This month, Washington will play host to what organizers are predicting will be a massive civil disobedience action as protesters — some of whom began a long march towards the nation’s capital from Philadelphia last weekend — make the case for campaign finance reform, voting rights protections and the confirmation of a Supreme Court justice. As they do, Bill Moyers & Company will be reaching out to a range of experts on these issues, some of whom are marching and some of whom are not, to ask what they think it will take to effect real change.
Trevor Potter has been working on campaign finance issues since 1985, when he joined the staff of then-Vice President George H.W. Bush. A frequent guest on Bill Moyers’s programs, he has served as the chairman of the Federal Election Commission and advised Sen. John McCain (R-AZ), on the drafting of the last major campaign finance reform legislation, the 2002 Bipartisan Campaign Reform Act. Most famously, Potter served as Stephen Colbert’s lawyer in an elaborate sendup of super PACs that the satirist conducted during the last presidential campaign cycle. The printed transcript has been edited lightly for clarity.
So in the next couple weeks, we’re going to have lots of people marching on Washington about campaign finance reform. Why has it come to this?
Trevor Potter: It’s the movement of the day, I think. It’s interesting how quickly things have crystallized. I think part of it is the focus that the candidates have put on it in this presidential campaign, on both sides. On the Republican side, you have Donald Trump making an argument that he should be elected president, should be the Republican nominee and elected president because the system is corrupt and he is the only Republican candidate not participating in it.
I would say, just pausing there for a moment, that in itself is a sign of the problems our democracy has. First, that he can describe our system that way credibly and say, “I know because I’ve participated in it. I have done it.” You know, he’s said things like, “Any politician will do what I ask as long as I give them money. Whenever I’ve wanted to do something, I have made contributions to politicians and they make things happen for me.” So he’s been very direct in saying that he knows the system because he’s used it to his professional commercial advantage over the years.
Do you think he’s exaggerating?
Potter: I take him at his word, I guess, that that’s certainly why he’s made contributions. And when he’s asked why Hillary Clinton came to his wedding, he says, “Well, because she wanted money from me.” So that’s his perception of how the world works, the old line going back to the Bill Clinton fundraising scandals, which is, “If you want something, you put money in the turnstile and it opens.” That’s Trump’s view of campaign finance.
So the fact that a player in American business is used to getting his way, and thinks he gets his way, by making campaign contributions and supporting candidates in their fundraising is a problem. But the second problem, which I think is equally a problem for our democracy, for our American system, is that Trump says basically the only people you can trust are billionaires who can finance their own campaigns. Implicit in that is the idea that only Donald Trump and fellow billionaires should run for president. And that’s very un-American. That is certainly not what our founders expected, that wealth would be the prerequisite for holding office in this country.
So on Republican side the leading Republican candidate is making this his issue and it’s getting the attention of voters.
On the Democratic side, of course, you have Sanders and Clinton both talking about money in politics. Sanders is using it to attack Clinton, saying, “She’s a creature of Wall Street, she gets all this money from New York and I’m getting money from average citizens.” He says, “I don’t have a super PAC” but is raising a large amount of money, as Obama did, through the Internet and from small donors, from the grassroots. But if you listen to him — I heard him speak the other day; I was going somewhere, listening to the car radio — it’s a full-throated attack on the entire current campaign finance system: the super PACs, the billionaires, the Washington special interests, the lobbyists, the sense that official action is being bought, influence is certainly being bought.
So you’re hearing that from Sanders. The result of that from Clinton is to say basically, “You know, I’m stuck in the current system because we don’t have a workable public financing system. The only way to run for president is to raise money.” She says, “I’m doing it within the limits, but I think the system ought to be changed.”
So the only two leading Democratic candidates are on the same page in terms of arguing for campaign finance reform. And I think partly they’re leading, in the sense that by talking about this issue they get voters to think about it, but also partly they’re following. Any poll you look at shows such great public anger at the sense people have that they are not important in the political system, that the people with money who are financing campaigns and lobbyists are the people who members of Congress and presidents listen to, and there’s a great anger about that on both sides.
So why is it that it’s taken so long for anything to happen, and should people be paying attention to presidential candidates when isn’t the obstacle Congress?
Potter: One reason it’s taken so long is the sense that the Supreme Court is unfriendly to doing anything about it. Now, that I can say, as a lawyer who specialized in this area, that’s an overbroad perception. But it’s certainly there. You hear people who want reform saying, “Well, with the Supreme Court, we can’t do anything so we have to have a constitutional amendment. We have to change the Constitution because that’s the only way to get the Court to approve needed reforms.” It is true that the Court has been 5-4, five votes against many of the reforms, for the last 10 years. The departure of Justice O’Connor, her retirement from the Court, changed the Court’s majority, and since then we have seen the infamous Citizens United case saying corporations could participate in politics, and a number of other cases where the Court has cut back on the ability of either Congress or the states to regulate money in politics.
It used to be the Court’s standard was that the government could regulate to prevent both corruption and the appearance of corruption — and the appearance of corruption clearly includes selling access, selling meetings, giving huge contributions to political organizations connected to parties or candidates that the public will understand is buying at least an insider’s hearing, if not an actual result. And the Court, the five justices on the Court have narrowed that and have said, “No, no, the public won’t be concerned with buying influence and buying access.” That’s actually a statement by Justice Kennedy. The court says the only problem they recognize is what’s called “quid pro quo corruption,” which means basically bribery. And that’s a reversal of where the Court has been over the last 40 years.
In the seminal Buckley case, the Court said just outlawing bribery is not enough. We need to worry about the appearance of corruption, and obviously, the Court said, citizens feel that large campaign contributions will be buying something. That’s common sense. You wouldn’t give a large campaign contribution if you didn’t think you were getting—
That’s what Donald Trump says.
Potter: Sounds just like Trump. So what’s happened, I think since the death of Justice Scalia, is that suddenly, people have realized that the circumstances on the Court have changed. You now don’t have a five-vote majority against reform. You have at the moment a 4-4 deadlock on these issues. And so the identity of the next justice becomes terrifically important in this area. And I think that’s one of the problems that Donald Trump is going to have is that the assumption and the statements of both leading Democratic candidates are that they would appoint a justice who would overturn Citizens United, which is really code for allow Congress to do more to regulate money in politics and to prevent the appearance of corruption.
Trump, in the statement that I have heard attributed to him, said that he will have the Heritage Foundation select his Supreme Court justices, and that is not a foundation that is known for its concern about money in politics. In fact, very much the opposite, it favors unlimited money.
What do you think of the President’s nominee?
Potter: I think Judge Garland is certainly miles — in a very different place, miles different from where Justice Scalia was on these issues. He has a record of being open to transparency. It’s interesting because he was in the majority in another decision that came out of the D.C. circuit called SpeechNow, which created super PACs. But if you go back and look at the SpeechNow decision, it actually didn’t authorize super PACs as we’re seeing them at all. What it dealt with was a much narrower question, which is if you have no connection with a candidate and if you are broadly supporting a range of candidates, then you can raise unlimited funds. But almost every super PAC we see nowadays has a close connection with a candidate and it is what’s called a single candidate super PAC, which is a press phrase meaning they’re only there to support one person and they’re set up by people close to that candidate. That’s the opposite of what Judge Garland was approving in Speech Now.
You’re a Republican. Do you think Republican lawmakers are making a mistake in not giving him a hearing?
I think in terms of the way the Constitution ought to work, the President clearly has the constitutional right up to his last day in office to nominate justices. I think Republicans are making a mistake by drawing a purely partisan line here — which they drew literally within hours of the death of Justice Scalia, without even knowing who the nominee was. To me, the better approach is for the President to nominate — I think he certainly had the right to do so — and for Congress to advise and consent. The Constitution doesn’t say Congress can sit there and do nothing. To me, the Senate ought to advise and consent, and if they advise and say this is the wrong person, then they can explain why.
But this is not a political judgment. This is really more of a constitutional judgment in terms of the polarization we’re seeing in Washington. Our government has to work cooperatively. We have three branches. The two political branches, the Executive and Congress, need to work together to do anything, and we are reaching a situation — and are reaching; I think this is an example of it — of complete deadlock between the parties, and thus the branches. And that’s a huge problem for governance, for making our Constitution work.
So given all of that, are you going to march?
Potter: Oh, I’m too sedentary a lawyer. I care deeply about all this, but most of my work is done through legal briefs and explaining the problems, which is I think how I can make my voice most effective on all this.
Do you think these tactics make any sense, the idea of a big march, civil disobedience, getting arrested?
As a Republican I think there’s a problem with that plan in this circumstance. And let’s start with the fact that the famous Civil Rights marches were effective, I believe, because their numbers were so huge. People were shocked at the number of people who came. I don’t know how big the numbers will be for these marches, but it seems to me unhelpful to have just another march. If you’re going to have one, it does need to have numbers that really surprise people.
But beyond that, this is an issue that needs bipartisan support. Civil rights had bipartisan support. You know, if you go back and look at it, Lyndon Johnson got the Civil Rights Act of ’64 through Congress with key Republican support. That was not something he could’ve done on a partisan basis. And I think it’s important for the legitimacy of reform that it be bipartisan.
The march is largely organized by Democratic and Progressive groups, and it doesn’t look to me like a good venue for bringing out all the Republicans, who the polls say are equally unhappy. If this was a march that was being organized on a bipartisan basis by Republicans and Democrats and you had let’s say Trump, Sanders and Clinton leading it–to start with, maybe we’d finally get Senator Cruz and Governor Kasich to talk about these issues too, which would be helpful, or Governor Kasich. But beyond that, I think then you would have a sense that the march reflected the nation, that those numbers you spoke of, of 80% majorities in both parties wanting to change the system in terms of money in politics, that it would represent that. What I worry about is that a march that is organized by and populated by and spoken to by largely one party — Democratic — causes Republicans to think, “Well, these aren’t my people. Maybe this shouldn’t be my issue.” And in a country that’s as polarized as we are, I think it’s important that whatever is done be visibly bipartisan.
And of course, that’s hard to do when you have a Republican party whose official position at the moment is essentially against regulation of money in politics. This is one of the problems — there’s a real gap between the leadership of the party in Washington, in Congress, at the Republican National Committee and where the grassroots are. But that’s what Trump’s campaign is illustrating. That’s what the polls tell us, that the party’s leadership has really got a tin ear on this issue, or they’re so desperately trying to keep the system where they control the super PACs and they get the big money that they’re unwilling to listen to the party grassroots on this.
Why do you think there hasn’t been more of a convergence between Tea Party activists and activists on the left who are making similar points about money in politics and the influence of elites?
Potter: I think because both parties, again, in a polarized society, members of both parties, the activists we’re talking about fear being typecast as supporting the other side. I mean one of the things that happens here is if Republicans speak up on this, the Republican leadership says, “See, you’re really just a pseudo Democrat.”
Is that what people have said to you?
They haven’t said that, but they may well be thinking it. My point is that I’m in the Republican tradition that goes straight back to Theodore Roosevelt—
He actually proposed campaign finance limits in a State of the Union address.
Potter: Well, he proposed public financing of elections, saying that elections shouldn’t be financed by Wall Street corporate interests, they should be financed by the American people because they’re the American people’s elections, and that both parties should be given what he called a subvention from the Treasury, meaning a public grant. We ended up with a presidential public financing system years later, after Watergate, and that’s the system we’ve now lost as candidates have found ways to raise more money than they could get from that public grant. But Roosevelt started that. Then there have been a string of Republican proposals. The actual ban on any corporate expenditures is a 1947 Republican ban of corporations and unions. That’s the one that the Supreme Court overturned in Citizens United. Then, after Watergate, it was Republicans in Congress who pushed for an independent Federal Election Commission that would regulate money in politics. And of course, John McCain, as the necessary leader of reform, through the McCain-Feingold law. We would not have had that reform law without John McCain. So you’ve had a history of Republican leaders, but the problem is, you know, life is messy. You have a history of people with money trying to influence politics and Republican leaders carrying that message.
Can’t you see then the point of view that this is so frustrating, 80 percent of the people agree with it but nobody will do anything about it, so let’s lay down and get arrested in front of the Supreme Court — I mean is there any better way, in your view, to make change? Because you’ve been working at this for a long time.
Potter: Right, and I’m not saying that marching in Washington is a bad thing at all, so I don’t want to be interpreted as saying that. What I am saying is that I think in order to make something happen, we have to have a national coalition that includes people from both parties. Now, we are seeing that to some extent already at the Republican grassroots. I don’t know if you’ve talked to them, but there’s a group called Take Back Our Republic. There’s a Republican conservative activist, John Pudner, who’s had years of history in the trenches working for conservative Republican groups, pro-life groups. He was involved in the Brat race against Eric Cantor, and he’s now leading a Republican group that is very concerned about the role of big money in politics, and they look at this and say, you know, for instance, “We’re concerned about foreign money in US elections. How do we know that China or other groups that want these big trade deals aren’t out there funneling money into elections?”
Not only because of dark money, but most corporations are multinational now, so their interests transcend borders.
Potter: Absolutely. You have the CEOs of American corporations saying, “We’re not American corporations, we’re international corporations.” And that’s true of their shareholders, it’s true of their interests. And the odd thing about this is that in the Citizens United majority opinion, Justice Kennedy basically accepts that view of corporations, not so much on the foreign side, but what he says is shareholders can monitor their corporations to ensure that the money that is being spent by them is being spent to advance the corporation’s financial interests — not the country’s interest, but the corporation’s commercial interest. So if a corporation thinks it’s best to offshore jobs and take them away from Americans, the Kennedy view is their shareholders will benefit if the corporation spends that money on political speech for the corporation’s short-term interest. This is one reason why those of us who oppose corporate expenditures in elections have a problem, that citizens have, you know, children or grandchildren, are concerned about the future, are concerned about what will happen down the line to their country. Corporations don’t have a country. That’s the modern world. They’re international. What they have is a bottom line, and it’s today’s bottom line, not tomorrow’s, so they’re concerned about very short-term interests, and those may be interests that are contrary to the best future of the United States.
So on balance, are you hopeful or depressed?
Potter: At this stage, very hopeful. I think we have a confluence of events here. We have presidential candidates focusing on this issue. We have every poll showing that citizens care about it and support candidates focusing on this issue. And we have the possibility of a real change in direction in the Supreme Court, which now has a key vacancy, and the new justice can make enormous changes as he or she will likely be the swing vote on this issue.