It’s too bad that Felicity Huffman has been indicted. That probably so poisons her acting career that she can’t be cast as Paul Manafort’s wife, Kathleen, in the inevitable biopic of the lobbyist’s life. But Huffman and Manafort are spiritually connected, and the fact they are packed together above the fold today is more than an accident of timing. They are twin avatars of an elite that acts with impunity.
When Paul Manafort’s lawyers pressed their case for leniency in court on Wednesday, they made the argument that everyone knew about Paul Manafort’s malfeasance—and therefore, how bad could it possibly be? They pointed to the fact he met repeatedly with top government officials to kibitz about his clients in the government of Ukraine. (I wrote about such meetings in my profile of Manafort.) Obviously, those government officials knew him to be a lobbyist. So, really, what’s the harm of his failing to register as required by the Foreign Agents Registration Act?
In fact, the lawyers had a point. Manafort is being sent to prison for crimes that are systemic, hardly hidden, and usually elicit little more than a yawn or shrug. According to a Justice Department report in 2016, there had been seven prosecutions for failure to comply with FARA since 1966. What makes this figure so galling is how many eminent ex-government officials have served as “strategic advisers” to dictatorial governments.
They might represent foreign governments, but technically do not lobby Congress on their behalf; they make millions, while never subjecting their work to public scrutiny—or themselves to personal embarrassment. (From filings in the Mueller case, we now know that the Justice Department investigated Manafort for brazen disregard of FARA in 1986, just as he was setting out in his career as a lobbyist representing foreign governments. But it could apparently never summon the will to prosecute someone so well connected.)
Or take the more rampant problem of tax evasion. While Manafort will serve time for failing to pay his bills to the government, armies of lawyers and accountants are feverishly devising novel methods of enabling the rich to cheat the IRS, depriving the U.S. of nearly $200 billion in revenue each year. As one old joke holds, the difference between tax avoidance (which is legal) and tax evasion (which is not) is the wall of a prison.
This is the same pattern made visible by the college admissions scandal. The public gets inflamed over a supposedly outrageous piece of behavior that is really not so far from the standard elite procedure. When a wealthy donor contributes $10 million to a university, imagining that their child will someday attend, administrators call it a “gift” and applaud the gesture of philanthropy. But it is, in effect, institutionalized bribery, and it creates new templates of moral behavior. It makes recognizing as wrong under-the-table payments to college coaches harder for parents, when these payment so resemble the gift-giving they see officially sanctioned.
America never had an edenic period, when the country resided in a state of pristine civic virtue. But the past half century has ushered in an era of rank indifference to the perils of corruption and bribery. Not so long ago, the United States had a far more robust definition of what counted as a bribe. That broad definition constrained the growth of the American lobbying industry. Back in the 1960s, lobbying hardly existed in Washington—at least not in the form and on the scale that we now know it. The ledger of officially registered lobbyists extended into the high double digits. By the 1990s, the population of lobbyists had swelled to well over 10,000.
If Americans are more comfortable living in a world of bribery, perhaps it’s because American jurisprudence has legalized so much of it. One accelerant was Justice Anthony Kennedy’s opinion in the Citizens United case, in 2010. Kennedy gave the Supreme Court’s official sanction to anonymous campaign contributions, overturning a long trajectory of reforms that prodded the political system in the direction of transparency and rigid limits. Kennedy’s decision made tracing how political giving shapes political decisions nearly impossible. But it was even worse than that. Kennedy’s justification officially circumscribed the legal definition of bribery, constraining it to encompass only the most explicit bribes and quid pro quos. He scrubbed away the Founders’ concern with the corrupting influence of gifts, which had been enshrined in the Constitution.
Paul Manafort also helped invent this world. He pioneered the structure and practices of the modern K Street lobbying firm. At each step in his career as a lobbyist and consultant, he kept pushing the boundaries of the acceptable, because his experience had shown that he would always get away with it. Until Robert Mueller came along, Manafort had every reason to believe that he would never pay a price for his malfeasance. The fact that he will now serve time is a victory in the war against corruption; that he will encounter so few of his own kind in prison is a testament to the fact that we are still losing the war.