Book Excerpt: Corruption in America by Zephyr Teachout '99

In March 2014, Zephyr Teachout A.M., J.D. ’99 decided to join the race to become governor of New York, taking on fellow Democrat Andrew Cuomo, the incumbent. Teachout argued that Cuomo had moved away from traditional Democratic values; a central theme of her campaign was anti-government corruption, meaning that she supports public financing of elections and limits on big corporate donors. it’s an issue she also explores in her book Corruption in America, which was published in September. Here's an excerpt from the book:

In two recent cases—Citizens United and McCutcheon v. FEC—Supreme Court justices Anthony Kennedy and John Roberts wrote that campaign contributions—gifts—given with intent to influence policy are not corrupting. As they explained it, corruption requires more than intent on the part of the gift giver; it requires something like an explicit deal between the giver and receiver. When they made these pronouncements, they claimed to be merely following precedent. In fact, they were doing what [Daniel Hays] Lowenstein suggested: identifying and circumscribing a small subset of activities as corrupt. Their circle was particularly small. In the early days of the republic, the new Americans took the opposite approach. They drew a large circle around gifts that they called corrupt. They were committed to treating gifts as political threats, even when such treatment violated the law of nations and complicated vitally important international negotiations, and certainly when the gifts were not accompanied by an explicit deal.

During and after the Revolutionary War the new Americans were driven by a fear of being corrupted by foreign powers, and a related fear of adopting the Old World’s corrupt habits. The two national powers that dominated the colonies, France and Britain, represented two different models of corruption. Britain was seen as a failed ideal. It was a corrupted republic, a place where the premise of government was basically sound but civic virtue—that of the public and public officials— was degenerating. On the other hand, France was seen as more essentially corrupt, a nation in which there was no true polity, but instead exchanges of luxury for power; a nation populated by weak subjects and flattering courtiers. Britain was the greater tragedy, because it held the promise of integrity, whereas France was simply something of a civic cesspool. John Adams said of France, “there is everything here too which can seduce, betray, deceive, corrupt, and debauch.” As Thomas Jefferson— who adored Paris—wrote in 1801, the year he became president:

We have a perfect horror at everything like connecting ourselves with the politics of Europe. It would indeed be advantageous to us to have neutral rights established on a broad ground; but no dependence can be placed in any European coalition for that. They have so many other bye-interests of greater weight, that someone or other will always be bought off. To be entangled with them would be a much greater evil than a temporary acquiescence in the false principles which have prevailed.

This “hatred” of the European political culture and the fear of entanglement led to a problem. The new Americans wanted to be part of the international community, respect the laws and customs of nations as a matter of principle, and be respected as an autonomous new nation. But they also wanted to reject corrupt European customs. When it came to internal affairs, this was not a major conflict. But when it came to the customs of international diplomacy—like the custom of exempting ambassadors from paying duties—they wanted it both ways.

One of the customs of the international community was the giving and receiving of personal presents to ambassadors. Expensive gifts—sometimes called presents du roi or presents du congé—functioned as “tokens of esteem, prestige items, and perhaps petty bribes,” and were embedded in the culture of international relations. Gifts were typically given at the end of diplomatic tours. They were often very expensive, and were understood to be a supplement to salaries. In some cases the value of gifts constituted a substantial part of the income received by diplomats. The value of a gift might reflect the esteem in which a diplomat was held, or the importance of the relationship with his nation.

This practice was hateful to the Americans because it symbolized and embodied part of a particular culture they rejected. Jewels themselves signify luxury. They pointed to an old-world privilege that would not come easily to even the richest Americans. In the founders’ minds, luxury represented a kind of internal corrosion—even in cases where there was no external dependency, a man could be tempted into seeking out things for himself, instead of seeking things for a country—he could, in some ways, self-corrupt. The diamonds of Franklin’s gift would have seemed ostentatious to the founders. [When Benjamin Franklin left Paris in 1785 after several years representing American interests in France, Louis XVI gave him a portrait of King Louis surrounded by 408 diamonds.]

The Articles of Confederation included this provision: “Nor shall any person holding any office of profit or trust under the United States, or any of them, accept any present, emolument, office or title of any kind.” This ban on receiving gifts was perceived as severe and not a little eccentric. The provision was a close copy of a 1651 Dutch rule that their foreign ministers were not allowed to take “any presents, directly or indirectly, in any manner or way whatever.” The code was so far outside the normal state of affairs that it was ridiculed for its sanctimony. The Dutch political writer [Abraham de] Wicquefort’s analysis of the Dutch prohibition against receiving gifts was scathing: “The custom of making a so well established that it is of as great an extent as the law of nations itself, there is reason to be surprised at the regulation that has been made on that subject in Holland.” Wicquefort went on to write about how so scrupulously observant they are that they refuse even the most trivial presents. He accused his countrymen of silliness for making a fuss over the smallest gifts, even a plate of fruit. “I cannot tell,” he writes, “whether the authors of this regulation pretended to found a Republick of Plato in their fens and marshes,” but “it cannot be denied” that they “condemn the sentiments of all the other kings and potentates of the universe.” He may have been referring to Plato because Plato had been rather severe about gifts. Not only did he recommend dishonor for judges who were bribed by flattery, but he thought that public servants who accepted gifts should die:

Those who serve their country ought to serve without receiving gifts, and there ought to be no excusing or approving the saying, “Men should receive gifts as the reward of good, but not of evil deeds”; for to know which we are doing, and to stand fast by our knowledge, is no easy matter. The safest course is to obey the law which says, “Do no service for a bribe,” and let him who disobeys, if he be convicted, simply die.

The American founders did not advocate execution for gift-acceptance, but they might have taken Wicquefort’s ridicule as a compliment— they were interested in establishing their own just republic. But their idealism quickly became difficult in the international context. The Europeans were not interested in complying with this new, self-imposed ban. During the early years of American independence, foreign princes generously loaded American emissaries with expensive gifts, and the Americans receiving the gifts had to figure out how to respond.

The first gift problem arose after the Declaration of Independence was signed. That was when American politician Silas Deane was charged with discovering whether France might be willing to aid the Americans with cannons, arms, and military clothing for the Revolution. Deane was a Yale graduate, a lawyer, a merchant, and politician who was known as “Ticonderoga” by some for his strategic role in the successful Ethan Allen capture of Fort Ticonderoga. His first effort in France was not so much diplomacy as espionage. Under the name “Timothy Jones,” he posed as a merchant trying to buy supplies for the rebels. When it became clear that France was open to trade with the colonies, he abandoned his disguise and established himself as one of the first formally commissioned representatives of the aspiring country. He was soon joined by Benjamin Franklin and Arthur Lee. The three men grew to hate each other, and the delegation was full of accusations and counteraccusations. Deane accused Lee of disloyalty, Lee thought Franklin was corrupt, and Franklin thought Lee was a lunatic.

Deane’s tenure was troubled from the start, as there were rumors about his loyalty. He was accused of using his public position to make a private fortune by manipulating the commissions he received on procured goods. His financial accounting was questioned, and he was generally thought of as ambitious and too tricky by half. Adams found him untrustworthy and distasteful. In 1778 Deane was recalled to Congress, charged with fraudulent account keeping and disloyalty.

When he left France, Deane received a jeweled snuff box for his diplomatic service from the French court. King Louis loved these boxes and frequently gave them to foreign ministers. He allegedly called them boîte à portrait instead of snuff boxes: he disliked snuff, but liked the form and frequently adorned them with portraits of himself. Deane apparently thought the gift would help save his reputation: he offered it as proof of the great work he had done for the new country. According to Arthur Lee’s account, Deane “expected, from the effect of a French Fleet, of which he was to claim the sole merit, the brilliancy of a diamond snuff box, and complimentary letter,” that he would return to the United States with sufficient proof of his loyalties. John Adams was dismissive of the use of evidence, remarking that “unthinking men may be amused with a golden snuff box.”

Deane’s acceptance of the snuff box led to Lee accusing him of violating one of the core laws of the Confederation. In his papers on the matter, Lee wrote: “Deane knew that it was one of the fundamental laws of our Union that no person in the service of the United States should accept from any king, prince, or minister any present or gratuity whatsoever...yet in the face of this fundamental law, Mr. Deane accepted of a gold snuff, set with diamonds, from the King of France.” The disloyalty and accounting accusations against Deane were never proven, as the French did not disclose their accounting. Deane would eventually return to France, disgraced but not sentenced. But the question of the appropriate relationship to foreign gifts remained.

Excerpted from Corruption in America: From Benjamin Franklin's Snuff Box to Citizens United by Zephyr Teachout, published by Harvard University Press. Copyright © 2014 by the President and Fellows of Harvard College. Used by permission. All rights reserved.

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