40 Years Since Watergate
This Sunday marks the 40th anniversary of the notorious Watergate break-in and the beginning of President Nixon’s infamous fall from grace. Much of the commemoration undoubtedly will center on the crime, the cover-up, and the Woodward and Bernstein saga. But this is also a chance to reflect on one of Watergate’s greatest legacies: significant strengthening of public corruption laws and a movement towards greater transparency and disclosure.
One of Congress’s first responses to the Watergate scandal was to amend the Freedom of Information Act (FOIA) to ensure greater and faster agency compliance and enhance public access to records that reveal what our government is up to. These FOIA reforms served as the stepping stone to a decade of good governance reforms that included, among other things, the creation of the Federal Election Commission (FEC), passage of the Foreign Corrupt Practices Act, and the implantation of tougher disclosure and ethics laws for public officials. Watergate proved to be the catalyst needed to prod Congress into action. Forty years later, however, we sadly are witnessing the wholesale abandonment of many of these reforms.
Perhaps the apex of this trajectory was the Supreme Court’s Citizens United decision in 2010, which unleashed a flood of corporate special interest money into our elections. The Court’s assumptions that “uncoordinated” independent spending is not inherently corrupting and that the current disclosure regime sufficiently informs the public as to who is influencing elections were shockingly naïve. This and subsequent lower court decisions have turned one of the key lessons from Watergate on its head: anonymous money corrupts. Meanwhile, 2012 is on pace to be the most expensive election cycle in history, thanks in large part to outside spending by Super PACs flooding our airwaves with secret money. Further, one of the signature post-Watergate reforms, public financing of presidential campaigns, as opposed to relying on big-money donors, is on its way to extinction despite having worked well for decades.
Disturbingly, the agency tasked with enforcing and implementing what remains of campaign finance law – the FEC – ignores its responsibilities. The three Republican commissioners seem hell bent on eviscerating the agency’s regulations and robbing the agency of any vitality, as they routinely deadlock with the Democratic commissioners on even the most blatant campaign finance violations.
The problem lies not just with our campaign finance laws. A string of court decisions have stripped away the tools prosecutors employed to target public corruption. Congress rightly recognized long ago that corruption takes various forms – from classic quid pro quo bribery to currying favor with gifts – and consequently wrote the laws to be expansive and flexible to root out malfeasance. The Supreme Court’s recent decision in Skilling v. United States, however, sharply limited the scope of what was known as the “honest services” statute, invalidating the law except in cases involving the most obvious bribery and kickbacks. As a result, corrupt public officials will have an easier time escaping accountability for their misdeeds.
The erosion of accountability measures does not stop at our borders. Even foreign bribery statutes are under attack, with groups like the Chamber of Commerce attempting to eviscerate the Foreign Corrupt Practices Act, a landmark Watergate reform that prohibits domestic companies from bribing foreign officials to obtain international business opportunities. This is the kind of corruption that erodes public confidence in the integrity of the free market system, rewards corruption instead of efficiency, and to state the obvious, is unethical.
We could congratulate Congress for passing a law this year banning insider trading by members of Congress and their staff, but such praise would be short-sighted. After the Senate passed strong legislation including some of the most significant reform measures in decades, the House Republican leadership stripped the bill of the best provisions. It is hard to imagine how a scandal of even Watergate proportions would spur this present crop of lawmakers to serve the public, rather than their own self-interests.
If members of Congress are wondering why their approval numbers are at a record low, they have only to look in the mirror. Given the events of the past few years, we have little hope Congress will do anything to restore integrity to our election system and public corruption laws, much less to Congress as an institution. Forty years post-Watergate, however, it’s worth remembering a time when our elected officials wanted to do more than rake in campaign contributions, avoid accountability, and win elections no matter the cost.