Bill Moyers: Zephyr Teachout And Larry Lessig Have Only Begun To Fight

This week's guest on Bill Moyers shows were two academics-- Zephyr Teachout And Larry Lessig-- who "decided to practice what they preached. They left the classroom, confronted the reality of down-and-dirty politics, and tried to replace moneyed interests with the public interest." Teachout stunned Andrew Cuomo and his backers by winning over a third of the vote and 30 of New York's 62 counties. She won Ulster County with 70%, Schoharie County with 71.7%, Columbia County with 77.9% and Albany County, where they know Cuomo best, with 61.9%. Cuomo spent $60.62 per vote. Teachout ran a more frugal and cost-effective campaign; she only spent $1.57 per vote. (Cuomo's hand-picked conservative ex-lobbyist Lt Gov. pick, Kathy Hochul, fared even worse against Tim Wu, another academic, beating him, but only 60-40%.) As for Lessig, only two of his Mayday PAC's candidates won-- progressive Democrat Ruben Gallego (AZ) and moderate Republican Walter Jones (NC). Their high profile losses were Greg Orman (I-KS), Paul Clements (D-MI), Rick Weiland (D-SD), Carol Shea-Porter (D-NH) and Staci Appel (D-IA), all loud opponents of big money in politics. Moyers asked Lessig why that message, his organization's organizing principle failed.

Lessig explained that although his candidates didn't win, his message didn't lose. "[T]he critics have been gloating of course. They call me an egghead, they say it's a complete failure. Look, they're right about me being an egghead. There's no doubt about that. But it wasn't a failure in the sense that the data we have shows that people care about this issue. Zephyr's campaign I think showed that. But in the races that we were in, we moved people to care about this issue and to vote on the basis of this issue. Now of course, not enough to overcome the tsunami of Republican victories. Obviously, we were not able to overcome that. But that's not what we were pushing against. We were pushing against a view expressed in Politico. The view was: This is a quote, 'zero issue.' It doesn't move voters at all. And that's just not true. We think it moves voters more than issues that I think of as fundamental, like, climate change or unions. This is an issue that really rallies people because they are so tired of the corruption of the system.

LESSIG: [A]s the percentage of economic elite who support an idea goes up, the probability of it passing goes up. As the organized interests care about something more and more, the probability of it passing goes up. But as the average voter cares about something, it has no effect at all, statistically no effect at all on the probability of it passing. If we can go from zero percent of the average voters caring about something to 100 percent and it doesn't change the probability of it actually being enacted. And when you look at those numbers, that graph, this flat line, that flat line is a metaphor for our democracy. Our democracy is flat lined. Because when you can show clearly there's no relationship between what the average voter cares about, only if it happens to coincide with what the economic elite care about, you've shown that we don't have a democracy anymore.

TEACHOUT: And we don't. But we have still these forms that allow for access to power. I mean, I look and I’m really inspired by what's happening in Hong Kong. Those young students would do so much to have the access to the levers of power that we have now. So I think of it more like where we were in 1901 or 1902, where we had formal access to power, but, you know, if you and I were talking then, we'd be just as dispirited. You know, the big trusts really ran politics. I bet if there was a Princeton study of 1901... You'd find a flat-line relationship between what people wanted and what was happening. And yet, what you saw is this, you know, decades-long populist effort, finally finding fruit in the Tillman Act, the 1907 law, which banned direct corporate contributions to campaigns. And so I find hope actually from history, because we've had this disconnect between democracy and our formal rules before.

MOYERS: Why is it we are failing? You as scholars and activists, we as journalists, in helping people understand that much of what happens to them is the consequence of how our elections are funded. Because many of the people that you care about voted against you a week ago.

LESSIG: Well, I don't think the people are confused about whether democracy is working for them. I think they understand the problem. What we've got to do is to give them a sense that there's a solution. We've gotta prove that there's a way to fix this problem. And that's what, you know, lots of different efforts are trying to do. Trying to give people a practical sense that there's something they can do...

You know, when we marched in-- across New Hampshire, and we would meet people on the street. There was such deep passion for finding a way to finally get back control of our government. There was no argument that we had to have with them to prove, "Look, here's a Princeton study that shows that--" they got the Princeton study... And so it's just giving them hope. Give them a sense that there is something to do. And when we give people a map, a way to understand how it's possible. You know, we could fix 80 percent of this problem tomorrow with one statute that would establish a different way to fund campaigns. We don't have to change the constitution to do that... small-dollar, public-funding of elections, even with this Supreme Court tomorrow.

...MOYERS: And realistically though, if you have a statute or law, piece of legislation that could solve some of the problem, not all of it, you have no hope of getting it through in a Congress that's run by Senator Mitch McConnell, who more than any other man in Congress today has enshrined the notion of monopoly as the game of politic.

LESSIG: No, that's right. But if we can imagine in 2016 changing control of Congress. And critically recruiting a number of principled Republicans to the idea that this corrupt system is corrupt, then I think it's completely possible. And more and more, grassroots Republicans are recognizing that they're not going to get what they want either under this system, where they have to sell out to the big interest. Look at David Brat's victory over Eric Cantor... And what his argument was, is that Eric Cantor had become a crony capitalist because he spent all of his time sucking up to the Wall Street bankers rather than advancing conservative causes. Now, the conservatives are increasingly getting this, just as the liberals have understood this. And if we can begin to get people to recognize that, "Look, we can differ on fundamental issues, but this really fundamental issue, we don't differ about." We have to find a way to make a democracy responsive to the voters.

TEACHOUT: But I want to also talk about the Democratic Party here though. Because there's a real split within the Democratic Party between the Wall Street wing and progressive, populist wing. And I'm a Democrat. And, you may not know this, but in 1924, I believe, a part of the Democratic party platform was public financing of elections... [w]hen we look at Democratic losses, it's in part because enough, some, Democrats aren't telling the truth about what's happening in the economy. And people are going to respond. If they hear a candidate who's lying to them about everything being okay, instead of some real truth telling, and some real truth telling about what's wrong with politics and what's wrong with power, and if Democrats can truly embrace public financing as a root issue, not as a sort of fussy, side reform, but as the root issue which enables Democrats to actually care about, you know, what's happening in working-class people's lives, I think you're going to see a lot more excitement.

It's the sense that Democrats aren't really telling you the truth. Or they're really working for Wall Street and they say they're not, that I think turns people off. And I think there's an extraordinary opportunity. Look, I know the odds are low. Václav Havel has this wonderful-- I'm not going to get it exactly right... He says this thing about hope, which I find very powerful, that hope is not the same thing as optimism. Optimism is the belief something is likely to happen. Hope is the belief that it is possible and it is worth doing.

I see the power structures in this country. And if I'm going to be telling the truth to people, I'll tell them honestly, we're in tough shape. You know, the house is on fire in terms of our democracy. We are flat-lining in terms of responsiveness. But we still have opportunities if we take the moment, take this moment of extraordinary frustration and engage people directly on the root issue honestly and provide a path through. And I think we have to go that way instead of these half measures that aren't really engaging the root issue.

MOYERS: So Shane Goldmacher at the National Journal wrote, money didn't buy the midterm elections. Quote, "few observers would place the blame on a lack of money. Instead, most would point to a tough political environment, a hostile Senate map, and-- more than anything else-- an unpopular president, as the factors that dragged down Democrats nationwide." To what extent do you think money mattered last week?

TEACHOUT: It mattered enormously. It mattered in the selection of candidates. You know, long before we even heard their names, the candidates were selected if they were basically comfortable working for big-money donors. And that in itself gets you out of the realm of inspirational leadership. And then, of course, it mattered in the drowning of ads and the sense that people outside of any accountable power, super PACs outside of any accountable power, were really sort of running the system. So, I think made a huge difference. And I think if you instead imagine the counterfactual, imagine this last election where in every competitive district, you'd seen competitive primaries with people with publicly financed campaigns who stepped forward because they had something to say, not 'cause they were next in line and not because they could raise money. We would have seen an extraordinary democratic, proud, fearless, populist fighting force. And I think they would've done very well.

LESSIG: So, you've got to think about the psychology that Zephyr describes, of spending 50 percent to 70 percent of your time raising money. Those people were constantly aware about how what they say would affect the money in their race. And they said things that they knew would not risk too much, relative to the money.

So, even if the money doesn't win, you know, when they said in 2012, Karl Rove lost, that was completely naïve. Karl Rove won, even if he didn't win any race. Because what he did was to define the lines that you couldn't cross. And what that has produced is exactly the kind of Democratic Party that Zephyr is attacking, one that is more interested in making sure they can continue to get the Wall Street money by not being too anti-Wall Street, instead of worrying about how we can get an economy again that is actually responding to what voters care about.

TEACHOUT: Let me give you an example from my campaign. So, I did this fundraising. And I repeatedly heard from my bigger-end donors that they were not particularly excited about teachers' unions. I'm a big supporter of teachers' unions. So, I was very aware. And it was a choice I made. But I was very aware that every time that I went on television or Twitter or anywhere else talking about teachers' unions, that would have an effect on my funding base. The easier thing to do is to just ignore the issue, to say, "Well, I secretly agree with it. But I'm not going to say anything. 'Cause that's gonna affect my funding base." And then, you end up with these milquetoast candidates who aren't saying anything because they know where the public is and they know where their donors are and there's very little where there's an overlap.

LESSIG: There was a wonderful leak in the course of this last campaign, a memo that Michelle Nunn's campaign had developed... And a headline for the story was that the memo said she needed to spend 80 percent of her time raising money. But the really incredible part of the memo was where it went through every single issue that she was going to have to address and described which position she would have to take to raise the most money. Now, you know, she's a Democrat. I think she's an exciting candidate. And I'm sorry she lost. But you can't believe that when she was running in Georgia, she was not thinking about exactly how that money would matter in just the way that Zephyr is describing.

You can order Zephyr Teachout's new book, Corruption In America at the DWT Books and Music Store. Here's the book's introduction:

The Citizens United decision was not merely bad law; it was bad for politics, and displayed an even worse understanding of history. Americans from James Madison onward have argued that it is possible for politicians and citizens alike to try to achieve a kind of public good in the public sphere. The traditional view is not naive-- it does not assume that people are generally public regarding. It assumes that the job of government is to create structures to curb temptations that lead to exaggerated self-interest. It certainly recognizes the power of self-interest; but instead of endorsing it, the traditional American approach makes it government’s job to temper egocentrism in the public sphere. The traditional conception implicates difficult questions: What is self-orientation and public orientation, and what is the public good? But it does not discard these distinctions because they are difficult ones to parse. A classical American approach engages the complexity. Like liberty, speech or equality, corruption is an important concept with unclear boundaries. It refers to excessive private interests in the public sphere; an act is corrupt when private interests trump public ones in the exercise of public power and a person is corrupt when they use public power for their own ends, disregarding others.

Corruption in America is my effort to fill in the history that Citizens United ignored. It provides a previously neglected story of the use of the concept in American law and a much-needed account of the different kinds of meanings attached to it throughout the political life of the country. I show that for most of American history, courts remained committed to a broad view of corruption. The book draws primarily upon the texts used by lawyers: the Constitutional Convention, cases and statutes. It shows how, starting in the late 1970s, everything began to change around this issue.

The Supreme Court, along with a growing subset of scholars, began to confuse the concept of corruption and throw out many of the prophylactic rules that were used to protect against it. This rejection has led to an overflow of private industry involvement in political elections and a rapid decline in the civic ethic in Congress and the state houses. The old ideas about virtue were tossed out as sentimental, but the old problems of corruption and government have persisted. Interest-group pluralists who reject these ideas do not, I believe, have an answer to the problem of corruption and in fact have been part of the problem.

The contemporary era is full of proverbial diamond-encrusted gifts, although they are less likely to come from the king of France. Instead, they come from the lords of highly concentrated, monopolistic industries who, like the king of France in 1785, have an intense and personal interest in the political choices of the legislative branches and a casual disregard for the civic process.

Candidates are dependent upon the gifts of wealthy individuals in the form of campaign contributions and businesses in the form of independent political expenditures. The impulse to resist these presents is a deeply American one, going all the way back introduction to the founding. But in order to protect this resistance, we will need tools and approaches that are alien to the modern law and economic transactional understandings of corruption.

The book argues that prophylactic rules designed to limit temptations are not a backwater but a cornerstone of what is best in our country. In our modern prosecutorial culture, one might be tempted to think that white-collar bribery laws, which I categorized as “corrupt intent” laws, would be the appropriate tool for fighting corruption. But they are problematic. If a bribery statute is narrowly drawn (or interpreted), it covers only brazen, unsophisticated exchanges and does not actually solve problems of money being used to influence policy and undermine representative government. A narrow law will punish only clumsy politicians like William Jefferson, who hid his rolls of cash in a freezer.

More broadly interpreted corrupt intent laws are troubling for the opposite reason: since they proscribe giving a “thing of value” with “intent to influence” governmental action, they can be used to punish political enemies. By their terms, they can even cover a politician’s promise to help a teachers’ group in exchange for an endorsement. A criminal law “War on Corruption” is arguably like the wars on drugs or terror-- nearly impossible to win in arraignments.

Corruption is far better fought through changing basic incentive structures. This might seem intuitive to anyone involved in politics, but the majority of the current Supreme Court openly prefer bribery laws to prophylactic campaign spending limits: one of their justifications for striking down campaign finance rules is that corrupt intent laws provide better protection.

I seek to enrich the way American judges, scholars and citizens imagine the concept of corruption and its relationship to our legal system. The book challenges four commonly held misconceptions: that corruption law began in the post-Watergate era, that criminal bribery law is the dominant sphere in which corruption law plays out, that bribery law is coherent and consistent and that quid pro quo is the heart of corruption law. A deeper understanding of the tradition of corruption can enrich our civic culture and our laws.

If the Supreme Court can better remember our past, it might overturn dozens of cases that have limited the capacity of elected legislatures to make their own experiments in democracy. And if we, as citizens, can remember our past, it could augment the way we think about our founding principles. What if we could add “anti-corruption” to citizens’ sense of national identity?