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The Supreme Court has struck down overall limits on federal campaign contributions for the first time. It’s considered, in some ways, a follow up to the Court’s Citizens United ruling four years ago. Like Citizens United, the decision is predicted to significantly increase the role of money in politics–an amount advocates for campaign finance reform say is already way too much. The case came down to a question of whether political contributions are protected by the First Amendment, and if capping them prevents corruption or the appearance of corruption. Diane and her guests discuss the new ruling and the role of money in political campaigns.
- Jeffrey Rosen President and CEO, The National Constitution Center; professor, George Washington University Law School; legal affairs editor, The New Republic; author of "The Supreme Court: The Personalities and Rivalries that Defined America" and co-editor, "Constitution 3.0."
- Matea Gold Reporter covering money and politics, The Washington Post.
- Jan Baran Head of the election law group at Wiley Rein LLP, former general counsel to the Republican National Committee and author of "The Election Law Primer for Corporations."
- Lawrence Lessig Professor, Harvard Law School; director, Edmond J. Safra Center for Ethics at Harvard University. He founded the Mayday PAC in support of campaign finance reform.
MS. DIANE REHMThanks for joining us. I'm Diane Rehm. Yesterday, in a five-four ruling along ideological lines, the Supreme Court struck down limits on overall campaign contributions. The decision is likely to increase the influence of large donors and money in politics. Here to discuss the new ruling and the role of money in politics, Jan Baran. He's head of the election law group at Wiley Rein LLP. Matea Gold, a reporter covering money and politics for The Washington Post.
MS. DIANE REHMJoining us from his office in Philadelphia, Jeffrey Rosin. He's president and CEO of the National Constitution Center. And from the studios of Harvard University in Cambridge, Massachusetts, Lawrence Lessig, professor at Harvard Law School. And throughout the hour, I'll look forward to hearing your views, your sentiments on the ruling. Give us a call as 800-433-8850. Send an email to firstname.lastname@example.org. Follow us on Facebook or Twitter.
MS. DIANE REHMThank you all for being with us. Welcome.
MS. MATEA GOLDGreat to be here.
MR. JAN BARANThank you.
MR. JEFFREY ROSINGreat to be here.
REHMJeffrey Rosin, I'll start with you. Explain to us McCutcheon V. Federal Election Commission, exactly what was this about?
ROSINWell, as you said in your excellent introduction, the court in Citizens United struck down limits on independent campaign spending by corporations and unions and the question here was whether decade-old spending caps on contributions that any individual can contribute to federal candidates could stand. And in this decision, the court extended the logic of Citizens United and struck down the overall limits on contributions.
ROSINRight now, they are $48,000 for individuals every two years and there are separate aggregate limits on contributions to political parties, which are currently about $74,000. The case was very significant because ever since 1976, the court has drawn a distinction between contributions, which it generally said can be limited because they are more likely to be corrupting and expenditures, which generally are less regulated.
ROSINSo here, by striking down the contribution limits, the court embraced a much narrower definition of the justification for limits. Basically, it said you could only limit speech to stop corruption and corruption here was defined as preventing basically trading votes for money. In previous cases, the court had said that a different kind of corruption could be regulated, namely the fact that rich donors would drown out less wealthy individuals in political discourse and also have special access to candidates.
ROSINThe broad, fascinating, significance of this case, what makes it so tough and important is that we saw a clash between two diametrically opposed visions of the First Amendment. On the one hand there was the view embraced by Chief Justice John Roberts and his conservative colleagues rooted in individual liberty. Roberts began by saying in a democracy, there's no right more fundamental than an individual's right to participate in the public debate through political expression and association and he said Congress can't restrict the participation of some in order to enhance the relative influence of others.
ROSINOn the other hand, Justice Stephen Breyer, writing for the three liberals, had a very different view of the First Amendment. He said this focus on an individual's right to engage in political speech fails to account for the public interest in preserving a democratic order in which collective speech matters and he concluded that where enough money calls the tune, the -- will not be heard. So that was the clash of two visions of the First Amendment we heard in this very important case.
REHMJeffrey Rosin, president and CEO of the National Constitution Center. Matea Gold, what does this mean for money in politics? Is this an even bigger deal than Citizens United?
GOLDWell, practically speaking, the people affected most directly by this ruling are the very wealthy in a very small narrow universe of people. By one count, just about 600 people hit the maximum in 2012 for giving to candidates, rather. So there really is a small number of people that have both the means and the desire to probably give more than $123,000 every two years, which was the current cap for all giving on a federal level.
GOLDBut I think what the significance of this is, is this creates a new avenue for the wealthy to influence campaigns even greater. Whether people will aggressively take advantage of it really remains to be seen. There are ways to spend a lot of money on politics that don't involve writing lots of little checks to candidates and party committees, namely going to a super PAC and writing one big check. But what this does do is overlay another means for having more money flood into the system that is already being buffeted by huge amounts of spending by outside groups.
REHMMatea Gold, she covers money and politics for The Washington Post. Lawrence Lessig, turning to you, is this decision as Justice Breyer has said, devastating to campaign finance reform?
MR. LAWRENCE LESSIGI think it is and it's incredibly frustrating because what the court did not engage, the question Justice Breyer didn't put to the majority, was really by what right, by what principle, did they limit their conception of corruption to this very narrow quid quo pro corruption alone? Now, that's an important question because there are lots of different conceptions of corruption. Justice Breyer had one.
MR. LAWRENCE LESSIGYou could have a conception that's said it's corrupt if it's not equal. You could have a conception that said it's just quid quo pro. There are a lot of things they could've picked among to say what was corruption, but they picked a very, very narrow conception and the question was, why that one? Now, you know, the majority is filled with the originalists from the Supreme Court, the people who believe that you should look to the framers of the Constitution to understand what the Constitution means.
MR. LAWRENCE LESSIGBut as we had submitted in a brief to the court, if you look to what the framers thought corruption meant, they would not have said it was limited to quid quo pro corruption alone. So, you know, the really hard question here is if you narrow it the way the court has, you basically make impossible a whole line of regulation to try to affect the way in which people can participate in the political process. But if you're an originalist, you know, what is the right to make it up like this? What is the principle that gets them to this extremely narrow position? And that question, they didn't even address.
REHMLawrence Lessig, professor of law at Harvard University. Jan Baran, what are your thoughts? Does the First Amendment require striking down these limits as Chief Justice Roberts has said?
BARANI think the result in this case was predictable and is consistent with the court's jurisprudence, which, going back to the original major decision of Buckley vs. Valeo, the court has always rejected the notion that the First Amendment would allow regulating money in politics in order to accomplish equalization. You know, they say that the government has an interest. Like all Constitutional cases, the courts balance First Amendment liberties against legitimate government interests.
BARANAnd the government interest here is, well, we want to have a clean system. So the court has been struggling with, well, how do we define what is the legitimate government interest in preventing corruption? How do you define it? You have to have some specificity to that in the course of balancing. Now, I think it's important to your listeners to be reminded that this decision did not eliminate contribution limits.
BARANAll the limits on how much an individual may contribute to any one candidate or to any one political committee or any one party committee remain in place. The limit that was struck down was one that said an individual may not give to more than a certain number of candidates in a certain amount. Mr. McCutcheon, who is an Alabama businessman and an engineer, brought this case because he gave contributions to candidates.
BARANThe current limit is $2600. He was a sort of motivated patriot and he actually wrote checks out in the amount of $1776 to the candidates of his choice. And he discovered that he could only give 16 candidates that amount of money and if he gave more than that, he would be violating this aggregate contribution limit.
BARANSo the issue here is, you know, is it justifiable in advancing to government's anti-corruption goals to tell somebody that he or she can only give to 16 candidates or nine candidates and that if they give to a tenth candidate or a 20th candidate, they would be violating the law? And I think the court very reasonable said that doesn't make any sense in evaluating the liberty interest with the anti-corruption interest.
REHMAnd that is Jan Baran. He's head of the election law group at Wiley Rein. He's former general counsel to the Republican National Committee and author of "The Election Law Primer for Corporations." Do join us, 800-433-8850. Matea, you wanted to add to Jan's comments.
GOLDAnd it's a very good point because I think there is a lot of confusion about exactly which limit was struck down. Now the reason that this has more implications than beyond just allowing people to write to a couple more candidates is that we have seen incredible creativity in the campaign finance space when the regulations and the laws are loosened and people who are opposed to this decision argue that we could see the creation now of kind of supersized joint fundraising committees in which a large numbers of party committees and candidate committees come together and ask one donor to write one very large check.
GOLDThey could write a check, theoretically, as large as $3.6 million to a committee that was made up of a presidential candidate, all the congressional candidates, all the party committees. So that's a way that you could have, as a donor, an incredible amount of more influence inside the regulated system.
REHMMatea Gold, she's a reporter for The Washington Post. Short break here. When we come back, we'll talk about the meaning of the word corruption and take your calls. Stay with us.
REHMAnd welcome back. We're talking about the Supreme Court ruling yesterday, a 5-4 ruling along ideological lines striking down limits on overall campaign contributions. Here in the studio, Matea Gold of The Washington Post, Jan Baran. He's former general counsel to the Republican National Committee. Jeffrey Rosen joins us from his office in Philadelphia. He's president and CEO of The National Constitution Center. And Lawrence Lessig is professor of law at Harvard University.
REHMJoel in Tennessee puts his finger on the question I want to ask. He says, "In his ruling, Chief Justice Roberts stated the likelihood of corruption was low. Please discuss his rationale. It seems," says Joel, "completely incomprehensible how more money put in the political system would not encourage corruption." Lawrence Lessig, if you would, talk about corruption as the Supreme Court seemed to define it.
LESSIGThat's right. So it's very important to be clear -- let me just say this in response to Jan -- the Supreme Court defined corruption to be quid pro quo corruption, this for that, like a bribe. And Jan is right that historically the court has said equality or the desire to equalize speech is not a legitimate interest. But the precise question that this court should've addressed is whether there was another conception of corruption, not equality, that would explain why aggregate limits make sense.
LESSIGAnd I think it's pretty easy to see what that is. So, you know, one conception that the framers of our constitution talked about over and over was government having an improper dependence. You know, they thought parliament was corrupt, not because of bribery but they thought parliament was corrupt because the king had an improper dependence over parliament. And that's exactly the kind of corruption that you can see evolving in our election system right now.
LESSIGRight now, you know, it's about 150,000 Americans who are the relevant funders of congressional campaigns. That's about one-twentieth of 1 percent of America. And after this decision that number's going to fall even more, you know. So 150,000 is about the same number of people who are named Lester in the United States. You know, if it falls to about 40,000 relevant funders, that's about the same number of people as are named Sheldon.
LESSIGSo we're going to go from Lester land to Sheldon city as we create a system where a tiny, tiny fraction are the significant funders in this essential stage in the election. Now I think the framers would've looked at it and said, of course, that's corrupt. That's a corruption of a system that was intended to be dependent on the people alone. And as Madison said in Federalist 57, the people are not the rich more than the poor. That was corruption, not a problem of equality but a corruption that they should be able to address.
REHMAll right. Jan Baran.
BARANWell, I think this goes to a fundamental debate about, you know, how does a democratic society operate and how do you accomplish anything in self-governing when you have various means of political action, whether it's individual or whether it's collective, whether you're an organization like the AARP that represents millions of retirees as opposed to being a wealthy individual like either George Soros or Sheldon Adelson.
BARANAnd the system that we have devised in order to prevent this corruption as defined by the court and not by Prof. Lessig is that, well, you can restrict certain things while still preserving individual liberty or an even collective liberty. Because the First Amendment also preserves a right of associating, which is why you can have associations, why you can have political committees, why President Obama was able to raise a billion dollars for his re-election, which included not only wealthy individuals who gave the maximum contribution but obviously hundreds of thousands of small donors through the Internet and other ways.
BARANAnd what the court has, over the last 40 years, basically said is that we want to recognize the government's interest in preventing quid pro quo relationships and risks. Not just the actual risk but even the appearance of risk. And they have concluded, after all this experience, that the way to accomplish that is to limit the amount that any one individual may contribute to a single candidate or to a political committee or even to the political party.
BARANThese aggregate limits that were struck yesterday are highly unusual. You know, we have 50 states and the District of Columbia, and they each have their own campaign finance system. And virtually none of the other systems resembles what we have here in federal law. There are only eight states that have any sort of an aggregate limit. Now all of those laws in those states are now probably unconstitutional. But each state also has its own approach to individual limits. And it's created some absurd anomalies.
BARANFor example, a candidate for a United States Senator in California under our federal law may only raise $2600 per election from any individual maximum. Now if that same person decided to run for governor, which is also a statewide race, the limit under California law is $26,000, which is basically 10 times the amount that the federal law provides. And why have they done that? Well, they have decided under state law that a higher limit does not corrupt. And at the same time they've recognized if you're going to run for statewide office in California, you got to raise money to fund your campaign.
GOLDAnd I think this goes to some of the far-reaching implications of this decision which is that by defining corruption so narrowly as a quid pro quo definition that there are a lot of possible other laws and regulations that could come up for grabs now. For example, as Jan pointed out, why is the contribution limit at $2,600? Is someone now going to challenge that? Is that too low? There is currently a ban on corporations and union giving directly to candidates. Under this court's reasoning and the opinion issued yesterday I would imagine that would be subject to a lot of scrutiny and does it make sense for corporations not to be able to give to candidates?
MR. JEFFREY ROSENDiane, could I jump in here?
ROSENIt's just such a fascinating debate because it's a debate in good faith. I mean, Larry Lessig makes a very powerful argument that the framers had a broad conception of corruption. He calls it dependence corruption, and he's worried that the voice of the wealthy can influence public debate, you know, in two ways, both by having access to candidates and also by drowning out the voices of everyone else.
ROSENThe people on the other side led by Chief Justice Roberts don't dispute that. They don't disagree that the rich may have more access and more ability to persuade than everyone else. They just say, that's a form of unpopular speech that the First Amendment protects. There was a remarkable line in Roberts' opinion where he said, if the First Amendment protects flag burning, funeral protests, and Nazi parades, despite the profound offense that spectacle causes, it surely protects political campaign speech despite popular opposition.
ROSENSo there's almost a sense in the majority that we know that wealthy people are unpopular. It's true it may have these bad effects but because of the First Amendment rights of political participation and association as well, as Chief Justice Roberts said, are so strong that the country just has to live with these bad effects or adopt other alternatives -- make the disclosure laws to deal with.
REHMBut, Jeff, you said the dissenting justices seem very surprised by the ruling. Why would they be surprised?
ROSENBecause they had not understood Citizens United to embrace such a narrow conception of corruption. Justice Breyer was quite explicit about this in his dissent. He said, sure there was a line or two about Citizens United about quid pro quo corruption but none of us who read that opinion expected that that was going to change the previous understanding since 1976 that corruption could be defined more broadly.
ROSENSo the dissenters were almost saying, you know, we were duped. This is a form of faux judicial restraint, to use a phrase Justice Scalia had used earlier to Justice Roberts, that the Citizens United case, which everyone understood is broad, was even broader by narrowing the definition of corruption so much. And that's really the nut of the matter.
REHMBut, Larry Lessig, why did we have these limits in the first place? Take us back to 1976.
LESSIGWell, I think that the objective, which again I think makes perfect sense, is that we make sure that the fundraisers who are raising money to fund these campaigns, especially at the party level, don't just focus on a tiny, tiny number of people, you know, the richest people in the country who could basically bankroll the campaigns. But they have a discipline where they've got to reach out to try to get more people involved in the political system so that more people have an influence not just in their vote but also in the funding election.
LESSIGAnd the critical question again, and this is why -- this is the real tension I think I have with Jan here -- the issue is not the complexity of campaign finance laws. We could criticize what Congress does and what the states do all the time. That's fine. In my view of the question is by what right do the conservatives on the Supreme Court embrace such a narrow ahistorical conception of corruption. What is their justification for that? What is the principle?
LESSIGBecause these are precisely the people who yell at the liberals all the time for "making it up" ipse dixit jurisprudence. But here they are giving us a conception of corruption that wasn't written in anything Madison penned or anything in the constitution or anything the framers said indeed, but we counted every single use of the word corruption at the framing time. We found the tiniest percentage where quid pro quo corruption uses the vast majority where this independence or dependence corruption conception.
LESSIGSo where do they get off? What is their right? And this is the question which I'm, you know, so disappointed Justice Breyer didn't even ask like, where do you originalists, conservatives who talk about judicial restraint all the time have the authority to make it up when you come to a definition of corruption?
BARANWell, I think that the notion that the founders had some broader and even vague notion of corruption is something that can be debated. I think that what the court has done is help the government define what its interest is. The government can't come in and just say, well, we're going to place these restrictions on political activity because we have some undefined notion of what is corruption.
BARANSo the court has basically said, all right, going back to Buckley they said, you know, we're going to accept limits on contributions because there's a legitimate interest to prevent corruption and the appearance of corruption. And the court over the next four decades has really not, until yesterday, had an opportunity to really define what that meant, although they started doing that in Citizens United.
BARANAnd, you know, the history of these restrictions, these post-Watergate restrictions is a history of the court repeatedly striking down all kinds of mechanisms to control and interfere with the First Amendment rights of participants in the political process including in the Buckley case. There were numerous reforms that were unconstitutional 40 years ago.
REHMJan Baran, he's head of the election law group at Wiley Rein. And you're listening to "The Diane Rehm Show." There are so many aspects to this case. Matea, how are people -- ordinary people who don't have this kind of money to donate, how are they going to react?
REHMLet me read you an email from Jackie who says, "I'm a 40-year-old truck driver, a father of two, lower middle class. This current Supreme Court has done more to discourage my vote than any voter ID law or major scandal ever has. Couple the unfettered money now flowing with a recent study I just heard about finding an ordinary citizen is almost more likely to win the lottery than be able to speak with a sitting member of Congress," Matea.
GOLDWow. Well, I think there is no doubt that there is widespread angst among the public across party lines frankly, among a lot of people who feel that they are shut out of the system because they see there's so much talk about the presence of big money in our campaigns now. Now I think that has two effects. Some people feel discouraged and disengaged and don't participate. On the other hand, as Jan referenced, we've seen a huge spike in the amount of small donor money coming through online means.
GOLDAnd so this is, I think, going to be a very key fundraising tool that a lot of liberal groups are going to use to encourage small donors to engage in the system. I'm sure it's going to fuel a lot of efforts by campaign reform advocates to pass small donor laws. There's been a longstanding effort in New York that didn't quite make it yet but I think that that's probably -- we're going to see a lot of legislation like that introduced.
REHMLarry Lessig, you're worried that this campaign finance law could actually be repealed and repealed quickly. What would happen if it were?
LESSIGWell, it's quite clear that there's a campaign, a strategy through a series of these cases to basically remove all limits here. Indeed one of the exchanges after the Citizens United case the question raised to the lawyers was, well, why would you be targeting the independent expenditures? And their response was, well, once we blow the lid off the independent expenditures, then that puts pressure on the direct contribution limits. And we expect eventually the direct contribution limits will be removed as well.
LESSIGAnd the objective then is a world where, at least at that time, they were talking about total disclosure but no limits in what you can give. And what we have to recognize is if that were the world then the number of people who would be funding -- the number of candidates funding congressional races -- you know, it might be small dollar contributions are great for presidents. But for congressional races, the number of people effectively funding that would fall dramatically. And in the conception of an improper dependence inside of a democracy, that would be I think a clear and proper dependence in corruption.
REHMMatea, what do you think this ruling could mean for the 2014 midterm elections?
GOLDWell, every donor that had just hit their aggregate cap is now pulling their out because they can't turn down the solicitation from campaigns anymore. And I spoke to a lot of donors and fundraisers yesterday who actually said there's an incredible amount of teeth gnashing going on right now in the donor community who feel that they're going to really be hit up now for donations. They no longer have an excuse to say, I've reached my max.
GOLDBut it changes the rules midstream. And just as all of the campaigns were in these kind of incredibly hard pushes to raise money for this last quarter filing, there's now going to be this wide open field to raise even more money than they ever thought possible. It changes the budgets for the campaign, it changes the fundraising tactics all kind of overnight. And so I think that'll be pretty dramatic, and it'll -- we're not going to really have a benchmark now to measure the kind of money coming in later in the cycle because it's a whole new world.
REHMMatea Gold of The Washington Post. Short break here. When we come back, it's time to open the phones. I'll look forward to hearing your sentiments, your ideas, your suggestions. Stay with us.
REHMAnd welcome back as we talk about yesterday's decision from the Supreme Court, removing limits on overall campaign contributions. We've had lots of tweets and emails with this question. And it's for you, Jeffrey. "Did the Framers equate money and speech in the way the Roberts's Court has?" And a tweet, "Spending money is not free speech, it's commerce." That's for you, Jeffrey.
ROSENIt's a great question. And the truth is that there are passionate arguments on both sides of this debate. Prof. Lessig has argued very passionately and to some very persuasively that the Framers were not focused on the idea of money as speech. That they were more concerned about creating a direct link between the people and their representatives, that Congress should represent the people themselves, and that any attempt to allow a small faction or group of wealthy people to dominate would have offended the Framers' sense of political participation.
ROSENThe argument on the other side just really has to do with the level of abstraction at which you wanted to find the Framers' thinking. I think the originalists on the Court, Chief Justice Roberts and Justice Scalia and so forth, would say that Framers were so concerned with political association, so determined to let people support and connect with whatever candidates they wanted, that they would have refused to allow any limits on that.
ROSENAnd that's why, just like protecting flag burning and Nazis marching in Skokie, the wealthy have to be protected despite the fact that it may have bad effects. So it's kind of a historical debate that can only be solved based on the level of abstraction at which you define corruption. Again, I think the originalists should have responded to Prof. Lessig's brief, given the amount of emphasis they place on Constitutional history. But I think they believe just as passionately on the other side, that speech is so important that it just can't be restricted.
REHMAll right. We'll open the phones to Linda in Palm Coast, Fla. Hi, you're on the air. Go right ahead.
LINDAYes. Thank you, Diane. I'm 72 years old. And I've worked most of my life with various environmental groups. And I'm concerned that corporations, with their huge donations, could influence legislation protecting our environment. For example, take Exxon. After the recent warning regarding the disasters from climate change, Exxon said the report would, "Not influence them or interfere with their profits." And with this Court ruling, polluters could continue to destroy our environment with impunity.
REHMAll right. Thanks for your call. Matea?
GOLDWell, I don't know that this really necessarily gives an extra leg up to corporations, which already have an incredible amount of freedom since Citizens United to spend money. We now -- and I think that some have actually approached that with some caution. We have seen -- especially publically-traded corporations really shying away from engaging in at least public political spending because I think there's been some examples that that leads to a pretty serious consumer backlash.
GOLDBut what I think is more troubling for many people is the idea that corporations and trade groups could be quietly behind the scenes, giving money to 501 (c)(4) non-profit advocacy groups that we've seen in the wake of Citizens United become incredibly more engaged in campaigns.
REHMMatea, let me ask you about the effects on either, or both parties.
GOLDWell, I think a big clue to the impact this will have on parties is the fact that the Republican National Committee brought the McCutcheon case, with Shaun McCutcheon, against the FEC and sees this as a huge victory. It'll obviously benefit Democratic Party committees as well. One way to think of this is in the wake of the McCain/Feingold Campaign Finance Act, back in 2003, there's really been this shift of large dollars outside of the regulated disclosed system.
GOLDSo soft money can no longer be taken by parties. So that money flowed to other entities. And at first -- Jan and I were talking before the show -- it was 527s, and then it was Super PACs and C4s. This, some argue, actually could bring some of that money back into the system in a disclosed manner. So people who want to spend big money on politics, can now direct large amounts of donations -- granted in small increments -- back to candidates and party committees.
REHMBut will there be transparency with those contributions?
GOLDAbsolutely. So all these contributions have to be disclosed. All the money the party accepts has to be reported to the FEC and publicly disclosed. So some argue that the McCutcheon case actually could provide a little bit more disclosure about the role that big donors have in our system right now.
REHMAll right. To Herb in Cleveland, Ohio. You're on the air.
HERBHi. And thank you for taking my call.
HERBI was trying to put into feelings what I'm thinking about this, and it -- every time I think about it too much, I get sick. And I think normal, everyday people, we listen to your show, and we love the show. But every time we listen, we're starting to find out whoever gets the most money wins. Yesterday the subject was about the auto dealers -- oh, well, not dealers.
HERBManufacturers have issues with their cars.
HERBYou look up. They have problems. They hire lawyers. They don't have to pay that much if somebody get hurt or killed.
HERBYou know, OK. They get off the hook from that. It seems like every time we turn around, whoever has the most money makes the rules.
REHMAll right. Thanks for your call. Lawrence Lessig, how do you think that this ruling is going to impact the public?
LESSIGWell, I think the consequence of making much more visible the incredible role that such a small number of funders have in our political system will reinforce a general sense that ordinary Americans have, that there's not much reason to get involved. Look, we've created two elections in America. One is the election where you go out and you vote.
LESSIGBut the other is the election where you decide who you're going to give your money to, the money to fund those campaigns. And in the second election, the voting election, we all, in theory, have a right to participate -- in some states if you have an ID. But OK you have a right to participate. But in the money election, the relevant participants are a tiny, tiny fraction of us.
LESSIGAnd, you know, just as African-Americans in the South during the time of the White Primary decided they weren't going to participate in the political system because why bother when such an incredibly important part was -- they were excluded from that incredibly important part, the Democratic primary that was just for white people.
LESSIGI think many people in our system are going to look at these two elections and say, why should I waste my time in the voting election when all the issues have been set, all the agendas have been defined by the money election or the Green Primary we could call it. And that Green Primary is going to be dominated by an incredibly small number of Americans.
REHMJan, do you want to comment?
BARANWell, I just don't see evidence that this phenomenon is occurring. I think that, for example, there's…
LESSIGThen you're not looking. There's plenty of evidence. There's plenty of evidence.
BARANIf I could…
LESSIGI'm happy to provide you five different studies that show exactly this.
BARANIf I may continue, Professor, after the 2008 election, there was a survey of individuals as to whether or not they made a donation to campaigns and to political parties. And 15 percent of the respondents said they had. We're also seeing a continuing growth in the number of small contributors according to Federal Election Commission records. And we have not witnessed, as I said earlier, the phenomenon of President Obama raising a billion dollars for his re-election.
REHMBut let me ask you, if I may, Jan, doesn't the small, individual contribution have far less of an impact on the possibility of corruption than does the large?
BARANWell, the large being $2,600. So it…
REHMWell, but if you aggregate these and if you give to as many candidates as you like and if you are a corporation without any limits, don't you -- is that the equivalent of the individual donor who may give $100 online?
BARANI don't think that the risk of corruption is any different. And for the following reasons, I mean, number one, all of these donations are limited. Number two, to say that an individual contributor who gives the candidate Smith $2,600 is going to increasingly corrupt candidate Jones, to whom he is giving also $2,600 doesn't seem to have any correlation. It is true that a wealthy individual will be able to make more contributions, in limited amounts, to more candidates.
BARANBy the same token, the same wealthy individual can pay for more advertising or communications on his or her own. But the process contemplates both restricting the size of the donations to campaigns and parties, which has remained intact.
BARANAnd, by the way, I would point out that Political Action Committees, which collect money in similarly small limited amounts subject to limitations -- and there are thousands of them. And many of them are multi-million dollar PACs -- are not, never have been, subject to an aggregate contribution limit. And we have not seen the phenomenon of Political Action Committees…
BARAN…donating through joint fundraising and so forth.
REHM…I just want to go back to that small donation. That in the aggregate did come to a billion dollars for President Obama in the last election. George Soros and the Koch brothers are going to have far more to say about where these elections go than I am.
BARANThat is true unless you, of course, can collect money from other similarly thoughtful individuals and to pool your funds and go out and try debate these issues. I would say the wealthy individual will be -- will have more resources on his or her own to convey a message and to do things. Whether that translates into political success is highly debatable.
REHMAll right. Lawrence Lessig, do you want to comment?
LESSIGWell, I think that the claim that the dynamic we've seen developing is not having an effect on people's attitudes towards this democracy is just not supportable. 2010, .26 percent of America, one-quarter of 1 percent of America gave $200 or more to any Congressional candidate. .05 percent gave the maximum amount in any cycle, $2,400 then to any candidate. .01, the 1 percent of the 1 percent gave $10,000 or more. And .000042 percent, that was 132 Americans, gave 60 percent of the Super PAC money that was spent in 2012.
LESSIGNow, when people see this, they hear this, they get the message. They're not as important. And if you're not as important why waste your time participating because your contribution, your role in that election is as significant as an African American's role in the Texas elections in 1922.
REHMLawrence Lessig of Harvard University Law School. And you're listening to "The Diane Rehm Show." Let's go now to Brian, in Concord, New Hampshire. You're on the air.
BRIANGood morning, Ms. Rehms (sic), Ms. Gold…
BRIAN…gentlemen. I have a quick comment and then a question. It seems that a small, wealthy elite are far more equal than the rest of us. And by this decision and recent other decisions has not John Roberts created an American house of lords. And I'm not about to start tugging on my forelocks. I love your program, Ms. Rehms (sic).
REHMAll right. Thanks so much. Jeffrey?
BRIANThank you so much.
ROSENIt's a powerful question. And I think Chief Justice Roberts would respond, the First Amendment made me do it. He would say I didn't like the funeral protestors whose right to denounce gay people I defended. I don't like, you know, the Nazis marching in Skokie or flag burning, but the First Amendment cuts both ways. And even though the speech is unpopular and lots of people resent this wealthy elite, their rights have to be protected because the Constitution requires it.
ROSENAgain, there are strong arguments on both sides of this. It has to do with which vision of the First Amendment you embrace. But I will say that this is -- I don't see this as a partisan decision. It's not Republicans against Democrats trying to further the interest of the Republican Party. This is a principled view of the First Amendment. It's embraced by some, although not a lot of civil libertarian liberals, as well as libertarian conservatives. And the conservatives would just say that this is where the rubber hits the road. And even if the consequences are bad for the country, it's not our fault.
GOLDI just think it's interesting to note that this case is coming down as we're really entering the fray for the 2014 campaigns, in which already the role of big donors in our campaigns is a central preoccupation. We see Harry Reid talking about the Koch brothers every chance he can get. We see folks on the right bringing up Tom Steyer, an environmentalist and a former hedge fund manager, who wants to spend tens of millions of dollars.
GOLDI think it's really going to be fascinating to see how this election plays out as a referendum on the role of money in politics, whether people do vote because or against it, whether people are even more disillusioned and stay at home. I just think it's now part of the fabric of our campaigns now in a way that was much more central than ever before.
REHMLarry Lessig, Sen. John McCain of Arizona pointed to an influx of money into politics. He said there will be a scandal. You thought Citizens United had a chance of being overturned. What do you think now?
LESSIGWell, I thought it would be narrowed if the Court in this case had been more expansive in its conception of corruption. So I actually thing the precise decision in Citizens United, does a nonprofit company have the right to spend its money to promote its film, that was perfectly fine. The problem with the decision was as it's been interpreted to support Super PACs and the other expansions that have come afterwards.
LESSIGI thought in this case the Court would have a chance to narrow it. But obviously the Court hasn't taken that opportunity. And I think the real problem, the real challenge for reformers is that, you know, the Claris (sp?) did a study in 2012, where they found that 80 percent of Americans thought that every reform Congress has passed, it has passed for the purpose of benefitting itself, entrenching the incumbents, and not for the purpose of reforming.
LESSIGSo on the one hand Americans desperately want the system changed, but on the other hand, they actually don't seem to trust Congress and the proposals Congress has advanced for changing it. Even though, I think, there are some fantastic proposals, like the Government By The People Act, which would create small-dollar-funded elections, would be an amazing change. The real challenge is to convince America that this corrupted system is producing reformers who really do want to reform the system.1
REHMAll right. We'll leave it at that. Thank you all so much. Lawrence Lessig of Harvard University, Jeffrey Rosen of the National Constitution Center, Jan Baran, head of an election law group at Wiley Rein, and Matea Gold of The Washington Post. And thanks for listening, all. I'm Diane Rehm.
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