FAC 6 (First Amendment Conversations) The Law & Politics of Money: A Q & A with Professor Richard Hasen – Part II
This is Part II of my interview with Professor Richard Hasen concerning 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.). Part I of my first interview appears here.
→ A hyperlinked list of previous FAC interviews can be found at the end of this Q&A.
→ First Amendment News (FAN 100) will return next Wednesday.
Is Compromise Possible?
Collins: “Any set of limits and rules” on campaign funding, you have written, “must be careful not to squelch too much political speech and competition.” To that end, in your book you propose a compromise:
“An individual or entity may contribute, spend from one’s own personal or general treasury, or both, no more $25,000 in each federal election on election-related express advocacy or electioneering communications supporting or opposing candidates for that election. Such limits shall not apply to the press, to political committees that solely spend contributions received from others, or to money contributed or spent in a voluntary government-created public finance program. An individual also cannot contribute and/or spend more than $500,000 total on all federal election activity in a two-year election cycle.”
In light of your “brief formula,” permit me to make a comment and then ask but three questions, the kind that would be raised time-and-again by election-law lawyers who make it their business to circumvent such rules:
Comment: Since you equate the spending of electoral monies with speech, your formula seems like another way of saying that the Government may dictate when a citizen may or may not speak during an election. Is that a fair statement? If so, how does it square with the command that “Congress shall make no law”?
- Would your proposed law apply to an “entity” that created 20 other entities, say non-profit corporations, and then gave them each $500,000 to be spent during a two-year federal election period? Presumably, the $500,000 cap would not bar this since it applies to an “individual.”
- Do “electioneering communications” as you understand those terms include books, including e-books?
- Would your proposed rule bar a Rupert Murdoch or George Soros from starting a “Save America” TV cable station, the purpose of which was to advance certain political candidates and causes? Presumably it would not bar this since your limits do “not apply to the ” True?
Hasen: I find the entire question whether “money is speech” to be an unhelpful way to think about the question. Money facilitates political speech, and we all agree that a law which would completely bar anyone from spending any money to support or oppose a candidate for office implicates the First Amendment.
Similarly, I find the use of the “Congress shall make no law” formulation also very unhelpful. Of course, it is no law abridging the freedom of speech, and we all agree that some laws which limit speech may be constitutional.
Consider, for example, a federal law that barred Canadian lawyer Benjamin Bluman from spending 50 cents at Kinkos to make flyers saying “Vote Obama” to distribute in Central Park. That’s a law some might say limits freedom of speech. Yet, as I quote in Plutocrats United, Floyd Abrams, Bradley Smith, and James Bopp (three leading First Amendment deregulationists) believe the federal ban on someone like Bluman spending a penny on election-related advertising is consistent with the First Amendment. I urge you to read the quotes on this point in the book, which show that, contrary to Citizens United, sometimes the identity of the speaker does matter for First Amendment purposes even to ardent opponents of regulation.
So let’s move beyond clichés about “no law” and “censorship” and “money is speech” and recognize that all of us believe that in certain circumstances the government has a compelling interest in limiting campaign spending. The question then is when and how.
- I should have stated this aspect of my proposal more clearly. We would need anti-circumvention rules that prevent the creation of shell corporations and other artificial entities for the purpose of getting around campaign limits.
- The term “electioneering communications” originates in the Bipartisan Campaign Reform Act (more commonly known as McCain-Feingold), and it applies only to certain television and radio ads broadcast close to an election featuring a candidate for office. My proposal would extend to those, as well as to Internet based advertising which is like television and radio ads, not e-books. This question, for the uninitiated, echoes a question Justice Alito asked at the oral argument the first time the Court heard Citizens United v. FEC. Justice Alito asked if Congress had the power to “ban” books. I discuss this question (and the right answers) in detail in my book.
- Of course they could set up a TV station. Think of Rupert Murdoch owning FOX News or Sheldon Adelson recently buying the Las Vegas Review Journal. And these entities get the press exemption, so long as they are bona fide press. I offer tests for how to figure out what the press is, especially in the social media age, in my book. One example I give is NRA News, which started out as a way of pushing the boundary on what counts as press. In the end, NRA News became a bona fide press entity.
The Power of PACs?
Collins: Moneyed interests – be they corporations, PACS or wealthy individuals – always seem to find novel ways to circumvent campaign finance laws. What if those moneyed interests took their cue from, say, the NRA, and began a nationwide campaign to create state statutory rights allowing for unlimited amounts of money to be spent in state elections? Is that a problem the Supreme Court could fix by way of a response to a constitutional challenge to such laws? If so, what would that challenge be, and do you think it would be successful?
Hasen: This idea that money always seems to find a way in is known in campaign finance circles as the “hydraulic critique,” analogizing campaign money to flowing water. As Justice Stevens explained in his majority opinion in McConnell v. FEC (2003), “Money, like water, will always find an outlet. What problems will arise, and how Congress will respond, are concerns for another day.”
So I expect whatever proposal I came up with would be subject to pushback by election lawyers, and the need for a constant refinement to make sure the laws stay updated. A good example of this is California, which has kept updating its campaign finance disclosure rules to keep ahead of new means of hiding the use of money in politics.
Collins: Does the invocation of an equality claim as a counterbalance to a First Amendment claim depend on any empirical showing? Are mere disparities in electoral spending enough or must there also be some demonstration of actual dilution of the popular vote or some showing of an actual silencing of public debate? (Consider in this regard the Right to Rise USA Super PAC behind Jeb Bush in the recent primary elections or the Restore Our Future Super PAC supporting Mitt Romney.)
Hasen: The Supreme Court has been terrible about its use of empirical evidence in election law cases. In campaign finance, until recently, it never struck down a campaign contribution limit law on grounds there was not enough evidence of corruption, and it never upheld a spending limit on grounds there was enough evidence of corruption. Evidence is the tail wagging the dog. Consider, for example, Justice Kennedy’s completely unsupported argument in Citizens United v. FEC: “The appearance of influence or access, furthermore, will not cause the electorate to lose faith in our democracy.” If this is meant as a statement of fact, Justice Kennedy provided no evidence to back it up. (Some contend he did not mean it as a statement of fact, despite how it reads to the normal reader of English.)
If we want to completely rethink how the Court approaches evidence, I’m happy to have that discussion. And I think it would be easy to show that money often makes candidates viable who would otherwise have no chance: think Newt Gingrich in 2012, Jeb! in 2016, or Meg Whitman running for California governor spending $140 of her own money. It didn’t buy the outcome but it bought a very tough-to-get chance to be elected. Further, we can amply demonstrate that public policy tends to favor the interests of the wealthy, and does not very often reflect the views of the majority of voters.
Collins: Donald Trump maintains that since he is a “self-funder” he is not beholden to PACS, special interest groups, the RNC, corporations, or any other moneyed interests. Given that, how do you feel about very wealthy political candidates – such as Mr. Trump, Michael Bloomberg, or David Trone (who is running for Congress in MD) – spending huge amounts of their own money to get elected? Should federal and state lawmakers regulate this?
Hasen: I think it is terrible that we as a society need to rely upon candidates who are “too rich” to be influenced by money. As I wrote in a recent New York Times “Room for Debate” piece: “To deal with potential political crises, we need a more democratic way to fund our elections. Imagine if we gave every voter in each election $100 in publicly financed vouchers to donate to candidates, political parties and interest groups. Then elections would depend less on the whims of billionaire white knights or on those who now donate to campaigns and who tend to have more extreme views than the average voter.”
I would not allow a self-funded candidate to contribute/spend in the aggregate more than $25,000 on his or her own campaign.
Collins: Writing in a recent issue of Politico, Kenneth Vogel & Isaac Arnsdorf stated: “Early in the presidential nominating process, Trump and his anti-establishment counterpart on the other side of the aisle Bernie Sanders are completely upending conventional thinking about campaign financing in the big money era sparked by the Supreme Court’s 2010 Citizens United decision. . . . Neither man has the support of a dedicated super PAC like those buoying their rivals, and both have essentially declared war on the deepest pocketed donors in their respective parties. Instead, they have pioneered alternative means to power their campaigns ― albeit utilizing vastly different models ― and have shocked the political establishment with their success.”
Is this aberrational or does it suggest that PAC money may not be as determinative as reformers would have us believe?
Hasen: I think I answered this in my earlier answer about why Jeb Bush failed. This is looking for money to have a different effect than it actually does.
Collins: In a recent and long letter to the New York Times, Ira Glasser (former executive director of the national ACLU) and William Josephson (former NY assistant attorney general in charge of the charities bureau) claim: “First, most if not all of the money spent or contributed by the Koch brothers, and by people both on the right (like Sheldon Adelson) and on the left (like George Soros), has been spent by those people as individuals. They had that right long before Citizens United. . . . Second, . . . the secrecy of such contributions — ‘unlimited amounts of money,’ the review puts it, ‘with virtually no disclosure of its source’ — is [not] due to Citizens United. [T]he decision explicitly reaffirmed the constitutionality of disclosure laws. If disclosure has been blocked, the culprits are the Internal Revenue Service and Congress, not the Supreme Court and not Citizens United. . . .” How would you respond to their two points?
Hasen: I agree with the disclosure point. The problem on disclosure is with the political branches, especially Congress, and to a lesser extent the IRS and FEC. The Supreme Court has been almost unanimous on the constitutionality of campaign finance disclosure laws. Justice Scalia, indeed, was a leader on this regard.
On individual spending: to begin with I agree that to fix the problems I identify the Court needs to overrule not just Citizens United, but SpeechNow and the part of Buckley that rejected individual spending limits. I have made the case that Citizens United and SpeechNow had an effect of changing the psychology of billionaires to allow them to play more with their money in elections. The creation of Super PACs also gave donors an ability not to completely hide their identity, but to assure that their own names did not appear on the ads themselves. That made giving more attractive.
The Problem of Legislative Inaction
Collins: Ever since the Citizens United ruling in 2010, the focus of much debate has been on the Supreme Court. So much so that Democrats proposed a constitutional amendment to overrule that decision. But isn’t the main problem a legislative one? That is, even if an anti-Citizens United Justice were to replace Justice Scalia, how likely is it that either Congress or many state legislatures would pass any meaningful campaign finance law?
Hasen: If we had a progressive Supreme Court, I expect states and localities, especially those with voter initiatives, would try to pass spending limits. These spending limits (and other laws) could then be challenged before the new Supreme Court. If the Court allows for some limits in some circumstances, then change could happen on the national level when the political momentum on this issue shifts.
Collins: As you have noted, the Center for Responsive Politics reports that the IRS granted 501(c)(4) nonprofit status to Crossroads GPS, which is Karl Rove’s political group. Because of that it can spend large sums on political ads without having to disclose where such groups get their money. What do make of this and what do you think should and can be done?
Hasen: I think that allowing large undisclosed campaign contributions is a big problem, on both anticorruption and informational grounds. Voters rely upon contributor information as a shortcut for deciding how to vote, and knowing who is backing a candidate helps to find potentially improper influence.
The solution to this problem is for Congress to pass an effective disclosure law that targets not the kind of entity engaging in campaign related spending, but the spending itself. I’d like to see higher thresholds for public disclosure of campaign contributions, so as to protect voter privacy of those who are not major players in elections.
Amplifying & Silencing One’s Political Voice
Collins: Assume that Congress passed a law, to be applied during specified election cycles. That law created a Fairness Doctrine to applied against cable TV stations. Assume that the purpose of the law was to secure some general measure of balance in political messaging. As a policy matter, would you support such a law?
Hasen: No I would not. I think such a law creates greater dangers to First Amendment activity than the ones I support. It also furthers an idea that every candidate or party gets the same amount of air time. I propose campaign finance vouchers so we try to equalize a bit the influence of voters, not candidates or parties. The question is what one is trying to achieve. I would support free airtime for candidates as one way of dealing with the big money problem.
Collins: Various technologies amplify speech, everything from bullhorns to television stations. Those technologies, of course, cost money, sometimes lots of money. As a First Amendment matter, could one’s own use of those technologies to support a candidate during an election cycle be capped by a dollar amount imposed by Congress?
Hasen: Well I’ve already addressed my belief that we can give special protections to the press. I spend an entire chapter of the book defending that idea and spelling it out. I’d have to think about other technologies. A bullhorn is kind of a de minimis literal amplification, and not worrisome. I also note, in the book, that I would continue to treat volunteer time as not something which would count against the limits.
There are all sorts of ways in which things would not be perfectly equal under my system. For example, most people could not afford to give up to the $25,000 limit.
I’m just looking for a way to stop the Sheldon Adelsons of the world from spending $98 million in an election, as he did in 2012, or the Tom Steyers from spending $74 million, as he did in 2014, or the Koch Brothers network of 40 pledging to spend close to $900 million in 2016. That frankly is obscene.
Collins: In NAACP v. Alabama (1963), the Court ruled that the NAACP (a non-profit corporation) had a constitutional associational right not to be compelled to disclose its membership. What bearing, if any, do you think that precedent has in the campaign finance area in matters requiring corporate disclosure?
Hasen: I think it has very little bearing. I have no sympathy for the argument that campaign contributors face unconstitutional harassment. The Supreme Court has said that when there is such harassment, a person can be exempt from generally applicable campaign finance disclosure laws. But in my look at this question in the context of same sex marriage measures, the evidence of actual unconstitutional harassment of donors was very minor indeed. This is more a talking point than evidence of an actul problem.
Commercial Speech & Content Discrimination: Conceptual Cousins of Citizens United?
Collins: What is your opinion of the Commercial Speech doctrine as it exists today? For example, do you think that the Court’s 6-3 ruling in Sorrell v. IMS Health, Inc. (2011) has anything in common with the Courts ruling in Citizens United?
Hasen: I haven’t really given it enough thought to express an intelligent answer. I have enough trouble keeping up with all of the cases I my own field!
Collins: How, if at all, do you think Justice Clarence Thomas’s majority opinion in Reed v. Town of Gilbert (2015) (which Justice Sonia Sotomayor joined) will affect the campaign finance controversy?
Hasen: I don’t know that Reed will have tremendous effect in the campaign finance area. One question is how Reed will be read in future cases. When I did a podcast with Floyd Abrams, he predicted that Reed and Williams-Yulee v. Florida Bar (2015) (a case in which Chief Justice Roberts joined the liberals to uphold a ban on personal solicitation of contributions by judicial candidates) could actually lead the Court to water down the strict scrutiny standard.
* * *
Hasen: Thanks so much for the opportunity to have this dialogue with you. I can say this is the best interview about my work or books that I’ve ever participated in. Your deep and thoughtful First Amendment coverage is absolutely indispensable.
Collins: You are quite welcome. And thank you for your thoughtful responses to some tough questions. Best of luck with your new book.
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