Skip to main content

tv   Discussion on Campaign Finance Law  CSPAN  January 26, 2016 10:42pm-12:01am EST

10:42 pm
>> if i can ask for folks attention, good morning. we are glad you came out through the treacherous streets in the piles of snow to join us in a competitive politics on this form commemorating the 40th anniversary of the supreme court decision which is actually on saturday january 30. obviously we had to make some changes which is cut a bit into our audience and panelists. will be missing a couple.
10:43 pm
supreme court litigator. you have three excellent panels that i think you will enjoy. the format we tend to use it instead of people giving short speeches we have aa question her, and interview process and people respond to the questions. this is all unscripted. in any case my name is brad smith command i will be a panelist here as well. now, buckley was decided 40 years ago and has been criticized routine. if the decision has been surprisingly resilient
10:44 pm
despite being predictions that it will meet its demise at any time. i remember when i 1st began getting into this area there was an insistence that buckley was a wrong tree in the question was which direction it would fall. now buckley continues to stand in one writer has suggested it is the president of steel. criticism has been great. likened it to the dred scott decision spending $2,000 on a political race. i mean,, these are the luminaries of america's legal academy that have
10:45 pm
likened the case to lochner which is if you are familiar, you know that calling something akin to lochner is worse than calling it a can of the dred scott. it has been criticized and is worth noting what exactly it is that was done. well, we will shorten this and get more elimination is the program goes on. but in essence to three or four crucial things. first, the court upheld the ability of congress or legislation to place limits on political contributions, direct contributions to candidates and parties on the grounds essentially that such contributions could be a can the bribes, too difficult to separate what was a bribe from what was not an is essentially a prophylactic measure limiting people's ability to associate with candidates in that particular way. one of the reasons buckley
10:46 pm
allow that kind of limitation and recognize that this was a limitation that affected speech rights because if you can't spend money to get views out that it effectively limits or speech just as you can't limit money to buy gasoline could and travel. so on. limit your right to freedom of religion.religion. the court recognized if you single out the expenditures of money because it is being used for speech and limits speech. one of the reasons the court upheld was because it also struck down limits, people could spend separately from a campaigna campaign people's ability to spend money would remain largely unlimited. indeed we might say entirely unlimited.unlimited. it would be regulated but not limited. so that was the out and is
10:47 pm
what made the burden on association of contribution limits something that was tolerable. buckley also upheld the government's right to require political committees to register with the government and to compel the disclosure of information about contributions to political parties and candidates and the disclosure of information about donors contributing to speech that advocated specifically for the election or defeat of candidates and political parties. before doing doingparties. before doing at the court dramatically shrunk the scope of the required disclosure, the language of the statute was very broad in terms of what required to be disclosed which was narrowed down to disclosure of speech that was a direct call for action and then in ain a later decision on this slightly to include speech is close to an election but basically much more narrow
10:48 pm
than the original law and finally buckley allowed congress to set up a voluntary system of public financing of campaigns to having the government pay for campaigns. that is the basic core holding. we have three panels today, and the 1st to talk about -- i'm sorry, the 1st will talk about buckley's importance in that we will hear of you for how buckley has affected campaigning in politics and finally a panel on the continuing resilience of buckley the folio. the 1st panel will consist of me for those who don't know in addition i am a professor of law, so i. and i would be joined by a
10:49 pm
man who truly needs no introduction, floyd abrams a partner at cahill gordon and i know in new york and is probably the preeminent first amendment litigator is a traina train to catch and we want to get underway. and our interviewer will be mattea gold previously worked for the los angeles times and chicago tribune. after this 1st panel will have lunch and then we will have two great panels. so i will ask if they will come up and join me on stage. [applause]
10:50 pm
>> hello and thank you for joining us. the federal government for the cato and ccp.ccp. i guess that is the way it works. so i wanted to start off since we are setting the stage to talk about the implications of buckley to get your take on an alternative history. buckley had not been decided the way was how do you see our current campaign finance system working and what would've been different? >> well, that's a great question. one thing that is often overlooked is what would the world look like.
10:51 pm
it is well known i tend to favor less regulation, rarely do we ask that question of those who favor more regulation. and i think the best way to look at that is to look at the statute that was struck down. the statute would have limited spending by candidates and political parties to a little amount considerably lower than what is typically spent. some people like that.. there is good research showing higher spending tends to benefit incumbents outsiders introduce new ideas and just looking at the last elections every incumbent is less than the limit would have one and every challengers but less would have lost because challenges
10:52 pm
need to spend money just to get views out to let people no why change needs to be made to overcome. the law also prohibits any group of citizens for spending 1000 or more relative to the candidate. this is an extremely broad phrase. one can imagine if the group should belong, truly limited and spending $1000 to say anything relevant the law also prevented corporations and unions spending any money at all connection. what does that mean? and it required americans to register with the government if they spent a thousand or more for the purpose of influencing election, broad phrase.
10:53 pm
i think they would be in a situation where we hear far fewer voices, incumbents the entrenched and we the people would essentially be left out of the process. too often we ignore the fundamental question. >> i would like to answer that. fewer individuals who are being considered throughout the campaign that we are mainstream in right now. this has been a subject of criticism as well all of the people able to fund candidates who but for them
10:54 pm
might not be able to stay around. at precisely the opposite view. it was a good thing for the cause of democracy no less than newt gingrich could stay in the race last time longer. he longer. he 127 primaries. after he would otherwise have been out. we have a number of candidates now of the republican nomination diminishing as we speak, for a number of candidates who have enough funding to continue to show up for debates to try to hold themselves out then they will fade away at some point that they have been with us longer have a better chance to express there views and we had lived under a buckley regimeabout the vision which was with the government was proffering we would simply have less speech, fewer
10:55 pm
candidates and the like which is why gene mccarthy, the great line, the liberal left and jane buckley conservative party senator from new york to get together and meaning that they share views absolutely on the proposition proposition that it was important to establish a proposition that speech was what was really involved here. it is not that money is speech, but it is that for the most part in freedom trump days that you cannot run a campaign that is
10:56 pm
probably the most contentious legacy which we saw also codified in citizens united and something that is a source of substantial debate on the campaign trail. what do you say to those who argue that spending independent money is a can to speech that sets up an inequity. >> is true the people who have more money wind up with more of a chance to get their message out. the people that owned newspapers could get there views out and some great supreme court cases
10:57 pm
celebrated, rightly celebratedcelebrated for rightly celebrated by the press set in so many words patiently could no the amount of speech by a journalistic organization period, even for very good reasons, even on the last day, alabama had a statute that said basically he could not write an editorial on the last day of the campaign endorsing your support, degrading a candidate. what was the justification? is not fair.fair. we live in a country basically with one newspaper touts. they were so powerful and the effect of a newspaper raising something new line election day could be that
10:58 pm
the other candidate did not have a chance to answer. the supreme supreme court unanimously said we get it. but it is alien to our notion of the first amendment to say that you can limit what the press conference. and implicitly at least all the money they spent in putting together the regime which allowed them. so it is not wrong for people to be concerned that maybe something we can deal with. if you want to limit the amount of money i can give you a list of variety of
10:59 pm
other side. only going up in the speech. if you take away the ability to spend the money to get your flyers out to be on television other than it free debates you are greatly limiting speech. >> the question is, i think more than anything that is why. buckley has things that i i disagree with. it is a huge decision, but on this one big core issue really gets it right which is absolutely crucial. there are people who say we need to use a quality and
11:00 pm
people need to be equal but you have to remember who is going to decide what that means and who is speaking enough and he needs to speak more. the people in that position will not always be the people you necessarily want in the position which is true no matter what your political views are. ..
11:01 pm
11:02 pm
political operatives on both side of the aisle it's an incoherent system. there is money flowing to the outside that is supposed to go inside and close alliance with candidates are outside in order to skew the limits. they express frustration to me about how they are trying to navigate these regulations and rules. i'd love to ask you if you feel like you have a coherent finance system? >> i think sometimes it looks
11:03 pm
like the wrong issue. a lot of people look at the issue and the kind of say it looks like these two groups are coordinating or these are in favor of somebody else. i think that kind of gets to the wrong issue. if we look at the coordination questions, we could say that group is clearly working hand in glove with that candidate. run by a candidates former staffer. maybe the answer should be, and who cares? right? are we shocked that people who have worked with and supported jeb bush are working to get jeb bush elected president? are we surprised that people who have a long history and affiliations with the clintons are trying to help hillary clinton be elected? we think this is what's corrupting american politics? we become so focused and when i hear that kind of comment on the enforcement process that were forgetting the big picture. maybe the answer is to simplify the system. why does it seem so complex
11:04 pm
question markets because we have these arcane rules that say well, you can spend what you want but you can't talk to candidates. if you do that, then what's it mean and how much does it mean to talk to candidates. what does it mean when you're spending to help elect a candidates opposed to talking about issues that are important like immigration or taxes or whatever might be. i think that misses the point. if we look at the big picture, we should find ourselves saying why are some of these things so alarming? the problem is the enforcement system itself. it's sort of like if we had a road and there were no cross rocks in the road. so you have people crossing the street in all kinds of places. oh my gosh the laws not being enforced. some are walking and some are running across and some are crossing here and some are
11:05 pm
crossing there. it's a mess. so the simple answer is, let's find a way to find a way for people to cross the street rather than saying the system is breaking. >> didn't they try to work on that by dividing up how money was classified in the system? >> i think it did. it was a compromise decision. i think it's a tolerable compromise, but there's no doubt in my mind that it has led to a crazy quilt system of enforcement or nonenforcement. the area of coordination is a very good example. things are coordinated in a way, and it's not that there is complete independence on the ground between the candidate and the outside entities that are
11:06 pm
supporting the candidate. i've been torn personally, just as thomas has org you'd for some time on the court, that we should have one system. contributions ought to be as open ended as expenditures, period. that they are basically the same. i think i am still of the mind to keep them separate because i do think there is a rationale that was stated earlier that contributions are closer to, perhaps more likely, to be a kin to another option. quit pro quote? maybe. sometimes it's not would pro quote but very close to it. it's hard on an intellectual
11:07 pm
level to say that candidates are more grateful to account for a contribution them for an independent entity spending lots of money, supporting the candidate. it is just hard to believe -- there i think the supreme court has been more candid in saying that gratitude is not enough. we need quid pro quo. the way we got there was to conclude that if they didn't have a bright line of that sort they would be eating up all the first amendment themes that they deeply care about. that's in terms of freedom of speech, freedom of expression at
11:08 pm
the broadest level with respect to the elections. elections, more than anything, and so you do wind up, and i understand why people criticize it. as i say, i think inevitably and on the ground are sort of crazy regulations built on regulations to the point that i'm sure, i have no doubt that the people who are trying to live under them have long since forgotten why those relations exist and are bothered by them. it does interfere in some ways with freedom of expression. [inaudible]
11:09 pm
[inaudible] [inaudible] >> first of course, the argument that was suggested that maybe it was done on contributions and not expenditures must have some merit. i think there is merit to the buckley argument. if we didn't have these concerns through the 80s and 90s. it was a pretty clear system.
11:10 pm
you were unlimited in your issue ads. the enforcement confusion has come precisely because regulators, people who want more regulation, have been unwilling to accept that kind of compromise. if they try to extend that regime into voter scorecards or speech about issues or speech that is independent of a candidate but in their view not independent enough, they are the ones who upset the apple cart. if you look in the 80s and 90s, there were no lawsuits brought challenging contribution limits as a basic rule. there were not lawsuits brought in that respect. the effort came and there wasn't legislation primarily to push that.
11:11 pm
that effort came from those who wanted more regulation. most of this confusion has come because of efforts to expand regulatory regime and to get around buckley, this view that the first amendment interest that there's a big loophole to the extent that now people feel there's confusion. that's really the origin of it. it's not so much that the politics have changed or anything else, but rather that people have been unwilling to live with that kind of temper mice. this goes back to our first point, what is is the endgame? i think the endgame is to limit the americans to speak, pretty much. they're going around now promoting their views that everyone should have a coupon from the government and that's all you can spend on elections. that's it. it was like 100 bucks or something like that. i think that's sort of a fearful endgame of people who want regulation. >> if you read the debates when
11:12 pm
the bill was passed, senator mccain was nothing if not explicit, unambiguous in saying that one of the things we want to get rid of is all this negativity. >> will that's not something government can get rid of. it's just off the table. and yet that was a prime driving force, above the water level, a prime argument in favor of significant limitations on when people could speak close to elections. >> of course, that law, as it's more commonly known, did go to the court and the court weighed in an marginally upheld it. do you just agree? did the court violate the principles of buckley? >> i lost that case.
11:13 pm
[laughter] we tried later on. of course it was inconsistent. it was inconsistent with the whole approach with buckley. time had passed and some mines had changed. it was a different court. do bear in mind, the buckley court that wrote the most important parts of buckley certainly from an ideological first amendment perspective, was dealing with expenditures, that was just an opinion of justice stewart. he is one of the most pro- first amendment that we have ever had. these were the people who were joining in the name of the first amendment an opinion which basically said, we have to let freedom reign in this area of
11:14 pm
expenditure. >> that was a seven to one decision on that point. they had also voted that these laws should be unconstitutional on the expenditure side. >> i want to talk about limiting campaign contributions which is not just the potential for corruption but the appearance of corruption, which is something that appears to be circumscribed a bit. you think that the court's original framing of that was correct? do you think that was too broad, and what you make of what happened in mccutchen? >> i think it was incorrect and i am glad that the court and mccutchen and citizens united moved away from it. this idea of limiting first amendment rights in the name, not of reality, but of the
11:15 pm
appearance is something that's just unacceptable. especially because the appearance may be other free speech which we treasure and respect. but, the idea that you could've said the senate would've been okay, you could've spent the money to endorsed candidate that you want but you just can't do it because people might think that the system is corrupt. i asked senator mccain in the litigation, in the, litigation to support factually the proposition that in this case or that case or that case, there had been in essence corruption
11:16 pm
before it was called quid pro quo and he went back to appearance and appearances just seem to me, from a first amendment point of view, an absolutely unacceptable basis for limiting speech. >> i will say on our afternoon panel, they did a lot of work on how these affect campaign and i hope we get a chance to adjust that question. i think the courts language of appearance, i'm not sure the court thought a lot about what that meant, but i think properly properly understood, i would agree everything you said if that's the interpretation one gives to the appearance of corruption and it is one that a lot of people do.
11:17 pm
i think the proper interpretation of that phrase would be to say that essentially, a person can be corrupted by quid pro quo exchange of cash or legislative favors. with campaign contributions, it's tough to nope it's if it's really a campaign contribution or was it a bribe. remember when it was past and buckley was heard, a candidate candidate could just pocket that money. they didn't have to do anything prior to the campaign act. even when the act was past, he could still pocket the money. i think the quote was saying, the appearance of corruption goes to the difficulty of proving bribery. if we therefore can do -- they just want good government from a candidate they like. but remember they said bribery statutes are enough. i think the court was saying
11:18 pm
that there is an appearance in things that might be bribes that are very hard to prove and hard to get at. we think the government has an interest that limits how much you can give directly to the candidate. remember, again, you can you can always speak as much as you want on your own. i think if we view the appearance of corruption that way, i think you're probably right. i think that's what mccutchen tries to do saying the appearance of corruption means the appearance of quid pro quo exchanges, not just something the average person says on the street about not liking parts of campaign. >> sounds like you favor lifting or doing away with contribution limits in general. i'm wondering how does that it reconciled with the governmental interests of just focusing on preventing corruption itself? cannot interest be fulfilled if there are not contribution limits? >> i agree with roy has said and i think there's a better
11:19 pm
argument to make been on the main contributions. again at the end, i disagree simply because i think the benefits we get from that do not outweigh the harm and the potential for harm or manipulation of the rules, of selective enforcement, of encouraging candidates to try to file claims against one another just for campaign advantages. i have adopted a position that i call separation of campaign and state. i think basically the supreme court should be out of the business of trying to regulate campaigns which is simply talk about politics and speech. my answer to that is to say i think there's a point to be made there and i would be happier with that regime then a lot of these reformers.
11:20 pm
when you ask me when i weigh the cost of benefits, i think the cost of having the benefit involved in these kind of situations is too high. i think it distorts our candidates and keeps candidates out of the race. we've been limiting contributions since the 70s. where's the proof. before than they were always unlimited. are we getting better politics since the 1970s? is this working? i don't think it is. >> i wanted to ask you both about the durability of the decision since you mention that in your opening, particularly the court has changed it's mine on very big decisions such as cool segregation and gay marriage. is there potential in the future if there's new justices that buckley could be challenged? >> what is your assessment question. >> let me answer first what you didn't ask. i think there is a potential of citizens united being reversed. people are running for office on that basis.
11:21 pm
it has been very much a one-sided discussion leading to 80% of of the public and the latest polls that i have seen disapproving of what they think the ruling is. buckley raises a more complex subject because the way the court has been divided, there there have been times when there's been a majority on the court disapproving of buckley but from exactly opposite positions. we've never had enough jurist on one side of the other to push expenditures into contributions or contributions into expenditures, to either allow full, unregulated money as it were to come into the system or to have much less money come into the system.
11:22 pm
i don't think it's likely. i think in a sense buckley, it's not that at some mutable, i think it's the opponents of the laws that it is today through changes on the supreme court have the votes. what they're more likely to do is to go after corporate as opposed to individual expenditures rather than to reverse buckley out right, but when you think of this, this this is a decision that has been wobbling for years because there has been so much debate, and more than debate, so much disdain in academia.
11:23 pm
joe gore, one of the people who argued the case for senator buckley and senator mccarthy have said that it's been treated as a stain, a stain by academics. that's true. that's also true of citizens united. it doesn't make them right, but that is the way they viewed it. and yet, it stood and stood. it's sort of like rocky getting up again. at some point people stop getting it. i think we may be there on buckley, but not not on citizens united. >> i focus briefly on the part of buckley that could be challenge. just last year we had every democrat vote for an amendment
11:24 pm
but in fact we had reversed buckley. it went much further than citizens united. i suspect if anything like that happen, public opinion would start to change quickly because i want you to notice and almost all of these cases, the disharmony is caused by an effort to disband harmony. most of them give new interpretation to regulation and often time the court's watch these down and the operatives moves in and says how can i use that to expand my ability to participate. the point i'm trying to make is people like campaign finance regulation a sort of an abstract concept. as soon as it goes into play and you have people in the government whom they did not vote for making decisions about whether their group should be able to speak or not, they start running to the court raising their constitutional rights around. i think that's one reason why
11:25 pm
they have remained durable. >> thank you so much. i'd love to take questions from the audience. [inaudible] we invited up prominent political scientists but he wasn't able to attend. in lieu of that i thought i would read you a sentence from his new book and see if you agree with it. he writes united states would likely have been better off if the court had decided not to interviewing on the buckley case. as a concept of democracy of all, so should the rules that structure the government and politics. the comprehensive post- watergate campaign finance law would've been modified during the reagan years. he goes on to say that his expectation that the move
11:26 pm
forward against spending and the move back against parties has also been recognized. he makes the case for a legislative strategy dealing with campaign finance. also the case that buckley and the judiciary was a bad idea. >> what you think about that? >> i will say i disagree. in part, one thing i hear a lot is that he would've never passed after the buckley decision i think he would have. if that's what they could've passed, that's that's what they would pass. it's very clear that people on this pro- regulatory committee essentially want what ever regulation they can get. i presume the same would largely be true in congress. if that's what they could've gone through congress that's what they would've passed, even
11:27 pm
recognizing that it makes very little sense. the dynamics of this issue politically make it exactly the kind of issue where the court needs to step up and defend individual liberties. the constitution, the fourth fifth and sixth amendments all exist in a large part to protect minorities from popular majorities. some of those popular majorities can be fairly long-lived. if you overturn buckley, all people would go to court waving their constitutional rights, but i'm not sure that they would go to the legislature waving those constitutional rights. they would almost be revolting against what the legislature had done. this really is a classic first amendment question where we count on the court to protect individual liberties just as we count on them to say you can't keep people from being communists or announcing that their communist and you can't fire people from public jobs.
11:28 pm
>> look, i think congress should be assumed to know more about the on the ground impact on our political system and the courts. that could lead you, at least in the first part of an analysis to say why don't we rely on them. the problem is one thing you can't rely upon them is to obey the constitution in particular the bill of rights and in particular the first amendment. so, to say why don't we turn to the legislature and let them work it out and it will be a give-and-take in this and that,
11:29 pm
yeah it will be a give-and-take, but a lot of the giving and the taking will be first amendment protected speech. >> remember congress is uniquely self interested in this issue. it's not just an issue that might help them get elected because it makes them more press for his but they can manipulate the rules directly to benefit themselves. i think that's important to mention here. >> yes, in the back. >> hello i work with the mouse and as you likely know we disagree on most of these things. i want to ask you all a specific question about entrenchment. i think this is one area we do agree that there's a danger of entrenchment of incumbents and not something we should be concerned about. what if it wasn't true? :
11:30 pm
11:31 pm
of whether having. >> i would largely greet with that, i i think it's largely important. they are important because that's what matters to some people, some people just don't care about freedom of speech. i think people contributed to the argument of the freedom of speech, it has an economy element but also government threat element to it. the fact that that threat may not be realized in any particular point time does not mean it does not pose a significant threat if we give government that kind of power. my own theory is that any system over time of regulation will gradually come to be pro- incumbent, simply because if it is not they recognize it as a problem.
11:32 pm
if it works in their favor, they tend not to view it as a problem and tend to say i don't think it's that big of an issue. obviously i think we have to be open to empirical evidence but i will say in the end, i'm unlikely to be moved at least because i'm very conscious of the big threat that looms over everything, giving government this parts regulate speech. because of the commitment to speech itself. >> my name is michael, i'm a reporter for this senate -- i wanted to pick up a theme as mentioned earlier about in this moment in time there are more and more political professionals on both parties who are complaining about the dynamic of insider versus outsider, the
11:33 pm
outside groups and the super pacs can raise unlimited amounts of money but we can't. there's sort of the campaign-finance writers two years ago that slipped into one of those bills, senator ted cruz has proposed to eliminate campaign contribution limits, was curious if you could say more about if you think the parties will come together to push any sort of raising of the limits or give what they see as having more power in this equation anytime soon. >> i think the party might come together on legislation which would give the parties more power as it were. allow larger amounts to go to the parties with the benefit is viewed by many members of congress of limiting the impact of outside groups.
11:34 pm
senator mcconnell did propose legislation to that effect which has not been adopted. i don't want to be too pessimistic about members of congress getting together, but of all the topics i think of campaign finance seems to be one of the farthest rather than nearest in which the two parties have similar interests. the reality is, for better or worse, the democrats think that not just for political reasons but on the ground reasons but not just political but elected to say this but i think they think it is very harmful,
11:35 pm
republicans think opinions like citizens united benefits them. i don't care because i tried to vindicate what i view as the first amendment interests at stake here. just seems to me the parties are so far apart in terms of cost-benefit that apart from the notion that they might come together and saying none of us really like where we have got to in terms of the enormity of the impact of outsiders who we do not control all on one side or the other, that they would want to rebuild the parties with more of a central player in this area. outside of that i do do not see it happening. >> an interesting thing we saw
11:36 pm
the other month on the omnibus reconciliation builders a provision that would have allowed parties to raise more money. the a lot of democrats oppose this but obviously this has gone through the process and the committee hearing, the president was at least willing to agree to it as part as a political compromise. it's interesting i take your questions a different way is who controls the right side of the republican party in congress because they thought it was going to weaken their political power within the battles of the republican party. to me that's just a playoff your question rather than just answer it. i think one of your questions you have here is people always want to use it to gain the upper hand of the political rivals. i think that is something that cannot be said often enough only think about why -- we ask why should they stop in and buckley
11:37 pm
that's a big reason why, if you give people the tool to limit your political opponents, people will use it. >> i will note at the end of 2014 as michael mentioned, this was flipped into the omnibus and now people are able to raise million dollar plus checks because of these a new account set up. >> amounts are very selective restrictive purposes. >> this issue they were going to raise not nearly that much referred general use. >> my name is david hoffman, i'm here as a journalist but perhaps as a devil's advocate, let me pose a question that that takes aside a contrary to that being expressed from the panelists. >> that's not permitted. [laughter] >> oh the irony, i know you're being funny. the argument of course is more
11:38 pm
spending on speech will lead to other electorates et cetera et cetera, what i'm wondering is the following. if that is true to get to the better inform voters and that's part of the rationale to defend the court rulings, it goes to the issue of that page but i'm wondering about the argument excludes many alternatives it screens out that the ideology and power and in effect trump and i mean that in the earlier sense of the word, some ideas in effect are off-limits therefore
11:39 pm
there is a in practice there is a narrowing debate rather than in large eating through mining, through the power of money and as a practical matter there's a real problem here. >> i don't agree that topics are off-limits because of money or the expenditure of money of one sort or another, i'm not at all sure and i would never use the language, i don't know what makes them better informed and we have so much trash that is routine in the political lives that i would not try to make the case to you that it's a good
11:40 pm
thing to allow more speech as it were even if a lot of it will is coming from a people with a lot of money. i went tried to make the case that it has people better informed, i think it does lead to more expression, the confidence of that and am very concerned that the notion of some speech being off-limits would be augmented by increasing governmental power to limit speech. i would not go beyond that, it's just a personal story. i happen to be in ohio in the last week of the 2012 campaign, matter totally unrelated to this. for me it was a first amendment paradise.
11:41 pm
put on television all there were were political ads, one after another. people of ohio hated it. they can get their programs their board, they were insulted, the same statements over and over all this speech and at least in the presidential election two sides very well represented in ohio. and in particular so i don't know if the public was better informed, i know it was free. i know the government was not involved in making a decision as to what would be presented to them. but the bottom line i think is once you start having major incursions were talking today about major incursions into
11:42 pm
freedom of expression that eventually if not immediately it leads to more speech being off-limits rather than less. >> i hesitate to say anything because it's less speech rather than more, but i do have to add that the common criticism i hear is that they don't represent the people. they're bringing new new ideas into the system and keeping them afloat that are totally not what the people want. so it's kind of odd that you are suggesting the opposite words narrowing ideas. it's really usually the millionaires are creating new issues and keeping them afloat. again we have to compare to what the system would be otherwise, the more people who are playing in the game, the more ideas are out there. if you think of it, if we
11:43 pm
eliminated all spending would we have more ideas out there or less? i think we would have a lot less because it takes money to communicate your ideas to a lot of people. by definition, an idea that is in new idea or unpopular idea does not have lot of supporters. that is the definition of a newer popular idea. so to become popular the people need to go out spend money, be active and make their efforts public that way. if you restrict the flow of money you're restricting the number of players in the game. i don't see any evidence that their ideas are being squelched or somehow not able to participate in the system, at least not evidence that they would be viable ideas in the system if we had a system that restricted restricted spending. >> my point is there is no reason to see them. what i mean is those of us who
11:44 pm
look and talk to lots of people and what kind of eyeball ideas you have and get the letters that come with the handwriting, those of us who here and go to events, these ideas are out there, they don't get public it's usually -- may be because they don't have money right but if others didn't have money that went take off. it was still be a skewer ideas, what they need is exactly what they promises that someone might come along and say that's a great idea. >> i like the totality of what is discussed changes under the current system. we have a democratic socialist who is a credible candidate for the nomination of one party, we have the two leading candidates and the other party who are so far off what would have been considered center stage and
11:45 pm
middle-of-the-road, and they would both agree with that. then four years ago. four years ago, maybe less than four years ago, what is happening in this campaign is certainly the expression of vastly different work stream you could say, but vastly different level of advocacy and what would have been radical views that very long ago. >> in the front row. >> i started a group called present-day america. in the state of virginia we have no oversight. michael gardner, major fundraiser, by all apparent raised funds for governor, for attorney general, for senators
11:46 pm
congressman warner and kane. he was found guilty of molesting three young girls, found guilty of with dna. the appeal court refused to allow him out, our supreme court justice did allow him out, not only did he allow him but he hired a hitman to kill those three young girls. >> mammas is related. >> i was personally jail for 22 days, 14 days in solitary confinement. so senator senator mark warner can be reelected. we don't have oversight -- i don't really care how much money someone gets, the problem is we have no one oversight, you file a complaint with the ethics committee and they are not over siding. there is no one over siding anything that is going on regarding when there is a complaint.
11:47 pm
they're basically pleasing themselves. who would you you say should be policing these people to make sure that when you have a complaint against someone that it actually follows through on and looked at? we have three young girls now that are living with the fact that someone tried to murder them. and no one -- >> okay ma'am i think it's slightly off-topic. >> the question is who should be policing the funding? >> i have no idea what the virginia legal system is. it is not something i can comment on. >> let's move onto the the next topic, i think it's slightly different than the issue at hand. >> height, i want to just are out there and to speak to your experience in the practice and
11:48 pm
particularly go to professor smith when he was still a commissioner at the fcc and it rips off the questions that have been asked, i was an intern at the fcc for ten minutes before i started started to see complaints that are often philo. whether it's a grassroots candidate attempting to run for office and forgot to put a disclaimer on and then there is a complaint filed, is the first amendment there for that kind of person, for that kind of candidate? or or is it just a well, your rights must yield to this collective or tea that we are trying to pursue to save our democracy? >> i think there are a couple of points there, we would see a lot of complaints that were clearly violations of the law and some that were not and some complaints that were close
11:49 pm
calls. we virtually never saw complaint that never had anything to do with public corruption which i think most people think about. they may be violating the law and administrative states probably in a vertically but they're not really corrupt in the sense that we think about it. the laws doing packed the grassroots a great deal. i do write about it in length both an op-ed's and a in a couple of review pieces and use examples. if we had 40 minutes i would do a speech on it here. i would just say that to me i would say that part of that could be resolved simply by having more reasonable regulation. i would favor the regulation but i never understood understood why so many people in reform camper so insistent on very low levels of what you have to register as a political committee, very low levels at which you have to put disclaimer some things and they are cadence of the disclaimer. we could make that go way and it's a kind of compromise that might potentially be there for
11:50 pm
someone to say i don't like limits on contributions or something but i'm only to accept that. why do we need to be going after these people with very small campaigns, small grassroots organizations and so on? i do think that's a problem. to make it. to make it back to the bigger issue may be a shows the problem of getting reasonable regulation in this area and why think the court should take a tough line on it. >> one more question. >> we asked a previous question about whether speech being marginalized and ideas are being squelched, can you speak a little bit about the buckley endorsement of disclosure and how disclosure seems to also squelch speech? we seen examples of this in the gay marriage debate where contributors to an organization have been discriminated against,
11:51 pm
we see opinion in the holling case and they spoke at length about the tensions between free speech and disclosure. >> i will go first and then we'll get the last words. the point i have is some disagreement on this, some of it may be a question of degree, it's interesting that the court of appeals struck down one provision of buckley, this is a court that was pro-reform. the court of appeal opinions in the lower court is a remarkable opinion. the court flat-out says we should not strike it down merely because it might influence first amendment rights. while i thought that was exactly her job. the court at one point compares the first amendment to a reflection in the water that looks nice and good but it's really meaningless, if you just try to grab it you'll lose it in your mouth.
11:52 pm
but even that court struck down a provision that required you to register a political committee, it's absolutely remarkable, if you are to spend any funds or any ad directed the public or who publishes any material referring to a candidate by name, description, description, or any other reference advocating for such candidate, you had to register the government. even the court of appeals that was too much. buckley then just had a mail order disclosure statue that he continued to work with. he narrowed that down and said basically you had to disclose contributors to give to the candidates, to the parties or who spent directly advocating for the candidates. i think think it's problematic for reasons you suggested.
11:53 pm
for long-time no one worry much about it, in recent years it seems to be the disclosures are not used for the intended purpose of informing the public, but rather used to harass and attack people. nonetheless, i think buckley regime was probably a reasonable compromise there. i think the big issue before us now is this effort to expand that. we hear people say what happened now they're opposed to it, nobody has talk seriously about narrowing the amount of disclosure. rather we have people on an regulatory camp of pushing for broader disclosure. they went disclosure of contributions to think tanks and trade associations, to nonprofit organization that might get involved in politics. i do think this is a new frontier with potentially bad results. again i would tend to favor more restricted regime, i think it's a different take. >> it's really not much. i do think the method of
11:54 pm
disclosure that the affirmance of disclosure as being consistent with the first amendment was in part, part of the compromise and buckley and justice scalia and a much later referred to it as a price tag, you want all this freedom, you really want the ability to import all of this money with whatever risk there are, and there are some risk there. you have to pay at least four by having more disclosure, that's one way to view. another is it is advantageous for the democratic society to know more about who is providing money and on what basis.
11:55 pm
that is what the court said and buckley and what the court said in citizens united in an eight-one vote on the constitutionality of disclosure requirements. i accept the proposition that there will be -- i accept two propositions. one is i have no doubt that some people in congress who have been pushing greater disclosure are doing it for the purpose of limiting speech. that is to say hoping that if you have to disclose, you won't speak. or you won't spend the money, or be allowed to spend the money to speak. that's an impressionistic reaction. beyond that, there are organizations that have legal case with the naacp having to
11:56 pm
disclose the members of the southern state where everybody understood what was going to happen and what the purpose of seeking it was. the illicit nature of the whole effort to obtain the information. there will be situations in which disclosing someone's name will lead to consequences. the question is, when you leave behind cases which are intolerable which like the naacp situation in which people are going to be punished for their views based on something as unacceptable as race, religion, sexual orientation, or orientation, or something like that, if you leave that behind and get to governmental policies on a variety of topics, then my
11:57 pm
reaction is similar to that of justice scalia who said that we're supposed to be brave. we are supposed to be willing to pay the price for speaking out, that we should not be a timid society that is silence because some people will be angry at us. so that is where i am at the end of the day but i really don't disagree that there are situations, and is not limited to two and naacp situation in which the disclosure was so obviously leave to more than discomfort. and more than criticisms. there you get into an area in
11:58 pm
which you do need legal protection. i think it will be available in the courts. >> will have to leave it there, thank you so much for your insight and observation. thank you for participating and stick around for lunch. >> end. [inaudible] >> good afternoon, we're going to reconvene. if you could close the doors in the back, at least three of them. before before we get started, i'm david, president of and one of the cosponsors of the event along with the cato institute. i want to thank the center for all it takes half for pulling together with the last-minute changes and also the cato staff which did great work in that as well. also the renaissance hotel which is where we're holding this today. they did this on extremely short notice because of the federal government closure and the cato building being close today. our next panel is the impact of
11:59 pm
buckley on campaigns and elections. we are fortunate fortunate to have jeff milo of the university of missouri, professor of economics and he received his phd from stanford. his areas of expertise include campaign finance and election, health policy and the media. his research has been published in the economic review, american journal of public health, election law journal, and i will not cite the rest of them because we'll be here for a long time. interestingly, his research has also been widely cited in the waste nation's newspapers because it's very topical. he's an associate pastor at the
12:00 am
brigham young university. he is a research scholar at the center for study of elections and democracy at the ui you.'s research and tryst include congressional campaigns and elections, legislative discipline, legislative discipline, interest groups, international human rights treaties and more. his research utilizes game theory model and his work has been published in a number of prominent journals including the american journal of political science, and the political research quarterly and others. with that, that, i will serve as the interviewer, i am not a professional journalist so i will not do quite as well as the other interviewers, wendy was going to be with us but cannot attend today. let's start off jeff and jay which is the question that we have for the panel. what you think has been the impact of buckley on how campaigns are run in the campaigns leading up to the election? >> this is discussed in the previous panel, the main thing that oakley did that i see how it affects elections is it restrained

516 Views

info Stream Only

Uploaded by TV Archive on