How can this not be front page news everyday?

Tim Kuhner is Associate Professor of Law at the University of Auckland, New Zealand. His research, teaching and writing focus on the intersection of economic and political inequality and the law of democracy. In his 2014 book „Capitalism v. Democracy. Money in Politics and the Free Market Constitution“, he shows how the US Supreme Court created a legal situation in which financial elites exert a dominating influence on political processes. In 2020 he published „Tyranny of Greed“, which examines the causes and effects of Donald Trump’s presidency.

In the interview I was most interested in how the predominant influence of financial elites on democracy came about and why there isn’t more public resistance against this extreme concentration of power. The interpretation of the US Constitution underlying this status quo is only poorly legitimized with referral to liberal ideals and does not withstand empirical scrutiny. Nonetheless there is very little medial attention to and public objection against the structures maintaining this system.

Kuhner warns against short attention spans, blind careerism and resignation and demands political equality and healthy outrage in the face of structurally corrupt democracies and catastrophic climate change.

The interview is also available in German and as a shortened video.

Further references:

UN: Human Development Report 2019 (German/English)

IPSOS: Survey about Broken-System Sentiment 2021

OECD: Trustlab 2017

Transparency International: Corruption Perceptions Index 2021

M. Gilens, B. Page: Study „Testing Theories of American Politics“ 2014

L. Elsässer et al. (MPIfG): Study „Government of the People, by the Elite, for the Rich“ 2018

L. Bartels: Study „Political Inequality in Affluent Democracies: The Social Welfare Deficit“ 2017

In your book „Capitalism v. Democracy“, you show how the US Supreme Court ruled money to be speech. The Court then went on to make the freedom of speech somehow trump the constitutional rules about equal opportunity in the political process. So we see the freedom of speech turn into this tool that merges financial power and political power. Could you explain how exactly the connection between those powers was caused by the Supreme Court?

I called the book „Capitalism v. Democracy“ because it’s as though there are these two parties facing off against each other. One of them is this idealized version of free-market capitalism, this hypothetical world of well informed consumers and enterprising firms competing on the basis of the quality of their products and the prices they’re able to bring them to market. Where everyone is free to use their industry and their capital to compete with each other and any limit on that competition is socialism or communism or something negative. That’s long been an economic theory of course, and it’s implemented more or less in economies around the world.

The interesting thing to me came when I started to see all of these aspects of economic theory transported into democratic theory. Not just in the sense of books and articles, but by the United States Supreme Court, deciding cases that determined the constitutionality of campaign finance reform. Campaign finance reform is a small way of referring to political financing, financing relates to the funding of political parties, the funding of candidates and election campaigns, the funding of political speech, the role of outside pressure groups or interest groups, the funds that go to lobbyists who wish to influence either particular legislation or policy proposals or who simply wish to influence the state of debate and the nature of political platforms and so on. That includes public financing for parties and candidates and media time and all that. So political financing is really how we pay for the processes that give us governments and that give us laws and policies, basically.

The US Supreme Court between 1976 and 2014 has a pretty long line of cases that determine the constitutionality of a number of campaign finance reforms. Buckley v. Valeo in 1976 is the seminal case which decides the constitutionality of the Federal Election Campaign Act. The Supreme Court, exercising its power of judicial review to strike down legislation that’s incompatible with the US Constitution, decides that spending limits are incompatible with the Constitution. The reasoning in the opinion is that for Congress to attempt to equalize the power of citizens so that the very wealthy can’t drown out the voices of the poor, that kind of motivation to equalize political power is entirely foreign to the First Amendment.

There’s a lot of funny things about that. One of them is that the First Amendment only says that Congress shall make no law abridging the freedom of speech. So before the Court can even say that political equality is foreign to the First Amendment, it has to decide that money is speech. Because all Congress was regulating was the ability of candidates and interest groups and parties to spend money. So the Supreme Court had to say first of all that in our sort of free-market society, they use a phrase like that, in the free society ordained by the Constitution, all kinds of electoral activities depend on spending money and therefore money is speech.

The Supreme Court is basically saying that because we privatized the United States and we don’t have public support for media and for campaigns, because we live in a free-market economic order, we need money to finance our politics, too. As if democracy is like a privatized industry or something. That starting point is already very strange because they just accept the existing status quo as just and natural. They take the preexisting order as prepolitical and appropriate and therefore within that order you’ve got to have money to speak. And if you can’t speak without money, we can’t really interpret the money any differently than we can interpret what your viewpoint is.

I think that step is incredibly dangerous and intellectually dishonest. Because the money is not a function of how much you believe in something. If I had five billion dollars and I wanted to donate a hundred thousand of it to a political cause, how much do I really have to believe in that cause to give it a hundred thousand dollars out of five billion? But if I had ten thousand dollars and I had to take out a bank loan and borrow money from everyone around me and I was to assemble a hundred thousand dollars that way, the only way I would ever do that is if that political issue was life or death to me, if that was the most important to me in the world, more important than my kids eating. The price signals in the so-called political marketplace are not an accurate reflection of how much you care about something.

So there’s all these fallacies built into the Supreme Court’s argument. The only way you can limit free political speech is if you have a very important state interest, a very important reason for limiting it. So that would be when Congress says, we want to equalize the voices of different citizens, or we want to provide for democratic integrity, or we want to create a politics where everyone who has a real interest can participate, these sorts of things.

The Supreme Court looks at all of those different state interests and says none of them is important enough. How can the Court decide that the freedom to spend money is more important than the equality aspects in the Constitution? The answer is the equality aspects of the Constitution are pretty vague and the Supreme Court doesn’t interpret any of them to be relevant or on point.

So anyway, Buckley v. Valeo strikes down parts of this landmark campaign finance reform bill that came out of the Watergate Scandal, which was a seminal moment in US political history, when the general public realized how corrupt things could be. From Buckley the case law goes in different directions, it just depends on the body of judges who are serving at the time. We had the Rehnquist Court which was a bit more friendly to campaign finance reform, they talked about the undue influence of concentrated wealth. Austin was the key case there and then McConnell in 2003.

And then the Roberts Court took over around 2006 and turned out to be even more of a radical libertarian free-market kind of force. So we end up in this space in the United States where politics is more and more a function of an open political market instead of a shared space in which citizens can deliberate and participate and be represented regardless of their socioeconomic status. So I call it plutocracy and political exclusion on the basis of wealth.

Does the Supreme Court see free speech as a value in itself or rather as a means to achieve societal ends with? Did attorneys attempt to empirically challenge the Court’s assumptions about how good a society could be that interpreted free speech in this way?

The Supreme Court’s understanding of free speech has started from the first kind of understanding where it is part of a larger democratic system and it has to achieve democratic ends. The key passage in the 1976 case Buckley says that the purpose of the First Amendment is to achieve or guarantee this open political marketplace for the purposes of bringing about the social and political changes desired by the people. So in 1976 the Court understands the purpose of the First Amendment to allow competition and to allow an open marketplace as a metaphor to have a democracy that’s responsive to the needs of the people.

Who can disagree with that, right, that we shouldn’t censor anyone and everyone should be allowed to speak, the idea that the voters and the electorate aren’t stupid, you should let them have the benefit of all the information and make up their own minds and then the truth will prevail. It’s very romantic and very liberal democracy-esque. But the problem is that it’s totally divorced from reality. There was very good evidence even in the 1970s that business interests had a disproportionate amount of money that they spent habitually to influence the debate, to influence the outcome of campaigns, and there were numerous corruption scandals throughout the twentieth century. There was evidence presented about those things, that the wealthy would corner the political marketplace, that it wouldn’t be a competitive political marketplace and it had never been. The Court basically ignored that stuff.

But it’s gotten much worse because since 1976 there have been a number of studies that rather conclusively demonstrate that money talks and the wealthy get better representation and better responsiveness. The most famous one is by Martin Gilens and Benjamin Page, it’s a 2014 study called „Testing Theories of American Politics“. That study empirically demonstrates that politicians and elected officeholders are very sensitive to the preferences of the wealthy and are very insensitive to the preferences of the middle class and the poor. And that when the middle class and the poor get their way on law and policy, it’s just a coincidence, that means that the wealthy are not opposing them, basically.

Obviously there are some counterpoints, there is the occasional time when popular power works. But generally this is something that plutocracy does very well, it keeps the issues safe. It makes a big deal out of moral issues, it makes a big deal out of sensational issues, and it hides the big picture of distributive questions, the tax code, the status of tort law, the status of environmental legislation, the status of global trade law, the status of entitlements and public benefits. All that is basically shielded from real public input.

The other really striking piece of information is that almost all of the money in politics that funds political parties and political campaigns comes from the wealthiest 1 percent or less of the population. It’s really like the wealthiest 0.5 to 0.1 percent are donating almost all the money in politics and are spending almost all the independent expenditures that fuel political speech and debate. So there really is what Spencer Overton calls a Donor Class. They’re not just wealthy white males who are rich and college educated. That part is clear. We’re really talking about about the influence of white college educated males, the most important thing about them though isn’t those things, it’s their conservative economic philosophy.

The super rich have very different political preferences than the average citizen of any country. That’s the issue and the Supreme Court entirely ignores that. There’s very few countries in the world where you can say, not only are the wealthy controlling politics, but the high court of that country has said that is how democracy has to work, that’s a plutocracy de jure, not just de facto. That’s what’s really interesting about the United States case, it’s a model for an officially validated and officially justified system of political exclusion.

You make the point that when businesses gain economic advantage through political influence and not by excelling in the market sector, it undermines capitalistic values. Are there any efforts by private enterprise to limit the role of money in politics in order to protect the market from undue influence?

Most of the campaign finance reform interest groups are citizen based, they’re raising money from average people. But there are also some wealthy Americans who oppose money in politics. They don’t want to have to compete economically in the political space, they want to compete on the basis of intelligence and efficiency and imagination and all these things. Whereas corrupt businessmen and businesswomen are thinking, well, I don’t know if I’m the smartest, I don’t know if I’ve got the best product, but what I do know is that if I can influence the political conditions to disfavor my rivals, I’m going to succeed and others are going to fail.

I’m really interested in that viewpoint because I don’t think money in politics is really much of a partisan issue. I think it’s more of an issue of corruption. And I do think that people who defend money in politics intentionally or unintentionally are defending a system of legalized bribery and political exclusion. Even going back to almost extreme capitalists like Ayn Rand in her early collaborations with people like Alan Greenspan, who later became the head of the Fed, they were writing about the moral evils of lobbyists. Because they felt that economic competition should really be on the merits of the goods and services, it shouldn’t be on your political poll.

When you look at public opinion surveys in the United States, most Republicans are against money in politics, too. And Donald Trump won his election partly on the basis of that claim that he was going to drain the swamp. So I don’t really think that it’s a partisan issue. I think it’s a corruption issue. There is some pretty bad actors out there, who are using a vocabulary that sounds democratic. But in reality they’re betraying democracy and they’re betraying capitalism.

How strong do you consider current campaigns that fight for a Constitutional Amendment and how can people be motivated for such a long-term task?

For a long time public opinion polls have been tracking the saliency of different issues in the minds of the public, what is the public’s priorities. You usually see stuff about the economy and jobs and taxes. As a general rule campaign finance reform has been pretty low on the list, but that always hasn’t been true. You can look back to Watergate, and also earlier, kind of from the Gilded Age to the New Deal era in the United States, there were times when the public was very aware of high-profile corruption and how politics had become inaccessible and unresponsive to ordinary people. And there were some very meaningful reforms that took place during those times. But none of them was a Constitutional Amendment. And so all of this legislation can be either superseded by new legislation or struck down by the Supreme Court.

And I think most importantly all of this legislation doesn’t amount to constitutional law in the minds and hearts of the people. The issue is that the public has a very short memory. And the media has a shorter memory still. We live in an attention deficit society, for sure. We have all these incredible lessons through American history, Thomas Jefferson and Abraham Lincoln talked about money in politics. But the Civil Rights Movement seems to have died. You’ve got Black Lives Matter and that’s a place where the Civil Rights Movement kind of came back to life in some pretty powerful ways. But the Civil Rights Movement was also about the constitutional rules, about systematic political exclusion. That energy, that critical mass of citizens somehow faded away.

That had to do with the fall of the Soviet Union, with this sense that liberal democracy won. But the issue that was never addressed constitutionally is, can there be political exclusion on the basis of socioeconomic status or wealth. Not just race, not just sex, not just ethnicity and religion and all these battles that had been won. We never won the battle for political inclusion regardless of your money.

That’s the trouble, it’s that campaign finance reform became an isolated issue, like do you care about the state or the economy or do you care about abortion or do you care about guns or do you care about campaign finance reform. But campaign finance reform is different from all those other issues, because it’s the process through which every political issue is debated and decided. It’s the process through which every government is formed, every president is elected and eventually every judge is appointed or elected. It’s like the meta issue that determines the framework or the rules of the game. And that truth hasn’t really materialized in everyone’s minds.

It is hard to put your finger on how this will change. There’s that old saying that things have to get worse before they can get better, and that people don’t make big changes until there’s a real crisis. Climate Change looks that way. I’m very interested in Climate Change, because of the fate of humanity and all other natural species and the planet, but also because it’s largely the product of money in politics and corruption. And so I wonder if Climate Change will be one of those issues that triggers a change in political awareness. Because if it’s not that, I don’t know what it could ever be.

Can you give some positive and negative examples of how media influences the debate on money in politics?

Honestly, the positive examples are also negative examples. There is tons of reporting on money in politics. But the negative thing about all that attention is that it fails to focus on how these are systemic issues. All of the attention makes it look like we’re in a bad apple scenario, but the interesting thing is that we’ve got a rotten barrel.

Obviously we could take a number of steps back and talk about corporate consolidation in the media and how once the media becomes a for-profit business, they’re engaged in that war for clicks and this almost surveillance capitalism-type war for public attention and for the addictiveness of content and for this incredibly short attention span that everyone has developed. I think the trouble is the nature of media coverage, sensationalizing things and trying to make them more salacious. The interesting thing is not all the different details of where this corrupt politician went on a trip that was financed by a lobbyist, they went golfing at a resort in Scotland, and here’s what they ate and here’s what it cost. That’s important for voters to know, because it makes them indignant and reveals how divorced people are from what their job description really is.

But you’ve got to focus on the fact that these scandals keep repeating because politicians don’t have enough sources of clean money. Even if your political funders aren’t taking you to a golf course in Scotland, you have to go to them and ask for money. Studies of US office-holders show that they’re dialling for dollars, they’re going over to their private campaign headquarters across the street from their public offices and they’re calling up people to try to figure out who is going to give them money so they can compete for the next election campaign. So it’s the system that’s corrupt. All of these political actors are dependent on a tiny portion of the electorate for the lifeblood of politics, the money that they need to be elected or to be reelected.

It’s analogous to the situation of Climate Change. The media treats it like, there is another flood, or look, there is another hurricane, there’s a drought over here, let’s write about all the details of the drought. But what has to be on the front page of every newspaper and every media feed is the sustainability of the food web, the web of life and our own need for sustainable climate and the disruption that that’s going to cause in terms of migration and in terms of the ability to grow food and to live in a climate that doesn’t kill us off in the summers and the winters. How can that not be front page news every day, that that is now in doubt? And that future generations may not have a life of sanity or dignity or stability at all?

And it’s the same with democracy. We still don’t have a real democracy, all these issues we care about continue to play out in a cesspool of corruption and undue influence. The good apples are absolutely disadvantaged in all of this. We have to illegalize unethical behaviour to impose costs on the unethical people so that they can’t beat all of the ethical ones.

Why should German and other audiences outside the United States care about money in politics, systemic corruption and plutocracy?

Plutocracy is a global problem, not just an American one. Consider the United Nation’s 2019 Human Development Report. Finding that high economic inequalities are often a function of high political inequalities in nations around the world, the report notes that well-funded interest groups “capture the system, moulding it to fit their preferences,” and produce “systematic exclusions or clientelism.” As for the means of co-opting government, the report cites “lobbying, campaign financing and owning media and information.” One of the five “key messages” of that document is that “We can redress inequalities if we act now, before imbalances in economic power are politically entrenched.”

The study I mentioned by Martin Gilens and Benjamin Page of political responsiveness in the United States is not just a sign of American exceptionalism. This study proved that mass-based interest groups and average citizens have little or no independent influence, while economic elites and organized groups representing business interests have substantial independent impacts on US government policy. And in 2018, its findings were replicated nearly verbatim by a study on Germany.

So the United States is an extreme case of plutocracy but it’s also an indication of the deteriorating state of liberal democracy worldwide. The United States might be the gaudiest of the plutocracies among supposedly advanced liberal democracies, but it’s hardly the only one.

Is there a shared understanding among young global citizens on what needs to change?

In general, students and other people who I meet in the different states and countries where I’ve lived and taught, they tend to share a common core. We all believe in ideas of political equality and political freedom and participation and representation and legitimacy. When people come across the data and the legal sources on these issues, the common reaction is, oh my god, you’ve got to be kidding me, this is terrible, are you serious? Or the reaction is, of course, I knew that all along, and it’s nice to have the ability to analyze these issues in a more systemic and deep way. But there’s rarely a person who says, no, this isn’t true, you’re biased.

And there’s rarely a person who says that because there’s some much data on this stuff now. And it comes from such mainstream sources. I don’t assign any marxist sources in my classes, because it’s totally unnecessary. You can take on this whole area from the standpoint of, how do we in liberal democracies think this system is supposed to work, how do our constitutions and statutes tell us it’s supposed to work, and how does it actually work. And there’s this incredible distance between ideology or values that we all pretty much share and the reality of how it actually works.

You definitely come across the occasional, right-wing kind of student, and I’m very happy to engage with them. I’ve had really good interactions with students who were more like free-market libertarians. Trumpism is different because it’s blending very quickly into fascism, but I almost never encounter that.

I think the main obstacle on all these fronts, when it comes to democracy and Climate Change, is depression. I don’t mean that clinically, I mean a very rational kind of, wow, these problems are too big, and I’m always getting promises about them being fixed and no one ever fixes them. And this is never going to change and what’s the point. That’s why I love Greta Thunberg, because she speaks to these issues not from a place of depression but from a place of absolutely refusal to let this be depression. She speaks from a place of outrage.

And outrage, absolute truthtelling is a remedy to this depression. If you channel your outrage, and you own your outrage, that leads to political action. So if it’s true that this stuff is all wrong, what should I do about it to live a life with integrity, how do I own up to my values? The trick is never ask yourself if you can fix this, because you alone can never fix this, it’s not an individual effort.

It’s a group effort and we just have to be honest enough and courageous enough to own up to how bad it is, to band together and to spend some of our time acting as though all of this is true, because it is true. We shouldn’t pretend that it’s not real and just go back to our consumer capitalist lifestyle and retire to the realm of junk food and endless content. I think depression or disempowerment or disengagement are the main obstacles. Those threats are very real.

How do you see the role of academia in political conflicts?

One of my mentors said, as university professors, we’re in the privileged position where we’re paid by the government to be a critic of the government. That’s a wonderful environment to work in. I think the trouble with that environment, and that’s something that I’ve been trying to oppose in how I teach, is that sometimes students get the idea that the law is just a skill like swordfighting, something that they will be applying for whoever pays the money.

I really try to encourage my students to figure out and to not lose sight of what brought them to law school. What they really care about, what their vision of justice is, what groups they hope to help or what causes the hope to serve in their careers. And to just keep that stuff present and not to fall into the trap of blind career advancement and all of this meaningless comparison we do, who goes to the most prestigious law firm and who gets promoted and how many billable hours did you work that year. That’s very destructive to human beings.

I’m not writing just for legal scholars, I’m trying to connect with members of the public who sense that democracy isn’t working, and capitalism isn’t working. That grows out of my orientation to legal education, which is, I’m not going to come to my students just as an expert with no independent brain or heart. I want to be really transparent about that, I’m not trying to bias them. But I’m trying to bring to the classroom something of who I am and what I care about. And I’m trying to encourage them to do the same thing.

There’s also a role for a more technical scholarship. That’s important because the legal institutions and bodies of law that contribute to society need to be well fleshed out. But I also believe that in addition to that, professors ought to be speaking about the social implications of what they’re studying. And that’s what I’m trying to do in my work, to say, the laws when it comes to the law of democracy are horribily incomplete, and there’s a lot of progress to be made still.

You have two more books coming up, „The Separation of Business and State“ and „Democracy in the Twentyfirst Century“. What are they going to be about?

In „The Separation of Business and State“, the argument goes back to the question about Constitutional Amendments to fix problems of money in politics. I was saying that I thought the Civil Rights Movement ended kind of prematurely. There’s this long arc of progress to achieve political equality regardless of race, sex, ethnicity, religion, etcetera. But the Movement never won when it came to socioeconomic status.

The other part of the background for that book is that liberal democracy itself emerged by defeating monarchy and aristocracy. It has structural constitutional features that prevents those forms of political systems so that they can’t reemerge. In the United States we have the separation of church and state. And partly that protects religion from state interference or control. But it also protects the state from religious interference or control.

So we abolished theocracy, we abolished monarchy and aristocracy, but we fell right into the hands of this competing power structure called plutocracy. It’s not government buy-in for religious leaders, it’s not government buy-in for hereditary of monarchical elites, it’s government buy-in for the wealthy. And we don’t have a structural mechanism to abolish class government. I’m proposing a constitutional structural understanding that says, it’s not enough to just treat money in politics like this isolated issue that we should legislate upon. We need to think about it more cohesively and more systematically as a power structure, as a competing form of government, a corporate aristocracy, a religion of capitalism.

Which is pretty much what happened at the Supreme Court, they just became completely blinded and enthusiastic about this theology of free-market capitalism. You can’t question it, we don’t even need proof of how well it’s working, the market is god. It’s so comically primitive, because they’re looking for a source of authority that’s wiser than human beings. But they don’t realize that it, too, is controlled by human beings, and by a very narrow class of human beings which is this new financial aristocracy.

So that’s the understanding of the book, that we need a separation of business and state that is analogous to the separation of church and state and to the separation of powers in terms of breaking up power structures. Obviously it’s a huge claim when it comes to the United States. But it’s a very narrow and limited claim when it comes to the world of advanced and developing democracies. So that’s where the second book comes in.

The second book says, money in politics takes different forms in different democracies. There are very different electoral systems, like first-past-the-post or proportional representation, and there are all these different levels, like the European Union and the United Nations and the WTO. So can you really make claims about the integrity of democracy in such a complicated world?

I’m going to say, yeah, you can definitely make very similar claims about the values and mechanisms underlying the democratic form across the world. The democratic form takes very different shapes on the surface, but when you read into the historical and constitutional traditions and political understandings behind those shapes, there is a set of common aspirations. These core values of essentially freedom, equality and self-government for everyone. This second book tries to examine how the globalization of capitalism and neoliberalism and systemic corruption have distanced so many countries from the original promise of democracy that their populations still believe in.

The good news is that there’s a lot of high profile support for democracy reforms. The UN Human Development Report highlights how economic power has become politically entrenched, and it says, if we’re going to take on inequality in the countries of the world today, we have to address the concentration of political power that is occurring along economic lines. Mainstream organizations like the Economist back up these claims. Transparency International supports campaign finance reform. All these organizations are recommending pretty compatible measures in terms of limiting donations, providing for more transparency, getting rid of secrecy jurisdictions, providing for some public financing etcetera.

What’s missing is a kind of systematic perspective that says, the democracy that globalized around the world after the fall of the Berlin Wall is incomplete. There’s a major stage that has yet to be completed in pretty much every democracy around the world that I’ve ever seen any data for. I’m very interested in exposing the different efforts that are going on in that regard, trying to explore the ways in which there are commonalities. And the countries around the world need to be working together.

It’s also a human rights issue. We have a human right to democratic government when you piece together the different provisions of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. That human right to democratic government has to play out regardless of property, or in the French version, fortune, or in the spanish version, socioeconomic status. And that simply hasn’t been guaranteed by any government around the world that I’m aware of. I’m hoping to make some bridges between people who are working on this in different countries.