The Moreland Commission created in New York to investigate corruption of elected officials has its first public hearing in New York City today.
Public Campaign Action Fund board member Zephyr Teachout, an Associate Law Professor at Fordham Law School, will submit testimony to the commission.
Here is her prepared testimony (spoiler: it's great), which she forwarded to us:
I am an Associate Law Professor at Fordham Law School. I live in Brooklyn, and have worked on several political campaigns. I have just finished a book manuscript for Harvard University Press on the meaning of corruption in American law. This is my testimony:
There are two kinds of anti-corruption laws in American history:laws that are designed to punish individuals who are proven to have corrupt motive, and structural laws that are aimed at changing general practices. New York has a choice right now: to rely solely on improving laws targeting corrupt individuals and continue to rack up corruption prosecutions, or to attempt to change the political culture by adopting public funding of campaigns that changes donor and candidate practice.
Historically, culture-changing rules have been viewed as and have proven to be more powerful. At the time of the founding of our country, the authors of the Constitution were deeply concerned about corruption, but never once discussed criminal bribery laws as a possible solution. Instead, they embedded prophylactic anti-corruption provisions in the Constitution: the rule that public officials cannot take gifts from foreign officials, the rule that requires residency (to keep outsiders from buying districts), the rule that requires a 2/3rds veto (a higher veto could lead to Presidential vote buying).
At various times, when there has been a crisis of public confidence in government, the public has agitated for new culture-changing rules. In the late 19th century, the Australian ballot (the secret ballot) was adopted across the country as a response to widespread bribery of voters. The bribes only worked when the bribers could see who the voters voted for--with a secret ballot, you couldn't be sure you got the vote you paid for. An 1889 book describing the adoption explained the importance of the Australian ballot as compared to the alternative: criminal bribery laws. Those laws he described as the "weak instrument of a penal clause for this or that offense."
Another example of effective culture-changing rules are the civil service rules embodied in the Pendleton Act. The Pendleton Act was the 1883 response to public outrage at the spoils system. The spoils system, or patronage system, involved candidates and parties promising jobs to active party members if their candidate won, and government employees contributing to parties. The penal law response would have been to prosecute individual cases where one could find corrupt intent: instead, the powerful Pendleton Act required that government jobs should be awarded on the basis of merit.
A third powerful example, particularly relevant to the work of this Commission, was the Tillman Act, which in 1907 prohibited corporate contributions to political campaigns. Even though the Act was full of loopholes and notoriously under-enforced for decades, it led to a precipitous a drop in corporate campaign money as a percentage of GDP--not until the last decade have we seen corporate money spent at gilded age levels. Similarly, the campaign finance reform push after Watergate was not for more bribery laws, but for structural change in the way campaigns were financed, including the public financing of Presidential elections used by every successful candidate for President from Jimmy Carter to Bill Clinton.
In each of these instances, motive-based bribery laws were seen as a possible alternative, but motive based penal laws were understood to be "weak instruments," against a culture of corruption. No matter how easy one attempts to make it, bribery violations are difficult to uncover, costly to prosecute, and rife with arguments against conviction--they also are easier to use for the political advantage of the prosecutors' political party, because they rely on far greater prosecutorial discretion than prophylactic rules. During reconstruction, African Americans were disproportionately singled out for corruption prosecutions.
Finally, the traditional American understanding of corruption--that goes all the way back to the founding of our country--encompasses more than bribery laws cover. It includes legal campaign donations given in order to secure a private advantage. Penal laws addressed towards particular cases simply can't address those donations, but a culture-changing solution like public financing of campaigns can. In my view, the most impressive, well-funded, fair-minded prosecutors cannot convict our way of the current culture of corruption. Prosecutors are like emergency doctors, and we should praise their skilled surgery. But when we start seeing lots of car crash victims, we might also want to look at the rules that allow drunk driving