Is Corruption Destroying American Democracy? Zephyr Teachout’s Corruption in America – The Discussion Continues

Last week I critiqued Fordham University Law Professor Zephyr Teachout’s new book, Corruption in American: From Benjamin Franklin to Citizens United.  Professor Teachout claims that campaign contributions and lobbying by private interests threatens American democracy and drastic reform is urgently needed.  I complained that she was ignoring the current scholarship on the effect of money on American democracy and that it tells a much different story than the one she recounts. Two commentators, Harvard Law Professor John Coates and Dutch Professor Maurits Breul, replied to my critique.  I thank both for prompting me to think harder about Professor Teachout’s book and its arguments.

Having done so, I am even more convinced that the book’s most glaring weakness is its failure to acknowledge, let alone engage with, the current learning on the effects of campaign spending and lobbying and that this omission is fatal to her call for reform.The consensus view of the learning I summarized law week is straightforward: private spending on campaigns has little effect on 1) election outcomes or 2) votes cast by Members of Congress, and 3) lobbying by private interests appears to exert little if any influence on American legislators.

Professor Breul asks what evidence Teachout offers to show the baleful effect of private money on American democracy.  For the most part, the answer is “none.”  Her claims rest on the argument that, thanks to today’s campaign finance system, self-rule in America is far different from what she contends the Founders’ vision was: rule by disinterested, public-spirited legislators.  The closest I could find to a claim amendable to empirical testing is her assertion that the rejection of the Founders’ vision has led to “a rapid decline in the civic ethic in Congress and the state houses” (p. 10).  No evidence of the decline, either in Congress or any particular state legislature, is presented, however.

Professor Coates argues that although the weight of the empirical evidence available today doesn’t show that money spent either on election or lobbying has much of an effect, given the limitations of social science research that is not to say it does not.  It may be that social scientists haven’t found the right way to measure the effect or that the effect may be inherently unmeasurable.

It is true that the empirical evidence is not dispositive.  Any day some clever graduate student (or young professor) may discover a way to measure effects that confirms the common, popular intuition that money has a significant influence on election results and policy outcomes. But pending that discovery what evidence we do have simply does not support Professor Teachout’s claim that that the private system of campaign financing is “very dangerous to the health” of American democracy and if continued is likely to have “potentially tragic” consequences.  The best learning today shows that at most the influence of money on the body politic is like a dull ache rather than a virulent cancer demanding immediate, radical treatment.  The drastic changes advocated by Professor Teachout or that follow from her analysis are simply not warranted absent far more compelling evidence of harm than what we now have.

Professor Coates says that my summary of the literature showing that campaign contributions have little or no effect on voting by Members of the U.S. Congress is off point because “the standard view is not that contributions buy roll call votes . . . but that they buy access, through which lobbyists help shape agendas, something that is much harder to observe, measure and relate to contributions.”  He is right, but only because the “standard view” has changed over time.  In the 1970s and early 1980s the claim of campaign finance reformers was that money bought votes.  When the evidence didn’t support that argument, the “standard view” moved on.  He is also correct that today the “standard view” is about the relationship between lobbying and contributions on the one hand, and policy outcomes on the other hand.  That is why the original post cited to the empirical literature that, thus far, finds little effect.

The evolution in the “standard view,” perhaps more accurately the current “popular unease,” with campaign finance reminds that the campaign finance system is constantly in flux.  Candidates, parties, interest groups, contributors are continuously changing their strategies in reaction to changes in the environment .  After the Supreme Court ruled in 2010 that corporations could spend unlimited sums on elections as long as the money was spent independent of any particular candidate a common fear was that large independent expenditure campaigns aligned with conservatives would skew election outcomes.  That fear has now subsided, if not evaporated, in the wake of the 2012 elections where a group led by a Republican operative spent somewhere close to $400 million to help Republicans with virtually no success.  In 2014 the fear (or hope depending upon one’s political leanings) is that independent spending will tilt the results in favor of liberal candidates.  The problem for reformers is the system’s dynamism:  yesterday’s reform proposals are often overtaken by today’s changes in the system.

Professor Coates urges that money must be important because elected officials devote so much time to raising it.  There are perverse incentives at work in the American campaign finance system that drive candidates towards raising ever larger sums.  The more a candidate raises, the more his or her consultants, media advisers, and other hangers-on make.  (The more too local television stations earn – an often overlooked, and fierce, opponent of reigning in campaign spending.)  When those on whom candidates rely to steer them to victory argue for more money, it is the rare candidate who resists.

Stanford Professor Bruce Cain flagged the issue in his critique of Harvard Law Professor Larry Lessig’s Republic Lost,  another volume criticial of American campaign finance.  As he says there, the effect of these incentives is an area crying out for more research and analysis.  Perhaps by someone schooled in both law and economics?

Maurits Breul notes that one of the papers relied upon in the original post was by Professor Jeff Milyo, a Senior Fellow at the Cato Institute.  Professor Breul implies that as a result anything Professor Milyo says cannot be trusted. The quality of Professor Milyo’s work stands or falls on its own — not on whom he is associated with.  In the case of the cited paper its quality speaks for itself. Indeed, and ironically, in a portion I did not cite, Professor Milyo echoes Professor Coates comment about the state of empirical research, explaining why, given the current limitations of social science research, the empirical evidence to date cannot be considered definitive. Those, like Professor Breul, unhappy with the implications of the current learning on the influence of money on American democracy for their preferred policy reforms, should put the Milyo paper at the top of their reading list rather than dismissing it out-of-hand because Professor Milyo is a fellow at this or that think tank.

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