While there have been two national elections since the Citizens United ruling upended campaign finance law in the U.S., it looks like the 2016 campaign will be remembered as America's first truly post-CU election. Not just in terms of how the candidates are financing themselves, but with regard to what voters care about, too.
On the Democratic side, for example, it's clear that Sen. Bernie Sanders' refusal to establish a super PAC — and his promise to appoint Supreme Court justices who will overturn Citizens United — has much to do with the popularity and enthusiasm of his campaign.
Similarly, there's good reason to think Secretary Hillary Clinton's refusal to foreswear super PACs, as well as her close ties to Wall Street, have much to do with her campaign's rough start. At the very least, the issue was serious enough that Clinton accused Sanders of practicing an "artful smear" with his comments about the donations she's received from the ultra-wealthy.
On the Republican side, meanwhile, talk of Citizens United has been more sparing. But there's no denying that Donald Trump's promise that, because of his wealth, he is beholden to no one — and is therefore hated by all the "bloodsuckers" — has much to do with his campaign's early success. Trump has often described Jeb Bush as beholden to donors. It seems to be working.
With both sides of the presidential campaign intensifying, and with the IRS making news earlier this week when it comes to dark money (more on this later), Salon decided to call UC-Irvine School of Law's Richard Hasen, campaign finance expert and author of "Plutocrats United: Campaign Money, the Supreme Court, and the Distortion of American Elections."
We spoke over the phone, and you can find an edited version of our conversation below.
So Jeb Bush says he'd like the Supreme Court to call a mulligan on Citizens United. Is he our new campaign finance reformer-in-chief?
I don’t think so.
First, Jeb Bush’s initial comments were unclear as to what he was supporting. He did call for a Constitutional amendment to overturn Citizens United, but he also called for unlimited contributions to candidates. So the best reading of what he was trying to say is that he wants unlimited money to come directly to candidates and to others. You wouldn’t need to overturn Citizens United to get that; you would just need an act of Congress.
Further, his campaign walked back his comments soon after he made them, making clear that what Bush wants is the standard Republican line right now: unlimited contributions and full disclosure. That would still allow for super PACs, but, presumably, many people that give to super PACs now would give directly to campaigns.
Why might Bush be frustrated with the post-Citizens United status quo? Isn't he something of a trailblazer when it comes to operating within the new system?
It might be Bush’s frustration that despite [spending] over $60 million to try to pump Bush up as a candidate, it hasn’t had much of an effect. He’s not leading in the polls; perhaps he thinks that if he and his campaign had direct control over that [super PAC] money, they could be more effective in using it. Many candidates feel they would like to be more in control of the message; and they also feel they, personally, would not be corrupted by large contributions, so therefore there is no real danger if the money came directly to them.
Does that suggest that the ban on "coordination" between outside groups and campaigns, which most reporters and observers have scoffed at, has more teeth than we figured?
The word "coordination" in the English language is different from the word "coordination" as used in federal election laws.
Principally, what we are talking about is coordination over running election ads. If you’re a candidate, you can’t tell the super PAC, I think you should run ads in North Carolina and Ohio, or I think you should run ads that focus on my criminal justice reform proposals. But there can be lots of coordination which is not illegal coordination.
For example, the Federal Election Commission (FEC) has said that a candidate can raise funds for the super PAC as long as the candidate does not ask for more than $5,000. Bush's frustration is about not being able to figure out where the spending should go; but there’s still very close cooperation with his super PAC.
Switching gears slightly, let's talk about the IRS's recent ruling on Karl Rove's Crossroads group and whether it should be tax exempt. Is this a big deal?
This is a much bigger development in money and politics than the Jeb Bush comments, which look like just another "Jeb Bush is misspeaking" situation.
What’s happening with the Crossroads GPS situation is that the IRS appears to have approved crossroad GPS’s application for "social welfare status." What this means is that groups that engage in lots of electoral activity — including maybe running the majority of election ads — can do so, and can shield their donors from public disclosure, without the group having to register as a political committee and without these groups running afoul of IRS guidelines.
What's the upshot of granting Crossroads that status?
This gives the greenlight to other groups to follow Crossroads model, and I expect we will see not only much more undisclosed money in our elections, but much more corporate money in our elections.
Corporations have tended to be reluctant to give money to super PACs because their identities would be disclosed and they'd run the risk of alienating their customers by taking sides in an election. So this will allow corporations to give money to these groups, not have it be disclosed, and to still have an impact on elections and policy.
Which will make it even harder to "prove" that a politician is being "corrupted" by a donor.
That’s right. But even if you don’t buy into the corruption rationale — and I buy into it somewhat, but not as much as others do — another benefit of disclosure is enforcement. For example, it’s illegal for foreign individuals, companies, and/or governments to contribute to or spend in U.S elections. What if a foreign individual gives money to someone else who gives money to a 501(c)(4) that doesn’t disclose? It’s going to be much harder to enforce that law.
The other thing [it complicates] is letting the public know about who is giving money. Supporting candidates provide valuable information to voters.
If I tell you nothing else about a candidate but that that candidate is backed by George Soros or by the Koch Brothers, that may be all you need to know in order to figure out how you want to vote. Busy voters rely on shortcuts to figure out who they should support and oppose; [that's] valuable information to voters, wholly apart from concerns about corruption.
Your new book is also about how corruption need not be the only metric by which we measure campaign finance law. You make an argument about political equality, instead. Can you walk me through it?
For 40 years, our debate over campaign finances had a very familiar balancing act, and this is thanks to the Supreme Court’s decision in the 1976 case of Buckley v Valeo, which upheld parts and struck down parts of a 1974 campaign finance law enacted in the wake of Watergate.
What the court in Buckley has said, and has said many times since, is that when someone challenges a campaign finance law as a violation of the First Amendment’s right to free speech and association, the court has to balance those First Amendment rights on the one hand with the government’s interest in preventing corruption — or it’s appearance — on the other.
Right. That was the balance the Court said it was focused on in the Citizens United ruling.
So the reason we have super PACs — and the reason corporations can give money to these groups and the reason individuals can spend unlimited sums independent of candidates — is this idea from the Supreme Court that independent spending cannot corrupt or create the appearance of corruption.
I argue that, even if it’s true, there’s another interest that should justify reasonable limits on elections. That interest — and this is the central argument of "Plutocrats United" — is political equality. The idea that one person should not have significant political power over another simply because they are wealthy.
Any examples of how that kind of inequality plays out in real life?
Think about why it is that Jeb Bush is still a viable candidate. The only reason he’s still a viable candidate is because some very, very wealthy individuals gave millions and millions of dollars to the pro-Jeb Bush super PAC. That’s not buying him the election, but it’s buying him additional chances. With the Rubio debate [gaffe] over the weekend, we’ve already seen stories [saying] that maybe Jeb is getting another chance. The only reason that Jeb is still getting that chance is because a few wealthy people like him.
Any candidate who didn't have his enormous financial resources could not keep his campaign going if it was performing as poorly as has Bush's thus far.
What the money is doing is helping to influence who’s a viable candidate and who can potentially get elected. It’s also influencing public policy, especially in the shadows.
What do you mean by "in the shadows"?
There's one example I’ve been talking about recently. It didn’t make the book because it’s too recent, but it’s the perfect example of money influencing policy.
Congress recently passed a 2,000-page spending bill — the omnibus spending bill that funds the government for the next year. Buried in those 2000 pages, the New York Times reported, were 54 words, inserted by Senate Minority Leader Harry Reid. Those 54 words give a $1 billion tax break to gaming and real estate interests that support Harry Reid. So this is how money can have a great effect on policy outcomes, not just one electoral outcomes.