16 Pages Posted: 27 Mar 2015 Last revised: 13 Nov 2015
Date Written: May 13, 2015
In the aftermath of the indictment of New York state assembly speaker Sheldon Silver on corruption charges, law professor (and recent reformist gubernatorial candidate) Zephyr Teachout published an op-ed in the New York Times entitled “Legalized Bribery.” In it, she argued that campaign contributions are a “gateway drug” to bribes and that politicians are “pre-corrupted” by taking campaign contributions and doing favors for contributors. She wants campaign finance limits, public financing, and limits on outside income for legislators. Although Teachout used powerful rhetoric, and suggested worthy reforms, I see her as offering an empirical hypothesis about the relationship between campaign contributions and bribery: the easier it is to take campaign contributions, and the higher the contribution limits, the more politicians are primed to be bribed and therefore the more public corruption cases will emerge.
But if campaign contributions lead to corruption, why do we not see more corruption in Congress? After all, members of Congress may take up to $5,400 each election; they also may set up leadership PACs to take more money often used to benefit themselves, and now they can help Super PACs raise money. Further, prosecutors and the media have great incentives to uncover public corruption of our national legislature. Yet we see much more public corruption prosecuted on the state and local level than in Congress. New York legislators, for example, are 7 times more likely to be convicted of corruption-related offenses than members of Congress. Further, public corruption prosecution rates vary significantly from state to state, in ways which seems uncorrelated with campaign finance laws. The preliminary evidence does not support the Teachout hypothesis.
In this short Essay written for a symposium in the Fordham Law Review, I explore three possible explanations for relatively low rates of bribery and corruption in Congress compared to many states. I then make suggestions for reform based upon these explanations. First, the presence of muckracking media, widely consumed by the relevant public, deters corruption. Second, thanks to gridlock, complex rules, and committee structures, members of Congress may have less influence to sell than state and local officials, and therefore there is less demand by corrupt persons and entities to bribe them. Finally, part time legislators may have greater incentive to act corruptly than full time legislators because of a need for additional money to supplement their incomes.
In the end, the preliminary evidence supports only the first argument, that media attention is the best deterrent to corruption and explains both the relative lack of corruption in Congress and variation among the states. Based upon my preliminary analysis, I suggest we deal with public corruption primarily through subsidies of investigative journalism on the state level (the “ProPublica” model) and through appropriate law enforcement. The campaign finance problem is separate, and requires its own solutions.
Keywords: corruption, campaign finance, bribery, First Amendment
Suggested Citation: Suggested Citation
Hasen, Richard L., Why Isn’t Congress More Corrupt? A Preliminary Inquiry (May 13, 2015). Fordham Law Review, Vol. 84, No. 2, 2015, pp.101-115; UC Irvine School of Law Research Paper No. 2015-30. Available at SSRN: https://ssrn.com/abstract=2585260