If Voters Hate Corruption, Why Do Elected Politicians Resist Anticorruption Reform? Lessons from South Dakota

If U.S. voters dislike corruption so much, why don’t U.S. politicians see anticorruption as a winning issue—or at the very least feel more pressure to act aggressively against the corruption that voters claim to hate? This question, which has been explored on this blog before, is interesting to consider in the context of recent developments in South Dakota. South Dakota is considered to be one of the most corrupt states in the U.S., and in recent years has suffered through several major public corruption scandals, including massive misappropriations after the state privatized its EB-5 visa program, and the theft of over a million dollars earmarked for scholastic grants for the state’s American Indian population. In the past, although some Democratic state representatives had introduced bills to crack down on corruption, these measures failed in largely party-line votes in South Dakota’s Republican-dominated state legislature. Yet South Dakota, like many U.S. states, has a ballot initiative process that empowers voters to approve new laws by popular referendum. Last November, South Dakota voters used this process to approve Initiated Measure 22 (IM-22), also known as the “South Dakota Anti-Corruption Act.” While IM-22, despite its title, is not a direct anticorruption bill—its focus was on reforming campaign finance and lobbying—the message from the South Dakota voters was clear: they saw corruption as a problem and wanted to take measures to combat it.

Yet after the referendum passed, Republican lawmakers immediately took steps to halt the new rule. Within two weeks, 25 Republican South Dakota lawmakers brought suit against the state, arguing that the ethics commission created by the referendum violated the state’s constitution, and they succeeded in getting a temporary injunction against the new rules. Ultimately, the South Dakota State Senate struck down the law, using a provision of state law that allows the state legislature that repeals a referendum. Thus elected stood in direct opposition to an attempt to combat corruption enacted through a popular democratic initiative. Moreover, events in South Dakota reveal that some of the more conventional explanations that have been offered—including by previous analyses on this blog—are at best incomplete.

Continue reading

Why Did Trump’s Anticorruption Rhetoric Resonate? Three Hypotheses

OK, I know I said in last week’s post that I would eventually get back to blogging about topics other than Trump, but not yet. After all, Trump’s election—a political and moral crisis on so many dimensions—poses distinctive challenges for the anticorruption community, in at least two different (though related) respects. The first concerns the consequences of a Trump Administration for US anticorruption efforts, both at home and abroad, a topic I’ve already blogged about (see here and here). The second issue concerns the role that anticorruption sentiments and rhetoric played in Trump’s victory. After all, Trump positioned himself (ironically, outrageously) as an anticorruption candidate, denouncing Secretary Clinton as “crooked Hillary” and pledging to “drain the swamp” of Washington corruption.

It’s no surprise that the mainstream anticorruption community are perturbed, to put it mildly, by the effective deployment of anticorruption rhetoric by a racist xenophobic ultra-nationalist bully. While this is hardly a new phenomenon—see, for example, Katie King’s post on Hungary last year—the Trump victory has forced the anticorruption community to confront it head on. Indeed, at the International Anti-Corruption Conference (IACC) in Panama a couple of weeks back, the appropriation of anticorruption rhetoric by right-wing populists—especially though not exclusively Trump—was a constant subject of hallway conversation, even if relatively little of the IACC’s formal program dealt directly with this issue. (In fairness, many of the IACC speakers did find a way to raise some of these concerns in their presentations, and the organizers also managed to add a last-minute session, in which I was able to participate, discussing this topic.) What are we to make of this? What lessons should the anticorruption community—as well as others aghast at the success of Trump and other right-wing demagogues—take away from Trump’s successful appropriation of anticorruption rhetoric?

I wish I knew the answer to that question. I don’t, and won’t pretend to. But I do think it would be helpful to lay out what I view as the three main competing hypotheses: 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

Who Cares How Madison and Hamilton Defined “Corruption”?

We’ve had a few posts in recent weeks on Fordham Law Professor Zephyr Teachout’s ultimately unsuccessful, but surprisingly effective, campaign for the New York governorship (see here and here). Teachout’s campaign has had the side effect of increasing the attention to her scholarly work, most notably her recent book Corruption in America.  Rick has already posted a more general discussion of Teachout’s major thesis regarding the allegedly corrupting effects of money on American democracy (and a follow-up yesterday). I want to touch on a somewhat narrower point, but one that has attracted a great deal of attention: Teachout’s claim that the people who framed and ratified the U.S. Constitution had a much broader understanding of the meaning of “corruption” than is reflected in contemporary U.S. Supreme Court decisions on campaign finance. (I should acknowledge up front that I have not yet had the opportunity to read Teachout’s book, though I have read her earlier article making substantially the same point, as well as an excerpt from the book posted online.)

The basic argument, which Teachout persuasively documents, is that for the founding generation — including leading members like James Madison, Benjamin Franklin, Alexander Hamilton, George Mason, and others — the term “corruption” had a much broader meaning than the exchange of money or other material benefits for official acts; the term instead included an institution’s “improper dependence” on some outside party. My colleague Larry Lessig made this argument the basis of an amicus brief he submitted to the Supreme Court in the McCutcheon case. In his post discussing the brief, Lessig asserts that the evidence of how the term corruption was used in the Founding generation “suggest that only a non-originalist could support the idea that ‘corruption’ refers to ‘quid pro quo’ corruption alone.”

I’m not sure I can improve on Jill Lapore‘s assessment of Teachout and Lessig’s evidence about the historical usage of corruption: “This isn’t uninteresting, but it’s not especially helpful, either.” I agree wholeheartedly. At the risk of belaboring the issue (about which I’ve written before, in the context of the McCutcheon case), let me say a bit more about why I think the evidence that Madison, Hamilton, and other members of the Founding generation used “corruption” in a broader sense is (mostly) irrelevant to contemporary discussions of campaign finance and other issues. Continue reading

On Differing Understandings of “Corruption”

I’m sometimes asked how my work on anticorruption (and this blog) relates to the work of my Harvard Law School colleague Larry Lessig, who is the Director of Harvard University’s Edmond J. Safra Center for Ethics (and who also has a widely-read blog). Under Larry’s leadership, the Safra Center has been focused primarily on “institutional corruption,” and Larry’s 2011 book Republic, Lost likewise focuses on how money corrupts the U.S. Congress. So, what’s the relationship between our two projects?

The short answer is that, although I respect and admire Larry’s work, our corruption projects are about very different things. By itself that’s not terribly interesting, and I wouldn’t bother posting about it except that I think the differences in our projects highlight a longstanding difficulty about the term “corruption” and its use in social science and political advocacy. I don’t want to belabor the issue—when academics run out of ideas, they argue about definitions—but maybe a few quick observations on this point are in order.

Continue reading