PUBLISHED:February 24, 2015

From the Class of 1999: A conversation on corruption

ZZephyr Teachout ’99 book coverephyr Teachout ’99, released her new book, Corruption in America: From Benjamin Franklin’s Snuffbox to Citizen’s United (Harvard University Press) in late fall, just as the midterm election cycle wrapped up. An associate professor of law at Fordham University, Teachout had spent the summer running for office, challenging New York Gov. Andrew Cuomo for the Democratic nomination, and receiving more than one-third of the primary vote.

In mid-November, Sherif Moussa ’99, an attorney based in New York, invited his classmate and longtime friend out for dinner and a conversation about political corruption and the campaign trail.

Sherif Moussa: We're talking one week after a midterm election that happened to be the most expensive in history as a result of Citizens United and its progeny. What role did money play in that election?  

Zephyr Teachout: There is a cognitive dissonance in the way in which those of us who are 40 or over experience elections like this. We are trained to think of elections as tests of popular will and you will see half of articles, if not more, describe elections like this. That is, the people didn't like this or the people didn't like that. The other half of the articles say, and the way we talk about it is, that candidates are not actually aiming to resonate with popular opinion but rather they are looking to speak to and resonate with their donor base. If that's the story then it's a very different story because it's not actually an election about what people want.

So what we're all trying to muddle our way through right now is how to talk about a time when what people want has some relevance but what donors want has extraordinary relevance.

In this last election we didn't even get a chance to feel or get a sense of what reporters might call ‘the mood of the country’ because the only people in the general election who won are the people who were supported by big money and so were saying things that were palatable to a handful of big corporate interests.

I understand how all the actors in this play make sense in their own lives. If you're spending money in an election as a wealthy corporate donor to advance your own ends, it makes sense. If you're a candidate, you feel like you need to [appeal] to the donors who made their wealth through corporations. But I think we're at a real crisis point. I think that democracy is at stake. I hope that this last election shocked people into some kind of demand for greater democracy because we can't go on this way. 

SM: In your book, your thesis is that much of what we understand as normal political spending is actually tantamount to corruption as it's historically understood. Could you explain that?

ZT: Corruption has always meant when those in public power pursue private ends – whether their own or that of their donors – instead of public ends. That's what it meant at the Constitutional Convention where they talked about corruption more than anything, and that's what it meant through the 1970s. Honestly, if you ask someone right outside here in Columbus Circle, "Who do you think is corrupt?" they probably wouldn't pause and say "Who's been sent to jail?"

In Citizens United, the Supreme Court defined corruption so narrowly as to only cover the person who goes away in handcuffs – only to cover what is criminal bribery. At the Constitutional Convention they talked about corruption a lot, yet there were basically no criminal bribery laws for legislators. They weren’t talking about violations of criminal law, but about this other thing, which occurs when public servants serve private ends.

SM: Talk a little bit about the idea of quid pro quo, what it's traditionally meant and what it's come to mean now.

ZT: The Supreme Court has defined corruption as quid pro quo corruption. The Court has used that decision as a justification to strike down popularly passed laws because it says that those laws were not passed to further an anti-corruption interest.

Before the 1970s you don't see quid pro quo associated with the idea of corruption at all.  In fact, there was a contract law term that defined the relative quality of an exchange: I give you sunglasses and you, in turn, give me $30. Was there a quid pro? Was there relative equality? But in modern constitutional law, it has come to refer to an explicit deal, which is totally different. I give you sunglasses, you agree to vote for a law; I give you $30, you agree to block a law. By quid pro quo in that context, I mean did I say that out loud or was it just a wink or a nod?

This leads me to the definition of quid pro quo invented by the Supreme Court. It has no historical basis, and it’s intellectually incoherent because it suggests that corruption is defined by somebody saying something out loud –which is strange. Alternatively, corruption is defined by whether or not it has been named as illegal in some criminal bribery statute. If so, the most corrupt governments could get rid of corruption by getting rid of bribery laws. Nothing would be defined as corruption. It makes no sense.

SM: Why did you decide to take on Gov. Cuomo in the Democratic primary?

I thought I would do a better job as governor. I'm old-fashioned in the sense that I think that we should look back at what the founders intended when they discussed corruption, and old-fashioned in the sense of politics where the basic idea is that you run against other people when you think you can do a better job.

SM: What did you learn from your race?

ZT: The dirty secret of politics is that it is so much fun. You get to meet everyone and everyone wants to meet you. Everyone wants to tell you their insights and their insights are extraordinary.

I was at a wonderful event in Jackson Heights, Queens, talking to a guy who runs a small real estate shop. I care deeply about small business. He explained his relationship to fines in a way that helped me understand how the way we use fines actually encourages concentration in industry across industry : Small businesses get fined more [than bigger businesses], in part because they are starved by a state government that doesn't provide enough money to municipalities, which use fines as a revenue source.  It's easy to target small businesses. That was an important insight, and I learned things like that every day. People have such interesting ways of thinking about things.

SM: What surprised you most about the campaign?

ZT: The surprise was how many mistakes my opponent made. I've been in politics for a long time and I've been a lawyer for a long time. The most basic rule of politics is you don't ‘punch down.’ My opponent sent protesters to protest me and he tried to have me thrown off the ballot. Every time he punched down I was thrilled, because in politics, the more that you are seen as being in battle as opposed to a‘pity’ candidate, the better. But this is actually a great source of hope: My opponent had more political experience than most, he started with a $35 million war chest while mine started at $8,000, and he still made mistakes. Those mistakes created an opportunity for a real democracy.

The fact that no one is watertight should give everyone a little bit of hope.

SM: Beyond your book, your scholarship, and your teaching, how are you interested in crafting the public dialogue about corruption?

ZT: Well, I would love to run for office again. It was the hardest thing I've ever done, but I'd love to do it again and I'd love to be in a position where I could hold public office.

These days I'm really focused on getting other people to run, particularly young women. There's a remarkable lack of diversity in who runs for office in New York State and there are cracks all over the system all over the place. That creates an opportunity to bring in new candidates. 

SM: How does Duke Law School continue to influence your life?

ZT: I loved Duke Law School. I loved the small classes. I came out feeling a much greater sense of power over the present and future. It taught me that laws are changeable. 

The life that I have lived has been so defined by Duke Law School, that to think of it as an influence as opposed to the real beginning of my adult life is hard to imagine. I spent several years in Durham as a death penalty lawyer. I am now a law professor, in very direct ways as a result of being inspired by the professors that I had at Duke. Later, when I returned to Duke Law as a visiting professor, my work with faculty there changed the way I think. So to ask how Duke Law School influenced me is almost like asking how my middle name influenced me. It was a defining influence of my life.

Zephyr Teachout will return to Duke Law to talk about her book, Corruption in America, on March 24, 2015, at an event sponsored by the Program in Public Law.