How Campaign Finance Ruling Changes Politics
NEAL CONAN, host:
This is TALK OF THE NATION. Im Neal Conan in Washington.
Last month, a landmark decision by the Supreme Court ruled out threw out decades of campaign finance law. From now on, corporations and unions can spend as much as they'd like to support candidates. In addition, the court struck down the part of the 2002 McCain-Feingold law that bars independent political ads 30 days before a primary or 60 days before a general election.
In general, Republicans applaud the ruling; Democrats oppose it. All sides agree, though, we're now in a new world of campaign finance.
If you've worked on political campaigns as a candidate, campaign manager, consultant, whatever, call and tell us how this would change things. What's going to be different? 800-989-8255. Email us, firstname.lastname@example.org. You can also join the conversation on our Web site. Thats at npr.org. Click on TALK OF THE NATION.
Later in the program, what DNA analysis and CT scans tell us about the life and death of King Tutankhamen. But first, Peter Overby joins us here in Studio 3A. He's NPR's Washington correspondent on power, money and influence. Peter, nice to have you back with us.
PETER OVERBY: Thank you, good to be here.
CONAN: And we're already in primary season, with midterm elections looming not too far off. What's changed?
OVERBY: Well, either a little bit or a lot, depending on your expectations of things. On a grand theoretical scale, a lot changes. Corporations have been walled off from putting money directly into politics in America.
Once you get past that, as the Supreme Court did by lifting the ban, then you have corporations able to spend as much as they want - unions too, like you say, supporting candidates or opposing them.
Now, there's one argument that corporations really won't do that much because it's not the kind of things they want to do, but there's another argument that even if they don't want to do it now, they will later, that it will become like lobbying, something that they'd rather not spend the money on, but if you're going to play in American policy-making, which a lot of corporations feel the need to do, if you're going to do that you've got to be in politics.
CONAN: So if they want to perhaps see get favorable treatment after somebody's elected, they might want to support his or her campaign?
OVERBY: Yeah. In fact, it's easy to imagine a scenario where they wouldn't even have to spend any money. Suppose the XYZ Corporation wants a tax break, and it goes to the chairman of Ways and Means I'm making all of this up, by the way you know, he could really use that tax break, it would be good for business, it would be, you know, good for the national trade balance, and you know, if we don't get it, we're prepared to spend $2 million in attack ads or even and you know, whichever way it goes, we're prepared to spend $2 million on ads in your district.
CONAN: Right, so you can either be with us or against us.
OVERBY: Exactly, and you know, it doesn't cost the corporation anything to say that.
CONAN: Right. Nevertheless, I think as you suggest, there's some misconceptions about just how sweeping this ruling is.
OVERBY: Yeah, it does not lift the 1907 ban on giving money directly to candidates or party committees. That goes back to a scandal involving Teddy Roosevelt's presidential campaign and the fallout from that. That is sort of the first modern campaign finance law, and the direct-contribution thing is still intact.
But practically speaking, there are limits on direct contributions to candidates and party committees, and there are no limits on what independent players can spend advertising for or against not just TV ads, but you know, phone-banking, they could pay for get-out-the-vote efforts. There's a lot of things in politics that consume a lot of money, and a lot of them don't have anything to do with the campaign itself.
CONAN: And so they are politically deniable too. Candidate XYZ can say that ad attacking my opponent, I have nothing to do with that. These are independent citizens named Ford and General Motors.
OVERBY: Yeah, the Fine Group, America for Americans, or Americans for America, whatever.
OVERBY: Yeah, the way the laws are structured now, Americans for America would be a 501(c)(4) nonprofit organization, and it could take corporate money, and there would be no disclosure requirement. There is legislation coming along in Congress to change that so that the nonprofit groups would have to disclose the sources of their money. That would be a big change and it would be opposed by groups on the left as well as the right.
CONAN: We're talking about how campaigns will change, given the ruling by the Supreme Court last month that threw out a lot of the old campaign finance laws. Give us a call. If you've working on a campaign, tell us how this would have changed your life or will change it in the future, 800-989-8255. Email us, email@example.com. We'll hear from Steve, Steve with us from Mounds View in Minnesota.
STEVE (Caller): Hi, yeah. During college years I worked as a paid volunteer for the Democratic National Convention, and we did phone calls to local registered voters because there's a $50 per-person credit at the time. And this whole ruling seems to be completely opposed to that whole that whole idea.
I used to be a teacher, economics and history, and again there, every bill that we've tried to introduce over the last 20 years, it seems, has been trying to limit the impact of these massive contributions.
CONAN: And the Supreme Court ruling was that's not constitutional. So it's a brand new world.
STEVE: Yeah, it just confuses me. What are how is has set back the rights of our populous for the access to democracy? It just very much concerns me.
CONAN: Well, Peter Overby, I think the Supreme Court ruled that in this context, corporations, and indeed unions, have to be treated as individuals with free speech rights.
OVERBY: As persons, yeah. Yeah, the conservative argument here is that and some people on the left agree with this too that what you want is more speech. You want fewer restrictions on those who can speak and how they can speak. They more speakers you have, the more robust debate, and democracy is served by that.
There's another argument that you could think of in terms of a formal debate, where speakers have set amounts of time. The gavel falls when your time is up and another person gets an equal chance to speak. And we're watching those two ideas duke it out.
CONAN: And it's five-four decision by the Supreme Court. It's not as if it was overwhelming in one direction or the other. But Steve, thanks...
STEVE: I think it's time for us to get the NASCAR suits for our political candidates and let it all be out there in the open. This will be the Mobil candidate. This will be the Hugo Chavez Venezuela candidate.
CONAN: Well, you're talking about getting all the advertising on everybody so everybody knows where they're coming from and who's sponsoring what. All right, Steve, thanks very much for the call. Let's go next to this is James, James with us from Albany, Georgia.
JAMES (Caller): Yes, sir. Thank you for taking my call.
(Soundbite of throat clearing)
JAMES: Excuse me. I ran for the Senate in Georgia in 2004 for the Democratic primary, and one of the proposals that we had was that if somebody is attacked in a television ad or an electronic ad, that they be given an opportunity to preview the ad before it runs, and they'd be given an opportunity to tape a response that would run, free of charge, the same length as the first ad, immediately following the attack ad.
It doesn't do any harm to the First Amendment. It doesn't chill the ability of the first buyer of the ad, who's attacking the candidate, to run their ad, but it entirely dissipates the toxic campaign ads that we've seen in recent campaigns.
I think if you had a simple solution like that, you would lose a lot of the influence that corporations and the PACs have in destroying candidates with what we would consider to be false or unfair attacks.
CONAN: I think it's called swift-boating these days. And James...
JAMES: We had that in 2002 with Max Cleland, when you had Saxby Chambliss, who ran an ad campaign with pictures of Osama bin Laden and Saddam Hussein and portraying Max Cleland as somehow being dangerous to America's security because he wanted the Homeland Security Department, the employees to be able to organize.
CONAN: Yeah, did your opponents in that primary agree to this procedure?
(Soundbite of laughter)
JAMES: No, this was a proposal for a federal law...
CONAN: I see.
JAMES: And I think that it costs nothing. It doesn't cost the federal government anything to pass such a law, but it would do so much to clean up federal campaigns, I can't imagine why, if the Democrats control Congress and the presidency, why they wouldn't want to adopt such a proposal.
CONAN: Well, you need 60 votes to get anything through the Senate, but nevertheless, James, thanks very much.
JAMES: You're very welcome.
OVERBY: The National Association of Broadcasters might object to it because they would be losing money on the deal.
CONAN: Why? They're signing up a response ad.
OVERBY: Suppose the attacked candidate can't pay for the response ad?
CONAN: Well, then he can't run it. Too bad.
CONAN: Okay. Joining us now from the studios at Harvard University is Lawrence Lessig, co-founder of the nonprofit group Change Congress. His op-ed, "The Fundraising Congress," appeared on the L.A. Times site on February 4th, and nice to have you with us today.
Mr.�LAWRENCE LESSIG (Co-Founder, Change Congress): Great to be here.
CONAN: And that idea we just heard from James, the former senatorial candidate in Georgia, among many that have been put forward to, well, modify the ramifications of this Supreme Court decision.
Mr.�LESSIG: Yeah, that's right. I think unfortunately what we're seeing is a little bit of a rabid dog in the form of the Supreme Court, and it's bit once, and I think many people believe it's going to bite again. So that particular law I predict the Supreme Court would strike down because it struck down essentially the equivalent law as applied to newspapers, and this court doesn't believe that newspapers are, interestingly, different from broadcast media. So that change just wouldn't survive.
CONAN: Well, in your article, you say what's needed now is a citizen's movement to stop the fund-raising(ph) in Congress, demand change, et cetera. How would you go about it, and how would that pass muster before the Supreme Court?
Mr.�LESSIG: Yeah, I think that the biggest risk we have after Citizens United is a distraction, because, you know, the day before Citizens United was decided, we already had an enormously corrupt Congress, and not corrupt in a bribery sense but corrupt in the sense that members were spending too much of their time focusing on how to make their funders happy and not enough time spending how to make their constituents happy.
And that is a basic economy of influence inside of Washington, and maybe Citizens United will make that much, much worse, but even if we just lived with the world before Citizens United, that was enough to stop every major reform both on the left and on the right.
So the solution here is not to get us back to the day before Citizens United. The solution has got to be to change that economy of influence so that once again members can focus on what the framers imagined they'd be worried about, what the people thought, and not focused on what their funders want so that they can raise the money necessary to get back into office.
CONAN: And when Lawrence Lessig refers to Citizens United, that's the shorthand for the Supreme Court case that last month in its ruling changed the face of campaign finance.
We're talking about money and politics and how that's likely to change now, given that Supreme Court ruling. In a few minutes, Dan Schnur will join us. He helped run a number of campaigns and will tell us what difference it would make, well, when he was helping to run John McCain's campaign, for example.
If you've been in politics, tell us how you think it might change things, 800-989-8255. It's the TALK OF THE NATION from NPR News.
(Soundbite of music)
CONAN: This is TALK OF THE NATION. I'm Neal Conan in Washington. The Supreme Court was divided in its decision that the government cannot ban political spending by corporations. The ruling also divided public opinion. For some it protects the First Amendment rights of companies, gives them the same rights as everybody else. On the other side, the argument is that corporate money will now flood into campaigns, corrupting the process.
As we head into the midterm elections, we're talking about how this ruling may change the game. If you've worked on political campaigns as a candidate, campaign manager, ad consultant, whatever, call and tell us how this will change things, what's going to be different, 800-989-8255. Email firstname.lastname@example.org. You can also join the conversation on our Web site. Thats at npr.org. Click on TALK OF THE NATION.
Our guests - Peter Overby, NPR's Washington correspondent on power, money and influence; and Lawrence Lessig, who directs the Edmond J. Safra Foundation Center for Ethics at Harvard and co-founded the organization Change Congress.
And Peter, we got an interesting question during the break. Somebody couldn't hold on but wanted to know: there's a lot of places where judges are elected, obviously not on the federal level, but state and local elections. How would this would this affect their elections as well?
OVERBY: It would. The decision applies to all elections in the U.S., not just the federal elections, and judicial elections tend to be low-budget, small affairs - you know, kind of historically they've been kind of polite things where the only people who pay attention are lawyers, unions and corporations, chamber-of-commerce types, and this has the potential to really change that, to turn them into big-budget elections where, you know, the corporations and the unions are just duking it out over who's going to sit on the bench, who's going to sit on the state supreme court, and it raises a question of, you know, is this how you want to choose judges in America? And if you have elected judges, can you not choose them that way now?
CONAN: Here's an...
Mr.�LESSIG: What's really interesting about the decision is that, of course, the Supreme Court last term decided a case about judicial elections where one person spend $3 million in independent expenditures to get one judge kicked off an appellate court and replaced with another judge, who then cast the deciding vote in favor of that the interests of that person who spent the $3 million.
And the Supreme Court was very sensitive to the interests that courts have that people perceive them as behaving in a way independent of the interests of the underlying parties. So the court actually created a constitutional rule to require that judge to recuse himself.
But in this case, in Citizens United, what the court has basically said is that Congress can't protect itself in the same way that the courts constitutionally must protect themselves from the perception that people have that money buys results in Congress. And that, I think, is the instability that can't survive in this court's decision.
OVERBY: Something else that the court said is that the idea of buying access, buying influence in a generalized sort of way is not good enough to institute laws now. They said in pretty much this language that American citizens are not concerned, not alarmed that donors can buy access to members of Congress.
CONAN: Let me ask you a question, though. You've said things, you know, essentially that the system was too infused with money of all kinds to begin with, and this just makes it worse. How do you legally, constitutionally, change that at this point?
Mr.�LESSIG: Well, there's a clearly constitutional bill right now in Congress, it has a 135 co-sponsors in the House, it's called the Fair Elections Now Act, that would invite members and candidates to opt in to a small-dollar-contribution system.
So you can receive only a $100 contribution from any particular citizen, and that $100 is then matched four to one so that you can raise the money you need to run for office without ever taking big-dollar contributions from anybody.
Now, if that were the system, it at least would move us towards a world where whatever dumb reason Congress made for whatever had for whatever dumb decision Congress took, we would not think it's because of the money. Maybe it's because they were too liberal, maybe because they were too conservative, maybe they didn't think about it, but at least we would not believe that it was this illegitimate reason that was driving them to the answer they picked rather than just some other.
CONAN: And would this law, which you believe to be constitutional, others may disagree, but anyway, would this law require all candidates to abide by that or just opt in if they wanted to?
Mr.�LESSIG: No, it's opt-in, and that's what makes it constitutional, just like the presidential public-funding system is an opt-in system.
CONAN: And last time, President Obama, now-President Obama, opted out.
Mr.�LESSIG: Yeah, and that was very unfortunate, but where we've seen this happen in the states - for example, Arizona and Maine now have this as the law, and Connecticut just adopted it recently, and when Connecticut did it, in the first year over 80 percent of incumbents opted into that system and immediately changed the character of how politics happens in states like in these states.
And the point is of all the solutions that people are talking about right now, I mean, who knows what this rabid dog is going to do, this Supreme Court, but of all the solutions that are being spoken of right now, this is the one that is clearly the most safe from a constitutional perspective and would have the most dramatic impact in changing the way Congress works.
Yet unfortunately this administration and this Congress have not had the vision to be bold enough about the change that they want, and they're arguing about tiny changes at the margins that in my view will not even get us back to where we were before Citizens United.
CONAN: Lawrence Lessig, thanks very much for your time today, appreciate it.
Mr.�LESSIG: Thank you.
CONAN: Lawrence Lessig is professor of law at Harvard and co-founder of the nonprofit group Change Congress. His op-ed, "The Fundraising Congress," appeared on the L.A. Times site on February 4th. He joins us today from studios at Harvard University.
And let's see if we can go next to caller Chuck, Chuck with us from Worcester, Massachusetts.
CHUCK (Caller): Oh, Chuck, okay.
CONAN: That's you.
CHUCK: I'll try to be brief. I am a registered Republican, and I do support the Supreme Court's decision to the recent decision regarding the campaign finance, and I believe that the freedom of the speech that our founders gave us was specifically aimed at political speech.
That being said, however, my worry about the bill would be is, if somebody is supporting my campaign or somebody that I support, let's say they might in doing so they might do more harm than good.
The recent election with Scott Brown and Martha Coakley is a good example. I think that the Democratic Party's ads for Coakley might have done her more harm than good. When I ran there was kind of a cardinal rule from the old cognoscenti, the old politicos, and they said never mention your opponent's name.
And Martha Coakley had these ads that said: Do you know who Scott Brown is? Scott Brown is a Republican. Scott Brown is endorsed by the National Right To Life Committee, et cetera.
A lot of people didn't know that. A lot of people might have voted for Scott Brown just because of that.
CONAN: Well, you're just saying she ran bad ads, not that the money was the issue here.
CHUCK: Well, sometimes when you've got a lot of money to spend on a campaign, and you want to get your message out, some people might not agree with your message and they might vote against you just because of your own campaign.
Now, there was a Republican who ran against Cuomo a long time ago, and somebody can dig it out of the files. He spent tons of his own money trying to what?
CONAN: Yes, I'm saying mmm-hmm, he was a parking lot magnate. I'm blanking on his name, but I know who you're talking about.
CHUCK: Okay, yeah, okay, and he lost, and one of the big reasons was that he had a lot of money and he got his message out, and a lot of people didn't agree with it.
CONAN: Well, no, a lot of people thought he was he ran he lost for a lot of reasons, but his ads, you know, he obviously increased his name recognition tremendously by taking out any number of advertisements. But Chuck, thanks very much, appreciate it.
OVERBY: Yeah, Chuck's talking about candidate money as opposed to outside-group money.
CONAN: Interest money, yeah.
OVERBY: Yeah, and two different sets of money with two different sets of goals.
CONAN: And again, corporations still can't give directly to the candidates.
CONAN: Okay. Joining us now is Dan Schnur. He was national communications director for John McCain's presidential campaign in 2000, now the current director of the Jesse Unruh Institute of Politics at USC, with us from his office there at the University of Southern California. Nice to have you back on the program.
Mr.�DAN SCHNUR (University of Southern California): Well, thanks for having me. I appreciate it.
CONAN: And as somebody who's worked on campaigns on the national level, what do you think midterm elections how might they change given this ruling?
Mr.�SCHNUR: Well, they're going to change dramatically. There's no question that the amount of money spent on behalf of candidates on both sides of the aisle is going to increase in a big, big way.
One thing I'm not as certain about, though, is the common presumption that that necessarily benefits corporate spenders and their allies more than organized labor.
The system that the Supreme Court has now put in place at the federal level actually bears a great deal of resemblance to what we deal with here in California in state elections, and while the amount of money involved in the campaigns is indisputably absurd, it has not necessarily led to a pronounced imbalance in favor of corporate spending. Organized labor has done actually a fairly good job of keeping up in that regard.
CONAN: And interestingly, obviously the state of California has a Republican governor but Democratic majorities in both houses of the legislature. Nevertheless, as you're talking about the mechanics of the campaign, the amount of time that the candidate and the campaign manager would have to now spend on money issues would seem to be even greater than they do now.
Mr.�SCHNUR: Well, that's precisely right. You're competing for the voter's attention not only with your opponent and his or her message but a whole range of outside groups all shouting at the top of their lungs.
And I think what this gets to, and I'm guessing you guys have already talked about this just a little bit earlier in the program, is the broader philosophical issue about whether or not money equals speech, and I wonder if we haven't set up a unnecessarily, mutually exclusive discussion here in that you assume that if money does equal speech, therefore you have a right to spend unlimited money on behalf of a candidate or cause that you believe in.
And I guess the point that I would make which acknowledges the parallels between money and speech, but also calls for some restraints that the court did not see necessary, is that the right to free speech is critical for our democracy, but it actually is not absolute. In other words, if you were giving a speech in a town square and I stand up next to you with a megaphone and a really loud sound system, I'm exercising my right to free speech, but I'm drowning you out and interfering with yours.
Mr. SCHNUR: And I wonder if a corporate or union interest that spends one or five or $10 million on behalf of its preferred cause in the name of free speech isn't drowning out the right of others. So, perhaps, there is a middle ground that if not this court, another court in the future might be willing to navigate.
CONAN: Well, that's another issue for another day but, Peter?
OVERBY: Yes. Well, it's getting back to that idea of the public forum. And in the forum, can anybody speak as long and loudly as they want? Or is there some sort of regulation of the speaking so that all voices get heard?
CONAN: There's also the situation that, at least currently, the Internet is more and more important, and the Internet is effectively infinite. You can put as many videos on YouTube as you would like. But as long as television and radio, to a lesser degree, are the dominant media, there's only a limited number of availabilities on those television and radio stations in September and October, Dan Schnur...
Mr. SCHNUR: If I was still running a campaign, that is a potential real frustration for me, which is getting my voice heard, that is getting my ads placed in a marketplace that is so crowded from outside interests. Whether it's from supporters of my opponent or well-meaning supporters of my own campaign, they're delivering much different messages than I would prefer to on behalf of my own candidate.
CONAN: Those messages are effectively uncontrollable by the campaign.
Mr. SCHNUR: Yes. Suppose in a state like California, I am running a candidate like Arnold Schwarzenegger who tends to be more conservative on economic and law enforcement and immigration issues, and more moderate, even liberal on culture and social and environmental matters. Well, in order to turn out Republicans, a well-meaning National Rifle Association-affiliated group could begin to churn out all sorts of ads, talking about the issue of guns which is not necessarily central to my message.
CONAN: And it could turn off independent, even some Democratic voters you might have hoped to attract.
Mr. SCHNUR: And similarly, my Democratic opponent equally frustrated by a well-meaning group from the left arguing for single parent health care system that may or may not be part of my agenda, at least not one of my priorities or (unintelligible) priorities.
CONAN: We're talking with former campaign professional, Dan Schnur and with Peter Overby, NPR's Washington correspondent on power, money and politics, about how the Supreme Court's decision on campaign finance is going to change things. Youre listening to TALK OF THE NATION from NPR News.
And let's get Tom(ph) on the line. Tom with us Minneapolis.
TOM (Caller): Oh, happy Mardi Gras, everyone.
CONAN: Happy Mardi Gras.
TOM: I have an observation on - third parties, I think, will probably fare poorly in all of this because, you know, they've always had a bit of an uphill battle in general. But I can't imagine that the total slice of the political-speech pie available to third parties will grow as a result of this ruling.
CONAN: Peter, any thoughts on the effect on third parties, outsiders?
OVERBY: Well, I was just thinking what would have happened when Jesse Ventura first ran for governor if corporations and unions have been able to jump in...
CONAN: And say, do you really want to elect a wrestler governor of Minnesota?
OVERBY: Yeah. I suspect that neither of those groups would have supported him, you know? They would have gone with your regular party candidates. And, you know - I don't know how that equation shakes out. Tom, do you have any sense of that?
TOM: I hadn't really thought about that which is kind of surprising since I'm a - in general, I prefer third party candidates just on principle. But the - my recollection of that campaign is that the Democrat and Republican candidates campaigns were relatively unwilling to - they certainly didn't make a big deal of the come-on-this-guy-is-a professional-wrestler angle...
TOM: ...as much as they might have.
CONAN: All right. Tom, thanks very much for the call. Dan Schnur, how would it affect third parties and would it give them a greater platform or a smaller one?
Mr. SCHNUR: I'm not sure it would have a great impact. If you look at the Ventura example, for the lack of a better one in the immediate political past, the reason both the Republican and the Democratic candidates were loathed to attack him is they were worried about engendering a backlash against their own candidate. So therefore, if corporate or union interests were to have weighed big against Ventura, the same backlash would have occurred.
CONAN: And - but he got elected anyway without the backlash.
(Soundbite of laughter)
Mr. SCHNUR: Precisely.
Mr. SCHNUR: I guess, more broadly, and I sympathize for the caller's...
Mr. SCHNUR: ...hopes. But, if you think about it, the two major parties, they don't do a lot of things well. But the one thing they're exceptionally talented at is maintaining this duopoly that they have over the system. With the exception of an occasional aberration like a Ventura, they're very, very good at identifying a strain in the electorate that neither party is meeting and jumping on top of it. If you look at the Ross Perot candidacy back in 1992, first, Bill - a Democratic president in Bill Clinton and then a Republican Congress jumped on the deficit reduction idea that had animated Perot's campaign. I'm not sure the campaign finance laws, one way or another, are going to impact that. But there's not a lot of tolerance among the two major parties for anything new. I'm not sure this helps or hurts.
CONAN: All right. Well, that deficit reduction idea, I wonder where that went. Anyway, but - Peter.
OVERBY: But I was going to say, also the corporations and the unions tend to be kind of status quo operations, so I suspect they're not going to jump on some wild-eyed third party person either.
CONAN: Or even some sober-eyed...
CONAN: ...third party person nevertheless.
Mr. SCHNUR: On the other hand, if you are a corporate interest and you see a very, very conservative Republican and a very, very liberal Democrat, the appeal of getting behind a more centrist but yet business-supporting candidate could be pretty alluring.
CONAN: Well, Dan Schnur, thanks so much for your time today. Appreciate it.
Mr. SCHNUR: Thanks for having me. I appreciate it.
CONAN: Dan Schnur, former national communications director for John McCain's presidential campaign in 2000 and often used Republican political strategist, now director of the Jessie Unruh Institute of Politics at USC. Our thanks as well to Peter Overby, NPR's Washington correspondent on power, money and influence, who joined us here in Studio 3A. Peter, as always, thanks very much.
OVERBY: Thanks. It was great.
CONAN: Coming up next, the mystery of King Tut's death may finally have been solved. He wasn't murdered after all. Stay with us. I'm Neal Conan. It's the TALK OF THE NATION from NPR News.