In reading The Jillster's report on corruption in the Empire State, this blogger was struck by the Freudian slip committed by Governor Goodhair (But No Brains) on the hustings in New Hampshire following his two-count (and two-page) felony indictment by hist favorite Travis County Grand Jury last week. Goodhair (But No Brains) was
...asked about his indictment during a question-and-answer session with business leaders, Perry was a little unclear when explaining what felony charges were issued against him.
“I’ve been indicted by that same body now for I think two counts, one of bribery, which I’m not a lawyer, so I don’t really understand the details here,” Perry said of the grand jury that indicted him.
The word, bribery, appears nowhere in the indictment documents. Goodhair (But No Brains) was indicted for (1) abuse of official capacity and (2) coercion of a public official, not bribery. However, bribery was on Goodhair (But No Brains)'s mind because the backstory to this entire sorry mess is that the Public Integrity Unit of the Travis County District Attorney's office was under the overall direction of DA Rosemary Lehmberg. When the DA was arrested for driving under the influence of alcohol and made a public spectacle of her arrest (thanks to video cameras in the Travis County jail), Goodhair had the basis to eliminate a threat to one of his pet projects: the Cancer Prevention Research Institute of Texas (CPRIT). Governor Goodhair appointed all of the administrators of CPRIT after its creation in 2007. CPRIT has awarded 785 grants of State funds for cancer research, product development, and prevention. In late 2013, a Travis County grand jury indicted Jerry Cobbs, a former high-ranking official with the Cancer Prevention and Research Institute of Texas, on charges that he unlawfully secured the execution of an $11 million grant for Peloton Therapeutics, a Dallas-based biotechnology firm. The case was brought by the Public Integrity Unit of the Travis County DA's office. Goodhair (But No Brains) seized the legal problems of DA Lehmberg as the pretext to eliminate the Pubic Integrity Unit's budget from the State Budget with a line-item veto. His cover was that he was acting to protect the taxpayers of Texas from a drunken DA. At the bottom of the whole sorry affair are quid pro quo contributions made by Peloton Therapeutics back to CPRIT to supplement staff salaries. In any event, Goodhair (But No Brains) spoke the truth when he said that he had been indicted for bribery. If this is a (fair & balanced) example of parapraxis, so be it.
[x New Yorker]
The Crooked And The Dead
By Jill Lepore
Tag Cloud of the following piece of writing
The fall and winter before last, Daniel J. Halloran III, a Republican city councilman from Queens, met with two men: an undercover F.B.I. agent who was posing as a businessman called Raj and a real-estate developer named Moses Stern, who was coöperating with the F.B.I. in exchange for a reduced prison term. (Stern is facing a four-hundred-and-fifty-five-year sentence for bank fraud, among other charges.) During meetings that were secretly recorded, Raj and Stern gave Halloran almost forty thousand dollars in cash, including hundred-dollar bills crammed into unmarked envelopes, and sixty-five hundred dollars in checks made out to his congressional campaign: in 2012, Halloran ran for a seat in the U.S. House of Representatives. The checks were written from other people’s accounts, Raj allegedly told Halloran, because he didn’t want his name to appear in any campaign-finance report. “I can take green,” Halloran said, after he lost the congressional race and was no longer eligible for campaign matching funds. “That’s politics, that’s politics,” he told Stern at a restaurant in Manhattan on a night when he accepted a wad of cash, adding, philosophically, “You can’t do anything without the fucking money.”
Much of the money, in this case, was payment to Halloran for brokering a deal with two Republican Party officials, Vincent Tabone and Joseph Savino, buying their support for Malcolm Smith, a Democratic New York State senator who wanted to run for mayor of New York as a Republican. (Smith’s party switch required the approval of three of the city’s five Republican Party borough chairmen.) Stern warned Smith that getting onto the ballot would cost “a pretty penny.”
“It’s worth it,” Smith said.
On February 14, 2013, in a car parked outside Sparks Steak House, on East Forty-sixth Street, Savino accepted fifteen thousand dollars from Raj. (Tabone, a harder bargainer, got twenty-five thousand.)
“Tell me you love me,” Halloran texted Savino, after the handoff.
“U are my fucking valentine,” Savino texted back.
In April, 2013, the office of Preet Bharara, the United States Attorney for the Southern District of New York, indicted Halloran, Smith, Tabone, and Savino on federal corruption charges. After the news broke, the state’s governor, Andrew Cuomo, urged the Legislature to pass a package of anticorruption reforms, including a Campaign Finance Reform Act. The Legislature failed to pass a single measure. That summer, Cuomo announced the formation of a twenty-five-member panel, the Moreland Commission to Investigate Public Corruption, “to probe systemic corruption and the appearance of such corruption in state government, political campaigns, and elections.” He said, “Anything they want to look at, they can look at: me, the lieutenant governor, the attorney general, the comptroller, any senator, any assemblyman.” The commission was given eighteen months to conduct its investigation, but in March, 2014, apparently as part of a budget deal with the Legislature—a deal that did not include any meaningful campaign-finance-reform provisions—Cuomo shut it down. In April, Bharara, concerned about possible malfeasance, seized the commission’s files.
This spring, while the U.S. Attorney’s office launched an inquiry into the possible corruption of the corruption commission, the Times began its own investigation. Reporters discovered that, after the commission issued a subpoena to a political-consulting firm called Buying Time (“How and where campaigns spend their money on media is more important than ever,” the firm’s Web site reads), Cuomo’s top aide called one of the commission’s co-chairs, told him that Cuomo was one of Buying Time’s clients, and said, of the subpoena, “Pull it back.” The subpoena was withdrawn. (It was later reissued.) The Times report appeared in July. In a thirteen-page response, the Governor’s office insisted that by law the commission had never been independent: “A commission appointed by and staffed by the executive cannot investigate the executive.”
Cuomo is up for reëlection in November, but first he has to win a Democratic primary, on September 9th, against an improbable challenger: Zephyr Teachout, a constitutional-law professor at Fordham University. The week before the Times published its report, nearly ninety per cent of New York voters either didn’t know her name or had no opinion about her. Teachout has never held an elected office; she has little experience and less support. She’s not so much campaigning for office as campaigning for reform. Shortly before the primary, her first book will be released. It’s called Corruption in America (forthcoming).
Running for office, a vital civic act, costs money. How much it costs and who pays for it are legitimate matters of public concern and legislative action. Four years after the Supreme Court’s ruling in Citizens United dismantled a regime of campaign-finance legislation that had been in place for more than a century, the prospects for reform are bleak. There is quite possibly more money in American politics today than at any point in the country’s history. But there is also less agreement than ever about what can or should be done about it. In fact, there is very little agreement about whether fighting corruption is a compelling state interest, or even about what corruption is.
The New York story is important because, historically, New York is corruption’s proving ground. In December, 2013, three months before Cuomo shut down the Moreland Commission, it issued a preliminary, ninety-eight-page report describing “an epidemic of public corruption.” For instance: “One out of every eleven legislators to leave office since 1999 has done so under the cloud of ethical or criminal violations.” But those are only the people who got caught violating the scant, weak, and poorly enforced anticorruption laws that govern their conduct. “The real scandal,” according to the report, “is what remains legal.”
What remains legal includes the following: between 2009 and 2012, donors gave two hundred and thirty-two million dollars to legislators in Albany, and lobbyists gave six hundred and ninety-three million—a total of nearly one billion dollars in direct political spending. Eighty per cent of individual contributions came from big donors. (New York has hardly any small donors. Of New Yorkers who voted in the last gubernatorial election, fewer than one per cent made campaign donations.) Big donors give big money to both Democrats and Republicans; they give it to whoever holds power. In 2012, when Republicans held a majority in the Senate, they took in thirteen million dollars, while Senate Democrats took in only seven million dollars. In 2010, when Democrats held the Senate majority, the pattern was reversed. Big donors aren’t advancing an ideology or a party, the commission concluded: they’re paying for access. They give money to politicians who wield power over decisions affecting their specific economic interests, regardless of those politicians’ party affiliations or ideological positions. One example: between 2011 and 2012, the chairs of the health committees in both the Republican Senate and the Democratic Assembly each received more than half of his campaign funds from the health industry. The people and the organizations writing these checks know exactly what they’re buying. In one instance cited in the report, a trade association asked its members to donate ten thousand dollars each, because “Our future ability to adopt favorable legislation, stop terrible legislation or modify legislation to limit the pain to our industry is directly tied to our continued positive relationship with all the leaders in Albany.” A further source of corruption, according to the report, is “shadowy outside spending.” After Citizens United, a Virginia-based 501(c)(4) called Common Sense Principles spent nearly $3.5 million attacking Democratic candidates from New York. The commission was unable to identify who runs this organization, or where it gets its money.
The Moreland Commission, in its preliminary report, urged an overhaul of the state’s campaign-finance laws—closing loopholes regarding limited-liability companies, mandating disclosure of outside spending, instituting public financing for state campaigns, and creating an independent election-law-enforcement agency—and suggested that it would include, in its final report, a vast amount of evidence that it held back from the preliminary report because of the ongoing nature of the investigation. Before that investigation was halted, the commissioners, including nine district attorneys, had been working with a data-analytics firm to study political contributions, floor motions, votes, and policy outcomes: they were following the money, politician by politician, penny by penny. Unless the U.S. Attorney’s office continues the study, the findings of that analysis will never be made public.
It may not matter. What the Moreland Commission to Investigate Public Corruption considers to be corruption is not what the United States Supreme Court considers to be corruption. And much of what the commission urged, by way of legislative reform, is, in the eyes of the Court, unconstitutional.
Cuomo announced that he had shut down the commission on March 29th. On April 2nd, the Supreme Court issued its ruling in McCutcheon v. Federal Election Commission. The case clarified and extended the logic of Citizens United, in which the Court had ruled that certain contributions made by corporations cannot be regulated, because corporations are people and money is speech, and therefore money spent by corporations is protected under the First Amendment. In McCutcheon, Chief Justice John Roberts wrote the opinion for the five-to-four majority. “The right to participate in democracy through political contributions is protected by the First Amendment, but that right is not absolute,” he began. Congress may not “regulate contributions simply to reduce the amount of money in politics, or to restrict the political participation of some in order to enhance the relative influence of others.” But there is “one legitimate governmental interest for restricting campaign finances,” he explained: “preventing corruption or the appearance of corruption.” That said, the Court’s understanding of corruption is very narrow, Roberts explained, echoing a view expressed by Justice Anthony Kennedy in McConnell v. F.E.C., in 2003: “Congress may target only a specific type of corruption—‘quid pro quo’ corruption.”
Quid pro quo is when an elected official does something like accepting fifteen thousand dollars in cash in exchange for supporting another politician’s bid to run for mayor of New York. The only kind of corruption that federal law is allowed to prohibit is out-and-out bribery. The kind of political prostitution that the Moreland Commission was in the middle of attempting to document—elected officials representing the interests not of their constituents but of their largest contributors—does not constitute, in the view of the Supreme Court, either corruption or the appearance of corruption. In the words of Daniel Halloran, “That’s politics.” Is the distinction tenable?
“It’s not a quid-pro-quo thing,” Vincent Tabone insisted, when asked what he wanted in exchange for his support of Malcolm Smith. “It’s a matter of good faith.”
“You give us some ideas on how he can demonstrate that good faith,” Raj suggested.
Three weeks later, Tabone accepted twenty-five thousand dollars, cash.
Last year, the Democratic Congressional Campaign Committee advised freshman members of Congress to spend four hours on the phone each day raising money. That sounds dreadful. But what would be the right number of hours? There’s only so much that can be done about money in politics, of course. The trouble, at the moment, is that almost nothing can be done. In 2009, John McCain, after hearing oral arguments in Citizens United, made an impassioned speech on the floor of the Senate: “Throughout our history, America has faced periods of political corruption, and in every instance Congress has risen above its own self-interest and enacted the necessary reforms to address the scandals and corruption that have plagued our democratic institutions.” That’s a wonderfully rosy account of American history, but, at this point, Congress is handcuffed. The Court’s rulings in Citizens United and McCutcheon are so broad and far-reaching that, notwithstanding public support for campaign-finance reform—four out of five Americans support it—nearly any campaign-finance laws passed in the states or by Congress stand a good chance of being struck down.
One approach that has been pursued by those interested in reform since 2010 is to amend the Constitution. In a recent book, Six Amendments (2014), the retired Supreme Court Justice John Paul Stevens, who dissented in Citizens United, urges an amendment separating the regulation of campaign finance from the protections offered by the First Amendment. In September, the Senate is scheduled to vote on an amendment that, in the interests of “democratic self-government and political equality, and to protect the integrity of government and the electoral process,” grants to Congress and the states the power to “regulate and set reasonable limits on the raising and spending of money by candidates and others to influence elections.” It can’t possibly pass; a constitutional amendment requires a two-thirds majority in both houses. But, if the issue gets enough play in the press, it could bring voters to the polls in November, and reformers to office.
To that end, the political consultant Mark McKinnon and the Harvard Law School professor Lawrence Lessig are using the deregulation of the campaign- finance system to raise what they hope will be an overwhelming amount of bipartisan money from small and big donors to get both Democratic and Republican reformers elected to Congress, so that they can support efforts regulating the very spending that got them elected. Lessig and McKinnon have launched a Super PAC called Mayday, one of whose objectives is to make Super PACs illegal. Lessig says, “Embrace the irony.” Tragedy, more like.
Zephyr Teachout’s argument in Corruption in America follows an argument that Lessig made in his book Republic, Lost (2011). Lessig countered the Court’s cramped understanding of corruption with a sprawling one, defining corruption as “the economy of influence.” By that, he meant the overpowering—by outspending—of the will of the many by the will of the few, a corruption he describes as “the banal evil of second-rate minds who can’t make it in the private sector and who therefore turn to the massive wealth directed by our government as the means to securing wealth for themselves.” Teachout believes that Lessig’s definition of corruption is the framers’ definition of corruption. If Lessig’s gambit is to outspend the spenders, Teachout’s is to out-original the originalists. The first half of her book is a long essay on the role of corruption in eighteenth-century political thought—Hobbes and Montesquieu, Pufendorf and Locke. Indisputably, in the eighteenth century corruption meant a great deal more than bribery. “By corruption, the early generations meant excessive private interests influencing the exercise of public power,” Teachout writes. Of the hundreds of times that the subject of corruption was raised during the Constitutional Convention and the ratification debates, as Lessig pointed out in an amicus brief in McCutcheon, only a handful of times—about one per cent of the time—did it mean anything as narrow as quid pro quo.
This isn’t uninteresting, but it’s not especially helpful, either. Teachout, while writing from the left, makes the same rhetorical moves as the Tea Party. She loves Benjamin Franklin and James Madison, and she is certain that they are on her side. Her chief complaint is that Americans have abandoned the Founding Fathers. Another complaint is that “the Court has become populated by academics and appellate court justices,” rather than by people who have experience with “real problems.” Admittedly, there are only so many cards in the populist deck. But gushing about the Founding Fathers and demeaning intellectuals is a weak hand.
Only in passing does Teachout note that an element of corruption, in republican political theory, is “dependence.” The Declaration of Independence declared independence from a corrupting dependence on the king and his council. Another and deeper meaning of dependence had to do with structural economic dependence on other people: the dependence of women on their husbands, of servants on their masters, of workers on their bosses, and of tenants on their landlords. In the early American republic, people who were economically dependent on other people were not allowed to vote, because their votes were considered inherently corrupt: they lacked the independence that made civic virtue possible. Property requirements for voting were struck down, in the nineteenth century, only by the force of the argument that the cost of disenfranchising the dependent outweighed the risk of corruption. So, while it’s certainly true that the attempt to stamp out “corruption” was very much a part of the founding of the United States, it’s not an idea that can simply be lifted out of the eighteenth century to overturn Citizens United, any more than “liberty” can be lifted out of the eighteenth century by the Tea Party to overturn the Court’s decision on the constitutionality of the Affordable Care Act.
There may be good reasons to define corruption broadly. But fighting corruption through democratic action requires embracing a set of ideas about democracy that the framers did not.
The entrance into the electorate of men who owned little or no property democratized American politics. The fear that they would sell their votes—a fear that was not unfounded—was chiefly addressed, in the eighteen-eighties, by the adoption of the secret ballot. In the eighteen-nineties, reformers who had fought against machine politics turned their attention to a new source of corruption: big business. In 1894, Elihu Root proposed an amendment to New York’s constitution, banning “great aggregations of wealth”—corporations—“from using their corporate funds, directly or indirectly to send members of the legislature to these halls, in order to vote for their protection and the advancement of their interests as against those of the public.” The amendment failed, but Root kept the issue on the agenda when he helped Theodore Roosevelt campaign for mayor of New York, in 1886, and for governor, in 1898. In 1905, when Roosevelt was President (Root served as his Secretary of State), he told Congress, “All contributions by corporations to any political committee or for any political purpose should be forbidden by law.”
The first federal law to ban corporate political donations, the Tillman Act, was passed in 1907, the same year that New York passed the Moreland Act, granting to the governor the power to appoint commissions to investigate corruption. Both pieces of legislation were the result of hearings conducted in 1905 by the Armstrong Committee, which was appointed by the New York State Legislature to investigate the insurance industry. Charles Evans Hughes, serving as the committee’s chief counsel, stumbled upon evidence that insurance companies had, for years, paid hundreds of thousands of dollars to the Republican National Committee, often listing these disbursements in their account books as “legal expenses.” Hughes entered into evidence a check for $48,702.50 that New York Life had paid, through J. P. Morgan & Co., to the Republican National Committee in 1904 (about a million dollars, in today’s money). As the historian Robert E. Mutch points out in his thoughtful and well-researched study Buying the Vote (2014), this proof of what had before only been rumored occasioned an outcry. “So long as great corporations are permitted to send their checks for $50,000 to campaign committee Treasurers we shall have, or be in great danger of having, a Government of the corporations, not a Government of the people,” the editors of the New York Times, a Democratic newspaper, wrote. The city’s leading Republican paper, the Tribune, went further:
In the United States the government is intended to be a government of men. A corporation is not a citizen with a right to vote or take a hand otherwise in politics. It is an artificial creation, brought into existence by favor of the State solely to perform the functions allowed by its charter. Interference by it with the State and attempts by it to exercise rights of citizenship are fundamentally a perversion of its power. Its stockholders, no matter how wise or how rich, should be forced to exercise their political influence as individuals on an equality with other men. That is the basic principle of democracy.
Hughes asked the New York State senator and Republican Party boss T. C. Platt whether these payments involved any quid pro quo: Had any of these insurance companies ever asked Platt to “intervene in their favor”? Platt said no. Hughes then asked if the consideration given was, perhaps, broader:
HUGHES: To see that the legislature, for example, did not enact legislation which they thought hostile to their policyholders?
PLATT: That is what it would amount to . . . .
HUGHES: Is not that the way it really comes about, Senator, that the use of these contributions in the election of candidates to office puts the candidates under more or less of a moral obligation not to attack the interests supporting?
PLATT: That is what would naturally be involved.
In the manner of all the best dialogue, this exchange changed everything.
Hughes’s effectiveness on behalf of the Armstrong Committee carried him into the New York governor’s office in 1906. One of the first things he did after his inauguration, in January, 1907, was to ask the assemblyman Sherman Moreland, who had been a law student of his at Cornell, to introduce legislation giving the governor investigative authority. Meanwhile, in Washington, Congress debated the Tillman Act, which banned corporate contributions to political campaigns (while providing no mechanism for enforcement). Because of the breadth of its support, the Tillman Act was the subject of almost no formal discussion. The Senate elections committee, forwarding it to the floor, said only, “The evils of the use of money in connection with political elections are so generally recognized that the committee deem it unnecessary to make any argument in favor of the general purpose of this measure.” Mutch suggests that the absence of official discussion has led the Supreme Court to underestimate both congressional and popular support for the Tillman Act.
Restricting political contributions is one approach; requiring them to be made public is another. In 1908, William Taft pledged to make public his entire donor list. Disclosure was a political necessity even before the passage, in 1910, of the Publicity Act. In 1925, the amended Tillman and Publicity Acts became the Federal Corrupt Practices Act, which together regulated campaign finance in the United States until, in the Watergate era, the system began to unravel.
In 1972, the Committee to Re-elect the President failed to comply with disclosure requirements in the 1971 Federal Election Campaign Act, the first significant revision of the 1925 Federal Corrupt Practices Act. (Under the Federal Corrupt Practices Act, individual contribution caps had been set at five thousand dollars; some of Nixon’s donors had given more than two million dollars.) The Watergate scandal exposed Nixon’s campaign finances, leading, in 1974, to a revision of the 1971 act, strengthening and expanding its regulations and providing for their enforcement through the establishment of the F.E.C. The act passed only after a filibuster in the Senate; Ford considered a veto but, in the end, signed. And then, in the nineteen-seventies, campaign finance, like abortion and gun control, moved from Congress to the courts.
In 1976, the Supreme Court issued a ruling in Buckley v. Valeo, which challenged the constitutionality of the 1974 Federal Election Campaign Act; the decision marked the beginning of the era of constitutional interpretation that resulted, this year, in McCutcheon v. F.E.C. “A line of cases this misguided about matters of such fundamental importance to American politics is a frightful thing,” Robert Post, the dean of Yale Law School, writes in his new book, Citizens Divided (2014).
The Buckley of Buckley v. Valeo was James Buckley, who is now a U.S. appeals-court judge but who was then a U.S. senator from New York, elected as a member of the Conservative Party, and the brother of William F. Buckley. The petitioners, which included Buckley, the N.Y.C.L.U., and Eugene McCarthy, made a libertarian argument, that the 1974 Federal Election Campaign Act violated the First Amendment because giving money to campaigns and the spending of money on behalf of campaigns are forms of political expression. This argument rested on a new interpretation of the First Amendment, a cornerstone of the rising conservative movement. The D.C. Court of Appeals ruled against Buckley, six-to-two, writing, “It would be strange indeed if, by extrapolation outward from the basic rights of individuals, the wealthy few could claim a constitutional guarantee to a stronger political voice than the unwealthy many because they are able to give and spend more money.”
This argument, however, found favor on the Supreme Court, aided by an amicus brief submitted on behalf of the Ford Administration and written by Solicitor General Robert Bork. (The filing of this brief, opposing a brief submitted by the Justice Department, was unprecedented.) “Money is a proxy for speech,” Bork wrote. “Money is speech,” Justice Potter Stewart echoed, during oral arguments, “and speech is money.”
The petitioners’ argument, if accepted, challenged every part of the law except disclosure, as Mutch explains. The defendants argued that the rationale for each part of the law was the same, and had been the same, since 1907: curbing “the undue influence of a wealthy few” owing to “the corrupting influence of large contributions,” in the interest of political equality and public trust. The Court split the difference, ruling that limits on campaign spending are unconstitutional, because they violate the First Amendment, and that limits on campaign contributions are legitimate only if they target one kind of corruption: quid pro quo. Everything sorted into one pile or the other: First Amendment speech or quid-pro-quo corruption. Restrictions on “independent expenditures”—money spent on behalf of a candidate but not given to his campaign—were struck down (as violating the First Amendment). Disclosure requirements were upheld (as anticorruption measures).
In Buckley, the Court dismissed political equality as a justification for regulating money in politics, even though political equality had, all along, been the point of campaign-finance legislation; it also replaced Congress’s definition of corruption with James Buckley’s definition of corruption. In Citizens United, Teachout argues, the Court did something even stranger: it redefined undue influence, which for a very long time had been seen as a form of corruption, and destructive of democracy, as “responsiveness,” and foundational to democracy. “The fact that speakers may have influence over or access to elected officials does not mean these officials are corrupt,” Justice Kennedy wrote, citing his opinion in McConnell v. F.E.C.: “Democracy is premised on responsiveness.”
Kennedy has a point. Still, the narrower the Court’s definition of corruption, the less Congress can do about money in politics. Teachout wants to restore the older definition, which is why she’s written Corruption in America, and why she’s running for governor of New York. “I am trying to bring corruption back,” she writes. “As an idea, as something we fight about.” It might not be the right fight to pick.
“Conceptualizing campaign finance reform in terms of the state’s interests in preventing corruption leads down a constitutional blind alley,” Robert Post warns, in Citizens Divided. Historically, he points out, three compelling state interests have been cited to support the regulation of money in politics: promoting equality, removing distortion, and eliminating corruption. In Buckley, the Court rejected the equality argument; Post thinks this decision was correct. In Austin v. Michigan Chamber of Commerce, in 1990, the Court supported the distortion argument. Post thinks this decision was incorrect. He agrees with Teachout and Lessig that the Court’s definition of corruption from Buckley to McCutcheon is weak and confused and wrong, but he doesn’t think the way out is redefining it as “undue influence.”
Lessig says that Post has given up on the possibility of clarifying what corruption is, which is a fair charge. But Post isn’t alone. Bringing corruption back is an odd strategy when anticorruption campaigns, like purity crusades, have often done more harm than good. In Captured by Evil: The Idea of Corruption in Law (2013), the Cornell law professor Laura Underkuffler argues that corruption is a moral and religious idea, more medieval than modern, whose place in the law is troubled. Piety makes poor policy. One reason that campaign-finance jurisprudence is such a mess is that attempting to eliminate corruption is like trying to stamp out sin. To say as much isn’t to take a libertarian position, or even a cynical one. It’s not only possible to argue for better laws without damning either government or politics to hell; it’s necessary. Unregulated money in politics erodes the public’s trust in government. There will never be no money, but, for the public to have faith in government, the law has to be something a great deal stronger than: anything goes.
Aside from amending the Constitution, what can work? For Post, the only state interest in campaign-finance regulation that is both compatible with the First Amendment and rises above the threshold to interfere with it, because its claims are prior, is electoral integrity: “Electoral integrity is a compelling government interest because without it Americans have no reason to exercise the communicative rights guaranteed by the First Amendment.”
Post sees the debate over campaign-finance reform as a debate between those concerned about discursive democracy and those concerned about representative government. One is more interested in free speech, the other in free elections. For much of the twentieth century, he argues, a bridge between these two positions was a shared faith in public opinion and the press. The line of cases from Buckley to McCutcheon has favored free speech over free elections, and Post considers this a vulnerability—this is the fight he wants to pick—because speech can’t be free unless elections have integrity. As a legal strategy, that might be sound. But, practically, it’s worrying, because the set of ideas about public opinion and the practice of journalism which guided American democracy a century ago was never a very sturdy bridge, and, at this point, the bridge is out.
Post hasn’t repaired that bridge, or even neared it. But he has hacked his way through a thorny partisan thicket to a constitutional clearing. The problem is, once you get to Post’s clearing, what you need, to do anything, is evidence about the integrity of elections. He hasn’t got any. “I am not now engaged in the serious historical and empirical inquiry that would be necessary to address this issue,” he admits. You’re on your own until that research is done. In the meantime, it would be helpful if investigative bodies like the Moreland Commission were allowed to finish their work.
Daniel Halloran pleaded not guilty to federal corruption charges. His lawyers ventured an insanity defense. (Halloran had a benign brain tumor removed two years ago.) The judge denied that motion. Joseph Savino pleaded guilty, and is coöperating with the prosecution. The trial of Halloran, Vincent Tabone, and Malcolm Smith began in June. During opening statements, Smith’s attorney, Gerald Shargel, accused the F.B.I. of entrapment. Tabone’s attorney is pursuing a similar defense, charging the government with an attempt to “create corruption.” Both defenses question Moses Stern’s credibility. A few weeks into the proceedings, it was revealed that the prosecution had failed to turn over to the defense more than seventy hours of recordings—about a third of them conversations in Yiddish, most between Stern and a rabbi from Queens. Lawyers for Tabone and Smith sought and were granted a mistrial.
Halloran’s trial proceeded. His lawyers argued that the money Halloran received was a combination of campaign donations and personal loans. On the stand, Halloran said he’d consulted the New York City Campaign Finance Board’s Web site to make sure everything he was doing was legal, by comparing his political-consulting expenses with those publicly disclosed by Michael Bloomberg. In July, the jury found Halloran guilty on five counts. He faces up to fifty-five years in prison, and his lawyers are pursuing an appeal.
During the F.B.I.’s undercover operation, Malcolm Smith said that, if his plan to run for mayor of New York as a Republican didn’t work out, he hoped to regain his position as the Democratic leader in the Senate. At the White Plains Ritz-Carlton, Raj, the undercover F.B.I. agent, warned him that this would require bribing his fellow Democratic senators.
Raj: “Sometimes it takes cash, sometimes it takes checks, sometimes it takes a job.”
Smith: “Right, right, right.”
Smith and Tabone will be retried in January, after the Yiddish tapes have been translated. Meanwhile, Smith is running for reëlection. His name will be on the ballot in November.
Zephyr Teachout would like to debate Andrew Cuomo. She thinks that there ought to be three debates: one on education, one on immigration, and one on fracking. “But,” she admits, “all three would end up in a debate about corruption.” No debates are scheduled. Ω
[Jill Lepore is the David Woods Kemper '41 Professor of American History at Harvard University as well as the chair of the History and Literature Program. She also is a staff writer at The New Yorker. Her latest books are The Story of America: Essays on Origins (2012) and Book of Ages: The Life and Opinions of Jane Franklin (2013). Lepore earned her B.A. in English from Tufts University, an M.A. in American Culture from the University of Michigan, and a Ph.D. in American Studies from Yale University.]
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