ciara-torres-spelliscy_1_04-20-2021_110744 and hillari-lombard_10_04-20-2021_080745
Hillari Lombard: [00:00:00] You know what really drives me crazy. I’m going to read you a text that I received on Friday.
[00:00:05]Rally alert president Trump wants you to be as VIP guests at a Trump rally. We’ll pay your flight and hotel contribute. And when now. And then there’s the link to donate. Here’s another one President Biden. I would like to see your name on the list of Biden Harris, founding donors, chip into the DNC. Provides a link. Then on Sunday. I got one that said it’s VP Harris. The DNC needs 14 more folks from your area to donate before their deadline. Can you chip in $20 now?
[00:00:39] With the link provided. First off. Trump is not the president. And I’m pretty sure that it’s actually illegal for him to say that he is. Um, additionally, if you have all this money to pay my flight in the hotel, you don’t need my contributions. So there’s that as well. Um, Regarding the. The texts from president Biden and VP Harris. I just want to be very clear. Obviously, I am not getting texts from the vice president, the president and the former president of the United States, but I don’t even know why they start with those because obviously this is not a text directly from the phone. Vice president Harris. Former president Trump or president Joe Biden. They’ve got stuff to do. They don’t have time to text me and ask for money. And honestly, if they did, like, if they really did text me from their personal phone and ask me for some money, you bet they’d get it. Because obviously. But come on, like, this is so clearly a spammy mass text, like who. Who’s thinking, oh my gosh. They picked me. Here’s my money. No, I mean, come on. But what’s insane about that is that those are three text messages that I got in one weekend. And it’s not even an election year. Why. Why are they asking me for money outside of an ellection year.
[00:02:03]Because the fundraising machine never stops, baby.
[00:02:08]Politicians are always trying to get money and corporations and wealthy people are always trying to give money. I think that that’s what leads to the unsavory reputation of. Politicians. And corporations to some extent. The idea that American politics can be bought and paid for. You see. People have been telling me that politicians are corrupt for as long as I can remember. The way that people talk about politics, it sounds like the mob is going around, paying people off with envelopes full of cash.
[00:02:38]CLIP: Marlon Brando: The Godfather: [00:02:38] I’m going to make them an offer he can’t refuse.
[00:02:41]Hillari Lombard: [00:02:41] And, you know, maybe in some corners of the country, That is what’s going on, but that’s for the FBI to sort out.
[00:02:48]What I want to talk about today is actually something more systemic because I think that the bigger problem here isn’t, you know, envelopes full of cash from the mob. I think that the bigger problem. Is that money? Has become inseparable from politics. In 2020, we spent $14 billion on the election.
[00:03:10] It was the most expense in. It was the most expensive election in history. $14 billion. And it felt like it was spent on. Like infrastructure or education or defense healthcare? No, no, no, no. It was spent on staff, transportation ads, mailers campaign shirts that we will never wear again, stupid stuff.
[00:03:34] With no value after the election is over.
[00:03:39] Want to know something crazy. In August of 2020. Joe Biden. Joe Biden’s fundraising. Total was more than Taylor Swift’s entire net worth. T swift. Her entire Joe Biden raised more money in one month than she has in her entire career. And she’s one of the biggest pop stars of all time. But okay. Maybe that’s just the cost of running for president’s most powerful office in the land.
[00:04:09] Okay. Sure. Maybe I can accept that. But then I found out that the average cost of winning a Senate campaign, $15 million. The average cost of a house race, at least a winning one. Oh, that’s you know, $2 million. And sometimes it doesn’t even work. Senator Heidi Heitkamp spent $171 per vote. And she didn’t even win.
[00:04:35]Amy McGrath who ran against Mitch McConnell in the last election cycle, had a $32 million advantage in Kentucky and lost a Mitch McConnell by 20 points. That’s the largest loss for Democrats in the race since 2002.
[00:04:51]Can you imagine having to raise more money? In an election cycle every two years than most people will earn in their entire lives. That would be stressful. Genuinely, like, I understand how that, that could stress you out. If you’re running for office. Another thing to consider
[00:05:13]Is that a lot of that money came from really shady superpacs corporations or wealthy individuals. In fact, 7.5% of all political donations in the past decade. Came from the same 12 people. That’s it. And then, you know, I mean, along those lines, there’s dark money, which is basically campaign. Um,
[00:05:37] Which is basically campaign donations that are funneled through nonprofits to get around campaign finance laws and contribution limits. Which is basically campaign donations that are funneled through nonprofits to get around campaign finance laws and contribution limits. And let me be clear. Shady corporate spending on campaigns is bi-partisan.
[00:05:58]In the 2020 election president Biden actually received more dark money contributions than Trump. It is a mess. And it’s one that I can not make heads or tails of by myself.
[00:06:09]So I went out and found Ciara Torres-Spelliscy. Chara is a professor at Stetson university and she teaches courses in election law, corporate governance, business entities, and constitutional law. All the good stuff. Prior to joining the Stetsons faculty, she was counsel in the democracy program of the Brennan center for justice at NYU school of law. Where she provided guidance on issues of money and politics and the judiciary to state and federal lawmakers. She’s the author of the book, corporate citizen and argument for separation of corporation and state. And the book political brands. So she knows her stuff, guys. I mean, I wouldn’t bring you somebody that didn’t. She’s going to help us sort out. Money in politics, campaign, finance law. And give us a breakdown on what we can do about it, because there actually is legislation in the Senate right now that can clean up a lot of the stuff. So without any further ado, here’s my conversation with Ciara Torres-Spelliscy. As always I’m Hillari Lombard and this is moderate party.
[00:07:22]Ciara thank you so much for joining me. Before we get into it with the heavier topics. I’m curious about your background. Um, I was reading about you and it looks like you started out in corporate law. And then you decided to make the switch into reforming money and politics and campaign finance law. Talk to me about that.
[00:07:39] Ciara Torres-Spelliscy: [00:07:39] So after, uh, law school, uh, at Columbia, I started at a firm called Arnold and Porter. I was in their New York office as a corporate attorney. I stayed there for. Four years. And then I transitioned over to the Brennan center, which is a think tank attached to NYU law school. And at the Brennan center, I worked on the democracy program on the issue of money and politics,
[00:08:09] Hillari Lombard: [00:08:09] What motivated that transition?
[00:08:12]Ciara Torres-Spelliscy: [00:08:12] The 2004 election. One of the things that Arnold and Porter did well was encouraging its attorneys to work pro bono. And they sent us several associates, uh, to do election protection in the 2004 election. That was Kerry Bush. And I heard from real voters about their real trouble voting. And that was four years after Bush versus Gore. And I was really shocked by how bad it was. It really sounded like I was getting phone calls from a third world country, and I decided that I would stop being a corporate lawyer and go work on trying to fix and improve our democracy.
[00:09:04] Hillari Lombard: [00:09:04] so I guess is a broad question, but tell me how bad it is.
[00:09:09] Ciara Torres-Spelliscy: [00:09:09] well, in terms of the calls that I was getting in 2004, we were fielding inquiries from voters in the Midwest, uh, especially around Chicago. It was sort of everything from polling places being moved, polling places, being not open at the time that they were supposed to be open broken polling machines, uh, polling stations that had run out of ballots polling stations that had run out of pens. Um, I mean, it was, and this is why, I mean, it was kind of third world nonsense. Um, but you know, in that time, uh, there w there were, there was no chance for a do-over. So. Um, you know, if you have a poorly managed election, it can really hurt, uh, voters and it can give the democracy as a whole, a bad name and it, and the votes that you get may not really reflect the will of the people, which is sort of the ultimate point here.
[00:10:12] Hillari Lombard: [00:10:12] God, I can’t imagine if I was unable to vote because they didn’t have a pen like that. Wow. Wow. I think one of my first questions for you relating to money and politics kind of bounces off of this a little bit, because I think that, I think voters at large have this idea about the system being rigged towards big money. But I think that that looks like smoke-filled rooms and cigars and like cash envelopes. I don’t think that that is how money is actually moving through politics. Can you give me an idea about what it looks like, how is money impacting our politics? Is it influence? I mean, we’re going to talk about dark money a little bit later, but I would just kind of like to get an idea of the landscape. If you don’t mind,
[00:10:56]Ciara Torres-Spelliscy: [00:10:56] So there are fewer smoke-filled rooms in part because fewer people smoke. Um, but, and you’re much less likely to have of envelopes of cash because people don’t use cash anymore.
[00:11:10]Hillari Lombard: [00:11:10] Apparently it’s Venmo. If you asked Matt Gaetz.
[00:11:14] Ciara Torres-Spelliscy: [00:11:14] Yeah. So there are. Lots of ways to move money in politics. Um, a lot of it is just going to be on credit cards, through, uh, political aggregating sites like apt blue or wind red. Uh, and which reminds me that, uh, your listeners should be careful when they’re on sites like that
[00:11:39] Hillari Lombard: [00:11:39] Oh my gosh. Tell us
[00:11:40] Ciara Torres-Spelliscy: [00:11:40] Yeah, because of pre-checked boxes. So this became a little bit of a scandal about a week ago. So the trump campaign has, uh, gotten into an enormous amount of trouble, uh, because of pre-checked boxes on there when red intake forms, which allowed them to take money from their donors, not just one time, but if the donor didn’t uncheck certain boxes, they could have that donation take taken out. On a monthly basis basis, or even on a weekly basis, which is kind of ridiculous. And it got to the point where certain people called their credit card companies because they thought they were victims of fraud. And it took a while for people to realize, Oh, no, this is just how the Trump campaign was working, uh, in terms of its pre-checked boxes.
[00:12:33] And it was really a trap for the unwary. And I think, and. So the, the Trump campaign is now had to give back any enormous amount of money to its donors, because I think arguably they trick them out of some of that, those donors, those donations.
[00:12:49] Hillari Lombard: [00:12:49] Wow. That, yeah guys, I mean, B be leery, check out your pre-checked boxes for sure. Okay. So I want to circle back, um, money moving through politics, I guess, to expand on my question. Is it more than just dark money or do you think that dark money is the primary form of money in politics that we need to crack down on?
[00:13:13] Ciara Torres-Spelliscy: [00:13:13] No most of the money. If you’re talking about, uh, federal elections is actually disclosed. Um, but that doesn’t mean that there’s not a problem. So. The election that we just went through in 2020 was the most expensive federal election ever the estimates that I’ve seen are 14 billion in dollars. And I know when we get she really big numbers, that it’s easy to lose sort of the difference between like a million dollars and a billion dollars. But for example, if you counted to 1 million. It would take you 11 and a half days. If you counted to 1 billion, it would take you 31 and a half years.
[00:14:02] Hillari Lombard: [00:14:02] Oh my God.
[00:14:03] Ciara Torres-Spelliscy: [00:14:03] So there’s a real difference between a million and a billion. So we were at a $14 billion election, and, you know, that was spent primarily on advertising. And all of that advertising is meant to persuade you, some would say manipulate you into voting the way that you voted in 2020
[00:14:29]Hillari Lombard: [00:14:29] So, how does that compare to previous years spending? Are we just spending too much as a whole, or it was 20, 20 a marked uptick.
[00:14:37] Ciara Torres-Spelliscy: [00:14:37] It was a marked uptick. So one of the general patterns in federal elections over the past couple of decades is that. Every midterm is more expensive than the previous midterm and every presidential election year is more expensive. And the previous presidential election year, the only exception to that 2016, which was odd in a number of ways. So one of the ways that it was odd is that the overall total in 2016 actually costs less than the previous election in 2012. Uh, and part of that had to do with Trump. So Trump was really good at getting earned media instead of having to rely on paid media
[00:15:24] Hillari Lombard: [00:15:24] media, being the press covering them like voluntarily, right. Instead of having to run an ad.
[00:15:29] Ciara Torres-Spelliscy: [00:15:29] correct. So, I mean, it was sort of bizarre the amount of time that the, uh, you know, cable news and other venues. Um, spent covering the Trump campaign in 2016, it was like an attractive nuisance. Uh, like they would literally rather cover like the podium that he was about to speak at instead of. The actual speeches that some of his opponents in the primary were giving or, um, what Hillary Clinton was doing during the general. And that was an enormous benefit to Trump because he had all of this free coverage where Clinton had to buy coverage or buy ad time. The other oddity of 2016 is Clinton spent more money than Trump did. And typically what happens is the person who spends the most money wins almost like 90, 95% of the time.
[00:16:34]So it was weird because the overall price was down and it was also weird because the person who spent more money lost, so one way you could look about, look at. 2016 is Clinton actually does get more votes so that money had some result, but she didn’t get the right number of votes in the right number of States. Thus, she loses the presidency. Um, but the 2020 campaign sort of followed a more similar trajectory as previous elections, which is that it was more expensive and. the person who’s spent more money. I E Joe Biden won the presidency.
[00:17:14] Hillari Lombard: [00:17:14] I guess not enough bed pre-checked boxes for Trump.
[00:17:19]Ciara Torres-Spelliscy: [00:17:19] It’s, uh, it’s an interesting phenomenon. Um, uh, I would hope that, uh, you wouldn’t have to resort to such trickery to get your supporters to support you.
[00:17:36] Hillari Lombard: [00:17:36] right? Yeah. Yes. Theoretically they would, I don’t know. Want to,
[00:17:41] Ciara Torres-Spelliscy: [00:17:41] Exactly.
[00:17:42]Hillari Lombard: [00:17:42] So talking about campaign finance without trickery, I want to talk about the, for the people act. The act has a lot of sections dealing with campaign finance reform. And one of the sections that’s getting the most attention is the public financing piece, which for my listeners . Means that if this piece of legislation was adopted, Elections could be funded by us the people and the government instead of the uber rich and corporations so chara what are your thoughts on the public financing model or public financing in general
[00:18:13] Ciara Torres-Spelliscy: [00:18:13] So, uh, I am a supporter of public financing. I think a lot of, uh, the problems of money in politics. Is rooted in the idea that we have privately financed elections in the United States, and that brings with it all sorts of problems. So one is the risk of corruption that your political donors will, influence how a politician deals with public policy in a way that is detrimental to the public.
[00:18:49] Good. So that they pleased their donors and they don’t think about things like the environment, which is, would be good for all of us. But if you are, if your campaign donors are big oil, then you’re likely to craft policy, which is good for big oil and bad for everyone else who has has to breathe air
[00:19:11] Hillari Lombard: [00:19:11] Right. Cause you’re theoretically indebted to those people,
[00:19:14] Ciara Torres-Spelliscy: [00:19:14] Or, or not. So theoretically, depending on how much those donors have put towards your reelection campaigns over the years. So one of the things that I track is corporate money in politics. And, uh, I think there is somewhat of a misperception that corporations aren’t using their citizens United rights. So citizens United is a 2010 Supreme court case, which allows corporations to spend an unlimited amount of money on money and politics.
[00:19:48] Hillari Lombard: [00:19:48] that’s the one that said that corporations are people, right.
[00:19:51] Ciara Torres-Spelliscy: [00:19:51] Um, it actually never said that that’s a common misperception. Um, so, um, the idea of corporate personhood actually is older than the United States. It’s a legal concept that came from England to the United States.
[00:20:07] England got it from Europe. Uh, so it, it, it really, it goes. Yeah, it goes back, um, to the middle ages. And the idea of corporate personhood is a legal convenience that a corporation can Sue B you know, Sue and be sued. It can Own property. It can enter into contracts. It’s a legal conception, which, um, I I’m fine with as a corporate lawyer. That’s part of the way our entire economy works. Because a corporation can own property that allows them to do certain good things in our economy. Uh, on the other hand, uh, what’s different about citizens United is it gives corporations first amendment, uh, protections for their political spending. And I think that’s the bridge too far.
[00:21:03]Hillari Lombard: [00:21:03] The bridge too far being. Giving corporations, the protection of free speech when it comes to their political spending.
[00:21:13] Ciara Torres-Spelliscy: [00:21:13] Like I think you can. Give corporations, the ability to Sue and be sued all of that stuff without giving them the right to spend in an American ellection So back to your question, which was about public financing. Public financing gives candidates a different route to get into office. So right now our system is basically geared towards. Candidates having to ask for money from very rich individuals or very rich entities, like certain corporate structures and that, uh, invites that problem of quid pro quo corruption. Uh, and I think it also just makes sense the perception of our democracy worse in the minds of many voters.
[00:22:04] So to get rid of all of that, One alternative is public financing of elections. for many years we had a functioning public financing system of four presidential candidates. It fell out of fashion in the early two thousands. Partially between, um, Bush, uh, not using it. And then what really, I think killed. It was in 2008 Obama didn’t use, uh, public financing. And that after that no serious candidate has used public financing, at the presidential level. Now part of that has to do with the amount of money that’s in the public financing system at the federal level. It basically didn’t keep up with the cost of running a presidential campaign And so one of the things that we have in the, for the people act, uh, otherwise known as HR one is public financing for the first time for congressional candidates and the model, there is a little bit different than the model that was used for the presidential public financing system. The new system, if it were an acted, is. Sometimes called a matching system.
[00:23:25]Hillari Lombard: [00:23:25] Okay. So walk me through that. What is, what is a matching system?
[00:23:29] Ciara Torres-Spelliscy: [00:23:29] So it’s a six to one match. And so it incentivizes congressional candidates to raise small donor donations that are then matched six to one. So for every one private dollar you have in small donations, there will be six public dollars that are given to that congressional candidate.
[00:23:52] And that does a number of things. It incentivizes the. Congressional candidates to actually focus on small donors instead of the incentive structure they have now, which incentivizes them to look to big donors first, because you only have a limited amount of time. To fundraise and especially the candidates in the house.
[00:24:16] I, I did this study, um, a while back and the result of it, I called time suck. And the time suck is, uh, the. 30 hours per week, that freshmen members of Congress spend fundraising. And that’s the recommendation that both the RNC and the DNC give to their freshmen members of Congress. If you want to keep your seat, you have to be dialing for dollars.
[00:24:45] And it’s damaging to their ability to be functioning legislators, which is why we elected them in the first place, because they are spending every other hour of their day begging for money. Uh, and the most efficient way to do that is to beg for money from the richest people around so that you can get the biggest donations around it.
[00:25:08] There’s not a good incentive for them to turn to smaller donors and to hear the concerns of smaller donors, because they’re literally on the phone with. The richest people that they can find.
[00:25:20] Hillari Lombard: [00:25:20] I 30 hours a week. I cannot believe that that leaves like, I mean, 10 hours. Unless they go over a 40 hour workweek for them to do the job that they’re being paid to do.
[00:25:30] Ciara Torres-Spelliscy: [00:25:30] Yeah. I’m sort of assuming a 60 hour work week, which is sort of similar to what, uh, uh, lawyers end up doing.
[00:25:40] Hillari Lombard: [00:25:40] And then I guess, so if we went to a public financing model, would the amount of money they need in total go down. If both candidates agree to that, doesn’t it put a cap on total campaign spending?
[00:25:53] Ciara Torres-Spelliscy: [00:25:53] so it’s been a minute since I’ve looked at, uh, the HR one model, but with a lot of public financing models, there is a cap, uh, and. The, one of the points of the cap is to protect the public Fisk. So if you allowed sort of an endless amount of public money, you know, you could bankrupt a city or a state or whatever it was because, uh, as we were talking about like the billions of dollars that we’re spending, the 20, 20 election,
[00:26:26] you don’t want to replicate that, but just, you know, sub out, uh, public dollars with private dollars, um, And one of the things that can happen in these elections is if the idea of running clean, as in you’re running with the public donations becomes a sort of point of honor for candidates.
[00:26:52] Then you’re much more likely to see both candidates, both the Republican and the Democrat in a particular race opting to run clean. And that will. Usually ratchet down the amount of money that is being spent in that election in particular. And that means that the candidates are going to have to be a lot more strategic about their camp plate, their sorry, their campaign, uh, communications.
[00:27:22] So right now it’s pretty easy to carpet bomb voters with mailers and, uh,
[00:27:31] Hillari Lombard: [00:27:31] Text messages.
[00:27:33] Ciara Torres-Spelliscy: [00:27:33] Yeah, text messages and TV ads and ads on your Twitter feed, like the whole nine, because there’s so much money in politics and you are just looking for eyeballs if you are the campaign. And so you will go wherever you think there could be a voter.
[00:27:52] And that type of behavior, I think, would be lessened under a system that had. Fewer dollars running through it. Um, I mean, there are good, some good things and bad things about carp carpet bombing your
[00:28:09] voters. Like on the one hand, you know, it’s good for everyone to get their message out, like yay, free speech.
[00:28:16] Um, on the other hand, you can basically get to a point where each. Dollar that you spend in a campaign has fewer marginal results because there’s only so many times that someone can hear a television ad or whatever it is. And before they just either start tuning it out, psychically or tuning it out, literally like they will start to turn off the television if they feel like they are just being bombarded with negative ads again and again. I wrote about this in my second book, political brands, uh, I mean, one of the things that. I was looking at presidential campaigns, but I think it would be true of candidates up and down the ballot.
[00:29:05] They are increasingly using commercial branding techniques to get their message to stick in the mind of voters. So one technique is just repetition. The more you repeat something, the more the public will accept it as being true, even if it’s a complete lie. Uh, which is really kind of disturbing. Um, I mean, if you think about, uh, the old, uh, Marlboro cigarette ads, which had, you know, the are hunky, uh, cowboy selling cigarettes, um, and so it sort of gave you this impression that smoking cigarettes was good for you or whatever.
[00:29:49] Hillari Lombard: [00:29:49] into a hunky cowboy.
[00:29:50] Ciara Torres-Spelliscy: [00:29:50] yeah. And. And just the opposite is really true that, uh, once you start smoking cigarettes, they’re highly addictive. You then become less free because you are addicted to this substance and it, it kills you.
[00:30:09] Hillari Lombard: [00:30:09] less hunky.
[00:30:10] Ciara Torres-Spelliscy: [00:30:10] you’re going to be less hunky once you, uh, get hooked on, uh, ultra his cigarette cigarettes.
[00:30:17] So, uh, That, uh, but that type of branding technique is something that political campaigns have been using since the 1950s. And, you know, over the over time, they’ve gotten really good at it. And Trump was excellent at political branding. Um, he would just stick to a message no matter how absurd and he could pathologize nearly anything, no matter how, um, good.
[00:30:46] And he could, um, Make things that were pretty awful seemed fine by normalizing them.
[00:30:55]Hillari Lombard: [00:30:55] Yeah. I mean, say what you will about the guy, but he was a great marketer and he had his branding down even down to the red hat. Um, okay. So. Segwaying a little bit into dark money can you explain to my listeners the difference between a pack and a super pack?
[00:31:14] Ciara Torres-Spelliscy: [00:31:14] Sure. Um, so PACS and this is at the federal level. Are entities that spend in politics and they gather in money in certain amounts. And then, uh, they spend it in politics. And the difference with the superPAC is, uh, superpacs were created after 2010 by a. Circuit court decision called speech now, which was relying on citizens United the 2010, uh, Supreme court decision, which allowed corporate money to be spent in politics in an unlimited way.
[00:31:58] And what speech now said is that the super pack. Could take in money in unlimited amounts from any source so long as it’s not foreign. So a super pack can take in money, not just in sort of hard money amounts. So, you know, in for many, uh, federal PACS, it’s $5,000 per donor to the pack and with a super pack there isn’t that limit.
[00:32:24] So a super superPAC can take in money from a corporation or from rich individuals or from unions. So long as they are not foreign, uh, in unlimited amounts. So you can take in millions of millions of dollars and they do so the link to dark money is, uh, and dark money. Doesn’t have to go through a super pack. So with a super pack, uh, At least technically they are supposed to report all of their donors and the same with a PAC, the dark money problem comes when individuals or entities. So very wealthy people or very wealthy businesses decide that they’re going to spend in politics, but they don’t have the courage to spend under their own name.
[00:33:16] So, what they do instead is they spend through an opaque, nonprofit. So a, basically a nonprofit that you can’t see through, uh, and it’s the nonprofit that appears to be buying ads in, in a political race. And I call this dark money because when you look at the reports that the nonprofit. Files with the FTC.
[00:33:43] It’ll say we spent a million dollars on buying political ads in the, uh, Philadelphia media market, for example. But then when you go and look at their donors, know donors are listed, and this has to do with the very weird interaction between our campaign finance system and our. A tax system, which governs nonprofits.
[00:34:08] So the norm in our taxing system is that nonprofits can keep their donors confidential. The norm in our campaign finance system is that donors to political packs or other entities like a pack, uh, can, are supposed to. Name their donors. And so what has happened over the past decade is there’s been around $2 billion in dark money’s spent in us elections and that money is simply untraceable to its original source.
[00:34:47] And I think that raises an accountability problem in many senses of the word in one sense. Uh, there’s an accountability problem for voters because they can’t tell who was trying to influence their vote. And then there’s the additional countability problem to the extent that this money is actually corporate money, because.
[00:35:09] Corporations are owned by their shareholders. But right now we don’t have a mechanism where the corporation is required to tell their investors. This is where we’re spending money in politics. So one of the things that I’ve been working on for years now is trying to encourage the securities and exchange commission, which regulates our publicly traded.
[00:35:29] Companies to adopt a rule that ends dark money from those big corporations. And so far, they’ve, they’ve not taken it up, but I’m sort of, I’m very hopeful that the Biden administration might be different. Um, so number one, they have now. Uh, uh, a decade under their belts in terms of looking at this problem, getting bigger and bigger and bigger.
[00:35:55] So there’s more and more dark money in our political system. And the other thing that’s really changed is shareholders themselves have been yelling at their corporations that they would really like to know where this money is going. And so because, um, of this activism by shareholders, More corporations are now being voluntarily transparent about where they’re spending money in politics, but it’s still not across the board.
[00:36:27] And so while I’m happy that there are hundreds, more transparent companies out there now that still means there are thousands of not transparent corporations spending dark money in American elections.
[00:36:41] Hillari Lombard: [00:36:41] So we have an inch, but we need a mile.
[00:36:43] Ciara Torres-Spelliscy: [00:36:43] Exactly.
[00:36:45] Hillari Lombard: [00:36:45] So what, okay. Okay. then if the giving is limitless, I know that the. When that was being debated in Congress, it was saying like, Oh, okay. So there can be infinite donations, but at least we’ll have disclosure. Right. Which is kind of what you’re talking about. My understanding you correctly.
[00:37:06] Ciara Torres-Spelliscy: [00:37:06] so, I mean, there are a number of different bills. Uh, floating around this Congress and previous ones, uh, some of them would provide more transparency so that there are a number of different transparency problems that sort of overlap to make dark money dark. One of the problems that we haven’t touched on yet is the issue of digital ads.
[00:37:34] So when our original campaign finance laws were. Britain. Most of them were written in the 1970s where the technology at the time was newspapers, mailers, and three television networks. Uh, and the world has changed since then, but our campaign finance laws have really struggled to keep up. And so one of the weird quirks of this is if you had a broadcast ad like on television, Attacking a federal candidate that is going to be regulated under our federal campaign finance laws.
[00:38:15] If you run the exact same ad on Facebook or on Twitter, all of the same video, all of the same sound, the whole thing is the same. Because it’s on a digital platform, it’s not considered a broadcast. And thus it evades the campaign finance laws, and you don’t have to disclose where that money came from. So one of the fixes that’s in HR, one addresses that digital ad problem.
[00:38:45] Uh, but there’s this other bigger problem of. How the tax law and campaign finance law interact to allow for dark spending sort of across platforms, whether it’s digital or not. And there are bills that would address that the money problem as well, which basically deals with what the FEC does, the federal election commission and what the IRS does, the internal revenue service.
[00:39:14] So there are lots of different fixes that are out there. But one of the things that the Congress cannot do under the ruling of citizens United, because that was decided on constitutional first amendment grounds, they can’t go back to a ban on corporations spending in us politics. The only way to get rid of citizens United is either a future Supreme court overrules it or the constitution itself is amended.
[00:39:46] Hillari Lombard: [00:39:46] Which is not likely to happen. Correct.
[00:39:48] Ciara Torres-Spelliscy: [00:39:48] It’s not likely to happen though. I have to give it to the people who have been pushing for a constitutional amendment, uh, around citizens United. They have gotten, I think around 17 States. It might be more at this point to say, In either legislation or, uh, resolutions from various state legislatures that we actually want an amendment to the U S constitution that would address citizens United and in every year sensitive and genetic, there has been several versions of constitutional amendments that have been introduced in the house and the Senate.
[00:40:28] So. It’s, it’s not a complete, uh, hopeless task. I think it’s. It would be very surprising if it moved right now, given the partisan divide in the country, but you sort of never know. Um, and one of the things that I always think about is how long it took to get the 19th amendment. So we just celebrated the 100th anniversary of the 19th amendment, which gave women the vote, uh, last year.
[00:41:00] And. And that’s, uh, that was a long time coming. I mean, you, you, you, you had suffered, JetSuite literally lived and died and didn’t see it happen. Um, but they kept working on it and eventually something changed and, uh, you get the momentum that you need and you get it through both houses of Congress and you get it through the state legislatures for ratification.
[00:41:27] So hope Springs, eternal that. Democracy might be able to heal itself. It seems to be, you know, on the ropes at the moment, but I wouldn’t be a reformer if I didn’t think that some of these reforms could be implemented in one way or another.
[00:41:47] Hillari Lombard: [00:41:47] well, I mean, even HR, one like that, it was a long shot. Um, and it, it seeming more and more likely in my opinion.
[00:41:56] Ciara Torres-Spelliscy: [00:41:56] Yeah. I’m I think a lot will hinge on what happens with the filibuster in, uh, the us Senate. Uh, so yeah, so I, I was a former Senate staffer and I have very mixed. Feelings about the filibuster. So on the one hand, it is this, um, parliamentary procedure, which requires, uh, 60 votes to invoke cloture as in to end debate, uh, when someone is, uh, on the floor, filibustering, as in refusing to stop talking.
[00:42:36] Now over time, the talking filibuster has, uh, turned into the non-talking filibuster, which I think is an abuse. And basically so long as one. Seven bearer says, yeah, I object to this legislation. They treat it as if he is actually filibustering the legislation and they won’t call the question on the underlying legislation, unless you can get 60 votes to overcome, uh, the objection.
[00:43:07] And I think if they went back to a talking filibuster, that would go a long way to, um, I think maybe placating, um, Republicans and Democrats. The Republicans, if they really object to something, you can get on the floor and do what Strom Thurman did back in the day, and like read the DC phone book into the congressional record and, you know, show how much he hates civil rights or whatever it was.
[00:43:31] Um, and I think that would also be more pleasing to Democrats because it would force, uh, the Republicans aid to be on record and on camera. Doing this ridiculous behavior and you can make political hay out of that. And it, at some point people can’t talk anymore. Uh, and so that,
[00:43:56] yeah, and so more legislation would be able to get through the Senate.
[00:44:02] Now in the good thing about the cloture rules being at 60 votes is it does require bipartisanship. For most senates, because most senates are going to be more evenly divided than, uh, 60 40. Uh, and there are, um, reasons to value bipartisanship, uh, but given that Mitch McConnell and, uh, the Republicans in the Senate right now have essentially decided that they will not cooperate on anything. Since they’ve just being obstructionist, uh, they shouldn’t be able to hold the entire country hostage. So we’ll see whether there is. An appetite to reform the filibuster at all and whether, um, Chuck Schumer and the parliamentarian, uh, can find ways of getting major pieces of legislation through the Senate using reconciliation.
[00:45:08] So we’ll see what happens. Um, It’s it’s a very strange time. The other thing that I am keeping an eye on is the prosecution of individuals who were part of the insurrection at, um, the Capitol on January 6th. I am really worried that some of those prosecutions are just gonna fall apart.
[00:45:33] Hillari Lombard: [00:45:33] Why
[00:45:34] Ciara Torres-Spelliscy: [00:45:34] because you never know what happens when people get in front of a jury.
[00:45:38] Um, and. I think the defense is going to be one that resonates with a lot of jurors that my president told me to do it. And I did it like, why am I in trouble? So, um, I am really very mortified and, and just, uh, concerned that we’re not going to get the hundreds of press or the hundreds of convictions that I think are probably deserved in this case.
[00:46:09] Um, but. It’s not a foregone conclusion. And so I think if people are charged with these crimes and they get away with it, they will try it again. And that I think is really great, dangerous for the health of our, uh, you know, little experiment called American democracy.
[00:46:28] Hillari Lombard: [00:46:28] Right. I mean, if you, if we’re showing them, if you’re upset, you can storm the U S Capitol and there will be limited consequences for you. Like, why wouldn’t you do that again?
[00:46:40] Ciara Torres-Spelliscy: [00:46:40] Yeah, and it, you know, it’s a very heavily armed country, so I, it’s a very strange time to be alive. Let’s put it that way.
[00:46:52] Hillari Lombard: [00:46:52] Wow. What a time to be alive. Hope Springs eternal though. Right?
[00:46:57] Ciara Torres-Spelliscy: [00:46:57] Yeah, I mean, on the other hand, um, there is this chance to pass good legislation to pass things like HR, one, the, for the people act, um, which would change lots of different things, whether it’s automatic voter registration, the rules on gerrymandering. Public financing for elections at the congressional level, which could change, who can even run for Congress.
[00:47:26] Uh, all of these things could be vast improvements, but if Congress deadlocks and does nothing what’s happening at the state level, I think is very troubling. Um, my good friends over at the Brennan center have tracked over, uh, 350 different regressive voting laws that are moving in the States. Uh, one just passed in, uh, and became law in Montana.
[00:47:51] I think yesterday, uh, making it harder to register, to vote in Montana and harder to vote in Montana. So this is coming to a state near you. If it’s still legislation, I would encourage your listeners to engage with their state reps and to tell them, please don’t do this.
[00:48:08] Hillari Lombard: [00:48:08] Especially because your state reps, they are much easier to get ahold of. All of your reps have to hear you. But my experience with my state rep has been that it is much easier to have that dialogue at that level, as opposed to the federal one. So, if you are listening and you want to get engaged with your state rep, do it and don’t think that you can’t get through.
[00:48:28] Cause you can.
[00:48:31]So I kind of want to, uh, I want to throw my legal questions at you really quick. I know that one of the arguments, um, against HR one’s campaign finance reforms has to do with the right to. Um, basically donations or political donating as means of political speech and also protections for anonymous speech.
[00:48:56] Can you walk us through what they’re talking about?
[00:49:01] Ciara Torres-Spelliscy: [00:49:01] sure. So. For about, um, at this point 45 years, uh, there have been, uh, arguments and campaign finance cases going back to Buckley versus Vallejo in 76, that to require the disclosure of the names of your donors in a political campaign. Infringes on those donors, quote, anonymous, free speech rights. And I’m putting that in scare quotes because I don’t think it really exists.
[00:49:34] And the, and, and more importantly, the Supreme court doesn’t think it exists. So in Buckley, In a case called McConnell in 2003 in citizens United itself in 2010. And in a case called McCutcheon from 2014, the Supreme court has been crystal clear that disclosure of donors in politics is perfectly constitutional.
[00:49:59] And so they’ve heard these anonymous speech arguments and they have rejected them. Uh, they, the court has basically said that. There is a voter informational interest in knowing who is trying to influence them when they vote. So that interest has prevailed over the countervailing argument that a donor has some magical anonymous speech, right?
[00:50:28] When it comes to putting money in politics, the court has just rejected it again and again, and again.
[00:50:35]Hillari Lombard: [00:50:35] Do you see that changing anytime soon? Or do you think that that’s, that’s settled, that’s open and shut.
[00:50:40] Ciara Torres-Spelliscy: [00:50:40] so it’s settled in the campaign finance area. There is this really troubling case, uh, up at the Supreme court right now. Uh, it’s going to be argued April 26 and that is the American prosperity case. Uh, so. The American prosperity foundation, which is really just a group of rich people. Uh, uh, they are challenging.
[00:51:07] I law out of California that requires charities who solicit donations in California to report to the state about their donors. And they are making the same anonymous speech argument. Now this is outside of classic campaign finance, but if they win this argument at the court, then I think dark money will only explode because the way that dark money becomes dark is it needs an opaque, nonprofit, and, uh, the more legal protections are given to opaque.
[00:51:44] Non-profits. It’s like the American prosperity foundation, then it will incentivize more of the behavior that created dark money in the first place. So you have a corporation or a rich individual who doesn’t have the courage to spend under their own name. They launder it through one of these opaque nonprofits and then the nonprofit sort of asserts its um, it’s.
[00:52:10] Rights to confidentiality. And so if those rights of confidentiality are bolstered by, uh, this lawsuit winning at the Supreme court, then I think you’re just going to get more of that behavior because it will be easier. And lawyers will have something to point to that is runs counter to the, the line of cases that I just cited to you where they’re like, Oh, you know, this is later in time and they’re giving.
[00:52:38] Huge, um, anonymous speech rights to donors, to nonprofits. Well, one thing that those non-profits do is spend in politics. So, uh, one at some point there’s, I think there’s going to be this culture clash between the nonprofit world and the campaign finance world. Every time that it’s happened. So far disclosure has won at the Supreme court, but there’s no guarantee.
[00:53:06]Hillari Lombard: [00:53:06] So I guess my final question for you, Ciara, is, is there anything that I should have asked you that I didn’t.
[00:53:17] Ciara Torres-Spelliscy: [00:53:17] I guess not, uh, I mean, I I’d always encourage people to be. Hopeful about our democracy and to engage Jeanette. So if you’re not registered to vote, register to vote, if you are registered to vote, there’s always some election that is coming up, whether it’s local or a special election, uh, you know, the congressional elections will be here around the corner.
[00:53:46] I would seems crazy.
[00:53:47] Hillari Lombard: [00:53:47] I know, I just barely got my energy back from 2020.
[00:53:51] Ciara Torres-Spelliscy: [00:53:51] Yeah, well that, that one was a doozy. Uh,
[00:53:56] but the only way that our democracy really dies is if voters disengage and give up on it. So I know that there are a lot of reasons to be disenchanted, but we can, we can still fix this and we can still get it back on track.
[00:54:14]Hillari Lombard: [00:54:14] I think that that is the perfect note to leave this on hope Springs, eternal. Thank you so much for taking the time to talk with me today, Chara and listeners. If you enjoyed this episode, help us spread the word about the podcast and tell a friend to listen or give us a five star review and rating. Tell me what you think about it. Um, as always, if you have any questions or comments about today’s episode,
[00:54:37] You can shoot those over to email@example.com. Thanks everybody