Conferences / Symposia, Election 2012, Election Law, Free Speech, Law Professors, Lawrence Lessig, Money, New Yorker, Politics, Seth Waxman, Ted Olson

Politics and Money: Imperfect Together?

Let’s talk about two of our favorite topics: money and politics. And the combination of the two, which creates both problems and opportunities for our democracy.

On Saturday I attended an excellent New Yorker Festival panel about politics and money, featuring some impressive speakers:

What did these distinguished and high-powered panelists have to say about the influence of money on our political system?

Ted Olson

After brief introductions of the speakers by Jane Mayer (who mangled Justice Scalia’s first name by referring to him as “Anton Scalia”), Ted Olson kicked off the discussion. Speaking before the largely liberal audience of New Yorker Festival attendees, Olson — who famously represented President Bush in Bush v. Gore — joked that he was glad to hear people now view Citizens United as the worst Supreme Court decision of the century so far. Seth Waxman’s rejoinder: “You keep outdoing yourself!”

Olson questioned the claim made by some on the left that we have “too much” money in politics funding “too much” political speech. Soda companies spend billions of dollars a year in advertising. Is it really so offensive to spend billions of dollars a year selecting the political leaders who make vitally important decisions for our nation? Surveying Supreme Court decisions in the free speech area, Olson argued that if the First Amendment protects flag burning, nude dancing, and crush videos, it most certainly protects core political speech.

It sounded like Olson had a few more things to say, but Seth Waxman cut in to tell Olson, “Your yellow light is on.” Olson laughed at the appellate advocacy inside joke, wound up his remarks, and yielded the floor.

Seth Waxman

Waxman argued that the issue isn’t whether there is “too much” speech; rather, the issue is the effect of outsized political contributions and expenditures on the integrity of our democracy. When billionaires like Sheldon Adelson spend many millions of dollars in support of particular political candidates, this spending gives rise to “debts” that the candidates feel obligated to repay. At the very least, there is an appearance of “quid pro quo” arrangements between donors and candidates that harms our democracy.

Speaking after Waxman, the fierce and fabulous Cleta Mitchell did not endear herself to the left-leaning crowd. She pointed out that, despite all the hand-wringing today over political spending by Sheldon Adelson and Foster Friess, nobody (or at least nobody on the left) seemed bothered by George Soros spending millions to support liberal candidates and causes back in 2004. Her core argument: in our current campaign-finance system, in which elections are not publicly funded (at least not in their entirety), individuals like Adelson and Friess have the First Amendment right to support the candidates and causes in which they believe.

Lawrence Lessig

Mitchell’s remarks led naturally into those of Larry Lessig, who was also a dynamic and passionate speaker. Lessig’s main point was that perhaps we should have a system of more robust public financing for elections, one in which more citizens participate. Under the current system, elections are funded almost entirely by the rich. According to Lessig, a system in which 1,000 families are funding most of the political discussion is an inherently corrupt system, even in the absence of “quid pro quo” arrangements.

What is Professor Lessig’s proposed solution? He outlined his proposal for “democracy vouchers,” which he previously described in a New York Times op-ed piece:

So long as elections cost money, we won’t end Congress’s dependence on its funders. But we can change it. We can make “the funders” “the people.” Following Arizona, Maine and Connecticut, we could adopt a system of small-dollar public funding for Congress.

Here’s just one way: almost every voter pays at least $50 in some form of federal taxes. So imagine a system that gave a rebate of that first $50 in the form of a “democracy voucher.” That voucher could then be given to any candidate for Congress who agreed to one simple condition: the only money that candidate would accept to finance his or her campaign would be either “democracy vouchers” or contributions from citizens capped at $100. No PAC money. No $2,500 checks. Small contributions only. And if the voter didn’t use the voucher? The money would pass to his or her party, or, if an independent, back to this public funding system.

Cleta Mitchell

Not surprisingly, this proposal, which effectively compels citizens to make campaign contributions, did not win points from Ted Olson and Cleta Mitchell, who aren’t generally fans of government compulsion. But it’s an interesting idea.

During the (unfortunately abbreviated) question-and-answer session with the audience, Cleta Mitchell made a very important point: “Candidates are not blank slates.” When you are a candidate for office — an experience Mitchell has experience with, having served as a member of the Oklahoma House of Representatives from 1976 to 1984 — you hold certain beliefs and articulate certain positions. As a result of your positions, you will attract support from voters and from political donors. The donors are supporting you not because they think that you’ll change your views after getting their campaign contributions, but because they happen to agree with your views. In other words, “the money follows the positions, not the other way around.”

At the very end of the event, Olson revealed a fun little tidbit: he has been playing the role of Joe Biden in debate practice sessions with the Republican vice-presidential nominee, Paul Ryan. Said Olson: “Any mistakes I have made today are because of that.”

New Yorker Festival: Politics and Money [New Yorker]
Video: Lawrence Lessig and Cleta Mitchell on Campaign Money [New Yorker]
More Money Can Beat Big Money [New York Times]

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