Recent history provides several examples where 200 years
of judicial findings have been overturned because a few Supreme Court Justices
decided that they knew better. The
Constitution had not changed, but politics and political influence had. The lesson to be learned is that the
Constitution, just as the Bible, can be used to justify almost anything. Words are ambiguous, and become more so over
time. A text intended to convey one
meaning can be reinterpreted to produce an entirely different result. Time,
place, and cultural evolution render a written constitution surprisingly
indeterminate.
Zephyr Teachout provides a well-documented history of how
judicial interpretation evolved over time in her important book Corruption in America: From Benjamin Franklin's Snuff Box to Citizens United. She makes the case that the writers of the Constitution
were determined to avoid the types of corruption that were common in England
and other European countries such as the presentation of gifts to public
officials. The belief was that the best
way to avoid a problem with a gift from a foreign power was to make any such
gift disbursable only with the concurrence of the Congress.
“The argument of this book is
that the gifts rule embodies a particularly demanding notion of corruption that
survived through most of American legal history. This concept of corruption is at the
foundation of the architecture of our freedoms.
Corruption, 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 representatives
of government and private parties, foreign parties, or other politicians.”
Allowing corporations to contribute their wealth to enhance
the electability of a specific lawmaker would have sent our founders into
cardiac arrest. They believed that the
best way to avoid corruption was to eliminate the possibility of it occurring. Teachout refers to these types of rules as
structural or prophylactic rather than criminal. A campaign contribution of any kind from a private
entity can be corrupting—therefore it must not be allowed to happen.
For 200 years the Supreme Court issued rulings that were generally
consistent with the intentions of our founders.
However, recent rulings have changed things entirely, making what was
once considered corruption an integral part of our political and economic lives.
Teachout is particularly incensed over the Citizens United ruling that allowed
unlimited use of wealth to influence election outcomes, a result that left the
once-corrupt Europeans laughing at us and our folly.
Teachout provides an interesting but lesser-known history
of the legal status of lobbying that also serves to make her point about the
changing perception of corruption. The
issue of lobbying is particularly problematic because it can be beneficial as
well as harmful to the public good.
“….lobbying involves the
production and communication of information and reason. 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….Where it is effective, lobbying means that the
full power of the 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.”
While providing knowledge and advice is a useful task,
lobbyists are not required to provide unbiased information. The effective ones can manipulate data to
their advantage and confuse as well as enlighten. Even worse, they become adept at implying
offers of assistance to politicians. A suggestion
that campaign funds may be forthcoming, or perhaps a hint of a remunerative
job, or any number of other enticements can be effective at getting what they
want without breaking any explicit bribery laws. Both parties are expert in playing this game.
Originally lobbying was viewed as highly suspect, but
writing an explicit law to deal with it was not easy. An individual pleading his own case to a
lawmaker was considered the extent to which lobbying could be tolerated. Paying someone else to plead his case was
considered corrupting. Early on, paid
lobbying was dealt with in the courts as a contract issue. One could hire a lobbyist, but any associated
contract was invalid. Teachout
attributes to one Supreme Court Justice this quote:
“….all agreements for pecuniary
considerations to control the….ordinary course of legislation are void as
against public policy.”
In Trist v. Child
(1874) the Supreme Court issued this statement on the matter of paid lobbying.
“If any of the great
corporations of this 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.”
Such statements express an opinion on lobbying but do not
eliminate it. The state of Georgia was
so outraged at the practice—and its effectiveness—that it was moved to declare
lobbying a punishable crime in its 1877 constitution.
“The majority of the Georgia
convention represented the mainstream 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.”
Teachout tells us that legal and public attitudes gradually
changed as time went on. The sanctity of
contracts, lobbying or otherwise, became more important than any odious
characteristic of the contract.
Lobbyists, of course, sold themselves as professionals providing a valued
service rather those who would choose to bribe a legislator. Indeed, the definition of bribery itself
changed. Only strict quid pro quo acts could be considered as
criminal. One would have to be caught
exchanging a bag of money to be legally liable for one’s actions. Exercising undue influence became the norm,
perfectly acceptable as a democratic response.
And, perhaps most important of all, the First Amendment gained more
importance for the crop of legal specialists active in the middle of the
twentieth century. The freedom of speech
of an individual became more important than the equitable workings of
legislatures for the benefit of society as a whole. And, of course, corporations became
individuals.
“One might think—reasonably—that
a major Supreme Court decision was 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”
It is interesting to consider that the people most
affected by lobbying and influence pedaling, those who must face corruption
issues on a daily basis, were the most interested in erecting bars to private
parties exercising too much influence.
The Supreme Court basically announced that it understood what corruption
meant better than the senators and congressmen themselves and overruled
them. Teachout rendered this assessment:
“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 manifest themselves. The lack
of experience is compounded by a tendency to decide cases without full factual
development.”
The Citizens United
decision and the results that followed find no justification in the
Constitution, and are definitely at odds with the intentions of the writers of
the Constitution. Yet the Justices who
voted in favor advertise themselves as various flavors of “originalists.”
What lessons are to be drawn from this discussion? Teachout most fears that the Court has paved
the way for the wealthy to rule the nation: an oligarchy. That is of course true.
It appears true that the Court can do what it wants
irrespective of legal precedent and constitutional ambiguity. It also appears true that the Court can be
influenced by public opinion. A fundamental
error may have been made when it was decided to shelter Supreme Court Justices
from political influence by providing them with lifetime terms of office. It is not possible to shield anyone from
political influence. No person ever
arrived at the Court without a set of political biases. In fact, they are generally nominated for the
Court because of the way in which they are biased.
If political influences are unavoidable, perhaps it would
be more efficacious to ensure that Justices more closely represented current
political sentiments of the majority of the voting public, rather than pretend
such influences don’t exist. Justices
are nominated by the sitting President, and the presidency is the only office
determined by voters all across the nation.
The President comes closest to being a representative for all the
people. Why not provide the sitting
president more power to define the makeup of the Court?
A nine-person Court serving 12-year terms, with three
being replaced every four years might be a more effective way of representing
the will of the people. Added protection
from judicial overreach could be attained by instituting a need for six votes
to approve a ruling that overturns judicial precedent.
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