Last October, a few days after Shaun McCutcheon’s lawyers made his case in front of the Supreme Court for why he believes it’s his right to donate money to as many candidates and political action committees as he wants, Bill interviewed Yale legal scholar Heather Gerken. They talked about what might happen if McCutcheon got his way.
Gerken told Bill why she’s worried the decision the Supreme Court announced yesterday will encourage the richest Americans to invest even more heavily in Congress, and how it could tilt the playing field more firmly in their favor. “It’s not just a seat at the table on Election Day,” Gerken says. “It’s a seat at the table for the next four-to-six years when they’re governing… It means that Wall Street is going to be controlling the congressional agenda and Main Street is not.”
Watch the four-minute clip:
BILL MOYERS: I read some research last evening that in the last election cycle there were 1,219 of the wealthiest donors who reached or almost reached the limit now prevailing.
HEATHER GERKEN: Yes. Well, I will just say those numbers actually could increase for the following reasons. Reaching a limit of $123,000 isn't really that influential.
That's the point of the limit, that even if you reach the cap of it, you're not going to be the person who gets a seat at the table automatically. So $123,000 is just not that much money in politics nowadays if you're thinking about how much is spent for all the campaigns.
However, if you're someone who can fund an entire senatorial campaign, if you're someone who can give a chunk of the president, what the presidential campaign needs, you're get a seat at the table. So those numbers may underestimate the number of people who are going to want to do this. But when you can spend $3.5 million, you can get a lot more influence and people still start to say, hmmm, that sounds like a really good use of my money.
BILL MOYERS: Well, you say seat at the table, but don't you really mean they can set the agenda, they can buy the ads that determine what we talk about in a campaign? They can actually destroy an opponent with spending money in negative advertising? It's more than a seat at the table.
HEATHER GERKEN: It's actually worse than that though. I worry not just about their ability to influence the election, but they're going to influence the governance agenda. So if you know that the people who are funding your campaign are against this legislation or in favor of this legislation, it's going to be very hard for party leaders not to pay attention to that fact. So it's not just a seat at the table on election day. Is a seat at the table for the next four to six years when they're governing.
BILL MOYERS: It means they can in effect buy the policy outcomes they want for the legislative process because the incumbents they have supported with $3.5 million or more are going to be paying attention to them when they come to the table?
HEATHER GERKEN: It's not the direct kind of thing, bags full of money in exchange for votes, but it's actually more pernicious in a way because it shapes the whole background of politics about what's allowed to be talked about and what isn't allowed to be talked about, about what kind of votes are going to happen and what kind of votes aren't going to happen. So what it means is Wall Street is going to be controlling the congressional agenda, but Main Street is not.
BILL MOYERS: But, the majority in the court would disagree with you because remember in Citizens United they said well, if corruption were the issue here, if we could, if you could prove a corruption, Ms. Gerken, we would listen to you. But you can't prove corruption. This is just the politicians give gratitude to their donors, but it's not a quid pro quo and you can't demonstrate that it is buying these policy outcomes.
HEATHER GERKEN: That's right. The Supreme Court in Citizens United changed the standard. So it used to be in fact that what Justice Kennedy called ingratiation and access, that was corruption. And that was corruption under Supreme Court precedent. In the early 1990s, in the early 2000s that's exactly the definition because the rest of the Supreme Court, the majority that once held understands that politics is more complicated than, you give me money, I give you a vote.
They understand that corruption can run through a system in a way that's far more pernicious and deeper but subtle. Justice Kennedy has a much narrower view of what constitutes corruption. And that has been the source of deregulation in Citizens United.
BILL MOYERS: Yes, if we saw a baseball player before he bats hand a wad of cash to the umpire, we'd know that that's corruption. But we don't see the donor handing, the politician, the incumbent senator or congressman handing a decision to the donor, we never see that.
HEATHER GERKEN: We never see it, but we see it in the aggregate. Just take a look at what happened when we had the biggest financial crisis in history. Wall Street was right there helping write the legislation, working on all kinds of pieces of blocking things they didn't want. Look at what happened when we had health care, something at the core of the interests of the American people, the insurance industry was right there. Those are the people who have the money. Those are the people who are capable of setting the agenda when they can give this much money. And they're the reason why legislation looks like it does nowadays.
According to an analysis of 2012 campaign spending by the Sunlight Foundation, more than a quarter of all disclosed donations last year — $6 billion dollars in all — came from just 31,385 individuals, only one ten-thousandth of the population.
At the top of that pyramid are an even more rarified group: the 1,000 individual donors who gave at least $134,300 during the 2012 election cycle. They’re highly partisan, and they skew heavily toward Republicans.
