Caleb Brown: This is the Cato Daily Podcast for Sunday, November 27, 2016. I am Caleb Brown. President-elect Donald Trump routinely spews harsh words for those who criticize him, but how will that translate into policy regarding unfettered political speech? David Keating is president of the Center for Competitive Politics. We spoke last week.
The defenses of free political speech, you indicated before we started recording here, seem to be situational for political actors. That is does my party or my unique message suffer under this rule versus that rule, and if it does then I’ll oppose that rule but if I sense I can punish my opponents then I’ll support this rule because it will tilt the playing field toward me. Is that about right?
David Keating: I think that’s often quite right. Usually there’s often an attitude of what’s in this for me? Either me as an individual politician or elected official or me, what’s good for my party? And you look at even the recent history of this, I’ll go back to McCain-Feingold. You know this was a bill that would have made it a criminal offense for an organization to run a radio or TV ad that mentioned the name of a candidate within sixty days of an election. So if you ran an organization, you ran an ad like that, that just mentioned the name of the candidate, you could go to jail. I mean that’s crazy, right? You would think. But, President Bush, back then I think he made a calculation that on balance this is going to help my reelection so I’ll sign it. Fast-forward to 2006, Republicans were in political trouble. 527 organizations — it’s a part of the tax code — were pounding Republicans for their votes on various things that liberal groups didn’t like, and Republicans were feeling the political pain. So what did they do? Many of the same Republicans who were all against McCain-Feingold in the House, they voted for this 527 Reform Act and then magically, what happened, almost all the Democrats voted against it. And what did they cite? Well, this was an affront to the First Amendment, when really what was in it was Republicans didn’t like getting the pounding and the Democrats liked it. So the two parties switched their roles. Fast-forward again, President Obama is elected and the Democrats control both Houses of Congress, and then there’s a huge reaction to what they are doing. And you see the rise of the Tea Party groups and things like that, so what do Democrats do? They say we want to pass this so-called Disclose Act, which is cleverly designed to try and cut contributions to conservative and Republican-leaning groups. And then, of course, we had the IRS scandal. So you look at this at the federal level and you say wow, it looks like a lot of the you know, momentum for changes and you know, speech laws comes about from what’s good for political parties. But you can also look at the states. I’ll give one example there. Republicans supposedly have this reputation of being for the First Amendment, for free speech. Well, in 2013 in Utah, that — Utah is about as Republican, about as red a state as you can get. Both halves of the legislature solidly Republican, governor Republican. Well what happened is in a primary the majority leader’s friend got pounded by some of these groups for his votes. He didn’t like it, that his buddy was subjected to this. So the next session of the legislature he writes this profoundly unconstitutional speech law. We told him and other people in the legislature, this is unconstitutional. They passed it anyway, signed it into law. It took us three years before a client was willing to come forward and sue. We did, and guess what? It was found to be unconstitutional. We won a $125,000 legal fee award as a result.
Caleb Brown: Alright, so Bernie Sanders made opposition to Citizens United, the Supreme Court ruling that allowed corporations and unions, essentially, to participate in electoral politics in the same manner that individuals can, but you know, he’s also made arguments about big money in politics and I’m thinking what about President-elect Donald Trump, who does not seem to have a great deal of party loyalty. In fact he’s threatened members of his own party in public. He is notoriously thin-skinned when it comes to criticism of him in the media, he met with executives and hosts from TV networks very recently and tried to give them sort of a dressing down for their election coverage, and he won a majority of electoral votes while spending very little money to secure those votes.
David Keating: Well, let’s keep it in perspective. He spent very little money compared to Hillary Clinton’s campaign and the independent groups spent very little compared to the groups supporting Hillary Clinton, but if you look in a longer-term perspective, Trump still spent way more than almost all the other presidential campaigns leading up to the recent era.
Caleb Brown: That’s fair. So President-elect Donald Trump, you would think, if he cares about bringing some Bernie Bros into the fold and getting them on his side that it makes some logical sense for him to support a great deal of the speech restrictions that Bernie Sanders and Hillary Clinton supported. I mean is that a crazy idea?
David Keating: Well, no. I do worry about it from time to time because we really don’t know what will happen from a Trump administration. It’s still very early, it’s hard to say. If you want to be the optimist you say okay, well Mike Pence is his vice president, and remember that bill that I talked about the Republicans passed in 2006 that was worse than McCain-Feingold, only 18 Republicans voted against it but you know one of them was Mike Pence. So if there’s anyone in this administration that I have 100% confidence in about the First Amendment, Mike Pence, he understands it, I know that. He’s willing to stand up and fight for it, as he did in 2006. So that, to me, is a big plus. The other thing is, Don McGahn was his campaign finance attorney during the campaign. He was with Trump from the beginning. And you look at the history of federal election commissioners and Don McGahn is one of the best of all time. And I think Don is going to be having some role in advising Trump on his picks for the Supreme Court and perhaps maybe picks for the Federal Election Commission, and just general advice on this topic. And you look at Don McGahn and Mike Pence and you think well, at least two people will probably say some very smart and thoughtful things to Trump on this issue, so that’s what my hope is. Now on the other side, it’s everything that you just said. He seems to be pretty thin-skinned about criticism, but on the other hand I’ll give him this, he thinks that the answer for speech is more speech. Donald Trump has never been one to just disappear and not say anything. If he disagrees he is willing to speak his mind. And obviously when the president speaks his mind he carries more weight than the average person. On the other hand, if he’s just going to counter speech he doesn’t like with more speech of his own then I say that’s great. But we’ll see.
Caleb Brown: What are we looking at in the new Congress with respect to attempts to wiggle around and get some restrictions on electoral speech that were, that may not have been as popular, this last term?
David Keating: Well I actually am hoping that the new Congress will substantially deregulate and look at this area and look at the campaign finance laws and say these are a mess. We need to reform them in a good way, in a more First Amendment-friendly way. And I think there are a lot of things they could do that shouldn’t be that controversial that could be very helpful. I mean a couple examples is, one, what is the IRS doing in the business of being a political speech cop? And given what happened with Lois Lerner and the targeting of conservative groups, I would think there would be a lot of support to say let’s get the IRS out of this business once and for all. And one of the few things that Donald Trump said about speech regulation during the campaign is he wanted to get rid of the Johnson Amendment. I don’t know if you remember him talking about this, but this is an amendment passed by the former President who, when he was in the Senate, where they added a provision to the bill in the 1950s at some point, that says charitable nonprofit organizations are totally prohibited from saying anything about candidates and campaigns other than you know, some just neutral, non-partisan voter guides. So Trump at least understands that there can be too much regulation of too much speech and but I think in the Congress you’ve got some real key people like Mitch McConnell who has been terrific on the First Amendment, whatever you might think about him on many other issues, I think he is genuine on the First Amendment and I think he’s going to be looking for ways to get rid of some of these regulations. I mean one of the other things that they could do is over the thirty-five-plus years that we’ve had — now it’s actually forty years — this the anniversary this year of the Federal Election Campaign Act Amendments and the Buckley vs. Valeo decision is, a lot of the provisions of the Federal Election Campaign Act have been struck down or narrowed by the Supreme Court. Citizens United, the Buckley case, the McCutcheon case, I could go on and on. But you look at the law and it still reflects the law as it is written. They should, if nothing else, go through and get rid of the dead provisions in the law and rewrite the ones according to how the Supreme Court ruled. And you think well why is this important, because, you know, we are already following it that way. Well, it’s important because we don’t know what’s going to happen decades down the road. Let’s say there’s a Supreme Court that takes a view of the First Amendment, does it really restrict Congress from regulating speech? Well, all these provisions could just spring back to life. So a check or another, you know, provision would be if Congress wants to take advantage of this new Supreme Court that’s willing to let Congress regulate, well then Congress would at least have to pass the bill into law and have it, you know, or have the president sign it into law if the Congress has passed it. So, you know, these are long-term things to think about. But you know, I see that we can possibly make some real improvements in the coming years. We’ll have to see.
Caleb Brown: David Keating is president of the Center for Competitive Politics. Subscribe to this podcast at iTunes, Google Play, and with Cato’s iOS app. And follow us on Twitter, @CatoPodcast.
