In Pursuit of Equality: An Interview with Ian Ayres

Ian Ayres is a lawyer and an economist. He is the William K. Townsend Professor of Law and Anne Urowsky Professorial Fellow in Law at Yale Law School and a Professor at Yale’s School of Management. He is the editor of the Journal of Law, Economics and Organization. Professor Ayres clerked for the Honorable James K. Logan of the Tenth Circuit Court of Appeals. He has previously taught at Illinois, Northwestern, Stanford, and Virginia law schools. Professor Ayres has published nine books and more than 100 articles on a wide range of topics. He received his B.A. (majoring in Russian studies and economics) and J.D. from Yale and his Ph.D. in economics from M.I.T.

The Politic: I want to begin by asking, what is your immediate reaction to the Supreme Court’s ruling in Citizens United v. FEC?

IA: It’s likely to substantially increase the amount of private money from powerful actors in our political sphere.

The Politic: In response to the Supreme Court’s recent ruling in Citizens United v. FEC, you and Bruce Ackerman have advocated a law against types of electoral spending by federal contractors. How would this work and would it be politically feasible?

IA: What Bruce Ackerman and I have proposed is that federal contractors be prohibited from buying ads that expressly advocate the election or defeat of particular candidates. I think this would likely be constitutional, and these days, whether something is politically feasible depends on a variety of factors. This type of legislation has been feasible in the past. We’ve had a long tradition of having special restrictions on the political activities of federal contractors. We’ve also done the same with government employees, as demonstrated in The Hatch Act of 1939. In some sense, this is just trying to take the personhood of corporations seriously. The theory behind the Supreme Court’s decision is that corporations are fictional people that are endowed with some constitutional rights as corporate persons. They should be treated with at least the same restrictions that we impose on real people. I am hopeful that Congress will take seriously the risk that defense contractors will deploy their spending to reward or punish candidates that aren’t willing to shell out money to them. That kind of gross bias is a concern, so it’s possible that Congress will act as it has many times in the past to stop federal contract corruption.

The Politic: You and Ackerman have previously done substantial work on campaign finance reform, including creating radical and extensive proposals such as “Patriot dollars” and “secret donations.” Until this type of sweeping reform occurs, what smaller changes surrounding individual donations should be enacted?

IA: Well firstly, our earlier efforts are comprehensive and important, but I definitely wouldn’t characterize them as radical. A smaller reaction that Congress might have is something that was actually suggested in Justice Stevens’ dissent to this recent decision. The idea is that Congress and the Federal Election Commission could work to improve shareholder democracy. Another risk of the recent decision is that corporate managers will misuse corporate money to further their personal political agendas; notwithstanding its detrimental impact on corporate profits. So, another type of democracy put at risk is shareholder democracy.

A very small and effective change to the recent decision would be a presumption that corporate shareholders do not want their corporate managers to spend money on advertisements that expressly refer to federal candidates. That’s just a presumption, and it’s just one that’s trying to promote corporate democracy. If there is a shareholder vote and there’s a majority, or perhaps even a statute requiring a supermajority, of shareholders who say that they want their money spent for such ads, then the management should go forward. This is a secondary concern though. It’s one thing to have corporations that are spending the money to pursue corporate interests, but when they are spending the money just to pursue managerial interests, that’s something that we all should be upset about.

The Politic: Given incumbents’ desires to remain in office, what incentive do they have to reform campaign finance in a manner that provides challengers with a more even playing field?

IA: They may not have big incentives to make such reforms. However, at moments of political fervor, particularly after a crisis such as Watergate, we have seen Congress, pushed by the voters, take action. Once every twenty years or so, there seems to be action. It may be that we have to wait a little bit longer though. We had a major campaign finance reform after Watergate and we had it recently with the bipartisan McCain-Feingold bill, which was partially struck down last week, though there are still parts of it that remain in place. It’s always safe to bet on Congressional inertia, but notwithstanding the self-projected urges, Congress has moved several times in our nation’s history to restrict corruption.

The Politic: Your 2005 book Straightforward: How to Mobilize Heterosexual Support for Gay Rights offered a variety of suggestions to boost participation in the gay rights movement. How effective has heterosexual participation been in the past 5 years?

IA: Well many non-gay supporters have come forward and worked for equality in marriage and in employment, and on many of the state referendums. The opinion polls on equality in employment, including military employment, continue to show improvement and are at their highest in the youngest cohorts. I think that it’s clear that the future belongs to equality. I’ll give you a specific place where I think that on the ground we can see change. If you look at wedding invitations and weddings, if you roll the clock back ten years ago, heterosexual couples sent wedding invitations to their friends and family, including their gay friends, without the slightest sense of unease. Now, there is often a slight sense of unease, and sometimes I even hear embarrassment, like the heterosexual couple feels strange for taking this wonderful benefit of marriage, when their loved friends who are gay cannot take that right. There are loving heterosexual couples who are choosing not to marry until marriage equality comes to their state. There are others who are making statements at their weddings, or when they send that invitation, they add on personal notes, so there is evidence that change is occurring on the ground.

The Politic: After initiatives such as Proposition 8, where do you see the gay rights movement headed?

IA: Two things are highly to happen. Firstly, we’re likely to see important progress in employment equality. President Obama expressly called for repeal of “don’t ask, don’t tell” in the military, so we may achieve employment equality there within the coming year. I think that within the next two to three years, and maybe even within this next year, we’ll have a federal statute mandating non-discrimination on the basis of sexual orientation at the federal level. Many states already have this in place and about 90% of Americans think it would be wrong not to hire someone simply because they’re gay. We’re going to get full employment quality pretty soon, and the struggle for marriage equality is also likely to take place over the next few years, though primarily at the state level. I would imagine that there will be another state or two within this coming year that will allow same-sex couples to marry.

The evolution will be gradual and it’s definitely the case that constitutional amendments have succeeded in getting on the ballots in many states. That’s a last gasp of the opponents of marriage equality realizing that demographics are against them and trying to lock a constitutional provision in place because they realize that the future is pushing against them. There’s a great statistical analysis by Nate Silver on the demographics of these marriage propositions. I think that there’s actually great agreement on the predictive issues from both opponents and proponents of gay marriage. They both recognize that the writing is on the wall and within ten to fifteen, and certainly twenty years, marriage equality will come to the United States.

The Politic: I want to shift to talk more about some of the work you’ve done involving civil rights and racial discrimination. Do you think some law enforcement agencies and perhaps some criminal justice policies inherently racist, or does the problem lie with those who are chosen to implement the policies?

IA: I think the term inherently racist is unhelpfully imprecise. When I look at issues concerning race, I make a distinction between trying to identify outcomes where a decision maker makes his or her decision contingent on race, and those decisions, whether they’re contingent on race, that might be contingent on some non-race factor that still has some unjustified disparate impact. In the law, those two types of discrimination are referred to as disparate treatments and disparate impacts. Sometimes I’ve been able to identify decisions where there is fairly credible evidence that race-contingent decision making is taking place. I went out and did randomized testing of new car dealerships in Chicago, and found very credible evidence that the dealerships were offering higher prices to black customers than to white customers on the basis of race. In other places, I’ve been able to establish evidence that there are policies that are producing unjustified racial disparities. In a study surrounding the Los Angeles Police Department, I was looking to see if there were unjustified racial disparities. Now those disparities might be caused by racially-contingent police decisions, but they could also be driven by making their decisions contingent on non-race factors that just disproportionally hurt minorities.

The Politic: What specific policies do you believe have a disparate impact on minorities?

IA: One example would be in car finance, where some auto lenders have policies that give lower interest rates to new college graduates. That’s a policy that’s not directly contingent on race, but if new college graduates are disproportionally white, then that policy is going to have a disparity that is disproportionally born by non-whites. Then, there’s a very separate issue of whether it’s a justified or an unjustified disparity. There are some disparities that might be disproportionally born by minorities, but they might be justified. In the United States today, minorities have disproportionally lower credit scores. If you charge higher interest rates to people with poor credit scores, minorities will be affected, but that might be a justified disparity. Charging higher prices to someone, not because they have poor credit or impose more costs on you, just because they don’t have the ability to shop around is not a credible justification for a policy that disproportionally burdens minorities.

The Politic: What about federal level issues such as drug laws? Do you think they are more issues of disparate treatment or disparate impact?

IA: At the federal level, there are often laws that create disparate treatment on the basis of race, but it becomes a context specific question to the extent to which disparate impacts are prohibited or not. There can be claims that are made against police departments that have a certain drug policy or prosecution policy, but with regard to a statute itself, that for example would give higher penalties for crack than non-crack cocaine, those are not usually susceptible to a disparate impact challenge.


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