The Great Antidote – Trevor Burrus on Campaign Finance

On this episode of The Great Antidote podcast with Juliette Sellgren, she is joined again by guest Trevor Burrus. In their discussion, Juliette and Trevor discuss campaign finance, the first amendment, and what the Supreme Court has to say about it.


Guest Bio

Trevor Burrus is a research fellow in the Cato Institute’s Robert A. Levy Center for Constitutional Studies and editor‐​in‐​chief of the Cato Supreme Court Review. His research interests include constitutional law, civil and criminal law, legal and political philosophy, legal history, and the interface between science and public policy.

His academic work has appeared in journals such as the Harvard Journal of Law and Public Policy, the New York University Journal of Law and Liberty, the New York University Annual Survey of American Law, the Syracuse Law Review, and many others. His popular writing has appeared in the Washington Post, the New York Times, USA Today, Forbes, the Huffington Post, the New York Daily News, and others.

Burrus lectures regularly on behalf of the Federalist Society, the Institute for Humane Studies, the Foundation for Economic Education, and other organizations, and he frequently appears on major media outlets. He is also the co-host of Free Thoughts, a weekly podcast that covers topics in libertarian theory, history, and philosophy.

He is the editor of A Conspiracy against Obamacare (Palgrave Macmillan, 2013) and Deep Commitments: The Past, Present, and Future of Religious Liberty (Cato, 2017). Burrus holds a BA in philosophy from the University of Colorado at Boulder and a JD from the University of Denver Sturm College of Law. He also contributed a chapter to’s Visions of Liberty.


Episode Transcript

Juliette Sellgren: Trevor Burrus is here with us for the third time. Lucky me, lucky you. Trevor is a research fellow at Cato Institute’s Robert A. Levy Center For Constitutional Studies, a co-host of the podcast, free thoughts, great podcast, you should check it out, and the Editor-in-Chief of the Cato Supreme Court Review. Today, we’re going to be talking about something very important, very misunderstood I think, campaign finance and campaign finance reform. For most people, when you think about this, you think about dark and corrupting money in politics, but some people think about the First Amendment and they think that it’s an issue that sits at the center of this debate. And so today, we’re going to dig in. Welcome, Trevor.

Trevor Burrus: Thanks so much for having me back, Juliette.

Juliette: Before we jump in, what is the most important thing that people my age or in my generation should know that we don’t or I guess the third most important thing? [crosstalk]

Trevor: Yes, exactly. Probably this time I was thinking about this and I think that my answer was, is the importance of giving people the benefit of the doubt. People are usually trying their best, to try their best with what’s available to them. They’re probably not trying to be malicious or to be willfully stupid, or anything like that. So, it’s very, very useful in intellectual life. It’s very useful in your personal life to give people a bit of it of the doubt until you have reason to believe that they’re being somewhat malicious or something along those lines. So that’s my guess, the third most important thing as he said.

Juliette: That is very important. I mean, it’s hard, especially, this kind of makes me think about campaign finance and putting money into politics. It’s hard to imagine that people are doing things out of good intent all the time, especially if they disagree with you. So, let’s jump in.

Trevor: You asked the perfect right question there? Yes, jump in.

Juliette: Should there be money in politics?

Trevor: Okay, I’m going to actually take the first part of what you said as connected to my benefit of the doubt question or statement that the backdrop of campaign finance to me is this question that people have to, people who are politically engaged have to think about it implicitly if not explicitly and that question is, “Why do people disagree with you?” Because if you’re a politically engaged person, let’s see here, really partisan Democrat or partisan Republican, you look at the world and you see that there’s you 50% of your fellow citizens think that you’re wrong and not just wrong, but actually so deeply mistaken that they couldn’t even fathom how you would think this way.

And then you have to ask yourself, what is the explanation that you tell yourself about why people disagree with you? Because if you think that you’re super reasonable and you obviously know the right arguments and the right facts, then it’s very easy to believe that people disagree with you because of 1: They’re stupid; 2: They’re evil or; 3: And this is the one that’s important here, they’re being duped. They are being somehow mind-controlled or duped by what you believe is, sort of, you know, bad forces or self-interested forces and both sides tend to think this so about. But it depends on what the force is.

So Republicans in the past, I’ve tended to think that people are Democrats because they’re being duped by Hollywood mainstream media. The university system public schools and Democrats tend to think Republicans are being duped by corporate media, by the corporation spending money in elections by Fox News, of course, and other right-wing media. But that’s been a big one for a very long time. They think that to some extent that they’re being duped by organizations, like, the Cato Institute gets accused of being one of these billionaire-interested organizations, that is out to brainwash people. So I think that’s important. That is not giving people the benefit of the doubt. That is treating them like they are children who have been brainwashed.

Now, to your next question, is there too much money in politics? Well, every part of that sentence is actually something that needs to be examined to get to the heart of what campaign finance regulation is. Too much. What would too much money be? We could talk about that. The second one is money. What constitutes money? For example, buying something buying political expression for yourself, donating to a candidate directly, donating in kind. So if you donate supplies to a campaign is that money donating your time? Is that money? And then the final one is in politics. And that’s actually where things get really, really difficult. What does it mean to be in politics? At the Cato Institute, we have 501c3. We have rules that apply to us because we are not allowed to advocate for or against a piece of legislation or a candidate. That’s what other organizations like 501c4s do. So in that sense, you say we’re staying out of politics because we’re not being involved in campaigns and actual, like a sort of lobbying commits or so. That’s one definition of politics.

Other people think the definition of politics is even bigger, that Cato should be regulated because we talked about political issues and maybe occasionally mention the name of a candidate or an incumbent member of the office. So it’s a very, very complex question Juliette and we can wade into each part of that, like, how, what would too much money be? I’m not sure some people seem to think they know, I don’t know. What is money in politics? Much, much more difficult to figure out.

And what is in politics? Well again, unclear. Is The New York Times politics? Are documentary filmmakers in politics? Is a racecar driver who puts a bush Cheney sticker on his car in 2004, this is a real case, is he in politics? Those questions are much more complex and anyone who actually has ever practiced Campaign Finance law, and this is true across the board, it is a nightmare of regulations and that is the real sad thing here.

After we got our campaign finance regime, our modern campaign finance regime, which first was in ’74 and then later 1999 with a Bipartisan Campaign Reform Act and some other things in between, but lie after that happened, we political speech which is supposed to be the biggest part of the First Amendment, the First Amendment protects political speech the most. But now political speech is actually regulated, more and is less free than pornography, and that’s a problem.

Juliette: That’s also surprising, because the number of people I know, or have seen on the internet being like, “We have to regulate porn a hundred percent like no, no, no.” And then I don’t know, maybe it’s just me and the circles that I’ve seen, but it seems as though fewer people, talk about campaign finance and I’m guessing part [crosstalk]

Trevor: There are other talks about different things there. Now they talk more about Facebook and stuff. We get to what that is but less than 10 years ago.

Juliette: So I think the most important part and I mean, I might be wrong, I think there’s also an opinion thing, but I think the most important question of the dissected one is: What is money in politics?

Trevor: Well, let me give the basic overview and the way that the law kind of works today. So first of all, before about 1908, and then really, but really before 1976, campaign spending was wide open. How campaigns for running the 19th century was very different to you had political machines with all this kind of money that they would siphon off two candidates. In 1958, you could give as much as you wanted to a candidate for federal office. You could give him a million dollars if you wanted to. And request favors maybe for that money, or maybe not request favors for that money. But corporations have not been allowed to give to candidates since 1908, for example, nor have unions. But different political groups have been allowed to give money. That’s giving money to candidates.

So this is a very important distinction that I will make over and over again because it is important to make this very clear. After all, people get this wrong all the time, including Barack Obama. A contribution is writing a check to a candidate and saying, “Pay to the order of Hillary Clinton for president.” And then let her and her campaign use that money on political ads and other things related to the campaign. It’s not going into Hillary Clinton’s pocket. There are very strict separations about how you can use campaign money. It used to be the case in the 19th century that you were giving money to Cato and they kept it but not so much work.

Then the other kind of question is expenditures. So let’s say, I don’t want to write Hillary Clinton a check but I want to get a speaker truck. I want to pay for a speaker truck. One of these trucks that just have speakers when you drive around and I want to get on the mic and drive around to neighborhoods and talk about how much I love Hillary Clinton or how much I hate Hillary Clinton. And so I just, sort of like the ice cream man, but I want to just drive around and do that. So I’m spending money. Let’s say it costs a thousand dollars to rent that truck and my time to voice my own political opinions. That is called an independent expenditure that is not giving money to the candidate that is spending money on your own political advocacy. This is a crucial distinction because it has to do with citizens united. It also has to do with the kind of activity that the First Amendment must protect if you’re going to regulate political speech and campaign speech.

So let’s think about it this way. As soon as you start regulating, by the way, so if I did, do the speaker truck, if I did pay a thousand dollars to drive around the neighborhood, talking about a candidate for federal office for, or against a candidate for federal office, I would have to register with the government to do that. People who spend more than $200 on an independent expenditure have to disclose themselves to the government for the most basic political speech. And that directory of people who are spending independently is actually available for public consumption, just up to $200. Some states actually have 1 cent is enough to report, but the federal rule’s $200.

So the question here though, we’re talking about campaign speeches, the very nature of regulating what someone can do to just promote a candidate as opposed to giving to a candidate means you have to start making distinctions for example, like The New York Times. The New York Times writes our beds every presidential election endorsing or not endorsing a candidate. Is that political speech? Obviously, it’s political speech but is that kind of regulable campaign speech that should be limited somehow or maybe The New York Times would have to disclose or something? They don’t have to because they’re press. The rest of the question is what do we have? What freedoms do we have if The New York Times is pressed? And I want to start a blog that talks about a candidate or sort of YouTube channel that start to talk about a candidate and people can give me money to support that. Does that something that the federal government should be regulating? And there’s a ton of people who say, “Yes, it is.”

Juliette: Wow. Yes, it is, personally, not my immediate thought. What were these regulations, this distinction between a private or an individual expenditure and all that and expending on a candidate, giving money to a candidate? What were these regulations trying to address?

Trevor: Well, the big ones come out. Corruption is like the big word that we’ll be using a bunch and we’ll have to figure out what that word means. I will find out that it means very different things to both sides of this debate, but the big ones came out right after Watergate. And so the dissatisfaction with what was happening, the break-ins at the Watergate like Nixon resigning and so with this idea, we had to clean up politics.

So they passed the Federal Election Campaign Act where they pass amendments to it that are extremely broad. They regulate political spending and speech like had never been before. Tons of disclosure rules, tons of limits on what you could give to a candidate, tons of limits on what you could independently spend on an independent expenditure and it went to the Supreme Court and in 1976, in a case called Buckley v. Valeo, which I think might be the longest opinion in Supreme Court history. Check me on that, but I think it might be the longest reported opinion in Supreme Court history. The Supreme Court issued this massive ruling on the entirety of the act and what parts of it were constitutional at what parts were unconstitutional.

But to say that we have to step back and think about the First Amendment, I mentioned political speech is the heart of the First Amendment. It’s the core of what the First Amendment protects. But what this means when the Supreme Court hears a case about someone is alleging that my political speech has been infringed when political speech is the most protected, it means that it gets something called strict scrutiny, which is another way of saying that it says that the government has to regulate it. When it does regulate it, it has to regulate it with a scalpel rather than a sledgehammer.

Let me give you an analogy here. So the government has to have a reason for regulating the speech that is not. The reason cannot be shutting down the speech. So let’s say that there was a park where people always passed out political pamphlets in this park. It was just sort of like a very common thing. And one of the people in this park is passing out pamphlets saying that you should not reelect the sheriff, or not reelect some city council member. Let’s say it’s the sheriff. And so then the sheriff comes in and starts shutting down the pamphleteering in the park and they say, “Why are you doing this?” And he says, “Well, it’s because we have a littering problem.” Which you think is pretextual because you’re like, “No it’s because people are passing out pamphlets against the sheriff.” And they claim, it’s a littering problem. And so they shut down all pamphleteering in the park. And so you sue and you say, “You’re violating my speech.” And what the government says in response is, “No, we’re trying to treat a littering problem, not a speech problem.” And what the courts will do is they’ll say, “You have to do this very narrowly, you cannot hit it with a sledgehammer, if there’s a littering problem because of political speech in this part, go after the littering specifically, don’t go after the speech with a sledgehammer.”

And that’s essentially what we’re talking about when we talk about the decision in Buckley v. Valeo. So the decision Buckley v. Valeo, the court comes in and says that the government has to have a good reason to be regulating campaign expenditures and campaign donations, that reason cannot be shutting down speech. It has to be something different, just like the analogy in the part. The reason cannot be shutting down speech. And so, the court said, the only compelling reason the government has to regulate, how much money people spend in elections is to stop corruption. And what they mean by corruption in this is called quid pro quo corruption, which means this for that corruption which means you go to a candidate with a big bag that has a dollar sign-on. And you said, “Hey here’s a contribution. I want you to give me some sort of political favor, some sort of handout.” That kind of corruption, the classic sense of corruption. And so if that’s the compelling interest of the government has, but therefore, the laws have to be tailored to addressing that problem.

So what the court said was there for campaign contributions, there’s an interest in that because that’s how you would corrupt someone. You could limit campaign contributions because that’s how you would corrupt a candidate but limiting independent expenditures doesn’t have the same sort of concerns to it. And so, that’s how we created this distinction, between independent expenditures and campaign contributions because they have different justifications for why you would regulate them. But the idea is that if you just spend money on behalf of a candidate on your own, not give it to them, then it’s not corrupting in the same way as a contribution, which I think is likely true.

Juliette: What problems arose with the regulations that were created in the 1970s?

Trevor: So many. Here’s what you mean. Do you mean, like constitutional defects or do you mean just like what happened because of these regulations?

Juliette: I guess, start with what happened generally.

Trevor: Well, again I think it’s important to take a step back and like, think about the big picture here. People should be deeply skeptical of people who run for office, elected officials regulating the rules, by which they run for office. This is just like 101. It’s Public Choice 101. James Buchanan used to say, “Don’t let the foxes guard the henhouse,” which is just to say, “Don’t let politically self-interested people, rig elections in their favor. Do that.” Here’s what they knew at the time when the incumbents were passing, the Federal Election Campaign Act, or at least the ones who are savvy enough to know this, they knew that if you’re an incumbent member of the house or the Senate, you have a massive advantage over people challenging you. Just think about it like just you have name recognition, you can go on TV. Imagine if today, I decided to run for Congress or in, right? And then I’m running against my congressman, but like, no one knows who I am. So, the first thing I have to do is I have to spend money. So I have ads out there that tell people who I am, they give me some sort of notoriety like to just to be on the same level as a member of Congress.

Members of Congress have franking privilege. They get to mail things to their constituents for free which I don’t have that if I were challenging that member of Congress. So if none of us had any money, as I say, you took away all money and politics, which again, if you go back to my previous statements, I don’t even know what that would mean. It might mean that The New York Times isn’t allowed to talk about politics and it might mean the Cato’s not allowed to talk about politics. Let’s say that we have zero out or we make entirely equally say, all right.

Incumbent member of the House gets $500,000 and Trevor Burrus gets $500,000 so that sounds fair. Doesn’t it? Absolutely, it’s completely unfair to me and in almost every single one of those instances, the incumbent is going to win. So just like a regulated business understands that if it has the ability to deal with the regulations better than someone who is a start-up, right? Walmart understands that it can, like before regulations because it has the finances, the lawyers, all the ability to comply with regulations but someone who’s trying to challenge Walmart has a much harder time doing that especially if Walmart can write the regulations in its favor. What politicians have done starting with the Federal Election Campaign Act is basically right regulations of elections in the favor of incumbents. And so what we’ve seen on every sort of metric is it has become significantly harder since 1976 to dethrone an incumbent.

I have actually some stats here to give you an example. And also, not only it is impossible to dethrone an incumbent increasingly. I mean, usually, 90% plus of house members get reelected, but we’ve also very much created safe districts. Now, this is not the only reason we have these safe districts, but we have very, very few competitors. Now there’s sorting this happen and we could talk about that, but there are papers that track this with campaign spending. It is so much harder to unseat an incumbent today so that we have no contest elections meeting people who are in safe seats. So they don’t even have to please their constituents are up 25% since 1976 when this law was passed and extremely competitive elections. This is in the house are down 42% since this law was passed. So, on one level your question, I would say the politicians got exactly what they wanted. They protected their positions if they’re happened to be an incumbent and created a less representative and less interesting democracy because of it, but that was the point.

Juliette: So let’s talk about Citizens United versus the FCC or FEC, my bad. I still get confused. They just sound so similar when you say them as acronyms. In that particular decision, the Supreme Court ruled that independent political expenditures by unions and corporations including nonprofits, such as planned parenthood, the ACLU, and RI, all that stuff, are protected under the First Amendment and are not subject to restriction by government, which seems so different, not necessarily from what happened before, kind of. So what was the decision and what was the rationale for that?

Trevor: All right, so this is a good time, definitely a good time to talk about this. Since we’ve kind of laid out the groundwork of independent expenditures, campaign contributions, the nature of these kinds of regulations. So what had happened in the Bipartisan Campaign Finance Reform Act, or McCain-Feingold as it’s often called, is that a bunch of rules had come in to stop “soft money” whichever we get to what that means but one of the rules that came in is that the for-profit corporations and nonprofit corporations could not spend money out of their general funds as you said on an independent expenditure and so that created a bunch of issues going to back what I was talking about.

For example, what does it mean to say something is in politics because you would have a bunch of issues like for example, The New York Times is a corporation and The New York Times talks about, endorses candidates all the time. So they had to have as I mentioned before to have a media exception to this for the first amendment but it gets very hairy and this is how it gets really really complicated. The case Citizens United really could have been called Michael Moore and Miramax films versus FEC. Why is that? Because Michael Moore if you know who is not as relevant now as he was in the 2000s, but he’s a documentary filmmaker who’s very, very left-wing and he makes documentaries to try to change people’s minds and also to influence elections.

So in 2004, after we had invaded Iraq and Bush was quite unpopular, Michael Moore decided to make a movie called Fahrenheit 9/11. And Fahrenheit 9/11 is essentially a two-hour anti-bush campaign ad that we do not doubt that he wanted to make that movie as is his First Amendment right to influence voters, and how they vote, and whether they would vote for Bush in the 2004 election. Now the problem here, so generally speaking the campaign finance laws don’t regulate movies, generally speaking unless they’re paid for by a corporation, at least at this time, but they do regulate over-the-air ads. And so the commercials for this movie and I remember them well, had clips from the movie and they were kind of a 30-second anti-bush. They had all these embarrassing things that Bush said and said, “Come see Fahrenheit 9/11.” But it was kind of like the classic one is the is when he’s golfing and he says, “We will eliminate terrorists anywhere,” and then he says, “Now watch this drive,” and like it’s not good optics.

So basically this group called Citizens United which is a 501c3 and c4, very conservative group that had done different acts of activism at different times,
they decided to file a complaint at the FEC saying the ads and the movie, but especially the ads. The ads are an illegitimate campaign Finance expenditure by a corporation because Doggy Dogg films, Michael Morris corporation that paid for the movie, they are a corporation and Miramax Films distributes it and they are corporations. So essentially, these corporations are violating this provision of McCain-Feingold that says corporations can’t advocate for or against a federal candidate of the election.

And so, the FEC had to chew on this because it seems pretty clear that again, the purpose of this was to influence the election and it was paid for by a corporation. But the FEC said, well, this could be really problematic. I mean, you probably see this Juliet like if we start regulating documentary filmmakers, how far does this go? And so, the FCC decided that Michael Moore received a permission slip to make this movie, so to speak. And this is an important point that I’ll use this concept a bunch.

All of these sorts of exceptions, The New York Times, it’s an exception as a corporation, apparently, Michael Moore and Doggy Dogg films get an exception as a corporation. They’re getting permission slips from the government to criticize the government, which is really, really problematic under the First Amendment. The rule of the First Amendment is that I don’t have to ask the government for permission to criticize the government but campaign finance laws operate that way. So Michael Moore’s get the matter and review at the FEC, they conclude that that the film Fahrenheit 9/11 is a bonafide commercial activity and artistic activity. Therefore, Michael Moore gets a permission slip. Great Citizens United.

In 2008, we’re going to do the same thing, Michael Moore gets a permission slip. We’re a nonprofit corporation. We receive money from for-profit corporations, but we’re going to make a movie and that movie is a very long campaign ad against Hillary Clinton. It’s just called “Hillary, The Movie” and it’s not good. I’ve watched it. It just has a bit of, people complaining about Hillary Clinton and how horrible she is. This is how long Hillary Clinton has been around. I mean, this is 2008, you know, she just never kind of goes away. But so that’s what this movie is and Citizens United knows that someone’s going to file a complaint at the FEC about this, too. And at this time, the FEC rules that this is not an okay expenditure that Citizens United does not get a permission slip, unlike Michael Moore who got a permission slip.

And so since you say we’re going to go to the Supreme Court. Now their first argument was narrower. It was narrower. They were trying to say, we deserve the same exception that Michael Moore got because one, we want to put this on pay-per-view, that was one of their arguments. So just like people going to the movies to pay to see two Fahrenheit 9/11, because they want to be influenced Citizens United, want to put this on pay-per-view, so you pay for it because you want to be influenced. And we want to advertise this, they saw it as a narrow ruling as applied to them. And during the oral argument, the Deputy Solicitor General who is advocating for the prohibition on Citizens not being able to make this movie and distribute this movie was asked by one of the justices whether or not it was his position that if a corporation paid for a 500-page book, that was a called The History of the United States and that the very last sentence of that book, it said, “If you agree with the stuff in this book, you should vote for this federal candidate.” Was it his position? Was it the government’s position that that means that they could ban books?

So then the guy looked at the justices in the faces and he said, “Yes it is the government’s position that we can ban books.” And this is the real irony here. As I mentioned when I said political speech is less protected than pornography. The thing about this whole rubric, this whole system we have, is if you notice the inclusion of a sentence that says, “Vote for this candidate,” that suddenly makes that book less protected than it was before because now it’s in politics going back to the first question.

Now, according to sort of federal law, it makes it in politics, in a way that it wasn’t before because it has direct advocacy for a candidate. And so their justices were understandably taken aback saying that wicked. This is supposedly the most, you know, sacred values of our constitution, protecting the ability to criticize your government, and a member of that government just stood in front of us and said he can ban a book because just because it was funded by a corporation because it has one sentence in it. And so they asked the case to be reargued. They said, “We’re going to reargue this case on a broader question. Not the narrower question of whether or not citizens united gets an exemption because it’s pay-per-view or something like that. We’re going to ask what is not the entire prohibition on corporations using their money on independent expenditures. Again not giving the candidates just using their own money on independent expenditures or that entire thing is unconstitutional and that’s what the Supreme Court said, “Yes, the entire thing is unconstitutional.”

The really scary thing about this decision is that 4 Justices disagreed with that. They do not understand the importance of free political speech who believe in these sorts of canards about money in politics and that we have too much money in politics, and it’s not money. It’s not speech, it’s money. We can talk about those as opposed to the basic principle here is that in every time Hillary Clinton ever said citizens, you know, I was wrongly decided you had to be like, “Yes, this was a because they tried to make a movie criticizing you Hillary Clinton. And of course, you think that should be illegal.”

And so that’s what they struck down, and the reason they struck it down and Chief Justice Roberts in his concurring opinion is very, very clear about this and I invite everyone to go and read this. The reason they strike it down is that this entire idea of permission slips, the government giving out permission slips to Michael Moore, to the ACLU, maybe to some sort of bona fide, advocacy nonprofit corporations to The New York Times, like the entire idea, is just corrupt from the beginning and we’re going to get rid of it. Like we’re not going to have the government in the business of deciding which corporations are allowed to speak because they decide that they’re bona fide artistic expression or bona fide commercial expression or whatever.

That’s so anathema to the First Amendment that the only solution to this is to rule this entire thing on Constitutional and overrule a really, really crazy and just insane case from 1990 called Austin versus Michigan Chamber of Commerce, which we can get into what that was about. But that, that’s what it did. It did not overturn a century of law. It did not say that corporations can give to candidates. Corporations still can’t give to candidates. They haven’t been able to since 1908. It merely said we’re no longer to be in the business of giving permission slips to various corporations because 5 members of the FEC have decided this. It’s very, very against the principles of the First Amendment. It should have been an easy case. It should have been something that had all the justices onboard instead it made everyone lose their minds.

Barack Obama even went up on his State of the Union shortly after the decision was issued went before both Houses of Congress and some of the
Justices and mischaracterized it, 5 different ways and saying that it allowed foreign corporations to give to candidates that allowed corporations that give to candidates that struck down a century of law. All of these are wrong. It struck down, extremely aberrant case, from 1990 called the Austin case, and it reestablished, the principles of the First Amendment, which is that you do not need to ask permission from the government to criticize it and it doesn’t matter if that’s a corporation, a union, or an individual.

Juliette: Yet, people are so infuriated about this decision. They see it as the unleashing of big money, dark money. First, what is dark money, and also what is there evidence that this unleashes, the big and dark money? What do you say to these people?

Trevor: Well, part of winning the political rhetoric game playing is to come up with the right sales pitches and everyone does this and I’ve rarely heard of a sales pitch that’s better than dark money. I mean, sometimes in gun policy like assault weapons or military style, things like this are also sales pitches but dark money sounds so nefarious. Dark money doesn’t really have a definition. If you’re someone like, Sheldon Whitehouse, who thinks basically.

Remember why I said at the very beginning, the animating principle here, in my opinion, the enemy psychological like belief here is that Sheldon Whitehouse is… I’m going to use him as an example. He had also had a big loss of the Supreme Court today but Sheldon Whitehouse in a good way believes that anyone who disagrees with him is being paid to essentially. He is called Cato, he is called PLF. He is called any of the Federalist Society. He believes that any of this stuff, you’re being paid to disagree with him. Like what that I don’t actually believe what I believe that. I just like to have to get my daily call from Charles Koch in my marching orders and f, x, y, and z. And that’s the core of what he’s talking about and so for him, dark money is anything in politics that doesn’t have donors disclosed like basically, anything.

Even though, Cato, for example, because we do not get involved again, remember this big question here. What is in politics? Well, under federal law? Like we’re not in politics, if we don’t advocate for or against candidates but Sheldon Whitehouse and many other people on that side believe that even what Cato is doing, we should be disclosing our donors so people know who’s behind what’s going on. And so he calls all of that dark money, right?

So everything from Cato’s donors to 51c4 donors to any of this stuff, those are all dark money to him. So this is part of the reason why it doesn’t have a real meaning. Generally, people say it’s because it’s nondisclosed donors advocating in the political sphere. But again, I said everyone has a different definition of what the political sphere is. Some are incredibly broad and some are narrow.

Now, the First Amendment sort of demands at least, as the court currently interprets it and I think that Shaun Whitehouse if he tried to regulate this stuff the way he would want to, would lose 9o even amongst the Liberal Justices. But the idea here is that, when should someone’s donors be disclosed, and does it even matter of donors are disclosed? It should you be able to give anonymously. I mentioned you today Juliette. There’s a case that is imminently going to be decided by the Supreme Court about the ability to keep donors anonymous. The court will likely say that there is a right to anonymous speech. And of course, there’s a right to anonymous speech. The Federalist Papers were written under the pseudonym Publius, right? And the idea of writing anonymously under pseudonyms usually classical. Authors was a well-established practice at the time of the founding.

Now the next question is, does it matter about giving anonymously? Should that be disclosed? And the funny thing is most people say, “Well, it should,” until suddenly, their activities are implicated like should planned parenthood’s donors be disclosed? Should the NAACP’s donors be disclosed? Black Lives Matter, the conservatives recently had started asking for the donors to Black Lives Matter to be exposed so they could pursue their own kind of Sheldon Whitehouse campaign against Black Lives Matter. This is an interest all of us have. And the term dark money again, it’s an entity but powerful concept for whoever, whatever organizations you think that donors should be disclosed. And again until that comes and bites you, you can say, “Oh, everything that the Koch brothers do or all Kiddos Institute’s donors should be disclosed.” But as soon as we turn that around as, “All right, do black lives matter to the NAACP in Alabama in 1958?” So in Alabama in 1958 tried to get all the donors to the NAACP. It’s disclosed and exposed for, let’s say obvious reasons, right? Like they wanted to be able to be, you know, identify the donors in NAACP so that could go, I don’t know, burn crosses on their lawn and the Supreme Court ruled in that case that you have a right to give anonymously or burn them.

Juliette: Or burn them.

Trevor: Yes, you have a right to give anonymously and that is protected by the First Amendment, so it’s just empty rhetoric, but extremely powerful dark money. I admire the rhetoric. I admire the ability to come up with such a term but it’s completely empty.

Juliette: I have thought a lot about anonymous donating recently. I’ve had a lot of our argument debates, more like about the topic and I felt in my core that it was a good thing. But I never really had a good grounded, way to express that. And the more I think about it, I think about how free speech is protected because we are protecting the little guy, the minority. You don’t want someone…

Trevor: I know the cogs.

Juliette: Yes [crosstalk]

Trevor: We all said, we had to protect all the cogs in the machine. That’s vital like not to cut you out, but I want to do something or I’m going to read you something from Justice Scalia. This goes to the question about money versus speech, right? The biggest piece of BS, I may be so bold in the campaign finance debate is not speech, it’s money. This is so unbelievably disingenuous at the minimum, but we put it this way. These laws were passed intentionally, and I can read you some quotes to from this. These laws were intentionally passed to stop political advertisements. They were intentionally passed to shut up people by draining the money like we have quotes from the Floor of Congress. I will plug one of those now actually. So, I have my presentation. I give on this, which has some of these quotes. We’ve [inaudible] for the floor of Congress upon the debate over the McCain-Feingold bill.

So here’s one from John McCain. So here’s a quote. So the Millionaire’s a memo which is an amendment that affected how millionaires can run for Congress in all candidates are concerned that virtually any non-millionaire member of this body has. And that that is that they wake up some morning and pick up the paper and find out that some multimillionaires going to run for their seat and that person needed to invest 358 10 now, 70 million of their own money door to win. So, John McCain is trying to stop people from challenging him for office.

Here’s another one about outside groups. This is still John McCain. These groups often run ads that the candidates themselves disapprove of further these ads are almost always negative attack ads and do little further beneficial debate in a healthy political dialogue. To be honest, they simply drive up an individual candidate’s negative polling numbers and increase public cynicism for public service, in general. So John McCain is explicitly saying on the Floor of the Senate that the reason for drying up the money is to stop political speech that drives up candidates’ negative polling numbers. This is explicit censorship as you could have.

Now going back to the money is speech. I’ve come to these quotes over and over again. There’s one from Dick Durbin, where he– just complaining about how he was going to the election and he slumped down to his chair turned on the TV and up. Pops for television commercials one after the other. Every one of them blasting me. What a treat it was to sit in the chair and get [inaudible] by four different talk[?] to television commercials. This is a sitting US Senator still, literally telling on the Floor of the Senate that he is intending to dry up the money because people are making television commercials that criticize him, “B-O-O-H-O-O, Dick Durbin.” I am so sorry you get criticized as a politician but that’s the point about the money is speech. Having read those quotes. Imagine if they dried up the money and it didn’t eliminate any campaign ads, they’re like, “Somehow the campaign ads, it didn’t work,” then they would be very upset that their censorship didn’t work. They, so if drying up the money, didn’t drive speech, they wouldn’t even want to do it.

And so Canard, this is not speech, it’s money. Well, here’s what Justice Scalia wrote in his dissent in the McConnell v. FEC case. In any economy operate on even the most rudimentary principles of division of labor, effective public communication requires a speaker to make use of the services of others and an author may write a novel, but he will seldom publish and distribute himself. A freelance reporter may write a story but he will rarely, edit, print, and deliver it to subscribers. To a government bent on suppressing speech, this mode of organization presents opportunities to control any cog in the machine and you can halt the whole apparatus, license printers, and it matters little whether authors are still free to write, restrict the sale of books at models little who prints them.

Predictably repressive regimes have exploited these principles by attacking all levels of the production and dissemination of ideas. That is what is happening here. That is why these are candidates are drying up the money. That is why they’re going after money that is used against them. Because the division of labor offers this opportunity to them. But to say it’s not speech, it’s money.

Juliette: Wow, it’s fascinating, but not shocking at all.

Trevor: I mean, they’re politicians, of course, it’s not shocking.

Juliette: Okay, so final question. Thank you so much for all of this. I feel like we could talk for like a good deal in years about this. What is one thing you believed at one time in your life that you later changed your position on and why?

Trevor: That’s a good one. I kind of going back to some of the things I’ve mentioned on this episode. So, I mean, I’ve always consider myself a Libertarian since I was like 12, but like I did come from a conservative household, not a non-religious, sort of conservative household. And I did believe that conservatism and sort of the Republican Party, were more friendly to Libertarians for a very long time. And well, of course, but obviously, I haven’t believed this for fifteen years now but it’s all become even clearer in the Trump era about what conservatism is.

Conservatism has nothing in common with free markets and there’s nothing about conservatism. American conservatism can be like Burkean, they’re trying to preserve the Constitution or something. But what we see today, and like I said, conservatives will use the cudgel of the state immediately to say control public education to make sure the critical race theory is not being taught to students in public education which goes to my theory that conservatives have never been against public education. They’ve just been against public education that they don’t run and now they want to run it until you have Do DeSantis in Florida saying we’re going to have to teach different anti-communism things like this. And now, conservatives say we have a right to spend in elections but now they want to disclose Black Lives Matters’ founders.

So what we’re seeing today is that American right wing is becoming more like what the right wing is in the rest of the world. Like in Europe they’ve known this forever. The right wing in European countries is nationalistic and identitarian, in traditional listing, that’s what it tends to be, right? And so I can pull in that’s what the way it is in Germany, that’s the way it is. That’s the way we’re becoming here and Libertarians need to be very very aware of the fact that we are not of the right and we’re not of the left. The single dimension political spectrum is silly. But we are fundamentally liberals who uphold values like the ability to anonymously give to organizations no matter if it’s Black Lives Matter, if it’s the Cato Institute, because it’s the right thing to do. And conservatives are not really our friends, but that’s something that I think over time, especially since I was a teenager, became more and more clear to me.

Juliette: Thank you. I definitely have seen that also, especially recently. Thank you so much for being on the podcast.

Trevor: Always a pleasure.

Juliette: Thank you for sharing, Trevor.

Well, that’s all we have time for today. I’d like to thank my guests once again for their time and insight. I would also like to thank everyone who listens, subscribes, and shares the Great Antidote Podcast. If you would like to be on the podcast, or if you have a guest in mind, please feel free to reach out to me at: [email protected]



CGO scholars and fellows frequently comment on a variety of topics for the popular press. The views expressed therein are those of the authors and do not necessarily reflect the views of the Center for Growth and Opportunity or the views of Utah State University.

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