Is the U.S. Political System Characterized by “Legalized Corruption”? Some Tentative Concerns About a Common Rhetorical Strategy

Today is Election Day in the United States. It’s an important election (they all are, really), and I hope those of our readers who are eligible to vote in the United States will do so. But this post isn’t going to be about these U.S. elections specifically. Rather, I want to consider a question about the U.S. electoral system more generally: Is it accurate to describe the U.S. system as a one of “legalized corruption”? That is, do the campaign finance and lobbying rules in the United States amount to a system in which wealthy individuals and interest groups “purchase” favorable policy through what are effectively “bribes”—in the form of campaign contributions or support?

The use of the rhetoric of corruption and “legalized bribery” to describe the U.S. political system has been around for a while, and it seems to have become even more pronounced over the last few election cycles—perhaps galvanized by the U.S. Supreme Court’s controversial decision in the Citizens United case. (For examples, see here, here, here, and here.) I certainly understand, and indeed share, the underlying concerns about how the influence of concentrated economic wealth can distort the political process and tilt policy outcomes in a direction that favors the affluent. Yet I’ve felt increasingly ambivalent about the use of the language of “systemic corruption” or “legalized bribery” to describe the very real money-in-politics problem in the United States. There are three main reasons for my ambivalence. Continue reading

Governor Brown’s Missed Opportunity to Promote Political Transparency and Fight Trumpian Corruption

Last month, Republicans announced their plan for a comprehensive overhaul of the United States federal tax code, the first in decades. In characteristic fashion, President Trump promised, “I don’t benefit. I don’t benefit.” To clarify his point, he added, “I think very, very strongly, there’s very little benefit for people of wealth.” Lest those statements left any doubt, Trump later claimed, “I’m doing the right thing and it’s not good for me, believe me.” Notwithstanding the President’s promises, a New York Times analysis found that Trump could save over a billion dollars if his plan were to be passed into law. Seemingly responding to this reality, Trump later amended his sales pitch by claiming that “everybody benefits” from tax reform.

Tax reform fits squarely into the third category of conflicts tracked by this blog: government regulatory and policy decisions that benefit Trump and his family businesses. Americans deserve to know how the President would personally stand to gain if his proposal became law. Yet the extent of Trump’s conflict of interest remains unknown, and unknowable, because of his widely-criticized refusal to release his tax returns.

Unfortunately, California Governor Jerry Brown squandered an opportunity to force Trump to shed some light on his personal finances when he vetoed the Presidential Tax Transparency and Accountability Act, which had passed both houses of the state legislature with overwhelming support. The Act would have required all aspiring Presidential candidates to provide their tax returns to the California Secretary of State (who would then publish them online) before the candidate’s name could appear on the California primary election ballot. In his veto message, Governor Brown explained that while he “recognize[d] the political attractiveness—even the merits—of getting President Trump’s tax returns,” he worried about the “political perils of individual states seeking to regulate presidential elections in this manner.” Brown identified two specific concerns about the bill: its constitutionality and the potential “slippery slope” it might create.

Brown’s arguments ring hollow. They seem particularly unjustified in a time in which state action is one of the few viable bulwarks against Trump’s corruption. Fortunately, other states, including Massachusetts and New York, are considering similar proposals. Those states can do better than California. Here’s why they should: Continue reading

U.S. Voters Says that Corruption Is a Major Issue. Why Are Politicians Silent on It?

If public opinion polls are any guide, corruption is one of the most important issues to U.S. voters. A 2012 Gallup survey by Gallup found that a full 87% of Americans deemed reducing corruption as either extremely important or very important—placing this issue second only to the economy/job creation, and ahead of the budget deficit, terrorism, and Social Security. More recent polls buttress these findings: A 2015 survey found that 58% of respondents were afraid or very afraid of corruption by government officials, the highest of any fear surveyed. This meant that corruption was a greater fear than large-scale disasters like terrorist attacks or economic collapse, as well personal events like identity theft, running out of money, or credit card fraud. Three-quarters of those surveyed in 2015 also believed that corruption was widespread in the government, a marked increase from 2007. And a 2016 survey found that 16% ranked corruption the single most important issue, which might sound low, but was the third highest issue in the polls.

Yet despite these poll numbers, U.S. politicians and parties do not seem to have made anticorruption a major policy priority; certainly this issue gets far less attention than terrorism and the budget deficit. True, U.S. politicians will sometimes attack their rivals as “corrupt,” a rhetorical tactic we have seen in the current election (see here and here). But although politicians use the term “corrupt” to malign their opponents, they do not seem to treat corruption as a genuine issue in need of fixing, and do not put forward an anticorruption policy agenda. Hillary Clinton has an extensive list of policy proposals on her campaign website, yet corruption and anticorruption are not mentioned. Although her website goes in depth about money in politics, it stops short of using the term “corruption” to describe this problem. Donald Trump did recently release a five-point ethics plan that used the term “corruption” once, but it is incredibly vague and appears to have been made out of desperation in the closing days of the campaign. In any event, his “Issues” page still does not mention corruption, nor do those of third-party candidates Gary Johnson, Jill Stein, or Evan McMullen.

What explains this disconnect? Huge numbers of Americans tell opinion pollsters that they believe that the government is corrupt and that this is one of the biggest problems facing the country. Yet political parties and politicians barely discuss “corruption” (except as invective) or lay out plans for solving it. This is a puzzle. Politicians, after all, have strong incentives to talk about the issues that voters care most about. Even if we doubt how seriously we should take politicians’ platforms and campaign rhetoric, one would think that it would make sense for politicians at least to pay lip service to the idea of fighting public corruption, if voters care so much about it. So why do we not see more focus on corruption and anticorruption in the platforms of U.S. presidential candidates?

Continue reading

Is it Legal in the U.S. To Buy Delegate Votes at Party Nominating Conventions?

As bizarre as the U.S. presidential campaign has been so far, it may get even more so this summer. There is a chance (although maybe not a probability) that the Republican Party will have its first contested convention since 1976. If no candidate has a majority of delegates on the first ballot, then many “bound delegates” can switch their vote to any candidate for the nomination (here is a brief primer on how a contested convention might work). If that happens, might some candidates (or, more likely, their surrogates) actually try to buy delegates’ votes—offering them cash or other crude material inducements in exchange for support? Donald Trump recently told a friend—apparently (and hopefully) in jest—he would “buy the delegates” if he did not obtain a majority in the primaries.

Such conduct would certainly be corrupt in the traditional sense. Believe it or not, however, such vote buying might not be against the law. Buying votes in a federal election is certainly illegal. But, as a recent Bloomberg article explained, “There is nothing in the [Republican National Committee]’s rules that prohibits delegates from cutting a deal for their votes, and lawyers say it is unlikely that federal anti-corruption laws would apply to convention horse-trading. (It is not clear that even explicitly selling one’s vote for cash would be illegal.)” Similarly, when respected former Republican National Committee counsel Ben Ginsberg was recently asked whether an unbound delegate to the convention could legally accept a suitcase full of cash in exchange for a vote for a candidate for the nomination, Ginsberg replied, “That is a great legal question that I’m not sure there’s an answer [to]. It’s not official [] action.” (Ginsberg did, however, emphasize that most lawyers “would not want to be defending somebody who just took a suitcase of cash for a vote at a convention.”)

So while outright vote buying at a contested convention is not exactly likely, it’s a serious enough concern to make it worthwhile to assess the risks, the current law that might apply, and the steps that Congress and the political parties can take to do something about this concern. Continue reading

Fixing Perpetually Corrupt Institutions—The Philadelphia Story

Often in the anticorruption world we grapple with the question of how to deal with perpetually corrupt institutions. One example is the Philadelphia City Commission and its elected commissioners. In recent years, Anthony Clark, the Chair of the City Commission got paid despite not showing up to work, while other commissioners have engaged in overt patronage politics, such as doling out jobs to family members and steering city contracts to businesses and institutions run by family members (leading to the federal indictment of the daughter of the long-serving former Chair on corruption charges). And although credible voter fraud charges in Philadelphia are uncommon, the Commission has not done a particularly good job of administering elections, its primary job. For example, in 2012 more than 27,000 registered voters were somehow left out of the official polling books, and had to cast provisional ballots.

Things with the elected Philadelphia City Commissioners have gotten so bad that some (including the Committee of Seventy, a good governance group in Philadelphia, and the city’s two largest newspapers, the Philadelphia Inquirer and the Philadelphia Daily News) have called for abolishing the elected positions altogether. The Committee of Seventy has called for replacing the elected City Commissioners with an appointed board of professions to administer Philadelphia’s elections, although its plan is short on details.

This proposal relates to a larger issue with which anticorruption reformers in many jurisdictions struggle: which positions should be elected, and which should be appointed? When is democratic accountability the solution, and when is it the problem? There is no one right answer, of course—it all depends on context. Yet in the specific context of the Philadelphia City Commission, the instinct to eliminate the democratic process is premature for two reasons. Continue reading

Is Corruption Destroying American Democracy? Zephyr Teachout’s Corruption in America

Fordham University Law Professor Zephyr Teachout earned a place of distinction among anticorruption activists for making the fight against corruption the centerpiece of her spirited campaign to oust the incumbent in New York’s September 9 gubernatorial primary (as well as a good deal of attention on this blog, click here and here).  Her effort also deserves special recognition in academia: surely no other professor has produced evidence to undercut her own academic work so fast as Professor Teachout. Appearing days before the primary, her Corruption in America: From Benjamin Franklin to Citizens United contends that large private donations to political candidates so favor candidates supported by the wealthy that the future of American democracy is at risk.  Yet while preliminary figures suggest the well-known, well-organized incumbent outspent her by somewhere between 40 to 50 to 1, she did surprisingly well, polling 180,336 votes to the incumbent’s 327,150.  If money so dominates American political campaigns, it is hard to see why Professor Teachout got so far with so little. Of course, she did lose the election.  More to the point, even if she had won, her claim that money is overwhelming American elections cannot be dis-proven by a single example.  It may be that her race was an outlier and that most of the time, money does talk.  So what does the accumulated research on the influence of money on American elections show? Continue reading