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Republic, Lost_ How Money Corrupts Congress--And a Plan to Stop It - Lawrence Lessig [57]

By Root 928 0
ideal of enlightened self-interest in governing was, in a word, naive.5

Yet the Constitution had a fallback.6 Whatever the “public good” was, the House of Representatives (and after the Seventeenth Amendment, so, too, the Senate) was intended to have a specific dependency. As the Federalist Papers put it—oddly, because in this context, dependent is used in a positive sense, while in practically every other instance, the Federalist Papers use dependent and its cognates in a negative sense—that means a Congress “dependent upon the People alone.”7 Dependent— meaning answerable to, relying upon, controlled by. Alone— meaning dependent upon nothing or no one else.

So in a single line, in a way that frames the core of my claim that ours is a corrupt Congress, the Framers gave us a “republic”; to them, a republic was to be a “representative democracy”; a “representative democracy” was to be “dependent upon the People alone”; a representative democracy that developed a competing dependency, conflicting with the dependency upon the people, would be “corrupt.”

That was their aim, as it sets the appropriate constitutional baseline.8 To secure their aim, they then erected constitutional mechanisms to ensure this dependency. These mechanisms did two things: they weakened the likelihood of other dependencies, and they strengthened the force of the dependency upon the people.

Consider each in turn.

1. The Framers weakened the possibility of competing dependencies by expressly blocking other corrupting ties.

The Ineligibility Clause (Article I, §6, cl. 2)—which Virginia’s George Mason called “the corner-stone on which our liberties depend”9—made it impossible for the president to make members of Congress dependent upon him, by appointing them to civil office while also serving in the legislature, or by appointing them to offices that had been created (or the pay increased) during their tenure in Congress. New Jersey had a similar clause in its constitution, which tied the constitutional device expressly to a concern about “corruption”:

“That the legislative department of this government may, as much as possible, be preserved from all suspicion of corruption, none of the Judges of the Supreme or other Courts, Sheriffs, or any other person or persons possessed of any post of profit under the government… shall be entitled to a seat in the Assembly: but that, on his being elected, and taking his seat, his office or post shall be considered as vacant.”10

The Origination Clause (Article I, §7, cl. 1) expressly placed the power of the purse in the legislature, thereby weakening the opportunity of the executive to use federal spending to make legislators dependent upon him.11

The Emoluments Clause (Article I, §6, cl. 2) weakened the opportunity of any “King, Prince, or foreign State” to make any member or officer of the United States dependent upon it, by banning gifts from such entities without the permission of Congress.

In all these cases, as Zephyr Teachout describes, the Framers were “drawing on the experience of England, where ‘the [voters] are so corrupted by the representatives, and the representatives so corrupted by the Crown,’… to avoid financial dependency of one branch upon another.”12 Constitutional structure was deployed to avoid corrupting dependencies.

2. The Framers also crafted devices to strengthen the force of Congress’s dependency upon the people.

Requiring elections every two years for the House was explicitly understood to bind the House tightly to the people. (Federalist No. 57: “the House of Representatives is so constituted as to support in the members an habitual recollection of their dependence on the people.”)

The First Amendment’s requirement that Congress listen to petitions “for a redress of grievances,” meant Congress wasn’t free to ignore the people, even after being bound.

When the Framers recognized a part of Congress that was too far from “the People’s” control, it weakened it. The delegates to the convention believed the Senate was more prone to corruption

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