Jeffrey Toobin and Ryan Lizza on the end of campaign-finance laws.

Summary

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The Political Scene | The New Yorker

Episode: Jeffrey Toobin and Ryan Lizza on the End of Campaign-Finance Laws
Date: April 11, 2014
Host: Amelia Lester (for Dorothy Wickenden)
Guests: Jeffrey Toobin, Ryan Lizza

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Episode Overview

This episode delves into the impact and implications of the Supreme Court’s McCutcheon v. Federal Election Commission (FEC) decision, a ruling that further dismantles key campaign-finance regulations in the U.S. Host Amelia Lester is joined by New Yorker staff writers Jeffrey Toobin and Ryan Lizza to discuss the legal reasoning behind the ruling, the ideological divide on the Supreme Court, and what this all means for American politics and future elections.

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Key Discussion Points and Insights

1. The McCutcheon Ruling Explained

[02:11] Jeffrey Toobin:

• The Supreme Court left individual candidate contribution limits intact ($5,200 per candidate), but struck down the aggregate cap across all federal candidates and parties (formerly around $123,000 per cycle).
• Now, “you can give $5,200 to as many candidates as you like as a result of this decision.”
• The ruling’s broader significance is the Court's endorsement of the idea that “money is speech,” thus placing many campaign finance limits in jeopardy.

2. The Supreme Court’s Reasoning and the Narrow Definition of Corruption

[03:20] Jeffrey Toobin:

• Chief Justice Roberts justified the ruling by asserting the only permissible limit on campaign contributions is to prevent “quid pro quo corruption.”
• “But that definition is so narrow that it effectively hamstrings Congress and any other legislature from limiting campaign contributions because it’s only permissible if you’re stopping, effectively, bribery.”

3. Will This Strengthen the Political Parties?

[04:01] Ryan Lizza:

• The change might slightly benefit party committees as wealthy donors can now contribute more, but it won’t address concerns over weak parties:
  • “If you thought that the problem with politics right now is that the parties aren’t strong enough and you were looking for fixes, this decision is not the way to do that.”

4. Ideological Divide and Hypocrisy in Campaign Finance

[04:29] Ryan Lizza:

• Both parties have contributed to the erosion of campaign finance regulation, notably Barack Obama opting out of public financing in 2008.
• Lizza underscores a profound ideological split between conservatives (who do not see the campaign finance system as corrupt) and liberals (who see it as inherently corrupted by money).

5. The Decline of Campaign-Finance Regulation

[05:09] Jeffrey Toobin:

• Toobin sees the current trajectory as a “law of the jungle” scenario:
  • “We are really heading towards the law of the jungle, towards basically almost no rules when it comes to giving money to campaigns.”
• He notes an important shift: previously, campaign finance laws were seen as constitutional, now the Supreme Court implies Congress largely can't regulate this area.

6. What Remedies Are Left?

[06:01] Ryan Lizza:

• Lizza asks if campaign-finance reformers now have only the constitutional amendment option left.
  [06:08] Jeffrey Toobin:
• Toobin lists two possible remedies: a nearly impossible constitutional amendment or appointment of new justices to the Supreme Court to change the five-to-four balance that produced these rulings.

7. John Roberts’s Legacy in Context

[07:08] Jeffrey Toobin:

• Chief justices often have a defining “project”; for Roberts, it’s deregulating campaign finance in the name of the First Amendment:
  • “This is going to be this deregulation of American politics… you just simply can’t regulate giving money in the way you can’t regulate speech.”
  • “There’s an amazing line in the McCutcheon decision … where Roberts says the whole purpose of the First Amendment is to encourage political discussion like these campaign contributions. … He’s not being shy about it.”

8. The Liberal Dissent

[08:32] Ryan Lizza & [08:36] Jeffrey Toobin:

• The main opposition comes from Justice Stephen Breyer, joined by the other Democratic appointees. Elena Kagan has also authored strong dissents on related cases.

9. Who Wins? The Electoral Impact and “Oligarchy”

[09:03] Amelia Lester & [09:15] Ryan Lizza:

• Although the popular view is that this benefits Republicans, Democrats have adapted effectively, as shown in the 2012 elections.
• Ryan Lizza notes, “Democrats very enthusiastically embraced the new world of super PACs that Citizens United unleashed.”
• Toobin: “The truism that Republicans have more money is basically true,” but both sides are using these new rules aggressively.
• The influence of mega-donors like Sheldon Adelson and the Koch brothers is noted, with the word “oligarchy” entering American political discourse.

10. Donors and New Fundraising Mechanisms

[12:28] Ryan Lizza:

• Predicts the rise of “super JFCs (Joint Fundraising Committees),” which will allow even more centralized pooling of donor money, essentially supercharging the ability of wealthy individuals to distribute money widely.

11. Campaign Funding in Practice

[13:03] Jeffrey Toobin:

• Both parties will pursue an “all of the above strategy,” maximizing both direct fundraising and super PAC activity.
• Toobin points out, “money is not the only factor that determines the outcome of these elections, but I think it is very safe to say it’s better to have more money on your side than less.”

12. Fundraising Culture Shift for Donors

[13:49] Ryan Lizza:

• In the past, donors could claim, “I’ve hit the limit.” Now, “the fundraisers are now gonna be calling you saying, guess what? ... We want you to donate to every one of our candidates.”
  [14:19] Jeffrey Toobin:
• Jokes: “Change your phone number.”
  [14:21] Ryan Lizza:
• Jokes: “Exactly. So if you didn’t feel sorry for the super wealthy donors, you should now.”

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Notable Quotes and Memorable Moments

• Jeffrey Toobin [02:11]:
  “The greater significance, I think, is that this court is now really committed to the idea that money is speech, and the giving of money to a campaign is a First Amendment protected activity, like giving a speech, writing a book.”
• Jeffrey Toobin [05:09]:
  “I think the idea that you can somehow expunge the influence of money in political campaigns is a fantasy and will never happen. But there are degrees of bad. And we are really heading towards the law of the jungle.”
• Jeffrey Toobin [07:08]:
  “I think John Roberts, his legacy, at least the way it’s looking now ... is going to be this deregulation of American politics, this idea that you just simply can’t regulate giving money in the way that you can’t regulate speech.”
• Jeffrey Toobin [07:53]:
  “There’s an amazing line in the McCutcheon decision … Roberts says the whole purpose of the First Amendment is to encourage political discussion like these campaign contributions. Now, that’s an enthusiastic embrace of this theory.”
• Ryan Lizza [09:40]:
  “Democrats, I think, will criticize, will propose alternatives and constitutional amendments … but at the same time they’re going to take advantage of the new rules to the greatest extent they can.”
• Ryan Lizza [13:49]:
  “If you’re a wealthy donor who really liked having that excuse, you know, watch out, because the fundraisers are now gonna be calling you saying, guess what? ... We want you to donate to every one of our candidates.”

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Timestamps for Key Segments

• [02:11] – What McCutcheon v. FEC decided
• [03:20] – Chief Justice Roberts’s rationale
• [04:01] – Does the ruling empower party committees?
• [05:09] – The fantasy of removing money from politics
• [06:01] – Constitutional amendment as reform?
• [07:08] – John Roberts’s “project” as Chief Justice
• [09:03] – Who wins? Impact on parties and donors
• [12:28] – Super JFCs and new fundraising tools
• [13:03] – All-of-the-above fundraising strategies
• [13:49] – The new world for big donors

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Summary

This episode offers a clear-eyed, candid analysis of how the Supreme Court’s McCutcheon ruling fundamentally changes the landscape of American campaign finance. With detailed legal insight and political context, Toobin and Lizza discuss how deregulation is now the prevailing judicial philosophy, what it means for both parties, and why dramatic change is likely only if the Supreme Court’s ideological balance shifts. The episode is punctuated by memorable quotes and sharp observations about oligarchy, the evolving culture of big donors, and the stark ideological rift over the meaning and limits of money in politics.

Transcript

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[Amelia Lester]

This is the Political Scene, a weekly conversation with New Yorker writers and editors about politics. It's Thursday, April 10th. I'm Amelia Lester in this week for Dorothy Wickenden. Last week a Supreme Court decision freed up big donors to put even more money into Democrats like Senator Al Franken say the conservative majority on the court is systematically unraveling the nation's campaign finance laws.

[Unidentified New Yorker Writer]

I'm sure that this is a cause for celebration for some the super wealthy and well funded corporate interests because after all, these rulings give them more influence, more access and more power. As if they need it.

[Amelia Lester]

Franken spoke last week on the floor of the Senate. Here to talk about McCutcheon versus the federal election Commission and its effects going forward. I'm joined by Jeffrey Toobin and Ryan Lizza. Jeff, tell us what the McCutcheon ruling decided last week and how significant you think it is.

[Jeffrey Toobin]

Well, in simple terms, they said that at least for the time being, the rule that you can only contribute $5,200 to one congressional candidate is intact. But there used to be a rule that said you can only give a total of about $123,000 to, to all congressional candidates and party committees in a two year cycle. And that's the rule that they ended. So you can give $5,200 to as many candidates as you like as a result of this decision. That's significant in and of itself. But the greater significance, I think, is that this court is now really committed to the idea that money is speech, and the giving of money to a campaign is a first amendment protected activity, like giving a speech, writing a book. So any kind of rules limiting campaign contributions, I think, are now in real jeopardy.

[Amelia Lester]

What did Chief Justice John Roberts have to say in his decision about the issue of corruption and whether or not this would lead to that?

[Jeffrey Toobin]

Chief Justice Roberts said the only justification for limiting campaign contributions is to stop what he calls quid pro quo corruption. In other words, here's a campaign contribution, build a highway on my property. But that definition is so narrow that it effectively hamstrings Congress and any other legislature from limiting campaign contributions because it's only permissible if you're stopping, effectively, bribery.

[Amelia Lester]

Ryan right after the McCutcheon decision, commentators were saying that it would strengthen the national parties. Do you see it that way?

[Ryan Lizza]

I mean, maybe a little bit, because some of the money has been flowing to the outside groups. And now since a single rich person can give to more candidates and party committees, a little bit more money from a single wealthy person will flow to those party committees. I suppose that's possible, but I mean, if you thought that the problem with politics right now is that the parties aren't strong enough and you were looking for fixes, this decision is not the way to do that. I mean, I agree with Jeff in the narrowness of what Roberts believes is political corruption. I mean, he really, he simply does not see the current campaign finance system as in any way inherently corrupt. And that's just a major ideological difference between the conservatives on the court and a lot of the way that liberals view the current system. And, you know, can I just. A little bit of history here. I can't help when we get into these discussions, but remind people that the Democrats and especially Barack Obama are not pure on this issue of campaign finance. Remember, it was Barack Obama who essentially destroyed the public financing system at the presidential level in 2008 by being the first person to opt out of that system.

[Jeffrey Toobin]

Just to expand on that point, I think the idea that you can somehow expunge the influence of money in political campaigns is a fantasy and will never happen. But there are degrees of bad. And we are really heading towards the law of the jungle, towards basically almost no rules when it comes to giving money to campaigns. And it was really that law, the jungle, that led Theodore Roosevelt in the turn of the last century to begin the first campaign finance rules. But in those days, no one said the Constitution forbid it. Here you now have a situation where even if you had a Congress that was inclined to pass campaign finance laws, you have a Supreme Court that says they can't do it anyway.

[Ryan Lizza]

So the only remedy here for the sort of campaign finance reform crowd is a constitutional amendment. I mean, is that what we're left with now?

[Jeffrey Toobin]

Well, I would say there are two. One is the constitutional amendment route. And Al Franken, Sherrod Brown have been pushing a sort of overturning Citizens United constitutional amendment. It's so hard to amend the Constitution. I mean, that's almost an immediate non starter. The real opportunity is a change in membership of the Supreme Court. These are a series of five to four decisions. If you had a Democratic president appointing Supreme Court justices, I think you'd see these opinions cut back on and eventually probably overturned. But that's a long term project which requires both a Democratic president and conservatives leaving the Supreme Court, neither of which is on the immediate horizon. So I think, I think constitutional amendment and new membership on the Supreme Court are the options.

[Amelia Lester]

And Jeff, you've actually written about the fact that you think that Chief Justice John Roberts really sees this as his cause in office. Right. This is something that he has been pursuing for some time now.

[Jeffrey Toobin]

You know, every Chief justice has a project that he is very much associated with, whether it was Earl Warren in desegregation or Warren Berger in giving the police more rights. William Rehnquist believed in states rights. But I think John Roberts, his legacy, at least the way it's looking now, he's likely to be Chief justice for many more years. Is, is going to be this deregulation of American politics, this idea that you just simply can't regulate giving money in the way that you can't regulate speech. And I think the fact that he wrote this opinion, he could have assigned it to another justice, suggests that this is something he really cares about and wants to be associated with because he.

[Amelia Lester]

Sees it as a First Amendment issue.

[Jeffrey Toobin]

Right, right. And you know, and I think obviously my hostility to the opinion is coming through here, but these opinions are not being written as if. Well, you know, we're sorry we have to do this, but the Constitution requires it. It is. This is what the First Amendment is about. There's an amazing line in the McCutcheon decision, which is the recent decision where Roberts says the whole purpose of the First Amendment is to encourage political discussion like these campaign contributions. Now, that's an enthusiastic embrace of this theory. You can argue about whether it's right or it's wrong, but he's not being shy about it. He's not being apologetic.

[Ryan Lizza]

And Jeff, who is his equal on the other side of this debate in.

[Jeffrey Toobin]

These series of opinions, it's really been Stephen Breyer and, you know, the four Democratic appointees, Ruth Ginsburg, Sonia Sotomayor, Elena Kagan and Breyer have been completely united on this issue. But Breyer has written most extensively. He has a very good dissent in the McCutcheon case. Elena Kagan wrote a very powerful dissent in an Arizona, Arizona case that wasn't as big a deal as this, but also raised a lot of the same issues. You know, they just don't have the vote.

[Amelia Lester]

Ryan, we've touched on this a little bit, but who do you think wins here? I mean, it's generally assumed that wealthier donors tend to favor Republicans, but that's not always the case. Right. How do you think the Democrats are going to fare with these new rules?

[Ryan Lizza]

Yeah, Remember what happened with Obama and Citizens United? He had that big dramatic moment at his State of the Union address right after the Citizens United decision, and he publicly shamed Roberts and the conservatives on the court for that decision.

[Jeffrey Toobin]

With all due deference to separation of powers, last week, the Supreme Court reversed a century of law that I believe.

[Unidentified New Yorker Writer]

Will open the floodgates for special interests.

[Ryan Lizza]

I always think of that as one of the more dramatic moments of his presidency. You don't really see a president at a State of the Union attack the Supreme Court who's sitting right in front of him. But the White House, of course, as he approached his reelection campaign, they realized, as any party that criticizes these rules does, they realize that they had to play by these rules if they wanted to win. And Democrats very enthusiastically embraced the new world of super PACs that Citizens United unleashed. And the Democrats, I think, will criticize, will propose alternatives and constitutional amendments and talk about ways to bring back a more sane campaign finance regime. But at the same time, they're going to take advantage of the new rules to the greatest extent they can. And I don't think it's clear who has the advantage after this opinion. I don't know if. Jeff, you think it's clear one way or another, but the Democrats in the post Citizens United world did quite well in 2012, they did.

[Jeffrey Toobin]

But I do think the truism that Republicans have more money is basically true. And just to bring it back to what's in the magazine this week, Ryan has a very interesting and detailed piece about Chris Christie. And as he writes, Chris Christie was just out in Las Vegas kissing the ring of Sheldon Adelson. And the reason that Chris Christie was in Las Vegas along with other prospective presidential candidates is because Citizens United and the cases based on it allow individuals like Adelson to spend as much as they want.

[Amelia Lester]

Yeah, and we've been hearing this word oligarchy in relation to people like Sheldon Adelson and the Koch brothers increasingly work its way into our political discourse lately. Do you think that this decision really means that we're going to be hearing even more about oligarchs going forward?

[Ryan Lizza]

I think so. I mean, one way for the Democrats to take advantage of this is to try and make the big donors the issue. Right. So you see, they're putting a face on the super pacs, Adelson and the Kochs, and trying to turn those donors into the subjects of the campaigns. I think, you know, someone like Roberts would say, well, that's exactly the way it should work. As long as there's disclosure and people are reporting who these people are and what their interests are, then what's the problem, Jeff?

[Jeffrey Toobin]

Yeah, I think that's right. I do think it's very striking. Harry Reid, the Senate Democratic leader, has clearly made a project of demonizing the Koch brothers. You know, I follow him on Twitter, and basically all he tweets about are. And he's given a bunch of speeches on the Senate floor. You know, whether that issue will penetrate the consciousness of midterm voters I think is very much an open question. But clearly he's trying.

[Amelia Lester]

Ryan, what do you see happening both in the midterms and in 2016 in terms of how this is going to change the fundraising strategy of the parties?

[Ryan Lizza]

What people have written about is something called a super JFC joint fundraising committee, and it's quite technical, but there will be entities that allow big donors to pool their resources and funnel money to these JFCs that will then go to many, many candidates. And that's one thing that the campaign finance reform crowd has started to point to, the sort of equivalent of the super PAC in the post Citizens United era could be the super jfc. So get used to that term.

[Amelia Lester]

Jeff, what do you think?

[Jeffrey Toobin]

To paraphrase Barack Obama, it's an all of the above strategy. I mean, yes, more donors will give 5,200 to individual candidates. But they will also continue to fund super PACs, which, which will operate, you know, at least in theory, independently of the campaigns. You know, it is worth pointing out to offer the other side of the argument that even after Citizens United and even after all the activity on the behalf of super PACs, which were mostly but not exclusively Republican in 2012, the Democrats did pretty well and the super PACs, particularly in Senate races, did terribly. So, you know, money is not the only factor that determines the outcome of these elections, but I think it is very safe to say it's better to have more money on your side than less.

[Ryan Lizza]

One other thing on that, Emilio, one other possibility here is from the donor's perspective, one of the excuses a rich, a very wealthy donor often had was, hey, I'm all tapped out this election cycle. I've hit the limit. Now that McCutcheon is in play. There's no longer that limit. So if you're a wealthy donor who really liked having that excuse, you know, watch out, because the fundraisers are now gonna be calling you saying, guess what? There's no, that limit doesn't exist anymore. We want you to donate to every one of our candidates.

[Jeffrey Toobin]

Change your phone number.

[Ryan Lizza]

Exactly. So if you didn't feel sorry for the super wealthy donors, you should now.

[Amelia Lester]

Yeah, well, let's, let's spare a thought for the super wealthy donors.

[Ryan Lizza]

Shed a tear.

[Amelia Lester]

Thanks to both of you. Jeffrey Toobin and Ryan Lizza are staff writers. This has been the political scene from the New Yorker. I'm Emilia Laster.

[Unidentified New Yorker Podcast Host]

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[Amelia Lester]

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[Katie Drummond]

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[Ryan Lizza]

Right?

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[Amelia Lester]

From prx.