Floyd Abrams

Big Money, Big Politics and the High Court

VTR Date: September 26, 2003

Guest: Abrams, Floyd


The Open Mind
Host: Richard D. Heffner
Guest: Floyd Abrams, Esq.
Title: Big Money, Big Politics and the High Court
VTR: 9/26/03

I’m Richard Heffner, your host on The Open Mind. And just as when a year and a half ago at this table we stipulated what wise men have always known, that money talks, I’ll ask my guest now as well as I did then whether it really must also enjoy free speech.

Known far and wide for his lifelong devotion to free speech First Amendment causes, I believe that’s effectively what Floyd Abrams argued here and as brilliantly as always before the Supreme Court of the United States in extraordinary session a couple of weeks ago, as the High Court weighed the Constitutionality of the McCain/Feingold Campaign Reform Act.

In a quite compelling editorial the day before, however, I put it that way since I disagree so much with my guest, I thought The New York Times had put it best in describing the political finance reform case as one that “will very likely determine whether we as a nation have the ability to cleanse our democracy of the poison of huge, special interest campaign contributions.” And I want to ask Floyd Abrams what his response is to that charge.

ABRAMS: Good morning.

HEFFNER: [Laughter] That’s fair enough.

ABRAMS: Ah, I think there is a problem that The Times correctly, if very strongly, identifies. But I don’t think that the solution to huge donations is to cut off all donations to parties by corporations and unions. And I certainly don’t think that the solution to the risks and sometimes the reality of, of enormous amounts being given by particular givers, particularly corporate givers, is to limit in a very direct way, what the corporations and unions, including corporations like the ACLU and the NAACP, which are in corporate form, can say on their own behalf with their own money.

So I have very significant First Amendment problems, which I think are very real, with the statute. And I think one of the most interesting conflicts in assessing the constitutionality of the statute is not just the tension between principles of equality and free speech, which is one way to think of what this is all about. But even what the, what the Times refers to as democracy.

Their view, shared by a lot of very sound people, including a number on the Supreme Court that they … that the tension between one notion of democracy and another of liberty … which I think is central to the resolution of the case. I mean to put it in affirmative terms; I don’t think that we should try to accomplish democracy by limiting free speech. And I think once we start to go down that road we imperil democracy as well as free speech.

HEFFNER: But, Floyd, that has been a traditional conflict. Liberty and equality, let’s put it that way.

ABRAMS: Right.

HEFFNER: And that’s what we have here. Huge amounts of money; small amounts of money. And freedom. And I understand what, what, what you’ve always said about limiting anyone’s speech. But in this conflict, what is your resolution? How do you resolve … and throughout our history we’ve been, not plagued … given the opportunity to make work together liberty and equality.

ABRAMS: Well, I’ll enter it negatively at first. I don’t think that we should try to vindicate equality by limiting what can be said. And now I’ll do it affirmatively. I think there are things that can be done consistent with the Constitution in the campaign finance area. There was a Bill, for example, which was proposed called the Hagel Amendment, named after the Republican Senator from Nebraska, which basically would have limited contributions by corporations and unions to some fixed amount. Some amount, I think, $60,000 or something in that ball park.

Something to deal with the problem of what you refer to and the Times refers to as “huge” gifts, “huge” donations by corporations. But which would still not have cut off contributions in their entirety, by such entities. See, at the same time, I want to be clear, this is a complex area of law …the court has generally distinguished between limits on contributions, gifts to candidates, for example, and spending money yourself. Mayor Bloomberg can spend anything he wants on himself because it’s his own money. That’s what the Supreme Court said twenty five years ago and that’s the law today. And the theory of that is that you can’t corrupt yourself and therefore there’s no reason to limit your spending on yourself.

Now what that doesn’t address is the equality principle. That you are citing, too, and that many proponents of the legislation cite, too. What the Supreme Court said in the very famous, much criticized, very famous case of Buckley versus Vallejo in the late 1970’s was that it was alien to this country to limit the speech of some people or entities and the like, to make more important the speech of others. Or to augment the import of the speech of others.

HEFFNER: Do you think that will stand?

ABRAMS: I hope so. I think that will stand. I think the … and it’s very hard to predict what the court will do, but I think that they may well stand on the sort of distinction that I, I referred to a moment ago … which is to say, broad government powers to limit contributions, certainly to candidates … now what this case does is to shift it … not candidates, but parties … can you bar a corporation from giving a penny to the Democratic National Committee? Or the Republican National Committee? That’s what Title One of this law … this, this law about “soft” money is about … can you have a law which says “no contributions at all” to the political parties. And because the political parties had been viewed as different from the candidates themselves, unless there is a sort of a direct coordination between them, that’s why there’s a serious Constitutional debate on that issue.

Now that’s the issue I was not involved in personally, in this case. What I was involved in was the attempted limitations on advertising, in which what the statute did was to say, essentially, “no union or corporation”, and again corporation is all these public interest funds as well, “none of them, may put an ad on television, radio, cable, satellite within 60 days of an election that mentions the name of a candidate running for election.” It doesn’t matter what the ad says, so long as it mentions the name.

And so in New York, for example, you could not, within the last 60 days of an election have the ACLU put an ad on television criticizing President Bush for his civil liberties positions, or the National Rifle Association praising him for his positions about gun control. That would not be allowed. And all that would be allowed in that area is the use of PACs … political action committees. And that’s why so much of the argument in the Supreme Court that I was involved in was on the issue of “what is a PAC?” How different is it … how much of a big deal is it for Congress to say to the ACLU “well you can’t spend your own money, you can’t spend the money you raised form your contributors, go form a PAC. And that you can spend.” And that’s, that was very central to the argument, even though it sounds a lot more technical than a broad issue of “what does the First Amendment have to teach us?”

HEFFNER: And I, as I listened and watched C-SPAN’s repeat of the argument with your picture and that of the Supreme Court Justices and the other advocates … fascinating …

ABRAMS: It was.

HEFFNER: … process. I was puzzled about the … this emphasis on the PACs.

ABRAMS: Yeah. Yeah.

HEFFNER: What difference did it make?

ABRAMS: The difference it makes is this … again, what the statute effectively says is “no speaking which mentions the candidates name …


ABRAMS: … on television … right … within the last 60 days. Except through PACs. Right. Now if a PAC was just a way of transferring money from one pocket to another, than it would be ridiculous for Congress to do this because it wouldn’t accomplish anything. It would accomplish something …


ABRAMS: Less speech. That’s what it would accomplish, because there would be much less money available for the speech. And that was the point of it, the Congress didn’t hide about that. I mean how does it work? As I said in the argument, the National Rifle Association has four million members, they can ask those members to contribute to a PAC … a political action committee. And under this law, spend the money that they give on these ads within the last 60 days. But there are 80 million gun owners in America. And the ads that the NRA puts on, are really directed at all of those people … until this law … they were allowed to say, to the 80 million, “please give us money and we’ll send out our pro-gun message.” The ACLU, which is an organization which in its charter says, “we’re not allowed to do political things”, and doesn’t do, it certainly doesn’t think it does “political things”, is allowed, or was allowed under the old law to ask for money and then put on ads, as they’re doing now, already, a year before the election … criticizing President Bush and more important urging members of Congress, named members of Congress not to vote for a “new Patriot” act, so called. So to say to these entities “you have to use a PAC”, which means you have to collect only from your members, not from the country-at-large, and collect, again … I mean, first dues, and then a PAC, is to significantly limit the amount of money that will be available for ads. And, and I, I don’t have any reason to doubt that that’s precisely what Congress wanted to do. Because if it hadn’t, it wouldn’t be accomplishing anything.

HEFFNER: Effectively. I’m not now talking about what Congress’s motive was … effectively will that stop or prevent or limit either the ACLU or the National Rifle Association from doing what it wants?

ABRAMS: Sure it will.

HEFFNER: It may make it more difficult. There may be less.

ABRAMS: Well, well that’s … I mean if there’s less … there’s less. What it wants is to have as much impact as it can.

HEFFNER: And what you’re saying … there should be no …

ABRAMS: Oh, what I’m saying is that it’s not a little thing for the government to come in and say to these organizations, “that’s enough speech, thank you. That’s enough.” Because it’s near an election and my view is, if anything, because it’s near an election, we should have more speech. Not less speech.

HEFFNER: Any problem with that, Floyd? In terms of your feeling about where we are as a nation. I understand that that’s your position as a First Amendment attorney.

ABRAMS: That’s my position. I mean … I am what I am. This case, unlike others in which I’ve talked to you about on this program … this case was entirely one of conviction. This was not a client coming to me and saying “please represent us.” I mean this was basically a pro bono case, apart from receiving some money from the National Association of Broadcasters, which was another client. But that by far the, the totality of the work here, in almost all respects, was, was not only done for no money, but, but done out of a sense that the First Amendment was really imperiled by this statute.

HEFFNER: Well we have, when we’ve discussed other issues … violence and children …


HEFFNER: …the media, etc. talked about a “clear and present danger” … you … when I read this, these words from The Times, you didn’t disavow them really. You understand that there is some …

ABRAMS: I understand that case … and I wouldn’t deny for a minute that there is a serious policy case to be made for significant changes in the current law. But I can’t help but view these things through the prism of what I think I know.

And that is … I mean … First Amendment law, but First Amendment theory, free speech theory … I mean the … I just cannot accept the notion that in a free society, indeed a free democratic society, we can accomplish any ends by saying to the ACLU … you cannot mention the name of the President of the United States in an ad on television within 60 days of, of his re-election effort no matter what you’re saying and no matter how non-political it is, and if you want to say it, “alright, we’ll do you a favor … we let you use a PAC … we’ll let you collect money and tell people ‘this is for political purposes’, even when it isn’t … even when it isn’t … the ACLU doesn’t do it for political purposes.

The AFofL was one of the entities that, that brought this lawsuit. They have different sorts of ads at different times. The have a PAC and their PAC does do ads which are directed at electing the President and members of Congress. And I wouldn’t deny, indeed, that some of their ads not paid for by PACs have electoral impact.

But they run ads throughout the year directed at members of Congress, urging them to vote to raise the minimum way, say. They run them in states where people are running for re-election, they run them in states where people are not running for re-election. They run them close to elections and farther from elections.

And the idea of saying to the AFofL …”you’ve either got to go back to your members, who don’t have a lot of money … and, and ask them for more money to be used in the AFofL PAC, or to shut up at any time, any time near an election, even mentioning the name of a member of Congress, seems to me …

HEFFNER: Suppose …

ABRAMS: … so self-evidently troubling … I, I … I mean one of, one of the things that’s … just as the New York Times Editorial page has, has come on very strong, indeed, and just as a lot of my Liberal friends … mostly Liberal friends … have, have really become apoplectic sometimes about this case. This issue has become, for a lot of people … sort of secular religion. And yet I don’t understand why they don’t understand that saying, “you can’t say those things” intrudes upon the deepest, most significant free speech principles in our country.

HEFFNER: Suppose one were to say “so stipulated”. Then let’s move back to … I was fascinated that I actually heard you say, “hey, yes there may well be means of dealing with this larger question …


HEFFNER: … of equality …

ABRAMS: I think …

HEFFNER: … and freedom.

ABRAMS: Yeah. I, I mean … I think that there is a way of dealing with the prime problem cited by reformers in this area. And the prime problem they cite is the enormous amounts of contributions made, particularly by corporations, sometimes to both side. Which makes it, if anything, all the more suspicious. “Why are they giving money to the Democrats and the Republicans? Why are they giving money to members of Congress on certain committees?”. Well, the answer to that, I think, is to cut back the amount they can give.

HEFFNER: All right … you had said that.

ABRAMS: I think they can do that.

HEFFNER: You had said that before. You would not oppose, on free speech … a money is speech basis …

ABRAMS: I would not … I would not oppose limitations on contributions by, say, corporations to … certainly to candidates, but even beyond candidates. I, I would oppose a flat ban, which is what Congress has done here.


ABRAMS: Right. But, but do I think that they can constitutionally limit in this area? Yes, I do. Do I think it’s a good idea to have some Constitutional limits? Yes, I do. It seems to me the very best case for limitations in this area comes in situations in which, let’s say a telecommunications company gives millions of dollars in contributions to, let’s say, the Republican Senatorial Committee. And then to the Democrats, as well. And, you know, my reaction to that is I think, I think it is appropriate and Constitutional to deal with that by limiting the amount that they can give.

HEFFNER: Individuals as well as corporations?

ABRAMS: Individuals, of course, are only allowed to give a certain amount …


ABRAMS: … of money in, in contributions. You see … I, I have always thought since the Buckley case came down 25 years ago that the distinction that the Supreme Court made there, which is on one level tenuous …the difference between contributing money and spending it yourself. On one level that’s tenuous. But I think at the end of the day it works. I think there is more of a risk of corruption or, or favors owed or something, if you put money in someone’s pocket than if you choose to put an ad on yourself … even if it’s favorable to that person’s side or cause of whatever. As I say, that’s why it’s tenuous because you can see how close it can get.

My own involvement in this case came, in truth, exclusively because of my concern about the, the very great limitations on spending union, corporate, ACLU money on causes … on issues and, I’m talking about candidates. I mean I think that sort of “more” speech is a good thing from the … certainly First Amendment perspective. Now there’s one other thing I would add and that is that in trying to deal with the tension between claims of equality and claims of freedom or liberty, it is certainly consistent with the Libertarian side of this to have some level of public funding. As we do in New York City, for example, that doesn’t implicate … that doesn’t harm in anyway … indeed, I think it helps, but it doesn’t harm Libertarian interests at all if a society decides that people who are running, who have more than blank percent of support will get blank amount, you know, from the public weal.

Now, that’s not very realistic right now to, you know, to advocate as a solution. But I think it is a solution. I think for example, I mean here in New York City when Mark Green ran against Mayor Bloomberg, Green got about $17 million dollars in public funding. Bloomberg spent $75 million. Well, I think the $75 million should be unlimited. And I think $16 million is a lot of money.

HEFFNER: Then you would not be in favor of exclusive public funding?

ABRAMS: No. I, I don’t believe it is Constitutional or even otherwise appropriate to say you can’t spend your own money when you run for office. Because one of the results of that is that in a country where we have a 98% re-election rate of incumbents already in Congress … 98% … you move up to 100%.

HEFFNER: Floyd, we only have a minute or so left … have you found in these last months of preparation for and then arguing before the Supreme Court that you have in any way changed … I don’t mean sea changes … modified your thinking about this whole matter.

ABRAMS: I’m afraid that the modification in my views has been a little more on who are my friends and who are my enemies …

HEFFNER: [Laughter]

ABRAMS: … from a First Amendment perspective. It’s a little bit strange for me to get up in front of the Supreme Court directing my … I don’t want to say “love” … but directing all my affection towards the more Conservative members of the Court and having the more Liberal members throw verbal eggs at me. That’s, that’s unusual for me since certainly historically the cases I’ve been involved in in the court, I’ve had significantly more liberal support in the free speech area.

And one of the things that changing is that Conservatives are defending the First Amendment more and Liberals, less, as the years go on.

HEFFNER: We’re going to have to discuss that. But now, of course, the light indicates that our time is over …

ABRAMS: [Laughter]

HEFFNER: … and Floyd Abrams, thank you so much for joining me again.

ABRAMS: Thank you.

HEFFNER: And thanks, too, to you in the audience. I hope you join us again next time, and if you would like a transcript of today’s program, please send $4.00 in check or money order to The Open Mind, P. O. Box 7977, FDR Station, New York, New York 10150.

Meanwhile, as an old friend used to say, “Good night and good luck.”

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.