Big Money, Low Politics and the High Court… An Exchange of Views, Part I

GUESTS: Floyd Abrams and Burt Neuborne
AIR DATE: 12/11/2010

I’m Richard Heffner, your host on The Open Mind.

And today we’re going to do here what basically we haven’t done here for more or less the past half century…since The Open Mind was only 4 or 5 years old.

We’re going to change – just for this Open Mind and the next – what for so long now has been a rather sedate, one-on-one weekly broadcast conversation into instead a much more vigorous exchange of clearly contradictory points of view between two adversaries, though friends and both ardent free speech attorneys.

And I’ll just sort of egg them on.

Now, their subject … to begin with … the Supreme Court’s recent Citizens United versus Federal Elections Commission decision that seems clearly to have led to the infusion of so many more scores of millions of dollars into the mid-term Congressional elections just ended, and that promises to lead to money talking ever louder and louder in American politics in the years ahead.

Now, you may remember that I’ve already discussed Citizens United at this table … but one-on-one with each of today’s guests.

First, indeed — even before the Supreme Court of the United States decided the case — with Floyd Abrams, the brilliant constitutional attorney famed for his many successful defenses of Americans’ free speech rights under the First Amendment to our Constitution. Thereafter, Floyd was to become one of those who actually prevailed in court in Citizens United.

Then, after the Supreme Court’s fateful 5 to 4 decision, I spoke with today’s other guest, another noted free speech attorney, Burt Neuborne, Professor of Civil Liberties and Legal Director of the Brennan Center at New York University Law School.

Burt’s negative thoughts about money not only talking but having a constitutional right to free speech clearly didn’t prevail in the Supreme Court.

And I hope that Burt will permit me to begin this exchange between these two friends — and friends of mine, too –by turning first to Floyd, here in mid-November 2010, and asking whether last week’s first national electoral experience we Americans have shared since his Supreme Court victory really leaves him feeling more sanguine about America’s national political life … and the First Amendment. Floyd? Happier?

ABRAMS: Well I think we’re always freer when people don’t go to jail or organizations aren’t fined for expressing their view about who ought to be elected President.

To that extent I’m always happier when we have an opinion to that effect. In terms of the national elections, results of which don’t especially please me … I … there are two things I’d said.

First, the division in terms of money was almost absolutely equal. Each side spent or had their supporters spending in the order of $2 billion dollars. And I think it’s clear that that number won’t go up, as it always does, in the next two years with the Presidential election.

It wasn’t an unfair election, I may not like (laugh) the results, but it … but there is nothing to be said, I think, in support of the proposition that the election was corrupted, stolen … somehow harmed because … what … there may have been some more political ads on?

Indeed, I don’t accept the premise of your initial introduction to this, which is that because of the Citizens United case all this additional money went in, in to the pot.

I think the additional money went because people were energized to spend it. And people who cared and our organizations who cared, cared about who won.

And the, the Democrats happened to be spending a lot more than the Republicans in the early part of the election. Republicans spent more or pro-Republican sources spent more towards the end.

But I don’t see any downside on the, on the ground level because of Citizens United. That said, and I know you’ll accept that I mean this when I say it … even if I had seen it, I would still be in favor of the ruling. I don’t make my First Amendment judgments based upon whether I think ultimately society will be better off or worse off if this speech is allowed or that speech is allowed. I think we have to do it more generally than that.

As far as I’m concerned, allowing and not disallowing speech by corporations and unions about who to vote for or who to vote against is a good thing and entirely consistent with the First Amendment as it historically been understood.

HEFFNER: Burt?

NEUBORNE: Well, Floyd used a word that I like a lot … called “people”. People did spend a lot of money on the campaign. And that didn’t bother me too much. The spending by people was relatively equal. For every Coors there will be a George Soros. I mean there are rich Democrats, there are rich Republicans. And if they want to spend money on campaign finance, maybe I would like, like to see a little more regulation, but I don’t think that’s disastrous.

But what’s new in this election is that for the first time it wasn’t people who were spending money, it was corporations who were spending money.

Now, of course, people control the corporations, but it’s not their money. Corporations don’t assemble money the way unions do … out of dues paid by individuals who want that money to be spent for politics. That’s just a group of people gathering together to spend money.

Corporations get their money from selling cars and selling beer. And people buy the beer and buy the cars and the corporations assemble vast pools of money. Which Citizens United now authorizes them to dump into the political process. And in a, in an unforeseen result, which I don’t think Floyd foresaw and I certainly didn’t foresee it … it happened secretly because the disclosure laws broke down in this election.

And the corporate money managed to figure out an entity through which it could get into the political process without disclosing where the money comes from.

So we don’t even know how much was spent by corporations. We know that there is a group that looks like it was controlled by corporations because they were set up principally to, to, to freeze out the disclosure laws. They spent about $300 million in the campaign.

And they spent it in targeted ways, on swing seats and they won in about 53 of the 70 seats that they contested. So, I agree with Floyd that I don’t think the money swung the election dramatically.

This was a referendum on a … on government itself. And government lost. And I think the spending may have influenced several seats in several places, but this is not a stolen election.

But what this is, is … this is a preview of things to come. What we’re going to see in American politics in the years to come is an increasingly vast flow of money from corporate treasuries which, which dwarf the capacity of individuals to participate in politics. And those corporate … that corporate money is spent for one thing … to enhance their short term profits. And we’re going to see that over and over and over again in American democracy.

And Floyd and I are dear friends, and I think what … the way we disagree about this most is I see this as a disaster for democracy. I don’t see it as just more speech. I see it as one side vastly empowered with a huge treasury and the ability now to operate in the dark to effect American democracy. And it chills me.

ABRAMS: I, I think we should be clear on one thing … I, I think Burt and I probably agree on. Citizens United had nothing to do with the secrecy by which certain funds were provided.

Notwithstanding that one may have read the contrary in certain places and certainly heard it on television throughout the campaign … notwithstanding that the President and his Chief Advisor have said this. It just isn’t so.

Indeed, Citizens United said that the restrictions … or imposed by disclosure requirements in the statute were constitutional … were and are constitutional. What’s new is that certain not-for-profits which were organized under a particular section of the tax law … 501(c)(4) don’t have to disclose who gives the money.

And so that, that’s all the Karl Rove entities and that Emily’s List and that’s the American Civil Liberties Union and that’s the NRA and a lot of other organizations.

And that has been the law, not because of the First Amendment, but because Congress chose not to require disclosure. Now I, I think more disclosure is a good idea and I’m sure Burt agrees on that.

But one thing I think we can agree on at the start is, is that Citizens United didn’t cause that and, indeed, if Citizens United had any effect on disclosure it is its language and its holding by an 8 to 1 vote … only Justice Thomas dissenting from that, that disclosure requirements, in general, are constitutional.

NEUBORNE: Well, I, I agree and disagree. I agree that the holding of Citizens United is great for disclosure. No question about it. It uphold disclosure laws.

If you recall, Congress tried to pass a disclosure law that would … that would fill the loophole that was created by these organizations that Floyd mentioned and the Republicans fillabustered it to death. And so there was no disclosure for these organizations in this campaign.

And what was new and what Citizens United is responsible for, is that for the first time this was corporate money, from the corporate treasuries flowing into the campaign with no disclosure. Now I agree, good lawyers found a new path in.

ABRAMS: But it wa … wasn’t new. I mean it’s happened in the past. It’s happened in past campaigns and to a significant degree in past campaigns. One thing that did not happen is what an awful lot of critics of Citizens United suggested would happen which is that the Exxons and the, the large companies in America … so far as we can tell at all … did not pour large amounts of money into the campaign. So far as we can tell …

HEFFNER: How could you tell, Floyd? How could you tell?

ABRAMS: Well, you, you can tell by looking at the amounts of campaign contributions … say, to the, the Chamber of Commerce. You know one can’t tell each individual contribution … but, but, you know, one can make informed judgments about these things.

And the asserted fear of critics of Citizens United that large, multi-billion they were talking about … at, at the Brennan Center I heard this over and over again … statements about how much Exxon Mobil is worth and just a billion dollars could do … I mean it’s nonsense, preposterous. There was never a chance of it happening. There’s no reason to think it happened.

Burt makes a prediction about what’s happen in 2 years. We were both wrong … maybe … about what was going to happen this year.

It’s very hard to know the answers to what, what’s going to happen.

NEUBORNE: The question is … do the corporations feel that there is a significant stake in their spending the money? It’s a … it’s now entirely up to corporate leaders to decide whether or not what they can buy for their money is worth the, is worth the expenditure?

So, what we are now … we now live in a world where this election cycle they poured a great deal of money in. At least $300 million, I don’t know how much of it came from Exxon, I don’t know how much of it came from Coors. We have no idea where that money came from.

But they poured a very significant amount of money into an off-year election. When a Presidential election is at stake, the amounts … if you’re … if you’re … if you were a corporate executive and your profit line for the next three or four years will be dramatically affected by who wins the election, why would you not spend a vast amount of money, as long as you get an adequate return on your, on your expenditure?

ABRAMS: Because people won’t buy your product …

NEUBORNE: What …

ABRAMS: … if they find out. Now, if …

NEUBORNE: … well, if they find out …

ABRAMS: … if you add …

NEUBORNE: … but the disclosure laws now prevent us from finding out.

ABRAMS: The disclosure laws were adopted in good part by Liberals, as you will recall …

NEUBORNE: I do.

ABRAMS: … who wanted to protect the membership of the individuals and entities that contributed to the good entities that we all like around this table. But we can’t talk like that, you know.

NEUBORNE: Wa …I know …

ABRAMS: … we, we have to have …

NEUBORNE: We are never going …

ABRAMS: … the same rules …

NEUBORNE: But we’re never going … first of all those (c)(4) organizations, when the disclosure rules were passed, did not play a significant role in the political campaigns. They played a significant role in the political campaigns, because good lawyers figured out that that was a conduit through which vast amounts of corporate money could go in with nobody seeing it …

ABRAMS: Why do you think …

NEUBORNE: And now it’s never going to close. That window, Floyd, will never close. If, if the Democrats couldn’t get the disclosure bill through this time, when they had 59 seats and they couldn’t get a single Republican to break the fillabuster, if they couldn’t do it this time … in our lifetimes we will never see a stronger disclosure law. Never.

ABRAMS: That may be. That may be. And I hope we come back here after the next election and tell us … and tell each other again … you know we had that one figured wrong …

NEUBORNE: (Laugh)

ABRAMS: … in terms of who was going to contribute and how much. And, and what impact it would. Ask, ask yourself why is it, with all this money that you, that you say is primarily Republican …all the new Republican … why did it only even things up? Would only even things up because of the power of incumbency? That only evened things up because contributions have been flowing, even in bad times … to the Democrats from all institutions, together, more than Republicans. And it flowed now, in part, particularly at the end of the campaign because word got around that the Republicans were likely to win. And that is just a part of the political system with, with which we live, so …

NEUBORNE: But you keep … you know what you keep doing, Floyd … it’s like poker … you keep putting more and more chips into the … onto the table … on your bet. Now you saying “Well, American democracy really isn’t at risk because after all in the past we’ve spent money and this election people spent money … and so what we’re going to now have is a system in the future with a black box into which corporations could put as much money as they want to try to deal with an election. And why should anybody be concerned about that? I don’t’ know … how can you sit there and say that you’re not concerned about the future, when what we’ve got is a pipeline with no way of knowing where the money is coming from?

ABRAMS: But when you say “a black box” you’re giving no credit at all, none … to the notion that the expression of views about elections is the sort of thing that … what shall I say … historically we thought was the most protected sort of speech.

NEUBORNE: Well, I …

ABRAMS: … the single sort of speech we protect the most is speech about who to vote for. And now we’re being told “Well, not if it’s corporations” …

NEUBORNE: Well, not …

ABRAMS: And I assume you’re ready to exempt media corporations …

NEUBORNE: Yeah.

ABRAMS: … in some way or other …

NEUBORNE: Yeah, I am.

ABRAMS: … not an easy thing to …

NEUBORNE: Well, I …

ABRAMS: … to make constitutional, by the way.

NEUBORNE: Why? Have you … you looked at the First Amendment …

ABRAMS: Yes.

NEUBORNE: … it has the word “precedent” …

ABRAMS: Yes, I understand.

NEUBORNE: … it doesn’t have the word “Exxon” …

ABRAMS: Are you …

NEUBORNE: … it doesn’t have the word “Coors” …

ABRAMS: But …

NEUBORNE: … it has the word “press” …

ABRAMS: … but, Burt, the, the, the members of the court with whom you agreed, the four of them voted in favor of, of affirming an opinion which would have made this documentary … a documentary about why Hillary Clinton was unfit to be President … a crime.

At the same time as presumably Time Warner could put that same documentary on the air, you know, and, and be fully protected …

NEUBORNE: Well, we’re, we’re in agreement. We’re in agreement about one very important thing. The documentary was protected.

ABRAMS: Yeah, but, but it doesn’t help me that you’re in agreement …

NEUBORNE: Well, I …

ABRAMS: … four members of the Supreme Court …

NEUBORNE: … no, no … that was …

ABRAMS: … were not in agreement.

NEUBORNE: … we’ve had this discussion before …

ABRAMS: … and the liberal community in America is not …

NEUBORNE: … there’s a, there’s a …

ABRAMS: … in agreement.

NEUBORNE: … technical reason why they voted that way. But it … but Justice Stephens listed five or six reasons why this would have been unconstitutional if the court didn’t insist upon reaching the facial constitutionality of corporate … of corporate contributions.

Look, let me, let me take a step back because I think what … where we really disagree … the place where we get off the … what has been a lifelong partnership in protecting the First Amendment … the place where we get off is whether or not corporations are genuinely comparable to individuals as, as, as entities. I mean I, I have no doubt that many individuals say things that I disagree with. I protect them. I protect them because the First Amendment is designed to protect, I think, the human dignity inherent in each person’s decision to express themselves.

I don’t see that with a corporation. A corporation has no soul. A corporation is an artificial entity that has assembled a vast amount of money through, through economic transactions and I don’t understand why that economic … that pool of money should be treated like a sentient human being for the purposes of the First Amendment.

ABRAMS: And what I don’t understand is why you think George Soros is different from a company one hundred percent owned by George Soros.

NEUBORNE: Well …

ABRAMS: What I don’t understand is why they … the wealthy people who you are today … I’m happy to hear … permitting … or you’re, you’re signing on …

NEUBORNE: Just for today.

ABRAMS: … that they should have … (laugh) … that they should have the right to have their say and Mike Bloomberg can spend, you know, over a hundred million dollars in a campaign. Meg Whitman can spend a hundred fifty million dollars of her money … but if, but if she’d put it into a corporation … that corporations are … indeed, entities in which wealth is accumulated, but they’re not at all as different from, from the heart deep entities that, that you’re distinguishing them from.

NEUBORNE: Well, I think … I think …

ABRAMS: Most corporations are owned by one person. 85% of corporations are held by just a few people.

HEFFNER: When are you gentlemen perhaps going to get to the point where you say that corporations, individuals cannot contribute to political campaigns more than a) a certain amount or perhaps cannot contribute at all. Are you unwilling to think in those terms?

ABRAMS: Well, first of all, it is the law that corporations and unions cannot contribute to campaigns.

HEFFNER: But can get the money into the pot.

ABRAMS: But, but they can … they can spend their money and take out ads and write books and do the sort of thing we usually call freedom.

HEFFNER: The equivalent.

ABRAMS: Ah, ah … usually … right. And … but am I prepared to sign on to the notion that what, we should have less speech still? No.

NEUBORNE: No, let me, let me try …

HEFFNER: Less money, perhaps, Floyd or are you insistent … that, that money is …

ABRAMS: … so what … you can’t publish the book? You can’t buy the ad on television? In the olden days one would say you, you can’t hire the microphone?

HEFFNER: See … the money pot …

ABRAMS: … the money is needed for all of that.

HEFFNER: See, Burt, …

ABRAMS: … if you cut out the money …

HEFFNER: Burt, I need you …

ABRAMS: … you cut out the speech …

HEFFNER: … I need you because when Floyd and I talk about this (laugh) and we’ve been talking about it for decades now …

NEUBORNE: Yeah.

HEFFNER: … it always comes down to what he didn’t say about Citizens United … are you going to prevent someone from making a documentary, from speaking their mind? Are you going to criminalize it? And he has all these words that make me think, by gosh and by golly, Floyd’s right.

NEUBORNE: So why don’t we go home?

HEFFNER: Because I don’t want to think that you’re right …

ABRAMS: (Laughter)

NEUBORNE: (Laughter)

HEFFNER: Burt, you pick it up.

NEUBORNE: Let me take a crack at it. I’ve been trying to prove Floyd wrong for a lot of years and I haven’t … and I failed … there’s no reason why I shouldn’t take one more crack at it.

I think there’s a fundamental distinction … that the Supreme Court went wrong on way back in 1976 in Buckley versus Valeo which is the foundational case, that the two of us have been arguing about ever since.

In Buckley versus Valeo, the Supreme Court said “spending money is exactly the same thing as speaking.” Why? Because the money is what makes it possible to speak.

You know there are lots of things that make it possible to speak. Education being the most obvious. But nobody argues that there’s a First Amendment right to have a certain kind of an education, so you can speak.

Why is it that rich people have a First Amendment right to take their money and speak louder than anybody else in a campaign. Now the risk is this … I mean the risk is, is that they will overwhelm the, the ability of the campaign to be a fair expression of ideas.

Ahmm, no one suggests that they should be prevented from speaking … the question is, is there a point at which the vast amount that they can pour into it, stops being speech and starts being power. Starts being action.

When the, the kids burned their draft cards in, in the Vietnam War … the Supreme Court said immediately “Oh, wait a minute, there’s a difference. Burning the card is action, the message is speech …

ABRAMS: I didn’t think you liked that case.

NEUBORNE: I hated that case …

HEFFNER: (Laughter)

NEUBORNE: … I hated that case … but it seems to me astonishing that the Supreme Court forgot it when it came time to, to, to deal with campaign finance.

With campaign finance everything is speech. When poor people do it, they divide between the … between the action and the speech. Try to picket? No, someone’s going to, someone’s going to tell you … that, that’s action linked with speech. Try to burn your card, that’s action linked with speech. Try to spend corporate money, that’s pure speech.

ABRAMS: And try to spend individual money …

NEUBORNE: I don’t understand it.

ABRAMS: … that’s okay.

NEUBORNE: Same thing … no … that would be the same thing.

ABRAMS: Yeah.

NEUBORNE: … I would … there I, I don’t draw a distinction between individuals and corporations. It seems to me … at some point the numbers are such that you’re just not talking about words anymore, you’re talking about a huge powerful club …

ABRAMS: Well, here’s …

NEUBORNE: … that you’re wielding.

ABRAMS: … here’s a secret … rich people do have more power.

NEUBORNE: (Laughter)

ABRAMS: … than poor people. And if we want to deal with that, the usual First Amendment sensitive way to deal with it, is to do things that don’t relate to their speech, but to their power.

If you want to increase taxes, if you want to have a more egalitarian society by enforcing or rewriting the anti-trust laws to limit power, limit the reach of power … if you want to get rid of the corporate form … the First Amendment doesn’t protect the, the notion of having corporations … it protects speakers …

NEUBORNE: Of course, the …

ABRAMS: … the … freedom of speech.

NEUBORNE: Of course, the irony is that you will never be able to elect a legislature that way.

HEFFNER: Maybe, maybe Floyd is about to make some real suggestions here.

NEUBORNE: (Laughter) Yeah, but he’s presupposing that you can have an election where you would elect somebody that would do it.

ABRAMS: I’m not presupposing it. I, I don’t think it will happen … for a moment … what I’m saying is that, that applying the standards that you and I know so well, that have generally, at least been applied in cases which were a serious First Amendment issue … you look around and you say, “Hey, if my problem is some people really have more power … too much more power than other people, we deal with it in other ways than by saying … and the way we’re going to deal with it is … you’ve really spoken enough … I mean at this point we’ve heard from you enough. We know from looking around the world how that would have played out (and indeed, often has played out) elsewhere when you empower government to make those decisions.

And I start with the notion that the First Amendment, at it’s core, is what it’s always been understood to be, which is a protection against misuse of government power.

And so when you tell me “Well we ought to rely upon the government to pass a law which sets a line, a place at, at which speech ends and silence begins”, I’m not buying it.

HEFFNER: And I’m not the government, but I can say I’ve been told that our time is up …

NEUBORNE: (laughter)

HEFFNER: … and you fellows have agreed to stay here …

NEUBORNE: Can’t we buy some more?

HEFFNER: … stay here … can’t we buy some more … free speech.

ABRAMS: (laugher)

HEFFNER: Stay here … we’ll continue this next time. Thank you Burt Neuborne and Floyd Abrams. And thanks, too, to you in the audience. Meanwhile, as an old friend used to say, “Good night and good luck.” And do visit the Open Mind website at www.thirteen.org/openmind

N.B. Every effort has been made to ensure the accuracy of this transcript. It may not, however, be a verbatim copy of the program.