Lawrence Lessig, writing in the Washington Post, has an argument sure to make Democrats squirm, in short: So what if there’s no “smoking gun” showing that Bill and Hillary Clinton are guilty of quid pro quo corruption—since when did Democrats begin believing that outright bribery is the only form of political corruption? Properly understood, Professor Lessig argues, what the Clintons were up to is not all that different from what the Koch brothers are up to, except that they are depositing checks rather than writing them. Professor Lessig writes:
Were the alleged influencers the Koch brothers, with the same kind of pattern charged against them—their channeling support to Republican representatives, those representatives in turn acting in a way that reflected the desires of the Kochs—there would be no doubt that Democrats would rally to attack that influence as Exhibit No. 1 in the case against the corruption of Washington. But apparently now those loyal to the Democratic presidential front-runner will have to be more careful in their criticism. Apparently now the party line must be: Even if someone benefited personally, and enormously, and even if there is a repeated series of victories for those exercising their influence, there’s no corruption unless Chief Justice John G. Roberts Jr. would see it as corruption—meaning again, no corruption unless a quid pro quo.
One element at work here is, as Professor Lessig argues, old-fashioned partisan servility, the self-abasing loyalty in the face of obvious wrongdoing that President Clinton has a remarkable knack for inspiring. (Whether Mrs. Clinton wields the same talent is a main question for 2016.) There is also some black-hats/white-hats politics at work here: Progressives, stewed as they are in self-righteousness and convinced as they are that what presents itself as a good-faith policy disagreement is in reality barely concealed villainy, believe that their own champions are sufficiently pure of heart and so well-illuminated by the light of pure reason that they can effectively do no wrong, while their conservative rivals are so enslaved by greed and hatred that they can do no good; thus the transmutative power of partisanship makes virtue into vice when it lights upon a Republican.
I do not think that Professor Lessig is being entirely fair when he writes: “For five justices on the court, ‘corruption’ means ‘quid pro quo’—a bribe, or an exchange of a favor for influence.” There is a difference between corruption writ large and legally actionable corruption, and the focus on quid pro quo corruption predates the Roberts majority by some centuries: Bribery is one of two offenses specifically identified in the Constitution as grounds for impeachment, the other being treason; the public-corruption laws passed in the late 18th century were mainly concerned with bribery, particularly of customs officers and judges, etc.
This is not nit-picking—without quid pro quo as a bright line dividing criminal corruption from the inevitable moral ickiness of democratic processes, there is no obvious principle to prevent the unlimited criminalization of politics.
For Professor Lessig and others who worry about the purportedly corrupting influence of private political spending, the challenge is to define “corruption” broadly enough to cover the things they dislike—things that were regulated or banned prior to Citizens United—but not so broadly as to complicate things of which they approve, such as the (fairly obviously corrupt) symbiosis between the Democratic party and public-sector labor unions.
The broadest conception of public corruption is this: A public official behaves in a corrupt manner when he is motivated mainly by self-interest rather than by a sincere concern for the public interest. As students of public-choice economics—and people with eyes—cannot help but understand, a definition of “corruption” that in fact captures the majority of corruption properly understood would be paralyzing for any liberal and democratic form of government, because public officials, being human beings of the ordinary variety rather than godlings, act out of self-interest almost all of the time.
If, for example, a Democratic bag-man had offered American insurance companies a few dozen pallets of hundred-dollar bills in exchange for their supporting the so-called Affordable Care Act, that would seem to us obvious corruption, and it would indeed meet the quid pro quo criterion. But if the Democrats write the law in such a way as to ensure not millions but billions of dollars worth of benefits for those same insurance companies to buy their support—which is, in fact, what happened—can we call that a crime? The difference between corruption and political compromise is not always obvious, and it need not be obvious if we take a mature view of the limitations of public institutions and understand that we are not governed by philosopher-kings. Human beings do not cease to be self-interested after winning an election, being appointed to public office, or securing a job in a government bureaucracy.
The Clinton-Koch comparison, though useful as Professor Lessig presents it, is defective in that the standards we apply to the secretary of the state probably should not be the standards we apply to private citizens who are attempting to influence public policy and making no secret of the fact.
With that in mind, the question presented by independent expenditures and the like is not: “What is corruption?” or even “What is legally actionable corruption?” It is: “What ought to be understood as legally actionable corruption in the context of private citizens spending money for the purpose of adding their voices and views to the political discourse?” (Let us keep in mind that the specific question in Citizens United was whether it should be a federal offense to show a film critical of Hillary Rodham Clinton without government permission.) The Supreme Court keeps repeating the same answer: So long as we have a First Amendment, the line of demarcation is quid pro quo bribery, not ickiness. The question of whether Mrs. Clinton has behaved in a corrupt fashion (short version: yes) is separate from the question of whether Mrs. Clinton has behaved in a criminal fashion (short answer: You’d need an honest DOJ to find out; good luck with that).
F. A. Hayek, whose 116th birthday would have been yesterday, insisted: “If we wish to preserve a free society, it is essential that we recognize that the desirability of a particular object is not sufficient justification for the use of coercion.” I do not believe that our political system would be at all improved by the absence from our discourse of private citizens and institutions, and the money they spend; but even if I did believe that, I would have a very difficult time believing that the desirability of that particular object was sufficient justification for the use of coercion. Nor is it clear that there would be any natural principle of limitation if we accepted Professor Lessig’s position, which would open the door to the wholesale criminalization of ordinary politics.
What Professor Lessig et al. present as an argument for limitations on political advocacy is much more persuasive as an argument for limited government: Moral corruption is an inevitable feature of the political process, which is one of the reasons why we should exercise political force only in those areas in which it is actually necessary, i.e. for the provision of strictly defined public goods such as national defense and law enforcement.
An electorate with a slightly longer attention span and a modicum of moral confidence would not need a federal prosecutor to tell its constituents that the Clintons are corrupt and to behave accordingly, or to appreciate the endless examples of political favoritism, nepotism, influence-peddling, cronyism, etc., for what they are. Professor Lessig and other critics of private political spending are at best “dreaming of systems so perfect that no one will need to be good.” And more than a few of them are simply seeking petty political advantage by financially hobbling their opponents—which is to say, they seek to use campaign-finance law to further their own interests.
There ought to be a word for that.