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The Framers Would Call the United States of Today Corrupt. And They’d Be Right

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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

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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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