Federalist 76
Thomas Jefferson, as I quoted him in a previous essay, worried that Hamilton’s preferred government was a monarchy “bottomed on corruption.” Solving for the problem of corruption proves an elusive goal in politics, in part because while we might “know it when we see it,” we don’t have a clear way of thinking about it. Is political corruption purely a personal matter, solved by getting the right people into office, or is it baked into the system? Or, like rust on a 1970’s era Ford pickup, is it simply the way time and nature erode the integrity of anything and everything?
Consider, for example, the kinds of metaphors we might use to describe corruption and their implications. We might think of corruption mechanistically. “The system is broken” indicates that we might believe we can fix it. “That politician is crooked” offers the possibility of straightening him out. Mechanistic metaphors suggest that politics is primarily a matter of good engineering, and if we have the right sorts of people in place with the right tools we can make politics a corruption-free enterprise.
Things look different if we use organic metaphors. “He is rotten to the core” doesn’t allow for many options of amelioration because there is no way to reverse rottenness. About the only thing you can do with swamps to make them habitable is to drain them. No amount of air freshener can cover up something that really stinks. When we think of corruption organically we no longer understand politics as a problem of engineering but as a terminal medical diagnosis. More severe interventions are required, and those in turn will always produce harmful side-effects.
Our best bet remains an early diagnosis and a healthy life-style that mitigates the risks. In politics we rarely have opportunities to do genetic testing at birth, but the debates over the Constitution proved one such instance. The Federalists may have unequivocally loved their infant, but the Anti-federalists saw a fledgling monarch in the cradle. So long as citizens could control, participate in, and act as watchdogs over their government the blessings of liberty might be secured; put that government at a distance and make the election process less democratic and the ghost of monarchy would make its appearance, especially when combined with the executive’s command of the military and his ability to make appointments. As Luther Martin observed: “[T]hese circumstances, combined together, will enable him, when he pleases, to become a King in name, as well as in substance, and establish himself in office not only for his own life, but even if he chooses, to have that authority perpetuated to his family.”
17th and 18th century British politics, as I’ve demonstrated previously, was dominated by “court vs. country” politics, and this dynamic was very much in the background of Constitutional debates. Even Federalists such as John Adams realized the dangers of “court” politics with its sycophants and opportunists and hangers-on, all flocking to the capitol city to enrich themselves. A federal government sinecure is, after all, the golden ticket to the upper-middle class, and for those already wealthy a means to either acquire status or protect (or increase) their wealth.
It was generally accepted that the blending of executive and legislative power brought us dangerously close to tyranny, and since the corrupting influence of court politics involved surrounding the king with courtiers more self-interested than public-spirited, this blending would be especially noxious when it came to the appointment power of Article II, section 2. In a rather remarkable letter he wrote to Roger Sherman in July of 1789, Adams predicted the rise of a court party and a country party in the United States, and that these two parties, by whatever names they called themselves, would leverage party influence to bridge the gap between the two branches and manipulate the government into advancing the interests of one party over the other, and this advancement of interest would be both manifest in and exacerbated by the shared roles of the executive and the Senate in the appointment process.
Even Adams with his monarchical touch admitted nervousness about the rise of a court policy in the US. Court parties were about aristocracy and monarchy and country parties about republican self-governance and self-sufficiency. Court parties encouraged corruption and country parties virtue. Adams worried that the Senate, already an aristocratic body, would collude with the executive on appointments, surrounding themselves as well as the executive with rent-seekers. Involving the Senate, he believed, would attenuate executive accountability when it came to appointments.
Furthermore, Adams asserted, it was the job of the legislature to act as a watchdog on executive abuses of power and privilege, and involving the Senate in the appointment process effectively put the watchdog to sleep. The Senate, by confirming a nomination, would have “pledged its reputation to the executive.” More importantly, the Senate’s involvement would excite the ambition of its members. Obviously the wealthy and powerful would seek office, but Senators would leverage their position to reward friends and punish enemies, filling offices with those who could augment each Senator’s power. “A senator of great influence,” Adams observed, “will be naturally ambitious and desirous of increasing his influence. Will he not be under a temptation to use his influence with the president as well as his brother senators, to appoint persons to office in the several states, who will exert themselves in elections, to get out his enemies or opposers, both in senate and house of representatives, and to get in his friends, perhaps his instruments?” Senators facing the prospect of losing reelection might try to exploit the process to get himself an office, or even if remaining in office one for “his brother, father, or son.” And these friendly appointments could, by removing impartiality, end up corrupting the election process itself, creating a permanent and therefore “out of touch” governing class.
Critics of the system also pointed to the Senate’s mostly superfluous role. If the president nominated someone unacceptable, at some point the Senate would have to approve someone, and that person might be even more unacceptable than the first choice. Senators also would put targets on themselves if they resisted a nominee, another incentive for them to act as a rubber stamp of approval. The process would inflame partisan divisions in Congress, making it an even more tumultuous body. “We shall very soon have parties formed,” Adams concluded, “a court and country party, and these parties will have names given them. One party in the house of representatives will support the president and his measures and ministers; the other will oppose them. A similar party will be in the senate; these parties will study with all their arts, perhaps with intrigue, perhaps with corruption, at every election to increase their own friends and diminish their opposers.” I regard Adams an unlikely source of prescience regarding weaknesses in the Constitution, but he aptly summarized many Anti-federalist arguments.
Hamilton never shied away from these arguments and addressed the appointment powers in Federalist #76 and #77. I remind readers that the appointment process has two parts: presidential nomination and confirmation by the Senate. (I’ve had students who worked in House offices and would have constituents call demanding that the member vote for or against a nominee, the caller not realizing that the House had no role to play.) Certainly when it comes to Supreme Court appointments we have become aware of how partisan passions dominate the proceedings, but the appointment process has never, and never could have, avoided party divides.
But partisanship isn’t the same as corruption, unless you consider any principle of division as a structural failure, like bad metal exposed to salt air. Hamilton dealt with the possibility of corruption in a peculiarly optimistic fashion. Given that neither senators nor the executive admitted of direct popular election, he claimed, it became less likely that those offices would be populated by persons of mean talents or bad character. Temporarily abandoning his darker view of human nature and suspicions about the abuse of power, Hamilton averred that it would not be “easy to conceive a plan better calculated than this to promote a judicious choice of men for filling the offices of the Union; and it will not need proof, that on this point must essentially depend the character of its administration.” As George Mason pointed out in response: George Washington was not likely to hold that post forever.
Unabashed, Hamilton continued that there “would always be great probability of having the place supplied by a man of abilities, at least respectable.” Assuming this to be the case, and disheartened by the legislature, “I proceed to lay it down as a rule, that one man of discernment is better fitted to analyze and estimate the peculiar qualities adapted to particular offices, than a body of men of equal or perhaps even of superior discernment.” Hamilton attributed much to the view that, whatever else was the case, the president is of one mind, unlike the legislature which, sadly it seemed, reflected the diversity of society, local variations that “frequently distract and warp the resolutions of a collective body.” A strong executive with a rubber-stamp Senate was the best solution to democratic disagreement. Leaving the appointment process in the hands of the legislature would result in corrupt deal-making: “I’ll approve your guy if you approve mine.”
Hamilton also believed it unlikely the Senate would reject a nominee, fearful of what a second or third choice might look like. Neither would they want to alienate the president, meaning that the candidate would have to be really bad for them to reject him. The mere possibility, however, would constrain the behavior of the president who would not want to embarrass himself by bringing forward substandard candidates. Hamilton might not have anticipated Harriet Miers, but he did help create a world where only properly credentialed persons and party loyalists would hold appointed offices.
As Madison said in Federalist #51, all of government is a reflection on human nature, in no small part because what we think humans beings are determines both whom we will give office to and what we expect of them once they hold it. To his credit, Hamilton’s view of human nature is, I think, largely right. We have a tendency to evil but a capacity for good. Publius constantly tiptoed along the line of this division. A cynic might observe that he placed confidence in virtue when convenient and nodded toward vice when necessary. It’s probably true, however, that Hamilton’s of supposed that believing a “universal venality in human nature [was] little less an error in political reasoning, than the supposition of universal rectitude.” It’s difficult to defend the very idea of democracy without believing ”that there is a portion of virtue and honor among mankind, which may be a reasonable foundation of confidence; and experience justifies the theory.” Even when the temptations to favoritism and partisanship and ambition distort our motives, the presence of virtue “has been found to exist in the most corrupt periods of the most corrupt governments.” True, but probably not something you bank on when you create large systems. We don’t expect merchants or financiers or industrialists to act out of anything other than self-interest; it would be quite a leap of faith to believe our politicians are immune.
The Anti-federalists had a ready solution to this dilemma: devolve power and authority as much as possible, such devolution both weaker in nature and less likely to be noxious in its interactions. Better that a particular village have bad government than a whole nation. Better to oppress five thousand souls than five million. It’s easier to escape a mayor than a president.
Director of the Ford Leadership Forum, Gerald R. Ford Presidential Foundation
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