In the Federalist Papers, James Madison noted that “if angels were to govern men, neither external nor internal controls on government would be necessary.” Of course, he recognized we were not to be governed by “angels,” but by “men,” and so laws were necessary to “oblige [the government] to control itself.” According to U.S. District Judge Charles Lovell, however, Madison needn’t have concerned himself: we could have just been ruled by “Montana politicians,” who the Judge found were “relatively incorruptible.”
What was the record on which Judge Lovell ruled that Montana politicians are no mere mortals, but are free from human foibles like self-interest and greed? None other than evidence that those same politicians testified about offers of bribes from their colleagues and convictions of others for taking bribes. Wait, what?
One may wonder how such evidence shows that the politicians were “incorruptible.” But Judge Lovell was convinced because the politicians who spoke openly about being offered bribes also denied (unsurprisingly) actually taking those bribes. The fact that the offers came from other politicians who had accepted the bribes doesn’t seem to have concerned him. With regard to the evidence that other politicians had been convicted of taking bribes, one might think those convictions would at least cast doubt on the incorruptibility of those politicians. Judge Lovell was not concerned, however, because there was no evidence that the politicians in question wouldn’t have voted the same way they were bribed to vote, even if no bribe had been paid. Because, as he saw it, there was little or no evidence of corruption, Judge Lovell held that all of Montana’s campaign contribution limits were unconstitutional.
Judge Lovell’s “see no evil” methodology, however, completely misunderstands how bribes work. Of course politicians are unlikely to take bribes requiring them to take public stands that would be anathema to their political bases: such a move would be far too public for the risk to outweigh the benefit. A bribe can be far more effective when put to other uses. For example, it could “persuade” a politician to take one of two approaches that are both politically palatable; it could ensure that one among a number of politically acceptable proposals by competing causes are advanced over the others; it could ensure loyalty from a politician to some cause which the politician might otherwise trade away in logrolling; or it could incentivize a politician to advance the bribe payer’s cause in ways difficult for the public to monitor, such as through highly technical amendments, agency oversight, or procedurally blocking adverse legislation. Indeed, Judge Lovell’s analysis raises the risk that bribes would become self-legalizing. A bribe payer could assure a politician’s loyalty to a cause through bribes, but because a court and the public would have difficulty in discerning whether the politician would have voted otherwise without the bribe, anyone following Judge Lovell’s analysis would find that no bribe had ever been paid at all.
Although I have no reason to doubt the character of Montana politicians in particular, I do believe that they, like all government officials, are people, subject to the same human desires and weaknesses. Fortunately, Judge Lovell granted Montana’s request that he stay the effect of his order while the state appeals his decision. The Ninth Circuit Court of Appeals, which will soon be asked to review Judge Lovell’s decision, would do well to remember that our laws are needed not merely to govern the citizenry, but also to ensure that government officials control themselves, as Madison so rightly recognized at the country’s founding.