Rick Hasen on Money in Politics
Prof. Rick Hasen discusses his new book, Plutocrats United: Campaign Money, the Supreme Court, and the Distortion of American Elections, with commentary by Dean Chemerinsky.
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Rick Hasen
Chancellor's Professor of Law and Political Science
Expertise: Election law, legislation, remedies, torts
Election Law Blog | ELB Podcast | Book: Plutocrats United -
Erwin Chemerinsky (Host)
Dean, Distinguished Professor of Law, Raymond Pryke Professor of First Amendment Law
Expertise: Constitutional law, federal practice, civil rights and civil liberties, appellate litigation
Featuring:
Podcast Transcript
[Narrator]: Welcome to UCI Law Talks, presenting bold perspectives on law from the University of California, Irvine School of Law. Join the conversation on Twitter at UCI Law, #UCILawTalks.
[Erwin Chemerinsky]: It's my great pleasure to introduce you to my colleague, Rick Hasen. He's going to talk about his magnificent new book, Plutocrats United. Rick is a graduate of UCLA Law School, where he also received a Ph.D. in political science. He practiced law. He then had a very distinguished career at Loyola Law School. I would say one of the accomplishments I'm most proud of in my time as dean here was convincing Rick to come and be part of the UCI Law School. He is a spectacular teacher. He teaches here Torts and Remedies and Election Law. He has a joint appointment in political science, and regularly teaches political science courses as well. He is one of the most renowned law professors in the country. National Law Journal ranked him one of the 100 most influential lawyers in the United States. He is the leading expert on election law in the United States, and this is another of a number of books that he's published with regard to that topic.
I think the way it's going to go this afternoon is Rick's going to talk for about 35 minutes about his book. Then he asked me to speak for a few minutes as commentary about the book. Then open it for questions, and then a book signing.
Without further ado, my wonderful colleague, Rick Hasen.
[Rick Hasen]: Thank you. I have in my notes it's a pleasure to be here, because I'm going around the country, but it actually is a pleasure to be home. And thanks Erwin for setting the expectations so low with that introduction.
Alright, so I want to start with a story that I think has great resonance with people who think there's too much money in American politics, but one which I think teaches us the wrong lesson.
In the spring of 2014, a group of republican presidential hopefuls, including Governor Chris Christie of New Jersey, converged on the Venetian Hotel in Las Vegas, to speak before the Republican Jewish Coalition and its key board member, the billionaire casino mogul, and Venetian Hotel owner, Sheldon Adelson. It was a big moment for Christie, who was trying to get past a controversy known as Bridgegate, over the closing of lanes on the George Washington bridge, allegedly in retaliation against Fort Lee's mayor, a democrat who did not support Christie's reelection bid.
The speakers, former Florida Governor Jeb Bush, Ohio Governor John Kasich, Wisconsin Governor Scott Walker, and Christie, fell all over themselves to flatter Adelson and to announce their support for a continued strong relationship between the United States and Israel, Adelson's signature issue. Walker, according to a New York Times story, brought up his father's trip to Israel, how he put a menorah candle next to his Christmas tree, and he said his son's name Matthew came from the Hebrew.
But Christie stepped in it. In his speech before the group he warmly recalled a trip he took with his family to Israel, calling it an extraordinary personal experience, but touched off disapproving whispers from the crowd when he described flying over the occupied territories where Palestinians lived. To conservative supporters of Israel who viewed Israel having sovereignty over the entire West Bank and other areas captured in the 1967 Six-Day War, it was a faux pas to call them the occupied territories. Christie quickly apologized in a private meeting with Adelson. Progressives denounced the line to kiss Sheldon Adelson's boots, or perhaps a little higher up. The candidates prostrating themselves, seeking Adelson's stamp of approval and his cash, and Christie's apology to Adelson for describing the disputed region in a term regularly used by US presidents and the State Department.
But who could blame these candidates for participating in the Sheldon primary? Or for their obsequiousness. Adelson and his wife had contributed an astounding $98 million to $150 million, thanks to holdovers in our campaign finance disclosure laws we're not sure exactly how much, to help elect republican candidates during the 2012 election, including giving $15 million or more to a super PAC called Winning Our Future, that seemed to single handedly keep former House Speaker Newt Gingrich in the 2012 race for the republican presidential nomination. The Adelsons later gave tens of millions more to support Mitt Romney's run against Barack Obama in the general election.
The 2016 presidential hopefuls wanted Adelson's support, but more importantly they wanted his money. But if the lessons that progressives learned from this experience was that big money is buying elections, the claim was off the mark. Instead, Adelson's money bought Gingrich's 2012 presidential campaign only a second and a third and a fourth look from republican primary voters, but those voters ultimately rejected him. Romney beat Gingrich in the primary, but even then with significant support from Adelson, he lost to Obama in a campaign where each candidate and party spent about a billion dollars.
We can reject our consideration of the problem of money in U.S. politics by rejecting the crass liberal refrain that money simply buys elections. The Ebay entrepreneur Meg Whitman's $140 million in self-financed cash didn't help her beat Jerry Brown to be California's governor. The more money she spent on election ads, the less voters seemed to like her. Similarly, the environmentalist Tom Steyer's efforts to keep a democratic majority in the US Senate failed in the 2014 elections, despite spending $74 million. And in an electoral earthquake in 2014, Dave Brat, an unknown college professor with two full time staffers, beat Eric Cantor, the house majority leader, in a Virginia congressional primary. Cantor's campaign spent more on dinners at steak houses than Brat spent on his entire campaign.
And of course, there's Jeb Bush, as his current woes show us, the relationship between money and politics is more complicated that mere vote buying. Despite $60 million in pro-Jeb spending by his supporting super PAC, money can't buy you Jeb.
So we can reject the claim that progressives sometimes make that campaign money simply bribes politicians. Take the group Represent Us. The group backs something called the American Anti-Corruption Act, which many campaign reformers have backed. The website supporting its legislation is titled, "Get money out of politics. Stop lobbyist bribery. End secret money and empower voters." Its first point for why the legislation is necessary: stop politicians from taking bribes. But as Harvard Law Professor and campaign reformer Larry Lessig explains, most members of congress are not taking bribes, and that cash promotes corruption is likely as rare as it has ever been in American history.
Sure, there are the occasional stories. There's Randy "Duke" Cunningham of California, former congressman who went to jail for getting yachts and other goodies from defense contractors as he sat on the defense committee. There was democrat William Jefferson of Louisiana who was caught in an FBI sting in which he was arrested with literally $10,000 of cold cash in his freezer. But neither man was bribed by legal campaign contributions. Federal candidates legally can take no more than $5,400 from an individual across a two-year election cycle, and just $5,000 from a political action committee. Who in congress could be bought so cheap?
Super PACs like the one supporting Gingrich cannot give their sums directly to candidates, but they can raise unlimited funds so long as they don't violate the weak federal rules against coordination with candidates. The few members of congress who are taking bribes are not taking them primarily through legal campaign contributions, at least not yet.
But reformers and reform groups like Common Cause use language of corruption all the time. Lessig, for example, talks of the need for new laws to stop what he calls "dependence corruption," in which the system is corrupted by politicians dependent upon the funders rather than dependent upon the people alone.
It's hard for reformers to avoid the corruption talk. To begin with, corruption resonates with the public. A poll commissioned by Represent Us found support for reform go up from 60 percent to 72 percent when a campaign finance bill is framed in terms of an anti-corruption measure.
Using the term "corruption" broadly, it can mean anything from a deviation from a perfect state of nature. But there's another stronger reason why in the election reform business there's all this talk about corruption. And it's a reason that has distorted our thinking about money and politics for 40 years. And that reason is the Supreme Court.
In 1976, the Supreme Court decided a case called Buckley v Valeo, upholding some parts of a 1974 federal campaign law and striking down others. Buckley held that campaign finance limits complied with the United States First Amendment's guarantee of freedom of speech and association only if they could be justified to prevent corruption or the appearance of corruption. The court rejected the idea that the government could limit money in politics to promote political equality. The court said this idea that you could level the playing field is wholly foreign to the First Amendment.
This singular focus on corruption explains the Supreme Court's constantly shifting approach to the constitutionality of campaign finance laws. Liberal justices read the term "corruption" broadly, and votes to uphold most limits. Conservatives read the term very narrowly, and vote to strike down most limits. Think of the era of skepticism we're in right now. That's why a host of reformers and academics try to shoehorn a variety of reasons to limit money in politics under the label of corruption.
Justice Anthony Kennedy, writing in the 2010 Citizens United vs. Federal Election Commission opinion, explained that when large donors and spenders ingratiate themselves with elected officials to secure access to them, that is simply not corruption. Ingratiation and access, he told us, or the appearance of ingratiation and access, cannot corrupt or cause the public to lose faith in their confidence in elected officials.
Citizens United, a 5-4 decision, pitting the court's conservatives against its liberals, opened up a new era of corporate union spending in elections, and fueled the emergence of super PACs and other outside spending groups.
In a case decided in 2014, McCutcheon v Federal Election Commission, Chief Justice John Roberts went even further, celebrating the idea that politicians should respond to the wishes of big donors and spenders. Not only are ingratiation and access not corruption, Roberts told us, donors, quote, "embody a central feature of democracy, that constituents support candidates who share their beliefs and interests, and candidates who are elected can be expected to be responsive to those concerns. In a democracy," Roberts tells us, "we should want politicians to be responsive to big donors."
The new era of Citizens United is not full of corrupt politicians taking bribes, or of elections going to the highest bidder. To claim that that's so puts the public's spotlight in the wrong place, looking for elected officials taking large amounts of money for private gain. The more central problem in politics is something just as troubling just as troubling, but much harder to see, a system in which economic inequalities inevitable in a free-market economy are transformed into political inequalities that effect both electoral and legislative outcomes. Without a politician taking a single bribe, wealth has an increasingly disproportionate influence on our elections.
While we could call this a problem of corruption, this stretches the meaning of the word too far, at least too far for the current Supreme Court. And it obscures the fundamental unfairness of a political system moving towards plutocracy. The political power of the wealthy is especially troubling in our current period of rising economic inequality when those with the greatest economic clout can use their increased political power to protect their economic position.
Most of the important money in politics action happens not in the glare of television camera at the Venetian in Las Vegas, but at steak houses and on golf courses all around Washington, where lobbyists, often former senators, members or congress, or staffers, do their ingratiation and secure their access. There's a reason that big business pays lobbyists so well, and it's not that lobbyists are information specialists who help create sound public policy. Lobbyists secure access, both by bundling campaign contributions and using personal connections. It should be no surprise that half of retiring senators become lobbyists, many with seven-figure salaries, and lobbyists who used to work for a U.S. senator see their income fall by nearly a quarter when that senator retires from congress.
Money works especially well in the shadows. Lobbyists, like mushrooms, thrive in low light. The New York Times recently reported how lobbyists for Wall Street and gaming interest convinced Senator Harry Reid to add 54 words to a must-pass 2,000-page omnibus spending bill. Those 54 words, buried in the bill, saved the lobbyist's clients one billion dollars in taxes. The company of one of Reid's top donors admitted to being among those involved in the discussion with congressional staff members.
Money could not stop the passage of the Dodd-Frank bill, which regulated the securities industry against the industry's wishes. Public outrage over the financial crisis in 2008 was just too great to overcome. But once public attention faded, moneyed interests could work their magic, using influence to water down implementing legislation, and stall or stopping much of what Dodd-Frank promised to achieve.
In the new era of super PACs and non-disclosing social welfare groups spending millions of dollars on elections, it's no longer just the access that matters. Money's potentiality is sometimes enough to cause a skew. Just the threat of large money being spent against an elected official seems enough to get that official to shift priorities, a point that former senators, although not current ones, publicly acknowledge.
The result is that money systematically skew public policy even when it doesn't buy elections. As professor Martin Gilens of Princeton and Benjamin Page of George Washington University recently demonstrated, public policy across a wide range of issues regularly skews towards the interests of the wealthy and well-organized and against the poor and the disorganized. With the new wave of campaign finance regulation giving the wealthy even more chances to leverage their influence, there's every reason to believe this trend will continue.
Well, just how concentrated is the wealth funding our elections? A recent New York Times study by Nick Confessore noted that there are about 120 million households in the United States, but a mere 158 households contributed nearly half the money to the 2016 presidential election. And these 1-percenters of 1-percenters who are bankrolling elections are not just like the rest of us. A study by Page, Bartels, and Seawright found that the 1-percent are not only much better connected than the rest of us, with many reporting personally contacting their senators and representatives, their views are much different than most Americans. The wealthy are much less likely than the rest of us to support higher taxes on the rich, what a surprise, a decent social security safety net, and a minimum wage which is high enough to keep people out of poverty.
In the electoral realm, money matters even when it does not dictate outcomes. As we've seen, Newt Gingrich got a second and third and fourth shot at the presidential nomination, not because that's what most republican voters wanted, but that's because that's what Sheldon Adelson wanted. Meg Whitman got her chance to convince Californians that she'd be a better governor than Jerry Brown not only because she ... Only because she had millions of dollars to burn on her campaign. Not doubt, thousands of others were equally convinced they would be good governors, but did not have $140 million to buy that chance. And just to add a headline today, Jeb Bush getting a second chance, right? If he would've been running based on his own campaign, he would've been out already. He wouldn't have had enough money to keep going even until now. But with $110 million super PAC behind him, he's getting more chances to make his case.
Further, while advertising alone does not necessarily sway voters who are engaged and have strong political opinions, in a close election it could sway enough swing voters, generally the least informed and most easily-persuadable voters, to affect the outcome. Lessig is exactly right that politicians depend on the funders, not only the people, for their jobs. There's a recent political scientist who referred to the money primary, which occurs before the actual primaries. This race is a concern, though, not about corruption, but about wealthy donors' disproportionate influence over elections and policy.
Why not simply limit money in politics to promote a level playing field? Leveling the ability to contribute and spend money on politics would not create perfect equality in political power, and we wouldn't want a perfect equality even if we could get it, but it would be a reasonable step in that direction. Yet depending on how society writes and implements such laws, they could have profoundly bad effects, censoring political activity, entrenching incumbents, or giving special treatment to the media. These are not trivial concerns, and any argument to limit money in politics has to seriously grapple with them.
Courts deal with them when opponents of regulation challenge the laws as violating the first amendment, and particularly that part of the first amendment which provides that congress shall pass no law abridging the freedom of speech. Those words are not self-defining, and ever since Buckley, the court has vacillated over how to apply them in the campaign finance context. In the past, it's sometimes upheld corporate money on essentially political equality grounds, although dressed up as anti-corruption arguments. These days, with the conservative majority on the Supreme Court, the Court over the strenuous objection of the liberal justices has embraced the first amendment attack on campaign finance.
The first amendment critique is serious, yet many democrats ignore it. In 2014, 43 democratic senators co-sponsored a proposed constitutional amendment to quote "overturn Citizens United." The amendment's text raised concerns about free speech and political competition that democrats dismissed without serious response.
Mostly, democrats pay lip service to campaign finance reform. The former Senate Majority Leader Harry Reid has repeatedly attacked the libertarian Koch brothers and their network of supporters for funneling hundreds of millions of dollars into federal, state and local elections, much of it without disclosure of their donors. Reid has claimed that republicans are addicted to Koch, and there is merit to his claim that republicans increasingly depend on large donors for their campaigns. If you thought that Adelson's 100 million or Steyer's 74 million was a lot, the Koch brothers and their network of 40 are pledging to spend just under 900 million on the 2016 elections. So there's much to be concerned about.
But Reid is a Koch addict too. He uses the brothers as a political foil to raise funds for democrats. In any case, democrats, too, are increasingly dependent on large money, and money skews their priorities as well. The party has done a great job protecting the interests of Wall Street. Although democrats in office tend to rail against Citizens United and the Supreme Court, some democratic lawyers and politicos are secretly ecstatic about the brave new world of campaign finance the Supreme Court is creating. In the close 2014 race for control of the US senate, democratic-leaning super PACs outspent their republican counterparts. It was democrats in 2014 who engineered a congressional deal to vastly increase the amount of money that people could contribute to political parties.
President Obama has been the master of hypocrisy, castigating the Supreme Court for opening up the floodgates of money, but undermining the public finance system for presidential campaigns. He was the first candidate to decline public money in the general election, perhaps a reasonable choice at the time given the inevitability of the program's decline, but he reneged on his promise to propose a fix for the system. Indeed, he became the first president to transform his presidential campaign committee into a social welfare organization that can take unlimited and secret donations to support his agenda. His organization, now called Organizing for America, is voluntarily disclosing the names of donors giving at least $250. Don't expect the next president to do the same.
While democrats try to have it both ways on campaign finance, republicans have united behind a deregulatory agenda. The John McCains of the party, who used to be the leaders supporting bipartisan campaign finance reform, have gone silent, while the Mitch McConnells have long fought limits ... While the Mitch McConnells, who have long fought limits but called for full and easy disclosure of donors' identities now fight against the very disclosure laws they used to support.
As with many other issues these days, the debate lacks nuance. Even on the merits, it's been hampered by the Supreme Court's insistence that any justification for limits be phrased in anti-corruption terms, and the willingness of activists of scholars to go along with the unhelpful framing. We have to consider the potential for campaign finance laws to preserve and promote political equality. First Amendment critics are right that limiting money in elections raises the risk of censorship, incumbency protection, and preferential treatment of the media. The difficult but essential task is to develop a plan that both protects robust political speech in elections and guards against the rise of a plutocratic class, which has too much influence over both the outcome of elections and what elected officials do once they're in office. Promoting political equality is a compelling interest that can justify measures that do not squelch too much political speech or inhibit too much political competition.
So let's start by putting campaign finance vouchers into the hands of all voters to fund and democratize our elections. A voucher plus limits program would give each voter $100 in campaign finance vouchers per 2-year election cycle to donate to candidates, parties, and interest groups, such as the Sierra Club, or the NRA, or Planned Parenthood, who are playing in federal elections. Vouchers give everyone a better stake and say in elections, helping to ensure that campaign funding reflects actual public support.
I'd couple the vouchers with a limit. No individual could contribute or spend more than $25,000 total in any single election, or $500,000 in a two-year election cycle for all federal elections. Other rules would limit the campaign finance activities of lobbyists. For most people, I suspect most people in this room, a $25,000 contribution limit would be no impediment at all. Well over 99 percent of the population cannot afford to exceed these limits, but such limits stop the Adelsons, the Kochs, the Steyers, and the McCutcheons of the world from spending all they want on political speech.
Why isn't this unconstitutional censorship in violation of the first amendment under Buckley and Citizens United?
So I want to turn to another story to make the case that it is not censorship. And it starts with a guy named Benjamin Bluman. Benjamin Bluman hardly seemed like a threat to American democracy, but in a lawsuit he filed with another plaintiff in 2011, Bluman v Federal Election Commission, he could've helped to allow the Chinese government, a large Russian corporation, or Mexican billionaires to spend millions of dollars to get someone sympathetic to their interests elected to congress, a governorship, or the presidency. Bluman is a Canadian citizen who went to law school in the United States on a student visa, and then he worked as an associate at a New York law firm on a temporary work visa.
In 2011, he wanted to contribute to three democratic candidates, including president Obama, to print fliers supporting Obama's reelection bid, and to distribute the fliers in Central Park. These days, he's a lawyer working in Vancouver. Under federal laws limiting the campaign finance activity of foreign individuals, corporations, and governments, Bluman could not spend money or contribute in the US elections. Congress had tightened those rules after finding evidence that foreign individuals in the Chinese government had made donations to political parties in the 1996 campaign. Under current law, only foreign individuals with current residency status have the same rights as citizens to contribute to candidates or to spend money in US elections.
The Bluman lawsuit, asking permission to engage in the spending, was the brainchild of Yaakov Roth, a Canadian lawyer and Harvard Law School classmate of Bluman's who had clerked for supreme court justice Antonin Scalia and who went to work at Jones Day, a top Washington law firm. The suit followed both the playbook and the legal reasoning of the Supreme Court's 2010 Citizens United case, but without the same success. The playbook, find a sympathetic, small-potatoes plaintiff to mount a first amendment challenge to a major federal campaign law. A challenge which if successful would open the door for much bigger actors. Bluman told the press, quote, "It seems nonsensical to me that I am allowed to go to Central Park and tell every person I know that I think they should vote for Obama, but if I go to Kinkos and I spend 50 cents to print out on a piece of paper the words 'vote Obama' and I show that piece of paper to one American, I've committed a federal crime punishable by up to $10,000 or five years in prison."
Of course, campaign reformers weren't really concerned about Benjamin Bluman and his fifty cents of flyers at Kinkos. They were worried that if he had won his case, it would allow outside forces to spend millions of dollars to tilt the results of U.S. elections. With so much at stake, one didn't have to be a xenophobe to distrust foreign influence over U.S. elections.
The suit argued that under Citizens United, spending money on ads independently of candidates cannot corrupt or cause the appearance of corruption. That's what Justice Kennedy told us. And that the government, therefore, could not limit such spending. But Bluman failed a three-judge federal district court in Washington DC, and an opinion by a court of appeals judge and likely republican Supreme Court shortlister Bret Cavanaugh rejected the plaintiff's arguments and upheld the foreign ban. The case went to the Supreme Court under an obscure statutory provision that made it very likely the court would hear the case, but the justices did not bite. Without argument or discussion, the court simply affirmed the lower court ruling, and here you can see the entire ruling or the Supreme Court.
Leading first amendment zealots surprisingly do not disagree with Bluman's total ban on campaign money. Floyd Abrams, the country's leading campaign ... Leading first amendment lawyer, who stood here a few months ago and defended his actions, has been an admirable defender of unpopular speakers and causes. Yet when I debated him at the University of Michigan Law School in March 2012, I asked him his view on Benjamin Bluman, and the ban on foreign money in elections. Why limit Bluman's spending on campaigns if the Supreme Court was right in Citizens United that the identity of the speaker doesn't matter?
Abrams' response was unconvincing. He said, that "foreign influence is different than American influence. Maybe it's question begging to say it, but I think that different considerations come into play when you're talking about whether we choose as a nation to allow foreign nations to play a role in our elections."
Bradley Smith is also a strident free speech supporter whose book Unfree Speech is perhaps the most influential book-length argument against campaign finance regulation. Despite his agitation for campaign finance deregulation, Smith was not at all bothered by the absolute ban on Benjamin Bluman passing out his cheap fliers in Central Park. After the Supreme Court upheld the ban without even issuing an opinion, Smith wrote on his center's website that well-known Lockean principles about the nature of political communities suggest that different rules might apply to persons who are not members of that political community, persons who are mere temporary residents.
Smith thus supports the government's ability to strip a human being, Benjamin Bluman, of the right to spend a penny to support a federal candidate based on a judgment made by self-interested legislators that Bluman is not sufficiently a member of the political community to have a right to speak about American elections. But Smith derides as censorship and incumbency protection a federal law that limits but does not fully deny the ability of non-human corporations to spend money in federal elections. Corporations, legal fictions that exist only by grace of the state, are entitled to infinitely more political speech, as Smith defines it, than an actual human being living in New York. Self-interested legislatures can decide that different rules might apply to foreign individuals, but in Smith's view they cannot make the same judgment about artificial entities such as corporations endowed by their creator with nothing like a human spirit.
The Indiana attorney Jim Bopp has probably filed more lawsuits against campaign finance laws than anyone els in the United States. He was the brains behind Citizens United and many other challenges to campaign finance limits and disclosure laws. A strong opponent of abortion and same-sex marriage, Bopp is one of those "no law means no law" first amendment absolutists when it comes to campaign finance, with one exception. When the Supreme Court summarily affirmed the Bluman case, Bopp defended it. It's perfectly consistent for the Supreme Court to hold that there's no compelling interest in prohibiting corporate and labor union speech, but there is a compelling interest in prohibiting foreign spending, foreign interests from contributing to candidates in US elections.
I, for one, agree that the red Chinese army, the Iranian government, and Hamas can be prohibited from contributing. What's most ironic about Bopp's comments is that they support the foreign money ban even though the ban arguable is not, to use a first amendment phrase, viewpoint-neutral. Bopp wants to shut up Hamas, the Chinese army, and the Iranian government, presumably because of what they're going to say, and where they might spend their money.
So let's stop talking about censorship and start talking about what we all agree, that there need to be some sensible limits on money in campaigns. It's all a question of which limits make the most sense.
So, preferential treatment of the press remains the hardest part of my argument. Why limit what Google or Warren Buffett, or the AFL-CIO can spend, but not the New York Times or Fox News? The question of how to treat the media is, for the reform community what the foreign money question is for the deregulations community. Say there should be an exception and you run the risk of inconsistency or outright hypocrisy. Say that there should not be an exception, and you're considered too extreme.
I learned this lesson first-hand when I wrote an article for the Texas Law Review in 1999 called "Campaign Finance Laws and the Rupert Murdoch Problem." For short, I sometimes call this article the reason I will never get a federal judgeship. In this article, I argue that if we ever move to a system of accepting political equality as a rationale for campaign finance regulation, then any newspaper wanting to endorse or oppose a candidate on its editorial page should have to pay for that, form a PAC, and do it in the same way that anyone else who wants that space. Since then, I've changed my position for reasons I will explain.
The article was not well-received. First Amendment scholar Scott Poe wrote a law review article entitled, "Boiling Blood." When I presented the paper at a meeting of the American Political Science Association, my mentor, my mentor, Daniel Lowenstein of UCLA, half-jokingly described it as Stalinist. When the senate was debating the McCain-Feingold campaign finance laws, senator McConnell placed into the record a national journal article by Stuart Taylor Jr. criticizing my article. McConnell introduced it by saying that Taylor cautions the media to reconsider its hypocrisy in so zealously attacking the first amendment freedom of every other participant in the political process. Even an eminent first amendment scholar who privately told me I was right to reject the media exemption for endorsements of candidates as a matter of principle would not say so publicly.
So the media question is difficult, and most reformers simply ignore it, or quickly gloss over it. It's the third rail of campaign finance for a reason. Everyone from ardent reformers to strict deregulationists values the free press. On the other hand, the media are very powerful. How can a campaign finance system rein in the most powerful individuals and groups but leave Rupert Murdoch and the New York Times, Comcast, NBCUniversal, untouched?
This was the point Floyd Abrams pivoted to when I pushed him on the foreign money point. Further, if you believe, as many conservatives do, that there's a liberal media bias, then stopping everyone but the press from speaking is going to skew the debate towards left-leaning candidate. Finally, exempting old media but not new media, sometimes referred to as the mainstream media, could benefit the establishment. It also raises difficult questions of how do we define the media in the modern age?
In the end, though, press exceptionalism makes sense. It's a cliché, but still correct, to refer to the press as the fourth branch of government, providing an important checking function on the workings of actual government. Remember, it was two Washington Post reporters who broke the story of Watergate. Newspapers have delved perceptively and carefully into many scandals involving government officials. Freedom of the press remains sacrosanct, for a good reason, in American politics.
The press deserves special constitutional protection because it serves educational and investigative functions in a more thorough and consistent way than other political actors. Further, with the rise of the internet and social media, claims of liberal bias or an inability to receive multiple points of view through the press appear increasingly untrue. So we should read the explicit mention of protection for the press in the first amendment as embracing special protections for the media.
Not all constitutional scholars agree. Professors Eugene Volokh and Michael McConnell have made arguments that the original intent of the constitutional protection for the press was to protect the technology of the printing press and not to protect the profession of journalism. McConnell says the reason the Supreme Court was right in Citizens United was because everyone should get the press exemption, because we are all the press when we spend money on elections.
Now, whether or not Volokh and McConnell have accurately captured the framers' original intent, and there's some reason to believe they have not, saying we are all the press is to say that no one is the press. The end of press exceptionalism would have terrible repercussions, potentially eliminating press shield laws and media access to police investigations. It is this part of Citizens United that bothers even Floyd Abrams.
When the Supreme Court recently revamped its media policy to deal with the controversy over the indispensable website SCOTUSblog, it was able to craft a test distinguishing the press from everyone else, even in the era of social media. If the court could do it for its own purposes, it certainly could define the press for constitutional purposes as well.
So concerns about censorship and preferential press treatment do not do in the equality case for campaign finance reform. It's a careful balancing act, but vouchers plus limits is both constitutionally defensible and central to our fair elections, as central as the one person, one vote principle, which says that no eligible voter should have more voting power than another. The $25,000 individual limit is a big compromise on political equality. It still gives one person much more power than someone who can't afford to spend the $25,000. But generous limits help promote robust political speech and provide multiple paths for competitive elections and challenging incumbents.
So, how can we move beyond the corruption focus, and towards acceptance of political equality to limit money in politics, given the Supreme Court and political gridlock? A constitutional amendment to overturn Citizens United is the most prominent wrong way to fix the problem, even if its supporters were not largely engaged in political theater. Such an amendment likely would be too damaging to robust political speech or too full of holes to be effective. Consider the democrats' proposed constitutional amendment, which at first protected the press when congress regulated campaign finance, but not when the states would. Or consider the move to amend the proposed amendment, which would deprive all corporations of all constitutional rights, including, apparently, the New York Times. It could be shut down by New York State. No press exemption.
When the democrats were pressed on free speech issues in the U.S. senate, they amended their amendment to allow only reasonable restrictions on money in politics, a rule which would put the issue right back before the same supreme court that decided Citizens United. Nor should progressives simply give up on reform out of a belief that the role of money in politics is not so bad. Instead, the answer to the problem of money in politics is political change. It turns out it's much easier to amend the U.S. Constitution by changing the composition of the Supreme Court than it is to pass a constitutional amendment.
For the last two decades, all of the important campaign finance cases the Supreme Court has decided have been 5-4, either to uphold limits in an earlier period, or to strike them down. We need a Supreme Court that will accept political equality as a compelling interest that justifies reasonable regulations, and to build a jurisprudence necessary for a new progressive Supreme Court. That court cannot come until the retirement of four older justices currently sitting on it, which would open up the potential for a new progressive majority.
The 2016 elections present the chance for this change. When the next president of the United States assumes office on January 20, 2017, Ruth Bader Ginsberg will be nearly 84, justices Antonin Scalia and Anthony Kennedy will be over 80, and justice Stephen Breyer will be 78. Although many justices have served on the court in their 80s and beyond, the chances of all of these justices remaining through the next four to eight years of the 45th president's term are slim. In fact, the next president will likely make multiple appointments to the Supreme Court.
What happens when the next justices come on the court? My project is about trying to show these new justices that the time has come to rethink the last 40 years, and to accept political equality as a reason for limiting money in elections, so long as it can be shown that a program such as generous campaign spending limits coupled with public financing, like through the voucher plan, can amply protect first amendment rights and political competition.
So we need to move beyond a partisan world in which Chris Christie bows before Sheldon Adelson, and in which democrats propose feudal amendments to overturn Citizens United while engaging in the same fundraising practices as republicans. We should think about these issues before American democracy is too far skewed towards the interests of the wealthy in the hope that some future Supreme Court will prove willing to accept reasonable limits on money in politics. Only a focus on America's tradition of political equality can resolve the inevitable tension between our free economic markets and voter equality. Otherwise, the plutocrats stand to gain ever-greater influence over our democracy.
Thank you very much.
[EC]: I want to thank Rick for inviting me to give a few minutes of commentary on the book. It is a terrific book. I had the chance to read it in draft, and then reread it this weekend. It's beautifully written. As you can tell, it's on a topic of enormous importance and Rick makes persuasive, compelling arguments for change.
Now, I assume that when Rick asked me to do a few minutes of commentary, it wasn't simply to praise the book in those few minutes-
[RH]: No, it was. It was.
[EC]: So thought that I would raise a few points where I differ with Rick.
The first is the question of whether spending money in election campaigns is speech. Rick mentioned the case of Buckley v Valeo. That 1976 decision is where the Supreme Court held that spending money in election campaigns, whether by contributions or independent expenditures, is speech. Justice Stevens always disagreed with that. Justice Stevens took the position that spending money is a form of conduct that communicates a message, but it's not itself speech. In fact, that was also the position of District of Columbia circuit judge J. Skelly Wright in Buckley v Valeo being reversed by the Supreme Court.
Rick expressly agrees with those who believe that spending money should be regarded as speech, because says it facilitates speech, and he says he doesn't think it would matter very much if we were to conclude that spending money isn't speech. He says, for example, on the bottom of page 21 of his book, "I find the debate over that money equals speech unedifying and unhelpful. I suppose the logic of this argument means the first amendment should not apply at all to campaign finance laws. He says, although money is not speech, money facilitates speech, and therefore laws limiting money in politics brings first amendment concerns." He writes, in short, whether or not money is speech is beside the point.
I think I disagree with him on this. The fact that money may facilitate speech does not mean that spending money in election campaigns is itself speech. Many things facilitate speech. Education facilitates speech. But the Supreme Court has been clear that there's no right to education under the Constitution. Spray paint facilitates speech, and yet every local ordinance to regulate spray paint has been upheld. I know there's an expression, "money talks," but I think by saying money is speech, we're taking that figurative expression all too literally. That something facilitates something else doesn't make it that something else.
And I disagree with Rick that this is unedifying and unhelpful. In constitutional law, conduct that communicates is treated differently than what we think of as pure speech. The government is given much more latitude to regulate conduct that communicates than speech. To put this in formal language of constitutional law, conduct that communicates can be regulated if the government meets in immediate scrutiny its action as substantial, related, and important government purpose, whereas pure speech, and this is what Buckley says spending money is all about, has to meet strict scrutiny, necessary to achieve a compelling purpose.
For those who haven't studied constitutional law recently, this might sound like a lot of words, but in practical reality, the government has much more latitude to regulate when it's the lower standard of review, in immediate scrutiny, rather than the strict scrutiny of Buckley v Valeo and Citizens United. So I think by conceding that spending money is speech, Rick makes his argument much more difficult, and I disagree with him here.
A second question that I ask about Rick's book is whether corporations should have the same speech rights as individuals. The thesis of Rick's book is that the Supreme Court has said that the government can regulate campaign spending only to prevent corruption or the appearance of corruption. The government should also be able to regulate campaign spending so as to equalize influence. And Rick largely treats spending by corporations and spending by rich people like the Koch brothers the same.
I think I would disagree here, and I think that corporations can be treated differently than individuals. Now, I think that this is important for many reasons, because I think it would then provide a basis for regulating corporate spending even if regulating spending by individuals is much more difficult.
The Supreme Court first held that corporations have speech rights in a case called First National Bank of Boston v Bellotti. This is a case that Rick discusses. This was about a Massachusetts law that prevented corporations from spending money with regard to ballot initiatives. The Supreme Court there said, "We allow corporations to claim free speech protection, because the more speech that exists, the better informed people will be." In fact, Justice Kennedy's opinion in Citizens United picks up this rationale saying corporations have speech rights because the more expression in the marketplace of ideas, the better the goals of the first amendment will be served.
Notice, then, corporations have speech rights entirely for instrumental reasons, facilitating all of us being informed. That's very different from individuals, where the court has said there's a speech right because of the autonomy interest that people have in expressing themselves. Corporations, as Rick said just a little bit ago, are fictional entities. They don't have any kind of autonomy interest.
But if we protect corporation speech rights only to the extent that serves the marketplace of ideas, then if corporate spending distorts the marketplace of ideas, there's a basis for restricting it. So I think Rick's argument that equality should be a basis for campaign finance regulation is enhanced by focusing on how corporations are different from individuals. One reason I think this is important is that one of the strongest arguments against Rick's position is that we shouldn't restrict the speech of some to enhance the voice of others. This in fact is an argument that Justice Kennedy makes in Citizens United as to why we can't limit the speech of corporations because it's wrong to limit the expression of some to enhance the effectiveness of the voice of others. But I think the response to that could be, well, we only allow corporations to have speech rights at all to the extent that it assists the marketplace of ideas. If it distorts the marketplace of ideas, then there's a basis for restriction.
The third, final question that I'd raise is, what else might government do in order to be able to effectively deal with the problem of money in politics? Rick does a brilliant job in his book of showing the problem of money in politics. He described much of that in his presentation this afternoon. He proposes vouchers and limits. I think vouchers are a great idea. I think the problem with limits, at least when it comes to expenditures, is it's unconstitutional. That I think under Buckley v Valeo, under Citizens United, any attempt to limit independent expenditures, no matter what it's tied to, is likely regarded as unconstitutional.
So Rick's solution is, what we need to do is to change the composition of the court. Let me wholeheartedly agree with that. And I believe, as Rick has suggested, that whoever's the president elected in November of 2016 is likely to have four vacancies to fill on the court, especially if he or she serves for two terms. As Rick points out, there will be four justices 80 years old or older in the year 2017. I would add to what he said, the average retirement age for a Supreme Court justice since 1960 is 79 years old. Especially if you imagine the next president serves for two terms, he or she will have four vacancies on the court, and I believe that if it's a democrat replacing justice Scalia and Kennedy, along with justice Ginsberg and Breyer, there will be a majority to overrule Citizens United. But if it's a republican president, who's replacing justices Ginsberg and Breyer along with Scalia and Kennedy, then Citizens United, Buckley v Valeo, are going to be here for a long time.
So what I wish Rick focused on even more in this brilliant book is what else might be done, especially if the composition of the court doesn't change or what even if it does, the court's not inclined to overrule Buckley and Citizens United? And there's possibilities that might be explored. One that Rick talks about some is stricter disclosure laws. In fact, what we often forget is that in Citizens United, the Supreme Court 8-1 upheld the disclosure requirements with the bipartisan Campaign Finance Reform Act. There was a proposal not long after Citizens United, the so-called Disclose Act in congress, that passed the house of representatives. It died in the senate because of a republican filibuster. Stricter disclosure laws can be adopted not just by congress at the federal level, but by state and local governments for state and local elections.
But there's lots of other things that might be explored as well. I've often thought that each level of government could adopt a law that prevents those who contract with that level of money, government, from spending money for elections for that level of government. So any contractor with the federal government would be prohibited from expending money with regard to federal elections. Any contractor with state governments could be prohibited by state law from expending money with regard to state elections. My analogy here is a federal statute, the Hatch Act. The Hatch Act says that federal civil service employees cannot engage in partisan political activities. The Supreme Court has expressly upheld that as constitutional. That is a content-based restriction of political speech of government employees. If that's permissible, then why couldn't you analogize and say that it's permissible to restrict the campaign expenditures of those who enter into contracts with the government?
Another idea would be much stricter requirements for consent of shareholders in order for corporations to spend money in election campaigns. The Supreme Court, in recent cases in the labor area, have required much greater consent from non-union members for their money to be used in political activities. In Knox v SEIU, for example, the Supreme Court says that non-union members must affirmatively consent to have their money spent, at least with regard to special assessments, it's not enough for them to just opt out. Well, if we're going to say that non-union members have the right to have affirmative consent for their money, why not shareholder consent? Why couldn't congress impose a requirement for shareholder consent as part of amending the federal securities law? It's a harder argument, but why couldn't states say, at least for corporations that are incorporated in the state, maybe even corporations doing business in the state, they would need to have shareholder consent? Such requirements for shareholder consent, like such requirements for consent by non-union members, would likely limit corporate expenditures, as they do for unions, and therefore I think that it would have the kind of effect that Rick wants.
Now, I mention things like disclosure in analogy to a Hatch Act, shareholder consent, as examples. I agree completely with Rick that the effort to amend the constitution to overturn Citizens United is futile. It is inconceivable that there will be 2/3 of both houses of congress and 3/4 of the states to passing a constitutional amendment to do this. So I've been distressed to watch progressive groups that I'm usually aligned with, like Common Cause or People for the American Way, devote most of their efforts to an amendment that's going to get absolutely nowhere. But if that's not the course, what is the approach? Rick gives us a path, vouchers plus limits. I wish he would have pursued other paths as well.
Now, having raised these three questions, I want to be clear. They're all about a book that I tremendously admire, and I urge you to go out and buy the book and read it and tell your friends all about it, because it is an enormous contribution to the literature about politics and elections in our country. Terrific book.
[RH]: Thanks, Erwin. I should've reserved five minutes for a rebuttal, but ... Let me make a couple of points, and then if there are any questions or comments, I hope we have a few minutes for that, and then I think is there a reception outside? Yes? No? Yes. Okay. Getting the thumbs up.
So just a few reactions. One is on the question of whether money is speech, and why I say this is an unhelpful discussion. I think all of us would agree, whether or not money is speech, that if a state came in and said, "It's illegal for democrats or republicans to spend money to try and get elected in the state of California," we'd all find that unconstitutional. Whether we call money speech or not, that implicates the first amendment. And so, you know, it's true that if you can call it conduct you might be able to convince a court to apply a different level of scrutiny, but I think in essence, engaging in a political activity through spending is a kind of activity that we would want the first amendment to protect. We don't want laws that are going to make it too hard for people to engage in competition, and so my book is about trying to achieve that balance.
And on the question of limiting corporations, I would like to point out that when Sheldon Adelson spent his money, or Tom Steyer, or the Koch brothers, they all own lots of corporations, but they're spending their private funds. If tomorrow justice Kennedy woke up, had something different for breakfast, and decided, "You know what? I don't like Citizen United anymore!" And reversed it, we'd have exactly the same problems we still have. Almost all of the money that's going to super PACs has been coming from wealthy individuals, not from corporations, so changing a corporation would not be enough.
Now, we're starting to see some really interesting things in super PACs, like super PACs getting donations from LLCs that are created just apparently to make contributions. And money's going into 501(c)(4) and (c)(6) organizations and there's no disclosure. So there may be corporate money coming in. There may even be foreign money coming in that we're not seeing. But so far the problem has been one of individuals, so I'm afraid that working on corporate shareholder permission and those things would not be enough. Wouldn't stop any of the abuses that we've seen so far.
And in terms of what else can be done, I just want to underline one point, which is that the voucher part that I propose would need a constitutional amendment, would not need the supreme court to overturn anything. So tomorrow if congress had the political will, we could pass a voucher plan. Congress does not have the political will, but you know where they did? In Seattle. Seattle voters passed an initiative; they passed the country's first voucher plan last November. We're going to watch how it goes.
I'd love to see, if any of you have $2 million, I'd love to get that on the ballot in California. We could vote on it. Let's start small, let's show that those kinds of things can be successful, kind of empowering the people. And I actually think it's help our polarized politics, because who gives to campaigns now? The people who get the, Ted Cruz or Elizabeth Warren, they get the mail, the red meat, "I hate the other side." If everybody had the money, even the people in the moderate middle, and we all had $100 to give to politics, maybe our politics would actually moderate and we could get more things done. And maybe we could swamp the outside money. So there is another path leveling up without leveling down. I think doing both is the best way to level. But leveling up would be a lot better than what we have.
So thank you Erwin. And let me just open it up and see if there are any questions or comments. Yeah.
[Question 1]: So you pointed out that with Citizens United, the truth is that it's mostly wealthy donors who could be giving anyway. The hanging chads, you know, there were probably boxes of ballots that had fallen into the East River before we had ever heard about a hanging chad, but we became cynical about the system. Now the Iowa caucus, what an embarrassment. So I'm just saying, how much, and even with vouchers, I'm immediately imagining that if people got a voucher somebody would pay them pennies on the dollar to have access to their voucher, and they'd pocket the cash and go to Las Vegas. So how ... Part of this is sort of, how as a society we function. And where do you see where we are with the wealthy influencing politics as really a reflection of where we are as a society? And we talk about it in political terms, but it has implications across every aspect of our national life. So I'm just curious.
[RH]: Yeah. Well, I'm always glad to have someone more cynical than I am in the audience so I look ... I don't know ... You know, I don't know about hanging chads going in the East River. I do know that we've had elections that have been stolen in the past. I think because we pay a lot of attention to our elections now, that they're actually a lot more honest, and because we pay attention to how we count the votes, things have improved.
I think that there's room for improvement. Now, you talk about vouchers and people buying them illegally. I'm imagining an app on the smartphone where you would have to send it to the democratic party, you send it to the libertarians, you send it to the National Rifle Association, you send it to Scott Walker, you can do it that way. It's possible that there could be fraud in this system. I talk about it in the book.
But we have fraud in our current system. You would be amazed if you actually looked into how many campaign consultants, attorneys, accountants have gone to jail for stealing money. We had someone who stole millions of dollars from Diane Feinstein and others under the current system. So no system is fraud-proof. But I do think that we could build in safeguards.
Now, there's a different objection, which I don't think is exactly your point, but ... So imagine I set up one of these groups and I used 90 percent of the money ... You know, it's Americans for Safe America or Environment, you know whatever you ... What was the Stephen Colbert, Americans for a Better Tomorrow Tomorrow? And I keep 90 percent of the money for myself as a consultant fee. Right? So there's that kind of problem, and you know, we see that today too. I got a call from a reporter the other day about, they're calling them now "scam PACs". People raise money, they say "oh look," they put Ben Carson's picture on it, Ben Carson has nothing to do with it, but he doesn't object, and all this money comes in. So we already have these problems, and there are better ways to police that, and you could do audits and put caps on that. But if we're down to the level where we're arguing about implementation, I won the battle. We need to get there.
Yeah.
[Question 2]: So I understand that the overall argument of the book is big home run, overturn Buckley and Valeo and get the political equality thing working again. But in the current post-Citizens United world, I continue to be confused and surprised that so little is done with appearance of corruption rationale, as opposed to the actual corruption rationale. Actual corruption quid pro quo, it's so narrow we can't actually motivate stuff. But, I mean, you got laugh lines, and everybody gets laugh lines out of that decision where the court says, "Oh, ingratiation and access, that couldn't possibly make anybody think that the process is corrupt." And I take that laughter to be evidence that that's not true, and it seems to me that there is a standpoint from which the act, in service of the appearance of corruption rationale on which we could actually do things. Maybe some of the smaller ball things that Erwin was talking about. Why isn't or hasn't that-
[RH]: Alright. So I'm going to agree with you and disagree with you. So I'm going to agree with you that appearance of corruption is a very tempting target, and if we get a Supreme Court filled with five Elena Kagans, right, this is my fantasy, right? They're all smart, liberal justices who are going to do the right thing, and I should say when Elena Kagan was a law professor she wrote an article very critical of the case that upheld corporate spending limits. She's not a pushover on these issues. She wants to think very close about it. But I think if we get a Supreme Court that overturns Citizens United, or even thinks about overturning Buckley, it'll be on appearance of corruption. That's what they'll say.
And so it's very appealing to do it that way. My view is it's a cop-out. And the reason is there's very good empirical work that shows that campaign finance laws and public perceptions have nothing in common. That is, if you look at states that have strict campaign finance laws, and you look at states that have loose campaign finance laws, there's no correlation between how corrupt they think it is. Everybody thinks it's all corrupt. All the time. And in fact, after McCain-Feingold passes, people's views that the system is corrupt go up. Because it's salient, people are talking about it.
So I don't like appearance of corruption in campaign finance. I don't like appearance of voter fraud in the voter ID cases. I don't like appearance of racial separation in the racial gerrymandering cases. I'm not worried about appearances, I'm worried about actuality. And the actuality, the bottom line is, we should not have a system where, new statistic today, 195 people have spend more on election 2016 than, the 195 top people have spent more than the 2 million bottom people on our election this year. That's not an appearance of corruption, that's an actuality of inequality. That's what I want to work on.
Yes.
[Question 3]: As it turns out, in Europe some of the countries where the government pays for the expense of it.
[RH]: So in Europe, there are many systems. Right? So in Europe, many countries, political parties receive the campaign funding. And that's another model I discuss which I think would be better. Political parties can moderate things. They can channel money. The also can provide a potential for an avenue for large donors to get access, so it runs different ways. But elections in other countries are so different, so in the UK, the election period is only going to be a few weeks long. Same thing in Canada. Our election starts as soon as the last election's over. And we could try to limit how long people can campaign, but that also raises the first amendment.
Nobody has a First Amendment analog like we have. And it makes figuring out how to regulate things very difficult. And our elections are so expensive. I don't think the problem is too much money in politics. Money in politics is good. That's how we learn about how we should vote. And negative ads are good. Because that's how we learn why we don't like the other person, right? They're contrast ads. You know, I am not one of these people who thinks it denigrates our politics. I actually think it educates the public. The problem is not money in politics. The problem is big money in politics. Because it skews outcome. If we could all put in $100 and we'd have $23 billion, we'd have lots and lots of speech. But we wouldn't have any one person who would have too much influence. That's the kind of model I'm talking about.
Yeah, last question. In the back.
[Question 4]: I'm curious, you just raised a point. $23 billion. Where's that coming from?
[RH]: I think it would save us money. Where's the $23 billion coming from? I described to you those 54 words in the 2,000 page omnibus bill that got a billion dollar tax break. There's lots of that. We have fighter jets, we have government programs, all of which are only snuck into things because of the role of lobbyists who are getting their contributions. Yeah, go ahead.
Question 4: You talk about, we could in this state put in a rule governing vouchers.
[RH]: Yes. It wouldn't cost that much here.
[Question 4]: Where is the state getting that money?
[RH]: Well, it's the same way that you would have any public financing system. You'd have to finance it through taxes, which is why opponents call it a taxpayer-financed system. But I think it would actually save us money, because there'd be less special-interest lobbying that would go against the public interest. So it would actually save us money by making more legislation in the public interest, and those hidden sweetheart deals that go through all the time, people wouldn't have the juice to be able to do that anymore. That's at least the theory. We'll see how it works in Seattle, and maybe in some other places. Thank you very much.
[Narrator]: Thank you for joining us for UCI Law Talks, produced by the University of California, Irvine School of Law.
