City Talk; Sonia Jarvis And Thomas Halper

Hello, I'm Doug Musio. This is City Talk. On Thursday, January 21, 2010, the Supreme Court decided in a 5-4 vote, the case of Citizens United versus the Federal Elections Commission. The reaction has been immediate, extensive, and predictable. For opponents, the sky is falling and the storm is upon us. For supporters, the clouds have parted and we can see heaven. The New New York Times editorial saw the courts bloated democracy while the Wall Street Journal saw a free speech landmark. To shed some light on a decision that has generated so much heat, to discuss questions

of who wins and who loses under this new system, the court established, and what does it mean for the future of law and politics? Or two of my colleagues at Peru College. Sonya Jarvis is a lawyer and a distinguished lecturer and the director of the Center for Equality, Pluralism, and Policy at the School of Public Affairs at Peru. Sonya is on the board of the Center for Responsive Politics, and an advisory board member of the Center for Public Integrity, and has worked extensively on election and campaign finance law. Thomas Halper is chair of the Political Science Department at Peru, Tom teaches constitutional law at civil liberties, at Baruch and the CUNY Graduate Center. He's the author of four books in numerous articles, was awarded Baruch's Presidential Scholarship Achievement Award and has presented many scholarly papers in the United States and abroad several with me. Well, Sonya, welcome Tom. What was actually decided in this case? You have this movie that's become this blockbuster of a

decision. Sonya, what was the case and what was that issue? Basically at issue was a question of a communication, a political communication prior to an election. And under the law before this case was decided, there were limits. If a corporation was involved in producing a political communication, it could be restricted within 30 to 60 days prior to an election. In this instance, there was a movie. It was about Hillary Clinton's- let's call it Hillary Clinton- the movie, Hillary Clinton the movie, and it was not complementary to Secretary Clinton. And as a result, the question was raised whether or not this movie would run afoul of certain rules and regulations of the federal election commission. So at the basic level, the question was, could this movie be run without the supporters being fined by the

FEC? And they bring suit. They brought suit to get a declaratory to get a judgment prior to a trial where the court would actually declare or provide them with an injunction saying yes or no on this legal question. And the district court said no. The district court said you can't run this movie within 30 to 60 days of an election. And it goes to the court of appeals? Well normally the process would be you have a ruling, in this case the district court ruled in favor of the FEC. It then is appealed. Once that appeal is determined, the Supreme Court can decide whether or not to take up the case. The Supreme Court decided to take up the case. There were hearings back in March. It seemed to be an interesting case but not a blockbuster at that time. It became a blockbuster when the Supreme Court in a rarely used process requested that the

parties come back and reargue the case in September. This almost never happens. And so once the court had indicated it wanted a broader set of arguments to be discussed and briefed by the parties, then everyone said wait a second. This case could have a dramatic impact on the campaign finance system in America. Okay and then the decision that was actually handed down on the 21st was one of a series of five four rulings. Is this the way the court is breaking down along these ideological lines of five quote-unquote conservative justices and four quote-unquote liberal justices? Is this what the court looks like? I think if you look at the ruling even though both sides talk about the Constitution because that's where the discourse is directed. You really can't see clear ideological lines. I think there's no question about it. And the ideological split is emphasized

by certain personal, I wouldn't say hostility but sharpness of tone. Well clearly in Justice Stevens, the sent from the majority, he 90 pages worth, he really rips into the majority and in particular Justice Roberts who said in his hearings that he would take precedent was determinative and they threw precedent right out. They threw out two previous court cases. Is this court an activist court? Well I think if you look at Stevens, he has always been a very strong believer in judicial self restraint. He wrote the opinion in the notorious or famous kilo case involving the taking's clause and later he gave a speech and he said had I been in the in the in the legislature I would have voted against this. I don't like this policy but there was no clear mistake made and we have to

let the the lawmakers make their judgment. So I think that this is the kind of of judicial self restraint that Stevens has practiced for years. And in fact he uses the term self starting and Robertson, his concurrence with the majority must have been really stunned by it because he goes back and says well we're not self starting but. Well during his confirmation hearing Chief Justice Roberts had indicated how important it was for judges to act as referees to not become overly involved in the issues that parties are bringing to the court. So for Justice Stevens to suggest that this was a self starter was his way of saying we didn't have to reach any of these issues on the pleadings that were provided to us. In this case the court overreached it did not have a final trial record because it was determined on summary judgment that this whole notion of

a re argument on issues that weren't even raised by the parties again out of the ordinary. And that's not to say that the court can't look at broader constitutional issues in cases that have more more prosaic facts. It's simply that in this case everyone was asking why is the court doing this except that it was very consistent with a series of decisions it's made over the last couple of years. But regarding campaign finance and other issues with this this ideological split has has manifested so but the case itself was interesting because it was a classic case of strange bedfellows. You have the NRA and the chamber and the ACLU and Emily's list all sort of arguing one side of the you know one side of the case. Well think of who those groups are. They're advocacy groups that's what they do. They're representing a point of view and they

don't want any restrictions on their ability to do so and under the then existing system there were restrictions. So it was not surprising to anyone within the election. So the ideological background of the groups didn't matter was the ideology of access and communicating ones one's positions and will. But more than that it was can you use your money and your influence to elect or defeat a candidate. That was an issue. Not just having a general ad that says do you support health care. But no having an ad that says Senator XYZ supports health care and he should be defeated because this bill is wrong for America. Okay. Explain now the what is allowed now that was prohibited in the past. You began to do that right now. Well again in the past the laws under the bipartisan campaign financial form act of 2002. I mean became final. McCain fine gold and and I emphasize the date that that was passed because that was two years after the

Bush versus Gore decision. It was not even 10 years ago and in fact it was seven years ago that the court ruled on the constitutionality of McCain fine gold and the citizen united case has now thrown that McConnell case completely out the window. So they haven't respected precedent in this case. I think you would have to say that that's true and in fact this was one of the points that they addressed. They said precedent is a wonderful thing but it's not always the right thing to do. Okay. What are unions and corporations allowed to do now that they weren't allowed to do in the past? Well they can form political action committees. That was clear. Right. But they were allowed to do that now. Well that's right but the question was even under political action committees there were certain limits in terms of how much money you could devote to a campaign.

Now there are no limits unlimited money. So for example one of the commentators suggested that if Exxon wanted to use billions of dollars of its profits to defeat climate control legislation they can now do it because there are no limits. Now I think that might go a little far too far the other way because you would have to ask would Exxon want to risk its entire corporate identity on a single issue. So there are other constraints that could come into play that would encourage corporations to maybe not use all of their profits to promote a certain issue or to defeat a certain candidate. Tom what do you see as the political I mean we can we can have this discussion as what are the legal implications and what are the political implications? Talk a bit about what you see as the potential political implications of the decision. I think that the

the political story here is is rather interesting and it seems to me it's really more interesting than it might first appear. If you look at the political science literature the studies that have been done by political scientists on the question do campaign contributions affect legislative outcomes which is at the core of this issue. The general finding is that the answer is no. The general finding in the literature is with some exceptions and in some situations but in general the literature says that legislators vote on other grounds on the grounds of ideology or personal belief or party pressure or constituent pressure and then they look at the number of corporations that actually make the contributions. Now on the one hand it would seem the common sense approach would seem to be that when a corporation makes a contribution it's doing so because it

expects some kind of return. It's an investment. However if that were the case you would expect to find virtually all of the Fortune 500 corporations which all have a lot of money by definition being actively involved in political campaigns because the government is involved in literally trillions and trillions of dollars of money either through direct expenditures or regulations or other actions. In fact nearly half of the Fortune 500 make no contributions and most of the others make very minimal contributions which leads these political scientists to conclude that maybe campaign contributions are really not an efficacious way to affect policy. What about political communication now because the decision deals with the ability of corporations unions and others to communicate with voters so in a sense it's contribution plus because they can

inundate the airwaves and an election and therefore affect a public opinion rather than a political officeholders opinion. Well I think in that respect there are a couple of points too. The first is that with the new technologies that are coming on board a lot of these concerns here are going to be anachronisms in a decade which was made by the majority of the decision. We're talking here about very expensive campaigns on let us say on broadcast television but Obama and even Ron Paul demonstrated that you can raise a lot of money very cheaply through the internet and now presumably through iPhones and all these other devices and it's going to become cheaper and cheaper and cheaper and I think therefore the significance of this is really going to fade. The other point I think is if you have all of this communication that's a good thing. That's a good thing. The first

amendment is supposed to protect people in their communication and most particularly I would say in their political communication. We protect all kinds of communication but the rationale the basic rationale of the first amendment was you must protect communication because it is essential to self-government, to democracy. So this is exactly the kind of communication that's regulated here. One of the things that I'm sure we all noticed when this bill was being discussed in Congress was that members were saying we have to do something about these attack ads. Well the Constitution in my view the Constitution says no you can't do something about attack ads. It's okay to attack a candidate and in particular to say you can't do it just before the election well excuse me that so that's the only time people are listening. I would say if you really believe in the first

amendment you should allow the maximum amount of political speech you should allow attack ads which of course incumbents don't want because they're the people are going to be attacked and you should not make a 30-day limit or a 60-day limit. Well that's a point on which we disagree. I certainly hope so. Well for a couple of reasons. One was that neither party to the citizen United case raised the Constitutionality of the corporate spending ban. So why was the court getting to that issue when it hadn't been raised and there were a number of statutory decisions that could be made that would have resolved the case either this movie falls within the regulations as they stood or it fell outside of them. The court decided not to go in that direction and instead decided to take on this broader issue because I think it was interested in this broader ideological issue or that's one way to describe it but also the constitutional issue. I would normally agree with Tom 100% that more

speeches is always to be encouraged under our system and I'm not afraid that even with this decision that there won't be avenues for citizens to engage and debate over important issues. What I'm concerned about was the court in its pro-business stance that's been consistent throughout the Roberts administration as Chief Justice that now they're elevating the corporation to the same status as an individual's free speech rights or the right to assemble or associate or petition. Those are all core First Amendment rights and to the extent that the court is willing to say let's make sure we're not engaged in regulation that impinge upon an individual's rights to free speech and to association I would be there 100%. But that's not what this case was about. This was an instance where the court overreached to get to the First Amendment issue so that

Congress could not then turn around and come up with yet another campaign finance reform statute. It's going to be very hard to get around the language because of its breath to fix this if you think it needs to be fixed. For those who think it's great and this is back to Tom's point look what's wrong with the tech ads. We've had them since we started this nation so let's keep it going. Well the difference is I think that right now we see how much money that's raised by candidates is used for ads. It's not used to talk to people. It's not used for town hall meetings. It's used for television ads and we pollute the airways with these ads. Now my feeling is if you want to have the new system that the Supreme Court is coming up with tell the media corporations you can no longer charge for political ads. You must give free time to candidates so they don't have to spend all of their time raising money to run ads to attack the other people.

Okay before we get to remedies I want to get to more on the first amendment and this notion that the legal fiction of a corporation of person is taken by the majority in this case and made into an absolute and the blog is the legal blogosphere and the constitutional lawyers are just they're foaming on both sides. To me who's not a lawyer is not a constitutional specialist and since this argument the the notion that corporations have the same rights as individuals is specious. They're not identical. They can't be executed. They can't be arrested. So they're empirically not the same. What's the nature of the fiction here? It is a fiction. How can we make this fiction palpable? At this point at this point I think it becomes a little more problematic. In one sense corporations are not persons. On the other hand if you read the first

amendment the first amendment talks about freedom of the press. Now when you talk about freedom of the press you're not talking about an individual person putting out a newspaper you're talking about a corporation. I thought it was very interesting the other day when the New York Times wrote an editorial after this decision and they said that the most objectionable part was that the Supreme Court treated corporations as persons. Well if you look at the first amendment you see that two of the greatest first amendment cases in modern times in New York Times. New York Times versus Sullivan and Washington Post in New York Times versus the United States the Pentagon paper states both of these cases involve the corporation whose name was the New York Times. So we have a long history in this country of corporations really being at the center of first amendment litigation and to say at this point that that they shouldn't be seems to me to walk away from all of these decisions. Well I agree except I would bring up the

cases from 1907 forward that have been concerned about the amount of power and money that corporations can amass and can use and abuse within the political process. So there has always been this balancing act a concern over how much influence and power can a corporation use versus this very legitimate argument of freedom of the press and corporations and corporate speak. Now the question I think still is is it legitimate to place on the same exact level as an individual citizen attempting to assert his or her rights that of a corporation and that is what I think the court has placed into the political level. Okay we can I mean this is going to go on for months this discussion but it's going to be great. I mean for you guys it's great it's fine I'm gonna put it aside for a while. I thought we resolved it. Oh okay okay we don't have to do any more thank you. When is it losers? Clearly you've got the you know the Republicans all you

for it and the Democrats are apoplectic it looks like at least the conventional wisdom at this moment is that it's Democrats versus Republicans corporations versus unions and comments versus challengers parties versus outside groups. It seems to me that the parties are the big losers here because and they all still limited by federal law in terms of what they can do while the outside groups aren't so it looks like the parties losers here. I would say that the parties are losers but it seems to me in the large of sense this case has been the victim of hyperbole. It has as you said really at the top of the of our discussion here. People are terrified or people are ecstatic. The other night I saw an ad for a TV show on television and they said it would be unforgettable. Now there's nothing is forgettable as a TV show and I don't even

remember what the ad was for but that is the nature of our rhetoric today and I think that this is how this is portrayed. In my mind there are a number of factors that indicate that this will not have tremendous effects. Probably the most important is the growth of technologies that are not covered by this law and will make all of the activities in this law less and less important and it won't be very long in coming. The second factor is that as I said earlier it isn't clear from the literature that campaign finance actually has a substantial effect on public policy anyway. So the third reason is the third reason is that we all know in this country that when you make regulations, the regulators, the regulators, the regulators, the bodies that are being regulated. We're will very quickly find ways to get around the regulation. Okay. And this will happen in this case

and they're aided by the fact that nothing is as fungible as money and if you say you can't use money for this purpose here they'll find a way to use it for another purpose over there. So my feeling is that this will change the landscape only to a modest degree. You have the list word. I agree with a lot of what Tom has just analyzed. My only disagreement at this point is in the short term we've basically invalidated our current campaign finance system at the federal and state level that we've really been operating under since the Watergate era. And so if that is appropriate to do so it seems to me that the place to do it is in Congress where we debate it and engage the entire country in this discussion rather than a bitterly divided Supreme Court that seems to have been based more on ideology rather than a true concern over First Amendment rights. Well this ends this first discussion. We've got to continue this

because we've got to talk about remedies. We've got an upcoming major election in the nation certainly in New York State where the control and state Senate's at issue. So this is going to be an important issue. You too are going to have to come back because we barely scratched the surface here. So thank you. Next week we will begin a tour of the Middle East. This will be the first of a two-part conversation with former ambassador Richard Murphy. See you then. Hi, I'm Doug Musio. Let us know what you think about this show. You can reach us at cuny.tv. When you get there, click on the board that says contact us and send your email.

Whatever it is. Thanks. No thanks. I'm not just do it. Send it.