Money Talks … but Must it Enjoy Free Speech, Part I

THE OPEN MIND
Host: Richard D. Heffner
Guest: Floyd Abrams, Esq.
Title: Money Talks … But Must It Enjoy Free Speech?
Part I
VTR: 4/26/02

I’m Richard Heffner, your host on The Open Mind. And my guest today is a leading Constitutional lawyer who has appeared on this program so many times, I really feel he shares it with me.

Floyd Abrams is a partner in the prestigious law firm of Cahill, Gordon and Reindel. He’s known far and wide for his devotion to free speech, First Amendment causes.

Well, the last time Mr. Abrams was here it was for a program titled, “Loosening Lawyers Lips” which, incidentally I began by going back a half dozen years and quoting from an earlier program we had done together first on his New York Times Sunday magazine article on “Why Lawyers Lie”. Not, “do they lie”, but why they lie.

Well, I introduced my friend then as internationally known and admired for the cases he tries and the appeals he argues for clients high and low. But right now I know some people who aren’t that admiring. Why? Because at the moment Mr. Abrams has joined Kenneth Starr of Bill Clinton/Monica Lewinsky impeachment fame in taking the recent, finally passed McCain/Finegold campaign finance bill to court. The Supreme Court of the United States in the hope that it will be overturned there as a violation of the First Amendment.

Money talks, is the thought. And it must enjoy free speech. I don’t, of course know, precisely who Ken Starr’s and Floyd Abrams’ clients are, but one reads about the National Rifle Association, which for so long has made the gun lobbies political contributions pay off so well legislatively, and arch-Conservative Republican Senator Mitch McConnell who so ferociously and for so long lead the battle against McCain/Finegold in the Senate, even threatening to filibuster it to death.

Still, when the New York Times Sunday magazine recently noted that he has joined forces with some famous Right Wingers and asked whether he is therefore taken a lot of heat, my guest said, “Some … from people I don’t know, but who think, or thought well of me. A letter complained that I was allowing myself to be used by the hard Right. My view”, my guest continued, “is that the proper way to view this is not whether I’m being used, but whether I am correct.”

Of course, I would begin today by asking my friend, Floyd Abrams, not whether he’s being used … I know perfectly well he’s too darn smart for that. But whether he’s simply as skillfully as he can representing still another client, clever enough to retain his legal services, representing that client just as single mindedly and as purposefully in court, and perhaps out of court, too, as he has told us at this very table, lawyers always should represent their clients, if America’s adversarial legal system is to survive and thrive. Would that be a fair response, Floyd?

ABRAMS: It wouldn’t be … it’s fair, but it’s not complete. This is primarily a pro bono matter I’m doing. I mean it happens I’m also representing the National Association of Broadcasters, and I will be paid something by them. But this is at its core, and in terms of the great bulk of the work, that I’m doing pro bono, and it is a matter of belief that’s not because I was asked if I would do it … I was asked. But because I think it’s very important that the people … that my political friends think should lose …

HEFFNER: Not just your political friends. I am not your political friend …

ABRAMS: No.

HEFFNER: … but I believe … and hope, too.

ABRAMS: Oh, I know. I know. But most of the people that I know are on the other side, and some of them are very troubled at my new associations. In a way, interestingly, that they would not be if I had represented, on the same basis, the virtual pornographer who won in the Supreme Court just a few weeks ago. Or the Nazis. My friends wouldn’t be coming to me then. And saying, “how can you associate with those people?” But because it’s … what … the Right Wing? Of our country, that it is presumptively a sell-out, or a betrayal. I don’t think so. And I think it’s a very sad thing, it’s not a new thought … but it is a sad reality, as I view it … that just about everybody cares most about the First Amendment when the views that that person wants expressed are in peril. Or the country, as they view it, is being changed in a way that they think unattractive. So the Republicans vote against the National …uhh, funding for the arts. The Republicans vote for a Constitutional Amendment to ban flag burning. Not the Senator I’m representing, actually, on that, because he voted against it. But just about all Republicans vote against it. And all Democrats voted for legislation, campaign finance, that I think on the face of it ought to lead good First Amendment caring people to say, “Are you, are you kidding? You’re going to have a law saying that at times close to an election speech has to be restricted the most?” You’re going to have a law saying that the National Rifle Association, as you say, and the American Civil Liberties Union … which is joined on our side of the case. And the AFofL, which is joined on our side of the case … really can’t do ads on television, saying, as the AFofL did in the ‘96 campaign, Senator So-in-so voted in favor of an increase in the minimum wage. That’s now going to be a crime?

HEFFNER: Floyd, let …

ABRAMS: It seems to me that that we … people have lost their First Amendment bearings. What a lot of people have done, in my view, is to choose, unknowingly, but to choose campaign finance reform, which they favor over the most standard, orthodox, obvious First Amendment sort-of principles. That speech matters, that it matters especially around elections; that we especially protect it, when it’s about political matters; and that that escapes people and that it becomes a matter of condemnation, and contempt on the part of a lot of institutions, including some great newspapers, that I care about a lot. It seems to me to miss the point.

HEFFNER: Do you think it would be possible to have campaign finance reform without endangering free speech as you see this endangers free speech.

ABRAMS: Yes. Well, I think that there are certain things that you could do. The question is, is it enough? You can certainly have much broader disclosure requirements; more immediate; more revealing.

HEFFNER: Where did the money come from for this enterprise?

ABRAMS: Right, right, right. With some exceptions. I mean I still agree with my friends in the ACLU that they shouldn’t have to reveal their membership lists, or the people in the Libertarian Party, who joined our case, which is basically a membership organization, where people contribute money to the party, and the party buys ads, and whatever. You know, there, there are some situations where I would be very sympathetic to the notion of non-disclosure. But the rule ought to be a disclosure. That’s one thing you can do. Another thing you can do is to toughen up your criminal laws. That, too, wouldn’t solve everything, but if what we’re ultimately most afraid of is people really buying influence, we could have stricter sentences. We could have more prosecutions if people do bad things.

HEFFNER: Is the buying, so-called, so obvious?

ABRAMS: No.

HEFFNER: So much on the surface?

ABRAMS: No, and … I mean as a matter of fact, I don’t really think it happens.

HEFFNER: Well, you don’t think …

ABRAMS: But, but … but, there is … a lot of people think it does. And I think, I think it could assuage their concerns, if we had a more serious, vigorous focused and even draconian by the law with respect to the punishment of political figures if one were to conclude that they really took money for, for votes. So that, that’s another thing that you could do. And a third thing that you could do, is to do some of the things that Congress did, but with a little more delicacy.

HEFFNER: For instance?

ABRAMS: A little more … well, instead of having a total ban on all soft money, which means that unions will not be able to … unions, which to be fair now … are barred and have been for a long time from making any contributions or expenditures … but even when they speak about public issues, when they are allowed, as everyone’s allowed, to speak out anytime, as much as they want … you know, one could, one could have, perhaps, in some area, monetary limits … but we’ve gone so far now, down the road towards a, a total ban on soft money, meaning what was unregulated funds, even if they’re used for perfectly legitimate purposes. For example … party building, get out the vote drives. Or issue ads. Now there, there’s a disagreement in this case about what an “issue ad” is. But putting aside what the definition is or should be, nobody would doubt that everybody has the right to take out ads, if you’ve got money … advocating changes in policy, even if we can limit how much people affectively speak out about who to vote for. And, you know, maybe you could play around the edges with numbers and the like. But what I see here is … in part out of frustration maybe … mostly in good faith but nonetheless with total willingness to ignore the very significant First Amendment interests in allowing people and organizations and in groups to have their say, about public matters at the time it matters most … close to an election.

HEFFNER: Floyd, do you think there was a real problem that the Congress attempted to address?

ABRAMS: I think at least there was a real perception problem in certain areas. And in some cases, a real problem. But so far as I’m concerned, most of the real problem could be dealt with by having monetary limits rather than flat bans. And in some areas, it seems to me, we simply have to make some hard choices. For example, I mentioned “issue advertisements”. Put aside the First Amendment, it’s a serious policy issue … what shall we do about … what would we like to do … what should we want to do … with regard to advertisements that people put on close to campaigns which do deal with issues, but also, obviously, are pointed in the direction, sometimes very strongly so, of pushing one candidate, rather than another. What shall we do about an ad of the National Rifle Association, say, which, which condemns President Clinton’s positions about gun control not too long before an election?

Now, my reaction to that … maybe is through the prism of my First Amendment work … but my reaction, which is the same as the US Supreme Courts, so far at least, is to say if it’s at all close, at all close, we’ll lean, we’ll bend in the direction of the First Amendment rights. And we’ll say to the NRA, just as we’ll say to the ACLU, “you can go ahead. And Congress can’t limit you, even if it’s close to an election. And if you mention the name of a candidate for President.” Now what this new law does is to say, within 60 days of an election if you mention the name of, of a candidate for Federal office and the money is paid for by soft money, it’s a criminal offense. And to me that is so antithetical to First Amendment principles. One of which, to me it would be, that whether it’s a union or a corporation or a political party, and certainly if it’s a group like the ACLU or the NRA and it’s important that they’re together in this lawsuit, that when, when you go out talking about public issues, especially when you’re close to an election; the government shouldn’t be able to come in and tell you to shut up.

HEFFNER: Floyd, with all due respect for those who disagree with you … how do you explain the fact that there are those who say, “Abrams has such strange bedfellows, etc., etc.”. How do you explain the phenomenon, as you describe it yourself, that those who traditionally …

ABRAMS: Yeah.

HEFFNER: … are First Amendment oriented, in this instance, feel that you’re wrong.

ABRAMS: I, I think it’s a few things. And one is that it’s impossible to disassociate this totally from the political circumstances out of which it arrives. Well, the Republicans have tended to be in favor of having more “rights” to spend money. Ahh …

HEFFNER: if they have the money.

ABRAMS: … maybe because they think they have it. Democrats have been more on the other side. Now, I mean I’ve been learning about campaign finance as I’ve been doing this case, and it’s interesting for me to learn, you know, that the Republicans do very well the more you increase the, the amount of what’s called “hard” money people can contribute as the statute does from $1,000 to $2,000. The Democrats lose badly that people can’t make large individual contributions. The Republicans lose if corporations can’t.

But I ask myself, “what about these guys in Hollywood who were the subject of much publicity recently … a $7 million contribution by one person to the Democratic National Committee to build a headquarters. Page One, New York Times; page one, Washington Post. I asked myself, “what, am I tone deaf to this? I don’t see the problem. I think … I think he’s doing a good thing. I think he is planning a role in the political process; helping the party that he thinks best represents him and, in his way, of being part of a First Amendment governed process of speech.

And so when people tell me what … that’s soft money; maybe he’ll get favors. Maybe, maybe. I mean it’s not ridiculous to worry about it, but it seems to me that if you know who it is and you know the amount of money the person’s given, that, that people would be careful about doing things which could easily be seen as a favor. And I don’t know where the parties are going to get the money to do a lot of things which most people would think are “good things” or “okay things” to do .Political conventions … where’s that money going to come from now. Most of the money for political conventions is “soft” money, and as we go down the road of saying, “you’re not allowed to give soft money, really, just about at all, almost totally at all anymore. Where we’re moving on that front; where we’re moving is not that the people or organizations or corporations won’t be able to give money to those organizations, not to the political parties, but they’ll be able to give them to, to use the pejorative term, “special interest” groups, or to use a nicer terms, groups that care about certain issues. And they’ll be able to give it to the National Rifle Association, they’ll be able to give it to other groups that, that care about “right to life”, or choice for women. And those groups may thrive in their way. But, they won’t be able to spend it themselves. And I think that’s a, that’s a skewed way to approach this issue.

HEFFNER: Let me ask you this question. What would you … how would you respond to the arguments you’ve just offered. What is the most telling response to what you’ve said.

ABRAMS: Well, the most … the strongest argument on the other side, is the argument that basically says “we’re awash in money for elections.” And people that have more money … entities that have more money obviously get something from giving it. They wouldn’t give it if they didn’t think they would get … and, and they therefore imperil the system in terms of public trust and risk a level of corruption or something close to corruption by their power. Now part of that to me … a part of that, at least, is another way of saying, in President Kennedy’s language, that life is unfair, some entities have more money than others. If that’s what you really cared about, if you cared about the unfairness in that sense, you might want to have a genuinely much more progressive tax system which, which addresses income disparity in the country, instead of going after speech. All of this seems to me a shortcut when you go after speech. We could have public financing. Now Congress doesn’t want it. I’m not saying it’s likely at all. But if you want, you want to talk about how to address this in a way that does not threaten First Amendment interests, you could go the ACLU route. When they joined our lawsuit, they said they were in favor of public financing of elections. Not limiting what people can spend, but assuring that there’s a reasonable amount of money available to everybody who’s running … a floor.

HEFFNER: Most frequently a floor goes along with a ceiling. Most frequently …

ABRAMS: Sometimes.

HEFFNER: Well …

ABRAMS: It doesn’t have to, though.

HEFFNER: Doesn’t have to.

ABRAMS: It doesn’t have to.

HEFFNER: But if it did … you would take the same position?

ABRAMS: Yeah, yeah. I’m blurring in a way because the statute is a lot of different things. I’m blurring a few different things the statute does. One is its limitation on these issue ads if they’re close to an election and mention the candidate. Another is the total ban on “soft money”. A third is a total ban on any minor giving any money. I mean, would you believe it? Maybe it’s not the biggest deal, but it says something about the state of mind of the Congress that passed this legislation that we now have a situation where no one 17 or younger is allowed to give a dollar.

HEFFNER: What do you mean by “state of mind?” What do you think that state of mind was?

ABRAMS: What Congress at, at its best was afraid of, is parents giving for children.

HEFFNER: MmmmHmmm.

ABRAMS: Right? But they didn’t do that law. The law they did was children can’t give … And, and that is reflective of the lack of care given to the … what I view as the, the speech elements which are at peril by this statute.

HEFFNER: Do you think you could write a law that would bring some comfort to your present opponents? Some comfort …

ABRAMS: I’m not sure.

HEFFNER: … to your form of thinking.

ABRAMS: I’m not sure because I’m not sure if all the things I’ve talked about would be enough to satisfy them. Even if you had some more public financing. Even if you had more disclosure … even if you had more enforcement, say, of criminal laws. I, I think Senator McCain and others would say … “that’s not enough, that really doesn’t address the problem.” Now, in my work in the First Amendment area, I’m used to that. I mean I’m used to saying to Congress, as I believe the Supreme Court did just a few weeks ago, “you know we really understand why you want to deal with this problem. But, you know, it’s a free country. Sweeping First Amendment protections, and we generally choose to run the risk of more speech, even if it’s sort of uneven or unequal. When this issue first came to the Supreme Court in 1976, in the Buckley versus Vallejo case, there was a line written by Justice Brennan, writing this opinion for the Court in which he said that the idea of treating someone differently when the person tries to speak because of the amount of money the person has is alien to our First Amendment approach. And I think it should be alien.

HEFFNER: Doesn’t that …

ABRAMS: …Because there’s no doubt, no doubt that a more egalitarian approach would be to impose greater limits. I just think it’s inconsistent with the, with core First Amendment principles to start trusting the government, the Federal Election Commission and the Congress to go draw lines and enforce lines about how much speech you’re ultimately allowed.

HEFFNER: In other words, you don’t feel … to use words that we’re familiar with, that there is enough of a clear and present danger posed by the huge amounts of money that go into American politics.

ABRAMS: You have to finish the sentence. To …

HEFFNER: To do this deed.

ABRAMS: No. Not to do this. Not to do this. To the extent one thinks this is … I mean I have, I have some … some of my new friends are of the view that we don’t spend enough on elections. Now I’m not there yet, and I’m still thinking about that.

HEFFNER: Yet.

ABRAMS: Well, we’ll see. I am a lawyer at the end of the day. I don’t know where I’ll wind up on that. I mean we do spend more on yogurt than on elections. [Laughter] And I think about that. But even when I think … look, we’ve, we’ve got a problem here. What can we do about it. My answers to questions like that are not, “I‘ve got it, we’ll tell the ACLU they can’t do ads close to elections. We’ll tell the Christian Coalition they’ve got to shut up close to an election.” That is just so much an attack on core First Amendment values that I can’t buy it.

HEFFNER: What would you think of the fact that I’m being told to shut up, that our time is over.

ABRAMS: [Laughter]

HEFFNER: Floyd Abrams, thanks for joining me today.

ABRAMS: Thank you.

HEFFNER: And thanks, too, to you in the audience. I hope you join us again next time. If you would like a transcript of today’s program, please send four dollars in check or money order to: The Open Mind, P. O. Box 7977, F.D.R. 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.