John Donvan

Hi everybody, and welcome to Open To Debate. I’m John Donvan. The debate this time, it’s about a controversial Supreme Court ruling on money and politics. Now that we’ve had a decade to see its impact, the question we’re asking has Citizens United undermined democracy? We’re proud to be doing this in partnership with the Newton and Jo Minow Debate series at the Northwestern Pritzker School of Law. And we’re proud to dedicate this episode to Newt himself, whom we lost last year. Newt, you are a friend to our program, so this one’s for you.

I’d like to welcome to the stage our debaters, Francesca Procaccini, Ciara Torres-Spellicsy, Floyd Abrams, and Eric Wang our debaters for this evening. We’re gonna have opening statements now. Each debater will speak for three minutes in turn, making their case for or against the question. We’re gonna start with Francesca Procaccini, assistant Professor of Law at Vanderbilt. Francesca, you’re saying an answer to the question, has Citizens United undermined democracy? You are saying, yes, it has. Please tell us why.

Francesca Procaccini

Has Citizens United undermine democracy? Yes.

Audience

(laughs).

Francesca Procaccini

To understand why, we have to understand what Citizens United did and what kind of democracy we actually have. What’d Citizens United do? It opened the door to unlimited amounts of dark money to manipulate our political process. What kind of democracy do we have? We have a liberal democracy, which means we protect individual rights and the right to equally participate in the political process. To equally elect our representatives, influence politics, hold our government accountable. Usually these twin pillars of democracy reinforce each other. Sometimes they conflict. And the supposed right to unleash unlimited sums into our political process is one of these times. That is because money allows for unequal influence. It crowds out the average citizen’s voice, and it permits some mega donors to have out-sized access to our elected officials.

Okay, so what should happen when rights and democracy conflict? Which should take precedence? It has to be democracy. Why? Because rights serve democracy, and actually rights cannot be meaningfully protected except in a true democracy, right? Lots of countries have rights, but they’re only meaningfully protected in real democracies. North Korea has a very strong free speech right on paper. Russia has the freedom of speech, and we know what happens when you criticize the government there. So Citizens United doesn’t just undermine democracy by unleashing vast sums of money into our politics, it undermines democracy because it answered the question incorrectly as to what takes precedence, free speech or democracy? It put the weighty free speech right above democracy. And as we will show, democracy is being crushed under that weight right now. Thank you.

John Donvan

Thank you, Francesca. And now we’re gonna hear from Floyd Abrams, senior Council at Cahill Gordon & Reindel. Floyd, you’re saying that Citizens United has not undermined democracy. You have three minutes to tell us why.

Floyd Abrams

I think it’s worth starting, even in the brief time we have by what the case was about. It was about a documentary which blasted Hillary Clinton at a time when it looked like she’d be the Democratic candidate for President. Very tough, I think unfair. But the quintessential example of political speech, which has to be protected in my view, under the First Amendment, it was that documentary which could not be put on pay for view. Which is what the people who were against Hillary wanted it to be. Not allowed to be. The public, couldn’t see it on pay for view because of the law at issue in Citizens United. And then could because of the victory of what I will call the First Amendment side in the Citizens United case.

There are hard issues here. One that’s not hard is this, no speech is more important to democracy than advocacy of voting for, or in the case of this documentary, against a candidate running for president. No speech. And yet that speech was speech which could not appear, could not be seen because of legislation adopted in the name of democracy, but which wound up stifling free speech.

The statute itself and where we are now is worth just talking about for the moment I have left. It’s a statute which has the effect, the deliberate effect of preventing speech. And what it had in mind, big corporation, so much money, they could do so much harm. That was the argument. It persuaded a lot of people. We have an answer to that question now. I mean, we know what has happened and what hasn’t happened now. And the answer is that the speech that people were afraid of, corporate speech did not occur. It was a myth. Thank you very much.

John Donvan

Thank you Floyd Abrams. Our next speaker, uh, is Ciara Torres-Spellicsy, Professor of law at Stetson University. And reminding everyone that you’re answering yes, in answer to the question has Citizens United undermined democracy? The floor is yours.

Ciara Torres-Spellicsy

Good evening. In President Obama’s State of the Union in 2010, he said, “The Supreme Court reversed a century of law that I believe will open the floodgates for special interests, including foreign corporations to spend without limit in our elections.” Justice Alito reacted to President Obama by mouthing the words, “Not true, not true.” History has shown that President Obama was right and Sam Alito was horribly wrong.

One of the negative impacts of Citizens United has been a misreading of the opinion, even though the opinion itself is pro disclosure. Unfortunately, that is not how the decision has been understood by many Americans. Rather, they read Citizens United as 100% deregulatory, and they mistake Citizens United as blessing dark money. Dark money is money that is spent in politics where the average voter has no idea where that money came from. And there has been over $2 billion of dark money in federal elections alone since, since Citizens United.

I wrote about dark money in my forthcoming new book, and as a researcher I have to find ways to track dark money, because if you only look at FEC filings, you end up in dead ends. And I found two places to look for dark money. One are bankruptcy filings, and the other are criminal prosecutions. So for example, in the first energy scandal in which a publicly traded company, called First Energy, paid roughly $60 million in bribes to the Ohio Speaker of the House, Larry Householder. Who then took that money and spent it on dark money in Ohio elections. Prosecutors in that case had wiretaps of members of the First Energy criminal conspiracy literally citing to Citizens United as the reason why they’re hiding corporate and illegal sources of funding from Ohio voters was fine. Well, spoiler alert, it wasn’t fine. This is why the ex speaker of the Ohio House, Mr. Householder, is in prison now.

We also know President Obama’s prediction at his State of the Union wasn’t just correct, it was correct with respect to his own reelection. What we know now is that money was stolen from a Malaysian sovereign wealth fund, routed through several corporate structures, deposited with pros, then given to American straw donors before landing in a US entity that supported Obama’s reelection. Was that good for American democracy? I don’t think so.

John Donvan

Thank you, Ciara. And our final speaker in this round is Eric Wang, uh, partner at the Gober Group who is arguing that Citizens United has not undermined democracy. Eric, it’s your turn.

Eric Wang

Good evening. Here we are 14 years after Citizens United and the Republic is still standing. Now, some say that we’re on the precipice of losing our democracy. But to paraphrase the late Tina Turner, what’s Citizens United got to do with it? Nothing. So first we’re told that Citizens United is bad for democracy because it unleashed this f- the floodgates for campaign spending. Is there actually too much spending on campaigns? Now, in 2020, a record $16.4 billion was spent on the elections. That’s a lot of money, right? Well, $17.3 billion was spent on the Super Bowl. $17.3 billion on a football game, $16.4 billion on an election. You decide.

Now, campaign spending has also been dramatically outpacing inflation in America, historically, long before Citizens United. And if you look at the example of campaign spending in presidential elections in recent history, you’ll notice something interesting. You’ll see a spike in campaign spending. In 2008, uh, right before Citizens United spending actually dipped right after Citizens United in 2012. And then you see another s- another spike in 2020 on campaign spending. What happened in 2008? The financial crisis. What happened in 2020? The pandemic and racial strife. It’s only proper that donors are going to give more money and organizations are going to spend more money on elections when we think the stakes are higher. And we’re told that the stakes keep getting higher and higher in elections.

Now, some people say that Donald Trump is a threat to democracy. I wanna be clear, I’m not here to either support or oppose Donald Trump because that’s not what we’re debating. But if you think that Citizens United is a threat to democracy because of the huge amounts of campaign spending that it unleashed, Donald Trump actually represents the opposite of Citizens United. In 2016, Hillary Clinton’s campaign and her supporting Super PACS outspent Donald Trump’s side by a whopping two to one margin. And that trend continued in 2020 and continues this year.

Lastly, people say polarization is undermining democracy. But experts on both the left and the right are increasingly recognizing that the polarization is actually being driven by small dollar donors. The opposite of Citizens United. And I’ll just quote from Richard Pildes, a well-known election law expert at NYU law who writes, “Small donors contribute more to ideologically extreme candidates. Most ideological extreme incumbents raise dramatically more from small donors than more moderate incumbents.” So in summary, Citizens United has nothing to do with the things that people say are undermining democracy. Thank you.

John Donvan

Okay, we’re coming up to a break. Once again, the question we’re debating, has Citizens United Undermine Democracy? I’m John Donvan, this is Open to Debate and we’ll be right back.

Welcome back to Open To Debate. I’m John Donvan. Here’s the question we’re debating, has Citizens United undermined Democracy. We’ve heard opening statements from Francesca Procaccini, Ciara Torres-Spellicsy, Floyd Abrams, and Eric Wang. Now we’re gonna move on to round two. And in round two we have discussion with one another. We challenge one another’s ideas in a, uh, more free flowing form.

But I, I just wanna say what I think I heard in the opening statements, uh, were two levels of argument. One was about theories and principles. And in that regard, uh, we heard the argument that freedom of speech, particularly when it comes to political speech, uh, is not to be curtailed. Uh, but the counter to that argument is that, um, Citizens United has, uh, uh, allowed for a system where those with more money, get more speech, and that that’s inherently corrosive to democracy. That there’s a tension between freedom of speech and democracy, and that a choice has to be made.

We also heard a practical argument after 10, uh, 14, 13 years, are we seeing enormous amount of dark money raised, uh, under the regime of, uh, Citizens United? That that dark money is inherently corrosive by, uh, letting people have, uh, influence where the rest of us don’t know who they are. That it’s opened up a floodgate of special interest. But we heard the pushback to that, that this is, uh, a set of, uh, problems whose potential harm has been exaggerated and has not been borne out by reality.

I also think that we wanna take one moment for people who might be listening just to… and maybe I can have your participation in this to clarify what we mean by Citizens United. Citizens United was a case in 2010, uh, heard by the Supreme Court, uh, with the participation of one Floyd Abrams in the court. Establishing a right for, uh, corporations and unions and others to raise unlimited amounts of money and to spend it, uh, their way to, um, make whatever kind of political statement they wanted to make as long as they were not coordinating with the campaign. They do have on paper a requirement to disclose who their donors are. Does anybody disagree with that or want to add to that?

Okay. I want to go to you then, um, Francesca, you’ve… you were making the argument that there’s a tension between freedom of speech as an absolute and democracy. But what we heard from your opponent, Floyd Abrams, was the argument that whether that’s true or not, which he did not address, uh, fre- fre- freedom of political speech is, is the one to be sacrosanct. It’s more important than all other forms of speech and therefore would be in tension with your argument. So what’s your response to that?

Francesca Procaccini

I mean, one could say just the opposite, that because our politics are so important to democracy, it is exactly where we need to be extraordinarily careful about the lines we are drawing. It’s not to say that that means all lines go out the window. It’s to say that we have to have clear, neutral, reasonable lines and limits on how money can influence our politics. Citizens United open… it didn’t o- it didn’t do it the whole way, um, as a case, but it started a legacy of campaign finance cases that have basically shut the door on all reasonable regulations. So Floyd might be right that the particular, um, ca-… you know, film at issue there sh- should be shown, but that doesn’t mean that all political speech-

John Donvan

And Fran-

Francesca Procaccini

… should run rampant.

John Donvan

And Francesca, what’s the harm?

Francesca Procaccini

Well, it, it again goes to what is democracy? Democracy is inherently about equal citizenship. And in an unequal world, uh, if you make, uh… if you connect so strongly, money and politics, you’re going to have an unequal politics. That’s not a democracy.

John Donvan

Okay. Let’s take that to Floyd. So the argument is that the re- the reality of the world is that more people with more money would have more political influence, and that that is inherently an inequality that your opponents is saying is detrimental to democracy.

Floyd Abrams

I think there’s some truth in that. Uh, people who have a lot of money tend to have a lot more power. They have a lot more access, they have a lot more impact on other people. But the one thing I can’t sign onto, and Francesca was very straightforward. She and I used to teach together. She was always straightforward. Uh, uh, but really, she, she said one thing I thought very fairly and that many people on her side of this argument don’t make, which is that there is a sacrifice of speech because of Citizens United. That is the consequence of it. That, that be-… had we lost, uh, you know…

I mean, again, it’s it’s not just the one case itself. The case itself, again, that the Hillary do-, uh, documentary, which could not be shown if, uh, the law had remained, uh, as it was. I mean, the reality is I don’t believe at least we have to choose between free speech and free elections. And I think when we start down the road of, of saying, acknowledging in my word, admitting that the price tag of, of what would’ve been the law, uh, would’ve been a deprivation of speech.

John Donvan

And, and, and is the inequality of-

Floyd Abrams

That we would be in a much worse state than that.

John Donvan

Is… And Floyd is… are you saying that the inequality that I think you’ve conceded is a real thing, is a price that would… is worth paying to protect the speech?

Floyd Abrams

I don’t think the way to solve inequality is to suppress speech. Uh, and I think once we start down that road, uh, we will have more inequality and less speech.

John Donvan

I, I know that you wanna jump in, Eric, but I just wanna hear from the other side before you do. Either, either of, uh-

Francesca Procaccini

The, the only thing in, in quick response is, you know, we, we actually rely all the time on government to help with the inequalities of our society. Uh, it, it’s not a perfect system, um, but that’s democracy. It’s better than every other system. Floyd’s absolutely right that you, you want a situation in which maybe suppressing speech is not the ideal way to fix social inequality. Um, but it, it, it can be one part of a broader scheme of helping achieve the promise of equal citizenship.

John Donvan

Eric.

Eric Wang

I’d like to address the equality issue. Uh, you know, I, I first started working in campaigns in a professional capacity more than 24 years ago. Uh, I… campaign finance is what I do for work on a day-to-day basis. And it always amuses me the out-sized importance that certain segments, and I wanna be clear it’s only certain segments of our population asc- ascribed to this issue. There are so many ways in which, uh, campaigns and elections are unequal. Uh, you know, if, if money had such out-sized influence, we would see Jeb Bush have won at least one primary. We would see Mike Bloomberg, who spent $1 billion of his own money have won at least one primary. We would’ve seen Tom Steyer, who spent at least $300 million of his own money won at least prim-… won, won, won at least one primary. We would’ve seen Ron DeSantis win at least one primary, who had $100 million dollars or more at his disposal with his super PAC.

But the overriding, you know, thing that decides elections is candidate quality. And that’s something, something you can’t buy with money. And, and there are so many other things. You know, here we are in the Pritzker School of Law, how many institutions in Chicago and Illinois are named after the Pritzkers? How much name recognition does that give to the governor when he is running for office? How does the government equalize? H- how can the, the government possibly go about equalizing all of these various factors in campaigns? But why do we single out campaign spending for, for leveling the playing field?

John Donvan

We’ve had 10 years to see what’s happened. Um, Ciara your opponent in his opening, he feels that the, uh, the potential harms were exaggerated from the beginning and never lived up to. I know you disagree. So what’s, what’s your evidence of evidence of harm?

Ciara Torres-Spellicsy

So in the 2020 election, our, our last presidential election, there was $100 million of corporate spending, and that’s Citizens United style spending. Not, uh, to be confused with Corporate PACs, which is a different monster. That’s a lot of money in my world. Um, if you think about the median income of the average American, it’s around $31,000 a year. They’ll never see a million dollars. They’ll never see anything close to it. So I think one of the impacts of all of this big spending is it… uh, is demoralizing to the average voter. They think that their vote doesn’t count. They think that it’s a rigged game. And the more that there’s this huge amount of spending, the more that they feel that their vote is devalued. And I think that’s really dangerous because I think as, uh, Francesca said, democracy is really fragile.

Eric Wang

And if I could just respond quickly to Ciara’s point. I mean, in my opening statement, my point was you have to look at these numbers in perspective. I think she said $100 million dollars was spent on the 2020 elections by corporations in direct Citizens United style spending. And that is… that sounds like a lot of money in isolation but… And I had to Google this, but that’s six-tenths of 1% of the total amount that was spent in that election. That’s a drop in the bucket. And that’s Floyd’s point.

Ciara Torres-Spellicsy

So, can I add one point to that? There was also a billion dollars of, uh, dark money in the 2020 election, and we have no idea where that is from.

John Donvan

Can you, can you define dark money for people not familiar with the term?

Ciara Torres-Spellicsy

Certainly. Uh, so dark money is money that is spent in the election. It’s usually routed through a 501C4, which is a social welfare organization, or a 501C6, which a trade association. And once it goes through that nonprofit, a… the public cannot tell where that money came from, you know-

John Donvan

J- j- just, just to clarify.

Ciara Torres-Spellicsy

Yeah.

John Donvan

My understanding is that the, that the, uh, Citizens United regime requires disclosure of donors.

Ciara Torres-Spellicsy

It does, except that we have a, uh, FEC that does not enforce campaign finance law. So you can pull, uh, records where it says, “We spent a million dollars.” And then you turn the next page and you look for donors and it says zero donors. And it, it’s this weird way that the campaign finance law interacts with our tax law, but it is sort of perfectly legal to spend dark money in elections, millions of dollars at a time.

Eric Wang

So I used to work at the FEC and just a few points. Uh, so again, a billion dollars you cite as being spent in dark money. And again, I go back to my point that, that as we looked at in perspective, $16.4 billion total, so that’s a small percentage. And in the 14 years after Citizens United, the percentage of dark money spent on the elections has never exceeded 5% of the total amount spent in that election.

Uh, in terms of donor disclosure and dark money, a lot of this money is spent by groups like NARAL Pro-Choice, uh, and then, and their counterparts, National Right to Life. Every town for gun safety and their counterparts, the NRA. Uh, so, uh, you know, do you, do you really want throughout the donors to those organizations just because they feel they, you know, they’re threatened by candidates that oppose their policies? And they feel like they need to speak out in order to get their policies enacted by elected officials.

Francesca Procaccini

You know, so two, two responses here to, to sort of all the numbers. First is, you can have more than one problem in an election, right? So just because, uh… You know, you can have dark money be a problem and overwhelming non dark money spending be a problem. They can both be really radical problems. You can have to… you know, note the opening. You can have, um, former President Trump be a threat to democracy and Citizens United be a threat to democracy. These two things can go hand in hand. And it does not matter, just because money doesn’t always determine the outcome in an election doesn’t make it not problematic and not have the harms that Ciara has, um, has identified.

The second point is that dark, dark money and some of the regulations you are talking about are actually a perfect example to pick up on something Floyd said about a difference between speech suppression and speech regulation. The reality was the Hillary film and other political speech, it was not suppressed. You may not make this documentary ever, and you may not air it ever. No. The regulation said that it might not air at a certain time in a certain way, in a certain market because of certain money, right? These are limited, reasonable regulations that do not inhibit the political flow of information, of messages getting out there. But none of that is what Citizens United is talking about.

John Donvan

Eric, what, what is the case against requiring donors to tell us who they are?

Eric Wang

Yeah, so it, it actually, it’s not… it’s more than just speech regulation as Francesca just, uh, stated. It actually does act in effect as an inhibition and suppression on speech. Uh, you know, donors to these organizations that are involved in hot button issues like abortion. I mean, look at the climate that we’re in. These, these donors, when they are disclosed, they are subjected to threats and harassment. A lot of them have interests, you know, they wanna oppose an incumbent elected official. And if they’re disclosed, those elected officials are in positions of power to do great harm in retaliation to them.

John Donvan

Well, let, let, let me, let me stop you there. And just to take that point and bring it to Ciara, what do you think of that justification for non-disclosure?

Ciara Torres-Spellicsy

So, uh, in Buckley v Valeo, uh, the court acknowledged that there could be a harassment reason for certain groups to not name their donors. And that exception still exists in, uh, campaign finance law. However, Citizens United lost that part of their, their case. They had argued that if their donors were named that they would be harassed, and eight to one the Supreme Court said, “No, there is a voter informational interest in knowing who your donors are.” And I think that is the stronger interest that people know who is trying to influence their vote.

Eric Wang

On the point of corruption and dis- and disclosure, it’s, it’s not the spending of money itself that causes corruption, it’s the knowledge of who’s spending that money that actually causes corruption. These disclosure, um, lists provide readily available friends and enemies lists to elected officials. I mean, this sounds like a radical idea, but we’ve taken it as an article of faith for the past 50 years almost, because the Supreme Court said so without any empirical evidence that, you know, there’s this un-allied, uh, interest in disclosure. But you know, Bruce Ackerman and Ian Ayers at Yale, Yale, uh, at Yale University actually wrote about this a number of years ago, and they proposed mandatory anonymity in campaign spending. And that’s how you get a-

John Donvan

Let me ask-

Eric Wang

… a [inaudible

:11].

John Donvan

Let me as-… I, I wanna jump in for… with have a little bit of time left with a what if question. Floyd, you, you made the First Amendment argument, basically a constitutional argument. But if the Constitution were amended to return us to something closer to the regime that Citizens United reversed, it would become constitutional. Where would you be on the question at that point?

Floyd Abrams

If the Constitution were amended, I would oppose the amendment. I mean, it’s, it’s all based on a distrust of speech. The harm speech can do, the unfairness, and we all know speech can do harm. Uh, we have libel law that deals with an angle of that. There are other pieces of legislation which deal with it. But as a people, we’ve bet our liberties and the success of our country on understanding that speech can do a lot of harm, but that limiting speech can do much more. And that’s why to come back to Citizen United, it, it seemed to me from the start that the legislation, uh, that had been adopted was in good spirit for good reasons, understandable reasons at least. That the legislation was by its nature one which called upon the suppression of speech as a basis of making our society better. And that’s not the way we have thought about free speech through our history.

John Donvan

Well, I, I, I raised the question of the constitutional amendment because, um, in September last year, New Hampshire Senator Jeanne Shaheen reintroduced an amendment that would in effect overturn Citizens United. And I want to go to the other side. W- would, uh, would you be in favor of such an amendment or is that not a mechanism that you would prefer to bring to this issue?

Francesca Procaccini

I mean, I suppose I would be in favor of it only because I think, um, that, you know, I, I would like to roll back some of the really, uh, unreasonable, heightened protection that Citizens United gave to political speech. You know, subjecting every reasonable campaign finance regulation to the strictest of scrutiny. That just doesn’t seem to be a workable regime.

Ciara Torres-Spellicsy

I guess I would add that, um, if you were

laughs)… if you’re going to open up the Constitution, uh, you probably need the amendment to not just address Citizens United, but to address Buckley v Valeo as well, so that you could have expenditure limits which other countries have. And we think of them as thriving democracies as well. Uh, and this movement to amend, uh, has I think around 17 states who seem to be in support of it. So it’s not just, um, single members, uh, in Congress who are proposing amendments. There is also a, a grassroots effort at the… that wants to amend the Constitution in this way.

John Donvan

All right, we’re gonna have to wrap this up here and take another short break, before we get into the question and answer portion of the program. Our question, has Citizens United undermined Democracy? This is Open to Debate. I’m John Donvan, we’ll be right back.

Welcome back to Open to Debate. I’m John Donvan here with Francesca Procaccini, Ciara Torres-Spellicsy, Floyd Abrams, and Eric Wang. And we’re debating the question, has Citizens United undermined democracy? Now we’re gonna move into the question and answer portion of the program. So I want to go now to audience questions. Hey Dwayne.

Dwayne

John, um, I wanted to follow up on the question-

John Donvan

We, we met earlier this evening. This was not a set up.

Dwayne

Not a plan.

Francesca Procaccini

(laughs).

John Donvan

No.

Dwayne

Uh, Eric made a point earlier, and it really was, I thought provocative, but no one responded to it. He said, what if the Super Bowl, the 17.5 or $17.9 billion spent on the Super Bowl, what if that was the case? Unlimited spending to describe, to shape your perception of what was being played. Would people have actually watched, if they thought that the 49 ERs were spending this kind of money and then a whole nother group of people you don’t even know just came in and dropped a bunch of other money to influence the outcome of the game?

Francesca Procaccini

I obviously agree with the question, um, in terms of, uh, the, the lack of, uh, the loss of the faith and, and the harm that that is. But something we also haven’t brought up here that your question makes me think of is the variability to run for office is now impossible because of the flood of money. The, the pool of people who we can even vote for has shrunk so much to a particular segment of our society. We’re not a democracy, we’re a oligarchy.

Floyd Abrams

Francesca makes a good point, in the sense that sure, people who have a lot of money also have a lot more access, and they have a lot more chance to affect, uh, how things work. There are things we can do about that by vis-a-vis our criminal law, when, when things get really out of hand. There are things we could do with taxation. And in the name of living in a more egalitarian country, we, we cut back a lot more than we do now on the enormous amount of inherited wealth in the country. They’re, they’re important issues, but they shouldn’t lead to the conclusion that we ought to change our system entirely about who can speak and how much speech they can engage in. That should be as nearly absolute as we can have it.

Nothing is fully absolute, but, but we have we have more freedom of more people to say more things and to take more positions than really does exist anywhere else in the world. And I wouldn’t want to change that.

Audience

Ciara, you mentioned in your introduction, president Obama specifically mentioned his concern with foreign corporations spending money on American elections. And I just wanted to hear a little more about the extent to which, um, such a thing has occurred. And if so, how can we, um, you know, defend our elections from foreign corporations’ money?

Floyd Abrams

Well, first foreign spending here is illegal for foreign corporations, etc. Uh, and it was illegal when President Obama said what he did. Is it enforced enough? I don’t have a view on that, but I suspect I’m as suspicious as you about whether in fact, it, it really accomplishes its aim. But none of that ought to lead to an abandonment of our First Amendment rights as Citizens United would’ve done.

John Donvan

I, I think Ciara was addressing the question, so I just wanted to make sure to come back.

Ciara Torres-Spellicsy

Yes. Foreign individuals are banned from spending in, uh, US elections. However, because the FEC hasn’t promulgated a clear rule about what would make a corporation “foreign,” it has left this ambiguity-

Eric Wang

It’s defined by the statute. It’s, it’s defin-… it’s, it’s defined by the speaker.

Ciara Torres-Spellicsy

laughs). Yes, though the FEC has been sued many, many times for not enforcing its own, uh, campaign finance laws. So there was this foreign pornographer and he spent in an LA election and there were complaints to the California authorities and to the FEC. The FEC did nothing. The California, um, regulators actually fined them because they said that was an illegal use of foreign money.

Audience

Question for Eric. You seem to be on the side where political speech should be anonymous.

Eric Wang

I, I, I think, again, I’m all about choice. I think it’s the right of individuals. It’s the right of organizations to choose whether or not they wish to disclose themselves and to disclose their donors and, uh, to leave it up to the voters to evaluate the credibility of their speech.

John Donvan

Can I jump in and just ask the question here? Uh, are you suggesting that anonymity is necessarily corrosive-

Audience

Particularly I guess, uh, during a time of rising foreign influence in elections, if we’re just gonna allow any corporation not disclose their donors, it seems to open the door to those kind of speech from foreign institutions.

John Donvan

Okay.

Eric Wang

Yeah. I mean, the Russian troll farms that are posting divisive messages on Facebook and other social media platforms, they don’t care about disclosure laws. I mean, you could sit… you could mandate disclosure just like you could outlaw murder, but murder’s still gonna happen.

Audience

I have a question for the two gentlemen. Uh, Republican congressman, uh, Bob Ingles from South Carolina reported that when he, uh, imprudently changed his position on climate change, he was approached by corporate donors who told him that unless he repented, they were going to drive him out. They’re gonna find someone to run against him in the primary and fund them to the max and, and kick him out of office. He didn’t repent, they did. They found Trey Gowdy who replaced him. And the only difference in the two platforms between Ingles and Gowdy was on climate change. How does that square with Justice Kennedy’s view in, in, uh, Citizens United, that corporate contributions don’t create even the appearance of, uh, impropriety or corruption?

John Donvan

Floyd, do you wanna take that one?

Floyd Abrams

I, I’m tempted to say no, but-

Audience

(laughs).

Floyd Abrams

… I don’t think it does, because there are circumstances such as you’ve identified, uh, in which it does. I do think that as a general proposition, I think we should have more disclosure, uh, rather than less. The Supreme Court is moving in the opposite direction.

Francesca Procaccini

I think that’s exactly right. I, I, I wil- I will only add briefly that, uh, the, the appearance of corruption and corruption itself, uh, it’s a very thin line between the two when it comes to the question we are asking. When it comes to whether this type of regime undermines democracy. Of course there’s an actual difference between real corruption and the appearance of corruption, but not when we are asking about whether or not our f- faith and participation in democracy as citizens is being corroded. So I think that’s exactly right.

Audience

So Floyd, you mentioned that the primary point here is in service of free speech. Um, but you also mentioned narrow as they may be, we also have laws that protect groups of people from harmful speech. Now, Francesca, you mentioned that the primary service of free speech isn’t service to democracy. So then where do we draw the line between when speech that is harmful becomes broad enough to no longer be particularized to be damaging?

Francesca Procaccini

Well, I think the first part, and this is in the spirit of the debate, is to acknowledge this is not an easy question. This is actually, Citizens United is the crux of one of the deepest, hardest questions at the, the cleavage point between, um, free speech and democracy. Uh, you’re asking the limiting principle. I think the first point is just there should be a limiting principle. That when we don’t have any reasonable limiting principle, we are only falling off the cliff into corrosion.

John Donvan

All right. That concludes this round of our Open to Debate program. And now we move on to our closing round. And in our closing round, each of the debaters will take two minutes to sum up their position and try one more time to persuade you. And Francesca, you are speaking first. And once again you are answering yes to the question has Citizens United undermine democracy or last chance to tell us why.

Francesca Procaccini

Money has severed the link between the people and our democracy. Uh, and our, our free speech, you know, it means little if we cannot meaningfully influence politics, run for office, or hold our government officials accountable. That near 17 billion we spent in 2020, that is the… more than the GDP of 90 countries. And that was $10 billion more than what was spent before Citizens United was decided.

Our last midterms spent 30% more than the midterms just before. It now costs four and a half million dollars to win a house seat, and 17 and a half million dollars to win a Senate seat. And you know what? It’s not better at the local or state level. 20% of Americans live under minority rule. More than 60% of all elected positions in the country are occupied by white men, when they are 30% of the actual population. The incumbency rate in this country is 95% for all elected officials. And 4% of Americans actually think that our politics are working. How do you square these numbers? Money has a lot to do with it.

A couple of years ago I was meeting a friend for coffee and, uh, it was election day. And so I said, “You know, can we stop by the polls to vote on the way?” Sure. Drove up, parked right outside at the door. I said, “I’ll wait here.” Aren’t you registered? Yes. There a reason you can’t vote? No. So why don’t we go together? He said, “What’s the point? My voice doesn’t count. They don’t listen to me.” That’s the consequence of money in politics. That disenfranchisement, disengagement, disillusion, that’s how Citizens United has undermined democracy.

John Donvan

Thank you, Francesca. Um, Eric Wang, you are up next with your closing statement. And reminding everyone your answer to the question is no the Citizens United has not undermined democracy.

Eric Wang

I’d like to just briefly address, uh, the point that Francesca made about diversity and throw out some numbers of my own. When Citizens United was decided there were 82 women in Congress. Today there are 151, an 84% increase. When Citizens United was decided there were 73 members of Congress who identified as racial minorities. Today, there are 137, an 88% increase. When CU was decided, there were three openly LGBT members of Congress. Today there are 13, a more than 300% increase.

So, I’d like to ask you to think of this debate as an analogy with an election campaign. Uh, just as the two sides are trying to convince you of their positions, uh, two sides in a campaign are trying to convince you of their positions. And just as it took money to put on this event and to get the speakers here, uh, it takes money to put on campaign events to get the candidates before voters, and to get their messages out. But should the four of us here on, on this debate stage have a monopoly on the debate over Citizens United? Should candidates have a monopoly on speaking about the elections?

Now, outside of this debate hall, there’s an organization called End Citizens United. It’s a 501C4, so-called Dark Money Organization not required to disclose its donors that raises and spends millions of dollars, ironically, to counteract the Citizens United decision. It even has multiple PACs that give money to candidates that support the gr- group’s, uh, agenda. Now, money isn’t speech, but it takes money to speak. Before Citizens United nonprofit, 501C corporations like End Citizens United were prohibited. Prohibited from advocating against candidates that it opposed. before Citizens U- Citizens United PACs could only accept $5,000 from donor- donors to support or oppose candidates. Uh, so thereby limiting how much they could speak. Citizens United doesn’t undermine democracy, it makes it better. Thank you.

John Donvan

Thank you, Eric. And next up, uh, is Ciara Torres-Spellicsy. And Ciara, once again reminding folks you’re answering, yes, it does undermine democracy. Your last chance to tell us why.

Ciara Torres-Spellicsy

Okay. In the prosecution of cryptocurrency miscreant, Sam Bankman Fried, uh, the public could finally see behind the curtain of FTX’s dark money spending. And what they could see were executives in their 20s stealing money from customers and taking corporate funds and spending it in American politics. Two FTX executives have pleaded guilty to this elaborate scheme, which included $100 million in illegal corporate funds that went into the 2020 and 2022 elections.

Because the US Marshals are now clawing back these political expenditures as fruits of crimes, the public can finally see which politicians and which groups were supported. We know that the FTX money went publicly to Democrats and secretly to Republicans. When asked about this while under indictment for campaign finance crimes, Sam Bankman Fried linked Citizens United to dark money. He said, “That was not generally known,” i.e. his dark money spending. “Because despite Citizens United being literally the highest profile Supreme Court case of the decade, and the thing everyone talks about when they talk about campaign finance, for some reason in practice, no one could possibly fathom the idea that someone in practice would actually give dark. I… All of my Republican donations were dark.”

The American public doesn’t know whether it was FTX’s dark money that generated the dysfunctional House of Representatives we have now. We know that FTX gave to Republicans because Republicans have returned the money to the US Marshals. We have to think about the big picture. What would a cryptocurrency company want? I think that they would want a deregulated legal environment. And nothing would facilitate that better than a split and dysfunctional Congress, which is unlikely to produce any new laws to regulate their industry.

But there are knock on effects for all of us. Congress has also struggled to pass the federal budget, and we’re about to hit another fiscal cliff. We also can’t fund aid to the struggling democracy in Ukraine. Is that good for American democracy? Clearly not.

John Donvan

Thank you Ciara. And now to bring it home, our last, uh, closing statement will come from Floyd Abrams. You’re arguing, as you did many years ago, that Citizens United does not undermine democracy. Your last chance to tell us why.

Floyd Abrams

I’ve also had other clients.

Audience

(laughs).

Floyd Abrams

(laughs).

John Donvan

(laughs).

Floyd Abrams

But it is the c-… it is the case that I took that case because I really believed that the legislation at issue, uh, did threaten serious First Amendment principles, and that is what the Supreme Court ultimately held. I’d just say more generally, I don’t dispute, I wouldn’t dispute at all that we are in many respects a flawed society. And a society in which very, uh… a limited amount of people live far better than many, many elsewhere. We have issues, the FTC and the FCC, and I’m not mocking it, don’t agree on various issues. Our government is paralyzed sometimes. The one thing that makes us different, and I want to say better, than any place else in the world, is that we do have a First Amendment. Which is interpreted more broadly, more protectively, and more lovingly by conservatives and liberals on the court, and the mo… th- this year and last year. And we should be pleased with that and not change the system that we have.

John Donvan

Thank you, Floyd. And that concludes the debate portion of the program. I just want to say to all four of the debaters how much I appreciated the way that you embodied and performed and delivered the thing that we value here, which is honest, respectful argument. We, we know we’re all gonna disagree, but we think there’s a way to disagree constructively. And we think that was demonstrated by the way all of you conducted this tonight. So thank you very, very much for that.

[NEW_PARAGRAPH]At Open to Debate, as I mentioned, uh, we really believe in argumentation, good argumentation, which we think also requires listening, for the debaters to listen to each other. I think that happened tonight. But we also like to know about your listening to the arguments that you, uh, that you heard. And we’d like to just know where you stand, uh, but after, after hearing everything. So I just wanna ask you to show with applause, um, where you are on the yes or no of the question that we, uh, debated this evening.

So, um, for those of you who would, at this point, no matter where you started at this point, if you are with the yes side, if you would argue, if you would agree substantially that Citizens United has undermine democracy, could you please give us a round of applause?

And, and now to the opposite side. If your position is no, Citizens United has not undermined democracy. And the other, the last thing we’re interested in is how many people change their minds in the course of the program tonight.

Audience

(laughs).

Eric Wang

Failed.

John Donvan

So this was an open-

Eric Wang

Failed.

John Donvan

… -minded crowd,

(laughs).

Francesca Procaccini

(laughs).

Audience

(laughs).

John Donvan

Let me ask another, another question to elicit constructive applause. How many of you, regardless of having held to, to your ground, heard something from the opposing side that’s made you think differently about the issue? Made you think twice? All right, the next, uh, item I’d like to do is to introduce two our special guests to this stage, uh, Martha Minnow and, uh, and Nell Minnow, if you could come up. We’re just gonna have a very brief chat. Uh-

Uh, so I wanna introduce Martha Minnow, who’s a former dean of the Harvard Law School and a human rights activist and a graduate of Yale Law. and Nell Minow, uh, graduate of University of Chicago Law, uh, an expert in corporate governance and, uh, co-founder of the Corporate Library, which is a predecessor to GMI Ratings. Uh, you’re both here as representatives of the series that brought us here, which is named for your parents. Um, as I said at, at the beginning, our organization has enormous respect for both of your parents, and especially for the role of your dad in the last century, nearly. Let’s put it that way.

But, um, we’re very honored to be back. And I just want to ask you, um, to, um, m- m- maybe each take one question. Um, why, why it was important to have your, your… why you feel debate is important in the context of the law school here?

Martha Minow

Um, my parents were big supporters of debates. They had, uh, us debate and our family dinners. They would tell us-

John Donvan

Was that stressful?

Martha Minow

No. They would say, “You know, Nell, you take one side and Martha take the other side, and Mary can be the judge,” so yeah. And I found this today at my parents’ apartment. Uh, my father ran a program for Northwestern in Washington for 10 years, the Annenberg Program. And one of the things that he did in the program was, uh, there was, at the time, uh… Northwestern was a the National Champion of Debate team, and he arranged for the Oxford, uh, debate team to come and debate them. And I’ve got the video right here, which features a Northwestern student who became a major player in American politics, Frank Luntz.

John Donvan

Wow.

Martha Minow

Yeah.

John Donvan

Wow.

Martha Minow

So I’m giving this to you.

Audience

(laughs).

John Donvan

And the other question is, what, what do you hope people got out of tonight in this debate?

Nell Minow

So our parents who met at Northwestern, we wouldn’t be here if

laughs) one it wasn’t for Northwestern. Uh, they loved what they learned from their undergraduate class on semantics and communication. And what they really believed is that most arguments occur because people don’t ask, “What do you mean? And how do you know?” And what would mean so much to them about this debate is that that was the focus. People really talked about, what do you mean? How do you know? And they listen.

John Donvan

Curiosity is key and often overlooked. Well, thank you again. Thank you for having us and thanks for taking… spending a couple minutes on the stage. I want to thank everybody who got up and asked questions. I want to thank our debaters, Francesca and Ciara, Floyd and Eric, for bringing to the table thoughtful disagreement. In short, for being Open to Debate.

This live debate was sponsored by the Newt and Jo Minow Debate series at the Northwestern Pritzker School of Law. Once again, a heartfelt thank you to Newt and Jo Minow, whose legacy and leadership we have to thank for these debates. And thank you for listening to Open To Debate. As a nonprofit working to combat extreme polarization through civil debate, our work is made possible by listeners like you, by the Rosenkranz Foundation and by supporters of Open to Debate.

Robert Rosenkranz is our chairman. Our CEO is Clea Conner. Lia Matthow is our Chief Content Officer. This episode was produced by Alexis Pancrazi and Marlette Sandoval. Editorial and Research by Gabriella Mayer and Andrew Foote. Andrew Lipson and Max Fulton provided production support. Mili Shah is Director of Audience Development. The Open to Debate team also includes Gabrielle Lannucelli, Rachel Kemp, Linda Lee, and Devin Shermer. Damon Whitmore mixed this episode. Our theme music is by Alex Clement. And I’m your host, John Donvan. We’ll see you next time on Open To Debate.