It's my distinct pleasure to introduce our
moderator this morning, Judge Richard Sullivan.
Judge Sullivan earned his BA from William
and Mary, and then went on to earn his J.D.
from Yale Law School.
After a brief stint in private practice, he
became an Assistant U.S. Attorney in the Southern
District of New York, and in 2007, he was
appointed by George W. Bush to be a federal
judge in the Southern District.
So, please join me in welcoming Judge Sullivan.
Thank you very much.
Okay, thank you.
I have a little bit of a PowerPoint just to
tee things up.
So, we're at Columbia if you didn't know that
already.
I don't think I even need that.
And I think there couldn't be a more interesting
topic and a more timely topic than the First
Amendment.
So we're really, I don't know if it was just
dumb luck or you guys saw this coming, but
so this is a terrific program already.
I thought last night was great.
Thank all of you for being here today.
Our topic is, I think I you look at the program
of all the different panels, I think you'd
have to agree that this is the probably the
best one.
So, it's good that you're here, and I think
because it is the best panel, it's not surprising
that they gave us the coveted Saturday morning
slot.
New York is really an early morning town.
So, New Yorkers like to get up early on a
Saturday, put on their Sunday finest and come
and watch law professors talk.
So, thank you for being here.
I guess you're the ones who didn't have a
social life and didn't go out last night,
after the party.
So, I think you will agree however, the key
to any good panel is a good moderator, and
so, I was delighted therefore when the Federalist
Society folks, not surprised, but delighted
when they asked me to moderate this panel.
I don't know if you know this about me, but
I did recently win the Hamilton Cup.
The coveted Hamilton Cup.
I've also won for 10 years running the Chambers
Mug, and that's awarded to the best judge
in chambers by my law clerks.
I will admit I have some detractors including
the New York Post.
This is an actual editorial, and I am the
actual judge.
They didn't like one of my opinions, and the
worst of it is they used this picture, which
my mother really was incensed about, and I
think it is the same courtroom sketch artist
who did Tom Brady.
She apologized to Tom Brady.
She did not apologize to me.
So, I think that if this really blows up it's
because the folks at Columbia decided to pick
an ass to be the moderator, but we can make
up for that with a stellar panel, and that
is certainly what we have today.
So, I'm gonna briefly introduce our speakers.
I'll introduce them in the order in which
they're going to speak.
We chatted before about what we thought was
the best way to do this, and I'll begin with
Brad Smith.
Brad Smith is the Josiah H. Blackmore, II
and Shirley M. Nault Professor of Law at Capital
University Law School in Columbus, Ohio.
He previously served on Federal Election Commission
as eventually the Chairman.
So, he's actually seen how this is done.
He's the author of numerous books and articles,
including a book called Unfree Speech: The
Folly Campaign Finance Reform.
It's a really interesting book.
I commend it to you.
He has been publicly described as a one-man
wrecking crew of democracy.
So, his high school guidance counselor thought
he would amount to nothing and he's a one-man
wrecking crew of democracy.
He has a BA from Kalamazoo College, a J.D.
from Harvard, and he is also the founder and
Chairman of the Center For Competitive Politics.
So, we're delighted to have him here today.
After Professor Smith, will be Ciara Torres-Spelliscy.
She is an Associate Professor of Law at Stetson
Law School in Gulfport, Florida.
Prior to that, she worked as the head of the
Democracy Program at the Brennan Center for
Justice at New York Law School.
She is also an accomplished author.
She's the author of a book that I also commend
to you which is called Corporate Citizen?
An Argument for the Separation of Corporation
and State.
She's also written numerous articles in law
journals, magazines, newspapers, Huffington
Post and has an article in this space called
How Much is an Ambassadorship?
And the Tale of How Watergate Led to a Strong
Foreign Corrupt Practices Act and a Weak Federal
Election Campaign Act.
I think she'll touch on some of those things
today.
She has been named as a Top Wonk by the TopWonks.org
organization.
So, she's very wonky.
She's also received Steton's Dickerson-Brown
award for Excellence in Faculty Scholarship.
She's a graduate of Harvard College and Columbia
Law School.
Welcome back.
You do us proud, and so we're really glad
to have her here as well.
Thank you Ciara.
Next, we have John McGinnis, and John McGinnis
is I think probably the most frequent contributor
of Federalist Society events ever.
I've never been to one of these where he's
not speaking.
He is a wonderful speaker, a terrific writer.
He's the George C. Dix Professor of Constitutional
Law at Northwestern's Pritzker School of Law.
He is also a past winner of the Federalist
Society's Paul Bator Award which is awarded
annually to a young scholar, and that is a
really big deal, and so, he received that.
He has spoken at numerous events.
He's contributor in so many different areas.
His recent work in the area of campaign finance
reform can be found in an article in the William
and Mary Law Review.
This is a book that I also commend to you
of his, but the article in William and Mary
is called Neutral Principles and Some Campaign
Finance Problems which is I guess channeling
Bork's Indiana Law Review?
Is that?
Yeah.
Yeah.
So, really interesting article and a great
survey of this area of campaign finance law.
He's a graduate of Harvard College of Oxford,
of Harvard Law School.
He clerked on the DC Circuit and served for
six years in the Office of Legal Counsel for
the Department of Justice.
So, delighted to have John here as well.
Thank you, John, and finally, oh, there we
go.
Rick Pildes.
Rick is the Sudler Family Professor of Constitutional
Law at NYU Law School here in New York.
He commuted all the way up from the village.
He's written and lectured extensively in election
law, also terrorism.
He has a casebook which is sort of a seminal
book, The Law of Democracy: Legal Structure
and the Political Process.
He has a recent article that I definitely
commend to you.
Let's see if I have it there.
In the Yale Law Journal it's called Romanticizing
Democracy, Political Fragmentation, and the
Decline of American Government.
It was published in Yale's Law Journal, but
it was based on a lecture he gave up at Yale.
He's written numerous articles including articles
cited by the Supreme Court.
He's litigated before the Supreme Court, and
I'm sure he's gonna talk about that as well,
including recently in a case Alabama Democratic
Conference versus Alabama in 2015.
He received his BA in Chemistry.
So, he's really smart.
Summa cum laude from Princeton.
None of these soft science types.
A J.D. from Harvard where he served as the
Supreme Court Note Editor in the Law Review.
He clerked for Abner Mikva on the DC Circuit
and for Justice Thurgood Marshall on the U.S.
Supreme Court.
So, we are really pleased with this all-star
panel.
The formula that works, and I think you've
seen it since last night, and if you've been
to other events like this, you know how the
Federalist Society tends to do it.
We'll let each speaker get up and give a presentation
of you know, 12 to 15 minutes or so, and then
after that, we'll ask some questions among
ourselves.
I get first crack, moderator's privilege,
but I want to make sure we have plenty of
time, plenty of time for you folks to ask
questions as well.
So, I will be, I will be here manning the
clock which is basically what District Judges
do.
We just watch the clock, and then we make
sure the questions are questions.
That's another thing.
So, just remember when it is question time,
this is not the Senate where you get to go
on and on and on with a speech that might
be loosely considered a question.
So, nice quick-- Yeah, nice quick direct examination
questions, all right.
So, with that, we will first hear from Professor
Bradley Smith.
All right, well thank you Judge.
Thank you all for coming out early on a Saturday
morning.
It was reasonably early on a Saturday morning.
So, I want you to envision that you're in
the Unites States Supreme Court.
Some of you have probably been there.
You've seen the room.
It's got the marble engraved behind and so
on, and the justices are up there in their
black robes, and Malcolm Stewart Deputy Solicitor
General, a very experienced man.
He's already campaign financed cases before
is in the Supreme Court.
He's argued them in the Supreme Court and
he's up there arguing in case called Citizens
United versus Federal Election Commission,
and the question, there's a couple questions,
but basically it comes down to can the government
prohibit a corporation from paying for a broadcast
ad that mentions a candidate within 60 days
of an election?
And here the ad would've been an ad for a
rather hackneyed movie called, a documentary
called Hillary: The Movie, right.
Hillary refers to, well, you know, okay, and
during oral argument, Justice Alito finally
leans over and he says, "But," he says, "could
this ban," right, could the authority to ban
this broadcast ad, "Could such a ban apply
to the internet, "to DVDs that might be distributed?
"Providing could it be applied to providing
"the same mention of a candidate in a book?"
And Malcolm Stewart I think realized that
he was in trouble because while we may be
acceptable and amenable in the Unites States
to prohibiting a corporation from spending
a lot of money on a broadcast ad, we don't
burn books.
Actually, there's a lot of us who would like
to burn books, a lot of people in America,
but we don't like to think of ourselves as
people that want to burn books, and eventually
under repeated questioning from Alito, Mr.
Stewart says, "The constitution would have
"permitted Congress to apply "the law to a
book," and there's this kind of a pause there
in the courtroom briefly and the Justice Leader
just said softly, "That's pretty incredible,"
and he went on and he said, "A corporation
that is a publisher could be prohibited "from
selling a book," and again, after quite a
bit of hemming and hawing, and saying well,
the statute doesn't actually apply to books,
and Alito saying, "Yeah, but what does "the
Constitution allow?"
Stewart said, "Yes, it could apply to a book,"
and the bench begins to erupt, and Justice
Kennedy says, "Just to make it clear.
"It's the government's position that under
"the statute, if this Kindle device," because
remember this is 2009, right, seven years
ago and Supreme Court Justices aren't always
known for being on top of the tech world,
so, he says, "If this Kindle device had a
book, "it could be prohibited under the Constitution
"and perhaps under this statute?"
And again, Stewart said, "Essentially yes."
Although he did point out that a corporation
could use, could form a PAC, a Political Action
Committee, collect voluntary contributions
from its employees and managers and use the
PAC to publish the book.
At this point Justice Roberts asked specifically,
or publish the Kindle book, yeah, and at this
point Justice Roberts specifically got in
about a book.
He said, "So, it's a 500 page book, "and at
the end it says, so vote for x.
"The government could ban that?"
And again, after some hemming and hawing and
insisting that the statute didn't really apply
to books and being challenged, yeah, what
about the Constitution?
Malcolm Stewart again said, "Yes," and Roberts
said, "Suppose a sign was held up "in Lafayette
Park."
This is the park across from the White House.
"So, saying vote for so and so.
"Under of your theory of the Constitution,
"the prohibition of that sign would be constitutional?"
And again, noting that of course, you could
form a PAC.
Otherwise, the answer would be yes.
So, Justice Souter chimed in.
Justice Souter said, "Well, what if the union
"were to hire somebody to write a book "or
pamphlet and then later it was published "close
to an election, within 60 of an election,
would it be constitutional to forbid that?"
And Stewart said again, quote, "I think it
would be constitutional to forbid that."
That is the case of Citizens United, and that
is the case in which the Supreme Court said
I don't think that's constitutional, that
has people all over the country horribly upset
and thinking this is a crime against the Constitution
and the common man.
Now, campaign finance, so I'm gonna back up
a bit.
Let's back up and go back to a little bit
of the beginning.
Campaign finance law is a very complex realm
of law.
I have found that is has become so complex
that really I can no longer talk to students
about it, not even law students, not even
good law students like you folks.
Especially when I talk to undergrads, high
school students, you almost can't do it.
I remember years ago, I was at the FEC and
we had a visiting delegation in from China
and we're working through interpreters, and
finally, the interpreter said to me, "You
have to stop."
She said, "Because I cannot explain this anymore.
"I am out of words to define "the difference
between "an electionary communication "and
speech for the purpose of an influencing the
election "and speech relative to a candidate
"and generic electionary communication."
She said, "I just can't, "there's no way to
keep slicing this in my vocabulary."
At the oral argument McCutcheon versus FEC,
a case from a couple years ago, Justice Scalia
actually said at oral argument quote, and
Justice Scalia was a reasonably smart Justice.
He said, "This campaign finance law is so
intricate "that I can't figure it out," and
he's not alone.
He's only more honest than the other justices.
During the same oral argument, Justice Kagan
dismissed part of McCutcheon's and plaintiffs'
argument through offering various hypotheticals
and McCutcheon's counsel pointed out that
even if you ruled in favor of my client, the
hypotheticals you suggested would still be
illegal.
You still couldn't do those things, and Justice
Kagan said, "Well I don't think any FEC "would
say that that's earmarking," and I remember
sitting there thinking, well that's very interesting
because I voted at least four times to find
earmarking then with the majority of the commission,
right, and I was like Mr. Deregulation on
the commission.
Of course, the commission found that to be
earmarking, and I've seen that from other
justices as well.
So, it's a complex area of law.
Now, let's set out a few basics.
Prior to 1974, essentially there was almost
no campaign finance regulation in the Unites
States.
The earliest laws, federal laws go back to
1907, a ban on corporate contributions to
candidates.
There were some laws at the state level that
predate by about a decade or so, but there
wasn't much and mainly there was no viable
enforcement mechanism for these laws and essentially
there was nothing that limited the ability
of a person to do what they want.
So, a person could walk in and they could
contribute whatever they wanted, millions
of dollars directly to a candidates campaign,
and that's the system under which we elected
you know, Coolidge and Roosevelt and Truman
and Eisenhower and Kennedy and so on, and
that's the system under which we beat the
Nazis and passed the Civil Rights Act and
you know, Voting Rights Act and did all that
sort of stuff, okay.
In 1974, Congress passed a member for the
Federal Election Campaign Act sweeping amendments
that provided for limitations of both contributions
and expenditures.
Now, and particularly of interest is the limitation
on expenditures.
Expenditures are defined as things where you
spend money, but you don't give it directly
to the candidates or to the candidate's campaign.
You're just spending money on your own to
voice your political beliefs, your political
opinions, and Congress passed a law limiting
those expenditures to $1,000 and that was
$1,000 if it were, there's two parts to the
statute, one part talks about them being relative
to a candidate for office, and another part
talks about limiting you to $1,000 for the
purpose of influencing an election.
Well, you could see those terms of course,
could apply to almost anything.
They could apply to what we're talking about.
Today might arguably be for the purpose of
influencing an election if some of you are
convinced to vote for or against certain candidates
based on their campaign finance position.
Relative to a candidate?
You know, well, Donald Trump.
Now, I've spoken relative to a candidate.
We're on the hook potentially, right, because
he's running for reelection and of course
$1,000, this would apply to a group like the
National Education Association, the Sierra
Club, the Rifle Association, the U.S. Chamber
of Commerce.
They could spend $1,000.
Well, how far does $1,000 go these days?
I don't think it goes too far.
So, the Court was faced with this law.
Plus it placed limits on what you could contribute
directly to a candidate's campaign, and the
Court took up the issue in several ways.
First, it dealt with the fairly simple issue
and this stills comes up and it's worth reviewing.
The question is is money speech?
Sometimes people say well, money isn't speech.
I think most of us, you know once you think
about it you realize very quickly, sure money
isn't speech, but money isn't a lawyer either
and if you said to people well, you can't
pay any money to hire a lawyer, we'd have
some problems under the Constitution with
your right to counsel.
I think if somebody said, well, you know,
let's say it doesn't matter whether you're
pro Roe v. Wade or whether you're anti Roe
v. Wade, you know, I don't think most people
think that you could get around Roe v. Wade
by passing a law saying it shall be illegal
to spend any money to procure or provide abortion
services.
I think most of us would recognize the First
Amendment problem on freedom on religion if
we passed a law saying no money shall be spent
to construct a Methodist churches or Muslim
mosque, right?
In other words, if you try to limit the money
to get at the underlying activity, I think
we recognize that's a constitutional problem.
So, we've go a fundamental right that's being
infringed upon, the First Amendment right
and that requires a compelling government
interest.
The government offered up two.
One is we want to promote equality and the
other is we want to prevent corruption.
On the equality side the Court said essentially,
you know, look there may be a lot to be said
for political equality.
It's a great thing.
We like it in the Unites States, but in the
end the First Amendment is built around the
idea that the government cannot regulate speech
and it can't do it on some kind of excuse
like promoting equality.
It's hard to envision any law that could not
be argued at some level was intended to promote
equality and the make the system a little
more fair for some particular speaker or speakers,
right?
And the Court recognized this is exactly what
the First Amendment goes at, right.
The kinds of laws and pre-publication prohibitions
and so on that the founders were concerned
about would not have been justified if the
king had merely said, well you know, we're
trying to make sure everybody's equal, that
people are heard properly.
We recognize that that's a recipe for government
abuse and so that can't last, and one of the
most famous passages of the case called Buckley
v. Valeo the Court says, "The idea that the
government may limit the speech of some "in
order to enhance the voices of others "is
wholly foreign to the First Amendment," but
this government offered the second interest
preventing corruption and the court, you know
in the immediate aftermath of Watergate said,
well we think that's a compelling government
interest, right.
We can't have people essentially taking bribes
and to the argument that campaign contributions
aren't bribes.
The Court said, well they're not bribes, but
sometimes they're gonna get awfully close,
right.
It's very tough to tease out.
Most campaign contributors aren't trying to
bribe anybody, but you know, it's pretty tough
to tease out the person who says well you
support this tariff that really benefits my
industry, so I'm gonna give your campaign
a bunch of money, and the guy who says if
you support this tariff, right, I'm gonna
give you a bunch of money, and we're concerned
about that, and the Court essentially allows
limits on contributions, that opportunity
for that sort of direct quid pro quo where
people will talk to one another.
Now, most contributors never talk to the candidates,
but still we're gonna allow this sort of prophylactic
blanket to go over contributions and limit
the size of contributions and it should be
noted that the Court really views that issue
as a bit less of a speech issue and more of
what we might call an association issue because
as long as you can have independent expenditures,
right, you can speak as much as you want and
the Court strikes down limits on independent
expenditures.
It says you can't limit people speaking, right?
You just can't limit it.
The Court says that you cannot do, and people
who are just making expenditures aren't having
that opportunity to discuss favors with the
candidates.
Okay, so the our makes that split.
You can limit contributions and you cannot
limit expenditures, and that's the basic framework
and the Court looks at that contribution as
more of an associational issue.
It says you can still associate with people,
right.
You can still join together in a group, contribute
your $1,000 or whatever the limit is and if
you really want to speak more, you can go
speak independently.
Now, although the limit struck down on independent
expenditures in Buckley v. Valeo, included
among the plaintiff's various corporations,
those corporations and the plaintiffs in Buckley
v. Valeo had not specifically challenged the
limit on corporate expenditures.
They just challenge the limits on expenditures.
So, the FEC continued to enforce the limit
on corporate expenditures, but in fact, it
really didn't matter much because it was pretty
easy work around if you were at all good,
you could work around it without too much
trouble because the Court had also said, these
phrases for the purpose of influencing the
election, way too vague.
Who knows what that is.
Relative to a candidate?
Who knows what that is, way too vague.
The courts said unless you're specifically
advocating for the election or defeat of a
candidate, it's not gonna be regulated.
So, this meant that you could run an ad and
some of you may remember these.
You don't see these as much anymore, but if
you're a little bit older, you might remember
these.
You'd see them.
They'd begin typically with dark cello music,
you know, playing a single note so you knew
that this was a very serious event.
Bum, bum, bum and then somebody would come
on and they would say Judge Sullivan has been
called an ass, right, by a major daily paper.
He's known to steal social security checks
out of mailboxes and hates small dogs.
Call Judge Sullivan and tell him we don't
need his agenda in Washington, and you'd be
like whoa, I'm not going to vote for him,
right, but that was in fact not a campaign
ad.
You were never told to vote for or against
him, so corporations and unions can fund those
kind of ads, right.
These were cut off in 2003 or 2002 actually
by a law called the Bipartisan Campaign Reform
Act, more commonly known as McCain-Feingold
and that's the law that said okay, if a corporation
even mentions a candidate in the 60 days before
an election then it's prohibited.
They cannot do that.
They would have to do that again, as Malcolm
Stewart emphasized repeatedly, by forming
a PAC and doing it through their PAC, and
so, that's what set the stage for Citizens
United.
Now, it's worth just taking a little bit more,
well, by the time of Citizens United the law
had become incredibly complex.
In the case I organized a group of former
Federal Election Commissioners who filed a
brief on the side of Citizens United.
We noted in the course of this brief that
the FEC had rules, separate rules regulating
71 different types of people or entities that
might participate in politics, and regulating
33 different types of speech that people might
engage in.
I haven't even tried to do the math, maybe
Rick Pildes can do it with his chemistry background,
on how many you can put together how many
combinations you can get from 71 entities
and 33 types of speech, but I think it's a
lot, okay.
Which is for most lawyers is usually good
enough.
That's as good as we get at math.
It's a lot Your Honor.
[Rick] I have the number here.
It's 7,422, but...
You have, it's been said by Alfred North Whitehead
that all western philosophy consists of a
series of footnotes to Plato's Republic, right.
Well, the Federal Election Campaign Act is
244 pages.
The regulations alone are 568 pages.
This is before you get to all the FEC interpretations
and guidelines and advisory opinions.
Just the regs and the statutes themselves
are approximately 75% longer than Plato's
Republic, the rock of all western philosophy
here, and Citizens United, how much time do
I have here?
Okay, I'll be real quick.
I'll try to be real quick, but it's worth
looking at the background of Citizens United,
right.
In 2004, some of you might remember a filmmaker,
he's still around, Michael Moore made a documentary
called Fahrenheit 911, and this documentary
he said openly he hoped it would help to defeat
George W. Bush, okay, and it was very critical
documentary of him.
People complained to the Federal Election
Commission about this, and we dodged it on
a number of bases.
We dodges so many points, but in the end we
mainly dodged them on the idea that well look,
we're just not gonna censor a movie by a filmmaker,
right.
We're just not gonna do that.
We gave him an exemption under what we kind
of administratively created for business,
you know, like if you wanna sell t-shirts,
you know, make America great again, right.
You can sell t-shirts and that's not considered
a campaign finance violation.
So, that's what we did, and along comes this
group called Citizens United an advocacy group
that people joined specifically to advocate
for their political alliance and they say
well, we've produced a movie and it's called
Celsius 41.1 and it's a rebuttal.
I'm told, I don't know this to be true that
Celsius 41.11 is the temperature at which
the human brain melts and so that was their
theory and it was an anti-Kerry documentary
that was supposed to support George W. Bush,
okay, and we at the FEC got this and we said
well, you got do that.
You're not really filmmakers.
I mean Michael Moore he's been at Con and
stuff.
You're just an advocacy group.
So, Citizens United said okay, we'll show
you, and they spent the next four years making
movies, documentary movies.
You name a subject that people wanna get going
on on talk radio, they made a documentary
about it.
The United Nations, immigration, you know
whatever it is, you know and they made these
movies, and they come up in 2008 and they
said so now we got a movie and we call it
Hillary: The Movie, and we wanna run this
movie, and we wanna run ads for this movie,
and the FEC says nope, you can't do that because
we still don't really think you're filmmakers.
They even had entered some of their films
in film festivals.
They won an award in the best documentary
category at I think it was the Houston Film
Festival, and I'm not in the industry, but
I don't think that's one of the big ones,
but they still had gotten an award there.
So, they were doing pretty good, and this
was how the case comes to the Unites States
or comes to the Supreme Court, the Unites
States Supreme Court.
What is amazing to me is in the days before
that decision was said, I get all these calls
from journalists and they say is it gonna
be 5-4?
Is Kennedy the swing vote?
They were very excited, you know.
You could tell just by their voice and I just
thought, for first there's one point that's
a little bit of a digression, but it's interesting
to me.
Is Kennedy the swing vote?
It shows how journalists think, right.
Kennedy is always the swing vote.
He's gotta be the swing vote and I'd say look
Kennedy's been on the court for a quarter
century.
He's voted against the government in every
campaign finance case.
He is not the swing vote, right.
If there's a swing vote, it's not him.
It just shows their inability to analyze,
but in the end, it was five to four, and this
decision's often been called very radical.
To me the radicalism, I said this will be
a 9-0.
It'll be 8-1.
I said they'll be different opinions, right,
and some of the justices will go much further
than often, but none of the justices are going
to say you cannot run a documentary movie
about a presidential candidate in an election
year.
No judge is going to say that's permissible
under the First Amendment.
In fact, four of them did.
Four judges of the Supreme Court say the Unites
States government can ban a documentary movie
about a political candidate in an election
year if at any point in the process of production
or distribution or sales there's a corporation
involved, as there always is, as there's been
in every movie you've ever seen in your life
except for home movies, and that's Citizens
United, and I think the decision is wholly
welcome, wholly within the norms of First
Amendment law and quite clearly correct, and
that's the controversy that has roiled the
world for the last seven years.
Thank you.
Now, we're hear from Ciara Torres-Spelliscy
who has a PowerPoint which we're just gonna
get up and running.
All right.
Good morning.
Let me try that again.
Good morning.
[Audience] Good morning.
Okay, just so long as we're all in this together.
My name is Ciara Torres-Spelliscy, and today
I'm gonna talk about free speech, money and
politics and the right to boycott.
So, this is a picture of my father.
He was a sculptor and a very creative thinker
and when I was a youngster he used to say
to me, "Ciara, remember to ask the big questions."
The big question that I'm gonna ask today
is will fear of harassment prevent us from
having a transparent democracy.
Now, I would submit to you that at the heart
of campaign finance is a desire for accountability
and in a democracy we can not have accountability
without a certain degree of transparency.
Now, if you look online, you can find a lot
of information about people's political speech
and their political expenditures and their
contributions to candidates, and whether you
think this is a good or a bad thing, usually
depends on your prior notions about campaign
finance.
On the good side, having all of this data
online really democratizes access.
It means that everyday citizens can look up
who's giving money to their senator, to the
candidates for president, to candidates for
Congress, and it allows for the press to write
their follow the money stories.
On the down side, it could lead to harassment
which is one of the things I want to focus
on today, and I was pause here and this Rick
Santorum getting glitter bombed.
I do not endorse harassment of any type, including
glitter bombing Rick Santorum, but the fear
of harassment is one of the things that people
who object to campaign finance disclosure
regimes often point to, and usually when they
are litigating a campaign finance disclosure
law saying that it is unconstitutional, one
of the things that they will point to is the
NAACP versus Alabama line of cases, and they
will make the argument that NAACP allows for
anonymous political spending.
I think that's wrong on a number of fronts,
including that it wasn't a case about campaign
finance.
Another reason why in worry about this is
I think it's just an ahistorical use of this
case.
Now, so what did they actually do in this
the case?
So, the Supreme Court was looking at the NAACP's
request to keep their membership list confidential
and to keep it confidential from the state
of Alabama in the 1950s, and I think this
case, in its time, was rightly decided, and
if anything the Supreme Court underplayed
the risk that individuals who were known to
be members of the NAACP, the risk that they
faced.
One of the things that the Supreme Court pointed
out is that they faced the threat of physical
coercion and the reason why I think that they
actually undersold that is actually during
the 50s and 60s, you could be killed for your
participation in the NAACP, and so, what do
I mean by that?
I mean it literally.
So, I'm from Florida.
This is a Christmas day bombing in Florida
that killed a member of the NAACP and his
wife on Christmas day.
That's 51.
Then George Washington Lee who was an NAACP
leader in Mississippi is killed in 55.
Thomas Brewer, an NAACP leader is killed in
Georgia in 56.
One of the few ones I may mention today that
you've already heard of Medgar Evers is killed
in Mississippi in 63, but the killings go
on after that.
Vernon Dahmer is killed when his house and
car are fire bombed in 66, and Wharlest Jackson
is also killed in a car bomb in 67.
So, why doesn't this chapter of dark history
explain what the Supreme Court should do in
a campaign finance case?
Partially, I think, I hope that this type
of racially motivated and politically motivated
violence is something that is in our past,
and but I think what motivated the Supreme
Court in looking at campaign finance law is
this other different dark chapter in American
history.
I think between Buckley and the Roberts' Court,
the approach of the Supreme Court when looking
at campaign finance laws was fear of another
Richard Nixon, and one of the things that
came out in the Watergate hearings around
Richard Nixon was his secretive fundraising
and his illegal fundraising.
There was an enormous amount of illegal corporate
contributions that came into his campaign.
Now, as a result of Watergate and Nixon, we
get FECA, the Federal Election Campaign Act
in 74, and there are many different aspects
of FECA that Professor Smith already alluded
to, but one additional part of FECA is that
it requires disclosure and that part of FECA
was also challenged in the Buckley case and
in the Buckley case the Supreme Court distinguishes
NAACP versus Alabama, and they find that there
are three governmental interests that justify
disclosure of money and politics.
They are the voter informational interest,
the anti-corruption interest and the anti-circumvention
interest.
They do carve out an exception within Buckley
itself.
Buckley is a hundred pages long.
It's a long and ornate opinion.
There is an exception for minority parties
if they would be subject to the type of harassment
that the NAACP was subject to back in the
50s.
Disclosure also is improved at the federal
level in BCRA otherwise known as McCain-Feingold.
In BCRA, the law covers disclosure of who
is funding electioneering communications.
This has been challenged repeatedly and the
Supreme Court has upheld disclosure both in
McConnell and in Citizens United eight to
one, but the argument that harassment should
be sort of the exception that swallows the
rule of disclosure has been one that has been
litigated again and again and again.
One of the cases where this came up was a
case called Protect Marriage.
This arose out of the Prop 8 fight in California
and the judge in that case upheld campaign
finance disclosure in part because he felt
like the plaintiffs who were trying to keep
their political contributions secretive, that
they were trying to be able to speak.
They were spending money to support Prop 8,
but they didn't want anyone to respond back
to them.
The judge in that case also said that disclosure
prevents the wolf from masquerading in sheep's
clothing.
Citizens United the group also made this argument,
that to name their donors would subject them
to a risk of harassment, but the Supreme Court
rejected this, noting that their donors had
been disclosed in the past and there was no
actual evidence of harassment of those donors.
This harassment argument was also brought
up in a case called Doe v. Reed.
Doe v. Reed is a case where petition signatures
were, the fight was whether those would be
disclosed or not, and again, the argument
was if we disclosed the signatories they would
be subject to harassment, but in Doe v. Reed,
the Supreme Court once again, sides on the
side of disclosure including Justice Scalia
who has a oft quoted concurrence in Doe v.
Reed.
Justice Scalia says, "Harsh criticisms short
of "unlawful action is a price our people
"have traditionally been willing to pay "for
self-governance requiring people to stand
up in public "for their political acts fosters
civic courage "without which democracy is
doomed," and one of the reasons that I want
better disclosure is if we're going to have
corporations in our politics and I fully expect
that we will have that for at least another
half century if not longer, then I want to
know this as a citizen, I want to know it
as a consumer and I want to know it as an
investor, and here's an example of what informed
political spending can do.
So, for example, Target spends in a gubernatorial
race in 2010 and when the public learns about
this, they are boycotted.
Some of the inventory from that boycott is
still available online, but I think it's worth
remembering that boycotts are American as
apple pie and they are legal.
Some of our founding fathers ran boycotts
trying to protest slavery.
Benjamin Franklin actually encouraged what
we would now call a buycott.
So, he was trying to get people to buy maple
syrup as an alternative to slave grown cane
sugar.
Boycotts were also instrumental in the Civil
Rights Movement and finally in 82, the Supreme
Court recognizes that political boycotts is
also protected First Amendment activity.
Now, we can see some money in politics.
There are really great resources if you're
interested in this.
Go to Followthemoney.org or Opensecrets.org
and if you look at those sources, you can
find publicly traded companies spending in
our elections using their Citizens United
rights.
Our good friend Chevron was the big spender
in 2012.
They were back in the midterm election, though
they were no longer the biggest spender.
They were back in 2016, back at the top of
the pile and they had a lot of company, but
those last couple of slides showing publicly
traded companies spending in federal elections
likely understates the amount of corporate
spending that is done at the federal level
because we have this dark money problem.
There has been about 3/4 of a billion dollars
in dark money spent over the past six years,
and this has worried not just election lawyers,
but also corporate lawyers, and so corporate
lawyers have asked the Securities and Exchange
Commission for a new rule that would require
transparency of corporate political spending
and over a million members of the public have
written into the Securities and Exchange Commission
asking for them to adopt such a rule, but
the SEC is working against the same political
background that all of us are working under
which is an increasing polarization on partisan
lines.
My good friends at Pew have that there used
to be a lot more overlap between Republicans
and Democrats, but they are pulling farther
and farther and farther apart to wit according
to Pew and this is a couple years ago.
27% of Democrats see the Republican Party
as a threat to the nation's wellbeing and
not to be outdone, 36% of Republicans see
the Democratic Party as a threat to the nation's
wellbeing.
It is if we can no longer stand one another
and add into this mix a question put to voters
on the eve of not this last election, but
the previous one.
Voters were asked would you change your buying
behavior based on a corporation's political
spending and a staggering 79% said they would,
and of course, there's technology.
There's an app for that.
If you want to know more about the brands
you're buying and the stances that that corporation
has taken there are at least three apps.
There's Bipat, Bipartisan and Second Vote,
and this election I think has not helped our
bipartisan problem or partisan problem depending
on how you wanna think of it.
I mean my favorite boycott was Trump calling
for a boycott of Hamilton.
I'm like maybe the rest of us can get tickets,
but I think the second part is a little bit
more disturbing.
This is a real CNN headline.
Trump supporters called to boycott Pepsi over
comments the CEO never made.
So, in all of this maelstrom you're likely
to get some innocent companies being targeted
with boycotts, and from the other side there
has been this effort called grab your wallet
targeting Trump branded products and retailers
that sell Trump branded products, and there's
already a new app for this.
If you can't keep like you know, where you
need to boycott straight, and so I think we're
going to see more fights like the one we just
witnessed between Nordstrom and Ivanka Trump,
and if you want to learn more, you can always
read about it in my book.
So, thank you so much.
All right, now we'll hear from John McGinnis.
John.
Well, it's a delight to be here today.
I'm actually old enough to have been a member
of the Federalist Society when our chapter
could've met in a broom closet.
Little did I know that it'd become the most
important civic organization to be born in
the last quarter of the last century, and
your participation as lawyers today it'll
make it strong I think for the next half century
to come.
Today I want to make four points.
In campaign finance it's absolutely essential
to follow the neutral principles of free speech
to prevent government officials including
judges from manipulating our freedoms.
Second, the campaign finance jurisprudence
in the Roberts' Court is best explained by
its effort to assure that campaign finance
law reflects these basic principles of free
speech rather than becoming a law unto itself
shaped by politicians and bureaucrats.
The kind of law that Professor Smith described.
Third, Citizens United is an example of how
law should follow neutral principles, and
finally, the provision struck down by Citizens
United also demonstrates what to me is most
dangerous about the impulse of campaign finance
regulation.
It's privileging of one group of citizens
what I call the scribal class of media and
academics rather than protecting the free
speech rights of all.
The idea that the judiciary must decide its
cases by neutral principles is essential to
sustaining judicial review.
The judiciary's very legitimacy comes from
its capacity to render decisions that are
reasoned elaborations of the constitutional
text rather than the ad hoc manner of politics
which is engaged by the other branches of
government.
These neutral principles require that whenever
rationale a court selects to justify its doctrine
must be applied consistently across all cases.
Thus the decision shouldn't depend on the
identity of the parties or the particular
dispute, but more rather on the principle
transcending the dispute and the parties.
The requirement of neutral principles seems
to me to have a special resonance in campaign
finance law for three reasons.
First, campaign finance decisions can change
electoral outcomes and thus shape subsinive
results across the entire legislative policy
space.
Thus if the Supreme Court doesn't apply neutral
principles it permits speech to be silenced
in a way that may fundamentally distort politics.
Second, the First Amendment is premised on
a view that the government can't be trusted
with decisions about speech, but judges themselves
are government officials.
Thus, the more a constitutional revision reflects
an economy of distrust, the more it requires
the stripped application of neutral principles
to promote strict fidelity to the law, and
judges aren't just any government officials,
they're appointed by politicians.
Now, I'm sure this isn't true about Judge
Sullivan, but sometimes I think it's more--
I deny nothing.
But sometimes even to be nominated, let alone
confirmed, judges turn out to be good friends
of the senator of their state and these politicians
of course, are the very people who make campaign
finance regulations.
Now, if there are more powerful reasons to
apply neutral principles to campaign finance
regulations, as it's somewhat easier to do
was the Court has returned to the subject
of free speech in multiple contexts with much
lower stakes.
Principles forged outside the hurly-burly
of politics better guide judicial decision
making when passions, political passions are
high.
So, that brings me to the Roberts' Court and
what separates the majority from the dissents
today in the Roberts' Court are these neutral
well-established principles of free speech.
The majority generally follows them.
Indeed I think the way to understand the Roberts'
Court's jurisprudence is it tries to move
and anchor our campaign finance, in general
free speech principles.
Moving it away from just particularly reiteration
of Buckley v. Valeo.
The dissenters generally though not bending
their jurisprudence to reflect their views
of good policy.
I don't have enough time to describe in detail
how this dynamic plays out over all the Roberts'
Courts campaign finance cases, but it makes
a difference really at all levels of doctrine.
The most important device the majority of
dissenters persistently disagree on the very
structure of the First Amendment as in cases
outside the campaign finance context, the
Roberts' Court majority treats the right of
free speech as that of a private individual
and private organization with government interest
only measure determined whether they're strong
enough to overcome those rights.
The dissenters I think will change the nature
of free speech in campaign finance cases so
that is more a collective right.
Thus for the dissenters, a legislative decision
to restrict the rights of some can actually
advance First Amendment interest because that
legislation helps the legislator better gauge
what are the true democratic sentiments rather
than being confused by advertisements.
How far afield this leads dissenters from
principles of our charter freedom I think
is best illustrated by Justice Breyers decision
in McCutcheon versus FCC.
There he relied for his collective rights
view of First Amendment on Jean Jacques Rousseau's
theory of the general will.
Rousseau has never been cited in a Supreme
Court majority opinion on any subject for
a good reason.
Some of the framers did know him and they
universally those who thought about him considered
him mad, bad and dangerous.
Even the number of free speech cases cited
show how the Roberts' Court is weaving free
speech principles in the fabric of campaign
finance.
The Roberts' majority decisions cite twice
as many First Amendment cases from outside
campaign finance cases as do the dissent.
Now, let me illustrate in more detail that
Roberts' Court is following neutral principles
by considering its most famous decision Citizens
United, and as we've heard in that case, the
Roberts' Court struck down a campaign finance
law that prevented advertising by corporations
near an election.
The Citizens United court followed established
First Amendment principles.
First, it didn't refuse First Amendment protections
because those citizens were using the corporate
form, and that's correct because it had been
established in over a score of cases before
hand though the Court had given First Amendment
principles to corporations.
Thus, it is a neutral established principle.
It extended free speech rights to corporations
accords with the Constitution's text.
The Constitution's First Amendment is a prohibitional
and congressional action, not a list of individual
entities and individuals and entities that
get constitutional protections, and even more
importantly it refuses the Citizens United
court to make any distinction between media
corporations and other corporations after
the oral argument which we heard about from
Professor Smith, not surprisingly the majority
emphasized that banning a message from the
media like that offered by Citizens United
that had been offered by the media would be
unthinkable.
Thus, given that that interference was impermissible,
neutral principles require that non-media
corporations be similarly protected, and I
think that position follows from both the
doctrine of the text of the Constitution.
The Supreme Court refused special First Amendment
protections to the press that didn't extend
to other entities, and this neutral principles,
neutral treatment of those outside the media,
is also consistent with the text.
One might think, I think naively, that the
freedom of the press clause gives special
protection of the media, but that's not the
best interpretation of the clause.
As I myself noted long before Citizens United,
the press clause is about protecting a particular
function, mechanisms for disseminating information
not about privileging a particular set of
owners.
To put it another way, pamphlet years of the
right to rent out the presses at the framers
time to get their ideas out even if they didn't
own one, and that's exactly what the citizens
and Citizens United were doing.
It would be very odd if the press clause protects
only owners, not renters, and indeed as Citizens
United itself shows, if we decide to permit
only the media to take advantages of the clause,
the FEC and other government officials would
have to decide who is the media, but that's
the very kind of licensing the First Amendment
is designed to prohibit.
The Citizens United court also applied First
Amendment doctrine to determine what kind
of interest would be strong enough to support
restrictions on speech.
Foremost among those government interests
offered in Citizens United was the anti-distortion
rationale.
Namely the corporations with their ability
to amass funds will distort, debate on issue
in Canada.
The Court held that the anti-distortion rationale
was in essence a name for requiring less speech
from those to equalize the opportunities for
others.
So, something that had been long prohibited
by the Supreme Court in context outside the
First Amendment.
The conclusion is self evident I think in
those areas.
It would be obviously impermissible to force
media companies to speak less on a subject,
even though there is evidence that editorial
endorsements like the New York Times sometimes
make or break political candidates and how
can an equality or distortion rationale be
limited to restricting speech during the election
period?
Democracy is an ever-boiling cauldron of ideas
between elections as well as during them,
and this brings me to my last point.
Much of campaign finance reform is troubling
was that it would lead to government imposed
distortions of speech, and indeed it would
do so by privileging a group of citizens,
a group of citizen like the press and academics.
The scribal class who expresses themselves
for a living.
Academics set the agenda of politics through
their ideas and by educating the nation's
youth.
The media refract our politics through their
lenses on a daily basis, and these groups,
I don't think it'll be a surprise to the audience
in this room, leans strongly to the left and
sometimes by overwhelming margins.
The wealthy in contrast who campaign finance
reformers are often concerned about are like
the American people, generally far more divided
with the Koch brothers on the right.
We have George Soros and Tom Steyer on the
left.
We're really worried about distortion, why
not start with the media?
The last election should remind us of the
power of axes other than money in American
politics.
What Donald Trump had going for him was not
monetary expenditures despite the fact that
he claimed to be a billionaire, he actually
didn't spend much of his own money.
What he had going for him was the celebrity
and the media.
Therefore in the primaries, he got more free
media attention, there have been studies on
this, than all of his components combined.
He was catnip if he was put on CNN, and that's
what they did again and again and again.
Now, it's unclear why this happened.
Maybe it was because his appearance helped
the media's bottom line or maybe it was because
some of the media thought boosting him would
be terrible for the Republican Party.
That remains to be seen, but it certainly
demonstrates that it's far too narrow to focus
on money as a source of unequal influence.
Indeed actually, only those with money can
those who don't own some part of the media,
those without celebrity.
Those who I dare say don't enjoy a tenured
position can they effectively express their
views.
In short, what worries me most about the general
tendency of campaign finance law is that it
really wants to magnify the influence of entrenched
sources of power like the media, academics
and celebrity because it tamps down through
the law on the voices of others.
In contrast, the neutral principles of the
First Amendment permit everyone to enjoy similar
freedoms.
To be sure, they'll be exercised unequally,
but that's the nature of freedom.
A few people are articulate, but most are
not.
Some people are wealthy.
Others own or work for the media or are academic,
and still others command attention through
their own celebrity, but most us have none
of those advantages.
Some ordinary people are intensely interested
in the specific government's projects or political
ideals, and it's really therefore very fortunate
that they have forms of organization like
a corporation that enable them to join together
as those who do to form Citizens United who
improved their expressions effectiveness.
So democracy law gives everyone an equal vote,
freedom inevitably leads to an unequal voice,
and thus the real danger of campaign finance
reform is that it doesn't bring greater equality.
What it brings is only greater government
power to determine who will have influence
to the dissemination of ideas, but of course,
that awesome power is exactly what the First
Amendment is designed to take out of the hands
of our rulers, and give it to a free people,
acting as individuals or in the organizations
that they choose to amplify their voices.
Thanks very much.
And finally, we'll now hear from Rick Pildes.
Thank you very much for having me here.
I'm always happy to come to the Federalist
Society Conventions and speak both because
of the intellectual diversity you all brought
to the law schools and because of the commitment
at your conventions to open broad ranging
intellectual and public debate.
I kind of feel like I'm at the Oscars here
with these klieg lights, and after Judge Sullivan's
introductions of us, I feel that way even
more.
I think I've never had as quite as glitzy
a presentation you know, on monitors of the
speakers at an event like this, and I'm kind
of expecting a musical interlude or something
at this point, and in the absence of that,
I guess I'll go ahead and give my remarks,
but if Taylor Swift walks in, I'll stop.
I promise.
Okay, I wanted to put the campaign finance
issues in a larger context of how campaign
finance law and policy has effected the nature
of American democracy and American governance
today at least in my view.
So, this'll be a less doctrinal presentation
and more of an effort to situate campaign
finance in the context of our politics and
our governance.
In my view the major characterization that
seems correct to me in trying to grasp what's
going on in American politics today is what
I call political fragmentation, by which I
mean the diffusion of politics away from the
traditional political parties, from Congress,
from political leaders in government to a
variety of outside groups and outside actors.
So, this sort of horizontal diffusion of power
away from political parties to all of these
outside groups and actors, and the diffusion
of political power away from political leaders
in Congress to individual members of Congress
in a way that makes it much harder to put
together coalitions that can actually govern
effectively and generate legislative solutions
to pressing public problems.
So, let me try to explain to how campaign
finance regulation and doctrine has contributed
to this political fragmentation.
On the first dimension that I emphasize, this
horizontal diffusion of political power away
from the political parties towards all sorts
of outside groups and outside spenders in
the political process, the question is why
is there so much outside spending and when
did it begin?
And usually the answer to these questions
associates the massive rise of outside spending
with the Citizens United case, and Citizens
United is considered the catalyst, the cause
of the tremendous growth in outside spending
in our elections.
Actually, this rise in outside spending, the
emergence of all of these outside groups began
after the enactment of the McCain-Feingold
campaign finance laws in the early 2000s which
Brad referred to earlier.
The context for parts of that law was that
the political parties had been raising what
was called soft money.
That meant unregulated money in very large
quantities from individuals, from unions,
from businesses.
This was epitomized in President Clinton's
Democratic Party providing lists of what kind
of access you could have to various people
in the party if you contributed to the party,
certain dollar amounts including the opportunity
to sleep in the Lincoln bedroom at the White
House, and so these business groups were often
giving money to both parties in very large
quantities.
Reformers thought this was a corruption of
the campaign finance system.
The ability of the political parties to raise
these very large dollar amounts both from
individuals, businesses and unions, and so,
one of the primary purposes of McCain-Feingold
was to cut off the flow of this money to the
political parties which the law successfully
did.
It completely eliminated these flows of money
to the political parties.
The Supreme Court upheld the constitutionality
of that in the McConnell case.
Although there's a very significant constitutional
challenge to that part of the McCain-Feingold
law that's now pending on an appeal to the
U.S. Supreme Court.
The Court hasn't decided whether to take this
case or not yet.
What was the consequence, the immediate consequence
of the putting off of money to the political
parties in this way?
It was to send all of that money to outside
groups that then rose to start spending the
money they no longer could give to the political
parties, and if you look at the data there
is a tremendous increase in the rise of outside
spending immediately after, in the immediate
elections after McCain-Feingold law and the
rate of increase of outside spending that
begins after McCain-Feingold has more or less
has continued the same before and after Citizens
United.
Though Citizens United did kick it up a bit,
but the association of Citizens United with
all of the outside spending that we now have
is a mistaken, but widely repeated assumption
about how our politics works now.
Now, why does this matter?
In my view and the view of many people I think,
political parties are much better sources
of political action and activity, information
communication and the like than these outside
groups for a variety of reasons.
Political parties have to aggregate the broadest
array of interest.
Individual outside groups tend to be much
more ideologically focused on particular issues.
Political parties have a very powerful incentive
to put together the broadest appeal to a national
electorate that will help them gain political
power and control a branch of government or
all three branches of government.
Outside groups are not accountable for the
spending they engage in in elections.
That is, if outside groups run misleading
negative ads for example, voters have no way
of responding to them.
If political parties run the same kinds of
ads, voters can vote against that party or
against that party's candidates.
So, it's no surprise that in the system that
has emerged, political parties and campaigns
have tried to run more positive ads and leave
the negative campaigning to outside groups.
Now, combine this development with the legal
and constitutional doctrine and the way it
treats political parties, and essentially
the constitutional doctrine treats political
parties as no different than any other interest
group in the political system for purposes
of First Amendment doctrine.
So, our campaign finance laws have caps on
how much individuals can give to political
parties.
There are caps on how much political parties
can spend in support of their candidates,
or I should say caps on how much they can
contribute to their candidates.
There are caps on how much spending parties
can engage in in coordination with their candidates
and all of this in doctrine and policy creates
more of a wall between candidates and political
parties than would exist in the absence of
this regulatory structure and it's all been
blessed as a matter of First Amendment doctrine.
So, the Court has done nothing to encourage
a distinct role for parties in the political
system or to recognize the distinct value
and role of political parties in the system.
The second kind of diffusion of political
power away from party leaders to individual
members of Congress is less a matter of doctrine
and more a matter of the communications and
social media revolution that's occurred in
recent years.
So, it's now the case that independent politicians
are far less dependent for their political
success on their political parties.
They are capable of reaching out to a national
constituency and raising money through the
internet from a national constituency.
They are capable of communicating and finding
a national constituency independently of the
major media, of the political parties and
this allows our politicians to be much more
independent free agents, less subject to the
disciplining force of party commitment and
a party leadership.
I think both of these kinds of fragmentation
of our politics leads to the tremendous difficulty
we've had in recent years, certainly in divided
government and I think we will see it in our
scene and to some extent in unified government,
though it's too early to say, but the tremendous
difficulty we have in putting together concerted,
effective political coalitions capable of
forging deals and actually enacting major
legislation.
So, in terms of your own thinking about the
campaign finance issues and stepping back
from the immediate doctrinal issues, I want
to encourage you to think about which ways
of structuring our politics, which ways of
thinking about constitutional doctrine in
this area, which ways of thinking about regulating
the way elections are financed to the extent
we have regulation will lead to a more well-functioning
or healthy democratic process, a process that
enables more effective democratic governance
for people who are in office, and in my view,
what we ought to be seeking to do among other
things is encourage more of election financing
to be run through the political parties rather
than through these outside organizations.
Some of these changes can't be unwound because
they're a product of multiple forces including
technological changes.
Some of them are the product of constitutional
doctrine and of regulatory policy.
In the remaining four minutes and five seconds
I have, I wanted to tell you about a campaign
finance case that I a currently trying to
persuade the Supreme Court to hear on behalf
of an interesting organization that presents
a very different face of campaign finance
issues to the court.
I represent a longstanding grassroots political
organization in Alabama, that since the 1960s
has been the central organization for organizing
and mobilizing black voters in the state of
Alabama, and we are challenging recent changes
to the campaign finance laws in Alabama, and
as I say, this kind of challenge puts a very
different image before the Supreme Court of
how campaign finance laws affect grassroots
politics, how they affect the ability to mobilize
and organize voters.
This organization charges membership dues
of $15 a year.
So, their resources to do voter education,
voter mobilization and the like are limited
from their membership dues.
Now, of course, typically the Court sees campaign
finance cases being brought by wealthy individuals,
sometimes right to life groups, but it hasn't
seen a case from a civil rights organization
before as far as I know, certainly not in
modern campaign finance law.
What Alabama did was pass a law that prohibits
one political group from contributing financially
to any other political group.
So, my organization receives significant resources
from the Teacher's Association in Alabama,
from trial lawyers in Alabama and this money
is essential to its ability to do voter turn
out and voter mobilization and other forms
of independent political activity.
Why did Alabama ban any political group from
giving money to any other political group?
They did have a problem, Alabama by the way
does not have any contribution caps or any
other form of regulation other than a disclosure
system, and in that system some political
actors had started trying to hide the sources
of campaign contributions by creating multiple
political action committees and then running
the money through a lot of different committees
in a way that made it very hard to track.
Particularly hard to track in Alabama because
they had a paper based reporting system and
hadn't yet modernized campaign finance disclosure
law through the internet.
Now, what did Alabama do in response?
This is one of the problems that occurs on
the ground with campaign finance regulation.
Alabama simply decided to respond to this
problem by flatly banning all political groups
from giving money to any other political group.
Alabama, in its response to our petition says
we are being too fussy in demanding that Alabama
do something that is constitutionally more
tailored in an appropriate way to the particular
problem that they had.
One of the fascinating things about this case
I think, is it presents the Supreme Court
much more sharply than most of the other cases
issues of freedom of association, not just
free expression in campaign finance arena
and how the Court ought to think about the
rights of association and the ways in which
they are implicated by campaign finance laws.
We've gotten an amicus support by the way
from Brad Smith's organization and Cato and
some others in this case, and so, I want to
thank Brad for that, but this case shows a
way in which state regulation can involve
kind of a blunder bus approach in a highly
sensitive constitutional area even when states
may have some legitimate justification for
some form of regulation here to enforce a
disclosure regime and this is one of the frustrations
for those of us who confront these issues
on the ground is the lack of sensitivity to
the constitutional values that are at stake
when states regulate in this area at least
in some of these contexts.
Now, my own view tends to be, I know this
is kind of quixotic in this day and age.
I believe that continuing to regulate a privately
financed system of elections with more regulation
here and more regulation there is kind of
tilting at windmills because the money is
always gonna flow through other routes.
Then they'll be the pressure to try to close
down those routes, and it goes on and on in
this way.
The only serious alternative for anybody thinking
that we should consider alternatives to the
current system is something that is much more
of a publicly financed system of elections
which a number of states are adopting or have
adopted in recent days.
Public financing has lots of its own issues
and concerns and problems.
It's not a panacea, but in particular I would
like to see a public financing system which
channels more of the money through the political
parties rather than through other actors in
the system.
Okay, with that, I'm gonna end.
A minute, should I say one comment?
I won't.
A minute and 36 seconds early.
Thank you.
All right, well this will give us some time
for some questions.
I guess one question I have, and I'll throw
this out to the panel, is there seems to be
sort of two components of campaign finance
regulations.
There's limits on spending or contributions
and then there's disclosure.
Can you have one without the other?
Would it be possible to have a regime where
you said all right, we're not gonna attempt
to limit what you can spend, but you've gotta
at least be open about it and we're gonna
make campaigns and parties and candidates
to disclose everybody who gives them a nickel,
sort of the way a judge has to do a financial
disclosure form at the end of the year.
Is that doable?
And desirable?
Is that right?
Sure, sure that's doable, and in fact there
are states that do that now.
You know, one of the things that's often overlooked
is that for example, Citizens United was presented
as being so radical.
A majority of the U.S. states in their state
elections already allowed corporate expenditures
in unlimited amounts in state elections and
it's not like people could look at those states
and go oh man, those are the really corrupt
ones or anything, right, or you could even
tell the difference, and those states such
as Virginia and Oregon rely on disclosure.
Note, I'll add one more word, that the battles
over disclosure now are not over disclosure
of contributions to candidates.
Nobody argues really against that.
I mean there are some arguments against it,
but it's pretty well settled at this point.
There's no political movement to repeal that,
or disclosure of contributions to political
parties or to PACs that are formed for the
purposes of campaigns.
The real question simply comes to should a
group which periodically participates in a
campaign such as Planned Parenthood Action
Fund or something like that, then have to
disclose all of its donors and the problems
here are that people give to these groups
for reasons other than engaging in political
activity.
They may even oppose the particular ad that
is ultimately run which may be run quite some
time after they've given money to the group
and relinquished control of the funds.
Now, there are problems with harassment and
so on, but just as a most practical matter,
there's a question as to whether the public
is actually gaining information from having
that amounts disclosed, and when we talk about
dark money which we heard about a little bit.
Dark money where supposedly a group spending,
and we don't know who gave to the group.
Note that we know what the group spent.
We always know who's running the ad, right.
We always know that, and we know on all campaigns
who gave them money.
We always know that.
So, the question is do we know who gave money
to a group that did independent expenditures?
Well, not always.
How not always?
It's about three to 4% over each of the election
cycles since McCain-Feingold.
About three to 4% of our political spending.
We know who ran the ad, the Chamber of Commerce,
Americans for Prosperity, someone like that,
but we don't necessarily know who gave them
money and part of the reason for is only the
harassment concern which I think can be very
serious, but the mere fact that it doesn't
always help us to know who gave that money
because they didn't give it for that purpose.
It could even be misleading.
They might oppose the ad.
So, but that's a long way to my short answer,
is yeah sure, it's possible.
Anybody else wanna take a crack at that one
or no?
I just want to say something about disclosure.
This is partly a response to Ciara.
So, I have been troubled by some aspects of
the disclosure regime that we do currently
have.
So, I think disclosures are very important,
but it has to be a smart regulatory system
for disclosure that adequately balances the
considerations that Ciara was raising, and
in the federal system for example, any contribution
over $250 has to be disclosed, which is the
figure that was set in the early 1970s when
the law was first enacted, and if you ask,
you know, what is the purpose of disclosure
or what are the purposes of disclosure?
I think that that is way too low a figure
in campaigns where close to a billion dollars
may be spent let's say in a federal presidential
election, and I think there are serious harassment
issues that have become much more serious.
I don't think anybody is you know, at risk
in the way civil rights advocates were in
the 50s and 60s, but there are people who
have been fired from jobs because their disclosure,
their spending became known.
There's no doubt people in the federal government
look at the FCC reports when people are applying
for jobs.
I know I like to make my students aware of
this by telling them when we discuss disclosure,
I go through the people on my faculty and
I tell them how much money various people
on my faculty have given to various candidates,
and it's outrageous that that information
is readily, I should say, there has to be
a good justification for that, and I think
that there is a good justification, but at
a much, much higher level of contribution,
and of course, it's very difficult politically
to raise these figures because politicians
look like they're in favor of secret money
or dark money, but I think unless campaign
finance proponents of disclosure get more
sophisticated about this and take the lead
on trying to improve these regimes, they become
more and more constitutionally vulnerable.
I would agree.
So, one thing I wanted to correct the record.
I was not the head of the Democracy Program
at the Brennan Center.
That's Wendy Weiser.
I was merely a counsel at the Brennan Center
and now I am a fellow there.
That being said, one of the things that I
did when I was at the Brennan Center is we
would get calls from lawmakers, governors,
sometimes the White House or Congress asking
for help in drafting constitutional campaign
finance regulations, and part of why you need
to call a lawyer in order to draft a piece
of legislation is how ornate this area of
the law has become through a series of Supreme
Court decisions, but one of the things that
we would advise when people are drafting disclosure
regulations is to not do what's sometimes
known as first dollar disclosure.
Like you have to have sort of a reasonable
threshold for when disclosure kicks in, and
so, in that aspect, I think I actually agree
with some of the rest of the panel on that.
All right, well let's get questions out to
you.
So, we're gonna go to 11:15, right?
So, we do have time for a healthy range of
questions.
So yes, sir.
[Male] So, I'd never heard before the notion
or I hadn't studied the NAACP cases too closely,
the notion that the protection for anonymity
is somehow tied to the history of the group
being targeted for by violence and the application
that I think of today, most straight forward
would be pro-choice groups which certainly
receive credible threats of violence and indeed
actual instances of violence.
So, I'm wondering what the scope of those
protections would be?
Would it be that the specific groups that
have been threatened are you know, receive
more protections, or is it broader?
In that, which to me would suggest that pro-choice
groups receive a higher degree of First Amendment
protection for anonymity, but pro-life groups
would not.
Is that, am I understanding that correctly
or?
So, perhaps former Commissioner Smith could
speak more to this, but for example, the Socialist
Workers Party has this longstanding exemption
at the Federal Election Commission because
they made the argument that to name their
members would actually expose them to the
type of NAACP harassment, but are they alone
in getting that exemption to your knowledge?
To my knowledge, to my knowledge, there we
go, to my knowledge they are the only group
that has gotten that exemption.
To your question, it is specific to the group.
Dean Post.
Oh, sorry.
I just want add a couple quick questions or
points on that.
It is first ironic.
I support the exemption for the Socialist
Workers.
I voted for it at the FEC a couple times when
it was up for renewal, but I do find it ironic
that the one group that gets the exception
is a group that is openly dedicated to overthrowing
the Unites States government.
The degree of harassment is very important
and Ciara mentioned this as to the NAACP and
Rick did as well, but I do think we need to
remember that you know, if we want to talk
about the timely principles of justice, right,
I mean disclosure's much more intrusive than
it used to be.
It used to be you couldn't just sit on your
computer and pull up everybody who had contributed.
You had to go down to the FEC, scroll through
microfiche and so on.
You know, it wasn't like now when you go out
for job interview that partner who's gonna
meet with you in the three minutes before
you get into his office can if he's so inclined,
pop up any political contributions you might
have made, and in that respect, you know I
do think the law is much more intrusive, and
it's also used in a more intrusive way to
bother people.
For example, in California after Prop 8 which
was the gay marriage proposal there to prohibit
it at the time.
You know, there were groups who put up sites
in which they took this information from the
disclosure forms, popped it on the web and
connected directly to maps to people's homes.
So, if you wanted to know who gave to the
wrong side, you could pop up and get a map
then to their home and that has if nothing
else, kind of an intimidation of threat.
You know, are there histories of lynchings
of folks and so on?
No, but I do think we need to think seriously
about how much you know, we think people should
have to put up with in order to participate
in politics.
So, I want to say I'm worried this and the
connection to First Amendment principles.
I'm a little concerned if we just only give
exemptions for people who are harassed.
Let's just go through what I think it going
on here.
We're requiring a disclosure for targeting
a specific kind of speech.
Let's assume again, I'd like to look at analogies
outside campaign finance.
We said you had to disclose all sort of contributions
to political magazines.
I think that we first would want to ask even
before we get to questions of harassment,
the government to justify that with some important
interest, and that's why I very much agree
with Professor Pildes' remarks that at least
at low levels there really should be low levels
of contributions, they shouldn't have to be
disclosed because they do not, I think they're
not a prophylactic for corruption or even
if we think appearance of corruption is a
legitimate government objection.
They really don't advance that.
So, I think the focus at least at first on
disclosure should be on requiring the government
to show us what's the interest that rises
to the kind of compelling interest the First
Amendment requires.
Dean Post.
[Dean] A question for Professors Pildes and
McGinnis.
I understood Professor Pildes to be saying
that political parties should be treated differently
than other speakers and I understood Professor
McGinnis to be stressing the need for neutral
principles of First Amendment doctrine.
So, to Professor McGinnis, would it be a neutral
principle if we treated political parties
differently?
And to Professor Pildes, would you accept
the need for neutral principles of First Amendment
jurisprudence?
So, I think I guess the way I would say this
is as a matter of policy I think I almost
entirely agree with everything that Professor
Pildes suggests.
I think it is a problem that we don't allow
parties to have substantial contributions.
Now, to be sure even as the structure exists,
parties can have PACs and my impression is
that one of the ways the parties have dealt
with campaign finance laws, there's now a
Senatorial Party PAC and that allows for,
on the principles of Citizens United and independent
expenditures for parties, so I do think parties
have a very substantial amount of leeway in
the law and they should use it.
I would favor changing the law.
I don't know enough.
So, what do neutral principles require here?
I certainly think that they wouldn't allow
us simply to say well, as a policy matter
we think parties are important.
We might be able to say that we don't think
contributions to political parties raise exactly
the same concerns about corruption and make
distinctions in that regard, but I do worry
about a campaign finance jurisprudence that
is built on what seems to me very policy oriented
views about the nature of politics because
I think those are rather contestable and I
think they also are ones that change over
time.
I mean, it's not so obvious to me.
Perhaps it is to Professor Pildes that parties
have changed in a fundamental way.
They're more networked, but after all, most
of our structures and societies are more networked,
less hierarchical than they once were.
So, I worry about putting our jurisprudence
on what I see is somewhat more shifting sands.
As much as I think I agree almost entirely
as a policy matter.
So, in this day and age when individual lines
can be taken out of context from online transmission,
I will try to avoid making the joke saying
no, I'm not in favor of neutral principles,
and I will say yes, of course I'm in favor
of neutral First Amendment principles, but
the obvious principle here is an associational
rights principle under the First Amendment,
the political parties and their candidates
have distinct associational interest that
are of constitutional magnitude.
The courts recognize the constitutional associational
rights of party members.
What's very strange here, it seems to me,
is policy, you know statutory law, that parties
cannot coordinate with their candidates beyond
a certain dollar amount.
Otherwise, it will be treated as an illegal
contribution by the party to the campaign,
and that is capped.
There's a dollar cap on that.
You can recognize the distinct role of parties
as matter of legislation without even having
to address the issue as a matter of constitutional
doctrine, and to some extent the campaign
finance laws do.
They do allow larger contributions to parties
than to ordinary political action committees,
but I think those contribution levels could
be raised.
I think Congress could legislate in a way
here that allowed more coordination between
parties and their candidates and I think that
we would have a better system if parties and
candidates were more bound together than a
world in which everybody is kind of an independent
free agent having to fend for themselves,
and by the way, party money in elections tends
to be among the most moderated sources of
money in elections because political parties
at least when they're functioning well don't
care as much about the ideology of their various
candidates.
They want to get their candidates elected,
and if you ask who gives money to the boring
moderate centrist candidates, it's not individual
donors, whether it's small or large donors.
Individual donation money is among the most
polarizing money in the system because if
you just think about it, if you're a let's
say Claire McCaskill from Missouri, a moderate
democrat.
What's you're capacity going to be to raise
money on the internet nationally?
Compared to much more ideologically well-defined
and extreme candidates of the right or the
left say Liz Warren and Ted Cruz, both of
whom raise massive amounts of money on the
internet.
So, party money tends to be actually a very
significant source of money for empowering
the centrist forces and campaigns and in politics.
Okay, more questions.
Let me look on this side of the room.
Yeah, sir.
[Male] Not all voices are equal.
Celebrities who work professionally in selling
their voice and face often for free go to
political candidates and espouse their views
for them.
The only way to counter that I would think
would be for people who are in the general
public to give money and since that's limited,
how do you balance that out and why is that
not considered?
I'm always happy to take time on the mic.
Yeah, go ahead.
Go for it.
I don't want to look too much like a hog.
As a celebrity on our panel, I think you should.
It's appropriate for you.
You know, I mean it's a very good point.
Obviously, we're different in a lot of ways
and it doesn't just go to even celebrities.
I mean I would say for example, you know,
those of us up here on the panel in a sense
have money more opportunities than others.
We have jobs that allow us file and make a
brief in important cases and to write op eds
and to do things like that, to appear at these
things and speak, and we have the skills that
are applicable to politics to some extent,
at least the others do, you know, to be articulate,
to write well, things like that, and other
people don't have those skills, but they may
be able to contribute a sum of money, and
so I do think this is part of the reason that
the First Amendment kind of prohibits government
from getting into this equality game because
you can justify almost any regulation on equality
because when there's so many ways in which
we are all so different and if the government's
gonna start picking and choosing you know,
who needs to be heard more?
Who's not heard enough?
It pretty much is gonna be able to justify
whatever it wants to do and it would justify
bad things under the pretext of promoting
equality.
I would just mention that actually in McCutcheon
there's a hint of your question in McCutcheon.
They talk about celebrities as opposed to
people who can just give of money and allowing
the ability of someone to give money to a
lot of candidates.
They do reference that.
I do think it raises the question about whether
the contribution limits are too low.
If there is a concern about corruption, I
think it goes back to Professor Pildes' comments.
It's very hard to raise these and so what's
going to happen with respect to inflation?
It certainly I think raises questions about
that was it seems to be so, treating people
who are not celebrity, who don't have a tenured
position so unequally on rather flimsy grounds.
There's even data now that most of our citizens
don't think that $2,500 can be corrupting.
So, I do think that inclination is already
represented in the Supreme Court and may raise
questions in the long run about with some
challenges to the amounts if they continue
to be as low for contributions as they are
today.
Yep, Ciara.
So, I just wanted to add just a little corporate
law reminder.
Number one, corporations are still banned
from giving directly to federal candidates.
That's the Tillman Act.
That's from 1907.
It's still in effect.
Who knows how long it will last, and what
corporations can do under Citizens United
is spend an unlimited amount of money on political
ads so long as those are independent of the
candidate, but when they do so, they are using
other people's money and so, one of the things
that I work on is trying to bring more transparency
to corporate political spending so that customers
and investors have an ability to react if
they want to.
Michelle.
[Michelle] Professor Torres you started with
the premise that disclosure is accountability
and the press can follow the money.
So, how are disclosures justified in the context
of a ballot box initiative where like in Prop
8 people are coming together to make decisions
about important issues and there's no potential
corrupting effect of giving money to a politician,
so what about that?
So, I guess a few things.
One, the Court itself had distinguished between
ballot measures and candidate elections in
the Bellotti case.
That's why corporations ever since Bellotti,
which is back in the 1970s, have had the ability
to spend an unlimited amount on those races.
Sort of a precursor to the Citizens United
right to spend an unlimited amount in candidate
elections and one of the reasoning given in
Bellotti is there isn't a candidate to corrupt,
and so the same concerns we would have about
a candidate election, you're right, are not
present with a ballot issue.
Nonetheless, I think that if you look at some
of the super expensive California campaigns
where they're either amending the state constitution
or they are severely limiting what their own
state legislature will be able to do in the
future, I think it's actually a really useful
heuristic to give the voters in California
or wherever the ballot measure may be, the
information about who was funding it, because
who was funding it can give a very clear snapshot
of what the ballot initiative is really about.
Well, I think that's gonna have to wrap it
up.
I would point out that Hamilton who was cited
by Professor Torres-Spelliscy and who I cited
as well, of course wrote under a pseudonym
which, right, and prevented people from boycotting,
glitter bombing or fire bombing him I suppose,
but there's a long grand tradition of anonymity
in some cases.
So, as is almost always the case with the
Federalist Society Panel, we have resolved
nothing, but provoked so much thought and
discussion and you know, I think that's a
great thing.
I mean, I think that it's beyond reasonable
expectation to think that we're gonna get
to a resolution on something as complex as
this, but to be able to have some of the greatest
minds on this subject talking to give their
perspectives, to take questions, to discuss
with each other, it really is a privilege
to be here to watch it.
So, thank you all for being here.
We'll take about 10 minutes, and let me thank
the panel.
Very good.
Thank you guys.
