When Zephyr Teachout, an associate professor of law, talks about how the word corruption has ceased to exist in the same legal sense that it once did, she does not get bogged down in technicalities.
“The electoral process is all about enabling people to have as much power as they can in politics,” Teachout said. “I’m concerned with how much power some people, in fact, have.”
To limit concentrated power, she said, legislators must truly addresses campaign finance reform or pass anti-trust legislation.
In Corruption, the Constitution and the Courts: The Career of a Concept, which will be published by Harvard University Press, she argues that between the 1930s and 1970s, the concept of corruption—essentially the dependency of political actors on wealthy actors, instead of the public—deteriorated to the point of nonexistence.
She cites Trist v. Child, a Supreme Court case from 1874 in which a Virginia man, Trist, hires a lobbyist to gain passage of a law that would benefit him financially. The court ruled against Trist because he sought to influence the government for personal gain.
The court decreed: “If any of the great corporations of the country were to hire adventurers who make market of themselves in this way, to procure the passage of a general law with a view to the promotion of their private interests, the moral sense of every right-minded man would instinctively denounce the employer and employed as steeped in corruption and the employment as infamous.”
At the time, the Supreme Court understood corruption in much the same way that a person today would understand it, Teachout said. The court, however, has changed its definition of the term.
“If you asked people, ‘Does money in politics corrupt our system?’ they’d say, ‘Sure.’ If you ask the Supreme Court that, they’d say, ‘No.’ So the meaning of the word corruption has changed in law far more radically than for the general public.”
One of the reasons that Teachout—who describes herself as a Left Federalist—said the Supreme Court has allowed corporations to have more influence in elections is that members of the current court rarely, if ever, ran for public office before ascending to the bench.
“A shift has occurred from a court that is primarily populated by politicians to one that is primarily populated by people who have ideas about politics, but usually very weak ideas,” she said.
“You might think that politicians would be more ambivalent about corruption. But in fact, you see the opposite. Those who’ve had more experience with politics are far more likely to take concerns about corruption seriously, and to think that one of the jobs of the court is to guard against it.”
An example of the court’s failure to ward off corruption, she said, is Citizens United v. Federal Election Commission, a case in January in which the court ruled that corporate funding of independent political broadcasts in elections cannot be limited.
“In the oral argument, people aren’t talking about politics as it is experienced by members of Congress, lobbyists and nonprofit organizations that want to affect policy,” she said. “Instead, it’s a highly abstract discussion.
“[Justice Anthony] Kennedy says, ‘There is no quid pro quo corruption here.’ But he doesn’t tell us what that would look like. We get a sense from him that it would look like somebody in a basement with $10,000. But anybody who has worked on a political campaign can tell you that there are regular conversations about re-prioritizing policy because of potential contributions.”
It’s anything but abstract to Teachout, who was the director of Internet organizing for Howard Dean’s presidential campaign in 2004 and who recently worked on behalf Randy Parraz, a Democratic candidate for Senate in Arizona.
“I think that—on balance—there is a problem if those who write, think and then judge politics have no experience with politics,” she said.
What needs to happen, she said, is the campaign finance system must be redesigned to encourage more numerous donations in smaller dollar amounts.
“It would be beneficial to have a law that actively gives candidates an incentive to raise low-dollar contributions, because when they wake up in the morning, they’d be thinking of 200 people instead of two. That would change what happens in government.”
Another aspect to consider when it comes to the influence of money on elections is foreign donations, which are still technicallyillegal. In papers such as “Extraterritorial Electioneering and the Globalization of American Elections” (Berkley International Journal of Law, 2009), Teachout has written about how the Internet is changing that. The Citizens United case won’t help stop that, either.
“Kennedy put himself in a real bind, because if you want to say speech is speech because it’s good to be received, that can apply to the Syrian government,” she said. “It’s hard to imagine the court is going to then say foreign governments can spend as much money as they want in U.S. elections as long as it’s not coordinated.”
As for anti-trust law, Teachout is writing an article for Democracy: A Journal of Ideas, and held a conference last spring at Fordham on limiting bank size.
“It’s important that we go back to the old solutions, like anti-trust—not just limiting behavior, but limiting the shape and nature of corporations,” she said. “It seems like an uphill battle, but most people want a society with lots of small companies.”