Since the founding of our nation, political defeat has been a catalyst for innovation. Federalist triumphs in 1796 and 1798 prompted the Jeffersonian opposition to develop the first party organization. The collapse of the Whig party, morally ambivalent on the issue of slavery, in the early 1850s gave rise to the Republican party’s staunch support of “free soil.” Thanks in part to the defeat of the Cox-Roosevelt ticket in 1920, Franklin Roosevelt learned how to sell progressivism to the nation at large, preparing the way for his landslide presidential victory in 1932. The collapse of the Nixon administration, with the president’s resignation in August 1974, freed the Republican party to embrace Ronald Reagan.
Today, in the wake of two defeats in presidential elections, conservatives are hard at work trying to reinvent themselves. There seems to be a collective acknowledgment on the right that something had gone wrong by 2008, that the electoral rebuke suffered that year (and affirmed in 2012) meant that change was needed. But what sort of change?
The most promising answer is “reform conservatism,” a term that broadly captures the agenda of the right’s best thinkers. Conservatism, these intellectuals argue, must look beyond typical GOP policies like tax reduction. The right is a victim of its own success on taxes: Rates have been cut so many times that voters are no longer as concerned about the issue. So conservatives should emphasize sound policy on education, entitlements, regulation, and energy, along with taxes. The animating impulse is not so much to increase or decrease the scope of the federal government, but to modify the way the government accomplishes its goals. In too many instances, ill-conceived, outdated, and otherwise bad laws keep the nation from flourishing.
There is much to like about this agenda, yet it is incomplete. Reform conservatism should also concern itself with political corruption, the systematic tendency of the government to favor narrow factions of society over the public good.
For at least three reasons, an anticorruption agenda should be integral to reform conservatism. First, reform conservatism is self-consciously oriented to the middle class, and political corruption works against the interests of the middle class. Usually the product of connections between interests and politicians, it favors the well-connected. The typical insurance agent, bakery owner, or office manager lacks such contacts.
Second, an anticorruption agenda challenges the liberal belief that ever more government is good for the middle class. The left wishes to cast itself as defender of middle America and conservatives as champions of the elite. A full-throated attack on cronyism in the distribution of public favors would help conservatives fend off this accusation. If the public understands that activist government is the instrument of the wealthy and connected, reform conservatives will be less susceptible to the charge of elitism. As Reagan said in his first Inaugural Address, “Government is not the solution to the problem; government is the problem.” An anticorruption agenda could convince people of the wisdom of Reagan’s position, making them more amenable to conservative solutions in other areas.
Finally, reform conservatives must admit the connection between policies needing reform and the process that created them. Too often, bad public policy is directly traceable to corrupt practices. Reform conservatives cannot hope to achieve their goals unless the system is capable of producing public-spirited results. Right now, that condition does not hold. Improving the policy process is thus a necessary precondition to enacting the conservative reform agenda.
To this, some may object: Railing against corruption works on the stump, but it hardly belongs in a serious reform agenda. Corruption is a legal matter, not a political one. Leave it to the prosecutors, judges, and juries.
This view is far too narrow. Over a century ago, George Washington Plunkitt—a boss of New York’s corrupt Tammany Hall machine—helpfully distinguished between “dishonest graft” and “honest graft.” Dishonest graft, he said, was “blackmailin’ gamblers, saloonkeepers, disorderly people, etc.” He claimed that Tammany preferred another way:
There’s an honest graft, and I’m an example of how it works. I might sum up the whole thing by sayin’: “I seen my opportunities and I took ’em.”
Just let me explain by examples. My party’s in power in the city, and it’s goin’ to undertake a lot of public improvements. Well, I’m tipped off, say, that they’re going to lay out a new park at a certain place.
I see my opportunity and I take it. I go to that place and I buy up all the land I can in the neighborhood. Then the board of this or that makes its plan public, and there is a rush to get my land, which nobody cared particular for before.
Plunkitt is defending the indefensible, but the distinction he draws is illustrative. Bribery, extortion, kickbacks are bad and illegal, and prosecutors should go after them. But there is another form of corruption, an “honest” kind. Politicians see an opportunity to use their public authority to favor some private interest—be it the lobby for some commercial group, a wealthy donor, maybe themselves—and they take it. Often, no law is broken, but the public trust is nevertheless violated.
James Madison understood corruption from this perspective—as including but not limited to illegal and venal activity. In Federalist 10 Madison warned about the threat of factions, or “a number of citizens . . . united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.” As a young legislator in the 1780s, under the Articles of Confederation, he saw unchecked factionalism nearly tear the country to pieces, creditor against debtor, farmer against merchant, revolutionary against loyalist, state against state. Just a few short years after the nation had freed itself from British colonialism, it was destroying itself. Hence the evocative phrase that opens the famous tenth Federalist Paper: the violence of faction.
Prior theorists had advocated virtue as the tonic for factionalism: Educate the people about their self-interest, rightly understood, and you can sustain a republic. Others thought a small republic, with homogeneous interests, could keep factionalism to a minimum. Madison rejected these alternatives. He argued instead that selfish interests can eventually yield public-spirited policy provided the government is properly designed. Per Madison, “ambition must be made to counteract ambition.” In his view, a republican government allows a vast array of factions into the political sphere, then forces them to deal with one another through carefully designed institutions. The eventual compromises will be in the public interest, even if all of the participants are out for themselves.
That is the theory, at any rate. In practice, we have fallen short of this ideal. Yet Madison was not wrong. The problem is that we have failed to follow in his footsteps. We have not taken care to maintain the carefully balanced design that he sought. And as a result, public policy has tilted inexorably toward “honest graft.”
The Constitution cannot be understood as holy writ. Rather, it is a compromise hammered out at the Constitutional Convention, convened after the existing governing authority had proved unworkable. The status quo could not stand, but what to do next? Delegates disagreed on many points. Two important disputes arose over how powerful the new government should be and how dependent on local interests.
One group, led by Madison, Alexander Hamilton, and George Washington, wanted a powerful government mostly immune from parochial concerns. Apart from a popularly elected House of Representatives, Madison’s original proposal, the Virginia Plan, envisioned a government distant from the localities. The Senate was to be selected by the House, the president by both chambers; the Congress would have veto authority over state laws; and a Council of Revision would monitor federal laws. Meanwhile, the Congress would have wide discretion to legislate “in all cases to which the separate States are incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual Legislation.”
Opponents rallied to a proposal from William Paterson of New Jersey, which called for slight alterations to the Articles of Confederation, with its limited central power and parochial orientation. Under the New Jersey Plan, the Continental Congress would acquire the power to tax, and an executive council would provide direction to public policy.
The Constitution occupies a middle ground between these views. After months of debate, delegates decided that the government should have more power than Paterson proposed but less than Madison. And it would depend more on local perspectives than Madison envisaged, but less than Paterson. This was not a mere splitting of differences. Rather, the Framers sensibly blended divergent views. They took care that the government they were designing could actually function.
It was a remarkable compromise for the America of 1787, a people skeptical of centralized power and fearful of creeping monarchism, yet in desperate need of a central authority that could deal with urgent problems. The Constitution gave the government enough power to meet crises, but not so much as to overwhelm states and localities. It also distanced the new government from popular sentiment, but without cutting it off entirely.
Over the ensuing two centuries and more, the American population grew—from 4 million in 1790 to 317 million in 2014—and society changed, straining the original compromise and gradually forcing an effective revision of the governing charter. New problems emerged, and repeatedly the public decided that the power of the federal government had to grow to deal with new threats. And grow it did.
Today, Washington has achieved the scope the central government had in the Virginia Plan. To all intents and purposes, Washington can legislate as it sees fit. Rarely does the Supreme Court remind the government of any constitutional limit.
Yet the country never substantially revised the institutions that channel government’s ever-expanding powers. We have tinkered at the margins, tweaking the Electoral College, mandating direct election of senators, and expanding the franchise. Still, for all the growth in federal authority, the basic institutions remain largely as they were when the Constitution went into effect in 1789.
From the Madisonian perspective, this is a problem. If our institutions require a particular design in order to “break and control the violence of faction” and serve the common good, then it is imprudent to give greatly expanded power to institutions intended to do much less. But that is exactly what we have done, and we have done it in a decidedly ad hoc manner, even if the trajectory is always upward. A crisis arises, voters elect a governing class that expands power to deal with the challenge, and the expansion is retained even after the danger has passed.
This haphazard process has left us with institutions that are far too closely tied to local interests and factions to permit the wise exercise of national authority. Perhaps not surprisingly, our 18th-century institutions wield their 21st-century powers irresponsibly. Lacking adequate checks and balances, they regularly tilt public policy to benefit narrow interests. Madison called it the violence of faction. I call it corruption.
Congress is the subject of the first and longest article of the Constitution. The Framers spent much time determining what powers it should possess and how to optimize its design. Though our system separates powers, the essential power of government—to make laws—belongs primarily to Congress.
The national legislature is also the institution from which corruption is most likely to spring. Its members do not answer to the nation as a whole but to local constituencies, with local perspectives and local demands. There is not a single member of Congress whose electoral fortunes depend on the preferences of the whole nation.
This means that Congress has an institutional tendency to view national problems as the sum of the problems of 435 House districts and 50 states. It tends to see national solutions as those supported by 218 House members and 51 senators.
Compounding the parochial design of the legislature is the committee system. Dividing authority among committees and giving them extra power to shape legislation in their policy domains makes influence-peddling easier. Interest groups do not have to donate to 535 legislators, but can concentrate their attentions on the 50 or so with greatest authority over their niche issue, or even the dozen or so most powerful within this subset. This favors well-funded interest groups that can target their campaign cash and lobbying. Congress inevitably tends to favor pressure groups that work the committee system.
The legislative power has expanded most in three areas not prominently considered by the Founders: the promotion of economic development, the regulation of the economy, and the provision of social welfare benefits. For Congress, developing the national economy has long meant pork barrel politics. Members love to send money back to the district for improvements to rivers and harbors, for roads, railroads, airports, and so on. They want defense spending similarly distributed. The tax code is another place where Congress, in the name of economic growth, favors special interests. In the 19th century the tariff was the main means of rewarding big-spending benefactors; today the corporate income tax code is preferred. And on top of this, a vast array of corporate welfare programs, like the Export-Import Bank, pay off various groups.
Regulation is usually the province of the executive agencies, but Congress oversees them. Studies have found that donating to and lobbying members of Congress can put pressure on bureaucrats to leave privileged firms alone. And Congress writes the enabling legislation in the first place, which can also favor special interests. In the early 1990s, Fannie Mae lobbied heavily to ensure Congress gave it a weak regulator, and it continued to ply the legislature with money to keep legislative reforms at bay.
The government often provides social welfare through private entities. The minimum wage, for instance, is a federal benefit delivered through employers. Medicare and now Obamacare work through doctors, hospitals, nurses, and insurers. Not only do the beneficiaries organize to protect and expand their benefits, but the providers lobby as well. Medicare is riddled with waste, fraud, and abuse—yet Congress is incapable of doing anything about it, so aggressively and successfully are its members lobbied to take a hands-off approach.
To be sure, there are many things the federal government does quite well. The more closely one examines its operations, however, the more corrupt its practices seem. This is not a matter of outright bribery or theft, “dishonest graft.” Instead, federal policy exhibits a systematic bias toward interested, well-positioned factions that can drive policy toward their own ends rather than the common interest. It happens often enough to be a serious problem. And the fault rests principally with Congress.
Reforming our legislature would begin with recognizing that previous attempts to fix it have mostly failed. During the Progressive Era it was hoped that the direct election of senators would clean up Congress. While it did erode the power of state bosses, it created its own troubles. Progressives also thought that shifting authority to professional bureaucrats could help overcome legislative irresponsibility, but that proved hard to achieve in practice. Woodrow Wilson believed that a president could use his unique stature to force Congress to behave. But it turned out that presidential influence with Congress is only as great as the number of partisan allies the commander in chief has there.
Reformers must be realistic in their aims. Members of Congress may not be able to handle power responsibly, but neither are they going to give it up. Indeed, one of the premises of the new reform conservatism is an acknowledgment that the federal government has a legitimate and potentially beneficial role to play in economic development, health care, education, and so on. Similarly, the federal government is not going to be revolutionized, if only because constitutional amendments must pass Congress with overwhelming majorities. The failed attempt to pass term limits in the mid-1990s is instructive: Members of Congress won’t accept radical changes to their workplace, even those that are politically popular.
This does not mean the cause is hopeless, only that reform conservatives need to adopt a Madisonian perspective. Recognizing that interest groups will be attracted to the political process as long as the government is powerful, they must ask: How can our institutions be altered so as to break the violence of faction? How can the rules of the game be adjusted so that selfish interests will combine to produce socially beneficial results?
One goal should be to make it harder for members of Congress to cut deals with special interests. Congressional misbehavior springs from an obvious conflict of interest: Factions with business before Congress donate to incumbents’ campaigns and spend resources to lobby them in the hope of securing favorable outcomes. A federal judge would be tossed from the bench for taking money from a company with business before the court, but in Congress this is stand-ard operating procedure. Since it is unlikely that reformers will ever root this practice out entirely, they should focus on the most powerful members of Congress: Committee and subcommittee chairs should be required to obey stricter rules concerning conflicts of interest. They should not be allowed to accept money from interest groups with business before their committees. And if they have substantial personal assets, these should be placed in blind trusts so members cannot personally profit from their official acts. Party leaders should have to obey similar restrictions.
Conservative reformers should also go after the revolving door. A former member of Congress with a big Rolodex is better able than others to tilt policy in the direction of his employers, regardless of the public interest. This is why tighter restrictions should be enacted. Law professor and commentator Glenn Reynolds has proposed a 50-75 percent surtax on the difference between a former member’s government salary and his post-government earnings. That is a great idea. In addition, the temporary lobbying ban on former members of Congress, now two years, should be extended and its loopholes closed.
Conservatives also need to be realistic about congressional staff. Given the highly technical work that senior legislative staffers perform, they are grossly underpaid compared with their private counterparts. This is a problem. Interest groups effectively subsidize congressional work by offering staffers lucrative salaries after they leave government, a relatively cheap way to make sure staffers are friendly to the heaviest hitters. The most skilled staffers should be paid appropriately and be subject to a version of Reynolds’s revolving-door tax, depending on what sort of work they do after leaving public service.
Similarly, Congress should increase the size of staffs—perhaps substantially. Political scientists have found that lobbying is effective because members of Congress are desperate for information about the policy and political effects of bills they are considering. Yet members have limited resources at their disposal, while lobbyists are ever eager to provide crucial information. The problem is that they do so in a way that is partial to their employers’ interests. Larger professional staffs who could answer questions in a timely manner for members of Congress would make lobbyists less valuable.
Beefing up the legislative bureaucracy might seem counterintuitive to conservatives, who typically want to spend less money on government, especially bureaucracy. But conservative complaints usually have to do with the executive bureaucracy, a sprawling, massive complex. The legislative bureaucracy is much smaller. Given the virtually unlimited scope of congressional power, it is too small.
Another area for reform is party organization. At present, the Republican party is ill-equipped to translate grassroots sentiment into political influence. How could conservative reformers revitalize local and state party organizations? Once again, Madison is instructive. After the Federalist triumphs in the elections of 1796 and 1798, Anti-Federalists Madison and Jefferson worked to develop party organizations in the states that would decide the presidential election of 1800. Their theory was that the Federalists had the support of a minority of the population, but that the vast majority—their natural allies—needed to be actively encouraged.
Today, both parties pour enormous resources into get-out-the-vote efforts, but other party functions are in wretched shape. A century ago, progressive reformers believed that the old system for selecting nominees—the (often mythical) “smoke-filled room”—was broken, and they proffered primary elections as the way to attract better candidates. This innovation has failed utterly. Primary elections are usually dull, drab, low-turnout affairs that do nothing to incentivize incumbents to cultivate the public interest. Occasionally, a high-profile member like Eric Cantor loses a primary to an upstart like Dave Brat, but such upsets are rare exceptions to an otherwise ironclad rule of incumbent advantage.
This is a problem. Conservatives shouldn’t have to choose between a bad Republican incumbent and a Democratic challenger. Primaries, moreover, are under-exploiting the greatest resource the Republican party possesses: its broad base of public-spirited conservative voters, donors, and activists across the United States. They care deeply about politics, not for personal advantage, but out of concern for the country. In theory, their collective power could be brought to bear on Republicans who talk a good game on the stump, but once in power facilitate cronyism and corruption. For that to happen, the primary system would have to be largely abandoned and replaced.
Reforming the nomination process has received little attention from conservative thinkers over the last generation. In the pages of National Affairs, Jeffrey Anderson and I proposed a truly republican process for the presidential nomination—one that would revitalize the old party conventions, while still making use of caucuses and primaries, to balance the various forces in the party more equitably. The idea could also be applied on the congressional level, though more work needs to be done to sell and implement it.
The question for conservative reformers is how the nomination process could be made to enhance congressional oversight over the federal government. A party’s nomination is a trust given by the voters to a candidate. It should not be automatically renewed once a candidate serves a term in office. The progressives hoped that primary elections would guard against backroom deals, but primaries have turned out too often to be rubber stamps for those very machinations. Members from safely Republican districts should not be able to assume that they can go to Washington and curry favor with interest groups without fear of rebuke. The nomination process needs somehow to be made to serve as a check on congressional misbehavior.
These proposals cannot eliminate corruption. As we have seen, it is embedded in our institutions of government. It springs from an unbalancing of the Madisonian scales. By increasing the power of government without revising our institutions, we have undermined government’s capacity to break and control the violence of faction.
The reforms suggested here are inadequate to rebalance the system. Even if all were adopted, Congress would remain fundamentally incompetent, producing public policy in an irresponsible, factional, and corrupt manner. These suggestions are meant as a beginning—another beginning. Almost since the day our government was inaugurated, reformers have wanted to improve it. The Jeffersonians, the Jacksonians, the Liberal Republicans, the Mugwumps, the populists, the progressives—their ideas ranged from wise to foolish. Yet all sought to make government function better.
The reformist impulse seems to have faded in recent years. People complain loudly about government, sounding more cynical than zealous. We get the condescending snark of The Daily Showrather than the serious work of figuring out what is wrong with the system and devising improvements.
This is a cause that reform conservatism should embrace. Education, energy, tax, and health care policies all need fixing, but so do the institutions of government itself. Factionalism, as Madison said, is sown into the very nature of man. It cannot be stopped—but it can be tempered. It is time for conservatives to take up that noble cause.
Jay Cost is a staff writer at The Weekly Standard. His new book is A Republic No More: Big Government and the Rise of American Political Corruption.
© 2015 Weekly Standard LLC. Reprinted with permission.