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Parchment Barriers: Why Tillman and Natelson Are Wrong about the Anti-Corruption Principle

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9 Responses

  1. brad says:

    Bringing the anti-corruption principle in line with separation of powers seems like a weak victory. Although it is certainly given lip service, with the non-delegation doctrine in virtual abeyance, the unitary executive widely rejected, and article I courts flourishing it seems a principle more honored in the breach than the observance.

  2. NLS says:

    Correct me if I’m missing something here, but your argument is that (1) neither the terms “separation of powers”, nor “corruption” appear explicitly in the constitution, (2) the separation of powers doctrine shouldn’t be limited by parchment barriers simply because it does not appear explicitly in the constitution, and (3) the anti-corruption principle should, likewise, be afforded the same deference.

    My problem is this: the separation of powers doctrine can be seen in the basic form of the Constitution, and it is derived from the accumulation of many different sections and interpretations of the document. Heck, it was even defended by Madison. Corruption was once thought about during the drafting of impeachment proceedings, and the anti-corruption doctrine can really only be traced back to early 20th century election administration laws. These are not alike. They are far from alike. I am not trying to make a qualitative argument about either side of the campaign finance debate here. But this particular argument just seems erroneous.

    You’re arguing about an orange when we’re talking about an apple in the book of Genesis. Neither is mentioned in the book, sure, but one has a rich history of religious/art/etc tradition based around it. The other is also a fruit.

  3. Jon Roland says:

    A few mistakes in the text:

    The anti-federalist author “William Penn” should be in quotes to avoid confusing him with the founder of Pennsylvania, and his paper on this was assigned “No. 2″ by Storing. “Federalist No. 73″ should be capitalized, written by Hamilton. In (2) the word should be spelled “judgment”. Anti-federalist papers are only given numbers by Storing and a few other editors, but each uses a different numbering system.

    The passage “what is important is that the structure be built in a way that would [not] lead to too much accumulated power” needed the inserted “not”.

    Missing is the point that the Constitution does not confer authority on Congress to make “bribery and high crimes and misdemeanors” a crime, as it does for “treason”, although it arguably does for discipline of the military and militia in federal service. However, that does not cover civil officers. I discuss this omission in “Defect in the Constitution” at my Constitution blog, linked from my website

  4. Pathfinder says:

    Lessig and Teachout are engaged in the worst type of “scholarship” – attempting to conjure up a theory that will turn their policy preferences into a constitutional mandate. In doing so they ignore all other possible readings, including many that have more direct support in the Constitutional text and structure (which they pretty much have to admit).

    Obviously the Founders were concerned about virtue and preventing corruption in government. (That is essentially their point of agreement with Tillman). But this does not and cannot mean that there is some free-floating “anti-corruption” principle embedded in the Constitution, a sort of vague “legislative intent” that overrides the actual language and structure, to be pulled out whenever one needs to support one’s favored government policy (for Lessig and Teachout, broad restraints on political speech and participation). It would make as much sense to comb the page of late 18th century political tracts to create a basic “liberty” principle that trumps the actual language and structure of the Constitution, causing most of the current edifice of government to fall; or to find an “equality” principle dictating much more redistribution of income. The framers were concerned with many things. They enacted a Constitution to address those concerns. To suggest that one area of concern, one broad principle of government, somehow trumps specific provisions of the Constitution or overrides its structural elements is absurd, particularly when they further interpret that broad principle, rather tendentiously, as being achievable only through the policies they favor.

    Their approach is to ignore opposing evidence or to simply interpret all evidence as supporting their preferred policy outcome. Thus, for example, they interpret the removal of “corruption” from the text as supporting their view – and just as surely, they would have interpreted leaving it in as supporting their view.

    They take broad problems and concepts articulated by Madison and others and then ignore the actual solutions/provisions of the constitution aimed at addressing those problems/concepts, to instead argue that the “real” constitutional solution is an “anti-corruption principle,” which only they truly understand and can interpret for the rest of us. And – surprise – when they interpret it for us, why, it turns out that the true, hidden Constitution and their policy preferences 225 years later line up in perfect harmony.

    This isn’t even “nonsense on stilts.” It’s more like nonsense with shoe lifts.

  5. Zephyr Teachout says:

    Brad: I agree that the SOP is not that strong. But it has some weight, and is used, as I think the ACP should be used, to understand other parts of the Constitution, to give a gloss on texts, and to be a freestanding principle from time to time.

    Jon: Its a blog! Yes, there are mistakes.

    NLS: Actually, the ACP is just as deep and strong and a fundamental constitutional commitment that shows up throughout the 19th century. I hope you read my forthcoming book (it will be several months), and, in the meantime, http://www.lawschool.cornell.edu/research/cornell-law-review/upload/teachout-final.pdf

    Pathfinder: I’m sorry you find it unpersuasive. But my research preceded any particular pending case–it came from a genuine confusion about the thin-ness of the concept as expressed in Buckley, and anyone reading the papers of the era will find that corruption kind of hits you over the head–as Wood puts it, its the common grammar of the era. Unless one has a view of the constitutional that allows for no structural principles–in which case I understand your argument–the ACP is as fundamental a principle as any. And even if you believe in no structural principles, the ACP should help define the scope of the other provisions.

  6. NLS says:

    Thank you, I’ll definitely read.

  7. Rob Natelson says:

    Unfortunately, I’m being mischaracterized here. I never said there was no anti-corruption principle. I DID say that the Founders believed republican government and officeholders in republican government had obligations of “trust”—a term more generic than that used today to include fiduciary duties generally. Among these were a duty to avoid conflicts of interest—a concept included in the contemporaneous meaning of the term “corruption.”

    Certainly fiduciary duties should inform the reading the Constitution. The issue is the extent to which they should trump the text, as the Founders understood that text. For example, it now seems clear that the contemporaneous meaning of the term “freedom of the press” included a right to anonymity when contributing to political debate through the media. I don’t think, therefore, that a generalized fiduciary principle should be used to override the meaning of that phrase to uphold disclosure statutes inconsistent with “freedom of the press” (which includes political advertising).

    Finally, I made another point not mentioned here: The Founders’ concerns about conflict of interest actually cuts AGAINST the view that the Times, Places and Manner Clause authorizes congressional regulation of federal election campaigns. The matter was discussed at excruciating length during the ratification debates, and the only way the Federalists were able to obtain acquiescence to the Clause was to represent that “Manner of holding Elections” would be construed narrowly. As then understood, that phrase wouldn’t have extended to regulation of campaigns anyway, but the ratification-era discussion makes it very clear that most people—including some strong Federalists such as Noah Webster and James McClurg (himself a framer)—did not want Congress regulating federal elections unless there was some kind of disaster, such as an invasion, that prevented one or more states from doing the job. The sort of detailed congressional campaign control we see today entailed precisely was the kind of conflict of interest they would have called “corruption.”

  8. Brett Bellmore says:

    I think part of the problem here is the notion that corruption is something which proceeds from the public, to the government, that what we need to do is keep the people from corrupting the government. That corruption may be originating with the government itself, (Campaign funds being extortion, not bribes, for instance, seems not to be a consideration.

    So the conflict of interest involved in officeholders regulating how people may try to unseat them just doesn’t register.

  9. Zephyr says:

    Rob–thanks for chiming in. As I read your post, you said that Lessig and I asserted that there was an anti-corruption principle, and Tillman’s response “devastated” those assertions. I read that to be a rejection of the ACP. I’m glad to know that you are at least open to looking at things through the lens of the ACP.

    The early TPM clause work you’ve done is really interesting and I look forward to reading it more closely. Two questions, serious one: do you think the states should have the capacity to have campaign finance limits? And is your view that bribery is outside the normal conduct of elections mean that if we see BCRA as a bribery statute, we think it is within federal authority? I may elevate this discussion to a full post–look forward to your thoughts.

    Brett: I agree with you about conflict of interest. In fact, one of the problems with the current Kennedy vision of corruption is that it does not include conflict of interest, or if there is a “conflict of interest” corruption he can’t thematically link it to “quid pro quo” corruption. It points out, I think, the thinness of the quid pro quo frame. I don’t think that it is silly to be concerned about self-interested governmental behavior at all–and that the point is a serious one. However, I think bright line rules, like the conflict of interest statutes and provisions and bright line contribution limits, do a better job of regulating governmental and private abuse of public power than, say, “bad motive” bribery laws which give enormous governmental discretion. (Allowing for partisan prosecutions, etc)

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