The Republic of Virtue - F. H. Buckley

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of information and his ability to delay the proceedings. The separation of powers in the American Constitution was designed to discipline a misbehaving executive, but instead has had the opposite effect, insulating him from criticism.

      The separation of powers also introduced another kind of corruption, in which members of Congress demand wasteful benefits for their districts as a condition for supporting a bill. This became glaringly obvious in the debate that led to the enactment of the Affordable Care Act (Obamacare) in 2010, in a frenzied atmosphere of last-minute deal-making. To get his filibuster-proof sixty votes, Senator Harry Reid (D-NV), the majority leader, had to bargain with the members of his caucus who demanded special earmarks. Among these, the “Louisiana Purchase” gave $100 million in extra Medicaid funding to the Bayou State to help get Senator Mary Landrieu (D-LA) re-elected. Then came the “Cornhusker Kickback” for Senator Ben Nelson (D-NE), a permanent exemption from his state’s share of Medicaid expansion that would cost taxpayers an additional $45 million in the first decade. Next came “Gator Aid” for Senator Bill Nelson (D-FL), a grandfather clause that would allow Floridians to preserve their pricey Medicare Advantage program. The list went on and on.8 In the final bill, the Cornhusker Kickback was stripped out, but many other goodies were so well hidden in the thousand-page document that they went undetected. Seven years later, we’re still finding out what’s in it.

      The Framers’ republic of virtue has evolved into a very different country, one that is more corrupt than those it most resembles, the “settler” societies of Canada, Australia and New Zealand. We share a similar heritage and legal system, but unlike those other countries we have a presidential form of government with a separation of powers, and those features of our Constitution have, over time, made the United States more corrupt. We shaped our institutions, and then our institutions shaped us.

      In addition to dividing powers laterally among the branches in the national government, our Constitution disperses power vertically, between Washington and the states. American federalism was not so much a conscious choice by the Framers, however, as a necessity imposed upon them by the states, a legacy of the many years of self-government in each of the thirteen colonies. In Albany, Trenton and other state capitals, Americans had created their own state constitutions and governmental institutions, and were loath to give them up. At the Constitutional Convention, the smaller states, as a condition for joining in the Union, rejected the idea of an all-powerful central government, and that is why we have a federal form of government. This division served to check corruption by bringing government closer to the voters most affected by its actions. Federalism also allows people to move from corrupt states to more honest ones. With fewer people and businesses to prey on, the corrupt state is made to pay for its lack of integrity.

      Over time, however, the federal government has assumed control over more and more powers originally left to the states. This happened partly because the Supreme Court gave an expansive definition to the federal commerce power, permitting Washington to overrule the states on purely local matters. Then, through the spending power, the federal government was permitted to condition grants to the states on compliance with federal mandates, which is how state policies on transportation, health care and education came to be often set by Washington.9

      On the other hand, states have been exercising powers that should be assigned to the federal government. In particular, state courts have been permitted to rule on interstate civil actions, where the plaintiffs and defendants are in different states, under a strained interpretation of the Constitution by the Supreme Court. These cases more properly belong in federal courts, since the home-state bias of state courts allows in-state plaintiffs to impose wasteful costs on out-of-state defendants. One might think this a trivial matter, but one would be wrong. A wise reform would ensure that all such cases are turned over to federal judges, as the Framers intended.

      Mention corruption to a highly educated American, and chances are that he’ll complain about the baneful effects of money in politics. Pressed further, he might mention the 2010 Supreme Court decision in Citizens United v. FEC10 and denounce big-bucks conservative donors such as the Koch brothers. He’ll say that we would get more honest government by eliminating the scandal of money in politics, but his actual aim may be to disarm those he disagrees with and prevent a successful challenge to the incumbents he favors. Instead of making government more honest, restrictions on campaign spending may help protect corrupt incumbents from the wrath of fed-up voters.

      What democracy offers as a cure for corruption is competition and the chance to throw the bums out. What the bums want to do, therefore, is neutralize the opposition by restricting its spending and therefore its ability to make its voice heard. That can’t happen here, since the Supreme Court ruled in the seminal case of Buckley v. Valeo (1976) that campaign spending caps would trench on First Amendment rights.11 It’s true that some other countries, lacking the equivalent of our First Amendment, have enacted campaign spending caps without making their political races less competitive. And it’s true that our own elections don’t appear all that competitive, since few seats are ever seriously in play in congressional races. But that doesn’t mean we could adopt stricter spending limits here at no cost in competitiveness, for laws that work elsewhere cannot simply be copied in the United States with the same results. Each country must work out its own compromise between corrupt and competitive politics. If spending in American elections were capped, the result might well be less competition in politics and more corruption in government, given the particular dynamics at work here.

      The campaign finance laws we have now are mostly worse than useless. They don’t get in the way of clever donors or officials who know how to skirt the rules, but they’re a snare for the little guy. They’re like a fisherman’s net with the curious feature that the big fish escape while the small ones are caught. Worse still, they’re an invitation for flint-eyed ideologues, ambitious prosecutors, and partisan officials to criminalize political differences.

      Rather than imagine a fanciful scenario of politics without money or corruption, we should begin by recognizing that draconian reforms that restrict our freedoms might actually make things worse. When countries already have a certain amount of corruption, there’s a tipping point where stronger anticorruption laws produce more corruption, particularly when they are exploited as partisan political weapons. As Justice Scalia noted, “nothing is so politically effective as the ability to charge that one’s opponent and his associates are not merely wrongheaded, naïve, ineffective, but, in all probability, ‘crooks.’”12 And politically motivated prosecutions for corruption can themselves be a form of corruption. In the United States, this problem may not reach the level of the old Soviet Union, where the prosecutor Lavrenti Beria infamously said, “Show me the man and I’ll show you the crime.” But some of those facing politically charged prosecution here may be forgiven for feeling that it isn’t much different.

      If stricter campaign finance limits and more anticorruption laws won’t help, what can we do? Some things, such as our basic constitutional structures, can’t be changed. Nor can we rely upon the innate wisdom and goodness of the voters. The Framers, with their awareness of human fallibility, believed that a purely democratic government isn’t always a good government, and that a virtue-driven constitution must at times blunt the voters’ desires. This wisdom has sadly been forgotten by today’s campaign finance reformers, whose vision of good government resembles John Winthrop’s close-knit Puritan community, in which corruption is simply a departure from the popular will. The Framers had the better of the argument, for the most corrupt officials are often those most attentive to what the voters want. Broad democratic reforms will not ring in a reign of virtue, and the work of combatting corruption is rather a matter of smaller rules here and there.

      Here are three proposals for election law reform that would curb corruption rather than aggravate it:

       • Unless they

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