Citizens United Four Years Later

TRANSCRIPT:

JAISAL NOOR, TRNN PRODUCER: This is The Real News, and I’m Jaisal Noor in Baltimore.

Tuesday marks the fourth anniversary of the landmark Supreme Court decision Citizens United. It was determined corporations and unions have the same free-speech rights as people, therefore removed restrictions on corporate and union spending on elections.

Now joining us to discuss the fourth anniversary of Citizens United is Richard Briffault. He’s the Joseph P. Chamberlain Professor of Legislation at Columbia Law School. He’s the author of many works, including Dollars and Democracy: A Blueprint for Campaign Finance Reform.

And just a note for our viewers: Richard is joining us on the phone due to technical difficulties.

Thank you so much for joining us, Richard.

RICHARD BRIFFAULT, PROFESSOR OF LEGISLATION, COLOMBIA LAW SCHOOL: Thank you for having me.

NOOR: So, Richard, four years after this historic, landmark Supreme Court decision, tell us exactly what has been the impact of this decision on elections in the United States.

BRIFFAULT: Okay. It’s a little too hard to say that for everything. And often what happens with something like this is the impact is felt more dramatically sort of lower down in smaller elections in some jurisdictions. So, as you indicated, what Citizens United said was that corporations and unions now have the right to spend in unlimited amounts in elections. They still can’t give to candidates, but they can spend on their own independently or, you know, with other groups.

We didn’t see that much corporate money in the presidential election or in the congressional elections the last two times, in fact, and when we did see corporate money, it was often, you know, family businesses, closely held businesses, not big corporations. Very few Fortune 500 companies. There may be more of those involved at the state and local level, but that data, it hasn’t been gathered as much.

In some odd ways, the corporations that are most active are actually nonprofit corporations, which have been able to serve as vehicles for the spending by very wealthy individuals, who could have spent before but would have been spending in a very open way. Now, by setting up super PACs, by setting up a 501(c)(4) nonprofit so-called groups for civic betterment, social welfare organizations, they can kind of mingle their money with other people’s money under a group with a name like’s Americans for Good Government and without being effectively disclosed. So the real upsurge has been less big business money, although there’s some of that, and more actually in wealthy individuals, who legally could have done this before, but maybe now feel more comfortable doing it because they can run their money through nonprofit corporations.

NOOR: Now, Stephen Colbert had a hilarious range of skits about these super PACs.

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NOOR: Right. Exactly.

BRIFFAULT: That’s exactly the kind of name that these organizations use and that don’t tell you anything about what they’re about.

NOOR: And so what kind of scale of spending are we talking about here?

BRIFFAULT: Well, at the federal elections last time, we were talking in the, I don’t know, $200-300 million range, which sounds like a lot, but it’s actually still only a small percentage of the total amount of money in elections. So it’s hard to say, because it’s not all effectively reported. Probably—and even if it’s more than that, it’s probably not more than 10 or 15 percent of what was spent in the presidential congressional elections last time. There’s still a huge amount of other money that’s in the system.

NOOR: So a doomsday scenario, as some had predicted, would you agree hasn’t quite materialized, at least yet?

BRIFFAULT: It hasn’t materialized. I think most big companies, even though they clearly have the wealth, most what are called publicly held companies, companies that have shareholders and are traded on the stock exchange or stock exchanges are kind of nervous about being out there in a very public way. I don’t know if you saw the incident involving the Target Corporation in Minnesota. They gave some money to an organization which in turn was using that money to support a candidate for governor. Their view was that he was good for them on business issues. But he also had a very kind of an anti-gay rights, anti-marriage equality platform. And they prided themselves on being pro-equality, and they were very embarrassed by it. And I think the example of—and there was a boycott, there was a lot of attention to it. I think the example of what can happen with bad publicity may mean that many corporations are reluctant to get involved—not 100 percent, but you don’t see very many big companies getting directly involved in at least federal elections.

NOOR: And I think it’s important to, you know, bring up the point for those that did predict or do say that we’re in this kind of—we’re in a situation where we won’t have democracy until this is repealed. What’s your response to that? Because there’s always been money in politics in America.

BRIFFAULT: Yeah. I think actually it’s the wrong target to aim at. It’s not the corporations. It’s the money. And it’s not only corporations that have a lot of money in our system. You know, in the last election, the biggest spenders, you know, the people who pumped $100 million of their own money into the election, were individuals. You know, a single wealthy couple put $100 million dollars in the election. That’s a lot of money. And there are people in this country who have that much money. So all you need is a handful of extremely wealthy people. And if you only target corporations, you’re also missing other very wealthy individuals.

NOOR: And we always like to talk about solutions on The Real News. Talk about what is being done around the country to challenge this and what can happen. Just what are the laws, as far as the laws that states can pass, to limit spending in local but also federal elections?

BRIFFAULT: Okay. Well, given the current Supreme Court, unless there’s a constitutional amendment or unless there’s a dramatic change in the Court, neither of which I expect in the near future—and it’s very hard to get a constitutional amendment passed, and certainly the current Congress is not going to even take the first step. Leaving aside a dramatic change in constitutional law, you can’t limit spending.
So the two kinds of strategies that are being pursued at the state and local level—’cause, again, Congress is not going to do anything in the near-term—one is better disclosure of the money that’s out there and trying to reach these secretive organizations, the dark-money organizations that tell you—the Americans for a Better Tomorrow, who say, okay, we just spent $10 million, but won’t tell you where they’re getting their money. And many states are moving to improve disclosure of those people.

Second is public funding, which doesn’t limit the amount of money the rich or that corporations can spend, but to some extent can dilute its impact by giving other candidates money that’s—taking small donations and matching it, often multiple match, a 4-to-1 or a 5-to-1 match, in a way that empowers relatively small people, people with small resources, is the second thing.

And third, some states are doing a lot of work on what’s called pay-to-play, lowering the ability of people who do business with the government—government contractors and others—to give money in connection with elections. It’s not clear whether they can extend that to this independent spending, but that would be something that could be tried.

So those would be the three things—better disclosure of these independent groups, more public funding, which, again, doesn’t stop anybody from putting money in but, hopefully, dilutes the impact, and some kind of targeted restrictions, particularly on people who have direct stakes in government action ’cause they do business with government.

NOOR: And there’s also a move to amend this Supreme Court decision.

BRIFFAULT: There’s a move to amend the Constitution. That’s a long-term strategy, which is—nothing wrong with that, but I think you’ve got to be prepared to spend a very long time on that. To amend the Constitution, you’ve got to get it through—get two-thirds majorities in both houses of Congress. You know, the current constitution, you’re not going to get it for sure through one of the houses of Congress [incompr.] Congress. Now, that Congress can change. And then you’ve got to get it passed, ratified by three-quarters of the states. So this is definitely a long-term strategy and not something that’s going to happen any time soon. But it’s—you know, I’m not saying people shouldn’t try it. I’m just saying it’s a long-term strategy.

NOOR: Well, thank you so much for joining us.

BRIFFAULT: Okay. Glad to be helpful.

NOOR: You can follow us @therealnews on Twitter. Tweet me questions and comments @jaisalnoor.

Thank you so much for joining us.