The author, a professor of law, argues that America’s campaign finance system and foreign policy decisions reflect a declining imperial power struggling to maintain global dominance, offering a provocative perspective on corruption and democratic deficits particularly relevant during Constitution Week, when Americans reflect on the foundational principles of their government…
Suffice it to say that some corruption law scholars are dissatisfied with the state of election financing in the United States. In his eyes, while America is a major success in ferreting out conventional corruption through separation of powers, it remains a “very corrupt” country due to unconventional corruption generally, and the largely private system of campaign finance specifically. Corruption expert Mike Koehler has criticized the United States for its untenable position concerning the Foreign Corrupt Practices Act (FCPA). He outlines the Watergate Scandal and its aftermath which motivated the law, following with observations of various “uncomfortable truths” and “double standards” which would lead a reasonable person to question the American stance on corruption. Regarding the uncomfortable truths, Koehler observes that America, via the Central Intelligence Agency (CIA), has bribed foreign warlords that the US has soft-pedaled against violators of the FCPA when the violators support the American national interest, that American officials facilitate bribery on behalf of American business interests. On the double standards, Koehler observes that the influence of special interests (through campaign finance/revolving doors) which defines domestic American politics is substantially similar to practices by American businesses in foreign jurisdictions which the Department of Justice (DOJ) prosecutes via the FCPA. This essay, tries to use the American imperial posture to explain the uncomfortable truths and double standards, outlining why it is that America is an empire? It shows that the US – while still the certain center of global power – is declining relative to other nations.
The American Empire is illusory. Unlike the Roman or British empires, one cannot outline its contours on a map of the world to demonstrate various territorial imperial acquisitions. But the nature of imperialism has changed. States dispose of two types of power to exert influence on the globe: hard power and soft power. While hard power refers to a state’s capacity to leverage its military and economy to achieve goals, either by force or threats of it, soft power refers to a state’s cultural, diplomatic, linguistic, religious, and moral influence. While all states possess both hard and soft power, a state is imperial when it accumulates a disparate amount of power and disposes of it to control the destiny of other states. American hard power is simple. America has the largest military globally, and its spending dwarfs that of its major competitors combined. While the American military is commanded by the ironically named “Department of Defense”, the US military is mostly offensive. Consider one of the most important American military assets: aircraft carriers (e.g., US has eleven aircraft carriers, most of which find themselves far from American shores at any given moment). Aircraft carriers are essentially a mobile air force, supported by a “strike group” to defend them. Simply, the US wouldn’t need a mobile air force with a global reach if the sole purpose of these carriers was to defend American shores. These are offensive tools of power projection, plain/simple. This is to say nothing of the over 800 American military bases globally, or the complex web of global military alliances which ostensibly serve to defend America. Meanwhile, American soft power can be seen in the global reach of the English language, the influence of American democratic norms, American media, and so on.
This is not to describe the full extent of American influence (considering the examples noted), it should be clear that most states are so compromised by American power that they cannot be said to exercise free will in choosing their destiny. Aggressive wars are met with American sanctions, vassal states harbor American military bases, and American corporations leverage foreign economies. Perhaps the most striking example of American global influence is the fact that the American Dollar is the global reserve currency. Since the overwhelming majority of international business transactions use the dollar, the US has the de facto power to substantially exclude most states from international trade. Given the scope of American influence on world affairs, it is an empire. But empires are fragile, and the US is no exception. It no longer enjoys the economic and technological edge it once did. While America alone used to account for nearly half of the world’s economy, it now accounts for only a quarter. In fact, when accounting for purchasing power, the Chinese economy is larger than that of America. While the American military remains the most powerful, the US no longer has the largest navy, and as other countries’ economies grow at a faster pace than that of America, so too does their military budgets. While American institutions used to enjoy great respect and prestige, recent events, such as the January 6th riot, demonstrate that the American way of politics is far less functional than once thought. Indeed, after half a century of growing influence of liberal democracy globally, the number of countries which are classified as liberal democracies is now in decline. One could say that we are nearing the expiration date of Pax Americana.
Thus, the slow decline of the American empire explains, at least in part, what Koehler observes. As America gradually loses the capacity to leverage its influence to achieve its interests by accepted, legal means, it is only natural that it will increasingly resort to clandestine, extralegal means (corruption to preserve its global dominance). I point to two examples of lax, contradictory non-enforcement of the FCPA offered by Koehler: the bribing of foreign officials to purchase Boeing aircraft, and the preferential treatment enjoyed by the British defense contractor, BAE. Koehler notes that, in 2011, American diplomats gave kickbacks to various foreign officials in Saudi Arabia, Bangladesh, and Turkey so as to induce them to purchase Boeing jets, and not jets from its competitor, Airbus (Koehler, 536-538 & 540). In this way, American diplomats, who ostensibly act on behalf of the American government (acts on behalf of the American people) are little more than business consultants for a private company. Such acts are at least arguably corrupt, and they are disheartening given that had a private American company done the very same thing, they would have acted illegally under the FCPA. It is significant to question why it is that American diplomats are acting this way, especially given the power and respect that American companies have traditionally enjoyed.
The answer might be that Boeing, a vassal of American influence, is in decline and in need of subsidy via corruption to preserve influence. Boeing used to enjoy an undisputed dominance with almost no competitors. Today, Boeing controls less than half of the market; Airbus has overtaken it. The decline of Boeing is long and storied (its decline is chronicled in a Netflix documentary) focuses on the scandal of the Boeing 737 MAX, the crashes it caused due to malfunctions, and its various attempts to cover up the scandal. Granting that one of the largest American corporations, an essential defense contractor, is in decline, it is no surprise that American officials have attempted to prop it up via corruption to enable it to continue to compete. Koehler notes further that BAE should have been sanctioned according to the FCPA for its provision of millions of dollars’ worth of benefits to a Saudi official. Nonetheless, BAE was merely charged with conspiracy rather than violation of the FCPA. Koehler notes that BAE is the fifth largest defense contractor in America, and an FCPA conviction could result in prohibition of BAE receiving government defense contracts. In short, BAE is critical to the American national security apparatus, and so the DOJ treated them differently. Perhaps when America adopted the FCPA, it had the will/capacity to sanction a business important to the American national interest without significantly compromising American power in the near term. But in today’s environment, defined by a gradual shift to a multipolar world, it is rational for America to decline to prosecute BAE to the fullest extent possible. Indeed, the US remains and has even recently increased its share in global arms sales. A de facto blacklisting of BAE Systems wouldn’t only limit access by the American government, but it would reduce BAE’s capacity to export to the benefit of other companies less friendly to the West.
The Woke Culture: Was Occupy Wall Street Unsuccessful?
The argument against corrupt private campaign finance is that federal election candidates are too reliant on campaign expenditures by wealthy individuals and corporations, which make up a small subset of the population. The small subset of wealthy donors thus has an outsized influence on public policy. Since these wealthy donors are not “the people”, and since their preferences so often diverge from the interests of “the people” and are nonetheless reflected in public policy, the US suffers from a corrupt democratic deficit. This democratic deficit, justified the Occupy Wall Street movement. It has been argued that the movement was a success, since it resolved the democratic deficit to some extent by placing wealth inequality and unconventional corruption generally on the list of issues to be addressed by politicians. Perhaps such movements explain the rise of Bernie Sanders as well as Hillary Clinton’s shift to support of policies that were designed to address wealth inequality.
Insofar as a government is unconventionally corrupt when its officials are motivated by improper incentives (large campaign expenditures), hence, one can’t dispute that the US is unconventionally corrupt. True; the 2016 democratic primary followed the Occupy Wall Street, but that does nothing to prove that it caused the rise of populist policies (reject the argument that it led to the unique campaign platforms touted by Sanders/Clinton). In fact, middle incomes in America have been largely stagnant for years. Rather than pointing to Occupy Wall Street as a successful protest against a democratic deficit that contributed to the formation of the 2016 democratic platform, it is more crucial that the systemic issue of wealth inequality would have led to the very same democratic platform, independent of the fizzled out Occupy Wall Street movement. But even if we take for granted that the Occupy Wall Street was an independent cause of a growing conversation about wealth inequality, I dispute that growth in conversation is sufficient to deem it a somewhat successful response to the deficit. If the problem is a systemic one that will remain until the system is reformed, a temporary increase in conversation is, at best, an equally temporary solution. By the same logic, one can argue that the Unite the Right March at the University of Virginia was a successful (positive) response to that deficit. So, the “woke culture” has captured American politics and culture, leading to a perverse and corrupt incentive which deviates from the mostly white “people”, thus creating a democratic deficit. It was successful insofar as it increased conversation, pushing the “Great Replacement” theory onto political platforms.
Reinvent the Wheel: Unrealistic Proposals
Some scholars argue for a system of public financing for campaigns. Once a candidate receives a certain requisite number of small contributions, they would enjoy public campaign financing roughly equal to candidates that rely on private spending. Additionally, a constitutional amendment has been proposed that would allow Congress to regulate campaign finance (effectively overturns the Buckley v. Valeo and Citizens United cases). To achieve this, a state constitutional convention has been anticipated, since incumbents in Congress could hardly be expected to vote against their own interest. I seriously doubt these solutions are helpful/achievable from a pure practical perspective. On the public financing proposal, it would be met with large scale opposition funding from the individuals and corporations that benefit from the status quo. Moreover, Americans seem to have a general distrust in government (not a clear majority would be in favor of funding any single candidate with public tax dollars). On the constitutional amendment, a number of movements have attempted to confer an Article V convention in the past, and none were successful. To date, America has not had a single such convention. Given the divided state of American politics today, it is unreasonable to consider this possible.
It’s an individualist industrialized society. Sure, large corporations (wealthy individuals) will have a limited capacity to control the conversation, but the dialogue would be plagued by the very same deficient, slogan ridden, surface-level mudslinging to the detriment of us all. The affairs of Washington, DC would remain the very same far away cage match that none of us seem capable of controlling, and perhaps “the people” would in fact grow more dissatisfied, given their increased tax bill. This is to say nothing of the fact that the wealthy pay the overwhelming majority of federal taxes and thus might retain the very same influence. A politics flooded with money is problematic. It’s a symptom of a deeper disease rather than a disease in itself which leads to democratic deficits. The cause of the democratic deficit is American consumer culture (accustomed to power, freedom and abundance that take little interest in politics as people). With time, the quality of the political communications has eroded to cheap sloganeering, almost completely unsupported by any empirical data. Indeed, American politics today is more about crushing the opposition (“owning the libs”) than it is about making anything substantively better. Rather, “buy” the campaign slogans, use them to bludgeon opponents, and fold arms and smile until the pendulum swings back and the opposition is back in power.
Perhaps the only practical solution that would actually affect the status quo in America is greater investment in public education. There is no constitutional problem with funding education. In fact, greater education funding enjoys substantial support. Further, public education would immunize average Americans from cheap slogans, driving them to demand deeper discussion. Classes in logic, philosophy, and rhetoric, the likes of which many American lawyers have enjoyed, would likely increase the quality of political discourse generally. There is no need to publicly fund elections or amend the constitution to regulate them. We simply need to increase the general level of education to something closer to the ivory towers debating the issue, have enjoyed. This is practically achievable absent constitutional issues, to say nothing of the collateral benefits it might produce. The American imperial posture might explain some issues, but I don’t purport to show that imperialism is the only cause, or even the most important cause. However, good faith FCPA enforcement in many instances seems to threaten the erosion of the American empire. Simply, the preservation of American power is more important than ferreting out corruption, despite the letter of the law. Moreover, those educated on corruption and its effects would be less likely to support candidates like Donald Trump, who is a clearly corrupt sloganeer of the worst kind.
Mohamed Arafa, SJD, is a Professor of Law at Alexandria University Faculty of Law (Egypt) and an Adjunct Professor of Law & the Clarke Initiative Visiting Scholar at Cornell Law School. Currently, he is a Visiting Professor of Law (Fall 2024) at Chandigarh University Faculty of Law in India.
