 Welcome to Free Thoughts, a podcast project of the Cato Institute's Libertarianism.org. My name's Aaron Powell. I'm editor of Libertarianism.org and a research fellow at the Cato Institute. And I'm Trevor Burris. I'm a research fellow at the Cato Institute Center for Constitutional Studies. Our topic for today is money and political speech. Campaign finance is a perennial issue, but much of the argument about it rests on often unexamined assumptions. Is money speech? If it is, can we still restrict its role in politics? If it isn't, what's its relation to political speech? What does it mean to say elections can be corrupted by too much speech? Joining us to discuss this is John Samples, director of Cato's Center for Representative Government and author of the fallacy of campaign finance reform. Welcome to Free Thoughts, John. Thanks for having me, Aaron. So I was thinking maybe you could start by just giving us a little bit of background on campaign finance, where we are, how we got here. Well, I mean, you've obviously had the problem once you enter the sort of modern age of campaigns over the last century of financing them. And that's brought regulation with it. Going back a century or more, you have the Tillman Act and other acts aimed at anti-corruption, although some people say they were meant to prevent businesses from being shaken down by the government, by public officials. Not a whole lot of legislative activity over the middle part of the century. In the 50s, you get some more regulations. In the 60s, you really have the founding of the sort of political science of campaign finance, the study of it, and so on, and more discussions about it, particularly as television becomes more important in the second half of the 60s, more money is spent on national campaigns. You get a lot more discussion. But it's really, you don't get comprehensive legislation and we really don't have a lot of actual regulations because the disclosure in the earlier kind of Tillman Act and other acts that required disclosure, that was pretty much ignored by federal candidates by the mid-60s. You really get comprehensive legislation, though, after Watergate and you get it as, you have some legislation passed in the late 60s before Watergate. It's very interesting legislation that we might talk about. But you get the federal campaign law, basically, in 1974. You clearly get it in the fall of 1974. You get it because of Watergate, which Nixon resigns in August. And then you get a sort of comprehensive set of contribution limits, expenditure limits, public financing. In a sense, Watergate gave the campaign finance reform community everything they wanted. That's what you got in the federal election law. But it implicated First Amendment and so it went to the Supreme Court and that led to the major case of Buckley versus Vallejo. Yeah. Buckley v. Vallejo is sort of the framework with which we work within when we do campaign finance regulation reform. Any discussion, John already mentioned contributions and expenditures. That was a distinction made and then sort of solidified by Buckley. Discussions are when you give money directly to candidates and expenditures is when you spend it on your own. And that's a crucial distinction that still exists today and around which a lot of this discussion occurs. So in Buckley- When you spend it on your own for what? So the difference would be here I can go and give money to candidate Bob Smith and he can do what he wants with it or I can buy a sound truck and drive it around and spend it on my own and say hey vote for Bob Smith. And that's where the real crucial issue that first comes into play which is the relationship between money and speech. And of course a lot of people sort of like to say money is in speech and that sort of should end a lot of the pro reform people and that should end the discussion right there. But it's not exactly the case that they ruled money is speech per se. John, how would you describe the way they describe it? Yeah. It's a good argument in the sense or an effective argument to say money is speech because people you know recognize that it isn't, a dollar bill is not speech and so on. The idea in Buckley which I think is a very sound idea is that you can affect and indeed limit free speech by regulating the money spent on free speech. So if you, for example, to choose a later case, Citizens United case, if you prohibit corporations or other similarly legally established groups like unions, if you prohibit them from spending money on election campaigns, even though you have other kinds of ways for them to spend perhaps, the problem is you're going to get less speech and you have effectively limited freedom of speech and this you know you have to, the other thing we should mention about Buckley because this rapidly like everything else in life becomes a partisan and polarized issue particularly in the last five years or so, you know the Buckley court was the, still had many members left over from the war and era. It had liberals who joined in this opinion who were concerned about the effects of government because that was still at a point where liberals were thought of as free speech advocates more generally and so it's a, Buckley was a fairly rapidly written opinion and it's become a sort of foundation stone of our constitution but it was also in some ways bipartisan and by ideological. And the ACLU was one of the supporters for Buckley and they also supported the Citizens United decision which a lot of people don't realize because this is about free speech ultimately. So before we turn to these issues of money and speech and kind of the deeper questions here, can you just summarize what the Buckley court said? What was? Well the whole question is if the First Amendment is implicated, if money implicates speech and you have freedom of speech and it's so-called high value speech, it's political speech then the question becomes you know all of those Watergate era reforms do they violate that? That was the Buckley question. And what sort of reforms were these? Well there was three basic ones that survived. The three basic ones, one of which didn't survive. There were contribution limits. You could give only so much money to candidates and then you were also limited by the total amount you could give to parties, state parties and so on. Then there were expenditure limits so there were limits on how much a candidate could spend and there were, although it wasn't touched on by Buckley, sort of limits on expenditure by other groups. And then finally there was a provision for public financing of presidential campaigns which is that and it's a very interesting thing. I mean they set up a mechanism whereby people could dedicate part of their taxes to a presidential public financing fund that was fairly controversial at the time. So you had these three questions, were contribution limits legal, constitutional or expenditure limits and was public financing and there was other sets of other issues but those were the three big ones I think. And the answers were expenditure limits were unconstitutional because they had a direct relationship on limiting the amount of speech. Public financing was constitutional because it didn't limit speech. It had the effect, the court said, of increasing speech. And contribution limits were legal because they sort of implicated a partial speech interest that is they were kind of political speech and kind of not because it was this indirect relationship that you give to somebody else to do the speech. And the other thing was it was just a trade-off argument basically. This could in trying to prevent corruption and corruption is the theme throughout this whole 50 to 60 year period before Buckley. To limit corruption you could limit the amount of contribution. So the corruption then becomes the sole reason to basically limit contributions or and also other kinds of regulations. The other thing that happens is Buckley the court says explicitly that equality of influence or equality of contributions or whatever cannot be a justified reason, a ground for limiting or regulating campaign finance. So from the start equality is off the board as a major value. And that's very important so basically we're talking about if you want to buy a politician in this way that would be corrupting in a traditional sense what we call quid pro quo corruption. I will give you a contribution and you vote this way in this oil case or oil law or whatever. Then that would most likely go through the candidate. So that's why that was limited of how much an individual person could give. And then if you wanted to speak on your own though, like I said, whether it's buy a audio truck and drive it around, buy your own ad for your own issues and just speak about those. Clearly, if a government were trying to curtail speech and John mentioned this, there was just a reason why money is so important here. A really good way of doing that would be to limit just money and say, oh, we're not limiting speech. We're going to take away your money. And one of Scalia's dissent in a later campaign finance case, he said the specialization of a modern economy where there are bookbinders and printers and publishers and people who do different things. If you're trying to prevent speech, it gives an opportunity to people who are bent on preventing speech because they could just make books illegal or they could make printing presses cost thousands and thousands of dollars and say, oh, we're not regulating speech. We're just regulating printing presses. So they can't do that. Of course, the direct object of this is to regulate speech. And that's one thing that has always upset me for the pro reform advocates where I say, if this, regulating this money didn't stop or curtail speech, you wouldn't want to do it. So let's talk about this connection between regulating speech and preventing corruption. So what we're not talking about here is outright bribery. When you say giving money to a politician or spending on a politician's behalf, you're not talking about buying him a house or handing him a $100 bill. You're talking about paying for advertising or giving him money that would then be spent by his campaign for yard signs and newspaper ads and such. And it's important on the legal side of this to realize that the other end of the deal is cut off, that is to say, if I give you money as a campaign finance contribution and you don't spend it in a normal kind of way for yard signs or mostly for television messages, say, for example, we've seen some recent cases. You spend it on a mink coat or a car or something. It's a very serious thing. And actually, people go to jail for a federal crime and you go to jail for fairly long terms when you're caught doing it. So essentially, the contribution question then becomes, the corruption question becomes, because you're not going to be spending this stuff on private goods, private luxury items. You have to spend it on politics and on your campaign. And then the issue becomes, is there an exchange relationship at some level? Do you give something back for the contribution? And then that is where most of the argument in the legal framework has gone for the last 40 or 50 years. Yeah. And the framework, when we look at the background assumptions, which is what we're going to mainly focus on today because we can talk on the policy side about all these specific issues. But the philosophy behind campaign finance reform, starting with Buckley, we start having this idea, which John pointed out, we have one type of corruption, which is buying politicians. And then we have this other one, what the Buckley Court said is not allowed. That's a quality of voice. They're saying, we're going to try and make everyone have a similar effect on the marketplace of ideas. And that's sort of where we are right now in the debate, I would say. You have the left, the more of the left saying that there should be regulation for equalizing the marketplace of ideas. That person is speaking too loud. This person is speaking too softly. So there's one view of the First Amendment where we say that the government should just stay out of the way. If that guy has a podium and a microphone, and then this guy over here doesn't have a podium and a microphone, they shouldn't get involved in trying to make sure that they both have podiums and microphones. And there's another vision of freedom of speech where you say, no, what you actually have to do is buy that guy a podium and a microphone or at least not stand in the way of something that tries to equalize how loud they're speaking. It seems to be like this notion here then of this kind of corruption and the equality seem awfully tangled together because the thing that, so we can't say everyone should be able to speak with equally loud voice and the government can regulate in order to do that because that would be this equality standard, which is out. But what we can say is you're not allowed to influence politicians by enabling them either through your own spending or by giving money to them to be louder than other people. So if you do anything that would make them louder, that's corruption. But the fact that they're louder is an issue of equality. Well, it is tangled and I noticed this earlier. I mean, early on when I was researching this, I mean, if you think of bribery or quid pro quo corruption, it's a blocked exchange that's been talked about. It's one that's not supposed to take place. But also you could conceive it as one person has gained unequal power in a certain way that's not supposed to happen. So the two get confused there, I think. I should mention there's other, as the time has gone on and the quid pro quo standard of quasi, looks like bribery has had difficulty coming up with much in the way of the evidence is not overwhelming that it goes on very much. There's some evidence it does go on in some cases, but it's not a systematic problem. Other notions have come out which actually other ideas of corruption. Access is talked about a lot. Now, one notion of that is that, again, here's a confusion with equality, which is people who, if you're a member of Congress, for example, people who give you a campaign, you're probably more likely to meet with them, maybe in your office or maybe elsewhere, or maybe you meet with their representatives, lobbyists and so on. So you're more likely to do that. So there's an inequality between, say, the average person in your district and the people, your campaign contributors. And that is thought of as, is it inequality or is it corruption? You're selling access to your, so this is a problem thought to be a problem, even if it's not, you know, it's clearly a problem if I meet with you and the first condition is you make a contribution. And then when I meet with you, I listen to you and say, yes, I will do what you want. That's clearly a problem, but what if I just meet with you and listen to you and think about, you know, cheeseburgers or something because I just want the money and I'm no way I'm going to do what you want. It's still a problem from this point of view, the reform point of view, because the access itself has been exchanged, even with nothing happening. So that turns up in Supreme Court appointments, excuse me, Supreme Court appointments, too, down the line, probably, but in these decisions because you have to deal with. And then, so you're meeting with your supporters. Here's the response to this. How can you tell that's corrupt, right? I mean, people who meet with voters, too. If a guy has a control over a vote block, you're going to meet with them. Right, how is saying I will give you cash, which can only be used to do these things that presumably help your chances of being elected, because otherwise it would be bribery of some sort. So I'm going to give you cash in exchange for you doing what I want. How can we distinguish that from saying, well, I and potentially my friends will vote for you or not based on whether you do what I want? I mean, is there a way to distinguish voting? Well, the difference between representation and corruption is actually not clear. It's very hard to draw a conceptual. I mean, you can talk to congressmen. I mean, most of them will say this, that, you know, they're servants of the people. They respond to what they want. And some people might say, well, this is a problem. We need principled people in Congress. Or we need people who maybe will vote against their principles if they think that their constituents want them and they got enough phone calls about this issue or someone met with them about this issue. What is generally the case is that no one has an equal voice in politics on some level, right? If you know you're a representative, if you are a member of a voting bloc, you have an unequal voice compared to someone else. The bigger question is whether or not the attempt to equalize via government creates a problem that is worse than the condition of having unequal voice in government. I think that unequal voice in government on some basic level is endemic to democracy. I don't think there's any way of getting away from that. What do you mean? I think that is just what I said, that you have different people who will have the ear of representatives more than someone else. And if you took all money out of politics, whatever that would mean, if you pressed a magic button, took it all out of politics, then other people would have a more, a different voice in politics. So Oprah would have a different voice in politics, or the New York Times would have a different voice in politics than the big Republican spenders and the big unions, they would have a different equality of voice, or inequality of voice. So it's kind of a question of who should have a voice in politics and what characteristics should make you have a voice in politics, if that makes sense. And I think then also you get back into the mix that you've got this constitutional framework about once you recognize that money and speech are implicated and regulation is sort of tied up in all of that, then you've got this Congressional Make No Law about freedom of speech. And so you've got that to consider too. You're not really designing a trade-off system here that makes the best kind of view among all these values. I want to return a little bit to the corruption issue because I think it's actually one of those sort of mind-boggling things that it's fun to think about when you're on long drives and you know what I mean, think about, which the way it's put is this, if one notion you see so often is somebody voted a certain way in Congress and you go back and look at the campaign contributions and they're supported by interest that benefited from that vote. But then the question can be posed as this and it's based in some experience that people say in Congress. Did the general assumption is that the money given in contributions or whatever, it could be given independently too. Cause the vote, that is, the member received the money and said, I'll give you this vote implicitly, there's nothing explicit about it, so the money caused the vote. But the status and meaning of the money of the contribution is at issue because you can ask the question also, is it also possible that the vote caused the money? Which in the sense you look around and you see that this guy, you know, has a track record or I'm trying to think of a specific example, if you think about giving to presidential candidates, right? And you look around and say, well you know, I think Rand Paul's gonna have a pretty prudent foreign policy, so I'll give money to him. Well, that's the vote or the expectation about the vote or his statements and actions in Congress have caused your contribution. So how do you know which is which in these kinds of situations? And that's the possibility or problem of trying to figure out this simple corruption. And usually what happens is frankly, there's a real problem here of distortion in analysis, which is this. If I look at some Congress's vote and I don't like it, I think it's just really a stupid vote or an evil vote or a harmful vote. I can't understand how anybody on earth would ever vote that way in Congress. I'm led to the conclusion, well if that's true, maybe the only reason they would have voted that way is because bad reasons, they were given money to vote that way. So your own, for many people, people's prior beliefs about what makes good public policy then sets the framework for concluding that a particular stand on politics is actually the outcome of a corrupt process. But it's the prior belief that informs that. Particularly when it's intensely held. These things come around usually, I don't know, your experience Trevor, but it's usually air pollution regulations or financial stuff, particularly after a financial crisis and so on. It's very hard to step back because the regulatory process and its analysis is caught up in politics, it's just a fused one. I think this is a really, really crucial point and it's one reason why the First Amendment is a Congress shall make no law type of amendment because I think that a lot of opinions on campaign finance can be explained by that. Sometimes we sit around and we wonder, why is it that other people disagree with me? And you know, I'm so right. I know, I did. I'm so right, so why is it that people disagree with me? And one of our first predilections is not to maybe think that it's maybe it's not because I'm not as convincing as I think I am or my views aren't as obvious as I think they are. So that's a sort of psychologically difficult thing to think. So your next thing is to think that some sort of influence is creating them believing in this. And I think this is pervasive in political discourse in general. There's people, so the left has this idea that absent campaign finance, corporations, yeah. So if we level the playing field, that's like so there's a big part of campaign finance reformers who sort of think that politics should be like, well, let us retire to the Paula and have a spirited discussion about the events of the day and you get five minutes and he gets five minutes and we'll see who wins. Well, it's a PBS. Yes, exactly. But so that's what they would like. And they think and you have a predilection to think that if you were given an equal playing field you would win because your ideas are so much better. And so there's an idea that the only reason that we don't have sufficient EPA controls and air pollution and all these things is not because I'm wrong, but because the corporations are outspending. And that's true on all sides. Right, the right tends to think it's to university professors and the mainstream media. And if they all shut up, therefore we would win. And I think this is- What? It's not universal? It's an interesting idea. I think these are the real dangerous impulses behind campaign finance regulation that it's in a desire to achieve substantive political results. My experience is this. I mean, I hate to, in my old age, be so pessimistic about everything, but it's, I just really don't think there's a whole lot of people out there that are committed to First Amendment ideas and freedom of speech. If it involves speech that they really find to be just kind of stupid and evil. And harmful, yeah. And harmful. If people believed it, it would be very harmful, right? That's a problem. That's part of the story. Can I ask a question about this harm because it often, it's often my experience that reading political science, you end up finding a lot of things that the political science community has decided, has, the evidence settles. And it often settles things in very counter-intuitive ways. Like economics too. And so I want to ask about something that seems very intuitive, but I just want to know if it is in fact right, which is this connection between spending on campaigns and actually improving your chances of winning. So the whole, the reason we're concerned about spending on money is because it would potentially, these guys want it because it's gonna improve their chances. We're gonna give it to them because we think it's gonna improve their chances. But does giving money to candidates or candidates spending more money actually have a significant impact on their chances of winning? This is kind of a mess actually. The study of it started out with the notion that was often made, that observation often made and can still be made, which is that if you look at incumbents, they almost always win in Congress and they almost always outspend their opponents by a lot. But the problem was, it's not always the case that that happened and so you were trying to figure out how much more of a kind of advantage or effect. They got out of additional spending because you could, I mean incumbents that are in trouble spend a lot of money but they lose. And it's very difficult to say actually. They've had a hard time unwinding all of it about the additional advantages you have. Now, a lot of it, we were just had this couple of authors who studied the 2012 election, John Cytus, this book on the 2012 election. And their conclusion was that, and I think this is a fairly common notion, as long as both sides are roughly equal, so you reach a sort of level of equality, the actual campaigns themselves, including the spending on them, doesn't have much effect on the outcome. It's circumstances and stuff that has a big effect. And we saw that too with the amounts of money spent by with Sheldon Adelson, is that his name? Yeah. And the Koch brothers and everyone else. So soon forgotten. And the union spent an unbelievable amount to combat the Michigan initiative to amend the constitution, to allow a right to work legislation. And they lost that too. It's not the case that money always buys elections. There was this interesting recent case too that in the, from you guys that are out of Colorado, I understand for part of your lives. And they had this recall fight about gun control basically. And that was odd. I mean, the other thing is counterintuitive inequality, which was that the gun control forces put a lot of emphasis on this. So they spent about $3 million defending these candidates against recall and the NRA or whatever forces had much less money to spend. And of course, the recalls went through and it's one of them narrowly, but still. There's a lot of examples of this kind of thing depending on circumstances. The other point I would make here is that has been established, I think, is that challengers don't need to spend as much money in the end in Congress on races. They need to spend enough to be able to make it a race. So the typical problem you have is connected to safe districts in general elections in Congress. So you end up with somebody's congressman spending a million, $2 million, but the problem is the other guy spends $50,000 or whatever. Which then leads you to, there's another element to all of this, which is how much people raise and how much they spend is not independent of the candidates. So if the incumbent seems weak or it seems like a bad year is coming, think about 2010 or 2006 for the Republicans. Whatever the money situation is, people tend to feel like the better candidates, candidates with experience and some attraction to the electorate, tend to feel like they might make a challenge to an incumbent candidate. So when they do that, their quality means they get more money. What's not often noted is the people who end up with $50,000 and losing by 50 points are also poor. All right, safe districts, yeah. They're in poor candidates and safe districts. It's a bad start because it's a safe district. It's not a good year. The challenge is unlikely. The best candidates are gonna stay out. So you get a weak candidate and then nobody is gonna give a weak candidate money because they're expected to lose. There's this sort of cascade of factors that mean that you end up with incumbents. But incumbents who are in trouble, incumbents who come in at 53% in the last race. The evidence is that you can raise money to make a fight with them. And that you'll get fairly decent candidates if there's any members of the party in here. Yeah, and that's pretty important too because there's a diminishing marginal gains on campaign spending. So that's the other point which is important to bring up because people may be wondering, well, why wouldn't you want to regulate campaign spending even if there's a small chance or not that pronounced chance of corruption? And the reason that I'm against it and you're against it, there are huge costs. In addition to there being a First Amendment that's pretty straightforward, there are huge costs to campaign finance regulation that a lot of people don't really talk about. And so one of them is incumbent protection. So if you think about trying to unseat an incumbent and so you have a diminishing gains on what you spend in your election, the first 500,000 to challenger spends, let's say, sort of puts them up to parity with an incumbent because you can think of an incumbent as having already spent the money. And if they decide to hold a press conference, they have name recognition, they have so many things at advantage. So the first $500,000 might get you to parity with the incumbent where you can hold a press conference and people will come and people will recognize your name. And then after that, we can spend up to maybe 1.5 million. But if you spend 50 million, it's not going to do that much for you compared to that first 500,000 and then the next 500,000, but the gains will be diminishing over time. But so one of the things that campaign finance regulation does by making it harder to raise money in a variety of different ways is it prefers incumbents. They don't have to raise as much money if you make it harder on their competition. It's kind of like a big business regulation. The incumbents are the big businesses and they get less hurt by the regulation than the small guys who are trying to compete against the big business. No, I think that's right. And Brad Smith, some years back when they were setting, I think, contribution limits in a public financing scheme or something calculated that the actual numbers were about just below the limits for both candidates. We'd be just below what a challenger needed to be successful. One thing that struck me recently though is there's sometimes there's an argument about arms control, right? Which is that, well, these people, particularly when you have an expensive Senate race where you could have $20 million spent on both sides. If you need to be even and then both sides will have a chance in an even race actually, if you both sides spent 10 million in that hypothetical Senate race, the challenger would actually probably be better off would certainly have enough money. Why don't you just have regulations that bring just like an arms control pack? We feel secure with 10% of the nuclear weapons we have. Why not bring it down to one million or whatever the number is? So it seems like a good argument without any big effects on one side or the other. The interesting thing about that argument is, so in other words, with Obama and Mitt Romney, why not instead of spending a billion each month that just like public financing to have a couple hundred million? Save money? Yeah. And there's a libertarian element here, too, which is do we really want to waste all this money on political campaigning? It's politics after all and all that. The problem is the odd thing is the costs there are really democratic costs in the sense that there's some fairly strong evidence that and not surprising evidence that the more money that's spent on campaigns, the better informed the voters are. Yeah, and people may think differently about that because going back to what we were talking about, thinking that people are duped by campaign finance spending, I saw there are people out there who think that they see, let's say they're Obama supporters and they see a Romney ad and they say, oh man, who would believe that? That's completely wrong. But they think that there are people out there who see the Romney ad and say, oh yes, I will now vote for Romney. It's like a robotic response to it. But what actually happens with campaign ads is you see it and maybe you go and research further about it and maybe you write an op-ed about it and someone writes an op-ed in response to it or a letter to the editor. Very, very few people see a campaign ad and just decide that they're going to believe it automatically, right? Well, this goes back to Aaron's question about what are the effects of money actually, right? And the idea you're right is that you spend a lot on advertising and as a result, you end up with people who are voting against their own interests. And again, this is, even at the social science level, it's not wholly implausible initially because people don't know a lot about politics and there's always been this question whether people could gain enough information. But surely, first thing is you don't want to limit spending because people will become more informed. That's the evidence. And it's also true, I think, that the likelihood, particularly now, of moving people off their partisan priors, prior beliefs. For people over 20 or 25, it's very, very hard. I mean, just from, in other words, the duping argument is not very... The duping argument has always struck me as interesting because it seems to always be about other people besides the person making the argument. So there's this, it seems like there's two types of corruption going on in this conversation. There's the corrupting of politicians where we're saying, look, we'll give you money or support you in this way if then, once you're in office, you'll vote in ways we like. But then there's also, you hear a lot of rhetoric about the corrupting of the political process and the elections themselves. The corrupting of minds. Right, so that if only we had limited the spending of these guys, then the right people would have gotten elected. And that gets to this, that's where the duping argument comes in, is there's this notion that the voters somehow, if they just, if they see a whole lot more ads for one guy then they're just going to fall in line behind that guy. And so we need to limit the number of ads. And this seems to present kind of a particular picture of the American voter as someone who is almost mindless and will just do what he or she sees on TV. It's also that sort of metaphor about inequality and equality, which is that one guy has the megaphone and so they're only hearing that. And you know, I mean today that's especially not true, I think. The other question that's implicit here, which to me is in some ways the most disparate in a way. Because I like to think that ideas matter. But I pose the question myself, is does anyone really care about the process? I mean on its surface campaign finance reform presents as a process reform, right? The American elections and what follows in policy making thereafter has some fault. It's corrupt or it's unequal or whatever. And by fixing it, reforming it, you would fix the process. Make it more fair, yeah. Yeah, you'd make it more fair and you'd have a better process. And all of this seems at this point, I haven't said anything about who wins elections or what policies you make and all that stuff. However, people seem intensely interested about outcomes. And things that happened that would have caused a conniption fit with the other party did it. And the biggest example here is Barack Obama in 2008, I think. And I should say that this point is actually bipartisan. There is a striking partisanship about campaign finance reform for against that Democrats mostly, I like to say it's in their DNA, in their activist. So, but Barack Obama is the greatest fundraiser in the history of the Republic. And he set records, but most in 2008, but also he essentially, the public financing system was in deep trouble and was dying and he simply finished it off in 2008, which normally would be a high crime and misdemeanor. Well, he said he would participate in it and then went back on it. And then polished it off for very well understood political reasons. And that- But that's okay, it's just Barack Obama, right? Yeah, there wasn't, there were some complaints to be fair. Some people focused on the process, but it wasn't very much. And as I said, this Colorado gunfight in which you had big money coming in. A lot of it from Michael Bloomberg. Michael Bloomberg, yeah. And again, that was not, has any people listening to this podcast, have you heard about that, the three million spent out there? Well, it's not really worrisome in the same way. It seems that people really are concerned about money and they're concerned about the things that are connected to it, which is a particular set of political views. And to be fair, so often, I would say with Mitch McConnell, I think over time, he fairly quickly became an actual advocate and believer in the First Amendment despite the outcomes. But for a lot of conservative Republicans and others maybe some libertarian, less likely there, I think, it's really about, you know. Well, control the unions now. Yeah, they want to control the unions. They want it to eliminate PACs at one point in the 90s and so on. It's very partisan outcomes. It's very unclear. I think it's a good way to segue into the actual substantive, we were talking about the substantive motives to influence the outcomes of political debate. You get into Citizens United, which is the rogues gallery of Supreme Court opinions now. And one way that I always sort of, very rarely do you find someone to exist who's a campaign finance reformer who attacks money spending on both sides equally. So, you had Senator Durbin recently attack Alec, the American Legislative Exchange Council in sort of an underhanded way. He sent a letter to Cato, our President John Allison respond to the Wall Street Journal asking about Alec supporting standard ground laws via money in the states. So, he thought this was sort of illegitimate that someone would be supporting a standard ground law in the states where at the same time Bloomberg has pledged to spend millions and millions of dollars to reform gun laws in the states. Now, if you were just an honest person who thought money in politics was a bad thing, you would say, you know, Bloomberg is also a problem here. And similarly speaking in the Citizens United decision, which we should have John explain what that was, but it applies to corporations and unions. And usually you just hear corporations and that always shows to me that they are only concerned about one side of the speech and not the other side of the speech. But to some extent that, I mean, psychologically makes sense because if you're concerned in all this is corruption and whether we're talking about corrupting the elections or corrupting politicians, corruption is always something that's in a bad direction, right? Like we never corrupt things into the direction that they ought to go. And so if you, like all of us think that your views are right, you know, because if you didn't think your views are right and you wouldn't hold them. So we're predisposed to believe we're right. And you think that people who... That's not very liberal. You think that people who then agree with you are also right. And so their money therefore is not, you know, spreading correct ideas is not corruption. It's fixing the system. And so it's therefore not corruption when Bloomberg spends money in favor of gun control if you think that gun control is correct. And it is corruption if you're spending money to stop gun control. It hadn't struck me before that this is sort of like the version of behavioral economics, right? And it's behavioral politics. It's sort of like the founders understood that we are not corrupt, but, you know, kind of limited and, you know, and distorted and biased in our assessment. And therefore you're not gonna get good legislation about speech that's trying to do something in the general interest. People are gonna be doing it for distorted, through distorted analysis and reasoning. So you just put it off political speech. You put off the calendar. And that strikes me as making a lot of sense. Yeah, in particular because I think people's worries about even spending advantages are probably mistaken in the sense that it matters a lot. I had a friend, a very outstanding scholar at the University of Massachusetts Amherst, Ray LaRosha, who I remember him when I first knew him and he was beginning his studies, said something like, well, you know, money just doesn't matter that much. And what he meant by that is, you know, at the end of the day, and I think you see, I've seen like sort of liberal democratic professors or professionals saying about campaign finance reform. You know, even if you put all the stuff aside, I just don't think we got that much out of it. Just a hard-boiled political point of view. And if money doesn't matter that much, then that's what you would expect. I mean, it's the economy, it's wars, it's maybe candidates, it's the skill of the operation and so on. And I think that's probably where it is. So people have these, Democrats in particular have a long-standing fear that corporate coffers, these general funds of huge businesses would be spent almost exclusively on campaigns or huge sums would come in. And so there's been some spending, but again, you're talking about, and Trevor and I made this point, it will continue to make this point. I mean, at the end of the day, it's five or six billion dollars overall. Presidential election was two billion. The economy is huge. The government itself has spent trillions of dollars and trying to, see, the problem here is one that no one talks about because it's so boring, which is, you know, a central issue is how do you fund elections? And if the government's, you know, I got tax to do it, then what are you gonna do here? And also, of course, do we want the people who get elected to be in charge of the elections? So we have the Fox Garden, then a henhouse, so to speak. Should they regulate the campaigns that they are, and the referee, I think the referee analogy of having their referees in games in which they are competing, and that should give us a lot more concern than it does. It is weird, the public opinion on campaign finance over the years hasn't changed much. It still has a positive, the idea of reform, campaign financial form, has a positive spin. And maybe that's, again, just playing into these biases of thinking that your ideas would win out if it was reformed properly. But I think it's good. So you mentioned corporation spending, and I briefly mentioned Citizens United. I think we should probably mention that. Can you talk about what that actually, what that case was about and what it actually held because there's an amazing amount of misinformation out there about what Citizens United stands for. So John, would you fill us in on that? Well, Citizens United was dealing with a case, and as it happened, federal rules that prohibited corporate spending independent on elections. Now, what I mean, this has got a 50-year legal history here, so all these things have meaning. It was a ban on spending by businesses as businesses from their general coffers, independent of campaigns. That is, you could just, the example that had been upheld by the Supreme Court in the 1980s was from Detroit or from Michigan in which, I guess, General Motors had wanted to run an ad for a house member, a house candidate, and basically the ads paid for by the corporation said this candidate will create, bunch of list of issues will create a better monetary environment or economic environment and so on. And Michigan law banned them from doing that because there was this notion that campaigns would be corrupted by big money of these kinds of institutions, right? And so Michigan had done that and in the late 80s, Supreme Court upheld it, saying that it was really, I think, what happened was the context of our discussion and otherwise was the court had the language of corruption, but they were really concerned about equality. They were concerned that these corporations have so many resources that they will just dominate our elections and you really won't have fair elections. So that was the underlying motivation, but they had to use the language of corruption so you ended up with a notion of corruption that was really inequality. So Citizens United essentially reconsidered the matter in a different context where essentially an interest group took the corporate form and the United States' legal system, a lot of political organizations and similarly situated organizations take the corporate form and they had spent money on a movie, part of which had come from corporations attacking Hillary Clinton basically. It was a, this is another whole thing about it. The quality of speech is a big issue here, but this was shocked the justices, I think. And there had been this long going fight for over a decade or more about these issues and finally it was decided in Citizens United that the Federal Congress could not do that so that their head, they could not ban that kind of speech. And the big important thing is that they reaffirmed that equality is not at play here and this is what made people so upset. And I think if we revisit the Austin case, the Michigan Chamber of Commerce case, which is the one John mentioned, what you see in that when you see the justices conflating corruption with equality, which is what happens all the time now. Every time you hear people talk about campaign finance, they talk about corrupting our political system, but they don't usually mean buying politicians. They usually mean speaking too loudly or corrupting into minds of people or whatever. Or having too much power. Having too much influence, but of course they don't include Oprah or the New York Times. They just include some people who have too much power, which is one reason why this is so wrong. And in that case, the Austin versus Michigan Chamber of Commerce case, which Citizens United overruled. Contra, which is only 20 years old at the time, Contra to Barack Obama saying that it was a century, a precedent that they overruled. Thurgood Marshall in the Austin case said that this law, the law that prohibited corporations in Michigan, aims at a different type of corruption. The corruption that occurs when an entity that gains from the business world, spends it in the political world. And they spin it in a way that is not co-equal with the amount of support that those ideas have in society. And that was the one that always made me scratch my head because it sort of said that government is in charge of figuring out how many people believe something in society and then making sure that people aren't spending too much disproportionately with the steady state of opinions. So this would prohibit people from seeking to change minds? Basically, yeah. It's like, it's that there's something. I can only talk if people already agree with you. Exactly. Or you can only talk as loud as the people who agree with you. And that's why it's hard to come up with any coherent principle that would not be just complete politics to make that into a test of any sort. And that's what the court had to deal with was that rationale in Citizens United. They did not hold the corporations or people. Corporations have been legal persons for years and years and it's a good thing too because if they weren't, the Fourth Amendment wouldn't apply. They could just go in and take all your medical records. The Fifth Amendment, the Imminent Domain Clause wouldn't apply. They could just take the property of, let's say, churches, which are often corporations, just take that property. And many people supported this. This became such a huge thing for the left because the left has become so anti-corporate. I mean, that's sort of almost the driving thing. Corporations versus everyone else. But they're always surprised. I find that people who don't know a lot about the case that the ACLU supported Citizens United in that case. The Sierra Club, which is a corporation, had been cited a couple times by the Federal Election Commission for violating these laws where they're speaking within 30 or 60 days of an election. They were also in support of Citizens United. And so they just simply hold that there's nothing that allows the government to regulate the equality of speech. That turns the First Amendment from a limitation on power into an empowering object in some weird sense that we shouldn't trust politicians and people who are limited by our own biases, as John pointed out, that we shouldn't trust them to do this. We should just have a complete ban on these kind of laws. Well, it strikes me that this is for libertarianism.org, talking about Austin. It struck me that there could be an outgrowth of Michael Walters' work that we've discussed among ourselves at times. I mean, that maybe what Marshall was in some way getting at was the idea that he wanted the economic sphere was the economic sphere, and it has a certain logic to it. And then the political sphere is supposed to be separate and it's not supposed to be boundary cross. Yeah, and to fulfill, Michael Walter is a book called Spheres of Justice, which has some really interesting ideas, at least in the beginning of it, about how, generally speaking, we think that we shouldn't have the guy, if the girl that I'm super into, if she goes with the guy with the nicest car, I get kind of upset because having a car shouldn't be what gets you girls. And so, similarly speaking, but that I mean like, It's exactly the same. It's an overlap of... Yeah, Walter's idea is that you can have within certain spheres or within the sphere of business or within the sphere of cool cars or whatever else, you can have inequalities. Some people can have more power or more whatever, but that inequalities in one sphere of conduct should not carry over into another sphere just because you're super powerful in sphere A doesn't mean, should not mean that you're more powerful than other people in sphere B. And I think that that's a very, very compelling and intuitively compelling argument, but you have to transfer it over to governance and say, and so that people don't always believe that in the same way. I brought up Oprah in the New York Times, but as I said earlier in this discussion, there are many unequal ways that people can influence politics and they can transfer something from one sphere to the other sphere. And so Oprah gets a lot of power, giving cars and promoting books and then has a ton of political power. And in the New York Times, it's a lot of power from good reporting and then it's editorial page has a lot of power. So unless you can, I totally think the spheres of justice idea has a lot of appeal, but you have to be able to apply it equally and coherently and with principle or don't apply it at all, I would say. You know, it just struck me as you were speaking another issue here too about talking about reformers and the left. I mean, I think they probably, of course with them growing inequality is always a big issue and it's one of their central arguments these days. But one of the odd things about campaign finance regulation is if you think about it, if you compare the period in America, the growing inequality they cite is also during the period of campaign finance regulation. So the golden age they look back to was an age when there was formal, like the 60s and 50s, was the golden age of more equality was also an age when there was very little regulation. There was, and even the regulations that existed like disclosure were pretty much ignored. And so everything, it's true that lots of different things have changed over those two. Eras, but it doesn't strike me that it's obvious that regulation is going to help you with those issues. I think that brings up a good point about, you know, we've used the Eugene McCarthy story. We, I mean, John and I talking about campaign finance stuff, but we use it all the time and it might be getting tired. People forget who we are. So the Eugene McCarthy story is a story about the 1968 presidential election where Lyndon Johnson is fighting a very unpopular war in Vietnam and the mainstream Democrats are generally supporting that. Eugene McCarthy is a quite left senator or is it a congressman? He was a senator. He was an odd left guy. I mean, as we think of, we've all become, I guess, more coherent in the times, but McCarthy had, you know, these odd things about him. He was from the Northeast of Ouyangke. He was kind of like, I mean, maybe like Denis Kucinich. He was very anti-war. So he decided to challenge a sitting Democrat president for the nomination. I mean, the analogy here, that usually doesn't happen. No one challenged Barack Obama for the nomination. And so he decided to challenge him and he got, he had about $600,000 campaign donations because he had different ideas. He wanted to rock the boat and he had different ideas and therefore he didn't, he couldn't get a very wide set of like small contributions and this was before a contribution limit. He could just get six people who really supported him. So he gets this good amount of money to go to the primary New Hampshire, get a bunch of hippies to get clean for Jean. And then- So they got clean for Jean? Yeah, they got clean for Jean. They cut their hair and they went door to door and he didn't win the New Hampshire primary, but he came really close, close enough to make Lyndon Johnson withdraw from the election. So the other thing about this is that contribution limits and other types of reform, independent expenditure regulations and all these different types of laws, they tend to make political opinion less diverse. They water down political discourse in sort of a basic way. Everyone sort of sits in the bell curve. And so going back to your point about, back when there was their golden age of less inequality generally in society was also no campaign finance regulation. More and more people are moving to the middle in political ideas. They say, oh, the Democrats or Republicans are the same. There could be a campaign finance reason for that because if someone wants to rock the boat, they can't get someone to give them a ton of money to come up with a new idea. Well, until citizens are united. Until citizens are united, yeah. Yeah, and you now, you know, I mean, we do now live in a period of no contribution. Yeah, and I make the analogy of, you know, if we all got together and decided we were gonna have a national album, like we're gonna choose a national CD album. And everyone could just buy one. And so whoever sold the most at the end would be able to win the national album. Well, everyone would start, the bands that were competing would run to the middle and they'd make the most insipid album of, you know, water down, you know, just pop stuff because no one could support a band more because everyone could just buy one. And it's similar in politics, so. Yeah, that's a good point. So I think the takeaway from all of this, at least the big one is campaign finance has a ton of issues and they're all much more complicated and subtle than a lot of the argument about them. Yeah, I'd say don't believe the hype. We've been around and around this. It's not just people of bad will cause problems. There's real issues and you gotta be willing to trade off free speech. If you wanna do that and you wanna have equality, you know, I would challenge you just to face what you are doing. It's not, you're actually doing something that runs counter to the regime and the Constitution. You may wanna do it. I admire Jeff Stone as a couple of all professors that says, yeah, you know, speech implicates money, but we need more equality and we need to make that trade off, okay? Don't be clear about it, yeah. Yeah, but there's a philosophical underpinning as the whole thing, freedom versus equality, regulating the marketplace for fairness and then also these biases. Another thing, you know, some of the background motives about why we might wanna regulate campaign finance. And just one thing we should add for Trevor and I, which is if you wanna do that, if you wanna be Jeff Stone, you better you should actually put something in the Constitution or clarify the 14th Amendment so that it does apply and we would want that step. But I think just when you're thinking about it at home, you should, you know, do that, but don't believe the hype. Things really are. And serious people of both parties and all ideologies who have looked at this, it's very complicated. It's a populist issue that is not well-served by populists. Pass the ball back and forth between populists and yeah, not well-served. Thank you for listening to Free Thoughts. If you have any questions or comments, you can find me on Twitter at arossp, that's A-R-O-S-S-P. And me on Twitter at TC Burris, B-U-R-R-U-S. To learn more about the issues we discussed today or about the theory and history of liberty, you can find us on the web at www.libertarianism.org.