the Supreme Court reflects the “degeneracy of the times”

In 1870, Linus Child of Boston, MA hired an attorney to lobby Congress for personal financial relief and promised to pay the attorney one quarter of the value of the award if it came to pass. The attorney was successful, but Child died and his son refused to pay. The Supreme Court ruled in the son’s favor on the ground that the original agreement–“for the sale of the influence and exertions of the lobby agent to bring about the passage of a law for the payment of a private claim, without reference to its merits”–was null and void. The Court cited Roman law: “a promise made to effect a base purpose, as to commit homicide or sacrilege, is not binding.” Likewise, to hire a lobbyist to pursue legislation for money would be “illegal and void because it is contrary to a … sound policy and good morals.”

The Court was eloquent about why lobbying was so immoral as to merit comparison to homicide or sacrilege in Roman law:

The foundation of a republic is the virtue of its citizens. They are at once sovereigns and subjects. As the foundation is undermined, the structure is weakened. When it is destroyed, the fabric must fall. Such is the voice of universal history. The theory of our government is that all public stations are trusts, and that those clothed with them are to be animated in the discharge of their duties solely by considerations of right, justice, and the public good. They are never to descend to a lower plane. But there is a correlative duty resting upon the citizen. In his intercourse with those in authority, whether executive or legislative, touching the performance of their functions, he is bound to exhibit truth, frankness, and integrity. Any departure from the line of rectitude in such cases is not only bad in morals, but involves a public wrong. No people can have any higher public interest, except the preservation of their liberties, than integrity in the administration of their government in all its departments.

The agreement in the present case was for the sale of the influence and exertions of the lobby agent to bring about the passage of a law for the payment of a private claim, without reference to its merits, by means which, if not corrupt, were illegitimate, and considered in connection with the pecuniary interest of the agent at stake, contrary to the plainest principles of public policy. No one has a right in such circumstances to put himself in a position of temptation to do what is regarded as so pernicious in its character. The law forbids the inchoate step, and puts the seal of its reprobation upon the undertaking.

If any of the great corporations of the country were to hire adventurers who make market of themselves in this way, to procure the passage of a general law with a view to the promotion of their private interests, the moral sense of every right-minded man would instinctively denounce the employer and employed as steeped in corruption and the employment as infamous.

If the instances were numerous, open, and tolerated, they would be regarded as measuring the decay of the public morals and the degeneracy of the times. No prophetic spirit would be needed to foretell the consequences near at hand.

In 2013, despite very weak disclosure laws, we know that $3.24 billion was spent to influence the federal government, and 12,353 people registered as federal lobbyists. The Court that decided Trist v Child would conclude that our public morals have decayed to the point that we no longer deserve the name “republic.”

Contrast the majority opinion in Citizens United v. FEC (2010), which views corporate donations to favored candidates as protected speech and doesn’t even hint at the threat to “public morals”:

Because speech is an essential mechanism of democracy—it is the means to hold officials accountable to the people—political speech must prevail against laws that would suppress it by design or inadvertence. Laws burdening such speech are subject to strict scrutiny, which requires the Government to prove that the restriction “furthers a compelling interest and is narrowly tailored to achieve that interest.” … Premised on mistrust of governmental power, the First Amendment stands against attempts to disfavor certain subjects or viewpoints or to distinguish among different speakers, which may be a means to control content. … There is no basis for the proposition that, in the political speech context, the Government may impose restrictions on certain disfavored speakers. Both history and logic lead to this conclusion.

I came upon Trist v Child in David Cole’s review of Zephyr Teachout’s new book on corruption. I agree with Cole that lobbying and campaign finance raise First Amendment as well as anti-corruption concerns. It would be possible to over-regulate money in politics and thereby violate individual rights. I would not endorse the Court’s ruling in Trist that made lobbying illegal: individuals should be able to petition Congress. I was a registered federal lobbyist in 1991-3. I lobbied on behalf of Common Cause and believed that our goals were patriotic and idealistic, but Common Cause is a corporation, and it paid my salary. Thus I do not favor a ban on money in politics or a blanket law against political speech by corporations.

But we used to have a social norm that it was basically ignoble in a republic to hire someone to lobby or to influence the government for money, especially if cash were the primary motive for the petitioner or his agent. That social norm has decayed in popular opinion and vanished in jurisprudence. As I write in We Are the Ones We Have Been Waiting For (p. 115)

The Court [in Citizens United] meant that it was entirely appropriate for corporations to exercise power in their own interests by spending money to influence elections. This decision capped a century-long process in which special interests became “civil society,” Madison’s factions became “constituencies” or “stakeholders,” propaganda became “public relations” and “communications,” corporate pressure became “government relations,” and lobbying morphed from a disreputable matter of hanging around hotel lobbies and button-holing politicians into a white-collar profession.

However we reform the laws that govern money in politics, we must also recover the moral intuitions that the Court found self-evident in 1874. People who seek money to influence Congress, regardless of the merits of the case, are “adventurers” abhorrent to the “moral sense of every right-minded man,” “steeped in corruption,” whose proliferation would mark “the decay of the public morals and the degeneracy of the times.”

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About Peter

Associate Dean for Research and the Lincoln Filene Professor of Citizenship and Public Affairs at Tufts University's Tisch College of Civic Life. Concerned about civic education, civic engagement, and democratic reform in the United States and elsewhere.