Corruption and democracy erosion go hand in hand. Corruption leads to an increased erosion of faith in democracy and democratic institutions which then begets more corruption, a self-reinforcing cycle of collapse. Currently, the US is designated a “flawed democracy” and a “backsliding democracy” and its decline in the rankings of the world’s democracies has been rather precipitous. Analysis of that decline often, and with good reason, focuses on the extreme polarization and partisanship of the American electorate and its debilitating effects on the trust and competence of institutions that a well-functioning democracy relies on. Corruption, on the other hand, seemingly gets less attention as a contributor to our democratic erosion, though its effects are perhaps equally pernicious, at least partly because its manifestations are often cloaked in a veneer of legitimacy. Admittedly, the two are also somewhat linked as polarization and partisanship creates opportunities for corruption and corruption can be used to fan the flames of polarization.
When we talk about corrupt countries, what comes to mind are banana republics where police expect a bribe on a regular traffic stop, a kickback is required to obtain almost any government permit, those in power siphon off the public money to their personal cronies and/or their own bank accounts, and, of course, governments get overthrown. We rarely see that kind of brazen corruption here in the US. Even so, in 2021 the US only placed 27th in the rankings of the least corrupt countries in the world, (a lower ranking than most Americans probably envision), tied with Chile and only slightly better than places like Barbados, Bahamas, and Qatar(!). Since 2016, the US dropped nine places in these rankings, primarily because we did experience the kind of open corruption associated with those banana republics during those five years, with Trump using the office of the presidency to enrich himself and his family and then organizing a violent coup in order to stay in power.
One of the problems with judging the depth of corruption in the US is that, as law professor Matthew Stephenson points out, “certain practices…that other countries would consider corrupt are, in the U.S., not only permitted but constitutionally protected…And even where there are laws designed to address some of these forms of corruption or conflict of interest, those laws have not proven terribly effective”. Indeed, what’s known as “legal corruption” is the far more common type of corruption in the US than the bribes, kickbacks, and outright theft associated with what we regard as truly corrupt countries.
It appears that Americans are far more likely to be stolen from or killed in an encounter with police than they are to be asked for a bribe, especially if you are a minority male. In many of those cases, police are still protected from accountability by the entirely made-up judicial doctrine of qualified immunity. Police can regularly seize property simply by alleging a crime and still be protected by civil asset forfeiture laws. Dirty cops who have been fired by one department often get re-hired elsewhere, with few, if any, repercussions. We know that police lie regularly in the reports they file, in what they say to the press, and, most egregiously, in court. Prosecutors often know that police are lying and yet go along with it. Prosecutorial protection of police misconduct is why we still have no credible explanation for the inaction of law enforcement at Uvalde. While far less frequent, we also regularly find cases where prosecutors withhold exculpatory evidence from the defense, what’s known as a Brady violation. One study showed that over 50% of wrongful convictions were a result of Brady violations.
The rot isn’t just restricted to the over-policing of minority communities or good ol’ boys protecting one of their own. It extends to the top echelons of law enforcement. Customs and Border Patrol agents are arrested for corruption at four times the rate of any other government agency. The DEA seems similarly corrupted, with the lead agent in Mexico recently resigning from the agency because of his penchant for socializing with lawyers for the drug cartels. The Secret Service has had its share of scandals over the years, but, under Trump, became highly politicized and appears likely to have obstructed justice in the 1/6 investigation. It is so bad that Biden is reportedly fearful about speaking freely in front of some Secret Service agents. The IRS probably launched politically motivated audits of McCabe and Comey, while ignoring its legal obligation to audit Trump.
The top FBI counter-intelligence official in New York, Charles McGonigal, has been indicted for taking secret cash payments from a Russian oligarch in 2018. It just so happens that this is the same oligarch that Paul Manafort was so desperate to pay off that he became Trump’s campaign manager in 2016 for free and passed internal polling to the oligarch’s right-hand man and on to Russian intelligence. And his prior work in the New York FBI office once again raises the question of what was going on in that office in 2016 and whatever happened to the investigation of the leaks from that office that so badly damaged Hillary Clinton in the last days of the 2016 election. Under Trump, Bill Barr arguably ran the most corrupt Department of Justice in modern history, certainly since the Nixon/Mitchell days. Barr lied about the contents of the Mueller report, initiated politically motivated investigations at the request of the President, and shepherded the bogus Durham investigation, implying that Clinton was under investigation when the target was actually Trump.
It is only marginally better in the judicial branch. The US is virtually alone among major industrialized countries where judges are routinely elected rather than appointed. It defies credulity that judges will not have their own re-election in mind when ruling on certain cases, especially ones with high public interest. In addition, with millions of dollars now being poured into judicial races, judges are often routinely sitting on cases that involve donors to their campaigns. And with the courts becoming increasingly activist and determinative in current public policy, judicial elections have just turned into another partisan process where judges overtly and/or subliminally telegraph whose “side” they are on. The result is the current Republican tactic of venue-shopping where they can virtually choose which judge will hear their case and what that result will be.
The concept of the “rule of law” becomes a provable fiction when the law changes simply because the personnel on the court does as well. That’s what we are seeing In North Carolina with a re-hearing of the voting rights cases decided just two months ago simply because the Republicans gained a majority on the State Supreme Court in November. Democrats are attempting a similar effort in this year’s election for the Wisconsin Supreme Court. Perhaps the most damaging example is the recent Supreme Court abortion ruling which overturned a 50-year precedent with no real change in public attitudes, only a change in the make-up of the Court.
This Supreme Court, of course, has its own ethical problems. Justice Thomas neglects to mention over half a million dollars of his wife’s income on his financial disclosure forms. He refuses to recuse from sitting in multiple cases where his wife is in some way involved with a party to the litigation. Like Thomas, Chief Justice Roberts continues to hear cases involving law firms who have paid his wife hundreds of thousands of dollars. Roberts also neglected to mention that the firm that vouched for the failed leak investigation of the abortion decision had received over a million dollars in fees for other work for the Court.
If electing judges seems insane, it barely compares to our campaign finance laws. The amount of money it even takes to mount campaigns these days makes it almost impractical for most citizens. The laws governing campaign contributions have essentially legalized bribery, especially now that the Supreme Court requires a specific and agreed upon quid pro quo between briber and politician to actually prove bribery. It’s why we see the massive $60 million corruption case against top Ohio Republicans. It’s how we now see “ghost candidates”, as occurred in Florida in 2022. It’s how we end up with a George Santos in Congress. Even the pathetic campaign finance laws that still remain on the books are never enforced, such as the coordination between PACs and candidates.
Studies show that campaign contributions directly affect policy outcomes. We all know that certain members of Congress are essentially bought and paid for by special interest groups. Members of Congress spend more time raising money for re-election than they do actually legislating. Those members can pocket even more money for themselves by trading on inside information gleaned from their work in Congress. The racket is so lucrative that there are now even two electronically trading funds (ETFs) that track congressional stock purchases. The massive amounts spent on lobbying also distort democratic governance, with one estimate showing that, over a 5-year period, the 200 most active corporate lobbyists spent a total of $5.8 billion and got $4.4 trillion in taxpayer support, a return of 750% on their investment.
Whatever you may think of the Founders’ intent, our current electoral system is a corruption of a truly representative democracy which features majority rule with protections for the minority. The Electoral College, the US Senate, the filibuster, gerrymandering, and voter suppression are all instruments for empowering minority rule. It is another part of the reason why the wants and desires of the vast majority of Americans are virtually ignored when it comes to making public policy.
As bad as our political corruption is, it is probably dwarfed by corporate corruption. We’ve endured Enron, Worldcom, Bernie Madoff, and HealthSouth. Sam Bankman-Fried’s FTX fraud is just another in a long litany of American corporate frauds. His desperate efforts to woo both parties with massive campaign dollars was basically an attempt to buy the legislation that would give him the same protection from the government that the Wall Street banks got during the financial crisis. But those fraudsters are the unusual ones in that they actually got charged for their crimes. Post-Enron, the more common result is that these frauds apparently have no perpetrators — basically crimes without criminals — and all that’s needed is to just pay a fine, sign a consent decree to promise never to do it again, and then do it again. Nothing better illustrates that than the response to the financial crisis; or to the demise of Countrywide; or to now GOP Senator Rick Scott’s massive Medicare fraud; or to the over two-decade long crime spree that is Wells Fargo; or to the multiple groups in business, medicine, and government that conspired to create the opioid epidemic that has destroyed the lives of millions of Americans.
Virtually every American industry is now controlled by an oligarchy of a handful of companies. These companies routinely engage in collusion and price fixing. A number of studies and the words of corporate executives themselves indicate that a substantial portion of the recent spike in inflation has been the result of price gouging. Wage theft is rampant, using misclassification and minimum wage violations, to steal billions from American workers. Corporations’ massive stock buybacks are just a legalized form of price manipulation that only enrich their CEOs and shareholders. It would probably shock Americans to know that the US is now recognized as the money-laundering capital of the world. South Dakota’s bank secrecy laws rival those of Switzerland.
It is no different beyond the secular world. The Catholic Church spent decades moving sexual predators from one diocese to another and lying about it, often with the complicity of law enforcement. The Southern Baptists engaged in a similar practice. The Episcopal Church essentially split over whether to maintain its patriarchal misogyny and homophobia or actually follow the teachings of Christ. The Protestant evangelical movement has been filled with frauds and hucksters whose only interest has been money and power. Embezzlement and fraud are rampant is US houses of worship.
Corruption pervades almost every sector of American society. Some of it is basically ignored by law enforcement. Some of it is never punished. Some of it only gets charged as a civil crime which can usually be dispensed with for the right amount of money. But a surprising amount is technically legal. What’s more disturbing is that the legal system has actually become a weapon to prevent accountability, especially for those with deep enough pockets. Take the incredibly horrific case of Chevron’s oil spill in Ecuador which took nearly 30 years and multiple change of venues to resolve, with Chevron essentially hiring its own special prosecutor to go after the lawyer who represented the indigenous victims in Ecuador. Or how the Sackler family and Johnson & Johnson use the bankruptcy process to avoid responsibility for their crimes. Or just look at Trump’s entire life, in business, in his personal affairs, and in politics, even to the point of organizing and directing a multi-pronged effort to overturn a legitimate election resulting in a violent coup, where the tactics of legal delay and legal threats have prevented any accountability. An equally relevant example is the apparent “rule” that sitting presidents cannot be indicted simply on the basis of a non-binding legal memo, not understood as law under any interpretation, from an office in the DOJ that is primarily committed to ensuring that presidential power is not compromised. In Florida, we are now seeing attempts to legalize corruption ex post facto, with the legislature covering for DeSantis’ efforts to kidnap migrants in other states and send them elsewhere and his attempt to prosecute citizens for voter fraud whom the state declared were eligible to vote.
Americans’ trust in institutions has been declining for decades. That hardly seems surprising because America’s institutions have largely failed the people. When Masha Gessen wrote that “institutions will not save you”, it was probably not news to most Americans who have consistently seen institutions working against their interests. In the same way, it is easy to see why Trump’s continual claims that the “system is rigged” had such resonance with so many.
Studies have shown that corruption is associated with many of the problems the country faces today. Professor Wolfgang Merkel identified five components of what he described as an “embedded democracy” — democratic elections, political participation rights, civil rights, a balance of power between institutions, and the effective power to govern. In all five areas, we have seen an erosion in large part due far more to corruption than to polarization. We have recently had multiple instances where the person or party who won a minority of the vote still gains the power of the majority and the office. We see a broad-based attack on voting rights and opportunities to participate in the electoral process. We are seeing an extraordinary attack on women’s reproductive rights and the vilification and near criminalization of the LQBTQ community. We see the courts vastly expanding their power over decisions made in the executive and legislative branches even as legal system appears incapable of holding those with power and money to account. Courts’ corruption of the Second Amendment allows almost any citizen access to weapons of war, inhibiting the power of the state to fulfill its role in providing security. We see the rise in domestic terrorism and religious fundamentalism that is associated with corruption in eroding democracies.
It’s easy and convenient to say that polarization is the problem for American democracy. And, at a certain level, that is true. But America’s real democracy problem is corruption, and our democracy will keep eroding until we tackle that problem or until we find we have lost it entirely.