|A QUESTION OF SPEECH|
October 5 ,1999
GWEN IFILL: Is unlimited campaign spending a recipe for corruption or is it constitutionally protected as free speech? This is the essence of the argument placed before the Supreme Court today in an appeal from the state of Missouri. To examine the legal and political implications of today's case we turn to two advocates. John Bonifaz is the executive director of the National Voting Rights Institute, he says fundraising should be contained. Joel Gora, a professor at Brooklyn Law School and general counsel of the New York branch of the American Civil Liberties Union, says limiting spending is unconstitutional. Both were at the court today. I'll start with you, Mr. Bonifaz. What did you think what the argument was at the court? We hear it was kind of lively.
JOHN BONIFAZ: It was lively. The court was very engaged on this issue, as they should be. This case is important for the state of American democracy. It's critically important for our elections and the integrity of our election process. And if we do not recognize and curtail the impact of campaign contributions on the political process, then we really are endangering the very essence of democracy. And so campaign contributions limits as the court ruled in 1976 are constitutional and they should remain so.
GWEN IFILL: Mr. Gora, tell us a little bit about how the justices exchanged with each other on the subject and what your interpretation of it was.
JOEL GORA: Well, I was privileged to have been a lawyer in the original case of Buckley V. Vallejo. So, I was present in the Supreme Court chambers 23 years ago...
GWEN IFILL: The federal law.
JOEL GORA: Yes, when the federal law was challenged and the Supreme Court Justices then were extremely concerned then about the effect of limiting campaign funding on limiting political speech. Today, this morning the Justices were just as concerned and if anything, they were more concerned because now we've had 23 years of experience with a system of trying to limit political contributions and it just hasn't worked. It hasn't worked to level the playing field between challengers and incumbents, it hasn't worked to reduce the influence of people that have the wealth and use that wealth to influence the political process. And I think many justices of the court seemed to recognize that. The questions were the same kind of questions that we at the ACLU have been asking about campaign limits going back more than 25 years now.
GWEN IFILL: Would placing limits or lifting the limits which are already in place, wouldn't that just be a free for all?
JOEL GORA: Well, I think lifting the limits that would already be in place would make it possible for people who are not independently wealthy or people that do not have their own sources of funding or connections or well connected people, make it possible for them to get their message out. What's interesting is lost in the shuffle. The plaintiff challenging these contribution limits was a fellow named Zev David Fredman. And he had a lot of good ideas...
GWEN IFILL: In Missouri.
JOEL GORA: In Missouri. He a lot of good ideas but not very much money. And so what he needed was some people who agreed with his ideas to give him some contributions, fully disclosed to the public, to help him get his message out. Under Missouri's law, limited to $1,000 or $1,075, those people couldn't do that. So that's the kind of person that is limited by this law. The fat cats know how to take care of themselves under our system for better or for worse. But it's the people that need access to resources that haven't been able to do it.
GWEN IFILL: Mr. Bonafiz, you can respond.
JOHN BONIFAZ: Well, find it interesting because Mr. Fredman had a sworn affidavit in this case in which he said that the reason why he needed to collect unlimited campaign contributions up to the sky was to "discourage" other candidates from entering the party primary. That's what this debate is really about. It's not about free speech rights of those who want to spend money up to the sky. It's about their interest in shutting out other voices and drowning out other voices. And no one has the First Amendment right to drown out other people's speech. The Supreme Court said that as far along ago as 1949.
GWEN IFILL: Do we assume at the beginning here that money is of itself a corrupting influence in politics in this?
JOHN BONIFAZ: I assume it is and the people of this country assume it is and they have reasonable assumptions to make those claims because we see unlimited amounts of money being raised both at the presidential, congressional level and at the state and local level. And people believe that when that money is given, it's given for the purpose of getting something in return.
GWEN IFILL: But Mr. Gora, there's no evidence that corporation in the Missouri case especially that we had before us right now that corruption has, indeed, been curved.
JOEL GORA: That's right - or has occurred.
GWEN IFILL: Or has occurred.
JOEL GORA: There were no limits. And, indeed, that's what concerns so many of the Justices. They said before you restrict free speech rights, and it's clear that if you restrict political funding, you're restricting political speech -- before you restrict free speech rights, you have to have a compelling showing that there's a need to do that. Missouri made no such showing and the court asked the attorney general of Missouri what evidence do you have that in the days of unlimited contributions, there was unlimited corruption, and the answer was absolutely none.
GWEN IFILL: Let's assume for a moment that you're correct in money equals free speech. How do you guarantee that lifting contribution limits is actually going to improve the quality of the political debate?
JOEL GORA: Well, I think if you have -- if you make it easier for candidates to raise money, particularly the kind of candidates who are not part of the incumbency protection system, the candidates who are not wealthy, I'm looking at protecting the different voices. When the ACLU first got involved in these issues, it was because individual citizens were trying to use their resources to run ads in the newspaper and the government tried to stop them saying they were an illegal campaign committee. We got involved in representing Senator Gene McCarthy, a political hero, for having challenged Lyndon Johnson. How did he do so? He got a small number of wealthy contributors who agreed with his anti-war message to fund his campaign. And he took the message to the people and defeated a sitting President. That's why I'm interested in having people use their funds or their contributor's funds to get their message out.
GWEN IFILL: One of the reasons there's so much interest in this case is, of course, we're on the very lip of a an election, a presidential election year, and there is some speculation that what the court does in the Missouri would affect federal law.
JOHN BONIFAZ: Dramatically.
GWEN IFILL: In what way?
JOHN BONIFAZ: Well, if the court affirms what the appellate court said in this case, which essentially that these limits are unconstitutional, then it would invite litigation with regards to the federal limits that have been in place for 23 years. And that would be disastrous for the state of our democracy. We have to understand here that less than 1 percent of the population is giving 80 percent of all money in federal campaigns in amounts of $200 or more. Most people do not have $1,000 to give as disposable income. Poor, middle income people in this country don't have that kind of money. And yet they have constitutional rights as well. They have a First Amendment right and an equal protection right in the political process.
GWEN IFILL: Let's think about this for a moment in the context of what we know right now. Republican challenger, the outsider, not the incumbent, that's George W. Bush, has raised $56 million and he has done it by playing within the rules as they currently are enforced.
JOEL GORA: Right. I think it's interesting, Gene McCarthy relying on a few large contributors back in 1968 raised -- adjusted for inflation -- even more money than that. Northbound claimed Gene McCarthy was corrupting the political process. George Bush raised it within the limits and George Bush is an incredibly well connected candidate. People who are not as well connected as George Bush or as wealthy as Steve Forbes...
GWEN IFILL: Or Ross Perot.
JOEL GORA: Or Ross Perot people who don't have a Rolex or a Rolodex, those are the people I care about. I want to find a way to have them get their funding to get the message out. Now there are two ways we can do it. We can, number one, lift these limits on contributions, which are now ridiculously low. Even as a political matter I think there would be a minority sentiment in Congress to raise the $1,000 which hasn't changed for 25 years, to a higher level, and make it easier for candidates to get the message out and the other answer, and John would agree on this, is public funding.
GWEN IFILL: That was my question. Do you think public funding is the solution?
JOHN BONIFAZ: Full public funding has to be part of the solution. But
lifting contribution limits so more wealthy people can give even more
of their money clearly is not - contribution limits plus full public
GWEN IFILL: There's another piece of the debate - and it's something which the court took pains to address in 1976 in Buckley v. Vallejo -- and that's the question about spending. There are limits on contributions, there's no limits on how much you can spend. Is there any way that they could open the door to that debate or does the court even...
JOEL GORA: Absolutely not.
JOHN BONIFAZ: Not in this case.
JOEL GORA: Not in this case, and I think not any time soon because in terms of the current court, there are two Justices who have indicated they'd be willing to let government regulate all political funding, contributions and expenditures. The other Justices have shown no inclination to limit expenditures. So that means if we take John's cap and continue to limit contributions, we're going to have a perpetuation of the same failed system that we have now. No limits on expenditures, which is critical under the First Amendment; and then we make it harder for the new voices, the political newcomers, to try to get their message out and that's wrong.
JOHN BONIFAZ: Well, you know, we can't lose sight of what's at stake in this. What's at stake is basically the American promise of political equality, which is at the heart of any democracy. And when we have people who have large sums of money, earning it in this current climate of obscene wealth, we have to curtail that. We have to protect the democratic process from being undermined by those who have such large sums of wealth. And American promise of political equality requires reasonable limits on contribution and, yes, reasonable campaign spending limits. And the court will be asked time and time again to revisit that aspect of the ruling in years to come.
GWEN IFILL: A very brief last word.
JOEL GORA: And the court has also made it clear that political democracy and free speech go hand in hand.
GWEN IFILL: Thank you very much, gentlemen.