On the money. / Dave Denison
Dave Denison,  January 27

Zephyr Teachout: We’re Mired in Corruption

Yet, she says, “We're never stuck”

On the money. / Dave Denison
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Knowing I would need a diversion from the televised inauguration of Donald Trump on Friday, January 20, I scheduled a phone conversation with Zephyr Teachout. What better way to mark the occasion than by speaking with the author of Corruption in America?

Teachout is perhaps better known for her two recent political campaigns in New York. She challenged Gov. Andrew Cuomo in 2014 in the Democratic primary, blasting the political corruption in Albany, and then made a bid for Congress in 2016, losing to Republican John Faso, a former state representative and lobbyist.

Yet, Teachout is not just another activist-turned-aspiring-politician. She is an accomplished legal scholar, who teaches on the law school faculty at Fordham University. Her 2014 book on the political and legal history of corruption was reviewed widely and favorably (including by Baffler founding editor Thomas Frank, who praised it in the New York Times Book Review for its “juicy stories” and “careful detail”).

Though Teachout begins at the beginning—detailing the trouble caused by a jeweled gift presented by France to Benjamin Franklin, and later a similar one to Thomas Jefferson, which he attempted to keep secret—her mission in the book is to understand how we’ve come so far from the fastidious ideals held by early republicans. By the time the Supreme Court handed down its Citizens United ruling in 2010, the understanding of corruption (in elite circles) had shriveled down to, more or less, whether somebody got paid off or not. This most obvious “quid pro quo” corruption, according to Teachout, is almost beside the point when you look at a political system that is flooded with influence-buying. “Placing private interests over the public good in public office” is corruption, she writes, and it is the central problem of our democratic life.

And now Trump, a man defined by his far-reaching private interests, holds public office. 

I began my conversation with Teachout at 11 a.m. that Friday, so it is quite likely that at the very moment Trump was putting his hand on a Bible and swearing to uphold the Constitution, one of us was uttering the word “corruption.” And it was also the case, as Teachout explains, that as soon as Trump took that oath he violated it. We’ve come a long way from the days when an ethically serious conception of corruption was, as Teachout writes, “at the foundation of the architecture of our freedoms.” Here is a partial transcript of our conversation, edited for length.

Denison: It was really striking to me to see in the opening chapters of your book that corruption wasn’t just a passing concern when the Constitution was drafted, it was really something that preoccupied the founders.

Teachout: That’s a good way to put it. There’s one wonderful historian of the era who says that corruption was “the common grammar” of the era. It was the fundamental concern and question. And they saw England as a failed ideal—much to love, but a tragedy because of the effects of corruption.

DD: And they understood it in a broader way—not just someone taking a bribe.

ZT: Yes. But the way in which they would use the word bribe is somewhat different than you might use the word bribe now. Bribery did not typically in their conversation refer to a particular criminal law statute. In fact there weren’t criminal law statutes that applied bribery to lawmakers. What they meant was taking money for influence.

DD: Getting at the broadness of their understanding of corruption, after a while, as you point out early on in the book, even the very practice of lobbying was thought to be not legitimate because you’re paying some other person to do something for mercenary purposes involving legislation.

“The framers were vigorous pessimists. They believed the likely path of most republics was to become corrupted.”

ZT: I guess I would say lobbying is one of the harder cases. The founding era thinking influenced the thinking on lobbying, but lobbying comes later. And even though I might use the language of “broad,” it’s not just broad and narrow, it’s a full conception of corruption. A conception of corruption that goes back to Aristotle. Just to return to your question of it being something of a preoccupation, I just want to emphasize this. Having decided to have a government and having decided to have a federal government, the next real question was, how do we have it in a way that it doesn’t fall? And the framers were vigorous pessimists. They believed the likely path of most republics was to become corrupted. And they wanted to raise what Hamilton called “every practicable obstacle,” to corruption. They saw the job of structural design as “If we’re going to try this thing, we have to try to not fall prey to what has happened in England, and instead create real barriers to [corruption]. You know, we’re never going to ban it. We’re never going to get rid of it entirely. But to make it less likely that the country falls prey to it.”

DD: And I think so much of that history has been lost. When I was reading your early chapters and grasping how much of an, almost, obsession it was early on, it seemed that if our public today was thinking any way like the early democratic architects, they would never conceive of putting a man who’s devoted his entire life to private gain and even outright avarice at the head of the government. That would have been inconceivable, wouldn’t it?

ZT: Mark Twain talks about this in his book The Gilded Age; but I think we have seen in the last thirty years in this country that there’s been a real split in what is considered corrupt in the general public and among elites. The general public actually has retained a pretty healthy sense of what is corrupt. But elites, academics, the Supreme Court in Citizens United and other cases, have gradually dwindled “corruption” down to this anemic and not particularly threatening specter. And then political elites have justified a lot of their behavior as not corrupt, including the way that we fund campaigns. There’s lots of ways to see the Trump election. It has many different sources. But certainly one source is that there was an incredible desire to throw out what they saw as the elite corrupt establishment. And Trump’s conflicts of interest and Trump’s own corruption is really quite threatening and disturbing, and we can talk about that more. And maybe I shouldn’t have to say this but I absolutely didn’t support him and thought he was unfit to be president. But I think that you can really understand at least part of the impulse in electing him as coming from an anti-corruption impulse, even if you disagree with the way that impulse expressed itself.

DD: It could be as simple as throwing the bums out, and unfortunately you bring new bums in.

ZT: Certainly throwing the bums out is part of it. But the other part is that during the campaign Trump’s own conflicts of interest and the seriousness of those conflicts wasn’t as fully explored as it is being now. He’s on track to violate a key provision of the Constitution within the next hour or so. The moment he’s sworn in. The provision of the Constitution that protects against foreign bribery—the emoluments clause. The real meaning of that wasn’t fully explored during the campaign. Whereas, I would say, part of the “many parents” of Clinton’s loss—failure also has many fathers even if they say it only has one—one of the many things that may have led to her loss was that people were concerned about entanglements, with foreign payments to the [Clinton] Foundation. Those entanglements—I was concerned about them. They’re very real. They’re a real problem. They may have violated the emoluments clause, whereas Donald Trump’s clearly do. There’s a significant difference between the two. But when you see the response to concerns about Clinton taking foreign payments I think you can see some of the concerns about Trump taking foreign payments that are going to arise, but just weren’t front-and-center during the campaign—because so much greater focus was put on his personality and his statements, and less on who he was going to be influenced by.

DD: Press critic Jack Shafer tweeted this morning that “suddenly everybody is an expert in the emoluments clause.”

ZT: [Laughs.] I know!

DD: I’m not sure that’s true—we’re still trying to grasp it. How do you explain, as someone who really is an expert in the emoluments clause, the statement that he probably will be in violation of this particular clause of the Constitution? Help us understand that.

“He’s on track to violate a key provision of the Constitution within the next hour or so.”

ZT: It’s a phrase in the Constitution that I wrote about, not thinking that it would become a live issue but rather because it really exemplifies the spirit of the founding generation. So, in fact, my book title is, in part, about the emoluments clause. It’s Corruption in America: from Benjamin Franklin’s Snuff Box to Citizens United. And “Benjamin Franklin’s snuff box” refers to a gift that was given to Franklin by the King of France—a jeweled snuff box that excited the concern that Franklin might be influenced by the French. Think about what that means. That you have Franklin, almost surely not with a direct request for policy, but [a concern] that Franklin might be more favorable to French economic interests because of this gift. The clause in our own Constitution, a variation of which was in the Articles of Confederation, and a variation of which was in the Dutch Constitution of 1651, forbids taking gifts or emoluments or titles of nobility of any kind whatsoever from foreign powers without the consent of Congress. So it basically says you can’t take gifts—the snuff box—but you also can’t take emoluments, and emoluments is basically payments. Donald Trump will be, in a series of ways, taking payments from foreign governments.

DD: And we’re not worried so much that he’s going to receive a jeweled gift box from France, but . . .

ZT: Well, he might. But one of the problems we have is that because he won’t release his tax returns, we can’t even sift through to see if there’s also things that are essentially gifts—if you’re being paid way over value for something, in order to curry favor. So for instance, both the governments of Qatar and China are tenants through state-owned companies in the Trump Tower in New York. The Trump Hotels around the world have business and arrangements with foreign governments.

DD: So if any Trump business is receiving some foreign payment—but how would a foreign payment be made, for example, to a Trump business that would be a violation?

ZT: Well, just take the simplest example, the government of China through the Industrial and Commercial Bank of China paying rent [in New York City]. So Trump is getting a payment. And that lease is up for negotiation in 2019. Another example is, actually, The Apprentice. Trump is regularly getting money from The Apprentice, including its international versions, including payments from foreign states. His company has plans to build luxury hotels in China, which require permits and approvals from China. So those permits and approvals might be approvals that otherwise might not have come through. Same in India. Same in the UAE. There’s real estate projects in Indonesia. There’s a major licensing deal under negotiation in Turkey. There’s the Trump golf courses in Scotland. In all of these cases, Donald Trump will be taking cash benefits from foreign governments. That’s a violation of the clause.

DD: And your view is that if he does not divest from these private holdings there’s no way around violating the Constitution.

ZT: Right. Just because his kids, or anybody else is managing it, he’s still taking the payments. And the framers’ focus—one of the things that’s really important in understanding the history of corruption law is that unlike our modern thinking about bribery laws or anti-corruption laws being primarily focused on individual instances where we’ve found the ransom note or we’ve found the bribery note, the default anti-corruption law has been prophylactic. Because otherwise it’s only buffoons who get caught. So if you’re going to have effective anti-bribery laws you need to have prophylactic laws—more like speed limits—that say you just can’t do this thing, period. You just can’t take money from foreign governments. We’re not saying in every instance you’d be influenced. But the risk of influence is high. The risk of winks and nods is so high, and the risks in what that means for our national security and our foreign policy is so high.

DD: Now as you, I’m sure, are aware, he said a while ago at a press conference, this new president said, “I have a no-conflict situation, because I’m president.” His point being that conflict-of-interest laws don’t apply to the president.

ZT: It’s just not true. There are certain laws that don’t apply to the president, but certainly the Constitution applies, and certainly the general criminal anti-bribery laws apply as well. Just because there’s a few that have exceptions for the presidency doesn’t mean that there’s an exception in the Constitution. There’s no exception in the Constitution that says this doesn’t apply to the president.

DD: It was almost as if he were echoing Nixon, that “if the president does it, it’s not illegal.”

ZT: Yes.

DD: And he probably believes that.

ZT: I don’t know what he believes. Whether he is radically naïve or radically corrupt, one of the most important things to understand is how vulnerable his accepting of foreign payments—as well as domestic payments—makes him in the country. Because not only is he not above the law, he’s not above human nature. And the reason that we have these laws is because all humans are susceptible to being influenced by who’s paying them. And we happen to know that Donald Trump is particularly vulnerable and his conflicts are particularly worrying because he’s shown himself to be fairly insecure about the status of his businesses. He has shown that he cares enormously that his businesses are thriving.

DD: It’s a little overwhelming at this point, with the confirmation hearings going on, and all these billionaires he’s bringing into the administration, and it looks to me that the potential for conflicts of interest are so various that you don’t even really know where to start to sort this out. So I wanted to ask you to help us prioritize. What do you think are the two or three most alarming priorities that should be focused on from the beginning?

“We’re never stuck. We’ve certainly had dark days before in American history. Thank goodness people didn’t just say we’re stuck, let’s go home.”

ZT: I think what’s important to understand about this moment is that we are facing one form of careless and corrupt government from Donald Trump, but at the same time, we are still facing this incredible flood of money into politics, post-Citizens United, that is influencing our lawmakers. And I think one of the undertold stories of the last election is how much outside money there was in all these down-ballot races, Congressional and Senate races. So billionaires are replacing political parties at the state level in some areas. So as much as it’s important to focus on Trump, it’s also important at the same time not to take our eyes off the ball, with the other forms of corruption that pre-existed in the system. And one of the things that I think is going to be important is making sure that Congresspersons understand, and I mean understand politically, but also legally, that they have a constitutional obligation to stop Trump from taking foreign money. That the emoluments clause says that you can’t take a gift or emolument from a foreign government without the consent of Congress. Which means Congress actually could say, yes, we hereby give you permission to take payments from Qatar. It also means that Congress has an active obligation to be a check. That’s the check that is provided in the Constitution.

DD: It almost seems that if Congress did do something like that they would be negating an important part of the Constitution.

ZT: But they would at least be following an essential part of the procedure. And right now they’re running away from it. Pretending it isn’t their responsibility. I think it’s going to be incredibly important to hold Congress responsible for Trump’s failure. Because Congress is our protection against the Executive getting corrupted by foreign powers. But also, Trump’s conflicts-of-interest within the country are quite extraordinary. The conflicts-of-interest within his Cabinet are quite extraordinary. And then, the embedded conflicts-of-interest of members of Congress who are beholden to donors instead of the public. We’ve got plenty of problems to work with.

DD: Doesn’t it seem that we are now stuck if—I don’t know if this is true, but if the only remedy for eliminating or going after these conflicts-of-interest throughout the administration is Congressional hearings, and moving down the road to impeachment—and you also know that you have a solidly Republican Congress— aren’t we just stuck?

ZT: We’re never stuck! We’re never stuck. We’ve certainly had dark days before in American history. Imagine how it would feel in 1899. You’ve had a Civil War and African Americans don’t have the franchise. You’ve had years of suffragist activities and women can’t vote. Years of anti-monopoly activity and greater concentration than ever. Thank goodness people didn’t just say we’re stuck, and let’s go home. You don’t always know the way in which change is going to happen. You have to be more vigilant to make it happen. But I do want to mention something that I think has been underexplored. Which is one of the ways I believe that Citizens United infected this past election. I think there are two ways. One is the mystery of why we had such a small Democratic field. Such a small number of people running in the Democratic primary. And I believe that Citizens United is partially to blame for that. Because supporters of Hillary Clinton had the threat of massive super PACs that other potential candidates just wouldn’t have. And they kept it to a tiny field. Really, two candidates, when there’s a whole bunch of potential candidates. And I’d argue that if you’d had the same election in 1998, or 2005, pre-Citizens United, you would have seen five or six candidates.

DD: In the Democratic primary.

ZT: In the Democratic primary. And then the primary would have worked out differently. Perhaps Hillary Clinton would have won, perhaps she wouldn’t have won, but she would have won in a very different way. As far as I could tell the Clinton effort to keep other people out was only possible because of Citizens United. There are so many different ways, and especially for early money, that the threat of super PACs really influences elections. One of the many downsides of Citizens United is that it encourages this kind of big-footing, which doesn’t necessarily lead to the best candidates. And the other is that it has led to rising cynicism and people’s desire to just throw out those in power.

DD: That just makes me feel like we’re even more stuck, because you can’t get rid of Citizens United without a changeover on the Supreme Court.

ZT: Well right now we have a four-to-four split on the Supreme Court in terms of the Citizens United votes. And one always hopes that justices pay attention to experience and how the opinion actually operated in practice and move beyond abstraction, which is one of the things I really focus on in the book—the danger of abstraction in politics. There’s new information from the last six years in practice. So sure, all these things are hard. Nobody said it was easy. Franklin gave the country 200 years or so. One of the things that is becoming clear is that a lot more is required of citizens. That we are not mere checks on power, but actually have to be a lot more active.

DD: If you were in Congress, what would be the first reform bill you would introduce?

ZT: Oh, this is the kind of thing people ask on the campaign. You know, what is the first thing, what are you going to do at midnight? And I actually think the more important thing is an overall broad economic populist agenda that includes changing the way that we fund elections, that includes making sure we don’t have these foreign conflicts, but also includes taking on concentrated power in the monopolies of business, that these are all part of a broad democratic populist, FDR resurgence, and that they’re all connected, and that you introduce the bills as part of a vision of what it means to be free. And what it means for people to have power over their own lives. And all are part of a deep belief system, which I have, that the greatest risk is concentrated and corrupting power, and we’ve got to fight against it, and that’s the promise of our country.

Dave Denison is an associate editor at The Baffler.

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