Elections After Citizens United

Brooke: From WNYC in New York, this is On the Media. I'm Brooke Gladstone.

Bob: And I'm Bob Garfield.

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And the midterm election's right around the corner as you well know. An up-close look...

This election season is on pace to break the record for most expensive mid-terms ever. At nearly four billion dollars...

BOB: In the wake of the Supreme Court's 2010 Citizens United ruling, a new report paints a decidedly bleak picture of politics. The court determined that corporations and unions have the right to express their First Amendment rights with politically directed cash. The only limit placed on these groups is that they do not collude with their favored candidates' campaigns. But the Brennan Center for Justice found, that even that sole, puny caveat, has been pervasively and systematically ignored by candidates and big spenders at all levels of elected government. Consider former Utah Attorney General John Swallow, who used secretive outside interest groups to mask generous campaign donations from pay-day loan companies. Which he subsequently favored with very light regulation. Here's Chisun Lee, co-author of the Brennan Center report.

LEE: The New York Times' coverage called it the "nightmare scenario" of campaign finance corruption. In Utah, the campaign finance laws are so lax that even with a multi-million dollar investigation, it's not clear that the law was violated. And so there has been some movement in Utah to reform their campaign finance laws.

BOB: Now, if those allegations are true, it's something close to a direct form of bribery. But there are subtler ways for a campaign to influence a supposedly independent campaign, and vice versa. For example you have the current race in Florida, with Florida governor Rick Scott trying to raise money for an outside group called Let's Get to Work. And low and behold, Let's Get to Work, is also his campaign slogan. Can you imagine the coincidence?

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Scott: I spend every day worrying about what my grandson will think of me. I'm focused on the Florida we leave for his generation. That means more jobs, and more opportunity. We've made a good start, but there's a lot more work to do. What do you say?

Scott's grandson: Let's get to work grandpa!

Scott: That's my line. Let's get to work.

Announcer: Sponsored by Let's Get to Work.

LEE: What's going on in Florida is both candidates, this is Rick Scott and Charlie Crist, are appearing in these outside television ads. They appear to the viewer as campaign advertisements. They're not, but by working with outside groups, the limitations of the contribution caps are avoided, and this is in a state where direct campaign contributions are capped at $3,000. You know, 96% of the television ad spending on this race, is coming from outside groups. That is extraordinary.

BOB: What is amazing to me, is the impunity with which everyone seems to be behaving. It's as if they're not even trying to pretend that there's any separation between campaigns and super PACs or outside donors. They use the same slogans, sometimes the same actual images, like Senate Minority leader Mitch McConnell, in his re-election race for the Senate, and this is a clip from The Daily Show having its way with McConnell over a campaign message which looks suspiciously like b-roll there for the harvesting by independent outsiders.

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Stewart: It's got everything. It's got McConnell's running a board meeting, he's walking around he's talking he's frisking some of his younger voters... There are no words. Seriously. The entire ad, it's two and half minutes, there's no words! It's just Mitch McConnell and that music. I guess what he's doing is he's making that available to Super PACs that he cannot legally coordinate with, so I guess then they can then take pieces of it and use it in their pro-McConnell ads. Or, he just put it out there so we could have fun with it.

BOB: As I say, scarcely even attempting to camouflage what they're up to. How can that be?

LEE: Well, across the country there's a wide range of approaches to regulating campaign finance. So, you mentioned when we're talking about the Florida governor's race this year, that candidates and outside spenders seem to be coordinating with impunity. Well, in Florida, much of what is happening right now is perfectly legal. And then you will have Minnesota, Vermont, California, Connecticut to some extent, that have actually strengthened their rules after witnessing some of what is going on to make it tougher to coordinate. Another reform effort that Philadelphia just approved is that b-roll issue. The republication of campaign materials. Philadelphia just said, ads that use that kind of material, produced by campaigns, are going to be treated as campaign contributions. They're not going to be treated as actually independent ads.

BOB: You and your co-authors made an observation in the report that struck me and that was that it's really not all about federal elections and the Koch brothers, but local and state elections where relatively obscure people are dominating the political conversation. One example is the state of North Carolina, can you tell me about Art Pope?

LEE: Sure, he's the head of a discount stores conglomerate. And has given a great deal of money to state elections. In the 2000s, and within that time, there was a shift to a one-party dominated state.

BOB: And when the party supported came to power, he had more than their ear, he had office space.

LEE: That's right. The governor at the time appointed Art Pope to be his budget director. And many people have explained this as well Art Pope ran a successful company, he holds a law degree from Duke University. At the same time, others raised questions about the connection between his tremendously generous political giving, that transformed the state's political makeup, and his step up to an incredibly powerful position, where under his watch, there were certain tax cuts and cuts to social services, that became controversial enough that even some of the conservative elected officials he had supported expressed some concern.

BOB: We had Heather Gherkin on last week and she made an interesting observation, that the hydraulics of campaign finance are such that whatever rules you make, the money will find a place to penetrate whatever barriers law and regulation tried to erect.

LEE: Of course, huge spending has long been the way of American politics. But, when we looked at how different states are enforcing very different kinds of laws, and you look at jurisdictions like California for instance that has been very active in its enforcement, and also in its advising of candidates and outside groups. Connecticut is another state that's been very active in speaking to the public about the rules and in enforcing against infractions. This sends a message. I think to a meaningful extent, setting the culture of what is acceptable and the norm in political spending, does matter. For instance you saw after Citizens United, outside spending shot up where they had restrictions similar to the federal restrictions that were struck down. But you also saw spending shoot up in states that already permitted independent spending to be unlimited by corporations and unions. And, some experts have said that has to do with the culture. That having an outside group engage in huge amounts of spending sort of didn't seem as unseemly because everyone else was doing it.

BOB: Chisun thank  you very much.

LEE: Thank you very much.

BOB: Chisun Lee is a professor of law at the New York University School of Law, and co-author of the Brennan Center report.