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Speaker 1: This is Bloomberg Law with June Grosso from Bloomberg Radio.

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Speaker 1: This month is the tenth anniversary of the Citizens United.

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Speaker 1: This month is the tenth anniversary of the Citizens United decision,

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Speaker 1: a decision that is as controversial today as when a

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Speaker 1: Supreme Court handed it down. The court held that corporations

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Speaker 1: have a First Amendment right to spend money independently to

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Speaker 1: support or oppose candidates for office. My guest is Professor

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Speaker 1: Rick Hassan of the University of California Irvine School of Law.

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Speaker 1: So Rick, remind us about the ruling in Citizens United.

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Speaker 1: Sure Well. Citizens United was a case that addressed the

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Speaker 1: question whether corporations, whether business corporations or nonprofit corporations, could

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Speaker 1: spend sums independently to support or oppose candidates for federal office. So,

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Speaker 1: if you're General Motors or Google and you want to

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Speaker 1: run an ad saying vote for Hillary Clinton or vote

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Speaker 1: for Donald Trump, it used to be illegal to be

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Speaker 1: able to do that under federal law, and the Supreme

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Speaker 1: Court in Citi Dinas said that such a law violates

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Speaker 1: the First Amendment. How did the Court come to the

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Speaker 1: conclusion that corporations have a First Amendment right in some

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Speaker 1: earlier cases, the Supreme Court suggested that corporations are artificial entities.

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Speaker 1: They don't have necessarily the same rights. What the Supreme Court,

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Speaker 1: and in an opinion by Justice Kennedy, said, was that

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Speaker 1: corporations are really associations of individuals. Uh. You know, there

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Speaker 1: are the the managers and the shareholders, and they might

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Speaker 1: decide to speak together, you know, kind of the court

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Speaker 1: analogize them to kind of a group of people who

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Speaker 1: might have an opinion and that they might pull their

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Speaker 1: resources together. Others, you know, in the centers, such as

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Speaker 1: Justice Stevens, rejected that and said that corporations don't have

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Speaker 1: a soul, They're not like regular people, and they should

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Speaker 1: not have exactly the same First Amendment rights as individuals.

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Speaker 1: So you right that Citizens United actually changed the way

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Speaker 1: money influences politics, but not in the way it was

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Speaker 1: expected to explain what it's done. Sure, so some people

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Speaker 1: thought that CITs and I would lead corporations to be

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Speaker 1: spending lots of money directly in elections. That has not happened,

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Speaker 1: in part because we have disclosure laws, and so we've

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Speaker 1: had some companies, like we had a situation with the

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Speaker 1: company Target that spent money supporting a candidate for office,

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Speaker 1: and then people started protesting against that. You know, you

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Speaker 1: don't want to alienate your customers, and so when corporations

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Speaker 1: spend money, they tend to put it through different organizations

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Speaker 1: like trade associations, like the Chamber of Commerce or something

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Speaker 1: like that, so that change was not really dramatic in

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Speaker 1: terms of corporate spending. Was much more dramatic were follow

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Speaker 1: on decisions of the courts and the Federal Election Commission

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Speaker 1: which led to the creation of super packs. These are

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Speaker 1: groups that pool money from individuals and corporations, unions and

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Speaker 1: spend money in elections, and it's gotten fairly dramatic in

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Speaker 1: terms of how much money individuals and others are willing

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Speaker 1: to spend. So, for example, in two thousand ten, the

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Speaker 1: largest contributors to packs and other groups were Robert and

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Speaker 1: Doylene Perry of Perry Holmes, who donated about seven and

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Speaker 1: a half million dollars to support candidates in The largest

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Speaker 1: contributors were Sheldon Addelson and his wife Miriam, who contributed

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Speaker 1: a hundred and twenty two millions, so a sixteen fold

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Speaker 1: increase in the kinds of big spending in elections, mostly

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Speaker 1: by individuals, but also by corporations and not their entities.

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Speaker 1: Now can corporations hide contributions in certain ways. So now

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Speaker 1: that we have these so called superpacks, these are political

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Speaker 1: organizations that don't contribute directly to candidates, but can take

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Speaker 1: contributions from others, what we've seen is the creation of

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Speaker 1: different kinds of entities. Corporation might create an entity like

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Speaker 1: an LLC, give money to the LLC, and that LLC

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Speaker 1: then gives money to the superpack, and so there are

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Speaker 1: ways to try to launch your identity. It's it's a

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Speaker 1: little tricky, but if you hire a good election lawyer,

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Speaker 1: it's possible to hide your identity at least for a

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Speaker 1: time when you're doing this. Plus, the some of these

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Speaker 1: associations that are involved in spending money, such as five

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Speaker 1: Months four organizations which are social welfare organizations and see

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Speaker 1: six is like the Chamber of Commerce. They can take

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Speaker 1: campaign uh money from corporations and they by law do

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Speaker 1: not have to disclose their donors. So there are ways

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Speaker 1: that corporations and others can hide their identities and still

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Speaker 1: try to influence the outcome of elections. What did Citizens

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Speaker 1: United rule about disclosures? One of the other holdings of

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Speaker 1: Citizens United, which gets much less attention, was the Supreme Court,

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Speaker 1: on an eight to one vote upheld pretty stringent disclosure

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Speaker 1: rules and said that there's not a constitutional problem with that.

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Speaker 1: The reason we don't have good disclosure today on the

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Speaker 1: federal level is not because the Supreme Court is blocked it,

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Speaker 1: but because entrepreneurs and lawyers have found ways around the

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Speaker 1: disclosure rules and Congress has not come in and fix

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Speaker 1: those rules, and now a partisan divide over whether we

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Speaker 1: should have stronger disclosure rules, and so it's a political problem.

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Speaker 1: I should point out though, that since the Supreme Court's

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Speaker 1: decisions is in United some of the newer conservative justices

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Speaker 1: might side with Justice Thomas, who was the one dissenter

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Speaker 1: in the Citizens United case who said that there is

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Speaker 1: a right to anonymous speech. He was on the opposite

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Speaker 1: side of the issue from Justice Scalia, a fellow Conservative,

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Speaker 1: who believed that there is no right in the First

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Speaker 1: Amendment to anonymous speech, at least in this context. And

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Speaker 1: so things might change at the course, but as of now,

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Speaker 1: Congress could make our disclosure laws much better if it

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Speaker 1: decided to act. I've been talking about the tenth anniversary

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Speaker 1: of the Citizens United case and how it changed politics

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Speaker 1: in America. With Professor Rick Hasson of the University of

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Speaker 1: California Irvine School of Law, I think most of us

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Speaker 1: remember that moment in two when President Barack Obama was

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Speaker 1: giving his State of the Union speech and he criticized

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Speaker 1: Citizens United saying it could theoretically permit foreign nations to

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Speaker 1: try to influence the outcome of US elections. And we

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Speaker 1: remember that Justice Alito was shaking his head. No at

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Speaker 1: that point, has that come to path. Well, it's interesting

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Speaker 1: because when Alito said it was not true. The reason

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Speaker 1: it's not true is because in the Citizens Unity opinion itself,

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Speaker 1: there's a statement saying we're not addressing the question whether

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Speaker 1: you can ban foreign spending and foreign contributions and elections.

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Speaker 1: And in fact, it was a few years later an

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Speaker 1: opinion by then Judge now Justice Kavanaugh a lower court

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Speaker 1: said that the federal ban on foreign money in elections

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Speaker 1: is constitutional, and the Supreme Court affirmed that decision without

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Speaker 1: issuing an opinion. And yet what we've seen now is

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Speaker 1: that it's become through these superpacks, it's become much easier

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Speaker 1: for foreign money to come into elections. One of the

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Speaker 1: things we saw with the to Giuliani associates Parnissan Freeman

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Speaker 1: is that they funneled three hundred thousand dollars from a

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Speaker 1: Ukrainian oligarch into a pro Trump superpack. Uh. And this

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Speaker 1: was in part possible because of our inadequate disclosure laws

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Speaker 1: and the fact that people now can give so much

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Speaker 1: money to these different entities like superpack. In addition to

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Speaker 1: partisan Freman giving money to the pro Trump superpack, we

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Speaker 1: had a recent indictment coming out of the U. S.

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Speaker 1: Attorney's Office in Los Angeles of people who gave over

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Speaker 1: three and a half million dollars to both Democrats and Republicans,

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Speaker 1: starting with a million dollars to Priorities USA, which is

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Speaker 1: one of the main Democratic superpacks. So we're seeing foreign

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Speaker 1: money illegally coming into elections being laundered through these various

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Speaker 1: entities in a way that was not possible before Citizens

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Speaker 1: United started us down the road. That brings up another point.

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Speaker 1: Did Citizens United benefit Democrats more than Republicans? Are Republicans

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Speaker 1: more than Democrats or too hard to tell? Well, it's interesting, uh,

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Speaker 1: And you know, it's still kind of early because every

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Speaker 1: election cycle tends to be different, and also in the

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Speaker 1: decades since Citizens United We've had this technological revolution where

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Speaker 1: it's become so much cheaper to raise money over the

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Speaker 1: Internet and small dollars. It used to be gon have

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Speaker 1: to send mailings that were very expensive. Certainly, if you

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Speaker 1: look at the amount of money that is contributed by

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Speaker 1: mega donors, we see both Republican and Democratic support. So

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Speaker 1: there's Michael Bloomberg, there's Tom Steyer right, both now running

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Speaker 1: for president, both giving in the tens of millions of

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Speaker 1: dollars in elections. And of course Sheldon Addilson and his wife,

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Speaker 1: as I had said, gave something like a million dollars

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Speaker 1: in eighteen, which is a mid term election. So I

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Speaker 1: think generally speaking, the interests of the wealthy are overrepresented

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Speaker 1: in our campaign finance system. But sometimes that means giving

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Speaker 1: money to Democrats rather than to Republicans. Also, we've seen

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Speaker 1: undisclosed money money so called dark money. Uh in the

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Speaker 1: last election, we saw more Democratic undisclosed money than Republican

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Speaker 1: undisclosed money. Now, Democrats say they're opposed to Citizens United,

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Speaker 1: but I think they're not unilaterally disarming. They're going to

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Speaker 1: play by the rules as they exist, and so they're

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Speaker 1: doing some of the same things that the Republicans have

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Speaker 1: been doing for a few years more than that. You

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Speaker 1: also write that superpacks became shadow campaigns sometimes, right, So

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Speaker 1: this was another development that's occurred since UH Citizens United.

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Speaker 1: If you are a presidential candidate, UM, you're not allowed

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Speaker 1: to coordinate with an outside group like a superpack. Federal

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Speaker 1: law says that what makes you independent is that you're

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Speaker 1: not coordinating on advertising. But there are lots of other

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Speaker 1: ways to uh coordinate, and so we saw some really

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Speaker 1: interesting things happen in the election Carly Fiorina, when she

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Speaker 1: was running for the Republican nomination for president. She had a,

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Speaker 1: you know, not a very strong campaign finance operation in

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Speaker 1: her own campaign, but yet there were some very wealthy

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Speaker 1: people backing fearing A. They created a superpack that superPAC

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Speaker 1: essentially did all the advance work for the fearing A campaign.

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Speaker 1: They would look at her public schedule, they would go

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Speaker 1: and they would put up fearing Of signs, and they

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Speaker 1: would do what they could to help promote her. We

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Speaker 1: also saw this with Jeb Bush. You may remember busch

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Speaker 1: Uh seen as an early front runner, never really got

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Speaker 1: any traction, but got you know, a couple of hundred

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Speaker 1: million dollars of support which really gave him a chance

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Speaker 1: to get his message out there even if voters didn't

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Speaker 1: like it. And then there was John Kasik before he

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Speaker 1: ran for president, he actually made commercials for his superpack

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Speaker 1: and argued that he was allowed to do that before

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Speaker 1: he officially declared as a candidate. And that's something that

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Speaker 1: you know has been the subject of complaints at the

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Speaker 1: Federal Election Commission. So we're seeing lots of superpacks acting

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Speaker 1: as shadow campaign entities for candidates. They've just avoided some

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Speaker 1: of the more egregious kinds of coordination that could certainly

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Speaker 1: get them into legal trouble. What about campaign contribution limits?

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Speaker 1: Where does the Supreme Court stand on limits and where

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Speaker 1: is it likely now the question of whether campaign contribution

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Speaker 1: limits might raise constitutional questions? Is this is really the

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Speaker 1: next shoe to drop at the Supreme Court. So in

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Speaker 1: a case after Citizens United, a case called McCutcheon, which

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Speaker 1: I believe was a two thousand and uh fourteen case.

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Speaker 1: In that case, the Supreme Court struck down a rule

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Speaker 1: that said that people were limited in the total amount

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Speaker 1: of contributions they gave to all federal candidates, a so

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Speaker 1: called aggregate contribution limit. And in that opinion, written by

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Speaker 1: Chief Justice Roberts for a majority of the conservative justices.

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Speaker 1: The Court took the view that the kind of scrutiny

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Speaker 1: that is applied to campaign contributions needs to be more

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Speaker 1: rigorous than it has been in the past, and so

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Speaker 1: it may be at some point that the Supreme Court

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Speaker 1: is going to weigh in and start striking down more

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Speaker 1: campaign contribution limits. The fact is, though, that the Court

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Speaker 1: had a major opportunity this past few months to weigh

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Speaker 1: in a case out of Alaska about its five campaign

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Speaker 1: contribution limits and make a major statement. Instead, the Court

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Speaker 1: quickly reversed the case without really making much law, and

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Speaker 1: and really punted it back to the lower courts to

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Speaker 1: try to deal with the question. If the Court addresses

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Speaker 1: the question of campaign contribution limits again, it could lead

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Speaker 1: to a situation where people would be able to give

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Speaker 1: large or unlimited contributions to candidates. But the Court doesn't

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Speaker 1: seem to have any appetite right now for delving back

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Speaker 1: into that issue, probably because they have so many other

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Speaker 1: controversial issues on their plate, from abortion to immigration, to

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Speaker 1: the environment, to the President Trump subpoenas and maybe eventually impeachment.

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Speaker 1: Was there anything that you found positive in Citizens United. Well,

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Speaker 1: I was certainly happy with the idea that campaign disclosure

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Speaker 1: laws were found to be constitutional. There was widespread agreement

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Speaker 1: that it was not just disclosure of campaign ads that

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Speaker 1: explicitly called for the election or defeat of candidate, but

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Speaker 1: also adds that mention a candidate or feature a candidate

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Speaker 1: in the period close to the election. And the Supreme

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Speaker 1: Court said, and Justice Galea famously said this, that you

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Speaker 1: need to have some civic courage and if you're going

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Speaker 1: to spend money on elections, you're going to try to

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Speaker 1: influence your fellow citizens, you should at least stand up

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Speaker 1: and say who you are. And and voters use the

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Speaker 1: information about who's spending money on elections as a proxy.

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Speaker 1: If they know that, uh, you know, a Sheldon Addison

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Speaker 1: or or Tom Styer is behind a candidate, that sends

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Speaker 1: a message about whether or not they might support that

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Speaker 1: candidate as well. So I do think that the bright

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Speaker 1: spot Assistants United was the recognition that campaign disclosure laws

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Speaker 1: do not violate the First Amendment. When you look at

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Speaker 1: the recent campaign, the presidential campaign, is grassroots financing in

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Speaker 1: any way starting to balance out the big money contributions. Well,

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Speaker 1: I believe that the Brend Center recently issued a report

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Speaker 1: that concluded that while grassroots financing of elections has greatly

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Speaker 1: increased and has given more of a voice, it is

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Speaker 1: still swamped by these mega owners who are giving tens

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Speaker 1: of millions of dollars or more. It's very hard, you know.

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Speaker 1: It takes a lot of people giving fifty dollars to

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Speaker 1: reach the kind of spending that we see from some

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Speaker 1: of these very large contributors. Well, I have you here.

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Speaker 1: I want to ask you about the upcoming election, and

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Speaker 1: with US officials warning that Russia's election interference in could

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Speaker 1: be more brazen than in the presidential race or mid

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Speaker 1: term election, do you see that. Well, I actually have

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Speaker 1: a whole book coming out on the question of whether

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Speaker 1: we're going to have an election meltdown, and one of

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Speaker 1: my concerns is about dirty tricks coming from outside the

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Speaker 1: United States or even inside the United States, because we've

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Speaker 1: seen some domestic journey tricks as well. I think there

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Speaker 1: are a lot of challenges. I think people are going

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Speaker 1: to have to be vigilant and we're going to have

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Speaker 1: to think about what we need to do to ensure

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Speaker 1: that whoever wins the election, that losers will accept the

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Speaker 1: results of the election as legitimate, that it was a

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Speaker 1: fair process. Are we likely to see more dissa information

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Speaker 1: or actual hacking? Well, I think that we need to

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Speaker 1: be on guard against both of those things. There certainly

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Speaker 1: will be disinformation. There's been disinformation in the past in elections,

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Speaker 1: but now social media makes it much easier, and technology

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Speaker 1: makes it much easier to lie and to spread false

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Speaker 1: information and to make it much more difficult for voters

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Speaker 1: to separate truth from fiction. But I also think that

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Speaker 1: there's a danger not just of hacking voter registration databases,

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Speaker 1: but one of the things that I talked about in

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Speaker 1: the upcoming book is what about a Russian hack of

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Speaker 1: the power grid in Detroit on election day? Where Michigan

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Speaker 1: is the pivotal state in the election. It's all kinds

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Speaker 1: of things that could happen, all kinds of nefarious things

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Speaker 1: that we need to be on guard against, uh in

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Speaker 1: the run up to election day and on election day

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Speaker 1: itself and in the post election day county. Thanks for

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Speaker 1: being on Bloomberg Law. Rick. That's Professor Rick Hasn't of

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Speaker 1: the University of California Irvine School of Law. A note

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Speaker 1: Mike Bloomberg is also seeking the Democratic Price Addential nomination.

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Speaker 1: Bloomberg is the founder and majority owner of Bloomberg LP,

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Speaker 1: the parent company of Bloomberg News. Thanks for listening to

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Speaker 1: the Bloomberg Law Podcast. You can subscribe and listen to

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Speaker 1: the show on Apple Podcasts, SoundCloud, and on bloomberg dot

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Speaker 1: com slash podcast. I'm June Brosso. This is Bloomberg