By Lambert Strether of Corrente.
Zephyr Teachout (see NC here, here, and here), in her wonderful new book Corruption in America, begins with a careful study of how the Framers of the Constitution thought about gifts and corruption. (The opening chapters of the book lay the groundwork for a full-throated assault on Citizen’s United, which this post would discuss if it were a review, which it is not). Teachout writes (p. 19 et seq), of the political culture of their time. Forgive the lengthy extract:
One of the customs of the international community was the giving and receiving of personal presents to Ambassadors…. Gifts were especially given at the end of diplomatic tours. They were often very expensive, and were understood to be a supplement on salaries…. This practice was hateful to the Americans because it symbolized and embodied part of a particular culture they rejected…. In the founders’ minds, luxury represented a kind of internal corrosion — even in cases where there was no external dependency, a man coulud be tempted into seeking out things for himself, instead of seeking out things for the country….
The final notorious gift in the post-Revolutionary period was the snuff box and portrait given to Benjamin Franklin. This ostentatious, diamond-decorated gift was troubling… Franklin’s diamonds embodied a whole set of fears about patriotism in general, loyalty in a republic, and the particular, time-sensitive concerns about how extremely elaborate gifts might sway Franklin’s attitude toward his semi-permanent residence — Paris — and against his American home. Given Franklin’s outsized role in the American political landscape, and France’s wealth, this particular gift portended more than warmth and friendship. It was a show of power.
[Article 1, Section 9] is one of the more strongly worded prohibitions ini the Constitution: “No person holding any office of profit or trust under them [the United States] shall, without the consent of Congress, accept any present, emolument, office, or title of any kind whatever, from any king, prince, or foreign state.”
Virginian Edmund Randolph, describing the clause to the Virginia delegates as they were deciding whether or not to ratify the Constitution, explained:
This restriction was provided to prevent corruption…. An accident, which actually happened, operated in producing the restriction. A box was presented to our Ambassador by the king of our allies. It was thought proper, in order to exclude corruption and foreign influence, to prohibit any one in office from receiving or holding any emoluments from foreign states.
The lack of an exception for small tokens in the gifts clause is striking….. Moreover, it forbids presents — not bribes. No exchange or agreement is required to bring it within the ban. That fierce rejection of “of any kind whatever” reveals a commitment to transforming the political culture that persisted fromo the Revolutionary era to the Constitutional era. It was a ban on a culture of gift giving.
(For anyone triggered by “emoluments,” it’s not just Trump, who adhered as slavishly to our norms of gift-giving as much as he violated others.)
The Framers’ understanding of human nature was sound. From Adam Graycar and David Jancsics in “Gift Giving and Corruption“, International Journal of Public Administration:
Simmel (1950, p. 387) claimed that “all contacts among men rest on the schema of giving and returning the equivalence.” The most powerful driver of gift exchanges is reciprocity, a universal norm that can be found in almost all cultures. The origin of the universal norm of reciprocity can be tracked back to ancient religious rituals, when people offered sacrifices to the gods as an act that should have been necessarily reciprocated (Mauss, 2002). Forms of reciprocity exist in all societies to this day.
Although the economics literature claims that altruistic giving exists when giving is not followed by a return from the recipient (Rose-Ackerman, 1998), anthropologists believe that gifts always trigger a return or at minimum, a feeling of obligation to repay favors on the receiver side (Douglas, 2002). The unreciprocated gift makes the person who has accepted it feel inferior because of the sense of indebtedness and the receiver will seek to get rid of such obligation by reciprocating (Ferraro, 2004; Malinowski, 1922; Mauss, 2002; Strathern, 2012).Reciprocity means lending resources to someone in the present and demanding (or at least hoping for) a return in the future (Peebles, 2010).
One tiny example of reciprocity: A friend, taking on the public office that is called “citizenship,” went on a tour of our state-owned, privately looted mis managed landfill. When they reached the top — wonderful view, you can see for miles — they were greeted by a table on which were set forth gifts: hot dogs, condiments, chips, soda, and so forth. The landfill operator’s understanding of human nature was sound; they meant to create a reciprocal obligation. It’s harder to criticize somebody when you’ve eaten their food!
Here’s a more pernicious example from today. David Sirota quotes Jacky Rosen, D-Nev, who encouraged She also encouraged members of the Chamber of Commerce to meet lawmakers over private dinners:
“What you can do, as a business roundtable, whether it is at the national level, [is] bring us together for some off-the-record dinners, let us just talk and get to know each other and get to know you,” Rosen said. “Or whether it’s in our own communities, we can do those same things. It’s important that you sometimes just sit down and get a chance to know people without necessarily a formal agenda. And that carries you through a lot of things.”
I’ll bet it does (although the prospect of a Representative soliciting gifts makes me a little queasy. Does the Chamber of Commerce really need guidance in how the game is played?
Here is a third example from the world of Big Pharma, from a member of the NC Covid Brain Trust:
I have a good friend and former collaborator who was a leader in research at [a nationally recognized nonprofit American academic medical center] and is/was on the board of [Big Pharma Company]. Very sophisticated and impressive, no mystery why they wanted him. He was paid $250,000 a year for his trouble, which I found out by accident when digging around the interwebs about some [Big Pharma Company] (insulin pricing, I think it was). I asked him how he could give objective advice to the C-Suite in [Big Pharma’s City] if they were paying him $5,000 a week to stop by a few times a year and hang out in the executive board and dining rooms while staying at whatever Ritz Carlton wannabe is downtown. No (good) answer forthcoming. He was one of the lower paid trustees.
The sociologists have determined that any gift from a Big Pharma rep is enough to alter prescribing behavior. Stack of Post-it notes, cheap ballpoint pen, lunch, all good enough because your average primate engages in reciprocal behavior. I doubt they are still sending their marks to Pebble Beach for the weekend. Pity. When I was at Johns Hopkins Big Pharma sales reps were declared persona non grata on campus IIRC…what do independent practicing internists do with them? And do they still all look the same?
Is it too cynical to suggest that the culture of gift-giving in medicine has affected both political support for, and prescription of, Big Pharma’s biggest product rollout in years, Covid vaccines?
A final example from everybody’s favorite obstructionist Democrat, Joe Lieberman Joe Manchin. From Ryan Grim:
On Monday, Joe Manchin met with a group of wealthy donors to coordinate a strategy to defend the filibuster. The biggest threat to it, he argued, was Republicans’ refusal to support a January 6th commission, because it made anybody who claimed bipartisanship is still possible look like a buffoon, with people saying to him, “How’s that bipartisan working for you now, Joe?”
The obvious solution, then, he argued, is to find a handful of Republicans who will switch their votes and support a commission. A key target, he said, is Missouri Republican Sen. Roy Blunt. His suggestion was extraordinary for how explicit it made the link between legislative behavior and the pursuit of post-career riches.
“Roy Blunt is a great, just a good friend of mine, a great guy,” Manchin said in audio The Intercept obtained. “Roy is retiring. If some of you all who might be working with Roy in his next life could tell him, that’d be nice and it’d help our country. That would be very good to get him to change his vote. And we’re going to have another vote on this thing. That’ll give me one more shot at it.”
Forget it, Jake. It’s K Street.
Looking back at Article I, Section 8, there’s a loophole you could drive a trump: It really ought to read “accept any present, emolument, office, or title of any kind whatever, from any king, prince, or foreign state.” (I thought it was simpler to generalize it, rather than attempt to parse out all the kinds of private entities that might seek to curry favor with the government.) I doubt that would stamp out gift-giving entirely, but it would sure put a crimp in the culture. The same should be written into the bylaws of professional associations (which I assume would cover institutions like CalPERS, a fine example of the culture of gift-giving; see NC here at “junket“).
If the Framers had access to a Time Machine, and could fast-forward to the present day, they would see a culture, and a political culture, that had become — at least with respect to corruption — everything they sought to avoid, and tried to engineer the Constitution to prevent.
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Not sure this should be called a new book – looks like it was published in September 2016 according to
Harvard University Press.
My hardback copy was copyright 2014. One other quibble: If Art. 1 Sec. 8 is to be revised, I’d recommend a comma after ‘title.’ Although the phrase “of any kind whatever” probably refers to all the four nouns which precede it, the comma would eliminate doubt on that point.
Teachout’s book is indeed wonderful. I’d like to add that one of NC’s most valuable functions (to me) is the site’s notice of notable new books. Keep it up!
My bad. I mistook a new heap of paperbacks for a new publication. It’s still great, even more today!
I think Washington would be familiar with the character of his fellow Americans and Congress in the present. An excerpt from his diary in 1776 is as follows…
“Chimney corner patriots abound: venality, corruption, prostitution of office for selfish ends, abuse of trust, perversion of funds from a national to a private use, and speculations upon the necessities of the times pervade all interests.”
It’s one of the ironies of American history that the Founding Fathers tried to engineer a political system that was somehow less corrupt then the British and ended up with a less democratic and probably more corrupt one.The prohibitions on the receiving of gifts from foreign powers aside, I see no reason to idolize our political system given the lack of what they’d call public virtue.
Several years ago I heard her lecture on the history of US bribery laws. Terrific research! Guess what? Campaign contributions were once illegal because…
(Don’t recall the details, but I bet they are in Corruption in America.)
Usury was once illegal, and I ran across a front page from the Chicago Tribune from I think the 1870s where a headline article was about the conviction of several miscreants for wagering on the future price of pork. Now we have GameStop and blockchain and the bazaar that is called Congress and the Executive… Massive conversion of public wealth to private “gain…”
All governmental system appear to become corrupt, Or Orwellian, over time:
“All animals are equal, but some animals are more equal than others.”
Wouldn’t you have to extend that gift ban to officials’ offspring and other relatives? And business associates and close friends? It would have to apply as well to several commanding layers of appointees throughout federal, state and local bureaucracies. Also, how about a ban on all paid lobbying?
We can make up new game rules all day long as if we were on the playground and had the power to impose taboo, but the school rules and values are always subordinate to the reproduction of the school and the power relations that warrant school.
In other words, we’d be much better off making individual elites easier for the mass to eject from society, somewhat as the Greeks did, rather than protecting the rights of classes-for-themselves to use the mass as their personal instruments.
Oh, and I forgot body cams for all elected officials, to be left on and recording during all official business. If cops are forced to wear them — a good thing — so should other public servants. And the higher their status, the greater the imperative.
“The Framer’s understanding of human nature was sound.”
Was it really that sound? I would argue that many of our founders were highly influenced by theorists like Machiavelli, Hobbes and Locke. These guys seemed to agree that human kind is in a state of almost total depravity whether for religious reasons connected with the Fall and original sin or for the secular grounded assumption of an imperfect nature–with a major premise being that evil is radical and more primary than Good.
It might be the case that such assumptions offer a far too gloomy philosophy where things like human virtue are not simply redefined but ultimately dismissed and denied.
Did our founders inherit and accept a type of anthropological and ontological pessimism? Are we simply greedy, fearful and egotistical individuals inevitability subject to feelings of inferiority if we do not engage in the usual quid pro quo of gift reciprocity?
Machiavelli, Hobbes, and Locke lived in violent and corrupt times in which popes, kings, dukes, and parliaments had wars for their personal enrichment. As with the Founders, I don’t think that they were gloomy, but just practical. The English government was extremely corrupt as well before and during the American Revolution, which is one of the reasons for that war starting and it being lost by the British.
I think that the Founders had some optimism, but believed like Lord Acton “Power tends to corrupt and absolute power corrupts absolutely. Great men are almost always bad men, even when they exercise influence and not authority; still more when you superadd the tendency of the certainty of corruption by authority.”
The federal government’s power was weakened by the dividing of authority between three branches of government; the separate states, not provinces, have their own separate countervailing power to both the other states and to the federal government.
The American Republic functioned pretty much as the Founders thought it would, even to the American Civil War (People like Jefferson were quite aware of the ultimate costs of slavery, so the war would have been no surprise.) It was so for two centuries, which would have been a surprise because they thought it would either collapse or need another civil war sooner to keep it going. (“The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants.” — Thomas Jefferson). It only took forty or fifty years of a deliberate campaign to make the country as corrupt and dysfunctional as it is. The looming second civil war would not be a surprise at all.
There is also an argument and rather convincing one that in order to be an actual republic, the government must be free from corruption because when elected officials are bribed, they are no longer acting in the best interests of the people. Unfortunately, many people, including our courts, seem to think that a republic simply means that the officials are elected. If an 18th century definition was used, with more expansive views towards what is required to be a republic, then many of the current practices would be deemed illegal. Where are the originalists when you need them?
You make some valid points.
What bothers me is that we seem to end up in a somewhat paradoxical situation.
The vision of people like Machiavelli and Hobbes tends to reject more utopian political visions for a politics of “lesser evil” and aims to bring about the least evil society possible.
This position is grounded in the claim that any invocation of positive principles such as truth or goodness amounts to a “Tyranny of the Good.” which is often taken to be the ultimate source of all evil.
On the other hand the claim to liberate people from the above tyranny by upholding negative liberty, instead of imposing substantive values, seems to end up morphing into a new tyrannical order like we have today. Doesn’t the pursuit of the lesser evil rather than the common good progressively become as authoritarian as the tyranny people like Hobbes and Machiavelli purported to struggle against.
As you indicate we may, in fact, be facing the probability of a new civil war in which, like in Machiavelli’s time, it is the exercise of violence and the use of fear that become the only instruments for regulating civil life–especially when there is no longer much of a belief the in pursuit of peace or the practice of virtue..
This use of force by the state or “Leviathan” as the means to maintain order and peace is something I have never agreed with as well as the modern use of lesser eviluism by our contemporaries. Obeying because you will be killed otherwise or voting for the lesser bastard because it is less painful for now is just a short term solution; a guarantee of having a power hungry murdering individual or oligarchy running our society; an authoritarian, or worse totalitarian, hellish society.
The deliberate devaluing and ultimately destruction of knowledge especially of history, political science and economics, English, and philosophy has enabled the increasing corruption. It is impossible to have good discussion of why we are where we are when too many know too little to be able to understand what they are missing. We cannot fix anything. However, many Americans are good at being led around by the leash and collar their ignorance has created for them.
The US govt has always dealt with corruption. In the late 1800s, US companys with monopoly power – railroads, Standard Oil, banks – seemed to dictate to D.C. (That was one of the driving forces of the first Populist movement in the US: breaking the hold of monopolies and govt corruption and incompetence.)
What’s different now, imo, is the apparent collusion among many govts to prefer supra-national monopolies’ powers over the well being of their citizens. It’s not just the US govt becoming more corrupt by itself within the borders of the US; it’s the US, Canada, UK, and other Western countries acting in concert (or at least in near identical ways – ‘Build Back Better’) to prefer big pharma (and its bribes, er, donations), big billionaire trust fund bribes, er, donations and grants, etc, plus China’s ‘considerations’ for the well-connected family members of Western leaders. It’s like an international racket instead of a purely domestic corruption. My 2 cents.
adding: it’s a neoliberal “because markets” and “govts work for markets and are discipled by markets” dream come true. No room for democracy or ‘will of the people’ in their dream of Market uber alles. What I call corruption they call the price of doing business.
One could point out that those anti-corruption ideals didn’t last very long and the 19th century was at least as corrupt as our own what with the spoils system and, later, the new capitalists bribing politicians willy nilly.
Yes, but the Progressive Movement, among other things, managed to reduce the corruption greatly and increase the government’s competence and service to the public without a war. I do not see that happening now.
Corruption in Washington? No way, I don’t believe it.
re: reciprocity, we shouldn’t overlook the Favor Bank. None dare call it bribery.
Also brings to mind the Sen. Geary subplot in Godfather 2.
I wonder how someone truly committed to change might work this system.
If I were such a person and in such position to seem ‘malleable’ as an emissary, I would garner as many and as expensive, exotic, and wondrous gifts as I could. I would send all my gifts to a responsible public servant [assuming such exist] and have the gifts placed into a special display at the Smithsonian. Once my gifts were outside my concerns, I would act as my conscience … partly mitigated by the concerns of my sponsors allowed … and if that included violating my personal ethics then let them all be damned and I would seek amnesty at a place … already planned for.
But heroism is a cheap thrill for those without true connection or true commitment.
I do not know my own metal. … and fear to learn it.
The “Founding Fathers” were far more corrupt than even Donald Trump’s most fantastic dreams.
Just because Slavery and the ethnic cleansing of Native Americans was legal doesn’t make them not corrupt. Rather, that these acts were legal, and integral to our nation, show just how depraved these men were.
King George tried to protect the Native Americans from our Founding murderers with Royal Proclamation of 1763. Instead this act was a major incitement for the treason of 1776.
Somerset v Stewart that confirmed that slavery was not legal on English soil. While George Washington was nothing without his 300 slaves.
And it was hate and fear of the slaves and Native Americans that unified the 13 colonies. The pitch for the “Revolution” sounded like the “Illinois Nazi” from “The Blues Brothers.” “The King is using The Black and the Indians as muscle against you. And you are left there helpless. Well, what are you going to do about it, Whitey? Just sit there? Of course not! You are going to join with us.”
The Founders have nothing to teach us, as we have no need to know how best to exterminate an Indian village, or calculate the right number of beatings to maximize slave productivity.
Thank you, Mr Furlan, for restoring perspective to some of the previous authors’ reverent references to “our” ‘Founding Fathers’. “The most revolutionary act is to see the world as it really is”, Rosa Luxemburg.
Mike Furlan
June 18, 2021 at 7:12 pm
I agree – very good points. Not to mention that the “rule of Law” works to advantage those with money. A finely crafted system with so many laws, that only those that have means have the resources to use the law for their own purposes.
That piece by Lee Fang and Ryan Grim in which they report on audio obtained of a Zoom meeting Manchin had with a group of big donors is dynamite.
A lot of interesting discussion of Manchin’s views on issues before Congress, such as the 1/6 commission, the filibuster, voting rights, and infrastructure, and on donors’ ongoing plans to support “conservative Democrats and moderate Republicans”.
On infrastructure:
One of the participants in the call discusses how their donations send “the very strong message that there are folks who will have your back if you take tough votes that by partisan nature that may not be popular within your party.”
To take a contrarian view, I believe that “reciprocity” — empathy — is the finest and most important of human emotions. It is only a problem when a “king, prince, or foreign state” — or our contemporary secular billionaire princes — turn the heads of our elected representatives from reciprocating toward those they represent.
The problem is not that “money is speech” — of course it is — but that our corrupt representatives have warped our taxation and trade laws in order to allow certain of their ”friends” to accumulate too much of it.
Billionaires should be abolished and diverse political associations and parties encouraged, so that our natural human reciprocity is spread beyond the grasp of a few hundred wealthy princes.
Very often when soldiers are stationed overseas, when the time comes for them to redeploy back to The States, a foreign government grateful for their assistance will wish to reward them by awarding them a medal or a knighthood or membership in a society reserved for the nobility or something. I remember that every soldier who served in Vietnam was awarded the Vietnam Service Medal by the puppet government. Every one of them had to have a letter placed in their personnel file verifying that Congress had permitted them to accept this honor.
> a foreign government grateful for their assistance will wish to reward them by awarding them a medal or a knighthood or membership in a society reserved for the nobility or something
Hardly equivalent to a diamond-encrusted jewel box or (in the modern era) a no-show corporate board seat. I can’t imagine these documents have much resale value on eBay.
No, but it’s in the constitution, so since we are a nation of laws (/sarc) the law must be obeyed even in small cases, amirite? And, frankly, I always thought the outrage about the chump change Trump was raking in was a symptom of extreme TDS compared with the routine bribe taking of all the “centrists.” Especially compared with the “speaking fees” Hillary collected.
A fundamental issue in politics and governance is the distribution of psychological traits among the people. Human evolution places its survival bets across a broad spectrum of behavioral profiles, ranging from predatory acquisitiveness to saintly aceticism. The notion that everyone would behave in a consistent and orderly manner under a perfect government is fantasy. This is why peddlers of “isms” and their destructive simplifications about human nature are poor guides for reform. Any government that allows people manifesting the extremes of selfish and altruistic behavior to coexist peacefully is a compromise riddled with imperfections. In our era, the main force moving society toward better governance is the growing transparency afforded by increasingly plentiful digital information, but this trend faces determined resistance by powerful interests intent on maintaining their prerogatives. Corruption will yield slowly to the force of transparency, but this will be a painfully slow process.
Good idea for an amendment to reduce corruption! Some suggestions:
1. Article I, Section 8 amended to prohibit officials accepting “any present, emolument, office, or title of any kind whatever, [from any king, prince, or foreign state] exceeding the average day’s pay in any year, or from any person other than an immediate family member.”
2. Amendment to restrict funding of elections to registered individual donations limited to the average day’s pay in any year. All intermediaries must trace all funding to a reported individual source.
3. Amendment to restrict funding of mass media to registered individual donations limited to the average day’s pay in any year. All intermediaries must trace all funding to a reported individual source.
4. Laws and regulations requiring balance at all levels and departments of mass media, in political views and protected characteristics such as race, creed, color, etc. Mass media defined as any means of information distribution having a readership of more than ten percent of the total in any subject or geographic area.
“Public Choice Theory”.
As soon as I knew what it was, I could see the problem.
Public Choice Theory was the brain child of James Buchanan.
James Buchanan life’s work was dedicated to putting “democracy in chains” and this is covered in Nancy MacLean’s book of that name.
Who better to explain it than the man himself?
James Buchanan explains “public choice theory” in a BBC Documentary called “The Trap”.
https://thoughtmaybe.com/the-trap/
At 49.00 min.
When you know the theory, you can see the problem.
Politicians are supposed to be for sale; that is the idea.
Corruption is going to be a problem.