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Full transcript: November 16, 2012

RAY SUAREZ :  Welcome to Need to Know. Thanks for joining us. The election was more than a week ago. But the debate continues about the extraordinary amount of money spent during the campaign season– an estimated 6 billion dollars. That’s double the amount spent during the 2000 campaign.   Of course, the huge increase in campaign spending follows the Supreme Court’s 2010 “Citizens United” ruling.

That 5-4 decision, written by Justice Anthony Kennedy, said restrictions on independent spending by corporations and unions to support candidates violated their constitutional guarantees of free speech.

In his dissent, Justice John Paul Stevens warned then that the ruling “threatens to undermine the integrity of elected institutions across the nation.”

So has it? Will it? And are there other electoral reforms we should consider? That is our focus this week.

For more, we are joined by four experts:

Monica Youn, is the Brennan Center Constitutional Fellow at NYU School of Law, where she focuses on election law and first amendment issues.

Scott Murphy is a former venture capitalist and former Democratic congressman from upstate New York.

Richard Brookhiser  is an author and historian and an editor with the National Review magazine, where he has worked for the past 35 years.

And David Keating is with the Center For Competitive Politics. He is a tax activist and supporter of the Citzens United ruling.

Well, here we are after this amazing outcome where this gush of money came forth and we elected — largely the same House of Representatives — largely the same United States Senate and returned the same man to the Oval Office.

RICHARD BROOKHISER: We must have been happy with them.

RAY SUAREZ:  Well, as one elected official said to me last week, “Six billion bucks and we did the same thing.” Should we be looking at the money or is that a distraction?

RICHARD BROOKHISER:  Well, my point of view is that it is a first amendment issue.  And– and I think historically you can justify that– if you look at– what the founders wanted, what they intended, also how they behaved as politicians.  It was a much smaller country, there was less money, there was much, much less to spend money on.  But we’ve always spent it when we had it.

RAY SUAREZ:  David, what do you make of the first election of the Citizens United era?

DAVID KEATING: I think one of the great things about it is it allows people to get together and say their piece about where they think the country should be headed.  Now, the overall composition of the Senate and House is roughly the same, but if you look at the individual races you saw a lot more competition.  You saw a very competitive — Republican primary — in the presidential fight.  So we’ve got more competition, we’ve got more voices.  And I think that’s a good thing.

RAY SUAREZ:  Scott, you’ve been through this process.  More competition?  More voices?

SCOTT MURPHY:  I think that more competition and more voices are absolutely a good thing, I think that– David’s approach for how you get there is the wrong one.  When I ran for office one of the things that was actually a big help to me was that I’d been in the business world and I’d started and been involved with growing a lot of companies.  I knew a lot of successful businesspeople.  That’s one of the key issues when you try to go out and raise the money you need to be in campaigns right now is do you know the rich people that have the money to fund this?  What that does is actually limits who can get involved.

RAY SUAREZ:  During the titanic struggles over campaign financing in the last decade the Republican gold standard of — in the debates was disclosure, that there shouldn’t be any limits, that speech was money and money was speech, but as long as there was disclosure that was okay because there would be transparency and everybody would understand.  Then transparency and disclosure kinda went away and the principle became unlimited money.  What happened?

RICHARD BROOKHISER:  It’s a very old principle — including the nondisclosure part.  You know, and the greatest politicians– when Abe Lincoln was running for his reelection in the home stretch of that election New York was the biggest state by far, crucial, crucial state.  And he got a communication from Thurlow Weed who was the Republican boss of New York.  And he said, “We need some money.”  And President Lincoln made sure some money got to New York.  I mean, this is– you know, this is the liberator, but they badly wanted to win that election.  So it’s– it has an old history in this country.

DAVID KEATING:  If you look at elections, federal elections themselves, there was no disclosure for any candidates until the 1970s.  And you know, we ran a pretty good country arguably up through then.  And today we still have more disclosure than we’ve ever had in our– campaign finance history.  There hasn’t been anything where disclosure has been rolled back.  It’s a question– of people wanting even more disclosure than we have today.

RAY SUAREZ:  Monica, you wanted to say?

MONICA YOUN:  Oh yes, I was going to add a couple of I think important caveats to the rosy picture of disclosure that– David had been painting.  Because in fact we see the amount of disclosure in federal elections going down very drastically in the last couple of cycles since Citizens United.

And I think part of the reason for that is Citizens United opens up a door to certain types of corporate spending that weren’t permitted previously and does so assuming that, you know, Congress, that the FEC are gonna come in with some sort of disclosure regulatory scheme that’s going to take care of that.  And in fact there’s been a massive failure, I think, on the part of everyone involved to ensure that that sort of disclosure takes place.

RAY SUAREZ:  One man, Karl Rove.  He’s behind the nonprofit Crossroads Grassroots Policy Strategies that spend $70 million in this election.  The group is what’s known as a 501(c)(4), that means it can spend up to half its money on politics and doesn’t have to disclose its donors.  How has the Citizens United ruling increased the role of groups like that?  Monica?

MONICA YOUN: Well, I mean, Citizens United was premised on certain conditions that just don’t exist in the real world. If you– read Justice Kennedy’s opinion, Justice Kennedy assumes that, you know, voters will be able to look up and find out instantaneously who was paying for the money– paying for these ads and, you know, to hold both politicians and corporations accountable for this kind of spending.  And he thought of this as a healthy part of the first amendment dialogue.

Now, the actual facts are, you know, in this election we have probably in excess of $300 million being spent by these shadow organizations.  We have no idea where the money is coming from and it’s a real problem for accountability and for democracy in general.

RAY SUAREZ:  Scott, if you were to run in your old seat and the other person in the race had limitless money with no apparent source –

SCOTT MURPHY: It’s pretty much what happened actually.  (LAUGH)

RAY SUAREZ:  Well– is that– a good thing?  Is that a desirable thing?  Is that just money as speech?

SCOTT MURPHY: I don’t see it that way.  When I was running actually in the last election there were nine outside groups running ads attacking me, most of whom you couldn’t figure out who they were.

The guy who was running against me had a lot less money that he had raised for his campaign than what the outside groups did that came in and ran ads.

And so it does a couple things, one that I don’t think people think about is it nationalizes these local elections.  Because the money deals with the national issues.  They’re not really focused on the local issues and what’s going on.  And the other thing that happens is it takes the candidates– they spend so much of their time dealing with money that they aren’t able to spend the time talking to people and doing the things that we elect them to do.

One of the dirty secrets of politics and political life now is how much time candidates in competitive seats have to spend fundraising.  In my time in Congress I was spending 25 hours a week fundraising to try to have enough money to keep up with what was gonna go on from these outside groups.

That’s time that politicians can’t spend talking to their constituents and can’t spend working on the issues that they’re elected for.

RAY SUAREZ:  One of the most prominent and one of the best known donors of the last cycle is– super PAC donor Sheldon Adelson, the casino mogul.  He spent $53 million on nine Republican candidates and eight of them lost.  Is that– a refutation of the idea that– that money dictates outcomes?

MONICA YOUN: Of course not.  But I think what Sheldon Adelson did manage to buy with his $53 million is he managed to buy himself a place at the table.  He’s going to be part of the national conversation for the next election.  His priorities are going to be seriously considered by the party he’s– by the party and the candidates he supports.

I mean, Sheldon Adelson in the 2004 election supported– George W. Bush, he gave him $4,000 which was the max out.  He supported– John McCain in the 2008 election.  He gave him $4,500 which was the max out.  We didn’t know the name of Sheldon Adenson in those– past elections.  Now we do, and there’s a very good reason for that.

RAY SUAREZ: What do you get when you grow the possibility from a max out of $4,500 to $53 million on the table?

DAVID KEATING: Well, you get a lot– a lot more campaign commercials for one obviously.

AD EXCERPT: Does Virginia really want an outsourcer-in-chief in the White House?

AD EXCERPT:  Obama quietly ended work requirements for welfare…

AD EXCERPT:  Forever waves of grey..

AD EXCERPT:  Under Obama’s economy, it’s just not getting better.

DAVID KEATING: But look, we also have to keep in mind this kind of money can also change– bring new ideas into the political system.  Look back at Gene McCarthy’s insurgent campaign in 1968 when he went– ran against a sitting president very late in the cycle and he got the equivalent of $10 million in today’s money directly into his campaign.  We’re not talking about some independent group supporting his campaign.  It went right into his campaign.  And he put all that money in New Hampshire and he ran a campaign that was enough to push a sitting president out of the race.

RAY SUAREZ:  Well, money can be spent on ads or it can be spent on other things in an economy such as ours.  According to groups who follow this kind of thing the money spent on the elections this year could have been used to hire back all the school teachers that have been laid off across the country, something like 130,000 teachers ..millions of school lunches which we’re looking at ways to deliver more cheaply.  Is it justifiable to spend the kind of money we spend on politics?  Or should we be comparing it instead to the launch of a new toothpaste, or…

SCOTT MURPHY:  Yeah, the numbers are big, but the elections are big and there’s a lot of– there’s a lot of people to communicate with, there’s a lot to talk about.  So I don’t – to me it’s not the absolute number that’s the critical issue.  I think that there’s just this fundamental disconnect.  Some of — my colleagues here on the panel, David says, you know, this is free speech.

To me free speech is you stand on the corner and you talk to everybody that you know and you talk to anybody that you can about your issues and you communicate with your fellow citizens.  But to say that it’s free and fair because a handful of the richest people can communicate through television all over the country when the vast majority of Americans can never do that because they can’t afford to buy those ads, I don’t think you’re setting up a free or fair system at all.  I think you’re setting up– a totally imbalanced..

RAY SUAREZ:  But some Americans have always–spoken with a louder voice.  And if you’ve been successful in life, successful in business, successful as a persuader—-you get to speak with a louder voice.

SCOTT MURPHY: Or your grandfather was successful– and he passed down the money to you, which–

RAY SUAREZ:  Well, either way.

SCOTT MURPHY: is a lot of the people we see…

DAVID KEATING: But it’s more than that.

SCOTT MURPHY: ..actually speaking.

DAVID KEATING:  It’s people like Bruce Springsteen, Oprah, people that own — large and influential newspapers have a larger voice.  Entertainers have a larger voice.  They can raise money for candidates and donate their services.

And it’s not that these rich people are drowning out over voices, far from it.  They’re giving voice to other people who agree with them.  Look, if they’re buying– if they’re buying this speech and it’s not persuasive it’s not going to have any affect.

There was a gay man who gave$1 million to one of the liberal-leaning super PACs.  And– when you looked at the comments section in the Huffington Post everyone praised him for giving more voice to their concerns and they liked it.  So the — the idea of this money, it’s giving voice to other people who agree with how that..

RAY SUAREZ:  You know, David, I…

DAVID KEATING: …voice is being done.

RAY SUAREZ:  I find that an interesting argument.  Because if you look at public opinion research over the course of this campaign, for instance on raising the top level of taxation for high income earners, and then you look at the cumulative argument that you would have seen just on TV or heard on the radio you never would imagine that you live in a country where two out of three people believe that rich people should pay more taxes.

DAVID KEATING:  If you had– but if you had– you had…

RAY SUAREZ:  …it doesn’t reflect where the country is at all.

DAVID KEATING:  You had many different voices in this campaign.  You had liberal super PACs, conservative super PACs.  You had unions that were for the first time in a presidential race allowed to use general union funds to communicate with people who were not their own members, other workers.  And we may actually when the political scientists study the outcome of this election, they may find that that was the most effective money used of all.

RAY SUAREZ:  We’ve been talking a lot about how we fund an election.  Let’s talk a little bit about how we run elections.  Other countries use different systems.  For example in France, a country obviously much smaller geographically with a much smaller population, roughly 1/5 of the size, each candidate is limited in his spending or her spending to $30 million.  Now, even if we were to scale that up for the larger United States and larger population and capped it at $150 million, $180 million, what that be something worth taking a look at?

DAVID KEATING: Limiting the contributions is something that has helped incumbents.  And if you look at the reelection rates since campaign finance laws were adopted in the 1970s, the reelection rates have gone up not down.

MONICA YOUN: I think that putting an absolute spending limit on that is– you know, is very problematic.  You know, I come from the Asian American community.  It takes money, it takes translators, it takes special language ads in order to reach Asian American voters.  What I don’t want is just a small number of people controlling the political dialogue in this country.

RAY SUAREZ:  Eight out of ten Americans favor some form of limitation on campaign spending.  that we spend too much money on politics and it comes from one sector of the — of the population disproportionately.

MONICA YOUN: Well, the problem– you know, I don’t see the problem in terms of an absolute spending limit.  I think that is exactly a problem of disproportionate money.  There are other ways to make elections more competitive, public financing is one of those ways.  I mean in all of the states, in all of the municipalities that have enacted public financing laws you see challenger success rates skyrocket.  You also see the number of people participating, donating and being an active part of a political campaign skyrocket.

RAY SUAREZ: Is there a way to take money out?  Would it find its way in anyway if we legislated a cap?

RICHARD BROOKHISER: Of course it would.The United States has a very complicated federal system.   In a parliamentary democracy like England, you know, you can call ..the party in power has the power to call an election and you can make it a snap election and it all depends on the seats in parliament and it’s all a very focused thing.

But we have states, we have two houses of Congress.  We’ve got an executive.  We have this– this big gizmo– of a government, and that’s by design.  And it has a lot of– effects, hopefully good effects.  If you wanted to change to a parliamentary system you could have a shorter campaign system– season, you could do a lot of stuff.  But that’s not the system we in fact have.

So if you have a big country with lots of different constituencies– lots of different languages, four time zones plus Alaska and Hawaii, and a complicated federal system and a rich country with a lot of media it’s gonna cost a lot of money..

RAY SUAREZ:  Yet at the same time, Scott–


RAY SUAREZ: –in places like upstate New York where the districts haven’t changed a great deal, there aren’t suddenly new, big, expensive media markets in upstate New York, the table stakes for running in for Congress have transformed over the last 20 years, what it takes to run in an outside big metro seat is higher.

SCOTT MURPHY: Dramatically higher.  I mean, in both elections, I ran in a special election and then I ran for reelection in a general election, both sides of the table including outside groups spent about $4 million.  It was $8 million and then– 18 months later it was another $8 million spent.  That’s a massive amount of money.

And I definitely disagree that because our system is complicated we can’t have restraint on the amount of speech that comes from the handful of wealthiest Americans through the form of buying television commercials.  That’s not to me free speech.  That is a particular thing that we can restrain around our elections, I believe.

And if we need to change the constitution to do this I still think that’s– a forward step for us.

RAY SUAREZ: Monica, is there a case climbing the appellate ladder that’s going to give the court a chance to take another look at Citizens United?  Is there going to be a legislative opportunity to answer people’s complaints about the effects of the ruling?

MONICA YOUN: Well, the court had an opportunity to look at what’s happened in super PAC spending and independent spending in the 2010 election cycle and to reconsider its ruling.  And it refused even to hear the case.

That being said, there are a whole bunch of challenges– climbing the appellate ladder, I think a couple of dozen of them, to my last count, regarding the question of disclosure, especially attacks on our, you know, existing disclosure laws such as they are.

RAY SUAREZ:  But David, that core holding, the idea that money is speech, you think that’s safe?

DAVID KEATING:  I think it’s safe, I hope it’s safe.  Because that applies to the other parts of the first amendment, too, arguably.  You can’t run a newspaper, you can’t– have a church if you’re not able to raise money and spend money.  So these– I think the genius of the first amendment is allows Americans to get together, pool their money and speak to other Americans about the direction they think their country should be headed in.

RAY SUAREZ: We have– a early winter Tuesday election day.  Maybe we could look at what other countries are doing if we’re gonna spend all these money to encourage more people to vote.

Australia has mandatory voting, many European countries hold elections on Sunday.  Argentina recently– lowered the voting age to 16.  Are there any changes we could be looking at to increase the number of people who participate either on election day or during an election season as we’re tinkering with the system now?

RICHARD BROOKHISER:  Didn’t our voter participation rates go down when we lowered the voting rate — age to 18?  Now, you know, youth voting did go up in ’08, but that was, like, the big story, that was the big surprise.  We lowered the voting age to 18 nationally and the participation rate sagged because you were bringing into the election people who were less likely to vote, and indeed they didn’t until this cycle and the last cycle, they got excited by– Obama.

RAY SUAREZ: You are a scholar of the Framers era.  We had a result that was– about 2.5% margin between President Obama and Governor Romney and yet 129 electoral vote bulge because of the way the vote happened to fall out.  Is this what they had in mind?

RICHARD BROOKHISER:  Well, the Electoral College was one of the last things the Constitutional Convention came up with, the presidency and how to pick him was one of the last things they wrapped their minds around.  And the reason they picked the Electoral College was they didn’t want any– freestanding preexisting group of office holders to make that choice.

There’d been proposals to have the president picked by Congress or maybe the president would be– picked by the states or the state legislatures.  People didn’t want to give either of them that power.    So that’s why they tried to come up with this, you know, kind of peculiar system.

Now, since their day, why I defend the Electoral College, if we went to a national popular vote I believe the corruption would skyrocket because that would mean any vote you stole anywhere could help you.  Now you’re only looking to steal votes in swing states, key states.  It’s a much more targeted, smaller target for graft.  If we went to a national popular vote I think you would see the vote stealing, the dead people voting.  It would go through the roof.  And I see an Electoral College as a bulwark against that.

DAVID KEATING:  If you had a really close popular vote how would you go and do that recount in all 50 states?  I mean, it would be a nightmare.  You’d have lawyers everywhere.  And at least if it’s close in the Electoral College you just focus down on maybe that one state that might swing it.


DAVID KEATING:  You might actually be able to count the votes–

MONICA YOUN: (LAUGH) Not if it’s Florida.

DAVID KEATING: And you at least get a resolution.  But– I mean, we look at Florida, but imagine if it had happened in all 50 states at once.  I mean, that would be– a real constitutional crisis about, well, who actually won?

RAY SUAREZ: I want to thank you all for being here and thank you for a great conversation.  Good to see you all.






They were able to start up a business and be self sufficient, some of them already have employees, as bad as this economy is, those people really are my heroes.



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