Maureen Cavanaugh is a professor of law at the Penn State- Dickinson Law School. She previously taught at Washington & Lee University, where she served as Alumni Teaching Fellow (2001-02) and John W. Elrod Law Alumni Association Fellow in Teaching Excellence (2002-03). Professor Cavanaugh has written several articles, including "Tax as Gatekeeper, Why Company Stock Is Not Worth the Money," 23 Va. Tax Rev. 365 (2003); "On the Road To Incoherence: Congress, Economics, and Taxes," 49 UCLA L. Rev. 685 (2002); and "Order in Multiplicity: Aristotle on Text, Context, and the Rule of Law," 79 N.C. L. Rev. 577 (2001).
She is currently exploring the correlation between political systems historically and the allocation of tax burdens, from Rome (Republic and Empire) through the periods leading up to the founding of the United States, which necessarily raises the administrative issues, such as the use of private tax collectors, discussed in this article.
* * * * *
Two separate tax bills, including now the Senate amendments to the House bill, contain provisions enabling the IRS to use private tax collectors.1 When initially proposed, opponents of the use of private debt collection were dismissed as consisting primarily and predictably of Treasury employees.2 Now the measure has sparked opposition even among a growing number of House Republicans.3 There is little disagreement that more resources are needed to collect taxes, whether those taxes have already been assessed or are taxes not yet assessed, but included in the "tax gap" owed to the Treasury.4 The issue is simply how the funds should be collected and who -- public employees of the government or employees of private contractors -- should do the collecting.
The question, although not generally framed as such in the context of tax collection, is whether the function identified for outsourcing -- here, tax collection -- is so quintessentially part of the function of government that it should be performed only by employees of the government or whether it is arguably better performed by contractors subject to the forces of the market, whose pay for private tax collectors is linked with their successful collection of whatever tax is due.5
The debate about private tax collectors has gone on this year, apparently (and surprisingly) without reference to the use of private contractors now in traditional military roles, especially in Iraq, or the role that private contractors may have played in the prison scandal there.6 While not pretty, these Iraq experiences tell us not that a bad job can be done by anyone, but, more importantly, that it may well matter at the end of the day whether the individuals involved in doing that job are employed by the government or a private contractor. What recourse is available, should it be needed, and what safeguards are in place to prevent, or at least reduce, potential abuse varies.7 They are not necessarily the same, whether we are dealing with a government employee or a private contractor.8
The question of whether private contractors should perform any particular function is a complicated one, requiring consideration of empirical evidence concerning who might perform a job more efficiently as well as what rights are at issue.9 The collection of taxes by private contractors should give us pause, knowing how fully implicated the issue of taxation, including tax collection, is with our political history and citizens' expectations about the nature of their rights and duties vis-à-vis their government.10 If efficiency or other conditions argue for the use of private contractors, we should at least begin by asking what safeguards are necessary to protect the rights of private citizens and taxpayers. Although an important question, it is one that this short article makes no attempt to answer, nor does this article offer specific recommendations.11 Instead this article offers a brief review of the historical record, already in our collective national consciousness, even if not acknowledged in this debate. Recognizing what the past can teach us might give us a more complete perspective about how to best use private tax collectors while we protect citizens' rights when looking to the private sector to perform traditional government functions.
Before considering the evidence provided by antiquity's (defined here as including any premodern state) use of private tax collectors (for example, Rome used private contractors on a large scale to perform the tax collection function for centuries), it is useful to recall Benjamin Franklin's Rules for Reducing a Great Empire to a Small One, which satirically catalogues the myriad mistakes of both England and antiquity in the areas of provincial administration, including tax collection.12 Franklin highlights for the benefit of ministers who administer "extensive dominions" 20 things they will do if they want to foment rebellion among subject populations. Specifically guaranteed to make taxation "more odious, and more likely to procure resistance" Franklin suggests -- with tongue in cheek -- entrusting its collection to a group "composed of the most indiscreet, ill-bred, and insolent [men] you can find."13 Franklin continues: "Let these have large salaries out of extorted revenue. . . . If any revenue officers are suspected of the least tenderness for the people, discard them."14 Franklin suggests converting brave officers of the Navy into customs officers, and removing local administration from those familiar with local conditions and replacing them with administrators indifferent to the well-being of the people.15
Franklin's pamphlet reveals a level of experience with private individuals who perform government functions and don't operate fully subject to the safeguards we presume that government provides (the norm in the premodern state) that we would do well to seriously consider. Lacking an extensive state bureaucracy, antiquity was reliant on private individuals for help in performing what we consider to be government functions, such as providing supplies necessary for the military or collecting revenue. While both the Greeks and the Romans used private tax collectors to collect amounts assessed by the state, it seems likely that their experience differed, given that we hear little about private tax collectors in Greece while the record is much fuller from the period during which the Romans flourished.16
Private Tax Collectors in Rome
The record from Rome includes writings of Rome's most noteworthy historian as well as Jewish and Christian writers. Because the record is uniformly hostile, it provides a useful perspective, especially given a current focus that looks primarily at who can most efficiently perform the function. It is possible to gain an important perspective by asking what gave rise to so negative a tradition. We might learn, as Rome did, how to use private contractors while preventing the most egregious examples of bad behavior before, rather than after, their occurrence.17
For the Romans, the struggle between the class of people who provided government services (the Equestrians) and those with the greatest political power (the Senatorial class) is really a history of the rise of the Roman Republic and its acquisition of an empire. A detailed history of that is unnecessary for our task. However, Cicero's (106-43 B.C.E.) prosecution (recounted by him in the Verrines) of one provincial governor (Verres) for his mistreatment (including excessive taxation) of the Sicilians is instructive for us, though it is most well-known to those interested in Cicero's individual rise to political prominence.18 The Verrines provide a record of provincial administration gone awry, and one that was so well-known that it was familiar to the classically educated founders, including Benjamin Franklin.19
Even ignoring the course of Roman history, we might find noteworthy the Roman historian Livy's (59 B.C.E.-17 A.D.) conclusion about private contractors (in Latin publicani, because their business was doing public works): "Where there was a private contractor (publicanus), there was no effective public law and no freedom for the subjects."20 Although Livy's comment reflects a generalized distrust of contractors, on the whole the Romans seemed able to work with the publicani, relying on a system that prevented most egregious abuse, although it may have allowed for questionable behavior at times. The system worked well for those in power, if not always for their subjects, and the Romans showed no willingness to impose greater control over private contractors as a group until Augustus (63 B.C.E.-14 A.D.) overhauled the administration of the empire. Augustus ended a long period of civil war and initiated a long period of peace, known as the pax Romana. At the beginning, the early empire was characterized by a well-oiled administration, due in part to Augustus's stricter control imposed on all officials and contractors. That improved administration allowed the provinces to prosper and contributed to the success of the pax Romana.21 With a willingness to admit a greater need for bureaucracy and recognition of the importance of proper administration of the entire empire, Augustus (with his political struggles having been resolved) could focus on what was necessary to administer Rome's empire.
Rome's experience with private contractors is of interest mainly to the ancient historian (even knowing Livy's opinion that "where there was a private contractor (publicanus), there was no effective public law and no freedom for the subjects"). The Christian and Jewish experience with private tax collectors is, however, more familiar to the average modern taxpayer. The tradition is both well-known and emphatically negative. Since it is coupled with generalized popular awareness, it is risky to ignore it. Instead, we should try to gain from previous experience so that when using private tax collectors, we do so with a minimum of harm.22
The New Testament
For example, it is common in the New Testament to find tax collectors appearing among the sinners with whom Jesus associates. For example, Jesus juxtaposes tax collectors and Gentiles in a way that is favorable to neither. In one familiar passage, Jesus says: "For if you love those who love you, what reward have you? Do not even tax collectors do the same? And if you salute only your brethren, what more are you doing than others? Do not even the Gentiles do the same?"23
The New Testament tradition suggests that Jesus and his enemies alike regarded the tax collector, individually as well as collectively, as the paradigmatic sinner. According to his enemies, Jesus revealed his true nature -- as a sinner -- by associating with known sinners, including tax collectors: "The Son of Man came, eating and drinking, and they say, 'Look, a glutton and a drunkard, a friend of tax collectors and sinners.'"24 When the Pharisees saw him dining with "a number of tax collectors and sinners" they asked why he associated with such men. "When he heard this he said to them, 'It is not the healthy who need the doctor, but the sick. I did not come to call the virtuous, but sinners.'"25
Why Jesus sometimes regarded tax collectors more favorably than the Pharisees is revealed in the following parable, which also gives us some clues about characteristics of tax collectors that resulted in their negative reputation: "Two men went up to the Temple to pray, one a Pharisee, and the other a tax collector. The Pharisee stood there and said this prayer to himself: 'I thank you, God, that I am not grasping, unjust, adulterous like the rest of mankind, particularly that I am not like this tax collector here. I fast twice a week; I pay tithes on all I get.' The tax collector stood some distance away, not daring even to raise his eyes to heaven; but he beat his breast and said, 'God, be merciful to me, a sinner.' This man, I tell you went home again at rights with God, the other did not. For everyone who exalts himself will be humbled, but the man who humbles himself will be exalted."26 Tax collectors were considered sinners in need of "repentance"27 who might be cured if they followed Jesus, who could serve as their "physician."28
When they were willing to repent, knowing full well the extent of their sins, tax collectors sometimes compare favorably with other sinners. Instructing those who would correct their brothers, Jesus suggests the following: "If your brother does something wrong, go have it out with him alone, between your two selves. If he listens to you, you have won back your brother. If he does not listen, take one or two others along with you: the evidence of two or three witnesses is required to sustain any charge. But if he refuses to listen to these report it to the community; and if he refuses to listen to the community, treat him like a pagan or a tax collector."29 In contrast, when confronted with unrepentant Pharisees, Jesus says: "I tell you solemnly, tax collectors and prostitutes are making their way into the kingdom of God before you."30
As the author examining these references takes pains to point out, the various sources mentioning Jesus and the tax collectors should be seen for what they are: evidence of Jesus's solicitude for those willing to repent, not proof of his enemies' charges or guilt by association.31
For example, Jesus is also thought by some to be a revolutionary because of his association with Simon, who is described as a Zealot (that is, a revolutionary). Jesus's fellowship with tax collectors saves him from such a charge, since no Zealot or Zealot sympathizer would ever have associated with tax collectors.32
At this point, we should ask why tax collectors were so despised, especially by both Christians and Jews. Working for the hated Roman authorities explains some of the animus found in Christian and Jewish authors. Because Jesus admonishes the tax collector seeking baptism to "exact no more than your rate,"33 we can conclude that their evocation of universal hatred stems in part from demanding of taxpayers more than they actually owed.
We can further assume that the tax collectors' demands went beyond simply asserting more tax due than the taxpayers ultimately paid.34 Tax collectors had a reputation for "extortion, rapacity and merciless hounding of their victims," equal to the hatred they inspired.35 And so we can understand why Jesus's association with tax collectors as a group provided such fertile criticism for his enemies, especially having a tax collector (Matthew) among his disciples. The conversion of Matthew, Matthew's decision to become one of Christ's disciples, is recounted variously in the New Testament but is the basis of the dramatic visual image in a well-known masterpiece painted by Caravaggio around the end of the sixteenth century.36 The Calling of St. Matthew by Caravaggio (c. 1571-1610 A.D.) vividly portrays the moment of conversion and represents Matthew's final rejection of his former profession as a tax collector, with two figures in the painting still counting currency in the foreground while Matthew chooses to follow Christ.37
The passages from the New Testament, although conclusory in nature, nonetheless provide an unflattering characterization of tax collectors. To find more detailed evidence that reveals the reason for private collectors' reputation -- giving us details that go beyond mere association with tax collection itself -- it is necessary to look to the Jewish tradition for examples of tax collectors' reputation for mercilessness.38
Negative epithets commonly used of tax collectors by Greeks and Jews along with stories involving tax collectors appear in greater detail in the Jewish tradition. It is this tradition that helps to explain why tax collectors had such an "appalling reputation for extortion, rapacity and merciless hounding of their victims."39 Pollux (2nd century A.D.) in his Onomasticon collected a list of epithets that emphasizes the brutality, greed, and lack of any feelings of human mercy characteristic of private tax collectors that helps explain this negative tradition as something more than mere dislike associated with paying taxes.40
Greater detail is provided by Philo (30 B.C.E.-45 A.D.), who gives voice to the Jewish tradition of hatred for those who placed themselves outside the law and provides a vivid image of why tax collectors were so hated by the provincial population unable to protect itself:
They [Romans] deliberately choose as tax collectors men who are absolutely ruthless and savage, and give them the means of satisfying their greed. These people who are mischief-makers by nature, gain added immunity because of their "superior orders," obsequious in everything where their masters are concerned, leave undone no cruelty of any kind and recognize no equity or gentleness . . . as they collect the taxes they spread confusion and chaos everywhere. They exact money not only from people's property but also from their bodies by means of personal injuries, assault and completely unheard of forms of torture.41
Philo relates, in gross detail, accounts of tax collectors who, stymied in their attempts to collect taxes from the dead or dying, personally participate in the mistreatment of the same dead and dying.42 Philo recounts one scandal to illustrate his judgment of tax collectors as having a "savage, bestial nature" doing their part to ruin others, sometimes for revenge, sometimes merely because of "greed and rapacity."43 Faced with the escape of those unable to pay because of poverty, Philo reports that tax collectors carried off the remaining women and children to beat them into paying off the debt or, more likely, explain the whereabouts of the fugitive debtors.44
Methods of exacting revenue from the populace at large by torturing those too destitute to pay served as a warning, for those not yet under scrutiny, when the torture was carried out in a public place.45 With a vocabulary close to Pollux, Philo provides a vivid picture of private tax collectors in the provinces where, for Jewish commentators, they were linked with confiscators and torturers, bringing whole cities to ruin.46 In some ways, for the individuals affected and the collective consciousness, these tax collectors were worse than robbers or thieves because tax collectors' entrance into the house resulted in the whole house being regarded as defiled (unlike robbers, who defiled only that portion of the house they actually entered).
For Jewish commentators, the tax collector was a particularly hateful individual who often operated outside the law, whether they chose simply to overcharge the taxpayer for their own gain or carried out more extreme measures, including extortion or torture.47
The use of private tax collectors over a period of centuries by prebureaucratic states lacking the bureaucracies necessary to carry out the state's functions, whether supplying military needs or collecting revenue, shows that the use of private contractors can be a useful solution to an existing need, but it is one not without peril to government and taxpayer alike. Given the long history of their use and the variable experience with them, history also shows that governments can use them and put into place adequate safeguards and supervision to make the system less problematic. Without safeguards in place from the beginning, the strength and perseverance of the hostile tradition remains vivid long after elimination of any abuse.
Also, it should be instructive to note that the vehemence and hostile tradition toward tax collectors is strongest among populations not able to avail themselves of usual state protections. That suggests the need for careful review of whatever safeguards are put in place to protect all taxpayers generally, and in particular especially vulnerable groups, while at the same time achieving any hoped-for efficiency gains. One conclusion is likely from a brief review of the history: Safeguards appear to provide better protection if they establish ongoing oversight and not merely provide penalty provisions once something has gone awry.
1 S. 1367 (Jumpstart Our Business Strength (JOBS) Act), H.R. 4520 (American Jobs Creation Bill of 2004), and now the Senate- amended H.R. 4520 (American Jobs Creation Act), this last now available at Doc 2004-14739, 2004 TNT 139-7. Similar language appears in both bills: "Nothing in any provision of law shall prevent the Secretary from entering into a qualified tax collection contract." A "qualified tax collection contract" is defined as "any contract . . . for the services of any person (other than an officer or employee of the Treasury Department)." See S. 1367, section 487 (Qualified Tax Collection Contracts).
2 For initial coverage of the issue of private tax collection, see Amy Hamilton, "IRS Considers Hiring Private Debt Collection Agencies," Doc 2002-9151, 2002 TNT 73-4 (discussing initial IRS discussions with three companies); Amy Hamilton, "IRS Considers Hiring Private Debt Collection Agencies," Doc 2002-23488, 2002 TNT 202-13 (reporting on The Wall Street Journal coverage of IRS negotiations); and House of Representatives, "Unofficial Transcript of Hearing on IRS Use of Private Collection Agencies," Doc 2003-12694, 2003 TNT 100-36 (giving proponent and opponent testimony). Opponents included not only Treasury employees, but also members of the IRS Oversight Board and the Tax Executives Institute. See Amy Hamilton, "The 'Fight' Over the IRS Hiring Private Debt Collectors," Tax Notes, Oct. 20, 2003, p. 321 (detailing a national Treasury Employees Union survey showing a strong majority of even those favoring President Bush opposing his plan to hire private debt collectors); "IRS Oversight Board Divided on Outsourcing," Doc 2003-7307, 2003 TNT 55-4; and "TEI Testimony at W&M Oversight Hearing on Return Filing, IRS Budget," Doc 2003-8894, 2003 TNT 68-25 (recording TEI opposition to private debt collectors). IRS National Taxpayer Advocate Nina Olson called the use of private collection a "limited but reasonable option." See "Olson Testimony at W&M Oversight Hearing on IRS Use of Private Groups for Debt Collection," Doc 2003- 12049, 2003 TNT 93-29, but note her statement "[t]he government can contract out, but it must retain sufficient control over the private contractors to ensure against arbitrary or self- serving use of government power." "Unofficial Transcript of Hearing on IRS Use of Private Collection Agencies," supra.
3 "House Republicans Speak Out Against Private Debt Collection," Doc 2004-11987, 2004 TNT 110-5.
4 The tax gap -- essentially the revenue lost due to individual and corporate noncompliance with the tax law -- was recently estimated at $311 billion annually. See Heidi Glenn, "IRS Officials, Tax Aides Discuss Tax Gap," Tax Notes, May 17, 2004, p. 806 (reporting on the tax policy committee panel held at the ABA Tax Section midyear meetings on May 7, 2004). The "gap," although not discussed as such, represents some estimate of what compliant taxpayers must be taxed to cover the shortfall. For example, former Commissioner Charles O. Rossotti estimated that closing the loopholes from corporate tax shelters would result in a sizeable (15 percent) tax reduction for all other taxpayers. "Tax Me If You Can," Frontline (Feb. 19, 2004) transcript available at http://www.pbs.org/wgbh/pages/frontline/shows/tax.
5 The House Republican letter stated: "Tax collection is one function that is, and should remain, inherently governmental." This letter also raises privacy concerns and taxpayer protection issues, issues unrelated to the centrality of this function to the role of government. Id. Contingent pay has been at issue in some taxpayer suits against the government. See Bruce LaRoche and Kevin Mulligan, "Reward for Compliance: Tax Equity 'The Tax Ferret's' Untold Story," 413 Multistate Tax Report (Dec. 27, 1996) (reporting on an unsuccessful challenge of tax due based on the contingency fee contract under which the private contractor operated as violative of public policy). But see Robert Kenney, "The Threat of Tax Bounty Hunters to Privacy and Civil Liberties," J. State Tax'n 82 (Oct. 11, 1997) (reporting on other states' experiences and various other, and more successful, challenges to contingent fee arrangements).
6 Before there was knowledge of the prison scandal in Iraq, the horrific killing and mutilation of four defense contractors in Fallujah focused attention on the use of private contractors there. See "Analysis: Growing Use of Private Contractors to Provide Security in Iraq," National Public Radio (May 3, 2004) (interview featuring Peter Singer, author of Corporate Warriors: The Rise of the Privatized Military Industry (2003), which focuses on the increasing privatization of the military). The role of and growth of Halliburton had already been the focus of an article discussing privatization and the role of Halliburton in Iraq in February 2004. See Jane Mayer, "Contract Sport," New Yorker (Feb. 16 and 23, 2004) (detailing the amount of money at stake and the apparent lack of competition among private contractors and thus raising questions about their efficiency).
7 The literature on the phenomenon of privatization has not kept pace with its growth. See Jack M. Sabatino, "Privatization and Punitives: Should Government Contractors Share the Sovereign's Immunities from Exemplary Damages," 58 Ohio St. L.J. 175 (1997) (arguing that the reasons for sovereign immunity are arguably inapplicable to government contractors); Douglas W. Dunham, "Inmates' Rights and the Privatization of Prisons," 86 Colum. L. Rev. 1475 (1986) (discussing various constitutional rights not fully addressed within the context of prison privatization). Given the increasing prevalence of privatization, the literature is sparse to date. For the most recent article discussing private collection of taxes, see "Much Ado About $26 Million: Implications of Privatizing the Collection of Delinquent Federal Taxes," 16 Va. Tax Rev. 699 (1997) (focusing not on potential abuses and their remedies, but mainly discussing state experiences with private contractors).
8 See Joe Thorndike, Review of Richard Yancey's Confessions of a Tax Collector: One Man's Tour of Duty Inside the IRS, Tax Notes, July 12, 2004, p. 211 (noting the dated quality of Yancey's book, because it describes abuses theoretically corrected by Congress in 1998). For the difficulties involved in holding military contractors accountable for any misdeeds, see, for example, Adam Liptak, "Who Would Try Civilians From U.S.? No One in Iraq," The New York Times (May 26, 2004) (discussing the difficulties involved in prosecuting civilian contractors involved in any misdeeds in Iraq and what, if any, law applies). See also "Lincoln Letter to OMB Poses Concerns About Government Work Outsourcing," Doc 2003-7004, 2003 TNT 53- 19 (Sen. Blanche Lincoln's (D-Ark.) concerns about accountability raised by government outsourcing).
9 For other areas in which the use of private contractors raises the issue of what protections are afforded to those dealing with private contractors now providing benefits and services previously provided by government employees, see, for example, Michele Estrin Gilman, "Legal Accountability in an Era of Privatized Welfare," 89 Cal. L. Rev. 569 (2001) (describing the differences in legal remedies for welfare recipients under a privatized form of a government-based system).
10 See Maureen B. Cavanaugh, "Democracy, Equality and Taxes," 54 Ala. L. Rev. 415, 430-442 (2003) (summarizing the role of taxes in the formative years of revolution and the founding of the republic).
11 Provisions in the two bills protect the federal government from any liability based on the actions of private contractors while also allowing for damages from those contractors based on "unauthorized collection actions." See S. 1367, section 487 (Qualified Tax Collection Contracts). The provisions of the Fair Debt Collection Practices Act are made applicable. See especially the language that will appear as amended section 7433A. The bills also contain provisions that disqualify individuals engaging in "misconduct" (undefined) from performing under the contract in the future. Id. at (d). Whether the provisions are sufficient, given their largely passive nature (that is, there is no provision for active oversight of the contractors), remains unclear. For an account of the lack of oversight of private contractors in Iraq, and some possible consequences, see, for example, Joel Brinkley and James Glanz, "Civilian Employees, Contractors in Sensitive Roles, Unchecked," The New York Times (May 7, 2004) (discussing the lack of checks and oversight of employees when the government assumes private contractors are investigating their own employees; meanwhile these contractors expect the government to make any checks necessary (quoting one contractor spokesman as saying "It's up to the government" to execute any background checks)).
12 Benjamin Franklin, Rules for Reducing a Great Empire to a Small One (1793).
13 Id. at chapter XI.
14 Id. The applicability of Franklin's comments are clear: If efficient performance -- that is, pay linked to amounts collected -- is expressed in the terms of the contract, by stating pay as a percentage of amounts collected, this may well promote "efficient" collection methods, but it may also increase the potential for abuse or confound some basic notions about fair tax administration. See supra note 5 (discussing taxpayer challenges to these contingent contracts).
15 Id. at chapters XI-XX. In chapter XX Franklin recalls the power of provincial generals during the Roman Empire who had power beyond the control even of the civil governors of that province and were capable of engaging in any excess, leaving the people without recourse.
16 E. Badian, Publicans and Sinners 14-15 (1972) (noting the use of "tax farming" or private collectors in both Athens and Rome but also noting that their similarities were fewer than their differences). But see infra notes 39-40 and accompanying text for the list of epithets collected by one Greek encyclopaedist.
17 To assume that problems, unless anticipated, are likely to occur with private tax collectors is commonplace among those familiar with history. See, e.g., Tenney Frank, Roman Imperialism at 98 (1972) (describing the system put in place by local administrators in Sicily before its conquest by Rome and noting the safeguards in place "to prevent extortion -- which usually develops in a contractor system of tax collection"). See infra note 21 and accompanying text (discussing how Augustus could not entirely and immediately eliminate the use of private contractors even as he expanded the state's bureaucracy (although their use was eventually eliminated in the Roman Empire). However, by carefully supervising and controlling this group, he is credited with having vastly improved life in general).
18 Cicero, The Verrine Orations (trans. L.H.G. Greenwood (1935)). For example, in the second speech against Verres, Cicero recounts details about Verres's (the provincial governor) relationship with the tax collectors (the most notorious of whom was named Apronius) as follows: "When you had thus given the collectors -- in other words, given Apronius -- this full liberty to plunder the farmer by demanding as much as he chose and taking as much as he demanded[.]" II.13. Cicero criticizes Verres for allowing his tax collectors to operate without supervision and criticized their measures "protecting" the provincials only through the right to sue the tax collectors for an amount "eight times that exacted." II.13.32-34. Besides the generalized harm caused by maladministration, current lawmakers might note the role this prosecution played in Cicero's rise to political prominence. For a discussion of the problems (administrative and political) posed by "tax farmers" in premodern France, see The Cambridge Economic History of Europe III at 437, 491-92 (eds. M.M. Postan, et al. (1963)) (describing the history of abuses in French private tax collection beginning with Louis XI and how the entire class of tax collectors became problematic politically).
19 See Franklin, supra note 15 (discussing chapter XX, which contains Franklin's comments on the administration of the Roman Empire).
20 Livy, History of Rome at 45, 18, 4 (as translated and quoted by Badian, supra note 16 at 12).
21 See Badian, supra note 16 at 19-21 (generally describing the publicani in a positive light during the period of the republic, although admitting some "bad" years -- for example 174 B.C.E. -- that only proved, according to Badian, that the safeguards in place worked). See H.H. Scullard, From the Gracchi to Nero 268-274 (1959) (describing the generally felicitous changes made throughout the administrative state following Augustus's rise to power). Scullard notes that Augustus was unable to eliminate the publicani but by careful supervision and "by his control of these subordinates [ publicani ] that Augustus rendered such valuable service to the provinces." Id. at 270.
22 See Badian, supra note 16, at 11 (opening his work on the publicani by acknowledging the hostile tradition). "If the average educated person has heard of the Roman publicani, he will know two things about them both based on reference in the New Testament: that they were tax collectors, and closely akin to sinners -- not fit people for a religious leader to associate with." Id.
23 Matthew 5:46-47.
24 Matthew 11:19.
25 Mark 2:15-19.
26 Luke 9:9-14. Walker points out that this parable is more a "ringing condemnation" of the Pharisee rather than a commendation of tax collectors, who are compared with "extortioners" and adulterers and generally grouped with the "unjust." William O Walker Jr., "Jesus and the Tax Collectors," 97 J. Bib. Lit 221 (1978).
27 Id. at 223.
28 Luke 15:1-2; 18:9-14; 19:1-10. Luke's concern with "outcasts" is noted. See Walker, supra note 26 at n.41.
29 Matthew 18:15-17.
30 Matthew 21:31. So too the story of Zachariaeus shows a repentant tax collector: Jesus eats in the home of the tax collector who repents and receives salvation. See Luke 19:1- 10.
31 Walker, supra note 26 at 221. Walker notes that there are only two passages actually reporting Jesus's "fellowship" (that is, freely associating or dining) with tax collectors and that all the other passages are more complicated, demonstrating the abject nature of the tax collectors rather than Jesus's association with them. Id. at 224, 238. See id. at 226-227 (citing passages that compare tax collectors with Gentiles, drunkards, and other sinners). See especially id. at notes 34-37 for citations to the negative synoptic tradition.
32 Id. at 222.
33 Luke 3:14.
34 See supra note 8 (discussing Thorndike's comments on the nature of tax collecting).
35 Maxwell-Stuart notes that tax collectors were grouped with "those who do not observe Mosaic Law" (citing Matthew 18:17; 21:31-3; 9:10; Mark 2:15-16; Luke 5:30). See P.G. Maxwell-Stuart, "Pollux and the Reputation of Tax Gatherers," 22 Rivisti di Studi Classici 157, 157 (1974).
36 See Matthew 9:9, 10:3. See also Walker, supra note 26 at 230. See also Matthew 9:9-13; Mark 2:13-17; Luke 5:27-32; Matthew 5:46-47; Matthew 11:18-19a; Luke 7:33-34; Matthew 10:3; Matthew 18:15-17; Matthew 21:31b-32; Luke 7:29-30; Luke 3:12-14; Luke 15:1-2; Luke 18:9-14.
37 Caravaggio, The Calling of St. Matthew. See H.W. Janson, 405 (and especially plate 50) History of Art (1970) for details of the painting, showing the two central figures counting money as a way to suggest Matthew's choice between his earlier profession and his current call to follow Christ. See Matthew 9:9; Mark 2:13; Luke 5:27-28. For the conversion of Matthew, see Matthew 9:9; Mark 2:14; Luke 5:27-28.
38 See Thorndike, supra note 8 (noting Thorndike's assessment that tax collection as an activity is not pleasant) ("Collecting taxes is not a pretty job, by its very nature: coercive and unpleasant"). But see Maxwell-Stuart, supra note 35 at 157 and 162.
39 Maxwell-Stuart, supra note 35 at 157 and 162 (asserting that the tax collectors' reputation involved more than the "Jewish contempt for the local quisling" but also noting that so established a collective negative reputation gave individual tax collectors little to lose, however they acted).
40 Pollux was active during the 2nd century A.D. Although the complete Onomasticon is lost, the epithets relevant to tax collectors are collected by Maxwell-Stuart, supra note 35 at 158.
41 Philo, De Specialibus Legibus 2.19 (93-95) (trans. Maxwell-Stuart, supra note 35 at 160).
42 "Indeed I have heard of some people who are so savage and absolutely raving mad that they do not even spare the dead -- to such an extent are they brutalized -- but have the audacity to flog the corpses with whips." Id. at 160 (translating and quoting Philo).
43 Maxwell-Stuart, supra note 35 at 160.
45 Id. at 160-61.
46 Id. at 162. Maxwell-Stuart contrasts the almost bitter quality of the Jewish commentators of the Talmud and Midrashim with the commentary found among the few classical authors who complain of tax collectors' greed and rapacity, but show more disdain than any other feature. Id.
47 Id. at 162 (citing Derek 'Erez Rabbath II (56a), Amos 5:19 and the Babylonian Talmud: Sanhedrin 98b and 25b; Tohoroth Mishnash 6, Shebu'oth 39a and Baba Kamma 113a).
END OF FOOTNOTES