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Trevor Potter: The Political Reality of Citizens United
October 30, 2012, 9:14 pm ET
A former federal election commissioner, Trevor Potter is president and general counsel of the Campaign Legal Center. Potter told FRONTLINE that the Supreme Court’s landmark Citizens United ruling has resulted in less transparency and the potential for more corruption in the nation’s campaign finance system. This is the edited transcript of an interview conducted on Aug. 7, 2012.
Maybe the place to start actually is a 30-second primer on Citizens United, what it did do and then what it didn’t do but everybody thinks it did.
Citizens United is an odd case. To start with, it was a challenge to disclosure provisions in federal law. This group, which was a nonprofit corporation, said that our speech, the sources of our funding, shouldn’t have to be disclosed. But the court ended up turning that around and saying that even though you are a corporation and you are engaged in political activity, because you are doing it independent of any candidate, you cannot be limited.
So that was a major change of First Amendment law. Before that, for 50, 60, 70 years or more, the courts had said that corporate political speech may be regulated and it may be prohibited in federal elections.
The Supreme Court said that’s wrong. As a matter of the First Amendment, corporations have the same rights to speak in federal elections as individuals, not to contribute to candidates but to speak independently, to take out radio and TV ads. They also, though, said that that speech could be required to be disclosed, which was the original challenge. And the court said no, disclosure is constitutional. It doesn’t limit your right to speak, but it informs the public of who is doing the speaking.
But Citizens has become this touchstone for a debate in this country. It’s the latest in a series of decisions by the Supreme Court that are changing the way we regulate political speech, campaign financing. Why has this happened, or why has this now become this debate?
Well, first of all, the court did a U-turn on Citizens United. We had just had the McCain-Feingold legislation, [sponsored by Sens. John McCain (R-Ariz.) and Russ Feingold (D-Wis.)], which was designed to reinvigorate our federal rules and to prohibit corporate and labor money from being spent in federal elections and to ensure that money that was spent was disclosed, and that had been upheld as constitutional by the Supreme Court 5-4 in the challenge by Sen. [Mitch] McConnell (R-Ky.).
Then we had a change of one justice on the Supreme Court; Justice Sandra Day O’Connor retired, replaced by Justice [Samuel] Alito. And it’s clear that the court has changed direction. And I think a U-turn is fair in the issue of particularly corporate spending, labor spending as well, in elections. But it’s really corporate, because that’s where the challenge has come from.
And in the original McCain-Feingold case, the court 5-4 upheld the prohibition on corporate spending in federal campaigns, and that’s what they turned around. And then the original four, joined by Justice Alito, they ended up saying that is in fact unconstitutional. So that’s a U-turn in just a couple of years.
“There’s been a sea change in the philosophy of the majority of the Supreme Court and a change that is really out of step with most of the 20th century’s understanding of constitutional law.”
Beyond that, the five-vote majority on the Supreme Court has clearly signaled that they are opposed to much regulation of political speech. The one regulation they still support is disclosure, but their view is that there’s been — and this is what they have said in Citizens United and a couple other cases — that the First Amendment requires the government to stay out of deciding whether corporations and unions can speak in elections or not, as long as they are just doing it independently and not actually giving to candidates.
So there’s been a sea change in the philosophy of the majority of the Supreme Court and a change that is really out of step with most of the 20th century’s understanding of constitutional law. So it’s gone off in a very different direction, and lower courts have followed that in other cases like SpeechNow [SpeechNow.org v. FEC], so that you have ended up with a very different set of rules for the spending of money in politics, both federally and state and local.
So if that’s the legal theory, if you will, what is the political reality? What has Citizens meant as we sit here in the 2012 presidential cycle? What has it meant in terms of campaigns and candidates?
Well, Citizens United led directly to this case called SpeechNow, which created SuperPACs. SuperPACs are political [action] committees that disclose their donors but may take unlimited sums of money from anybody, anyone in the U.S. or any corporation, still not foreign nationals. But basically any corporation, union or individual can give an unlimited sum to a SuperPAC, which can spend an unlimited amount to elect or defeat a federal candidate. So that’s the first big change. That’s resulted in enormous sums of money being spent in this election which were not spent in previous elections.
They come from a handful of people, because the people who can afford to give very large amounts are going to be billionaires, and there are not very many of them. So they have now a much larger role in the political process than they did before. Corporations have that role as well. They have tended to do that through nonprofit groups, not these SuperPACs, but nonprofits, chambers of commerce or what we call 501(c)4s, which are social welfare groups.
The important difference there is that those groups are not required to disclose their contributors, so that leads to a situation where money can come into federal races without the public having any idea where it’s from. Now it is supposed to be only U.S. citizens and U.S. corporations, but there’s no way to check on that, of course.
But if you don’t know, you don’t know.
Right, and they’re not reporting in any public way who their donors are, and they are not reporting even what their spending is in most cases during the election.
I want to get to disclosure in a second, but there’s a couple of concepts I think we probably have to try to nail down first. The first is this idea of independent expenditures. Why does that matter? Where does that idea come from?
When Congress, after the Watergate scandal in the ’70s, rewrote the election laws, they wanted to make it clear that you had to disclose spending and that there were limits on contributions to candidates, and Congress originally said there [are] limits on how much individuals could spend even of their own money, independently of candidates.
And when the Supreme Court looked at that in what is the key case in this area in our lifetimes — Buckley v. Valeo is what it’s called — the court said, well, you can limit the amount you give to candidates, that someone actually writes a check to a candidate for, because that is potentially corrupting. If you give a candidate $1 million, they’re going to be much more grateful than if you gave them $10. So on that sort of common-sense approach, they said you can limit the amount that someone contributes to a candidate. But the court said if an individual, which is what we were talking [about], then wants to spend their own money totally independent of a candidate or a party to express their own political views and to say, “You know, candidate X is great; you ought to elect them,” or, “Candidate Y is a disaster; the country is in danger,” the court said that’s a basic First Amendment right of speech, and it cannot be regulated by the government, because if it is independent — totally independent of the candidate is the language they used — then it can’t corrupt the candidate.
So that was the basic thought in Buckley, what we call a dichotomy. If it’s a contribution, you can regulate it. If it’s an independent expenditure by an individual, you can’t regulate it, because the court said the only justification for regulation of money in politics is to prevent corruption, and they made the second step of saying if it’s totally independent spending, then it cannot corrupt.
Now, if you look at Buckley, you do not see a little footnote after the statement “It cannot corrupt” with citations to why it can’t corrupt. … They said there is no evidence of corruption at this point. So they left open a door that said, of course, if it was corrupting, then you could regulate it, but they said based on what we know, based on the record, there is no evidence that independent spending will corrupt. …
Secondly, because they aren’t the candidate, they aren’t communicating with the candidate or the candidate’s campaign managers and TV people and pollsters and so forth, they may get it wrong, or they may go out and say, “You should support this candidate because they believe in an unpopular cause,” which would of course boomerang and hurt the candidate. So the court’s theory was that there is no guarantee for the candidate that the independent spending will be helpful. Instead, it may be badly done, sloppily done, emphasize issues the candidate doesn’t want to emphasize, and so the candidate may not be grateful for the spending. It’s a somewhat arbitrary factor.
But it gets you to that second point, which is coordination, this idea of how to control, limit, regulate — take your pick — coordination between these outside groups and the candidates.
Well, the reason that’s important is that the court’s finding in Buckley — which they reiterated in Citizens United and made it more of a statement of law that totally independent spending cannot corrupt a candidate and therefore cannot be regulated — presumes that it’s totally independent. If it’s not, if it is in any way coordinated with the candidate, then under the same theory it could corrupt, and it can be regulated, which is to say limited.
So a group that is out here spending an unlimited amount independent of a candidate, whether it’s an individual under Buckley or a corporation under Citizens United only has a constitutional right to do that on an unlimited basis if it’s totally independent.
Seems to me that’s a really key point.
It is. It underlies everything else, because what we’re seeing in this election is spending that is clearly not totally independent. There are regulations that talk about what coordination means. There are laws that try to define it, but if you go all the way back to the constitutional principle, it’s quite narrow. It has to be totally independent of the candidate and the parties. If it’s not, it can be limited. What we have is a failure here of the laws, the regulations to adequately define what is totally independent in a way that ensures that you don’t have what the Supreme Court itself has called the winks and the nods.
There was that moment in the Republican primaries this spring where Newt Gingrich (R-Ga.) stood up and gave a speech in which he said I can’t coordinate with a SuperPAC, but here I am in this public forum telling them not to do so. It was running ads or something.
I can’t communicate with the SuperPAC privately, so I’m communicating with them publicly, and I’m requesting them to do X, Y. There are endless examples this year of what you and I would call coordination.
In fact, there was a moment in the Gingrich-Romney battle where Gingrich said [Mitt] Romney’s ads are coordinated, and Romney said they are not; that’s false; that’s a lie. Well, the reason they were at cross-purposes is Gingrich meant Romney was raising money for the SuperPAC. Romney’s fundraisers were active in the SuperPAC. The head of the Romney SuperPAC was a former Romney employee. Romney referred to it as “my SuperPAC” in a press conference.
Oh, did he really? I missed that.
So [to] the average person it looked coordinated. What the Romney response is legally based on [are] the [Federal Election Commission] regulations: It is not coordinated because I am not seeing or approving in advance their advertising, which was the very narrow view of coordination that the Romney campaign was taking. So you’ve ended up in a situation where it is coordinated in any common sense or dictionary sense, but not allegedly legally.
Let me go full-bore cynic here then and ask you whether or not campaign finance law in this country today is just one enormous loophole.
It certainly is. It’s in tatters. It’s in tatters because we don’t have a comprehensive law. We did in McCain-Feingold, but the Supreme Court has then driven trucks through it by removing key parts of it, and the parts that are left [are] either not being enforced by the Federal Election Commission or don’t work now that other supporting parts of it have been declared unconstitutional, so that when people refer to a campaign finance system, I say we don’t have a system, because that implies some coherence and some plan.
So if you take that to its logical extent then, the state of play right now and the way things are going, what does that mean for democracy?
Well, that, of course, then you go back and look at first principles. What is it that we care about in our campaign finance system? …
What we have here is a situation where people give their million dollars to a nonprofit group or a SuperPAC, which then spends it on behalf of the candidate in a way that everyone understands will benefit the candidate and where the candidate or the candidate’s agents and supporters have had input.
“What we’re seeing in this election is spending that is clearly not totally independent.”
We have a system that allows candidates to go out and raise money for these SuperPACs, and so if you’re looking at corruption and the appearance of corruption — which is the standard the court has said allows us to regulate spending in elections because it’s harmful for our democracy — we’ve ended up in a situation where you can have millions of dollars being spent in a way that the candidate is going to be directly grateful for. …
So one side of it is, we’re seeing here the potential for corruption, with large sums of money being given to groups that are closely allied with the candidates, where the candidates are going to be grateful for that spending, which is precisely what should allow us to limit those amounts.
And then on the other side of this we’re seeing less and less disclosure of where that money is coming from. Those are the two pieces here: one, preventing corruption in terms of the amount given or spent per candidates, and the other is disclosure so that citizens know where the money is coming from and who is speaking.
The word the Supreme Court uses when it talks about disclosure is “transparency.” So that’s the phrase in Citizens from Justice [Anthony] Kennedy. Why is that so fundamentally important? Why do we have to know where this money is coming from?
It’s important really for two reasons: one, to prevent corruption, to identify potential corruption. If someone is spending millions of dollars telling voters to elect a candidate, we as citizens need to know who’s spending that, what they want for it. We can judge better whether we support the candidate or not if we know where that money is coming from, both to prevent corruption so that they’re not being bought by the banks or the environmentalists or the auto companies or whoever it is, and because it makes a difference to us as voters to know who is speaking. We judge messages to some extent based on who is saying the message. And if we don’t know that, we lose that important piece of context. If you have a ballot proposition on tobacco smoke and you have ads that are against it, it makes a difference whether those ads are coming from the tobacco companies or from medical interests. We judge the speech based on that to some extent.
You can’t do that if the speech is coming from Americans for a Better Country and you have no idea who is funding Americans for a Better Country. We lose that context.
There was a lawyer out in Indiana who we have been talking to, Jim Bopp. I’m sure you’ve heard of him. He’s had some success in the courts in moving to deregulate political speech and campaign finance. And I want to run through a couple of his thoughts on some of these issues.
The first one is about disclosure, and I asked him that same question: Why do we have to disclose? And he said, well, in fact, what happens when you force disclosure is that people are afraid to participate in democracy, and he brings up the example of the NAACP [National Association for the Advancement of Colored People]. And he says if 50, 60, 70 years ago you had forced people to disclose contributions to the NAACP, what was then a controversial organization, they would have been prevented from participating in democracy.
You know, you get a secret vote in this country. Why do you have to tell where your money is going?
I would say that that is the argument that the Supreme Court, 8-1, actually rejected in Citizens United. Jim Bopp was the lawyer who originally brought that case. He argued that the Citizens United group should not have to disclose its spending, and the court firmly said, 8-1, that it is a basic principle of our democracy that if you choose to speak publicly about an election, you spend money in that election, that the government has an interest in making sure citizens know who is speaking. …
The case that is often cited to justify secret spending in elections is really completely in opposite. It’s the NAACP case that you mentioned. First of all, what happened there was the state of Alabama wanted the membership lists of the NAACP, and the concern identified by the courts is that the people who were members of the NAACP in Alabama could in fact be subject to physical damage, including death; that there was a record of supporters of the NAACP receiving death threats, having crosses burned on their yards in a state with a history of lynching.
The NAACP was I think at that stage fairly described as a small, unpopular minority organization with an angry majority out to do harm to it. So the courts essentially carved out an exception from the disclosure rules and said if you can show that you are subject to physical harm and threats of physical reprisals, then you can keep your membership lists secret. So that is the law now.
That is not where we are with the major political parties in this country, and that’s what the courts have found, that we’re not talking about physical reprisals and death. We’re talking about, first of all, groups that constitute in many cases up to half of the country, so they’re not small, unpopular minorities if they are Republicans or Democrats on some of the social issues like the marriage ballot initiatives in California and Washington and Maine where this has been an argument.
The courts have said, you know, in any poll or any election, you are talking about people who represent maybe half the country, and that is not the sort of group which is protected under the NAACP theory.
So you watch an ad on television while you’re cooking dinner, right; it’s a campaign ad. Or you are listening to it in your car, and then at the end there is always that line — it’s either on the screen or you hear it. It says paid for by whatever it is, and it’s a campaign ad. Do you think people actually pay attention to that stuff? Do they care? Do the American people care where funding for political ads comes from?
I think they do in some circumstances, and you don’t know which those circumstances are going to be in advance, which is why you have the requirement of a disclaimer, so that if the ad is particularly interesting, particularly controversial, particularly outrageous, people then focus on it, and they know where it comes from.
The other thing that Jim Bopp went back to a couple of times as we were talking was a fairly formulaic thing: The spending of money in politics is free speech. Speech is good for democracy. Therefore, more money is good for democracy.
Well, a couple things about that. First, I don’t think he actually believes that to the full extent that he says it. The Supreme Court said roughly the same thing, the five justices in Citizens United, that the government has no business choosing among speakers. The more speech the better. It’s not the government’s role to decide whose speech should be heard.
And then they turned around almost immediately and found that none of that applied to speech by foreigners. Well, you know, you can’t have it both ways. Either the more speech the better no matter where it comes from, or there is some governmental interest in deciding whose political speech is heard by Americans.
And the Supreme Court decided that indeed there was a governmental interest in preventing foreign countries, foreign companies, foreign individuals, whether it’s the Chinese or the Arabs or whomever, from spending money in U.S. elections.
So evidently there is not a, in fact, theory that says the more speech the better, no matter where it comes from. So if you’re going to make those judgment calls, which the Supreme Court at least then went ahead and made after Citizens United in terms of foreign money, what other judgment calls can you make? And who should be making those calls? Should it be Congress? Should it be the courts? Those are legitimate questions.
Who should be making those calls? Should it be the court? Or should it be Congress? I mean, that seems a fairly fundamental question.
It is a fundamental question, and in our theory of government it should be Congress. That’s what a representative government is about, so long as — and here’s where you get to the tricky part — so long as they are not violating the Constitution. So the Supreme Court has a legitimate role in ensuring that the Constitution is followed. That is over 200 years its principal role.
What the court has usually done is to say we defer to Congress and their expertise identifying a problem and coming up with a solution. We look to make certain, first of all, that they are not using the legislative process to infringe on the rights of minorities who are not represented in the legislative process. So there is a very honorable tradition of the Supreme Court saying we have to stand up because the minority in question is not represented in the legislature or is not represented in numbers sufficient to obtain what they should do or to protect themselves through the legislative process.
So if you look at segregation, for instance, the courts basically stepped in and — or voting rights, the whole idea of one person, one vote. The court stepped in and said we are defending a fundamental constitutional principle here because it doesn’t have defenders in the legislative process. The process is jerry-rigged against it.
Here what I think has happened is that a majority of the Supreme Court’s five justices appear to have decided that they don’t trust Congress or the legislatures to legislate on campaign issues, because they think while they are directly affected by them, and whatever they do is therefore likely to be incumbent protection, so we’re not going to give the traditional deference that we give to Congress, presuming that their legislation is constitutional or if it’s not trying to change it as little as possible.
If you look at something like Citizens United, they weren’t just throwing out one act of Congress. They were throwing out 40, 50, 60 years of regulation by Congress. They were throwing out laws from 26 states. And they did so in the twinkling of an eye because the majority seemed to feel that they simply couldn’t trust state legislatures or the national Congress to regulate in this area, and I think that is — John McCain has used the word “arrogant.”
I think it is arrogant; it’s misguided. One of the interesting things about this court at the moment is that for the first time in U.S. history, it does not have a single justice who has ever run in an election or served in elective office. Justice O’Connor was the last justice to have served in a legislative capacity. She was in the Arizona Legislature, was the majority leader.
I think that’s important, because if you’ve served in a legislature, you understand better the work of the legislature. The majority has basically caricatured what the legislatures are doing here as incumbent protection.
You know, I watched McCain-Feingold. I was involved in some of the drafting and in the floor preparation for the floor debates. I just think that’s a complete misreading of what happened in Congress. Those were not incumbents trying to protect themselves. Those were members of Congress responding either to what they saw as real corruption, which they thought was dangerous to the system and embarrassing to themselves as legislators, or they were responding to a popular demand to do something about the money that was being spent in corrupting ways and raised in corrupting ways.
They did it over the objections of the leadership, of certainly the Republican leadership, and I think many of the Democratic leaders were concerned as well. So that’s not incumbent protection. That was, I thought, a legitimate action by a legislature in response to Citizens.
Do you think the court has been naive in its handling of campaign finance when it talks about lofty subjects like corruption and transparency and disclosure? Do they know what they are talking about?
Well, they haven’t had firsthand experience as far as I can see in any case. They have not run for office. They haven’t been in the election process, in the democratic process, except, I assume, as voters. So they don’t have that firsthand experience.
Based on what they have said in cases like Citizens United, I think that has meant they either underestimated or missed some of the key issues of presumption that this spending would be independent of candidates. The reality in this year is most of this spending is not in any common[ly] understood sense totally independent of candidates because of who is doing the fundraising, who is doing the spending, the variety of common vendors and of common interests.
I need you to help me understand something that is wrapped up in this idea of independent expenditures and coordination, and it’s a little fuzzy, so bear with me. What’s the difference between a campaign ad and a political ad?
Well, there may be none, because all campaign ads are political ads. The question is, is there something out there that is not a campaign ad but still inherently political?
Well, how about this, an issue ad?
Campaign ads, at a minimum, are ads from candidates and political parties and registered political committees, because the whole point of their running an ad is to affect an election. So then there [is] a different universe of ads that are for commercial products. You know, “Buy Coke.” Those are not campaign ads that I have ever seen. They are designed to sell a product, and they never mention an election or a candidate.
So then you have a very small overlapping universe of ads that are not from political actors, candidates, party committees, political committees, but mention someone who is a candidate, and the question then is, is that in fact a political ad designed to influence the election, or is that what often gets called an issue ad that is designed to produce some legislative change usually?
We’re talking about a very small piece of the landscape, but it is an area that has been fought over pretty heavily for the last 20 years because, particularly before Citizens United, when corporations and unions were not allowed to spend money in federal elections, the only way they could legally do so was to run advertising that talked about a federal candidate but which was allegedly not a campaign ad, because it had some other purpose.
Now, the classic example is Sen. Smith has voted to raise your taxes. There is a bill before Congress that would raise your taxes again. Call Sen. Smith and tell him to vote against that bill.
Now, if Sen. Smith is up for election that year and is running right in the middle of the election, the question is, is that a campaign ad against Sen. Smith, or is that urging him to vote against a specific piece of legislation?
So let me interrupt you and point out that you’re a trained observer of this kind of stuff. And somebody who is making dinner and listening to the TV with one ear, are they making that distinction between these campaign ads and political ads that aren’t campaign ads somehow?
Undoubtedly they’re not.
So what we’ve seen since Citizens, there has been so much more money in this political system and also the rise of these groups called 501(c)(4)s, the social welfare groups. Why? How did that happen?
This is all about disclosure. The game that’s being played here is how to spend money to affect elections without having to disclose where the money is coming from. If the money is being given to and spent by a candidate, a political party or a political committee, including these SuperPACs, the sources of the money, the donors must be disclosed.
“The game that’s being played here is how to spend money to affect elections without having to disclose where the money is coming from.”
So people who want to spend money in elections and elect or defeat candidates but do not want anyone to know where the money is coming from are looking for a vehicle that does not disclose.
And the vehicles at hand are these nonprofit (c)(4) social welfare groups, (c)(6)s, which are business leagues like the Chamber of Commerce, so you know the money comes from the chamber, but you have no idea which corporations it comes from, which means you don’t have any angry shareholders, you don’t have any angry employees. …
That’s where you get to this world called issue advertising. You talk about candidates, but you claim it’s really about an issue and not about their election as a way to avoid disclosing the funders of the advertising. That’s the heart of what’s going on here.
You don’t want to disclose, but you want to contribute. You find a 501(c)(4), and that’s where you go.
Correct. And then [what] the (c)(4) has to craft is advertising in terms of the content and the timing carefully to avoid triggering the requirements that they register as a political committee and disclose their donors.
And then that ad winds up on TV or on the radio, and consumers — that is to say, the voting public — have, will have, if everybody’s done their job right, if you think about it, voters have no idea where the money is coming from.
Correct. Thereby avoiding what the Supreme Court itself has said is the legitimate interest in a democracy of knowing the sources of funding of political ads, because you have a political ad about a candidate that is designed to affect the election paid for by people who intend to affect the election and have been told if they give their money they will affect the election, and yet you don’t have the disclosure that our system requires for political ads.
We have been following this case out in Montana about a group called Western Tradition Partnership [WTP] and the Montana Corrupt Practices Act. The Supreme Court this summer struck down the Montana Corrupt Practices Act, a 100-year-old act that had outlawed corporate influence in the state of Montana, in effect doubling down on Citizens, saying not only is it federal elections but state elections as well. Explain to me the importance of that case. Why does it matter?
Well, I think the most important thing is you’re right, that the five-justice majority doubled down. They basically ignored the arguments of the state of Montana and of a number of other groups who had filed and people who had filed briefs in the court.
The issue was whether there was ever an instance where a state could show that independent spending was in fact corrupting or had the appearance of corruption and therefore could limit. The Supreme Court and Citizens have said there’s no evidence it’s corrupting, and therefore there’s a constitutional right for corporations to engage in this speech.
Montana came back in — the Supreme Court of Montana — and said here we have had a history of corporate corruption in politics, of corporations buying the Legislature and legislative action, and as a result we should be an exception to Citizens United, and the majority gave that whole argument the back of their hand. And they said there is nothing new presented here to cause us to revisit Citizens United, ignoring, among other things, a brief by Sens. [Sheldon] Whitehouse (D-R.I.) and McCain who said we in the Senate are seeing the corrupting effect of Citizens United — that just the threat of unlimited spending is affecting the way people vote and consider matters before the Senate. And the Supreme Court majority didn’t want to hear that.
So the first thing that happens is it means that the, the majority is not ready, I think, to look at whether they were wrong about the potential for corruption by independent spending. That’s the immediate takeaway from Montana. It still leaves in place, of course, the ongoing issues about whether any particular spending had to be disclosed or the sources of that spending.
Did I miss the full-blown Supreme Court hearing about this Montana case?
You did, because it never happened. The court was asked to overrule Montana, and it got briefs from both sides. And it ruled in writing without ever [having] had a hearing or a chance for a full airing of this. The five justices said we see nothing here to cause us to change our minds as we enunciated in Citizens United.
[Where does the effort to reform campaign finance stand at the moment?]
First of all, where we are at the moment is a battle over disclosure, because we have a lot of spending. We don’t know where much of it is coming from. That’s not a hard issue to win constitutionally. You have eight justices on the court who have said that full disclosure of spending, including issue ad spending, is permissible. That doesn’t have to be express advocacy.
What we don’t have at the moment is a majority of Congress requiring that or a Federal Election Commission enforcing the disclosure rules that exist. In the states, we’re seeing this battle on a state-by-state basis as there are proposals for more disclosure, so I think the battleground we’re going to see at the moment is over whether the secret sources of money are going to have light shed on them.
And I think that’s easy to win constitutionally. It requires legislative will and enforcement agency will.
Then you have a bigger question, which is, all right, if we’re going to have all this money — SuperPAC money, corporate money, labor money — spent, what is that going to do to the system, and does it require some alternative method of campaign funding for people who are willing to participate in a public funding system?
How are candidates going to get money if they don’t raise it from corporations or unions? How are they going to get it if they aren’t born [with] or haven’t made hundreds of millions of dollars? Is there some other way for a candidate to communicate with voters, or are we going to be swamped by this, what is called outside money, meaning SuperPAC money, the social welfare group money? Is the entire election conversation going to be dominated by a handful of billionaires funding these groups?
And that’s a policy question at the end of the day, because Congress has the constitutional ability to provide alternative sources of funding, whether it’s radio and television time or mailing vouchers or direct funding to candidates or tax credits to people, to encourage them to give to candidates. All those possibilities are out there and constitutional, but they require a change in law.
All right. So you’ve been around this system for a long time. You’ve been in this town. You know Congress; you know court decisions. Lay me odds then of any of that happening in the next — pick it — 25 years.
I think they’re very high. I wouldn’t say they’re high in the next two years, but in the next 25, because I don’t think either the American people or Congress are going to be comfortable with the system where the entire election conversation is dominated by a tiny handful of individuals who can afford to spend unlimited amounts of money.
People are going to be looking for a balance, an alternative way to communicate. Now, we’re a democracy; we’re not a plutocracy. And the idea that you have to have hundreds of millions of dollars of your own money to run for office, or that an election can be bought by somebody willing to spend a great sum of money, is just not how we have run our country.
It’s not how we think of our democracy. It’s fine to be able to spend it. We believe in free speech, but we believe everybody ought to have free speech. Everyone ought to have an ability to communicate with voters. Voters, if speech is good, voters ought to be able to hear all sides of the debate whether or not they have the personal money or the corporate or labor backers to get their message out.
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