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In January 2010, the Supreme Court handed down their landmark Citizens United ruling, dramatically altering campaign finance in America. The decision allowed corporations and labor unions to spend unlimited money directly on politics and it created an explosion in so-called 501(c)(4)s, nonprofits named for where they fall in the tax code. As these organizations have become some of the biggest spenders in politics today, new questions are arising in D.C. and around the country about how — and whether — money in politics should be reined in. Four years after Citizens United: how we pay for politics and the state of campaign finance reform.
- Lawrence Lessig professor, Harvard Law School and director, Edmond J. Safra Center for Ethics at Harvard University. He is leading "The New Hampshire Rebellion" in support of campaign finance reform.
- Bradley Smith chairman and founder, Center for Competitive Politics. He is a professor at the West Virginia University College of Law.
- Matea Gold reporter covering money and politics, The Washington Post.
MS. DIANE REHMThanks for joining us. I'm Diane Rehm. On Jan. 21, 2010, the Supreme Court ruled that corporations could give unlimited amounts of money to influence politics. Four years later, so-called 501 (c)(4) s are pouring millions of dollars into supporting or opposing specific candidates and specific policies.
MS. DIANE REHMHere to discuss money and politics and the state of campaign finance reform: Lawrence Lessig of Harvard University School of Law, Matea Gold of The Washington Post, joining us by phone from Morgantown, W.Va., Brad Smith of the Center for Competitive Politics. I'm sure many of you have opinions you'd like to share. Give us a call, 800-433-8850. Send your email to firstname.lastname@example.org. Follow us on Facebook or send us a tweet. And welcome to all of you.
MR. LAWRENCE LESSIGThank you.
MS. MATEA GOLDGreat to be here.
MR. BRADLEY SMITHThanks.
REHMGood to have you with us. Brad Smith, I gather you have joined us.
SMITHYes. I'm right here.
REHMGood. Matea Gold, give us a little bit of a refresher on Citizens United, what happened, and how it's changed money in politics.
GOLDSure. So the Supreme Court's decision in Citizens United really kicked off this explosion of often undisclosed and often unlimited money being spent to influence campaigns and politics. The decision said that corporations, and by extension, unions, had a right to spend unlimited sums independently on politics, which really overturned a century of law to the contrary.
GOLDAnd a follow-up decision by a lower federal court a few months later was just as pivotal, the SpeechNow decision, which essentially created super PACs, which we are all now so familiar with, which are these political committees which can collect unlimited sums and spend them on campaigns. And, really, the impact of those court decisions was two-fold.
GOLDThere was a tangible legal impact that now we could have corporations spending direct money on politics. And there was also a little bit more of kind of a psychological impact. We saw 501 (c)(4) nonprofit corporations, which now had the right to spend on campaigns, also kind of emboldened to become active in the political space without really spending directly on campaigns but doing things like issue ads and kind of skirting to the edge of campaign activity.
GOLDSo we now have this phenomena in which super PACs, which do disclose their donors, nonprofit groups, which don't, have become increasingly influential players in politics.
REHMAnd, Brad, turning to you, talk about these 501 (c)(4) s, how much money is involved, how many of these groups there are now.
SMITHSure. 501 (c)(4) s are simply nonprofit organizations that essentially are advocacy groups. The Sierra Club is a 501 (c)(4). The Rifle Association, Planned Parenthood, and National Right to Life, these are 501 (c)(4) s. Obviously, just from listening, those handful of examples, I think listeners realize these are always groups that have been involved in advocacy. That is essentially what they do.
SMITHAnd, in fact, they've long been involved in campaign advocacy. For example, just prior to the 2000 election, the NAACP ran a number of ads that were highly critical of George Bush for not supporting hate crimes laws in Texas. And they were very powerful. So there's not so much new here, I think, when we talk about 501 (c)(4) s as people sometimes think.
SMITHThe big difference now is that now they can come out and explicitly say, vote for a candidate or vote against a candidate, as long as it is less than half of their total activity. And how big are these in the overall scheme of things? Well, they're important, to be sure. And it's good that they're important. And it's good to have more speech on political issues and candidates. But altogether, total independent spending totals about 15 percent of what is spent on political activity in the United States.
SMITHAnd the amount coming from 501 (c)(4) s is somewhere around five or 6 percent of total political spending on candidate activity. So I think they're an important development, but one that we should not get carried away with or exaggerate the sea change that has occurred.
REHMAll right. And turning to you, Lawrence Lessig, as we said, it's been four years since Citizens United. There are those that say D.C., Washington, D.C. and the rest of the country now see the Citizens United ruling in very different ways.
LESSIGYeah. I think that's right. I think people inside the Beltway have accepted it. And they're building their campaigns on the basis of it. Both Democrats and Republicans alike are finding ways to inspire super super PACs that will back up their candidates. But I think outside the Beltway in the States, there's an increasing movement of people who are just disgusted with the way in which this has changed the system.
LESSIGThere's an extraordinary number of states that have passed resolutions now, calling on Congress to propose amendments to overturn Citizens United. I think one of the most dramatic examples is in Montana, which of course is no liberal bastion. Bipartisan groups in Montana succeeded in getting 75 percent of Montana citizens to vote in favor of a ballot resolution calling on Congress to propose an amendment to overturn Citizens United, Democrats and Republicans standing together on that.
LESSIGAnd I think it's because people recognize, especially in the States, that the problem that's been around for a long time has just gone way too far, and we have to find a way to build a movement to create the pressure to change it.
REHMLawrence Lessig of Harvard University's School of Law, he is leading a new effort for campaign finance reform called "The New Hampshire Rebellion." Brad Smith is chair and founder of the Center for Competitive Politics. That's an organization advocating for looser campaign finance restrictions. He teaches at the West Virginia University School of Law. Matea Gold is Washington Post reporter covering money and politics. Brad Smith, I gather you would see it differently as far as Lawrence Lessig's view.
SMITHWell, yes, I would. I mean, I think that there's, first, not really any growing movement as Larry describes. I mean, 10 years ago, before Citizens United, we could have gotten a group of people. We could put an issue on the ballot in any state in the country asking to restrict campaign contributions and spending, and we would have gotten 70 percent majorities.
SMITHI don't see any sign that there's been a shift. Public opinion polling is very clear that, at least in the abstract, Americans hate the idea of people spending any money on politics. And, in fact, you can find surveys that show surprising amount of people argue -- literally argue that not a penny should be spent on politics in the United States, period.
SMITHNow, people who are thinking like that obviously haven't thought the issue through in great detail. And for most Americans, campaign finance is a secondary concern. It's very low on their priority list. Very few people worry about it. And they haven't really thought it through until it impacts them. During the time that I served as a commissioner at the Federal Election Commission, and as chairman of the Federal Election Commission, we would see this in that light, where people would go, and they would volunteer for campaigns.
SMITHAnd they would serve on committees doing things and suddenly find that this political activity, which they thought was a good thing and essential to Democratic self-governance, was suddenly against the law and that they were in violation of the law. So I think when -- and I think when you ask people whether you think the Sierra Club should be silenced, I think most say, well, no, the Sierra Club, of course they should speak about candidates and issues.
SMITHI think if you ask people, you know, do people have a right to talk about and criticize political candidates, you get enormous majorities. Those same 70 or 80 percent majorities, they say, of course they have a right to do that. So I don't put a lot of stock in public opinion polls here. I think we have to go back to thinking about, you know, what is our core belief about speech and politics?
REHMAll right. Matea, what have you seen?
GOLDWell, I think there is no question that Citizens United is become a shorthand among a large share of the population for just something broader, a phenomena of the influence that money has on the system, that people feel just inherently uncomfortable with. I don't -- you know, I do think it -- Brad is right that it's not something that drives people to the polls as a singular issue the way that jobs or the economy does.
GOLDBut it's definitely, I think, that that decision now has had a very visceral effect on the public, and especially the left. And it's something I hear about kind of from the left end of the spectrum and liberal activists all the time. There's no question that it motivates the Democratic base. And so in that sense, I think it is a very potent political issue.
REHMLarry, you've been talking about what you call a system of corruption. Explain what you mean.
LESSIGWell, I'm just stealing that phrase from John McCain who, 15 years ago, launched his campaign in New Hampshire, attacking the system of corruption. Six months after Granny D., who was no conservative, "Granny D." Doris Haddock...
REHMWho was on this program.
LESSIGYes, of course she was -- began her really extraordinary march at the age of 88 from Los Angeles to Washington with a sign on her chest that says Campaign Finance Reform. Those two people really were ahead of their times because -- I disagree with Brad obviously in a number of these points. But I absolutely disagree that this is not an important issue to Americans today. In 2012 -- in July of 2012, Gallup did their quad annual poll asking Americans: What are the top issues the next president should address?
LESSIGNumber two on that list -- only jobs outrate it -- was addressing the corruption in Washington. And by corruption, what people were talking about was not Rod Blagojevich or bribery. There were no scandals like that in the press in July of 2012. They were talking about the effect of money on politics.
LESSIGNow, you can frame this as a question of whether we should silence people or not. I'm not in favor of silencing people. I'm in favor of changing the way we fund elections so that the tiniest fraction of the 1 percent are not the people our members of Congress are begging for funding and therefore bending their views.
REHMIs that the case now?
LESSIGAbsolutely. Right now, there are no more than 150,000 relevant funders of congressional campaigns. That's .05 percent of America. About the number of people named Lester in America are funding our campaigns.
REHMLawrence Lessig, professor at Harvard University's School of Law, leading a new effort for campaign finance reform called "The New Hampshire Rebellion."
REHMAnd in this hour, two sides -- two very important sides of the argument as to whether Citizens United should be readdressed, perhaps even overturned. One comment from Alan in Bethesda, Md. who says, "Planned Parenthood Federation of America is a 501 (c)(3) corporation, not a 501 (c)(4)." But, Matea, I gather it does have a 501 (c)(4) arm.
GOLDPlanned Parenthood has an advocacy arm, and they do engage in campaign-related activity as many advocacy groups do. You know, I just think one important point of context to the point Brad makes about advocacy groups being engaged for a long time, that clearly has been the case. What we have seen, though, is really an explosion of new (c)(4) groups that really -- the public has no really way to know who they are and what's motivating them.
GOLDBecause nonprofit groups do not have to disclose their donors, and they go to incredible lengths to avoid disclosing their donors. We just did a big story outlining this network of nonprofit groups that is backed by Charles and David Koch and other conservative donors that goes to really extreme lengths to hide really the source of funds moving around. So you don't really have a chance to tell who's doing political spending and who the donors are. And so that has become a huge new phenomenon, and I think it makes it very difficult for the public to know really who's behind some of these ads.
REHMAnd, Brad, from your perspective, why is that anonymity so important?
SMITHWell, a couple things. First, as a preface, I would agree with what Matea has said. But, again, to put it in perspective, about 4 percent -- just a little bit more but less than 5 percent -- probably less than 4.5 percent is actually undisclosed spending. And that's only undisclosed in the sense that the groups doing the spending don't have to itemize all of their donors. We do know who the groups are. And, in fact, as the Post story shows that Matea referenced, it's often that the press does in fact ferret out and tell us who is funding these particular groups.
SMITHI do think that there's advantages to anonymous speech at times. You know, we know, of course, great examples, the ones that always turn out is, you know, the federalist papers, but, throughout American history, people have spoken anonymously. And it took a number of very, very serious hard-fought court battles in the '40s, '50s and '60s to really establish that right to privacy in your political activity. And those cases were won in the court because it was understood that disclosure of financing often could lead to the destruction of people's ability to produce ideas such as the NAACP.
REHMAll right. Matea, do you want to comment?
GOLDWell, I was just going to say, Brad, the one point I would make about that four to 5 percent figure is you're -- that's really -- you're describing kind of a tip of an iceberg that we don't know what is below the water because nonprofit groups have to only report a fraction of their spending. It really is directly engaged in elections. There's vast amounts of spending that they do that we don't know, and we don't have a way to keep track.
LESSIGDemos, a U.S. (word?) published a study at the end of the year looking at the 2012 election cycle, found that 31 percent or $315 million was dark money inside that election.
LESSIGDark money, meaning money we can't actually understand who gave it or for what purpose.
REHMAnd how much time do legislators at this point spend raising money each day? You talked, Larry, before the break about how they -- our congressional leaders go to very particular sources, very small percentage.
LESSIGYeah, this is the point -- I think actually Brad and I agree about this because I think the Citizens United issue is actually a secondary issue. The primary problem here, in my view, is the way members of Congress raise the money to get re-elected. And, you know, when I did my book, I surveyed all the studies out there. The range is anywhere from 30 to 70 percent of their time raising money to fund their campaigns.
LESSIGAnd they race off Capitol Hill into these call centers where they sit there with headsets on their heads, and they dial, for dollars, people they've never met across the United States. Now, they're not randomly dialing. They're not just picking up the phone and just calling anybody. They're calling the tiniest fraction of the 1 percent. Less than .05 percent of Americans are the relevant funders that these Congress people are calling.
LESSIGSo the thing to think about -- you don't need a PhD in psychology to recognize this -- is if you spend half your time calling this tiny, tiny fraction to raise the money you need to fund your campaigns, do you believe that that experience produces what we could think of as a sixth sense, a constant awareness about how what you do might affect your ability to raise money from them? And, again, the them is not an average selection of the American people. The them is the tiniest very special set of special interests.
GOLDI think it's also important to note though that, you know, candidates now are actually even more reliant on small donors. And, in fact, we've seen -- as we saw with President Obama's campaign in the last cycle, even more successful -- record-level success raising money in small increments. And while it's true not everyone can write the max amount of several thousand dollars to a candidate, these candidates can't raise money in huge chunks of money the way that outside groups can.
GOLDSo the candidates actually have to become even more adept at raising small donations. And I think we've seen a lot of candidates and political parties adapt to that.
LESSIGThat's true, but we have to remember, there's a difference between the president and members of Congress. I'm perfectly willing to agree that the presidency might not need to worry about it because they can raise all their money in small contributions.
LESSIGBut members of Congress do not spend their 30 to 70 percent of the time calling people who are giving them $50. They're calling people who are giving the max amount, and they're calling people who they know can channel the maximum amount from others to make it so their campaigns are successful.
REHMBrad, do you want to comment?
SMITHWell, Diane, if I can, I want to go back actually and make a point that's relevant to this. Larry made the comment a moment ago that about 31 percent of spending was undisclosed. That depends on how one decides the numbers. It's about 31 percent -- he's using the same 315 million figure I am. Thirty-one percent of independent spending is not itemized by donor. But that is about 4 percent of total political spending. And to me that's a much more relevant number if you're concerned about wanting to know who is funding campaigns.
SMITHIndependent spending -- and this is important to recognize too as we talk about Citizens United speech now -- remains a relatively small percentage of the whole. Now, when you get to the specific question, I do think we need to separate the issues. One is the question of who spends, who should be allowed to spend.
SMITHAnd a second is the issue of the candidate fund-raising mechanism we've set up. And that fund-raising mechanism that requires these guys to spend all this time on the phone is largely the result of past campaign finance reform efforts themselves that have made it very hard for candidates to fund. And it made donors expect to be actually called by candidates. And that is something that was never the case prior to the passage of the Federal Election Campaign Act and various state laws in the 1970s.
LESSIGYeah, that's true. And if we eliminated all restrictions, then they would raise their money, not from 150,000 people but maybe from 15,000 people. So we would get to a world where, you know, like the Nixon Administration did, hundreds of thousands of dollars was carried in bags of cash to fund the campaigns.
LESSIGI'm not sure that would be progress. I think progress should be, how do we change the way we fund elections so that a wider range of Americans are participating in funding the elections? And the influence of the tiniest fraction of the 1 percent doesn't overwhelm Washington and make it impossible to get anything done in Washington.
REHMLarry, tell me about "The New Hampshire Rebellion," what you are doing and what you hope to accomplish.
LESSIGRight. So inspired by Granny D. and John McCain on the 15th anniversary of both of their interventions in New Hampshire, we're organizing a march across New Hampshire by people who want to make this issue, the system of corruption, as McCain put it, the number one issue in the 2016 presidential primary. So three times between now and the presidential primary and beginning on Jan. 11, this next Saturday, we're going to march from Dixville Notch, which is where the primary begins, to Nashua.
LESSIGSo we leave on the day that my friend Aaron Swartz died. Aaron Swartz was the Internet activist who convinced me to take up the cause of corruption. And we end on the day that Granny D. was born, Jan. 24. And along the way, according to our numbers right now, hundreds of people will be crossing the state in honor and in memory of Granny D. and Aaron and others who have been fighting for this cause to try to bring more people in New Hampshire to this issue.
LESSIGBecause, though 91 percent of Americans, according to the latest poll that we did, believe that this issue, this money and politics issue is a critical issue needing important reform -- 91 percent -- 91 percent of Americans also believe that it's not an issue that will be reformed in the next couple years.
REHMWhere does that polling come from?
LESSIGI'm happy to give it to you right here. We just finished the polling -- national polling on this issue that finds overwhelming number of Americans see this as a critical issue, and indeed 95 percent. When you frame it as a question of the system of corruption as opposed to money in politics, the difference in the political spin that Matea was talking about disappears. When you talk about it as a system of corruption, literally 96 percent, according to the poll that we've just put together (unintelligible) that was just completed at the end of last year, see this as a very important issue that needs to be addressed.
REHMWho did the poll and how many people were polled?
LESSIGSo this is 11 -- this is 1,000 people according to this poll that's done by Global Strategies, which is a group that we've been working on, on this issue.
REHMAll right. Matea.
GOLDI think an important political context to note here is that there clearly -- and this issue animates no doubt many people, especially kind of on the left end of the spectrum. I would just note that the politics are incredibly difficult. Getting campaign finance reform through this Congress seems like quite a challenge, Larry. And I think it's also important to note that, as much as president Obama has decried Citizens United and...
REHMHe hasn't done very much about it.
LESSIGHe's not done anything, not anything at all.
GOLDYeah, so we have not seen him really put any kind of strong political energy behind this issue.
REHMAnd without both the leadership and the will in Congress, what do you expect to accomplish?
LESSIGOh, that's absolutely right. And I'm not sure it can be done. It's an extremely difficult problem. But the only way we do it is to convince ordinary Americans to make this a critical issue. So Brad's right that it's not the sort of issue that people race out to the polls to do anything about right now, but that's because, again, 91 percent of them believe it can't be changed. We've got to give them a reason to hope. We've got to give them a reason to believe it can change and give them a way to see that it can change. And that's why we think New Hampshire is the first step here.
REHMWhat do you think can be done to help small donors get back into the system?
LESSIGYeah, so I don't think we ought to focus on how to silence people in this debate. I think we ought to change the way funding happens inside of the political process. So there are a number of proposals out there. Some people from the right, like Congressman Petri from Wisconsin, has advanced an idea of tax credits and deductibility for small campaign contributions. This is a civic act which would make it easier for people to make small contributions.
LESSIGCongressman John Sarbanes from Maryland has proposed what was before called the Grassroots Democracy Act. I think it's going to be called the Of, By and For Act, which matches small contributions at an almost 9:1 ratio for candidates who choose to take small contributions and also has a pilot for a voucher, basically give people a voucher so that they can give their voucher to candidates who agree to fund their campaigns with small contributions.
LESSIGThere's a wide range of these ideas out there right now that are being discussed all across the country. And states like Connecticut, Maine and Arizona have adopted versions of this that would radically change the way candidates fund their elections. And that's the important objective. Make it so they're focused on what the wide range of Americans care about as they fund their campaigns, so that they're not exclusively or primary focused on what this tiny fraction of the 1 percent thinks.
REHMLawrence Lessig of Harvard University leading the campaign finance reform called "The New Hampshire Rebellion." And you're listening to "The Diane Rehm Show." I want to open the phones, 800-433-8850, first to Chester, S.C. Hi, Jack. You're on the air.
JACKGood morning. Thank you for taking my call.
JACKI read recently that the Federal Election Commission is an agency that's been hobbled by budget cuts. And so they're much less able to do the enforcement that they need to do to make sure that elections are as clean as possible. Given that the tenancy is to be very confidential about these large contributions, I wonder if the panelists will comment on the role of the FEC and enforcement in the future. Thank you.
REHMAll right. Thanks for calling. Matea.
GOLDSure. I'd be interested to hear Brad's take on the agency where he was. But I would just point out, I think that definitely the agency hasn't seen an increase in its budget. And that has led it to be financially strapped in some ways. But I think the bigger challenge for it is that there's a huge ideological divide on the FEC. And that even though there's two new members who've both kind of pledged to work in cooperation with our fellow commissioners, that divide is very persistent. And it's going to be hard to get consensus on that panel.
SMITHI agree. It's an ideological divide. It's not really a problem of budgets or anything else. An ideological divide is very real and runs through society and is seen here in this discussion here today. This challenge of free speech and the ability of people to participate in political campaigns versus the view that there should be greater equality in who's speaking, and that that would lead to a better democracy.
SMITHFor one side, the spending of large sums of money is the problem. For the other side, the spending of large sums of money to criticize candidates to upturn the status quo is the solution. And as long as you've got that huge divide there -- and I don't think you're ever going to get over it -- you'll see that the FEC will continue to be buffeted by these kinds of political wins.
REHMAll right. A caller in Naples, Fla. Hi, Steven. You're on the air.
STEVENHi, Diane. I just want to -- I'm concerned about, I guess, basically is...
REHMSteven, I can barely understand you. Are you on a speakerphone?
STEVENCan you hear me now?
REHMYes, I can. Thank you.
STEVENOK. Yeah, I was looking at the way that funding has essentially silenced information that has been available based on (unintelligible)...
REHMSteven, I'm afraid you're breaking up on us. I'm sorry. If you can call us on another line, maybe that will work. Let's go to Victor in San Antonio, Texas. You're on the air.
VICTORHi, good morning.
VICTORI think my problem is with the anonymous donations for the nonprofits, basically because if a nonprofit were to run an ad that -- and it turned out to be untrue and an attack on a candidate, how would I know how far removed they are from the other candidate if it was an anonymous donation?
LESSIGYeah, that's a huge problem. And that's one of the opportunities though that these independent groups have, that they can speak without anybody being responsible for it. So that makes it easier to actually be much more negative, much more aggressive in the way that they campaign.
REHMCan you give me a specific example?
LESSIGWell, I think the general point that he's making is pretty obvious, right. If you have completely entered a name, you know, Americans For the Future Today, and it attacks a candidate by saying extremely negative things, you might not know who to hold responsible for those statements. But still in your head -- in the back of your head you remember what's been said to you.
REHMLawrence Lessig, he's professor of law at Harvard University. Short break here and more of your calls, your emails when we come back.
REHMAnd welcome back. We'll go right back to the phones, 800-433-8850, now to Andrew, in Cleveland, Ohio. You're on the air.
ANDREWHi, Diane. Thank you for taking my call.
ANDREWLike many Americans, I think, I was really dismayed with Citizens United went through. I was always taught that our last bastion of hope with all the rancor and bipartisanship going on in Congress and in the administration was the Supreme Court. And once the Supreme Court stood by Citizens United, I sort of felt like the last bit of common sense in our government went away. And I feel now that so many Americans are unsatisfied with this, and I just think it's one more lesson that we've learned that our outrage is a day late and a dollar short.
ANDREWWe seem to have this epidemic in this country of keeping up more with the Kardashians and less with our country. We go to the movie theaters, and we watch how the secret agents come in and know more about us than our parents do before we even walk in the room. And yet we're outraged when we find out that the NSA has all this spying on Americans.
REHMAll right. Let's not move into that area. Brad, do you want to comment?
SMITHWell, I'll just say, yeah, people feel that way, and they always have. And they feel that way around the world. Larry talks about global polling in a substantial majority of countries around the world. A majority of the people, often in excess of 90 percent, define their government as corrupt. I think it's a distraction to get focused on the campaign financing system because we had this system in the '60s when we passed the Civil Rights Act and the Voting Rights Act.
SMITHWe had it in the '30s when we passed Social Security. In fact, we actually had a much more deregulated system in those days, in which more people could give and spend. And Larry's right. If you frame the issue as one of corruption you get huge numbers of people agree because most people distrust government and think it's corrupt. And there's something healthy in that, at least at some small level.
SMITHBut we really need to think about how money actually works in politics. And the fact is a deregulated system has proven, I think, to be more fluid, more open to change and more responsive to politics than one which is tightly regulated in part because the people who are going to be doing the regulating are the people who are in power already.
REHMAll right. Here's a tweet from Julie, who says, "Money equals free speech. My question is, shouldn't we know whose money it is funding politics? How do we get more transparency?" Brad?
SMITHWell, again, I want to go back to this. It's about 4 percent touch-over of money where we don't have itemized list of donors. Now, Matea mentioned, well, there's a lot of other spending that goes on that's not reported, but that's always been the case, again. This is not something new. I mean, this is the case in the 1920s (unintelligible).
REHMMatea, do you want to comment?
GOLDWell, I would just note that I think that it's hard to challenge the notion that there's been an explosion of this undisclosed spending. So, I mean, the reality is we don't know how big that pool is, and so that $315 million that you mentioned, which was reported, political expenditures to the FEC, that's a small fraction of the money that was spent in 2012.
SMITHWell, no, no, no. Diane, this is important. We need to understand. What we're talking about reported is money that was spent to advocate for or against candidate elections. Now, there's other money that's not reported that talks about issues and candidates. It may say things like Joe Blow is a terrible congressman because he opposes this bill, urge him to support the bill, right?
SMITHThat money has never been disclosed, and it has always been there. It is not a result of Citizens United, and I don't think there's any evidence that there's an explosion in that kind of spending at all. In fact, if anything, it's declining because those same groups can now come flat out and say oppose Joe Blow congressman and disclose that money.
SMITHSo it's very important that we understand that.
LESSIGWell, there's just a completely different view of reality here. Again, the DMA study demonstrates the radical increase in outside spending in the context of what Matea's rightly called the super PAC and the (c)(4) spending. But I think one important point that we can't miss here is that, even though we, the public, may not know who's spending or who's contributing what, that doesn't mean that the candidates don't know who's actually contributing to the super PACs or not. And indeed, one of the most important dynamics here -- I heard Evan Bye describe this on a panel at the end of last year.
LESSIGOne of the most important dynamics is that candidates are increasingly finding ways to dance, to inspire super PAC contributions on their side of the line so that they know that there's a super PAC out there who will defend them if they get attacked by somebody on the other side.
LESSIGNow, it doesn't make any sense for you, as somebody contributing $10 or $20 or $30 million for the candidate not to know that you're the person who did this because your whole point -- if you're spending that amount of money or at least many of these people spending that amount of money -- I wouldn't all of them. But the whole point is to make it so that you create the right kind of obligations, to oblige people in the right way so that you can have the influence that we obviously see these people have.
REHMAll right. To Ronna, in Sarasota, Fla. You're on the air. Ronna, are you there?
RONNAYes, I am.
REHMGo right ahead, please.
RONNAFirst of all, Diane, you are a national treasure. I love your program.
RONNAAnd I do believe in synchronicity because I did not know about -- I follow Prof. Lessig, and I love his video. And I wish I could get his book other than on an e-book. But I've started a program called my Granny D. Project. And I'm recruiting women over 80 in all 50 states to march to their various state capitals for campaign finance reform. And I think the big issue is I don't want my legislators to spend all their time raising money. There's got to be a better system.
REHMAll right. Thanks for your call. And by the way, Prof. Lessig's book is titled "Republic Lost." And if you want to find that book and his TED talk, you can simply Google "Lesterland." Matea, do you want to comment?
GOLDI just wanted to go back to something that Andrew in Cleveland was mentioning, his sense of being disheartened by the Citizens United decision. I don't want to bring him down further, but there's another really important Supreme Court decision coming up, which is the McCutcheon case.
GOLDAnd I think it speaks to kind of the broader implications, not for the whole political system that Citizens United has, which is the political parties are really hamstrung because they have to raise money in much smaller increments than these independent groups. And so there's a challenge now to those kind of aggregate contribution limits.
GOLDIt's way too complicated to go into detail now, but basically there's an effort basically to roll back some of the limits on the amount of money parties can collect. And so I think that's going to be kind of the next phase in this fight that we should keep an eye on.
REHMHow would that help matters, Larry Lessig?
LESSIGWell, I think it would hurt matters. Brad thinks it helps matters. But if we have a world now where about 150,000 people are the relevant funders of congressional campaigns, which -- as the title was pointing to -- is about the same number of people who are named Lester in the United States -- if you remove these aggregate limits, I think the business model of fundraising changes.
LESSIGAnd you raise money from an even smaller number of people. Maybe the number of people named Sheldon in the United States -- which is about 40,000 people -- become the relevant funders of campaigns. Remove the limits, you make it more sensible to raise large contributions from a fewer number of people. That's the dynamic we see throughout the United States at the state level and that's, I think, what we'd see at the federal level, too.
REHMBrad, talk about that Supreme Court case.
SMITHWell, in framing that, let's talk about the 150,000 number because Larry has brought that up at least four times in this conversation. That is more people than appear on every talk radio show in America as a guest. That is more people than have syndicated columns. It's more people than have jobs, like Larry and I do, that allows us to write op-eds and engage in political activism and do important amicus breach to the Supreme Court.
REHMOK. How is that relevant?
SMITHWell, it's relevant because it's a mistake to think that money is not a democratizing event. If we cut money out all these other sources of influence remain and you simply reduce the number of people who you hear from. Or as Justice Douglas said -- a great liberal defender of free speech in the Supreme Court, in voting in favor of an unregulated system, he says it is vitally important that all channels of communication be open to the people in every election, that no point of view be restrained or barred and that the people have access to the views of every group in the community.
SMITHIt's not surprising that legal academics tend to favor a campaign finance system which leads their influence high and reduces the influence of the kind of people that we, as legal academics, have chosen not to be. So I think we keep focusing on that as if there's some ideal system in which every American has equal influence, but that's not true.
SMITHAll four of us here talking on this program have far more influence than the vast majority of people in this listening audience. And that is the reality and that will not change with anything that Larry is talking about. And this is important to recognize because ultimately the best way to get a democratized system is to have as many sources of influence and as many people participating as possible.
REHMAll right. Here's an email from Sharon, in Ravenna, Ohio. "Loosen the rules for contributions, but make every donor to every group public. No secrecy. If you have an opinion and want it in the marketplace of ideas, then you have to attach your name to it." What would you think about that, Brad?
SMITHWell, again, I think there are some advantages at times in some level of anonymity. I don't think we need to know the name of every small contributor for example. And, again, I go back to…
REHMBut what about the large ones?
SMITHWell, the large contributors is a different issue. But I go back to saying that that's really an incremental problem that can be addressed. Again, it's about 4 percent…
SMITHWell, it's about 4 percent of the total. And you can simply change some of the disclosure laws a modest amount and you could have that result. So this is not something that goes to the heart of Citizens United or to the heart of the broader scheme of how we finance campaigns. Right now it is a small issue…
REHMLarry, do you agree?
SMITH…that's been blown out of proportion.
LESSIGWell, I do think that it's a more important issue to focus on the way we're funding elections. Look, we basically have two elections in America today. One is the voting election, happens twice every election cycle where people show up at a voting booth. The other is the money election. It happens continuously, 24/7 throughout now every single day between one election and the next election. And the point is, in the money election it is the tiniest number of Americans who determine the result. Now, Brad says, well, it's more people who are on talk radio shows. Yeah, that's great.
LESSIGIt would be terrible if it were just the number of people who were on talk radio shows. But it's terrible enough that it's 150,000 people, as opposed to the 150 million people who are the relevant participants in a democracy. We ought to be pushing the funder influence broadly, just like over the history of America we've extended the voting influence, right? At the beginning of America, the only people who could vote were white male property owners.
LESSIGAnd the history of the franchise from the beginning of America to today has been how to extend that to non-property owners, to blacks and whites, to blacks, whites, men and women, to people regardless of their income, the widest range of people so that they participate in the democracy. That's the ideal of democracy. And we need to do the same thing in the context of the money elections (unintelligible).
GOLDI would just say that I think disclosure is actually one of the predominant fights going on right now in the campaign finance landscape. You only have to look at the intense reaction to the proposed new regulations the IRS has put out to regulate non-profit groups, which would curtail some of their activities. And in the piece that I did with the Center for Responsible Politics, laying out this network of non-profit groups that are backed by conservative donors, including the Kochs, we really outlined these incredibly sophisticated legal maneuvers that were put in place to protect the anonymity of donors.
GOLDAnd groups are not taking those measures out of some kind of casual impulse. This is a very concerted effort and people like the Kochs argue they have been targeted for retribution, they've received death threats, that donors have a right to anonymous speech.
REHMMatea Gold of The Washington Post, and you're listening to "The Diane Rehm Show." Larry, you start walking on Saturday. It's going to be mighty cold out there.
LESSIGIt's going to be cold, but there are a lot of people. So we're going to huddle together and stay warm. But Brad's mentioned that we're both law professors. I am really eager to figure out how to talk about this issue in a way that people understand it. We're not just law professors.
LESSIGBecause I think what we see in New Hampshire in particular, is a public that is really eager to find a way to address and to fight this thing that McCain called the system of corruption. And I think that if we can give them a reason to believe something can be done, if we give them a reason to believe that if they act together they can actually force the issue onto the national stage, then there's a chance -- not a big chance -- but I think there's a chance we can actually do something with this.
REHMDo you really think you can ignite a movement across the country?
LESSIGYou know, Diane, whether I think I can or not, in my view, doesn't really matter. I do think this is the most important issue to fight if we're going to be able to address any of the other important issues that we care about. People on the left care about climate change. People on the right care about a tax system gone nuts. Regardless of your issue, we will not be able to address that issue sensibly unless we change the way we fund elections. So I am first to agree this is an impossibly difficult task.
LESSIGIt's actually easier to walk 185 miles in New Hampshire in January than it is to win on this issue. But I do believe we have to win on this issue, and we have to find a way to convince people to make this…
REHMI know you made a TED talk on this very issue. What was the reaction?
LESSIGI was astonished. So if you Google "Lesterland" -- it's the metaphor that just as many people are named Lester in the United States as are the relevant funders of elections -- you'll see the TED talk. There's about 1.5 million people who have viewed that talk in the time since, I guess, it came up in April when it was posted on the site. And I think that -- you know, what's captured people's attention and imagination about this is just recognizing what I was talking about before, is these two elections.
LESSIGThe idea that we have two elections now, we have a money primary, and then we have a general election, and the idea that the tiniest fraction of the 1 percent are controlling the money election, the money primary, I think, begins to get people really angry, and not just people on the left.
LESSIGWhen you recognize that this is a corruption of the system that the framers of our Constitution gave us -- James Madison said we would have a government, a Congress that would be "dependent upon the people alone" and recognize we now have a system which is not just dependent upon the people but also dependent upon this tiny fraction of the 1 percent, that's a corruption of the design the framers cared about. And again, the polling that frames it and gets people to think about it like this finds just as many people on the right and on the left who believe this is a problem that has to be addressed.
REHMLawrence Lessig, he's professor of law, and he is leading a new effort for campaign finance reform called "The New Hampshire Rebellion." Matea Gold is a Washington Post reporter covering money in politics. Brad Smith is professor of law at the West Virginia University's School of Law, chairman and founder of the Center for Competitive Politics. That's an organization advocating for looser campaign finance restrictions. Thank you all.
GOLDGreat to be here. Thank you.
REHMGood to be with you. And thanks for listening, all. I'm Diane Rehm.
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