F.H. Buckley on America's Anti-Corruption Covenant - Encounter Books

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F.H. Buckley on America’s Anti-Corruption Covenant

By Ben Weingarten | November 30, 2017

F.H. Buckley discussed his provocative new book, The Republic of Virtue, with our own Ben Weingarten. What follows is a full transcript of their discussion, slightly modified for clarity.

You can also listen to their interview in its entirety below. And to instantly receive Encounter Books Podcast interviews like these upon publication, be sure to subscribe.

Ben Weingarten: So, Frank, the name of this book is The Republic of Virtue, and the subtitle is “How We Tried to Ban Corruption, Failed, and What We Can Do About It.” It’s always useful in these sorts of conversations to define our terms. So, when you use “corruption” in context of our republic, what do you mean by that?

F.H. Buckley: The idea of corruption is that there exists a kind of public virtue or public interest, which leaves most everybody better off, which doesn’t exclude people where the game is tilted in favor of a class of aristocrats, for example. And so, “The Republic of Virtue,” or virtue in general, would be the corruption-free kind of government in which we have the public interest served that way.

Ben Weingarten: And early on in your book, and I’ll quote here, you write, “The old liberal-conservative ideological axis appears increasingly irrelevant as a corruption-virtue axis bids to take its place.” In some ways have we gone back? If you’re talking about a corruption-virtue axis, instead of talking about ideology, are we at a more base level in our republic in some sense today? And does that, in some way, explain kind of the Trump versus Hillary election to begin with?

F.H. Buckley: It certainly does. We are at a moment very much like where we were at the time of the [American] Revolution. The Revolution was fought over issues like British corruption. And when the Framers gave us our Constitution, they wanted to present us with a corruption-free kind of government. And yet, we ended up 230-odd years later with Hillary Clinton running for the Democratic Party, approximately the most corrupt politician you could imagine since, say, the days of Aaron Burr…She was a platonic form of corruption. It’s remarkable we got there.

Ben Weingarten: Obviously, there are subjective measurements, and political scientists try to put figures on absolute and relative corruption. Where does the U.S. stand today versus other developed countries in the world?

F.H. Buckley: Well, we’re not the poster child for a virtuous, corruption-free government, to put it mildly. And the interesting thing was, though, we started out with the idea that we were not going to be a corrupt country. Nevertheless, we aren’t doing all that well as far as that goes. And here, I’m not talking about Hillary Clinton. Here I’m talking about the ways in which, for example, the separation of powers has tended to make us a bit more corrupt. Our legal system has tended to make us a bit more corrupt. Our election law system has tended to make us a bit more corrupt, ostensibly trying to cure corruption. And so the message behind the book [The Republic of Virtue] was, “Let’s take a look at how we got here and what we could do, if anything, to fix it.”

When the Framers gave us our Constitution, they wanted to present us with a corruption-free kind of government. And yet, we ended up 230-odd years later with Hillary Clinton running for the Democratic Party.

Ben Weingarten: And before we go back to the start, when we look at today, you reference this term, this phrase, “Polemarchism in politics.” I think it’s a very apt description of where we are ethically. Explain that concept.

F.H. Buckley: Well, Polemarchus was a chap in The Republic, Plato. Socrates runs up against him and tries to get a definition of justice. And Polemarchus says, “Well, it’s doing good to your friends and evil to your enemies.” And it turns out, that’s not a particularly sophisticated idea of justice, but it increasingly describes politics in America today. You start by saying, “Who’s on our side?” And then, we’re going to look after him. And so, what happened was with all of the corruption, say, of Hillary Clinton, her party said, “Well, forget that. We’re going to support her because she’s our friend.”

Ben Weingarten: Yeah. Of course, “For my friends, everything. For my enemies, the law.” Is that the paradigm we’re operating in today?

F.H. Buckley: That’s pretty much it. “For my friends, everything. For my enemies, the law.” That’s what they say in South America. And, of course, when you have a rather politicized justice, or government, IRS Department…Gosh, there’s a lot you can do to go after your enemies.

Ben Weingarten: …[T]he founders had an intuitive understanding that man was fallible, man was easily corruptible. And so they created an institution to kind of check man’s worst vices, pit them against each other. And so, ultimately, only those things which were truly above board could get through. That said, you bring up, in the Constitutional Convention, several debates that I think are fascinating that kind of prove that, in some sense, the Constitution was really an anti-corruption document and the debates were about checking corruption. Speak a little bit to the Constitutional Convention.

F.H. Buckley: Well, a part of the story is understanding how we do not have a Madisonian Constitution. Everybody says it’s Madisonian. Madison was the guy left out by the Convention. He wanted something which, I think, might have helped better cure corruption. He wanted, for example, a system of filtration, which would be, essentially, a parliamentary regime where the chief executive would be chosen by the parliamentarians roughly or the congressmen. We didn’t get that. Madison didn’t get what he wanted. He nearly led a walkout in the middle of the Convention. And what we ended up with…Something very different. And the reason why we got that was the cleverest fellow there, Gouverneur Morris told people, “Look, if this is what you do, you’re going to end up with corruption.” And everybody said, “Oh, my God. Corruption is the last thing we wanted.” And so Morris was able to sell them on the separation of powers.

Ben Weingarten: As well as separation of powers there was, in particular, the focus on the executive branch. And you argue that fear of corruption, ultimately led to the dominance of that branch, and that Gouverneur Morris played an essential role. Explain that.

F.H. Buckley: Well, it’s all connected with the separation of powers. The idea of the separation of powers was, rather than create an over-powerful president, we’ll divide up power. And so, Congress will have its role, the executive will have its role. But instead of curbing the power of the presidency, the separation of powers has made that office more powerful still. So, we see examples of that, for example, during the reign of good king Obama, when the IRS could do whatever it wanted, and Congress could sputter with fury but it couldn’t, ultimately, do very much about it. Whereas in a parliamentary system of the kind that Madison really wanted, it’s much easier to keep the prime minister on his toes than a president. The separation of powers in America insulates the president from accountability.

We do not have a Madisonian Constitution...

Ben Weingarten: In your view, what was the fundamental flaw or what were the fundamental flaws in the document [the Constitution]? Was it a failure of imagination on behalf of the Founders, or is it that over time, people have not changed, human nature has not changed, but that they couldn’t have anticipated that things would evolve in a way they have? I guess, it’s a question of, is it nature or is it nurture? Is it that this is how things have evolved, or was there something fundamentally deficient in the documents?

F.H. Buckley: All of the above. Thank you. Let’s put it this way, there are many people who are conservative, who call themselves Constitutional conservatives and therefore say, “We like what they call the Madisonian Constitution.” And then there are also people on the right who call themselves Hayekians, and who think that you have to live according to what experience tells you to do. And what I want to say is you can’t be both. You can’t be a Hayekian and a constitutional conservative. You can’t suck and blow. What do I mean by that? What I mean is that the idea behind the constitution is we’re going to get it right the first time out. We’ll have a separation of powers, which ensures that only the best ideas get through, and we’ll then be left with the perfect set of laws.

And it didn’t work out that way because what we ended up losing was the reverse gear of a parliament that can easily reverse statute. For example, Obamacare. People hate it for the most part, try to get rid of it, and it turns out to be very, very difficult, almost impossible because of a need for all the branches to get together as well as the absurd and imaginary requirement of a filibuster supermajority. So, we’re stuck with a lot of bad laws which have the effect of insulating people from the possibility of reversal. And that is also something that’s gone towards creating a corrupt regime.

Ben Weingarten: When we talk about the separation of powers, you argue that the executive is the dominant branch. I suspect that some people will say that the judiciary has a disproportionate amount of power as well. The legislative branch, essentially kicks any issue that it doesn’t want to adjudicate…to the Supreme Court. So, what would you say to those who would say that Supreme Court is actually a dominant branch?

You can't be a Hayekian and a constitutional conservative.

F.H. Buckley: Well, that’s what conservatives used to say about 20 or 30 years back. They don’t say it so much anymore. And the reason for that was Obama because what Obama discovered was that the separation of powers and gridlock — which is the product of separation of powers — was his friend. Because the more you have gridlock and the demand for change, which can’t be satisfied constitutionally, the more you have a president who rules extra-constitutionally through executive orders and the like. And when a president can do that, rule anyway he likes, what you’re ending up with is a president who can reward his friends and punish his enemies. And there you have the South American result of “For my friends, everything. For my enemies, the law.”

Ben Weingarten: How has federalism contributed, if inadvertently, to corruption of the republic?

F.H. Buckley: Well, federalism is very much a good thing. It’s one of the wonderful things about America. It’s not as if we invented it. Roughly, we inherited it from the British with the separate colonies. Remember by the way, the people who really, really hated federalism at the Constitutional Convention were Madison and Hamilton. The idea that these are the guys we should look to as the authors of The Federalist Papers for instruction is pretty laughable. They hated federalism. They wanted all power in Washington. They wanted the federal government vetoing all provincial laws, all state laws. And they wanted…Hamilton didn’t even like the idea of states in general. But federalism gives people the chance to move from corrupt states to non-corrupt states. It gives you the chance to move from, dare I say it, New York to Texas.

Ben Weingarten: A race to the top, not a race to the bottom.

F.H. Buckley: Exactly. A race to the top. All of that’s good stuff. There is, however, a problem with federalism in terms of the court system because federalism creates the possibility of one state exporting its pollution to another state. That’s why the pure federalist should not be a pure states’ rights person. He should want to reserve some rights to the central government. They include things like national defense, for example, but they also include shipping pollution from one state to another. And the kind of pollution I have in mind are the absurd tort results you get in states like Mississippi. Every time a tort plaintiff wins in Mississippi an angel dies in Heaven.

Ben Weingarten: Yeah. Speak a little bit to the trials and travails of Dickie Scruggs.

F.H. Buckley: Dickie Scruggs was an absolutely fascinating American figure. He was a trial lawyer in Mississippi. He was the brother in law of Trent Lott, the Republican senator and majority leader until he blotted his copy books. The interesting thing about the tort bar in Mississippi was, it’s roughly the same people as the wholly reprehensible racists of Mississippi of the 1960s. It’s the same people in many cases. They just moved over and they said, “We can’t do the racial thing anymore, but you know what there is? There is tort law.”

And so, they used the same techniques. And the technique back in the 1960s is, we don’t talk to outside agitators. And now they simply kept it to themselves in Mississippi with respect to tort law. They bribed judges. They didn’t want to talk to anybody, they played it close, and they were an interconnected group of people. And some of them were the very same people that go back to the racists of the 1960s. Whilst there is a tendency on the part of the left to make heroes out of the trial lawyers, these are some of the nastiest people around if you look closely at them. They are corrupt, and they were allied to the racists of 1960s.

Remember by the way, the people who really, really hated federalism at the Constitutional Convention were Madison and Hamilton... They hated federalism. They wanted all power in Washington.

Ben Weingarten: You describe concepts like regulatory capture, rent seeking, other behaviors where, effectively, government is colluding with the private sector and it’s a very insidious, mutually beneficial relationship. And of course, there’s a campaign finance component to that as well, which we’ll get to in a second. Was that crony capitalism in your view baked into the document [the Constitution], or is it a result of government growing so powerful, the administrative state growing so big, that it’s inevitable that you would have this development of the insidious relationship between government and private sector?

F.H. Buckley: Well, the latter, of course. And it’s also a problem of America being too darn big. I mean, the bigger the country, the more power is going to be concentrated, necessarily, in the central government. And the more that happens, the more the stakes are raised for the lobbyists on K Street to try to influence legislation. The framers debated whether or not people are happier in small countries or large countries. And it turns out the argument for small countries is you get more corruption in the large country. You cannot match, in the 50 states, the power of the lobbyists on K Street in Washington. And the reason is very simple. The reason is, if you’re in a state capital, you’re [in] Dover, Delaware, you can change a law and it’ll affect all the people in Delaware. But you can spend the same amount of resources on K Street in trying to influence a congressman, and there it’s countrywide. There’s a natural tendency to try to capture the central government as opposed to state governments.

Ben Weingarten: And you challenge the idea that it’s actually the culture versus the size. In other words, people will say that Scandinavian countries are more homogeneous, and that’s the real reason why their system of, essentially, socialism works so well. You challenge that idea.

F.H. Buckley: Well, yes I do. Although, there is something to the idea that diversity is not necessarily an advantage as far as that goes. That’s a separate issue. The issue is, “What about our social safety net?” Well, in fact, we have a very generous social safety net. We’re one of the most generous countries in the world, except we tend to ignore that. But the problem of corruption isn’t exactly that. The problem of corruption is a sense of being isolated from what the heck is happening in Washington. You have a sense that decisions are being made and you have no input into them, and you elect your people, and somehow they join the swamp. This was an issue, of course, in the 2016 election. Trump said, “I’m going to drain the swamp,” and everybody recognized that the deepest denizen of the swamp was Hillary Clinton.

Ben Weingarten: Now, I alluded earlier to campaign finance and the various efforts to try to, I would argue and others would argue, restrict speech by restricting spending on campaigns. You challenge, effectively, the entire campaign finance reform framework. Explain your view.

F.H. Buckley: It’s such a mess at this point that it’s like a net that has the curious feature that the big fish swim through and the small fish are caught. So, the small fish include people like Dinesh D’Souza who made a[n] absolutely stupid and ridiculous decision to funnel some money through his mistress and mistress’s husband. Not a good thing to do under any circumstances. And so he was ratted out, and he had to do some jail time at a halfway house as a consequence. Whereas, the big fish know how to structure their things. It’s once again, the idea that the principal crime in America is talking to a federal official without a lawyer at your side. The guys who have lawyers at their side, they’re gonna do okay. But it’s the ordinary Joe who stands to be prosecuted.

The point about the election laws we have is they simply don’t work at all. We have, by virtue of the Supreme Court, no restrictions on spending, which is, I think, a good thing. That kept people like Bernie Sanders and Donald Trump in the race in 2016. We have ostensible restrictions on fundraising, on campaign donations. But by virtue of recent changes in law, they’re basically…A semi-truck could drive through the hole that’s been created. You can donate as much if you do it wisely as about $360,000 a year to a presidential campaign. That’s something that Hillary figured out. In a two-year period for a man and his wife, it’s about $1.5 million, $1.45 [million]. And after that there’s nothing left of restrictions on campaign donations.

And then the other thing is the idea of disclosure of donors. And again, the Supreme Court has said, “We can’t restrict spending, but you can fiddle with donor disclosure and you can fiddle with campaign financing.” But donor disclosure turns out to be a way of, basically, unleashing an internet mob on you. If you publish the names and addresses of donors, there you are. There are people waiting to get you. As it happens right now in Washington, there’s a website that identifies the names and addresses of Trump donors in the D.C. area. And the website in question notes, for example, that one person has a habit of jogging and suggests that their Antifa people could probably catch up with her…When they go running. They say, “Of course, we’re not recommending you do that,” but nevertheless…

Ben Weingarten: One could do it.

F.H. Buckley: One could. We don’t think you should want to do it, but there you are. And here’s exactly where she goes jogging, and here are her kids. We know exactly what that might lead to. And the point is, we have to realize that because of the internet, we’re living in a very different world from the one we did years 20 years ago.

Ben Weingarten: People who are concerned about the idea of pay-to-play, what do you say to them?

...the principal crime in America is talking to a federal official without a lawyer at your side. The guys who have lawyers at their side, they're gonna do okay. But it's the ordinary Joe who stands to be prosecuted.

F.H. Buckley: Well, that is a very good concern. But I think what you want are some laws which are crafted with a scalpel and not a meat cleaver to address it. And the sort of thing I have in mind, for example, are restrictions on lobbyists. So, there are good things that lobbyists do, and there are questionable things that lobbyists do. Lobbyists usefully provide advice to representatives about what bills are all about. And given the fact that representatives come to town knowing nothing, pretty much, about legislation, it’s useful to have them. They would exist whatever happens. What you don’t need on top of that, however, are things like lobbyists contributing money for campaign events.

So it would be easy enough, and I think constitutional, to pass legislation saying, “Look, you can provide information. What you can’t do is host a fundraising event for a congressman.” And the problem is…One of the reasons why congressmen will pay attention to the lobbyists is because they’re doing that kind of campaign activity.

The other thing about this is there’s a revolving door, at this point, between Congress and K Street. One congressman said that Congress is a farm team for K Street because what you can do is increase your salary by five to 10 times by moving from Congress to a lobbying job like the Trent Lotts of the world have done. And so, what you’d want to do is have a Chinese Wall in between them by way of saying, “Look, if you’re in Congress, you cannot, afterwards, work as lobbyists. Full stop.”

Ben Weingarten: It’s sort of a truism, but one suspects that there would be less money and fewer lobbyists to the degree to which there was less to be bought. So, in other words, companies view this from the perspective of, “What’s the return on investment of having an army of lobbyists?” And then you get all sorts of goodies, whether it’s regulatory restrictions on competitors or regulations that help you, or rents as we discussed a bit earlier. Is it too much to ask to look towards shrinking government substantially, and thus, we’d have less lobbyists and less money involved with it?

F.H. Buckley: And the answer is, yes. It’s too much to ask. Is it a supply side question or a demand side question? I guess what I’m saying is, yes, it would be nice to turn back the clock and have a much smaller regulatory state. And perhaps, we conceivably, we could even do that. But it would be easier, at least, to stop the blood flow, staunch the blood flow by curbing the power of lobbyists.

Ben Weingarten: So given the sad reality that we’ve discussed, what are some of the more novel concepts that you think could actually work to constrain corruption in our republic?

F.H. Buckley: Well, that’s a separate question but, for example, we are not the only country that has discovered it has a surplus of rules which prevent people from getting ahead. That’s happened in the past. It happened about 1,400 years back in the Byzantine Empire. And at that point, the emperor, Justinian, said, “Right. What we need is,” roughly what we would call today, “a law reform commission. And we’ll take all the previous law and we’ll shrink it down.” Trump said that he thought we could shrink down our regulatory mess by 70 percent. One way to do that is create something like a Justinian commission and take a whack at the uncountable number of regulations we have. That’s a way to do it. That would be what you wanted.

Ben Weingarten: And you also talk about this concept in the book of…The acronym is FILA. And that relates to the legal system. Explain that legislation.

F.H. Buckley: Well, that was a legislation suggested by a friend of mine, now sadly passed away, Jim Wooton. Wooton was somebody who used to work for the U.S. Chamber of Commerce and who knew the beast close up. And the legislation in question, which would be entirely faithful to what the Framers wanted, would say, “Look, as long as you have interstate litigation going on, somebody in Mississippi suing a defendant in another state, that should be kicked over to federal courts.” And why are federal courts better? Well, federal courts are better because they’re national, and so they don’t have the homer instinct of catering to the locals.

And number two, they’re appointed, not elected, so they don’t have to worry about currying favor with…getting money from the trial lawyers for the next election. So, everybody recognizes that federal courts are superior to state courts in that respect. And indeed, that was precisely the point of the civil rights revolution of the 1960s. The heroes in that revolution were apart from people like Martin Luther King, federal judges like Frank Johnson in Montgomery, Alabama where litigation against Rosa Parks and Martin Luther King was taken out of state courts and given to federal court. They put the kibosh on it.

Ben Weingarten: Given that the corruption enables the very power that is held in all three branches of government and, not to mention as you speak to, judges at the state level, how do you incentivize the political class to actually champion any of these anti-corruption reforms that you lay out in The Republic of Virtue?

F.H. Buckley: Well, that’s the simplest thing at all. All you have to do is reprogram them so they’re virtuous. I don’t think that’s a possibility.

Ben Weingarten: So, unless we have the singularity and we have robots ruling over us, we have nothing to look forward to?

F.H. Buckley: Well, it’s like this, it’s like…You hire an agent to work for you, and the agent pilfers, the agent steals stuff from you. And it may come in terms of more money in his pocket, or it may be [the agent] decide[s] to push legislation or rules you don’t like. But the fact is, you can’t do the job yourself, and you can’t live without him. So, you have to accept that to some extent. That kind of corruption is built into every political system in this country, and every single country. We seem to do a worse job of curbing it than other countries. And so, the answer is not to have some wholescale restoration of virtue of the kind that Robespierre wanted in France, which took a rather severe kind of discipline for the less virtuous people in France. Rather, it’s a matter of micromanaging the rules as to try to cure some of those impure incentives.

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BEN WEINGARTEN is a Senior Fellow at the London Center for Policy Research, Senior Contributor at The Federalist and Founder & CEO of ChangeUp Media LLC, a media consulting and production firm dedicated to advancing conservative principles. You can find his work at benweingarten.com, and follow him on Facebook and Twitter.

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