Bill Moyers: Citizens United — The Sequel

By Diane Sweet — October 12, 2013

While much of the government continued in shutdown mode this week, the Supreme Court was back in business starting off its new term with a controversial campaign finance case. This week, the court heard arguments in McCutcheon v. Federal Election Commission, a case that could have a huge impact on the way money influences our democracy.

McCutcheon challenges aggregate caps on how much individual donors can give to candidates and political parties. The current overall cap stands at $123,200 per donor for a two-year election cycle, but McCutcheon could raise that amount to more than $3.5 million.

On Moyers & Company, Bill talks to Yale Law School election and constitutional law professor Heather Gerken who warns that McCutcheon has the potential to kill campaign finance reform, already reeling from the Citizens United decision that gave corporations, unions and the wealthy the opportunity to pour vast and often anonymous amounts of cash into political campaigns.

Gerken tells Bill that if McCutcheon prevails, a small group of wealthy donors will have an immense influence on elections and government policy. “It’s not just a seat at the table on election day. It’s a seat at the table for the next four to six years when they’re governing,” Gerken says.

Moyer also speaks with historian Joyce Appleby whose new book, Shores of Knowledge, provides a captivating account of curiosity and how it has shaped our modern world.

From the discussion:

BILL MOYERS: What's at issue in this case?

HEATHER GERKEN: As you know when you give in a campaign, you can only give a certain amount of money to a candidate. But there's also a limit that most people never notice because most people don't have nearly enough money to reach it, but there are limits on how much you can spend in the aggregate. So you can spend about $123,000 on federal elections all told.

BILL MOYERS: In one election cycle--

HEATHER GERKEN: In one election cycle.

BILL MOYERS: --in one two year period--

HEATHER GERKEN: Exactly. But what's being argued in this case is that you should be able to spend as much as you want, that is you can have limits on the amount you can give to each candidate and each party committee and each party, but you can give to as many candidates as you want and as many party committees as you want and as many PACs as you want. All of those things are capped right now, which would mean just in real terms that instead of about $123,000 being the cap, one donor could give $3.5 million to political parties and candidates

BILL MOYERS: There was this moment during the oral arguments when Justice Scalia told Solicitor General Verrilli that compared with the billions of dollars already spent on federal campaigns by parties, candidates, political action committees and super PACs, he said, I don't think $3.5 million is a heck of a lot of money. Does this surprise you to hear that from a Supreme Court justice?

HEATHER GERKEN: Well, I will say two things. One is $3.5 million is a lot of money, I think, to just about anyone except for the, you know, the Adelsons of the world. But the other thing that I will just say, and this was made by another commentator, talk about chutzpah. So the reason that these people are spending millions and millions and millions of dollars in the last election is Justice Scalia. You know, they're the ones who allowed this to happen in the first place. And so--

BILL MOYERS: Scalia and the majority on the court?

HEATHER GERKEN: Scalia and the majority on the court. So for them to say, well, we've got a giant problem on one side, so the solution is to create a giant problem on the other side, well, they are the reason for the giant problem that they were describing--

BILL MOYERS: Citizens United?

HEATHER GERKEN: --Citizens United.

BILL MOYERS: In response to Scalia, Solicitor General Verrilli said, "I don't think that's the right way to look at it, Your Honor. If you think that a party's got to get $1.5 billion together … that's about 450 people you need to round up, less than 500 people," the solicitor general said, "can fund the whole shooting match."

HEATHER GERKEN: It's a remarkable statement. Although I'll just tell you my worry is bigger than General Verrilli's worry. So he worries that 400 people will fund the whole shooting match. My worry is that once 400 people realize they can put funding in like that, there'll be 800 of them or maybe 1,200 of them, that more money will move into the system because people will realize just how far their money's going to go, just how much influence their money can buy.

HEATHER GERKEN: That takes us to a world where money plays an even more powerful role in politics than it does now. And I'll just say, I mean, I believe in the first amendment. But it's hard to imagine money playing a bigger role than it did in 2012. And yet it looks like we're heading in that direction in 2016.

BILL MOYERS: But can it be worse than it is now?

HEATHER GERKEN: You know, I actually was one of the people who thought it couldn't. But it never occurred to me that the Supreme Court would be striking down contribution limits. So we actually could see something that's much worse than we have now.

This is a deregulatory court. And in Citizens United made it very difficult to regulate what was called independent spending, that's the money that you spend on your own in favor of your candidates. And right now it's the Wild West in independent spending. You can spend basically as much as you want often without anyone even knowing that you're spending the money.

So what we're looking at now on the contribution side, which is the amount of money you give directly to the candidate for him or her to spend as much as she, in the way she wants, that looks like it's moving into the world of the Wild West as well.