What motivated the American colonists to rebel against the British crown? The reasons that immediately come to mind include unwanted taxes, trade interference, and disrespect for the colonists’ property rights. In his latest book, George Mason University law professor F.H. Buckley argues that we should add corruption to this list. The patriots saw the monarchy and its officials as wallowing in corruption as they lived high on graft and doled out favors to friends and cronies at public expense.

While tensions grew in the 1770s, few Brits understood the fuss. “But what they missed,” Buckley writes, “was the colonists’ ire over corruption in the British government—the King’s Friends in Parliament, the showering of gifts on royal favorites, the patronage machines of prime ministers and of royal governors in the colonies.”

The patriots did not just want to throw off the yoke of King George III; they wanted to create a government that would be virtuous. They wanted a government run for the good of the people at large rather than for a few with money and influence. They wanted to prevent corrupt bargains and self-dealing.

Constitution vs. corruption / Once independence was won and the new nation’s leaders got together in Philadelphia to deal with the evident flaws of the Articles of Confederation, the need to keep corruption out of government was one of their paramount concerns. The government they envisioned, Buckley writes,

would accept the reality of our ordinary vices, but would make it harder for them to infect the body politic. By dividing powers and asking one branch to check another, the Framers sought to restrain those who would use the means of government to serve wasteful private ends.

From that goal sprang many of the Constitution’s features. The president would not be popularly elected but rather chosen by the Electoral College, which would presumably consist mostly of wise and virtuous men. Furthermore, the Electoral College would meet in the separate states rather than the nation’s capital, a provision meant to prevent unsavory deals among the electors.

The president would be subject to impeachment and it was originally proposed that only a majority vote in the Senate was needed to remove him. (Buckley notes that the change to a two-thirds vote was made late in the convention by a committee and never debated.) To keep the president from squandering money on his friends as English kings were wont to do, the Appropriations Clause stated that no money could be withdrawn from the Treasury except upon a vote of Congress. Nor could the president confer any title of nobility or accept any foreign emoluments. He could make appointments, but only with the advice and consent of the Senate. Those and other provisions were intended as barriers against corruption.

Buckley, who has studied the Constitutional Convention carefully, notes that Ben Franklin even suggested making the presidency an unpaid office to further reduce its attractiveness to grasping men. That idea, however, was too much for the rest of the assembly and his suggestion died quietly.

Turning to the legislative branch, each state’s senators would be chosen by the state legislature rather than elected directly. (The 17th Amendment would change that.) Members of Congress were forbidden to hold any other federal office at the same time. The powers of Congress were carefully enumerated and did not include any authority to engage in what James Madison called “factionalism,” meaning the promotion of legislation intended to benefit individuals or interest groups rather than advance the general good.

Slipping the constraints / The Framers put a great deal of effort into devising a governmental structure that would ward off corruption. Alas, it has failed. The government today is riddled with the kind of influence peddling and hidden deals that drove the patriots to take up arms in 1775. Buckley writes,

From TARP, to the Export–Import Bank, to the tariff protections offered to favored industries, there is a growing concern that the federal government has become a necessary business partner, and that the (imagined but not necessarily imaginary) free market capitalism of the past has been transformed into a wasteful crony capitalism that favors well-connected special interests.

He provides a convincing analysis of the Constitution’s inability to maintain the envisioned “republic of virtue.” The separation of powers proved no match for presidents who were determined to act as they wanted. He observes:

The president has slipped off many of the constraints that were meant to curb his authority. He makes laws by regulatory fiat and executive order, and unmakes them by refusing to enforce properly enacted legislation. He can reward friends and punish enemies in ways the Framers would not have imagined.

That’s perfectly true, although Buckley doesn’t mention that the presidents who were eager to slip those constitutional restraints were able to do so only with the complicity of Congress and the Supreme Court. The Framers’ design worked for a while, but their words on paper could not prevent corruption once the ruling elite decided that limited government was too old-fashioned.

And so we live with a level of corruption that makes that of King George’s time seem quaint. Much of today’s policymaking appears to have nothing to do with the merits of the proposed legislation, the political appointee, or the legal arguments, but instead is driven by money and connections.

Judicial corruption / Consider, for instance, the way justice often depends on where a case is tried. Trial lawyers have worked out brazenly corrupt methods of shaking down out-of-state litigants in venues where they pretty much own the judges.

Buckley recounts an infamous Mississippi case involving a contract dispute between a Mississippi firm and one from Canada. The proceedings reeked of favoritism toward the former and hatred directed at the latter, even playing the “race card” with the black jury. The judge, elected with plenty of support from the trial bar, allowed the plaintiff’s legal team to get away with outrageous conduct (he was later given an appointment to the Fifth Circuit by President Barack Obama) and the resulting damage award against the Canadian firm was staggering: $100 million in compensatory damages (including $75 million for “emotional distress”) and $400 million in punitive damages. Moreover, the defendant was not allowed to appeal under Mississippi rules unless it first posted a bond of $625 million. The unfortunate Canadians finally settled the case, paying $130 million over a dubious breach of contract.

There is a clear solution to the problem of state judicial corruption. Congress need only adopt the proposed Fairness in Interstate Litigation Act, amending the law providing that in cases involving diversity of citizenship, federal and not state courts have jurisdiction. That is apparently what the First Congress had in mind when lawmakers passed the Judiciary Act of 1789, which provides for removal of “diversity” cases to federal court.

The problem is that in an 1806 case, Chief Justice John Marshall read the statute to mean complete diversity, so that if the plaintiff and at least one defendant were from the same state, the case must remain in state court. Ever since, lawyers have taken advantage of that decision, which Marshall later admitted was a mistake. They find some in-state company to plead in as co-defendant, which is why one small drugstore in Mississippi has been sued hundreds of times, to provide the in-state connection that defeats federal jurisdiction. If Congress would pass the proposed amendment, that would wipe out a great deal of judicial corruption. That’s the book’s most efficacious idea.

Campaigns and corruption / But what about the big “money in politics” problem? Going back to the 1970s, America has had a fixation on trying to “clean up” politics through contribution limits and disclosure requirements. Buckley argues that it has all been futile. Such constraints do nothing to keep people and groups with money from finding ways to influence who gets elected and appointed, and what bills and regulations are adopted or defeated. All they accomplish is to create traps for the unwary that can be exploited by partisans who want to use the law as a sword to harm their opponents.

Buckley gives several jarring examples of that, including the prosecution, imprisonment, and mandatory psychiatric evaluation of conservative writer Dinesh D’Souza and the SWAT raid of the homes of Wisconsin Club for Growth members for having supposedly violated campaign finance laws in supporting Gov. Scott Walker. Zealots can and will hunt for petty violations of these complicated laws to take down people on the other side. Instead of making politics cleaner, they make it dirtier and more vicious.

We would be better off, Buckley argues, if we repealed the current campaign finance laws and put in their place three rules: that all political contributions be made anonymously, that we legislate specifically against “pay for play” operations, and that we stop the revolving door between government jobs and lobbying firms.

Regarding the first, Buckley argues, “There’s bound to be less corruption attached to the money when the gift is anonymous.” Moreover, a rule of anonymity would prevent the “outing” of donors like former Mozilla president Brendan Eich, who was forced to resign after left-wing political forces discovered his contribution to the campaign in California against same-sex marriage. (See “Should Campaign Donors Be Identified?” Summer 2001; “Answering Ayres,” Winter 2001.)

Regarding the second rule, what Buckley has in mind is a ban on political contributions from government contractors and municipal bond dealers. Both groups have a strong temptation to engage in rent-extraction by supporting candidates who will channel business their way.

Concerning the third rule, he points out that “on leaving elective office, many congressmen and senior staffers become lobbyists and cash in on the contacts they have made. The Center for Responsive Politics reported in 2011 that at least 285 of an estimated 1,000 former members of Congress were registered as lobbyists, and another 85 provided ‘strategic advice’ for clients.” Because of this well-lubricated revolving door between legislating and lobbying, we probably have a lot of laws and regulations that wouldn’t otherwise come into existence.

In my view, those reforms have merit, but they would only make a small dent in America’s political corruption problem. We have corruption because, like the British monarchy, today’s government has too much power to tax, spend, and regulate—powers that inevitably attract the dishonest and seduce the once-honest. So long as that power remains, we will have corruption.

Buckley knows there’s no silver bullet to kill corruption, but he hopes to offer a bit of relief. He concludes:

Rather than rely upon people’s intrinsic goodness, we should look more modestly for feasible ways to guard against particular kinds of corruption where we find them. That’s what the Framers did in aiming to design an anticorruption covenant, and the best we can do is keep tinkering with the machinery they gave us.