Bill Moyers sits down with libertarian journalist Nick Gillespie and legal scholar Lawrence Lessig to discuss corporate financing of political campaigns in the wake of the U.S. Supreme Court’s controversial ruling in Citizens United v. Federal Election Commission.
BILL MOYERS: Welcome to the Journal. It’s been two weeks since the Supreme Court’s ruling in the Citizens United case. That’s the decision stating that when it comes to directly influencing our elections, corporations can spread their cash as freely as they wish.
In truth, it’s not as if they haven’t already been throwing their financial weight around. Hundreds of millions are poured into lobbying, political action committees and thinly veiled issue ads promoting or attacking candidates. Now the biggest concern is how corporations might use their newly-acquired power to unleash wave after wave of ads for or against any politician right up until Election Day.
Some members of Congress are not waiting to find out. They’re scrambling for ways to counter the Supreme Court decision, especially its core assumptions that money is speech and that corporations have the same rights as people when it comes to spending it.
This week, Speaker Nancy Pelosi named a task force of House Democrats to fight back against the court decision and determine what they can do, if anything, legislatively. And Democrats in the House and Senate began hearings.
SEN. TOM UDALL (D-NM): We’ve seen firsthand the impacts special interests like big oil and big banks and health insurance companies have had on the legislative process. Now with this decision, already-powerful corporations and unions will be able to further open their bank accounts, further drowning out the voices of everyday Americans in the political process.
REP. ARTUR DAVIS (D-AL): I can’t imagine a greater threat to independent decision making by this body than corporations implicitly or explicitly being able to say, if you don’t follow my line, I’ll single-handedly put enough resources into this contest to defeat you.
BILL MOYERS: But Republicans who for the most part were pleased with court’s decision took issue with the Democrats’ dire warnings.
SEN. BOB BENNETT (R-UT): He who has the most money does not always win. Indeed, many times he who has the most money spends it stupidly and ends up helping the other side. Just because someone has the right to speak does not mean that he or she will speak intelligently or effectively.
REP. GREGG HARPER (R-MS): It is obvious that many individuals, especially on the Democratic side, disagree with the Supreme Court’s decision. But all of these points lead in one direction, toward the government deciding who can speak, who can’t speak, and how much they can speak. That is exactly the position our Founders rejected when crafting the first amendment. And it is exactly the position the Supreme Court rejected in Citizens United.
BILL MOYERS: The impact of the Supreme Court’s decision goes well beyond Congress and federal elections. Effectively tossed aside are laws in 24 states that either restrict or ban outright corporate spending in state and local elections. So lawmakers at statehouses across the country are rushing to find alternatives. Last week, in Annapolis, Maryland, a group of legislators proposed a package of reforms…
STATE DEL. SANDY ROSENBERG (D): What’s at stake here is the integrity of the democratic process. The public is already justifiably very upset about how we go about doing our business. The influence of money in special interest, this opens the flood gates, the Supreme Court decision.
STATE SEN. MIKE LENETT (D): You know, the last time I checked my copy of the Constitution, it begins, “We the people.” “We the people,” not “We the corporations.”
STATE SEN. JIM ROSAPEPE (D): The reality is the only people who can take advantage of the Supreme Court decision are big businesses. The neighborhood grocery can’t, the neighborhood gas station can’t, the neighborhood doctor can’t. This is about big, out of state, and in many cases, foreign companies that could come in here and try to buy our election process.
BILL MOYERS: One of those Maryland Legislators is Senator Jamie Raskin … who’s also a professor of constitutional law. He’s using that knowledge to help lawmakers figure out a way to respond to the Supreme Court and, as he says, contain the damage.
STATE SEN. JAMIE RASKIN (D): When the Supreme Court made its decision there was lots of public outrage, but then you started to hear from some people who are saying, “Well, don’t corporations already run everything anyway?” and obviously corporations have a lot of influence but under the Citizens United case, it has opened the floodgates to hundreds of millions or billions of dollars of corporate money flowing into our politics, that’s a game changer.
BILL MOYERS: What’s at stake, says Raskin, are laws that protect the environment, public health, worker safety, and economic justice.
STATE SEN. JAMIE RASKIN (D): We see this line-up practically everyday between what I think is a pretty clear public interest on one side, and then a corporate special interest on the other side. The only question is, “Will we as legislators have the courage to stand up for the public interest?”
BILL MOYERS: But the potential enormity of the Supreme Court’s decision and the corporate dollars it could unleash means that at the state and local level any effort to fight back with legislative proposals will have little effect. Senator Raskin believes the only real solution is to change the United States Constitution itself.
STATE SEN. JAMIE RASKIN (D): The Supreme Court has opened up a Pandora’s box here and we have to do whatever we can at the state level to try to contain the damage. But ultimately, I hope that we really would move to a constitutional amendment. Just like we got a constitutional amendment to give us direct election of U.S. Senators when the corporations were bribing state legislators to send their chosen few to Washington, I think now we have to stand up and say we’re not going let these justices and corporations roll all over us. The democracy belongs to the “We the people” and this is our opportunity to clarify that in the Constitution of the United States.
BILL MOYERS: It’s a sentiment shared by some in Congress.
REP. DONNA EDWARDS (D-MD): A law won’t fix this. We have to fix it in the constitution. So today I will introduce a constitutional amendment so that we, the people, can take back our elections and our democracy. This is not “The People’s House Incorporated.” We are the people. It’s our house, it’s our constitution, and it’s our elections. And we intend to take it back from the United States Supreme Court.
BILL MOYERS: A constitutional amendment would overrule the Supreme Court and clearly spell out that free speech is a right of the people, not corporations. Getting there is hard. An amendment requires the approval of two-thirds of Congress and three-quarters of all the states. But proponents say there’s enough anger smoldering across the country to ignite a grassroots movement, change the constitution and overturn the court’s decision. Already underway is MovetoAmend.org. More than 55 thousand people have signed its petition calling for a constitutional amendment. Another reform effort at FreeSpeechforPeople.org has more than 35 thousand signatures. And organizers there have put together this video.
MALE 1: Do you think corporations are people?
MALE 2: No.
MALE 3: No.
FEMALE 1: No.
FEMALE 2: No.
FEMALE 3: Absolutely not.
FEMALE 4: It’s a different animal.
MALE 4: They’re not people. They don’t have the same rights as people.
BILL MOYERS: The video ends with this plea from State Senator Raskin and Congresswoman Donna Edwards.
STATE SEN. JAMIE RASKIN (D): The Supreme Court has had its say. Now it’s our turn.
REP. DONNA EDWARDS (D-MD): To take matters into our own hands, to enact a constitutional amendment that once and for all declares that we the people govern our elections and our campaigns, not we the corporation.
STATE SEN. JAMIE RASKIN (D): Now is the time for us to put in motion a great popular movement to amend the constitution to defend democracy against the champions of corporate plutocracy.
BILL MOYERS: With me now are two seasoned observers of politics and government who have strong positions on the Court’s decision and have been exercising their first amendment right to speak their minds. Libertarian Nick Gillespie is Editor-in-Chief of Reason.TV and the website Reason.com, which features a political blog called “Hit & Run.” It’s one of the most popular the on the web. Both are offshoots of “Reason Magazine,” the award-winning libertarian monthly Gillespie edited for eight years.
Lawrence Lessig, is Director of the E.J. Safra Foundation Center for Ethics at Harvard University where he also teaches law. He was previously at Stanford, where he founded the Center for Internet and Society. Recently, he co-founded organization Change Congress. To find out why he is passionate about the issue, read his cover story in an upcoming edition of “The Nation” magazine: “How to Get Our Democracy Back.” It’s already online. Welcome to you both.
BILL MOYERS: Welcome to you both.
NICK GILLESPIE: Thanks.
LAWRENCE LESSIG: Thank you.
BILL MOYERS: What was your response to the Supreme Court decision?
NICK GILLESPIE: I think it was a victory for free speech, in the end. And if anything, it didn’t go far enough. Campaign finance regulation is always a suppression of speech. And this law addresses a small aspect of it. That should help the quality and quantity and variety of political speech.
BILL MOYERS: And your response?
LAWRENCE LESSIG: I think it’s an ominous sign about the future of this court and any kind of reform. Because though I support free speech, and even free speech for corporations, what this means is increasingly people are going to believe their government is controlled by the funders and not by the people. And it’s only going to get worse after this decision.
BILL MOYERS: So, if you were writing the amendment to counter those Supreme Court decision, briefly, what would it say? Would you say that First Amendment rights belong only to persons, not corporations?
LAWRENCE LESSIG: No, I, that’s not my position. Although, I understand a lot of people are pushing that idea. That’s not my view. My view is Congress needs the power to protect its own independence. Look, when the Supreme Court decided this case, no credible person could believe the Supreme Court was bought. You could disagree with them in a thousand ways, and I do, about the particulars of this case. But they have their own institutional integrity. We trust that they’re doing their work without the influence of money. But they have now denied to Congress the same institutional integrity. Because everybody believes money buys results in Congress. And this is just going to make it worse. So, Congress has lost the respect of the people. And it’s only going to get much, much worse, because increasingly we’re going to believe they’re dancing to the tunes that are set by those who are trying to influence them, as opposed to what the people believe.
BILL MOYERS: Do you consider corporations the equivalent of citizens?
NICK GILLESPIE: No, I think they’re associations of individuals. I think that corporations have certain rights in the sense that the F.B.I. or the Drug Enforcement Administration doesn’t have the right to go into a corporate headquarters and just start rifling through drawers without warrants. We need to pare back this idea of the corporation as something akin to a communist in the 1950s. Where it’s, you know, some kind of weird shape-shifting monster that is oozing through every aspect of American society. Corporations are associations of people. They can be nonprofit, they can be for profit. They take all sorts of shapes. And generally, it’s a good way of, you know, of organizing.
LAWRENCE LESSIG: I’m not against corporations. I think corporations are great. All kinds of corporations. And of course I think corporations ought to have certain rights. But there’s a “Bladerunner” moment to this, where all of a sudden the rights that they have are not the rights that we give them, but rights that they have, certain inalienable rights as the Declaration of Independence put it. They’ve magically been given.
Look, you agree, we agree, that corporations are associations of individuals. But the mere fact that I have a right to vote and you have a right to vote, and we associate with a corp — and make a corporation, doesn’t mean that the corporation should have a right to vote.
NICK GILLESPIE: That’s right. And they don’t.
LAWRENCE LESSIG: So- well, but the question is-
NICK GILLESPIE: That’s not on the table, is it?
LAWRENCE LESSIG: But the question is why? Because if the mere fact that I’m an individual, and I have a right to speak. And you’re an individual and you have a right to speak. Associating together means that entity has the right to speak. Why doesn’t that extend to the full range of quote “rights” that you and I have because our creator endowed us with them. And we have these unalienable rights?
NICK GILLESPIE: You know, we understand that a corporation is a legal term. One of the things that is problematic is to say, and again, in the Citizens United case, we have a clear cut example of a corporate entity that was shot down, it was censored, it was repressed by the government, because it was making speech that was not tolerated by the government. That’s a big problem. And it can only get worse if we start coming up with even more nuanced and intricate schemes to control electioneering communication.
BILL MOYERS: I watched several times this week the video that’s circulating widely on YouTube. Let’s take a look.
KEITH OLBERMANN: This is a Supreme Court sanctioned murder of what little actual democracy is left, in this democracy.
RACHEL MADDOW: If you are a regular person who has ever made a campaign donation before, forget about ever having to do that again, what’s the point?
KEITH OLBERMANN: It is the dark ages, it is our Dred Scott…
BARACK OBAMA: Last week our Supreme Court reversed a century of law that I believe will open the floodgates for special interests. Including foreign corporations, to spend without limit in our electorate.
NICK GILLESPIE: Whoa, what’s got this trio of patriots so riled up about the end of free speech in America? Ironically it’s a Supreme Court ruling about a political film that was actually censored by the federal government. To call the apocalyptic rhetoric about the Citizens United overheated is a massive understatement for at least three reasons.
Twenty-six states already allow corporate donations in this context. Do you think places like Utah, Missouri and Virginia are more corrupt than states that don’t allow corporations to voice opinions on political matters?
For decades many corporations have been intricately enmeshed within the political process, even going so far as to publicly support specific candidates and specific pieces of legislation. You know them better by names like “The New York Times,” “The Wall Street Journal,” “The Washington Post,” “USA Today,” “The Los Angeles Times” and basically every major newspaper in the country. If we can withstand “The New York Times” telling us who to vote for, we can probably withstand Exxon Mobil trying to tell us to vote for Sarah Palin, or against Joe Biden.
More speech is never a bad thing, whether it’s funded by Citizens United, or by Microsoft, or by the Teamsters Union. And it’s especially not a bad thing right before an election when politics matters most. If you want to get exercised over something, don’t get bent out of shape over a court ruling that actually increases free speech. Instead turn your ire on a government that is vast and growing and helps or hinders corporations based on political lobbying rather than marketplace forces.
NICK GILLESPIE: Well, you know, one of the interesting points of our conversation, I think, is that we’re not really talking about Citizens United or even McCain-Feingold. Because McCain-Feingold came online in the early 2000s. But, you know, the – if what we’re talking about here is the apparent corruption of Congress, then we have to look at something different. Congress has gotten worse and worse ratings since McCain-Feingold. It has gotten worse and worse ratings since the Watergate era campaign finance reforms went into place. I – what I would argue is that we have too many campaign finance reforms. They do stifle free speech. That’s what they’re designed to do. Particularly political speech. Always a problem.
And then my question for Larry really would be who are the corrupt politicians? Name names. Because that’s what this is about. Who are the people who are dancing to the tune of corporate masters? Is it President Obama, the first President since Richard Nixon to run a presidential campaign fully on private money?
LAWRENCE LESSIG: Well, I want to get exercised, just as you demanded that we do, about the problem of lobbyists who are bending policy to favor some corporations and against others, rather than letting the market forces work. Because that’s exactly the problem. Now, you could say, I could say to you-
NICK GILLESPIE: And we have seen an explosion of corporate lobbying, after Obama went into office. This past year has been the biggest bumper year for lobbyists ever. What I would argue is it has nothing to do with patrolling speech or even elections, what it has to do with is the fact, we have a budget, the budget that’s on the table now is $3.8 trillion. As long as the government is shoveling that kind of cash around, people are going to be sniffing out ways to get their share.
LAWRENCE LESSIG: Absolutely.
NICK GILLESPIE: Or more than their fair share.
LAWRENCE LESSIG: But absolutely. But then the problem here is that increasingly members are thinking not about what makes sense, and people on the Right don’t think about what makes sense. They don’t think about how to shrink government and make government simpler. They think about what’s going to make it easier for the lobbyists to help channel money into their campaigns. We’ve become, they’ve produced the fundraising Congress. Where their obsession is, “How do I make the people who will fund my campaigns happier?” And that leads to all the problems you think about and all the problems I think about it. So, it leads to bigger government, more complicated taxes.
NICK GILLESPIE: So, who’s somebody who’s- the vote has been bought? One of the interesting things-
BILL MOYERS: Well, you, Larry – by the way, Larry does name names in this Nation Magazine cover story.
NICK GILLESPIE: Yeah, I think we need to name them.
BILL MOYERS: Very particular.
NICK GILLESPIE: But you know, because Anthony Kennedy, in his decision, in Citizens United said, you know, “In the 100,000 documents that were submitted or pages of documentation, there, nobody offered evidence of a single vote being bought.” Is it that none of the single votes are bought? But the whole thing is bought?
LAWRENCE LESSIG: Absolutely. I mean, the vast majority of American people believe money buys results in Congress. This decision is going to make that worse, because there’s going to be an extraordinary-
NICK GILLESPIE: Does it? Does it? They think they do.
LAWRENCE LESSIG: Because look-
BILL MOYERS: Well-
LAWRENCE LESSIG: One percent of profits of companies were spent on political speech. The total amount of money spent on political speech would double from what’s being spent right now. So-
NICK GILLESPIE: Well, we’ll see. We’ll see, right?
LAWRENCE LESSIG: We’ll see. I agree. But the point is-
NICK GILLESPIE: You expect a deluge in the next election in the, in 2010.
LAWRENCE LESSIG: And neither of us know whether there’s going to be. But what we both agree about is that the existing system is controlled by a set of interests, which is not what the Constitution said it was supposed to be controlled by. Dependency not upon the people, but dependency upon the funders.
NICK GILLESPIE: Actually, but I’m not sure of that. The problem are politicians, the reason why Congress’s ratings have gone down is because the Bush administration lied about the War in Iraq. It lied about the Patriot Act. It lied about TARP. I mean, you know, when you think about it, the – you know, which – and TARP I think is a good case. I don’t think the corporations had to buy anybody, because people like Robert Rubin and Hank Paulson were already well into the pocket.
That is not corruption that is going to be fixed by saying we need public elections. We need a mix, a voluntary mix of public and private elections. That – that’s not what fixes it.
BILL MOYERS: Is corporate advertising free speech, in your judgment?
LAWRENCE LESSIG: Well, I think that we should have a system where we can treat the widest range of speech as free speech. I want a world where we can have the broadest range of speech, including corporate speech. Including speech I don’t agree with. The problem that I see is that when that speech gets read by the ordinary American people as just another way in which Congress is focusing on the funders rather than focusing on the people, it erodes the trust in this government.
Because the point in my view is not whether people’s souls have been bought. I don’t care if a particular Congressman’s soul has been corrupted by money. The fact is, the institution has been corrupted, because the vast majority- in California, 90 percent of people believe money is buying results. In a democracy, people are supposed to believe votes are getting results.
BILL MOYERS: Do you really think large expenditures by corporations in political elections is benign?
NICK GILLESPIE: Yeah. Well, first, let’s define corporations, because, you know, this whole case, this conversation, which I think is really important. It’s important to remember it was about a small nonprofit with effectively a zero budget that had a political documentary censored by the government. This should be a moment for people who believe in any version of free speech to stand up and say, “Never again.”
How do you- how- legally, how do you say this group of, association of individuals that’s a nonprofit has free speech, like Citizens United. Versus Exxon Mobil, versus Goldman Sachs, et cetera. And actually, I think that what is good about this situation is that we’re in an age of information. Where very few things stay secret very long. So, if Exxon Mobil starts doing all sorts of stuff, its shareholders are going to be pissed off. The people who buy gas at the pump are going to be mad, et cetera. I don’t- I predict that we will not see this deluge – increased deluge of corporate money directly into campaign speech.
BILL MOYERS: Let me ask a specif — take the question — this is from a reporter Ryan Grim, who’s reporting on — Speaker Pelosi is setting up a task force to try to counter the Supreme Court decision.
“Citizens United allows corporations to spend money directly from their general treasury.” That’s the truth. “Meaning Goldman Sachs could decide to make a few billion less in loans, and instead spend it electing members of Congress. Which might be a much more lucrative investment. The kind of money that Goldman can find in its couch cushions could dramatically alter a House race, if they decided to run ads against a particular candidate or set of candidates.” That’s the example that people are drawing from a decision that says, that takes the lid off of advertising run by corporations or unions in the weeks before an election. Do you think that’s the true, a potential possibility?
LAWRENCE LESSIG: We can’t deny its potential. But it might be that spending money on lobbyists is a more effective way for Goldman to get what they want. And God knows they have spent an enormous amount on lobbyists. And they have gotten exactly the regulations they wanted. Which led us into the catastrophe we have just come through. And I think one of the problems with this attention to Citizens United is if we think it’s a solution to go back to the day before Citizens United, then we’re completely delusional about the problem. The problem wasn’t created by Citizens United. We already had a problem when Citizens United was decided. And we have to address that more fundamental problem, and this is exactly what Nick was trying to say we should get exercised about. Nick said we should get exercised about the lobbyists who use their power to get government to benefit some against others, rather than the free market.
That’s exactly the problem I’m talking about, as well. And so, I don’t care that “Hillary: The Movie” gets to be out there. I agree. That ought to be protected speech.
NICK GILLESPIE: But you do care that it was absolutely banned. I mean it was censored.
LAWRENCE LESSIG: No, I don’t. No, no. Nick, that’s not my position. My position is we need a system that makes it so that this fundraising Congress no longer cares about the funders in driving policy, including policy that lobbyists are pushing. And instead cares about the people. Because that’s only way to restore trust to this institution.
BILL MOYERS: So, therefore what amendment would you propose that would deal with this institutional corruption?
LAWRENCE LESSIG: We, in fact, today have launched a site called “Call a Convention.” ‘Cause I don’t think there’s any —
BILL MOYERS: What is it?
LAWRENCE LESSIG: “Call a Convention.”
BILL MOYERS: “Call a Convention.”
LAWRENCE LESSIG: Right. Because I don’t think there’s any reason at all to waste time with this Congress trying to propose an amendment. What we need is a long dialogue that leads to a convention where we can talk about what this ought to be. But in my view, the answer here is A) Congress has the power and obligation to protect its institutional independence by funding, whether through vouchers that people have or through public funding, elections.
And number two, they have the obligation to make sure and the freedom under the First Amendment to make sure, that there is not such a disproportionate influence in a particular election that people no longer trust the integrity of the institution. So, I would allow lots of corporate speech, but I would allow them to frame it, at least in the last 60 days, so that we don’t have a world where people believe they’re dancing to the tune of the funders.
BILL MOYERS: Now, I’m a regular reader of “Reason.” And I know that you’ve said almost the same thing. The magazine said almost the same thing about the corruption of government, Congress and the entire government. You think it’s getting too big, getting out of control.
NICK GILLESPIE: Right.
BILL MOYERS: He maintains that that’s driven in part by the fact that corporations can spend so much money, they influence legislation to affect the market.
NICK GILLESPIE: I think, you know, a couple of things. One is that I suspect that I have more faith in the American People to discriminate between truth claims and candidates who are pushed by various sources, than either of you might advance.
But the other thing is that I also believe, tragically, you know, and maybe sometimes comedically, we are getting the government that we want. I don’t think that our government is unrepresentative. I think the reason why Congress has bad approval ratings is because Congress does stupid things. You know, we passed a financial bill, a massive financial bill that was the equivalent of the Patriot Act, basically over a long weekend.
That’s why trust went down. We passed the Patriot Act in a long weekend. That’s why trust went down. It’s not because of the funding of Congress. And there’s a question here about political speech, which I think everybody agrees is, if there’s one type of speech that needs to be protected by the Constitution, it’s political speech. Any law that says 60 days before an election, we’re going to control and regulate political speech? That’s going to strike people as nuts.
BILL MOYERS: But they —
NICK GILLESPIE: And it should.
LAWRENCE LESSIG: I’m not saying anybody should stop speaking. But you’re not going to get the Libertarian — let me finish. You’re not going get the Libertarian government you want under this system. Twenty years of conservative presidents in the last 29 has not produced one iota of smaller government, one iota of simpler taxes. Because the engine of the lobbyists that you point to at the end, let’s get exercised about them, is to make government bigger and taxes more complicated.
NICK GILLESPIE: Explain —
LAWRENCE LESSIG: It will always be that way until you change —
NICK GILLESPIE: I agree. No, until you change the $3.8 trillion to, you know, a bare minimum —
LAWRENCE LESSIG: How you going to do that?
NICK GILLESPIE: — budget. But here’s the question. Explain to me how we’re going to get there by having you or other people like you deciding within 60 days of an election what speech is legitimate and what is not.
LAWRENCE LESSIG: The first thing we should be doing is passing something like the citizen-funded election bill that’s in Congress right now. That tries to create an opportunity for candidates to opt in to small dollar contributors. So that when —
BILL MOYERS: That’s something that Theodore Roosevelt wanted 100 years ago. Citizen-funded elections.
LAWRENCE LESSIG: Absolutely. That’s exactly what he talked about. And the point is if we had that system, when Congress did something stupid, at least you could believe that they did it stupid because they were too liberal or too conservative, but not because of the money.
NICK GILLESPIE: I don’t think —
LAWRENCE LESSIG: And that’s the first step.
NICK GILLESPIE: So, you’re telling me that I now, my tax money is going to support campaigns, active campaigns for candidates?
LAWRENCE LESSIG: My tax money is going to support —
NICK GILLESPIE: That I refuse to vote for?
LAWRENCE LESSIG: — wars that I oppose.
NICK GILLESPIE: Yeah, absolutely.
LAWRENCE LESSIG: People are dying in the name of —
BILL MOYERS: Your tax money’s going to support bailouts that neither one of you probably —
LAWRENCE LESSIG: Absolutely.
BILL MOYERS: I mean, so you can’t just separate one thread out of —
NICK GILLESPIE: Yeah, certainly, but first off, simply because one thing happens, doesn’t mean the other. But you can. Because the war, such as it is and the bailout were at least acted upon by a duly elected legislative body.
LAWRENCE LESSIG: We spent —
NICK GILLESPIE: That we agree is representative.
LAWRENCE LESSIG: We spent $1.5 billion a year supporting democracy around the world. Citizen-funded elections would cost half that. For half that money, amount of money, we could be supporting democracy in America.
NICK GILLESPIE: And then —
LAWRENCE LESSIG: But then what it would get us —
NICK GILLESPIE: How do —
LAWRENCE LESSIG: Let me finish please. What it would get us is a world where as the Cato Institute, estimated in 2001, $87 billion wouldn’t be given to private corporations and corporate welfare, because it wouldn’t make sense for the congress-people to be giving away corporate —
BILL MOYERS: Let me just respond to you on this, because when I am taxed to support clean elections or public funding or citizen-funded election, I’m supporting a democratic process, not a candidate. I’m not choosing between Nick Gillespie, the Libertarian, and Lawrence Lessig, the liberal. I’m choosing to have the process play out as fairly and justly, in a non-utopian world, as I can.
NICK GILLESPIE: And you’re going to be mostly paying for a Democrat and a Republican. And as somebody — I’m a lower case libertarian. I’m an Independent.
I would get rid of campaign finance reform. I don’t even know that disclosure is that important. But leave open more avenues of speech. If you’re a marginal candidate, if you’re an outlier candidate, the best thing that can happen is that you have one or two people who believe in your ideas, bankroll you at the beginning, and you build a regular, you know, you build a larger operation like Gene McCarthy did. Or you use the internet like somebody like Ron Paul did in the last presidential election and get a lot of money from a lot of people.
LAWRENCE LESSIG: Of course we agree about the power of the internet. The internet is the key to solving this problem right now. But the solution to the problem is not to deny the very important last sentence that he uttered in his video. To deny that the existing system of lobbyists is producing the corruption of government. The existing system of lobbyists that are being funded in exactly this way. That it’ll only get worse under this explosion of corporate speech, is producing the corruption. The internet might get around that.
BILL MOYERS: Larry, you keep coming down hard on lobbyists, who are people doing the work they’re paid to do. If you eliminated all the lobbyists from Washington, D.C., 35, 36, 37 thousand of them, that would not stop what you find and many people find objectionable about the Supreme Court decision. The corporation not needing a lobbyist could go right to the television station and flood his district in Ohio with ads.
LAWRENCE LESSIG: Well, I don’t —
BILL MOYERS: Or unions to do that.
LAWRENCE LESSIG: I actually don’t have a problem with lobbyists, you know, as John Edwards used to say, when we used to quote John Edwards, there’s all the difference in the world between a lawyer making an argument to a jury and a lawyer handing out $100 bills to the jurors. And the problem is the lobbyists have now become the funnels, the channels through which Members, who spend 30 to 70 percent of their time raising money, get money.
So, they become dependent upon the lobbyists, and the point is we need to address that problem. Congress needs to be dependent upon the people, not upon the funders.
NICK GILLESPIE: You know, you started off by talking about how people don’t think the Supreme Court, however much they disagree with it, they don’t think the Supreme Court is bought and paid for. Part of that has to do with lifetime tenure, I think. And, you know, what you’re talking about here is you know, we’ve tried in a number, you know, in an infinite number of schemes that all seem smart on paper. Of like, “Okay, we’re going to do this to ban this kind of money. And this kind of money. And this kind of money. And this kind of pay off. And institutional corruption.” It never seems to work. Unless you said to Congressmen, unless you killed Congressmen at the end of their tenure, they’re going to, you know, you know they’re going to be gaming into the future. I mean, the trade associations, the trade associations of Washington, D.C. are, you know, are staffed by former congressmen and former senators who cash out and go into lobbying.
LAWRENCE LESSIG: The point is, we’ve now produced a Congress which is focused on preserving the exact problem you’ve identified.
NICK GILLESPIE: What —
LAWRENCE LESSIG: The lobbying system.
NICK GILLESPIE: Here — one of the things, though, and I think what the failure of health care reform shows, whether you like the outcome or not, is that Congress actually reacts to popular, you know, the popular electorate. This was a wildly unpopular bill. And it became more unpopular, as it happened. I hope that we will see something similar happen with TARP, with the bailout, certainly with the wars in both Iraq and Afghanistan. But Congress does respond to what the people talk about.
LAWRENCE LESSIG: Which is why the people —
NICK GILLESPIE: It’s not simply—
LAWRENCE LESSIG: — hate the Congress so much? There’s a conflict here.
NICK GILLESPIE: It’s not a good system. Yeah.
LAWRENCE LESSIG: If they’re either doing what the people want, the people
NICK GILLESPIE: It’s — I would think that, you know, creating amendments to the Constitution or day to day law based on polls about trust, it’s highly dubious.
LAWRENCE LESSIG: The trust of Congress has not just blipped in the last couple of months. It has been a trend for the last 20 years. And the institution that has consistently maintained high trust is the one non-democratic institution in our system. The court. And it’s not because they’ve got, just because they’ve got life tenure, it’s because they’re obsessive about making sure that nobody can believe that the reason they’re deciding what they’re deciding is because of the money.
Look, in this very term, the court created a constitutional rule that says a judge has to recuse himself where independent expenditures create the impression in people’s mind that there has been improper influence in the judges particular decision. They are absolutely committed to making sure their institution maintains the trust of the people. But they’re denying the power of that institution, Congress, to create the same trust in the view of most people.
BILL MOYERS: By knocking down all campaign finance reforms. This decision, in effect, negates all campaign finance —
LAWRENCE LESSIG: This is one in a series of decisions, where this court has basically said, “You’ve got to recognize there’s almost nothing you can do here.”
BILL MOYERS: There is a phrase in that court decision that jolted a lot of people who believe in campaign finance reform. And it says quote, “The fact that speakers may have influence over or access to elected officials does not mean that these officials are corrupt.”
Doesn’t this mean that if you can only prove blatant corruption, as you’ve said, name names through a quid pro quo, I mean, I got $500,000 from this source and I’m going to do what that source wants me to do when I vote next week in Congress. You’re going to have a hard time getting through reform through the Roberts court, if that is in fact the case, right?
LAWRENCE LESSIG: That’s my biggest fear. And that’s why I think we’ve got to begin to think about a constitutional change that makes possible or secures reform. Now, I think we should push for citizen-funded elections today. And there’s a bill right now in Congress, the Larson-Jones bill that would achieve it. And let’s risk the Roberts court. But in the longer run, I think we’ve got to take back control of our democracy, both from the lobbyists and from the Supreme Court and set up a system where we can believe once again in what our government does.
BILL MOYERS: And in the long run, what do you think we ought to do?
NICK GILLESPIE: I, well, you know, I think that we should move in the direction that Citizens United is pointing. And to have less campaign finance regulation. Because that will increase the amount and variety of speech. When you talk about having, you know, controlling or taking back our democracy, that means saying, “Okay, you can speak now. You cannot speak now.” In the end, it’s about the suppression of speech, which is the most dangerous thing.
I don’t like corporations. I don’t like politicians. I, for whatever reason, I love free speech. And I see this decision as enabling more of that, which will help me and my, you know, gang of ragtag utopians, hopefully, pull off the caper of the 21st century, and actually work towards a government that, you know, does its proper functions well, and leaves us the rest alone, to live our lives in peace.
LAWRENCE LESSIG: So, yay, free speech, we agree about that.
NICK GILLESPIE: Absolutely.
LAWRENCE LESSIG: Horrible, horrible lobbyist, fundraising Congress. We also used to agree about that, at the end of your video. So, I should think we agree. We should have more free speech and less control by lobbyists or the funders. And have a Congress that cares about the people and not about their funders.
NICK GILLESPIE: And we can do that now. We don’t need a constitutional amendment. What we need to do is to say to our congressmen, “If you vote for this law, if you vote for this policy, you’re done. You’re fried.” And that can happen. And it has happened. And it should happen more. I think we are moving into a world of more engaged politics, more participatory politics, because of the internet. Because of other dimensions of life. Decentralization of power or rather of knowledge, if not of political power. And it will lead to a decentralization of political power.
BILL MOYERS: Last word?
LAWRENCE LESSIG: Yeah, well, the last word is we should recognize there’s a fundamental agreement about the bad, the brokenness of this government. Now, you can imagine that utopian of how the people rise up under this system and fix it. And if he’s right about that, I’m happy. But I think we need something more than that. I think we need to make sure that candidates and people looking at candidates can believe that candidates care about the people and not about their funders. And that’s the loss of trust that we have in government right now.
BILL MOYERS: Nick Gillespie, Lawrence Lessig, thank you very much for being with me on the Journal.
LAWRENCE LESSIG: Thank you.
NICK GILLESPIE: Thank you.
This transcript was entered on May 15, 2015.