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Q&A: Founders focused on U.S. Constitution’s role as anti-corruption tool 

Legal scholar Frank Buckley discusses the role of federalism and limiting presidential power as antidotes to corruption in Washington

RALEIGH — Americans have debated the U.S. Constitution’s meaning for more than 225 years. A recent book, The Republic of Virtue: How We Tried to Ban Corruption, Failed, and What We Can Do About It, argues that the Constitution’s framers wanted to create an anti-corruption covenant. Author F.H. “Frank” Buckley is foundation professor at the Scalia Law School at George Mason University. He discussed the book during a presentation for the John Locke Foundation’s Shaftesbury Society. Buckley shared themes from that speech during a conversation with Mitch Kokai for Carolina Journal Radio. (Head to http://www.carolinajournal.com/radio/ to find recent CJ Radio episodes.)  

MK: Why is the U.S. Constitution, in your view, an anti-corruption covenant? 

FB: There are two stories. The first story is that whatever we might have thought about the British, we admired their constitution, except for one thing: It was just a nest of corruption. The king was essentially bribing members of Parliament to vote his way. That was just accepted. So that’s part of the story. Part of it is, it’s a matter of product differentiation. We like the Brits, but we don’t like their corruption.

And then the other part of it has to do with the story behind the way the [constitutional] convention worked. We kind of have this feeling that, “Oh, it just had to work out that way,” but it didn’t. We nearly fell apart. There was nearly a walkout led, I think, by [James] Madison. And then at one crucial point, one delegate got up and said, “Gentlemen, if you want an anti-corruption government, here’s what we have to do.” The name of that fellow was Gouverneur Morris, and he’s one of the untold heroes of the convention.  

What he persuaded people to do, which I think was the most momentous decision at the founding, was to have a structure for electing the president, which turned out in the fullness of time to be popular election. And that was supposed to cure corruption. So that’s how we got our Constitution, and that’s how it was supposed to be an anti-corruption covenant.

MK: This was back in 1787, at the start of the process. As the subtitle of your book says, we tried to ban corruption and then … failed. How did it end up failing? 

FB: I think a lot of people would agree we failed. I don’t think that’s terribly controversial. In fact, there are people who run studies of “how corrupt is your country.” They interview local people, and we don’t do terribly well. Sometimes people say, “Well, golly, we’re America. How can that be?” I tell them, “Well, have you ever heard of this place called Louisiana or Illinois?” And they say, “Oh. OK.”

But, chiefly, I think the problem is a Washington problem. I think chiefly the problem is the swamp, and there are a number of reasons for that. One of them is the presidency. It’s an all-powerful institution, and the checks and balances, which were supposed to prevent the president from being too powerful, failed and turned out to be a cloak with which he could hide his sins. I think the obvious example was [Barack] Obama’s presidency and the IRS scandal, for example. He said, “There’s not even a smidgeon of evidence,” and it all went away.

MK: … Are there elements of the Constitution, the original plan, that did work or are working, that we ought to preserve?  

FB: Yes, and the big one is federalism. The point about federalism is when power is chiefly located in the state government, if a state happens to be corrupt, you’ve got an exit option, right? If you don’t like Illinois, you can move to Texas or, maybe even better still, North Carolina. So that tends to cure the problem. But the more the power is centralized in the feds, the harder it is to exercise that escape hatch. You can escape from Illinois, but [it is] not so easy to escape from Washington, you know?

So restoring federalism would be a big answer to it. That apart, there are some smaller things we can do, which I think would be really, really useful. But you know what? We’re not going to absolutely ban corruption. The optimal level of corruption is not zero, because that would take a Robespierre to chop off some heads. We don’t want that.

MK: You already got into this, but the last part of the prescription in the subtitle is “what we can do about it.” Restoring federalism is important. Are there other things we really need to look at?  

FB: There are. I mentioned two things. The first is kind of a negative thing. We have all these campaign finance laws, and the guys who talk about corruption, typically, are on the left. They say, “Well, you know, the answer is get the scandal of money out of politics,” by which mostly they mean, “Let’s get the scandal of Republican money out of politics.” Because, I mean, look, Hillary [Clinton] outspent [Donald] Trump by 50 percent last time around. So they know how to spend money. They’ve got tons of money. They have a good more money than we do.

But that’s fine, you know. More power to them. The problem with our campaign finance laws is they’re like a net that has a curious feature that the big fish swim through and the small fish get caught. And the small fish often are people with inconvenient political views. So it’s a good tool for persecuting your opponents. 

In addition to all of that, when you have to disclose who your donors are, … you can unleash an internet mob, where they post your name, and your address, and your kids, and where you go jogging, and all of that. It’s an invitation to an assault. And, of course, you’ve got these Antifa monsters out there who are only too happy to do that.

So I would just junk all we have out there in terms of campaign finance laws. There are no limits on expenditures by virtue of the Supreme Court. I would get rid of contribution limits. They’re basically eliminated for smart people with lawyers. And I’d let people do it anonymously. And what I’d do, positively, is I’d concentrate on the lobbyists. There you can do something.

MK: What about the lobbyists? 

FB: I’m here visiting North Carolina from the D.C. area. I’m right in the middle of the swamp. The swamp is composed of a lot of smart, good ol’ lawyers working in the district and influencing legislators. In part, that’s a good thing. They are educating people who often arrive in Congress not knowing what’s going on. But at the same time, they shouldn’t be able to give money to the congressmen. And outright gifts have been banned, but right now congressmen can receive campaign finance contributions from lobbyists, and lobbyists can organize these meetings for congressmen. I [would] get that part of the money out of it.

They have good intellectual resources — the lobbyists. Let them inform congressmen about what bills are all about. They’re good at that. What they don’t have to do is give them monetary contributions.

MK: How convinced are you that we can and will do something about this? Is this wishful thinking, or is it likely that we can actually accomplish something that will fix the system?

FB: I have high hopes. I don’t want to predict the future in any way, shape, or form. But I think a lot of people have recognized that we had a real problem with corruption. The election in 2016 was, I think, importantly, a referendum on that. Whatever you might think about Trump, I think many of your listeners will have pretty clear ideas about what Hillary Clinton was all about. When you walk into politics and you end up making a ton of money, that sort of tells you something.   

So it was a moment where we rediscovered corruption, and Trump has had plans to drain the swamp, as he puts it. We’re a year into it, and we’re still waiting, and we’ll see what’s going to happen. I think the instincts were right. You know, there was this French guy, Charles Péguy, who had a line about this. He says, “Everything begins in mystique and ends in politics.”