The Independent View: Money in Politics Panel Discussion

Last night, I attended a panel discussion on 'Money in Politics' at New York University's Institute for Public Knowledge.

The three person panel included:

Mansur Gidfar is the Communications Director of Represent.Us, a non-partisan national campaign to combat the undue influence of special interests in American government. Mansur has previously worked as deputy editor and contributor for viral media site Upworthy, one of the fastest-growing media companies of all time. he invited me to the event.

Thomas Frank is a political analyst, historian, and columnist for Salon.com. He is the author of a number of books, including What's the Matter with Kansas? (2004), The Wrecking Crew (2010), and Pity the Billionaire (2011), He also wrote a review of Zephyr Teachout's book.

Zephyr Teachout is an organizer, educator, and scholar with years of experience as a leader in the fights for economic and political equality and against concentration of wealth and control in the hands of the few. Currently an associate professor of law at Fordham Law School, was previously a visiting professor of law at Duke University and a lecturer at the University of Vermont. She has worked as an antitrust and media expert and served as the Director of Internet Organizing for the 2004 Howard Dean presidential campaign. In 2008 she co-founded a New Way Forward, an organization built to break up the power of big banks, and was involved with Occupy Wall Street. She ran for the Democratic Party nomination for Governor of New York in 2014, getting 33.47% of the vote, and remains actively involved with local politics. She is the author of CORRUPTION IN AMERICA.

Zephyr started her talk with these excerpts from her book:

When Louis XVI presented Benjamin Franklin with a snuff box encrusted with diamonds and insert with the King's portrait, the gift troubled Americans: it threatened to "corrupt" Franklin by clouding his judgement or altering his attitude toward the French in subtle psychological ways. This broad understating of political corruption--rooted in ideals of civic virtue--was a driving force at the Constitutional Convention.

For two centuries the framers' ideas about corruption flourished in the courts, even in the absence of clear rules governing voters, civil officers, and elected officials. Should a law that was passed by a state legislature be overturned because half of its members were bribed? What kinds of lobbying activity were corrupt, and what kinds were legal? When does an implicit promise count as bribery? In the 1970s the U.S. Supreme Court began to narrow the definition of corruption, and the meaning has since changed dramatically. No case makes that clearer than 'Citizen United'.

In 2010, one of the most consequential Court decisions in American political history gave wealth corporations the right to spend unlimited money to influence elections. Justice Anthony Kennedy's majority opinion treated corruption as nothing more than explicit bribery, a narrow conception later echoed by Chief Justice Roberts in deciding 'McCutcheon v. FEC' in 2014.

With unlimited spending transforming American politics for the worse, warns Teachout, Citizens United and McCutcheon were not just bad laws but bad history.

"If the American experiment in self-government is to have a future, then we must revive the traditional meaning of corruption and embrace an old ideal, she said.

Mansur Gidfar spoke about the use of Initiative & Referendum (I&R) at the state level to change state laws about money in politics, using a non-partisan effort across political and social ideals. Using congressional efforts or constitutional amendment attempts to correct the money in politics problem was not viable at this time.

Thomas Franks gave us antidotes about political corruption and money in politics.

CLICK HERE to read Thomas Frank's review of Zephyr's book in the New York Times Sunday Book Review.

At a Harvard Law Reform Forum called The Varieties of Corruption and the Problem of Appearance, Robert F. Bauer, a partner of Perkins Cole, writes:

Neither the same as actual corruption nor well defined in its own right, the "appearance of corruption" as a basis for campaign finance regulation is suspect on two counts, depending on the observer: appearances are either useless appendages to demonstrated instances of quid pro quo corruption, or they are rhetorical compensation for their absence. If there is corruption, effectively sale of office, then the appearance of it may be self-evident, but beside the point. Absent corruption, placing the full weight of the state regulatory interest on "appearance" guarantees contention, since regulatory regime's advocates will often perceive what its critics do not see.

It has been argued that money in high volume through the political process distracts candidates from engagement with the voters and incumbents from their official duties, as they pursue an ever larger campaign budget, underwrites negative political advertising at odds with ideals of deliberative democracy, allows independent organizations to dominate the political debate to the detriment of candidates and political parties, and enables candidates to escape accountability for the tone and message of the campaign. All of these criticisms may be fairly taken to be threats to what has been referred to as the "integrity of the political process:.

The Court has so far rejected a conception of "electoral integrity" that is grounded in the failings of the electoral process itself.

The campaign finance debate increased with super PAC's: about the quality of campaign negative speech, the fairness of competition, the absence of accountability of candidates and parties, or just the outsized impact that a single wealthy individual can have on electoral outcomes.

So the appearance of corruption may rest on the various effects of money in politics in the aggregate, and on perceived corruption defined as the threat to "electoral integrity", that arises from frenzied fundraising and unlimited spending. The corruption in question attacks the electoral process; it does not consist exclusively of debts incurred to campaign donors and spenders who expect post-election repayment. One might even consider whether the reference to the "appearance" of corruption have become the means, not explicitly recognized by which these other concerns with money in electoral politics have come to be expressed.

It is useful to consider the gap between the appearance problem the Court will weigh in the constitutional balance and those questions of appearance that animate much of the campaign finance debate and controversy. This gap is among other reasons that the appeal to appearance in the limited form available will remain vulnerable to attack and unpersuasive in application.