Teachout Talks Corruption

by Jonathan Bruno

The crisis of democracy in the United States is not a crisis of partisanship, said Zephyr Teachout, but a crisis of corruption. Happily, reform is within reach. It starts with reclaiming some history. On the morning of the second Tuesday of September, Zephyr Teachout, a constitutional law professor at Fordham University and candidate for Governor of New York, cast her ballot at a Brooklyn polling station. Later that day, the New York Times told the story of the campaign. The paper called Teachout “[a] liberal challenger with little money or name recognition.” The bit about money, at least, was spot-on. A first-time candidate, Teachout was outspent at least 13:1 by incumbent Governor Andrew Cuomo, according to filings with the state Board of Elections. Yet she finished with over one-third of votes cast, and carried half the state’s counties, including a solid block in central and eastern New York. In Albany County, the seat of state government, Teachout trounced Cuomo, 58% to 32%. That night in Manhattan, she and her running mate, Professor Tim Wu, conceded the election. But it was hardly a moment of dejection. Teachout, said the Times, was “jubilant.”

Ten days later, Professor Lawrence Lessig introduced Zephyr Teachout to a full house at the Safra Center’s first public event of the academic year. Citing her “endless optimism” and civic “hopefulness,” Lessig called Teachout “easily the most important advocate” working today to promote public understanding of government corruption—and of our capacity to restrain it. The latest installment of that ongoing project is Corruption in America, Teachout’s new book with Harvard University Press, and the subject of her lecture.

Teachout’s diagnosis of our situation is relatively straightforward, and will be familiar to friends of the Center. In short, our contemporary “crisis of representation” is not about partisanship or polarization: it is about corruption. It is about the fact that too many government institutions have ceased to represent the interests of the public at large, and instead serve the private interests of a few, thanks largely to the outsized influence of money in politics. While democratic efforts to restrain this corruption have been real, and have shown real promise, our judicial branch, led by the Supreme Court, has foiled them. Teachout argued in her lecture that an important driver of these developments is judicial misunderstanding of the concept of corruption, and of its deep history in U.S. constitutionalism. The Supreme Court’s radically reductive definition—as quid pro quo corruption only—is the crux of the problem, said Teachout. It is not only “bad law,” but “really, really bad history.”

Reclaiming that history is one of Teachout’s major contributions. In the lecture she argued that corruption has typically been understood in much broader terms than the Court now recognizes, as encompassing any sort of undue private influence on the exercise of public power. The framers of the Constitution saw corruption in this way from the very beginning, Teachout said. Indeed they regarded it as among the most serious threats to representative government. At the Convention, “they talked about corruption more than anything else,” said Teachout, and were largely preoccupied with “the question of money in politics,” though of course late 18th-century mechanisms of influence differed in important ways from the contemporary instruments of Super PACs, lobbying jobs, and the like.

Many framers worried, for example, about the possible corruption of legislators by the promise of future sinecures, or of diplomats by gifts from foreign princes. The concern was not, Teachout stressed, quid pro quo bargaining, but the way in which, even absent such agreements, hope for future employment or gratitude for gifts could produce subtle shifts in orientation away from the public interest and toward the interests of the parties dispensing favors (or capable of dispensing favors in the future). Teachout went on to offer many additional illustrations of this broad view of corruption in U.S. law, from the founding era to the very recent past.

Understanding this rich history not only expands corruption’s conceptual boundaries, Teachout said, but also highlights the seriousness of the threat that corruption poses. Above all, Teachout wants the public—and with the public, the Supreme Court—to appreciate that threat. (She noted at the lecture’s outset that her book began as a letter to Justice Anthony Kennedy.) For Teachout, the anti-corruption principle should carry the same kind of weight that we afford the principle of the separation of powers. Although neither principle is articulated in any particular provision of the Constitution, each animates the scheme as a whole, she said.

The implication of this argument is that if the Justices came to appreciate the history Teachout traces, they would be more willing to weigh restrictions on political speech against the state’s interest in shielding government policy from excessive private influence. Supposing this is correct, anti-corruption measures still would not necessarily survive judicial review. The Justices might continue to view the First Amendment (as they understand it) to be decisive in the end. Nevertheless, Teachout believes that the Court’s decisions on campaign finance would be far more defensible if the Justices engaged in this exercise of weighing the considerations fully and fairly, without minimizing the danger of corruption as if it were some marginal issue of criminal bribery law.

Toward the end of her lecture, Teachout reflected on what she learned about the issues of corruption on the campaign trail. “I gotta say,” she began with a grin, “I loved running for governor.” Importantly, though, the experience was not always public-regarding, according to Teachout. It couldn’t be. The reality of modern campaign finance is such that she had to spend the first several weeks of her effort with an ear to the telephone, soliciting campaign contributions. This despite the fact that she would spend less than $700,000 on the race, as against Cuomo’s many millions. Later Teachout could spend her waking hours with voters, the part of campaigning that she so obviously relished. But no office-seeker is immune to money’s power, she said, and the demand for campaign funding necessarily dictates how the candidates vying for our votes pass their days (which in turn influences what it is that they know and care about).

This begins to explain why Teachout’s favored strategy for addressing the modern crisis of corruption is a system of publicly-financed campaigns. Without public financing, Teachout told the audience, a candidate’s first task, after the alarm bell rings, is “to make a list of anybody you know who can give you a thousand dollars.” By contrast, public financing presents the candidate with a very different task (particularly if the law provides for matching funds): “to think of how many people I can speak to that day,” regardless of their wealth. The result is that candidates come to interact with a much broader and more diverse segment of the population. And the space for private influence is diminished accordingly. (In addition, Teachout said, public financing has other benefits less directly related to corruption, including the promise of a much more diverse pool of candidates.)

In the end, Teachout confessed that, notwithstanding Professor Lessig’s introductory remarks, she does not see herself as particularly optimistic. But the question is not whether reform is likely, she said. It is whether reform is possible, and whether the public payoff is large enough. When it comes to corruption and campaign finance, she concluded, “I think it is.”