Bill Moyers: Welcome. It will take a long time to recover from what’s been happening in Washington. But we now know the insurrection against the rule of law didn’t happen spontaneously. It was hatched months ago. Not by rank-and-file folks across the country who look on Michelle Bachman as the incarnation of Joan of Arc, but by old hands at right-wing politics who are burrowed deep into the culture of Washington. Like this man, Edwin Meese, who was Ronald Reagan’s Attorney General and has been hanging around the Heritage Foundation more or less ever since. Heritage is where the faithful receive communion and pick up their talking points.
According to reporting by “New York Times” journalists Sheryl Gay Stolberg and Mike McIntire, just after Barack Obama began his second term, Ed Meese and the leaders of three dozen conservative groups met to decide on a “take-no-prisoners” strategy to defund Obamacare, even if it meant shutting down the government. They gathered big bucks from the billionaire Koch brothers — over $200 million from one Koch-related group alone. One of the plotters, Michael Needham, CEO of the Heritage Action Fund, told “The Times” that what happened was “a groundswell that changed Washington from the outside in.” Not so. This was an inside job by dissidents of long-standing, who, having slipped to minority status, attempted a coup d’état against majority rule. The story’s far from over, and we’ll be coming back to it the weeks ahead.
But for now, there’s something else deserving your attention – an important story that more or less got pushed to the side by the storm over the shutdown. Conservatives sent their lawyers to the Supreme Court to argue for a green light to flood politics with a lot more cash.
Keep in mind that we already have in this country what the watchdog Sunlight Foundation describes as “an elite class that increasingly serves as the gatekeepers of public office.” That thin sliver of the very rich – the one percent of the one percenters – has so much money it wants to keep on giving. So here was the Supreme Court hearing a big case that could take the lid off, allowing the rich to spend even greater sums of cash to influence our elections. Although its official name is McCutcheon v. FEC, let’s call the case “Citizens United: The Sequel.”
Here to talk with me about this is Heather Gerken, described by “The Boston Globe” as “one of the most closely watched young stars in the legal academy.” That’s because of her provocative and innovative thinking about election and constitutional law. She’s a board member of the Campaign Legal Center, a non-partisan, non-profit organization founded by someone familiar to viewers of this broadcast – the Republican reformer Trevor Potter. Heather Gerken clerked with Supreme Court Justice David Souter, practiced law, then taught at Harvard before joining the faculty of Yale. She is the brains behind the “Democracy Index,” a new plan for fair elections. Heather Gerken, it’s good to meet you.
Heather Gerken: Thank you so much for having me.
Bill Moyers: What’s at issue in this case?
Heather Gerken: As you know when you give in a campaign, you can only give a certain amount of money to a candidate. But there’s also a limit that most people never notice because most people don’t have nearly enough money to reach it, but there are limits on how much you can spend in the aggregate. So you can spend about $123,000 on federal elections all told.
Bill Moyers: In one election cycle—
Heather Gerken: In one election cycle.
Bill Moyers: —in one two year period—
Heather Gerken: Exactly. But what’s being argued in this case is that you should be able to spend as much as you want, that is you can have limits on the amount you can give to each candidate and each party committee and each party, but you can give to as many candidates as you want and as many party committees as you want and as many PACs as you want. All of those things are capped right now, which would mean just in real terms that instead of about $123,000 being the cap, one donor could give $3.5 million to political parties and candidates
Bill Moyers: There was this moment during the oral arguments when Justice Scalia told Solicitor General Verrilli that compared with the billions of dollars already spent on federal campaigns by parties, candidates, political action committees and super PACs, he said, I don’t think $3.5 million is a heck of a lot of money. Does this surprise you to hear that from a Supreme Court justice?
Heather Gerken: Well, I will say two things. One is $3.5 million is a lot of money, I think, to just about anyone except for the, you know, the Adelsons of the world. But the other thing that I will just say, and this was made by another commentator, talk about chutzpah. So the reason that these people are spending millions and millions and millions of dollars in the last election is Justice Scalia. You know, they’re the ones who allowed this to happen in the first place. And so—
Bill Moyers: Scalia and the majority on the court?
Heather Gerken: Scalia and the majority on the court. So for them to say, well, we’ve got a giant problem on one side, so the solution is to create a giant problem on the other side, well, they are the reason for the giant problem that they were describing—
Bill Moyers: Citizens United?
Heather Gerken: —Citizens United.
Bill Moyers: In response to Scalia, Solicitor General Verrilli said, “I don’t think that’s the right way to look at it, Your Honor. If you think that a party’s got to get $1.5 billion together … that’s about 450 people you need to round up, less than 500 people,” the solicitor general said, “can fund the whole shooting match.”
Heather Gerken: It’s a remarkable statement. Although I’ll just tell you my worry is bigger than General Verrilli’s worry. So he worries that 400 people will fund the whole shooting match. My worry is that once 400 people realize they can put funding in like that, there’ll be 800 of them or maybe 1,200 of them, that more money will move into the system because people will realize just how far their money’s going to go, just how much influence their money can buy.
Heather Gerken: That takes us to a world where money plays an even more powerful role in politics than it does now. And I’ll just say, I mean, I believe in the first amendment. But it’s hard to imagine money playing a bigger role than it did in 2012. And yet it looks like we’re heading in that direction in 2016.
Bill Moyers: But can it be worse than it is now?
Heather Gerken: You know, I actually was one of the people who thought it couldn’t. But it never occurred to me that the Supreme Court would be striking down contribution limits. So we actually could see something that’s much worse than we have now.
This is a deregulatory court. And in Citizens United made it very difficult to regulate what was called independent spending, that’s the money that you spend on your own in favor of your candidates. And right now it’s the Wild West in independent spending. You can spend basically as much as you want often without anyone even knowing that you’re spending the money.
So what we’re looking at now on the contribution side, which is the amount of money you give directly to the candidate for him or her to spend as much as she, in the way she wants, that looks like it’s moving into the world of the Wild West as well.
Bill Moyers: I read some research last evening that in the last election cycle there were 1,219 of the wealthiest donors who reached or almost reached the limit now prevailing.
Heather Gerken: Yes. Well, I will just say those numbers actually could increase for the following reasons. Reaching a limit of $123,000 isn’t really that influential.
That’s the point of the limit, that even if you reach the cap of it, you’re not going to be the person who gets a seat at the table automatically. So $123,000 is just not that much money in politics nowadays if you’re thinking about how much is spent for all the campaigns.
However, if you’re someone who can fund an entire senatorial campaign, if you’re someone who can give a chunk of the president, what the presidential campaign needs, you’re get a seat at the table. So those numbers may underestimate the number of people who are going to want to do this. But when you can spend $3.5 million, you can get a lot more influence and people still start to say, hmmm, that sounds like a really good use of my money.
Bill Moyers: Well, you say seat at the table, but don’t you really mean they can set the agenda, they can buy the ads that determine what we talk about in a campaign? They can actually destroy an opponent with spending money in negative advertising? It’s more than a seat at the table.
Heather Gerken: It’s actually worse than that though. I worry not just about their ability to influence the election, but they’re going to influence the governance agenda. So if you know that the people who are funding your campaign are against this legislation or in favor of this legislation, it’s going to be very hard for party leaders not to pay attention to that fact. So it’s not just a seat at the table on election day. Is a seat at the table for the next four to six years when they’re governing.
Bill Moyers: It means they can in effect buy the policy outcomes they want for the legislative process because the incumbents they have supported with $3.5 million or more are going to be paying attention to them when they come to the table?
Heather Gerken: It’s not the direct kind of thing, bags full of money in exchange for votes, but it’s actually more pernicious in a way because it shapes the whole background of politics about what’s allowed to be talked about and what isn’t allowed to be talked about, about what kind of votes are going to happen and what kind of votes aren’t going to happen. So what it means is Wall Street is going to be controlling the congressional agenda, but Main Street is not.
Bill Moyers: But, the majority in the court would disagree with you because remember in Citizens United they said well, if corruption were the issue here, if we could, if you could prove a corruption, Ms. Gerken, we would listen to you. But you can’t prove corruption. This is just the politicians give gratitude to their donors, but it’s not a quid pro quo and you can’t demonstrate that it is buying these policy outcomes.
Heather Gerken: That’s right. The Supreme Court in Citizens United changed the standard. So it used to be in fact that what Justice Kennedy called ingratiation and access, that was corruption. And that was corruption under Supreme Court precedent. In the early 1990s, in the early 2000s that’s exactly the definition because the rest of the Supreme Court, the majority that once held understands that politics is more complicated than, you give me money, I give you a vote.
They understand that corruption can run through a system in a way that’s far more pernicious and deeper but subtle. Justice Kennedy has a much narrower view of what constitutes corruption. And that has been the source of deregulation in Citizens United.
Bill Moyers: Yes, if we saw a baseball player before he bats hand a wad of cash to the umpire, we’d know that that’s corruption. But we don’t see the donor handing, the politician, the incumbent senator or congressman handing a decision to the donor, we never see that.
Heather Gerken: We never see it, but we see it in the aggregate. Just take a look at what happened when we had the biggest financial crisis in history. Wall Street was right there helping write the legislation, working on all kinds of pieces of blocking things they didn’t want. Look at what happened when we had health care, something at the core of the interests of the American people, the insurance industry was right there. Those are the people who have the money. Those are the people who are capable of setting the agenda when they can give this much money. And they’re the reason why legislation looks like it does nowadays.
Bill Moyers: What do you think’s been the main impact of Citizens United?
Heather Gerken: To create what I think are shadow parties. So in the olden days, right, money went through the parties, money went through the candidates. But now Citizens United has made it possible to raise inordinate amounts of money outside of the party system. So this is Karl Rove’s Crossroads GPS, this is the super PACs.
And the thing that’s amazing about these organizations is they’re not really independent. They’re technically independent, but they’re being run by the campaign staff. They are constantly interacting with the campaigns, which means if you’re a politician you can have your cake and eat it too. You can be part of the party which has lots of limits right now, before McCutcheon on what it can raise. But you can have your shadow party with your guys raising money in exactly the way you want them to and running ads for you.
Bill Moyers: Why do you call it a shadow party?
Heather Gerken: They’re doing all the kinds of things you can do in a campaign, they’re framing issues, they’re running ads, they’re helping candidates get elected.
The one key difference though is that the party faithful who are the people who knock on doors, the foot soldiers of our democracy, the people who show up at rallies with donuts, the people who put signs on their yard, the people who go drive people around to get them out to vote, they’re in the regular party. They’re not in the shadow party. The shadow party is for the big donors, the elites, the top campaign staff. But the regular everyday people are still stuck back in the old party.
Bill Moyers: Which is more powerful, the old real party or the shadow party?
Heather Gerken: Right now, we’re seeing both of them sort of neck and neck in terms of power. But I’ll just say if we continue with this deregulatory strategy, we may see the shadow party by virtue of the fact that all the money is there be the one that really matters. I mean, there’s a great story that was run in Politico right before the election about Romney. And Romney didn’t have enough money inside the party to get him through November.
And so what Politico asked is will Karl Rove whose independent money is what’s really bringing Romney through to the end of the election, will he just cut Romney off? So now imagine for yourself you’re an important player in Republican or Democratic politics. Do you want to work for Romney or do you want to work for Rove? Who is the most powerful? So the worry over time is that the people who can raise these giant sums of money are the ones that are going to be the most powerful.
Bill Moyers: You call this a deregulatory court. Explain that.
Heather Gerken: So one of the things that’s been really interesting about the Supreme Court is that in cases that people know about, Citizens United and in lots of cases that they don’t know about they’re gradually pulling away at the regulation that was passed by Congress in McCain-Feingold.
So McCain-Feingold was actually a big campaign finance bill that changed the system entirely. And people thought it was working. But little by little, quietly the Supreme Court just pulled one thread out of that cloth after another. And as we see now, they’ve pulled enough threads out of it that the system has begun to unravel.
And now what we’ve seen is, thanks to Citizens United and the court’s deregulatory impulse, we’re seeing these donors are coming back. You know, the empire always strikes back. They’re coming back fiercely and they’ve got a huge amount of money in the system.
Bill Moyers: I have to think this is somewhat if not all well-coordinated. I mean, James Bopp, who is the lawyer who was the intellectual architect of Citizens United was a player in this McCutcheon case. He didn’t argue the case, but he signed onto it. Mitch McConnell, leading Republican is a vacuum cleaner for money in Congress. The court that’s come into play as appointed by one conservative president after another. Is it wrong of me to be skeptical?
Heather Gerken: I would say this is a movement. This is a group of people who decided they wanted to achieve a goal which is deregulation, and they have been working bit by bit, case by case in order to achieve that goal. Now, in some senses that’s what everybody does. If you think about the olden days, you know, the NAACP litigated some cases to build the precedent that led to Brown v. Board of Education. So Jim Bopp is doing that for a slightly different kind of purpose. But for the last ten years, he has been bringing case after case. And it used to be you’d read his legal arguments and you’d think, there’s no way that could win. Under current precedent that’s plainly wrong.
But what Jim Bopp has done is change what the precedent is. And now we are at a point we’re seeing arguments and briefs for example that public finance is unconstitutional, that a variety of challenge, of things that have been sort of the base of campaign finance over time are unconstitutional. And that’s because this group of lawyers using test case after test case has managed to push their agenda through the courts.
Bill Moyers: What is their goal as you see it?
Heather Gerken: I think their goal is to simply deregulate money in politics. I mean it’s hard to see what’s left when they’re done. If you look at the arguments they’re raising below, pretty much everything is going to go. And if everything goes, we’re going to be back to the days pre-Nixon where—
Bill Moyers: Pre-Watergate, which—
Heather Gerken: Pre-Watergate, where there’s a lot of, there’s money in politics and it’s virtually unregulated.
Bill Moyers: Anybody in that movement would say to you, this is really about free speech. The court has said, free speech trumps all other priorities in our society because without free speech we have no dissent.
Heather Gerken: I think that they’re right to think that the first amendment is squarely implicated. You always worry when the government regulates what people can do in terms of political speech. So there’s no question that all of these things should be subject to scrutiny, to a look by the court. But we also have another value in our constitutional system which is called equality. And the worry is that if you interpret the first amendment in such a wooden way and such an extreme way that you’re eventually going to undermine equality which is another deep value embedded in our system.
Bill Moyers: How would it undermine it?
Heather Gerken: It would undermine it because people like my parents would have no say at all in the political system because they’re not the ones with money enough to get the attention of politicians.
Bill Moyers: They can vote. Isn’t that what it’s all about, voting?
Heather Gerken: People can vote, but you need to get your message to them. People can vote, but you have to help have a campaign that’s going to help them get to the polling place. People can vote, but you have to have an opportunity to tell them what the issues are, to shape the way the conversation takes place. So one great description of politicians is that they’re conversational entrepreneurs.
They’re the ones who frame the agenda and tell the American people, here’s what we’re talking about and here’s some ways to think about it. If one set of politicians because of the of the money backing them is able to dominate that conversation, then you worry in the long run that the vote isn’t going to be nearly as meaningful as it is now.
Bill Moyers: And now you have the independent groups that can frame that conversation. They’re really these outside groups with all the money at their disposal are now determining what’s discussed in the campaign.
Heather Gerken: Well, I mean, I will say that the best argument from McCutcheon’s side is that once you have Citizens United, which is giving these independent groups so much money, you should let the parties catch up. And some— McCutcheon’s arguments would let the parties catch up to what’s going on independently. And I understand that argument and I believe that it’s important for the parties to be able to hold their own with the independent spending.
But the more obvious answer and the one that the Supreme Court talked about during argument was, well, maybe we should rethink Citizens United. Because again as I said before, just because we’ve created the Wild West on independent spending, it doesn’t mean that the right answer is to create the Wild West on the party side. Maybe the answer is actually to go back to a world where we have some regulation on both sides.
Bill Moyers: Do you think Citizens United can be reversed?
Heather Gerken: Citizens United depended upon one vote, which is Justice Kennedy’s vote. It was a very close decision. And when it was made we didn’t really know what the effects were going to be. And oftentimes the Supreme Court does change its mind when it makes a decision and the facts on the ground turn out not to be what they thought they were. So it is perfectly acceptable for the court to rethink what it was doing because the facts on the grounds turned out to have changed.
Bill Moyers: What do you worry about most with this McCutcheon case?
Heather Gerken: So the one thing that we’ve always sort of hoped about the way money is working right now is that maybe in the long run the incumbents who are inside the parties would feel like they were being beaten by the independent spending and they might have some reason to regulate it. But if you create a world where the incumbents can get all the money they want from inside the system which is what McCutcheon is pushing us toward, the worry is that no one has any incentive to regulate who’s in power.
And in a world where no one has any incentive to regulate, we’re not going to get regulation. The core problem in election reform is that the foxes are guarding the henhouse. And so every politician would like to preserve his seat. And if the regulation helps the politicians and the incumbents, they’ll keep it. And if it doesn’t, they won’t pass it. So my worry in the long term is that we pull all the incentives out for change because the people who are most interested in these questions and know the most about these questions are the politicians who will be opposing the regulation. And in that world it’s almost impossible to get reform passed.
Bill Moyers: Everyday people, the polls show they realize, 70, 75 percent realize that there’s too much money in politics. And they just say, they throw up their hands and turn away. Is that your experience?
Heather Gerken: I think the better way to think about it is there’s always going to be money in politics. But it matters where the money goes and how it gets there. So just to give you an example, even with independent spending which has been really terrible in the last few years, if we could trace where the money came from, that would make a big difference.
If when you see one of these ads run by Americans for America and it seems really wonderful and it tells you how great coal is, I think if people — and people hear Americans for America and they think it’s just an ad. I think if people heard at the end of that ad, this was paid for by the coal industry, they’d think differently about the ad.
When we, you were talking about, you know, this all goes back to voters. If we just give voters the tools they need to see what’s actually happening to realize where money is in the system, it might give them the weapon they need to fight back.
Bill Moyers: Well, in his majority opinion written for the court at the time for Citizens United, Justice Kennedy said disclosure is perfectly acceptable here, if we’re going to make the system work. But when the disclosure provision was put before the Senate, Mitch McConnell and Republicans filibustered it in effect, they throttled it, they did not let the Senate vote on disclosure.
Heather Gerken: Well, this is another example of what you would call chutzpah. Because when McCain-Feingold was being passed, what Republicans like Mitch McConnell would say over and over again is, we don’t need to cap anything. We don’t need to shut down the money, we can just have disclosure and transparency, and that’s all we need.
Now, a few years later, it’s not just that they’re refusing to pass basic disclosure and disclaimer rules, but it even gets worse than that. The lawyers are now arguing that corporations are intimidated if their money was disclosed. So you see lawyers in court and outside in the public arguing that giant companies like Walmart or Target or Exxon are scared to give money into politics because they’re feeling so intimidated by threats. Now and this is just where it goes beyond the level of absurd.
They invoke precedent from the Supreme Court from the battle days in the, when the NAACP membership was being threatened with lynching. So it’s one thing to say that, you know, in the 1940s and 1950s people might get lynched for expressing their political viewpoints on race in the south and that there’s reasons to protect that. But it’s quite another thing to say that we should worry about Walmart and Exxon when they’re giving money in politics. That is not a first amendment concern.
Bill Moyers: If in fact the Supreme Court says disclosure is fine as the court said in the Citizens United decision, yes, we should know and it’s okay to know and it’s legal to know, why are Senator Mitch McConnell and others in Congress preventing disclosure from happening, from passing it, from approving it, from saying, yes, let’s disclose the source of this money?
Heather Gerken: Because the people who support Senator McConnell and the Republican party would prefer to give this money anonymously, secretly through shell corporations. An example, the insurance companies put a lot of money into the Chamber of Commerce. And it was the Chamber of Commerce that was saying things about the Obamacare, not the insurance industry.
It looked clean, right? It looked like it was just the business interests being expressed by the chamber of commerce. But it was really insurance money funding that. That’s a problem. That’s a problem because you can’t evaluate the message if you don’t know who the messenger is.
Bill Moyers: Heather Gerken, I’ve enjoyed listening to you and learning from you. And I thank you for taking this time to be with us.
Heather Gerken: Thank you so much for having me.
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