When I first met Richard Painter some months ago, I thought he must be the loneliest man in the Republican Party. He’s a conservative, and, of course, I’m not. But he believes, as I do, that there’s too much money in politics.
Political insiders know Richard Painter well as President George W. Bush’s White House counselor and chief ethical advisor. He’s now teaching law at the University of Minnesota, and he’s causing heads to turn with a book advocating that we reduce the power of big money in politics. Its title is Taxation Only With Representation: The Conservative Conscience and Campaign Finance Reform. There’s a lot to learn from it, and I urge you to read it, because it is rare today to find a conservative who will admit, as Mr. Painter does, that money corrupts politics, and then makes his case with so much passion and logic.
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His book is also timely because the issue has reached a boiling point this year. Thousands of people descended on Washington just last week in a movement they call Democracy Spring, deliberately getting arrested to protest on behalf of cleaner politics and a government liberated from Big Money. Every poll I’ve consulted reveals a deep and substantial support in this country for those objectives. Most Americans agree that rich people should be able to buy more houses than anyone else, buy more cars and more clothes and more gizmos, even take more vacations than any one else — but they don’t think rich people should be able to buy more democracy than anyone else. Richard Painter joins me now to talk about how to rein in the power of big money in politics so that we are indeed, as his book suggests, government of, by and for the people.
Bill Moyers: Welcome.
Richard Painter: Well thank you very much, Bill.
Do you feel like the loneliest man in the Republican Party?
Well, among grassroots Republicans and ordinary voters I do not. I think there is an overwhelming support for campaign finance reform, and that includes conservatives and Republicans. Where the problem is is with the leadership; with the politicians who are benefiting from the big campaign contributions, and the dark money in the electioneering communications and so forth. And the leadership in the Republican Party, in particular, has failed to address this issue.
Well that’s interesting to me, because I was impressed over my lifetime with two prominent conservatives who really argued effectively, and efficiently, and powerfully, for campaign finance reform. One was Barry Goldwater, and as you know I was on Lyndon Johnson’s staff in 1964 when President Johnson defeated Goldwater. But Goldwater was an advocate for trying to reduce the power of money in politics. He said, and I’m quoting from him, “In order to achieve the widest possible distribution of political power, financial contributions to political campaigns should be made by individuals and individuals alone. I see no reason,” said Barry Goldwater, “for labor unions or corporations to participate in politics. Both were created for economic purposes and their activities should be restricted accordingly.”
And of course John McCain was a strong advocate — the McCain-Feingold bill to limit the power of influence. What’s happened to conservatism that it’s so far from the positions of its two leaders then, Barry Goldwater and John McCain?
I don’t think that the change has been with conservatives, with ordinary conservatives. The problem has been with the political leadership; that the politicians of both political parties have become dependent upon campaign money from vested interests. And that has led to a situation where people, such as Senate Majority Leader Mitch McConnell, are adamantly opposed to campaign finance reform even though the vast majority of voters, including voters who support them, want campaign finance reform. And this is a situation that in the long term is going to lead to a political disaster for the Republican Party if it isn’t addressed.
And I think that’s true too for the Democratic Party. I mean, it was astonishing to me recently to pick up the paper in the morning and realize that the Democratic National Committee had relaxed the rules on raising money from lobbyists and the revolving door in Congress, even as both Hillary Clinton and Bernie Sanders were calling for reducing the power of money in politics. Don’t you think both parties are equally threatened by losing their legitimacy if they continue in this great gulf that separates the leaders from the people?
Absolutely. The difference between the two parties is that the Democrats, at least some of them, recognize there’s a problem, say there’s a problem. They don’t necessarily want to do something about it that’s effective — there’s a great deal of hypocrisy on the Democrat side — but they do recognize there’s a problem and propose some solutions. So that’s put them out ahead of the Republican side where we still are struggling to get the elected leaders to realize there is a problem. The voters realize that it’s a problem, but the elected leaders need to recognize it as well. And one thing I should emphasize is that a lot of former members of Congress, who are Republicans, clearly recognize this as a problem. The difficulty we’re running into is with the current elected leaders.
We’re going to move on in a minute to what you think can be done about it, but let’s stay for a moment with the landscape among conservatives. It was the conservatives on the Supreme Court who gave us Citizens United, so it brings me back to the question: What happened to conservatism between Barry Goldwater and John Roberts to give us a five-to-four majority on the Court that ruled in favor of Citizens United?
I think the Court was wrong in that decision. I don’t think that reversing the Citizens United decision is going to solve the problem — it would make it better. That decision certainly did a lot of damage, but we need to do a lot more than go back to 2008, before the Citizens United case, to fix this problem. I think it was a cesspool. It’s just that the Supreme Court has made the cesspool that much worse with a string of very problematic decisions including Citizens United and McCutcheon [v. FEC] and some others. That’s been a serious problem. But there are ways that we can address this issue and sidestep the Supreme Court.
One thing to be done, of course, is transparency — to make it clear who’s getting the money and where they’re getting it from. And I was impressed when the Citizens United decision came down that Justice Kennedy, who wrote the opinion for the majority, called for disclosure of the spending, and the raising of the money. But both parties have worked since then to make sure that disclosure doesn’t happen. How do you explain that paradox?
Well, the elected officials in both parties are receiving campaign contributions and support through electioneering communications from groups that aren’t technically affiliated with the campaigns, but really are. That’s the off-the-books financing of electioneering communications that’s going on. That has grown dramatically since the Citizens United case, and the elected officials are dependent on this money. They don’t want to alienate their financial backers and they know their financial backers would withdraw support if their names were to be disclosed. So we see relatively little enthusiasm for enhanced disclosure. President Obama has called for more disclosure, but Congress has done very little with respect to this issue, and it’s a serious problem.
Somebody we both know and respect well, Trevor Potter, who’s a very distinguished Republican lawyer, is deeply concerned that democracy is going to lose its legitimacy if we don’t do something about campaign finance reform. Do you think that people are going to feel so betrayed — so sold out by a political class of professional campaigners, and their mercenary advisors, the big donors, the lobbyists, the media — that they’re just going to give up on representative government? Do you think that’s a real possibility?
I am very worried about that. Having a representative democracy requires the confidence of the voters in the system. And if voters lose confidence in the system they can make some very bad decisions. I think we have a lot of very angry voters. And we need to be cognizant of the fact that if we don’t have public confidence in the system it’s going to be easy for demagoguery to take over and for voters to flock to the type of candidate who promises an authoritarian regime or something like that. And it’s not a good situation. It’s what destroyed the Weimar Republic in Germany in the 1930s — lack of public confidence in the representative democracy — and it’s a problem that we could deal with here in the United States.
I once did a film on the 45th anniversary of D-Day, the landing of the American and allied troops on Normandy and the French coast that began to turn the war in favor of freedom and democracy. And I remember standing there, seeing the crosses and the flags and thinking that Americans of all stripes have sacrificed, strived, suffered, even died in the belief that all citizens should have an equal political footing on the ground of democracy. I was thinking so many of them will have died in vain unless we get this system cleared up. Do you agree with that?
I do. We have had a representative democracy that has functioned for over 200 years. We’ve had our ups and downs. We went through a civil war because we didn’t deal with the slavery issue. We’ve gone through difficult times in this country but our representative democracy has survived. It will continue to survive if it has the confidence of the voters. And we are competing now on a global scale with countries such as China that have an oligarchy in place. And oligarchy indeed has been a popular form of government, that has been pervasive throughout human history. Representative democracy is a relatively new concept that people started to talk about in the eighteenth century.
The American experiment with representative democracy has been a great success, but we need to realize that it needs to be a genuine representative democracy where ordinary people have a vote, have a voice in choosing the candidates who represent them. And if we don’t address this issue we could easily see a situation where oligarchy, as a political system, that oligarchy is a more persuasive system where people will flock to authoritarian government and other alternatives.
So what brings you to the fight now? Why have you decided to go against the grain of your own party leadership and call on conservatives to support campaign finance reform?
Well my role in the political process is first as an American. And I have the same concerns that many Americans do about the economy, about my children’s future — and we’re all in this together, Democrats, Independents and Republicans. I also share the view on campaign finance that is shared by many, many, very conservative voters who have been consistently voting Republican but may or may not in the future because there is an increasing amount of anger about the campaign finance issue and about the functioning of government in general. At the end of the day, in a representative democracy it’s about what the voters think, not what the politicians in charge think is best for themselves.
Many of those voters as you say are conservative. What’s your working definition of a political conservative?
Well, I describe several different groups of political conservatives and these groups of political conservatives aren’t going to agree on all issues. But one of the groups I focus on is those who are worried about national security concerns. Corporate wealth is global in a global economy. We’re going to have money coming into our elections from China, from the Middle East, from all over the world. These are not necessarily countries that are hostile to the United States — sometimes they are, sometimes not — but there’s a fundamental principle at stake here: Should the United States government be chosen by the American people or by well-to-do interests, by moneyed interests, in other countries?
That’s why we fought the American Revolution, over that issue. We have preserved our independence for over 200 years. But if we don’t want the United States government carved up into spheres of influence by foreign powers in a global economy, we need to do something about this problem. It’s a very serious problem and I’ve outlined in the book about a dozen ways in which foreign money can get into United States elections.
I was really surprised with that, Richard. You come down very hard on this issue of Citizens United opening the door to foreign money. I remember, I’m sure you remember, that in the State of the Union Address, soon after Citizens United was issued by the Court, President Obama said that the decision was going to open the American political process to undue influence from money abroad. And you could see Justice Alito — it’s a famous moment in video — you can see Justice Alito shaking his head and saying, “Not true, not true.” You take the opposite position of Justice Alito.
Justice Alito is speaking of the law and what the law is; and the Supreme Court, without actually issuing an opinion, affirmed a District of Columbia appeals court opinion that said that Citizens United did not apply to the prohibitions on foreign money. And so at this point, the official position of the courts is that foreign interests do not have the same free speech rights that American corporations do. There are two problems: One, there’s a reason the Supreme Court didn’t issue an opinion, because I don’t think that position is logically defensible. But more important, it doesn’t matter. There are about a dozen ways of getting that foreign money into our elections, whether or not Justice Alito, or anyone else, thinks it’s legal. And this I’ve analogized to the twenty-one-year-old drinking age. It’s illegal to drink under the age of twenty-one. But I can assure you it’s a lot easier to get foreign money into a US election than it is to get booze onto the typical college campus in the freshman dormitory.
And what do you think about, some of us have been calling on President Obama to sign this executive order that would require corporations that do business with the Pentagon to disclose their political spending. What do you think about that?
Oh, absolutely. I think the President needs to sign this executive order. When we have government contractors who are making campaign contributions and then getting the contracts, the pay-to-play game, this is costing taxpayers a lot of money. And we have these contracts being handed out by politicians, both Republican and Democrat. We had a terrible time in the Bush administration controlling government spending when the Republicans controlled both houses of Congress. Dennis Hastert was the speaker of the United States House of Representatives, and it was close to impossible to get the politicians, even of our own party, to stop handing out money, taxpayer money, to various contractors and pet projects that would enrich special interests. At a bare minimum, we need to have disclosure by government contractors of the money that they are giving to politicians. This is the kind of thing that drives up taxes because the spending goes up and we have to pay for it. Either it’s going to drive up taxes or drive up deficits. And for any fiscal conservative, this situation should be unacceptable.
So I was just about to ask you, what do political conservatives lose with our present system of campaign finance? They lose faith in limited government, right?
Yes. You’re going to have more government spending for more expensive government contracts. You’re going to have regulation that is designed to appease those who make the largest contributions, but regulation often hinders small business in favor of big businesses. And even with respect to big businesses, many of them are in the situation where they have to pay money to politicians in order to get the regulatory regime they want. So you have lots of regulation, with lots of loopholes; each loophole bought with campaign contributions and then lobbied in by the K Street lobbyists. And that’s not the way our economy should be regulated at all.
There’s one more group I want to talk about and that’s the social conservatives. I’ve disagreed with social conservatives on some issues such as the freedom-to-marry; but the fact of the matter is that social conservatives feel marginalized in the Republican Party, just as they felt marginalized in the Democratic Party a few decades ago. And I think the reason they feel marginalized is they just don’t bring anywhere near as much financial power into the political process as many of the interests that oppose them. I think that they need to think seriously about healthcare issues, for example, whether it’s abortion; the Plan B drugs; or the end of life. What is the view of the drug companies? What is the view of the medical establishment? Do they agree with it? Because the drug companies and the medical establishment — the health services industry — is pouring enormous amount into political campaigns, Democrat and Republican.
But these decisions about the value of human life and other issues that faith-based voters care about, and may disagree about, these issues should not be resolved because some vested financial interests have a view about the value of human life versus money and that that’s what influences the politicians of both political parties. That is wrong, regardless of how we come down on the core issue.
There are a whole range of issues where the money is on one side and the social conservatives are in the position of — there’s a story from the Gospel of Luke of the widow who puts the few pennies in the coffers while all the rich men are standing around and pouring in lots more and Jesus says, “Well, the poor widow, her contribution is just as important if not more important.” And is that the way we’re running our democracy? I would expect the faith community to rebel against this system and to kick the moneychangers out of the temple of our democracy. This is unacceptable.
So how do we stop it, Richard? I mean, I’ve read your book, read it twice in fact; recommended it to many people; recommending it now to everybody. And you lay out some very specific steps that you think, from a conservative position, we could take. How do we stop this? How do we take the American political system back from the donor class?
We need to get ordinary voters to not only say that they are in favor of campaign finance reform but to put this issue at the very top of their list.
Well that’s the perverse part of this. The irony is that polls, as I said earlier in our conversation, show overwhelming support for campaign finance reform — Democrats, Republicans and Independents. But the politicians they elect turn around and refuse to give the people what they say they want, which is less money in politics. It’s certainly not representative government, is it?
No it’s not. It doesn’t work. Representative democracy doesn’t work unless the voters get a chance to choose the candidates of the two major political parties, rather than having a situation where the big donors choose the candidates of the two political parties and then the voters are told to make a choice in the fall. The voters need to have a role from the very beginning in choosing the political candidates of both political parties or this system isn’t going to work.
We see a range of voters now who ought to be fed up: the voters who want to see less taxing and less spending and less pork barrel projects and excessive regulation; the voters who are worried about national security and the foreign money getting into our system; and now the faith-based voters, both liberal and conservative, and values voters, knowing that if they bring values to the ballot box but they don’t bring their checkbook, that they’re going to be shut out. The next step is what are we going to do about it?
Would you limit individual contributions to political candidates?
I think that is part of a good approach to this problem, is limiting some of the individual contributions, at least in some types of races. I am going to be appearing as an expert witness for the State of Alaska in a lawsuit that has been brought in federal district court, up in Anchorage, against the state trying to invalidate their $500 limit.
One of the points I’m going to make when I testify at trial is that the people in Alaska are in a very vulnerable situation with their state house, and senate races, and races for governor. Money from not only the lower forty-eight states, but money from foreign interests that are all interested in the natural resources up there in Alaska, could pour into those elections. You could have employers who are pressuring their employees to make contributions. And one way to address that is to say, “Okay, $500, that’s the maximum into the races for the State House and the State Senate.” They have some other controls up there as well. So I think, in some contexts, limitations on individual contributions could be part of the solution. I don’t think it’s going to, alone, solve the problem. It could be part of a constructive solution to this problem.
But unless we do deal with it, the widow’s mite isn’t going to count. I mean, George Soros can give a million dollars and therefore becomes many times more a citizen of influence than I do or the widow does with her mite. And only because he’s rich, right?
Well yes, and that’s the problem. And the only reason I say that the limitations on individual contributions don’t solve the problem is that someone like George Soros, the Koch brothers, and others — this includes foreign billionaires, although they would have to do it more discreetly — there are other ways that they can get the money into the system than through individual contributions to the campaign. They have these dark money organizations, that are set up under section 501(c)(4) of the internal revenue code; they don’t have to disclose their donors, so that money could be coming in from anywhere and these organizations have a constitutional right under the Citizens United case, supposedly, to run whatever ads they want that refer to candidates very close to the election. So we can and should limit individual contributions. That’s a part of the solution, but we also need to do something about the dark money.
Did you see that Arizona’s legislature, controlled by the Republicans, voted to dismantle the state’s strict campaign finance disclosure rules? Arizona was one of the first states to opt for public funding of elections many years ago and now the Republican legislature down there is opposing even the Supreme Court’s Citizens United decision in favor of disclosure. So how do you convince — assume I’m the embodiment of the Republican legislature in Arizona — how do you convince us? Particularly since we benefitted from tens of millions of spending in dark money by groups associated with the Koch brothers, how do you convince us that we should expose the hand that feeds us?
Well, I think the voters need to do the convincing. And one of the things that I’ve seen over many years of looking at what’s happened in different states is, when you have a political system where one party in a particular location feels they’ve got control and they can do anything they want, the corruption problem is even worse. Down in Arizona, the Republican Party’s felt very secure in their position that voters won’t bail on them regardless of what they do. So this is going to create a situation where it’s even more tempting to run to the special interests, and if the special interests don’t want disclosure then we won’t have any disclosure; because who’s going to squawk about it? And that’s not a good situation. Voters need to make it very clear, they’re going to vote for other primary challengers to these people, or they’re going to vote for a Democrat, or whatever it takes, but this system has to get fixed in Arizona and everywhere else.
I know that you’re working with Democrats who care about this issue, with liberals who care about this issue, with Libertarians and others who care about this issue. Where do you differ from liberals in those discussions, and Democrats, in those discussions you’re having, about how do we solve the problem?
Well, I think that many — not all — many liberals and many Democrats place a lot of emphasis on what’s been going on at the Supreme Court and the notion that if we reverse the Citizens United case, the problem will be solved, or a lot of the problem will be solved. My position on that is that reversing the Citizens United case would help. It is a bad decision: the notion that corporations — and as a practical matter, this includes foreign-owned corporations — have free speech rights equivalent to American citizens. That is wrong. It’s an enormously unpopular decision.
So I agree that it’s wrong, but there are solutions to this problem that can be implemented without having to deal with the Supreme Court. So the Democrats and liberals, a lot of them are placing a lot of emphasis on the Supreme Court, and I think some of that can be opportunistic, because of course there are a lot of other issues that conservatives and liberals disagree about that if you had a fifth liberal justice would go the way that liberals would prefer, and the way some conservatives might not prefer.
I was impressed that there’s no silver bullet here, there’s no one thing that you think will take back our politics from the donors. It’s a sort of package you propose. Is it feasible to think that people can grasp that kind of solution, series of solutions, to a very complicated problem?
Well, I start with a core proposal and it’s in the title of the book, Taxation Only With Representation.
Explain that. Explain that for my audience.
Taxation only with representation could be an amendment to the United States Constitution; an amendment to a state constitution; or it could be an act of Congress signed by the President. It would simply say the following — with some variation, depending on whether it’s at the state or federal level — but the bottom line is that the government should have no right to tax anybody, through income tax, inheritance tax, sales tax, property tax, or any other tax, unless that person, if a United States citizen, that person has a right to designate the first $200 of his or her tax money to support the political candidate, or candidates of his or her choice.
Bottom line is: When I pay a lot of taxes, I should have the right to have the first $200 go to help choose the politicians who are going to be elected who will be spending, or wasting, or whatever they do with the rest. That ought to be a constitutional right, or it could be a right embodied in the statutes, it could be put in the internal revenue code. First $200 — that’s my money, we’re not talking about a government handout, or government voucher or anything like that. That’s my money. I ought to get to decide which candidate should get that money. That would bring in billions of dollars of small donations from ordinary taxpayers to support the candidates of their choice, and that would make a huge difference in the primaries.
You’d have a lot of different candidates, wouldn’t you? Because you’ve got a lot of different contributors.
You would, absolutely. You’d have a range of different candidates. But the money would be coming from a lot more people.
But that doesn’t solve the problem, does it, of George Soros who can give millions of dollars? I think he’s given, I saw, $7 million dollars to Hillary Clinton’s campaign, and God knows how much the Koch brothers and Sheldon Adelson have given away. What do you do about them?
Well, what is does is it destroys the dependency relationships. If Hillary Clinton wants to take money from George Soros, or a Republican candidate wants to take support from the Koch brothers, they can. But they aren’t dependent on that money. Because with the taxation-only-with-representation provision, there’s billions of dollars from ordinary taxpayers that is available to fund campaigns if the candidates can convince those taxpayers that they are worth supporting.
If a candidate is getting a lot of money from George Soros, that may make it a lot harder for that candidate to appeal to ordinary voters who are deciding where to spend their $200. Why send your $200 to someone who’s getting a couple of million dollars from some very rich guy? A lot of voters are going to think twice about that. So if you combine this taxation only with representation provision with some enhanced disclosure laws so people can find out what George Soros is doing with his money, and who’s benefitting from it, I think you could have a situation where the ordinary voters easily could balance out what’s going on with the big money. And at least the politicians wouldn’t be dependent on the big money to stand for election.
Your book left me hopeful, Richard, because you’re a man of influence, a man of accomplishment, served in the Bush administration. You know the world and the way it works and you think we can do something about this. But it left me also pessimistic, as much of my own work in this field has done. Because we are in the grips of two political parties who benefit from the system as it is and whose main mission is to increase their hold on our government; and therefore, to increase the power of incumbency; and with two parties, the only two parties we have, opposed to everything you’re suggesting here.
Actually, you’re echoing, as you may or may not know — I’m sure you probably do know — echoing an ancient historian, Plutarch, who said about the impact of money on the downfall of the Roman Republic, and I’m quoting here, “The abuse of buying and selling votes crept in and money began to play an important part in determining elections. Later on, however, the process of corruption spread to the law courts and to the army, and finally, even when the sword became enslaved by the power of gold, the Republic was subjected to the rule of emperors, an oligarchy, a plutocracy.” And without being an alarmist, I can say that when you read Taxation Only With Representation, your book, you see that same handwriting on the wall. Where do you come out? Are you hopeful, or pessimistic?
I am very concerned. The accounts of the decline of the representative democracy in Rome are very much to the point. But we’ve struggled with this issue over the years. This isn’t something that’s entirely new. What we have, though, in the Republican Party is very interesting, because I think that this current campaign finance system isn’t really oligarchy. It’s not a tiny percentage of people getting together and calling all the shots. It’s chaos. Because these campaign contributors often have conflicting agendas. They have very selfish agendas, and they think they can control things. They control part of it, and they don’t control other parts because somebody else jumps in with money to control something else.
The Koch brothers they thought they were in control. You had another group of people backing Jeb Bush who felt they were in control. So you had those two groups, and then in steps Donald Trump with his own money. This is chaos right now with one of our major political parties. It’s because of the money. The money drove us into this situation. We could’ve had a lot of very highly qualified candidates, establishment candidates in this race who would appeal to mainstream Republican voters. Now we’re in this very difficult situation right now. I think the money, the way money influences primaries, the so-called green primary —
Green as in money, not green as in trees.
Absolutely, green as in money. And the green primary, when you allow money to determine who is going to be the nominee — and that has been the case in both political parties — but it’s wreaked havoc on the Republican Party. And I’m hoping the party survives the election in the fall intact, but it’s a chaotic situation.
And that may lead ultimately though to people recognizing the problem and addressing it. Sometimes you have to go through something like that in order to recognize your problems and come up with solutions.
And yet you’re not arguing that we need to get money out of politics are you?
The problem there is I don’t think we can get it out of politics. And even if we changed Citizens United and implement the McCain-Feingold laws that were struck down, which I would do, we can limit some of the money in politics. We can have some more disclosure. But we’re never going to get it all out. And that’s why the-taxation-only-with-representation provision is so critical. We need to get small dollar donors in. It can be through taxes, the first $200 , and I think that ought to be a constitutional right.
I used to think that if people like you and me started a new party, we would only need a two-man canoe. But I’m beginning to think that there may be more of us than we think.
I think there are a lot of people who are fed up with the position of the leadership of both political parties on a range of different issues and who feel their voice isn’t being heard. In part because of the campaign money, the leadership is trying to appease a relatively small base of people who feel very, very emotionally about one particular issue, such as blocking nominees to the Supreme Court or whatever it is. Ordinary voters are looking at this situation and saying what is going on? These senators and the other representatives, they’re supposed to represent the view of the people and their constituents. There’s a big disconnect between what’s going on in Washington and what’s going on and what people are thinking in the rest of the country.
The book is Taxation Only With Representation: The Conservative Conscience and Campaign Finance Reform. Richard Painter, I’ve really enjoyed this conversation. Thanks for your time.
Thank you very much, Bill.