Whatever one thinks about the conviction of former Virginia Gov. Robert McDonnell on fraud and extortion charges, there is little doubt that the legal theories that produced the conviction blur the distinction between criminal corruption and ordinary politics. Indeed, it is my view that the left sees no such distinction. To the extent that ordinary politics stands in the way of its agenda, the left perceives ordinary politics as, at root, corrupt.
This view comes through in the work of Zephyr Teachout, a law professor at Fordham whose writings on “corruption” are all the rage among the academic left. Teachout’s own leftist credentials are impeccable. In 2004, she served as the Director of Internet Organizing for Howard Dean’s campaign. More recently, she was involved with Occupy Wall Street.
Currently, Teachout is challenging Andrew Cuomo in the New York Democratic gubernatorial primary, running as the “anti-corruption” candidate. Whether from the left or from the right, challenging Andrew Cuomo is surely God’s work. But Teachout more than flatters the governor when she calls him “Reagan-esque.”
Teachout is the author of a new book called Corruption in America: From Benjamin Franklin’s Snuff Box to Citizens United. I haven’t yet had the opportunity to read the book; it is hot off the press. However, I did read Teachout’s 2009 Cornell Law Review article called “The Anti-Corruption Principle” (94 CORNELL L. REV. 341, for those who want to check it out).
In this article, Teachout argues that “the fight against corruption is a central part of the United States Constitution — its historical origins, the language of the debates around it, its substance and structure.” Indeed, she maintains that “above all else, the Framers of the Constitution saw the document as a structure to fight corruption.”
It is odd to find a leftist elevating the Founders to heroic anti-corruption crusaders. The contemporary left more typically views them as greedy bastards looking out for their own interests. But Teachout isn’t writing a framework for teaching AP U.S. History. Her mission is to elevate anti-corruption sentiment to constitutional status. Thus, she has little choice but to enlist the Founders.
In any event, Teachout’s argument is unpersuasive. Naturally, the problem of corruption entered into the thinking of the Founders as they considered such matters as how the government’s power should be divided, how big the legislative bodies should be, and how judges should be selected. But this doesn’t mean that fighting corruption is a central organizing principle of the Constitution.
Teachout she fails to engage (other than in footnotes or parentheticals) the inconvenient facts that the Constitution contains no direct clause ensuring the integrity of the legislature; that it contains no impeachment provision for legislators; and that, although the initial draft of the provision on presidential impeachment included “corruption” as a grounds, that term was removed from the final document.
It seems clear that, as Judge John Noonan has argued, the Constitution’s remedy for legislative bribery was to be political. It follows, I think, that this is also true of less blatant forms of “corruption.”
This leads to the question of how one defines “corruption.” You won’t be surprised to learn that Teachout’s view of the concept is capacious in the extreme.
Teachout views corruption as the antithesis of “political virtue.” A corrupt political actor, she writes, “will either purposely ignore, or forget, the public good as he uses the reigns of power.” Thus, “the public good does not motivate him.” Instead, the corrupt political actor “use[s] government power and assets to benefit localities or other special interests (in essence, ‘factions’).
This is not a blurring of the line between corruption and ordinary politics; it is that line’s obliteration. If a politician acts corruptly by not embracing “the public good,” then any politician can be labeled corrupt by those who disagree with his policy preferences. And if a politician acts corruptly by favoring “special interests,” then any politician can be labeled corrupt by those who oppose or dislike those who benefit from his votes.
Thus, I did not exaggerate when I said at the beginning of this post that, to the extent ordinary politics stands in the way of its agenda, the left perceives ordinary politics as corrupt.
“Occupy Wall Street” isn’t just scruffy protesters camping in public places and yelling at passers-by. It’s also academics like Teachout insisting on a definition of corruption that encompasses anyone who disagrees with their idea of virtue, an idea that, no doubt, entails a heavy dose of income redistribution. The totalitarian potential of this definition should be obvious.
The aggressive use of anti-corruption statutes against politicians like Robert McDonnell owes more to prosecutorial zealousness than to radical leftism. But we shouldn’t rule a merger of the two in the coming years.