FAC 6 (First Amendment Conversations) The Law & Politics of Money: A Q & A with Richard Hasen – Part I
Richard Hasen is the Chancellor’s Professor of Law and Political Science at the University of California at Irvine. I am pleased to do FAC Q&A interview with him in connection with his new book:
- Plutocrats United: Campaign Money, the Supreme Court, and the Distortion of American Elections (Yale University Press, 2016) (cloth: $32.50, 256 pp.).
Two of Professor Hasen’s previous books in this same area of study are:
- The Voting Wars: From Florida 2000 to the Next Election Meltdown (Yale University Press, 2013), and
- The Supreme Court and Election Law: Judging Equality from Baker v. Carr to Bush v. Gore (NYU Press 2003).
He has been writing in this field for over two decades (see 14 Cardozo L. Rev. 1311 (1993)). Today, Professor Hasen is one of as the nation’s leading authorities on election law and is the publisher of the much-noticed and highly regarded Election Law Blog. He is also the co-author of a leading election law casebook, author of a book on statutory interpretation, and author of numerous scholarly articles, including a review essay published in the Harvard Law Review.
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Collins: Thank you Rick for agreeing to do this interview and congratulations on the publication of your latest book, which is getting quite a lot of favorable attention, including a four-part video interview on SCOTUSblog.
Hasen: Ron, let me thank you for the opportunity to answer your questions and engage in this dialogue. It is too rare these days for there to be serious discussion on these contentious First Amendment issues. Even among academics, much of what we read on blogs etc. is little more than talking points.
→ NB: A hyperlinked list of previous FAC interviews can be found at the end of this Q&A.
Can the System be Fixed? / Need it Be?
Collins: Four years ago you wrote: “Fixing Washington’s money problems may have to await widespread scandal, and fixing its broader problems likely will have to await a societal shift that alleviates the partisanship currently gripping national politics.” Do you still hold to that?
Hasen: I do stand by this statement. Even though many voters—Democrats, Republicans, and independents—believe that the Supreme Court’s decision in Citizens United v. FEC was wrong, and that more reasonable campaign finance laws are necessary, there is now a deep partisan divide on this issue among elites in Washington. More than ever, this is seen as a Democratic/Republican issue. As I argue in Plutocrats United, the John McCains of the Republican Party have gone silent on this issue, and the Mitch McConnells, who used to argue for no limits and full and instant disclosure, now argue even against effective disclosure.
I do expect that we will see continued attempts to improve campaign finance laws on the state and local levels, especially in those places with voter initiatives (which can bypass self-interested legislatures). Some of these laws may raise constitutional questions, which could lead a new progressive Supreme Court (if one arrives) to reconsider the First Amendment balancing in the campaign finance arena.
Collins: Does money translate to political power and advantage? Consider this news item (2-22-06) from the New York Times: “When Jeb Bush formally entered the presidential campaign in June, there was already more money behind him than every other Republican candidate combined. When he suspended his campaign on Saturday night in South Carolina, Mr. Bush had burned through the vast majority of that cash without winning a single state.” What do you make of this?
Hasen: I begin my book by urging progressives to reject facile campaign finance arguments such as “all politicians are corrupt” or money buys elections. A little while ago, I had a prebuttal to the Jeb Bush point in the Washington Post which pointed out that Money Can’t Buy Jeb Bush the White House, But It Still Skews Politics. I argued there:
“But this overly simplistic analysis misses the key role of money in contemporary American politics. In spite of the rhetoric of some campaign reformers, money doesn’t buy elections. Instead, it increases the odds of electoral victory and of getting one’s way on policies, tax breaks and government contracts. And the presidential race is the place we are least likely to see money’s effects. Looking to Congress and the states, though, we can see that the era of big money unleashed by the Supreme Court is hurtling us toward a plutocracy in which the people with the greatest economic power can wield great political power through campaign donations and lobbying….”
“And yet a single donor’s influence in presidential contests is tempered by other factors. With billions of dollars sloshing around on all sides, so much free media attention (especially to outlandish candidacies like Trump’s) and widespread public interest, mega-donors are only one part of a larger picture.”
“Money can matter more to the outcomes of congressional and state races because of relative scale. Millions of dollars spent in these contests can swamp the competition and help swing close elections, especially by influencing low-information voters. Merely the threat of such spending gets the attention of candidates, who worry about the next super PAC to line up against them.”
And there is more at stake here as I pointed out in my Washington Post piece:
“Even more significant, big money skews public policy in the direction of the wealthiest donors. In Illinois, a handful of the super-rich, including hedge-fund billionaire Kenneth C. Griffin, played a key role in getting Republican Bruce Rauner elected governor with an agenda to slash government spending, impose term limits and weaken employee unions. Hedge funds have used campaign to block a potential bankruptcy declaration by Puerto Rico that could help its people but hurt bondholders’ interests.”
“We’re supposed to be in a post-earmark era, yet Congress’s recent must-pass omnibus bill to fund the government was full of special interest deals backed by big spenders. The New York Times reported that “as congressional leaders were hastily braiding together a tax and spending bill of more than 2,000 pages, lobbyists swooped in to add 54 words that temporarily preserved a loophole sought by the hotel, restaurant and gambling industries, along with billionaire Wall Street investors, that allowed them to put real estate in trusts and avoid taxes.” Senate Minority Leader Harry Reid supported the language, and the company of one of Reid’s top donors admitted to being among those “involved in the discussions with congressional staff members.”
The Crisis of Liberalism Divided
Collins: As you well know, the campaign finance controversy has divided the liberal civil liberties community. In that regard, I understand that your aim in Plutocrats “is to start a dialogue among progressives.” Even if that dialogue might point to some common ground “among progressives,” there are still conservative Americans. What, if anything, is there in Plutocrats United for conservatives?
Hasen: There is a conservative case for campaign finance reform. I would point readers to Richard Painter’s new book, Taxation Only with Representation (2016). Painter was President George W. Bush’s ethics czar. My book has a different purpose: it is to talk among progressives and moderates about what the real problems of money in politics are and how to fix them. I say that the main problem is a system in which we allow ever increasing economic inequality to be translated into political inequalities, which distort our elections and politics. I then advocate conducting the First Amendment balance by considering not only anti-corruption arguments, but also political equality arguments, on the government interests side.
Collins: The death of Justice Antonin Scalia has placed the entire nomination and confirmation process in bold ideological relief – and you have commented on the that very point. Mindful of that, Vice President Joseph Biden has suggested that the President nominate a “centrist.” In that regard,
- would you consider someone like Justice Potter Stewart or Justice Lewis Powell to be such a “centrist,”
- and would you support such a nomination as a compromise of sorts?
- It is hard to evaluate how the equivalent of a Justice Stewart or Powell would decide things today. The fact is that on the current Supreme Court all of the conservatives have been appointed by Republican presidents and all the liberals by Democratic ones. It is not that these Justices are deciding cases to help their party. It is that they are chosen because of how they would be likely to vote given their jurisprudential commitments on issues each of the parties cares about the most. This is not how things were even a few years ago. So what would we mean by a “centrist” today? Some conservatives consider Justice Kennedy a centrist (or a vacillator). On election-related issues, Justice Kennedy was in the majority in both Citizens United and the 2013 Shelby County v. Holder case, striking down a key portion of the Voting Rights Act. So he is no centrist on issues I care about.
- No, I see the Supreme Court today as essentially a political institution and the battle over confirmation essentially a political one. Why should the Left include a compromise candidate, especially when there is no reason to believe the Right would do so? The compromise I support would be to eliminate life tenure, and to move to 18-year non-renewable terms. This would ensure orderly turnover and that over time the Court reflects more of the public’s views on these issues. It is an idea supported by strong conservatives such as the Federalist Society’s Steven Calabresi.
Collins: Professor Lawrence Lessig took issue with you for discounting corruption (see here) as a viable reason for squelching First Amendment rights in the context of campaign financing. He writes: “I have had the pleasure of reading [Professor Hasen’s] . . . Plutocrats United, a book that will certainly mark him as the dean of this field—I think that he has presented us with a false dichotomy. It is not either corruption or equality. It is both. Our current system for funding campaigns is corrupt, but it is corrupt precisely because it violates a certain kind of equality. The violation is not an equality of speech, but an equality of citizenship. . . . We should not, as scholars, be fighting about which flaw our Republic reveals — inequality or corruption. We should be united — let us say, not citizens or plutocrats, but scholars, united—in the view that our Republic is both unequal and corrupt.”
Is Lessig right? Is there some troublesome division in the progressive ranks here? Is this a case of Progressives Disunited?
Hasen: I love the “Progressive Disunited” label! (Isn’t that always true?) I don’t think there is a large gap between Larry and me anymore. We went back and forth on what the problem is with money in politics in law reviews and blog posts, and in the end I think what is left is primarily a semantic difference. There is much value for an activist to labeling reform in anticorruption terms. Larry is an activist and wants to harness voter anger on this issue. I’m not. But in the end, we both think that the problem is that those with the greatest economic power are able to translate that power into political power, by influencing both who is taken seriously as a candidate for election, and by influencing the public policy that our elected officials pursue.
→ This FAN 6 Q&A will continue tomorrow with Part II.←
Previous First Amendment Conversations
FAC #1: Larry Tribe on Free Expression
- On Legal Scholarship: Questions for Judge Harry T. Edwards (Journal of Legal Education)
- The Complete Posner on Posner Series
- Unto the Breach: An interview with the all too candid Dean Erwin Chemerinsky
- Ask the author: Chief Judge Katzmann on statutory interpretation*
- Ask the author: Garrett Epps on clashing visions on the Court*
- Ask the author: Three decades of Court watching – a political scientist’s take on the Court*
- Ask the authors: Conflict in the Court — an inside look at New York Times v. Sullivan and its progeny*
- Ask the author: Floyd Abrams & his fighting faith*
- Ask the author: Marcia Coyle on the Roberts Court*
- Ask the author: Kathryn Watts on the workings of the Supreme Court*
- Ask the author: Alex Wohl on Tom and Ramsey Clark and the Constitution*
- Ask the author: Jeffrey Toobin on The Oath*
* Published on SCOTUSblog