Zephyr Teachout is a constitutional scholar and Professor of Law at Fordham University; she will be speaking at this year’s Arendt Center annual fall conference, “The Unmaking of Americans: Are There Still American Values Worth Fighting For?” The conference will be held on October 9-10 at Bard College. (You can learn more about the event here.) In this week’s Video Archive post, we feature a lecture Teachout delivered at Bard in 2012.
Hannah Arendt considered calling her magnum opus Amor Mundi: Love of the World. Instead, she settled upon The Human Condition. What is most difficult, Arendt writes, is to love the world as it is, with all the evil and suffering in it. And yet she came to do just that. Loving the world means neither uncritical acceptance nor contemptuous rejection. Above all it means the unwavering facing up to and comprehension of that which is.
Every Sunday, The Hannah Arendt Center Amor Mundi Weekly Newsletter will offer our favorite essays and blog posts from around the web. These essays will help you comprehend the world. And learn to love it.
Over at SCOTUSblog, Burt Neuborne writes that “American democracy is now a wholly owned subsidiary of Oligarchs, Inc.” The good news, Neuborne reminds, is that “this too shall pass.” After a fluid and trenchant review of the case and the recent decision declaring limits on aggregate giving to political campaigns to be unconstitutional, Neuborne writes: “Perhaps most importantly, McCutcheon illustrates two competing visions of the First Amendment in action. Chief Justice Roberts’s opinion turning American democracy over to the tender mercies of the very rich insists that whether aggregate contribution limits are good or bad for American democracy is not the Supreme Court’s problem. He tears seven words out of the forty-five words that constitute Madison’s First Amendment – “Congress shall make no law abridging . . . speech”; ignores the crucial limiting phrase “the freedom of,” and reads the artificially isolated text fragment as an iron deregulatory command that disables government from regulating campaign financing, even when deregulation results in an appalling vision of government of the oligarchs, by the oligarchs, and for the oligarchs that would make Madison (and Lincoln) weep. Justice Breyer’s dissent, seeking to retain some limit on the power of the very rich to exercise undue influence over American democracy, views the First Amendment, not as a simplistic deregulatory command, but as an aspirational ideal seeking to advance the Founders’ effort to establish a government of the people, by the people, and for the people for the first time in human history. For Justice Breyer, therefore, the question of what kind of democracy the Supreme Court’s decision will produce is at the center of the First Amendment analysis. For Chief Justice Roberts, it is completely beside the point. I wonder which approach Madison would have chosen. As a nation, we’ve weathered bad constitutional law before. Once upon a time, the Supreme Court protected slavery. Once upon a time the Supreme Court blocked minimum-wage and maximum-hour legislation. Once upon a time, the Supreme Court endorsed racial segregation, denied equality to women, and jailed people for their thoughts and associations. This, too, shall pass. The real tragedy would be for people to give up on taking our democracy back from the oligarchs. Fixing the loopholes in disclosure laws, and public financing of elections are now more important than ever. Moreover, the legal walls of the airless room are paper-thin. Money isn’t speech at obscenely high levels. Protecting political equality is a compelling interest justifying limits on uncontrolled spending by the very rich. And preventing corruption means far more than stopping quid pro quo bribery. It means the preservation of a democracy where the governed can expect their representatives to decide issues independently, free from economic serfdom to their paymasters. The road to 2016 starts here. The stakes are the preservation of democracy itself.” It is important to remember that the issue is not really partisan, but that both parties are corrupted by the influx of huge amounts of money. Democracy is in danger not because one party will by the election, but because the oligarchs on both sides are crowding out grassroots participation. This is an essay you should read in full. For a plain English review of the decision, read this from SCOTUSblog. And for a Brief History of Campaign Finance, check out this from the Arendt Center Archives.
Zephyr Teachout, the most original and important thinker about the constitutional response to political corruption, has an op-ed in the Washington Post: “We should take this McCutcheon moment to build a better democracy. The plans are there. Rep. John Sarbanes (D-Md.) has proposed something that would do more than fix flaws. H.R. 20, which he introduced in February, is designed around a belief that federal political campaigns should be directly funded by millions of passionate, but not wealthy, supporters. A proposal in New York would do a similar thing at the state level.” Teachout spoke at the Arendt Center two years ago after the Citizens United case. Afterwards, Roger Berkowitz wrote: “It is important to see that Teachout is really pointing out a shift between two alternate political theories. First, she argues that for the founders and for the United States up until the mid-20th century, the foundational value that legitimates our democracy is the confidence that our political system is free from corruption. Laws that restrict lobbying or penalize bribery are uncontroversial and constitutional, because they recognize core—if not the core—constitutional values. Second, Teachout sees that increasingly free speech has replaced anti-corruption as the foundational constitutional value in the United States. Beginning in the 20th century and culminating in the Court's decision in Citizens United, the Court gradually accepted the argument that the only way to guarantee a legitimate democracy is to give unlimited protection to the marketplace of idea. Put simply, truth is nothing else but the product of free debate and any limits on debate, especially political debate, will delegitimize our politics.” Read the entirety of his commentary here. Watch a recording of Teachout’s speech here.
A new exhibition opened two weeks ago at the Haus der Kulturen der Welt in Berlin that examines the changing ways in which states police and govern their subjects through forensics, and how certain aesthetic-political practices have also been used to challenge or expose states. Curated by Anselm Franke and Eyal Weizman, Forensis “raises fundamental questions about the conditions under which spatial and material evidence is recorded and presented, and tests the potential of new types of evidence to expand our juridical imagination, open up forums for political dispute and practice, and articulate new claims for justice.” Harry Burke and Lucy Chien review the exhibition on Rhizome: “The exhibition argues that forensics is a political practice primarily at the point of interpretation. Yet if the exhibition is its own kind of forensic practice, then it is the point of the viewer's engagement where the exhibition becomes significant. The underlying argument in Forensis is that the object of forensics should be as much the looker and the act of looking as the looked-upon.” You may want to read more and then we suggest Mengele’s Skull: The Advent of a Forensic Aesthetics.
In an interview, Leslie Jamison, author of the very recently published The Empathy Exams, offers up a counterintuitive defense of empathy: “I’m interested in everything that might be flawed or messy about empathy — how imagining other lives can constitute a kind of tyranny, or artificially absolve our sense of guilt or responsibility; how feeling empathy can make us feel we’ve done something good when we actually haven’t. Zizek talks about how 'feeling good' has become a kind of commodity we purchase for ourselves when we buy socially responsible products; there’s some version of this inoculation logic — or danger — that’s possible with empathy as well: we start to like the feeling of feeling bad for others; it can make us feel good about ourselves. So there’s a lot of danger attached to empathy: it might be self-serving or self-absorbed; it might lead our moral reasoning astray, or supplant moral reasoning entirely. But do I want to defend it, despite acknowledging this mess? More like: I want to defend it by acknowledging this mess. Saying: Yes. Of course. But yet. Anyway.”
In a review of Romanian writer Herta Muller's recently translated collection Christina and Her Double, Costica Bradatan points to what changing language can do, what it can't do, and how those who attempt to manipulate it may also underestimate its power: “Behind all these efforts was the belief that language can change the real world. If religious terms are removed from language, people will stop having religious feelings; if the vocabulary of death is properly engineered, people will stop being afraid of dying. We may smile today, but in the long run such polices did produce a change, if not the intended one. The change was not in people’s attitudes toward death or the afterworld, but in their ability to make sense of what was going on. Since language plays such an important part in the construction of the self, when the state subjects you to constant acts of linguistic aggression, whether you realize it or not, your sense of who you are and of your place in the world are seriously affected. Your language is not just something you use, but an essential part of what you are. For this reason any political disruption of the way language is normally used can in the long run cripple you mentally, socially, and existentially. When you are unable to think clearly you cannot act coherently. Such an outcome is precisely what a totalitarian system wants: a population perpetually caught in a state of civic paralysis.”
Charles Samuleson, author of "The Deepest Human Life: An Introduction to Philosophy for Everyone," has this paean to the humanities in the Wall Street Journal: “I once had a student, a factory worker, who read all of Schopenhauer just to find a few lines that I quoted in class. An ex-con wrote a searing essay for me about the injustice of mandatory minimum sentencing, arguing that it fails miserably to live up to either the retributive or utilitarian standards that he had studied in Introduction to Ethics. I watched a preschool music teacher light up at Plato's "Republic," a recovering alcoholic become obsessed by Stoicism, and a wayward vet fall in love with logic (he's now finishing law school at Berkeley). A Sudanese refugee asked me, trembling, if we could study arguments concerning religious freedom. Never more has John Locke —or, for that matter, the liberal arts—seemed so vital to me.”
Arthur C. Brooks makes the case that charitable giving makes us happier and even more successful: “In 2003, while working on a book about charitable giving, I stumbled across a strange pattern in my data. Paradoxically, I was finding that donors ended up with more income after making their gifts. This was more than correlation; I found solid evidence that giving stimulated prosperity…. Why? Charitable giving improves what psychologists call “self-efficacy,” one’s belief that one is capable of handling a situation and bringing about a desired outcome. When people give their time or money to a cause they believe in, they become problem solvers. Problem solvers are happier than bystanders and victims of circumstance.” Do yourself a favor, then, and become a member of the Arendt Center.
What Heidegger's Denktagebuch reveals about his thinking during the Nazi regime.
April 8, 2014
Goethe Institut, NYC
Learn more here.
"My Name is Ruth."
An Evening with Bard Big Read and Marilynne Robinson's Housekeeping
Excerpts will be read by Neil Gaiman, Nicole Quinn, & Mary Caponegro
April 23, 2014
Richard B. Fisher Center, Bard College
Learn more here.
This week on the blog, our Quote of the Week comes from Martin Wager, who views Arendt's idea of world alienation through the lens of modern day travel. Josh Kopin looks at Stanford Literary Lab's idea of using computers and data as a tool for literary criticism. In the Weekend Read, Roger Berkowitz ponders the slippery slope of using the First Amendment as the basis for campaign finance reform.
Over at the Volokh Conspiracy, David E. Bernstein argues that Justice Stephen Breyer’s dissent in the Campaign Finance Case (McCutcheon v. Federal Elections Commission) is dangerous. He writes, rightly, that progressives have historically been uneasy with the First Amendment since strong rights are anti-democratic and exert a conservative and limiting impulse on democratic self-government and progressive programs. Thus free speech interferes with hate crimes legislation and stands in the way of attempts to limit offensive speech. And, most recently, free speech has proven the main impediment to regulate the insane amounts of money that are corrupting the political system.
Bernstein asks: “But how can liberals, who so expansively interpret other constitutional provisions, narrow the First Amendment so that campaign finance no longer gets protection?” His rhetorical answer is that the liberal willingness to limit free speech evident in Justice Breyer’s dissent is dangerous:
The danger of this argument is that analogous reasoning could be used to censor major media corporations such as the New York Times, Hollywood, and so on, to wit: ”When Hollywood spends billions of dollars each year advancing a liberal agenda, the general public will not be heard. Instead of a free marketplace of ideas, we get a marketplace in which major Hollywood moguls have hundreds of thousands of times the ‘speech power’ of the average American.” And given that almost everyone deems it appropriate to regulate the economic marketplace to counter inefficiencies and unfairness, why should the much-less-efficient (because it’s much more costly for an individual to make an error in his economic life than to have a mistaken ideology) marketplace of ideas be exempt from harsh regulation? In short, once one adopts the Progressive view of freedom of speech as only going so far as to protect the public interest in a well-functioning marketplace of ideas, there is no obvious reason to limit reduced scrutiny of government “public interest” regulation of speech to campaign finance regulations. Nor is it obvious why the Court should give strict scrutiny to speech restrictions that don’t directly affect the marketplace of ideas, instead of just using a malleable test balancing “speech interests” versus other interests.
It is of course right to worry about placing limits on speech, especially speech that is so clearly political. That is why Justice Robert’s plurality opinion has such straightforward appeal:
There is no right more basic in our democracy than the right to participate in electing our political leaders. Citizens can exercise that right in a variety of ways: They can run for office themselves, vote, urge others to vote for a particular candidate, volunteer to work on a campaign, and contribute to a candidate’s campaign. This case is about the last of those options. The right to participate in democracy through political contributions is protected by the First Amendment, but that right is not absolute. Our cases have held that Congress may regulate campaign contributions to protect against corruption or the appearance of corruption. … If the First Amendment protects flag burning, funeral protests, and Nazi parades—despite the profound offense such spectacles cause—it surely protects political campaign speech despite popular opposition.
What this means is that as long as campaign finance reform is viewed according to the lens of free speech, those who labor to protect our political system from the corrupting influence of excessive amounts of money will tread a treacherous path. They must, as Justice Breyer does at times in his dissent, argue for a version of free speech that is instrumental, one that is limited by its assumed purpose. Here is Breyer:
Consider at least one reason why the First Amendment protects political speech. Speech does not exist in a vacuum. Rather, political communication seeks to secure government action. A politically oriented “marketplace of ideas” seeks to form a public opinion that can and will influence elected representatives.
Breyer, like too many of those who would support campaign finance reform, insists on fighting the battle over the meaning of free speech. The problem is that such arguments must speak about limiting speech on rational grounds or suggest that speech is designed to make government better. This raises the specter of the government deciding when speech does and when it does not improve democracy. Some may welcome judges making such difficult judgments—it may be what wise judges actually should do. But having judges decide when speech favors democracy would subject all sorts of offensive or radical speech to the test of whether it was directed to secure government action and whether it invigorated the marketplace of ideas.
The problems with the free speech approach to campaign finance reform have led Lawrence Lessig and Zephyr Teachout to seek a different path. Thus it is worth looking at the responses both of them penned to the McCutcheon decision.
Lessig, writing in the Daily Beast, argues that advocates of reform need to stop talking about free speech and instead focus on corruption:
The only way for the government to win, in other words, was to convince the Court that while corruption certainly includes quid pro quos, it need not be limited to quid pro quos. The roots of that argument were handed to the government from an unlikely source: the Framers of our Constitution. Building upon the work of Zephyr Teachout, two researchers and I scoured every document that we could from the framing of our constitution to try to map how the Framers used the word “corruption.” What was absolutely clear from that research was that by “corruption,” the Framers certainly did not mean quid pro quo corruption alone. That exclusive usage is completely modern. And while there were cases where by “corruption” the Framers plainly meant quid pro quo corruption, these cases were the exception. The much more common usage was “corruption” as in improper dependence. Parliament, for example, was “corrupt,” according to the Framers, because it had developed an improper dependence on the King. That impropriety had nothing to do with any quid pro quo. It had everything to do with the wrong incentives being allowed into the system because of that improper dependence.
Teachout, writing in the Washington Post, argues that we need to stop trying to ban money in our current system of campaign laws and, instead, create a new system, one modeled on examples in Maine, Connecticut, Arizona, Massachusetts, North Carolina, New Mexico, New Jersey, Hawaii and West Virginia, which have all experimented with publicly funded elections:
But the legislative branch has to take some responsibility. Relying on bans is akin to continually passing seat-belt laws that keep getting struck down while never building safe cars. We should take this McCutcheon moment to build a better democracy. The plans are there. Rep. John Sarbanes (D-Md.) has proposed something that would do more than fix flaws. H.R. 20, which he introduced in February, is designed around a belief that federal political campaigns should be directly funded by millions of passionate, but not wealthy, supporters. A proposal in New York would do a similar thing at the state level…. They have learned that they are most effective when every office’s election is publicly funded, so that candidates learn how to raise money by going to the people, and that it is better to give a public match only to in-state individuals and not to PACs or out-of-state donors. Big lobbyists don’t like this because they are used to getting meetings with candidates to whom their clients give money. We’ve also learned that more women and minorities run for office with a public-funding system.
The campaign finance decisions are a disaster for our democracy and are preventing attempts to limit the truly corrosive impact of money throughout our political system. But it is also the case that the decisions are principled when viewed within the rubric of our free speech jurisprudence. Instead of limiting the amount of money in an inevitably corrupt system, it is time to change the system itself. Lessig and Teachout are leading the charge. Their op-eds are your weekend reads. In addition, you can revisit my comments on Teachout’s talk at the Hannah Arendt Center last year, here. And you can watch a recording of Teachout’s speech here.
The Arendt Center recently hosted Professor Zephyr Teachout to speak about Citizens United v. FEC and campaign finance reform. The talk was in honor of Constitution Day, which Professor Teachout joyfully informed us may very well be unconstitutional. We carried on.
Teachout began her talk by announcing that the "First Amendment is a terrible thing." Less provocatively, she argues that the First Amendment plays a "dangerous role" in our constitutional culture. Above all, she presented her argument that the Supreme Court's increasing reliance on the First Amendment to invalidate campaign finance laws is, ironically, used to shut down meaningful public debate around the proper role of lobbying in our politics.
She began by telling a story of the Supreme Court case Trist v. Child from 1874. The case involves Mr. Trist who had a claim against the U.S. Government for about $15,000 (about $100,000 in current dollars). Trist hired Child, a lawyer, to represent him and convince Congress to honor its debt. Among other things, Child encouraged Trist to have his friends write to Congressman threatening not to vote for them if they didn't honor this debt to Trist. Child also personally lobbied Congressman. He eventually succeeded in getting Congress to appropriate Trist's money.
Trist, however, refused to pay Child the fee agreed to in their contract. Child sued Trist to get his agreed upon money.
In the Supreme Court decision refusing to enforce the contract, the Court holds that Trist need not pay Child; a number of reasons are given, a few very technical. But the majority of the opinion by Justice Swayne rejects the legality of lobbying with a broad brush. Trist need not honor his contract with Child, Swayne writes, because there was no valid contract. In short, the original contract hiring Child as a lobbyist was immoral and illegal, and thus unenforceable. Justice Swayne argues that the very immorality of the practice of lobbying nullifies the contract between Trist and Child.
Teachout helpfully describes the issue this way. Child says something like: Our contract was just like a contract for me to sell you a car and now you don't want to pay me for the car now that you have it. Trist responds that, in Teachout's colorful analogy,
No, this is like we made a contract for prostitution, and you can't go to the cops after we made a contract for prostitution and get them to enforce that contract. Because lobbying is like prostitution. It is so corrupt that there is no way courts are going to enforce it.
Writing for the Supreme Court, Justice Swayne puts it this way:
The agreement in the present case was for the sale of the influence and exertions of the lobby agent to bring about the passage of a law for the payment of a private claim, without reference to its merits, by means which, if not corrupt, were illegitimate, and considered in connection with the pecuniary interest of the agent at stake, contrary to the plainest principles of public policy. No one has a right in such circumstances to put himself in a position of temptation to do what is regarded as so pernicious in its character. The law forbids the inchoate step, and puts the seal of its reprobation upon the undertaking.
If any of the great corporations of the country were to hire adventurers who make market of themselves in this way, to procure the passage of a general law with a view to the promotion of their private interests, the moral sense of every right-minded man would instinctively denounce the employer and employed as steeped in corruption and the employment as infamous.
There are two remarkable things about Justice Swayne's argument. First, as Teachout notes in her talk, there was nothing remarkable about it in 1874. Many states and governments throughout the U.S. made lobbying illegal. It was seen as an act of corruption. And few if any courts in the U.S. would find this unusual, at least before the turn of the 20th century.
The second remarkable thing to note is how utterly remarkable Justice Swayne's argument is today. To speak of the millions of lobbyists in the US as "adventurers who make market of themselves" as offending the "moral sense of every right-minded man" is a painful reminder of how far our political system has fallen. Not only is the moral prohibition against lobbying something of the past, but also the idea that the Supreme Court would invalidate contracts based on lobbying is nearly unimaginable.
The reason for this change in the legal and even moral status of lobbying is, Teachout argues, the rise of free-speech jurisprudence in the 20th century. Specifically, the Court's acceptance of the basic claim freedom of speech is the fundamental foundation of our democratic system has made lobbying not only legal, but morally defensible. If democracy depends on a marketplace of ideas, then having corporations and individuals hire lawyers and public relations firms to buy and sell influence in politics is at the very foundation of democratic governance. What Teachout forces us to consider is that our elevation of the First Amendment to foundational status in our constitutional firmament is predicated on a political theory that founds democracy on the unfettered marketplace of ideas. If we are to take back our government from corporate adventurers and their lobbyists, we will need to rethink our commitment to free speech, at least as the Court currently understands it.
Teachout's provocative talk attacks less freedom of speech itself than the Court's elevation of free speech to the first amongst all constitutional provisions—the foundational right in our constitutional and democratic system. She traces the rise of free speech jurisprudence to the point where, today, free speech is the paradigmatic right in our democracy. Free speech has become equated with democracy, so that "free speech is democracy."
It is important to see that Teachout is really pointing out a shift between two alternate political theories. First, she argues that for the founders and for the United States up until the mid-20th century, the foundational value that legitimates our democracy is the confidence that our political system is free from corruption. Laws that restrict lobbying or penalize bribery are uncontroversial and constitutional, because they recognize core—if not the core—constitutional values.
Second, Teachout sees that increasingly free speech has replaced anti-corruption as the foundational constitutional value in the United States. Beginning in the 20th century and culminating in the Court's decision in Citizens United, the Court gradually accepted the argument that the only way to guarantee a legitimate democracy is to give unlimited protection to the marketplace of idea. Put simply, truth is nothing else but the product of free debate and any limits on debate, especially political debate, will delegitimize our politics.
This view that free speech is the fundamental bastion of democracy is the basis of Justice Kennedy's decision in Citizens United. In Kennedy's opinion, laws regulating campaign finance regulate speech, and not just force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech." If we believe that fair elections require a free airing of all opinions, than restrictions on campaign finance are the most dangerous forms of censorship. Which is why Kennedy can worry that "The censorship we now confront is vast in its reach."
What he means is that all those corporations regulated by the campaign finance reform law invalidated by Citizens United—including large multinationals and also small mom and pop stores and even unions and non-profit corporations—are prohibited from expressing their views about political candidates during an election. In Kennedy's telling, corporations are part of the country and, what is more, an important part of the country. The Government has “muffle[d] the voices that best represent the most significant segments of the economy."
It is helpful to recall Justice Felix Frankfurter's concurring opinion in U.S. v. Congress of Industrial Organizations. The Smith Act had forbidden unions to use funds to pay for politicking, very much like the limitations on corporate funding in the 2002 Bipartisan Campaign Reform Act. In U.S. v. CIO, the Court refused to rule on the Constitutional question of whether the Congress can forbid unions from political speech. Frankfurter, however, does consider it. He argues that we must take seriously the evil of corporate and union speech in politics. The corruption of elections and federal officials by the expenditure of large masses of aggregated wealth But that evil, he counters, "is not one unmixed with good." For Frankfurter,
To say that labor unions as such have nothing of value to contribute to that process and no vital or legitimate interest in it is to ignore the obvious facts of political and economic life and of their increasing interrelationship in modern society.
Replace "Labor unions" with "corporations." That is what Justice Kennedy did in Citizens United. What he said is that corporations have a voice in our political landscape, just as do unions and non-profits. When such corporate entities engage in speech, there is a danger of corruption. But we cannot deny their speech is politically important. Instead of then balancing those interests in a practical way, Justice Kennedy simply said that the First Amendment insists that political speech never be abridged. Our Constitutional system, he argued, demands that the marketplace of ideas be allowed to work unimpeded.
The overriding desire to protect political speech proceeds under the assumption, with Oliver Wendell Holmes Jr., that "the best test of truth is the power of the thought to get itself accepted in the competition of the market.” What Zephyr Teachout helps to make clear is that this elevation of free-speech to the first amongst constitutional provisions is fundamentally at odds with the desire to regulate political speech to keep politics free from corruption. If we want to get serious about fighting corruption in politics, we need to take seriously the need to question the now unquestionable faith that democracy is founded upon freedom of speech.
To fight against Citizens United and uphold the legal rejection of campaign finance limitations requires that we break the bi-partisan stranglehold that an extreme view of the First Amendment currently has on our constitutional jurisprudence. Only once we do so can we return to a meaningful public debate about when lobbying is and when it is not corrupting. And only once we free campaign finance laws from the First Amendment can we, as we must, have a serious discussion about how much money distorts and corrupts our political process.
These are difficult issues, and weakening the scope and impact of the First Amendment is risky. As Teachout argues, it is a risk we must take to save our democratic system.