effect put sover-
eignty in the hands of federal jurisdiction, because of the im-
pairments of contracts. The logic, in essence, was that because
of the ban on the impairment of contracts between the state and
private parties (a ban created by the Yazoo case), a contract be-
tween the state and private parties that reached into the future
was unconstitutional. He refused to address the question of
bribery, finding it unnecessary to the case. However, the argu-
ment Turney made was so unusual and novel—and would make
it impossible for states to do almost anything involving promises
to repay—that it is hard to believe that the bribery charges, or
the judge’s own politics, did not influence the case. The opinion
by Justice Freeman is what really makes this case noteworthy. It
is the most thoroughly judicial exploration I have found of the
132 corruption in america

argument that judges should overturn corruptly passed law.

Freeman framed the question in contract law terms—much as
Justice Marshall had, but with a different result. Could a con-
tract procured by bribery be enforced against the people of the
state? In other words, could a corruptly created contract create
a “complete and executed contract; and the taxpayer, on whom
the liability to pay and bear the burden of the contract thus im-
posed, has no remedy, and no possible means of legal redress or
legal help against the threatened wrong to be inflicted on him”?
If such a corrupt contract could be enforced, it would mean the
courts could provide no meaningful remedy to an obvious wrong.
Such a rule would require “our own people” to “bow the lip of
honor in the dust.” The public would have to take the seal of the
state to a law that came from corruption. Law, he argued, could
not be party to that transaction. Citizens had no other meaning-
ful remedy when their representatives had been bribed. Crimi-
nal law convictions after the fact would do nothing, because the
state would still be bound. The rule in Fletcher v. Peck about the
impairment of contracts also would forbid the legislature from
changing the deal. Finally, elections—kicking out the bribed
representatives—would not do much. The result would be the
same. He called it “almost farcical” to “talk of inflicting the pen-
alty of non-election on a member who has ten or fifteen thou-
sand dollars corruptly in his pocket, for his vote. He could well
afford to stay at home on these terms.” The people are left with
the burden of corruption. Comparing it to a forged check, he
said it is not enough to put the forger in jail—the victim should
still be able to get the money back.
Therefore, as he put it, to believe that bribery has no impact
on the enforceability of a law would be to say either that bribery
 railroad ties 133

is a legitimate way to procure passage of a law or that there is a

wrong for which there is no meaningful remedy. Later criminal
prosecutions of bribery would do nothing for the people of the
state who would still be bound to the contract procured through
bribery. Instead, judges should refuse to enforce corrupt legisla-
tive acts.
One of the great problems with this kind of judicial review of
corruption is that identified by Marshall: how can one deter-
mine what “caused” a bill to pass, and what constitutes a cor-
rupt motive behind a law? Is corruption defined by criminal law
statutes, civil law statutes, the Constitution, or a general sense
of corrupt action? If this is the standard, how is a court to judge
between two legislatures, one revoking the other, both claiming
the prior body to be corrupt? Moreover, even if there were a stan-
dard, wouldn’t the argument that a state statute could be over-
turned on corruption grounds lead to endless litigation? Imagine
the discovery process, and the way in which one might have to
structure pleading standards, if it were possible to plead corrup-
tion to undo legislation. Wouldn’t it become endless?
Seventy years later, however, Freeman was living in a differ-
ent era, in which bribery was more practically criminalized. He
directly engaged the question. The problem with motive, which
Justice Freeman acknowledged, is that it is an impossible thing
to ascertain if understood in an internal, psychological sense.
“What is the motive that prompts an act? It may be defined to
be, the last and controlling impulse that impels to the act, or all
the impulses combined that so prompt. If this be correct, then I
say motive is internal, subjective, to use the language of philoso-
phy, a thing we can not ascertain—can only approximate at best,
or infer from conduct.” This, he concluded—agreeing with
134 corruption in america

Marshall—is beyond the capacity of the judiciary. However,

one can nonetheless determine whether an exchange took place,
and whether the exchange satisfied the key elements of bribery.
A bribe, he says, might be taken for all kinds of good and
moral reasons—helping an indigent family, loving one’s wife
and child. It might be taken to pay off a debt that a “brother or
a son” had taken on. It might be taken when one is already sure
of voting in one direction. But regardless of the reason, it is still
a bribe. A bribery indictment would depend upon whether there
was motive to exchange and influence, not whether the motive was
from a corrupt source. In criminal law, “he is guilty of the entire
felony defined by the statute, regardless of all the motives that
stirred his heart, and controlled his act, and prompted what he
did.” The question is not of motive, but of fact.
Freeman portrayed the bribery as a fundamental process fail-
ure. A law that is passed because of bribery is like a law passed
when votes were miscounted. A law born in bribery is not a law
because it was based on an illegal process. Any private contract
based on fraud or bribery is always void: it would be strange,
wrote Justice Freeman, if that principle applied in every case of
public contract but not in this one. That would lead to an excep-
tion to the law of contracts for contracts between the state and
corrupting agents.
Freeman’s approach, though grounded in contract and crimi-
nal law, necessarily involved a vision of the nature of legislative
power, just as Marshall’s did. Representatives, he argued, “are
required, by the very character given them in that instrument
and the very nature of the thing to be done, to act freely and of
choice for the people. They are solemnly sworn ‘to vote without
fear, favor, affection, partiality or prejudice.’ ” If a representative
 railroad ties 135

sells his vote, he “vote[s] under the compulsion of a contract,

corrupt and forbidden, and thus ceases to be the representative
of his people, and becomes the agent and tool of his purchaser.”
Such an action is an essential abandonment of legislative duties
in the Constitution. It creates a shelter for corrupt actions.
The fear that bribery could undermine political society itself
drives the opinion: “All history is full of the lesson, that Repub-
lics fall from this fruitful source of decay, that saps their foun-
dation more surely than by all other means, and I would guard
my own State from its fearful power for ruin.”
But what about the judiciary usurping the legislative role? Jus-
tice Freeman argued that separation of powers (and functions)
cannot mean that the legislature has the right to be bribed. In-
stead, he examined the different roles of the different branches
of government and argued that the core function and power of
the legislative department is to enact laws. Interference with a
coordinate branch would exist if the judiciary were to decree
laws. However, reviewing process is the judiciary’s job. The ex-
amination of corruption and bribery is merely part of the gen-
eral judicial role of deciding upon the “validity of the act when
done, or contracts resulting from it.”
According to Freeman, judicial usurpation was limited by
the fact that the judiciary can act only when cases are brought
before it for its consideration. The legislature might still be able
to meet again, sell their votes again, and that “body would be
perfectly free to engage in as much corruption as it chose,” until
a case was brought. But when a case is brought, it is the job of
judges to declare a law’s legitimacy. If there were a parallel fel-
ony case brought against Smith, with an indictment for bribery,
then it is clear that the judiciary would hear the proof behind
136 corruption in america

the charge. The prohibition of bribery of the members of the

legislature makes no sense without this; therefore, the inquiry
into whether there was bribery in this case is no more interfer-
ing than an inquiry in a criminal case. A felony charge against a
legislator would force the judge to “go close even to the bleeding
heart, to prevent the approach of the eating cancer of corrup-
tion and bribery to our legislative halls,” but it would be the job
of the judiciary to follow that charge, as close as it cut to the
heart of the coordinate branch.
The case, in the end, was not decided by Freeman. Instead,
the swing vote providing the majority came from Justice McFar-
land: McFarland was allied with the state credit politicians, and
people thought he would vote to uphold the law. He also en-
gaged in an anguished, extensive discourse on the relationship
of the courts to corruption. However, he concluded that courts
simply did not have the power to make difficult determinations
of what constituted legislative corruption and what did not. Mc-
Farland worried that if the court could conclude that the legisla-
ture was corrupt, the legislature could make the same charge
about the court. The problem, as he saw it, is that no branch can
be free of corruption, but it cannot be the case that one branch
can be investigated for corruption (the legislative) while the ju-
dicial cannot.15
Instead, each institution must be responsible for its own in-
tegrity within that department, and the only means of checking
integrity are the structural means provided for removal. Mem-
bers of the General Assembly can be impeached or thrown out
through election. But as a matter of constitutional design, no
individual branch should be able to “sit in judgment upon the
conduct of the other.” If courts could set aside laws, they could
 railroad ties 137

set aside executive pardons, “upon the ground that they were
corruptly granted.” That, in turn, might lead to governors refus-
ing to enforce judicial orders because they would deem them
“corruptly rendered.” From such a state of corruption investiga-
tion would result “collision and conflict, confusion and chaos.”
This might be different if there were a clear standard of cor-
ruption, but, as McFarland saw it, there was no such clarity. The
judiciary could just use the civil standard—that corruption was
more likely than not—but it would lead to the judiciary over-
turning all kinds of bills. Moreover, in many instances there
was some inappropriate influence on both sides of a piece of
legislation. In effect, it would undermine the core democratic
conceit—that representatives make policy.
Lynn v. Polk, unlike Fletcher v. Peck, had no significant impact,
except in the short term in Tennessee. Even in its minor features
it was an outlier. It is interesting as an artifact, as it shows a path
not taken in corruption law in the nineteenth century. But a cen-
tury later, the seeds of Freeman’s concurrence reappear in the
writings of the law and economics scholars in a different form: a
suggestion that all governmental acts should be subject to a po-
litical process review and should be treated skeptically, as likely
products of a corrupt process.

The Table for Corruptibles

The final great railroad corruption case of the nineteenth cen-
tury came out of Illinois. The Illinois Central, employer of both
Stephen Douglas and Abraham Lincoln, dominated railroad
politics and was arguably the line that led to Chicago becoming
the railroad capital of the world. Illinois Central split the state
138 corruption in america

down the middle, north to south.16 Its growth was heavily de-
pendent on public aid: in 1850 it received over 2.5 million acres
of land from the state, land that had been given for that purpose
from President Millard Fillmore. By 1856 it was the longest rail-
road in the world. A spur into Chicago grew into a hub, and the
largest building in Chicago became the Illinois Central’s Grand
Central Station.
As the railroad grew, so did its needs—and, apparently, its
greed. As in Tennessee, railroad projects were particularly prone
to corruption of their great promise, the concentrated capital
available to them, their innovation in purchasing political power,
and confusion around land values. In 1869, Illinois Central hired
Alonzo Mack, a former state senator, to represent its efforts to
get the state to sell its highly coveted lakefront land and the sub-
merged acreage around it. Mack was a powerful lobbyist with
connections in every corner of the statehouse, and he had a rep-
utation for using any mode of persuasion available to him. One
newspaper correspondent described Mack holding court at the
popular Leland Hotel, center of political and social activities for
the statehouse. In the hotel, according to the visitor, there was a
table for ladies, a table for strangers, a table for honest men, and
a table for corruptibles. Mack presided over the table for cor-
ruptibles. “When a person leaves the ‘honest men’s’ table and
goes over to that of the ‘corruptibles,’ it is an intimation that he is
ready to listen to proposals,” the correspondent wrote.17
Whether through bribery or persuasion, Alonzo Mack did his
job well for Illinois Central, pushing a bill through the House
that would force Chicago to sell over 1,000 acres of submerged
property for $800,000. An opponent of the bill immediately cried
foul: “Various reports are in circulation concerning supposed cor-
 railroad ties 139

ruption of members of the General Assembly.”18 A committee

was authorized to determine whether any improper influence
had been offered or used, but no committee was ever convened.
The bill passed the Senate the next week, and the governor
vetoed it. While the governor did not directly charge that mem-
bers had been bribed, he gave the reason for his veto as the low
cost of the sale and the questions of “policy and good faith” sur-
rounding it. The land, according to the governor’s sources, was
worth at least $2,600,000, not $800,000. Mack, however, had
foreseen the possibility of the veto and had already collected the
necessary votes in the state legislature to override it.
The bill’s opponents claimed that legislators had been bribed.
They claimed that newspapers had been given $75,000 not to
oppose the project and that votes were sold for $25 to $20,000.
They pointed to the fact that on a particularly tumultuous day
before the Senate vote, Mr. Mack was seen “running frantically”
between offices, playing such an obvious role that the speaker of
the Senate asked the sergeant at arms to enforce the rule that
prohibited former legislators from approaching the “bar of the
Senate.” Mack slunk away from the chamber.
The Chicago papers were full of allegations of swindles,
steals, and corruption. There were broad claims of “vast sums of
money” that had been used to persuade lawmakers, including
alleged payments of legal fees—which might not have been legal
fees—to legislators or those affiliated with them. For instance,
one senator alleged that another changed his lakefront vote be-
cause of a direct payment to his law partner.19 Every scholar
who has studied the case has concluded that at least some pay-
offs helped explain the vote, if not to the degree the opponents
alleged.
140 corruption in america

While the railroad took steps to exercise ownership over

the property—spending over $200,000 developing the outer
harbor in the first four years—questions about the act’s legiti-
macy remained. Four years after the act’s passage, charges of
corruption led to popular demand to overturn it. As one sena-
tor argued, “the act should be wiped off the statute books as a
rebuke to the corruption by which it was passed.” The legisla-
ture had been full of lawyers on the railroad’s retainer, and the
Illinois press was bribed and muzzled. “Inequity presided over
the conception of the scheme, fraud was present at its birth,
and honesty would rejoice at its death. This was worse than
Crédit Mobilier, salary steal, and all the inequities perpetrated
by Congress.” In 1873 Mack was dead, and repeal of the lake-
front bill succeeded with an astounding thirty-one votes to
eleven.20
While the railroad company failed to stop the repeal, they
were confident that the repeal had been illegal, just as it had
been in Fletcher v. Peck: land, contracted away, could not be
taken back again. Illinois Central argued, using this logic, that
the repeal act of 1873 was a nullity. Several years of litigation fol-
lowed. When the case—Illinois Central RR v. Illinois—finally got
to the Supreme Court in 1892, Fletcher v. Peck appeared to give
the railroads the better case.21
However, the Court managed to refuse the railroad relief
while neither overturning Fletcher nor distinguishing it on tech-
nical grounds. Instead, the Court relied upon an old and (then)
rarely invoked doctrine called the public trust doctrine. The
case held that the state, as sovereign, owns certain lands that it
essentially cannot sell. The lands are held in “trust” for the pub-
lic so that they enjoy them “freed from the obstruction or inter-
 railroad ties 141

ference of private parties.” A sale of these lands is prima facie

void. They are the public’s and cannot be sold unless the sale
promotes the public interest or does not impair the public inter-
est in the remaining land.
The deep logic of the case itself is not entirely clear, even in
the way in which it applied the public trust doctrine. Was it fol-
lowing the first option rejected by Marshall in Fletcher and ad-
opted by Freeman in Tennessee: that the grant of land was void
in the first place? Or the second choice: that the repeal of the
land grant was an illegal impairment of contracts? On one hand,
it suggested that the land grant was void: “A grant of all the
lands under the navigable waters of a State has never been ad-
judged to be within the legislative power.” But in a later section
Justice Field wrote that the grant “of the kind is necessarily re-
vocable” and the trust “can be resumed at any time.”
The muddled logic of the decision likely arose from the prob-
lem of adjudicating corruption. The Court mentioned that the
“circumstances attending the passage of the act through the leg-
islature were on the hearing the subject of much criticism.” But
it noted the divergence between the initial stated purpose of
the act and the content of the act. It was initially designed to “en-
able the city of Chicago to enlarge its harbor” but “during the
passage of the Act its purport was changed. Instead of providing
for the cession of the submerged lands to the city, it provided for
a cession of them to the railroad company.” But without public
trust, the Court seemed stuck in the trap laid by Fletcher. You’ll
recall that according to Marshall in that decision, contracts
with the state are like time’s arrow and go only in one direction.
Political bodies cannot reverse those same acts even if they were
corruptly passed.
142 corruption in america

But the Illinois Central Court clearly wanted to reverse those

acts, or at least allow for the state to do so. As one commentator
argued, it ignored the Marshall logic: “Fletcher v. Peck was in ef-
fect overruled in Illinois Central.”22 In this light, the case repre-
sents neither the substantive review suggested by the concur-
rence in Lynn v. Polk nor the agnosticism suggested by Justice
Marshall in Fletcher v. Peck, but rather a broad grant of author-
ity to the legislature to do what it will—at least when water is
concerned. In this view, Illinois Central is an endorsement of the
“mere power” which Marshall derided in Fletcher v. Peck. Legis-
lative sovereignty—the ability to enact the general will—trumps
other concerns. At least in a limited way, Illinois Central appears
as a repudiation of both Fletcher and Lynn v. Polk, and it places
the task of defining and punishing corruption squarely in the
legislative branch.
Illinois Central remained an oddity for nearly a century, until
it was revived as a centerpiece of modern conservation law. In
1970 Joseph Sax wrote an article called “The Public Trust Doc-
trine in Natural Resources Law.”23 He called Illinois Central the
“lodestar” of the doctrine, the embodiment of old Roman and
common law ideas about the nature of public waters. Sax argued
that the doctrine should enable courts to scrutinize particular
kinds of legislative behavior—that around water resources—
more rigorously than others. He only lightly mentioned the
“egregious” nature of the case, touched upon the Illinois state
legislature repenting its earlier actions, but recast it as a natural
resources case instead of a corruption case.24 Sax’s article has
been very influential. While subject to much criticism, he suc-
cesfully used the old language to change the debate about envi-
ronmental obligations of the state—at least as a rhetorical tool,
 railroad ties 143

the public trust is now used as a premise, a theory about public

obligations to care for ecological resources.
Thanks to the railroads—their ambition to seize political
power—we got a marker of impotence in the Credit Mobilier, a
wonderful disquisition on power in Lynn v. Polk, and the Illinois
Central RR v. Illinois decision. Railroad behavior was egregious
enough that courts repeatedly had to consider whether the pub-
lic has something like a quasi-constitutional right to be free
from corruption. They never answered yes, but they also never
answered no. That same question started quietly reemerging in
the late twentieth century in a surprising place: from law and
economics scholars suspicious of politics itself, interested in
using the Constitution’s takings clause as a means of reviewing
self-interested legislative behavior.
 chapter sev en

j
The Forgotten Law of Lobbying

Lobbying poses a central challenge to the liberal po-

litical vision. Information and reason are among the highest val-
ues in the liberal tradition, and lobbying involves the produc-
tion 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)
may be no special comfort. Where it is effective, lobbying means
that the full power of government shifts itself to serve the social
goals of those who can afford lobbyists. Lobbying, at its worst,
enables the extraction of public resources from the public.
Part of the puzzle is in figuring where to place lobbying—as
good civic behavior, or corrupt anti-civic behavior—derives from
the fact that lobbyists have multiple functions. One is informa-
tion sharing, enabling the wisdom of the car dealer to flow into
the office of the member of Congress. But lobbyists are also in-
 the forgotten law of lobbying 145

formation gatherers and spend a great deal of their time assess-

ing opportunities, creating information asymmetries for citi-
zens. Furthermore, they enable nontransactional relationships
that bear all the hallmarks of transactional relationships but
manage to avoid the legal limits that come along with explicit
deals. Good lobbyists figure out what political candidates need
(typically campaign contributions, but sometimes jobs, help on
loans, or direct payments). They then determine what their cli-
ents want: sometimes stopping a law or regulation, sometimes
changing tax laws, sometimes receiving a subsidy. They then fig-
ure out how to enable a series of actions that do not operate like
quid pro quo exchanges but allow for the flow from client to can-
didate, and from politician to client, while taking a fee for en-
abling the flow, and obscuring the transaction-like elements by
submerging them in other, nontransactional elements.
Many modern scholars argue that lobbying is “vital to repre-
sentative democracy” because it helps gives elected officials in-
formation that they need to be able to develop laws, assess im-
pacts, and understand how different groups will react.2 Lobbyists
make government more informed and effective, and they “illu-
minate the practical consequences of proposed government con-
duct by ensuring that the insights and professional expertise of
a particular business or industry become part of the deliberative
process.”3 These scholars argue that lobbyists fill a gap in the in-
formation ecosystem and produce badly needed, valuable, and
underproduced public information. The content that lobbyists
share is “information [that] is likely not only to be underproduced
in the private market, but also to be insufficiently protected by
the political system.”4 At any rate, they argue, it is too difficult
to police the line between acceptable and unacceptable political
146 corruption in america

behavior. The inevitable overreading in line-drawing might im-

plicate and dissuade protected speech.
But lobbying was not always treated this way. One of the
most interesting public debates about lobbying and its role in
political society took place in Atlanta in the middle of July at
the Georgia Constitutional Convention of 1877. The draft con-
stitution made lobbying a crime. Supporters argued that lobby-
ing was taking over their statehouse and corrupting the govern-
ment. Lobbyists had been paid to use personal influence to pass
private legislation, or “private bills”:

The legacy of the public domain . . . was bartered away to

thieves and speculators, who have amassed fortunes in
this way. . . . These bills were carried through by men
who were employed to work in the galleries, at boarding
houses, on the streets, in gambling saloons and other dis-
reputable places—and when one thing failed to secure
favor another was used.5

The representative body had become a set of auctions for

public resources, to be sold to private individuals. “I know my
good old state is groaning under a debt of millions put upon her
by such methods,” the lobbying opponent argued. While good
men might from time to time engage in lobbying, that does not
mean it is good for society, and the question is a societal one,
not just an individual one.
However, the concern went further than private laws. Taxes,
one man argued, are, in their last analysis, “dug from the bowels
of the earth.” The earth itself—all the natural resources—were
owned by the public and being stolen by lobbyists using influ-
 the forgotten law of lobbying 147

ence to take the natural resources of the state to line their own
pockets. Lobbyists cost the state money. Of the $11 million in
debt, one proponent estimated that a million was currently in the
pockets of lobbyists, who had charged money in order to serve
private interests.

What is our experience? . . . what are the facts? . . . Go to

the treasury department, and see for yourselves! . . . Lob-
bying through the legislature acts injurious to Georgia. . . .
It is a matter of disgrace and humiliation to us that Geor-
gians profess to be lobbyists—hang round the halls of
legislation—and those who have the money can control
even the legislature of Georgia. The people of Georgia
have sent us here to put a stop to it and to guard and pro-
tect the treasury.6

Opponents of the lobbying provision pointed out that all

kinds of worthwhile laws were championed by good men who
were paid for their services. Lobbyists were necessary interme-
diaries because most people with an interest or idea were “in-
competent” to legislate or advocate for legislation. Members of
the public needed to have a right to “send parties here as their
agents, or lobbyists, or whatever you may call them, for the pur-
poses of advancing the interests of their community.” Without
such a procedure, people would be unable to communicate their
desires.
Moreover, a lobbying ban was a philosophical impossibility.
As the opponent argued, a lot of our good ideas come from
people who are interested in the outcome of legislation. Since one
could not outlaw self-interest, outlawing lobbying seemed to
148 corruption in america

merely cut out a particular class of self-interest. Finally, many

good men were what one might call “lobbyists.” What was worse,
criminalizing lobbying would cast a pall of suspicion over citi-
zens who wanted to push for legislation or even come to the halls
of the Georgia legislature to watch the procedure.
The opposition failed. Georgia’s 1877 constitution included
this provision: “Lobbying is declared to be a crime, and the
General Assembly shall enforce this provision by suitable pen-
alties.”7 The next year Georgia passed legislation that defined
lobbying. It included any personal solicitation that was “not ad-
dressed solely to the judgment of the legitimacy of the bill,” or
in which there was misrepresentation of the interest of the party
pushing the action, or in which someone was employed by a
party with an interest in the outcome of the legislation. It did not
include those services that were “of a character” to “reach the rea-
son of legislators,” such as drafting legislation, drafting bills, tak-
ing testimony, collecting facts, preparing arguments, and sub-
mitting them orally or in writing. Lobbying was punishable by a
prison term of up to five years.8
The majority of the Georgia convention represented the main-
stream view of a different time in American history. Throughout
the country, from the early 1830s through the early 1930s the sale
of personal influence was treated as a civic wrong in the eyes of
the law. A citizen did not have a personal right to pay someone
else to press his or her legislative agenda. Nor did anyone have a
right to be paid to use personal influence for legislation. Paid
lobbying was looked down upon, criminalized in some cases,
and treated as against public policy.
I use the criminal law in Georgia as an example of the ethos,
but criminal law played a minor role. Instead, lobbying was po-
 the forgotten law of lobbying 149

liced almost entirely by civil law. Virtually all of the cases deal-
ing with lobbying were contract cases, with courts deciding
whether or not to enforce contracts for “lobbying” services. Typ-
ically, there was no investigation into whether the underlying ac-
tivity was illegal (as a criminal law matter) or not: in many states
it was not. Courts would simply declare lobbying contracts in-
valid. As Supreme Court justice Field wrote, “all agreements for
pecuniary considerations to control the . . . ordinary course of
legislation are void as against public policy.”9 A popular contracts
hornbook with repeated publications in the late nineteenth and
early twentieth century said:

What are known as “lobbying contracts” . . . fall within

this class of illegal agreements. Any agreement to render
services in procuring legislative action, either by congress
or by a state legislature or by a municipal council, by per-
sonal solicitation of the legislators or other objectionable
means, is contrary to the plainest principles of public pol-
icy, and is void.10

The contract law of lobbying represented something like com-

mon law of contract law and political morality, enforced by all
courts.

Unscrupulous Agents
The word lobbyist was first used in the beginning of the nine-
teenth century as paid influencers started to hang around the
lobbies of legislative buildings and hotels, using indirect and di-
rect means to serve their clients. Lobbyists included “peddlers
150 corruption in america

of personal influence, propagandists, or amateurs promoting

causes in which they sincerely believe.”11 Many early influence
sellers were lawyers. Some were reporters. They would make
money through selling a blend of services related to legislative
actions: drafting bills, preparing research, and personally at-
tempting to influence lawmakers. Sometimes lobbyists would
bribe lawmakers; other times they would identify and enable
legislative trades. The big lobbyists were associated with bond-
holders and railroads: the railroads were interested in land
grants and the bondholders were interested in states and cities
issuing bonds to cover enormous postwar debt.
The first case in which a court refused to enforce lobby con-
tracts using the language of “lobbying” was likely Harris v. Roof in
1851.12 The question as the court put it was the right of a “lobby-
agent” to enforce a contract. An old man hired Matchin (a young
man who later married the man’s granddaughter) to go to Albany
and get compensation from the government for an interest in
land he said that he had gotten over fifty years earlier. Matchin
agreed to try to get the claims in return for an agreed-upon
amount. The two had a falling out, and the young man asked to
be paid for the work he had done. The older man refused. This
led to court, and a heated exchange about the value of what had
been done. Matchin presented evidence that he had talked to a
committee, met and spoken with members, and spent money
on traveling to and from Albany. There were several witnesses
who testified to the value of his work and his presence at the
statehouse. The older man called witnesses to show that he had
not really gone to Albany and had been fairly ineffective.
The court, hearing this evidence, decided not to settle the
matter on the question presented—whether Matchin had done
 the forgotten law of lobbying 151

his job and fulfilled his contract—because the kind of contract

itself was outside of public policy. According to the decision, all
citizens have a right to petition the legislature and present doc-
uments accompanying that petition. Putting those documents
together and planning may cost something, and all citizens have
the right to pay for those preparations. However, “all petitions go
to a committee through the house.”
According to the court, every member of every legislative body
has a duty to give the “proper and necessary attention to the
business before it” and “always have truth and justice before their
eyes.” It would interfere with this vision of representative du-
ties to hold that “the employment of individuals to visit and
importune the members, is necessary to obtain justice. Such
practices would have a tendency to prevent free, honorable and
correct deliberation and action of this most important branch
of sovereignty.”
With little American precedent, the court recognized it had
to improvise. “Very few cases similar to this, or bearing any anal-
ogy thereto, are to be found in our law books; and it is to be
hoped ever will be, for the best of reasons.” The court drew upon
the general rule against champerty for its logic, as well as its sense
of political theory. Champerty means that a party to a lawsuit
agrees to pay a lawyer a percentage of whatever is won in a law-
suit. In common law this was generally illegal.13
Around the same time, the federal government passed its own
lobbying law. In 1852 Congress prohibited anyone who worked
for a newspaper “who shall be employed as an agent to prosecute
any claim pending before Congress” from being on the House
floor. Several newspapers were funded in order to support or
oppose parties that wealthy individuals found favorable or
152 corruption in america

distasteful. A few years later, a committee was charged with ex-

amining whether money was offered to members to make them
vote for or against bills.14
That same vision grounded the Supreme Court decision in
Marshall v. Baltimore & Ohio Railroad Company a few years
later.15 Faced with evidence that the plaintiff, Marshall, had
been promised a contingent fee if he could secretly secure the
votes needed to pass legislation, the Court held that the contract
was void as against public policy. It explained itself this way:

Legislators should act from high considerations of public

duty. Public policy and sound morality do therefore im-
peratively require that courts should put the stamp of
their disapprobation on every act, and pronounce void
every contract the ultimate or probable tendency of which
would be to sully the purity or mislead the judgments of
those to whom the high trust of legislation is confided.

On the one hand, the Court held, there is an “undoubted

right” of all persons to make their claims and arguments per-
sonally, or through a lawyer, in front of legislative committees.
But any agents they hired would need to disclose their true
incentives. The secrecy surrounding the contract necessarily in-
validated it. Moreover, the lure of high profit combined with
secrecy otherwise creates a “direct fraud on the public.” Legisla-
tures had an obligation to the whole, and a court should not
subsidize, through the enforcement of contracts, the opportu-
nity for interested and “unscrupulous agents” to influence pol-
icy. Furthermore, the practice corrupts the agents themselves.
 the forgotten law of lobbying 153

The lure of profit undermines the citizen who in turn under-

mines the country:

He is soon brought to believe that any means which will

produce so beneficial a result to himself are “proper means”;
and that a share of these profits may have the same effect
of quickening the perceptions and warming the zeal of in-
fluential or “careless” members in favor of his bill. The use
of such means and such agents will have the effect to sub-
ject the State governments to the combined capital of
wealthy corporations, and produce universal corruption,
commencing with the representative and ending with the
elector. Speculators in legislation, public and private, a
compact corps of venal solicitors, vending their secret in-
fluences, will infest the capital of the Union and of every
State, till corruption shall become the normal condition
of the body politic, and it will be said of us as of Rome—
“omne Romae venale.”

Marshall involved a mishmash of reasons for invalidating the

contract—the contingency fee and the commitment in the con-
tracting documents to secrecy among them—and this blend of
reasons made it unclear whether contracts for influence would be
disfavored generally or only when these other features existed.
The 1855 New York case of Rose v. Truax,16 which became
one of the most cited authorities for the principle that lobbying
contracts should not be enforced, also involved secrecy and a
contingency fee. In that case the parties agreed that the lobbyist
would “use his influence, efforts and labor in procuring the
154 corruption in america

passage of a law by the said legislature, having for its object re-
lief to the undersigned.” In exchange, he was promised 10 per-
cent of the amount of money received. The key holding of Rose,
which made it particularly powerful, regarded the legal ele-
ments of the contract. The court held that it was impossible to
sift apart the contract and separate the legal from the illegal ele-
ments. While there was evidence that some of what the lawyer
did in this case was pure professional preparation, work which
could have otherwise been lawfully compensated, the agree-
ment to use influence to pass a law rendered the other parts of
the agreement entirely void.
The scope and meaning of these cases was clarified in Trist v.
Child,17 which made clear that paid personal influence was
against public policy even when a lawyer performed the ser-
vices, when the person purchasing the services might other-
wise be without ability to influence, and even when it was not
done secretly.

The Old Man and the Court

In 1866 an old man, too weak to travel to Washington himself,
began a journey that would lead to the Supreme Court’s most
explicit pronouncement on the role of lobbying in political soci-
ety. Mr. N. P. Trist hired a lawyer to go to Congress and de-
mand payment for an eighteen-year-old debt. He claimed—
apparently with good reason—that the United States owed
him money for helping to negotiate the Treaty of Guadalupe
Hidalgo in 1848. He hired Linus Child, a Boston lawyer, to rep-
resent him. Trist agreed to pay Child 25 percent of whatever he
secured. In 1871, after Child and his son and partner, L. M.
 the forgotten law of lobbying 155

Child, made visits to Congress and wrote letters and made ar-
guments proving the claim, Congress appropriated the sum of
$14,559 to Trist. After the lawyer successfully persuaded Con-
gress of the value of his claim, the old man’s son refused to pay
the lawyer. Child sued him for the money owed. Trist’s defense
was based on the logic of Marshall—the lobbying contract was
void as against public policy. The courts, he argued, had no busi-
ness in enforcing something so corrupt.
The case was—and remains—so interesting because at stake
was lobbying itself, not just underhanded lobbying. Unlike in
Marshall or Rose, there was no allegation of secrecy. Instead, it
seemed like a straightforward, aboveboard claim where a lawyer
was hired to do something that an old man could not do. If the
court was going to invalidate this contract, all contracts to lobby
were clearly at risk.
One could hardly imagine a more sympathetic context for
enforcing a lobby contract; this was the constitutional test of
the logic of Harris. Child had been “open, fair, and honorable.”
There was no evidence of anything suspicious: there was no evi-
dence of secret collusion, or payments or promises to members
of Congress. The age and inability to travel of the client made it
seem he could not prosecute his claim without terrible hard-
ship. If there was any right to petition the government, ought it
not extend to the aged, who might need to hire someone on their
behalf? Child argued that Trist had a right to personally petition
Congress, and that this right must mean the right to hire an
agent to petition on his behalf.
The Court sided with Trist. It concluded that the sale of in-
fluence itself, whether or not accompanied by payments or sus-
picious behavior, was a civic wrong. The Court addressed the
156 corruption in america

contingent nature of the claim—the “pecuniary interest of the

agent at stake” made it “contrary to the plainest principles of
public policy.” The contingency made it more likely to “inflame”
the avarice, making it a worse problem, but the core problem
was the practice of paying someone else to make one’s argu-
ments to people in authority, which threatened to undermine
the moral fabric of civic society. The practice would have the ten-
dency to corrode public ethics indirectly and to enable exchanges.
The members of Congress, who might be offered something (di-
rectly or indirectly) in exchange for political action, might be
more likely to forget their obligations.
The Court was concerned about corrupting citizens as well.
Citizens’ virtue is the “foundation of a republic,” the Court ex-
plained. Citizens have an important public office to fill, as “they
are at once sovereigns and subjects.” While public servants are
obliged to be “animated in the discharge of their duties solely by
considerations of right, justice, and the public good,” citizens
have a “correlative duty” to “exhibit truth, frankness, and integ-
rity” in their conversations “with those in authority.” According
to the Court, “Any departure from the line of rectitude in such
cases, is not only bad in morals, but involves a public wrong.”
The citizens in this case are both Child and Trist. The lobby-
ist’s own integrity was threatened by the practice, because he
was paid to represent political views he did not hold. This is un-
like a lawyer-client relationship, because in general in a lawyer-
client relationship, the lawyer has no separate, independent
civic relationship to the private matter. In a lobbyist-client rela-
tionship, the lobbyist, by virtue of being a citizen, has a distinct
relationship to what he himself might believe. He is selling his
own citizenship, or one of the obligations of his own citizen-
 the forgotten law of lobbying 157

ship, for a fee. In this sense, agreeing to work for pay on political
issues is more akin to selling the personal right to vote than sell-
ing legal skills. Lobbyists have a separate and distinct obligation
to pursue public ends, and while they may be allowed to express
self-interest in the vote, they have, as citizens, an obligation to
honor and love the equality of the political system.
As in Marshall, the Court treated lobbying in terms of its
general effects—what the Court in Marshall called the poten-
tial for a “compact corps of venal solicitors”—not just its indi-
vidual ones. A general acceptance of lobbying would lead to a
corrupt culture. Lobbying paid by individuals could not be al-
lowed because it would lead to lobbying paid by corporations:

If any of the great corporations of the country were to hire

adventurers who make market of themselves in this way,
to procure the passage of a general law with a view to the
promotion of their private interests, the moral sense of
every right-minded man would instinctively denounce the
employer and employed as steeped in corruption, and the
employment as infamous.

Why would the “right-minded man” denounce the practice?

Is it because of a quasi-religious sense that this kind of market is
morally wrong, or because of something else? The Court em-
phasized public morality, arguing that “if the instances [of lob-
bying] were numerous, open, and tolerated, they would be re-
garded as measuring the decay of the public morals and the
degeneracy of the times.” Since we do not live in the minds of
the time, we can only guess what was imagined—that people
would start to see government as a place from which resources
158 corruption in america

could be extracted, instead of a source of aggregated interests

and beliefs. Lobbying would lead to strategic use of public re-
sources and plunder.
Child unsuccessfully argued that the case should simply be
understood as a classic lawyer-client relationship. Civic virtue
might be threatened if lobbyists could be hired on bills related
to general matters, he argued, but not when it is simply an old
man getting what he is due. However, the Court concluded that
there was no clear way to regularly distinguish between secret,
inappropriate lobbying and appropriate paid lobbying. Further-
more, because small private bills are not known by the public,
and the discussions around the bills are often “whispered,” ad-
vocacy for private bills creates huge opportunities for advocates
to induce legislators to support these bills for the wrong reasons
and, again, for bribery. Instead of engaging in objective fact-
finding, “those whose duty it is to investigate” hear unsupported
facts by self-interested parties; without a check on the facts com-
municated by the self-interested parties, legislators might simply
rubber-stamp the bill.

Personal or Professional
Trist was cited for many years for its principles. A few years
later, in an 1880 case to enforce a contract for influencing the
Turkish government’s purchase of arms, the Supreme Court re-
iterated the broad principle, even though the Turkish govern-
ment, not the American government, was at stake.18 The defen-
dant in that case sold over $1 million in arms to the Turkish
government in 1870 and 1871. The choice of arms was directly in-
fluenced by the plaintiff, a consul for the Turkish government,
 the forgotten law of lobbying 159

who then sought a commission, as previously agreed. The con-

sul first “use[d] his influence . . . to condemn the Spencer gun,”
and then “brought out a Winchester gun, a sample of which he
always kept in his office for the very purpose, whenever oppor-
tunity offered, of presenting its claims. It appears, however, that
the Bey did not, from the first, like that gun.” Therefore, “ ‘Oscan-
yan had to use all his ingenuity and skill and perseverance and
patience’ ” to get the Bey to agree to purchase Winchesters. Such
a contract, the Court held, was not valid.

Personal influence to be exercised over an officer of gov-

ernment in the procurement of contracts, as justly ob-
served by counsel, is not a vendible article in our system of
laws and morals, and the courts of the United States will
not lend their aid to the vendor to collect the price of the
article. . . . This is true when the vendor holds no official
relations with the government, though the turpitude of
the transaction becomes more glaring when he is also its
officer.

The Oscanyan Court distinguished between private vendors

and professional services, as the Trist Court had. The principle
does not answer the question, though: the Oscanyan Court had
to grapple with how to distinguish personal influence from the
routine activities of salespeople. In selling goods, contingent
fees—fees based in some way on success—were routine, and
those cases were cited for evidence that the court should enforce
the contract. Therefore contingency could not be the evil. In-
stead, the civic wrong was based on the sale of private influence
in public procurement decisions.
160 corruption in america

Where, instead of placing before the officers of the gov-

ernment the information which should properly guide
their judgments, personal influence is the means used to
secure the sales, and is allowed to prevail, the public good
is lost sight of, unnecessary expenditures are incurred,
and, generally, defective supplies are obtained, producing
inefficiency in the public service.

The sale of the personal ability to influence was perceived to lead

to poor choices by public officers, as they are influenced to make
choices for reasons that are pressed by those who have profit,
not the public good, behind them.
This political morality required drawing a line between pro-
fessional services and personal influence. As the Supreme Court
said in a frequently cited passage, “personal influence . . . is not a
vendible article in our system of laws and morals, and the courts
of the United States will not lend their aid to the vendor to col-
lect the price of the article” (emphasis added). The language
sometimes drew on property law, where a sellable item was called
a “vendible.”19 The question of what was and was not vendible was
a matter of public policy, determined by the courts in common
law. “Personal influence” was a good that individuals could use
on their own but could not sell. It was more akin to the right to
have children or to vote or to defend oneself—a powerful per-
sonal right but not one that can be sold. Like the modern right
to vote, the right to contribute to campaigns, the right to inti-
mate relations, the right to serve on a jury, or the right to have a
child, the right to speak one’s mind to Congress could not be
personally limited, but it was not protected past the personal
 the forgotten law of lobbying 161

right. The key difference between lobbying and not lobbying

was the sale of influence. Lobbying, as described in these cases,
is “the sale of an individual’s personal influence to procure the
passage of a private law by the legislature.”20
The key to the doctrine was the ability to distinguish between
illegitimate sale of private influence and legitimate, lawyer-like
behavior. Courts would generally invalidate any contracts where
people were paid in order to use their personal influence to shape
official action. Contracts for personal influence were “not merely
voidable, or capable of rescission, but are mala in se, absolutely
void, and without effect.”21 Personal ser vices involved per-
sonal visits; nonpersonal services involved presenting to com-
mittees or in public forums. For instance, a contract to help pass
legislation was upheld because the plaintiff “was not a lobbyist,
and he had no acquaintance or influence with any member of
the legislature. . . . It [did] not appear that . . . he asked or solic-
ited any member of the legislature to vote for the bills.”22 The
popular hornbook that I mentioned above, which stated that
lobbying services were generally illegal, added that:

The rule, however, does not apply to an agreement, for

purely professional services, such as the drafting of a peti-
tion to set forth a claim for presentment to the legislature,
attending the taking of testimony, collecting facts, prepar-
ing arguments, and submitting them orally or in writing
to a committee or other proper authority, and other ser-
vices of like character. They rest on the same principle of
ethics as professional services rendered in a court of jus-
tice, and are no more objectionable.23
162 corruption in america

Many of the more interesting cases involved this line drawing.

In California, when an attorney “prepared the bill, which after-
ward became a law, and made arguments in support of it, and
caused it to be introduced in both departments of the legisla-
ture, appeared and argued the measure before at least one com-
mittee of that body, and also before the governor when the bill
reached his hands,” the contract was valid. There was no evi-
dence that the attorney used any dishonest, secret, or unfair
means.24
A critical factor in California, and elsewhere, was where the
arguments were made, and whether or not they were public. If
the arguments were made in a committee setting, the services
were likely legal. If the lobbyist was drafting or helping create
materials for private or secret meetings, it was more like per-
sonal influence lobbying, and therefore illegal, whereas public
arguments were presumptively legitimate. An individual had an
absolute right to privately meet with a representative but might
not pay someone else to do the same. Private persuasion brought
a risk of bribery and undermined the system; public persuasion
was more akin to arguments in court. In Oregon, for example,
lobbying was defined as meeting with individual legislators,
using personal influence to “privately importune” them. Presen-
tations to the entire legislature, committees, or any group were
permissible.25 In Nebraska, the line was also between public ar-
gument and private solicitation. Writing a petition or making a
public argument before the legislature or a committee thereof
was permissible, but using personal influence was prohibited.
“It is certainly important . . . that the legislature be perfectly
free from any extraneous influence which may either corrupt or
deceive the members of any of them.”26
 the forgotten law of lobbying 163

In Wisconsin, by 1896 lobbying was defined as a corrupt

action involving personal influence or solicitation around legis-
lation.27 The “preparation of petitions, taking of testimony, col-
lecting of facts, preparing of arguments, and submitting them,
orally or in writing, to committees or other proper authority,
and services of like character, which are intended to reach only
the reason of those to be influenced, are legitimate.” In Vermont,
while it was illegal to sell personal influence, a person could hire
someone else to “conduct an application to the legislature” and
pay for services related to putting together documents, state-
ments, evidence, or arguments related to that application. How-
ever, all of the relevant work had to be related to petitions that
would go to the legislature itself or a committee of the legisla-
ture, not a committee member or individual politician.28 Relat-
edly, a representative could not hide his interest in a pending
bill’s success.29
Contracts for influence involving lawyers were difficult be-
cause of the blend of services that were offered and provided.
The services to draft a bill, for example, might lead to an attempt
to personally influence legislators to support a bill. In Wiscon-
sin, two railroad companies agreed not to compete for the same
government land grant, and one of the companies offered to
help the other procure the grant in exchange for a portion of the
land if it were granted. According to the court, a lawyer could
contract for compensation for services like drafting bills or pre-
senting evidence and arguing before the legislature or its com-
mittees. But a nonlawyer was “incapable of rendering such ser-
vices.” “What efforts could they make, what aid or assistance
could they give, what services could they render, except such as
are justly characterized as lobbying?”30
164 corruption in america

The Plains States, where the populist political movements

were the strongest, were the least forgiving of any hint of per-
sonal influence. In one case, a landowner agreed to pay a lobby-
ist to procure legislation allowing parties who had settled on
land to buy it for a low price. The court held that contracts to
procure legislation can be enforced when only fair and honor-
able means are used, and especially when the legislation results
in a public benefit. However, this contract was void because “the
unavoidable inference [was] that he solicited the personal aid of
members of congress in doing all that was necessary or could
be done to secure the passage of the law.”31
Contract making was treated as a privilege that should not
be extended to lobbying because lobbying would undermine
the rule of law that it was using to enforce. For example, when
the Vermont Supreme Court wrote about lobby contracts, it
wrote that “the law will not concede to any man however honest
he may be, the privilege of making a contract which it would not
recognize when made by designing and corrupt men.”32
The evil of lobbying came not from the corrupt intent in any
particular case but rather from the fact that the “contract tends
directly to those results.”33 The fact that one can pay another to get
legislative results “furnishes a temptation to the plaintiff, to resort
to corrupt means or improper devices, to influence legislative ac-
tion.” This, in turn, leads to a broad array of influences with a ten-
dency to “subject the legislature to influences destructive of its
character” and can be “fatal to public confidence in its action.”34
Lobbying threatened to lead people to put private interests
before public ones. As the early Kentucky case said in refusing
to enforce a contract to get a remission, someone paid to per-
suade will be
 the forgotten law of lobbying 165

induced to use his influence for the money he is to obtain;

when, as a patriot and a citizen, he should only act for the
good of his country, and under an impartial sense of jus-
tice, tempered with mercy. We can readily imagine the
dangers likely to result from the corrupt artifices of mer-
cenary managers in procuring pardons and remissions.35

If a commitment to civic virtue is the foundation of the re-

public, as Montesquieu and the drafters of the Constitution be-
lieved, lobbying encourages at least one class of citizens to imag-
ine themselves outside of government, bringing neither their
own interests nor the public interest to the attention of govern-
ment. Interests that are private are recast in public terms or in
private terms that may not be accurate. Those citizens who sell
their service are violating their own individual civic promise to
the state by giving up their own responsibility to think of the
public good and to use the public privileges they have been given
for the public good. A private citizen often plays a public role in
political society, as when she casts a vote. She has an obligation
in the moment of casting the vote to use it in a way consistent
with her own beliefs either about public good, or about her own
private good, or about familial or group interest. But if she sells
that vote, she violates her own obligations to the public in the
moment of sale. Lobbying legitimates a kind of routine sophistry
and a casual approach toward public argument. It leads people
to mistrust the sincerity of public arguments and weakens their
own sense of obligation to the public good. In these lobbying
cases courts filled what they saw as an essential gap: protecting
political society from the threat of oligarchic pressures, but also
from the threat of a cynical political culture.
166 corruption in america

On a more pedestrian level, lobbying was seen as the gateway

to bribery. Bribery does not now and never has had neat lines
dividing it from acceptable activity. Bribery at common law was
“the offering of any undue reward or remuneration to any public
officer or other person intrusted with a public duty, with a view
to influence his behavior in the discharge of his duty.”36 In the
mid-nineteenth century, many states passed bribery statutes
with broad language covering any kind of effort to influence by
using things of value, but they were rarely enforced.
The language of lobbying was not always neatly separated
from the language of bribery: high contingent fees, for example,
were referred to as “bribes.”37 As a matter of association and
categorization, lobbying enabled bribery or, in some cases, was
bribery. This lumping allows for passages like the following one,
which skips between ideas that play distinct roles in modern le-
gal grammar—influence, lobbying, and bribery—as if they are
presumptively connected: “A contract for lobby services, for per-
sonal influence, for mere importunities to members of the legis-
lature, or other official body, for bribery or corruption, or for
seducing or influencing them by any other arguments, persua-
sions, or inducements than such as directly and legitimately
bear upon the merits of the pending application, is illegal and
against public policy and void.”38
The California constitution defined lobbying as follows: “Any
person who seeks to influence the vote of a member of the Leg-
islature by bribery, promise of reward, intimidation, or any other
dishonest means, shall be guilty of lobbying, which is hereby
declared a felony.”39
Even where lobbying was not defined in a way that we might
currently define as bribery, paid personal influence was seen as
 the forgotten law of lobbying 167

the first step toward bribery. The “law forbids the inchoate step”
in bribery.40 Lobbying leads to bribery through temptation—
private meetings with money and no one watching make it hard
for enough individuals to resist, even if the majority succeed. “If
the tempted agent be corrupt himself, and disposed to corrupt
others, the transition requires but a single step.”41 Legal lobby-
ing allows citizens to tell other citizens that they can take money
and turn it into political power, and once that traffic is legal, they
will figure out ways to skirt the law but in fact engage in offering
value in exchange for influence.
Because lobbying leads to bribery, the job of the courts was to
protect against the temptation. Courts routinely held that it
was not necessary to find that the parties agreed to some “cor-
rupt” or “secret” action. Instead, the question was whether the
“contract tends directly to those results.”42 A contract was prob-
lematic when it “furnishes a temptation to the plaintiff, to re-
sort to corrupt means or improper devices, to influence legisla-
tive action.” Such a temptation leads to bribery, which in turn
leads to destroying the institution and undermining public con-
fidence.43 Much as a later Supreme Court in Buckley v. Valeo44 (a
case I explore in Chapter 13) would describe “appearance of cor-
ruption” as being just as important as corruption itself, the courts
in these contract cases were concerned that the public would
lose trust in institutions with the growth of lobbying.
The role of temptation in lobbying contracts was treated
much like the role of temptation in conflict of interest cases, ex-
cept that with lobbying, the conflict posed was between the role
of citizen or legislator and the role of lobbyist or lobbied. In Mc-
Ghee v. Lindsay, an Alabama case, the court refused to enforce
a public contract in which a state-employed supervisor had an
168 corruption in america

interest. The court talked about how no man can serve two
masters with conflicting interests.45 Doing so creates “a tempta-
tion, perhaps . . . too strong for resistance by men of flexible
morals, or hackneied in the common devices of worldly busi-
ness, . . . which would betray them into gross misconduct, and
even crime.” The court focused on creating structures where
temptations do not exist for men with “flexible morals” or those
who are steeped in the usual run of business behavior. In fact,
even though there was no evidence of bribery or an incorrect
price, the court adopted the policy of not enforcing these con-
tracts as a “preventive check against such temptations and se-
ductions.” The Vermont Supreme Court, for instance, held that
“the sale by an individual of his personal influence and solicita-
tions, to procure the passage of a public or private law by the
legislature, is void as being prejudicial to sound legislation, man-
ifestly injurious to the interests of the state, and in express and
unquestionable contravention of public policy.”46 It is totally ir-
relevant to look at whether the sale was effective or not, and
whether or not anything improper was done. “The principle of
these decisions has no respect to the equities between the par-
ties, but is controlled solely by the tendency of the contract.”47
A person cannot “with propriety be employed to exert his per-
sonal influence, whether it be great or little, with individual
members, or to labor privately in any form with them, out of the
legislative halls, in favor of or against any act or subject of legis-
lation.”48 The court should discourage those practices “if it cor-
rupts or tends to corrupt some, or if it deceives or tends to de-
ceive or mislead some.”49
Many of these cases involved contingency fees. Courts would
routinely declare that contracts for contingent fees to obtain
 the forgotten law of lobbying 169

legislation were void.50 The prominent role of contingencies in

these cases has led some commentators to see the lobbying cases
as a reflection of an attitude toward champerty and contingen-
cies, not toward lobbying. However, Trist explicitly held that
contingencies were not the source of corruption. On the other
hand, in a contract in which “it does not appear that they were
employed by reason of any personal or political influence,” the
fact that it was contingent did not render it void.51 The language
of the decisions emphasized personal influence, not contingen-
cies. Some did not treat contingent fees as a factor at all.52
Some would simply void a contract if it sounded at all like
lobbying. Lobbying ser vices for one Nebraska court were “cor-
rupt in its nature and against public policy.” It was not clear
what the ser vice was, exactly, though there was some testi-
mony that it was “to pay somebody to keep still and do as we
wanted them to.” The court held: “Every consideration of pub-
lic policy demands that money paid out by a public contractor
to induce men to keep still, to make them do as he wants them
to, to lobby to secure him contracts, or to secure the allowance
of estimates, should be considered as a corrupt and unlawful
expenditure.”53

Lobbying Becomes Legitimate

One might think—reasonably—that a major Supreme Court
decision might be required to overturn this massive body of law.
But the lobbying cases were never directly overturned; they were
gradually shunted aside. When the Supreme Court in Citizens
United mentioned in passing that “Congress has no power to ban
lobbying itself,” it could cite no direct reference.
170 corruption in america

The old law of lobbying changed in three steps. First, state

courts started recoding lobby contracts as contracts for profes-
sional instead of personal influence as a general matter. Instead
of default suspicion, they defaulted toward assuming lobbying
contracts were legitimate. Second, judges changed their atti-
tudes toward contracts. While nineteenth-century judges saw
themselves as providing public subsidies that ought not be used
for activities that were against public policy, twentieth-century
courts saw themselves as neutral arbiters, agnostic as to the
content of contracts, responsible only for a technical, not moral,
review. The third step involved a changing view of the First
Amendment, as the Supreme Court gained prominence in the
political vision of the mid-twentieth-century justices.
In 1890, Massachusetts enacted a lobbying registration law,
followed by Wisconsin and Maryland, and several other states.
The registration law created a sense that lobbying was itself pro-
fessional, instead of personal, and made it harder to argue that
nonlawyers could not lobby without offering personal services.
Moreover, the growing power of the industry, and legitimiza-
tion of key players within it, likely made it seem less distasteful
to courts. Courts started to classify behaviors like private infor-
mational meetings as professional services, behaviors that they
might have previously classified as the illegitimate sale of per-
sonal influence.54
A Supreme Court case exemplifying that transformation
came in 1927. In Steele v. Drummond, one partner in a business
deal agreed with the other to use his personal influence to pass
a law enabling the construction of a railroad line in a particular
location.55 After the arrangement fell apart, the lobbyist was
sued by his partner. He confidently defended himself on the
 the forgotten law of lobbying 171

grounds that a contract to use personal influence for legislative

action voided a contract. The Court gave lip service to the long
line of cases striking down contracts for personal influence. But
it gave far greater weight to the importance of contracts. “It is a
matter of great public concern that freedom of contract be not
lightly interfered with,” the Court held, and public policy is too
“vague and variable.”
The Court upheld the contract on a technical difference
between this and other cases: Drummond had a personal prop-
erty interest in the charter, so he was not prostituting himself, as
it were, but pursuing his own interest. However, practically, the
Court erected a significant barrier to the use of contract law as
a way to police the use of personal influence in politics. After
Steele, few cases struck down lobbying contracts for any reason.
In 1941, in a case called Textile Mills, the Supreme Court ad-
dressed the constitutionality of treasury regulations that stated
that “sums of money expended for lobbying purposes” are not tax
deductible.56 It did not consider a First Amendment argument,
and inasmuch as a policy argument was raised against the differ-
ential treatment of lobbying versus other business expenses, the
court shrugged it off, citing Trist v. Child. As with the previous
century’s holdings, lobbying was still treated as “insidious” and
lobbying contracts those “to which law gives no sanction.”
The next two cases—United States v. Rumely57 and United
States v. Harriss58—signal a more important shift. While they
do not directly address the constitutionality of lobbying, they
strongly hint at a constitutionally protected right. Both cases
deal with the scope of the authority of Congress to mandate
disclosure by lobbyists, and both come in the wake of the 1946
Federal Regulation of Lobbying Act. In both cases, the Court
172 corruption in america

reads the power of Congress narrowly, in part to avoid constitu-

tional issues. However, the cases are doctrinally complicated
because while they imply that there is some First Amendment
right around lobbying, they provide no guidance on the scope of
that right, or the logic or reason for that right. Because they
don’t technically establish a right, they don’t have to confront
the conflict between the existence of a right and the former cases
that clearly treated paid lobbying as outside the scope of consti-
tutional protection.
Rumely suggested that there were fewer constitutional rights
for representations made directly to members of Congress than
member-to-member or public political activity, because it read
the authority of investigation to encompass only the former. It
held that Congress had not authorized the investigations of non-
lobbying behavior, therefore implicitly creating a First Amend-
ment divide between lobbying behavior and non-lobbying politi-
cal behavior, with the latter having more protection.
In Harriss, the Court held that because of a narrower defini-
tion held in the lobbying act, Congress was within its rights to
demand disclosure. In response to a challenge that it was un-
constitutionally vague and violated the First Amendment, the
Court limited its scope to only those paid lobbyists who have
direct interaction with members of Congress on pending legis-
lation, and who are principally interested in influence. After
Harriss, lobbying is presumptively protected in the American
legal imagination. In 1959 the Supreme Court addressed whether
a treasury regulation denying business expense deductions for
political activity was constitutional. It held that it was not un-
constitutional, and approvingly cited Textile Mills.59 A few years
later, the Court construed the Sherman Act in such a way that
 the forgotten law of lobbying 173

it would not cover publicity campaigns. It held that as a matter

of statutory construction, private entities are immune from Sher-
man Act liability for efforts to influence legislation60 and included
language indicating that an alternate construction would violate
the First Amendment. However, the Court’s guidance was again
indirect: the activities challenged were largely public campaigns,
so the Court never addressed the scope of a right to sell or buy
private influence.
These cases—and the quiet transformation—are so interest-
ing now because despite the central role lobbying plays in our
political culture, the Supreme Court has never directly addressed
the very difficult questions around the values that lobbying both
serves and undermines. They are also important because in the
twentieth century, as courts started enforcing criminal bribery
statutes more routinely, they borrowed from the language of in-
tegrity developed in lobbying law.
 chapter eight

j
The Gilded Age

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 popu-
list 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
the vote expanded to poorer (mostly white) Americans and there
was growing cross-class public involvement in politics. Less than
half a million voted in the 1824 presidential election: by 1880,
there were roughly 9 million voters. The nature of work shifted
from a combination of owned farms in the North and slave-
dependent farms in the South to industrial labor. Railways,
which started to replace waterways as the mode of transporta-
tion in the late midcentury, were dominant, and the financial
 the gilded age 175

speculators of Wall Street had come to assert political and

economic control. Political money had an unclear legal status.
Bribery law ostensibly criminalized giving anything of value
with intent to influence a lawmaker, but politicians were fi-
nanced by oil, banking, and railroad barons who fully intended
to influence governmental action. Neither courts nor legislatures
had provided a way to distinguish between campaign contribu-
tions and bribes. The penny press papers, enabled by the steam
press, started to cover politics in a vivid and often critical way. As
the public got more involved in campaigns, reformers became
increasingly anxious about money’s ability to influence politics
through elections. The changes in the country led to new chal-
lenges for corruption law.

Distributed Democracy or Spoils?

One of the most difficult questions facing reformers was how to
deal with the relationship between campaign money and gov-
ernment salaries. In the very early years of the country, candi-
dates stood for office instead of campaigning for office. That
had changed with Andrew Jackson: his 1828 campaign is catego-
rized by historians as the beginning of the Second Party Sys-
tem, where candidates actively mobilized voters, held rallies,
and used pamphlets and newspapers to directly engage poten-
tial voters.1 Jackson and his close ally Martin Van Buren also
promoted the idea of “rotation in office.” Too long a time in gov-
ernment, the Jacksonians believed, created dependencies and
temptations that led to corruption. Therefore, both civil ser-
vants and public representatives should come in and out of gov-
ernment service instead of treating either as a long-term job.
176 corruption in america

The rotation-in-office system worked to fund the increasingly

expensive campaigns as well as to get rid of stale civil servants.
Throughout the middle of the eighteenth century, successful
candidates would provide jobs to supporters, and the govern-
ment employees paid an “assessment”—a fraction of their in-
come—to political parties. This spoils system—called that be-
cause “to the victors go the spoils”—incentivized broad political
activity. Political machines developed a culture around the po-
litical parties; families would attach themselves to parties in the
hope of getting a job for one member of their family, and the
social aspects of parties increased the bonds of connections
with other partisans.
Early efforts to replace the spoils system with a civil service
examination or other methods of employment were criticized
as antidemocratic. But the institution had many pathologies,
not the least of which included incompetent government work-
ers. Reformers also worried that government was becoming an
elaborate mechanism to provide jobs for those who would bribe
the right person. The founders’ fear that people would go into
public office in order to get jobs for their friends turned out to
be all too true. President James Garfield was elected as a reformer,
and he showed a commitment to his anticorruption creed in the
first months in office in 1880.2 But in July of that year, Garfield
was shot in the back by Charles Guiteau, a Garfield supporter
who believed he was owed a job for his campaign help. Garfield
struggled with infections and complications relating to the
wound, dying two months later.
In 1883, in part due to the country’s response to Garfield’s
assassination, Congress passed the Pendleton Act, creating a
mechanism for hiring federal employees based on merit rather
 the gilded age 177

than party affiliation. It made it illegal to hire, fire, or demote

governmental employees for political reasons; criminalized so-
liciting campaign donations on federal property; and made it
difficult to offer a job to a prospective campaign organizer in
return for work because such an offer was now illegal. The act
was designed to be implemented gradually: each outgoing presi-
dent had the capacity to turn whatever jobs he identified into
nonpatronage jobs, so when the presidency changed hands be-
tween political parties, the president had an incentive to trans-
form as many jobs as possible. The Pendleton Act and other ef-
forts at civil service rules gradually impacted political culture.
Machine politics, kickbacks, and governmental positions as re-
wards for political work did not leave politics but started to play
a less important role at the federal level. Over the next several
decades, civil service reform was adopted in almost every state.
But the Pendleton Act didn’t tell politicians how they should
raise money, only how they shouldn’t. Campaigns were still ex-
pensive, and with no government employees to fund the cost,
candidates turned elsewhere—to newspaper owners, wealthy in-
dividuals, and corporations with an interest in legislation. Many
of the big donors were monopolists—or trusts—in railroads, oil,
metals, and banking. Industry was rapidly consolidating. They
donated their money to parties, which in turn took that money to
buy votes at the polls.

The Ballot with the Flaming Pink Border

Referring to the previous century, historian Eldon C. Evans wrote
in 1917, “elections in the United States . . . were not a very pleasant
spectacle for those who believed in democratic government.”3
178 corruption in america

Parties and candidates raised great amounts of “soap,” or cash,

just for the purpose of buying votes, and the more effective vote
buyers were rewarded with positions of power in government.
In the late 1880s, influential men in a community could sell their
votes for the current cash equivalent of $250 to $500. The “float-
ers,” or men with bad reputations, would get as much as $30 in
today’s dollars, paid in two dollar bills. The Indiana election of
1888 was said to have been bought for $2.5 million in today’s dol-
lars, vote by vote.
Voter intimidation was equally widespread. Landlords and
employers gave out ballots for their preferred candidates and
punished those who refused to comply with their directives. An
1889 federal investigation into voter intimidation described em-
ployers driving employees to the polls, working men staying away
from the polls, and mill managers standing at the polls watching
their employees as they voted. Vote peddlers would pay for votes
and then ensure bribes were successful by standing outside poll-
ing stations and watching voters enter. The political parties each
printed their own ballots and would refuse to pay the bribe, or
even physically intimidate voters, if they failed to walk into the
polling place with the correctly colored ballot.
The methods of voting used throughout the country made
bribery and intimidation easy. The voice vote, used in many re-
gions, made it very clear who had voted for whom: a voter who
sold his vote for $50 could find the party who bribed him wait-
ing outside, ready to demand his money back if he voted for the
wrong person. Midcentury reformers believed that written bal-
lots would lead to secrecy, but they rarely succeeded in achiev-
ing the desired end. Some jurisdictions required a signature
next to a vote, making bribery accountability easy. However, the
 the gilded age 179

most common way in which a written ballot became a public

ballot was through the use of color.
Parties would print out ballots in different colors, on differ-
ent kinds of paper, and give them to “ticket peddlers” who would
pay people to accept them on the promise they would use them.
The peddler charged with enforcing the bribes could simply
watch as the bribe taker entered the polling place. The tickets
were designed to be seen from a great distance. The 1878 Repub-
lican Party in Massachusetts had a “flaming pink border which
threw out branches towards the center of the back, and had a
Republican [e]ndorsement in letters half an inch high.”4 The
Democrats in Orangeburg, South Carolina, used blue tissue pa-
per for its ballot. The broad use of tissue paper throughout the
South was presumptively designed to make it harder to change
the name on the other side of the piece of paper.
Reformers began by trying to make the ballot color uniform,
hoping it would deter vote buying. Fifteen states passed laws
about the color of the paper and the kind of ink to be used in
order to make bribery more difficult. New York required “plain
white printing paper, and without any impression, device, mark,
or other peculiarity whatsoever upon or about them to distin-
guish one ballot from another in appearance, except the names
of the several candidates, and they shall be printed with plain
black ink.”5 The parties cleverly responded by printing ballots on
very different shades of “plain white” paper. Vote buying took
slightly better eyesight, but was still easily rewarded.
In 1888, Louisville, Kentucky, was the first U.S. jurisdiction
to adopt a new system, borrowed from Australia. This system
of voting, called the secret ballot or the Australian ballot, re-
quired the state to print on the ballot the names of candidates
180 corruption in america

and parties. A voter would show up at the polls, receive a ballot

with the nominees of all the parties on the ballot, and then in
private mark his choice. The next year, seven states followed
suit. By 1892, thirty-nine states started using preprinted ballots
for most offices and general elections. A treatise of the time ex-
plained that the secret ballot “checks bribery, and all those cor-
rupt practices which consist in voting according to a bargain or
understanding.”6 Instead of criminalizing bribery, the secret bal-
lot laws were passed on this premise: “Take away all interest in
committing an offence, and the offence will soon disappear.” The
treatise argued for the laws on the grounds that “the secret ballot
approaches these more or less elusive evils, not merely with the
weak instrument of a penal clause for this and that offence, but
with the effective methods of modern legislation.”7

Isolated Elites
The Pendleton Act and the Australian ballot reforms played an
important role in rethinking the kind of anticorruption law that
was possible. Still, at the end of the nineteenth century, demo-
cratic politics was increasingly dominated by wealth and the
country had no general theory about how money and politics
should interact. Some late-century elites who condemned vote
buying and the spoils system thought the use of money to influ-
ence official behavior was legitimate and simply part of political
practice. Members of the public, on the other hand, condemned
the corporate trusts and their corrupt campaign contributions.
In The Gilded Age, Mark Twain and Charles Dudley Warner’s
wry novel about lobbying and land speculation, the protagonist,
Laura Hawkins, is transformed from an unsophisticated woman
 the gilded age 181

into a savvy Washington lobbyist. Her understanding of what is

acceptable and normal mutates: her language shifts, her clothes
change, her tone adjusts. Twain and Warner wrote: “When
Laura had been in Washington three months, she was still the
same person, in one respect, that she was when she first arrived
there—that is to say, she still bore the name of Laura Hawkins.
Otherwise she was perceptibly changed.”8 As Twain and Warner
illustrated, a conceptual gulf existed between political and finan-
cial elites’ understanding of corruption and that of the general
public. The title of the novel became the name of the era, and the
gulf only widened after the novel was published.
The 1896 presidential race embodied this dissonance. The
“Great Commoner,” Democrat William Jennings Bryan, ran for
president against Republican Ohio governor William McKin-
ley. Bryan brought four assets: eloquence, complete determina-
tion to win, issues that resonated with grassroots organizers,
and the backing of many small newspaper owners and a few big
ones, including William Randolph Hearst. He made over 500
speeches in his first campaign, an inexhaustible 36-year-old
railing against railroads, big banks, the gold standard, and the
concentration of economic and political power. Bryan’s opponent,
McKinley, was supported by the wealthiest men in the country,
and he had the additional asset of the creative political entre-
preneur Mark Hanna. The Ohioan Hanna maneuvered patron-
age deals and created a fund-raising system by applying an “as-
sessment” model to centers of concentrated wealth. Banks were
assessed .25 percent of their capital to fund McKinley’s cam-
paign. (In current terms, that would be about a $5 billion as-
sessment on Bank of America.) Critics called Hanna’s method a
“corruption fund.”9 On October 13, 1896, the New York Journal
182 corruption in america

railed: “Can Mr. Hanna buy the voters of the Midwest? The
Standard Oil Company, the great railroad corporations, the big
manufacturing trusts, the bond syndicates, Mr. Carnegie, Mr.
Pierpont Morgan, Mr. Huntington, and all the rest of the high-
minded patriots who are furnishing Mr. Hanna with the means
to defend the national honor, think he can.”10 Whether through
purchase or persuasion, or a blend of the two, Hanna’s tactics
worked, and McKinley defeated Bryan in 1896, and again in 1900.
On September 6, 1901, a “medium sized man of ordinary ap-
pearance” approached President McKinley in the Temple of
Music at the Pan-American Exposition in Buffalo, New York,
and shot him in the abdomen. McKinley died a week later. Vice
President Teddy Roosevelt became the president of the United
States. Roosevelt brought an almost religious, prosecutorial zeal
to the office and made fighting corruption, “and above all cor-
ruption in public life,” a centerpiece of his eight years in office.11
Roosevelt was a former New York City police commissioner
who fancied himself capable of rooting out individual vice, an
ambitious politician who dreamed of building his heroic stature
through individual indictments. And, like Franklin, his experi-
ence led him to be particularly drawn to structural reforms that
would change systems. He was in many ways a corrupt old fox
like Franklin and knew how to work his way around a room of
millionaires.
Whether driven by fear of another Bryan challenge—or
something similar—or his own convictions, he came into office
proclaiming a vision of ridding the country of the corruption of
the prior generations. Roosevelt’s approach formed the basis of
twentieth-century anticorruption law.
 chapter nine

j
Two Kinds of Sticks

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 in-
tent 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 mobiliza-
tion and support by political groups. Corrupt intent laws re-
quire a jury or court to make a determination about what counts
as corrupt. To be clear, not all corrupt intent laws use the words
corrupt or corruptly, but all of them use language that requires
some kind of judgment about the appropriateness of the partic-
ular action.
The second kind of law is prophylactic or structural, a law
that makes corruption less likely by outlawing behavior that
might lead to corruption. This second type of corruption law is
184 corruption in america

designed to change overall incentive structures rather than pun-

ish bad actors. These corruption rules don’t require a court to
make determinations about individual cases.
Most of the structural laws that we’ll discuss in this book are
what lawyers call “bright-line” rules: clearly defined rules made
up of objective elements, with little room for different interpre-
tation. A classic bright-line rule from another area is a numer-
ical speed limit: anyone going over sixty-five miles per hour
violates the law. Just as the speeding law reflects a societal de-
termination that the risks attending driving over sixty-five are
too great to allow, even if the law punishes innocent and safe
driving, the bright-line residency requirements in the Constitu-
tion reflected a societal decision that the risks attending newcom-
ers were too great, even if the law keeps out potentially brilliant
and important candidates. Structural rules have always governed
financial gifts to judges: such actions create such a risk of cor-
ruption that they become treated as inherently corrupt. A
bright-line rule can become so widely adopted and accepted that
it takes on moral weight, even though it is prophylactic. To use
the legal Latin phrases often associated with these words, that
which was at first malum prohibitum becomes malum in se—that
which was just a necessary administrative structural law becomes
a broad cultural expectation. Any violation of it is also one of
the social fabric. Both the Australian ballot and the Pendleton
Act represent bright-line rules that have become embedded in
our moral political fabric. Public balloting now sounds wrong:
the attachment to private ballots has grown beyond its utilitar-
ian foundations. Likewise, partisan civil service sounds not just
inefficient, but somehow inherently corrupt.
 two kinds of sticks 185

The First Stick: Prosecuting Corrupt Officials

The first part of Teddy Roosevelt’s anticorruption crusade in-
volved prosecutors digging up dusty, unused laws to indict and
convict two federal elected officials on corruption charges for
the first time. Roosevelt’s 1903 address to Congress condemned
bribery and named corruption the central sin against democ-
racy. Corruption, he said, “strikes at the foundation of all law.”
He directed his ire at private corporations doing the bribing
and at public officials alike. The “bribe giver” is “worse than the
thief, for the thief robs the individual, while the corrupt official
plunders an entire city or State.” He is worse than a murderer
because a murderer takes one life while “the corrupt official and
the man who corrupts the official alike aim at the assassination
of the commonwealth itself.” If governmental bribery is allowed,
“government of the people, by the people, for the people will
perish from the face of the earth.”1 (Notably, he gave this speech
in a discussion headlined “Trusts.”) When he spoke, the federal
bribery laws were strong on paper but rarely used and they had
never been used to successfully convict a senator, congressman,
or high-level federal official.
Roosevelt’s administration changed the long-standing prac-
tice toward “the weak instruments” of bribery law with two ma-
jor prosecutions in Oregon and in Kansas. Public officials in
Oregon helped facilitate illegal sale of public land, which came out
of a federal plan designed to encourage settlement. The United
States offered land for the very low price of $2.50 an acre for home-
steaders, a price unattractive to settlers but very attractive to tim-
ber companies. Seeing an opportunity, speculators rounded up
186 corruption in america

men, paid them cheaply to swear they were homesteaders to

“buy” the land, and then repackaged the land and sold it for
huge profits to a timber company. Government officials were
then paid to certify the validity of the claims.
The federal government launched an aggressive prosecutorial
campaign against hundreds of the coconspirators in the land
frauds scheme and indicted Senator John Mitchell of Oregon, a
twenty-year veteran of the Senate. Mitchell allegedly accepted
$2,000 to recommend that the commissioner of the General
Land Office certify homesteads as valid that Mitchell knew
were invalid, and another $1,750 to use his influence to get an-
other set of land claims certified. He was convicted in July 1905.
He died the same year from tooth complications before he
could appeal. Should Mitchell have even been convicted? As
one historian noted, a “free and easy attitude” toward the lands
had been the norm for years, and “whatever the laws might have
said in letter, in spirit they intended that all the lands should be
in private ownership.”2 The prosecution of Mitchell as part of
Roosevelt’s crusade against “interests” struck many Oregonians
(and some historians) as an unfair political bait and switch. Mitch-
ell was caught in the gears of changing norms.
At about the same time, in Kansas, Senator Joseph Burton
was prosecuted for fraud and did live to appeal it. His appeal
laid the groundwork for a new generation of federal prosecu-
tions. He was convicted in 1905 of accepting money to influence
a post office decision, in violation of an 1863 law that prohibited
receiving compensation for services related to proceedings in
which the United States is “interested.” He appealed on several
grounds, arguing that the word interested was interpreted too
 two kinds of sticks 187

broadly; that although Congress had passed the statute, it over-

reached its power to reshape the relationship between govern-
mental branches. The statute, according to him, could not reach
federal elected officials. If it could, it would lead to executive
branch meddling in legislative branch affairs.
The Court concluded that the efforts to influence were un-
protected nonlegislative conduct and that the executive branch
had the authority to prosecute bribery.3 The statute was a legiti-
mate mechanism to protect administrators from being cor-
rupted by members of Congress:

The evils attending such a situation are apparent and are

increased when those seeking to influence executive offi-
cers are spurred to action by hopes of pecuniary reward.
There can be no reason why the government may not, by
legislation, protect each department against such evils, in-
deed, against everything from whatever source it pro-
ceeds, that tends or may tend to corruption or inefficiency
in the management of public affairs.4

Prosecutors indicted hundreds of people, and dozens were con-

victed. A new era of criminal enforcement had begun, one of in-
termittent, and often politically charged, targeted prosecutions.
It took another twenty-three years before another prosecu-
tion of a federal official took place. Secretary of the Interior Al-
bert Fall was convicted for his involvement in giving oil leases in
the Teapot Dome scandal. And it was years later, when federal
prosecutors started to reach into the states, that the modern
criminal federal law of bribery truly took flight.
188 corruption in america

The Second Stick: Campaign Finance Law

Roosevelt’s second approach was exemplified by the Tillman
Act. Roosevelt’s first presidential campaign was based on a
theme of “Clean Government,” and in 1905 he introduced the
first campaign finance reform legislation. He advocated for pub-
lic funding of elections, bans on corporate contributions, and
full disclosure of campaign sources.5 He pushed through the
passage of the Tillman Act of 1907, barring corporations from
contributing to political campaigns.6 The Tillman Act was a
bright-line rule; it did not require prosecutors to prove corrupt
intent or the absence of corrupt intent. All it asked was whether
a contribution was made or not. A few years later, the Tillman
Act was followed by the Federal Corrupt Practices Act (FCPA)
and its amendments, limiting political party and candidate
spending in U.S. Senate races and primaries. It also required
full disclosure of all federal campaign expenditures. Neither of
these acts defined corruption, but they both used the word cor-
ruption, pointedly. The “corrupt practices” in the titles of these
acts referred to businesses corrupting government through
campaign donations and to politicians extorting contributions
from businesses.7
These laws had a substantial impact on limiting the overall
spending in political campaigns. While they were notoriously
weakly enforced, they caused a shift in the amount—and
source—of money spent in campaigns after they passed. Cam-
paign spending might be expected to rise after the successes of
McKinley but not after the Tillman Act. Republicans spent
around $70 million on the 1900 presidential campaign, and the
amount went down to something closer to $20 million in 1912.8
 two kinds of sticks 189

Roosevelt’s anticorruption vision also led to the direct election

of senators and antitrust law. In 1913, bolstered by Roosevelt’s
public support, the Seventeenth Amendment to the U.S. Con-
stitution passed, establishing direct election of U.S. senators by
popular vote and joining the dozens of other anticorruption
provisions of the Constitution. And Roosevelt is known for his
trust busting and his use of the bully pulpit to connect economic
power to corruption. Although historians have questioned his se-
riousness and his commitment to decentralized power, he laid
out a promise of antimonopolization. Franklin Delano Roosevelt
later fulfi lled it. It was the premise that private concentrated
power—like the foreign powers of the founding era—could sys-
temically corrupt politics.
Still, there were judicial stumbling blocks to the legal rejec-
tion of gilded age corruption.

Free Speech or Free Elections?

For nearly seventy years after Roosevelt left office, courts up-
held his general approach toward campaign finance rules against
an array of constitutional challenges. But it wasn’t easy. There
were many technical hurdles and central philosophical ques-
tions about how to allocate power in a democracy. The biggest
difficulty—then as now—was how to reconcile the need to use
bright-line rules to limit corruption without allowing legislators
to write self-serving or propagandistic laws under the pretense
of being motivated by an “anticorruption” zeal. Politicians in
power are likely to write laws that benefit themselves, including
laws that make their own campaigns easier to fund and their
opponents’ more difficult.
190 corruption in america

The first time that the Supreme Court invalidated an anti-

corruption statute was in 1921. In Newberry v. United States the
Court reviewed a restriction on how much money congressional
candidates could spend in primaries.9 Newberry challenged the
law on the grounds that regulating primaries was not within
Congress’s enumerated powers.10 The Court basically agreed,
holding that a primary was not an “election,” and the federal
government had no authority over private political behavior.
Notably—considering the central role it has come to play in the
last forty years—the First Amendment was not mentioned.
Nonetheless, a similar question arose—whether Congress
could use this power to “attempt to control the educational
campaign.”

Upon what ground can it be said that Congress can pro-

vide how many meetings shall be held, where meetings
shall be held, how many speakers shall be allowed to speak
for a candidate, how many circulars may be distributed,
how many committees may act in behalf of a candidate,
how they shall be organized and what shall be the limit of
their honest activity?11

Ultimately, Justice McReynolds concluded that Congress

had no inherent or textual constitutional power to regulate the
amount of money spent in congressional primary campaigns.
The opinion of the court does not outright reject a strong defer-
ence to concerns about corruption; it simply does not discuss it.
The concurrence, written by Justice Pitney and substantively
joined by two other justices, rejected not only McReynolds’s
constitutional conclusions but also his framework. Pitney con-
 two kinds of sticks 191

curred with the conclusion that the judgment at issue should be

reversed, but only because of faulty jury instructions.
What is most interesting is how McReynolds and Pitney re-
spectively treat corruption. Pitney’s concurrence harps on the
central fragility of the state, insisting that Congress cannot be
left without power to legislate in this area: Pitney defers to
Congress in questions of preventing against corruption, noting
that Congress might conclude representative government was
threatened by a primary “subject to the more insidious but (in
the opinion of Congress) nevertheless harmful influences re-
sulting from an unlimited expenditure of money in paid propa-
ganda and other purchased campaign activities.” Congress must
be able to protect, he argues, “the very foundation of the citadel”
from “sinister influences.”
But what is the foundation of the citadel? Twenty years later,
as the First Amendment gained prominence in the Court, Jus-
tice William Douglas was torn between two different ideas of
what is at the center of the Constitution—the First Amend-
ment or the integrity of the electoral process. He first confronted
this tension in United States v. Classic in 1941, another case on
whether Congress should have the power to regulate primary
elections at all.12 The Court’s majority in Classic concluded that
it is part of the inherent power of Congress to regulate these pri-
maries, despite the fact that this puts the tentacles of Congress
fairly deep inside private associational political organizations.
Justice Douglas dissented, but he did so “with diffidence,” only
after spending a page discussing the following threat:

Free and honest elections are the very foundation of our re-
publican form of government. . . . The fact that a particular
192 corruption in america

form of pollution has only an indirect effect on the final

election is immaterial . . . the Constitution should be read
as to give Congress an expansive implied power to place
beyond the pale acts which, in their direct or indirect ef-
fect, impair the integrity of Congressional elections. For
when corruption enters, the election is no longer free, the
choice of the people is affected.

Ten years after this opinion, Justice Frankfurter, in his con-

currence in United States v. Congress of Industrial Organizations,
was just as absolute about free speech as Douglas had been
about corruption.13 That case involved the construction of a sec-
tion of a statute that prohibited expenditures for elections. The
question was whether the statute unconstitutionally limited
union members’ capacity to send out pamphlets. The plurality
opinion, by Justice Reed, ducked the question. Reed concluded
that the constitutional issue need not be resolved; the statute
was not intended to apply to membership newsletters. Reed men-
tions that the legislation was motivated by the “necessity for de-
stroying the influence over elections” exercised by corporations
but goes little further in discussing the corruption interest.
Frankfurter’s concurrence went much deeper into the prob-
lem posed by the case than Reed’s opinion. He tacked back and
forth between discussions of corruption and free speech but ul-
timately settled on a treatise about the virtues of free speech,
arguing that the right to speak—and to hear speech—is too
deeply important to be trammeled by the interest in preventing
corruption. “The most complete exercise of those rights is es-
sential to the full, fair, and untrammeled operation of the elec-
toral process.”
 two kinds of sticks 193

He equated corruption with undue influence. “Undue influ-

ence,” he argued, “may represent no more than convincing weight
of argument fully presented.” This syllogism where corruption
equaled undue influence, and undue influence equaled rhetorical
persuasiveness, therefore corruption equaled rhetorical persua-
siveness, did not completely satisfy him. But he explored the dan-
gerous possibilities in the connections between corruption and
expenditures only to dismiss them. We do not need to discuss
them, he wrote, “except to say that any asserted beneficial ten-
dency of restrictions upon expenditures for publicizing political
views, whether of a group or of an individual, is certainly counter-
balanced to some extent by the loss for democratic processes re-
sulting from the restrictions upon free and full public discussion.”
His refusal to engage is all the more striking because he acknowl-
edged that the legislative reason behind the bill was to root out the
conditions for breeding corruption and the political culture in
which corruption could possibly occur—not just the most obvious
instances. “In the claimed interest of free and honest elections,
[this statute] curtails the very freedoms that make possible exer-
cise of the franchise by an informed and thinking electorate.”
The foundational question did not disappear. Frankfurter
returned in 1957 to the same difficult issues with a far greater
respect for the importance of anticorruption interests. In United
States v. UAW-CIO, Frankfurter painstakingly summarized the
history of public-financing debates, pumping up the dangers of
corruption by referring to historians, debates on the House floor,
and his own commitment to the integrity of the democratic pro-
cess.14 He affirmed the job of Congress in framing-era philoso-
phy, the job to create and support the “active, alert responsibility
of the individual citizen.”
194 corruption in america

Frankfurter acknowledged the “popular feeling that aggre-

gated capital unduly influenced politics, an influence not stop-
ping short of corruption.” He did not expound directly on the
difference between undue influence and corruption, but the se-
quence following the word corruption is telling: “The matter is
not exaggerated by two leading historians,” he reported, quot-
ing them as saying that the nation’s wealth “was gravitating rap-
idly into the hands of a small portion of the population, and the
power of wealth threatened to undermine the political integrity
of the Republic.” Frankfurter in effect adopted the framers’ view
of corruption. The view is wide (not limited to public actors, but
including the role of private citizens) and deep (not limited to
bribery, but including the moral crimes of failing to be an active,
alert citizen). Undue influence is not merely persuasive power.
Moreover, corruption is intensely important. “Speaking broadly,”
he wrote, “what is involved here is the integrity of our electoral
process, and, not less, the responsibility of the individual citizen
for the successful functioning of that process. This case thus
raises issues not less than basic to a democratic society.” Doug-
las dissented with an absolutist vision of the First Amendment.
“When the exercise of First Amendment rights is tangled with
conduct which government may regulate, we refuse to allow the
First Amendment rights to be sacrificed merely because some
evil may result.”
His dissent finds voice, as we will see, more than fifty years
later in Citizens United and McCutcheon v. FEC.
 chapter ten

j
The Jury Decides

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 af-
firmed their convictions with references to the principles that
were used to disavow lobbying in the previous generations. For
most of the twentieth century, that meant that juries were given
broad authority to determine whether something was corrupt
or merely friendly. The courts were permissive, rarely describing
exactly what constituted “corrupt” behavior or a failure to pro-
vide honest services but allowing prosecutors to bring cases and
allowing juries to choose between innocent and “corrupt” gifts
196 corruption in america

and actions. The use of the mail fraud statute exemplified this
permissiveness.
The use of influence by Shushan, the former head of the New
Orleans Levee Board, and Herbert Waguespack, a member of
the finance committee of the same board, was at the heart of the
case. They had successfully persuaded the board to authorize a
New Orleans bond repayment at a lucrative percentage when
they both had a major financial interest in the authorization.
They stood to earn hundreds of thousands of dollars in fees, to
be split between them and their coconspirators.
Shushan’s job had been to persuade the Louisiana governor,
who had influence but lacked formal authority. Waguespack
had argued for the bonds in his official role. An employee of the
board was paid to spy on what competitors in the bond business
were doing. None of the people involved had direct decision-
making authority except Waguespack, and he did not have a
deciding vote. All of these agreements were concealed from the
other decision makers.
The story stank when it came out, but prosecutors had two
problems. First, there was no evidence that the city of New Or-
leans was actually hurt by the decision. Second, the general fed-
eral bribery law did not reach state officials. To solve both of
these problems they turned to a federal law that had been
passed sixty years earlier, the federal mail fraud statute. The
mail fraud provision, enacted in 1872, was designed to combat
abuse of the post office. It criminalized using the mail to ad-
vance “any scheme or artifice to defraud.” In 1909 Congress
amended it to prohibit “any scheme or artifice to defraud, or for
obtaining money or property by means of false or fraudulent
pretenses, representations, or promises.” It was written in a
 the jury decides 197

broad way, and the prosecutors took a chance by trying to con-

vict using this archaic tool.
Shushan and Waguespack argued that they had done noth-
ing wrong: Shushan had merely used personal influence, well
within the right of any citizen. Waguespack argued he had a
right to obtain personal income outside of his professional role.
Neither Shushan nor Waguespack had the final authority to
make a decision, they argued: Shushan was not an elected offi-
cial any longer, and Waguespack was an elected official, but he
didn’t have the power to make a decision on his own. The Levee
Board would have voted the same way without him.
The philosophical question was similar to that faced by the
framers in categorizing foreign gifts: Is being paid to whisper in
someone’s ear corrupt or not? The prosecutor wanted to take
personal influence and put it in the category of bribery and cor-
ruption, whereas Shushan and Waguespack wanted to put it in
the category of essentially protected personal political rights.
The jury agreed with the prosecutor. They found Shushan
and his gang guilty of a “scheme . . . to defraud” the public. The
court of appeals upheld the conviction. It concluded that there
was sufficient evidence that a jury could conclude they had at-
tempted to deprive the public of the honest services owed the
public by public officials. In effect, corruption was a question
for the jury. “A scheme to get money unfairly by obtaining and
then betraying the confidence of another, or by corrupting one
who acts for another or advises him, would be a scheme to de-
fraud though no lies were told.” Fraud, in other words, included
cheating the public. The court was driven by the same kind of
logic that had led earlier courts to refuse to enforce lobbying
contracts. It pointed to the “essential immorality” of any deal
198 corruption in america

with a public official where there was “use of undue personal

influence.” It held that “no trustee has more sacred duties than a
public official and any scheme to obtain an advantage by cor-
rupting such an one must in the federal law be considered a
scheme to defraud.” According to the court, the intent to influ-
ence the governor and cheat the public of the attention of public
servants was the essence of the crime. Even if the city had not
been hurt by the sale, the harm lay in this kind of faithlessness,
whether or not there was material harm in the form of public
monetary loss. Was there corrupt intent? What was corrupt-
ness? The Shushan court concluded that the requisite intent was
that “there must be a purpose to do wrong which is inconsistent
with moral uprightness.”
Over the next forty years, the theory accepted by the court of
appeals in Shushan v. United States was adopted by every federal
court of appeals, making mail fraud the statute of choice for
prosecuting bribery of state officials. In a series of cases, district
after district expanded the mail fraud statute to include a crimi-
nal prohibition against efforts to induce public officials (and
others) to use their public roles for private gain and self-dealing
by public officials for their own good. As one explained in 1980,
“When a public official is bribed, he is paid for making a deci-
sion while purporting to be exercising his independent discre-
tion.”1 The same logic applied to the failure of a public official to
disclose his ownership interest in a corporation when he recom-
mended that the city use the corporation’s services.2
The conduct covered was not merely successfully completed
exchanges, where one thing was changed for another, but bribe
attempts, where gifts were given and the public action was not
modified. It also covered situations where the public officials
 the jury decides 199

privately gave themselves preferential treatment. Prosecutors in

every federal jurisdiction were allowed to bring mail fraud cases
to the jury when there was evidence of intent to defraud the
public.3 Courts varied slightly about the precise need for proof
of harm. For many courts, “material misrepresentations and ac-
tive concealment,” along with a personal benefit, were enough to
bring a case in front of a jury.4
Defendants repeatedly objected to the uncertainty at the
margins of this kind of charge. If there was no actual impact on
the public, how could there be a crime? They objected to the
idea that there was something lost when the loyalty of a public
servant was lost. But most courts held that the mail fraud stat-
ute was violated if a person defrauded the State out of the loyal
and faithful services of an employee.5 In case after case, the courts
reinforced the classic American view of corruption and political
obligation of public servants. The public had a right to “honest
and faithful services,” because democratic society depended
upon such an obligation. As the Ninth Circuit explained in
1975, “When a public official is bribed, he is paid for making a
decision while purporting to be exercising his independent dis-
cretion.”6 The public, in this view, has a right to know whether a
public official has ownership interests in a corporation that he is
recommending.
The effect of these honest services cases was to give juries
enormous power to determine what constituted corruption.
The same general tendency exhibited itself across a wide variety
of statutes. Along with the mail fraud act, the Hobbs Act be-
came the tool of choice for extortion prosecutions. Passed in
1934 as an antiracketeering act and amended in 1942, the Hobbs
Act was enacted to protect against organized crime. The Hobbs
200 corruption in america

Act defined extortion as “the obtaining of property from an-

other, with his consent, induced by wrongful use of actual or
threatened force, violence, or fear, or under color of official right.”
Prosecutors argued—eventually successfully—that obtaining
property of another “under color of official right” included ob-
taining bribes or kickbacks by state or local public officials.
With this new interpretation, federal officials could go after
public officials in the states for being involved in any bribery
scheme so long as there was any connection to interstate com-
merce, which was not hard to find. The use of the Hobbs Act
became widespread in the 1970s, and most appellate courts ad-
opted the “official right” extortion, relying on common law prin-
ciples to interpret what was required for extortion.

Permissiveness
State courts allowed prosecutions for bribes that were offered
but not accepted and bribes that did not clarify the precise offi-
cial action that the briber wanted done.7 A public official could
be guilty of accepting a bribe even if he had no intent to change
his behavior. She could be guilty of bribery for being influenced
on actions over which she had no authority.8 The criminal law,
like the lobbying law before it, was designed to protect citizens
from situations in which they might be tempted.
The language that surrounded these cases emphasized the
democratic harm that bribery posed. As one court said, “the gist
of the crime of bribery is the wrong done to the people by cor-
ruption in the public service.” 9 In a 1940 case, an Oklahoma
court explained why bribery had to be interpreted broadly.
 the jury decides 201

While “in ancient times and later among the Romans”—the

predemocratic past—“the giving of rewards and gifts to public
officers was tolerated and even encouraged,” the advancement of
civilization led to a public recognition of the “danger of any
such custom.” In a modern society, the offense is heinous, all the
more so because of greater personal wealth increasing the threat:

The spirit of any democratic government is utterly abhor-

rent to anything which tends to debasement in the repre-
sentatives of the people, or threatens the purity of the
administration of government. The influence of money
has become a powerful force in this dangerous direction;
the protection of the rights of the people demands that a
severe penalty be imposed upon any person who gives or
offers to give anything of value to any public officer as an
inducement to official action. The gist of the crime is the
danger and injury to the community at large. The rights of
the citizens of this state cannot thus be corruptly tam-
pered with and bargained away.10

Statutory elements varied broadly. Some courts required

that a bribe be given for an identified official action in order to
trigger criminal liability.11 An extortion case from 1975 said that
in order to be convicted for extortion, something more than a
payment “in connection” with services was required—it needed
to be clear that the payment was intended as part of a quid pro
quo.12 In other jurisdictions, a general intent to influence suf-
ficed: the prosecutor did not need to argue that the gift was di-
rected toward causing a specified official action. Criminal liability
202 corruption in america

existed when there was proof of intent to influence any matter

“that could conceivably come before [an] official.”13 As a Califor-
nia court noted, there was testimony regarding a huge range of
official actions that were before the board of supervisors, in-
cluding zoning approvals, gas tax allocations, use of space, and
ongoing supervision about how to allocate some land, which
could also impact the developer. There was no need to name a
particular deal or agreement. A different court described it this
way: “It is sufficient that the evidence reflect that there existed
subjects of potential action by the recipient, and that the bribe
was given or received with the intent that some such action be
influenced.”14

What Is “Corruptly”?
As the Hobbs Act and other motive-based criminal laws started
being used by prosecutors with increasing frequency, courts
had to confront jury instructions for decidedly political terms.
Did juries need to be told that an act had been done “corruptly”?
If so, what constituted “corrupt”? If “corrupt” was an element of
the crime, courts largely left the definition of corrupt up to the
jury or described it in equally moral and imprecise language.
Nor was it always entirely clear whether “corruptly” was a sepa-
rate element of an offense that needed to be found, a superfluous
adjective, or an essential adjective. Corruption could mean “im-
proper motive.”15 It could mean “intent to influence” governmen-
tal action.16 One court held that New Jersey law required a “cor-
ruptly” instruction to accompany an extortion charge, concluding
that “corruptly” meant knowing the payment was unlawful.17 It
could mean “committed for a personal benefit.”18
 the jury decides 203

Michigan has a crime of misconduct in office, which includes

a “corruptly” requirement. The court tried to follow the mean-
ing of corruption to its logical end, tracing the dictionary mean-
ings of corruption and ending up with nothing more clear than
that the jury could determine corrupt intent. Corruption was
defined as “depravity, perversion, and taint.” Depravity was de-
fined as morally corrupt. Perversion was “misguided; distorted;
misinterpreted”; and “taint” was something with a “bad or offen-
sive” trace. The definitions fold in on each other; therefore cor-
ruption, it held, exists when there is “intentional or purposeful
misbehavior or wrongful conduct pertaining to the require-
ments and duties of office by an officer.” No simple silver bullet
exists to define it.19 In Alabama, corrupt intent was the key, and
measured by the jury.20
On its face, “corruptly” appeared to be redundant—it added
no additional finding of fact. Instead, “the element of corrupt
intent requires that the facts described by the other elements be
subject to characterization as wrongful, and thus requires the
application, implicitly or explicitly, of normative political stan-
dards.”21 Those normative standards were supplied, for most of
the twentieth century, by the jury.
That meant for most of the twentieth century that the coun-
try lived inside Teddy Roosevelt’s vision of bright lines and
broad enforcement. The job of figuring out how to resolve diffi-
cult questions of what kinds of laws would decrease corruption,
and how to manage new challenges, was left up to state and fed-
eral legislators. The job of policing political morality in close
cases was a jury matter. If Roosevelt could have passed every
one of his reforms, the courts would have let him, if he stayed
within the scope of federal power. If state and federal courts got
204 corruption in america

involved, it was to increase disincentives for corruption, not to

limit legislative reforms. But starting in the 1970s, the Supreme
Court started curbing legislative power, in part by narrowing
the definition of corruption and giving the word corruption a
peculiar role in constitutional jurisprudence.
 chapter elev en

j
Operation Gemstone

It was called Operation Gemstone—a name that King

Louis might have approved. The plan was to disrupt the Demo-
cratic National Convention (DNC) and to protect the Republi-
can 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 connec-
tions to the president. Haldeman was convicted of conspiracy
and obstruction of justice. In his defense, Haldeman brought
two complaints about the word corruptly in law. Before trial, he
argued that the obstruction of justice statute was unconstitu-
tionally vague because it included the word corruptly, which did
not sufficiently designate what was covered. Afterward, in his
appeal he complained that the way the judge used the word
corruptly—“evil or improper purpose or intent”—had misled
the jurors into thinking that no criminal intent was required.
206 corruption in america

In essence, Haldeman argued that the word corrupt had no co-

herent content.
The Watergate scandal led to a redefinition of corruption of
the same type he requested, but on a far greater scale than Hal-
deman imagined. In campaign finance criminal law, courts
gradually came to find the term corruptly (and its ilk) too vague
to be left to the jury, while in campaign finance law, the concept
of corruption became too empty to signify much of anything ex-
cept explicit exchanges. Both of those changes can be traced back
to Buckley v. Valeo, a Supreme Court case that struck down a
centerpiece of the post-Watergate reforms.
By the time Haldeman was on trial, the cost of campaigns had
been growing for over two decades. More money flowed into ex-
pensive federal races, television advertising costs exploded, and
people and corporations seeking ways to influence the exercise
of power gradually learned how to use campaign contributions
effectively. By the early 1970s, someone willing to invest a lot of
money could use campaign contributions to influence policy
outcomes directly. As the Gemstone story unfolded, the coun-
try learned about enormous individual donations, private slush
funds, private contacts with donors, and a network of trades of
money for influence. The Federal Election Campaign Act (FECA)
had been passed initially in 1971, before the Watergate scandal,
but momentum for reform after Watergate led to strict new
rules, passed in 1974. The reforms grew both from public disgust
and from politicians who wanted to spend less time fund-raising
to keep up with the growing costs of campaigns.
FECA’s goal was to create new norms of fund-raising and in-
fluence. The law included mandated comprehensive disclosure,
criminalized campaign contributions over a certain amount,
 operation gemstone 207

and criminalized campaign spending over set amounts. It also cre-

ated the Federal Election Commission to oversee and enforce the
campaign finance restrictions. And it created a mechanism for
publicly funding presidential campaigns. Republicans and Demo-
crats alike supported the basic provisions: the major debate in
Congress was about the scope of the public funding mechanisms,
not about the contribution or expenditure limits. The most out-
spoken opponents of FECA were opposed to it because they wor-
ried that it could become a corrupt tool that entrenched politicians
wanted to use to protect their own power. They worried that if
government could punish candidates for spending money on po-
litical communication, those in power would limit the amount
spent so much that insurgents, who needed more than incumbents
to get attention, would be unable to reach the public.

Buckley v. Valeo
The law was immediately challenged in court. In 1976, in Buck-
ley v. Valeo, the Supreme Court upheld most of the law but
struck down the spending limits on First Amendment grounds.
It upheld the contribution limits, disclosure, and the presiden-
tial system for publicly funding elections. The unsigned opin-
ion, 138 pages long, held that legislatively passed spending limits
were unconstitutional because they infringed upon the First
Amendment and were not sufficiently related to solving the
problem of corruption. The primary interest of the Federal Elec-
tion Campaign Act, the Court concluded, is “the prevention of
corruption and the appearance of corruption spawned by the real
or imagined coercive influence of large financial contributions on
candidates’ positions and on their actions if elected to office.”1
208 corruption in america

The key to understanding the meaning of Buckley in our legal

history is how it created a limited framework with which courts
should process campaign finance restrictions. Litigators, judges,
and academics have been operating within this architecture
ever since, many under protest. The four premises of that frame-
work are the following:

1. Spending money on elections is a protected First

Amendment right.
2. Combatting corruption, and the appearance of
corruption, are interests that might justify incursions
on the First Amendment right to spend money on
elections.
3. Campaign contribution limits are presumptively valid,
and courts will defer to legislative judgment.
4. Campaign expenditure limits are presumptively invalid,
and courts will look skeptically on them.

The Court treated spending and contribution limits differ-

ently for two reasons. First, the speech interest is different in
the contribution and expenditure context. It held that the ex-
pressive content of a contribution is largely in the fact of a con-
tribution, not the amount, because the political speech of the
candidate will control how the money is used. An expenditure,
by contrast, is completely controlled by the spender, and there-
fore the expressive interest is greater. Second, it held that the
corruption justification differed for spending and contribution
limits. It upheld the limits on campaign contributions because
the justices concluded that unlimited campaign contributions
were likely to corrupt the democratic/political/electoral pro-
 operation gemstone 209

cess. Candidates would become beholden to large contributors.

Bribery laws would not be enough to stop that corruption, be-
cause they punish only “the most blatant and specific attempts
of those with money to influence governmental action.” On the
other hand, it struck down the limits on candidate and individ-
ual campaign expenditures because there was less danger that ex-
penditures would be “given as a quid pro quo for improper com-
mitments from the candidate.”
Buckley gave birth to a new jurisprudence, in part because of
the charter-like status it achieved. Justice Scalia calls it a “semi-
nal case.”2 Political theorist Thomas Burke analyzes the concept
of corruption in case law “beginning with Buckley,” and Dennis
Thompson calls it the “original campaign finance decision.”3 One
of the leading textbooks in the field states that Buckley is the “one
inevitable starting point” of the Supreme Court’s jurisprudence
on money and politics.4 However, even as it achieved canonical
status, few jurists were persuaded by the Buckley logic. Some—
more likely to be on the left—objected to the characterization of
political election spending as speech, instead of speech-facilitating.
Others—both liberals and conservatives—found the line between
spending and contributions difficult to defend, in practice and
theory. Liberals wanted to uphold the spending limits, and con-
servatives wanted to strike down the contribution limits. The ju-
risprudence has survived forty years largely because the Supreme
Court has never cobbled together a majority to strike down the
spending rule, nor to strike down the contributions rule.
The unlimited spending led to even more candidate time
fund-raising. And, as Robert Kaiser details brilliantly in his book
So Damn Much Money, “the more important money became to
the politicians, the more important donors became to them.”5
210 corruption in america

Lobbyists grew in importance as they helped candidates with

fund-raisers; candidates came to depend upon the lobbyists and
listen to the needs of their clients. We cannot know what would
have happened if all of FECA had been upheld, but we know
what happened when it was not.
On its face, it might seem to be an important moment for the
concept of corruption. It settled Frankfurter’s questions in the
earlier cases, choosing to value the integrity of the elections even
when First Amendment interests were implicated. The opinion
elevated corruption and gave it a designated place in our constitu-
tional framework. However, the elevation was accompanied by a
simultaneous lack of guidance on how to understand the concept.
The Court used the word corruption but didn’t explain where we
should look to define it, or how we should understand it. As a re-
sult, as I’ll show, many people have turned to white-collar bribery
law for support without explaining why modern criminal bribery
law should define a constitutional concept.
Second, because Buckley legitimated a focus on corruption,
and not equality or other concerns, as a reason for restriction,
litigators have had to try to claim that all the myriad purposes
that one might want campaign finance to serve are corruption
interests. Several justices on the Court have interpreted the sec-
ond part of the framework described above to mean that com-
batting corruption, and the appearance of corruption, are the
only interests that might justify campaign finance laws. These
justices have read language in the opinion that rejected equal-
izing speech in the public sphere as a rejection of the legitimacy
of political equality altogether.
The corruption-only rationale has in turn led to disingenuity
in scholarship and litigation. Litigators and articles renamed
 operation gemstone 211

the interests they think of as important as corruption interests,

which had the effect of confusing the term. It was and is consid-
ered foolish for a litigator to mention that campaign finance
limits might be designed to increase participation: a participa-
tion argument must be recast as a corruption argument. Not
without reason: in a recent case, the Supreme Court held that a
provision in an Arizona law that provided additional public
funds to candidates who were seriously outspent was illegitimate
because the Court concluded that equality was the motivating
reason for the law. According to the Court, “It is not legitimate
for the government to attempt to equalize electoral opportuni-
ties in this manner.”6 Similarly, opponents of campaign finance
reform who argue for a narrow meaning of corruption, the word,
do so regardless of their other prior beliefs about corruption,
the concept.
In short, Buckley took a difficult but important concept and
turned it into a centrally contested concept without any guid-
ance on where or how the contestation might take place. Buck-
ley quasi-constitutionalized corruption, making it as contested
as the right to bear arms or any other constitutional concept,
but it did so in an entirely ahistorical way. After Buckley, respect
for the precedent meant that the Court was rhetorically com-
mitted to the belief that corruption was a significant govern-
ment interest, without any guidelines that could referee debates
about the meaning of corruption.
Justice Byron White’s dissent displayed more continuity and
connection to history and democratic theory. Unlike the other
justices, he doesn’t try to separate the corruption interest from
general foundational interests in self-government. The majority,
according to White, gets the whole idea of corruption wrong
212 corruption in america

and treats it too lightly, and understands it too thinly. He quotes

extensively from the nineteenth-century case Ex parte Yarbrough,
arguing that Congress clearly has the authority to “protect the
elective process against the ‘two natural and historical enemies
of all republics, open violence and insidious corruption.’ ” Cor-
ruption is “the consequence of ‘the free use of money in elec-
tions, arising from the vast growth of recent wealth.’ ” Through-
out his dissent, the strength of his concern about corruption
reveals itself in language—it is “a mortal danger against which ef-
fective preventative and curative steps must be taken” . . . “expen-
diture ceilings reinforce the contribution limits and help eradicate
the hazard of corruption” . . . “the danger to the public interest in
such situations is self-evident.”7
Buckley opened the door to generations of litigation. Before the
case came down, both campaign expenditure limits and contribu-
tion limits were presumptively valid, the First Amendment status
of political spending was unclear, and corruption was one of many
possible reasons that campaign finance laws might be passed.
Afterward, every state or federal law involving a regulation of
money and politics became suspect and open to challenge.

Corruption in the Wake of Buckley

After Buckley, a series of previously uncontroversial laws be-
came controversial. The Court divided on whether any kind of
expenditure limit was acceptable. Two important decisions for
understanding the current corruption jurisprudence involved
corporate spending. In a 1978 case, First National Bank of Boston
v. Bellotti, the Court struck down a Massachusetts law that pro-
hibited corporations from spending money in a referendum.8
 operation gemstone 213

The opinion relied on a novel First Amendment approach, one

that protected speech instead of the speaker, and found that the
state could not ban particular kinds of corporate speech. It then
considered whether there was a countervailing interest to jus-
tify the First Amendment incursion, and concluded no. Unlike
in an election where donations are tied to candidate success,
corporate spending in a referendum doesn’t lead to corruption
or the appearance of corruption. Bellotti held that the “creation
of political debts” was the essence of corruption, but it spent
very little time discussing definitional questions.
Then in 1990, in Austin v. Michigan State Chamber of Com-
merce, the Court upheld limits on corporate spending around
election campaigns.9 It again found a First Amendment interest
but justified upholding limits for anticorruption reasons. Austin
described corruption in terms of “the corrosive and distorting
effects of immense aggregations of wealth that are accumulated
with the help of the corporate form and that have little or no
correlation to the public’s support for the corporation’s political
ideas.” Austin’s definition of corruption reflected the ways in
which equality concerns were being recast as corruption con-
cerns. But it also harked back to older conceptions of corrup-
tion, where corruption and equality are related. In Austin Jus-
tice Scalia dissented, arguing that this kind of understanding of
corruption was so essentially unmanageable: “When the vessel
labeled ‘corruption’ begins to founder under weight too great to
be logically sustained, the argumentation jumps to the good
ship ‘special privilege’; and when that in turn begins to go down,
it returns to ‘corruption.’ Thus hopping back and forth between
the two, the argumentation may survive but makes no headway
toward port, where its conclusion waits in vain.”
214 corruption in america

In 2003, in the longest case in constitutional history—Mc-

Connell v. FEC—a majority of the Court upheld campaign fi-
nance reforms, including limits on when certain kinds of ads
could be broadcast, relying on Austin but developing the con-
cept more fully.10 Corruption, McConnell held, is far more than
“simple cash-for-votes corruption” but includes “undue influence
on an officeholder’s judgment, and the appearance of such influ-
ence.” The problem, according to the Court, included evidence of
access and the use of influence. It explicitly rejected a more trans-
actional “straight cash-for-votes” understanding of corruption,
and concluded that “the best means of prevention is to identify
and to remove the temptation.” This language, as Rick Hasen
has argued, is “suggestive of the nineteenth and early twentieth
century courts’ concern about the threat to self-government
posed by ‘personal influence’ and private solicitations.”11 The lan-
guage was heavily critiqued in the dissents, which argued that
corruption was nothing more than quid pro quo. Those dissents
became majority opinions in 2006.
 chapter t w elv e

j
A West Virginia State of Mind

When, if ever, is a campaign donation corrupt? Is a $15 con-

tribution designed to influence a state senator on fracking pol-
icy corrupt? What about a $15 million contribution? Outside of
lobbying and independent spending, these are among the hard-
est questions in modern corruption law, modern campaign fi-
nance 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 ju-
dicial or executive branch interactions. It doesn’t seem hard to
say that a judge is corrupt if he demands a gift or campaign con-
tribution from someone appearing before him, or that a police
officer is corrupt if she accepts payment to ignore a traffic ticket.
But what about a candidate at a fund-raiser?
Legislative corruption—particularly that tied to election
campaigns—is complicated to regulate for several reasons that do
not apply to these other areas. There are several minor differences.
When a judge is given a campaign contribution by a litigant while
216 corruption in america

the litigant is appearing in front of him, the judge faces a binary

choice, and the payment seems designed to illegitimately influ-
ence him in that official act. But if a political figure is paid, it
will not be clear what she is paid for, both because a politician
typically faces an array of possible political actions, and because
doing or not doing them will have an impact on every member
of the society. Unlike the judge and the litigant, there is no lim-
ited time frame in which a politician has power over the donor,
or a limited number of people whose lives she can influence. Sec-
ond, it takes multiple representatives to pass any given law, un-
like the typical police officer or judge, so if one is influenced by a
bribe, it will not be clear whether the bribery caused the law to
pass or not. Relatedly, a gift to a legislator with no formal power
over an issue—but with connections to executive agencies—
may be designed to influence, even though the technical power
to influence does not reside in the legislator. Representatives,
unlike judges or police officers, frequently hold other jobs, so
people seeking favors might interact with the representatives
in their commercial capacity, creating the opportunity for an ex-
change of favors. A member of Congress, unlike a judge, is often
also a lawyer, and a mayor also runs a construction company.
Separating legitimate outside employment from the illegitimate
payments depends upon difficult factual determinations: Was the
state representative hired as a lawyer for a gas company in order to
sway her, and if so, is that illegitimate if she is not overpaid?
But the biggest difference is this: a legislator must regularly
appeal to members of the public for help—votes and gifts—to
get elected. Democracy is premised on that plea. He promises
policies and actions, and people help him get elected by telling
their neighbors, campaigning for him, perhaps throwing an
 a west virginia state of mind 217

event for him. A constant flow between public and candidate is

supposed to exist in a representative democracy, because that en-
sures that the representative will be thinking of the best interests
of her constituency. This responsiveness is different from the
barrier of nonresponsiveness that ideally exists between judges
and the people who appear before them. The candidate, by defi-
nition, has to get the public to help him, so bans on public aid do
not work—he is permitted to ask someone to spend twenty Sat-
urdays canvassing but not permitted to pay for a vote.
Creating laws that deter bribery of legislators, but do not de-
ter democratic organizing, has been among the most vexing prob-
lems of the American political experiment. To put it another way:
democracy’s internal threat (responsiveness to donors) is deeply
intertwined with democracy’s greatest promise (responsiveness
to citizens). The decision on which activities fall into the cate-
gory of threat and which ones fall into the category of promise
is a vital job in democratic design. Is a $5,000 anti-fracking cam-
paign contribution corruptly offering a price for official action
or virtuously engaging in activism? Daniel Lowenstein pointed
out these difficulties in a 1985 essay that included this provoca-
tion: “Under most bribery statutes as they have been interpreted
by most courts, most special interest campaign contributions
are bribes.”2
Bribery statutes typically require five elements: (1) giving a
thing of value or a benefit (2) to a public official or candidate (3)
corruptly (4) with intent to influence (5) an official action. Extor-
tion laws are similar, with the defendant reversed: a thing of value
is corruptly requested by a public official with the understanding
that it will influence her official actions. Gratuities statutes (gifts
statutes) are also severe, creating liability for giving gifts after the
218 corruption in america

fact for an official act already done. Lowenstein argued how

these five elements, applied, neutrally would cover a member of
Congress agreeing to introduce a bill in order to get a union en-
dorsement, as well as a member of Congress voting against a bill
in order to receive a campaign contribution. They would also
likely apply to a public statement by a well-funded independent
organization that it would spend millions of dollars on an inde-
pendent expenditure if a candidate would change her vote. Low-
enstein argued, therefore, that the idea of neutral application was
impossible: the requirement that the offer or demand be done
“corruptly” meant that a normative political element was part of
the statute, and either courts or juries had to make some determi-
nation based on ideas outside the statute—political theory—
about whether campaign contributions should fit within the am-
bit of “bribes.”3

A Question of Fact
The earliest cases confronting the prosecution of campaign con-
tributions as bribes treated them the same as other bribery
charges. A 1927 case put it simply: “If it was accepted as a campaign
contribution it was, nevertheless, bribery. It is not the use to which
the money was put, but the purpose for which it was paid.”4 A 1938
appeal upheld a jury conviction for bribery based on campaign
contributions. There was conflicting evidence about a series of in-
teractions between a de facto public officer and the owner of a pipe
company. The jury heard statements like “If we would get together,
we might do both ourselves some good,” that led the owner of the
pipe company to believe that he was being asked to give campaign
contributions in exchange for a government contract. On appeal,
 a west virginia state of mind 219

the Washington Supreme Court concluded: “The question was

not what was done with the money after appellant secured it, but
the reason and purpose of receiving it.”5
A 1956 New Jersey court dismissed the argument that cam-
paign contributions are somehow different by reference to the
core logic of bribery laws:

The aim of the statute is to punish those who betray

public office. In our opinion the gist of the offense charged
here was the solicitation of Money by defendants bargain-
ing for their votes with a corrupt mind; and it mattered
not whether the money was to go to them personally or
for campaign funds or to some recipient designated by
them. As has been said in cases where money has been
handed a public official for campaign purposes as a price
for his official action, it makes no difference to what use
the money is to be put; it still is bribery.6

When prosecutors charged campaign contributors with brib-

ery, courts had to choose between elite norms of political behav-
ior in which such contributions should be treated as gifts—much
like the boîtes a portrait were in France—and the norms of politi-
cal behavior announced by the bribery statutes.
Prosecutions for campaign contributions were relatively rare,
and the federal prosecutorial guidelines limited prosecutions to
only those cases where a contribution request was explicitly
conditioned upon an identifiable government action. Nonethe-
less, convictions for campaign contributions were upheld under
the federal gratuities statute, the federal bribery statute, and
the Hobbs Act.
220 corruption in america

In a 1974 case examining whether the gratuities statute

could apply to campaign contributions, the D.C. Circuit con-
cluded unequivocally that it could. The defendant in that case
argued that the gratuities statute was overly broad because its
terms covered campaign contributions, “which arguably can be
characterized as the sort of political, associational activity pro-
tected by the First Amendment.” The court summarily rejected
the argument, holding that Congress had passed a law against
gifts given for official acts, not for lawful campaign contribu-
tions. The illegality under the law was in the “knowing and
purposeful receipt by a public official of a payment, made in
consideration of an official act.” Congress, said the court, has
“an indisputable interest in proscribing such conduct as a
means for preserving the integrity of governmental operations.
This interest supersedes any conceivable First Amendment
value related to such conduct.”7
A $10,000 campaign contribution from the president of a
medical college to a congressman while a grant was pending for
funding of a building was the alleged bribe in a 1979 federal
case. The defendant argued that the donation was part of nor-
mal business practice to promote a good business climate by do-
nating. The district court said that this argument infringed
upon the jury’s role:

Defendant’s first claim, that the money given to Congress-

man Flood was part of a traditional business practice of
tendering political contributions to promote a favorable
business climate for federal funds which Hahnemann
needed, is essentially a challenge to the truth of the allega-
tion that defendant “corruptly” gave the Congressman
 a west virginia state of mind 221

money to influence his official action on Hahnemann’s ap-

plication for federal funding. Whether defendant paid
this money to the Congressman with “corrupt” intent or
merely as a “traditional” political gift is a question for the
jury to decide at trial.8

The question of corruption “require[d] a determination of

defendant’s intent, which is a question of fact.” A few years later,
a court upheld a jury conviction for bribery when a woman gave
a state representative a handwritten note saying, “Mr. Swanstrom
the offer for help in your election & $1000 for your campaign for
Pro ERA vote.”9
The elements of a federal Hobbs Act violation were similar
to the general bribery elements. Under the logic of most courts,
an official violated the Hobbs Act when he obtained a payment
with knowledge that the payment was in return for specific of-
ficial acts.10 There, as well, courts held that “appellants’ conduct
here constituted extortion regardless of whether the payments
went into appellants’ pockets or their party’s coffers.”11 At least
three circuits had sanctioned prosecution for extortion where
public officials had asked for campaign contributions.12 The
courts explicitly recognized the argument that the scope of
the act could lead to expansive prosecution, but “our need to
avoid hampering honest candidates who must solicit funds from
prospective supporters does not require that the courts aban-
don this necessary, if troublesome, realm of political maneuver
to those who would abuse its opportunities. A moment’s reflec-
tion should enable one to distinguish, at least in the abstract, a
legitimate solicitation from the exaction of a fee for a benefit
conferred or an injury withheld.”13
222 corruption in america

To summarize, on the state and federal level, courts main-

tained the general trend toward permissiveness: the bribery
statute had no special exception for campaign contributions,
and the jury should decide which contributions were corrupt and
which were not. These cases assume that while campaigns are
privately financed, campaign funders cannot give with the goal
of influencing behavior. They may give out of allegiance, expres-
sion, or personal affection, but not in order to shape the exercise
of power. Likewise, candidates can raise money on issues that
they care about, but they cannot allow fund-raising to shape
their actions. To do otherwise would be corrupt.

The McCormick Moment

“It’s hard to tell whether West Virginia is a state of mind, a state
of chaos or just a good soap opera,” said the local president of
Common Cause, interviewed about the state’s problems in
1989.14 The treasurer, the attorney general, the president of the
state Senate, and dozens of other public officials were caught up
in scandals. Many were convicted of extortion or other im-
proper uses of office.
West Virginia had a program to allow foreign medical school
graduates to practice in the state while studying for the state li-
censing exams. In the face of threats of ending the program, a
number of temporarily licensed doctors formed a group and in
1994 hired a lobbyist to push for legislation extending the pro-
gram. The lobbyist, Vandergrift, got in touch with Robert L.
McCormick, a delegate. In 1984 McCormick sponsored legisla-
tion extending the program and agreed to sponsor legislation
that would grant permanent licenses.
 a west virginia state of mind 223

McCormick had a phone call with the lobbyist where he “ex-

pressed to me that his campaign was rather expensive, the elec-
tion was coming up, and that he had put out a couple of thou-
sand dollars out of his pocket and he hadn’t heard anything
from the foreign physicians and he wanted to know what I was
going to do about it.”15 The lobbyist then called one of the doc-
tors and “stressed to him I thought it was very important that
we get some money to help Bob in his campaign.” The lobbyist
was very straightforward about the reason: “We were facing a
very important legislative session, and I wanted to be in a posi-
tion to help Bob with his campaign and to strengthen the ties of
influence that this would generate.” According to the lobbyist,
the “tone of his voice was that he wanted a campaign contribu-
tion, that he needed it.” He was as direct as one could be in
terms of his own needs. “He had mentioned that he had just
put 2,000 dollars out for campaign expenses in cash, and I
thought it would be appropriate at least to replace that and
some more if we could.” The lobbyist learns how much needs to
be given and knows why. There is an implicit threat, but not an
explicit one.
The lobbyist told him he would “see what he could do.” The
foreign doctors gave five cash payments, some in envelopes. Nei-
ther McCormick nor the doctors’ organizations recorded the
gifts. In 1985 McCormick sponsored the promised legislation.
The law passed. Two weeks later he received another campaign
contribution.
When federal prosecutors learned of the relationship, Mc-
Cormick was tried and convicted of violating the Hobbs Act by
extorting payments under color of official right. In the charge to
the jury, the trial court instructed the jury that they could find
224 corruption in america

him guilty if he knew payment was made on the expectation

that it would influence his official conduct.
The Supreme Court overturned McCormick’s conviction and
held that to be convicted under the Hobbs Act, the payments
must have been made in return for an “explicit promise” to do (or
not do) an official act. A broader reading, according to the major-
ity opinion, would violate contemporary norms of political be-
havior. Therefore, proof of quid pro quo is required for a Hobbs
Act violation.
The key reasoning in McCormick v. United States is a descrip-
tion of how the Court understands politics to work. According
to the majority, the job of a legislator is to work for constituents;
constituents support campaigns, therefore supporting legisla-
tion that furthers the interest of some constituents who have
given campaign contributions is inevitable. It is unrealistic to
call official actions “extortion” simply because they benefit cer-
tain people and are taken shortly before or after campaign con-
tributions are solicited and received from those beneficiaries.
That can’t be what Congress meant, the Court held, when it
made it a crime to obtain property from another, with his con-
sent, “under color of official right.” To hold otherwise would
open up conduct “that has long been thought to be well within
the law” to prosecution. Most important, private campaign con-
tributions made with intent to influence elections are “unavoid-
able so long as election campaigns are financed by private contri-
butions or expenditures, as they have been from the beginning of
the nation.” The Court doesn’t reject the possibility that Congress
might mean to criminalize private campaign contributions in-
tended to influence government but “it would require statutory
 a west virginia state of mind 225

language more explicit than the Hobbs Act contains to justify a

contrary conclusion.”
The holding in McCormick has been bedeviled by problems
and confusion. Subsequent decisions are unclear about the
meaning of “explicit” and how the quid pro quo requirement is
defined.16 The confusion was amplified by a Supreme Court case
a year later, Evans v. United States, that seemed to hold that a
jury could find a Hobbs Act violation with an implicit deal that
was not openly stated.17 Providing a critical concurrence in that
case, Justice Kennedy added that “the official and the payor need
not state the quid pro quo in express terms, for otherwise the
law’s effect could be frustrated by knowing winks and nods.”18
The meaning of the case was particularly confusing because the
bribes included a blend of campaign contributions and private
payments.
Nearly twenty-five years later it is still not clear exactly what
kind of campaign exchange constitutes a violation of the Hobbs
Act.19 It is not clear exactly how explicit the deal must be, and
whether a specific government act needs to be identified. It is
not entirely clear whether the logic of McCormick applies to all
federal bribery statutes or just the Hobbs Act. And it is not clear
how much of it is statutory interpretation and how much of it is
political theory.
There are three ways to read McCormick, each of which has
substantial implications for law. The first is that it is an expres-
sion of the justices’ beliefs about how politics is supposed to work
and a description that describes the outer bounds of corruption
in a campaign context. This interpretation is the way the Rob-
erts Supreme Court has understood McCormick. Under this
226 corruption in america

reading, the case provides good authority for definitions of cor-

ruption, extortion, and bribery.
The second is that McCormick is not about a fundamental
definition of corruption or extortion, but simply about judicial
unwillingness to read a potentially powerful statute broadly
without direct guidance from Congress. If this is your view,
Congress could pass a law next year that criminalizes campaign
contributions given with the intent to influence policy.
The third is that McCormick is driven by the mismatch be-
tween criminal bribery laws and our political system because
criminal corruption laws with a corrupt intent requirement are
traditionally very vague at the margins. Due process lurks in
the background of McCormick, and the statutory interpretation
allowed the Court to avoid striking down the law more gener-
ally. In this view, the decision has nothing to say about founda-
tional meanings of corruption but simply about the legitimate
scope of a particular kind of law.
McCormick was startlingly silent about the republican ills that
the bribery statute might be designed to dissuade, particularly in
the political sphere. It did not discount corruption, but it did not
take the potential impact on self-government particularly seri-
ously. But this silence corresponds with all three theories, sug-
gesting that all three were at play. Whatever the deep motivation,
the prosecution of McCormick redefined the relationship between
campaign finance law and bribery in twentieth-century bribery
law. The Court took an activity that had traditionally been coded
as potentially corrupt—a question for the jury to decide—and
recategorized it as normal political activity.
 chapter thirteen

j
Citizens United

The gift of a framed print was at the heart of a little-

noticed case that foreshadowed the Supreme Court’s political
theory in Citizens United. The case came to court after a trade
association, Sun Diamond Growers, gave Secretary of Agricul-
ture Mike Espy tickets to the 1993 U.S. Open Tennis Tourna-
ment 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 sec-
tion of the 1962 bribery law that forbids gifts “for or because of
any official act performed or to be performed.”2 They argued that
Sun Diamond gave the gifts to curry favor. There were two rea-
sons that Sun Diamond members might have cared whether they
had the affection of Secretary Espy. He was considering a plan
that would provide federal aid for foreign marketing to “small
sized entities,” which wasn’t an obvious designation for compa-
nies such as Sun-Maid Growers of California, Sunsweet Grow-
ers, Valley Fig Growers, and Hazelnut Growers of Oregon. Es-
py’s department was also considering a new pesticide regulation.
228 corruption in america

The jury convicted and Sun Diamond appealed, arguing that

the jury instructions were too broad. It pointed out there was
no evidence connecting the bowl, luggage, tickets, meals, or
print to either of Espy’s two potentially powerful actions. As far
as the trade group was concerned, the statute only covered situ-
ations where the government could prove that a gift was given
to influence a particular government action.
The Supreme Court sided with Sun Diamond, against every
court of appeals decision before 1999. It held that the govern-
ment had to prove that the gift was given for a particular offi-
cial act. As white-collar crime specialist Peter Henning argued
in his review of the case, it was a plausible reading of the stat-
ute, but only barely. It was “difficult to see” how it made sense
of all the language of the statute, which clearly contemplates
before-the-fact gifts. Sun Diamond makes it nearly impossible
to prove a violation of the gratuities statute for any gift given
before an official action. Sun Diamond effectively turned the
bright-line gratuities statute into a more demanding bribery
statute.
The case was technically a matter of statutory interpretation,
and Senator Patrick Leahy has introduced a law to overturn it.
It can be made moot tomorrow through legislative action, but it
is important for the deep logic of politics that it reflects. Sun
Diamond revealed just how far the Court had come from the
framing era, where gracious presents were understood as swords
of power. The gifts clause of the Constitution was never dis-
cussed. The opinion shows a lack of understanding of the cor-
rosive power of gifts and subtle influence, and no appreciation
for the need for clear rules, because of the difficulty of proving
connections between gifts and acts. Instead, the Court con-
 citizens united 229

cluded that a clear rule would lead to “absurdities.” Justice Sca-

lia, writing for the Court, found it incomprehensible that the
statute could criminalize “a complimentary lunch for the Secre-
tary of Agriculture” given by Sun Diamond, if he had matters
before him that affected their work. He apparently never heard
the adage, “There ain’t no such thing as a free lunch.”
Scalia outright rejected the argument that the statute crimi-
nalized the “buy[ing of] favor or generalized goodwill from an
official who either has been, is, or may at some unknown, un-
specified later time, be in a position to act favorably to the giver’s
interests.” He rejected the claim that it criminalized presents
“motivated, at least in part, by the recipient’s capacity to exercise
governmental power or influence in the donor’s favor.” If you
read the case as political theory, instead of statutory interpreta-
tion, the Court suggests that using money to influence power
through gifts is both inevitable and not troubling. In so doing, it
set the table for the Court’s major corruption decision in Citi-
zens United.
Justice Scalia began the Sun Diamond opinion with this sen-
tence: “Talmudic sages believed that judges who accepted bribes
would be punished by eventually losing all knowledge of the di-
vine law.” Eleven years later, Scalia and the other justices in Citi-
zens United seemed to forget all knowledge of what in America
is the closest we get to divine law—the laws of human nature
and democratic politics.

Democratic Responsiveness
Nine years after Sun Diamond, a small, conservative nonprofit cor-
poration named Citizens United wanted to air a ninety-minute
230 corruption in america

movie about Hillary Clinton on DirecTV. It was right before

the 2008 Democratic presidential primaries. Citizens United
also wanted to air thirty-second advertisements for the movie
on broadcast television. The transcript of one of the ads went
like this, with different lines spoken by different people:

“Questions”

Who is Hillary Clinton?

She’s continually trying to redefine herself and figure

out who she is . . .

At least with Bill Clinton he was just good-time Charlie.

Hillary’s got an agenda . . .

Hillary is the closest thing we have in America to a

European socialist . . .

If you thought you knew everything about Hillary

Clinton . . . wait ’til you see the movie.

The Federal Election Commission moved to block the movie

and the advertisements for violating the Bipartisan Campaign
Reform Act (BCRA), a 2002 campaign-finance law that prohib-
ited corporate-funded campaign commercials within thirty
days of a presidential primary. Citizens United challenged the
decision. According to its lawyers, it was a documentary, it was
not offered over broadcast, and BCRA did not apply. According
to the government, it was a ninety-minute ad designed to hurt
Mrs. Clinton in the primaries, the distribution counted as broad-
cast, and BCRA did apply.
 citi zens united 231

During the initial oral argument of the case in 2008, Justices

Scalia, Kennedy, and Roberts asked questions that implied
something far more expansive, and declaratory, than statutory
interpretation. They wanted to hear arguments about whether
the law banning corporate election spending could be justified
at all. With the nature of the case changing, the Court re-
quested that the parties write new briefs and reargue the case,
explaining the constitutional legitimacy of independent corpo-
rate spending limits. However, there was no chance to research
the underlying factual issues. No record was created to address
these new foundational constitutional questions.
The case came back to the Supreme Court in 2009. Ted Olson,
the lawyer for Citizens United, argued that there was no justifi-
cation for the law because there is “no quid pro quo there [when
corporations spend money in campaigns], and if there is it
would be punishable as a crime.” In essence, his claim was that
Congress’s power to protect elections from corruption was lim-
ited to the power to punish and deter explicit bribes. Anything
else is not corruption.
In January 2010 Justice Anthony Kennedy, writing for a ma-
jority of the Court, adopted Olson’s argument and struck down
all limits on corporate expenditures.3 The decision was within
the Buckley framework and assumed that political spending is
protected speech, and that nothing except corruption or the ap-
pearance of corruption could justify restrictions on that speech.
Citizens United is a complicated opinion, with many moving
parts. But to my mind, the radicalism of the opinion, even be-
yond the flawed framework of Buckley, rests on two connected
determinations. First, the Court found that the First Amend-
ment protects political speech regardless of the identity of the
232 corruption in america

speaker. Second, the Court found that no sufficiently important

countervailing governmental or constitutional goal was served by
limiting corporate political advertising. It conclusively held that
corruption was the only possible government interest that might
permit First Amendment restrictions and that anticorruption in-
terests were not served by the law. Political equality concerns are
not constitutionally legitimate reasons to pass such a law.
The opinion comprehensively redefined corruption, and in so
doing, redefined the rules governing political life in the United
States. As a matter of federal constitutional law, corruption
now means only “quid pro quo corruption.” And quid pro quo
exists only when there are “direct examples of votes being ex-
changed for . . . expenditures.”4 Corruption does not include un-
due influence and cannot flow from donors trying to influence
policy through campaign contributions, unless these donors are
utterly crass. “Ingratiation and access” are not corruption. Cor-
ruption does not include “the corrosive and distorting effects of
immense aggregations of wealth that are accumulated with the
help of the corporate form and that have little or no correlation
to the public’s support for the corporation’s political ideas.” And
perhaps as surprisingly, Kennedy held that as a matter of law—
regardless of the facts that are presented—“independent expen-
ditures, including those made by corporations, do not give rise
to corruption or the appearance of corruption.”
But Citizens United did not merely exclude alternate defini-
tions of corruption. It actually took that which had been named
corrupt for over two hundred years and renamed it legitimate
and the essence of responsiveness. Using ideas that were origi-
nally espoused in a dissenting opinion in McConnell, Kennedy
equated “favoritism and influence” with “democratic responsive-
 citi zens united 233

ness.” The jump from unavoidable influence to the legitimacy of

influence, by equating it with positive values of responsiveness,
happens in five short sentences. Even more than the adoption of
quid pro quo, this passage represents a fundamental assault on
traditional ideas of corruption:

The fact that speakers may have influence over or access to

elected officials does not mean that these officials are cor-
rupt: Favoritism and influence are not . . . avoidable in
representative politics. It is in the nature of an elected rep-
resentative to favor certain policies, and, by necessary cor-
ollary, to favor the voters and contributors who support
those policies. It is well understood that a substantial and
legitimate reason, if not the only reason, to cast a vote for,
or to make a contribution to, one candidate over another
is that the candidate will respond by producing those po-
litical outcomes the supporter favors. Democracy is pre-
mised on responsiveness.

The framers might agree with almost every sentence in this

passage, but not with the logical leaps it contains. Madison
would agree that access is not equated with corruption, but he
would disagree that access does not lead to corruption. He would
agree that favoritism is unavoidable—and donor favoritism is
unavoidable—but he would disagree that we should therefore
stop trying to limit it. He would agree that the donors will likely
want to produce responses, but he would disagree that we should
call that desire legitimate. And he would agree that democracy
is premised on responsiveness, but he would disagree that
responsiveness to the wealthy is the same as responsiveness to
234 corruption in america

constituents. In this string of thoughts, connected by a weak

logic, Kennedy gives up on the project of separating moral and
dangerous forms of responsiveness. In Kennedy’s vision, all that
is left of corruption is a particular kind of quasi-contract.
Justice Stevens, citing from the majority opinion in McCon-
nell, called the majority definition of corruption “crabbed.” But
it was not just narrow; it represents an inversion of traditional
American political language. Kennedy did not merely reject
certain arguments, but rather laid out an affirmative vision of
political life. The affirmative positive vision is Benjamin Frank-
lin’s dystopia. Citizens, in Kennedy’s view, are supposed to use
money to achieve personal benefits in the public sphere.
Between quid pro quo corruption and democratic responsive-
ness, Kennedy identified a third sphere of political activity, one
that is troubling but not sufficiently troubling that Congress
could do anything about it. There is “cause for concern,” he
wrote, when “elected officials succumb to improper influences
from independent expenditures; if they surrender their best
judgment; and if they put expediency before principle.” How-
ever, he did not equate those with corruption, nor did he suggest
how Congress could address these ills except through laws ban-
ning quid pro quo exchanges. If Jefferson were around to read
the opinion, he would doubtless complain of its Yazooism. Like
Justice Marshall, Justice Kennedy identifies a fundamental
democratic threat for which he says nothing can be done.

The Polity
Kennedy’s opinion paints an apolitical vision of democracy, far
removed from the founding vision. We are a nation of consum-
 citi zens united 235

ers of information, which corporations supply. Without corpo-

rate speech, “the electorate [has been] deprived of information,
knowledge and opinion vital to its function.” The government has
prevented corporations’ “voices and viewpoints from reaching
the public and advising voters on which persons or entities are
hostile to their interests.” Corporations must not be prevented
“from presenting both facts and opinions to the public.” Accord-
ing to Kennedy (again quoting his dissent in McConnell) the ex-
tensive “censorship” of campaign restrictions has “muffle[d] the
voices that best represent the most significant segments of the
economy.”
In this worldview, associational life happens through the cor-
porate form. Corporations are “association[s] of individuals in a
business corporation”; corporations are “disfavored associations
of citizens.” The political life of citizens in his vision exists through
and because of corporations. He counted 5.8 million for-profit
corporations in 2006, worrying that all of their speech could be
banned. PACs, the method through which corporations could
raise and spend political money under Congress’s regime, were
too demanding to satisfy the corporate associational need to
speak. The reporting and administration of PACs led to “oner-
ous restrictions,” such that “a corporation may not be able to
establish a PAC in time to make its views known regarding can-
didates and issues in a current campaign.” Corporate electoral
speech is endowed with positive traits: “On certain topics cor-
porations may possess valuable expertise, leaving them the best
equipped to point out errors or fallacies in speech of all sorts,
including the speech of candidates and elected officials.”
Ironically, citizens qua citizens, instead of citizens qua Citizens
United, are hard to find in Citizens United. There are “associations
236 corruption in america

of citizens” (corporations) and “citizens and shareholders,” a

phrase equating citizens with investors. Citizens as civic par-
ticipants are passive. They are twice mentioned (once in a quote
from previous cases) to support Kennedy’s argument that “speech
is an essential mechanism of democracy,” a paragraph that trans-
forms the First Amendment from a personal right lodged in an
individual speaker to a disembodied right that is located in
speech itself, instead of the speaker. The law “prohibits Congress
from fining or jailing citizens, or associations of citizens, for sim-
ply engaging in political speech.” The clear goal of the sentence is
to equate individuals (citizens) with corporations (associations
of citizens). And at the end of the opinion, the Court uses this
quote, “Citizens must be free to use new forms, and new forums,
for the expression of ideas,” as an explanation for why corpora-
tions must have unlimited rights to spend money.
Citizen was a hotly debated word in early America. Histo-
rian John Murrin points out that the idea of ruler and ruled was
so deeply entrenched in the thinking of political elites that after
the Constitutional Convention it was hard to shake. Some
Americans still used the word subjects instead of citizens for de-
cades.5 George Washington was affronted when he was criti-
cized between elections because he thought of elections as mech-
anisms for creating rulers who governed subjects, as opposed to
periodic affairs in which representatives rose to positions of
power but stayed in constant, dialectical relationship with the
sovereign public.6
The word citizen suggests, in its very invocation, a public role
for the person. It implies that a person can take responsibility
for a larger political community. In the theory that animated
the founding era, the citizen is the essential unit of a political
 citi zens united 237

society. In classic liberal theory that dominated the late nine-

teenth and early twentieth centuries, the citizen was also cen-
tral in political life.7 The obligations of public-dealing at least in
public affairs remained. As the lobbying cases show, various ob-
ligations attended entering the public sphere. Throughout our
history, a citizen may not, ethically, use government to better
her own position if she knows it harms others. She might sup-
port laws that help her, but only if she also believes they will
help the public as a whole.
In Citizens United, that kind of citizen is gone. If Kennedy took
a traditional understanding of corruption, he might be concerned
for the corruption of the citizens who were using the corporate
form to influence politics, and the way in which unlimited corpo-
rate speech might exacerbate lobbying culture. Instead, the citizen
becomes a consumer of information, the corporation becomes an
“association of individuals,” and corruption becomes democratic
responsiveness. It is a remarkable conceptual triple Lutz.
To be fair, there are serious and difficult issues that Citizens
United raised, particularly in an Internet era where it is difficult
to distinguish between corporations that own “the press” and
corporations that make independent expenditures. I do not
agree with Justice Kennedy’s resolution of those issues, but his
misreading was at least partly provoked by living in a time where
the fundamental distinction between the corporation and the
press, for instance, is being erased. However, the replacement of
corruption with a quid pro quo formulation is simply untenable
as a matter of legal history. Citizens United was a revolution in
political theory, disguised as a definitional disagreement.
The balance of this chapter discusses two parents of the
decision—the narrowing of corruption to be quid pro quo and
238 corruption in america

the tendency to view all political questions solely through the

lens of the First Amendment.

The Quid Pro Quo Mistake

According to Justice Kennedy, corruption isn’t corruption if
there isn’t a quid pro quo. In Citizens United he used the phrase
quid pro quo fourteen times. Inasmuch as the government had
an interest in protecting against corruption, it was an interest in
protecting against quid pro quo corruption. He relied on other
justices who have said similar things. Justice Clarence Thomas
long argued in dissents that corruption meant “financial quid
pro quo: dollars for political favors.”8 In 2000 Scalia scolded
others for trying to separate “ ‘corruption’ from its quid pro quo
roots.”9 In dissent in 2002, Justice Kennedy had argued that “the
corruption interest only justifies regulating candidates’ and of-
ficeholders’ receipt of what we can call the ‘quids’ in the quid pro
quo formulation.”10 The phrase quid pro quo shows up in Buckley
but does not define corruption. Then in 2007 the Court started
referring to quid pro quo as the meaning of corruption. Chief
Justice John Roberts’s opinion for the Supreme Court in Wis-
consin Right to Life announced that “issue ads like WRTL’s are
not equivalent to contributions and the quid-pro-quo corruption
interest cannot justify regulating them.” Inveighing against the
argument that corruption means anything but quid pro quo, he
became exasperated: “Enough is enough.”
Such impatience is surprising if one looks either at history,
or criminal bribery law, or constitutional corruption law. While
some corruption-related statutes have been determined to re-
quire quid pro quo and a handful of states in a handful of cases
 citi zens united 239

have required that a prosecutor prove a connection with an

identifiable act to satisfy a bribery statute, over most of Ameri-
can history there is no deep association between corruption and
either the phrase quid pro quo or the importance of a specific,
identifiable act. Neither bribery nor conflict-of-interest crimes
require specificity or explicitness for conviction. Particularized
exchange may be part of some of the law but it is far from the
essence of the law.
Quid pro quo comes from the Latin, indicating “this for
that.” Its historical usage is in contracts. It refers, in that con-
text, to the idea of relatively equal exchange between parties. In
the absence of relative equality—quid pro quo—a court might
question whether there was an actual contract. It was casually
and colloquially used in relationship to corruption since the
nineteenth century at least, where writers would sometimes re-
fer to the quid pro quo received by bribed voters or elected offi-
cials. In those situations, quid pro quo stood in for some kind of
exchange, as opposed to a gift. The use of quid pro quo as a legal
term in relation to corruption does not appear until the 1970s in
relationship to bribery or corruption law.
Prior to Buckley, quid pro quo was not part of any definition
of corruption. The phrase appeared less than one hundred
times in all bribery and extortion cases, anywhere, before
1976, and less than ten times before 1950. Most of those cases
were about witness immunity deals (was there a quid pro
quo?) or the meaning of quid pro quo in the classic “equality of
exchange” sense. In the 1970s there were a handful of cases in
which the language of quid pro quo showed up in bribery dis-
cussions, but not as one of the elements or an essential feature
of bribery.
240 corruption in america

Buckley mentions quid pro quo, and then courts started as-
sociating it with criminal law definitions. Even since Buckley, its
use is inconsistent, and most states have not adopted a quid pro
quo requirement for any of their bribery laws. In New York, the
first mention of quid quo pro in the bribery context was in
1972,11 and it has been mentioned only seven times after that.
When the elements of bribery are listed, quid pro quo is not one
of them. Florida recently concluded that its statute includes no
quid pro quo requirement.12 The Arizona bribery statute does
not incorporate an explicit quid pro quo requirement.13 Ohio
does not use quid pro quo, but measures by “improper influ-
ence.”14 In Alabama, corrupt intent is the key and is measured
by the jury.15 Michigan’s statutes that use “corrupt” do not have a
quid pro quo requirement.16 Of course, some state courts—like
Indiana, Texas, and Massachusetts—have found that the bribery
statute does require quid pro quo.17
In the minority of jurisdictions that use quid pro quo there is no
agreement about what it means. As the Sixth Circuit quipped, just
before citing The Godfather: “Not all quid pro quos are made of the
same stuff.”18 Quid pro quo sometimes means the solicitation or
offer of something specific in exchange for some specific govern-
mental action. It sometimes means an agreement without a partic-
ular governmental action identified. It sometimes requires a spo-
ken or written request, sometimes something less, when the
potential bribe is a campaign contribution. Sometimes quid pro
quo means intent to influence unspecified governmental activity
“as opportunities arise.”19 As we have seen, quid pro quo also means
something different in campaign finance situations, because of the
Supreme Court’s own jurisprudence limiting the application of
general bribery and extortion laws to campaign activity.
 citi zens united 241

The phrase quid pro quo, in short, seems related to ideas about
specificity and explicitness but does not actually stand for a
completely coherent concept. It certainly does not refer to a
historical one. But quid pro quo is a new phrase, both in rela-
tion to corruption laws and in relation to bribery laws. When
Justice Scalia refers to the “quid pro quo roots” of corruption,
he means, in fact, a rootless phrase, or a phrase rooted in an-
other area of law.
This uprooting has real consequences. It is now legal to spend
as much money as possible to influence politics except in two
ways: First, you cannot directly offer an exchange of money for
official action. Second, you must abide by direct campaign con-
tribution limits. These remaining limits are arbitrary. There is
not a deep logic to them.

A Free Speech (Only) Constitution

While corruption has narrowed to quid pro quo, free speech
has expanded to encompass all money spent on communica-
tion. A full discussion of the First Amendment is beyond the
scope of this book, but a brief discussion of the enlargement of
the First Amendment doctrine is necessary to understand Citi-
zens United. In Citizens United, Kennedy’s version of the First
Amendment is that the Court “must give the benefit of any doubt
to protecting rather than stifling speech.” The absolute language
of “any doubt” confers a veto-providing authority to First
Amendment concerns. While the opinion talks a good deal
about political speech, it barely mentions politics and only once
discusses the integrity of the political process. Despite the fact
that the case in front of the Court concerned a bill passed by a
242 corruption in america

majority of Congress after a huge national public debate about

the nature of money and politics and their relationship in our
country, the opinion treats the question as if it involves only the
First Amendment, not politics more broadly.
Political speech appears disembodied in the opinion, without
a deep discussion of the political structures within which that
speech occurs. Justice Kennedy describes a world in which po-
litical rights lie in “they who speak,” instead of rights and re-
sponsibilities lying in they who are citizens. Corporations gain
rights not because they are corporations but because they gen-
erate speech. Speech generation is the constitutional value, leav-
ing little room for other values like equality or anticorruption
concerns. How did this happen? The First Amendment, designed
to protect dissent, has become the tiny choke point through
which all questions of political philosophy must pass.
The modern First Amendment had its seeds in the convic-
tions of anarchists and activists around World War I. Justices
Brandeis and Holmes dissented in several of these cases, argu-
ing for a dissent-based vision for the First Amendment.20 Their
vision was gradually adopted in what Stewart Jay calls the “cre-
ation” of the First Amendment.21 In 1941, in Bridges v. Califor-
nia, Justice Black both explicitly Americanized the First
Amendment (drawing a clear line between American and Brit-
ish notions of freedom) and placed the First Amendment at the
center of political theory: “These are not academic debating
points or technical niceties. Those who have gone before us have
admonished us ‘that in a free representative government noth-
ing is more fundamental than the right of the people through
their appointed servants to govern themselves in accordance
with their own will.’ ”22 While another thirty years passed be-
 citi zens united 243

fore the First Amendment was “coronat[ed]” in Brandenberg v.

Ohio, the groundwork of the new understanding lies in the rhet-
oric of this period.23 The First Amendment came to be a point
of consensus: liberals turned to it during McCarthyism and
Vietnam, and conservatives used it to differentiate America from
the communist countries during the Cold War.
The First Amendment represents vitally important values.
But in the modern free speech era, questions of politics and self-
government are all referred first to the First Amendment, and
larger questions of what constitutes a republican form of gov-
ernment, the explicit political philosophy clause in the Consti-
tution, come second. As Jack Balkin wrote in 1990, “freedom of
speech is the paradigmatic liberty through which one partici-
pates in democracy in the pluralist conception. Its constitu-
tional instantiation, the First Amendment, becomes identified
with democratic pluralism itself.”24 Owen Fiss wrote in 1991:
“There was a sense in the body politic that the First Amend-
ment is . . . rather an organizing principle of society, central to
our self-understanding as a nation.”25 While the Court has
never technically held that the First Amendment is the first
among equals, its valorization has led scholars and judges to en-
gage questions of political theory on the battlefield of the free
speech clause even when the core concerns are equality or
corruption.
This broad consensus has led to reframing debates about de-
mocracy inside debates about the meaning of the First Amend-
ment. All constitutional debates about money and politics are
played out within the arena conscribed by the First Amend-
ment, suggesting that all central questions of political theory
can be resolved there. Justice Cardozo came to call the First
244 corruption in america

Amendment “the matrix, the indispensable condition, of nearly

every other form of freedom,” in a phrase that exemplifies mod-
ern thinking on the First Amendment.26 As we have seen, in
the nineteenth century the freedom that might have played this
vital role would be freedom from corruption. But perhaps, more
importantly, there should be no matrix. There are simply im-
portant values, each to be weighed against the other.

• • •

Citizens United changed the culture at the same time that it

changed the law. It reframed that which was unpatriotic and
named it patriotic. Before Citizens United, corporate or individ-
ual money could be spent with a good enough lawyer. But after
Citizens United v. FEC, unlimited corporate money spent with
intent to influence was named, by the U.S. Supreme Court, in-
dispensable to the American political conversation.
The question “What does corruption mean?” can, at times,
sound as amusing and pleasantly philosophical—and perhaps as
arcane—as “Whether a Million of Angels may not fit upon a
needle’s point?”27 After Citizens United, the difference that one
definition of one word makes became clear. Kennedy’s definition
of corruption leads to unlimited corporate spending; the tradi-
tional understanding of corruption allows Congress to ban it.
John Adams, in correspondence to a friend about the snuff
boxes that everyone was receiving from the French government,
wrote that “when I was young and addicted to reading I had
heard about dancing upon the points of metaphysical needles;
but by mixing in the world I had found the points of political
needles finer and sharper than the metaphysical ones.”28
 citi zens united 245

Citizens United’s metaphysical needles have led, as I discuss

later on, to sharp real-world swords. After Citizens United, there
is only one kind of thing that is clearly corrupt: openly asking
for a deal in exchange for a specific government action. The vast
range of inappropriate dependencies and self-serving behavior
that made up the web of the world of corruption for the found-
ers is gone. It is not merely that the anticorruption value is out-
weighed by other values—the due process clause, the First
Amendment, and statutory interpretation—it is that it no lon-
ger exists. The corruption against which the framers said they
must provide, lest “our government will soon be at an end”—that
is not a value anymore.29
 chapter fourteen

j
The New Snuff Boxes

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 re-
aligning the moral obligations of our representatives.

The New Placemen

Recall how the king and his promises of well-paid places, dan-
gled in front of parliamentarians, corrupted government as rep-
resentatives served the king instead of the public. Conventional
framing-era wisdom held that the “principal source of corrup-
tion in representatives, is the hopes and expectations of offices
and emoluments.”2 What is often called the revolving door
plays a similar role in the obligations of staffers and members of
Congress. In 1970 only 3 percent of senators and congresspeople
leaving office became lobbyists; now over 50 percent do, and the
numbers are growing. The likely career path of a congressperson
is to become a lobbyist. According to former lobbyist Jack
 the new snuff boxes 247

Abramoff, a job offer is one of the most effective ways to influ-

ence legislation. He has explained how when they were working
with a critical decision maker—perhaps a staffer—in Congress,

I would say or my staff would say to him or her at some

point, “You know, when you’re done working on the Hill,
we’d very much like you to consider coming to work for
us.” Now the moment I said that to them or any of our
staff said that to ’em, that was it. We owned them.3

Lobbyists’ use of places in their own future firms has bal-

looned in recent years, making the imagined future self one of
the most venal and obvious forms of non–quid pro quo corrup-
tion in our current politics. Jefferson said, “Whenever a man
has cast a longing eye on offices, a rottenness begins in his con-
duct.”4 Congress is now dominated by people who are casting a
longing eye on highly paid lobbying jobs. The revolving door
corrupts the congressperson before leaving office, and it corrupts
the government after the member leaves. A principal source of
corruption in representatives and staffers is the hope and expec-
tation of lobbying firm jobs and other benefits. “A man takes a
seat in parliament to get an office for himself or friends, or both;
and this is the great source from which flows its great venality
and corruption,” Pierce Butler said.5 To paraphrase Butler, a man
runs for office to get a lobbyist job for himself—and this is the
great source from which flows corruption.
Lobbying also undermines political culture and civic virtues
in more subtle ways. In the past, as I explored earlier in the book,
people assumed that lobbying would always be illegal, or at least
looked skeptically upon by courts. Senator Hugo Black said in
248 corruption in america

1935, “Contrary to tradition, against the public morals, and hos-

tile to good government, the lobby has reached such a position
of power that it threatens government itself. . . . You, the people
of the United States, will not permit it to destroy you. You will
destroy it.”6 Black’s outburst—coming just at the moment that
lobbying law was vanishing—represents the traditional American
theory of the dangers of lobbying. Taking a job as a lobbyist in
most cases requires one to separate personal political reasoning—
one of the jobs that a citizen has by virtue of public sovereignty—
into something that can be bought and sold. There are many
instances in which a lobbyist actually shares the ideology of her
client. But the growth of mass lobbying depends upon citizens
commoditizing their ideology, selling their civic privileges to
someone else. It takes intimate friendships and deep bonds of
trust and turns them into marketable items. You are worth
more, on the lobbying market, if the people you drink and read
poetry with are powerful. By separating these two essential hu-
man features—reason and friendship—from a basic presump-
tion of integrity, a broad culture of lobbying doesn’t just change
politics, it changes who we are.
To be fair, it is impossible to imagine a world where this kind
of commodification of love and reason never happens. There
will always be hucksters, and each of us is a huckster at times.
But institutional choices make the commodification of the po-
litical person more or less likely. When lobbying becomes a cel-
ebrated and widespread job, instead of an odd job, we—like the
framers—have reason for concern.
Even those lawmakers and staffers who do not end up taking
a lobby firm’s place are surrounded by private instead of public
interest rhetoric and language. In the social community domi-
 the new snuff boxes 249

nated by lobbyists, citizens’ interests are private either to them-

selves or their clients—the grammar of that world (private inter-
est maximization) bleeds into and becomes the grammar of the
political universe. At times, lobbying legitimates a kind of rou-
tine sophistry and a casual approach toward public argument. It
leads people to mistrust the sincerity of public arguments and
weakens their own sense of obligation to the public good.

The New Foreign Gifts

The placemen are not the only ghosts of England that have re-
turned to haunt us. Lobbyists—and donors—are part of creat-
ing what Lawrence Lessig calls—wryly—a “gift economy,” an
economy where gifts, given without particular legislative goals,
become the vessels through which power is traded. The gifts are
traded in a pattern that takes many forms but follows the basic
contours of the West Virginia case, McCormick.
There may be many supporting players, but the basic comedy
has three actors. The first is an elected official like McCormick,
who might have a natural affinity for an issue. In that case, it was
health care. The second is a lobbyist, eager for work. And third,
there is a group of people with a financial interest in either pass-
ing or blocking a law. In the West Virginia instance, it was the
“Coalfield Health Care Association.” The association pays the
lobbyist, and the lobbyist tells everyone involved what gifts to
give one another. The foreign doctors could not take $5,000 to
McCormick and say, “if we give you this money, will you push
through the legislation?” But, using the lobbyist as an interme-
diary, they can do essentially the same thing—if they call it a
gift. They can give far more than a few thousand dollars. And
250 corruption in america

McCormick cannot say to the doctors, “I will give you legisla-

tion if you pay me.” But using the lobbyist as a source of infor-
mation about what gifts the association wants, he can do essen-
tially the same thing.
This tableau would not be so troubling if the forces behind the
lobbyists were truly diverse and broadly based. It would repre-
sent corruption in the traditional sense, but at least public goods
would be somewhat widely shared. But the founders’ insight is
that corruption and inequality are related because wealth be-
gets more wealth. They might not be surprised that the modern
gift economy looks something like the limited number of roy-
alty of the founding era. The number of truly influential people
in America is small. Tens of thousands of lobbyists work for a
relatively small number of companies, and while trade associa-
tions sometimes purport to represent small and medium busi-
ness owners, most powerful trade associations are themselves
representative of just a few companies. This is because most
companies don’t lobby; usually only big companies do.7 These
gift givers are not the king of France but they are foreign gift-
givers nonetheless, the kind of gift givers that the framers of the
Constitution worried about.
The framers did not ban “explicit bribes” between kings and
officials, just gifts. Even then, it wasn’t easy; it ran up against
international political culture. But they understood that gifts
can be as bad as bribes—sometimes worse than bribes—in cre-
ating obligations. Legal theorist Dennis Thompson explains that
there is

no good reason to believe that connections that are proxi-

mate and explicit are any more corrupt than connections
 the new snuff boxes 251

that are indirect and implicit. The former may be only the
more detectable, not necessarily the more deliberate or
damaging, form of corruption. Corruption that works
through patterns of conduct, institutional routines, and
informal norms may leave fewer footprints but more wreck-
age in its path.8

The current U.S. political economy is an economy that values

patterns of conduct involving freely given gifts and has left
this kind of wreckage. If we go back to the case of McCormick
and the lobbyist, a central facet of its corruption is the way in
which the gift embeds itself in something that resembles a real
relationship. There is a reason for that. The more these sorts of
interactions resemble relationships, the easier communication
becomes. Everyone in the dynamic has an interest in making it
feel more like an authentic connection and less like a transaction.
Or, to use the language of the forgotten lobbying cases, everyone
has an interest in making it feel more like personal influence.
At the same time, no one questions, or has to question, that the
exchange of gifts creates interpersonal dependencies.
Public officials must not tell lobbyists that they need campaign
contributions because everyone knows they do. The smallest bit
of spadework would illuminate how much money a politician
needs. This two-step interaction is called by many people, in-
cluding former president Jimmy Carter, “legal bribery.”9 Whether
or not it ought to be punished as bribery, it is undoubtedly
corruption as understood by our founders. The lobbyist in the
McCormick trial testified that he did not find the interactions
troubling because “it’s not an uncommon thing when candi-
dates are raising money.”10 “When” candidates are raising
252 corruption in america

money was once an incidental part of the job. Since the 1990s,
however, raising money is the primary job of federal officials:
they spend between 30 and 70 percent of their time every week
raising money.11
If the CEO of a corporation came to a senator and said, “I
will give you $1 million to reverse the role of two priorities on
your agenda,” that would be an illegal bribe. Instead, the corpo-
ration pays a lobbyist $1 million to figure out the set of gifts and
relationships that will lead to something it wants (or in this case
doesn’t want—getting taken off the senator’s agenda). The in-
terplay presents the same issues as the moral temptations posed
by foreign gifts that the framers imagined. From the perspec-
tive of each of the parties, a changed agenda seems simply like a
genuine need getting met and a genuine appreciation being ex-
pressed. To return to West Virginia, McCormick already cared
about the lack of medical services, and he met someone who
had an idea that related to it. The lobbyist was happy to get paid
and to communicate ideas and relevant information about the
doctors to McCormick. And the doctors were genuinely sup-
portive of McCormick and wanted him to get reelected. They
wanted him to know that they supported him because they knew
he was more likely to work on their bill, instead of another, if
they gave him money. But they also felt good about him and felt
personal warmth and generosity toward him after he passed
the bill.
After each positive interaction, everyone involved will look
for more ways to connect. McCormick—or his campaign
manager—knew the foreign doctors had money, and he needed
money to get reelected. The doctors felt their money made a big
difference. And the lobbyist was happy to facilitate and get
 the new snuff boxes 253

paid, so he would be looking for more ways to connect the two

parties.
The key takeaway here—and of this book—is that the play of
gifts is not the dynamic the framers wanted. Had McCormick
been out in his district, talking to voters, he would have heard
many things that people were concerned about: credit card in-
terest rates, gas prices, schools, violence, dental services, doctor
shortages, and twenty other things. Without the interaction
with the lobbyist and the potential source of campaign funds,
McCormick would have to figure out what, in general, the peo-
ple in his district most wanted. Instead, the possibility of cam-
paign money put the foreign doctors on top of his agenda.
The gift economy enables a sophisticated masking of the quid
pro quo economy, so sophisticated that even the people inside it
may sometimes feel it is a culture of goodwill and not the auc-
tioning off of the public welfare. Quids and quos are not named,
but the general obligations are broadly understood, and failure
to conform to the expectations of the gift economy leads to gifts
drying up.

The New Rotten Boroughs

When these “gifts” are powerful enough, they can lead to repre-
sentatives working on issues that are not, under any theory of
representation, in the interests of the constituents. The sole rea-
son for granting some earmarks is that the candidate or elected
official needs campaign money. For instance, let us imagine that
McCormick has risen to be a U.S. senator and adds $400,000
to a Senate bill for the building of a medical facility where
none was needed. He might do this because he expects that
254 corruption in america

such benevolence will lead to between $25,000 and $100,000 in

campaign contributions, and this expectation might flow from
the fact that the lobbyist for Coalfield told him that they would
like a medical facility built. In this exchange, all three actors are
happy: McCormick gets $25,000 in campaign contributions,
the lobbyist gets a $10,000 fee, and the Coalition gets $400,000.
So long as no one explicitly conditions the official actions on the
contributions—so long as there is another plausible explanation
for all the behavior—no one will be threatened with criminal
sanctions. The earmark may sound good and be aligned with
McCormick’s core ideals—a medical facility—but it is not the
result of any kind of representative decision-making process.
The check against this kind of corruption is supposed to be
elections. As Madison said, “The security intended to the gen-
eral liberty in the confederation consists in the frequent election,
and in the rotation of the members of Congress.”12 Regular elec-
tions, in districts with regular censuses taken, would ensure that
members of Congress would be “dependent upon the people
alone.” In the notes of the Constitutional Convention, the most
significant structural protection against corruption was the sim-
plest: regular elections of representatives living in the district in
which they live. The census, elections, and residency require-
ments were the structural protections against wealthy outsiders
coming into a district and buying political power. A rotten bor-
ough was, as I’ve mentioned earlier, a district where there were
just a few people, but they had the same representation as a bor-
ough with fifty times as many people.
If the election system were designed to make representatives
work for the people, then we would not have to worry about the
 the new snuff boxes 255

gift system described above. People would vote out politicians

whose agenda was corrupted and they would vote in politicians
whose agenda reflected their own. But the way the Supreme
Court has structured politics, the gift economy is not optional.
Ever since the Supreme Court struck down expenditure limits
in Buckley, it has become mandatory. With unlimited spending,
federal candidates need to spend 30 to 70 percent of their time
raising money in gift increments of $1,000 to $2,600. To secure
these gifts, the candidate needs to find the gifts that the gift giv-
ers want so that she can tell them, when she calls, that she sup-
ports free trade, or strong copyright, and can have a better chance
of getting a contribution. The set of people who have $1,000 to
$2,000 in disposable income for any individual campaign is tiny.
So, in effect, the Court has created the country as one large
modern set of rotten boroughs. A few people represent a district,
but the rest are all gravestones—at least as far as the candidate is
concerned. And money buys the outcome. The private interests,
like the agents of the English king, corrupt one of the finest fab-
rics ever built. At a formal level, everyone gets a vote. But at a
formal level, everyone got a vote for Parliament, too. At the level
of power, fewer than 1 percent of people get to choose whom ev-
eryone else can vote for.
People who want to be ethical still get caught up in a man-
datory gift economy like the one I just described. There is
simply no alternative way to compete. If contribution limits
were allowed, or if the federal government passed public
funding of elections, candidates for office would be respon-
sive to a broader public and would have more freedom to be
uncorrupted.
256 corruption in america

The New Yazooism

As the framers understood, there is no natural state of politics
and no natural level to which political spending will rise: struc-
tures, institutions, and laws either enable or disable the pur-
chase of influence. Political spending rose after Citizens United.
In 2012, for instance, outside spending topped $1 billion. In
some political races, outside spending was greater than candi-
date and party spending. Within the decade in which I write
this, unlimited outside spending by individuals and groups will
likely become greater than political party and candidate spend-
ing. As of 2012, one ten-thousandth of the U.S. population was
responsible for 25 percent of all campaign funding. And after
Citizens United, one of the available “gifts” that companies can
give is an independent expenditure.13
Congress has tried many different ways to limit the corrupt-
ing power of these interactions, and this Supreme Court has
banned all of them. Federal bribery laws once could deter this
behavior, but we know from McCormick that he cannot be
charged with federal bribery, because of the absence of any ex-
plicit agreement. Candidate spending limits once could have
prevented this behavior because McCormick would not need
the money if the amount he needed to raise was limited, but
that was struck down as unconstitutional in Buckley. Outside
spending bans at least limited the amount of pressure that the
foreign doctors could bring to bear on McCormick. After Citi-
zens United, there is no limit on how much money groups like
the Coalfield Health Care Association can wield, so long as it is
not technically spent in coordination with a candidate.
John Adams wrote to Thomas Jefferson, wondering about
the problem of money and politics: “Will you tell me how to
 the new snuff boxes 257

prevent riches from becoming the effects of temperance and in-

dustry? Will you tell me how to prevent luxury from producing
effeminacy, intoxication, extravagance, vice and folly? . . . I be-
lieve no effort in favor is lost.” Adams did not claim to have any
particular answer. Instead, the commitment he made is that “no
effort in favor is lost.”14 It is always worth trying, experimenting,
working to stave off corruption. In the past forty years, however,
the Court has cut off those efforts in favor. It is not that it is easy
to stop corruption, but that it is impossible without the possi-
bility of constant, structural experiment.
In 2006 a divided Court struck down contribution limits for
the first time, after decades of deference to democratic judg-
ment.15 Vermont had passed contribution limits of $400 for
statewide offices, $300 for state senators, and $200 for state rep-
resentatives. Vermont wanted to limit the corruption that arises
when candidates spend all their time fund-raising from the people
who can give more than $200 or $400 in campaign contribu-
tions. The corruption justification for the popular law was not
honored. Justice Stephen Breyer, writing for the majority, made
this extraordinary statement: “We see no alternative to the ex-
ercise of independent judicial judgment” in determining the ap-
propriateness of contribution limits. There is something deeply
antidemocratic about his claim. What deep intellectual currents
explain how the Court came to feel boxed into a bizarre and
ahistorical theory? Does the narrowing of corruption reflect a
contempt for democratic politics itself?
 chapter fifteen

j
Facts in Exile, Complacency,
and Disdain

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 con-
tributions might work, and what would happen were it struck
down. While some of his colleagues asked for evidence and won-
dered 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 my second point. Really, this is—
justice scalia: No, no, I agree. I agree—I agree that—
that this campaign finance law is so intricate that I can’t
figure it out. It might have been nice to have the, you
know, the lower court tell me what the law is. But we don’t
normally require a record to decide questions of law.
 facts in exile, complacency, and disdain 259

One might dismiss this as an off hand comment, but it re-

flects a broader attitude toward the job of the Supreme Court.
A majority of the Supreme Court repeatedly chooses to review
political law cases without developing a factually grounded un-
derstanding of how influence works. The relevance of facts is
hotly contested. Dissenting justices—including Breyer, Ste-
vens, Souter, and Sotomayor—have argued that context, his-
tory, and evidence are important in assessing the constitutional
viability of anti-corruption laws. Corruption, in the dissenters’
fact-based approach, is arguably like the most famous of diffi-
cult constitutional concepts, obscenity: you know it when you
see it. But unlike obscenity, in order to see it, you need more
than a snapshot of a centerfold: you need an understanding of
politics.
This chapter explores features of the modern Supreme Court
that may explain the recent change in the treatment of corrup-
tion. I am interested in the judicial habits and deeper belief
systems that might lead justices to understand corruption in a
particular way. I suggest several possible causes: a conflict be-
tween law and economics theory of the person and the historical
meaning of corruption, a complacency about democratic collapse,
and an unspoken disdain for democratic politics. Finally, facts in
exile, a disconnect from the experience of politics, may provide
a partial explanation. The less one understands how politics
works, the less troubling campaign expenditures and contribu-
tions may seem.
Citizens United was decided in the context of a “gaping empiri-
cal hole” (Justice Stevens’s term). In that case, the majority de-
cided that independent corporate spending was not corrupting
as a matter of law, with no evidence or apparent curiosity about
260 corruption in america

political facts. The entire opinion was done, as Justice Stevens

wrote in dissent, “on the basis of pure speculation”:

In this case, the record is not simply incomplete or unsat-

isfactory; it is nonexistent. Congress crafted BCRA in re-
sponse to a virtual mountain of research on the corruption
that previous legislation had failed to avert. The Court
now negates Congress’ efforts without a shred of evidence
on how §203 or its state-law counterparts have been affect-
ing any entity other than Citizens United.

The majority’s lack of interest in developing a large record may

find its roots in the highly formal, abstract intellectual tradition
that is often called the law and economics movement. Law and
economics scholars prefer models, instead of experience, to un-
derstand institutions. The legal impact of this movement, which
began in the late 1950s and gained force throughout the 1960s
and 1970s, is well documented. Five members of the 2014 Su-
preme Court—Antonin Scalia, John Roberts, Clarence Thomas,
Anthony Kennedy, and Samuel Alito—have had ties to the Fed-
eralist Society, a legal association that advocates law and eco-
nomics principles. Some of the orthodoxies of the law and eco-
nomics ideology include that people are highly mechanical and
selfish rational maximizers of their own welfare, and that the
public good is served by efficiency.
Law and economics may also have influenced current corrup-
tion thinking another way. One model that law and economics
scholars regularly use is the selfish man. They don’t claim that
people are always self-interested, and can’t care for others, but
they default to a presumption of egoism. Citizens are modeled
 facts in exile, complacency, and disdain 261

as self-interest maximizing, and people are primarily conceived

of as consumers instead of citizens. This part of the law and
economics model undermines the concept of corruption; exces-
sive self-interest is an idea that sounds incoherent if people are
always self-interested. To use the language of corruption is ei-
ther to accept the possibility of good or bad “intent” in influence
seeking, to have a vision of good politics that is corrupted, or to
think that corruption has no inherent meaning separate from
criminal law statutes.
Scholars who accept the self-interest assumption have not
been successful at explaining what political corruption means.
For instance, Susan Rose-Ackerman has been one of the most
influential scholars of corruption in the last several decades.
Her concern about corruption has led her to carefully examine
strategies for limiting it, and her contributions to the field are
enormous. Her book Corruption and Government: Causes, Con-
sequences, and Reform, and a series of articles that have followed,
bring what she calls an “economic” approach to the study of cor-
ruption. She represents and embodies the recent scholarly ef-
fort to strip corruption of ideals of civic virtue and transform
corruption to make it compatible with law and economics views
about human nature.
Rose-Ackerman begins her major book on corruption with
this claim about human nature: “There is one human motivator
that is both universal and central to explaining the divergent ex-
periences of different countries. That motivator is self-interest,
including an interest in the well-being of one’s family and peer
group.”2 She then hints at a definition of corruption that indi-
cates limited productivity. Corruption indicates the failure to
leverage self-interest for productive purposes. In other words,
262 corruption in america

“we can go a good way toward understanding development

failures by understanding how self-interest is managed or
mismanaged.”
Rose-Ackerman goes to great lengths to try not to use moral
language or to examine the intent of the individuals involved,
but she then argues that the problem with bribes is that they
encourage “unfair” allocation of resources, begging the question
of the meaning of unfair. She also argues that organized crime
is “unscrupulous.” She also tries not to examine intent but then
argues that “payments are corrupt if they are illegally made to
public agents with the goal of obtaining a benefit or avoiding a
cost.” Elsewhere she defines corruption as the “misuse of public
office for private gain,” referring to local norms for what consti-
tutes misuse.3 One can see in Rose-Ackerman the conflict with
the language itself. While attempting to stay distant, positivis-
tic, and cool, she cannot help but use either moral language or
language that looks at intent, or collapse back into pure positiv-
ism. Her third option, defining corruption in terms of social
costs and inefficiencies, gives no way to distinguish corruption
from any other inefficient or socially harmful activity.
The reason Rose-Ackerman struggles, I believe, is that the
starting point is fundamentally flawed. The project is conceptu-
ally impossible, because it attempts to combine two opposing
ideologies. The ambition is understandable: Rose-Ackerman is
less interested in developing a theory of corruption than explain-
ing when it happens. But she wants to work using the concept of
corruption (a central concept in political grammar) in terms of a
particular strand of economics (a central concept in the academic
world in which she lives). To deny corruption as a concept,
openly and baldly, would be to deny the grammar of her politi-
 facts in exile, complacency, and disdain 263

cal community. Yet to deny the positive law structure, and the
premise of the self-interested man or woman, would be to deny
the grammar of her academic community. The failure of the law
and economics movement to provide a theory of corruption that
makes sense in modern democracy is a fatal failure, a failure that
shows the limits of the theory itself.
Her ambition reflects a widespread effort to replace corrup-
tion’s historical association with private interest with law and
economics’ deep association with efficiency, while still using the
superficial language of corruption. The problem is that it be-
comes very hard to talk about corruption without talking about
virtue or becoming circular. This view about what constitutes a
person—and what constitutes corruption—has deep roots in an
older ideological fight, as I discussed earlier, the fight between
Montesquieu and Hobbes.
As you will recall, according to Hobbes’s theory of language,
the word corruption refers to nothing. He had little patience for
words like good, bad, or covetous, which, to him, just meant “what
I like,” and “what I don’t like.” He believed that whoever governs
also governs language, so the idea of “injustice” does not make
sense, because the lawgiver would not ever accuse himself, and
the lawgiver would not create a word for others to accuse him
with. The political theorist J. Peter Euben contrasted Hobbes’s
and Aristotle’s ideas about corruption in a lovely essay about the
history of the term.4 He argued that Hobbes’s view

is less a direct refutation of Aristotle than part of a theory

in which Aristotle’s categories and arguments make no
sense. Once men are seen as irremediably egoistic subjects
rather than potentially activist citizens, as sharing a nature
264 corruption in america

which fragments them rather than a history which unites

them, as requiring an absolutely sovereign ruler rather
than a sharing of power, we confront a political and con-
ceptual universe in which republican political theory is
irrelevant.5

The same may be true for some of the modern justices’ views
of corruption. It may not be so much that they disagree with
the historical meaning but that it simply does not make sense
to them.

Complacency
Given the selfish man model that undergirds much of modern
thinking, you might expect the majority of the Supreme Court
to have a dismal view of society. But instead, the 2014 Court is
striking for its lack of concern about the threat of political col-
lapse. Instead of a Hobbesian battle for food and shelter and
power, the government is described as largely, if not entirely,
static in the corruption cases. One gets the sense that no theory
of government is needed because the democratic state is like
air—necessary, a part of life itself, unavoidable in the best sense,
invisible because so central. Their thin descriptions of govern-
ment make sense if problems of political organization are not
serious ones. Democracy may be, in their minds, fundamentally
solved and stable. While we can quibble at the margins about
the scope of government, the basic shape of government is stable
and not likely to change.
This feature suggests that the Court’s indifference toward
corruption might reflect an end of history ideology that has
 facts in exile, complacency, and disdain 265

been part of our culture for the last quarter century, an ideology
that also has its roots in law and economics. In 1989 the Berlin
Wall came down, and the Soviet Union began to splinter. Ron
Brown became chair of the DNC, the first African American to
head a major political party. Francis Fukuyama wrote an essay
(later expanded into a book) arguing that liberal democracy is
an equilibrium state and there is no postliberal democracy sys-
tem. He argued: “What we may be witnessing is not just the
end of the Cold War, or the passing of a particular period of
post-war history, but the end of history as such: that is, the end
point of mankind’s ideological evolution and the universaliza-
tion of Western liberal democracy as the final form of human
government.”
Fukuyama’s article was largely about the nature of thinking,
not the nature of events. His argument was essentially that the
ideal form of government had been discovered, not that it would
stop history. In this, it was not so different from the prior 200
years of argument: that liberal representative democracy was a
superior form of government. However, its powerful impact on
the popular culture, the thing that turned him into an object of
constant discussion, was not the theory of the history of thought
but the theory of the history of world events. The key feature of
this view—as interpreted, not as written—was its political op-
timism. Fukuyama came to be a stand-in for the view that lib-
eral democracy is an end of history in a different sense: liberal
democracy is unlikely to turn into a totalitarian regime, and it is
just a matter of time before other countries catch up to the
United States and Western Europe.6
Fukuyama caught fire because he said (or was perceived to
have said) what so many at the time believed, and continue to
266 corruption in america

believe: that having once achieved representative democracy,

America was unlikely to ever become anything else. If one be-
lieves or feels that we are at the end of history, self-government
is not a central problem or puzzle. Little will change. Tyranny
and oligarchy have been solved by the modern democratic form.
A feature of the end-of-history attitude is also the end of facts,
and the end of the role of history and facts. If history is funda-
mentally over, only analytical questions remain.
A more sinister understanding of the same idea is that his-
tory is over because democracy is not required anymore. In his
honest essay on “Public Choice v. Democracy,” Russell Hardin
explains how economic modeling of self-interested behavior has
shown us some “grievous foundational flaws—in democratic
thought and practice,” including that it leads to neither majori-
tarian rule (because of the aggregation flaws) nor good policy
decisions.7 The conclusion of Hardin and law and economics
scholars is that many problems of distribution will be better
made by “the market” than by representative systems in a mass
democracy. If one part of politics is made up of the question
“How should we distribute goods and things?” then the social
choice theorist/market fundamentalist answer is “through as-
signing property rights.” The answer voids the need for a central
role for other mechanisms—monarchy, representative democ-
racy, direct democracy, lottery—to make decisions about distri-
butions. It gives a political answer, and in so doing narrows the
realm of collective decision making via deliberation and deci-
sion backed by force.
There is relatively little in the Supreme Court opinions that
openly embraces the anti-political stance of Hardin and others.
However, the complacency toward corruption that shows up in
 facts in exile, complacency, and disdain 267

the opinions suggests that something else might be occurring,

something more than a disagreement about a term. It might be
that democratic politics itself is suspect. It may be that the real
underlying normative idea of the five justices who use a narrow
meaning of corruption is that there is a little too much democ-
racy, and it would be better if people had less power.

Disdain
Perhaps, like Russell Hardin, some justices have abandoned
faith in democratic politics. There is some evidence that the jus-
tices still believe in a broad theory of corruption but think of
politics as essentially corrupt, and not worth saving. For in-
stance, the same justices who concluded that no facts were nec-
essary in Citizens United argued that there should be close judi-
cial inspection of facts in takings clause cases, to determine
whether private interest played too large a role in legislative
choices. In the case of Kelo v. City of New London, New London
used eminent domain to take Suzette Kelo’s home and give the
land to a private developer with ties to the drug company Pfizer.
The Supreme Court had to decide whether this action vio-
lated the Fifth Amendment. The Constitution states that pri-
vate property cannot be taken for “public use” without “ just
compensation.” The implication of the clause is that taking
for public use—the exercise of eminent domain—is legitimate,
whereas taking for private purposes is not. It is difficult to draw
a clear line between what constitutes a public use and what con-
stitutes a private use. In early law, “public use,” was interpreted
as “use by the public.” Any taking from one private party to give
to another private party was outside the governmental power. A
268 corruption in america

“law that takes property from A and gives it to B: It is against

all reason and justice, for a people to entrust a Legislature with
SUCH powers.”8 Starting in the early twentieth century, courts
expanded the scope of legitimate uses for which property could
be taken and allowed for the government to take land for a vari-
ety of public ends, including urban renewal projects. In other
words, “public use” could include taking land to give to a third
party if the giving created a public benefit. In Kelo, the Supreme
Court had to confront whether taking land from one person
and giving it to developers constituted “public use.” The City of
New London argued that the city needed the revitalization that
would come along with the new private developments. Kelo and
the other plaintiffs argued that the taking was cronyism and
outside the bounds of governmental power.
The Court sided with New London. It held that going through
a legislative process is itself presumptive evidence of its public
purpose-ness. The New London taking was part of a “ ‘carefully
considered’ development plan” that the city believed would be good
for the overall welfare of the public. In dissent, Justice O’Connor
argued that the Court eviscerated the “public use” language of
the Fifth Amendment and that such transfers should not be al-
lowed unless the land being taken was entirely blighted.
The takings case was, like the corruption cases, in part a re-
view of private versus public interest-motivated laws. One of the
subterranean arguments in Kelo was about the degree to which
the judicial branch should engage in a corruption review of tak-
ings. The plaintiff in Kelo later put it plainly: she believed that
a “high corruption level in New London was the primary factor
driving the abuse of eminent domain for private benefit in her
case.”9 The Court was less direct but it addressed her concern
 facts in exile, complacency, and disdain 269

and rejected it. The majority held that the city would not be al-
lowed to “take property under the mere pretext of a public pur-
pose, when its actual purpose was to bestow a private benefit.”
This language advocates for a review that Fletcher v. Peck argu-
ably precluded: a close examination of the reasons that a legisla-
tive body passed something, an examination of motive. Justice
O’Connor, in dissent, essentially argued that the “public use” pro-
vision of the takings clause was an anticorruption provision:
“The beneficiaries are likely to be those citizens with dispropor-
tionate influence and power in the political process, including
large corporations and development firms.”
Justice Kennedy, in concurrence, pointedly argued for greater
scrutiny of the process by which takings happen. In Kelo, he said
that the equal protection clause protects against “a govern-
ment classification that is clearly intended to injure a par ticu-
lar class of private parties, with only incidental or pretextual
public justifications.”
Because the different working parts of modern corruption
law exist in isolation, each from the other, the dissonance be-
tween Kennedy’s approach here and in political cases was not
addressed. In Citizens United, he argued that it was the essence
of politics to seek out influence for private reasons. In Kelo, he
argued against partiality. Scalia reveals a similar schizophrenia.
In another case, outside the field of election law, he argues that
there is a “fundamental constraint” that democratic decisions
“be taken in order to further a public purpose rather than a purely
private interest.”10 But in the campaign finance cases, he derides
the idea that any public purpose can be understood. To put it
another way: anything but quid pro quo corruption seems too
vague for Justices Kennedy and Scalia when they are reviewing
270 corruption in america

campaign finance cases, but a broader conception of corruption,

with its attending difficulties, is well within their constitutional
appetite in the takings arena.
We can’t know why, but the dissonance likely speaks to a
view about politics itself. The different treatment in these dif-
ferent arenas may come from a fundamental democratic dis-
dain, a suspicion of democratic politics itself, and a desire to re-
locate power in the judiciary, something very much like what
Thomas Jefferson called the “twistifications” that led Justice
Marshall in Fletcher v. Peck to refuse the power of the people of
Georgia to overturn a flagrantly corrupt law. Scalia seems to
prefer allocative decisions that are made outside of the collective
political sphere.
The takings cases are not alone. Another case that hints that
the real driving force behind a narrowing of corruption is dis-
dain for politics, and not a lack of understanding of corruption,
is Caperton v. A. T. Massey. That case went to the Supreme Court
right before Citizens United. Just as a $50 million verdict was being
heard by the West Virginia Supreme Court, one of the parties to
the case spent $3 million in efforts to elect one of the judges. The
party never coordinated with the judge, but he clearly knew that
the money was designed to help him get reelected. The judge
did not recuse himself from hearing the appeal and voted in fa-
vor of overturning the verdict.
The other party complained that the election expenditure vio-
lated due process, and the Supreme Court agreed. It held that
the Constitution required a judge to recuse himself from a case
when there is a “probability of bias” created by a past massive
campaign expenditure by one of the parties in the case. It was,
according to the majority opinion by Justice Kennedy, an ex-
 facts in exile, complacency, and disdain 271

treme case where there was no need for direct evidence of actual
bias. Objective facts, he held, raised the probability of bias.
In Caperton, Kennedy’s language was psychological and re-
ferred to temptation and human nature and the dangers that
come from actions that are not criminal bribes. He recognized
that “the fact that the inquiry is often a private one, simply
underscore[s] the need for objective rules.” Otherwise, he held,
judges could be influenced and there would be no recourse.11
The same argument about the need for objective rules applies to
spending around nonjudicial elections. However, there are two
different standards. The best explanation for the different stan-
dards may lie in the fact that Kennedy has greater respect for
judicial processes than democratic ones.

Biography
The disconnection from political facts, and apparent distaste
for politics, may also be exacerbated by the rarified biographies
of the modern Supreme Court justices. Personal history may
have particular force when it comes to judicial understanding of,
and respect for, democratic politics. Our current Court is en-
tirely made up of elite academics and appellate judges. It was not
always so.
When Justice Noah Haynes Swayne wrote the opinion of
the Court in Trist v. Child—the opinion that refused to enforce
a contract to lobby as against the public policy of the United
States—it was not as a naive academic or utopian but as some-
one who had lived inside the logic of politics for over fifty years,
as a candidate, organizer, appointee, councilman, and state repre-
sentative. Swayne wrote that lobbying is “contrary to the plainest
272 corruption in america

principles of public policy. No one has a right, in such circum-

stances, to put himself in a position of temptation to do what is
regarded as so pernicious in its character.” He went on to argue:
“If any of the great corporations of the country were to hire ad-
venturers who make market of themselves in this way, to pro-
cure the passage of a general law with a view to the promotion
of their private interests, the moral sense of every right-minded
man would instinctively denounce the employer and employed
as steeped in corruption, and the employment as infamous.”
Swayne had been Ohio’s U.S. Attorney under Andrew Jackson,
a council member, state legislator, abolitionist, and political
leader and part of the Republican Party’s formation in the 1850s.
Or consider the way Justice Samuel Miller, who had also been
extremely active in politics, treated corruption.12 Miller was an
abolitionist who moved from Kentucky to Iowa in order to free
his slaves and raise his children outside of slavery. He became a
leader in Republican Party politics in Iowa and was nominated
for (but not ultimately elected to) the state Senate. His passion
for politics is revealed in the case Ex parte Yarbrough, affirming
Congress’s authority to pass a law against violence and intimi-
dation designed to keep African Americans from voting. The
entire opinion reads as a passionate defense of self-government.
Throughout the opinion he references what he sees as the two
primary tools for undoing democracy, violence and corruption,
which he sometimes refers to as force and fraud:

That a government whose essential character is republi-

can, whose executive head and legislative body are both
elective, whose numerous and powerful branch of the leg-
islature is elected by the people directly, has no power by
 facts in exile, complacency, and disdain 273

appropriate laws to secure this election from the influence

of violence, of corruption, and of fraud, is a proposition so
startling as to arrest attention and demand the gravest con-
sideration. If this government is anything more than a mere
aggregation of delegated agents of other States and govern-
ments, each of which is superior to the general government,
it must have the power to protect the elections on which its
existence depends from violence and corruption.13

In fact, when Yarbrough was decided in 1884, over half of the

justices had successfully run for office. Justice Field had been in
the California State Assembly and ran and lost a campaign for
state Senate. Justice John Marshall Harlan was actively involved
in at least six political parties—the Whigs, the Know Nothings,
the Kentucky Opposition Party, the Union Party, the Demo-
cratic Party, and the Republican Party. Justice Woods was
mayor of Newark, Ohio, and a representative in the state assem-
bly. Justice Matthews was elected to the Ohio State Senate and
the U.S. Senate.
Less than a century later, in 1976, when Buckley v. Valeo was
decided, no justices brought direct electoral political experience
to the Court except Justice Powell, who had been the chair of
the Richmond School Board. The Court that decided Citizens
United has an even more cramped pedigree. No members of
that Court have ever been elected to any office or run for office.
The transformation from a Court filled with politicians to a
Court with no politicians may help to explain how economic
models gained more traction, and why judges were drawn to ab-
stract arguments instead of fact-based arguments. The experi-
ence of politics is profoundly invigorating, and while people
274 corruption in america

who have lived a political life will undoubtedly admit there are
dingy deals and terrible pressures, they may be more likely to
believe in the human capacity for civic attention and love. Those
involved in politics will bring a more subtle understanding of
the psychological ways in which gifts and money change poli-
tics. The visceral experience of politics—like the visceral expe-
riences of art, theater, and love, perhaps—is fundamentally dif-
ferent than the imagined, or theorized, life of politics.
At their worst, the lack of experience of politics may lead to
the apparent contempt for politics itself.14 They may perceive
corruption as a minor threat, or perhaps they perceive it as part
and parcel of politics, which is essentially rabble: not responsive,
not efficient. Political theorist Hannah Arendt describes the
antipolitical strain in modern society as coming from both the
platonic philosophical tradition and the Christian tradition
that encourages people to remove themselves from the contam-
inating political society. A rejection of politics may represent
both fear and hope—fear of politics taking over everything
and hope for a future without politics. This imagined a-politi-
cal politics involves a wise bureaucratic state managing policy
issues; the citizen is free to pursue his or her own ends without
having to engage in self-government. Rationality controls, and
the parceling power, is not a primary puzzle. In Arendt’s char-
acterization, academics sometimes see politics as a refuge of
those who have lesser virtues; it is associated with the antiphi-
losophical. Politics contaminates thinking. She rejects this
view, but her description resonates with some of the academics
on the Court.
The antipolitical strain aligns with the way that some justices
treat corruption, fully imagined, as an incoherent and outdated
 facts in exile, complacency, and disdain 275

idea, or as a synonym for bribery. The virile language of Trist

and Yarbrough—and also that of Hamilton, Montesquieu,
Mason, Gerry, and Madison—may simply fail to connect with
the modern jurist, more likely to be trained in analyzing policy
proposals than in counting votes in a district.
 chapter sixteen

j
The Anticorruption Principle

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 ju-
risprudence and public debate.
A revival of the anticorruption principle will depend upon
engaging difficult concepts of public interest and private inter-
est, 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 private gain is made
at public expense,”2 or when private interest excessively overrides
public or group interest in a significant or meaningful exercise of
political power.3 An act or system is corrupting when it leads to
excessive private interest in the exercise of public power. People
are corrupt when their private interest systematically overrides
public good in public roles, when they put their self-love ahead of
group love. This is true if they are lobbyists or politicians, citi-
zens or senators.4
 the anticorruption principle 277

I sometimes imagine that the relationship between citizen or

official and the country is like that between a parent and a child,
where the parent can distinguish between what is best for the
child and what is best for the parent but tries not to understand
them in opposition. The parent who thinks about his child,
plans for his child’s health, protects his child, and comforts his
child is a good parent, whereas the parent who does none of
these things and ignores his child is not. However, the good par-
ent, in relation to the child, does not ignore his own interests but
is capable of being other-interested in his internal thinking. So-
ciety recognizes that perfection is illusory. There are many ways
to be a good parent, and good parenting doesn’t rely on fulfilling
technical requirements. Good parenting relies on an attitude
and attentiveness to another person. In some ways the paren-
tal identity becomes fused with the personal identity, so the
parent’s personal ambitions include the ambition to serve the
child. Similarly, the ambitious public official who constantly
looks for ways to improve his constituents’ well-being is differ-
ent from the one who only thinks about his own ambitions or
who puts his own need to secure a job when he leaves office
before the present needs of his community. The father gets
substantial pride from being a father; the noncorrupt official
gets pride from his role as well. Some self-interest may be pres-
ent, and few throughout history would deny the benefits of
pride, power, ambition, attention, love, and adulation that can
come with public office. But the anticorruption principle de-
pends on the fact that despite these other concerns, it is valu-
able and possible to aspire to a society where those in govern-
ment are concerned on a daily basis with the well-being of the
public.
278 corruption in america

The reason I am more drawn to the anticorruption principle

than a potential alternate—which one might call the virtue
principle—is that it focuses on structures that discourage the
worst kinds of systematic self-interest. We should not maintain
an impossibly high ideal of public virtue but think of the anti-
corruption principle as a support for laws that protect citizens
and officials from excessive temptation.
I am not alone in pursuing a revival of the anticorruption
principle. Laura Underkuffler’s recent book on corruption, Cap-
tured by Evil, focuses on corruption as a moral concept.5 To her,
corruption represents the “capture by evil” of an individual’s soul.
It is more than a breach of trust or a denial of equality or law-
breaking—it is a powerful personal failing. Lawrence Lessig’s
book Republic, Lost focuses not on individuals but on systems
and argues that corruption encompasses far more than direct
exchanges but also dependencies, grounding his argument in
founding-era understandings of corruption and dependence.6
Samuel Issacharoff argues that corruption should be under-
stood in terms of the clientelism that arises between private in-
terests and state agents.7 Deborah Hellman argues that the
Court should stay out of the business of defining corruption
because such a definition is fundamentally better assigned to
the legislative branch.8
This is a welcome change from the previous generation of lead-
ing legal lights. Many of the major twentieth-century philoso-
phers were unwittingly too sanguine about the nature of politics
and thus not greatly concerned in their thought and writing
with the threat of corruption. The last century’s most promi-
nent English-language political theorist, John Rawls, may have
shared Montesquieu’s love of equality, but Rousseau’s concern is
 the anticorruption principle 279

related to concerns about corruption whereas Rawls never really

explored corruption. As one scholar put it, “Philosophical liter-
ature on justice has shunned the topic of corruption.” 9 Legal
theorist Ronald Dworkin rarely used the language of corrup-
tion to describe either individuals or collectives.10 And libertar-
ian Robert Nozick’s mid-twentieth-century defense of liberty,
unlike John Locke’s, did not use corruption as a way of thinking
about government or human nature. Instead, corruption had
been relegated to an increasingly technical role—even Rawls
treats it like bribery, and does not explore the meaning of
bribery 11—that is not part of political theory.
To be clear, today’s political corruption scholars are in sharp
contrast to Rawls et al. but also to one another. Lessig’s corrupt
world is populated by “decent people, people working extremely
hard to do what they believe is right, yet decent people working
with a system that has evolved the most elaborate and costly
ending of democratic government in our history.”12
Underkuffler’s corrupt world is different still. She argues that
the language of corruption requires a conception of evil and the
workings of the individual psychologies. Issacharoff ’s under-
standing focuses on “how the electoral process drives the dis-
charge of public duties.” Hellman ends up agnostic on the mean-
ing of corruption, arguing that defining it is a legislative task. All
four, however, are significant, prominent academics pushing a
revival of interest in the centrality of corruption in the Ameri-
can political-legal tradition. They all examine it as a concept wor-
thy of its own meaning and not bound by a function of equality or
efficiency or limited by the language of quid pro quo: they all ex-
plicitly reject either efficiency or equality as the starting point.
They all embrace the grammar of corruption instead of trying
280 corruption in america

to erase it or replace it: in so doing they celebrate its power in-

stead of denigrating it.
All of these scholars understand that corruption should not
simply live in a criminal law ghetto. It is not just what quids
count, and which quos. As most people know, explicit deals and
blatant self-dealing are both instances of corruption, but they
are not the thing itself. Corruption should not be limited to ex-
changes or centrally defined by exchanges. It should not be de-
fined by statute; no one should expect a statute to define “corrup-
tion” any more than one would expect a statute to define “equality”
or “love” or “security.”
Part of the revival of corruption would be a renewal of a stron-
ger sense of the relationship of the citizen to the country. An in-
timate, faithful relationship to a country is psychologically chal-
lenging when related to a large bureaucratic state in which most
citizens have no intimate interactions with government. All the
more reason to encourage it. Corruption, in this sense, would be
related to the principle that governs a general fiduciary relation-
ship that all citizens have toward the American public.13

Equality and Corruption

Many liberal scholars argue that corruption is not a meaningful
idea. They view corruption as a subset of equality concerns. They
argue that if it were not for the Supreme Court’s use of corrup-
tion as a governmental concern in Buckley v. Valeo, no one would
be concerned about corruption. The principle of equality sug-
gests that each person ought to be considered equally by a gov-
ernmental representative. When a large campaign contributor
can change the view of a representative because of the access
 the anticorruption principle 281

and influence that flows from that donation, not all voices are
heard equally. Governments should be free to pursue relative
political equality in their campaign financing systems. This,
equality theorists say, is the real problem, not corruption. Bruce
Cain argues that “by littering the intellectual landscape with
irrelevant issues, moral idealists obstruct the path to a full, open
discussion of the public’s views about the proper distribution of
power and influence.”14 According to Cain, the language of cor-
ruption serves to disrupt a serious discussion of equality
concerns.
David Strauss similarly argues that corruption is a “deriva-
tive problem.” He argues that those who claim they are worried
about corruption are “actually concerned” about inequality. He
argues that if there were actual political equality, “much of the
reason to be concerned about corruption would no longer ex-
ist.”15 Any remaining worries would themselves be functions of
other inequality concerns that arise when interest group poli-
tics takes over the democratic process to give unequal power to
voters. Kathleen Sullivan argues that corruption “is really a vari-
ant on the problem of political equality: unequal outlays of politi-
cal money create inequality in political representation.”16
Rick Hasen has been a prominent proponent of the equality
argument as both a normative and descriptive matter. He ar-
gues that the non–quid pro quo arguments from the justices
after Buckley are described in terms of corruption but are actu-
ally, and rightly, grounded in equality concerns.17 As he describes
it, “A political equality argument is one which seeks to justify a
law on grounds that it distributes political power fairly or seeks to
attack a law in court on grounds that it distributes political power
in an unequal way.”18 When the Court describes nonexchange
282 corruption in america

corruption, it is often simply describing some of the problems

that flow from unequal political power. According to Hasen,
“political equality arguments come in three varieties: political
input, political output, and political opportunity.”
Like these theorists, I think political equality is a foundational
American principle to which courts should be attentive, and
that Buckley was interpreted to exclude equality and inequality
from the review of campaign finance laws. Unlike these theo-
rists, I think the anticorruption principle has a different mean-
ing, and is not derivative of equality. The liberal scholars who
would have equality stand not alongside but instead of corrup-
tion believe we can talk about politics and self-government and
develop a full political theory of America without ever using the
language of corruption. My own view is that there are real equal-
ity concerns and real corruption concerns, and while these two
troubles overlap they are not identical. Unlike Bruce Cain, I see
public morality as the ballast of our country, not its litter.
The Aristotelian roots of our modern conception, as you’ll
recall, distinguished monarchy from tyranny on the grounds
that one was self-interested and the other was not, although
both ruled societies with no principle of political equality. The
central difference between the equality principle and the tradi-
tional American meaning of corruption has to do with the role
of emotion and affection and self-interest. Equality theorists
look at inputs and outputs—how equally is each person’s inter-
est weighted?—whereas corruption requires one to consider
whether public figures maintain a genuine attention to their
constituency alongside their more egoistic needs. The formal
consideration of valuing each person’s interest equally is emo-
tionally different from faithfulness and identification with the
 the anticorruption principle 283

public good. The goal of the equality theorists and the tradi-
tional corruption theorists is substantially similar. But equality
theorists are not as focused on public orientation. The grammar
of politics, its emotional and intimate role, is less important for
them. Political actors (citizens and officials) play a fairly me-
chanical role in this worldview. They process information (gained
by access) fairly directly—the more of one kind of input, the more
of that kind of output. The elected officials play a processing role
and do not operate as independent moral agents. They are influ-
enced directly: the more pressure from campaign contributions,
the more likely their decisions will be shaped. There are stronger
and weaker versions of this—radical equality or rough equality,
or simply the absence of radical inequality.
One way to understand the difference is to imagine the mind
of a senator. The equality theorist would want that senator to
consider each member of his constituency equally and would be
satisfied if the senator did so because each citizen gave him
$100, an equal amount. The framers, on the other hand, wanted
that, but also a fundamental, emotional identification with the
public. A senator who considers each constituent equally only be-
cause of the campaign money, but whose core obsession is getting
reelected so he can get a great job as a lobbyist afterward, could
serve equality goals but still be corrupt. Whereas the equality
theorists focus on the equal treatment of multiple private inter-
ests, the framers believed that one could imagine “the public in-
terest” and that people, at their best, would put others’ interests
on equal footing with their own in a nonmechanical way.
Montesquieu treated corruption and equality as related con-
cepts when he described virtue in a republic as the “love of equal-
ity.”19 Montesquieu believed citizens should love equality not
284 corruption in america

just as an abstract concept; they should love it in practice, in

how they choose to be part of the polity, in how they choose
to be not alone, not godlike, not separated but joined in the
decision-making venture with those who are not the same but
are political equals. Love, for him, is central. As he illustrates,
one can tie equality and corruption together at the motivational
level—love of equality enables democracy. I find Montesquieu
too demanding. He demands that the only ambition of a citizen
in a democracy should be to love society more than its compo-
nent parts, and that we should embrace mediocrity and love fru-
gality as well. Even the framers who used him as their fountain-
head and also were skeptical of luxury did not imagine a world
where people’s ambition was submerged in civic patriotism.
However, he presents a clear (if stark) picture of how one might
think about the relationship between equality and corruption.
The concept of corruption requires one to consider motiva-
tions, and I see a real political danger in removing the grammar of
corruption from political discourse. The language of corruption
helps create cultures and laws that in turn reinforce a culture of
laws. One scholarly article from the 1970s claimed that we use
definitions that avoid the “emotionalism” usually associated with
corruption.20 My goal would be the opposite: to recognize and
structurally channel the emotionalism that necessarily arises in
public affairs, following the instinct of the framers, that love and
equality are both necessary features of vibrant public life.

Structural Rules
At the Constitutional Convention the anticorruption principle
led to many bright-line rules, which have fared pretty well, and
 the anticorruption principle 285

a few unclear rules (the terms of impeachment, the takings

clause), which have led to confusion. Part of reviving the prin-
ciple will be an emphasis on bright-line rules, even those that
infringe on genuinely innocent behavior. Once corruption is un-
derstood as a description of emotional orientation, rather than
a description of a contract-like exchange, the idea of criminal-
izing it seems either comical or fascist. Instead, bright-line rules
that discourage temptation and encourage civic virtue are fun-
damental, essential American goals. Bright-line rules, in other
words, are part of the best of our country’s past and not merely
a squirrelly, annoyed response to contemporary scandals. Strict
aggregate limits on spending and contributions are the descen-
dants of strict residency rules, strict veto laws, strict gifts rules,
the Pendleton Act, and the secret ballot, as well as the Tillman
Act. Rules that limit the age of a senator, for instance, may have
been written because of corruption, but they do not define it.
In a recent law review article, Steve Sachs succinctly summa-
rized the objection to anticorruption laws: “When politicians
put private interests before the public good, they act wrongly—
even ‘corruptly.’ But whether a politician is ‘corrupt’ in this subjec-
tive sense is impossible for the law to police.”21 Sachs is correct,
which is why bright-line rules are so important. Criminal law is
poorly designed to capture corrupt acts. It is, however, well de-
signed to deter them. If one sees corruption as a motivating
concept instead of a statutory term, then the law can success-
fully police—or at least shape—the likelihood of politicians
putting private interests before the public good. The difficulty
of connecting corruption to intent-based criminal laws ought
to make us wary of using intent-based laws as the best strategy
to deter corruption. Because intention, orientation, love, and
286 corruption in america

faithlessness are so difficult to describe in criminal laws, they

are very weak vessels for enforcing or encouraging noncorruption.
The emotional nature of corruption makes it better suited for
bright-line rules that are unconcerned with intent—rules that
provide absolute donation limits, for example, or absolute status
bans—than for laws that try to separate those acts that are in fact
corrupt from those that are in fact not corrupt.
Modern corrupt intent laws, as I’ve shown, came from bright-
line rules that generally didn’t have an intent requirement and
didn’t apply to elected politicians. The old bribery statutes crimi-
nalized gifts to judges, and the old extortion statutes criminal-
ized officials taking more than they were owed. As the laws ex-
panded to cover interactions with legislators, the relationship
between corrupt intent and private campaign contributions has
always been troubled. Moreover, corrupt intent laws are some-
times used to reinforce racial and anti-immigrant stereotypes
and associate difference with corruption.22 These laws give
prosecutors—who might be politically motivated—enormous
power to decide who is corrupt and who is not in the public
eye, as the mere prosecution for public corruption can taint a
public figure.
Legislatures regularly pass laws designed to structure the
flow of money to limit temptation and corruption. However, if a
serious First Amendment or due process claim is raised, most
of those laws are struck down, unless they fall within the cate-
gory called “bribes,” with bribes being defined explicitly and
about fairly explicit pieces of legislation. Outside of this tiny
cluster, money can be used in almost any way to influence and
block policy, sway candidates, and pick candidates. The current
Court’s disfavor for bright-line rules has greatly limited the ca-
 the anticorruption principle 287

pacity to protect against corruption. We have seen this with il-

legal gratuities in Sun Diamond and with campaign spending
limits from Buckley to Citizens United.
The reasons for overturning the bright-line rules in those
cases are not trivial, of course. Courts should look skeptically
upon laws that claim to be grounded in the anticorruption prin-
ciple but are primarily designed to help incumbents maintain
power. They should presumptively strike down laws that dis-
criminate between different political viewpoints. But ideally
they would also incorporate into their decision making a deep
deference for the difficulty democratic organs face as they try to
protect themselves.

Plurality
As Deborah Hellman argued many years ago, a commitment to
understanding corruption requires public engagement in defin-
ing what does and does not constitute legitimate private inter-
est.23 One cannot shy away from fundamental determinations
about the scope of public and private morality, many of which I
cannot fully engage here, but one seems important: the rela-
tionship of concepts of corruption to group interest. Is someone
who serves their own group interests—like the interests of a
church, a union, or a trade association—corrupt, or virtuous?
What if they do so knowing it hurts the public good? The clas-
sic conception of corruption might seem incompatible with
modern “plural” democracies. Modern pluralists note that
people tend to be most politically engaged when they work with
associations, and these associations work to further their own
interests. Democracy is at its best when people form into groups,
288 corruption in america

then wage peaceful battle between groups through electoral

pressure. Without fully exploring this fascinating area, I would
note two things: first, the invention of pluralism is itself an
ideological framework, not a factual one. Second, America was
founded on both pluralism and anticorruption, so the apparent
conflict is not a new one, and the framers thought it possible to
be public interested even while they perceived group interests.
To the first point, all groups, including the group of the “self,”
have multiple conflicting desires, changing interests over time,
and internal “factions.” The nature of public interest as a cate-
gory is often challenged because it is deemed to be incoherent—
who is to say what the public interest is? The same kind of chal-
lenge can apply to a person, as well—who is to say what self-interest
is? As Hannah Arendt writes about the impossibility of escaping
pluralism:

Because I am already two-in-one, at least when I try to

think, I can experience a friend, to use Aristotle’s defini-
tion, as an “other self ” . . . the faculty of speech and the
fact of human plurality . . . in the . . . sense that speaking
with myself I live together with myself. . . . This is also the
reason why the plurality of men can never be abolished
and why the escape of the philosopher from the realm of
plurality always remains an illusion: even if I were to live
entirely by myself I would, as long as I am alive, live in the
condition of plurality. I have to put up with myself. . . .
The philosopher who, trying to escape the human condi-
tion of plurality, takes his flight into absolute solitude, is
more radically delivered to this plurality inherent in every
human being than anyone else, since it is companionship
 the anticorruption principle 289

with others that, calling me out of the dialogue of thought,

makes me one again.24

To the second point, the framers certainly saw themselves as

living in and also creating a plural society: wealthy, poor, farm-
ers, and regional interests existed, yet they did not see the exis-
tence of plurality as a threat to the conception of corruption.
That said, at the time of the founding, anything that was not
public interest was coded as private interest. Cabal, faction, and
corruption were deeply connected in the founders’ language.
They saw group interest as corrupting as individual or familial
interest. Unlike other features of corruption law, which were
relatively constant until the 1970s, this aspect of corruption law
mutated quickly after the founding era. Serving the group in-
terest of a political party was not considered corrupt for most of
our history. Instead, the epithet of corruption was reserved for
those instances where purely private interests dominated, not
collective ones.
While the older, constitutional American view of corruption
encompasses those situations where a group interest overrides a
public interest in the meaningful exercise of power, it quickly
modified to allow for group interest as noncorrupt. I think that is
the correct lesson to take from the founding era—one can serve
the interests of one’s community church or one’s Elks Club and
vigilantly advocate for it. However, it ought not be at the expense
of the public interest. A legislator may be a lifelong ally of labor
groups, but she only becomes corrupt (or at least part of a corrupt
system) if she supports a bill because of their campaign donations
or if he supports a bill while genuinely believing that the bill will
be bad for the public at large and good only for his group.
290 corruption in america

In many cases, private interest, group interest, and public in-

terest can be aligned, and when they are aligned, there is no cor-
ruption. For example, Madison, like most of the founders and
Montesquieu, believed that men were capable of self-interest and
public interest and group interest. They had a flexible view of hu-
man nature. They were both pessimistic and optimistic in this
sense, gloomy about the possibilities for self-interest dominat-
ing yet hopeful that it was not the necessary state of affairs. In
the construction of the Constitution they were trying to design
institutions to encourage the likelihood of more public interest
and less self-interest, and to create structures such that private
and public interest would be aligned as frequently as possible.
 Conclusion

Benjamin Franklin’s will gave the king’s snuff box por-

trait 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 frame.
Our concept of corruption, too, is corrupted, dismembered,
the component parts taken out. Nietzsche described decadence
this way: “Word becomes sovereign and leaps out of the sen-
tence, the sentence reaches out and obscures the meaning of the
page, the page gains life at the expense of the whole—the whole
is no longer a whole.”2 Nietzsche could have been describing the
political theory in the Supreme Court. The word corruption is
removed from sentences in which it was used, the adjectival
phrase “quid pro quo” grows so large it obscures meaning itself;
292 corruption in america

the concept of corruption is no longer part of a coherent whole.

Justices of the Supreme Court fixate upon particular words at
the cost of history, context, and meaning. The concept of corrup-
tion becomes the narrow concept of quid pro quo corruption.
The citizen, too, becomes atomized—a set of wants, a “con-
sumer,” a “taxpayer”—and government is seen transactionally
instead of as part of a social political whole.
The American democratic experiment is in the midst of a po-
litical disruption enabled by this conceptual disintegration. We
could lose our democracy in the process. Four years after Citi-
zens United, wealthy individuals have far more political power
than they did, and groups of individuals without money have
less. A country founded on political equality and the fight against
corruption is burdened by political inequality, corrupting indi-
viduals and institutions. Americans don’t trust their govern-
ment, and we feel that the country is going in the wrong di-
rection, not just as a matter of policy but as a democracy. The
public—what Montesquieu called the common people—know
that there is something deeply wrong about our political cul-
ture. In a recent poll, nearly 90 percent of Americans said
that reducing corruption in the federal government was high
priority.3
The dismemberment has also led to divergence. When peo-
ple in bars and fast food restaurants talk about corruption, they
may include violations of the federal bribery statute in their
definition, but more likely they mean that their representatives
aren’t serving them, and they aren’t doing so because of some
other source of money and power. The public knows there is a
deep misalignment where the government is used to serve pri-
vate ends instead of the public good. Justice Kennedy thinks
 conclusion 293

corruption is defined by quid pro quo. I believe the public sees

corruption more as our country’s framers did.
A disconnect between meanings of corruption has happened
before in culture, if not in law. In the Gilded Age, a prominent
railroad lobbyist testified to Congress that “if you have to pay
money to get the right thing done, it is only just and fair to do
it. . . . If [the politician] has the power to do great evil and won’t
do right unless he’s bribed to do it . . . I think it is a man’s duty
to go up and bribe him.”4 In our own gilded age, a wealthy ven-
ture capitalist recently suggested publicly that people’s votes
should be proportional to the amount of taxes they pay. He
was not clear about whether he was joking or not, but he wanted
to be outrageous. Then, as now, the dismemberment of shared
meaning and history accompanies the threatened dissolution of
self-government.
In American culture, one of the social functions of a word
like corrupt is to support a system of government where the love
of the public and the love of country are celebrated, where citi-
zens do not imagine themselves as solely self-interested. The
word corruption is itself a bulwark against temptation, separate
from any criminal penalties that may attach to it. There are con-
stant temptations to put private interests ahead of public ones—
the language of corruption provides social pressure on the other
side of that equation.
It is a concept with deep political power, important for its
social role and its society-defining role. This differentiates it
from other words with related legal roles, like fiduciary or fidu-
ciary duty. While no one wants to be on a poster that reads,
“The CEO of Bank of America violated his fiduciary duty!,” it
does not carry the same indictment and political power as one
294 corruption in america

that reads, “The CEO of Bank of America is corrupt!” Fiduciary

law is law’s way of dealing with heightened obligations that de-
rive from intimate and trusting relationships, and it translates
emotional complaints into legal forms, whereas corruption law
often works the other way—the charge that something is cor-
rupt is highly emotional, but the way the charge works in law is
through the violation of a campaign finance law or a conflict-of-
interest law. When states passed sprawling but unenforced stat-
utes in the nineteenth century, their broad condemnation played
an important role in the public’s description of how it wanted
public officials and citizens to act. The anticorruption laws ex-
pressed a vision of undesirable human behavior and on the other
side invoked desirable and possible human political behavior. The
ability to call a public official corrupt arguably reveals the author-
ity of the citizen. It suggests that she has the right to claim gener-
alized attention instead of attention toward private interests.
Bribery statutes and constitutional doctrines that use the
language of corruption force juries and judges to make decisions
about what corruption means. Corruption is a tricky word for
lawyers because it has different kinds of meanings: some mean-
ings gesture toward the specific (inasmuch as the word is part of
a criminal law doctrine), whereas other meanings are inherently
broad ranging (inasmuch as it is part of a description of a politi-
cal culture), and many are in between. In popular culture it is
often used in a way that does not specify whether it is being
used in a legal sense or a nonlegal sense. The same judge can use
the same word in two different ways. Corruption is sometimes
used like battery or negligence—a common law word with a spe-
cific legal force and imprecise boundaries. Or it can be a consti-
tutional principle that operates like the word “federalism” or the
 conclusion 295

phrases “free speech,” “due process,” or “cruel and unusual”—an

indicator of a foundational commitment.
Because accusations of corruption often accompany specific
political scandals, the image conjured up can be quite precise,
leading to a sense of precision about the word. However, when it
is part of a statute, it is rarely precise, as we’ve seen. For instance,
jurors are sometimes told they must find that the defendant
acted “corruptly” to convict under a federal bribery statute and
that acting corruptly means “intent to give some advantage in-
consistent with official duty and the rights of others.” The scope
of “official duty and rights of others” is broad. The jury is essen-
tially asked to make a judgment about whether the defendant
thought he should not be getting the advantage he was getting.
This gives prosecutors, and juries, leeway to determine what con-
stitutes official duty and deviance therefrom.
In this book I have shown how the Constitution was designed
in significant part as protection against corruption, broadly con-
ceived, and how courts and legislatures actively relied on this for
most of American history. State courts today still treat virtue as
the foundation of the republic and favor a broad approach, giv-
ing prosecutors the power to charge corrupt intent as the core of
a gift crime and giving legislatures the power to pass broad anti-
corruption statutes that structure private money around elec-
tions. The framers’ ideas about corruption survived long past the
republican era, into the 1970s in the Supreme Court. But since
1976 the Supreme Court has seriously constrained public power
to pass anticorruption statutes, and since 2006 it has definitively
rejected the traditional concept of corruption.
Corruption, ideally, is understood as an important concept
embedded in a basic system that favors self-government. A
296 corruption in america

conception of corruption in a democratic state requires a theory

of what democracy is for. The accusation that a state is corrupt
includes some idea of a noncorrupt state. A charge that an act,
or person, or institution is corrupt implies some conception
about what is not a corrupt act, and that in itself includes an
imagination of the appropriate relationship of public officer, or
citizen, with the state. One cannot use the word coherently in
relationship to citizenship, or government, without some vision
of good citizenship or good government. The difference between
a gift and a bribe depends upon a theory about the appropriate
kinds of relationships between those in power and those out of
power.
Equally important, a conception of democracy requires a
conception of corruption. This is no easy matter. According to
legal philosopher Lon Fuller, the “rule of law” exists when law is
applied evenly with reference to objective assessments. For the
principles of legality to be satisfied, rules must be general, apply
to all, and be constant over time, and they must be clear, intel-
ligible, and administered in a way consistent with their language.5
Laws that include or refer to “corrupt” or “corruptly” threaten to
violate some of these requirements because it is not always clear
and intelligible what behavior is covered by corruption statutes.
The scope of corrupt intent laws depends in large part on a jury
determination that a gift was given with intent to influence—a
standard that threatens to be unequally administered and is
arguably neither clear nor intelligible. On the other hand, struc-
tural laws designed to dissuade corruption, like a campaign con-
tribution limit, are clear, intelligible, and less prone to inconsistent
administration. However, a court reviewing those laws still
needs to make a preliminary determination about whether they
 conclusion 297

were in fact designed to serve anticorruption interests. For both

bright-line laws and corrupt intent laws, there are some difficul-
ties at the margins in defining the bounds of what constitutes
corruption. It might seem that the concept of corruption is in-
compatible with requirements of Fuller’s rule of law theory.
Yet if corruption is not adequately addressed within law, the
absence of such laws threatens the principle that laws must be
applied equally to all. For instance, if an attorney general does
not prosecute a major campaign donor out of fear of losing her
support, the laws are not equally applied. Without anticorrup-
tion laws, anyone can donate to any candidate. Political actors
using financial power in politics to manipulate government for
their own benefit do not lead to a clear, stable, functioning legal
system. The quasi-paradox is this: without corruption law, or
the concept of corruption, rule of law fails because laws can’t be
applied equally. Yet with corruption law, and the concept of cor-
ruption, we can’t always discover the precision that rule of law
seems to require.
If you only look at one part of this puzzle, you might con-
clude that corruption cannot be used in law because its essential
imprecision leads to lawlessness. This was the view of Justice
Marshall when he concluded that the Yazoo land grant passed
by a bribed legislature had to be enforced—he had no clear way
to tell the difference between a bribed legislature and an un-
bribed one. It also comes up when corruption is the reason for a
statute, not just when corruption is in the statute. This is the
argument used by Justice Scalia in Citizens United in concur-
rence, where he argued that a civic understanding of corruption
could lead to “no limit to the Government’s censorship power.”
He worried that corruption could cover too broad a range of
298 corruption in america

activity. Therefore, if corruption is recognized as a justification

for statutes that might otherwise violate constitutional restric-
tions (like the First Amendment), then it will give too great a
power to justices to import their own ideas about political pro-
cesses. If the Court recognizes that an anticorruption principle
exists to justify speech-restricting activity, then legislative bod-
ies will be able to pass laws merely by invoking “corruption” and
the recognition of the constitutional value of the term will give
state and federal legislators too much authority to restrict other
rights.
And yet, the rule of law cannot survive without anticorrup-
tion measures, some of which will have to reference corruption,
others of which will need to be explained by reference to cor-
ruption. We should embrace the anticorruption principle’s
uneasy role, valuing it but recognizing that the concept does not
need to be defined in a statute because the most effective anti-
corruption statutes will go at effects, not the root cause. Courts
should recognize that corruption is as important a concept as
equality, or free expression, and while it may be a disputed con-
cept at the margins, the commitment to anticorruption princi-
ples has a substantive core.

New Structures
Fortunately, the same history that teaches us that corruption
was a foundational principle teaches us that structural changes
are possible even within the constraints of a misinterpreted Con-
stitution. We can fundamentally rearrange power dynamics and
improve representative democracy even without a new Court, or
court packing. For instance, states and the federal government
 conclusion 299

can follow the reasoning behind the revolving-door ban of the

framers and pass an absolute ban on staffers or members of
Congress taking jobs in the influence industry. Any legislature
can pass laws banning legislators and staffers from holding
stock in companies affected by legislation. Congress can clearly
define coordination so that independent corporate spending is
actually independent. The public can oppose any Supreme Court
nominee that supports the logic of Buckley, Citizens United, and
McCutcheon. To my mind, the two most important solutions that
require no Supreme Court blessing are ideas advocated by Teddy
Roosevelt: publicly funded elections and trust-busting.
The United States has never designed a system to fund cam-
paigns. Instead, we have outlawed other systems: patronage,
direct corporate funding, and unlimited individual funding.
Instead of outlawing more systems, we could actively endorse a
system that would take away the corrupting threats posed by
unlimited independent expenditures and the constant job of
fund-raising.
Public financing for presidential elections began in 1976, but
not for all federal offices. In 1996 Maine approved the first state-
wide “Clean Election Act,” which provides public funding for
candidates running for all state offices. In the years that fol-
lowed, Arizona, Massachusetts, North Carolina, New Mexico,
New Jersey, Hawaii, and West Virginia all experimented with
publicly funded elections. In 2005, after the governor was sen-
tenced to federal prison on corruption charges, Connecticut
passed a bill that banned lobbyist contributions to campaigns
and allowed candidates to receive public funding once they
showed that they had broad-based public support for their cam-
paign. For state Senate, candidates have to raise $15,000 from at
300 corruption in america

least 300 people, in amounts of $5 to $100. To run for state rep-

resentative, candidates must raise $5,000 from at least 150 resi-
dents. Once they have raised that much, they get a fixed grant,
sufficient to make them competitive. In New York City, candi-
dates get a six-to-one match, receiving six city dollars for every
dollar of the first $175 from any given contributor. That means a
$100 contribution is worth $700 to a candidate. The public
match applies only for New York City residents, and not PACs,
unions, lobbyists, people doing business with the city, or people
who live elsewhere. That means three $100 contributions from
New York City residents result in $2,100, larger than a $2,000
PAC contribution or out-of-state individual contribution. The
experience in both Connecticut and New York is that these sys-
tems reduce lobbyist influence and make it harder for lobbyists
to get meetings. Candidates spend more time with constituents
and less time fund-raising, and different kinds of people run for
office, people who would not think they could find donors with
$2,000 to support their campaigns. More women and minori-
ties run for office. A voucher system has never been tried, but it
is a key element of a law introduced by Congressman John Sar-
banes in 2014. Instead of matching funds, it gives voters a tax
credit that they can spend on a political campaign of their
choice. The basic genius of all these systems is Madisonian: men
are not angels, but they can be induced to be more attentive to
the public by structure. A system that financially rewards can-
didates who appeal to large donors has internal moral negative
effects: it makes the job of the candidate to serve excessive pri-
vate interests, when the job of the representative is to serve
broader interests. It creates a foundational role contradiction
within the job. It institutionalizes corruption. A system that re-
 conclusion 301

wards candidates that get tens of thousands of signatures, or

tens of thousands of $25 donations, will encourage candidates
to spend their intellectual and emotional energies on a broad
public. It diff uses the role contradiction and makes it more pos-
sible to serve all interests. Instead of institutionalizing corrup-
tion, it more closely aligns the job of the candidate with the job
of the representative.
Another way of reducing corruption is to fight against mo-
nopolies per se. There is a long American tradition of suspicion
of concentrated economic power because of its tendency to cor-
rupt government and turn it from a democracy into a plutocracy.
In 1906, Taft argued that the Sherman Act had saved the nation
from a potential “plutocracy” and described the bill as a protec-
tion of economic and political freedoms. The Sherman Act and
its later companions—the Clayton Act and the Robinson-
Patman Act—played a critical role in maintaining decentralized
political and economic power from the late 1930s to the 1970s.
After that they were gutted and they now serve only to discipline
the most egregious anticompetitive activity. As of 2014 most of
the markets for essential goods are governed by monopolies.
Retail is governed by Walmart and Amazon; cable is governed
by Comcast; finance is governed by four banks; and meat pro-
duction is governed by four companies. These minigovernments
then use their economic power to exercise direct political power.
Corruption as understood by the framers flows from monopoly
because the monopolists can extract political concessions and
subsidies from their role as little autocrats of their individual
markets. A return to traditional ideas of political antitrust,
strengthened by new laws, would make combination for the sake
of concentrating political power more difficult.
302 corruption in america

When one looks at the reach of world history and human

government, self-government appears a rare thing, a small set
of remarkable moments when people come together as different
but equal and collectively make decisions from a perspective of
equality about general rules that all bind themselves to. This
scarcity of democracy could be explained either by the sponta-
neity or by the fact that it may be difficult to achieve and more
difficult to maintain. The arc of history has not tended inevita-
bly toward self-government, and there is no reason to believe it
is the most natural and stable resting place for human affairs.
Instead, self-government is not easy and requires a blend of
commitments, both structural and cultural. The kind of politi-
cal corruption I have described in this book is a demanding con-
cept. It leads to condemning what seems normal and easy and
what we would rather have outside the realm of condemnation.
But it may be that persistent self-government requires persis-
tent vigilance against the use of public channels for private ends.
We have substantial resources, including the resources of his-
tory, to give us the courage—collective courage—to attempt to
continue the experiment in liberty.

• • •

In April 2014, shortly before this book went to press, the Su-
preme Court decided McCutcheon v. FEC. The question before
the Court was whether Congress violated the First Amend-
ment by passing a law that limited the total amount of money
an individual could give to all federal candidates. Chief Justice
John Roberts wrote for the majority, concluding that this ag-
 conclusion 303

gregate limit violated the First Amendment. The Alabama

businessman McCutcheon, he held, could not be restrained
in giving as much money to as many candidates and parties as
he desired.
The decision in McCutcheon relied on Buckley v. Valeo in
equating all money spent for political campaigns with First
Amendment speech. It reinforced earlier decisions holding that
political equality is not a legitimate reason for Congress to pass
a campaign finance law. But most importantly for our purposes,
it defined corruption narrowly as quid pro quo. According to
Justice Roberts, gratitude is not corrupting, and the access and
influence that campaign contributions create are not corrupt-
ing. The opinion signals the real possibility that all contribu-
tion limits will be struck down. Throughout the opinion, Rob-
erts shows real skepticism for the idea of the public good. He is
also skeptical of the view that representative instruments of
government can play a role in protecting us from corrupting
tendencies.
Roberts appears confused about the relationship between
different types of corruption laws. He defines the constitutional
concept of corruption by reference to a particular criminal law
case, McCormick (the case discussed in Chapter 12). In McCor-
mick, the Court was trying not to define corruption in a global
sense, but to interpret congressional intent in writing a federal
criminal statute. Roberts’s use of McCormick is like defining the
First Amendment by reference to a case interpreting a state stat-
ute that uses the word speech.
The use of the quid pro quo definition leaves the opinion feel-
ing theoretically thin. Without history or theory, it is unclear
304 corruption in america

why corruption has any special place at all in the constitutional

vision. Increasingly, it seems that it does not: the pride of place is
mere lip service to Buckley. This portends the end of all campaign
finance restrictions. Corruption was first stripped of its mean-
ing, and seems likely to be stripped of any power at all.
There are moments when Roberts seems to feel the shaki-
ness of his foundations. Roberts admits that “the line between
quid pro quo and general influence may seem vague at times,” but,
he argues, “the distinction must be respected in order to safe-
guard basic First Amendment right.” In other words, he knows
that corruption is not only quid pro quo, and he knows that quid
pro quo provides no real clear lines. But if he knows these things,
why not take the next natural step and directly engage the foun-
dational questions of the values that anticorruption laws serve
and their role in a democracy? As I’ve intimated elsewhere, it is
hard to know whether Roberts, and his colleagues on the Court,
genuinely believe that democracy can survive the assault of self-
interested money or whether they recognize that we are under
assault and simply mistrust Congress more than they mistrust
private interests.
My hope is that lawmakers will quickly act to pass public
funding systems and anti-monopoly laws to protect our civic
culture. I sometimes feel like our country is both young and old,
like the eighty-one-year-old Franklin, floating in his hoped-for
air balloon. We are in many ways inside his magical experiment,
and it has been every bit as extraordinary as imagined. It has
brought people to levels often dreamed of, and rarely achieved:
where they live together in peace, exercising collective power
over their own lives. I have no doubt that this represents one of
the greatest achievements in human history. But democracy,
 conclusion 305

without constant vigilance against corruption, is an unstable,

unmoored thing, subject to great gusts of whimsy, and likely to
collapse. There is no one walking below, holding the string: we
need obstacles, restraints, an unbreakable connection between
the public and the representatives.
 Appendix One

j
Anticorruption
Constitutional Provisions

article i, section 2, clause 1. The House of Representatives shall be

composed of Members chosen every second Year by the People of the sev-
eral States, and the Electors in each State shall have the Qualifications req-
uisite for Electors of the most numerous Branch of the State Legislature.
article i, section 2, clause 2. No Person shall be a Representative
who shall not have attained to the Age of twenty five Years, and been seven
Years a Citizen of the United States, and who shall not, when elected, be an
Inhabitant of that State in which he shall be chosen.
article i, section 2, clause 3. The Number of Representatives shall
not exceed one for every thirty Thousand, but each State shall have at Least
one Representative.
article i, section 2, clause 3. Representatives and direct Taxes shall
be apportioned among the several States which may be included within this
Union, according to their respective Numbers, which shall be determined
by adding to the whole Number of free Persons, including those bound to
Service for a Term of Years, and excluding Indians not taxed, three fifths of
all other Persons. The actual Enumeration shall be made within three years
after the first Meeting of the Congress of the United States, and within every
subsequent Term of ten Years, in such Manner as they shall by Law direct.
308 appendix 1

The Number of Representatives shall not exceed one for every thirty Thou-
sand, but each State shall have at Least one Representative; and until such
enumeration shall be made, the State of New Hampshire shall be entitled
to chuse three, Massachusetts eight, Rhode Island and Providence Planta-
tions one, Connecticut five, New York six, New Jersey four, Pennsylvania
eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South
Carolina five, and Georgia three.
article i, section 3, clause 1. The Senate of the United States shall
be composed of two Senators from each State, chosen by the Legislature
thereof for six Years, and each Senator shall have one Vote.
article i, section 3, clause 3. No Person shall be a Senator who shall
not have attained to the Age of thirty Years, and been nine Years a Citizen
of the United States, and who shall not, when elected, be an Inhabitant of
that State for which he shall be chosen.
article i, section 5, clause 3. Each House shall keep a Journal of its
Proceedings, and from time to time publish the same, excepting such Parts
as may in their Judgment require Secrecy; and the Yeas and Nays of the
Members of either House on any question shall, at the Desire of one fifth of
those Present, be entered on the Journal.
article i, section 6, clause 1. The Senators and Representatives
shall receive a Compensation for their Services, to be ascertained by Law,
and paid out of the Treasury of the United States.
article i, section 6, clause 2. No Person holding any Office under
the United States, shall be a Member of either House during his Continu-
ance in Office. No Senator or Representative shall, during the Time for
which he was elected, be appointed to any civil Office under the Authority
of the United States, which shall have been created, or the Emoluments
whereof shall have been increased during such time.
article i, section 8. Congress shall have the power . . .
Clause 8. To promote the Progress of Science and useful Arts, by secur-
ing for limited Times to Authors and Inventors the exclusive Right to
their respective Writings and Discoveries.
 appendix 1 309

Clause 12. To raise and support Armies, but no Appropriation of Money

to that Use shall be for a longer Term than two Years.
article i, section 9.
Clause 7. No money shall be drawn from the Treasury, but in Consequence
of Appropriations made by Law; and a regular Statement and Account of
Receipts and Expenditures of all public Money shall be published from
time to time.
Clause 8. No Title of Nobility shall be granted by the United States:
And no Person holding any Office of Profit or Trust under them, shall,
without the Consent of the Congress, accept of any present, Emolument,
Office, or Title, of any kind whatever, from any King, Prince, or foreign
State.
article ii, section 1, clause 1. The executive Power shall be vested in
a President of the United States of America. He shall hold his Office during
the Term of four Years, and, together with the Vice President, chosen for the
same Term, be elected.
article ii, section 1, clause 7. The President shall, at stated Times,
receive for his Services, a Compensation, which shall neither be increased nor
diminished during the Period for which he shall have been elected, and he
shall not receive within that Period any other Emolument from the United
States, or any of them.
article ii, section 2, clause 2. He shall have Power, by and with the
Advice and Consent of the Senate, to make Treaties, provided two thirds of
the Senators present concur.
article ii, section 2, clause 2. . . . he shall nominate, and by and
with the Advice and Consent of the Senate, shall appoint Ambassadors,
other public Ministers and Consuls . . . and all other Officers of the United
States, whose Appointments are not herein otherwise provided for, and
which shall be established by Law: but the Congress may by Law vest the
Appointment of such inferior Officers, as they think proper, in the President
alone, in the Courts of Law, or in the Heads of Departments.
310 appendix 1

article ii, section 2, clause 2. [The President] shall have Power, . . .

by and with the Advice and Consent of the Senate, [to appoint] Judges of
the supreme Court.
article ii, section 4. The President, Vice President and all civil Officers
of the United States, shall be removed from Office on Impeachment
for, and Conviction of, Treason, Bribery, or other high Crimes and
Misdemeanors.
article iii, section 1. The Judges, both of the supreme and inferior
Courts, shall hold their Offices during good Behaviour, and shall, at stated
Times, receive for their Services a Compensation, which shall not be di-
minished during their Continuance in Office.
amendment v. . . . nor shall private property be taken for public use,
without just compensation.
amendment xvii. The Senate of the United States shall be composed of
two Senators from each State, elected by the people thereof, for six years;
and each Senator shall have one vote. The electors in each State shall have
the qualifications requisite for electors of the most numerous branch of the
State legislatures.
amendment xxvii. No law, varying the compensation for the services of
the Senators and Representatives, shall take effect, until an election of Rep-
resentatives shall have intervened.
 Appendix T wo

j
Major Nineteenth- and
Twentieth-Century
Anticorruption Laws

mail fraud act (1872). Covered state and federal officials, criminalized
the use of the mails for fraud, including, controversially, defrauding the
public. Interpreted in 1927 to criminalize the theft of honest services.
tillman act (1907). Prohibited corporations from contributing money
to federal campaigns.
In the 1920s, in response to the Teapot Dome scandal, Congress passed
laws requiring disclosure to enable enforcement of the corporate contribu-
tion laws.
hatch act (1939). Enacted regulation of primaries by Congress. Limited
contributions and expenditures in congressional elections. Prohibited all fed-
eral employees from soliciting campaign contributions. Amended in 1940 to
place limits on how much an individual could give to a candidate and a limit
on how much a national party committee could spend. After the Hatch Act,
total campaign spending dipped and did not reach 1936 levels until nearly a
quarter century later.
hobbs act (1946). Covered state and federal officials, controversially held
to criminalize the use of an official position to extort funds.
312 appendix 2

taft-hartley act (1947). Barred both labor unions and corporations

from making expenditures and contributions in federal elections.
federal bribery statute and federal gratuities statute
(1962). Covered federal officials and criminalized the giving or receiving of
something of value in exchange for official action or as a reward for prior
official action.
federal election campaign act (1974). Covered federal candidates,
limited expenditures (struck down) and contributions around elections,
and created public funding system for presidential elections.
federal program bribery statute (1984). Criminalized bribery of
state and local officials explicitly.
bipartisan campaign reform act (2002). Prohibited national politi-
cal party committees from raising or spending funds not subject to federal
limits. Definined “electioneering communications” as broadcast ads that
name a federal candidate within thirty days of a primary or caucus or
within sixty days of a general election.
 Notes

Introduction
1. Larry Tise, The American Counterrevolution: A Retreat from Liberty,
1783–1800 (Mechanicsburg, PA: Stackpole Books, 1998), 59.
2. Letter from William Temple Franklin to Thomas Jefferson, April 27,
1790, in The Founders’ Constitution, vol. 3, ed. Philip B. Kurland and Ralph
Lerner (Chicago: University of Chicago Press, 1987), 385. Picture of the cur-
rent portrait available at the website of the American Philosophical Society,
http://www.amphilsoc.org/exhibits/treasures/louis.htm.
3. Washington correspondent of the Chicago Press and Tribune, New
York Times, March 29, 1860, http://www.nytimes.com/1860/03/29/news
/the-newspaper-press-of-washington-and-new-york.html.
4. Robert Penn Warren, All the King’s Men (San Diego: Harcourt Brace,
1996), chapter 5.

1. Four Snuff Boxes and a Horse

1. Daniel Hays Lowenstein, “For God, for Country, or for Me,” Califor-
nia Law Review 74 (1986): 1481.
2. Stacy Schiff, A Great Improvisation: Franklin, France, and the Birth of
America (New York: Henry Holt, 2006).
3. Letter from Thomas Jefferson to William Short, October 3, 1801, in
Memoir, Correspondence and Miscellanies from the Papers of Thomas Jeffer-
son, vol. 3, ed. Thomas Jefferson Randolph (London: Henry Colburn and
Richard Bentley, 1829), 492.
314 notes to pages 19– 23

4. Benjamin H. Irvin, Clothed in Robes of Sovereignty: The Continental

Congress and the People Out of Doors (Oxford: Oxford University Press,
2011), 181.
5. John Bassett Moore and Francis Wharton, A Digest of International
Law (Washington, DC: U.S. Government Printing Office, 1906), 579.
6. Abraham de Wicquefort, The Embassador and His Functions, trans.
John Digby (London: Bernard Lintott, 1716), 292.
7. Plato’s Laws, Book 12, trans. Benjamin Jowett, hosted by the Internet
Classics Archive at the Massachusetts Institute of Technology, http://clas
sics.mit.edu/Plato/laws.12.xii.html.
8. My accounts of Silas Deane come from Joe R. Paul, Unlikely Allies:
How a Merchant, a Playwright, and a Spy Saved the American Revolution
(New York: Riverhead Books, 2009); Julian P. Boyd, “Silas Deane: Death by
a Kindly Teacher of Treason? Part I,” William and Mary Quarterly 16 (1959):
166; and Thomas Fleming, The Perils of Peace: America’s Struggle for Survival
after Yorktown (Washington, DC: Smithsonian Books, 2008).
9. Schiff, Great Improvisation, 153.
10. Fleming, Perils of Peace, 58.
11. For various discussions of this particular gift, see Mrs. Elizabeth
Duane Gillespie, A Book of Remembrance (Philadelphia: J. B. Lippincott,
1901), 27; Faye Strumpf, Limoge Boxes: A Complete Guide (Iola, WI: Krause
Publications, 2000), 134; and Julie Aronson and Marjorie E. Wiesemen,
Perfect Likeness: European and American Portrait Miniatures from the Cincin-
nati Art Museum (New Haven, CT: Yale University Press, 2006), 286. The
exact form, aside from the diamonds and the portrait, is uncertain. While
some of his contemporaries referred to the present as a box, and many his-
torians have assumed that it was a snuff box, his gift may have been lumped
in with the other snuff boxes even though it was dissimilar. It may have
been designed to hang from a chain as a pendant or later converted to a
pendant (Elle Shushan, personal communication, March 2014).
12. Arthur Lee, Papers in Relation to the Case of Silas Deane (Philadel-
phia: Seventy Six Society, 1855), 182.
13. Benjamin H. Irvin, Clothed in the Robes of Sovereignty (Oxford: Ox-
ford University Press, 2011), 181.
14. Lee, Papers, 166. Emphasis added.
 notes to pages 24–27 315

15. Richard Henry Lee, The Life of Arthur Lee (Boston: Wells and Lilly,
1829), 143.
16. Letter from Arthur Lee to the Committee of Foreign Affairs, Janu-
ary 19, 1780, in The Diplomatic Correspondence of the American Revolution
(Washington, DC: Rives, 1818), 580.
17. Letter from Vergennes to Luzerne, February 5, 1780, in Emerging Na-
tion: A Documentary History of the Foreign Relations of the United States under
the Articles of Confederation, vol. 1, ed. Mary A. Giunta (Washington, DC: U.S.
Independent Agencies and Commissions, 1996), 24, discovered in T. Lawrence
Larkin, “A ‘Gift’ Strategically Solicited and Magnanimously Conferred: The
American Congress, the French Monarchy, and the State Portraits of Louis
XVI and Marie-Antoinette,” Winterthur Portfolio 44 (2010): 31.
18. Letter from Arthur Lee, Diplomatic Correspondence, 580.
19. Emerging Nation, 198.
20. Letter from John Jay to Don Diego de Gardoqui, March 1, 1786, re-
printed in The Diplomatic Correspondence of the United States of America
(Washington, DC: Frances Preston Blair, 1833), 142.
21. Catherine Drinker Bowen, Miracle at Philadelphia: The Story of the Con-
stitutional Convention, May–September 1787 (Boston: Back Bay Books, 1986), 17.
22. Schiff, Great Improvisation, 153.
23. This was discussed in an opinion by the Office of Legal Counsel,
“President Reagan’s Ability to Receive Retirement Benefits from the State
of California,” Opinion of the Office of Legal Counsel 5 (1981): 188.
24. The other difference is that the “or any of them” is collapsed into the
“them” of the clause.
25. See Letter from John Quincy Adams to John Adams, June 7, 1797, in
Writings of John Quincy Adams, vol. 2, ed. Worthington Chauncey Ford
(New York: McMillan, 1913), 180n1.
26. The historical treatment of the “box” as Franklin’s comes from this
note, which was included in Max Farrand’s Records of the Federal Conven-
tion and therefore has achieved notoriety: “Dr. Franklin is the person al-
luded to by Randolph. In the winter of 1856, in Philadelphia, under the roof
of a venerable granddaughter of Dr. Franklin, I saw the beautiful portrait of
Louis XVI, snuff-box size, presented by that king to the doctor. As the por-
trait is exactly such as is contained in the snuff-boxes presented by Crowned
316 notes to pages 28–33

heads, one of which I have seen, it is probable this portrait of Louis was
originally attached to the box in question, which has in the lapse of years
been lost or given away by Dr. Franklin.” The Records of the Federal Conven-
tion of 1787, vol. 3, ed. Max Farrand (New Haven, CT: Yale University Press,
1911), 327, citing H. B. Grigsby, History of the Virginia Federal Convention of
1788, vol. 9 (Richmond: Virginia Historical Society Collections, 1980), 264.
It is of course possible that the snuff box was Lee’s or Deane’s.
27. See Edmund Randolph, “Remarks at the Virginia Convention De-
bates,” in David Robertson, Debates and Other Proceedings of the Convention
of Virginia of 1788, 2nd ed. (Richmond, VA: Enquirer Press, 1805), 321–345.
28. A First Amendment written with the same emphatic language would
have to be “Congress Shall Make no Law of any kind whatever . . .”
29. Merrill D. Peterson, Thomas F. Jefferson and the New Nation: A Biog-
raphy (Oxford: Oxford University Press, 1975), 401.
30. Martha Rojas, in Old World, New World: America and Europe in the
Age of Jefferson, ed. Leonard Sadowsky (Richmond: University of Virginia
Press, 2010), 179.
31. Howard C. Rice Jr., Thomas Jefferson’s Paris (Princeton, NJ: Prince-
ton University Press, 1976), 123.
32. “To Thomas Jefferson from William Short, 2 May 1791,” Founders
Online, National Archives, http://founders.archives.gov/documents/Jeffer
son/01-20-02-0103, source: The Papers of Thomas Jefferson, vol. 20, April
1–August 4, 1791, ed. Julian P. Boyd (Princeton, NJ: Princeton University
Press, 1982), 345–352.
33. John Bassett Moore, A Digest of International Law, vol. 5 (Washing-
ton, DC: Government Printing Office, 1906), section 651.

2. Changing the Frame

1. “To Benjamin Franklin from Georgiana Shipley,” February 11, 1777,
Founders Online, National Archives, http://founders.archives.gov/docu
ments/Franklin/01-23-02-0194, source: The Papers of Benjamin Franklin,
vol. 23, October 27, 1776, through April 30, 1777, ed. William B. Willcox (New
Haven, CT: Yale University Press, 1983), 303–306.
2. Edward Gibbon, The History of the Decline and Fall of the Roman Em-
pire, vol. 3, ed. H. H. Millman (London: John Murray, 1846), 166–167.
 notes to pages 34–36 317

3. “Begs the favour from mr. franklin that he Pleases to let him know by the
way of the Penny post if he wants more mr. Gibbon’s history of the Roman
Empire and Garma’s teatro de España. Mr. franklin may keep them if not
Read as long as he pleases but mr. Sarsfield wants to know it as one of those
Books do not belong to him and he desires to be able to give an account of it to
the owner.” “To Benjamin Franklin from the Comte de Sarsfield,” November
7, 1777, Founders Online, National Archives, http://founders.archives.gov
/documents/Franklin/01-25-02-0093, source: The Papers of Benjamin Franklin,
vol. 25, October 1, 1777, through February 28, 1778, ed. William B. Willcox (New
Haven, CT: Yale University Press, 1986), 143. He asked first in April, then in
late fall begged, “Si monsieur franklin n’a plus besoin . . . de l’histoire romaine
de M. Gibbons, il fera plaisir a M. de Sarsfield de les lui rapporter mercredi”
(“If Mr. Franklin doesn’t need M. Gibbon’s Roman history, it would please Mr.
Sarsfield if you could bring it back Wednesday”).“To Benjamin Franklin from
Guy-Claude, Comte de Sarsfield,” April 4, 1778, Founders Online, National
Archives, http://founders.archives.gov/documents/Franklin/01-26-02-0175,
source: The Papers of Benjamin Franklin, vol. 26, March 1 through June 30, 1778,
ed. William B. Willcox (New Haven, CT: Yale University Press, 1987), 241.
4. Bernard Bailyn, The Ideological Origins of the American Revolution
(Cambridge, MA: Belknap Press of Harvard University Press, 1992), 26.
“Did not Persia and Macedon distract the councils of Greece by acts of cor-
ruption?” (quoting Madison).
5. Ibid., 173.
6. Carl J. Richard, Greeks and Romans Bearing Gifts: How the Ancients In-
spired the Founding Fathers (Lanham, MD: Roman and Littlefield, 2009), 129.
7. Edmund Burke, “Speech on Conciliation with America,” March 22,
1775, reprinted in Edmund Burke, Selected Writings, ed. Peter Stanlis (New
Brunswick, NJ: Transaction Publishers, 2009), 193.
8. Gordon S. Wood, The Americanization of Benjamin Franklin (New
York: Penguin, 2005), 96.
9. Patrick Henry, “Speech in the Convention of Virginia on the Expedi-
ency of Adopting the Federal Constitution,” June 7, 1788, reprinted in E. B.
Williston, Eloquence of the United States, vol. 1 (Middletown, CT: E. and H.
Clark, 1827), 223. Note that Britain is a model and bogeyman—fundamental
admiration for British form undergirds design efforts for federalists and
318 notes to pages 37–42

antifederalists alike. See also Gordon S. Wood, The Creation of the Ameri-
can Republic, 1776–1787 (New York: W. W. Norton, 1969), 32.
10. Notes of Yates, June 22, 1787, in The Records of the Federal Convention
of 1787, vol. 1, ed. Max Farrand (New Haven, CT: Yale University Press,
1911) (hereafter Records).
11. Catherine Drinker Bowen, Miracle at Philadelphia: The Story of the Con-
stitutional Convention, May–September 1787 (Boston: Back Bay Books, 1986), 17.
12. Notes of Madison, August 14, 1787, in Records, vol. 2; Woody Holton
develops this idea in Unruly Americans and the Origins of the Constitution
(New York: Hill and Wang, 2007).
13. J. G. A. Pocock, The Machiavellian Moment: Florentine Political Thought
and the Atlantic Republican Tradition (Princeton, NJ: Princeton University
Press, 1975), 507.
14. Bailyn, Ideological Origins, xiii.
15. James D. Savage, “Corruption and Virtue at the Constitutional Con-
vention,” Journal of Politics 56 (1994): 181.
16. Bailyn, Ideological Origins, 131.
17. Notes of Yates, June 22, 1787, in Records, vol. 1, quoting Mason.
18. Gordon S. Wood, Radicalism of the American Revolution (New York:
Knopf, 1992), 109.
19. Ibid., 183.
20. Ibid., 108.
21. Ibid., 176.
22. Ibid., 175.
23. Lance Banning, The Jeffersonian Persuasion (Ithaca, NY: Cornell Uni-
versity Press, 1980), 47.
24. Bailyn, Ideological Origins, 345; one can also find a discussion in Don-
ald S. Lutz, “The Relative Influence of European Writers on Late Eighteenth-
Century American Political Thought,” American Political Science Review 78
(1984): 189.
25. Aristotle, Nichomachean Ethics, Book 8, ch. 10, para. 1 (Minneapolis,
MN: Filiquarian Publishing, 2007).
26. Charles de Montesquieu, The Spirit of Laws [1748], trans. Melvin
Richter (Cambridge: Cambridge University Press, 1991), Book 4.
27. Ibid., Book 5, ch. 3, para. 1.
 notes to pages 42–49 319

28. Ibid., Book 5, ch. 2, para. 1.

29. For a full discussion of this, see Simone Goyard-Fabre’s discussion of
Montesquieu as the anti-Hobbes. Simone Goyard-Fabre, Montesquieu ad-
versaire de Hobbes (Paris: Les Lettres Modernes, 1980).
30. “Summer 1759,” Founders Online, National Archives, http://founders
.archives.gov/documents/Adams/01-01-02-0004-0007-0001, source: The Ad-
ams Papers, Diary and Autobiography of John Adams, vol. 1, 1755–1770, ed. L. H.
Butterfield (Cambridge, MA: Harvard University Press, 1961), 103–123.
31. “Letter to Frances Gilmer,” March 1816, in Memoir, Correspondence.
For further evidence of Jefferson’s rejection of Hobbes, see David Tucke,
Enlightened Republicanism: A Study of Jefferson’s Notes on the State of Vir-
ginia (Lanham, MD: Lexington Books, 2008).
32. To be fair, some historians argue that the republicanism of the era has
been overstated, and that liberalism is the key to understanding the Consti-
tution. For one example, see Isaac Kramnick, “Republican Revisionism Re-
visited,” The American Historical Review 87, no. 3 (June 1982): 629–664.
33. W. M. Spellman, John Locke (New York: Palgrave Macmillan, 1997), 139.
34. John Locke, An Essay Concerning Human Understanding (Amherst,
MA: Prometheus Books, 1995), 19.
35. John Locke, “Of the Dissolution of Government,” in The Second Trea-
tise of Government and A Letter Concerning Toleration (Mineola, NY: Do-
ver, 2002), 100.
36. Barry Alan Shain, The Myth of American Individualism (Princeton,
NJ: Princeton University Press, 1994), 24.
37. Samuel Pufendorf, On the Duty of Man and Citizen according to Natu-
ral Law, Book 2, ch. 17 [1673], trans. Michael Silverthorne, ed. James Tully
(Cambridge: Cambridge University Press, 1991).
38. Ibid., Book 2, ch. 8.
39. Noah Webster, Instructive and Entertaining Lessons for Youth (New
Haven, CT: S. Babcock and Durrie & Peck, 1835), 230.
40. Lance Banning, “Some Second Thoughts on Virtue and the Course of
Revolutionary Thinking,” in Conceptual Change and the Constitution, ed. Ter-
ence Ball and J. G. A. Pocock (Lawrence: University Press of Kansas, 1988), 200.
41. Federalist No. 55 (James Madison).
42. Notes of Madison, July 19, 1787, in Records, vol. 2.
320 notes to pages 49–55

43. Federalist No. 10 (James Madison).

44. Notes of Madison, July 19, 1787, in Records, vol. 2, quoting Gouver-
neur Morris saying: “The check provided in the 2d. branch was not meant
as a check on Legislative usurpations of power, but on the abuse of lawful
powers, on the propensity in the 1st. branch to legislate too much to run
into projects of paper money & similar expedients.”
45. Lawrence Lessig, brief for the government as Amicus Curiae, Mc-
Cutcheon v. FEC, 572 U.S. ___ (2014).
46. Robert G. Natelson, “The General Welfare Clause and the Public
Trust: An Essay in Original Understanding,” University of Kansas Law Re-
view 52 (2003): 48.
47. Bailyn, Ideological Origins, 379.
48. Montesquieu, Laws, Book 2, ch. 2, para. 26.
49. “Letter from George Washington to the Marquis de Lafayette,” Feb-
ruary 7, 1788, reprinted in The Writings of George Washington, ed. Lawrence
Boyd Evans (New York: G. P. Putnam’s Sons, 1908), 291.
50. James Madison, “Remarks during the Virginia Debate on the Adop-
tion of the Federal Constitution,” June 20, 1788, reprinted in State Ratification
Debates, vol. 3, 531, 537. See generally Bailyn, Ideological Origins, 367–393.
51. Notes of Rufus King, June 1, 1787; Notes of Madison, June 1, 1787,
in Records, vol. 1.
52. David Hume, Essays and Treatises on Several Subjects (London: A.
Millar, 1758), 32.
53. Shain, Myth, 160–169.
54. St. George Tucker, Blackstone’s Commentaries: With Notes of Reference
to the Constitution and Laws, of the Federal Government of the United States;
and of the Commonwealth of Virginia (1803), 119. See also Charles S. Sydnor,
American Revolutionaries in the Making: Political Practices in Washington’s
Virginia (New York: Free Press, 1965), 87.
55. Lawrence Lessig, Republic, Lost: How Money Corrupts Congress and a
Plan to Stop It (New York: Hachette Publishing, 2011).
56. Wood, Radicalism, 104.
57. Niccòlo Machiavelli, Discourses of Livy [1531] (Oxford: Oxford Uni-
versity Press, 1997), 298–300.
58. Notes of Madison, July 19, 1787, in Records, vol. 2.
59. Federalist No. 75 (Alexander Hamilton).
 notes to pages 56–66 321

3. Removing Temptations
1. “Letter from Benjamin Franklin to Jean-Baptiste Leroy,” in Memoirs of
the Life and Writings of Benjamin Franklin, vol. 6 (London: Henry Colburn,
1818), 496.
2. Federalist No. 68 (Alexander Hamilton).
3. See James D. Savage, “Corruption and Virtue at the Constitutional
Convention,” Journal of Politics 56 (1994): 181. A review of Madison’s and
Yates’s notes shows that “corruption,” and “corrupt” (not including “corrup-
tion of blood” and its variants) show up in discussions twice as often as “fac-
tion” or “factions” and twice as often as “violent” or “violence.” See generally
Notes of Madison and Notes of Yates, in The Records of the Federal Conven-
tion of 1787, vols. 1 and 2, ed. Max Farrand (New Haven, CT: Yale University
Press, 1911) (hereafter Records).
4. J. G. A. Pocock, The Machiavellian Moment: Florentine Political Thought
and the Atlantic Republican Tradition (Princeton, NJ: Princeton University
Press, 1975), 513.
5. Notes of Madison, June 2, 1787, in Records, vol. 1.
6. Annals of Congress, vol. 1 (1789–1790), 581, in Records, vol. 3.
7. U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 794 n.11 (1995) (Thomas,
J. dissenting, “The Ineligibility Clause was intended to guard against corrup-
tion.”). See also “Remarks of Alexander Hamilton,” in Records, vol. 1, 381;
Freytag v. IRS, 501 U.S. 868, 904 (1991) (Scalia, J. concurring in part and con-
curring in the judgment, “The Framers’ experience with postrevolutionary
self-government had taught them that combining the power to create offices
with the power to appoint officers was a recipe for legislative corruption.”)
8. Notes of Yates, June 22, 1787, in Records, vol. 1.
9. Notes of Madison, August 14, 1787, in Records, vol. 2.
10. Selected Works of Thomas Paine & Citizen Tom Paine, ed. Howard
Fast (New York: Modern Library, 1946), 6, 10.
11. Notes of Madison, September 6, 1787, in Records, vol. 2.
12. Notes of Yates, June 22, 1787, in Records, vol. 1, quoting Mason.
13. Ibid., quoting Butler.
14. Annals of Congress, vol. 1 (1798), 905, in Records, vol. 3, 375.
15. Ibid.
16. Ibid.
322 notes to pages 66–74

17. “McHenry Speech to the Maryland State House of Delegates,” No-

vember 29, 1787, in William Hand Browne, Maryland Historical Magazine
(Louis Henry Dielman Maryland Historical Society, 1909).
18. Notes of Yates, June 22, 1787, in Records, vol. 1.
19. Federalist No. 52 (James Madison).
20. Notes of Madison, June 16, 1787, in Records, vol. 1. (“Theory & prac-
tice both proclaim it. If the Legislative authority be not restrained, there
can be neither liberty nor stability; and it can only be restrained by dividing
it within itself, into distinct and independent branches. In a single House
there is no check, but the inadequate one, of the virtue & good sense of
those who compose it.”)
21. See Savage, “Corruption,” 177. (“In each case, corruption is related to
the fear of depedency, where dependency was a function of size.”) Savage
makes a stronger claim that I would after reading the notes. Size was a fre-
quent topic—and the most startling for a visitor from the present—but cer-
tainly not the only context in which corruption was considered.
22. Federalist No. 62 (James Madison).
23. Notes of Madison, July 10, 1787, in Records, vol. 1.
24. Notes of Madison, August 17, 1787, in Records, vol. 2.
25. Notes of Madison, August 14, 1787, in Records, vol. 2.
26. Notes of Madison, July 20, 1787, in Records, vol. 2.
27. Savage, “Corruption,” 181.
28. “Letter from James Madison to George Hay,” August 23, 1823, in Doc-
umentary History of the Constitution of the United States of America, 1787–1870
(Washington, DC: Department of State, 1905), 316.
29. Federalist No. 39.
30. “Mr. Williamson for a six year term: ‘The expence will be considerable
& ought not to be unnecessarily repeated. If the Elections are too frequent, the
best men will not undertake the service and those of an inferior character will
be liable to be corrupted.’ ” Notes of Madison, July 19, 1787, in Records, vol. 2.
31. Notes of Yates, June 6, 1787, in Records, vol. 1.
32. Federalist No. 66.
33. Debates in the Several State Conventions, vol. 2 (New York: Burt Frank-
lin, 1888), 264.
34. Lord John Russell, “Speech on Parliamentary Reform,” partially re-
printed in Readings in Modern Europe History: A Collection of Extracts . . . ,
 notes to pages 74–81 323

vol. 2, ed. James Harvey Robinson and Charles Austin Beard (Boston:
Ginn & Company, 1909), 240.
35. Speech of John Wilkes, “Debate on Mr. Wilkes Motion for a More
Equal Representation,” in The Parliamentary History of England, vol. 18,
1774–1777 (London: T. C. Hansard, 1803), 1296.
36. Ralph Griffiths, “Review of George Edwards, Royal and Constitu-
tional Regeneration of Great Britain,” in The Monthly Review (London: T.
Becket, January–April 1791), 72.
37. Notes of King Rufus, August 8, 1787 (quoting Mason); Notes of
Madison, August 8, 1787, in Records, vol. 2.
38. Notes of Madison, August 8, 1787, in Records, vol. 2.
39. Akhil Reed Amar, America’s Constitution: A Biography (New York:
Random House, 2005), 70.
40. Notes of Madison, July 20, 1787, in Records, vol. 2.
41. See, e.g., Colonel Richard D. Rosen, “Funding ‘Non-Traditional’
Military Operations: The Alluring Myth of a Presidential Power of the
Purse,” Military Law Review 155 (1998): 25–44 (describing English his-
tory that formed the background for the appropriations clause); and
Kate Stith, “Congress’ Power of the Purse,” Yale Law Journal 97 (1988):
1352–1353.
42. Adrien Vermeule, “Essay: The Constitutional Law of Official Com-
pensation,” Columbia Law Review 102 (2002): 509.
43. See United States v. Richardson, 418 U.S. 166, 167 n.1 (1974).
44. Malla Pollack, “Purveyance and Power or Over-Priced Free Lunch:
The Intellectual Property Clause as an Ally of the Takings Clause in the
Public’s Control of Government,” Southwestern University Law Review 30
(2000).
45. Notes of Madison, September 8, 1787, in Records, vol. 2.
46. Lawrence Lessig, “A Reply to Professor Hasen,” Harvard Law Re-
view Forum 26 (2013): 70.

4. Yazoo
1. “Report from Congress, January 4,” New York Evening Post, January 8,
1808, 2.
2. Ibid.; “Tombigbee Celebration of the Declaration of Independence,”
Raleigh (NC) Weekly Register, November 9, 1809, 4.
324 notes to pages 83– 91

3. John T. Noonan, Bribes: The Intellectual History of a Moral Idea

(Collingdale, PA: Diane Publishing Company, 1984), 436. (“Representative
Thomas Raburn, for example, was reproached for selling his vote for $600
while others got $1,000. Raburn replied it showed he was easily satisfied
and not greedy.”)
4. Ibid.
5. Peter C. McGrath, Yazoo: Law and Politics in the New Republic, the
Case of Fletcher v. Peck (Providence, RI: Brown Unviversity Press, 1966).
6. Albert J. Beveridge, The Life of John Marshall, vol. 3 (Boston: Hough-
ton Mifflin, 1919), 551.
7. Joel Chandler Harris, Stories of Georgia (New York: American Book
Company, 1896), 133–134.
8. Ibid., 134.
9. Tracy Jenkins, “Conflict of Interest in the Yazoo Affair,” James Blair
Historical Review 3 (2012): 49, 58.
10. Henry Adams, John Randolph (Boston: Houghton and Miffl in, 1882),
125–126.
11. Ibid., 108–109.
12. Ibid., 107.
13. Thomas H. Palmer, The Historical Register of the United States (Phila-
delphia: T. H. Palmer, 1814), 200.
14. Ibid., 201.
15. Among many other sources discussing this see Noonan, Bribes, 440.
16. American Law Review, vol. 1 (Boston: Little, Brown, 1867), 278.
17. R. Kent Newmyer, John Marshall and the Historic Age of the Supreme
Court (Baton Rouge: Louisiana State University Press, 2001), 37.
18. There were other issues in the case that I do not explore because they
are not directly relevant to the question of corrupt laws.
19. Francis Hutcheson, An Inquiry into the Original of Our Ideas of Beauty
and Virtue: In Two Treatises (London: R. Ware, 1725), 296.
20. Richard Price, “Observations on the Nature of Civil Liberty, the
Principles of Government, and the Justice and the Policy of the War with
America,” in Price: Political Writings, ed. D. O. Thomas (Cambridge: Cam-
bridge University Press, 1991), 22.
21. John Locke, Second Treatise of Government, ed. C. B. Macpherson
(Indianapolis, IN: Hackett Publishing, 1980), 68.
 notes to pages 92–96 325

22. For a further discussion and arguments that governments are agents
of their constituents, see Ethan J. Leib, David L. Ponet, and Michael Se-
rota, “A Fiduciary Theory of Judging,” California Law Review 101 (2013);
Robert G. Natelson, “The Agency Law Origins of the Necessary and Proper
Clause,” Case Western Law Review 55 (2004); and D. Theodore Rave, “Politi-
cians as Fiduciaries,” Harvard Law Review 126 (2013).
23. Theoretically, if Peck attempted to enforce his contract against the
state, he could lose, because in that case it would not be incidental. This
leads to two different legal determinations of the validity of a legislative act
depending on whether the corruption charges are incidental or central.
Probably because of the problems that would arise out of this inconsistency,
most commentators and courts have treated this case as standing for a hold-
ing he claims he is not making: that corrupt process is irrelevant.
24. For a further discussion of this argument, see Mark Graber, “Naked
Land Transfers and American Constitutional Development,” Vanderbilt
Law Review 53 (2000): 79.
25. According to Marshall, “The contract between Georgia and the pur-
chasers was executed by the grant. A contract executed, as well as one which
is executory, contains obligations binding on the parties. A grant, in its own
nature, amounts to an extinguishment of the right of the grantor, and im-
plies a contract not to reassert that right. A party is, therefore, always es-
topped by his own grant.” However, the changing of the contract to a grant
(an executed contract) does not change the obligations of the initial con-
tract. He concluded that “a law annulling conveyances between individuals,
and declaring that the grantors should stand seised of their former estates,
notwithstanding those grants, would be as repugnant to the constitution as
a law discharging the vendors of property from the obligation of executing
their contracts by conveyances. It would be strange if a contract to convey
was secured by the constitution, while an absolute conveyance remained
unprotected. . . . If, under a fair construction of the constitution, grants are
comprehended under the term contracts, is a grant from the state excluded
from the operation of the provision? Is the clause to be considered as inhib-
iting the state from impairing the obligation of contracts between two indi-
viduals, but as excluding from that inhibition contracts made with itself?
The words themselves contain no such distinction. They are general, and
are applicable to contracts of every description. If contracts made with the
326 notes to page 98

state are to be exempted from their operation, the exception must arise
from the character of the contracting party, not from the words which are
employed.” Even if it is a contracts case, Mark Graber argues, persuasively,
that the bulk of the reasoning in Fletcher v. Peck relies on common-law rules
about contracts and conveyances, and it is not really a case about the im-
pairment of contracts. Graber, “Naked Land Transfers.” It is also, as a his-
torical matter, a weak reading. Forrest McDonald has argued that this
clause was not even intended to be there in the first place. Forrest McDon-
ald, Novus Ordo Seclorum: The Intellectual Origins of the Constitution (Law-
rence: University Press of Kansas, 1985), 273. As David Currie suggested in
his classic treaty, the “impairments of contract” clause can be seen in many
ways as an early, Marshall Court version of the later “substantive due pro-
cess.” David P. Currie, The Constitution in the Supreme Court: The First Hun-
dred Years, 1789–1888 (Chicago: University of Chicago Press, 1985). Both
were restrictions on the scope of legislative supremacy. See Timothy Sand-
efur, “Privileges, Immunities, and Substantive Due Process,” New York Uni-
versity Journal of Law and Liberty 5 (2010) (discussion of the relationship be-
tween substantive due process and the impairment of contracts). See also
James Oakes, “ ‘Property Rights’ in Constitutional Analysis Today,” Wash-
ington Law Review 56 (1981): 590–591. Oakes draws the parallel between the
obligations of contracts cases and the substantive due process cases neatly,
arguing that the first phase of property rights treatment was from Fletcher to
1887, when the contracts clause was used to invalidate dozens of pro-debtor
pieces of legislation; the second phase was the substantive due process era.
26. It is also, as a historical matter, a weak reading. Forrest McDonald
has argued that this clause was not even intended to be there in the first
place. Forrest McDonald, Novus Ordo Seclorum: The Intellectual Origins of
the Constitution (Lawrence: University Press of Kansas, 1985), 273. As David
Currie suggested in his classic treaty, the “impairments of contract” clause
can be seen in many ways as an early, Marshall Court version of the later
“substantive due process.” David P. Currie, The Constitution in the Supreme
Court: The First Hundred Years, 1789–1888 (Chicago: University of Chicago
Press, 1985). Both were restrictions on the scope of legislative supremacy.
See Timothy Sandefur, “Privileges, Immunities, and Substantive Due Pro-
cess,” New York University Journal of Law and Liberty 5 (2010) (discussion of
the relationship between substantive due process and the impairments of
 notes to pages 99–102 327

contracts). See also James Oakes, “ ‘Property Rights’ in Constitutional

Analysis Today,” Washington Law Review 56 (1981): 590–591. Oakes draws
the parallel between the obligations of contracts cases and the substantive
due process cases neatly, arguing that the first phase of property rights
treatment was from Fletcher to 1887, when the contracts clause was used to
to invalidate dozens of pro-debtor pieces of legislation; the second phase
was the substantive due process era.).
27. James W. Ely, The Guardian of Every Other Right: A Constitutional His-
tory of Property Rights, 3rd ed. (Oxford: Oxford University Press, 2008), 64.
28. “Thomas Jefferson to James Madison,” May 25, 1810, Founders On-
line, National Archives, http://founders.archives.gov/documents/Jefferson
/03-02-02-0362, source: The Papers of Thomas Jefferson, Retirement Series,
vol. 2, 16 November 1809 to 11 August 1810, ed. J. Jefferson Looney (Princeton,
NJ: Princeton University Press, 2005), 416–417.
29. Ibid.
30. “To James Madison from Thomas Jefferson,” October 15, 1810, Found-
ers Online, National Archives, http://founders.archives.gov/documents
/Madison/03-02-02-0734, source: The Papers of James Madison, Presidential
Series, vol. 2, 1 October 1809–2 November 1810, ed. J. C. A. Stagg, Jeanne Kerr
Cross, and Susan Holbrook Perdue (Charlottesville: University Press of
Virginia, 1992), 580–582.
31. The Writings of James Madison: 1808–1819 (New York: G. P. Putnam’s
Sons, 1908), 111–112, fn. 1. Madison is not entirely clear about his own per-
spective, but he is clearly not inclined to view Granger warmly, calling his
political prowess greater than his reason and mentioning his Yazooism as a
difficulty at three different points.
32. “Madison’s Observations on Jefferson’s Draft of a Constitution for
Virginia, October 1788,” Founders Online, National Archives, http://found
ers.archives.gov/documents/Jefferson/01-06-02-0255-0005, source: The Papers
of Thomas Jefferson, vol. 6, 21 May 1781–1 March 1784, ed. Julian P. Boyd
(Princeton, NJ: Princeton University Press, 1952), 308–317.

5. Is Bribery without a Remedy?

1. Sir John Eardley Eardley-Wilmot, A Tribute to Hydrotherapy, 3rd ed.
(London: Longman, Brown, Green, and Longman’s, 1855).
328 notes to pages 103– 108

2. Sir John Eardley Eardley-Wilmot, Is Bribery without a Remedy? A Let-

ter to the Right Honorable Lord John Russell, M.P. (London: James Kidgway,
Picadilly, 1853).
3. Sir Edward Coke, Institutes of the laws of England, Part Three (London:
E. & R. Brooke, 1797), 145.
4. An Act to Reform the Administration of Justice, June 1385, reprinted
in Select Documents of Constitutional History, ed. George Burton Adams and
Henry Morse Stephens (Norwood, MA: Macmillan, 1901), 147.
5. In 1350 the chief justice of the Supreme Court, William de Thorpe,
was put in prison and sentenced to hanging for taking bribes. But he was
pardoned the next year. The Thorpe story can be used as evidence of either
a weak or a strong rule of law, depending upon whether one focuses on the
conviction or the pardon.
6. William Blackstone, Commentaries on the Laws of England, vol. 4,
chap. 10 (Portland: Thomas B. Waite, 1807), 139–140.
7. Ibid., 140–141 (emphasis added).
8. Moreover, the cases were rare enough that the precise application of
corruption statutes to executive officers was ambivalent The mid-eighteenth-
century British judge Lord Mansfield was “aggressive,” as one biographer put
it, in his use of criminal justice, and took an expansive view of bribery when
he held that it was a bribe at common law to pay to get a clerkship in Jamaica.
“The absence of a statute proscribing a particular activity did not deter him
from trying a case if the activity was contrary to good morals.” Norman
Poser, Mansfield, Justice in the Age of Reason (Montreal: McGill–Queens
University Press, 2013), 260.
9. A. J. Cella, “The Doctrine of Legislative Privilege of Freedom of Speech
and Debate: Its Past, Present and Future as a Bar to Criminal Prosecutions
in the Courts,” Suffolk Law Review 2 (1968): 15.
10. United States v. Worrall, 2 U.S. 384 (1798).
11. For a fuller discussion of Worrall and its place in the development of
Samuel Chase’s philosophy, see Stephen Presser, “A Tale of Two Judges . . . ,”
Northwestern University Law Review 73 (March/April 1978).
12. Asher Crosby Hinds, Hinds’ Precedents of the House of Representatives
of the United States, vol. 2 (Washington, DC: Government Printing Office,
1907), 1048–1052, sections 1601–1603.
13. Ibid., 1058–1060.
 notes to pages 108–111 329

14. For a fuller discussion of the case’s role in contempt proceedings, see
Morton Rosenberg, Congress’s Contempt Power: Law, History, Practice, and
Procedure (Washington, DC: Congressional Research Service, 2008), 7–9.
15. The 1797 list of indictable crimes in Delaware included extortion, but
not bribery. Just as removal from office was the preferred method of pun-
ishment for many bribery statutes, the primary way in which extortion
was litigated was in the context of either contract law or “fee bills.” Fee
bills were statutes that allowed people who had been extorted to get their
money back. No intent was required in the fee bill—all someone would
have to do is demonstrate that they had paid an officer an amount in excess
of what was legally owed. See the discussion of fee bill statutes in Irons v.
Allen, 169 Pa. 633, 32 A. 655 (PA 1895) and State v. Andrews, 51 N.H. 582
(NH 1872).
16. All of these statutes are on file with the author.
17. On file with the author, cited in State v. Darnall, 20 Tenn. 290 (1839).
18. This tradition continued for some time. In 1881 Pennsylvania had a
law that anyone guilty of election-law violations—including bribery around
elections—was not eligible for future public office. Leonard v. Common-
wealth, 112 Pa. 607 (Pa. 1886).
19. See, e.g., Commonwealth v. Chapman, 1 Va. Cas. 138 (1803) (conviction
for offering the sheriff money to appoint certain people to a jury).
20. Newell v. Commonwealth, 2 Va. 88 (Va. 1795).
21. Thurston Greene, The Language of the Constitution: A Sourcebook and
Guide to the Ideas, Terms, and Vocabulary Used by the Framers of the United
States Constitution (Westport, CT: Greenwood, 1991), 108 (emphasis omit-
ted; quoting New Hampshire); The constitution of New Hampshire: as al-
tered and amended by a convention of delegates, held at Concord, in said state,
approved by the people, and established by the Convention, on the first Wednes-
day of September, 1792 (Concord: G. Hough, 1792), 67.
22. Supreme Court of Delaware, Definition of Indictable Crimes, 2 Del.
Cas. 235 (Del. Supr. 1797).
23. Compare with State v. Pritchard, 107 N.C. 921 (1890) and Leeman v.
State, 35 Ark. 438 (1880). See Respublica v. Hannum, 1 Yeates 71, 4 (Pa. 1791),
requiring intent, held: “There appear no criminal intentions, passionate ex-
pressions, threats, or partiality. It is proved that the prosecutor, believing the
bill to be reasonable, actually paid it willingly. We are therefore unanimously
330 notes to pages 112– 117

of opinion, that there are no proper grounds for a prosecution by way of

information.”
24. Martin v. State, 1 H. & J. 721 (Md. 1805).
25. Coates v. Wallace, 1 Ashm.
26. Commonwealth v. Shed, 1 Mass. 227, 229 (Mass. 1804) (emphasis in
original).
27. State v. Dickens, 2 N.C. 406 (N.C. Super. L&Eq. 1796).
28. Newell v. Commonwealth, 2 Va. 88 (1795).
29. A short case addressing whether insolvent debtors’ ability to pay shows
that there were some prosecutions for bribery. Commonwealth v. Chapman,
1 Va. Cas. 138 (Va. Gen. 1803).
30. James Monroe, Inaugural Address, March 4, 1817.
31. A Digest of the Statute Laws of the State of Georgia, vol. 2, ed. Thomas
Read Rootes Cobb (Athens, GA: Christy, Kelsey, and Burke, 1851), 805
(emphasis added).
32. The Revised Code of Laws of Illinois, comp. Samuel Drake Lockwood and
Theophilus Washington Smith (Vandalia, IL: Robert Blackwell, 1827), 141.
33. The Revised Statutes of the State of Michigan (Detroit: John S. Bagg,
Printer to the State, 1838), 639, 640.
34. Statutes on file with the author.
35. The Revised Statutes of Kentucky: Approved and Adopted by the Gen-
eral Assembly, comp. C. A. Wickliffe, S. Turner, and S. S. Nicholas (Frank-
fort, KY: A. G. Hodges, 1852), 273.
36. “An Act to Provide Against Corrupt Legislation,” in General Laws of the
State of Minnesota (Faribault, MN: Orville Brown, State Printer, 1860), 101.
37. Duke v. Asbee, 33 N.C. 112 (N.C. 1850).
38. Blackstone, Commentaries, vol. 4, chap. 10.
39. State v. Jackson, 73 Me. 91 (1881).
40. Act to Prevent Frauds on the Trea sury, Act of Feb. 26, 1853, ch. 81,
§ 6, 10 Stat. 171; see Cong. Globe, 32d Cong., 2d Sess. 392 (1853).
41. Act of Feb. 26, 1853; United States v. Jones, 5 Utah 552 (Utah. Terr.
1888); Palliser v. United States, 136 U.S. 257, 264 (1890).
42. On file with the author.
43. Revised Laws of Louisiana: Containing the Revised Statutes of the State
(Official Edition, 1870) as Amended by Acts of the Legislature, from the Session
 notes to pages 118– 121 331

of 1870 to that of 1896 Inclusive, and All Other Acts of a General Nature for the
Same Period, comp. and ann. Solomon Wolff (New Orleans: F. F. Hansel,
1897), Act 4, 218.
44. State v. Ellis, 33 N.J.L. 102 (N.J. 1868).
45. Walsh v. People, 65 Ill. 58 (Ill. 1872). (“At common law, bribery is a
grave and serious offense against public justice; and the attempt or offer to
bribe is likewise criminal.”) See also Commonwealth v. Brown, 23 Pa. Super.
470 (1903); State v. Farris, 229 S.W. 1100 (Mo. Ct. App. 1921); State v. Collins,
210 P. 569, 571 (N.M. 1922).
46. See, e.g., State v. Ragsdale, 59 Mo. App. 590 (Mo. App., 1894).
47. Joel Prentiss Bishop, Commentaries on the Criminal Law (Boston:
Little, Brown, 1882), sections 396–397, 225.
48. Francis Wharton, A Treatise on the Criminal Law of the United States,
5th ed., vol. 1 (Philadelphia: Kay and Brother, 1861), 411.
49. Randall v. Evening News Association, 97 Mich. 136, 143 (Mich. 1893).
50. Republic of Hawaii v. Young Hee, 10 Haw. 114 (Haw. 1895).
51. Reed v. State, 43 Tex. 319 (Tex. 1875).
52. Of course there were exceptions, as in In re Wellcome, 23 Mont. 450
(Mont. 1899).
53. People v. Tweed, 13 Abb. Pr. n.s. 25 (1872).
54. There was a small growth in reported criminal bribery and corruption
cases, but even with this growth, the number of extortion and bribery cases
was in the hundreds, not thousands. Though presumably this represents just a
fraction of the total cases at trial, and differently worded statutes may help ac-
count for the low number of cases I identified, the evidence nonetheless signals
a paucity of criminal corruption cases. Of those reported cases, a tiny fraction
involved legislators at the state or federal levels—a majority of the legislative
corruption cases involved school boards or other local officials, typically bribed
to vote for a particular candidate for a municipal office. The majority of bribery
cases involved a juror, a judge, or a libel charge; the majority of extortion cases
involved a sheriff or other local official charging too much in a fee.
55. Even in 1880 there were 20,000 people in American prisons, and fed-
eral prisons held just over 1,000 inmates in 1885. Kristofer Allerfeldt, Crime
and the Rise of Modern America: A History from 1865–1941 (London: Rout-
ledge, 2011), 75.
332 notes to pages 122–131

56. John T. Noonan, Bribes: The Intellectual History of a Moral Idea

(Collingdale, PA: Diane Publishing Company, 1984), 565. Parenthetical
added by the author.
57. George Haynes, The Election of Senators (New York: Henry Holt,
1906), 53.

6. Railroad Ties
1. Gilbert Geis, White-Collar and Corporate Crime: A Documentary and
Reference (Santa Barbara, CA: Greenwood, 2011), 113.
2. For a full history of this story, see John T. Noonan, Bribes: The Intel-
lectual History of a Moral Idea (Collingdale, PA: Diane Publishing Com-
pany, 1984), 460–501.
3. “Report of the Select Committee to Investigate the Alleged Credit
Mobilier,” in The Congressional Globe, Debates and Proceedings of the 3rd Ses-
sion of Forty-Second Congress (Washington, DC: Office of the Congressio-
nal Globe, 1873), 1466.
4. Robert Ewing Corlew, Stanley John Folmsbee, and Enoch L. Mitch-
ell, Tennessee: A Short History (Knoxville: University of Tennessee Press,
1981), 359.
5. “Tennessee’s Credit Redeemed,” New York Times, April 6, 1881.
6. “Continuance of Testimony before the Bribery Committee,” Louisville
Courier-Journal, December 25, 1881, 1.
7. Lynn v. Polk, 76 Tenn. 121, 203 (1881).
8. “Continuance of Testimony,” 6.
9. “The Bribery Investigating Committee Meets,” Louisville Courier-
Journal, December 13, 1881, 1.
10. “A State Senator Shot,” New York Times, December 9, 1881, 1; Wilm-
ington Morning Star, December 11, 1881.
11. Ibid.
12. “Bribery Investigating Committee Meets,” 1.
13. Sam D. Elliott, “The 200-Page Decision,” Tennessee Bar Journal 9
(2010): 3.
14. Adam Liptak, “Justices Are Long on Words but Short on Guidance,”
New York Times, November 17, 2010. This article inspired the idea of com-
paring the length of corruption opinions to great novels.
 notes to pages 136–142 333

15. The judge wrote: “For this court to exercise the jurisdiction invoked,
would be to assume that the co-ordinate departments of the government
are liable to corruption but we are not. If we were to take jurisdiction, and
determine that this act was passed by bribery and corruption, the Legisla-
ture would have the same right to enquire whether or not our judgment was
procured by the same means.”
16. This comes from Clifford J. Downey, Chicago and the Illinois Central
Railroad (Charleston, SC: Arcadia, 2007), a history of the relationship be-
tween the railroad and the city.
17. For this, and all the other colorful and useful details behind the his-
tory of Illinois Central, see Joseph D. Kearney and Thomas W. Merrill,
“The Origins of the American Public Trust Doctrine: What Really Hap-
pened in Illinois Central,” University of Chicago Law Review 71 (2004): 859.
18. Ibid., 868.
19. Ibid., 888. Kearney and Merrill also uncovered indirect but damning
evidence of bribery in some Illinois Central correspondence—but that cor-
respondence was not available at the time to the public.
20. There were two efforts within the backlash to the bill: an effort to
investigate corruption in the initial passage of the bill and an effort to repeal
the bill. The railroads, according to Merrill and Kearney, put more of their
efforts into defeating the investigation than defeating the repeal, although
they put substantial resources into each. The bill to have an investigation
led to a tie vote. Ibid.
21. Illinois Central R.R. Co. v. Illinois, 146 U.S. 387 (1892).
22. Wallace Mendelsohn, “New Light on Fletcher vs. Peck and Gibbon vs.
Ogden,” Yale Law Journal 58 (1949): 573, fn. 24.
23. Joseph L. Sax, “The Public Trust Doctrine in Natural Resources Law:
Effective. Judicial Intervention,” 68 Michigan Law Review 68 (1970): 471.
24. For a further discussion of this development, see Richard Epstein’s
argument that the best way to understand Illinois Central is as something
like a corruption protection: it restrains the legislature from giving away
public property for private ends. Richard A. Epstein, “The Public Trust Doc-
trine,” Cato Journal 7, no. 2 (Fall 1987): 411–430. He writes, “Well-organized
political groups may well be able to obtain net transfers from legislation.”
Elsewhere, Carol Rose writes, “From quite different directions, Louise
334 notes to pages 144–145

Halper and William Fischel, in their respective investigations of late nine-

teenth century nuisance law and eminent domain doctrine, have described
how the courts drew distinctions in these doctrinal areas to rein in the most
egregious legislative giveaways of the day, particularly those that benefitted
railway companies.” Carol Rose, “Joseph Sax and the Idea of the Public Trust
Doctrine,” Ecology Law Quarterly 25 (1998): 358. See also Louise A. Halper,
“Nuisance, Courts, and Market in the New York Court of Appeal, 1850–
1915,” Albany Law Review 54 (1990): 355.

7. The Forgotten Law of Lobbying

1. See, e.g., Richard Briffault, “Lobbying and Campaign Finance: Separate
and Together,” Stanford Law and Policy Review 19 (2008): 107; and Vincent R.
Johnson, “Regulating Lobbyists: Law, Ethics, and Public Policy,” Cornell
Journal of Law and Public Policy 16 (2006): 9. (“Though widely vilified, lob-
byists representing individuals or groups can make a valuable contribution
to informed and effective government. Lobbyists can direct ideas and opin-
ions to appropriate decision makers and clearly express the views of citizens
who have too little time or skill to do so personally. Lobbyists also illumi-
nate the practical consequences of proposed government conduct by ensur-
ing that the insights and professional expertise of a particular business or
industry become part of the deliberative process.”)
2. Briffault, “Lobbying,” 107.
3. Johnson, “Regulating Lobbyists,” 9. See also Stacie L. Fatka and Jason
M. Levien, “Protecting the Right to Petition: Why a Lobbying Contingency
Fee Prohibition Violates the Constitution,” Harvard Journal of Legislation 35
(1998): 566. (“Today, if citizens wish to make their voice heard by their legis-
lator, they must exercise their petition right by employing a lobbyist.”)
4. Daniel A. Farber, “Free Speech without Romance,” Harvard Law Re-
view 105 (1991): 561, includes one of the fuller discussions of this argument.
He writes: “Consider, for example, the supply of information about foreign
affairs. To the extent that voters seek such information, they can often ob-
tain it secondhand without paying the original producer. The free rider
problem is exacerbated in this context because voters also have an incentive
to free ride on the activities of other political participants. Because my vote
probably will not change the election results, I have little incentive to seek
 notes to pages 146–154 335

relevant information. Even if the information were only privately available,

I would have little incentive to pay for it. Instead, I might as well sit back
and let other people participate in politics. I will obtain whatever benefits
exist from a good foreign policy regardless of whether I participate. The result
is predictably straightforward: although information in general is likely to be
underproduced, political information is even more likely to be underproduced,
and underproduced to a greater extent. Furthermore, because information
producers will capture only a tiny share of the ultimate benefits of their prod-
uct in the form of better government, their lobbying activities against censor-
ship similarly will be underfinanced. Therefore, the public good argument for
protecting speech applies with particular force to political speech.”
5. Samuel White Small, A Stenographic Report of the Proceedings of the
Constitutional Convention by Georgia (Atlanta: Constitution Publishing So-
ciety, 1877), 80–81.
6. Ibid., 101–102.
7. Georgia Constitution of 1877, Articles I and II, para. 5.
8. Statute on file with the author. See also William N. Eskridge Jr., “Fed-
eral Lobbying Regulation: History through 1954,” in The Lobbying Manual:
A Complete Guide to Federal Lobbying Law and Practice, 4th ed., ed. William
V. Luneberg, Thomas Susman, and Rebecca H. Gordon (Washington, DC:
American Bar Association, 2009), 15.
9. Tool Co. v. Norris, 69 U.S. 45, 56 (1864).
10. William C. Clark Jr., The Handbook of the Law of Contracts (St. Paul,
MN: West Publishing Company, 1894), 285.
11. Kenneth Crawford, The Pressure Boys (New York: J. Messner, 1939), ix;
and Conor McGrath and Phil Harris, “The Creation of the U.S. Lobbying
Industry,” in The Routledge Handbook of Political Management, ed. Dennis
W. Johnson (New York: Routledge, 2009).
12. 10 Barb. 489 (1851).
13. See Paul Bond, “Making Champerty Work: An Invitation to State
Action,” University of Pennsylvania Law Review 150 (2002): 1341.
14. Eskridge, “Federal Lobbying Reglation,” 5.
15. 57 U.S. 314 (1853).
16. 21 Barb. 361 (1855).
17. 88 U.S. 441 (1874).
336 notes to pages 158–168

18. Oscanyan v. Arms Co., 103 U.S. 261 (1880).

19. Certain financial instruments, debts, or obligations were “not vend-
ible” as a matter of policy. For some examples using this language see J. M.
Chisholm v. Andrews, 57 Miss. 636 (Miss. 1880); and Ryan v. Miller, 236 Mo.
496 (Mo. 1911).
20. Usher v. McBratney, 28 F. Cas. 853 (C.C.D. Kan. 1874); and Rose v.
Traux, 21 Barb. 361 (N.Y. Gen. Term 1855).
21. Usher, 28 F. Cas. 853.
22. Chesebrough v. Conover, 140 N.Y. 382, 387 (N. Y. 1893).
23. Clark, Handbook, 356.
24. Foltz v. Cogswell, 86 Cal. 542, 548 (1863); see also Reclamation Dist.
No. 108 v. Hagar, 66 Cal. 54 (Cal. 1884).
25. Sweeney v. McLeod, 15 Or. 330, 335 (1887).
26. Richardson v. Scott’s Bluff County, 81 N.W. 309, 312 (Neb. 1899).
27. Houlton v. Nichol, 67 N.W. 715, 716 (Wis. 1896).
28. Powers v. Skinner, 34 Vt. 274, 281 (1861).
29. See, e.g., Sweeney v. McLeod, 15 Or. 330 (1887); and Coquillard’s Adm’r
v. Bearss, 21 Ind. 479, 481–482 (1863).
30. Chippewa Valley, S. R. Co. v. Chicago, 44 N.W. 17, 24 (Wis. 1889).
31. Houlton v. Dunn, 61 N.W. 898, 900 (Minn. 1895).
32. Powers, 281.
33. Mills v. Mills, 40 N.Y. 543, 546 (1869).
34. Ibid., 546.
35. McGill’s Adm’r v. Burnett, 7 J.J. Marsh. 640 (Ky. App. 1832).
36. State v. Miles, 89 Me. 142 (Me. 1896).
37. Marshall v. Baltimore & Ohio R.R. Co., 57 U.S. 314, 336 (1853).
38. Brown v. Brown, 34 Barb. 533, 538 (N.Y. 1861).
39. California Constitution of 1879, Articles IV and XXV (1879).
40. Herrick v. Barzee, 190 P. 141, 148 (Or. 1920); Owens v. Wilkinson, 20
App. D.C. 51, 71 (1902); and Trist v. Child, 88 U.S. 441 (1874).
41. Trist, 88 U.S. at 452.
42. Mills, 546.
43. Ibid.
44. 424 U.S. 1 (1976).
45. McGhee v. Lindsay, 6 Ala. 16, 20 (1844).
 notes to pages 168–175 337

46. Powers, 280–281, citing Clippinger v. Hepbaugh, 5 Watts & Serg. 315
(Pa. 1843).
47. Powers, 281.
48. Ibid.
49. Clippinger, 321.
50. Marshall, 336; Clippinger, 315; Wood v. McCann, 36 Ky. 366 (1838); Foltz
v. Cogswell, 25 P. 60 (Cal. 1890); Rose; Frost v. Belmont, 88 Mass. 152 (1863).
51. Barber Asphalt Paving Co. v. Botsford, 44 P. 3, 5 (Kan. 1896).
52. An example is in McBratney v. Chandler, 22 Kan. 692 (Kan. 1879).
53. See, for instance, McDonald v. Buckstaff, 76 N.W. 476, 481 (1898).
54. Richard Briffault, “Anxiety of Influence,” Election Law Journal 13,
no. 1 (March 2014): 160–193, writes: “Today, however, we would certainly
view the efforts of a hired agent to draft a bill, explain it to legislators, and
seek the bill’s introduction as lobbying.”
55. Steele v. Drummond, 275 U.S. 199 (1927).
56. Textile Mills Sec. Corp. v. C.I.R., 314 U.S. 326, 337–338 (1941).
57. 345 U.S. 41 (1953).
58. 347 U.S. 612 (1954)
59. Cammarano v. U.S., 358 U.S. 498 (1959).
60. E. R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S.
127, 135 (1961).

8. The Gilded Age

1. Andrew Jackson’s campaigns had been crusades against aristocratic
corruption. He was first nominated to the presidency in 1824, in a candi-
dacy based on the theme of a return to the republican principles and a rejec-
tion of the corrupt habits of self-serving, wealthy elites. The call for a return
to old republicanism had been growing since the early nineteenth century—
some of the early Jacksonians had first been involved in John Randolph’s
breakoff Quid party of fifteen years earlier. His close advocate John Eaton
wrote letters circulated as pamphlets signed “Wyoming” that associated
Jackson with the virtues of the founding fathers and demanded a return to
republican virtue. This was the first presidential campaign in which there
were no signers of the Declaration of Independence or the Constitution
standing for office, so the candidates had to vie for the spirit of America that
338 note to page 175

appealed to the public through rhetoric and action, not direct ties to the
past. William Nester, The Age of Jackson and the Art of American Power
1815–1848 (Herndon, VA: Potomac Books, 2013); Sean P. Adams, ed., A
Companion to the Era of Andrew Jackson (Hoboken, NJ: Wiley-Blackwell,
2013), 260. Jackson won a plurality of votes—over 40 percent—followed by
John Quincy Adams with 30 percent of the vote. Because no candidate re-
ceived the majority of the electoral votes, the House of Representatives,
led by Speaker Henry Clay, had the power to appoint the president. They
chose Adams. When Adams then appointed Clay to be his secretary of
state, Jackson’s supporters denounced the decision as a “corrupt bargain”
(Adams, Companion, p. 280). For the next four years, Jackson’s supporters
used the corruption theme to bring momentum to his rematch with Adams
in 1828. The argument of this second—and successful—campaign was that
the country was in a struggle between democracy and corruption, and Jack-
son represented the former, whereas incumbents and insiders represented
the latter. Jackson won in a landslide. The anticorruption rhetoric of the
time led to changes in corporate law. In the prior practice of special incor-
poration, government officials had more discretion to grant or deny, leading
to personal relationships being necessary to gain corporate charters.
Business entities with directors close to politically powerful legislators
sought, and received, the grants of corporate charters from state govern-
ments. Jacksonians supported general incorporation—essentially the right
to automatically get a corporate charter if one met certain objective criteria.
See John Wallis, “Constitutions, Corporations, and Corruption: American
States and Constitutional Change, 1842 to 1852,” Journal of Economic His-
tory 65, no. 1 (2005): 211–256; Morton J. Horwitz, “Santa Clara Revisited:
The Development of Corporate Theory,” West Virginia Law Review 88
(1985): 181; Morton Horwitz, The Transformation of American Law, 1870–
1960: The Crisis of Legal Orthodoxy (Oxford: Oxford Paperbacks 1992), 204.
Jackson vetoed the renewed corporate charter of the Second Bank of the
United States because of fears of corruption. During the 1832 presidential
campaign—one that was almost exclusively about Jackson’s bank veto—the
theme continued. A leading newspaper patron described Jackson’s fight as
“the cause of democracy and the people, against a corrupt and abandoned
aristocracy,” and South Carolina senator Robert Jay Hayne called his vic-
 notes to pages 176–182 339

tory “the triumph of the people over corruption.” Harry L. Watson, Liberty
and Power: The Politics of Jacksonian America (New York: Hill and Wang,
2006), 168. Unlike some of the founders before him, Jackson rejected the
association of virtue with elitism. But like the founders before him, he por-
trayed corruption as anathema to liberty. His farewell address in 1837
sounded like Franklin fifty years later. If we allowed ourselves to become a
corrupt public, he warned, we would become “easier victims to tyranny.”
His language was that of Madison: “It is from within, among yourselves,
from cupidity, from corruption, from disappointed ambition, and inordi-
nate thirst for power, that factions will be formed and liberty endangered.”
(Presidential Documents: The Speeches, Proclamations, and Politics That Have
Shaped the Nation from Washington to Clinton, ed. Fred L. Israel and
Thomas J. McInerney [New York: Routledge, 2013], 71.)
2. Justus D. Doenecke, The Presidencies of James A. Garfield and Chester
A. Arthur (Lawrence: Regents Press of Kansas, 1981), 46.
3. Eldon Cobb Evans, A History of the Australian Ballot System in the
United States (Chicago: University of Chicago Press, 1917), 10.
4. Ibid., 7.
5. Ibid., 8.
6. John Henry Wigmore, The Australian Ballot System as Embodied in
the Legislation of Various Countries, 2nd ed. (Boston: Charles C. Soule,
1889), 31.
7. Ibid., 32.
8. Mark Twain and Charles Dudley Warner, The Gilded Age (New York:
Modern Library, 2006), 253.
9. “Funds for the Campaign,” New York Times, September 27, 1900.
10. “Trusts and Monopolies,” in 1896: The Presidential Campaign: Car-
toons and Commentary, a Vassar College website, http://projects.vassar.edu
/1896/trusts.html.
11. Speech by Teddy Roosevelt at the Centennial Exercises in the New
York Avenue Presbyterian Church, Washington, D.C., November 16, 1903,
http://www.theodore-roosevelt .com/images/research/txtspeeches/92.txt;
“Put Down Corruption, Says the President,” New York Times, November
16, 1903, http://query.nytimes.com/mem/archive-free/pdf?res=F50E1FF73
F5D11738DDDAE0994D9415B838CF1D3.
340 notes to pages 185–199

9. Two Kinds of Sticks

1. 1903 Annual Message to Congress, December 7, 1903.
2. Jerry O’Callahan, “Senator John H. Mitchell and the Oregon Land
Frauds, 1905,” Pacific Historical Review 21 (August 1952): 255.
3. Burton v. United States, 196 U.S. 283 (1905).
4. Burton v. United States, 202 U.S. 344 (1906).
5. 40 Congressional Record 96.
6. Chap. 420, 34 Stat. 864 (1907), 2 U.S.C. § 441b (2).
7. Robert H. Sitkoff, “Corporate Political Speech, Political Extortion,
and the Competition for Corporate Charters,” University of Chicago Law
Review 69 (2002): 1118–1120.
8. Here I am relying on research compiled by Robert Sahr, University of
Oregon (2003), available at http://oregonstate.edu/cla/polisci/faculty-re
search/sahr/sumcamp.pdf. See also Stephen Ansolabehere, John M. de
Figueiredo, and James Snyder Jr., “Why Is There So Little Money in U.S.
Politics?,” Journal of Economic Perspectives 17 (Winter 2003): 105–109. Of
course, with few reporting requirements and terrible enforcement, we don’t
know the actual numbers.
9. 256 U.S. 232 (1921).
10. Brief for Plaintiffs in Error, Newberry v. United States, 256 U.S. 232,
234 (1921).
11. Ibid., 236.
12. 313 U.S. 299 (1941).
13. 335 U.S. 106 (1948).
14. 352 U.S. 567 (1957).

10. The Jury Decides

1. United States v. Bohonus, 628 F.2d 1167, 1171 (9th Cir. 1980).
2. United States v. Bush, 522 F.2d 641 (7th Cir. 1975), cert. denied, 47 L. Ed.
2d 748 (1976).
3. Daniel J. Hurson, “Limiting the Federal Mail Fraud Statute—A Leg-
islative Approach,” American Criminal Law Review 20 (1983): 455–456.
4. Bush, 522 F.2d at 647–648.
5. United States v. George, 477 F.2d 508, 513 (7th Cir.1973).
 notes to pages 199–209 341

6. Bohonus, 628 F.2d at 1167, 1171.

7. Cunningham v. State, 190 Md. 578, 582 (Md. 1948); see also Livingston v.
Commonwealth, 184 Va. 830, 36 S.E.2d 561 (Va. 1946); People v. Gokey, 9 Ill.
App. 3d 675, 678–680 (Ill. App. 1973).
8. See, e.g., People v. Jackson, 191 N.Y. 293 (N.Y. 1908).
9. People v. Lafaro, 250 N.Y. 336, 342 (N.Y. 1929).
10. Handley v. State, 102 P.2d 947, 951 (Okla. Crim. App. 1940).
11. Republic of Hawaii v. Young Hee, 10 Haw. 114 (Haw. 1895).
12. State v. Savoie, 67 N.J. 439, 341 A.2d 598 (N.J. 1975).
13. People v. Diedrich, 31 Cal. 3d 263, 276 (Cal. 1982).
14. People v. Gaio, 81 Cal. App. 4th 919, 927 (Cal.App. 2 Dist., 2000) (and
cases cited therein).
15. Martin v. United States, 166 F.2d 76, 77 (4th Cir. 1948).
16. In re Crum, 55 N.D. 876 (1927).
17. State v. Savoie, 128 N.J. Super. 329, 345 (N.J. Super. A.D. 1974); Mar-
tin v. United States, 166 F.2d 76, 79 (4th Cir. 1948).
18. People v. Esposito, 146 Misc. 2d 847 (N.Y. Sup. 1990).
19. People v. Coutu, 235 Mich. App. 695, 706–707 (Mich. App. 1999).
20. Barnette v. State, 855 So. 2d 1129, 1132 (Ala. Crim. App. 2003).
21. Daniel H. Lowenstein, “Political Bribery and the Intermediate The-
ory of Politics,” UCLA Law Review 32 (1985): 787.

11. Operation Gemstone

1. Buckley v. Valeo, 424 U.S. 1, 25 (1976).
2. FEC. v. Wisconsin Right to Life, 551 U.S. 449 (2007).
3. See Thomas Burke, “The Concept of Corruption in Campaign Finance
Law,” Constitutional Commentary 14 (1997): 128. See also Justin Sadowsky,
“The Transparency Myth: A Conceptual Approach to Corruption and the
Impact of Mandatory Disclosure Laws,” Connecticut Public Interest Law Jour-
nal 4 (2005): 310 (corruption is important to understand because of the line
of cases beginning with Buckley); Dennis Thompson, “Two Concepts of Cor-
ruption: Making Campaigns Safe for Democracy,” George Washington Law
Review 73 (2005): 1036–1069.
4. Samuel Issacharoff, Pamela S. Karlan, and Richard H. Pildes, The
Law of the Political Process, 4th ed. (New York: Foundation Press, 2012).
342 notes to pages 209– 222

5. Robert Kaiser, So Damn Much Money: The Triumph of Lobbying

and the Corrosion of American Government (New York: Vintage, 2009),
291.
6. McComish v. Bennett, 131 S. Ct. 2806 (2011).
7. Buckley v. Valeo, 424 U.S. 1, 257, 96 S.Ct. 612, 744–745 (1976) (White,
J., dissenting) (citing Ex parte Yarbrough, 110 U.S. 651, 658 [1884]).
8. 435 U.S. 765 (1978).
9. 494 U.S. 652 (1990).
10. 540 U.S. 93 (2003).
11. Richard Briffault, “Anxiety of Influence,” Election Law Journal 13, no.
1 (March 2014): 160–193.

12. A West Virginia State of Mind

1. See Daniel Hays Lowenstein, “Political Bribery and the Intermediate
Theory of Politics,” UCLA Law Review 32 (1985): 809; Note, “Campaign Con-
tributions and Federal Bribery Law,” Harvard Law Review 92 (1978): 453–455
(“the potential sweep of the bribery statutes is enormous”).
2. Lowenstein, “Political Bribery,” 828.
3. Ibid., 787.
4. In re Crum, 215 N.W. 682, 688 (N.D. 1927).
5. State v. London, 194 Wash. 458, 470, 78 P.2d 548, 554 (Wash. 1938).
6. State v. Smagula, 39 N.J. Super. 187, 191, 120 A.2d 621, 623 (N.J. Super.
A.D. 1956).
7. U.S. v. Brewster, 506 F.2d 62, 77 (C.A.D.C. 1974).
8. United States v. Shober, 489 F. Supp. 393 (E.D. Pa. 1979).
9. People v. Brandstetter, 103 Ill. App. 3d 259 (1982).
10. Evans v. United States, 504 U.S. 255 (1992).
11. United States v. Cerilli, 603 F.2d 415, 420 (3d Cir. 1979).
12. United States v. Dozier, 672 F.2d 531, 537 (5th Cir. 1982); United States v.
Cerilli, 603 F.2d 415, 418–419; United States v. Trotta, 525 F.2d 1096 (2d Cir.
1975).
13. United States v. Dozier, 672 F.2d 531, 537 (5th Cir. 1982).
14. B. Drummond Ayers, “Charleston Journal; Corruption Cases Leave
State in Search of Ethics,” New York Times, September 18, 1989.
 notes to pages 223– 240 343

15. Robert L. McCormick, petitioner, v. United States of America, 1990 WL

10012892 (Appellate Brief ) (U.S. October Term 1990), Brief for the United
States (No. 89-1918).
16. United States v. Ring, 706 F.3d 460 (D.C. Cir. 2013). (“The McCor-
mick Court failed to clarify what it meant by ‘explicit,’ and subsequent
courts have struggled to pin down the definition of an explicit quid pro quo
in various contexts.”)
17. Evans v. United States, 504 U.S. 255, 258 (1992).
18. Ibid., 274 (Kennedy, J., concurring).
19. United States v. Siegelman, 640 F.3d 1159, 1171 (11th Cir. 2011), quoting
Evans. See also United States v. Whitfield, 590 F.3d 325, 349 (5th Cir. 2009)
(stating that Evans “clarified” McCormick).

13. Citizens United

1. United States v. Sun Diamond Growers, 526 U.S. 398 (1999).
2. 18 U.S.C. § 201(c)(1)(A) (1994).
3. Citizens United v. FEC, 558 U.S. 310 (2010).
4. Ibid., quoting McConnell v. FEC, 540 U.S. 93 (2003).
5. John M. Murrin, “Escaping Perfidious Albion: Federalism, Fear of
Aristocracy, and the Democratization of Corruption in Post-Revolutionary
America,” in Virtue, Corruption and Self-Interest: Political Values in the Eigh-
teenth Century, ed. Richard K. Matthews (Bethlehem, PA: Lehigh Univer-
sity Press, 1994), 120–122.
6. Ibid.
7. William Forbath, “Politics, State Building, and the Courts,” in The
Cambridge History of Law in America (Cambridge: Cambridge University
Press, 2008), 643.
8. Colorado Republican Federal Campaign Committee v. FEC, 518 U.S.
604, 634 (1996) (Thomas, J., dissenting).
9. Nixon v. Shrink Missouri Government PAC, 528 U.S. 377, 423 (2000)
(Scalia, J., dissenting) (“The majority today, by contrast, separates ‘corrup-
tion’ from its quid pro quo roots and gives it a new, far-reaching (and speech-
suppressing) definition.”).
10. McConnell v. FEC.
11. People v. Kohut, 30 N.Y.2d 183, 187 (N.Y. 1972).
344 notes to pages 240–245

12. State v. Lopez, 522 So. 2d 997, 1000 (Fla. App. 3d Dist. 1988).
13. State v. Ross, 214 Ariz. 280, 284 (Ariz. App. Div. 1 2007).
14. Ohio Ethics Advisory Opinion No. 2001-04 (Ohio Eth. Com. 2001) at 3.
15. Barnette v. State, 855 So. 2d 1129, 1132 (Ala. Crim. App. 2003).
16. People v. Coutu, 235 Mich. App. 695, 706–707, 599 N.W.2d 556, 562
(Mich. App. 1999).
17. Wurster v. State, 708 N.E.2d 587, 594 (Ind. App. 1999), aff ’d. 715
N.E.2d 341 (Ind. 1999); Winn v. State, 722 N.E.2d 345, 347 (Ind. App. 1999);
Isassi v. State, 330 S.W.3d 633 (Tex. Crim. App. 2010); Scaccia v. State Ethics
Commission, 727 N.E.2d 824, 828–829 (Mass. 2000).
18. United States v. Abbey, 560 F.3d 513 (6th Cir. 2009). In Abbey the court
said that quid pro quo did not require “a particular, identifiable act when
the illegal gift is given to the official. Instead, it is sufficient if the public of-
ficial understood that he or she was expected to exercise some influence on
the payor’s behalf as opportunities arose.”
19. United States v. Rosen, 716 F.3d 691 (2013).
20. See Richard A. Primus, “Canon, Anti-Canon and Judicial Dissent,”
Duke Law Journal 48 (1998): 250.
21. See Stewart Jay, “The First Amendment: The Creation of the First
Amendment Right to Free Expression from the Eighteenth Century to the
Mid-Twentieth Century,” William Mitchell Law Review 34 (2008): 773–782.
22. Bridges v. California, 314 U.S. 252, 281 (1941).
23. J. M. Balkin, “Some Realism about Pluralism: Legal Realist Ap-
proaches to the First Amendment,” Duke Law Journal 39, no. 3 (1990): 393.
See also Brandenberg v. Ohio, 395 U.S. 444 (1969).
24. Ibid., 392.
25. Owen M. Fiss, “State Activism and State Censorship,” Yale Law
Journal 100 (1991): 287.
26. Palko v. Connecticut, 302 U.S. 319, 327 (1937).
27. William Chillingworth, The Religion of Protestants (Oxford: Leonard
Lichfield, 1638).
28. Francis Warton, The Revolutionary Diplomatic Correspondence of the
US, vol. 6 (Washington, DC: Government Printing Office, 1889), 10.
29. Notes of Yates, June 23, 1787, in The Records of the Federal Convention
of 1787, vol. 1, ed. Max Farrand (New Haven, CT: Yale University Press,
1911), quoting Mason.
 notes to pages 246– 256 345

14. The New Snuff Boxes

1. Tim LaPira, “How Much Lobbying Is There in Washington? It’s
DOUBLE What You Think,” http://sunlightfoundation.com/blog/2013/11
/25/how-much-lobbying-is-there-in-washington-its-double-what-you-think/.
2. June 14, 1788, Debate in the Virginia Convention, in The Records of the
Federal Convention of 1787, vol. 3, ed. Max Farrand (New Haven, CT: Yale
University Press, 1911), 313.
3. “The Lobbyists Playbook,” 60 Minutes, November 6, 2011 (transcript
of a live interview).
4. The Works of Thomas Jefferson, Federal Edition, vol. 9 (New York: G. P.
Putnam’s Sons, 1904–1905).
5. Notes of Yates, June 22, 1787, in Records, vol. 1.
6. Howard Ball, Hugo Black, Cold Steel Warrior (Oxford: Oxford Uni-
versity Press, 1996), 83.
7. To explore some of the empirical research, see Sanjay Gupta and Charles
W. Swenson, “Rent-Seeking by Agents of the Firm,” Journal of Law and Eco-
nomics 46 (2003): 260; Nauro F. Campos and Francesco Giovannoni, “Lobby-
ing, Corruption, and Political Influence,” Public Choice 13 (2007): 1–21.
8. Dennis F. Thompson, Ethics in Congress: From Individual to Institu-
tional Corruption (Washington, DC: Brookings Institution Press, 1995), 112.
9. Ray Henry, “Jimmy Carter: Unchecked Political Contributions Are
‘Legal Bribery,’ ” Huffington Post, July 17, 2013, http://www.huffingtonpost
.com/2013/07/17/jimmy-carter-bribery_n_3611882.html.
10. United States v. McCormick, 1992 WL 12132379 (Appellate Brief ) (4th
Cir., July 22, 1992), Supplemental Brief of Appellant on Remand from the
United States Supreme Court (No. 88-5702).
11. Lawrence Lessig, Republic, Lost: How Money Corrupts Congress and a
Plan to Stop It (New York: Hachette Publishing, 2011).
12. Speech of James Madison, in the Journals of the American Congress
from 1774–1788, vol. 4 (Washington, DC: Way and Gideon, 1823), 200.
13. Immediately after the case came down, the District of Columbia Cir-
cuit Court of Appeals applied the corruption logic of Citizens United to hold
that political committees could accept unlimited contributions, enabling the
structures now known as Super PACs. A few hundred people are responsi-
ble for most of the Super PAC funding. So long as they do not make any
346 notes to pages 257– 273

explicit deals or coordinate, their activity is treated as “core political speech.”

None of their activities are considered corrupt under U.S. constitutional
law. SpeechNow.org v. Fed. Election Comm’n, 599 F.3d 686 (D.C. Cir. 2010).
14. H. A. Washington, ed., The Writings of Thomas Jefferson: Correspon-
dence, Contin. Reports and Opinions while Secretary of State, vol. 7 (Washing-
ton, DC: Riker, Thorne and Co., 1854), 150.
15. Randall v. Sorrell, 548 U.S. 230 (2006).

15. Facts in Exile, Complacency, and Disdain

1. See oral argument in McCutcheon v. FEC, The Oyez Project, 572
U.S. ___ (2014), available at: http://www.oyez .org/cases/2010-2019/2013
/2013_12_536.
2. Susan Rose-Ackerman, Corruption and Government: Causes, Conse-
quences, and Reform (Cambridge: Cambridge University Press, 1999), 2.
3. Susan Rose-Ackerman, Corruption: Readings in Public Choice and
Constitutional Political Economy (New York: Springer, 2008), 551.
4. J. Peter Euben, “Corruption,” in Political Innovation and Conceptual
Change, ed. Terence Ball, James Farr, and Russell L. Hanson (Cambridge:
Cambridge University Press, 1989), 220–246.
5. Ibid., 231–232.
6. Fukuyama must take some blame for the optimistic reading—he did
claim that “in the long run” liberal democracy would prevail, that action
would follow thought. Francis Fukuyama, The End of History and the Last
Man, with a new afterword (New York: Avon Books, 2006), 211.
7. Russell Hardin, “Public Choice v. Democracy,” in The Idea of Democ-
racy, ed. David Copp, Jean Hampton, and John E. Roemer (Cambridge:
Cambridge University Press, 1993), 157.
8. Calder v. Bull, 3 U.S. 386 (1798).
9. Carrie B. Kerekes, “Government Takings: Determinants of Eminent
Domain,” American Law and Economics Review 13 (2011): 201–219.
10. Webster v. Doe, 486 U.S. 592, 608 (1988) (Scalia, J., dissenting).
11. Caperton v. A. T. Massey Coal Co., 556 U.S. 868 (2009).
12. Horace Stern, “Samuel Freeman Miller,” in Great American Lawyers,
vol. 6, ed. William Draper Lewis (Philadelphia: Winston, 1909), 541.
13. 110 U.S. 651, 657–658 (1884).
 notes to pages 274– 276 347

14. Simon Lazarus, “Stripping the Gears of National Government,”

Northwestern University Law Review 106 (Spring 2012): 817–818 (discussing
the contempt for politics).

16. The Anticorruption Principle

1. Jens Chr. Andvig et al., “Research on Corruption: A Policy Oriented
Study,” survey commissioned by the Norwegian Agency for Development
Co-operation, 2000, http://www.icgg.org/downloads/contribution07_an
dvig.pdf, 8.
2. Bruce E. Gronbeck, “The Rhetoric of Political Corruption,” in Politi-
cal Corruption: A Handbook, ed. Arnold J. Heidenheimer, Michael John-
ston, and Victor T. Le Vine (New Brunswick, NJ: Transaction Publishers,
1999), 173.
3. The idea of excessiveness that shows up in many of these defi ni-
tions, and the sense of the range of obligations, is important so as not to
make every action in any connection with public life corrupt. There are
many trivial moments in a day that one would hardly call corrupt be-
cause although they are self-interested, they are not excessive. The idea
of excessive self-interest ties the stories that sound corrupt together in a
deep way, not accidentally. Interest is excessive when it leads to an actual
override of public interest in a significant or meaningful exercise of pub-
lic power. What constitutes significant may vary from community to
community because whether or not an action is corrupt depends upon
whether the actor or community sees the action as a significant or mean-
ingful exercise of public power. What constitutes public interest might
vary from person to person, but if the person acting perceives that she is
putting public interests beneath private ones in the exercise of power, it
is corrupt.
4. Citizens, by virtue of their intimate relationship and the necessity of
their honest involvement in public affairs, have fiduciary obligations to the
public—but only when they engage in public life. Corruption describes the
moments when citizens fail those obligations. Presidents, congresspersons,
mayors, police officers, and judges have stepped almost entirely into their
public role, and so their obligations are more pervasive and opportunities
for corruption greater; lobbyists and those who contribute to campaigns
348 notes to pages 278– 281

violate their fiduciary obligations only inasmuch as they fail to keep public
interests first in the use of public rights; and uninvolved citizens rarely have
fiduciary obligations.
5. Laura Underkuffler, Captured by Evil: The Idea of Corruption in Law
(New Haven, CT: Yale University Press, 2013).
6. Lawrence Lessig, Republic, Lost: How Money Corrupts Congress and
a Plan to Stop It (New York: Hachette Publishing, 2011).
7. Samuel Issacharoff, “On Political Corruption,” Harvard Law Review
124 (2010): 118.
8. Deborah Hellman, “Defining Corruption and Constitutionalizing
Democracy,” Michigan Law Review 111 (2013): 1385.
9. Jong-Sung You, “Corruption as Injustice,” paper presented at the an-
nual meeting of the American Political Science Association, 2007, http://
irps.ucsd.edu/assets/001/503060.pdf.
10. For an exception, see Ronald Dworkin, Law’s Empire (Cambridge,
MA: Harvard University Press, 1986), 174.
11. See John Rawls, A Theory of Justice (Cambridge, MA: Harvard Uni-
versity Press, 1971), 235.
12. Lessig, Republic, Lost.
13. For a discussion of the fiduciary strain in political thought, see Ethan
Leib, David Ponet, and Michael Serota, “A Fiduciary Theory of Judging,”
California Law Review 101 (2013): 699; and D. Theodore Rave, “Politicians as
Fiduciaries,” Harvard Law Review 126 (2013): 671.
14. Bruce Cain, “Moralism and Realism in Campaign Finance Reform,”
University of Chicago Legal Forum 1995 (1996): 112.
15. David A. Strauss, “Corruption, Equality, and Campaign Finance Re-
form,” Columbia Law Review 94 (1994): 1369, 1370, 1382.
16. Kathleen M. Sullivan, “Political Money and Freedom of Speech,”
University of California at Davis Law Review 30 (1997): 679.
17. Richard L. Hasen, The Supreme Court and Election Law: Judging Equal-
ity from Baker v. Carr to Bush v. Gore (New York: New York University
Press, 2003).
18. Richard Hasen, “Is ‘Dependence Corruption’ Distinct from a Politi-
cal Equality Argument for Campaign Finance Reform? A Reply to Profes-
sor Lessig,” Election Law Journal 11 (2013).
 notes to pages 283– 291 349

19. Baron de Montesquieu, The Spirit of Laws [1748], trans. Melvin Rich-
ter (Cambridge: Cambridge University Press, 1991).
20. Edward van Roy, “On the Theory of Corruption,” Economic Develop-
ment and Cultural Change (October 1970): 86.
21. Stephen Sachs, “Corruption, Clients and Political Machines: A
Response to Professor Issacharoff,” Harvard Law Review Forum 124
(2010): 62.
22. See Underkuffler, Captured by Evil, 112.
23. Hellman, “Defining Corruption and Constitutionalizing Democ-
racy,” 1385.
24. Hannah Arendt, The Promise of Politics (New York: Random House,
2005), 20–21. Another way to express the same idea is that people have dif-
ferent identifications of their personal interest that they might maximize. I
might identify as self first and foremost, and spend my energies and atten-
tions on my own private enrichment. Or I might identify as a member of my
family first and foremost, and spend my energies to maximize the good of
my family. I might identify as a lawyer, or a Vermonter (where I grew up), or
a Congregationalist, or a New Yorker (where I live now), or an American.
All of these are “groups” with which I can plausibly, psychologically identify
and whose interests I can plausibly put before my own. The psychological
experience of putting a group interest first is fundamentally different from
attempting to maximize one’s own interests. Because people are capable of
loving different groups (self, family, nation), it is coherent to say that “Peter
Thiel put private interests ahead of group interests.”

Conclusion
1. Franklin’s will, in The Works of Benjamin Franklin: Containing Several
Political and Historical Tracts Not Included in Any Former Edition, and Many
Letters, Official and Private, Not Hitherto Published (Chicago: Townsend
MacCoun, 1982), 601.
2. Friedrich Nietzsche, “The Case of Wagner,” in Basic Writings of
Nietzsche (New York: Random House, 2009), 626. I am grateful to Roger
Berkowitz for leading me to this passage. See Roger Berkowitz, “The Irony
of the Elite,” Weekly Read, Hannah Arendt Center, February 21, 2014,
http://www.hannaharendtcenter.org/?p=12585.
350 notes to pages 292–296

3. Tim Mak, “Corruption Is Number 2 Issue for 2103,” Politico, July 30,
2013, http://www.politico.com/.
4. Kristofer Allerfelt, Crime and Rise of Modern America 1865–1941
(London: Routledge, 2011), 169.
5. Lon Fuller, The Morality of Law, rev. ed. (New Haven, CT: Yale Uni-
versity Press, 1969), 33–42.
 Cases Cited

Anderson v. Dunn, 19 U.S. 204 (1821)

Arver v. United States, 245 U.S. 366 (1918)
Ashby v. White, 92 ER 126 (1703)
Austin v. Michigan State Chamber of Commerce, 494 U.S. 652 (1990)
Barber Asphalt Paving Co. v. Botsford, 44 P. 3 (Kan. 1896)
Barnette v. State, 855 So. 2d 1129 (Ala. Crim. App. 2003)
Brown v. Brown, 34 Barb. 533 (N.Y. Gen. Term 1861)
Bryan v. Reynolds, 5 Wis. 200 (1856)
Buckley v. Valeo, 424 U.S. 1 (1976)
Calder v. Bull, 3 U.S. 386 (1798)
Caperton v. A. T. Massey Coal Co., 556 U.S. 868 (2009)
Cheek v. Commonwealth, 7 S.W. 403 (Ky. App. 1888)
Chesebrough v. Conover, 140 N.Y. 382 (N.Y. 1893)
Chippewa Valley S. R. Co. v. Chicago, 44 N.W. 17 (Wis. 1889)
J. M. Chisholm v. Andrews, 57 Miss. 636 (Miss. 1880)
Coates v. Wallace, 1 Ashm. 110 (Pa. 1827)
Colorado Republican Federal Campaign Committee v. FEC, 518 U.S.
604 (1996)
Commonwealth v. Brown, 23 Pa. Super. 470 (1903)
Commonwealth v. Chapman, 1 Va. Cas. 138 (Va. 1803)
Commonwealth v. Shed, 1 Mass. 227 (Mass. 1804)
Coquillard’s Adm’r v. Bearss, 21 Ind. 479 (1863)
Cunningham v. State, 190 Md. 578 (Md. 1948)
352 ca ses cited

Duke v. Asbee, 1850 WL 1267, 33 N.C. 112 (N.C. 1850)

Evans v. United States, 504 U.S. 255 (1992)
Ex parte Yarbrough, 110 U.S. 651 (1884)
FEC v. Wisconsin Right to Life, 551 U.S. 449 (2007)
First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978)
Fletcher v. Peck, 10 U.S. 87 (1810)
Foltz v. Cogswell, 86 Cal. 542, 25 P. 60 (1890)
Freytag v. IRS, 501 U.S. 868 (1991)
Frost v. Belmont, 88 Mass. 152 (1863)
Handley v. State, 102 P.2d 947 (Okla. Crim. App. 1940)
Harris v. Roof ’s Executors, 10 Barb. 489 (S. Ct., New York Cnty. 1851)
Herrick v. Barzee, 191 P. 141 (Or. 1920)
Houlton v. Dunn, 61 N.W. 898 (Minn. 1895)
Houlton v. Nichol, 67 N.W. 714 (Wis. 1896)
In re Crum, 55 N.D. 876, 215 N.W. 682 (N.D. 1927)
In re Wellcome, 23 Mont. 450, 59 P. 445 (Mont. 1899)
Isassi v. State, 330 S.W.3d 633 (Tex. Crim. App. 2010)
Leeman v. State, 35 Ark. 438 (1880)
Leonard v. Commonwealth, 112 Pa. 607 (Pa. 1886)
Livingston v. Commonwealth, 184 Va. 830 (Va. 1946)
Lynn v. Polk, 76 Tenn. 121, 35 (1881)
Marshall v. Baltimore & Ohio R.R. Co., 57 U.S. 314 (1853)
Martin v. State, 1 H. & J. 721 (Md. 1805)
Martin v. United States, 166 F.2d 76 (4th Cir. 1948)
McBratney v. Chandler, 22 Kan. 692 (Kan. 1879)
McComish v. Bennett, 131 S. Ct. 2806 (2011)
McConnell v. FEC, 540 U.S. 93 (2003)
McCormick v. United States, 500 U.S. 257 (1991)
McDonald v. Buckstaff, 76 N.W. 476 (1898)
McGhee v. Lindsay, 6 Ala. 16 (1844)
McGill’s Administrator v. Burnett, 7 J.J. Marsh 640 (Ky. App. 1832)
Mills v. Mills, 40 N.Y. 543 (1869)
Morrison v. McWhorter, 52 S.E. 394 (W.V. Spec. 1905)
Newberry v. United States, 256 U.S. 232 (1921)
Newell v. Commonwealth, 2 Va. 88 (Va. 1795)
 ca ses cited 353

Nixon v. Shrink Missouri Government PAC, 528 U.S. 377 (2000)

Oscanyan v. Arms Co., 103 U.S. 261 (1880)
Owens v. Wilkinson, 20 App. D.C. 51 (1902)
Palliser v. United States, 136 U.S. 257 (1890)
People v. Brandstetter, 103 Ill. App. 3d 259 (1982)
People v. Chapman, 13 N.Y.2d 97 (1963)
People v. Clougher, 246 N.Y. 106 (1927)
People v. Coutu, 235 Mich. App. 695 (Mich. App. 1999)
People v. Diedrich, 31 Cal. 3d 263 (Cal. 1982)
People v. Esposito, 146 Misc. 2d 847 (N.Y. Sup. 1990)
People v. Fichtner, 281 A.D. 159 (N.Y. App. Div. 2d Dept. 1952)
People v. Gokey, 9 Ill. App. 3d 675 (Ill. App. 1973)
People v. Jackson, 191 N.Y. 293 (N.Y. 1908)
People v. Johnson, 335 Ill. App. 3d 805 (Ill. App. 4th Dist. 2002)
People v. Kohut, 30 N.Y. 2d 183 (N.Y. 1972)
People v. Tweed, 13 Abb. Pr. n.s. 25 (1872)
Powers v. Skinner, 34 Vt. 274 (1861)
Randall v. Evening News Association, 97 Mich. 136 (Mich. 1893)
Reclamation Dist. No. 108 v. Hagar, 66 Cal. 54 (1884)
Reed v. State, 43 Tex. 319 (Tex. 1875)
Republic of Hawaii v. Young Hee, 10 Haw. 114 (Haw. 1895)
Respublica v. Hannum, 1 Yeates 71 (Pa. 1791)
Richardson v. Scott’s Bluff County, 81 N.W. 309 (Neb. 1899)
Rose v. Traux, 21 Barb. 361 (N.Y. Gen. Term 1855)
Ryan v. Miller, 236 Mo. 496 (Mo. 1911)
Scaccia v. State Ethics Commission, 727 N.E.2d 824 (Mass. 2000)
Shushan v. United States, 117 F.2d 110 (1941)
State v. Collins, 210 P. 569 (N.M. 1922)
State v. Darnall, 20 Tenn. 290 (1839)
State v. Dickens, 2 N.C. 406 (N.C. Super. L&Eq. 1796)
State v. Ellis, 33 N.J.L. 102, 1868 WL 4242 (N.J. 1868)
State v. Farris, 229 S.W. 1100 (Mo. Ct. App. 1921)
State v. Jackson, 73 Me. 91 (1881)
State v. Kearns, 129 N.E.2d 543 (1955)
State v. London, 194 Wash. 458 (1938)
354 ca ses cited

State v. Lopez, 522 So. 2d 997 (Fla. App. 3d Dist. 1988)

State v. Miles, 89 Me. 142, 36 A. 70 (Me. 1896)
State v. Pritchard, 107 N.C. 921, 12 S.E. 50 (N.C. 1890)
State v. Ragsdale, 59 Mo. App. 590 (Mo. App. 1894)
State v. Ross, 214 Ariz. 280 (Ariz. App. Div. 1 2007)
State v. Savoie, 128 N.J. Super. 329 (N.J. Super. A.D. 1974)
State v. Savoie, 67 N.J. 439, 341 A.2d 598 (N.J. 1975)
State v. Smagula, 39 N.J. Super. 187 (1956)
Steele v. Drummond, 275 U.S. 199 (1927)
Sweeney v. McLeod, 15 Ore. 330 (1887)
Tool Co. v. Norris, 69 U.S. 45 (1864)
Trist v. Child, 88 U.S. 441 (1874)
United States v. Abbey, 560 F.3d 513 (6th Cir. 2009)
United States v. Bohonus, 628 F.2d 1167 (9th Cir. 1980)
United States v. Bush, 522 F.2d 641 (7th Cir. 1975)
United States v. Cerelli, 603 F.2d 415 (3d Cir. 1979)
United States v. Classic, 313 U.S. 299 (1941)
United States v. Congress of Industrial Organizations, 335 U.S. 106 (1948)
United States v. Dozier, 672 F.2d 531 (5th Cir. 1982)
United States v. Jones, 5 Utah 552 (Utah. Terr. 1888)
United States v. Loring, 91 F. 881, 887 (N.D. Ill. 1884)
United States v. McCormick, 1992 WL 12132379 (4th Cir. July 22, 1992)
United States v. Richardson, 418 U.S. 166 (1974)
United States v. Ring, 706 F.3d 460 (D.C. Cir. 2013)
United States v. Rosen, 716 F.3d 691 (2d Cir. 2013)
United States v. Shober, 489 F. Supp. 393 (E.D. Pa. 1979)
United States v. Siegelman, 640 F.3d 1159, 1171 (11th Cir. 2011)
United States v. Sun Diamond Growers, 526 U.S. 398 (1999)
United States v. Taylor, 993 F.2d 382 (4th Cir. 1993)
United States v. Trotta, 525 F.2d 1096 (2d Cir. 1975)
United States v. UAW-CIO, 352 U.S. 567 (1957)
U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995)
United States v. Whitfield, 590 F.3d 325, 349 (5th Cir. 2009)
United States v. Worrall, 2 U.S. 384 (1798)
Usher v. McBratney, 28 F. Cas. 853 (C.C.D. Kan. 1874)
 ca ses cited 355

Walsh v. People, 65 Ill. 58, 1872 WL 8368 (Ill. 1872)

Webster v. Doe, 486 U.S. 592, 608 (1988) (Scalia, J., dissenting)
Winn v. State, 722 N.E.2d 345, 347 (Ind. App. 1999)
Wood v. McCan, 36 Ky. 366 (1838)
Wurster v. State, 708 N.E.2d 587, 594 (Ind. App. 1999), 715 N.E.2d 341
(Ind. 1999)
 Further Reading

Allerfelt, Kristofer. Crime and Rise of Modern America 1865–1941. London:

Routledge, 2011.
Amar, Akhil Reed. America’s Constitution: A Biography. New York:
Random House, 2005.
Aristotle. Nichomachean Ethics. Minneapolis: Filiquarian Publishing,
2007.
Bailyn, Bernard. The Ideological Origins of the American Revolution.
Cambridge, MA: Belknap Press of Harvard University Press, 1992.
Banning, Lance. The Jeffersonian Persuasion. Ithaca, NY: Cornell Univer-
sity Press, 1980.
Currie, David P. The Constitution in the Supreme Court: The First Hundred
Years, 1789–1888. Chicago: University of Chicago Press, 1985.
Downey, Clifford. Chicago and the Illinois Central Railroad. Charleston,
SC: Arcadia, 2007.
Euben, J. Peter. “Corruption.” In Political Innovation and Conceptual
Change, edited by Terence Ball, James Farr, and Russell L. Hanson.
Cambridge: Cambridge University Press, 1989.
Gibbon, Edward. The History of the Decline and Fall of the Roman Empire.
Edited by H. H. Millman. London: John Murray, 1846.
Henning, Peter. The Prosecution and Defense of Public Corruption: The Law
and Legal Strategies. New York: Oxford University Press, 2011.
Holton, Woody. Unruly Americans and the Origins of the Constitution. New
York: Hill and Wang, 2007.
358 further reading

Kaiser, Robert. So Damn Much Money: The Triumph of Lobbying and the
Corrosion of American Government. New York: Vintage, 2009.
Lessig, Lawrence. Republic, Lost: How Money Corrupts Congress and a Plan
to Stop It. New York: Hachette Publishing, 2011.
Locke, John. The Second Treatise of Government and A Letter Concerning
Toleration. Mineola, NY: Dover, 2002.
Machiavelli, Niccòlo. Discourses of Livy. Oxford: Oxford University Press,
1997.
McDonald, Forrest. Novus Ordo Seclorum: The Intellectual Origins of the
Constitution. Lawrence: University Press of Kansas, 1985.
McGrath, Peter C. Yazoo: Law and Politics in the New Republic, the Case of
Fletcher v. Peck. Providence: Brown University Press, 1966.
Montesquieu, Baron de. The Spirit of Laws [1748]. Translated by Melvin
Richter. Cambridge: Cambridge University Press, 1991.
Noonan, John T. Bribes: The Intellectual History of a Moral Idea. Colling-
dale, PA: Diane Publishing, 1984.
Pocock, J. G. A. The Machiavellian Moment: Florentine Political Thought
and the Atlantic Republican Tradition. Princeton, NJ: Princeton
University Press, 1975.
Rose-Ackerman, Susan. Corruption and Government: Causes, Conse-
quences, and Reform. Cambridge: Cambridge University Press, 1999.
Schiff, Stacy. A Great Improvisation: Franklin, France, and the Birth of
America. New York: Henry Holt, 2006.
Shain, Barry Alan. The Myth of American Individualism. Princeton, NJ:
Princeton University Press, 1994.
Underkuffler, Laura. Captured by Evil: The Idea of Corruption in Law. New
Haven, CT: Yale University Press, 2013.
Wood, Gordon S. The Americanization of Benjamin Franklin. New York:
Penguin, 2005.
———. The Creation of the American Republic, 1776–1787. New York:
W. W. Norton, 1969.
———. Radicalism of the American Revolution. New York: Knopf, 1992.
 Acknowledgments

Gratitude may be dangerous in the wrong situation, but in the right situa-
tion it is among the most glorious of emotions.
There are many friends without whose help I could not have finished
this book. Scott Faber, my writing partner, was like a weightlifter’s spotter,
encouraging me to write while he wrote at the same time on video chat, one
brutal Hower of Power at a time over five years. Kelly Jean Kelly, who com-
bines generosity with logic in all of her suggestions, edited early drafts and
provided extraordinary advice on connecting, storytelling, and persever-
ence. Larry Lessig encouraged me from the first e-mail to the last period.
His belief in me was such a source of strength. I was blessed to work with
two crack research assistants: Margaret Monaghan, who helped me de-
velop, think through, and research early ideas; and Megan Banfield, a wise,
careful, and critical-minded research assistant who cheerfully and carefully
read every idea, checked my cites (and corrected many of them), and uncov-
ered the early lobbying cases and many old bribery statutes. Thanks to
Larry Abraham and Jacob Seward for stellar research; to John Kulka, my
wise, kind, and unbelievably patient editor; to Amanda Michel for Russian
baths; to Bill Blachly and Ann O’Brien, each for a wonderful place to work
in the summer; to Lynn Marie Ruse for dancing; to Alissa Quart for find-
ing magic in the dullest chapters and giving them sparkle; and to Jennifer
Dworkin for making me laugh about philosophy, and myself, and protecting
me from category mistakes. I had many helpful comments on different ideas,
and I thank everyone who contributed. These wonderful people stand out
360 ac know ledg ments

for their thoughtful and deep engagement: Jamie Boyle, Richard Briffault,
Nestor Davidson, Jacob Eisler, James Gardner, Paul Haagen, Robert Kaczo-
rowski, Jonathan Mattingly, Robert Post, Jedediah Purdy, Seth Barrett Til-
man, and Alex Zakaras. To my parents, Mary and Peter Teachout, thank you
for encouraging me to turn toward complications, instead of away from them,
and for expecting the most difficult thing: that I say what I mean. Special
thanks to Duke Law School and the New America Foundation for their sup-
port at the beginning and end of the project, respectively. And great gratitude
to the faculty of Fordham Law School. You took a chance on me, and gave
me time, freedom, and support.
Finally, to Benjamin Franklin, for giving me hope.
 Index

Abramoff, Jack, 246–247 Anderson, John, 107–108

Accounting, Constitutional Convention Anderson v. Dunn (1821), 108, 113
on, 76–77 Anticorruption structures, post–
Acting corruptly and corrupt acts, 6, 38, Citizens United, 302
48–49, 202–203, 205–206 Anticorruption value (principle),
Adams, John: on Deane, 22, 23; on 276–290; end of, 244; equality and
France, 19; on Hobbes, 43; on money corruption and revival of, 280–284;
and politics, 256–257; on patriots, overview, 276–280; plurality and revival
38–39; on politics, 244; on Roman of, 287–290; structural rules and revival
republic, writings about, 34 of, 284–287
Adams, John Quincy, 27, 89 Anti-Federalists, 78
Adventurers, 75 Anti-Hobbes, Montesquieu as, 43
African American voters, protection of, Antimonopolization, 189
212, 272–273 Antimonopoly clause (proposed, U.S.
Agents, authority of, 91–93 Constitution), 78–79
Age requirements, for representatives, Anti-Yazooists, 84, 86, 88
75–76 Appointment powers, 62–67
Alabama: corrupt intent in, 203; on quid Appropriations, 76–77
pro quo in bribery context, 240 Archetypal corruption, 49–50
All the King’s Men (Warren), 13–14 Arendt, Hannah, 15, 274, 288–289
Amazon.com, 301 Aristocracy, defined, 40–41
Ambition and greed, 60–61 Aristotle, 40–41, 263–264
American colonies, corruption anxiety Arizona: public campaign and election
in, 36 funding in, 211, 299; on quid pro quo in
American culture, language of corruption bribery context, 240
in, 293 Articles of Confederation, 2, 20–21,
Ames, Oakes, 126 57, 58
362 index

Assessment model of political fundrais- to, 113–124; lobbying as gateway to,

ing, 181 166–167; overview, 102–105; problem
Associations, 235, 287–288 of definition of, 120–121; state courts’
Attempts to bribe, 119 permissiveness on, 199–204; statutes,
Aurora (newspaper), on Yazoo 105–106, 217; theft, comparison to,
scandal, 86 185; Worrall, 106. See also Campaign
Austin v. Michigan State Chamber contributions, as bribes; Common law;
of Commerce (1990), 213 Gifts, as bribes; Lobbying and lobbyists;
Australian (secret) ballots, 179–180, Quid pro quo
184 Bridges v. California (1941), 242
Bright-line rules, 111, 184, 188, 284–287
Bailyn, Bernard, 37–38, 40, 51 Bristow, Benjamin, 122
Balance (separation) of powers, 40, 62, Britain: bribery statutes in, 104;
66–67, 135 corruption in, 18–19; extortion in,
Balkin, Jack, 243 103–104; Franklin on, 60–61; as model
Ballots, color of, 179–180 for America, 35–37; monopolies in, 78;
Banking monopoly, 301 rotten boroughs in, 73–74
Banning, Lance, 47–48 British East India Company, 78
Barrett (Tennessee senator), 128 Brown, Ron, 265
BCRA (Bipartisan Campaign Reform Bryan, William Jennings, 181–182
Act, 2002), 230, 260, 312 Buckley v. Valeo (1976): corruption in
Bias, Madison on, 49 wake of, 212–214; decision in, 6–7,
Biography of Supreme Court justices, 207–208; on equality, 282; focus on
impact of, 8–9, 271–275 corruption in, 279; impact of, 206,
Bipartisan Campaign Reform Act 208–211, 255, 256; and lobbying
(BCRA, 2002), 230, 260, 312 contracts, 167; McCutcheon’s reliance
Bishop, Joel Prentiss, 119 on, 303; opinion, length of, 130;
Black, Hugo, 242, 247–248 premises of framework of, 208; quid
Blackstone, William, 104, 115–116 pro quo in, 238, 240
Boîte à portrait (snuff boxes), 22–23 Burke, Edmund, 35
Boss Tweed, 13, 121 Burke, Thomas, 209
Boston Tea Party (1773), 78 Burton, Joseph, 186–187
Brandeis, Louis, 242 Burton v. United States (1905), 186–187
Brandenberg v. Ohio (1969), 243 Butler, Pierce, 36–37, 65, 247
Breyer, Stephen, 257, 258
Bribes (Noonan), 121–122 Cain, Bruce, 281, 282
Bribes and bribery, 102–124; Anderson, California: bribery case opinion, 202;
108, 113; attempts to bribe, 119; confusion lobbying, definition of, 166; professional
over, 105–113; criminalization of, by ser vices case in, 162
states, 108–113; differentiation from Campaign contributions: after Citizens
campaign contributions, 175; early United, 256–257; bribes, differentiation
American conception of, 50; in England, from, 175; Buckley on, 208–210; campaign
103–104; federal laws on, 116; legislative fi nance law, 100–101, 188–194, 206;
activity, application of corruption laws government salaries, relationship to,
 index 363

175–177; Kennedy and Roberts on, responsiveness, 229–234; and Douglas,

17–18; policy influence through, 206; 194; free speech, expansion of, 241–244;
possible end of restrictions on, 304. goal of Citizens United in airing ads
See also Buckley v. Valeo; Political about Hillary Clinton, 229–230;
spending justifications for decision on, 11; Kennedy
Campaign contributions, as bribes, in, 7, 231, 232–235, 237, 269–270; on
215–226; in McCormick, 224–226; lobbying, 169; opinion, length of,
overview, 215–218; as question of fact, 130–131; precursor to, 227–229; quid
218–222; in West Virginia, 222–224 pro quo mistake in, 238–241; Scalia in,
Campaign funding. See Campaign 297–298
contributions Citizens United, effects of, 246–257; new
Cancer, corruption as, 39 placemen, 246–249; new rotten
Candidates, political. See Campaign boroughs, 253–255; new snuff boxes
contributions; Political spending (foreign gifts), 249–253; new Yazoosim,
Cape Hattaras lighthouse, 106 256–257; overview, 7
Captured by Evil (Underkuffler), 278 Civic virtue, 41, 165
Cardozo, Benjamin N., 243–244 Civil ser vice, 175–177
Carter, Jimmy, 251 Classic, United States v. (1941), 191–192
Census protections, 74, 254 Clayton Act (1914), 301
Centralized executive power, 61 Clean Election Act (Maine, 1996), 299
Champerty, 151 Clinton, Hillary, 230
Changing the frame. See Early America Coalfield Health Care Association,
Chase, Samuel, 106 249–250
Chicago, forced land sale to Illinois Coke, Edward, 78, 103–104
Central Railroad, 138–139 Comcast, 301
Chicago Press and Tribune (newspaper), Commentaries on the Criminal Law
on corruption in Washington, D.C., (Bishop), 119
12–13 Commoners, Montesquieu on, 42
Child, Linus and L. M., 154–155, 156 Common good, support for, 45
Christian tradition, corruption in, Common law: bribery, 104–105, 107, 108,
39–40, 45–46 110, 117–118, 166; champerty, 151;
Cicero, 34 contracts and conveyances, 96, 98, 119,
Citizens: in Citizens United, 235–236, 237; 149; corruption, 117–118, 294; criminal
description of, 236–237; in early common law, 106–107; extortion, 108,
America, 51–53; relationship to 110, 115–116, 200; natural resources law,
countries, 277; virtue of, 156 142; on treating, 105, 109, 115; on
Citizenship requirements, for representa- vendible items, 160
tives, 75–76 Common people (the public), 95,
Citizens United v. Federal Election 292–293. See also Citizens
Commission (2010), 227–245; apolitical Common Sense (Paine), 63–64
vision of democracy of, 234–238; Commonwealth v. See name of opposing
conclusions on, 244–245; context for party
decision in, 259–260; on corporations, Complacency about democratic collapse,
rights of, 242; corruption as democratic Supreme Court’s, 264–267
364 index

Concept of corruption: in democracy, on rotten boroughs, 72–74; on takings,

296; importance of, 15; sources of, in 77–80; on treaties, 80
early America, 39–40; and Yazoo Constitutional Convention (Georgia,
scandal, 89–98. See also Corruption 1877), 146–148
Conclusions on corruption in America, Constitutional corruption law, quid pro
291–305; McCutcheon, 302–305; new quo and, 238–239
structures, need for, 298–302; overview, Contempt of Congress, 107–108
291–298 Contingent fees, 159, 168–169
Congress: bribery statutes passed by, Contract law: and Fletcher decision,
105–106; gifts, actions on, 2, 24–25, 26, 96–98; and lobbying, 149, 170–171; quid
30; lobbying activities with, legality of, pro quo in, 239. See also Yazoo scandal
172; lobbying law (1852), 151–152; Contracts clause, 96–98, 99
punishment of bribery by, 107–108; Copyright and patent clause, 78, 79
residency requirements for, 4–5; Corporations: as associations, 235;
revolving door, 246–247; size of, campaign spending, 212–213; rights of,
68–71; Yazoo scandal, actions on, 88. in Citizens United, 235, 242
See also House of Representatives; Corruptibles, Mack presiding at table
Senate for, 138
Congress of Industrial Organizations, Corruption: anticorruption value
United States v. (1948), 192–193 (principle), 276–290; archetypal,
Connecticut, public funding of elections, 49–50; bribery, 102–124; campaign
299–300 contributions, as bribes, 215–226;
Conservation law, modern, 142–143 change in understanding of, 244; and
Constitution (U.S.): anticorrpution Citizens United, 227–257; conclusions
provisions, 307–310; antimonopoly on, 291–305; and Constitutional
clause (proposed), 78–79; contracts Convention, 56–80; contemporary
clause, 96–98, 99; copyright and patent treatment of, 8; corrupt acts and acting
clause, 78, 79; Franklin on, 15; gifts corruptly, 6, 38, 48–49, 202–203,
clause, 26–27, 30–31; on high crimes 205–206; corrupt person, 38; corrupt
and misdemeanors, 111; journal clause, system, 38; corrupt thoughts, 48–49;
77; political philosophy clause, 243; as court determinations of, 93–95;
protection against corruption, 295; criminal bribery laws and, 123;
takings clause, 77–80, 267. See also description of, 9, 276; early America,
Constitutional Convention 32–55; during Gilded Age, 174–182;
Constitutional Convention, 56–80; Hamilton’s views on, 70; idea of,
on accounting, 76–77; bright-line rules centrality to American legal history, 2;
from, 284–285; on Congress, composi- intent, 111–112, 119, 183, 198, 203, 286,
tion of, 68–71; context for, 57–59; on 296; Jefferson’s views on, 247;
elections, 67–68, 71–72, 254; Franklin Kennedy’s views on, 238, 292–293; and
at, 56–57; on gifts, 26–27; goals of, 54; lobbying, 144–173; Locke’s views on,
Mason at, 38; on placemen, 60–67; on 44; Madison’s views on, 49; mail fraud,
representatives, age and citizenship 195–199; meaning of, to early Ameri-
requirements for, 75–76; Roman and cans, 38–40; meanings of, to lawyers,
Greek corruption, attention to, 34–35; 294–295; Montesquieu’s views on,
 index 365

42–43; as moral concept, 278; Morris’s Debt, states’, after Revolution, 58

views on, 50; Operation Gemstone, “Debt paying” Democratic Party
205–214; overview, 1–16; political (Tennessee), 127
corruption, prosecution of, 195–204; Decadence, Nietzsche on, 291
political corruption laws, 183–194; Declaration of Independence, 53
post-colonial America, 17–31; as quid Delaware: bribery offenses in, 111;
pro quo corruption, 292; railroad- election bribery laws in, 109
related cases, 125–143; Supreme Court Democracy: conception of corruption in,
justices’ views on, 48, 258–275; “War on 296; framing of debates over, 243–244;
Corruption,” 11; Yazoo scandal, 81–101. love of, 42; scarcity of, 302
See also Bribes and bribery; Political Democratic collapse, Supreme Court’s
corruption, prosecution of; Quid pro complacency about, 264–267
quo Democratic National Convention (DNC,
Corruption and Government: Causes, 1972), 205
Consequences, and Reform (Rose- Democratic Party (Tennessee), split over
Ackerman), 261–263 railroad debt, 127
Corruption law: fiduciary law vs., Democratic politics, disdain for,
293–294; length of judicial opinions on, 267–271
130–131; misconceptions on, 12. See also Democratic power to fight corruption,
Common law; Political corruption 98–101
laws Democratic-Republicans, 85, 86, 88
“Corruptly” (acting corruptly), 6, Democratic responsiveness, corruption
202–203, 205–206 as, 229–234
Corruptly passed laws, judicial explora- Dependency and corruption, in early
tion of, 131–136. See also Yazoo scandal America, 53–55
Corrupt officials, prosecution of, Depravity, definition of, 203
185–187 Detroit Evening News, on Randall,
Coxe, Tench, 105–106 119–120
Crédit Mobilier corruption scandal, Dickinson, John, 73
125–126 Diplomats, gifts to, 1–3, 19–20. See also
Criminal anticorruption laws, difficulty Foreign gifts
of prosecution of, 121–122 Disdain for democratic politics, Supreme
Criminal bribery laws, quid pro quo and, Court’s, 267–271
238–239 Douglas, William O., 191–192, 194
Criminal law: common law, 106–107; Drummond (Steele v. Drummond
corruption’s separation from, in early defendant), 171
America, 50; role in society, 121–122 Dutch. See Holland
Crown (England), monopolies granted Dworkin, Ronald, 279
by, 78
Culture of gift giving, 28 Eardley-Wilmot, John Eardley, 102–103
Early America, 32–55; Britain as model
D.C. Circuit court, on campaign for, 35–37; and Christian version of
contributions, 219–220 corruption, 45–46; citizens and
Deane, Silas, 22–24 institutions in, 51–53; corruption, fears
366 index

Early America (continued) FECA (Federal Election Campaign Act,

of, 37–40; corruption and self-interest 1974), 206–207, 312
in, 46–50; dependency and corruption Federal bribery laws, 116, 122–123, 256, 312
in, 53–55; Hobbes’s influence on, Federal constitutional law, corruption
43–44; idea of corruption in, 18; under, 232
ideology of, 37–38; Locke’s influence on, Federal Corrupt Practices Act (FCPA,
44–45; and Montesquieu, 40–43; 1910), 188
Roman republic as model for, 32–35 Federal Election Campaign Act (FECA,
Earmarks, 253–254 1974), 206–207, 312
Education, American devotion to, 48 Federal Election Commission, 207, 230
The Election of Senators (Haynes), 123 Federal Election Commission v. Wisconsin
Elections: barriers to restraint of Right to Life, Inc. (2007), 238
corruption by, 99; bribery in, 109; as Federal employees, merit hiring of,
checks against corruption, 254; 176–177
Constitutional Convention on, 67–68, Federal government, debate over creation
71–72; during Gilded Age, 177–180; of, 59–60
primary, regulation of, 190–192; Federal Gratuities Statute (1962), 227,
publicly funded, 299–300; Washington 228, 312
on, 236. See also Campaign contribu- Federalist Papers, 46, 49, 55
tions; Political spending Federalists, 79, 85, 86, 88
Electoral democratic practice, problem of Federalist Society, 260
defining corruption in, 215–217 Federal Program Bribery Statute (1984),
Electorate. See Citizens, in early America 312
Elites, isolation of, during Gilded Age, Fiduciary duty, 293–294
180–182 Field, Stephen Johnson, 141, 149, 273
England. See Britain Fifth Amendment, on public use,
Entrepreneurialism, pessimism and, 35 267–268
Equality, corruption and, 250, 280–284 Fillmore, Millard, 138
Equal protection clause, 269 Finances, responsibilities for, Constitu-
Espy, Mike, 227 tional Convention on, 76–77
Euben, J. Peter, 263–264 Financial dependence, 54
Evans, Eldon C., 177 First Amendment: Americanization
Evans v. United States (1992), 225 of, 242; and campaign spending limits,
Executive branch, salaries for, 60–61 207; changing views of, 170; in Citizens
Ex parte Yarbrough (1884), 212, 272–273 United, 231–232, 236, 241–242; Douglas
Ex post facto laws, 97 on, 194; as point of consensus, 243
Extortion, 50, 103, 108–110, 115–116, 119, First National Bank of Boston v. Bellotti
199–201, 217. See also Hobbs Act (1978), 212–213
Fiss, Owen, 243
Facts, Supreme Court’s disregard for, Fletcher, Robert, 89, 91, 96, 97
258–264 Fletcher v. Peck (1810): impact of, 98–101,
Fall, Albert, 187 141; and Kelo, 269; Marshall’s decision
FCPA (Federal Corrupt Practices Act, on, 93–98, 100–101, 141–142, 270, 297; as
1910), 188 precedent for Tennessee, 129–130
 index 367

Florida, on quid pro quo in bribery Georgia: Constitutional Convention

context, 240 (1877), 146–148; election bribery laws,
Foreign doctors, in McCormick case, 223, 109; lands commission, 88; land
249, 252–253, 256 speculation corruption case, 6, 82–84;
Foreign gifts: constitutional prohibitions legislative bribery statute, 114
on, 26–28, 30–31; to Deane, 22–23; Gerry, Elbridge, 63, 69, 72, 79, 80
Dutch rules on, 20–21; to Franklin, 1–2, Gibbon, Edward, 32–35
25–26, 291; to Jay, 25; to Jefferson, Gift clause, 30–31
28–30; to Lee, 23–25; lobbyists’ gift Gifts: Congress’s actions on, 2, 24–25, 26,
economy, 249–253 30; differing perceptions of, 1–2;
Foreign influence, 80, 197 financial, to judges, 184; Holland’s rules
Foreign invasion, security against, in on, 20–21, 27; of horses, 25; lobbyists’
early America, 59 gift economy, 249–253, 255. See also
Founding fathers, 20–21, 34–35, 37–38, Foreign gifts
46–47, 59 Gifts, as bribes, 17–31; Articles of
France: corruption in, 18–19; and Confederation on, 20–21; Constitu-
Franklin, 25–26 tional provisions against, 26–28; and
Frankfurter, Felix, 192–194 Deane, 22–23; and Franklin, 25–26; and
Franklin, Benjamin: on America, 15; Jay, 25; and Jefferson, 28–30; and Lee,
bequests of, 291; on the Constitution, 15; 22–25; Old World practices on, 18–20;
at Constitutional Convention, 55, overview, 17–18; Plato on, 21
56–57, 60; in delegation to France, 22; Gifts (gratuities) statutes, 217–218,
Eardley-Wilmot, similarities to, 102; on 219–220
England, 36; gift from Louis XVI to, Gilded Age, 174–182; campaign money,
1–3, 25–26; The History of the Decline relationship to government salaries,
and Fall of the Roman Empire, reading 175–177; definition of corruption
of, 34; politics, understanding of, 15–16; during, 293; elections during, 177–180;
on power of appointments, 63; universal elites, isolation of, 180–182; meaning of
nature of concerns of, 62 corruption during, 126; overview,
Franklin, Sarah, 291 174–175
Fraud, appeal court’s description of, The Gilded Age (Twain and Warner),
197–198 180–181
Freeman (Tennessee judge), 131–136 Governments: forms of, Aristotle on,
Free speech, 192–193, 241–244, 303. See 40–41; tendency to monarchism, 61.
also First Amendment See also Congress
Fukuyama, Francis, 265–266 Government salaries, 175–177
Fuller, Lon, 296–297 Goyard-Fabre, Simone, 43
Fundraising, by political candidates. See Grammar of corruption, 284
Campaign contributions Grant, Ulysses E., 122
Gratuities (gifts) statutes, 217–218, 219–220
Gardoqui, Diego de, 25 Greed, 60–61
Garfield, James, 176 Group interests, 287–288
Geography, as barrier to corruption, Guiteau, Charles, 176
70–71 Gun sales to Turkey, 158–159
368 index

Haldeman, H. R. “Bob,” 205 House of Representatives: fears over

Hamilton, Alexander: on Congress, corruption of, 68; residency require-
selection of, 72; on Constitutional ments, 75; size of, 69–70
Convention, 57; during constitutional Human nature, 8, 41, 60–61, 260–263
ratification debates, 62; and contracts Hume, David, 53
clause, 98; on corruption, defenses to, Hutcheson, Francis, 91
70; Hobbes’s influence on, 44;
monarchism of, 50; on power of Illinois: bribery statutes in, 118–119;
appointments, 64; on rotten boroughs, legislative bribery laws in, 114
72–73; on wealth, 55; Yazoo, opinion Illinois Central RR v. Illinois (1892),
on, 80 137–143
Hanna, Mark, 181–182 Impairment of contracts, ban on, 131–132,
Hardin, Russell, 266 140
Harlan, John Marshall, 273 Incentive structures, use in fighting
Harris v. Roof ’s Executors (1851), corruption, 11, 184
150–151 Independence, early American under-
Harriss, United States v., 171–173 standing of, 53
Hasen, Rick, 214, 281–282 Independent expenditures, basis in
Hatch Act (1939), 311 corruption, 6
Hawaii: elections, public funding of, 299; Indiana: election buying in, 178;
failed bribery indictment in, 120 legislative bribery statute, 116; on quid
Hawkins, Alvin, 127 pro quo in bribery context, 240
Haynes, George Henry, 123–124 Individual corruption, 51
Hearst, William Randolph, 181 Individuals, the public vs., 95
Hellman, Deborah, 278, 279, 287 Inequality, relationship to corruption,
Henning, Peter, 228 250, 280–284
Henry, Patrick, 36, 80, 83 Institutions, in early America, 51–53
High misdemeanors, 110–111 Intent. See Corruption
History, end of, 265–266 Is Bribery without a Remedy? (Eardley-
The History of the Decline and Fall of the Wilmot), 102–103
Roman Empire (Gibbon), 32–33, 35 Issacharoff, Samuel, 278, 279
History of the United States (Webster),
45–46 Jackson, Andrew, 5, 175
Hobbes, Thomas, 43–44, 263–264 Jackson, James, 84
Hobbs Act (1946), 199–200, 221, 223–225, Jay, John, 25
311 Jay, Steward, 242
Holland: rules on gifts, 20–21, 27; size Jefferson, Thomas: and Citizens United,
of, 70 234; on corruption, 247; on European
Holmes, Oliver Wendell, 242 corruption, 19; on Fletcher decision, 99;
Homesteading, 82 gift of snuff box to, 28–30; The History
Honest ser vices cases, 199 of the Decline and Fall of the Roman
Horses, gifts of, 25 Empire, ownership of, 34; on Hobbes,
House of Commons (Britain), on 43–44; on Marshall, 270; on monopo-
monopolies, 78 lies, 78; and Montesquieu, 42; on
 index 369

successful political societies, 38; Language of corruption, function of,

Tacitus, opinion of, 34; temptations, 293–294
response to, 16; and Yazoo scandal, Law and economics movement, 260–263,
80, 88 266
Jefferson, William, 11 Laws: corruptly passed, judicial
Jewelry, Franklin on, 291 exploration of, 131–136; equal applica-
Johnson, William, 90 tion of, 297; invalidation of, due to
Jones, Timothy. See Deane, Silas bribery, 129–130. See also Political
Journal clause, 77 corruption laws
Judges: bribery of, 103, 215–217; contracts, Lawyer-client relationships, 156
changing attitudes toward, 170; financial Leahy, Patrick, 228
gifts to, bright-line rules on, 184. See also Lee, Arthur, 22–25, 26, 30–31
Supreme Court (U.S.) Lee, William, 26
Judicial reviews, 100, 133–134, 135–136 Legal bribery, 251
Judicial usurpation, 135–136 Legal corruption, Morris on, 50
Juries: determination of corruption by, Legislative activity, application of
220–221, 222, 295, 296; instructions to, corruption laws to, 113–124
on “corruptly,” 202–203; in mail fraud Legislative corruption, 107, 215–217
cases, 197, 199. See also Political Legislative power, 134–135
corruption, prosecution of Legislative sovereignty, 142
Leland Hotel (Illinois), 138
Kaiser, Robert, 209–210 Lessig, Lawrence, 54, 80, 249, 278, 279
Kansas, political fraud in, 186–187 Liberty, 38, 53
Kelo v. City of New London (2005), Lobbying and lobbyists, 144–173; change
267–269 of attitude toward, 169–170; civil law
Kennedy, Anthony: on campaign used to police, 149; Harris, 150–151;
contributions, 17–18; in Caperton, impact of, 246–249; legitimacy of,
270–271; in Citizens United, 7, 231, 169–173; lobby contracts, 149, 150–151,
232–235, 237, 269–270; corruption, 154–158, 167–168; lobbying expendi-
effects of defi nition of, 244; on tures, 246; lobbyist-client relationships,
corruption as quid pro quo, 238, 156–157; lobbyists, legislative control of,
292–293; in Evans, 225; on First 149–154; Marshall, 152–153; McGhee,
Amendment, 241–242; in Kelo, 167–168; as new foreign gifts, 249–253;
269 Oscanyan, 159–161; overview, 144–149;
Kennedy-Roberts model of corruption, and personal influence vs. professional
7–8 ser vices, 158–169, 173; Rose, 153–154;
Kentucky: legislative bribery statute in, Steele, 170–171; Trist, 154–158, 169,
115; lobbying case in, 164–165 271–272
Locke, John, 39, 91
Lafayette, Gilbert Du Motier, marquis Long, Huey, 195
de, 52 Louisiana, legislative bribery statute,
Land-fraud scheme (Oregon), 185–186 116–117
Land speculation, 82–83. See also Yazoo Louisville, Kentucky, use of secret ballots
scandal in, 179
370 index

Louisville Courier-Journal (newspaper), on Massachusetts: ballot colors in, 179; on

bribery lawsuit, 129 corrupt intent, 112; elections, public
Louis XVI, King, 1–3, 22–23 funding of, 299; lobbying registration
Lowenstein, Daniel Hays, 17, 18, 217–218 law, 170; on quid pro quo in bribery
“Low tax” Democratic Party (Tennessee), context, 240; Shays rebellion in, 58
127 Matchin (lobbyist), 150–151
Luxury, 20, 55 Matthews, Stanley, 273
Lynn v. Polk (1881), 131–137, 142 McConnell v. FEC (2003), 130, 214
McCormick, Robert L., 222–224,
Mack, Alonzo, 138–139, 140 249–252, 256
Madison, James: on balance of powers, McCormick v. United States (1991),
67; on bias, 49; and Citizens United, 224–226, 249–250, 256, 303
233–234; on Congress, 14, 68, 69, 71; on McCutcheon v. FEC (2014), 7, 194,
corruption, 49; on elections, 71, 254; on 302–304
Fletcher decision, 99–100; on Franklin’s McFarland, Robert, 130, 136–137
speech at Constitutional Convention, McGhee v. Lindsay (1844), 167–168
62; on good government, 67; on human McHenry, James, 66
beings, 46; on judicial reviews, 100; on McKinley, William, 181–182
Mason, 65–66; notebooks of, 57; on McReynolds, James Clark, 190–191
theory of government, 62–63; on theory Meat production monopoly, 301
of property, 79; on virtuous citizens, 52; Members of parliament, punishments of,
and Yazoo scandal, 80, 88 for bribery, 103
Mail Fraud Act (1872), 311 Mental states (corrupt thoughts), 48–49
Mail fraud statute, 6, 196–199 Mercer, John Francis, 37, 68
Maine Clean Election Act (1996), 299 Michigan: bribery laws in, 109–110, 114;
Maine Supreme Court, 116 misconduct in office, crime of, 203; on
Malum in se, 184 quid pro quo in bribery context, 240
Malum prohibitum, 184 Michigan Supreme Court, 120
Mandatory gift economy, 255 Military appropriations, 76
Mansfield, William Murray, First Earl Miller, Samuel, 272–273
of, 118 Minnesota, legislative bribery
Marshall, A. J., 152 statute, 115
Marshall, John: Fletcher decision, 93–98, Misdemeanors, 110–111, 118–119
100–101, 141–142, 270, 297; on judicial Mitchell, John, 186
review, 133; perceptions of, 99–100; and Mixed government, Montesquieu
Yazoo scandal, 80, 89–91 on, 41
Marshall v. Baltimore & Ohio R.R. Co. Mob rule, 40–41
(1853), 152–153, 157 Monarchy, 40–41, 43, 282
Martin, Luther, 90, 92 Money, as agent of change, 49
Maryland: bribery, laws on, 110; criminal Monopolies, 77–78, 301
corruption law in, 111–112; election Monroe, James, 113–114
bribery laws, 109; lobbying registration Montesquieu, Charles-Louis de
law, 170 Secondat, Baron de La Brède et de, 39,
Mason, George, 38, 63–66, 75, 76 40–43, 46, 51–52, 278, 283–284
 index 371

Moral corruption, 45 Noonan, John T., 121–122

Morris, Gouverneur, 49, 50, 55, 68 North Carolina: on corrupt intent, 112;
Motives, Freeman on, 133–134 election bribery laws in, 109; public
Murray, William, First Earl of Mansfield, funding of elections, 299
118 North Carolina Supreme Court, 115
Murrin, John, 236 Nozick, Robert, 279

Natural resources, 146–147 Obligations, 250–251

Nebraska: lobbying, definition of, 162; Obstruction of justice statute, 205
lobbying ser vices decision, 168–169 O’Connor, Sandra Day, 267, 269
Newberry v. United States (1921), Official acts, 220, 221
190–191 Official right, extortion via, 200
New foreign gifts, 249–253 Officials, corrupt, 185–187
New Hampshire, bribery laws, 111 Of the dissolution of Government (Locke),
New Jersey: bribery, laws on, 110; 44
campaign contributions in, 219; Ohio, on quid pro quo in bribery context,
“corruptly” instruction, requirement 240
for, 202; elections, public funding of, Oklahoma, bribery case opinion,
299 200–201
New Jersey Supreme Court, 117–118 Old World, gift-giving practices of,
New Mexico, public funding of elections, 18–20
299 Oligarchy, 40–41
Newmyer, R. Kent, 90 Olson, Ted, 231
New Orleans: Levee Board, 196, 197; Operation Gemstone, 205–214; and
political corruption in, 195–198 Buckley, 207–212; corruption in wake of
New placemen, 246–249 Buckley, 212–214; overview, 205–206
New rotten boroughs, 253–255 Orangeburg, South Carolina, ballot
New snuff boxes. See Citizens United, colors in, 179
effects of Oregon: illegal sale of public land in,
Newspapers, lobbyists for, 151–152 185–186; lobbying, definition of, 162
New Yazoosim, 256–257 Oscanyan v. Arms Co. (1880), 159–161
New York (State): ballot colors in, 179; Ossian (fictitious Irish warrior-poet), 34
election bribery laws, 109; quid pro quo Outside spending, 256
in bribery context in, 240; Rose, 152–153
New York City, public funding of PACs, 235
elections, 300 Paine, Thomas, 63–64, 73
New York Journal, on vote buying, Parent-child relationships, 277
181–182 Patent and copyright clause, 78, 79
New York Times, on Tennessee General Patriots, John Adams on, 38–39
Assembly, 127, 129 Payment for offices, 60
Nietzsche, Friedrich, 291 Peck, John, 89, 91
Ninth Circuit court, on political Pendleton Act (1883), 176–177, 184
corruption, 199 Pennsylvania, on corrupt intent, 112
Noncorrupt behaviors, 3–4 People v. See name of opposing party
372 index

Permissiveness, of courts on bribery, Political spending, 188, 206, 255–256. See

199–204, 222 also Campaign contributions
Personal influence, 159–162, 168–169 Political theory, 218, 291–292
Perversion, 203 Political traditions, American, 4
Pessimism, entrepreneurialism and, 35 Political transformation, 5–6
Peters, Richard, 106 Politicians: fundraising by, 251–252;
Pinckney, Charles, 26–27, 65, 71–72 as justices of the U.S. Supreme
Pitney, Mahlon, 190–191 Court, 271–273; rotation in office,
Placemen, 35, 60–67, 246–249 175–176
Plains states, lobbying in, 164 Politics: John Adams on, 244; rejection
Plato, 21 of, 274–275. See also entries beginning
Plurality, revival of anticorruption “political”
principle and, 287–290 Polity, 40–41
Plutarch, 34 Pollack, Malla, 77, 78–79
Pocock, J. G. A., 37–38 Positivists, 95
Political campaigns and candidates. Powell, Lewis F., Jr., 273
See Campaign contributions; Political Power, 60–61, 255
spending Power of appointments, 62–67
Political collapse, Supreme Court’s Power of the purse, 76–77
complacency about, 264–267 Pre-Revolutionary America, perceptions
Political corruption, prosecution of, of Britain in, 36
195–204; “corruptly,” jury instructions Presents du roi (presents du congé), 19–20
on, 202–203; mail fraud statute, use of, Presidential races, 181–182, 207, 299
196–199; in New Orleans, 195–198; Price, Richard, 91
permissiveness in, 200–202 Primary elections, 190–192
Political corruption laws, 183–194; and Princes, power of, 61
Burton, 186–187; campaign finance laws, Private behavior, privileging of, 15
188–194; and Classic, 191–192; and Private bills, 158
Congress of Industrial Organizations, Private interests: and campaign spending
192–193; corrupt officials, prosecution limits, 255; domination of, as corrup-
of, 185–187; and Newberry, 190–191; tion, 9, 38, 48, 276, 278, 285, 289;
types of, 183–184; and UAW- CIO, equality theory on, 283; lobbying’s
193–194. See also Mail fraud statute influences on, 147, 157, 164; Madison on,
Political discourse, importance of 47; and monopolies, 78; Montesquieu
grammar of corruption to, 284 on, 42; need to define, 287; and public
Political equality, 280–284 good, 47–48
Political parties, spoils system and, 176 Private vs. professional ser vices, in
Political persons, commodification of, lobbying, 158–169
247–248 Process failures, 134
Political philosophy clause, 243 Property law on “vendible” items, 160
Political power, lobbying and, 144–145 Property rights, 79, 85–86, 98. See also
Political societies, 38, 47, 236–237 Takings clause
Political speech, in Citizens United, Prophylactic anticorruption rules: court
241–242 review of, 296–297; description of, 4–5;
 index 373

importance of, 11, 31; political corrup- Railroad-related cases: Illinois Central
tion laws as, 183–184; and revival of RR, 140–143; Lynn, 131–137; overview,
anticorruption principle, 284–287; 125–127; in Tennessee, 127–137
Supreme Court’s actions on, 10 Randall, James A., 119–120
Prosecutorial post-Watergate culture, Randall, Robert, 107
rise of, 5 Randolph, Edmund, 27–28, 59, 60,
Protected speech, political spending as, 62, 68
231. See also First Amendment Randolph, John, 80, 87, 88
Pro-Yazooists, 88, 93 Rawls, John, 278
Psychological dependence, 54 Reconstruction era, 125–126
The public (common people), 95, Reed, Stanley Forman, 192
292–293. See also Citizens Representative bodies, Gibbon on, 33
“Public Choice v. Democracy” (Hardin), Representative democracy, lobbying and,
266 145–146
Public good (public interest), 9, 52, 289, Representatives, age and citizenship
303. See also Private interests requirements for, 75–76
Publicly funded elections, 299–300 Republic, Lost (Lessig), 278
Public morality, lobbying and, 157–158 Republicanism, influence on early
Public-oriented government, private Americans, 35
behavior and, 15 Republican Party (Tennessee), 127
Public prosecutors, actions by, against Residency requirements, 4–5, 75, 184, 254
elected officials, 195 Revolving door, 246–247, 298
Public sphere, traditional view of, 9 Rights, personal, 160–161, 162
Public trust doctrine, 6, 140–141, The Rights of Man (Paine), 73
142–143 Roberts, John: on campaign contribu-
“The Public Trust Doctrine in Natural tions, 17–18; during Citizens United oral
Resources Law” (Sax), 142 arguments, 231; corruption nihilism of,
Public use, 267–268 101; in McCutcheon, 7, 302–303, 304; on
Public waters. See Illinois Central RR v. quid pro quo, 238
Illinois Robinson-Patman Act (1936), 301
Pufendorf, Samuel, 45 Rojas, Martha, 29
Roman republic, 32–35
Questions of fact, and campaign Roosevelt, Franklin Delano, 189
donations, as bribes, 215–218 Roosevelt, Theodore (“Teddy”), 182, 183,
Questions of law, Scalia on, 258 185–189, 302
Quid pro quo: disputed meaning of, Rose v. Traux (1855), 153–154
8; early American references to, 50; Rose-Ackerman, Susan, 261–263
in extortion, 201; for Hobbs Act Rot, corruption as, 39
violations, 224; Kennedy on, 7; Rotation in office, 175–176
mistake of, in Citizens United, 238–241; Rotten boroughs, 72–74, 253–255
multiple meanings of, 240–241; Rousseau, Jean-Jacques, 278–279
Roberts on, 7. See also Bribes and Rule of law, Fuller on, 296–297
bribery; Corruption Rumely, United States v. (1953), 171–172
Quids Party, 88 Russell, John, 102
374 index

Sachs, Steve, 285 Spoils system, 176

Sallust, 34 State v. See name of opposing party
Sarbanes, John, 300 State courts, permissiveness on bribery,
Sax, Joseph, 142 199–204. See also names of individual
Scalia, Antonin: in Austin, 213; on states
Buckley, 209; in Citizens United, States: debts, after Revolution, 58;
297–298; during Citizens United oral extortion and bribery, criminalization
arguments, 231; corruption, inconsis- of, 108–113. See also names of individual
tent views of, 269–270; on corruption, states
48; on facts, 258; on quid pro quo, 238, Statute of Westminster, 104
241; in Sun Diamond, 229 Steele v. Drummond (1927), 170–171
Second Party System, 175 Stevens, John Paul, 234, 258, 259
Secret (Australian) ballots, 179–180, Story, Joseph, 30, 80, 89–90, 93
184 Strauss, David, 281
Self-corruption, 20, 68 Structural anticorruption rules. See
Self-interest, 8, 9, 46–50 Prophylactic anticorruption rules
Selfish-man theory of human nature, 8, Structural dependence, 53
260–263 Structures: anticorruption, post–
Senate: direct election of, 123, 189; fears Citizens United, 302; as curb on
over corruption of, 68; size of, 69 corruption, 33, 35, 49; and dependency,
Separation (balance) of powers, 40, 62, 53–55; incentive structures, 11, 184; and
66–67, 135 virtue, 41, 46–47, 48
Seventeenth Amendment, 5, 72, 189 Sullivan, Kathleen, 281
Shain, Alan, 45 Sun Diamond Growers, United States v.
Shays, Daniel, 58 (1999), 227, 228–229
Sherman Act (1890), 172–173, 301 Supreme Court (U.S.), 258–275;
Short, William, 28–29 bright-line rules, dislike of, 286–287;
Shushan, Abraham, 195–198 corruption, narrowing definition of,
Shushan v. United States (1941), 197–198 204, 295; democratic collapse,
Sixth Circuit, on quid pro quo, 240 complacency about, 264–267;
Slavery, 86 democratic politics, disdain for,
Smith (Tennessee senator), 127–129 267–271; facts, disregard for, 258–264;
Smith, Adam, 32 first invalidation of state law on federal
Snuff boxes, as gifts, 1–2, 22–26, constitutional grounds, 6; Fletcher’s
28–30, 291. See also Citizens United, impact on, 99; on lobbying, 169; longest
effects of cases in, 130–131; personal backgrounds,
So Damn Much Money (Kaiser), 209–210 effects of, 271–275; political theory of,
Sotomayor, Sonia, 258 291–292; politics, structuring of, 255; on
Souter, David, 258 public campaign funding, in Arizona,
South Carolina Yazoo Company, 83 211; and Yazoo scandal, 89–98. See also
Spain, occupation in America, 58 Supreme Court (U.S.), decisions
Speed limits, 184 Supreme Court (U.S.), decisions:
The Spirit of the Laws (Montesquieu), Anderson, 108; Austin, 213; Brandenberg,
40, 46 243; Bridges, 242; Buckley, 207–214;
 index 375

Burton, 186–187; Caperton, 270–271; Trade associations, 250

Citizens United, 227–257; Classic, Transparency of appropriations, 76–77
191–192; Congress of Industrial Treason, William, 77
Organizations, 192–193; Evans, 225; First Treasury regulations on lobbying
National Bank of Boston, 212–213; expenses, 171
Harriss, 171–172; Illinois Central RR, Treaties, Constitutional Convention
140–143; Kelo, 267–269; Marshall, on, 80
152–153, 157; McConnell, 214; McCor- Treating (in common law), 105, 109, 115
mick, 224–226, 303; McCutcheon, A Treatise on the Criminal Law of the
302–304; Newberry, 190–191; Rumely, United States (Wharton), 119
171–172; Steele, 170–171; Sun Diamond Tribute to Hydropathy (Eardley-Wilmot),
Growers, 228–229; Textile Mills 102
Securities Corp., 171, 172; Trist, 155–158, Trist v. Child (1874), 154–158, 169, 171,
271–272; UAW- CIO, 193–194; 271–272
Yarbrough, 212, 272–273 Turkey, arms sales to, 158–159
Supreme courts, state. See specific states Turney (Tennessee judge), 131
Swayne, Noah Haynes, 271–272 Twain, Mark, 180–181
Systems, corrupt, 38 Tweed, Boss William, 121
Twenty-Seventh Amendment, 5
Tacit relationships, 2–3 Two kinds of sticks. See Political
Tacitus, 34 corruption laws
Taft, William Howard, 301 Tyranny, 40–41, 43, 282
Taft-Hartley Act (1947), 312
Taint, 203 UAW- CIO, United States v. (1957),
Takings, 98, 267–269 193–194
Takings clause, 77–80, 267 Underkuffler, Laura, 278, 279
Tammany Hall, 121 Undue influence, 193, 194, 232
Teapot Dome scandal, 187 Union Pacific Railroad corruption
Temptation, 118–119, 167, 200, 272, 293 scandal, 125–126
Tennessee: election bribery laws, 109; United States v. See name of opposing party
railroad-related cases in, 127–137
Tennessee Yazoo Company, 83 Van Buren, Martin, 175
Texas: bribery indictments in, Vandergrift (lobbyist), 222–223
120–121; on quid pro quo in bribery Vendibles, defined, 159
context, 240 Vergennes, Charles Gravier, comte de, 24
Textile Mills Securities Corp. v. Commis- Vermont: campaign contribution limits
sioner (1941), 171, 172 in, 257; lobbying, definition of, 163
Theft, comparison to bribery, 185 Vermont Supreme Court, 164, 168
Thomas, Clarence, 238 Vertrees, John, 129
Thompson, Dennis, 209, 250–251 Virginia: bribery law in, 112–113;
Ticket peddlers (ballot distributors), 179 Constitutional Convention delegates,
Ticonderoga. See Deane, Silas 37; election bribery laws, 109; executive
Tillman Act (1907), 188, 311 of, 54; language of bribery in (1795), 110
Tissue paper, use in ballots, 179 Virginia Yazoo Company, 83
376 index

Virtue, 41, 68, 156, 295 Wharton, Francis, 119

Virtue principle, 278 Whiskey ring prosecutions, 122–123
Virtuous citizens, 45, 52 White, Byron, 211–212
Voice votes, 178 White-collar bribery laws, 11
Vote buying, 109, 178 Whitney, Charles, 107
Voter intimidation, 178 Wicquefort, Abraham de, 20–21
Voting procedures, during Gilded Age, Wilkes, John, 74
178–179 Williams, Lewis, 107–108
Voucher systems, for election funding, Williamson, Hugh, 71
300 Wilson, James, 52–53, 68, 80
Wisconsin: lobbying, definition of, 163;
Waguespack, Herbert, 196–197 lobbying registration law, 170
Walmart, 301 Wisconsin Right to Life, Inc., Federal
Warner, Charles Dudley, 180–181 Election Commission v. (2007), 238
“War on Corruption,” 11 Witness immunity deals, 239
Washington, George, 52, 70, 236 Wood, Gordon, 37–38
Washington Supreme Court, 219 Woods, William Burnham, 273
Watergate scandal. See Operation Worrall, United States v. (1798), 106
Gemstone Written ballots, 178
Wealth, 10, 55, 255, 292
The Wealth of Nations (Smith), 32 Yarbrough, Ex parte (1884), 212, 272–273
Webster, Noah, 45–46 Yazoo scandal, 81–101; description of,
West Virginia: elections, public funding 81–83; Fletcher decision, impact of,
of, 299; foreign medical school students 98–101; Fletcher decision, summarized,
in, 222–223 89–98; legal disputes over, 84–89
West Virginia Supreme Court, 270 Yazoosim, 100, 256–257