Understanding The Impact Of Citizens United

James Bopp is the lawyer who first represented Citizens United in the case that ended up in the Supreme Court, which ruled that corporations and unions could give money to political committees active in election campaigns. That decision and subsequent lower court decisions have led to SuperPACs, which allow corporations, unions and individuals to make unlimited contributions, pool them together, and use the money for political campaigns.

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TERRY GROSS, HOST:

My guest, James Bopp, is the lawyer who first represented the group Citizens United when it challenged campaign finance restrictions. The case went to the Supreme Court, which ruled that corporations and unions could give money to political committees active in election campaigns. That decision and subsequent lower court decisions, based on Citizens United, have led to superPACs, which allow corporations, unions and individuals to make unlimited contributions, pool them together and use the money for political campaigns, although they're not supposed to directly coordinate with the candidates.

Bopp has been the special counsel for National Right to Life since 1978, and special counsel for the conservative Christian group Focus on the Family, since 2004. He also represents the anti-gay marriage group the National Organization for Marriage.

Jim Bopp, welcome to FRESH AIR. If you had your way, would there be no limits and no disclosure for individual and corporate funders?

JIM BOPP: If I had my way, political actors would disclose their contributions and expenditures. So, PACs, candidates and political parties with respect to their election-related spending would report contributors to them and expenditures made by them.

As to limits on contributions, sometimes when I'm cynical, I think, yes, we need to have contribution limits to candidates. Other times I'm more optimistic and see how well Indiana's working without any contribution limits to candidates, as well as I think 20 other states, and that there's no real corruption. The corruption is in the heavily-regulated and limited states with contribution limits. So, then I think well, maybe not; we don't need them. But one thing's for sure is that contribution limits are way too low. They are $2,500 and you can't even buy a Democrat congressman for $2,500. The anecdotal evidence is that it takes $99,000 in cold hard cash to buy a Democrat congressman. That was the amount Congressman Jefferson of New Orleans had in his freezer.

Republican congressmen seem to go at a higher rate. Duke Cunningham had a schedule of bribes in his desk. The lowest amount was $140,000 for him to earmark your weapons system. So we know for sure that it takes a heck of a lot more money than $2,500 to unduly influence a Congressman, so our limits are just too low.

GROSS: One instance you're talking about bribery, in another instance, you know, you're talking about campaign finance and they're different.

JAMES BOPP: Well, the premise of limits on contributions to the candidates is that the - is if the contribution is too large, that it will unduly influence a congressman and amount to a quid pro quo exchange. And we're trying to prevent that. So...

GROSS: But...

BOPP: ...it is relevant how much money...

GROSS: ...people are afraid that it's legalizing a quid pro - people are — yeah.

BOPP: ...might unduly influence or bribe a congressman, and $2,500 is just way too low.

GROSS: I just want to say, the concern is that certain campaign finance - that easing campaign finance regulations can almost legalize a form of corruption or bribery, which is different than actually bribing somebody. But anyways...

BOPP: Well, I know that that is the allegation.

GROSS: OK.

BOPP: But what we know is the $2,500 is just way too low in terms of having...

GROSS: I understand the point you're making. I get it.

BOPP: ...any realistic possibly of unduly influencing a congressman. And, of course, it causes terrible results. All of the superPAC - I mean, not all, but the vast majority of the superPAC money, what money 527s get, would go to candidates, if you could contribute it to them. So - and they, of course, are much more accountable and much more transparent, and a lot of these complaints would just simply go away if members of Congress could receive the money directly.

Then the voters could decide, well, we don't like it that Corporation X has given to Congressman Y. We'll just vote against them, rather than, you know, having the corporation give the money to a superPAC. And you can't vote against a superPAC.

GROSS: Now, you said that you support the idea of finance disclosure in campaign financing. I thought you had - that you had cases on the state level challenging restrictions on disclosure.

BOPP: Well, there has been efforts to impose disclosure on non-political actors, people doing issue ads, you know, and such as that. And I don't think that is warranted. I don't think any disclosure is warranted because Wisconsin Right to Life wants to urge its senators to vote for or against a particular bill. That's grassroots lobbying.

So there have been efforts to regulate just people participating in our democracy, lobbying Congress and doing the kinds of things that, you know, our form of government permits citizens to do. I am - I do think disclosure is warranted for political actors - that is, candidates, PACs and parties. I do wonder whether the disclosure currently required, you know, for $25 contributions serves any purpose.

It seems to me it ought to be high enough - the disclosure threshold should be high enough where people actually care about the amount being given. Twenty-five dollars, who in the world cares that Joe Blow gives $25 to a candidate or a PAC? But at a higher level, I think people might be interested, might actually care, and so it'd be warranted then.

GROSS: You know, a lot of people think that the line between an issue ad and a political ad is a very blurry line.

BOPP: Yeah. We've been litigating that forever. They keep losing on that issue, that issue ads ought to be regulated as if they're campaign finance ads. The issue ad I just described, which is lobbying a senator about an upcoming vote in Congress, is the type of thing that people who despise the participation of citizens in our democratic process want to prohibit and regulate.

I think that that is exactly what the First Amendment was designed to protect, because they want - because the First Amendment was designed to permit citizens to participate in our democracy, not to drive them out by campaign finance laws.

GROSS: Now, I understand you've recently created a superPAC. Is that right?

BOPP: Yes. I'm involved in a couple of superPACs that are participating in federal and state elections. And, of course, I represent a number of them, as well.

GROSS: And what do you hope to accomplish with your superPAC?

BOPP: It's just another mechanism for people who want to support candidates because they have a particular position. You know, they support the issues that the group supports, another mechanism for them to participate by pooling their resources and spending. Now, it is true that so far, many rich people have taken advantage of superPACs, but see, you know, they can spend their own money.

They don't need a superPAC. The people that have contributed to superPACS, you know, $10 million or whatever, they could just run the ad themselves and put their name on it. So superPACs - or any group activity, really - is essential to people of average means, not essential to the rich. And so when you limit group activity, you are cutting off the only avenue that people of average means have to participate. You're not cutting off rich people.

GROSS: I think some people would challenge the premise that you're not cutting off rich people because I think a lot of rich people would prefer to give their money to a PAC and let professionals worry about how the money's going to be used for the campaign or for advertising or whatever, so that the rich individual doesn't have to take care of all those details themselves.

BOPP: Well, many, many...

GROSS: It's much easier to give the money to professionals, right?

BOPP: ...would prefer, I agree, that rich people would prefer, in some cases, to give their money to a PAC, but it's not essential. In other words, the rich person already has the money. They could hire a media company themselves. They could approve the advertising, and they could pay for the advertising, and it would have their name on it.

GROSS: And would they want their name on it?

(SOUNDBITE OF LAUGHTER)

BOPP: People of average means, though, it is essential to have a group that pools resources for the citizens of average means to participate.

GROSS: My guest is James Bopp, who first represented Citizens United in a case that ended up in the Supreme Court and opened the doors to superPACs. We'll talk more after a break. This is FRESH AIR.

(SOUNDBITE OF MUSIC)

GROSS: My guest is James Bopp who first represented Citizens United in the case that ended up in the Supreme Court. That decision and subsequent lower court rulings enabled the creation of superPACs, which accept unlimited donations from corporations, unions and individuals.

So is there any part of you that thinks that campaign financing has just totally gotten out of control? That the amount of money being spent by individuals and corporations is so high now, it's become so super-sized, and the campaigns have been - like the primaries - are drawn out for so long, is that healthy for our democracy?

Would we maybe be better off with limits, you know, in the terms of the amount of money that can be spent, maybe even the amount of time that's spent on campaigns? Or do you think we're heading in the right direction?

BOPP: Actually, we're spending too little money on elections. We have a $3.5 trillion federal government budget and, you know, that's a lot of money to spend, and it affects the lives of every American. So every American has a stake in this, and the problem is that people - a third of the people don't even know who the vice president of the United States is.

A majority of the people don't know who their member of Congress is or who their senator is that's voting on this $3.5 trillion budget, much less know how they're voting. We spend more money on ice cream and popcorn than we do on the people that will decide how $3.5 trillion is spent. Over 40 percent of the money that people make are now being spent by the federal government.

This is an enormous sum of money, and the information and the ignorance out there among voters is really pathetic. And we need just a lot more information for intelligent voting.

GROSS: So if few people know who the vice president is, it's probable that even fewer people know that Sheldon Adelson and his wife are the only reason, in a lot of ways, that Newt Gingrich was able to stay in the primary campaign. And they...

BOPP: Well, the vast majority of people could care less.

GROSS: ...probably have their - well, but the thing is, that...

BOPP: What they care about is how these candidates are going to vote and what their positions are on the issues, not...

GROSS: But that's...

BOPP: ...who is giving...

GROSS: Excuse me for interrupting, but...

BOPP: ...to some superPAC.

GROSS: But that gets to the larger question, which is: If you are beholden to one corporation or one individual who has bailed you out in your campaign to the tune of maybe $10 million, does that mean you're beholden to their agenda, whatever their agenda is, whatever their special interest is? And that's, I think, you know, one of the bottom-line questions that face us when it comes to campaign finance.

BOPP: Yeah. And aren't you - you're just assuming what you haven't proved and there's no facts for, that Newt Gingrich is beholden - that is, that he would change his position on issues because a contribution of $10 million was made to a superPAC by a husband and wife in Nevada.

GROSS: Well, maybe...

BOPP: You are just assuming that. You are assuming that Newt Gingrich is corrupt, that he - his positions are up for purchase, and that because this person - who apparently agrees with Newt Gingrich on every single issue - would change his mind or change his position.

GROSS: But in some ways it's...

BOPP: There is absolutely no evidence that Newt Gingrich has changed a single position because of that contribution. And frankly, if the people who think that this is a successful strategy, to give money to somebody that disagrees with you in order to change their position is a successful strategy is a fool.

GROSS: But in some ways, you know, what people would argue is Newt Gingrich isn't necessarily changing his position to suit the Adelsons, but that the wealthy person will keep alive the candidate that suits the wealth - that agrees with the wealthy person. And therefore...

BOPP: Yeah. And there are rich people on both sides...

GROSS: Let me - can I just finish my sentence that the...

BOPP: ...that do that.

GROSS: ...that the people who represent the interest of the wealthy are the people who will survive in a presidential race.

BOPP: The wealthy do not have one interest. The wealthy - there are wealthy people on every side of every issue. There are more wealthy people who are liberal than are conservative, and historically the wealthy have given more money to liberal causes than to conservative causes. So there are liberal - there are wealthy people on every side of every issue, so the wealthy people don't control the issues. They are just doing what everybody else is doing, you know, picking sides and helping the side that they support to pursue - try to gain the votes of the American people.

Ultimately, the American people decide. They vote. And Newt Gingrich, you know, if we're talking about Newt, you know, despite the money that the Adelsons have given to him, he's gone down in the polls and gone down in the votes that he has received in the Republican primary. So they haven't - if their goal was to get Newt Gingrich elected, it hasn't turned out.

GROSS: One more question, and this is a little off-topic, but although you initiated it - although you initiated the court case that ended up being Citizens United in the Supreme Court, Ted Olson actually argued that case in the Supreme Court and won.

And his big issue now is legalizing gay marriage through the courts, and you oppose gay marriage. You represent a group that opposes gay marriage. You're their legal counsel, and the group is called National Organization for Marriage.

So how do you feel about Ted Olson, on the one hand, having, like, taken your case and won it on the Supreme Court, and on the other hand, being on the opposite side of you on marriage equality?

BOPP: He's a very accomplished lawyer who's willing to take both liberal and conservative positions if people are willing to hire him. I mean, that's...

GROSS: He seems to really, really believe in this. He helped to initiate the whole thing. I mean - anyways.

BOPP: He helped initiate the Prop 8 case, no question about it. And he's made millions of dollars on it, and they've hired him because he's an accomplished lawyer, and he's taken a very liberal position. So I don't consider him a conservative icon anymore. He's just available on both liberal and conservative issues and - because he's an accomplished lawyer.

GROSS: Jim Bopp, thank you so much for your time. Thank you for talking with us.

BOPP: Thank you very much for having me on.

GROSS: James Bopp first represented Citizens United in the case that went to the Supreme Court and opened the door to superPACs. You can download podcasts of our show on our website, freshair.npr.org.

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