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Privatizing Corruption

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When Congress approved the Bill of Rights in 1789, corruption was still understood as the seizure of private property by the state. Today, it's the other way around: corruption now occurs when private interests improperly extend themselves into the public sphere.

But just where is the line between proper and improper? And who gets to decide?

I first began pondering those questions early last week, after new allegations in the Cunningham, Noe, and Abramoff scandals and after the government's last-minute, $120 billion reduction in the damages it was seeking from big tobacco. Each instance seemed to underscore both the necessity of keeping the public sphere secure from private interests and the difficulty of doing so. After all, how many Abramoffs are there who don't get caught? And how many lobbyists would never be prosecuted even if they were -- not for want of evidence, but because what they do is entirely legal?

Not surprisingly, the more I looked at the issue the more ambiguous it became. Early Congresses were too preoccupied with securing property from government to safeguard government from property. And rightly so: they'd all experienced monarchical rule. Yet if private-interest corruption was necessarily an ancillary concern, it's proven no less noxious to the public realm. In fact, you could argue that it's been even more harmful because it's more insidious: from the Tillman Act in 1907 to McCain-Feingold three years ago, the case can be made that campaign finance legislation has merely restored the appearance of public integrity while allowing for corruption itself to continue unabated.

Then last Thursday came the extraordinary news of the Supreme Court's decision in Kelo v. New London. At first glance, Kelo was remarkable for Justice O'Connor's impassioned dissent, in which she noted that Justice Stevens' majority opinion would "dissolve" a crucial distinction between the public and private spheres. In truth, though, the ruling was more remarkable for the logic on which it was based. Stevens grounded the decision not on a novel or compelling argument, but upon a long line of precedence. In other words, Justice Stevens didn't argue that the distinction between public and private should be dissolved; he said that in terms of "public use" they already had been, and that the court might as well admit it.

Which brings us right back to private-interest corruption. If the distinction between private and public were ever fully dissolved, then the presence of private-interest "corruption" would become only a matter of degree. Even worse, the "integrity" of the public sphere would become irrelevant to the juridical and legislative functions of our government. What's so extraordinary about Kelo is how unwittingly it confesses that this has already happened.

The question now is how to go about reclaiming a public sphere from its absorption into the private realm. At 25, I'm well aware that neither I nor any of my peers has the experience necessary to know how to do this. But I do know it will be a defining challenge for my generation. For if our public sphere collapses into the private realm, something essential to our democracy will be lost, something no amount of lobbying could return: the freedom to dream that we could be doing better.