"The Framers were right to be obsessed about corruption, but could not have anticipated the ways in which various technologies—including the extensive road system, centralized media, and paid lobbying—would undermine the anti-corruption precautions they included in the Constitution.”
Corruption and Technology 1.0
“If we do not provide against corruption, our government will soon be at an end,” George Mason said, as the Constitutional Convention got under way. His concern was echoed in many voices throughout the summer of 1787, and discussed extensively in the public debates over the Constitution’s ratification. Corruption was discussed more often in the convention than factions, violence or instability. It was a topic on almost a quarter of the days that the members convened. If liberty was the warp of the political ideology of the era, corruption was the weft.
Reading the convention-era documents, the idea of corruption inevitably seizes the reader with grotesque admiration for its force. The Founders wove their own stories and their histories around the corruption of the young country—certain it would happen, but nonetheless obsessed with attempting to stop it from happening, trying to control the inevitable venal forces that would overwhelm it.
Inasmuch as you can see the Constitution as creating a kind of technology, it was designed to provide structural encouragements to keep the logic and language of society as a whole from becoming corrupt, representing a technical and moral response to what they saw as a technical and moral problem. As Alexander Hamilton explained in Federalist No. 68, “Nothing was more to be desired than that every practicable obstacle should be opposed to cabal, intrigue, and corruption.”
One of the most extensive and recurring discussions about corruption concerned the size of the various bodies. “The larger the number, the less the danger of their being corrupted,” Elbridge Gerry argued about the representatives to the future Congress, and the other delegates agreed. “Besides the restraint of integrity and honor, the difficulty of acting in concert for purposes of corruption was a security to the public. And if one or a few members only should be seduced, the soundness of the remaining members would maintain the integrity and fidelity of the body,” James Madison averred.
Many clauses were intended to limit corrupting perks and temptations of office. Article 1, Section 9 of the Constitution requires an accounting of the treasury, to ensure that money is not siphoned from the national treasure. The power of the purse being placed in the legislature was also in part a response to fears of corruption. The Founders were concerned that an executive with the power of appropriation would use it to cultivate dependencies, by giving out money to political leaders who were loyal. Likewise, the No Conflict clause in the Constitution (Article 1, Section 6, Clause 2) prevents Congressmen from holding civil office while serving as a legislator, or from being appointed to offices that had been created—or in which the compensation was increased—during their tenure. The Founders were concerned that members of Congress would use their position to enrich themselves and their friends, and would see public office as a place for gaining civil posts and preferences, rather than one of public duty.
The Founders were also concerned that certain methods of selecting the president could lead to collusion and corruption, and went to great lengths to create an election process that would withstand small-group corruption. First, Hamilton successfully repulsed the proposal that the president serve a limited number of years. A man’s ineligibility for reelection, he argued, would lead to plunder. Second, there was extensive debate about who—and how many—should decide the presidency. Madison worried that the election of the president, if decided by a small number, would too easily facilitate corruption. To guard against corruption, presidential elections had several key features. First, legislators themselves could not be electors. Second, all the elections would be done at the exact same time, making it difficult, because of the long roads across the large country, to confidently collude and identify the electors that needed corrupting. The Framers Morris and Wilson both discussed the importance of physical distance as a protection against corruption. “It would be impossible also to corrupt them,” Morris said, speaking of the fact that “the Electors would vote at the same time throughout the U.S. and at so great a distance from each other.”
The chief corrupting forces were foreign governments, money, and power—all of which, it was argued, would have significant coordination problems to overcome if power were distributed between branches, and within the legislative branch, between classes. But the roads were too bad, the distances too great, and the numbers too formidable to allow for the concerted redirection of the minds of men to private gain, and the interests of the state to private or foreign interests. Madison’s Byzantine argument in Federalist No. 63 sums up the efforts of the Founders to create a constitution with such diffuse power that it would be resistant to corruption. The Senate, he argued, “must in the first place corrupt itself; must next corrupt the State legislatures; must then corrupt the House of Representatives; and must finally corrupt the people at large.” Therefore, “It is evident that the Senate must be first corrupted … Without corrupting the State legislatures, it cannot prosecute the attempt, because the periodical change of members would otherwise regenerate the whole body.” Moreover, the Senate would inevitably defeat corruption in the House of Representatives, “and without corrupting the people themselves, a succession of new representatives would speedily restore all things to their pristine order.” There are too many obstructions and sequential steps of intrigue to be taken, in order to corrupt the federal body—or so the Founders hoped.
Corruption and Technology 2.0
If the Founders brought their sensibilities—and in particular their anti-corruption sensibilities—to the technologies of the contemporary world, what might they think, and what additional protections might they include within the Constitution to guard against the constant threat of encroaching corruption?
There are many areas in which technologies have improved the possibilities for self-government; other contributors to this volume have shone a spotlight on those. But there are at least a few areas in which technology, and the collective-action problem-solving powers of the Internet, have increased the threat of corruption, and of government being used to serve private, instead of public, ends. I will focus on three that I think would have garnered the attention of the Founders, and ought to grab our attention now.
Corporate Power in the Public Sphere
The capacity of the Internet, combined with shipping containers and cheap transportation, enables global corporations without national allegiance, but with legal obligations to maximize wealth and cultural habits, to concentrate unprecedented power and wealth. The Founders were concerned that foreign powers would co-opt democratic channels, and thus I think they would presumably treat any corporation as fundamentally “foreign,” in that the institution does not allow for patriotic obligations.
The Founders would have created protections against concentrated corporate power taking over the building blocks of democracy. They would have limited all corporate political speech and corporate lobbying, and constitutionally limited direct or indirect corporate funding of campaigns.
Being very savvy, they would have gone even further, recognizing that the mere existence of such concentrated private power threatens to overshadow the exercise of public power. The Constitution would include express prohibitions against limited liability extending to corporations that broke the nation’s laws, engaged in political action, or exceeded a certain size. As the discussions at the Constitutional Convention in Philadelphia reveal, there was an intense interest in the relationship between the size of certain entities and self-government, and that conversation would have extended to questions of the size of corporate organizations.
Gerrymandering
Technology has made the great artistry of professional gerrymandering easy. Political parties hire people to figure out political borders that destroy the democratic process. This means that our representatives pick their voters before the voters get to pick them. Local politicians, assured of their seats, become unresponsive to citizens, and most challengers find it effectively impossible to unseat them. The Founders worried about districts falling out of alignment with their actual populations, which is why the Constitution requires a census every ten years. In their classic textbook, The Law and Democracy: Legal Structure and the Political Process, Pam Karlan, Richard Pildes, and Samuel Issacharoff call these new, technology-enabled districts, “designer districts.” They write that “the ability to create designer districts increased as more sophisticated programs were devised to include not only basic demographic and voting data, but projections of household income, magazine and cable television subscription patterns, car ownership and other socio-economic data deemed useful over the ten-year lifespan of a redistricting plan.” The Founders would have attempted to limit technologies’ capacity to directly undermine the democratic process through self-serving political boundary drawing—perhaps by including Constitutional requirements that nonpartisan commissions draw district lines.
The Presidency
The presidency was a reluctant compromise for many of the Founders, and if they could see the form it has taken now, and the role presidential elections play in our democratic culture, they would probably not include it, or they would include a far weaker version than currently exists. The design of the Constitution assumed that the electors would play only the first step in the choosing of the president—that each state would support its own candidate—and that it would be up to Congress to finally select the nation’s leader. The Founders went to great lengths to ensure that no particular group would have too much sway over the selection of the president, and attempted to limit the capacity of narrow interests to coordinate the selection of the president.
However, decreasing geographic difficulties, new technology and concentrated money sway the selection of the now very powerful position of the presidency. This combination has grotesquely distorted our democratic process, putting far too much power in the least responsive branch of the three representative parts of government.
In a second Founding, the executive would play a much more trivial role, and likely be more parliamentarian than presidential. The Constitution would include clearer limitations on executive power, and the campaign financing system would be completely public.
The Framers were right to be obsessed about corruption, but could not have anticipated the ways in which various technologies—including the extensive road system, centralized media, and paid lobbying—would undermine the anti-corruption precautions they included in the Constitution. It is now relatively simple to coordinate efforts to sway the House of Representatives, the Senate, and the Executive branch. There are hundreds of lobbying firms who see their job as taking money and effectively laundering it to overcome difficult collective action problems for entities that want to privatize public government.
In the United States of America 2.0, the new threats would be taken as seriously as the old, attempting to create even stronger counterweights to what Hamilton called “the business of corruption.”
About the Author
Zephyr Teachout is a Visiting Assistant Professor of Law at Duke University, where she teaches Election Law. She is the former National Director of the Sunlight Foundation, Director of Online Organizing for Howard Dean’s Presidential Campaign, and is a frequent Visiting Researcher at the Center for Investigative Journalism in Bosnia-Herzegovenia.