Zephyr Teachout, a law professor at Fordham University, has spent much of her academic career excoriating the U.S. political system and lawmakers' dependence on corporate money. She is, to say the least, not the kind of person you'd expect to run for office.
Nonetheless, Teachout announced last week that she would challenge New York Gov. Andrew Cuomo (D) for his own party's gubernatorial nomination. Teachout and her running mate Tim Wu look overmatched, given Cuomo's ability -- and willingness -- to raise large amounts of money. She hopes to exploit what she describes as dissatisfaction with Cuomo's policies among liberal Democrats, and as David Brat's upset against Rep. Eric Cantor (R-Va.) in a primary last week demonstrates, Cuomo would be unwise to ignore his base.
If Teachout's campaign can gather 15,000 valid signatures by July 10, New York Democrats will choose between her and the incumbent in a primary election in September. The winner will face Rob Astorino, a Republican county executive, in the general election.
When Teachout writes about campaign finance, she employs a term that people use sparingly these days, but which she argues was always on the lips of Thomas Jefferson, James Madison and their contemporaries. The term is "corruption," and in Teachout's view, it's the right word to think about when considering whether democracy in the United States is functioning effectively. We spoke by phone about what it means to be corrupt, the Citizens United case, Justice Anthony Kennedy, and whether there's anything the governor of New York can do to fulfill the Framers' original vision for our society. The interview has been edited for length.
I want to start with this sentence from Kennedy’s opinion in Citizens United: “Independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.” Kennedy there is talking about independent expenditures (that is, spending on campaigns that isn't made by the campaigns themselves, but is made by other organizations). What do you think about that sentence? Did Kennedy get it wrong, and if so, why?
It shows a complete misunderstanding of what corruption means, and what it has always meant in American law and culture. I’ve just finished a five-year-long study of the legal meaning of corruption, but you don’t need to actually study 19th-century law to understand that corruption has always meant when somebody serves their own private interest when they should be serving the public interest.
One, Kennedy is equating the powerful concept of corruption with the very limited criminal law of bribery. On its face, that might seem like it might make sense, that corruption is basically what we think of as criminal bribery. When you hear about corruption scandals, you often think about cash in somebody’s refrigerator, or cash being traded in an IHOP in North Carolina as it was in a recent bribery scandal. But in fact, corruption has a much deeper history than mere criminal law.
When people say that certain lobbyists are corrupt, they don’t mean, “That lobbyist has violated federal bribery law!” They think that that lobbyist is basically being selfish in the public sphere, and I’d say even excessively selfish in the public sphere. Everybody’s always going to have some self-interest. When it passes a certain point, that’s when it become corruption. That was true for Madison, Jefferson, for all of the folks who built our Constitution.
Returning to Kennedy, one of the more troubling features of recent supreme court jurisprudence on money and politics is that the court is basically making a lot of decisions in a fact vacuum. In both Citizens United and the more recent money-in-politics case, McCutcheon v. FEC, they’ve basically decided what is and what is not corrupt without actually taking evidence, without talking to politicians, without a full exploration of all the different ways in which money can really insidiously affect decision-making. So that sentence is disturbing because he’s wrong about corruption. It’s disturbing because he’s wrong about corruption without ever looking into the facts, or the way that politics works right now.
You mentioned Madison. Would Madison say that we have a corrupt political system, that we have a corrupt society?
It’s always a fun game to go back and guess what long-past people would think. He and many of the other Framers saw Britain as a failed experiment in representative self-government. They thought that the central failure was that they had failed to build a system to protect against people going into public office for very private ends. I think we’re not there yet, but we’re very close. There’s a lot of public anxiety about corruption right now, because we’re at the tipping point between a society that has real responsiveness and a society that fundamentally serves wealthy interests, at which point, it also becomes a failed experiment.
One of Kennedy’s arguments in the Citizens United opinion, if I’m understanding him correctly, is that it’s hard to see where you draw the line on this issue. If you want to talk about favoritism, special treatment in the political system, it really seems like an enormous problem to try to solve.
That’s just silly. We do that with due process. We do that with equal protection. Every constitutional standard is engaged in difficult but important line-drawing. The particular case here is one of deference to legislative bodies, to state bodies and to federal bodies, who in response to great public interest have passed laws to make it less likely that politicians are corrupt. The fact that line-drawing is difficult doesn’t mean you should abandon that task. That is, in fact, the task of being a judge.
The direction that Kennedy would go in is to really give up responsibility, and to say, if anything touches speech, then it is absolutely constitutionally protected. Everything touches speech. Everything has an expressive component. There’s a real abdication of responsibility in that idea. Anti-corruption is a core constitutional value. It always has been.
What, then, should you or other policymakers do about the problem, given the Supreme Court’s rulings?
Most of what we have traditionally done in campaign finance is to ban certain kinds of behaviors, but if we actually want a system that is responsive to the public at large, we can’t just ban things, we have to build it. We should be actively building a public financing system.
The most important solution is rewarding those candidates who spend all their time listening to the public and organizing in communities of poor and middle-class people. To get down to brass tacks, that means maybe for every $5 I raise as a candidate in small increments [that is, for every voter who gives the candidate at least $5], I get $100 from the state. That would reward a kind of public orientation. Experiments with this in the states have actually been pretty successful, usually with a much lower matching ratio.
The second thing that we have to do, which is something that Americans have traditionally been very good at up until, basically, 1981, is to never let businesses become so large that they become an invisible government, as the progressives called it in the early 20th century. We have to use antitrust laws and lending laws to break up these private governments that are developing, be they Comcast or JPMorgan.
Can you take both of those points one by one? First, on the issue of public financing, there has been research that public financing increases polarization in candidates that elected, because more extreme candidates have access to money that they wouldn’t otherwise have. Do you regard that as a problem?
The most important evidence that I’ve seen around public financing is that it makes it possible for a secretary or a truck driver to run for office, two of the most common professions in our country, people who don’t have a lot of rich friends. To your particular question about polarization, one of the things it’s important to have is a very high match, so that it encourages people from all different backgrounds to run. Then you have a lot more primaries. If we had public financing, yeah, you’d see more folks with what you might call extreme views. But you’d also see a far greater range of views, and views that aren’t dependent on the money power. The research suggests that more women run, minorities run, and people from different backgrounds run.
So much of the corruption of money in politics happens long before it’s a contest between a Democrat and a Republican. Big money has its various impacts often very early in the campaign, when it can basically pick and choose and say this candidate is credible and this candidate isn’t. Too often, you have a choice between a corporate Democrat and a corporate Republican.
On the antitrust issue, it seems like there’s an obvious problem with your argument. Even companies that are competing on an economic basis can form trade associations and cooperate to seek rents from the political system.
Right before I decided to run for governor, I was doing an extensive exploration of trade associations, which I think are one of the great unstudied areas in American political life in recent years. The traditional role of the trade association was representing companies that competed against each other in the marketplace but came together in the political sphere. For the most part, contemporary trade associations are very different from your grandmother’s trade association, or your mother’s trade association. Trade associations are increasingly the representatives of one to five big companies that are monopolistic in their own right. These companies use the historical group’s association with small companies to pretend to represent the industry, when they in fact aren’t representing the industry. They’re representing those that I think are choking the industry. So if you want to fix trade associations, use antitrust law, and that will change who’s participating. The associations would return to focusing on sharing information through newsletters and through conferences, and less on lobbying. It’s very easy to agree if there are only three of you in the room, and all three of you just want fewer taxes. It’s much more complex if there are 40,000 of you.
From '45 to '81 we had a fantastic anti-monopoly policy. Then Reagan rewrote the antitrust guidelines, and we have been gradually starting to live in the monopolist’s dream ever since.
Can you talk a little bit more about what changed, and when and how?
Antitrust used to reflect a whole set of democratic and economic values: resiliency, democracy, some distrust of concentrated decision-making authority. The argument of the Posners and the Borks and some others in the Law and Economics movement was that those concepts are too vague, that antitrust should only serve one master and that master is efficiency. The word “antitrust” still exists, but the meaning has become “a tool for measuring consumer efficiency.”
Americans forget our antitrust heritage. Teddy Roosevelt, James, Madison, the abolitionists were antimonopoly. They saw the way in which monopoly reinforced power structures in society in antidemocratic ways. The Boston Tea Party was an antimonopoly protest. This is deep for us. Concentrated economic power is not a natural phenomenon that we have to live with.
All this sounds good in theory, but since you entered the race against him, Cuomo’s now going to be able to take the maximum level of donations until the primary. What’s your plan for countering that?
As those of us who study campaign finance know, after a certain amount, the money doesn’t matter, and he’s over that amount. He’s got as much money as he needs and more to campaign against me. What Brat and Cantor show is that anything can happen in politics. The Brat-Cantor moment is important, because even if you think Brat isn't somebody whose policies you agree with, it’s fundamentally a vote against Cantor and the corrupt system that he’s a part of. If I beat Cuomo, it won’t be the first time that someone with extraordinary money and power has been toppled.