Notes on Corruption from a Lawyer in Embryo

ESSAY by Gerard Leone

“We have laws against it precisely so we can get away with it. Corruption is our protection. Corruption keeps us safe and warm. Corruption is why you and I are prancing around in here instead of fighting over scraps of meat out in the streets. Corruption is why we win.” —Gaghan, Syriana (2005)

The vulgar meaning of “corruption” is quid pro quo, the use of public office for personal benefit. But the idea scatters far more widely: influence itself is often identified as corruption. Scholars like Lawrence Lessig argue that any money at all, even money that only goes to a politician’s reelection, is corruption. To Lessig the regime of campaign finance well before Citizens United was corrupt. The politician’s ambition and vanity may be the only thing served and yet, in Republic Lost, Lessig calls this “dependence corruption” or “systematic corruption.”

Surely, our disgust at our representatives and officials is provoked by the pettiness of their hustling to stay in their offices. One wants to ask the candidate: you’d endure all this misery, and for what? You really need your portrait up at the DMV? It almost makes one long for more benevolent, Bloombergian plutocrats who can self-finance campaigns and who have the literal luxury of being statesmen and legislators instead of ideological toads and persistent fundraisers. And yet Lessig uses “corruption” as a blunderbuss, trying to hit far more than the venality of a Rod Blagovich. The question is whether it should scatter so far. When and where do we spend our rage at corruption? Do we spend it wisely? How justified is our disgust at corruption? And are campaign reform policies answers to this disgust; or are they mere exercises in smarm?



Whatever one’s definition of corruption—quid pro quo, campaign finance, secret AT&T surcharges—we don’t think often about what makes it bad. What norm is violated by an official’s realization of her own self interest in deciding one way or another? The norm that is violated in such instances is disinterestedness, but we should ask why we want our decision makers to be disinterested, and whether there is a virtue in disinterest.

The first reason disinterest or impartiality is understood as the norm is because it is in the popular water. Decision makers are expected by the public to be disinterested, and so disinterest (often understood as the “fair hearing”) becomes an element of officials’ legitimacy. Yet disinterest is not inherently legitimate because justice and other good things do not flow from the same place as disinterest: we do not want certain decisions made on the basis of merit or argument. The legitimacy, understandability, and admirable qualities of a parent or spouse as decision maker, for instance, derive from their unwavering interest—not from their dispassionate consideration of their children’s or lover’s virtues. We should understand that “disinterest” is not something inherently wonderful.

Aside from the pragmatic fact that disinterest is a kind of popular virtue associated with decision-making, disinterest gets most of its rhetorical heft from the fact that it is an elemental and invaluable aspect of the human practice of observing the world to produce truth. Based in skepticism about the human faculties, anything that might influence the observer’s senses or memory must be removed in order for a statement about the world gain credibility. We expect scientists to scrub themselves of their humanity or particularity of perspective in order to report back on the structure of the world, and we call this “objectivity.”

In an analogous way, we expect political decision makers wall themselves off and separate themselves like scientists. Like objectivity, disinterest is something that can be approached but not reached. Science has recourse to the otherworldly, ascetic precision of mathematics (at least on occasion), whereas there are only rough approximations of just how hermetically walled-off we expect our officials or representatives to be in order to be considered impartial and disinterested. Generally, impartiality means cordoning off representatives with ritual and sufficiency of income in order to exclude the vulgar politics of exchange. But in the more stringent world of Lessig, the decision makers must be even more separate. Officials must be virtual hermits, to ensure that their decisions could not issue from the venality of their own careers.

Lessig has a winning argument against systematic corruption insofar as he gets to invoke the popular ideas of disinterest as one of the pillars of governmental legitimacy. Because disinterest is what is expected, those sensitive to the fact that political decisions seem to be made for even the slightest personal benefit will inevitably find the current political situation illegitimate. The justified commitment to disinterest as a pathway to truth is probably the root of why we believe that disinterest is a credit to officials and thus government’s legitimacy.

This perception is terribly wrong, not because disinterest is psychologically impossible or because people do not actually want or need disinterested officials. Rather it’s wrong because it incorrectly holds the representative to a standard absolutely foreign to his function—it applies the professional norm of scientists and judges, who are ultimately disputants about truth, to officials and representatives, who are disputants primarily over the distribution of resources.

I do not want to sketch some proof for the impossibility of disinterested decision-making. (The possibility of a science that can earnestly and productively approach if not reach objectivity seems well-established.) Instead, I want to suggest that official decision-making is not ever like a personality-scrubbed observation of the world. If political decisions are ultimately rarely about observing, but more about something as human as holding tight or sharing one’s resources, then it would make little sense for disinterest to be the standard to which we hold officials or representatives.

We want those establishing facts to be disinterested, to have nothing riding on the findings of an experiment. We know, of course—or we believe—that scientists have a great deal riding on their findings, which is why unscrupulous scientists fabricate their findings. But scientists are regarded as disinterested because their living is not on the line. If a scientist arrives at a conclusion different from their hypothesis, their disinterest is such that they have no reason to skew their conclusions. They’ll still get checks from their institutes and coincidentally the body of knowledge increases anyway. The same reasoning applies to judges: their job security presumably allows them to make unpopular decisions.

Disinterested decisions do not become the pure, ideal decisions by virtue of their lack of vulgar motivations. They are disinterested in the first place because these decisions are about objects or events: about things in the world. The disinterested judge views two sets of objects: events in the world and the written law itself. The judge is bound by the function of her office to agree or disagree with whether a set of actions falls within the law’s generalizations, such that these actions merit a punishment, or fall outside of the law’s categories and so cannot be condemned. (We realize, of course, that when the law provides little guidance, a judge or jury’s prejudices take over—even if they have not already done so in arriving at their facts.) The judge gets to be disinterested if only because she is bound by the question put to her and the text she consults.

The legislator’s political decisions are doubly different, for they are often not at all about facts and they are unbounded by the practices of description. First, political decisions are dissimilar to scientific conclusions. Political decisions, like any moral decision, cannot be made without considering a value or a principle of action in addition to morally inert facts. It is hokey to say, but representatives must regularly consult their “principles.”

In contemporary political parlance, “principle” means a knee jerk, politically expedient rubric (e.g. taxes = bad; extra punishment for criminals = good). But in the representative’s defense, bloodless ethical saws like “the greatest good for the greatest number,” are utterly unhelpful. The thousands of goods and their countless methods of distribution beggar ethical generalizations; they rarely provide guide to action. When the legislator chooses between positions that benefit a minority of immediately economically-underprivileged, instead of a majority of a constituency in twenty years, what good is a utilitarian maxim to help the representative decide between options? Most moral positions usually only settle what’s to be done in extreme cases: a terrorist threatens to shoot ten people if you don’t shoot one of the hostages yourself, say. In daily moral/political decision-making, what’s left to guide the legislator but the rough-and-ready rubric of interests? The interests of oneself, one’s family, one’s identity group(s), one’s districts, and one’s nation seem to provide clearer (albeit only somewhat) decisional suggestions than do abstractions.

The second way a representative or official differs from the disinterested decision maker is that while a judge is confined in action by law and the facts in front of him, the legislature is bound neither to find a fact nor to perform any particular act. A judge’s search for facts is confined by the law as an index of a fact’s relevance; but, like all human beings, the legislator has no way of knowing what problems are truly pressing or what facts are especially relevant. That is, a legislature usually only goes in search of facts it wants to find. The legislature is not bound to pay attention to the world in any particular way. Hence, a legislature can blithely ignore scientific fact as well as its own cruelties. The legislature is also not bound to act in any particular way, but instead must perform its functions only as practicality requires.

Perhaps democratic bodies should be an association of judges and scientists, but even then, as an a priori, it could never be a disinterested body. While the legislature has a function (to make law) it does not have a purpose—it must pick its purposes. Most importantly, the legislature is not a debating society; it is the fundamental negotiating ground for interests. Thus, the legislator is interested in his own district, perhaps in donors, and maybe in the nation as a whole competing with every other nation. Legislators are paid a salary to free them of the taint of vulgar motivations, but they retain a vast number of other reasons to advance special or general interests.



If we admit to the fact that representatives and officials are political combatants on behalf of interests, then we can get to the rhetorically strongest form of Lessig’s complaint about the current system: if representatives cannot be disinterested, then presumably they should be interested in all of their constituents and not just those who pay for reelection. Legislators and officials are limited, small, and human; their problem-solving abilities are confined to what information and problems are presented to them. So how do they get the right impression of what is important to all as opposed to some? To answer, the problem of corruption can be reformulated as the problem of access to representatives.

The argument about systemic corruption goes something like this: those with the money get to present their problems more often or with greater force. Such access allows the legislator to either consciously or unconsciously favor those with access as opposed to those without. Thus, the ability to buy access benefits the interests of those with access as opposed to those without. The moneyed special interest is thus served even if the representative received nothing he could report on his income tax.

If campaign donations that buy access are the heart of the systematic corruption problem, then the most thorough solution to the problem of systemic corruption is to have solely publicly-funded elections. We could go even father if we liked. We could strip corporations of their rights to free speech and ban their campaign communications altogether. With corporate speech stifled and the representative no longer bound to curry donations, the politician would not be as influenced by those who could afford access and could be attuned to the whole of their constituency. Perhaps then only corruption left would be the obvious kind.

What then?

Good things must inevitably follow from a regime of publicly-funded elections. The benefits promised by Lessig for the removal of systemic corruption are phrased in the register of taking back the country: things like governmental legitimacy, democratic participation, and some kind of blow landed against the rich. These promised benefits are dubious.



If we take the cure of the publicly funded election on its own terms, we should be reminded of its limits. Namely, that campaign finance reform addresses campaigns, which, while significant, consume only so much political effort and time. Even at the hypothetically most stringent, campaign finance reform could only fix election speech. A publicly funded election does not address the manufacturing of consent; it only subverts a particular form of access to representatives—it does nothing to subvert their access to the political system or the population at large.

Lessig’s imagined election funding regime would not restrict the speech of the rich. It is not a gag order for corporations speaking their metonymic minds. Even if the corporate person were subjugated and made a sub-person without speech rights, its constituent employees and executives certainly could still speak. They could even speak about matters of politics and policy instead of about particular candidates. Thus they could create demand for their policies such that candidates would have to dance to the tune they call. If a corporation addresses its ideological cant to the population at large, ala Reagan for General Electric Theater, as opposed to the representative in the backroom, would this gall Noam Chomsky any less?

Keep in mind that, although lobbyists have power by virtue of their ability to direct representatives toward donors, their power would only be somewhat diminished by a publicly funded election. After all, the lobbyist is nearly always the person with drafts of legislation for the representative’s staff, which, even with the time freed up by not having to solicit donations, will still not be expert on the complexities of legislation or regulation. All the regulated industries still have to interact with their regulators every day, and representatives will still turn to the well-funded experts who grow like mycelium in the shadow of the Capitol.

In other words, although the ideal, publicly funded, corporate-neutered election may cure the representative of the taint of “systemic corruption,” money still moves, talks, walks, whatever. And even if we hold, white-knuckled, to the literal truth that money is not speech, we must even then admit that money can pay someone to speak.



Despite the sloganeering that money is not speech, we have to realize that money’s fungibility means that it becomes speech. This poses a problem for a certain kind of old-school, American lefty who lionizes the rights of the liberal tradition as they try to hold two thoughts in their head without getting a migraine. First, freedom of speech, especially on political matters is absolutely sacrosanct; yet money, which can and does become speech, must be neutralized with respect to political campaigns. To a campaign finance reformer, speech must go untouched and yet speech (albeit nascent) must be curtailed.

If consistency of beliefs is an actual value—if it allows us to see where we fail in the face of our commitments—then something must give in positions like Lessig’s. To the truest of those on the left, to bother considering campaign finance is to simply ignore the root problem, capital. It is the puppeteer. And to try to bother to silence the 1% in one particular part of politics is to ignore the patient grinding of capital in all other political conversations. The right, more than content with inequality, can easily be consistent and allow money to shore up that inequality. The semi-left, however (and for lack of a more accurate term), if it is not going to address capital, has to admit that it is going to try to control the content of speech, especially political speech. The campaign finance reformer, espousing something like a populism, attempts to control a specific form of money, which is an unworthy stutter-step.

Yet, it is helpful to consider why the half measure of campaign finance is attractive or why anyone would attempt to regulate speech, even if only to equalize the loudness of their voice, as is the goal of the publicly funded election. We know that campaign finance reform cannot be cast as a victory against the rich. After all, under such a regime the rich still have outsized voices in all other arenas. So what instead motivates the problem that such a regime solves? Another way of asking this question, I think, is to ask when the average voter (to say nothing of the well informed voter) is disgusted at elections, at what are they disgusted? This is the disgust that motivates the desire to reform, and this desire to reform finds an easy enemy in money and a hero in Lessigian reformers. So what do we hate about elections that makes us think money is a problem?

I venture that the thing that makes supporters of campaign finance hate elections is the same thing that makes well-mannered, orderly people long for disinterested decision-making. It’s what makes them love science, vote for the calm of Obama, and espouse a spineless, data-loving pragmatism ala Ezra Klein. It is that the political conflict over resources, waged in lies and half truths, is revolting. The jockeying for a House seat, even for one’s own district, is repugnant to the educated observer. Elections are filled with distasteful hyperbole, awful jingoism, and thin, intellectually dishonest advertisements. Add to this mix that super PACs now only increase the extent and volume of all the rancid, focus-grouped, buzzword-intoning and it is not entirely surprising that we want to control campaign finance. Just turn down the volume down. Please!

I would venture that it is not the fact of money’s ability to become speech that upsets; it is that we all despise election seasons and simply want to make them palatable by transforming them into intellectually viable, disinterested discussions. But could that even happen, even under their most stringent campaign finance controls?


First, we need to note that what is true of the legislator discussed above is true of the voter: a priori, political decisions like votes are not disinterested—they cannot be data-driven. The voter cannot even be reliably driven by self-interest. Once again, the political decision is not about a fact; it is a moral decision, and is a matter of interests, values, and principles. Distasteful, unnerving conflict is inevitable.

To wit, there is at least one kind of election in this country that has had completely regulated speech: elections to form unions. These are some of the few electoral institutions in the country in which the law puts absolute controls on free speech, and labor case law’s ideal form of an election is laid out in a case called General Shoe. The ideal is an election under “laboratory conditions,” in which only actual facts can be presented to the employees by both the union and the employer. There are controls on the locations of speech, and on whether the employer or union have rights of response to each other. (How’s that for disinterested objectivity?) And even in spite of the fact that controls on these elections have been systemically eroded over the years, if a lawful union election goes off without a hitch, there is no data to show whether there was justice in the formation of a union or not.

Second, there is a question whether the publicly funded election could even minimize the sensitive observer’s disgust at elections. Because whatever candidate has sufficient signatures can secure public funds, we can imagine the cacophony of the publicly funded election. One could ask, when there is an equality of volume between disputants, is there usually reasoned discussion? Or does it resemble a 4chan message board? To give the devil its due, while funding gives outsized power to some, it also can, at times, effectively winnow away the genuine fringe elements, which, under a publicly funded regime, have to be given their repugnant hearing.



Tom Scocca’s essay “On Smarm” was a helpful diagnosis of the posturing of the elite toward the actual political struggle over resources. The smarmy will obsess over the style, form, dignity of conversation rather than ever admit to or give actual attention to the actual struggle inherent in the discussion: “The evasion of disputes is a defining tactic of smarm. Smarm, whether political or literary, insists that the audience accept the priors it has been given. Debate begins where the important parts of the debate have ended.” Thus when the campaign finance reformer decries the loss of legitimacy and promises the return of legitimacy, he’s fetishizing conversation and not its content.

Legitimacy is not a good in and of itself; it only refers to the deference of people to their government’s authority. So while the increase in “legitimacy” sounds ideal, its effect—deference to authority—is less appealing. And one could wonder whether legitimacy is actually lost in any effective, politically “real” way as opposed to simply to the eyes of the campaign finance reformers. While the government is unpopular and the people’s interest in voting is either low or occasionally stifled by regulation (i.e. voter ID laws) it would seem as though the populace of the United States remains relatively law-abiding and deferential to the government’s decrees. Those elements that claim that the Federal government (and nearly never that of the states) is illegitimate are located on the fringe. And one would be justified in wondering whether electoral reform would actually curb the fulminations of Texan or Alaskan secessionists in their complaints against the Federal government. The assumption of the campaign finance reformer is that the general populace is as exercised by the outsized voice of the rich; it might be safer to suppose that the general population agrees with the intercessions of the rich. After all, it seems that the rich share many of the same cultural beliefs and loyalties.

The advocacy of campaign finance reform does not have to be a smarmy act. But while inconsistency within one’s beliefs is not smarm, it could very well be its precondition. It is, to an extent, for the earnest few, an attempt to hold many thoughts in one’s head at the same time. They want their politics as aesthetically pleasant, as scientific as possible, and their rights discourse blithe. The likely, necessary, ugly, and brutal fight to make the haves give up their outsized portions can presumably be accomplished through a quieter conversation enforced by law.

Gerard Leone (MAPH ’10) is a law student and bureaucrat-in-training in Philadelphia, PA. He studied Wittgensteinian rule-following and now studies the administrative rule-following of regulated entities. 

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