Corruption and Careful Reading: A Response to George Will

Last week, George Will spent his Sunday column in the Washington Post attacking an article I recently wrote in the Cornell Law Review. Of course it is gratifying to have an academic piece be elevated to the public sphere, but unfortunately I don't actually think Will read my article.

The Cornell article is basically a historical piece, with a contemporary claim. I show how the founding fathers wrestled with the concerns that money would have too much influence in the political sphere. I argue that this "anti-corruption" principle should be honored in contemporary legal cases. In particular, I argue that courts, when considering campaign finance laws, laws regulating lobbying, and other political process cases, should be less eager to strike down laws. Courts should give Congress more deference when laws are passed in order to reduce the corrupting influence of money in politics. I do not argue, as Will insinuates, that we should regulate the content or subject matter of political speech.

There are several reasons I do not think Will read the article beyond the introduction, including this passage:

[Her] standard might license Congress to restrict speech in order to combat: "Unequal access" to the political process; "unfair deployment of wealth"; "undue influence" by this or that group; speech that is "distorting" or lacks "proportionality" or results in "drowned voices" or a "passive" or "dispirited" public or that causes a "loss of political integrity" or creates "moral failings for members of Congress." Such speech might not be constitutionally protected if we properly "refine the meaning of the privilege of political speech."

This just isn't true. All the words quoted above are found in two places: (1) the table of contents, and (2) a section in which I describe others' views. In a clearly demarcated 10 page section of the article, I describe--without adopting--how modern Justices have struggled with defining corruption. I explain:

This Part elaborates how the lack of a tie to history has led to chaos in the Court's political process decisions involving corruption. This Part lays out five different clusters of definitions used in the Supreme Court's case law on corruption. Each of these clusters understands the problem with corruption--the essence of the threat that it expresses--as different. The clusters can be loosely described as gravitating around these concepts: criminal bribery, inequality, drowned voices, a dispirited public, and a lack of integrity.

In other words, these concepts of corruption (which he falsely ascribed to me) are different each from the other, not only from my own views, or those of the founders. It would be impossible to misunderstand and misquote this if one had read the Article. It appears that he might have simply perused the Table of Contents and Introduction. What I think he might have found, had he read the article, is that it includes a deeply conservative strain that he might be drawn to, even if he rejects the ultimate conclusion.

In my next post, I will respond more directly to Will's challenge, because we do have a fundamental disagreement about how to think about campaign finance laws, gerrymandering, and other political process laws. It is an important issue for citizens to think about, not just for Supreme Court Justices.

Comments (16)

1. I used to have great respect for G Will, but his adherence to ideology over common sense has reached an extreme. Take a look at the Top Donors, look at who got TARP money, who gets govt contracts and who benefits the most from recent law changes and then tell me that campaign donations are not bribes.

   2 Goldman Sachs

   3 JPMorgan Chase & Co

   4 AT&T Inc

   5 Citigroup Inc

   6 Intl Brotherhood of Electrical Workers

   7 National Assn of Realtors

   8 Morgan Stanley

   9 Microsoft Corp

   10 General Electric

   11 American Bankers Assn

   Posted by crabwalk at 06/01/2009 @ 10:33am

2. George Will has always been an advocate for the elite.

   Given the current disarray among our elites -- business, labor, and government officials -- Will of course is confused.

   He speaks less and less from his mind -- which has been sharp -- and more from his gut.

   His bile is just ridiculous.

   So, M. Teachout, rip him to size.

   Posted by jkrogman at 06/01/2009 @ 11:18am

3. Don't fret it too much, Ms Teachout.

   After all, this is the same guy who a few weeks ago was in such a tizzy over the corrupting influence on our society of....

   blue jeans.

   Posted by Mask at 06/01/2009 @ 12:02pm

4. 'A court recognizing the anti-corruption principle would start from a specific set of grounding ideas. Instead of beginning with Free Speech, a political process case would begin with an affirmation that "corruption is one of the greatest threats to our democracy, and the founding fathers believed it was essential for each branch to use whatever tools at its disposal to limit corruption in the other branches." .... the formulation would not be that corruption is a compelling state interest that might, in some cases, justify restrictions on speech, but that there are two competing, equally important constitutional interests at stake: free speech and the anti-corruption principle.'

   -- Zephyr Teachout -- CORNELL LAW REVIEW [Vol. 94:341] -- pages 409 to 410

   Posted by HonestLiberal at 06/01/2009 @ 12:34pm

5. The issues surrounding campaign finance reform and all similar "anti-corruption" measures are crystal clear for anyone who is not a plutocrat.

   Money is not speech. Speech is not money.

   Money does not talk. Strictly speaking, it is the OWNERS of money who talk, and who, in proportion to their surplus income, will tend to use their money to talk much louder than the rest of us, so as to focus the attention of elected officials disproportionately (some would say nearly exclusively) upon their parochial concerns, and so as to drown out the words of everybody else who has no comparable advertising budget.

   Money therefore resembles a megaphone.

   Protection of free speech does not necessarily include the unrestricted use of megaphones at an unlimited volume. Nor does it necessarily include the unlimited sale of our public airwaves for advertising, or unlimited contributions for political candidates. Indeed, if we want unlimited free speech, then we must limit the use of megaphones, both real and metaphorical.

   The restriction of megaphones ought to include limits upon campaign financing and also upon the private ownership of our media. These limits, far from limiting speech itself, would actually permit us all to speak freely, at a reasonable volume, and to be heard, and would enable our ideas to be judged by their merits, rather than by the financial backing they are able to attract. These limits would also foster diversity, competition, and vigorous, open debate.

   People who do not understand this, or who studiously pretend not to understand it, are either plutocrats, the professional lackeys of plutocrats (like George Will), or dupes.

   Posted by JakobFabian at 06/01/2009 @ 1:13pm

6. JakobFabian, you propose an excellent solution!

   And you demonstrate, once again, that Jeffrey Feldman and George Lakoff know what they're talking about. We will gain the most when the Dems have mastered the "Frame Game"...

   Posted by Naomi666 at 06/01/2009 @ 3:39pm

7. posted by ZEPHYR TEACHOUT on 06/01/2009 @ 10:16am

   I am only surprised to learn that anyone still gives any weight to anything George Will writes. The man is utterly full of bull. He attempts to editorialize on a vast range of issues as if an expert on all when in fact he is without doubt doing little more than a highly-paid regurgitation of press releases from rightist political action groups and organizations.

   Posted by syfriendly at 06/01/2009 @ 3:56pm

8. Nor does it necessarily include the unlimited sale of our public airwaves for advertising, or unlimited contributions for political candidates. Indeed, if we want unlimited free speech, then we must limit the use of megaphones, both real and metaphorical.

   The restriction of megaphones ought to include limits upon campaign financing and also upon the private ownership of our media. These limits, far from limiting speech itself, would actually permit us all to speak freely, at a reasonable volume, and to be heard, and would enable our ideas to be judged by their merits, rather than by the financial backing they are able to attract. These limits would also foster diversity, competition, and vigorous, open debate.

   People who do not understand this, or who studiously pretend not to understand it, are either plutocrats, the professional lackeys of plutocrats (like George Will), or dupes.

   Posted by JakobFabian at 06/01/2009 @ 1:13pm

   As I've stated before, the Govt has no business claiming ownership of the airwaves. this should be completely separated from any govt involvement.

   Posted by antisocialist at 06/01/2009 @ 4:10pm

9. <i>Posted by antisocialist at 06/01/2009 @ 4:10pm </i>

   They're clearly constitutionally allowed to regulate the airwaves; it fits squarely within interstate commerce. Airwaves are commercial by nature (especially in THIS context), and they're unmistakably interstate. Regulation doesn't entail ownership.

   Posted by Thrawn at 06/01/2009 @ 5:39pm

10. At no point, "antisocialist," did I propose that any government own our media. What I did propose was to limit private ownership.

    What this means specifically is that no single company should be permitted to own as many media as we presently allow, under the corporate giveaway known as the Telecommunications Act of 1996 (a truly horrible law).

    I would also like us to create new public media, such as the BBC, funded by fees imposed on media outlets (radios, computers, and TVs). These would not be the property of the government; they would be independent entities. They would also not be monopolies, but would compete with private media providers.

    Posted by JakobFabian at 06/01/2009 @ 5:42pm

11. They're clearly constitutionally allowed to regulate the airwaves; it fits squarely within interstate commerce. Airwaves are commercial by nature (especially in THIS context), and they're unmistakably interstate. Regulation doesn't entail ownership.

    Posted by Thrawn at 06/01/2009 @ 5:39pm

    Of course the govt claims they own them. That's why they sell bandwith signals.

    Posted by antisocialist at 06/01/2009 @ 9:40pm

12. Posted by antisocialist at 06/01/2009 @ 9:40pm

    So broadcast, which is (ex NPR) based on ad revenue capitalism and can cover more than one state, is NOT part of "interstate commerce", Larry????

    Posted by Mask at 06/01/2009 @ 9:59pm

13. I looked into this claim here concerning Mr. Will. He of the "Don't tell me about the founding fathers!"

    Of course, we know after creaming himself, hoping, praying some combo of GW and Cheney was the return of his beloved Ronnie - - he hung on to the high, humping like some lab rat on a Limbaugh dose of viagra, hung in there well past the blisters and bitterness.

    He did used to be cool. Back when there was a little room for ideas on MSM, and one didn't so deperately need to become a brand to get air time.

    Alas, he's fully morphed. A la the neocon's 'waterboard first, ask questions later' he clearly didn't need to read your article to re-assert his brand. Just another device. Could be Susan Boyle or North Korea, it'll come out the same.

    The George Will Brand, pens, key fobs, bobblehead dolls, stickers - oh but his thing is to go the other way. Unheard of! Clever, they'll never catch on now! It's Super Will, who in a clever little twist, keeps the Clark Kent persona for the whole scene.

    Posted by winyahn at 06/02/2009 @ 12:44am

14. Yes, the polite, cordial fellow, almost British even, the round rim'd spectacles, another Reagan-kiss-up, who just couldn't deal with the anarchy, sex, ideals, confusion and questions of that strange dark period that followed his glorious 50's.

    Yep, Clark Kent, the so very conscious academic dress out, the nerdy bow tie, the above the fray - but willing to make a career out of just longer than what he dismisses as a shallow soundbite, soundbites. Barely ever leaving the fold, no matter how bad Cheney/Rumsfeld and the Scandalathon W admin shattered and corrupted the Perfection - the only love he'll ever know. But Ronnie and American Narcissism were one in the same with Shock and Awe. Will, it turns out, couldn't deal.

    So he sputters and mutters about, putting out little Brand fortifiers like this. Pressing that morphine drip button.

    Posted by winyahn at 06/02/2009 @ 12:46am

15. 'Such a commission should investigate ... and if the legal reasoning ... is as faulty and pathetic as it seems, those lawyers should be disbarred and possibly, impeached.' -- Katrina vanden Heuvel -- The Nation -- 30 May, 2009 -- http://ww w.thenation.com/b ogs/edcut/439648/time_ will_justify_our_strength

    Posted by HonestLiberal at 06/02/2009 @ 08:54am

16. Posted by snowball666 at 06/02/2009 @ 08:03am

    Wow! That sure was some delectable poison!

    Posted by winyahn at 06/02/2009 @ 12:49pm