September 25, 2024 • 30 mins
In this episode of "The Fourscore Project," Roger Clark continues his engaging conversation with Professor Barry McDonald from Pepperdine University, focusing on the controversial issue of money in politics. They explore the implications of the Supreme Court's Citizens United decision and its effects on campaign finance, discussing whether money should be considered speech and the challenges that arise when wealth influences political power. McDonald critiques the current legal landscape, where corporations and billionaires can disproportionately shape elections, arguing for a return to judicial modesty and the potential for public financing of campaigns. The episode delves into the broader impacts of this legal framework on democracy and the prospects for meaningful reform in the future.
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(00:21):
This isRoger Clark, your host of the Fourscore
and Seven Project, a productionof the New Majority Foundation.
Today, we return for parttwo of our interview with Professor Barry
McDonald, professor of constitutional lawat Pepperdine University.
Our subject today is money and politics.
Is it a blessing or a curse as the SupremeCourt blusters or destroyed us?
(00:45):
Professor McDonald, welcome back.
Today,we want to talk about money and speech.
In the United States,we all know how much money is spent
on political campaigns,independent expenditures, and the number
that is spent has gone through the roofin the last ten or 12 years since a case
called Citizens United was decided
(01:06):
by the United States Supreme Court.
People are troubledby how much money goes into speech,
or at least into political campaigncontributions, independent expenditures
and so forth and so on.
So we have a very unique systemin this country, United States,
which I think is a lot differentfrom others.
For example, maybe in Great Britain,they have a different approach
(01:28):
to how they finance their their campaigns.
But the issue is money and speech.
The Supreme Court,
as I understandit, says that money is speech.
But at least one prominent justice
there was John Paul Stevens, dissentedand said money is not speech.
What are your thoughts on this issue?
Well, money is clearly not speech.
(01:49):
Money is a unit of economic exchange.
Money is more like a bullhornthat can amplify speech
and spread it further. Right.
So the more money you have, the more meansof disseminating your speech.
You can, especially through channels
of mass communicationand particularly ad buys,
(02:10):
is where most of that sort of money goes.
And so for the Supreme Court
to recently sort of take the positionthat,
you know, Congress or state legislatures,
if they want to,if they see sort of the problems
(02:31):
that arise in terms
of lawmaking by having to constantly be
raising money for ad buys
in order to win the next electionor for whatever they're buying,
so it consumes their time.
The other problem with money is that
(02:55):
some people have more money than others
billionaires, corporations, unions.
And so it's sort of creates
a situation where,
you know, people can gain
special accessand influence over legislators
the more they're willingto spend on behalf of those candidates.
(03:18):
And I just think that
money should not be treated as
a restriction on speech in the way thatthe Supreme Court has been doing that.
But maybe sort of a they should view it
as what's called a time, placeand manner regulation of speech.
(03:41):
If you know the manner that you want tospeak is by buying ad buys and so forth.
And, you know, we're going to allowthe government more leeway
to sort of prove thatthose sort of restrictions are needed.
But, you know, the current conservative
majority of the SupremeCourt has taken to me to be a very
disturbing path in this area of the law.
(04:03):
They have come to sayin a couple of major recent decisions
that, you know, people with more money,
and particularly
if we're talking about corporationsor unions or billionaires,
to the extentthat they're able to with their money
to show support to a legislator.
(04:25):
And to the extentthat legislator reciprocates
by showing gratitude in terms of,you know, giving them special access
and listening to their petitionsmore closely.
The current Supreme Courtsays, well, that's just the way
our democracy worksand that's built into our democracy.
(04:46):
And it's just sort of
as long as it doesn't amountto sort of a quid pro quo bribe,
we'll spend this If you give us that,then that's as far as
the government can goin sort of regulating that situation.
Now, the more liberal justicesand I'm not liberal, more conservative,
let me just put this on the tableright now.
(05:08):
I'm an independent.
The liberal justices have always said,
come on, that that is not our visionof how a of a well-functioning democracy
should operate, that, you know,those with money should have a greater say
in affairs of governancethan those without money.
And we think that if if by spending money,
(05:31):
they are gaining access and influence,that that should be prohibitive.
And it shouldn't be.
Government shouldn't be barred fromregulating that by notions of free speech.
And I frankly think that they havethe much song sounder position on that.
Well, well,I mentioned the Citizens United case.
I think it's about 11 or 12 years old now.
(05:55):
And I just kind of threw it out therewithout defining it.
Tell us a little bitabout what citizens United did
in the realm of money
in political campaignsand political contributions.
Independent expenditures.
And so so what Citizens United did wasit was a 2010 decision.
(06:15):
And there so since the 1960s, in 1970s,the Supreme Court
has recognized that corporations enjoysome measure of free speech rights.
That is even debatable
because corporations are artificialconstructs created by state.
They don't have a vote.
They're investment vehicles
for shareholdersto be able to invest in a business without
(06:39):
being exposed to undue liability.
But they are moneymaking machines.
Hopefully, if they succeed, that'swhat they're designing.
He certainly hoped and the shareholderscertainly of their moneymaking machines.
So, I mean, in the people that are incorporations have plenty of free speech
rights and in theory, including throughpolitical action committees and so forth.
So to say that the corporation isa artificial
(07:00):
construct has free speech rightsI think is extremely debatable.
But that should also be truewith the union as well.
I mean, that's an artificial constructbecause it is an organization.
Sure.
And I'm just there's a lotmore corporations than there are unions.
Yeah, but yeah,but it's the same same principle.
It's an artificial,fictitious legal entity created by law.
(07:21):
And so I think the law should be ableto put some reasonable restrictions
on how they operate.
But in the early sixties and 1970s,the Supreme Court started saying that
corporations do have some free speechrights.
And in particular,
there was athere was a case that said corporations
have the ability to spend money
(07:42):
in connection with initiativesthat affect their business.
And the Supreme Court said, well,
if it's an initiativethat affects their business,
the businesses ought to be ableto spend on that and, you know,
have the public hear their views on that.
And I think that's fine.
But then in 1989,
corporations were starting to get involvedin funding the
(08:03):
campaignsof particular political candidates.
And that's when governmentstarted to step up and say,
okay, no,we don't think that's a good idea.
You have disproportionate wealth.
You have the ability
to sort of dominate,dominate the marketplace of ideas on this.
And so, you know,
if you want to speak to initiativesthat affect your business, that's fine.
(08:23):
But we're not going to allow youto sort of
install the politicianswith all your money that did
that are going to sort ofpromote your pro-business agenda.
And in 1989, in a54 decision,the Supreme Court upheld that.
They applied.
You mentioned it before, strict scrutiny,the most demanding test.
And they said there's such a threat herethat corporations will sort of dominate
(08:44):
the marketplace of ideas and in certainother rationales that they said
that we think that these laws
restricting corporations from fundingpolitical campaigns are justified.
Well, Citizens United camealong with a more conservative support.
30 years later,the Supreme Court actually reached out,
not acting minimally like that.
(09:07):
You know, say they likethey only decide were necessary.
They didn't need to decide this.
They actually reached outand and posed the question,
should we overrule that 1989 decision?
Well, once that was out there,you knew the writing was on the wall.
And sure enough, in a54 decisionin Citizens United, the court
overruled that earlier, five four decisionwent five four the other way,
(09:30):
the conservatives in the majorityand basically said, no, we think that
both corporations and unions have freespeech rights to be able to spend
general Treasury money,you know, money that you earn from buying,
from selling,you know, case loads of toothpaste
to use that general
Treasury money to get your
(09:53):
political candidates of choice elected,
as long as it's an independent expenditure
that it's the corporationsor the unions acting on their own behalf
and not coordinating that expenditurewith the campaign itself,
then it looks more like a contributionand we think that there is enough
risk of corruptionto allow put limits on the ability
(10:16):
of corporations and unionsto give money to particular campaigns,
but they can independently buy
these ads that attack their opponentor promote the candidate.
Well, the otherthe counterargument by the government was,
well, you say it's independent, butit's really not these these candidates.
They know who's making theseindependent buys on their own behalf.
(10:36):
They feel gratitudetowards the corporations, unions.
They're doing this.
They're giving them special access.
They're giving them sort of specialconsideration to their priorities.
And that's where the Supreme Court said,well, as long as it's in our quid pro
quo corruption, we're notwe're not going to worry about it.
The four more liberal justicesdissented, saying, no, that's
not our view of democracy.
(10:57):
And frankly, I think that Citizens Unitedwas was a big mistake
in terms of allowing sort ofand not just it's
not just an issue of corporation and unionspending.
In fact, I think the empirical numbersafter Citizens United show
that corporations are fairly carefulabout where they place their
(11:17):
I don't think there's been a huge increasein sort of funding
that corporations have funneled into thesead buys on behalf of candidates.
I think the greater problem today,frankly, is billionaires,
you know, that are able to spendso much money in these sorts of elections
to get their
particular candidates of choice elected
(11:39):
that I think it is really sort ofdistorting
the marketplace of ideas out therein dominating it.
And I so I mean, I do think that
we need to sort of take a comprehensivelook at all of this.
But I don't think an amendment that saysCongress shall make no law abridging
the freedom of speech should preventCongress or state legislatures
(12:01):
from putting reasonable limitson the amount that,
you know, people with inordinate wealthor corporations with inordinate
wealth can spend on behalfof getting certain candidates elected.
Well, I think coming back to John PaulStevens, who
I think I quoted earlierthat who said money is not speech.
He retired from the Supreme Court and thenhe was testifying before the Senate.
(12:24):
This is about nine or ten yearsago and actually proposed
actually, he said
that while money is used to financespeech, money is not speech.
Those financial activitiesshould not receive
the same constitutional protectionas speech itself.
After all, campaignfunds were used to finance the Watergate
burglaries, actions that clearlywere not protected by the First Amendment.
(12:46):
Now that his testimony before the Senate
Rules Committeeand then he actually proposed
a constitutional amendment the wayhe would like it formulated read this way
Neither the First Amendmentnor any provision of this Constitution
shall be construedto prohibit the Congress or any state
from imposing reasonable limitson the amount of money that candidates
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for public office or their supportersmay spend in election campaigns.
What do you think about an amendmentlike that?
I love it.
I think I don't think five or six lawyers
appointed to the Supreme Courtought to be telling the American people
how their system of elections canor can't be run.
I think that if the American peoplewant to take the lead of certain
(13:30):
other sort of advanced democraciesthat have gone to systems of public
financing of elections,just get private money out of governance.
It's too much.
We all know that it leads to sordid deals.
Maybe they're not quid pro quo bribery,as the court likes to say, but we all know
(13:51):
that money drives a lot of public policyand lawmaking in this country.
I mean, look at the lobby industryin Washington, D.C.
and what goes on there.
I mean, it isyou know, whenever the cover is lifted
a little bit,you know, it's just it gets very messy.
And I think we as Americansshould be able to say,
(14:13):
even with the free speech clausein the Constitution,
that we do not want peopleinjecting their private money into
who gets electedor what laws that they pass, that we
we should allow for a system of publicfinancing that gives candidates a certain
pool of money to run their elections,and then they really have to run on that.
(14:34):
How many ad buys or negative attack adsthey can buy, but they have to run
on the strength of their ideasand let the Americans choose.
And for the Supreme Courtto stand in the way of that
which, you know, which I thinkwould promote a much healthier democracy,
we all know that most legislatorsdon't legislate in the public interest.
They legislate in favor of the peoplethat are writing their
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the biggest campaign checkto their to their reelection campaign.
That's the onlyway we're going to get legislators back
that are going to actually legislatein the public interest.
Well well, my sense and maybe this isin the wake of Citizens United,
is that the folks up in Congress,particularly on the House side,
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maybe because it's every two years
they're elected, it strikes me that it'sthey don't really represent
their individual constituencies,meaning the districts
from which they runas much as they represent
the sources of the money,which is usually from the leadership.
And what what we end uphaving is leadership calling the shots
(15:39):
with that individual membersas a statesman.
You would think they are with that,but say that
I know that's what my leadership agreesor wants to do, but I don't agree with it
because my constituentswouldn't agree with it.
But I don't hear that anymore.
Am I off base on thisor am I misinterpreting?
It's all part of the sort of the tribalwarrior culture that has developed.
(16:00):
I mean, everyone's an enemy who's not withus, and it's just a part of that.
And I you know,I think it's it's really problematic.
Well, you know, you bring a good point.
And we talk about the unionsalso in just a minute.
But but the you know, you had thesebillionaires spending all this money
on these independent,independent expenditures,
but yet this billionaireonly has one vote.
(16:23):
You may
be worth $100 billion,but still only have one vote.
And that person walkingthat's working at Starbucks, who's making
maybe a little bit more than a
minimum wage or a living wage, whateverthe case may be, has one vote two.
But yet that person who the barista can'tcontribute $1,000,000,000
or $500 million, how much is going to beto an independent expenditure?
(16:44):
And that seems to me an inversion of what
the founders would think ofhow a democracy should work.
And thoughts on that?
Yeah,I mean, I don't think the founders well,
the founders were kind of complicatedon the issue of electoral rights.
You know,they believe that mainly the landed gentry
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should have voting rights
on the theorythat they were the people that were,
you know, got the education in those days,had the vested interest in seeing that,
you know, you had a sound and orderlysociety and so forth. So,
you know, the concept
of one person,one vote is really a modern concept.
(17:27):
And ironically, it waswho was created by the Supreme Court
in the early 1960s
as a matter of the equal protection clause
and has created it.
I mean, a lot of people say that's greatbecause it sort of
ushered in sort of modernnotions of electoral equality,
but it's also created its own problemsin terms of legislatures, gerrymandering.
(17:51):
So every ten years you have the census,you have to conform to this one person,
one vote for each voting district.
So you have to redrawthe voting districts.
And of course, that's where you get theseparties going at it in gerrymandering
and disenfranchizing,a lot of the voters of the opposite party,
by the way, that they drawthe voting districts if they're in power.
And so we have to real problem,real threats to our democracy
(18:14):
going on right now.
And that is number one,partizan gerrymandering
that is disenfranchizing votersin many states.
And number two, you know,the private money that it sort of drives
a lot of our lawmakingin this country. So.
And both of those can be traced
back to our eminent Supreme Court.
(18:35):
And, you know, at least thethe origins of these problems. And
so we look to the Supreme Court,
you know, why the average Americanputs the Supreme Court on a pedestal.
They don't understandhow the Supreme Court and some of their
actions have really, I think, donea lot of harm to American democracy.
And I'm actually working on a bookto explain my point of view on.
(18:58):
When might we see that book?
well, between all of the other things
I have to do,it may be a while, but I don't know.
Do you have a title for it yet?
So we can keep an eye out for it?
Well, I'm thinking, well,this is sort of a divided we stand
how the Supreme Court has sortof exacerbated that whole problem.
I need to catch your thing than that, but.
(19:19):
Well, wonderful.Well, we talked about corporations
contributing to independent expenditures.
What city? Nash or city?
You know, Citizens United,
authorized, treated, essentially unionsthe same way as corporations,
because unions are a legal organizationin the same sense.
(19:39):
But but unions, I do believe, contribute
a whole lot of money to independentexpenditures as well, I think.
And, you know, in California,I think they typically contribute 100,
100 and $5,060million a year to every election cycle.
I'm assuming your reasoning.
Absolutely applies to two unions, asis corporations.
(20:00):
I'm just using corporationssince, you know,
they tendto have such a bigger presence in our.
Well you know in a kind of the the Janiceanother opinion of the Supreme Court
Janicewhich is getting some age on it now too
I think it'ssix seven, five, six seven years old maybe
was the case has said
that you cannot compela member of a union.
(20:23):
I think there was a public employeeunion case, cannot compel a member
of of the organization to which
the union controlled.
You cannot compel that individual to paydues that go to supporting
political causes that the individual doesnot necessarily agree with.
no, That was prior law.
(20:44):
This this decision went further and saidthat the union members couldn't be forced
to just supportthe collective bargaining activities
that got themadditional benefits in their job
because it violatedtheir freedom of association,
which is in the Constitution,at least in this incarnation,
to have to sort of pay money
(21:05):
to a unionthat does things that they disagree with.
And so to say that union workers
I mean, I'm sorry to say that peoplethat don't want to join the union
can't be forced to at least contributeto the collective bargaining activities,
aside from political activities thatget them additional benefits in their job.
(21:26):
I think it
just shows you how far the
Supreme Courthas come in terms of being a policymaker.
They take that one word free speech.
They derive from that.
Okay, well, if there's free speech,there must be this sort of freedom
of association in expressive matters.
And since unionstake positions on political issues
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that people don't want to contribute to,even if they're not being made
to contribute to them,
just the fact that they have to give moneyis sort of an infringement of that
freedom of expressive association andtherefore it violates the Constitution.
It just gives youthis is sort of a poster child
of how the Supreme Courthas taken these short in general phrases
(22:09):
in the Constitutionand supplanted the job of our lawmakers.
And, you know, I justI just think that we need to go back
to an eraof judicial modesty, judicial restraint.
Well, you know,
here we have a situationwhere in the wake of Citizens United
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and it was always there before,but it is now on steroids.
You have these election cycles.
It's an industry,
you know, and people are runningfor office a year, year
and a half or two yearsbefore the election is held
and millions and millionsand millions are being spent in.
It supports a lot of jobs,which creates a lot of financial interest
(22:51):
into supporting money into the system,which probably
makes it very difficult to
cause a change.
Restricting that money because that meanspeople are going to suffer financially.
How do we deal with that?
Well, I mean,
I don't know.
What particular problems are you thinking?
(23:12):
Well.
Well, you always follow the money, right?
So, you know,there's a vested interest in maintaining
an established money stream because it,you know, supports your jobs in this.
Or if there's going to besome kind of political reform
that turns off, that money's back
and people will be against it,is what I'm trying to say.
And so you're going to have serious
(23:33):
to do the reform that you're mentioning.
There would be a lotof political headwinds to get that through
Congress or any state legislature as well.
you're talking about a system of publicfinancing.
Yeah, no, no doubt.
I mean, you know, I'm I'm talking about
enlightened legislators trying,you know, convincing
(23:54):
their constituencies that this isin the best interest of the country.
We're all as a whole these days.
I mean, at some point, hopefully,I do think, you know, I'm not a naysayer.
I do think
society's progress and evolve.
I think we're going to get to a pointwhere
(24:14):
people are just tired of,
you know, people trying to lead inwith this facade of doing it
in the public interest, but really beingout totally for themselves
and in whatever interests, you know,they're supporting.
And I do think at some pointwe're going to get there.
(24:34):
It's going to be a long time, but
it's going to take social, political,economic evolution.
Well, maybe
we'll get to that point some timebefore my grand my one year old grandson.
Is I don't know.
I'm talkinghundreds and hundreds a long, long time.
Well, you know, in this conceptof being compelled to support speech
(24:55):
that you don't necessarily agree with,I want to come back to the concept of
of legal organizations,whether they're unions or corporations.
You corporations have stockholders,you have employees.
So so that money that's in that generalTreasury account comes from the activities
of the corporationand the owners are the stockholders.
(25:17):
And those stockholders may not agreewith what
the corporate corporate executives,how they want to spend their money.
I'm not sure I'm kind of redefined that.
So you've gotlet's we've got a corporation that has,
you know, let's say10,000 shareholder or various types.
And there are all individuals, obviously,there's a lot of, you know, subgroups
(25:37):
on that now, investors,investor groups and so forth.
But they may havea literal liberal point of view
or maybe they have a consideredconservative point of view.
But yet the leadership,the c-suites of the corporation
are investing the corporation money,meaning the owners money
into political point of viewsthat they don't agree with.
So it seems to mewhat the Supreme Court has said
(25:58):
is that the C-suitewho makes the executive decisions
for the company,it's their free speech rights at play,
trumping the free speech of the ownerswho remain
silent on the sidelinesis the way I see it.
I definitely think
that that's what's going on.
In the back of their mindsis that the executives have the right
(26:21):
to steer the corporationinto what causes that they support.
And I do think there were actuallysome explicit arguments about this
made in the case.
And I think the response of the majoritywas essentially,
well, you know, you can sell your share.
You don't have to remain investedin the corporation or if you're a
(26:43):
you know,maybe you can raise a stockholder
revolt and,
you know, vote for board members that aregoing to change the executive team.
So they did point out a lot of mechanismsthat could hopefully mitigate
the concern about compelled
political support.
(27:03):
But they also sort of,I think, discounted that corporations
before Citizens Unitedhad had a lot of room to donate
politically and spend politically throughpolitical action committees, you know,
where the individuals in the corporationwho wanted to contribute could do that.
And they sort of said, well,that takes too much administrative
(27:26):
regulatory stuff to administer.
And we think that'stoo much of a burden on you.
So I just think that I don't knowwhat was driving the justices
in that case, but I just don'tI don't agree with,
you know, how they came out on it.
You mentioned public financeas an alternative.
Are there examples in other countries
(27:49):
that would be useful for us
to look at where public finance
is, how you finance a political campaign?
Well, I know Britain has an aspect of it.
You know, for a lotof their parliamentary elections,
although I'm not an expert in Britishfinance at all, I do think that they do
(28:11):
rely on party donations as well.
But I know that there you know, and I'mnot I'm not an election expert.
I mean, I could
point you to some scholars in that area,and I don't want to tread on their ground.
I know Vermont tried to go to a systemof public financing
that that was you know, it wasit was stopped on First Amendment grounds.
(28:32):
You know, the
so I do
think that there are Western democraciesout there that that do
use a system of publicfinancing at the I'm
just not able to sort of identifythose offhand.
But regardless of whether there areor aren't, I do think it's a good idea.
I mean, you shouldn't stand in the way ofsort of, you know, adopting a good idea.
(28:56):
Look at all
the problems that private moneyin our political system creates.
I mean, it's just obvious.
And the only reasonthat it doesn't get changed
is because certain interest groupsare preventing that sort of change.
And well, it does seem
that we're in a quandary with no clearway out.
(29:19):
It seems.
Yeah.
And this notion that, well, we don't wanttaxpayer money given to politicians
to run campaigns, I mean, the benefitsI mean, first of all, you're talking
point zero as it was.
I mean, to the 100th degreein terms of the federal budget,
in state budgets, in termsof giving legislators pots of money.
(29:41):
But the benefits in terms of governance,equitable, fair, good governance
that would result from that,the payoffs would be way beyond the.
Professor McDonnell,I want to thank you for your time.
It's been a wonderful discussion,wonderful interview.
I look forward to having you back.
You've been listening to the four scoreand seven project.
(30:02):
I'm Roger Clark, a productionof the New Majority Foundation.
This isRoger Clark, your host of the Fourscore
and Seven Project, a productionof the New Majority Foundation.
Today, we return for parttwo of our interview with Professor Barry
McDonald, professor of constitutional lawat Pepperdine University.
Our subject today is money and politics.
Is it a blessing or a curse as the SupremeCourt blusters or destroyed us?
(00:45):
Professor McDonald, welcome back.
Today,we want to talk about money and speech.
In the United States,we all know how much money is spent
on political campaigns,independent expenditures, and the number
that is spent has gone through the roofin the last ten or 12 years since a case
called Citizens United was decided
(01:06):
by the United States Supreme Court.
People are troubledby how much money goes into speech,
or at least into political campaigncontributions, independent expenditures
and so forth and so on.
So we have a very unique systemin this country, United States,
which I think is a lot differentfrom others.
For example, maybe in Great Britain,they have a different approach
(01:28):
to how they finance their their campaigns.
But the issue is money and speech.
The Supreme Court,
as I understandit, says that money is speech.
But at least one prominent justice
there was John Paul Stevens, dissentedand said money is not speech.
What are your thoughts on this issue?
Well, money is clearly not speech.
(01:49):
Money is a unit of economic exchange.
Money is more like a bullhornthat can amplify speech
and spread it further. Right.
So the more money you have, the more meansof disseminating your speech.
You can, especially through channels
of mass communicationand particularly ad buys,
(02:10):
is where most of that sort of money goes.
And so for the Supreme Court
to recently sort of take the positionthat,
you know, Congress or state legislatures,
if they want to,if they see sort of the problems
(02:31):
that arise in terms
of lawmaking by having to constantly be
raising money for ad buys
in order to win the next electionor for whatever they're buying,
so it consumes their time.
The other problem with money is that
(02:55):
some people have more money than others
billionaires, corporations, unions.
And so it's sort of creates
a situation where,
you know, people can gain
special accessand influence over legislators
the more they're willingto spend on behalf of those candidates.
(03:18):
And I just think that
money should not be treated as
a restriction on speech in the way thatthe Supreme Court has been doing that.
But maybe sort of a they should view it
as what's called a time, placeand manner regulation of speech.
(03:41):
If you know the manner that you want tospeak is by buying ad buys and so forth.
And, you know, we're going to allowthe government more leeway
to sort of prove thatthose sort of restrictions are needed.
But, you know, the current conservative
majority of the SupremeCourt has taken to me to be a very
disturbing path in this area of the law.
(04:03):
They have come to sayin a couple of major recent decisions
that, you know, people with more money,
and particularly
if we're talking about corporationsor unions or billionaires,
to the extentthat they're able to with their money
to show support to a legislator.
(04:25):
And to the extentthat legislator reciprocates
by showing gratitude in terms of,you know, giving them special access
and listening to their petitionsmore closely.
The current Supreme Courtsays, well, that's just the way
our democracy worksand that's built into our democracy.
(04:46):
And it's just sort of
as long as it doesn't amountto sort of a quid pro quo bribe,
we'll spend this If you give us that,then that's as far as
the government can goin sort of regulating that situation.
Now, the more liberal justicesand I'm not liberal, more conservative,
let me just put this on the tableright now.
(05:08):
I'm an independent.
The liberal justices have always said,
come on, that that is not our visionof how a of a well-functioning democracy
should operate, that, you know,those with money should have a greater say
in affairs of governancethan those without money.
And we think that if if by spending money,
(05:31):
they are gaining access and influence,that that should be prohibitive.
And it shouldn't be.
Government shouldn't be barred fromregulating that by notions of free speech.
And I frankly think that they havethe much song sounder position on that.
Well, well,I mentioned the Citizens United case.
I think it's about 11 or 12 years old now.
(05:55):
And I just kind of threw it out therewithout defining it.
Tell us a little bitabout what citizens United did
in the realm of money
in political campaignsand political contributions.
Independent expenditures.
And so so what Citizens United did wasit was a 2010 decision.
(06:15):
And there so since the 1960s, in 1970s,the Supreme Court
has recognized that corporations enjoysome measure of free speech rights.
That is even debatable
because corporations are artificialconstructs created by state.
They don't have a vote.
They're investment vehicles
for shareholdersto be able to invest in a business without
(06:39):
being exposed to undue liability.
But they are moneymaking machines.
Hopefully, if they succeed, that'swhat they're designing.
He certainly hoped and the shareholderscertainly of their moneymaking machines.
So, I mean, in the people that are incorporations have plenty of free speech
rights and in theory, including throughpolitical action committees and so forth.
So to say that the corporation isa artificial
(07:00):
construct has free speech rightsI think is extremely debatable.
But that should also be truewith the union as well.
I mean, that's an artificial constructbecause it is an organization.
Sure.
And I'm just there's a lotmore corporations than there are unions.
Yeah, but yeah,but it's the same same principle.
It's an artificial,fictitious legal entity created by law.
(07:21):
And so I think the law should be ableto put some reasonable restrictions
on how they operate.
But in the early sixties and 1970s,the Supreme Court started saying that
corporations do have some free speechrights.
And in particular,
there was athere was a case that said corporations
have the ability to spend money
(07:42):
in connection with initiativesthat affect their business.
And the Supreme Court said, well,
if it's an initiativethat affects their business,
the businesses ought to be ableto spend on that and, you know,
have the public hear their views on that.
And I think that's fine.
But then in 1989,
corporations were starting to get involvedin funding the
(08:03):
campaignsof particular political candidates.
And that's when governmentstarted to step up and say,
okay, no,we don't think that's a good idea.
You have disproportionate wealth.
You have the ability
to sort of dominate,dominate the marketplace of ideas on this.
And so, you know,
if you want to speak to initiativesthat affect your business, that's fine.
(08:23):
But we're not going to allow youto sort of
install the politicianswith all your money that did
that are going to sort ofpromote your pro-business agenda.
And in 1989, in a54 decision,the Supreme Court upheld that.
They applied.
You mentioned it before, strict scrutiny,the most demanding test.
And they said there's such a threat herethat corporations will sort of dominate
(08:44):
the marketplace of ideas and in certainother rationales that they said
that we think that these laws
restricting corporations from fundingpolitical campaigns are justified.
Well, Citizens United camealong with a more conservative support.
30 years later,the Supreme Court actually reached out,
not acting minimally like that.
(09:07):
You know, say they likethey only decide were necessary.
They didn't need to decide this.
They actually reached outand and posed the question,
should we overrule that 1989 decision?
Well, once that was out there,you knew the writing was on the wall.
And sure enough, in a54 decisionin Citizens United, the court
overruled that earlier, five four decisionwent five four the other way,
(09:30):
the conservatives in the majorityand basically said, no, we think that
both corporations and unions have freespeech rights to be able to spend
general Treasury money,you know, money that you earn from buying,
from selling,you know, case loads of toothpaste
to use that general
Treasury money to get your
(09:53):
political candidates of choice elected,
as long as it's an independent expenditure
that it's the corporationsor the unions acting on their own behalf
and not coordinating that expenditurewith the campaign itself,
then it looks more like a contributionand we think that there is enough
risk of corruptionto allow put limits on the ability
(10:16):
of corporations and unionsto give money to particular campaigns,
but they can independently buy
these ads that attack their opponentor promote the candidate.
Well, the otherthe counterargument by the government was,
well, you say it's independent, butit's really not these these candidates.
They know who's making theseindependent buys on their own behalf.
(10:36):
They feel gratitudetowards the corporations, unions.
They're doing this.
They're giving them special access.
They're giving them sort of specialconsideration to their priorities.
And that's where the Supreme Court said,well, as long as it's in our quid pro
quo corruption, we're notwe're not going to worry about it.
The four more liberal justicesdissented, saying, no, that's
not our view of democracy.
(10:57):
And frankly, I think that Citizens Unitedwas was a big mistake
in terms of allowing sort ofand not just it's
not just an issue of corporation and unionspending.
In fact, I think the empirical numbersafter Citizens United show
that corporations are fairly carefulabout where they place their
(11:17):
I don't think there's been a huge increasein sort of funding
that corporations have funneled into thesead buys on behalf of candidates.
I think the greater problem today,frankly, is billionaires,
you know, that are able to spendso much money in these sorts of elections
to get their
particular candidates of choice elected
(11:39):
that I think it is really sort ofdistorting
the marketplace of ideas out therein dominating it.
And I so I mean, I do think that
we need to sort of take a comprehensivelook at all of this.
But I don't think an amendment that saysCongress shall make no law abridging
the freedom of speech should preventCongress or state legislatures
(12:01):
from putting reasonable limitson the amount that,
you know, people with inordinate wealthor corporations with inordinate
wealth can spend on behalfof getting certain candidates elected.
Well, I think coming back to John PaulStevens, who
I think I quoted earlierthat who said money is not speech.
He retired from the Supreme Court and thenhe was testifying before the Senate.
(12:24):
This is about nine or ten yearsago and actually proposed
actually, he said
that while money is used to financespeech, money is not speech.
Those financial activitiesshould not receive
the same constitutional protectionas speech itself.
After all, campaignfunds were used to finance the Watergate
burglaries, actions that clearlywere not protected by the First Amendment.
(12:46):
Now that his testimony before the Senate
Rules Committeeand then he actually proposed
a constitutional amendment the wayhe would like it formulated read this way
Neither the First Amendmentnor any provision of this Constitution
shall be construedto prohibit the Congress or any state
from imposing reasonable limitson the amount of money that candidates
(13:07):
for public office or their supportersmay spend in election campaigns.
What do you think about an amendmentlike that?
I love it.
I think I don't think five or six lawyers
appointed to the Supreme Courtought to be telling the American people
how their system of elections canor can't be run.
I think that if the American peoplewant to take the lead of certain
(13:30):
other sort of advanced democraciesthat have gone to systems of public
financing of elections,just get private money out of governance.
It's too much.
We all know that it leads to sordid deals.
Maybe they're not quid pro quo bribery,as the court likes to say, but we all know
(13:51):
that money drives a lot of public policyand lawmaking in this country.
I mean, look at the lobby industryin Washington, D.C.
and what goes on there.
I mean, it isyou know, whenever the cover is lifted
a little bit,you know, it's just it gets very messy.
And I think we as Americansshould be able to say,
(14:13):
even with the free speech clausein the Constitution,
that we do not want peopleinjecting their private money into
who gets electedor what laws that they pass, that we
we should allow for a system of publicfinancing that gives candidates a certain
pool of money to run their elections,and then they really have to run on that.
(14:34):
How many ad buys or negative attack adsthey can buy, but they have to run
on the strength of their ideasand let the Americans choose.
And for the Supreme Courtto stand in the way of that
which, you know, which I thinkwould promote a much healthier democracy,
we all know that most legislatorsdon't legislate in the public interest.
They legislate in favor of the peoplethat are writing their
(14:56):
the biggest campaign checkto their to their reelection campaign.
That's the onlyway we're going to get legislators back
that are going to actually legislatein the public interest.
Well well, my sense and maybe this isin the wake of Citizens United,
is that the folks up in Congress,particularly on the House side,
(15:18):
maybe because it's every two years
they're elected, it strikes me that it'sthey don't really represent
their individual constituencies,meaning the districts
from which they runas much as they represent
the sources of the money,which is usually from the leadership.
And what what we end uphaving is leadership calling the shots
(15:39):
with that individual membersas a statesman.
You would think they are with that,but say that
I know that's what my leadership agreesor wants to do, but I don't agree with it
because my constituentswouldn't agree with it.
But I don't hear that anymore.
Am I off base on thisor am I misinterpreting?
It's all part of the sort of the tribalwarrior culture that has developed.
(16:00):
I mean, everyone's an enemy who's not withus, and it's just a part of that.
And I you know,I think it's it's really problematic.
Well, you know, you bring a good point.
And we talk about the unionsalso in just a minute.
But but the you know, you had thesebillionaires spending all this money
on these independent,independent expenditures,
but yet this billionaireonly has one vote.
(16:23):
You may
be worth $100 billion,but still only have one vote.
And that person walkingthat's working at Starbucks, who's making
maybe a little bit more than a
minimum wage or a living wage, whateverthe case may be, has one vote two.
But yet that person who the barista can'tcontribute $1,000,000,000
or $500 million, how much is going to beto an independent expenditure?
(16:44):
And that seems to me an inversion of what
the founders would think ofhow a democracy should work.
And thoughts on that?
Yeah,I mean, I don't think the founders well,
the founders were kind of complicatedon the issue of electoral rights.
You know,they believe that mainly the landed gentry
(17:05):
should have voting rights
on the theorythat they were the people that were,
you know, got the education in those days,had the vested interest in seeing that,
you know, you had a sound and orderlysociety and so forth. So,
you know, the concept
of one person,one vote is really a modern concept.
(17:27):
And ironically, it waswho was created by the Supreme Court
in the early 1960s
as a matter of the equal protection clause
and has created it.
I mean, a lot of people say that's greatbecause it sort of
ushered in sort of modernnotions of electoral equality,
but it's also created its own problemsin terms of legislatures, gerrymandering.
(17:51):
So every ten years you have the census,you have to conform to this one person,
one vote for each voting district.
So you have to redrawthe voting districts.
And of course, that's where you get theseparties going at it in gerrymandering
and disenfranchizing,a lot of the voters of the opposite party,
by the way, that they drawthe voting districts if they're in power.
And so we have to real problem,real threats to our democracy
(18:14):
going on right now.
And that is number one,partizan gerrymandering
that is disenfranchizing votersin many states.
And number two, you know,the private money that it sort of drives
a lot of our lawmakingin this country. So.
And both of those can be traced
back to our eminent Supreme Court.
(18:35):
And, you know, at least thethe origins of these problems. And
so we look to the Supreme Court,
you know, why the average Americanputs the Supreme Court on a pedestal.
They don't understandhow the Supreme Court and some of their
actions have really, I think, donea lot of harm to American democracy.
And I'm actually working on a bookto explain my point of view on.
(18:58):
When might we see that book?
well, between all of the other things
I have to do,it may be a while, but I don't know.
Do you have a title for it yet?
So we can keep an eye out for it?
Well, I'm thinking, well,this is sort of a divided we stand
how the Supreme Court has sortof exacerbated that whole problem.
I need to catch your thing than that, but.
(19:19):
Well, wonderful.Well, we talked about corporations
contributing to independent expenditures.
What city? Nash or city?
You know, Citizens United,
authorized, treated, essentially unionsthe same way as corporations,
because unions are a legal organizationin the same sense.
(19:39):
But but unions, I do believe, contribute
a whole lot of money to independentexpenditures as well, I think.
And, you know, in California,I think they typically contribute 100,
100 and $5,060million a year to every election cycle.
I'm assuming your reasoning.
Absolutely applies to two unions, asis corporations.
(20:00):
I'm just using corporationssince, you know,
they tendto have such a bigger presence in our.
Well you know in a kind of the the Janiceanother opinion of the Supreme Court
Janicewhich is getting some age on it now too
I think it'ssix seven, five, six seven years old maybe
was the case has said
that you cannot compela member of a union.
(20:23):
I think there was a public employeeunion case, cannot compel a member
of of the organization to which
the union controlled.
You cannot compel that individual to paydues that go to supporting
political causes that the individual doesnot necessarily agree with.
no, That was prior law.
(20:44):
This this decision went further and saidthat the union members couldn't be forced
to just supportthe collective bargaining activities
that got themadditional benefits in their job
because it violatedtheir freedom of association,
which is in the Constitution,at least in this incarnation,
to have to sort of pay money
(21:05):
to a unionthat does things that they disagree with.
And so to say that union workers
I mean, I'm sorry to say that peoplethat don't want to join the union
can't be forced to at least contributeto the collective bargaining activities,
aside from political activities thatget them additional benefits in their job.
(21:26):
I think it
just shows you how far the
Supreme Courthas come in terms of being a policymaker.
They take that one word free speech.
They derive from that.
Okay, well, if there's free speech,there must be this sort of freedom
of association in expressive matters.
And since unionstake positions on political issues
(21:47):
that people don't want to contribute to,even if they're not being made
to contribute to them,
just the fact that they have to give moneyis sort of an infringement of that
freedom of expressive association andtherefore it violates the Constitution.
It just gives youthis is sort of a poster child
of how the Supreme Courthas taken these short in general phrases
(22:09):
in the Constitutionand supplanted the job of our lawmakers.
And, you know, I justI just think that we need to go back
to an eraof judicial modesty, judicial restraint.
Well, you know,
here we have a situationwhere in the wake of Citizens United
(22:29):
and it was always there before,but it is now on steroids.
You have these election cycles.
It's an industry,
you know, and people are runningfor office a year, year
and a half or two yearsbefore the election is held
and millions and millionsand millions are being spent in.
It supports a lot of jobs,which creates a lot of financial interest
(22:51):
into supporting money into the system,which probably
makes it very difficult to
cause a change.
Restricting that money because that meanspeople are going to suffer financially.
How do we deal with that?
Well, I mean,
I don't know.
What particular problems are you thinking?
(23:12):
Well.
Well, you always follow the money, right?
So, you know,there's a vested interest in maintaining
an established money stream because it,you know, supports your jobs in this.
Or if there's going to besome kind of political reform
that turns off, that money's back
and people will be against it,is what I'm trying to say.
And so you're going to have serious
(23:33):
to do the reform that you're mentioning.
There would be a lotof political headwinds to get that through
Congress or any state legislature as well.
you're talking about a system of publicfinancing.
Yeah, no, no doubt.
I mean, you know, I'm I'm talking about
enlightened legislators trying,you know, convincing
(23:54):
their constituencies that this isin the best interest of the country.
We're all as a whole these days.
I mean, at some point, hopefully,I do think, you know, I'm not a naysayer.
I do think
society's progress and evolve.
I think we're going to get to a pointwhere
(24:14):
people are just tired of,
you know, people trying to lead inwith this facade of doing it
in the public interest, but really beingout totally for themselves
and in whatever interests, you know,they're supporting.
And I do think at some pointwe're going to get there.
(24:34):
It's going to be a long time, but
it's going to take social, political,economic evolution.
Well, maybe
we'll get to that point some timebefore my grand my one year old grandson.
Is I don't know.
I'm talkinghundreds and hundreds a long, long time.
Well, you know, in this conceptof being compelled to support speech
(24:55):
that you don't necessarily agree with,I want to come back to the concept of
of legal organizations,whether they're unions or corporations.
You corporations have stockholders,you have employees.
So so that money that's in that generalTreasury account comes from the activities
of the corporationand the owners are the stockholders.
(25:17):
And those stockholders may not agreewith what
the corporate corporate executives,how they want to spend their money.
I'm not sure I'm kind of redefined that.
So you've gotlet's we've got a corporation that has,
you know, let's say10,000 shareholder or various types.
And there are all individuals, obviously,there's a lot of, you know, subgroups
(25:37):
on that now, investors,investor groups and so forth.
But they may havea literal liberal point of view
or maybe they have a consideredconservative point of view.
But yet the leadership,the c-suites of the corporation
are investing the corporation money,meaning the owners money
into political point of viewsthat they don't agree with.
So it seems to mewhat the Supreme Court has said
(25:58):
is that the C-suitewho makes the executive decisions
for the company,it's their free speech rights at play,
trumping the free speech of the ownerswho remain
silent on the sidelinesis the way I see it.
I definitely think
that that's what's going on.
In the back of their mindsis that the executives have the right
(26:21):
to steer the corporationinto what causes that they support.
And I do think there were actuallysome explicit arguments about this
made in the case.
And I think the response of the majoritywas essentially,
well, you know, you can sell your share.
You don't have to remain investedin the corporation or if you're a
(26:43):
you know,maybe you can raise a stockholder
revolt and,
you know, vote for board members that aregoing to change the executive team.
So they did point out a lot of mechanismsthat could hopefully mitigate
the concern about compelled
political support.
(27:03):
But they also sort of,I think, discounted that corporations
before Citizens Unitedhad had a lot of room to donate
politically and spend politically throughpolitical action committees, you know,
where the individuals in the corporationwho wanted to contribute could do that.
And they sort of said, well,that takes too much administrative
(27:26):
regulatory stuff to administer.
And we think that'stoo much of a burden on you.
So I just think that I don't knowwhat was driving the justices
in that case, but I just don'tI don't agree with,
you know, how they came out on it.
You mentioned public financeas an alternative.
Are there examples in other countries
(27:49):
that would be useful for us
to look at where public finance
is, how you finance a political campaign?
Well, I know Britain has an aspect of it.
You know, for a lotof their parliamentary elections,
although I'm not an expert in Britishfinance at all, I do think that they do
(28:11):
rely on party donations as well.
But I know that there you know, and I'mnot I'm not an election expert.
I mean, I could
point you to some scholars in that area,and I don't want to tread on their ground.
I know Vermont tried to go to a systemof public financing
that that was you know, it wasit was stopped on First Amendment grounds.
(28:32):
You know, the
so I do
think that there are Western democraciesout there that that do
use a system of publicfinancing at the I'm
just not able to sort of identifythose offhand.
But regardless of whether there areor aren't, I do think it's a good idea.
I mean, you shouldn't stand in the way ofsort of, you know, adopting a good idea.
(28:56):
Look at all
the problems that private moneyin our political system creates.
I mean, it's just obvious.
And the only reasonthat it doesn't get changed
is because certain interest groupsare preventing that sort of change.
And well, it does seem
that we're in a quandary with no clearway out.
(29:19):
It seems.
Yeah.
And this notion that, well, we don't wanttaxpayer money given to politicians
to run campaigns, I mean, the benefitsI mean, first of all, you're talking
point zero as it was.
I mean, to the 100th degreein terms of the federal budget,
in state budgets, in termsof giving legislators pots of money.
(29:41):
But the benefits in terms of governance,equitable, fair, good governance
that would result from that,the payoffs would be way beyond the.
Professor McDonnell,I want to thank you for your time.
It's been a wonderful discussion,wonderful interview.
I look forward to having you back.
You've been listening to the four scoreand seven project.
(30:02):
I'm Roger Clark, a productionof the New Majority Foundation.
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