< Citizens United and the Presidential Campaign

Transcript

Friday, January 20, 2012

BROOKE GLADSTONE:

In this overheated political season, candidates battle a common enemy, hating our freedom, destroying our democracy, the Super PAC. Here's candidates Gingrich, Romney and Santorum.

[CLIP]:

NEWT GINGRICH:

It would be nice if Governor Romney would exercise leadership on his former staff and his major donors to take falsehoods off the air.

MITT ROMNEY:

Mr. Speaker, you have a Super PAC ad that attacks me — now, just hold on.

NEWT GINGRICH:

Okay.

MITT ROMNEY:

— that attacks me is probably the biggest hoax since Bigfoot. The ad that says that I voted to allow felons to vote is inaccurate, and if I had something in the Super PAC that was supporting me that was inaccurate, I would go out and say, stop it.

[END CLIP]

BROOKE GLADSTONE:

Super PACS, of course, can accept unlimited donations, as long as they don't coordinate with the campaign. But would-be president of South Carolinas Stephen Colbert is even trying to find a way around that iron-clad prescription.

[CLIP]:

STEPHEN COLBERT:

And come on. Why is the T in his name silent?

What else is he silent about? Letting murderers out of jail? Now, a Super PAC that he founded is running attack ads against him, just so we'll think they're not coordinating.

[NOISES]  Enough is enough!

[CLIP]

BROOKE GLADSTONE:

Meanwhile, contenders in the Massachusetts Senate race, Elizabeth Warren and Scott Brown, have even taken time out for a truce, jointly discouraging their wealthy backers from contributing to any Super PAC. It is rare, indeed, to hear campaigning candidates decry the coarsening consequences of cash, especially when they've got it, or at least their independent backers do.

But in the latest issue of Time Magazine, former Newt Gingrich aide Rick Tyler told reporter Michael Scherer that Super PACs were, quote, "a horrible abomination for a freedom-loving people." And he should know, says Scherer, because Tyler runs Gingrich's now super rich Super PAC.

MICHAEL SCHERER:

He, like many in the process, are saying that the rules that have been put in place because of these recent court rulings have created this sort of phony dividing line between what is allowed to be done by a campaign and what is allowed to be done by a Super PAC.

BROOKE GLADSTONE:

He calls it a big shell game. Describe how Newt Gingrich can not coordinate with his Super PAC, while nevertheless direct their activities.

MICHAEL SCHERER:

It's really simple. The courts and the FEC have defined "coordination" as private communication about how you spend your money. So a phone call between Newt Gingrich and Rick Tyler — they're longtime friends — would violate the coordination rules.

However, if Newt Gingrich, like he did coming out of Iowa, signals very publicly in a speech on cable news that he is going to go negative and start attacking Mitt Romney in a more aggressive way, Rick Tyler can just watch what's happening on television and take his cues from the candidate.

BROOKE GLADSTONE:

How can you avoid talking to the candidates when they come to Super PAC fundraisers?

MICHAEL SCHERER:

Well, it would be against the rules for someone like Mitt Romney to appear at a fundraiser and raise money in excess of 5,000 dollars for the Super PAC. However, if Mitt Romney comes to that same fundraiser, gives a speech and then stands on the stage and somebody else asks for the check, that's perfectly allowed. And we have had cases where Romney has been at multiple events for Restore Our Future, the PAC that's supporting him.

The people who are writing these million-dollar checks to these Super PACS, they want the candidates to know that they're out there helping them.

BROOKE GLADSTONE:

And the weird thing is that the Supreme Court has determined that direct contributions can be a corrupting influence, but independent contributions aren't. If you know as a candidate what rich person is giving to your supposedly independent Super PAC, influence is being peddled just the same.

MICHAEL SCHERER:

Well, you know, that's for the American people decide, for maybe future courts to decide. But you're absolutely right in the way you characterize it. The Supreme Court in 2010 in Citizens United did not overturn the longstanding rule that says the Congress has the ability to regulate the amount of money you can give directly to a candidate because there's a public interest in limiting any corruption or appearance of corruption.

What the Court said in that case was that independent expenditures, including expenditures from corporations themselves, they do not rise to the level of either being corrupting or presenting the appearance of corruption. And the reason was they were independent.

Now, on paper that looks a lot better than it does in practice. And so, you have situations where viewers at home are watching the Super PAC ads and don't really have clear signals as to whether the campaign is involved or not involved, where candidates are accusing each other of being responsible for their Super PAC ads, even though they're not technically responsible. And everybody on all sides are saying the whole system is — is pretty absurd.

BROOKE GLADSTONE:

Do you know what the breakdown is so far of how much has been raised and spent by presidential Super PACs?

MICHAEL SCHERER:

I don't have the latest figure off the top of my head because you've had a lot of recent spending in South Carolina. What we do know is that in the cases of Gingrich and Santorum, Huntsman and Romney, the on-air ad buys to date that have been reported have been bigger from their Super PACs than from their campaigns.

BROOKE GLADSTONE:

What about backlash? I mean, we've seen in Massachusetts Scott Brown and Elizabeth Warren sniping at each other Super PACs. You've mentioned that candidates have been doing this practically since the primary season began. Do you anticipate that there'll be voluntary changes at some point, any backlash? Or is this all just mau-mauing?

MICHAEL SCHERER:

The history of money and politics, at least since Watergate, has been pretty consistent, that Congress and the courts will put up barriers and the money, like water, finds a way around the barriers.

We've had lots of different legal vehicles. You had soft money in the 1990s, you had groups that were called 527s, you've had c4s spending money. You have all these different ways of getting the message out right before elections legally. And then Congress — maybe not right away, maybe it takes a decade or so — comes back and there's a new reform effort, like you had McCain Feingold in 2002.

But my guess is that once we know who the donors are and once candidates get elected and if we see them doing favors for those candidates, then that idea that this does create clear appearance of corruption might lead to a new effort.

But it would probably have to start in Congress and then it would go to the courts. And we do have a pretty clear shift on the Court favoring the First Amendment over this idea of the public interest of corruption.

BROOKE GLADSTONE:

Michael, thank you so much.

MICHAEL SCHERER:

Thanks for having me.

BROOKE GLADSTONE:

Time Magazine's Michael Scherer.