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James Bopp: What Citizens United Means for Campaign Finance
October 30, 2012, 9:15 pm ET
Attorney James Bopp was the intellectual architect behind the landmark Citizens United case that was decided by the Supreme Court. The Citizens decision held that independent political spending is a form of protected speech. Bopp told FRONTLINE that he believes further deregulation of political spending would improve the democratic process. This is the edited transcript of an interview conducted on July. 27, 2012.
Did campaign finance find you, or did you find it?
I don’t know. Good question. I didn’t start off thinking I would be a campaign finance lawyer. I thought I would be representing conservative advocacy groups, or at least I hoped to. But I soon found out that that was part of doing that job, because campaign finance laws are used, and in my experience have been used, to undermine the ability of advocacy groups to get their message out, and so to defend them and to make sure that they can be effective means [of] opposing those laws.
So it’s all part and parcel, right, of campaign finance and policy.
Yes. Well, it wasn’t intended that way. It was intended by the Founders that citizens would have a robust ability to participate in politics in our democratic process without having to worry about laws that restricted them, and that’s the reason for the First Amendment, is to put that out of bounds as far as government laws are concerned. But politicians are still intent on adopting those laws to prevent citizens from participating, particularly from criticizing them, and unfortunately, on occasion, the Supreme Court has gone along with that, and as a result, we have the most complex laws in any area that is regulated by the First Amendment in the area of core political speech.
It’s kind of funny to hear you say “regulated by the First Amendment,” because you believe, if I understand you right, that in politics anyway, the First Amendment should be absolute.
Yes, basically absolute. Occasionally when I’m particularly cynical, I can see reasons for contribution limits, but that they need to be much higher than they are now, because you can’t even buy a Democrat politician for $2,500.
The most recent Supreme Court case that you’ve been involved with, Citizens United [v. Federal Election Commission] — to borrow a lawyer’s phrase, give us the briefing. What was the essence of that case?
Well, the essence of that case was a documentary that this group was doing, Citizens United, about Hillary Clinton’s conduct in office, both as first lady and as a U.S. senator, and how she might conduct herself as president. And it was about 90 minutes. It was the same sort of thing that FRONTLINE does routinely, in my view. And they found out that, number one, it may very well be illegal, even that — despite the win that I already had in the U.S. Supreme Court in the [Federal Election Commission v. Wisconsin Right to Life] case, and furthermore, that even if they could do it, they were going to have to file reports with the Federal Election Commission that would identify the donors to the organization, which they were also concerned about revealing them, which would subject them to harassment and intimidation and certainly discourage them from contributing to the organization. So that’s why they came to me. They were concerned about the law’s application to this documentary that the press doesn’t have to worry about because they do have an absolute protection under the law that really I think citizens should also enjoy.
So your brief to the Supreme Court, your argument to the court in your filing was what exactly about Citizens United?
Well, it was two things: It was that both the 90-minute documentary and the ads that promoted it could be run, could not be prohibited as prohibited corporate expenditures, and furthermore, that because they were not direct political speech — that is, advocating the election or defeat of a candidate — is that they should not have to file reports or put disclaimers on it, just like this documentary that FRONTLINE is going to do doesn’t have to have any disclaimers or to file any reports about who is funding this.
“…Contribution limits have severely distorted the whole system. When you can’t give adequate money to a candidate, but you have money to spend, … then you’re going to give it to somebody else….”
No, but you’ll see the credits when this thing rolls, right? I mean, you’ll know who funds this report.
No, we won’t know who funds it, or we won’t know who the investor is and the company that is being contracted with to run this. We won’t know that information, and nor should we.
Fair enough. The reaction to [the] Citizens decision was swift on both sides, and it is shaping the dynamic of this election today. How’s it doing? What is it doing to the environment?
It was a change in law. Since the 1940s, the corporations and labor unions have been prohibited from expressly advocating the election or defeat of candidates, and that corporate and labor union prohibition was kind of a launching pad for all sorts of very complicated and complex regulation of political speech of corporations and labor unions, so the fact that that can no longer be done is a change in law. It has been given credit for more than it is entitled to, even though, having started that case, I’m perfectly happy for it to be given as much credit as people want to give it. …
And the reason I say it’s overstated is because I won the first decision that said that you cannot have contribution limits to super PACs in 2003, which was nine years before Citizens United. That was then re-repeated in 2008, so the concept that a group, and in this case a political action committee, can — if they only do independent speech; in other words, do not contribute to candidates — cannot be limited in terms of contributions to them, well, it was already established.
Why, though, did Citizens touch such a nerve? Because you had people on the left side of the political aisle saying, “Oh, my God, corporations [now] have First Amendment speech rights.” Why did that happen? How did it get to people so bad?
They object to corporations, but not labor unions, because remember, Citizens United allows both of them to do what was otherwise prohibited, and that is do independent speech. They object to corporations because corporations are not monolithic. Some support Republicans, where unions are monolithic and support only Democrats and liberals. …
So it was partisan. It’s absolutely partisan. The liberal reaction to Citizens United is 100 percent partisan. They object to allowing corporations to do independent speech, but they have no problem with labor unions doing the very same thing, because labor unions support liberals and Democrats.
Beyond the partisanship, though, what is on the line? What’s at stake when we talk about campaign finance laws?
Well, what’s at stake is the ability of average citizens to participate in our democracy. Rich people have the money and under our laws and under the Constitution can spend the money. People of average means don’t have the money, so they have to pool their resources, so they have to join a group. That group might be a labor union; it might be an advocacy group like, on both sides of the political aisle, Sierra Club, National Right to Life Committee [NRLC]. So in order for them to participate, they must join a group. So when these laws attack groups, then they are attacking people of average means. They are not attacking the rich people. So what’s at stake in Citizens United is whether or not people of average means are going to have a means to participate in our elections. Rich people are going to be able to participate no matter what. …
Are you happy, then, with where campaign finance law is after Citizens?
No, because contribution limits have severely distorted the whole system. When you can’t give adequate money to a candidate, but you have money to spend, … then you’re going to give it to somebody else, and the result is a distorted system that is less accountable and less transparent. But if you could give unlimited sums to a state candidate, as we can in Indiana, then you have a lot fewer groups, and you are not forcing groups to be created in order for people to participate to the extent they want to.
What about the idea of disclosure? What about the idea of transparency and knowing where the money’s coming from? You’re opposed to that as well.
No. I’m in favor of political actors disclosing their contributors, their expenditures — that is PACs, candidates, political parties — to the extent of their election-related spending. And that’s one of my complaints about contribution limits, is that candidates are fully transparent, and when you have contribution limits, money has to go to other actors who may very well be less transparent. Of course, a good thing about super PACs is they’re also fully transparent, and if reformers really cared about transparency, which they don’t, they would herald the advent of super PACs because they’re fully transparent.
Except there is, as I understand it, another set of actors in the election this time around, these 501(c)(4)s, the social welfare groups, which are not required to disclose, right?
That’s right. Advocacy groups are not required to disclose their contributors, and thank God for that, because otherwise they would be driven out of the process.
Well, because people are concerned about contributing. Generally speaking, people are very reticent to contribute to overtly political entities. It’s much easier to raise money for the local charities or the hospital, Catholic Charities, whatever, than it is for political candidates. One of the reasons is associating yourself with political causes is much more controversial than giving to the local hospital.
So is that a good thing? Is secrecy in politics good?
Well, secrecy in government is not good, and secrecy about what politicians are doing is not good, but anonymity for citizens is [a] very important concept, because otherwise people won’t associate with them. Look, this was established in the l940s, when the state of Alabama wanted the membership lists of the NAACP [National Association for the Advancement of Colored People]. Well, why do you think they wanted that? What do you think was going to happen when they got that? They knew that if they asked for it, people would be reticent to support the NAACP in Alabama. …
Right. I get that, and you’re taking an especially charged example with the NAACP in the South in the ’40s and ’50s. But let me back it up for a minute and get back to the Supreme Court. Justice [Antonin] Scalia is the guy who said, “Democracy requires a certain amount of civic courage.” You’ve got to stand up and be counted.
Well, absolutely, and I’m for people standing up and being counted. The problem is that a lot of people are not willing to do that, so are we just going to exclude them? Are we going to have some courage test now to support a candidate, to support a cause that you’re in favor of? Or are we going to allow everybody to participate? Look, he’s just wrong on this. Surely in the l940s, when the NAACP didn’t want its membership lists to be disclosed, surely he would have supported them in that effort, because everyone knows what was going to happen. Number one, people were not going to associate with the NAACP unless they were prepared to get slammed by the local government, by citizens and the community, and that’s not the way our politics needs to be run. …
These 501(c)(4)s — the social welfare groups that are not required to disclose the sources of their contributions — doesn’t it sort of become shadowy when these social welfare groups can get away with not disclosing where their money comes from?
No, they’re not shadowy. We know who the NAACP is. That is a social welfare group.
Why do you keep bringing up the NAACP? I mean, there are more organizations, right?
Oh, sure. There’s the Sierra Club; there’s NARAL [Pro-Choice America]; there’s a whole ton of advocacy groups.
On both sides of the political aisle.
Yes. And the reason I bring up the NAACP is because they did go to the U.S. Supreme Court and they did win, and they won a very important principle: that private associations are undermined by public disclosure, so only in the most compelling circumstances is disclosure of their contributors, their members justified. That principle has continued throughout our campaign finance law up to this day, to today, and it is a very important principle. What it means is that only when an organization is a direct political actor — in other words, the test that the Supreme Court uses is, is your major purpose electing or nominating candidates? — if that is so, you can be required to disclose your donor, but if it’s not your major purpose — in other words, your major purpose is charitable activity or issue advocacy or lobbying — then you cannot be required to disclose your donor.
“The cost of the public knowing where that money comes from is too high, because it means people won’t associate with those activities…”
So just to be clear that I understand where you’re coming from, these 501(c)(4)s, these social welfare groups you don’t believe that are operating in the political arena, you don’t believe that they’re primarily political?
Well, again, see, you’ve painted with a broad brush. You said “that are operating in the political arena.” Well, what does that mean?
Well, we know, for example, of American Crossroads, right, Crossroads GPS [Grassroots Policy Strategies]. We know of a case in Montana we’ve been following, the Western Tradition Partnership [WTP] case. Those are 501(c)(4)s, which seem to have a political purpose.
One of their purposes is political. Their major purpose is not political, or they would be a PAC. They’d be a political action committee that has to report all their expenditures and all their donors. Doing politics is one of their purposes, and when they do do politics — in other words, they put on an ad that expressly advocates the election or defeat of a candidate — they are required by federal law to report not only their expenditure but also report any contributors that gave the money for that purpose. So they have to disclose their political activity, so they don’t escape disclosure when they do politics. What they don’t have to do is reveal their contributors when they’re not doing politics, when they’re lobbying, when they’re doing issue advocacy, when they’re doing charitable work or whatever.
And all of that is separate from politics, lobbying and issue advocacy?
Separate from campaign politics, yes.
Yeah, conceptually these are important issues. Some people think politics includes lobbying. It doesn’t, the way we use the phrase in campaign finance.
Yeah, well, you understand that average people will see this and go, “Now, wait a second.”
Well, because lobbying is not on elections. We’re talking about campaign finance laws. What’s a campaign? Campaign is an election where people are running for office. A campaign is not lobbying where you’re trying to persuade incumbent legislators how to vote on a particular item. …
What is political advertising to you? What is campaign advertising?
As I told you, calling something political is not meaningful to me. There are lobby ads; there are issue ads; there are campaign-related ads. And all of these are the stuff of citizens’ involvement in our democracy.
You have to be able to talk about issues, you have to be able to talk about the government, you have to be able to talk about what the government is doing to us and for us in office in order to participate in our democracy at all. So there’s a lot of stuff that is not campaign stuff that is our participation in the democracy, and it’s very important that that be protected, and the First Amendment intended that that be protected, that all of it be protected so that we could do it.
So that we could do what?
Participate in our democracy.
Super PACs and 501(c)(4)s, these social welfare groups — help me understand the difference between the two.
Well, a super PAC is, if we’re talking about federal law, a federal political action committee that is highly regulated, and it’s an organization whose major purpose is the nomination or election of a candidate. And they have to report all the donors over $200, all their expenditures over $200. They’re highly regulated. A social welfare group — that’s a technical term as far as the IRS [Internal Revenue Service]. I prefer a lobby group, because that’s what they usually focus their activity on, and that is lobbying government to adopt certain public policies that that particular group prefers over other policies.
But that section of the tax code, right — the 501(c)(4) of the tax code, it’s pretty broad. It goes to volunteer fire departments, the ASPCA [American Society for the Prevention of Cruelty to Animals]. I mean, it’s a really broad clause there.
There are numerous not-for-profits that are recognized in the Internal Revenue Code [IRC] of different types: veterans’ organizations, trade associations, unions, charities, social welfare or lobbying or advocacy groups. I like that phrase also, because it helps you understand what they do.
How did the tax code get mixed up in all this? Why are we dealing with the tax code when we’re getting into election law?
Because the tax code offers tax exemption for certain entities, and we call them not-for-profits. And they are regulated by the Internal Revenue Code in terms of what activities they can do. And that differs depending upon the classification that you have.
You look at campaign finance, and it’s this thing you’ve spent literally your whole life on, your whole career on. The average voter reads the stories about it and watches the ads that come as a result of it. What do you think voters think about all of this? Can you blame them for sort of being turned off by the whole thing?
Voters in the United States have always had a healthy skepticism about government and politicians, and I think it’s a good thing. … But the problem we have is we don’t have enough information available to voters to allow them to make informed choices, so we need more spending.
With all the ads and the news, you think there’s not enough information out there in American politics?
Definitely. If a third of the people in the United States cannot name the vice president of the United States, a majority of the people do not know who their congressman is or who their senators are, so you think that’s enough information? No. That’s not enough information. They need a lot more information.
What’s the answer, then? More spending, more speech?
… Well, it’s one of the solutions, definitely, is more spending and more speech. Definitely. Well, you know, when people don’t know Coca-Cola’s new product, they advertise. You think that’s stupid? No. It makes all the sense in the world. They’re providing information to the consumer on the product, and they spend way more money than we spend on any campaign.
Should voters know where all the money behind that advertising is coming from?
If it’s direct political actors, they already do. They are reported. If it’s a PAC, if it’s a political party, if it’s a candidate, they do, because it’s reported, if they care, and frankly the vast majority of people don’t care. They don’t give a damn.
If it’s issues, though, if it’s these 501(c)(4)s, the public shouldn’t know where that money’s coming from?
The cost of the public knowing where that money comes from is too high, because it means people won’t associate with those activities and those groups are not directly involved in politics, as we understand it; that is, campaign-related activity.
It’s not involved as you understand it, as a student of these laws. Do you think the public understands it the same way?
Well, the public needs to make a distinction between campaign activity and issue advocacy, because they’re different. They’re directed differently, and they should be treated differently.
Explain to me how they’re different.
Well, campaign activity is when you’re urging to elect or defeat a particular candidate. Issue advocacy is when you’re talking about what the government is doing or what the position of the public official is on a particular issue, or trying to persuade a politician or government to adopt your particular policy preference.
Just to be clear, that’s not campaigning as you see it.
It’s definitely not campaigning as I see it. Now, it’s related to it, in a broad sense. But look, our country is different than any other country in the world, and that is, we’re in favor of citizens participating in our government. Our government is structured so that our citizens can participate in our government. And in order to do that, you have to talk about issues. So this kind of is a fundamental thing. Either the people can talk about issues and therefore they can participate in our government, or we’re going to regulate them talking about issues and they’re going to be driven out.
It’s that clean-cut.
It’s that clean-cut. It’s that up-and-down. If they can’t talk about issues, then how can they participate in our government? If I say, you know, in this previous primary, Sen. [Dick] Lugar [R-Ind.] voted for a particular bill and that’s a bad thing, if I can’t say that, then I can’t participate in our government, period. …
I’m trying to get you to help me to understand the distinction between the law as you know it practically in your sleep and the reality of American campaign finance as the public sees it and as it’s applied in practice. I think those are probably two different things.
They are to a certain extent, and we need to help the public understand the distinction. And unfortunately there’s a whole industry called the reformers, whose whole project is to blur that distinction and to have it all regulated, and that’s what I’m trying to point out; that is, that for people to participate in our democracy as citizens, they have to be able to talk about issues. If they can’t talk about issues because they’re afraid that the Federal Election Commission is going to investigate them or they’re going to be complained about, or they’re going to have to file a report or they’re going to have to do this and do that, then they are driven out of our democracy.
Should political spending be regulated at all?
What do you mean, regulated?
Should the First Amendment apply, period, to campaign financing?
I see a justification for regulating direct political actors for disclosing their expenditures and their contributions. I don’t think they can be limited in what they can spend. I mean, there’s a lot of regulations that I think are contrary to the First Amendment that have been tried and struck down by the courts, and many of the cases are ones that I won in the U.S. Supreme Court, where people try to regulate political spending. But I think they can be regulated certainly to that extent, and possibly high contribution limits. They’re too low now, and they’re distorting, terribly distorting the system by being so low.
How do they distort it?
They force money away from candidates into other entities that are less accountable and less transparent.
Which entities are these?
PACs, political parties, (c)4s, for-profit groups, 527s, super PACs —
Lots of them.
— all the above. Every other entity but a candidate is less accountable, because only candidates appear on the ballot. Political parties are somewhat accountable because their name goes right there with the candidate, so if people get mad at a political party, they can take it out on their candidate. All the rest of them are basically not accountable at all to the voter, and so forcing money to be spent by them rather than the candidate makes the system less accountable, and that’s what contribution limits do.
“Political speech is still the most highly regulated activity protected by the First Amendment, way more than peripheral items that are protected by the First Amendment, like nude dancing…”
So where are we on the Jim Bopp spectrum of “I want to change campaign finance laws in this country”? Are we at the end? Are we halfway?
We’re making progress, but political speech is still the most highly regulated activity protected by the First Amendment, way more than peripheral items that are protected by the First Amendment, like nude dancing, you know. You can’t get the true name of the nude dancer. There’s not enough clothes on them to have a disclaimer that all political ads have to have. You can give them as much money as they want. Compared with political speech, they’re unregulated, and political speech is highly regulated, even though it’s at the core and nude dancing is at the periphery. Things are upside down.
This group that we’ve been following out in Montana, Western Tradition Partnership (WTP), give us the 30-second primer on what they are as you understand it.
They’re an advocacy group. They have conservative positions on issues that affect particularly the West, and they want to advance those public policies in the various ways that are available to them.
And why their Western focus specifically? Why is that, do you know?
It’s the preference of the people that organized it.
Why do they exist?
To advance their public policy views.
And do you know what those goals are?
I don’t know a lot of them because it’s not important to me. They’re a citizens group that wants to speak out on issues, and they should be able to do that without being regulated, in ways that the Montana state law does and in particular in one that the Supreme Court says is unconstitutional.
Explain that a little bit.
Citizens United was about a federal law that prohibited corporations and labor unions from doing independent political speech. Montana had a law just like that, and despite Citizens United, its Supreme Court upheld the law, so I got involved in the case at that point and took the case to the [U.S.] Supreme Court, and the Supreme Court summarily reversed the Montana Supreme Court, saying that they have already decided this issue, that you cannot prohibit corporations and labor unions from doing independent political speech, and the state law did that, so it’s unconstitutional.
Right. The Supreme Court of the United States in essence said Western Tradition can do what it’s been doing. It blessed that activity.
No, they can do what the Constitution allows them to do, that they weren’t able to do, which is to advocate the election or defeat of a specific candidate.
Right. What is it about Montana and that law, the Corrupt Practices Act out there, that you found so limiting?
Well, there were a couple of provisions: One is the prohibition on independent political speech, which we’ve now won in the U.S. Supreme Court, but there’s other laws, one regarding super PACs, that the Montana law prevents super PACs in state elections, and we’ve won that. And also there were laws that were vague, and people, in terms of their ability to comply with the law, were not able to understand when it is that their political speech is subject to regulation, certain regulations, and we won aspects of that as well.
And what’s next with Western Tradition? I mean, there are more laws out there that you want to take care of?
There’s more laws that they consider to impinge upon their activities, and they’ve hired me to deal with those, and one of them is the low contribution limits; that they’re ridiculously low in Montana and make it difficult for candidates to raise adequate funds to carry out their campaigns and are certainly not justified by any consideration of corruption. That is the only justification that has been used to uphold those laws.
I want to get back into this issue of disclosure, because as you know, Western Tradition was involved in a case with the Montana Commission[er] on Political Practices a couple of years ago. The commission found that Western Tradition had violated Montana’s regulations and laws about disclosure and registration, but one of the things that came out in that case was this set of documents from Western Tradition. It was a presentation that Western Tradition used to solicit funds, and what they were saying to their donors was, verbatim, “If you decide to support this program, no politician, no bureaucrat and no radical environmentalist will ever know you helped make this program possible.”
Now, I understand that you believe that these advocacy groups ought to have the ability to get donations anonymously. Doesn’t it, though, when you see this kind of language, doesn’t it sort of cast a shadow on what they’re trying to do? …
No, not at all. There’s nothing in what they said that should trouble anybody. They were talking about issues. They were talking about their public policies. So, just like the NAACP can raise money anonymously to advocate their position on issues, so can this group, so can any group. So can all groups do that, when they’re advocating issues.
And at the same time they’re advocating these issues and soliciting funds, they’re saying to their donors: “It’s OK. Nobody’s ever going to know.”
That’s right. You’re not going to be punished by some radical environmentalist because you’re supporting reasonable policies about the environment. Yeah, you’re not going to be punished. Yeah, you’re not going to be punished because you’re supporting the NAACP against the whites that are refusing to serve blacks in Birmingham, Ala. That’s right.
The other thing they said in this PowerPoint demonstration — WTP — they said, “As you know, Montana has very strict limits on contributions to candidates, but there is no limit on how much you can give to this program.”
That’s right. It’s an issue advocacy program, advocating public policy positions. It doesn’t say anything about campaigns or elections or electing candidates.
Does this make, do you think, for a generally transparent electoral system in this country?
What do you mean, transparent? Electoral? Yes.
Well, I think we’d agree on a standard definition of transparent, right?
Well, there’s absolutely nothing about that that has anything to do with an election. You said a transparent electoral system. There’s nothing that you said that they are doing in that PowerPoint that said anything about an election. …
As you know, Western Tradition has been working on these issues in recent elections in Montana, and they came out in June of this year talking about how they had won 12 of 14 primaries in Montana. If they’re not working in campaigns, if they’re not actually trying to influence the outcome of an election, why are they boasting about having won 12 of 14 elections?
Because some of their activity is campaign-related — not all of it. In fact, most of it is not campaign-related.
Honestly I want to understand. It’s OK to have part of it be political, part of it campaign-oriented and part of it not?
That’s right. There are many organizations that are multipurpose. They’re not one-purpose. They have several purposes. …
Doesn’t it lend itself to misunderstandings, possible conflicts, differences of interpretation?
Yeah, we have all sorts of laws on that. If the electorally related purpose of this group becomes their “major purpose,” then they can be required to report all their activities, as long as their electorally related purpose is not their major purpose but a minor purpose. Most of these groups are multipurpose. They do three, four, five, six different things that they consider a significant purpose of the organization. If electorally related purpose is not their major purpose, then all they can be required to do is report their campaign-related activity, not everything they do. That’s the difference. Are you going to have to report everything you do, or are you only going to have to report your politically related activity? The difference is the major purpose test.
Isn’t there a way that campaign finance laws in this country will ever satisfy everybody?
No, of course not, because incumbents want to use campaign finance laws to stifle their opposition and to prevent citizens from criticizing them. The First Amendment was designed to protect that very activity, so politicians are never going to be satisfied, and in fact, they never are satisfied. Even when they win a case in the Supreme Court like the McConnell [vs. Federal Election Commission] case, they weren’t satisfied. They still wanted to adopt more laws. They will always be unhappy because people are criticizing them, people are talking about them, and they’ll use the laws — campaign finance laws — to stop them.
Are you ever going to be satisfied?
Oh, it’s very possible that I may ultimately be satisfied, yes.
Someday in the foreseeable future?
What is campaign finance law supposed to do?
Campaign finance laws, from the point of view of incumbents, [are] to stifle citizens and to prevent them from criticizing them, so it’s not working there. As far as the Founders of our Constitution were concerned, they organized the country to be self-government among citizens and to have citizens fully participate. That has not yet been achieved, because we have thousands of pages of campaign finance laws that regulate and restrict citizens’ participation.
So it’s interesting. You talked about politicians, and you talked about the Founders. What is campaign finance law supposed to do for citizens?
Campaign finance laws don’t do anything for citizens other than stifle and limit them.
They don’t help understand where the money’s coming from? They really don’t do anything?
Not anything that they care about. People don’t care about that. The average voter could[n't] care less who’s “funding” a politician.
How many stories have there been on Indiana, on who’s contributing to [Republican gubernatorial candidate U.S. Rep.] Mike Pence and to [Democratic gubernatorial candidate] John Gregg? I mean, you could count them on one hand, even though millions of dollars have been raised. Now, it is true that newspaper people care a little bit and as a result write those stories, but the average person doesn’t.. Could[n't] care less.
Is it a case maybe of not knowing what we don’t know?
No, because you know everything you want to know about who’s contributing to Pence and to Gregg, because it’s reported. You just don’t care.
But the people who are running the ads that say this candidate supports gun control or this candidate is opposed to abortion. I mean, we’ll never know where that money is coming from, will we?
Well, it depends on the context, but we may or we may not, but so what? That just means that people are not finding out something that they don’t care about.
Do you think people should care about where this money’s coming from?
Generally no, because it’s the message. You know, you either buy the argument or don’t buy the argument. Generally no, it doesn’t matter. Truth doesn’t change because of who’s funding it.
I don’t even know what to say. You actually think that?
I actually think that the truth doesn’t change based on who’s funding it. John Gregg is either a pro-life [candidate] or not. What difference does it make who’s funding that? The truth doesn’t change. What they say may change, but the truth of whether he is or not — and by the way, he is pro-life — he’s a Democrat running for governor. Whether he is or not doesn’t change by who’s funding the message on that.
Should citizens in this country be able to find that information? Should they be able to learn who’s funding?
Not generally. They don’t care.
That’s not the question. Just because they don’t care doesn’t mean that they shouldn’t be able to know, right?
No. I’m sorry. Well, then are you’re just patronizing them? Sorry, you ignorant Hoosiers, you should want to know this. Well, actually they could[n't] care less because it’s not relevant to them. It’s not relevant.
You’re the one who said they shouldn’t know because they don’t care, right, and my question is —
No, I said they shouldn’t be told or shouldn’t be disclosed. I forget how you put the question, but to be clear on what I meant, things shouldn’t be required based on voter information, which is the only justification for disclosure that’s ever been upheld, if they don’t care. It’s not relevant to them.
What does that say about democracy, though?
It says that this is completely irrelevant information that only some left-wing nut jobs care about. That’s the bottom line. And they also care about it because they know that it undermines people’s participation that they don’t want to be participating, because they don’t care.
It’s kind of interesting that you’ve spent your life in this and you believe people don’t care.
I have been a county chairman, I have been an official of the state Republican Party, and now I’m a member of the Republican National Committee. I’ve never had a single person ask me who funds those organizations that I’ve led.
And from that you take that people don’t care.
That people don’t care. No, no, not just from that. I’m just giving you an example of polling, of anything that you would use to determine what people care about. Every indicia is that they don’t care — polling, the number of stories in the press, questions that they ask, any indicia.
Campaign finance laws don’t do anything for citizens other than stifle and limit them.”
So I go back to my question: Why does this matter for democracy?
It doesn’t matter to know who’s funding issue ads for democracy to function, and function very well; and in fact, if we disclosed that, it wouldn’t function very well at all, because people would be afraid to contribute, because they know politicians are going to go after them.
There’s so much out there, right, from all kinds of advertising and candidates and groups. How do people distinguish between what’s a campaign ad, by your definition, directly related to a campaign, and what’s an issue advocacy ad? How do we know?
By what is said in the ad. You can look at it, and does it say vote for or against a particular candidate? If it says that, it’s a campaign ad. If it focuses on an issue, trying to persuade you to support a particular position on an issue, that’s an issue ad. If it also says, “Hey, will you contact your senator and urge them to vote a certain way?,” then that’s a lobby ad. You can look at what they say, and those are the three basic classifications. You have campaign-related ads; you have issue ads; and you have lobby ads.
And the citizens should figure that out in a 30-second commercial that they’re probably paying half attention to.
Well, they can if they care. But the law has to vigorously distinguish between them, because if you throw them all in one pile and regulate them, pretending that they’re campaign ads, well, then you’re going to cut down dramatically on the ability of citizens to participate in their democracy, because you’re highly regulating them when they want to lobby somebody or want to just promote an issue without any particular candidate or law involved.
I guess I’m struck by the disconnect between you saying people don’t really care about where this money comes from and yet they want to participate in their democracy because they care.
They want to speak out and give their point of view, but well, that doesn’t have anything to do with who’s funding somebody else’s speech. What I’m saying is that they want to participate; they want to speak out. They want to be able to talk among themselves or communicate to a wider audience about their views on things. And if you regulate that as election-related speech, you’re going to cut down on that severely.
I get that this is a little bit sideways, but is money in politics inherently corrupting?
No, definitely not. I don’t know any politician that you can give 10 bucks to and get them to do anything for you.
Yeah, not direct corruption, but corruption of the process, of changing motives, of —
You mean $10 does that?
No, I don’t think $10 does, but we’re not talking about $10 here, right? We’re talking tens of millions of dollars.
Well, but you’re not talking tens of millions of dollars usually from a particular person, are you? Occasionally that happens.
In this race, those have been the headline numbers, I think, right?
But that’s very rare; it’s extremely rare. It’s a headline number because you guys like to make a deal of it because you’ve got an agenda, because the press is exempted from all these laws, OK? So the press has an agenda.
I appreciate that, but the question was, is money in politics inherently corrupting?
And I said no. Who does it corrupt for doing what? I don’t know what that would be.
I guess my point was corruption of the process.
It doesn’t corrupt the process. It’s necessary for the process. To communicate, you have to spend money, so you have to have money to communicate, see, and that’s called speech.
And we need more speech; we need more money.
We need more speech, definitely, in the political system, and we used to be able to rely on the press for that. Unfortunately, they too often have a point of view, and to get a full range of ideas, you’ve got to go other places, and candidates can serve that function; advocacy groups can serve that function; the Internet can serve that function — all sorts of ways to get more information.
What’s the logical extension of these issue advocacy groups, the 501(c)(4)s, not being regulated? Is there a finite, natural conclusion?
Yes, there will be more of them; they’ll be more active; they will be able to speak more; they’ll have more money to speak.
Does democracy do better — does our government, does this country work better when that happens?
Definitely, because of two reasons: Advocacy groups are a way for citizens to influence the system through the group by associating with them, and secondly, the things that the group does is beneficial. They communicate about issues; they try to persuade people to take a certain point of view; they lobby the government to try to get the government to adopt those policies. So they are very beneficial. That’s the reason they’re tax-exempt, is that we’ve recognized how beneficial advocacy groups are to the political system, to democracy. I prefer that term because it’s clearer what I mean. So that’s one reason they’re tax-exempt, is that they’re good.
Doesn’t the proliferation of these kinds of groups, though, blur their actual purpose? The Sierra Club, you know what they’re for; the NAACP, you know what they’re for; the National Rifle Association, you know what they’re for. But Citizens for Strength and Security or Americans for a Better Tomorrow or whatever it is, how do you know what they’re all about? If you don’t have to know where their money comes from, shouldn’t you at least be able to figure out what they’re about from what they call themselves?
Well, any new group, you often don’t know what they’re about until they start doing things, and so any new group suffers that problem. They adopt a name, and people could say, “Well, we don’t know what you’re about until you start doing things,” and then you find out what they’re about.
The National Association for the Advancement of Colored People, you don’t know what they’re about right away?
No, not necessarily. What is so puzzling? You don’t know at the beginning what their agenda is, what particular public policies they want to have adopted until they start advocating for those, so that’s a problem. And look, I represent these advocacy groups. I understand the difficulties they face. Their initial difficulty is how do we establish what our purposes are so people will contribute to it? So that’s a common problem for advocacy groups no matter why they’re created.
Now, the second, though, is there are (c)(4)s being created now because people cannot contribute money to candidates, and they still want to participate in our process. A great example of that is the trial lawyers. It used to be the trial lawyers only cared about state candidates because that’s where the tort laws came from — you know, regulating personal injury was through state government, state law. Well, when the Republicans got the big idea of having the federal government impose limits on torts or personal injury cases, well, now all of a sudden the trial lawyers got really interested in federal races, and now they give more money to Democrat candidates than any group in the country, more than unions. And that is because their interests are at stake. Well, I’m sure most of them would rather give money to a candidate, but they can’t. It’s limited to $2,500 currently. They could be losing millions of dollars if federal government adopted personal injury limits on damage awards, for instance — well, so they’ll give money other places. And that is not a good thing, that they are driven to do that. It would be a much better system, more transparent and certainly way more accountable, if they just gave the money to the candidate, and then the candidate is held accountable for what money they receive.
So why not get rid of the 501(c)(3)s and the 527s and the 501(c)(4)s and all that and say, “Listen, America, you want to give money in politics, give it to the candidate”?
You have to take away contribution limits to do that.
Well, so play it out for me. Is that not one possible solution?
Well, eliminating contribution limits would mean that we wouldn’t have these groups being created, kind of ad hoc.
Which you think is a bad thing, right?
Well, I think it’s not a bad thing, given no other option than to create a group if you want to participate. But forcing people to do that is a bad thing. It’s preferable that the candidate get the money in the first place. Now, that does mean, however, that there won’t still be groups. There will still be some, because they have a particular message they want to get out. They have a constituency that wants to listen to them, and so, sure, there will still be independent groups speaking out, but you won’t see these groups popping up election by election, using anonymous names, coming and going. …
Campaign finance laws are so byzantine and so complicated that groups do what they have to do to survive pretty much, right?
That’s true, as best they can.
Right. Given that, is there any way to effectively regulate campaign finance?
It depends on what your goal is. If your goal is to limit spending on campaigns, if your goal is to drive citizens out of the political process, campaign finance laws will never accomplish that.
What about if your goal is just to know where the money’s coming from?
Then that could be accomplished by eliminating contribution limits. You could accomplish the vast majority of that goal by eliminating contribution limits. You get much closer to full transparency by allowing contributions to go to candidates, political parties and PACs without limit because they are all transparent. If you want it to be the most accountable system, then you want to encourage money to go to the candidates and political parties secondarily.
Let me change gears for a minute and get to the Supreme Court. Notwithstanding the fact that you’ve been on a winning streak in the Supreme Court with Citizens United, with this WTP case out of Montana, politics is a messy business. It’s rough and tumble; it’s very serious and sharp-elbowed. Do you think the Supreme Court understands the way politics is practiced in this country, the way campaign finance is actually practiced?
I think some of them do, because some of them have actual hands-on experience in the political realm and are not jurist academics or been judges their whole life. But it varies on the court.
Well, the reason I ask is that, as you know, part of the Citizens ruling was this presumption of disclosure in politics. Justice [Anthony] Kennedy said so long as there is transparency, everything’s going to be fine.
Well, that’s a wildly exaggerated statement of what they did or what he said.
OK, here’s what he said. “The First Amendment protects political speech; and disclosure permits citizens and shareholders to react to the speech of corporate entities in a proper way. This transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.”
Yeah, I agree with that, and they approved, in Citizens United, a one-page event-driven report — in other words, what I’ve talked about — as when an organization has many purposes, and only one of their purposes is electorally related, that can be required to be reported. That’s what they upheld.
Now, that’s different, see, than another part of the decision, which you’re not quoting, where they condemned requiring an advocacy group to be a PAC. … They condemned it. They said that because that undermines the organization, the very thing you have been arguing for in all your questions is treating every group as 100 percent political organization that has to report all their donors. That the Supreme Court in Citizens United condemned… So the distinction that I have been making all along is made in Citizens United between a one-page event-driven report, reporting like a particular ad that the group puts up, and treating the entire organization as a political committee that has to report all their donors and all their expenditures. That very distinction is in Citizens United.
So this presumption of transparency that’s in the case also, you don’t buy that? You think Justice Kennedy was wrong? What do you think?
Honest to God, did you just listen to what I said?
Yeah, I did.
No, you didn’t. No, you didn’t. Can’t we get a handle on the distinctions here? I just said that they upheld a one-page event-driven report that I have said repeatedly can be required for direct political activity, and that that is different than requiring the whole organization to report all their donors and all their expenditures which your questions have been driving toward. That’s different. The Supreme Court condemned that.
So they made a distinction between disclosure as a one-page event- driven report and requiring the whole organization to disclose everything. They condemned the second while approving the first — that’s the distinction. It makes all the difference in the world. That’s the reason the NAACP doesn’t have to report all their donors, but they would have to report [them] if they put an ad in the paper that said, “Vote for Obama.” They would have to report that, including any contributor that gave money for that ad. But do they have to report all their donors? No, because Citizens United, consistent with cases now going back 60 years, have consistently said, “You can’t do that,” unless their major purpose — in other words, the primary thing this organization is doing — is elections.
What’s the next case then? What’s the next building block in your approach to campaign finance?
The next case is probably going to deal with this very issue that we have been debating here, is recognizing the distinction between regulating organizations comprehensively, requiring that if they do any political activity, to then report all their donors and all their activity versus a one-page report on that political activity. And the trend right now in the law, as far as incumbents trying to stamp out all this speech, that now Citizens United is going to allow, is to treat these organizations — they spend $500 on a political ad — the organization has $50 million in income. They want the whole organization to report the contributors for all the $50 million because they did a $500 ad. Citizens United condemned that. But it’s a fallback. We’re going to stamp out the speech, not because we can do it directly by prohibiting it, because the court says you can’t. We’re going to exploit this loophole called disclosure, and we’re going to treat the whole organization as a political committee, because we know, as Sen. [Chuck] Schumer [D-N.Y.] said when they introduced the DISCLOSE Act [Democracy Is Strengthened by Casting Light On Spending in Elections Act], we cannot underestimate the inhibiting effect that these laws have, because they want to stop it, so they use disclosure as a weapon.
So campaign finance law in essence is an incumbency protection mechanism.
The vast majority of it is, absolutely, an incumbent protection act. They would never pass these laws if they didn’t think it benefited them specifically as incumbents and generally with a partisan advantage. And the Founders knew it was and knew that you couldn’t trust politicians to have this power, this governmental power, because they would abuse it to protect themselves. That’s the reason the First Amendment [exists]. You know, they were putting speech and the press out of bounds of regulation because they knew that this is the most vital thing any politician ever does to their own interest, is running for re-election, and if we let them write the rules of their own election, that they would do it to benefit themselves. So as you know, one of the few things that they prohibited the politicians from doing is regulating the political speech that involves their own election.
This is going to sound like a basic question, but how do you define political speech? I mean, how do you know? Do you know it when you see it?
You can define campaign-related speech. I said saying something’s political is not meaningful, but you can define campaign-related speech, and that is, by what it says.
“It doesn’t matter to know who’s funding issue ads for democracy to function, and function very well…”
“I’m Mitt Romney, and I approve this message.” That’s a campaign speech, right?
Well, that’s for sure. When a candidate goes on, you know, spending money out of their campaign treasury to do that, you know for sure that that is a campaign-related speech, because the campaign committee’s purpose is to elect Romney. Now, for you and I or advocacy groups, it’s what it says, and if it says vote for or against a candidate, we know for sure that that is campaign-related.
Without getting down too far in the weeds, is there a test that you as a campaign finance professional used? I mean, when you see these ads?
Yes. It’s called the express advocacy test. Does it say, in explicit words, vote for or vote against a particular identified candidate? If it does, it definitely can be considered campaign-related.
And the absence of those words means it’s something else?
It’s something else. It’s not campaign-related. It may be a lobby ad, it may be an issue ad, but it’s not a campaign-related ad and cannot be regulated under campaign finance laws.
And so once you get away from campaign ads — you’ve got campaign ads, then you’ve got other [ads], basically, right?
Everything else that is out there.
Everything else is not campaign-related and can’t be regulated. … It cannot be regulated pretending that it’s campaign speech, because it’s the kind of things that people do to participate in our democracy. They may be lobbying incumbent members of the Congress to vote a certain way. It may be simply urging the public to support a particular position on an issue, for whatever purpose flows from that.
So as more money gets into politics, and you get more money going to advocacy ads and lobbying ads and this nonregulated speech, you get more advocacy, you get more speech, do you also get more money that people don’t know where it comes from? Do you get more secrecy?
Well, you may. Advocacy groups and issue advocacy groups, lobby groups don’t have to report their donors. There’s no justification for it.
So yes, you get more secrecy.
Well, you get more speech. I don’t know if it’s secret because the organization is saying who’s doing it.
Let me rephrase then. You get more speech, the source of which you don’t know where it’s coming from. You get more speech that the financing is undisclosed, right? I mean, objectively you do.
Well, you can find out what the group [is], how much they’re spending. You know it’s coming from the group.
Yeah, but you don’t know where it’s coming from originally.
Well, you know nobody has a money tree, so everybody gets their money from somewhere.
And whether that’s —
You’re working real hard not to say yes.
Well, because I think the essential feature that makes it not secret is that you know the group that is saying that. You know the group that is putting it on. You can find out them.
But where the group gets its money doesn’t matter, as far as you’re concerned.
Generally, no. That’s right. It doesn’t matter. It’s not pertinent to anybody, and to disclose it is to inhibit and undermine the ability of those groups to do that, and that’s bad for democracy.
So given that you don’t think it matters where the money comes from, how do we know what the true purpose is? How do we know what their ultimate goal is, that they’re not actually somehow trying to achieve some different purpose, that there’s not coordination going on behind the scenes? How do we know that?
Well, disclosure doesn’t help you with coordination. It could be going on or not going on, and a lot of coordination is perfectly legal. You can coordinate lobby activities with candidates. You can coordinate issue advocacy with candidates. So whether it’s coordinated or independent is really not pertinent in those areas. So but — ah, the other part of your question?
Well, it’s the not knowing what you don’t know.
Not knowing what you don’t know. That’s a conundrum, isn’t it?
Kind of is.
The question [of] not knowing what you don’t know is, is it relevant to know it? And number two is, what’s the cost of knowing it?
Who gets to decide whether it’s relevant that you know it?
Disclosure is being advocated for, and the court has only upheld it when it’s relevant to voters. That’s the justification, is that voters will use this information to decide which candidate to vote for and which candidate to vote against or at least some of them or a significant portion will. And if it’s not relevant, then it doesn’t meet that interest. …
So you’re worried about people being inhibited from joining groups because of disclosure.
That’s a cost.
And that distorts the process.
Yes, that would distort the process.
Does uncertainty distort the process? Does not knowing where financing is coming from distort the process, because you can’t impart motive, you can’t understand true intentions?
By and large, you don’t need to know that.
Who’s to decide that?
The recipient of the message.
What does that mean?
Well, if I don’t recognize a group that is doing an ad, I can just simply ignore it, or I can click it and off it goes, so I’m deciding what is relevant to me by doing that.
Do you think that’s the way it actually works?
Yeah. People click off ads all the time. People have studied this. This is not like rocket science.
The other thing doesn’t happen, where people see it and take the message.
Of course some people do, because they don’t think that the messenger matters. The message can rise or fall on its own merits. For instance, the Federalist Papers, the most important documents ever written short of our Constitution and the Declaration of Independence in the history of our country, was done anonymously, and the reason was that even though they understood that some people would disregard it because they don’t know who wrote it, they were willing to pay that price in exchange for the arguments standing on their own merit. So that’s the choice a speaker makes in determining anonymity, and it’s a choice that the listener makes and not the government. And notice in neither case was it the government. And the reformers want the government, not private citizens, to make these decisions. …
So what does campaign finance law look like if you could write it right now?
Oh, it would be much simpler. Right now, it’s exceedingly complicated, which again drives people out of the process because you have to hire lawyers like me to figure out how we do these things. So you have to be a wealthy, sophisticated organization or individual to do that.
I exaggerate here, but could you do it in a couple of pages?
Yes, you could do it in a couple of pages. Ideally, you would be requiring political actors to report their expenditures and their contributions, but that could be done minimally, because that’s all that’s potentially relevant to voters, and there are other reasons — good reasons, too, frankly — to do that. And then you’d have to decide whether or not you want contribution limits, but if you did, they’d have to be much higher.
And then that’s it.
Yeah. That would be pretty well all you’d need or all that you could justify.
Issue advocacy can be coordinated. Is that what you’re saying?
Yes, issue advocacy or lobbying activities by an advocacy group.
So a staff person, just for a random example, on some issue advocacy group can go to the candidate’s staff person on that issue, and they can have lunch and talk about what they’re going to do.
Yes, definitely. I said they could coordinate, so yes, they can have lunch together and talk about that particular ad, because that’s not campaign-related activity. Campaign finance regulates campaign-related activity, not talking about issues or lobbying.
You understand how that can be confusing, right?
No. I don’t understand how it can be confusing, except to the extent that people keep trying to confuse it by using phrases like “political,” or insisting upon the standard being what the most unsophisticated voter understands, as opposed to actually trying to create relevant distinctions.
These distinctions are relevant to our Constitution and our basic rights as citizens. We get to talk about issues. We get to lobby our members of Congress without having to go get permission from the Federal Election Commission or filing reports with them, because that doesn’t have anything to do with the campaign. …
But the fact that staffers and aides from the issues group can go to staff person B from the candidate’s office and they can have lunch and talk about gun control, right to life, take your pick, that seems to me to be a little confusing.
What confuses you about it? I don’t understand what confuses you. That’s not campaign-related.
That part confuses me. You can actually go to a candidate’s office, even the candidate’s campaign office, and have it not be campaign-related.
That’s right. It’s not campaign-related, if that’s what you’re doing. Issue advocacy or lobbying.
How broad is that line? Is it a fine line, or is it a big broad line?
The question is, what communications will the group be doing as a result of talking to them? If they’re going to do an ad that says vote for the candidate they met with, then yeah, that’s a campaign-related ad, and you can’t coordinate that. But if you went to Sen. [Patrick] Leahy [D-Vt.] and said, “We want to do grassroots lobbying about passing campaign finance reform because we’re in favor of it,” they do that all the time, and of course they do it because it has to do with lobbying, not a campaign ad. So every one of these reform groups you’re talking to, ask them whether or not they go talk to Leahy about advocating the adoption of the DISCLOSE Act. Of course they do. That’s perfectly legal. …
But that’s the issue. I mean, the way people understand Citizens is that it is premised on unlimited independent spending, but understanding it’s not coordinated.
Political — well, to be specific, because I don’t want to use the same phrase as I’ve criticized you for using — campaign-related spending is what has to be independent, or it’s subject to contribution law. …
I understand “political” to mean, and the way you’ve been using it, you understand it to mean things like lobbying and issue advocacy, and there is a big constitutional distinction between those activities, but you seem not to want to understand.
But let me ask you this. Do you not think it’s possible that the broader spectrum of the American public misunderstands it?
I think that they can understand it if people make an effort to explain it as opposed to make an effort to blur it, by using such phrases as “political” every time they ask a question, like you have.
You don’t think that the broader American public takes “campaign” and “political” to mean the same thing?
They may. They may. But I think they are perfectly capable of understanding a distinction that should be made between campaign speech and lobby speech, for instance.
It’s very interesting that you are harping on words and maintaining distinct separations and meanings that I think if we went out here on Wabash Avenue in Terre Haute, [Ind.], and you stopped 10 people none of them would make.
That is because the press insists upon, like you, insists upon not making a distinction. These are relevant and extremely important constitutional distinctions that people can grasp, because I’ve spent a lot of time talking to people and explaining it, and they can grasp it. It’s not that complicated. It’s easy to understand the difference between lobbying somebody like doing the lobby ad where you’re asking the public to contact their legislator, that that’s a lobbying act, as opposed to an ad that says, “Vote for Joe Blow,” which is a campaign ad. People are going to understand that distinction. …
Do you have a schedule? Is there a timeline for what you want to get done in campaign finance?
No. … I think it’s perfectly plausible that in the next 10 years we could see a much simpler and much more understandable and much more constitutionally acceptable campaign finance regime.
With the caveat that this all hinges on the court and the politics making up the court. I mean, part of that’s out of your hands, right?
Yeah. Part of it certainly is out of my hands, because I learned a long time ago, it’s the judges that make the rulings, not me. … But the other thing is, I think we’ve reached a tipping point where the incumbents are going to weigh in and change the laws themselves.
So the politics is going to take it away from the judicial then?
No, not the politics so much as the fact that campaign finance has failed its purpose, and that is protecting incumbents. … The tipping point is the rise of super PACs, because now the campaign finance law cannot accomplish the goal that incumbents have in passing them, and that is driving citizens out of the democratic process. … Candidates are being marginalized because of contribution limits to candidates, so the endgame is not the court striking down but the repeal of campaign finance laws, and it’s already started.
The state of Illinois just did that, the most blue of the blue states. They passed a law that the contribution limits to candidates are repealed, if there’s enough independent spending, and they set the threshold low enough that in any competitive race, there’s going to be enough independent spending that contribution limits will disappear. And that’s the only way for candidates to become more relevant and not be marginalized, and that is for them to stop handicapping themselves by contribution limits. So the endgame is not the courts. The endgame is the repeal of contribution limits, and that’s going to happen by incumbents doing that.
The repeal of contributions limits to candidates, and what about disclosure requirements and all the rest for other groups? Not going to change?
Well, number one, that’s not going to be likely to be passed. Number two is, in the way they would like for it to be passed, it won’t be upheld. And number three, even as onerous as disclosure can be in certain circumstances particularly, that’s not going to stop the spending, because super PACs have already demonstrated there’s a lot of people that are willing to spend and be disclosed. …
Does your $150 contribution or $250 contribution — if there are no campaign limits to donations to candidates — does that get drowned out by somebody who can give $10 million?
No, no, because it’s the same candidate, and if I’m for candidate X, I’m perfectly happy for Joe Blow to give money to candidate X. That doesn’t offend me. It actually advances my cause — that is, electing Joe Blow. If all I can give is $100 and somebody else wants to give $10 million, well, all the better, because that means the candidate I favor is going to get elected or [has a] better chance of getting elected.
Absolutely. Actually, I got that, but it’s all about in this country one person, one vote, right? If I can give 250 bucks and somebody else can give $10 million, they’re speaking more than I am.
No, they’re contributing more than you are.
Now wait a minute. I thought —
They’re contributing to a candidate more than you are, true. But you’re for that same candidate.
Yes, I am. But isn’t the spending of money in politics, isn’t that speech, right?
It’s protected as speech, but in this case, it’s a contribution, not speech, when you’re giving it to a candidate. Contributions are protected as association primarily, … and that’s the reason you can have contribution limits where you can’t have spending limits, is it’s not pure speech. It’s not protected as pure speech; it’s actually proxy speech.
So the little guy’s not getting drowned out when somebody gives $10 million and I give $250.
No, the little guy is thrilled that his candidate is getting more money. Name me one person that’s contributed to a candidate that’s offended that somebody else is giving to that candidate. That’s insane. That would be insane. If you’re for the candidate, you want people to give as much money as you can so that the guy will be elected.
What if the $10 million is going to the guy you’re not for. You’re giving $250 to a guy, and the $10 million comes in and goes to a guy you don’t believe in?
But your candidate can also receive $10 million, and there are rich people on all sides of the political spectrum. …
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