the Supreme Court reflects the “degeneracy of the times”

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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.”

the Left between Obama and Hillary Clinton

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Let’s define “the Left” as thinkers and organizational leaders who are open to voting for Democratic candidates but generally critical of the party, holding more radical policy objectives than elected Democrats do.

The Left has had plenty of reason to criticize the Obama Administration: the president does not fully share its the goals and priorities. I have tended to defend the administration, both because my objectives are closer to the President’s and also because I think he has consistently accomplished more than they have given him credit for. I detect a tendency to overestimate the importance of presidential rhetoric (Obama’s being relatively moderate) while overlooking concrete and tangible victories for poor people. (See, e.g., “Obama Cares. Look at the Numbers” by Tali Mendelberg and Bennett L Butler, August 21). But the president and his appointees have also at times given unnecessary offense to the Left; and the Left is entitled to be critical of an administration that is not actually Leftist.

Now the Obama Administration has just two years to run, and the overwhelming favorite to lead the Democratic Party is Hillary Clinton. She is her own person and should not be automatically equated with her husband. But I believe that both the Clinton presidency and Hillary Clinton’s own record in the Senate and the State Department suggest that she would stand at least somewhat to the right of Barack Obama. I have therefore always found Clinton nostalgia among members of the Left very strange and discomfiting. You can criticize the current president from the Left, but it seems completely mistaken to prefer his Democratic predecessors, Bill Clinton and Jimmy Carter.

Opinion is beginning to shift. For instance, from 2009 until a few months ago, Paul Krugman was generally a strong critic of the president. I yield to Krugman on all economic matters but argued (e.g., in the Huffington Post, 2010) that his political analysis was off. In any case, it interests me he seems to have revised his estimation. For instance,

One explanation may simply be that more data is in. It was unclear ca. 2010–and seemed unlikely–that the Obama Administration was advancing progressive policy goals, but now we can see that progress was made. In that case, Paul Krugman’s change of tone is the result of having more information. But it is also possible that Obama is looking more attractive now that we face the prospect of his successor.

Meanwhile, we are beginning to see signs that Hillary Clinton will tangle with the Left. According to the Amy Chozick in the New York Times, “Without discussing her 2016 plans, she has talked to friends and donors in business about how to tackle income inequality without alienating businesses or castigating the wealthy. That message would likely be less populist and more pro-growth, less about inversions and more about corporate tax reform, less about raising the minimum wage and more long-term job creation, said two people with firsthand knowledge of the discussions.”

Months ago, Ben White wrote in Politico:

“The darkest secret in the big money world of the Republican coastal elite is that the most palatable alternative to a nominee such as Sen. Ted Cruz of Texas or Sen. Rand Paul of Kentucky would be Clinton, a familiar face on Wall Street following her tenure as a New York senator with relatively moderate views on taxation and financial regulation.  … ‘If it turns out to be Jeb versus Hillary we would love that and either outcome would be fine,’ one top Republican-leaning Wall Street lawyer said over lunch in midtown Manhattan last week. ‘We could live with either one. Jeb versus Joe Biden would also be fine. It’s Rand Paul or Ted Cruz versus someone like Elizabeth Warren that would be everybody’s worst nightmare.’ … Most top GOP fundraisers and donors on Wall Street won’t say this kind of thing on the record for fear of heavy blowback from party officials, as well as supporters of Cruz and Rand Paul. Few want to acknowledge publicly that the Democratic front-runner fills them with less dread than some Republican 2016 hopefuls.  …

And the Left is beginning to get openly restive. According to Alexandra Jaffe in The Hill,  “'[A] Clinton presidency undos [sic] all our progress and returns the financial interests to even more prominence than they currently have,’ Melissa Byrne, an activist with the Occupy Wall Street movement, said in a November 2013 email.” The same article quotes the political consultant Mike Lux, who says, “I also came to know how close she was to the pro-Wall Street forces inside the administration and out, and the downsides on foreign policy are all very real. So I will hesitate for a long time before jumping into her campaign.”

How will the Left respond to the Clinton campaign, especially considering that she is very popular among voters who consider themselves progressive and is the first woman to have a serious shot at the presidency? How will the Left manage if four years of a conservative Democrat follow eight years of a moderate Democrat? And how will the Left describe and use the legacy of Barack Obama in years to come?

I am not interested in these questions because of the potential impact on two individuals, Hillary Clinton and Barack Obama. I am concerned about the condition of the Left as a countervailing force in American politics. The near future will be a difficult time.

California is using the C3 Social Studies Framework

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On Friday, California Governor Jerry Brown signed SB 897 into law.  The bill requires the Instructional Quality Commission (IQC), “upon the next revision of the history-social science framework and the state content standards, to consider whether and how to incorporate the College, Career, and Civic Life (C3) Framework for Social Studies State Standards.” California’s legislation follows similar recent developments in Illinois and other states.

As one author of the “C3,” I am biased in its favor. I believe that its relatively short and broad framework is an antidote to the miscellaneous and incoherent standards documents that most states have created. Social studies standards tend to accumulate, because state departments of education and legislatures have incentives to add any topic that someone considers important. If, for example, they fail to list 9/11 in their standards, they can be accused of not caring about 9/11. As a result, standards become unrealistically long and miscellaneous. There are bills currently pending in California to require the study of Hinduism and the importance of Barack Obama’s 2008 election. I have no particular objection to either topic but do object to this method of writing standards, one additional legal mandate at a time. Using the “C3” would permit a reset.

More important to me, personally, is the fourth (of four) “dimensions” in the C3 framework: “Communicating Conclusions and Taking Informed Action.” The ideal is for students to learn to be good citizens by actually working as citizens, even if that is only within their classrooms or online rather than in their communities. If communication and action become pillars of social studies education in major states, we may see significant changes in how students spend school time, what they learn, how they are assessed, how future teachers are prepared, and what materials and tools (such as software) are developed for the social studies market.

the case for standardized civics tests

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If you want to strengthen democracy and civil society by educating the next generation for citizenshipstates, should you require a civics test? As our interactive map shows, eight states have done so. (Florida’s test came online after the map was completed.)

I have always had mixed feelings about these standardized tests. They measure individual knowledge and academic skills, rather than distinctively civic skills, like deliberating with fellow citizens or addressing a real-world problem. They ignore current events in favor of historical knowledge, both because it’s political risky to test anything even potentially controversial and also because the long process of test-development precludes including timely information and issues. If teachers feel they must spend time preparing for a test, they could shortchange the very experiences that I value most, such as moderated and civil discussions of difficult current issues.

On the other hand, the test compels attention to civics. As I learned last week in Florida, the new 7th-grade test is even creating additional jobs for middle school civics teachers, with benefits for the state’s teacher education programs. Many districts are offering civics for the first time and need to hire. If those new teachers spend some of their time on genuinely valuable activities while also preparing students to pass a test of meaningful and significant knowledge, the net effect could be good.

Two recent articles support a positive view of civics tests.

First, John Saye and the Social Studies Inquiry Research Collaborative (SSIRC) examined the relationship between state civics tests and what they call “authentic pedagogy.” Their observers visited classrooms and noted whether, for example, …

Students study or work on a topic, problem or issue that the teacher and students see as connected to their experiences or actual contemporary or persistent public issues. Students recognize the connection between classroom knowledge and situations outside the classroom. They explore these connections in ways that create personal meaning and significance for the knowledge. This meaning and significance is strong enough to lead students to become involved in an effort to affect or influence a larger audience beyond their classroom in one of the following ways: by communicating knowledge to others (including within the school), advocating solutions to social problems, providing assistance to people, creating performances or products with utilitarian or aesthetic value.

They find that students who have more of these “authentic” civic experiences score better on state-mandated civics test, once other factors are also considered. That does not prove that adding a state test will encourage good teaching; teachers may mistakenly drill their classes on facts. It does show that teachers would be well advised to use “authentic” pedagogies if their students face a civics test.

Second, our friend David E. Campbell has reanalyzed data that CIRCLE collected in a 2012 survey. He finds that high-stakes civics tests boost students’ knowledge as we had chosen to measure it (on a six-item scale of matters that we considered consequential and valuable). The benefits appear greatest for students of color. For instance, the apparent effect of living in a state with a consequential civics exam on the civic knowledge of young African Americans is greater than the effect of their educational attainment.

These articles are tipping me in favor of standardized civics tests, although we must work hard to make sure the tests are good and teachers are supported and encouraged to use valuable techniques in their classrooms.

Sources: John Saye and the Social Studies Inquiry Research Collaborative (SSIRC), Authentic Pedagogy: Its Presence in Social Studies Classrooms and Relationship to Student Performance on State-Mandated Tests, Theory & Research in Social Education, Vol. 41, Iss. 1, 2013; David E. Campbell, Putting Civics to the Test: The Impact of State-Level Civics Assessments on Civic Knowledge, American Enterprise Institute, September 17, 2014.