Speech, corruption, and the Republican form of government

Thomas Jefferson recorded a dinner conversation in which John Adams argued that if the British government could be purged of “corruption,” it would become the most perfect government ever devised. Alexander Hamilton shocked Jefferson and Adams when he replied that if purged of corruption, the British system would fall.

By corruption, Hamilton apparently had in mind the Crown’s ability to influence the House of Commons. He also had in mind David Hume who viewed corruption in this sense as essential to the preservation of the British constitution.

These days, “corruption” is making a comeback in American constitutional analysis. Indeed, as Carrie Severino points out, the concept is at the heart of the dissents in Citizens United and, just the other day, McCutcheon v. FEC.

By corruption, the liberal wing of the Supreme Court means, as Hamilton did, “influence over or access to” elected officials. The influence in question is not, of course, wielded by “the Crown.” It is wielded instead by wealthy interests.

Justice Breyer believes that even the appearance of such influence represents a threat to our form of government. He contends that if as a result of undue influence (or its appearance) by special interests the public concludes that its “efforts to communicate with its representatives or to help sway public opinion have little purpose,” it will lose interest in political participation and faith in those who govern. Our system will then fall.

I don’t discount the possibility of such a scenario. But in the modern era, the more realistic fear is that ending “corruption” as Breyer defines it would, as Hamilton thought, cause our system to fall.

The biggest fear of Hamilton and James Madison was that the majority faction would run roughshod. As Madison said in Federalist 10:

When a majority is included in a faction, the form of popular government. . .enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens. To secure the public good, and private rights, against the danger of such a faction, and at the same time preserve the spirit and the form of popular government, is then the great object to which our inquiries are directed.

The Framers sought to achieve this “great object” through a system of checks and balances. But some elements of that system no longer exist. State legislatures no longer elect U.S. Senators, for example.

Thus, the risk arises that the majority will — due to passion, interest, or both — expropriate the rights and property of a wealthy minority. In fact, that risk is a reality. The new risks are that the majority will destroy liberty and kill the goose that lays the Golden Egg.

The First Amendment provides an important counterbalance against these risks in several ways. One way is that “speech” directed at lawmakers via “undue access” provides the means by which potential targets of a majority faction can receive a hearing when they try to explain the consequences of taking or burdening their property.

Consider environmental laws such the Clean Air Act. The majority wanted to place burdens on industry that would improve air quality. Industry preferred that these burdens not be imposed. Fortunately, in our system of popular government industry, even with all its access to legislators could not obtain its preferred outcome.

But access did enable industry to explain the consequences of various provisions in proposed legislation. In this way, it obtained a limited say in the formulation of a law that affects not only its factional interest, but also the U.S. economy.

The same model applies to all modern regulation, from the Americans With Disabilities Act to Obamacare. And it will continue to apply as long as there is private enterprise to regulate.

It’s theoretically possible, as I said, that wealthy minority factions could become the tail that wags the dog. Madison was wrong in Federalist 10 to dismiss this danger. But he was right to focus on the opposite, more pertinent one — the tyranny of the majority faction.

As Robert Samuelson wrote yesterday:

Whatever donors’ influence, government isn’t the preserve of the wealthy or business interests. Most federal spending goes to the poor and the middle class (70 percent in 2014 are “payments for individuals,” says the Office of Management and Budget, for Social Security, Medicare, Medicaid, food stamps and other programs), and most taxes are paid by the richest 10 percent (53 percent of all federal taxes in 2010, says the Congressional Budget Office). Most regulations target businesses. Sure, business groups and the rich sometimes secure favorable regulations, tax breaks and subsidies. But their triumphs are a small part of the picture.

Samuelson concludes, therefore, that the campaign finance reformers are trying to fix a problem that doesn’t exist. I see it differently.

By attempting to stifle speech, many of these reformers are trying to create, or exacerbate, the central problem the Founders wished to avoid — a system of government in which an unchecked majority faces no meaningful opposition as it runs roughshod over the minority to the detriment of private rights and the public good.

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