Our Sudden Plutocracy

JIM LEHRER: Reaction to the court’s decision ran the spectrum. President Obama condemned it. In a statement, he warned, the result will be a “stampede of special interest money in our politics.”

But Republicans welcomed the decision. House Minority Leader John Boehner called it a “big win for the First Amendment.”

Now the impact of today’s ruling, and to sort that out, we’re joined by Steve Simpson, the lead attorney on campaign finance law at the Institute for Justice, and Monica Youn of the Brennan Center for Justice at New York University’s School of Law. They both filed friend of the court briefs on opposing sides in the case.

Mr. Simpson first.

President Obama said this is going to lead to a stampede of special interest money in politics. Is that how you see it?

STEVE SIMPSON: It very well might lead to a lot more spending by corporations and special interest, but that is precisely what the First Amendment was designed to allow. A lot of spending by a lot of different people and groups in an election is called a debate. And that is precisely what the First Amendment protects.

JIM LEHRER: Ms. Youn, you agree there’s going to be more money in the political system now?

MONICA YOUN: Absolutely.

But I have to disagree with what Mr. Simpson just said. The First Amendment is about freedom of speech. It’s not about freedom to spend unlimited amounts of money. It’s that difference that makes our political system a democracy ruled by the people, rather than a plutocracy ruled by money or those who have the most money.

But we think that the impact of the—this decision is perhaps even a bigger judicial power grab than Bush vs. Gore. Bush vs. Gore affected only one election, and this decision is going to affect every election.

JIM LEHRER: Do you agree with that, Mr. Simpson, it’s going to affect every election from this point on?

STEVE SIMPSON: Oh, sure. It will affect elections.

JIM LEHRER: But you think positively, right?

STEVE SIMPSON: Absolutely, in the way that the First Amendment was designed to affect elections, which is to allow people to speak out and influence the course of their government and the course of elections.

MONICA YOUN: But…

STEVE SIMPSON: One of the things that Justice Kennedy said today in today’s decision was, the First Amendment protects not only speech; it protects speakers as well. If speakers are to speak effectively, they have to spend money.

JIM LEHRER: What about President Obama’s point that the people who have the power, they already have the power; this is going to give them more power, the power to contribute more money, meaning the corporations, labor unions, and whatever, directly?

STEVE SIMPSON: Well, but the power we’re talking about here is the power of influencing what people think. One of the things that Justice Kennedy said in his decision is, if you’re concerned about special interests, allow them to speak, and entrust the people and the voters to discern between truth and falsity.

As Justice Kennedy put it, the First Amendment protects the right to think for ourselves, and having government regulate who can speak is essentially allowing candidates and politicians to control speech.

JIM LEHRER: You don’t see it this way, Ms. Youn, in terms of the negative impact, potential negative impact of this?

MONICA YOUN: There are two crucial problems with both the court’s reasoning and with what Mr. Simpson just said.

First of all, speech is different from money. No one is talking about corporations not being able to speak. Corporations, to the extent that they can speak, not having mouths, speak all the time. They speak through lobbyists. They speak through advertisements that—but what the marketplace of ideas is not about is, the marketplace of ideas does not mean that you have the right to basically buy an election.

There’s a difference between speaking freely and the sort of influence-peddling that campaign finance reform laws attempt to protect. And in allowing unlimited political spending, this court has opened the door to corruption and to special interest domination of politics.

JIM LEHRER: Corruption, explain that. How would this make things more corrupt?

MONICA YOUN: Sure.

Let’s take an example from a case last year which Justice Kennedy actually wrote the majority opinion on. In that case, there was a corporation that was—knew it was going to lose a lawsuit in the state supreme court. And so they spent $3 million of their money basically to take out a state supreme court justice who was up for election, and to replace him with a candidate that they knew was sympathetic to their own interests.

Now, when the case involving this corporation came before the court, of course that candidate who had been installed by that corporation’s $3 million ad blitz voted in favor of that corporation. We’re talking about—we’re talking about elected officials who owe their political survival to corporations, rather than to the electorate.

JIM LEHRER: Mr. Simpson, how do you react to that specific example she gave?

STEVE SIMPSON: That case involved a judicial election. And the issue there was whether the judge had to be recused.

Judges are different from representatives. Judges are supposed to be impartial. Representatives are supposed to represent, which is to say, they’re supposed to be partial. That’s the whole idea of representative democracy.

JIM LEHRER: Let me reverse the question to you, to the one I asked Ms.Youn. Give me a positive example, from your perspective, that could result from this—from today’s decision.

STEVE SIMPSON: I will give you an example that I just heard about over the weekend.

JIM LEHRER: All right.

STEVE SIMPSON: Over the weekend, I heard, in Massachusetts, there was a wine store, a corporation, right, that sells wine. They sent out letters and e-mails to everybody on their e-mail list, saying, 'Vote against Martha Coakley. She supported restrictions on direct shipping of wine and she sided with the big wholesalers, also corporations.'

Under Ms. Youn’s world view, that wine store is not allowed to speak to its customers and say, vote against Martha Coakley. We have to side, instead, with the—the big interests that actually have what amounts to the ability really to change the law.

So, corporations don’t speak with one voice any more than individuals do.

JIM LEHRER: So, if that case—a similar case were to come up tomorrow, assuming that the court’s decision has an impact beginning tomorrow, that case, that could have been—that would not have been illegal?

STEVE SIMPSON: Exactly. That’s exactly right.

JIM LEHRER: But now—now it would be.

MONICA YOUN: Well, it would…

JIM LEHRER: Yes, go ahead.

MONICA YOUN: It would never have been illegal for the wine store to send out that e-mail to anyone.

We’re talking about, specifically, funded broadcast advertisements that are paid for with shareholder funds. We’re not talking about a corporate political action committee speaking. We’re not talking about lobbying. We’re not talking about direct public outreach. We’re not talking about any of the multitude ways in which a corporation makes its voice known today.

Justice Kennedy’s opinion seemed to be premised on the idea that corporations today are somehow silenced from expressing their viewpoints in politics. And I think, for anyone who has followed the health care debate, the financial regulation debate, the climate change debate, Justice Kennedy’s opinion of how politics works has no relationship to any kind of reality.

JIM LEHRER: Mr. Simpson?

STEVE SIMPSON: That’s—that’s wrong.

Today’s decision goes to any independent corporate speech. Telling a corporation, as Ms. Youn says, that it has to spend money only that it raises through—from other people who give it, but it’s not allowed to spend its own treasury funds, is like telling an individual, you’re allowed to speak as long as you don’t spend from your own bank account, but you can wander up and down the street and try to raise money from your neighbors, and, as long as they will give you money…

JIM LEHRER: That’s a political action committee—a political action committee.

STEVE SIMPSON: That’s exactly right.

And the court saw through that and recognized the tremendous burdens on everyone’s speech that regulating the amount of money that one can raise on speech entails.

JIM LEHRER: Ms. Youn, the president also said today that he wants to work with Congress with a—for a forceful response to today’s decision. What’s he talking about?

MONICA YOUN: As you—as you mentioned, today’s opinion is a landmark response—is a landmark decision. In the last couple of elections, we saw the power of the grassroots as we have never seen it before in elections.

We saw people, you know, clicking on Web sites, giving small donations, and, you know, having their candidate win the nomination of both parties and having their candidates duel it out for the White House.

What this opinion threatens to do is to drown out the grassroots.

JIM LEHRER: No, but I’m—I’m sorry. Let me stop you there. By—I didn’t phrase my question right.

MONICA YOUN: Sure.

JIM LEHRER: What is it that the president and Congress could do about the decision is what I meant to ask. My apology.

MONICA YOUN: And, so, what they can do is, they can establish a public option for campaign financing. What this public option would do would be a robust public financing system that would allow elected officials to get out of the arms race of fund-raising that this decision puts them in. It allows them to take themselves off of the auction block.

JIM LEHRER: And that could go—you think could go through the legal gambit and be approved by the Supreme Court?

MONICA YOUN: Yes. There’s no—there’s no constitutional problem that has been suggested with public financing. Public financing is, as far as I can tell, safe from the…

JIM LEHRER: From the…

MONICA YOUN: … from the vision of the First Amendment advanced by this court.

JIM LEHRER: How do you see that as a possible forceful response that the president and his colleagues may give?

STEVE SIMPSON: Public financing is a solution in search of a problem.

Look, today’s decision enforces the First Amendment and it applies it to everybody equally. Saying that that’s a—that that’s a problem basically says that the First Amendment is a problem that now needs to be solved, and the proposed solution is, if candidates have trouble speaking out and competing in the marketplace of ideas with corporations, let’s force the taxpayers to fund candidate campaigns.

I don’t think people want that. And it’s certainly not a good solution to the problem that campaign finance laws themselves impose on candidates.

JIM LEHRER: OK.

Mr. Simpson, Ms. Youn, thank you both very much.

STEVE SIMPSON: Thank you.

MONICA YOUN: Thank you.