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

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

I’m Richard Heffner, your host on The Open Mind. And my guest today once again 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, this program is frequently known for its kind of “button down” aspect. Today it won’t be “button down” because last time when I was doing a program with Mr. Abrams, which incidentally was based on an editorial which appeared in The New York Times not so long ago, called “McCain/Feingold goes to court referring, not itself, but indirectly to the fact that Floyd Abrams, whom I’ve never known as associated with many Right Winger, is now associated with Kenneth Starr and with the National Rifle Association and a good many other people who are fighting what Liberals, and Floyd Abrams is a Liberal, have generally wanted, and that is campaign finance reform.

Well, we talked so much last time that I knew that I hadn’t asked Floyd a number of the questions that I needed to ask, and I asked him to stay here, and that’s why this is so informal.

Floyd, thanks for …

ABRAMS: It’s a pleasure.

HEFFNER: … staying with me. I think maybe I wanted you to stay so that I could catch you on some points. Because I certainly didn’t catch you on any and maybe it’s because I’m so impressed with your devotion to First Amendment causes and you’re strong feeling that the McCain Bill in the Senate, as it has passed the Senate and the House, doesn’t meet your Constitutional standards and you’re going to try to convince the Supreme Court that it doesn’t. How likely is it that when the Court renders its decision, it will be in favor of you and your Right Wing friends?

ABRAMS: Heh. Well, first, as I said in our last engagement, amongst my not so Right Wing friends on this case are the American Civil Liberties Union, AFofL/CIO and some other groups.

HEFFNER: We forgive them, but I don’t know [laughter] about you …

ABRAMS: I understand.

HEFFNER: … Floyd.

ABRAMS: I understand. They can go about their lives …

HEFFNER: Right.

ABRAMS: On that part of the Bill which essentially directly bars speech relating to issues … what my opponents on this case call “sham issue ads” or what they call “counterfeit” issue ads and what I call “issue” ads. I think in terms of where the law is now we would almost certainly win. I think there the question is will the Supreme Court change what it has said in the past and the direction of those people who think we’ve had too much speech or too much money or whatever you want to call it in this area. But I feel pretty confident about that.

The soft money issue, in a way is harder because the restraint is not a direct restraint on speech. It’s not saying “you can’t say that” which is what the issue ad part of the law says. It’s saying “you can’t spend all sorts of money you used to be able to spend, even if its used for speech related purposes.”

HEFFNER: Isn’t that the heart of the Bill?

ABRAMS: I don’t know. I don’t think you can really separate the, the two provisions. The Bill passed in good part because fifty percent of “soft” money is now being spent on issue ads. So, the, the proponents of the Bill wanted very much to end soft money, as it’s called. And to end what they believe to be phony issue ads. I think on the soft money issue one of the central issues will be what is the likely impact on the political party’s system that we have now. That is to say, is the impact of saying that the Democratic National Committee, the Republic National Committee can no longer get forty, forty-five percent of it’s funding … at all. Going to be … and that that money can go elsewhere to other, other sorts of groups that will take positions, especially if we win on the issue ad part of the case … is that consistent with, with, really of the structure of our government as we’ve had it.

HEFFNER: The two party system.

ABRAMS: Yes. Yes. You know in a lot of cases, the Supreme Court has been very protective of the two party system. And very protective of “the” parties, even against certain third party activities or outsider influence and the like. But I think that the argument against the, the flat ban on contributions in this area is a very strong one and while, it, it may turn out that, that may not be the part of the case that I’m arguing, it, it raises very serious and troubling First Amendment issues.

HEFFNER: Are there any indications that party leadership, both major parties are questioning their own stands now?

ABRAMS: The Republicans are basically against this Bill. And certainly the Republican leadership. It passed because there were enough Democratic votes and a number of … and enough breakaway Republican votes to lead to a 60 to 40 vote in the, in the Senate.

HEFFNER: To prevent a filibuster.

ABRAMS: Right. But, but, but that was the vote.

HEFFNER: Right.

ABRAMS: … was 60 to 40. Certainly the Republican leadership was against this Bill, and the President was against it. The President signed it, but he was certainly not happy with it, and I think he’s made clear that … in the campaign he said he would veto it. And he’s made clear that he certainly thinks that there are significant elements of it which are Constitutionally dubious, or troublesome. The Democratic leadership certainly is for the Bill. This was a major victory for them as well as Senator McCain. I hear from some of them privately that they’re not so sure … I don’t mean everyone, by any means, and certainly not Senator McCain. I think one of the realities is that people are not so sure who its going to help or not. And, and while the general assumption was any … anything that allows more money to be spent is good for Republicans, that’s, that’s not always true.

It really is a more sophisticated matter in political terms, because as I said last time, Democrats do better with large gifts from individuals. Republicans do much better with $2,000 gifts from many more people. Democrats do better with Union gifts. Republicans with corporate gifts. Now, so I don’t think people know that well how it’s going to play. As we meet today we’re about ten days away from the end of the time period in which new parties … new people can come in, in this lawsuit. And I’m still hopeful that, that we will get some Democratic participation. Indeed, the Washington Times reported just a few days ago that it seemed likely that the California Democratic party and the California Republican party were both going to bring a law suit together … joining ours … challenging the unconstitutionality of the Bill. And then I’m hopeful … well, that’s the more Democratic supports

HEFFNER: We spoke about pubic finance, briefly on our previous program. Without any regard for anything else that we’ve said, would you be “for” public finance of Presidential, Congressional races? At least Presidential.

ABRAMS: Yeah. I would certainly be in favor of significantly more in the way of public financing of, of elections without cutting back on … you know someone else’s ability to say “no” to public financing or whatever restrictions it involves, as President Bush did, last time. I mean … among my view, for example, I think of the New York City election that, that we had here not so long ago where Mr. Bloomberg, now Mayor Bloomberg spent over $70 million dollars of his own money. Under Supreme Court case law he’s allowed to spend … anyone’s allowed to spend any amount of your own money. The theory of that is that you can’t corrupt yourself and you don’t appear to have corrupted yourself either … if it’s your money.

And the Democratic candidate, Mark Green, spent, I think on the order of $18 million dollars, which together with the Democratic nomination made the race just about even. I mean I wish that that balance had been a little bit closer, I don’t think it has to be even or anything like even. And I do think that people funding their own complaint and bringing in new money without which you just can run a campaign … is more useful than not in the Democratic process. I think we’ve been well-served by having new blood and new parties. You know I think when Stuart Mott put a lot of money up for Gene McCarthy in 1968, without which he would not have been able to really get going on his campaign, the public was served.

HEFFNER: I’m intrigued by what you said last time, in particular that perhaps the answer to much of this … and I don’t pretend that I think to all of it … is prosecution of the laws on the books. If money is given in return for favors … prosecute.

ABRAMS: Right. If it’s real favors … now as you pointed out to me then, that’s not easy to prove.

HEFFNER: MmmmHmmm.

ABRAMS: … but if one really believes and can prove that, that large donations result in a, you know, a change of voter, a vote that wouldn’t have otherwise been there. I mean at some point we use the word bribery to describe somebody giving money to a politician for a vote. Now, it gets close sometimes, obviously. And, and it’s a delicate area because we want people to be able to communicate with their legislators. It’s not bad that Unions and corporations, you know, have their say and then some. But at some point there’s always a risk of going over the line and of actual corruption.

HEFFNER: Floyd, this matter of money being speech. The equation of the two. What’s your fix on it?

ABRAMS: That phrase in Buckley v. Vallejo from 1976, I think carries with it, what is an essential truth. It’s also an oversimplification. Justice Stevens just two years ago, taking issue with that said, “Money isn’t speech. It’s commerce.” Well, the truth is, it’s both. Sure, it’s commerce. And sure, without it you can’t have speech. You can’t buy ads on television; you can’t buy billboards, you can buy sound trucks. You can’t, you can’t get paid volunteers in the … on the ground. It is totally unrealistic to think one, one can run to campaign for public office in America without having a very significant and sometimes and enormous pot of money to spend on the campaign. And I don’t believe that anything’s likely to change that. So on, on one level of articulating it … yeah, money is … money is speech; money .. as I would … again I think of it a little more negatively … without money, there’s no speech.

HEFFNER: And it still bothers you a little, doesn’t it?

ABRAMS: Yeah, because it’s the trouble with all, sort of “catchwords”, money is speech and less than speech and more than speech. It’s a lot of different things. But, but the irreducible minimal truth of that phrase is that without significant amounts of money, one can’t run for President and, indeed, for more and more offices in America. And I don’t see any way that that’s going to be changed. I mean if that’s what the proponents really object to, if they look back to the days … and it wasn’t many years ago … when, in smaller states, or really large states with few people, you could run a campaign for the United States Senate for less than $100,000.

HEFFNER: Mmmmmmph.

ABRAMS: And now we’re, you know, we’re way up in the millions, even in small states, like that … let alone … you know when Mike Huffington ran in California, I remember he spent $26 million dollars …

HEFFNER: And lost.

ABRAMS: And lost. And lost. Yeah, it’s worth saying that while money is indispensable to run a campaign, it also doesn’t win it for you. John Connelly ran a very expensive, as you remember, to be nominated by the Republican Party some years ago and wound up with, what was it … three votes, four votes at the Convention.

HEFFNER: Floyd, the clock continues to tick and we don’t have that much time. There was something last time that I wanted to ask you about … it had to do with this piece in the Sunday magazine section of The New York Times called “Fighting with the Right: The Liberal First Amendment Specialist Explains His Unlikely Alliance With Kenneth W. Starr”. We’ve done that to a fare-thee-well. I was fascinated by the question to you, “Are you worried that the right of privacy,” … this is not speech, but privacy … “will suffer because of the war on terrorism.” And you replied, “Privacy interests will yield to national security interests. Moreover, I’m afraid that I think that they should.” And later you said, in answer to the question, “Are we talking now about 1984?. I think there’s a real risk. There’s a risk of an endless war leading to terrible intrusions into civil liberties, justified by the war itself.”

Now, this means you may be a free speech absolutist, but you’re not a privacy absolutist. As I read it.

ABRAMS: Well, that’s true. I’m … I don’t view myself as a free speech absolutist, even though here are some people who think I am. I mean I, I … you know, I believe we ought to have libel law. We ought to have some criminal law, which, which can even directly punish people for what they say in very rare, specified circumstances. I’ve never opposed having some obscenity law. I think it’s more important to say that all those laws have to take account of, and seriously, take account of First Amendment interests. And so, compared to the rest of the Western world, we have a weaker libel law because …

HEFFNER: Okay.

ABRAMS: … because we have a stronger First Amendment law.

HEFFNER: You …

ABRAMS: Now, in the privacy area …

HEFFNER: Yeah.

ABRAMS: … I start with the fact that privacy isn’t even in the Constitution. You have to tease it out.

HEFFNER: But your friends on the Supreme Court teased it out.

ABRAMS: Well, yeah, they … but in two ways: one) they teased it out in cases where the government’s on the other side. And there I would do more teasing to get it out.

HEFFNER: Okay.

ABRAMS: So in the abortion context or other contexts where the government if coming to your door, it seems to me that it is entirely appropriate to conclude that based on the whole thrust of the Bill of Rights and the whole structure and music of the Bill of Rights, that there is a privacy component. But when you start to talk about privacy vis-à-vis other private rights, then I get more troubled. Now in this area of terrorism, you’re talking about a governmental interest at its absolute height. The interests of protecting the public against life threatening activities. And yet, as I’ve tried to say about the Orwellian vision, and yet we can see how easy it would be for this war against terrorism … assume we do everything in total good faith and that no effort by political figures to misuse it … this can go on …the President has said, “twenty or thirty years easily.” And then it’s fair ask, “Well, then how much do we have to give up in terms of what have always been our civil liberties in order, effectively, to, to fight that “war”.

HEFFNER: And the answer to that question?

ABRAMS: Well … I mean it’s a very broad question so it’s hard to answer in a sentence. My answer is that I do believe that the attack on the World Trade Center and I do believe that the effort we’re engaged in now is one which is properly viewed as “transformative” in American life. That is to say we have to be prepared to give up more in the way of what had been our openness as a society and the degree to which we would simply say “No” to government inquiries or keep the government away from us in a lot of situations. I believe that that’s so because we are, we are at great risk. And I think because of the risk we have to be prepared to make significant concessions towards being a less private society. If we have cameras in the street, if we have photographs being taken of us … I was passing by the White House a few times last week. And there are cameras in Lafayette Park now. Is that a big deal? Yes. It is a big deal. Is it worth doing? I think it is. Does it make me sad to think that, that we have to do it? Yes. But my own balance is struck in the direction of saying that the risks are real enough and grave enough, given the sort of people we are fighting against, and certain particular characteristics of them … the most particularly the combination of suicidal orientation and ability to master modern technology that, that I think we have to be prepared to yield some of what made us so free and open from … that’s the way we were. But that’s sad. You know we can’t just give it all up. I mean we can’t close down the shop; we can’t give away all our civil liberties, simply because of the genuineness and the reality of this threat. And I think that’s going to be where a lot of the public policy battles will and should be fought. And I don’t know which side I’ll be on of those because as I’ve said, I do think that this is by no means a defamed threat, but I think it’s very real and very serious, and I think we’re going to have to be willing to compromise.

HEFFNER: Has your involvement in the present suit lead you to feel differently about all of this? More intensely? Less intensely? On one side or the other?

ABRAMS: Not about the privacy like or terrorism-related issues, no. My involvement in this suit has lead me more to think about how hard it is for people to seem to care about First Amendment interests when it’s the other people exercising them. Example … I think one of the most troubling First Amendment cases in recent years is a case limiting abortion protests. A case in Colorado in which the court basically upheld a Denver statute saying that if a woman is going to walk in a place, a public health facility, an abortion facility, that no one can get within eight feet of her without her consent … for obvious fear of, you know, of intimidation. And that was based in part on privacy. In good part, on privacy. My reaction was that that was a terribly dangerous ruling which, which exalted privacy interests over free speech interests … considerably. And in that case I think that Justice Scalia’s dissenting opinion hit just the right note in expressing great alarm at what the court was doing. Well, where were the Liberal voices critical of that opinion? Where were the editorials?

HEFFNER: They were on the privacy side.

ABRAMS: They were on the privacy side because they are concerned about women being intimidated when they want to have abortions. That’s a perfectly understandable public policy concern. But they were not taking seriously, they were not weighing at all enough the seriousness of the First Amendment price.

HEFFNER: You think it might not be unfair to say they were weighing them and came up differently than Floyd Abrams did?

ABRAMS: That’s a … that’s a very fair question. And, and, I’ll tell you “the truth” …

HEFFNER: Half a minute.

ABRAMS: No, I don’t think they were.

HEFFNER: [Laughter]

ABRAMS: [Laughter] I really don’t think that they were, that they were seriously weighing it. I think they were reflexively doing what they thought the “good thing” was to, which is to protect these women from bad speech. And a lot of what I think we have to do is to protect bad speech in order to protect good speech.

HEFFNER: Floyd Abrams, thanks again for joining me …

ABRAMS: Thank you.

HEFFNER: … on The Open Mind. It’s always a pleasure …

ABRAMS: Thanks.

HEFFNER: …when you’re here. 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.