To Promote the General Welfare': Addressing Political Corruption in America
| Author | Bruce M. Owen |
| Position | Morris M. Doyle Centennial Professor in Public Policy, Emeritus, Stanford University, and Senior Fellow, Emeritus, Stanford Institute for Economic Policy Research |
| Pages | 3-55 |
Br. J. Am. Leg. Studies 5 (2016), DOI: 10.1515/bjals-2016-0001
“T P G W”:
A P C A
Bruce M. Owen*
Stanford University, USA
ABSTRACT
Systemic (but lawful) political corruption reduces well-being and equity in
America. The original form of Madisonian democracy is no longer capable
of containing such corruption. Proposals currently on the table to stem cor-
ruption are unlikely to be effective and tend to undermine basic rights. This
Essay describes a new, but still Madisonian, approach—regulating the output
of corrupted legislative and administrative processes, rather than the inputs.
Providing for substantive ex post review of direct and delegated legislation
would be far more protective of the “general welfare” of the People than
other reforms, while no more or less difcult to implement. Supporting an
“umpire” branch may be a dominant strategy for elites themselves.
1 I am grateful to numerous colleagues, students and friends for important insights and encour-
agement, over an extended period. I am indebted to Jason Bade, Jonathan Bender, Bruce Cain,
Seth Cooper, Francis Fukuyama, Josh Freedman, Harold Furchtgott-Roth, Robert Gibbons,
Larry Goulder, Justin Hefter, Larry Kramer, Brian Lamb, Sam Larson, Lawrence Lessig,
Randolph May, Madeleine McKenna, John P. McCormick, Roger Noll, Teryn Norris, Josetta
Owen, Peter Owen, Jack Rakove, Sam Rebo, Otis Reid, Greg Rosston, Sara Rowe, Richard
Saller, and Barry Weingast. I apologize to those whom I may have overlooked.
2 Bruce M. Owen is the Morris M. Doyle Centennial Professor in Public Policy, Emeri-
tus, Stanford University, and Senior Fellow, Emeritus, Stanford Institute for Economic
Policy Research. Email: bruceowen@stanford.edu.
CONTENTS
I. I ...........................................................................5
II. B ............................................................................. 7
III. L ...............................................................16
IV. T F’ .......................................................24
V. P ................... 28
A. Broaden the reach of criminal law ....................................... 28
B. Campaign nance reform .................................................... 29
C. Tighten regulation of lobbying ...........................................32
© 2015 Bruce M. Owen, licensee De Gruyter Open.
This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivs 3.0 License.
4
5 Br. J. Am. Leg. Studies (2016)
D. Congressional reform ..........................................................32
E. The Westminster system ......................................................33
F. The presidential veto and the unitary executive ................... 34
G. Direct democracy ................................................................35
H. Limited government ............................................................ 36
I. Watchdogs and whistleblowers ........................................... 37
VI. Q — , , .........37
A. Substantive review in the Supreme Court ............................ 41
B. Agencies responsible for policy evaluation: OMB,
CBO, GAO .......................................................................... 43
C. The grand jury .................................................................... 44
D. Umpires of the past .............................................................45
VII. I .............................................................48
A. The Umpire Amendment ...................................................49
Article 7.1.1. ................................................................................ 49
Article 7.1.2. ................................................................................ 50
Article 7.1.3. ................................................................................ 51
[Article 7.1.4.] ............................................................................. 52
Article 7.1.5. ................................................................................ 54
VIII. F ............................................................................54
5
“TO PROMOTE THE GENERAL WELFARE”
The inference to which we are brought is, that the CAUSES of faction can-
not be removed, and that relief is only to be sought in the means of control-
ling its EFFECTS.
THE FEDERALIST NO. 10 (James Madison)
I. I
Systemic, institutional, or “type 2” lawful political corruption is a serious
problem. It misallocates resources, undermines trust in government, and
contributes to the growing gap between the rich and the poor. Systemic
corruption occurs when political representatives routinely face options that
advance their own interests at the expense of the public, and for which
there is little or no personal or political risk. Many Americans are con-
temptuous of politicians because they appear to be for sale. People distrust
Congress in particular. Why is this and what can we do about it?
It is difcult to avoid the suspicion that there is something wrong with
the structure of government. After all, the constitutional design ratied in
1788 is largely unchanged. The natural inclination of elected ofcials to
serve their own interests at the expense of the public interest probably has
changed little over the years. Politicians have always been seen as rascals.
The Madisonian system was once widely admired but now seems to be fail-
ing us. If corruption is a more serious problem today than in the past, per-
haps it is because Madisonian democracy is less effective at containing it.
James Madison and his colleagues were well aware of the problem
of corruption. They understood that elected ofcials face an unavoidable
conict of interest between the public welfare and their own careers. The
Framers also had a realistic view of how interest groups affect government
policy. It was, and remains, perfectly obvious that if there is an organization
that has the power to grant benets to one group of citizens at the expense
of others, members of each group will want to inuence that organization’s
policies. It is not shocking that interest groups matter in policy making. Any
form of government, when compared with the alternative of Hobbesian
dystopia, requires the support of elite interests to which the Hobbesian al-
ternative appears only somewhat less attractive. Such elites require ongoing
favorable treatment by the government.
Madison addressed the problem of “faction” (interest groups) in The
Federalist No. 10. He recognized that powerful factions could inuence
political outcomes in unhealthy ways, including repression of the interests
of less powerful or less well organized, but possibly more numerous, citi-
zens. He argued that a strong central government would be better able to
control such factions (as compared to individual states) because the num-
ber of competing interests would be greater at the national level. Madison
also held that the separation of powers, the ability of citizens to discipline
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