Friday, August 29, 2014

Defining Corruption (Or How Tim Wu Could Become Governor of New York)

by Michael Dorf

A recent New Yorker article by Jill Lepore uses the Democratic primary challenge by Fordham law professor Zephyr Teachout to NY Governor Andrew Cuomo as an occasion to problematize the concept of political corruption. I generally think highly of Lepore but this article strikes me as misguided, for reasons I shall explain below. But first, some context.

Teachout and (my former colleague) Columbia law professor Tim Wu are challenging, respectively, Cuomo and his running mate Kathy Hochul. The Teachout/Wu campaign makes what is essentially a two-pronged pitch: (1) Cuomo and Hochul are too conservative for the Democratic Party nomination; and (2) there are serious concerns about Cuomo's integrity.

Given Cuomo's name recognition and generally favorabile (albeit slipping) ratings, Teachout is a long-shot for the gubernatorial nomination but Wu has a better chance at the second spot on the ballot. Hochul is not much better known than Wu and her record as a (former) member of Congress really is quite conservative for a NY Democrat (as argued in a "dossier" released by Teachout and Wu earlier this week). For that reason, yesterday the New York Times endorsed Wu's candidacy. On Wednesday, the Times declined to endorse either Cuomo or Teachout for Governor. Although critical of Cuomo's failure to address corruption in state government and laudatory of Teachout, the Times editorial board thought Teachout too green to merit the gubernatorial endorsement; Wu also lacks political experience, but the Times was willing to overlook that fact because the Lieutenant Governor's job carries substantially fewer responsibilities. Because primary voters vote for Governor and Lieutenant Governor on separate lines, there is thus a real chance that Cuomo will get the top spot and Wu the second spot.

And then, in the event that the simmering scandal involving Cuomo's disbanding of the Moreland Commission reaches a full boil (more about that below), it is possible to imagine Cuomo resigning or being removed from office, leaving Wu as Governor. Even absent such scenarios, the Teachout/Wu campaign has already exceeded expectations in challenging a governor who, but for the prospect of a Hillary Clinton candidacy, would probably be running for President. Both Teachout and Wu have been picking up endorsements from liberal groups, and of course, they have very strong backing among the all-important constituency of law professors.

Now, about that scandal. About a year ago, Governor Cuomo appointed the Moreland Commission to investigate public corruption. Then, when the commission started investigating people with ties to Cuomo, he killed the commission. It's possible the timing was coincidental. Cuomo says the commission's purpose was to generate support for a package of reform legislation, so that once the legislation was enacted (albeit minus strong public finance provisions), the commission was no longer needed. It's also possible that Cuomo's actions were perfectly legal--just as it's possible that Texas Governor Rick Perry's zeroing out of a budget for the office investigating his alleged corruption was perfectly legal. But in both instances the actions create at least some suspicion. And even if both Cuomo and Perry acted lawfully, that doesn't mean they can't be criticized for acting sleazily. Both actions call to mind President Nixon's firing (via Robert Bork) of Archibald Cox when Cox tried to do his job as special prosecutor. Nixon had the power to do it, but he rightly paid a steep political price.

The concerns about Cuomo's integrity are a good fit for Teachout's insurgent candidacy because her academic specialty is campaign finance and she has a forthcoming book about political corruption. In a nutshell, Teachout argues that the modern Supreme Court case law--which only allows restrictions on campaign finance that target quid pro quo corruption--uses a too-narrow definition of corruption. She points to the historical record of the Founding to argue that our political tradition once deployed a broader conception of corruption.

Lepore says that Teachout's historical case is of limited value. Just as Tea Party invocations of the Founding Fathers lack relevance today, she says, so does Teachout's mining of history for more progressive ends. I think that's a fair criticism, although one might understand Teachout to be making a point about hypocrisy: It's the Court's self-styled originalists who most strongly insist on what she argues is a conception of corruption that conflicts with the view held at the Founding.

Beyond the historical point, Lepore cites scholars like Yale Law School dean Robert Post and my Cornell Law School colleague Laura Underkuffler for the proposition that "corruption" is too mushy a concept to form the basis of a political program and to (more or less) defend the constitutional status quo given to us by the SCOTUS. I haven't yet read the Post book but I have read Underkuffler's and it does not make the sweeping claims that Lepore attributes to it. Underkuffler points to the troubled past of the concept of corruption not for the purpose of abandoning it but to show that it needs to be clarified. Perhaps Post does propose abandoning efforts to get at corruption, but if he does, then so much the worse for him.

Corruption is, in fact, a relatively straightforward idea. To corrupt an institution or practice is to damage it, to divert it from its purpose. To be sure, that requires some sense of what the purpose of the practice or institution is, but with respect to many circumstances, that is not difficult to say. For example, the purpose of a municipal police force is to protect the community as a whole, so a police officer who takes private money to provide special protection (while on duty) or worse, to turn a blind eye to crime, is corrupt.

The issue is likewise simple with respect to democracy, at least so far as the big picture is concerned. We may disagree about subtleties like when a representative should vote her conscience as against the wishes of her constituencies, but we generally agree that representative government in a system of one-person-one-vote is fundamentally about giving each person an equal say in decisions that affect him or her. In practice, we tolerate various deviations from the ideal. Political communities are represented in ways that diverge from one-person-one-vote (as in the U.S. Senate); people who care more about politics speak up and thus have their voices heard more; etc.

But no one can seriously argue that it is consistent with the purpose of 21st century democracy for elected officials to give a great deal of extra weight to the interests and wishes of wealthy people who support their election simply because of that support. That is a corruption of democracy, and a harmful corruption at that. A billionaire casino owner may be an expert in running profitable casinos but is not, in virtue of his casino experience or anything else, an expert in the Middle East. Inheriting and successfully operating a multi-billion dollar multinational industrial corporation does not make people into experts on climate science. And so when such people bend government policy to their will in virtue of their campaign contributions or independent expenditures, they corrupt politics in an obvious sense. Teachout and Wu have it right.