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Money isn’t leaving politics any time soon
May 24, 2022
Episode 679

Money isn’t leaving politics any time soon

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What a recent ruling means for the future of campaign finance.

Remember the Supreme Court case we talked about last week, Federal Election Commission v. Ted Cruz for Senate? Yeah, we’re doing a deep dive on it today.

At the heart of the case is an obscure campaign finance rule that limits the amount of post-election day contributions that can be used to recoup personal loans a candidate makes to their campaign. It was intended to crack down on corruption. But the court sided with Sen. Ted Cruz, a Texas Republican, and said the law is unconstitutional on First Amendment grounds.

“It’s another decision in a series that has kind of chipped away at decades-old safeguards, that have limited the corrupting influence of money in politics,” said Daniel Weiner, director of the elections and government program at the Brennan Center for Justice, which filed an amicus brief in support of the campaign finance law.

On the show today, Weiner talks about what this means for the midterm elections, the future of campaign finance and this court’s approach to the First Amendment.

Then, sales of new homes fell to the lowest level since the start of the pandemic. We’ll explain why this is exactly what we’d expect to be happening in the economy right now.

Plus, if you’ve forgotten some of the faces you’ve met over Zoom during the last two years, you’re not alone. Listeners have a name for that phenomenon. We’ll also get smart about lifetime warranties and bear spray!

Here’s everything we talked about today:

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Make Me Smart May 24, 2022 transcript

Note: Marketplace podcasts are meant to be heard, with emphasis, tone and audio elements a transcript can’t capture. Transcripts are generated using a combination of automated software and human transcribers, and may contain errors. Please check the corresponding audio before quoting it.

Kai Ryssdal: Born ready, yo. Here we go.

Kimberly Adams: Hello, I am Kimberly Adams welcome to make me smart where none of us is as smart as all of us are. So we like to say.

Kai Ryssdal: Or so we like to say and believe in point of fact. Anyway, I’m Kai Ryssdal it is Tuesday single topic today the topic of which is FEC the Federal Election Commission versus Ted Cruz for Senate. It’s a case that we’ve touched on last week, and it’s about Supreme Court and campaign finance. And now where do things go? That’s what we’re going to talk about.

Kimberly Adams: All right, the Supreme Court sided with Republicans Senator Ted Cruz and basically said that a cap on using contributions that come in after Election Day to pay off personal loans candidates made to their campaign is unconstitutional. That cap is not okay, on First Amendment grounds. So previously, if a candidate lent their own campaign money, they can only get up to a certain amount of that back. And now that limit doesn’t exist. And so we want to know what this means for the midterms, the future of campaign finance and where the Supreme Court may be headed next in its interpretation of the First Amendment.

Kai Ryssdal: Daniel Weiner’s here to make us smart. He is first of all, he’s back. He’s been with us before. He’s also the director of the Brennan Center’s Elections and Government Program at NYU, New York University. Did you go to commencement, by the way, did you see Taylor Swift in Yankee Stadium?

Daniel Weiner: No, I didn’t. I missed that.

Kai Ryssdal: My my niece was there. She said it was great. Anyway. Anyway, that’s not what we’re here to talk about.

Kimberly Adams: I know nothing of this.

Kai Ryssdal: She gave the commencement address to NYU graduates in Yankee Stadium.

Kimberly Adams: I did not know that. Okay.

Kai Ryssdal: Anyway, anyway, back to Ted Cruz. So what did Senator Cruz say in front of the Supreme Court that got the justices to see things his way?

Daniel Weiner: Well, first of all, thank you for having me. And I’m sorry, I can’t offer commentary on Taylor Swift, although I’m a fan, actually. But we’ll, you know, we’ll move on Senator Cruz. You know, this, I think the best way to understand this decision is it’s it’s one in a series of decisions the Supreme Court has issued that kind of have dismantled various aspects of our campaign finance regulation system. And what, you know, Senator Cruz and his lawyers argued here was in keeping with arguments that others have made before, which is essentially that look, money, spending money is equivalent to speech, for First Amendment purposes, this rule that, you know, limits my ability to recoup, you know, money that I spent to pay for speech, indirectly inhibits my ability to speak, that is offensive to the First Amendment, therefore, I win. And, you know, he, I think, expected a receptive audience, and he got it.

Kimberly Adams: So you all over the Brennan Center filed an amicus brief supporting the provision of the law that the Court struck down. Why did you all think it was important?

Daniel Weiner: Well, you know, I think that, look, this is probably not the most famous provision in the campaign finance code, one might even say it was maybe a bit obscure, and you know, that’s always the case here. But if you actually look at the facts on the ground, there’s actually, you know, no evidence that this inhibited any speech, or very little evidence, most candidates do not loan their campaigns money. The majority of those who do tend to loan themselves less than the $250,000 cap. And, you know, there’s a lot of evidence that that the regulation, you know, really played very little role in actually how even the candidates who did loan themselves substantial amounts of money, decided to spend that money. So traditionally, when the court has looked at fundraising limits of this sort, it has, you know, done that kind of practical analysis of, you know, is anyone actually prevented from speaking here? And, you know, and generally has come to the conclusion that these sorts of contribution limits don’t limit people from speaking. And we thought it was important to vindicate that point. So we came in, we provided some statistics showing that there really was a very limited impact on speech. You know, unfortunately, that didn’t win the day. But we thought it was an important principle to vindicate.

Kai Ryssdal: So look, here’s the here’s the completely jaded question. But as long as the Supreme Court equates money in speech, Katie bar the door, right?

Daniel Weiner:  You know, it’s hard. So here’s the thing. There is undoubtedly, an important connection between the ability to spend money and the ability to speak. I mean, you spent money to create this radio program that that you spent money on speech. So we don’t dispute that. But the question is, you know, should there be reasonable limits, particularly in the electoral context, and even after Citizens United, even after some of these harmful decisions, the court has consistently said, you know, to prevent corruption, it is okay to limit your ability to raise money for electoral speech. And what we have seen starting with Citizens United, but then increasing and, you know, continuing and this decision is a latest example, is the court chipping away at the sort of structure of reasonable justifications for limits on electoral fundraising, and this is kind of another chink in the wall. I mean, it should be noted, they didn’t go as far as some people wanted. Senator Mitch McConnell, basically came in and said, you know what, game over, you should just sweep away basically everything that’s left of campaign finance law, they didn’t go there. So that, you know, there’s there’s still some rules left. But the money in speech equation, while it’s problematic, you know, there is some truth to that. But what’s really concerning is that there’s no consideration given to the other interests that may justify reasonable limits.

Kai Ryssdal: Right.

Kimberly Adams: So walk me through how people are concerned, this law is going to be interpreted or this change, or this update is going to be interpreted moving forward?

Daniel Weiner: Well, I think that you have to take a look at this decision in a in a bigger context, right, so So the immediate effect of this decision, I think, will be relatively limited, you might have a couple more rich dudes who can, you know, try to claw back some of the money they spent on their own campaigns. And it certainly doesn’t help if you are concerned about the fact that running for office is, you know, increasingly, the province of people who either themselves very wealthy or at least have very wealthy networks. So that’s not great. But if you look at it, again, it’s another decision in a series that has kind of chipped away at decades old safeguards that have, you know, limited, the corrupting influence what people call the corrupting influence of money in politics. And then if you zoom out even farther, you contrast that with the courts apparent lack of interest in protecting other First Amendment rights, including the right to vote. I think a fascinating comparison, there was a decision decided recently, it was called Brnovch v. DNC about the right to vote. And the court literally use the mirror image of the reasoning in Cruz.  The court said, “Well, yeah, you know, an Arizona law that restricted voting rights, it wasn’t that big of a restriction and you know, some sort of reasonable burdens, even if, frankly, they are more burdensome to communities of color, that’s okay, because nobody’s perfect.” So it literally batted that away, upheld the rule. Here, you have a very minimal, you know, restriction on the right of rich people to fund their own campaigns and then claw the money back. And the court was like, “No, that’s a violation of fundamental speech rights.” So what you really have is you have a court that is simultaneously doesn’t seem interested or is not as interested perhaps in protecting the First Amendment rights of ordinary people. And you know, which the right to vote you know, people don’t always realize, but is ultimately it’s an act of political self expression and association itis protected by the First Amendment. You have a court that’s less interested in protecting that and seems to be more interested in safeguarding the prerogatives of folks who already have a lot of power.

Kai Ryssdal: Okay, so look, following on that, then how much do you and I’ll let you sidestep this one, if you want with maybe a follow up or two, how much do you think the current political makeup of the court and then the politicization of that court, in, in to be clear other case law areas right, of which we are all aware, how much does that affect their First Amendment rulings do you think?

Daniel Weiner: I would never side step a question from you, how could you even think I would do that? Look, you know, I think that everyone tends to oversimplify the situation with the Court that the Court is not a strictly partisan institution, but it has become dominated by a particular ideology that certainly one party subscribes to more than the other. You know, what do you call that originalism, you call it textualism. But a very, very, very ideologically charged view of the law. And you saw that in Citizens United in a five, four decision that swept away, you know, post-Watergate safeguards that had been in place for decades, you see that in the voting cases. So it’s clear that there’s a particular ideology that is ascendant right now. And it’s not necessarily a consistent ideology, because there’s nothing particularly originalist about the campaign finance cases. But it is one that that certain, you know, parts of the governing elite have worked very hard to put in place, and now you’re seeing it come to fruition.

Kai Ryssdal: So where do we go then? From here? Right. In the next, I don’t know, 5,10 years. What do you think?

Daniel Weiner: Well, that’s a good question. I mean, on, you know, I, you know, on these sorts of questions, pertaining to our democracy, I think the one silver bullet here, and I’ve said this to you before, and I know you’re skeptical, but is that even this Court, which is, you know, not committed to many of the values that certainly the Brennan Center has espoused, has been actually very adamant that Congress does have the power to make rules for elections, and it has the power to protect the right to vote. It also, frankly, has the power to shore up our campaign finance system.

Kai Ryssdal: But they tried that, right? And I think it was McConnell versus FEC, right. I mean, Mitch McConnell went to court and said, “No, no, no McCain, Feingold, forget it.”

Daniel Weiner: Yeah. But the so the the point, though, is that if you’re concerned about, why are we concerned about money in politics, we’re concerned about money in politics, because money acts as a barrier to entry. So for instance, one reform that was in the democracy reform package that I know did not pass in this Congress was a program to match small contributions with public funds. And you have that in L.A., for instance, you have that in the L.A. city elections, you have that in many other states and localities, that is a good way, for instance, to balance out the the result in the Cruz case. And it’s perfectly constitutional, and even this court, I think, would would hold that it was constitutional. So I mean, the I know, you might disagree, but I think the future is going to lie, ultimately, in the elected branches of government, you know, affirmatively taking steps to shore up our democracy.

Kimberly Adams: But that’s not, you know, barriers to entry is not the only reason people worry about money in politics. It’s also this pay to play idea. So if you’ve given yourself a half a million dollar loan to your campaign, and now, you have all this time and the ability once you were in office to pay that off with donations to your campaign, that feels like it opens the door even wider for corruption than is already sort of right. You know.

Daniel Weiner: I think that, you know, what we need to do is we need to look at shoring up the rules that are still in the books that the court has not struck down and actually, frankly, shoring up their enforcement, you know, one of the parties, in this case, the Federal Election Commission, part of the problem is that, you know, there are still direct contribution limits on the books. So actually critical to the Court’s reasoning was that we’ll look, people can’t give Ted Cruz a million dollars after the election, they can write him a check for $2,800.  But the Super PAC can.  The Super PACcan. The Super PAC and the problem is, well, the super PAC can’t donate directly to him, but they can spend money in his race. And the problem is, the Super PAC can also coordinate with his campaign. So what the FEC could do is it could do a better job of enforcing those direct contribution limits. But right now, the FEC evenly divided between Democrats and Republicans doesn’t have a very strong enforcement records. So that’s one thing you could try to get. And you know, the Enforcer, the cop on the beat to be more forceful about actually enforcing the rules we have.

Kai Ryssdal: Daniel Weiner. He’s a director of the Brennan Center’s Elections and Government program there at NYU. Daniel, thanks a lot. I really appreciate your time.

Daniel Weiner: It’s always a pleasure to talk to you.

Kai Ryssdal: It’s such an interesting topic, the whole the whole money and finance. I mean, it’s infuriating, and it’s in many ways outrageous is an all of that but it’s so interesting.

Kimberly Adams: I mean every single election cycle I’m doing stories about record breaking amount of money spent in such and such race and most expensive Senate race ever the most expensive presidential election ever. And every time I think about it, I just like there are so many things that we could be doing with these billions and billions of dollars. And like, also, Katie by the door?

Kai Ryssdal: Katie bar the door. Katie bar the door.

Kimberly Adams: Katie bar the door. Katie what?

Kai Ryssdal: It means trouble is coming. Yes, trouble is coming.

Kimberly Adams: I have never heard this phrase before Katie bar the door, who is Katie?

Kai Ryssdal:  It doesn’t matter. It doesn’t matter.

Kimberly Adams: It’s like it reminds me of Game of Thrones, like I immediately have a vision of Hodor you know, like hold the door, Hodor. Oh, wait, that’s a spoiler. Sorry.

Kai Ryssdal: Oh come on, the series is 10 years old. All right. We’re going. Let us know what you thought about that, about, you know, random sayings from the past. What surprised you about campaign finance? Anything. Our number is 508-827-6278. 508-U-B-SMART. is another way to do that. Or you can send us a voice memo at makemesmart@marketplace that we’re going to write.

Kai Ryssdal: News and time for it. Ms. Adams, you go first.

Kimberly Adams: I’m just still stuck on Katie by the door because like I –

Kai Ryssdal: No, it’s Katie bar the door, not by the door. Maybe Katie is standing by the door when she bars it but the expression is Katie bar the door. Katie bar – it’s like I have a pretty deep well of like idioms and little…

Kai Ryssdal: I know, you’re from St. Louis.

Kimberly Adams: And, and you sent me this this link and it says that it’s you know, usually heard in the southern United States. And you know, St. Louis is basically like quasi-Southern and I’m going to have to ask my mother about this my grandma and see if they’ve ever heard of this.

Kai Ryssdal: Oh let me know. I’d be curious.

Kimberly Adams: Yeah, yeah. Okay. Also speaking of my my youth, I went I spent like 15 years from preschool until I graduated high school at a Southern Baptist School, evangelical, very conservative. And, like, yeah, all sorts of things.

Kai Ryssdal: So this news resonantes. That’s interesting.

Kimberly Adams: This news really resonates. So there’s this huge report that has been issued about sexual abuse in the Southern Baptist Church. And basically, after some Houston Chronicle investigations, and other allegations came to light in the last couple of years. The Southern Baptist Convention basically commissioned a its own investigation, right. And they gave this group called Guidepost Solutions, a ton of access to documents to people. And they revealed this report is now out. And it turns out the church kept not the church, sorry, the Southern Baptist Convention, which is different from the independent churches, I should say that very specifically. And so this is sort of like in a committee that loosely exerts influence, but it’s a weird structure. But anyway, the leadership structure basically had a list of more than 700 abusive pastors. And they just didn’t tell anybody. And they also in some cases, you know, basically blame the survivors. embarrass them tried to shut them down, accuse them of like trying to harm the ministry and they actively blocked people who were, you know, reporting, child molestation, sexual assaults, sometimes even from the leadership of the Southern Baptist Convention. And this is not a small group of people that we’re talking about. This is one of the largest religious denominations in the country, I’m trying to find another, a  number, I think it’s something like 17 million people within this, but I’m gonna, I’m gonna find that anyway, there’s a couple of links to it. But this is a huge denomination. This is a 300-page report. Christianity Today has a really great write up of it. And it is, you know, the Southern Baptist Convention has really been trying to avoid comparisons to what happened in the Catholic Church. But at this point, it’s even, you know, some of the leaders of the Southern Baptist Convention are like, you know, we expected it to be bad, but this is even worse than we thought. And it’s, it’s pretty significant. And oh, yeah, here we go. It’s a 13.7 million member denomination. And so some of the this the the group that came up with this report, wants them to create an online database of abusers offer compensation for survivors, sharply limit non-disclosure agreements, and establish a new entity dedicated to responding to abuse. This is from the Christianity Today article. And they’ve got a meeting, the Southern Baptist Convention has a meeting coming up, I think next month, and they’re going to have to sort out what to do about it. And this is going to be a real reckoning.

Kai Ryssdal: I would also be interested to hear what your mother and your grandmother had to say about this.

Kimberly Adams: Well, oddly enough, they’re not Southern Baptist. I was raised Missionary Baptist. It’s different, I just went to a Southern Baptist School.

Kai Ryssdal: Totally, totally.

Kimberly Adams: The music was better at church.

Kai Ryssdal: All right. My news item is very pedestrian. Total gear change, but it fits under the category of and I think I’ve used this once or twice past couple of weeks. This is what is supposed to be happening. When Jay Powell tightens interest rates and financial conditions tighten. A lot of things are supposed to happen and have been happening right. First time claims for unemployment benefits are up the stock market is getting tighter. We all know those things. Here’s another thing that is supposed to be happening, sales of newly built homes down 16%. In April, now prices went up, right? Because supply has been reduced a little bit because of some inventory challenges. But the nutgraf here is this, what we’re talking about what this number that came out today is signed contracts renewals. So it’s really up to date. And it is down 16% in April, right, slowest rate since the start of the pandemic. And why is this happening? This is happening because the monthly nut that people have to pay, right, which is the mortgage payment plus interest, part of which is interest rate based plus insurance, by the way, is getting bigger. And so home sales are falling. And this is what’s supposed to be happening. And I just want everybody to remember that things are supposed to be happening that are happening. And that’s it. That’s what I got  Cold comfort to people who still don’t have a house. It’s a horribly cold comfort. I totally get it. I totally get it. And look, I asked Jay Powell about this when I had him in front of me. I was like, What do you say to the people who are gonna lose jobs? Because you are doing this? And you know, he gave some very bureaucratic answer, but but this is what is supposed to be happening. And we all just need to remember that. Now whether he can do a soft landing? I don’t know. I don’t know the answer to that. Don’t know.

Kimberly Adams: Yeah. It’s just there’s there’s no housing. You know, like, every story Amy Scott does is like there’s such a shortage. And now, you know, it’s even more expensive to get a home get what homes are available. And I just, you know. Well anyway.

Kai Ryssdal: The whole affordable housing thing is a misnomer in this economy. But that’s, that’s actually – Bridget, write that down affordable housing.  Yeah. And I know we’re doing a housing thing with me, but this might be a separate one.

Kimberly Adams: Still. Yeah. You can’t really talk about it enough. So all right.

Kai Ryssdal: Let’s, let’s do mailbag. Jayk. Let us proceed.

Kai Ryssdal: A lot of things. We asked you all last week to share your ideas for what to say when you meet somebody in person. You don’t actually have any recollection of meeting on Zoom. A couple of you called in with some pretty clever suggestions. Here you go.

Daniel: Hey, Make Me Smart. This is Daniel from Birmingham. And I would like to submit for your consideration deja zoom.

Jeff: The word for meeting that person that you’ve only seen on Zoom. Deja-nu.You can spell it however you like. Maybe deja with an n-u?

Jim: I’d call it zoomnesia. What happens to me when I zone out.

Kelly: My suggestion would be go back to meetings in your calendar to see the list of people that were included. Thanks!

Kai Ryssdal: Very practical.

Kimberly Adams: But how do you associate the face to name? I guess the people’s names are on the Zoom.No, but you’re not going to remember because the little tiles and people don’t. Anyway, I like I like deja-Zoom. So I just went down, like a little thread.

Kai Ryssdal: Perfect. All right.

Kimberly Adams: Thanks also to Jeff in Pasadena, Jim in Oakland and Kelly in Akron, Ohio, Akron, sorry, Akron, Ohio, for those submissions. And yeah, we also got this voice memo after we talked about the really cool Make Me Smart Fan art. I had to clarify to you Kai. That the listener Audie Norman created.

Katie: Hi, Make Me Smart. My name is Katie and I live in Northern Virginia. And I wanted to let you know that Kimberly is correct. Greaves are for legs. And for arms they’re called vambraces. And the reason I know this is because I worked in a lot of Shakespeare theaters. Keep making us smart.

Kai Ryssdal: Wow, that’s wild.

Kimberly Adams: The reason I know that is because I played a lot of RuneScape when I was little younger, younger I didn’t – I wasn’t that little I was like in college. Feels little at this point. I played a lot of RuneScape. And that was like some of the gear that you could get from all sorts of things, mining and converting and all that stuff.

Kai Ryssdal: I had no idea what they were called. Alright, one more voice memo. This about the bear spray conversation we had I think it was yesterday.

Sara: Hi, this is Sara from Columbus, Ohio. Just wanted to share a quick note on Kai’s make me smile from Monday. The reason it’s really important to remember that bear spray is not like bug spray, is it’s actually a specialized long range pepper spray. So yeah.

Kai Ryssdal:  News, you can use. News you can use point that bear spray can away from you.

Kimberly Adams: Yeah, ugh. That would burn. Okay, before we go. We’re gonna leave you with this week’s answer to the Make Me Smart question. What is something you thought you knew, but later found out you were wrong about?

Paul: Hi, this is Paul calling from Vancouver, British Columbia, something that I thought I knew that I later turned out to be wrong about is lifetime warranties. For more than two thirds of my life. I thought that a lifetime warranty covered my lifetime. It doesn’t. It covers the lifetime of the item that I bought. And I kind of wish that more people knew about that so that people in customer service shops would have a much easier time when having to deal with warranty claims.

Kai Ryssdal: Absolutely.

Kimberly Adams: But like…

Kai Ryssdal: You object?

Kimberly Adams: It’s – but for the lifetime of the product is effective – like how do you know what the lifetime of the product is? If it breaks five years in they can be like, Oh, it the lifetime was only five years. So your lifetime warranty doesn’t apply and you’re like but if you fixed it, it would last for 10 and so like, I don’t know, okay.

Kai Ryssdal: I see what you’re saying. I see what you’re saying. I get it.

Kimberly Adams: All right. Keep sending us your answers to the Make Me Smart question via voice memo to our email at (makemesmart@marketplace.org) which is where you know you record in advance and then send it as opposed to calling us and leaving a message which is different 508-827-6278. Also known as 508-U-B-SMART.

Kai Ryssdal: Make me smart is directed and produced by Marisa Cabrera. Ellen Rolfes writes our newsletter, our intern is Tiffany Bui.

Kimberly Adams: Today’s program was engineered by Jayk Cherry with mixing by Gary O’Keefe, Ben Holliday and Daniel Ramirez composed our theme music. The senior producer is Bridget Wagner. Donna tam is the director of on demand and marketplaces vice president and general manager is Neil Scarborough.

Kai Ryssdal: Because somebody’s gotta be in charge. Go ahead, what?

Kimberly Adams: I cannot tell you all the ways that Jasper has notified me he’s less than pleased about my time away in St. Louis.

Kai Ryssdal: Oh, really?

Kimberly Adams: Yeah. There’s there’s a purse that probably won’t recover.

Kai Ryssdal: That’s so funny. When pets do that. You’re like, man, just be mellow, will ya. Just be mellow.

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