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Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning, everyone. We're in our 30 Issues in 30 Days election series, as many of you know, including a third of the whole series on Democracy in Peril. You know what democracy issue is getting surprisingly little attention this year? Dark money in the election campaigns. I have a theory why. It could be that money in politics, the excessive influence of corporate money especially, and anonymous money, just seems old hat compared to the dramatic new ways that democracy is being imperiled in the last two years.

The big lie and the efforts to connect that to what we've been talking about mostly in this series. To dismantle nonpartisan vote counting and election certification. The original sin of how elections are decided and policy is made in this country, the problem that seems to never go away no matter how many and what laws they try to pass is still very much with us. In fact more than ever, and yes, it affects both parties. An NPR story from last Saturday, for example, was called Dark money groups have spent nearly $1 billion so far to boost GOP Senate candidates. An article in The New York Times earlier this year was headlined Democrats Decried Dark Money. Then They Won With It in 2020.

What do we mean by the term dark money? Is there such a thing as light money in election campaigns, and is that any better for democracy if it comes in gobs and gobs? Where are we 12 years into the Citizens United era? 12 years after the Supreme Court declared in that Citizens United decision that corporations have the same rights as people to spend unlimited sums of money on candidates of their choice. Here's Mitt Romney on the campaign trail a few years ago, getting heckled as he supported that idea.

Mitt Romney: Corporations are people, my friend.

Heckler: No, they're not.

Mitt Romney: We can raise taxes that-- Of course they are. Everything corporations earn ultimately goes to people. Where do you think it goes?

Hecklers: It goes into your pocket.

Mitt Romney: Whose pockets?

Hecklers [shouting]

Mitt Romney: Whose pockets? People's pockets. Okay. Human beings.

Brian Lehrer: Pretty funny. At least some of those hecklers found Mitt Romney to be quite amusing, as well as quite wrong. After the Citizens United ruling in 2010, comedian Stephen Colbert-- Do you remember this? Did you hear this at the time? Stephen Colbert tried to put a ballot measure up for a vote in his home state of South Carolina, asking voters to weigh in on the direct question, "Are corporations people, or are only people, people?" but he didn't succeed in getting it on the ballot.

Let's talk about dark money, unlimited money, and corporations as people and what they're doing to democracy in the current midterm elections as part of 30 Issues in 30 Days. Our guide for this is Adam Winkler, UCLA professor of law and author of the book We the Corporations. Adam, thanks for helping out with this. Welcome back to WNYC.

Adam Winkler: Thanks. It's a pleasure to be with you, Brian.

Brian Lehrer: Let's start with some history, as we like to do in these democracy segments. I know your book goes way, way back, but I thought we might start with the campaign finance law known as McCain-Feingold, a bipartisan law sponsored by Republican Senator John McCain and Democratic Senator Russ Feingold, passed in 2002. That would be exactly 20 years ago; an anniversary year for McCain-Feingold. What was McCain-Feingold and what did people think it was needed to do?

Adam Winkler: Well, McCain-Feingold, otherwise known as the Bipartisan Campaign Reform Act, is really the last major campaign finance law passed by Congress. It was designed to bring more transparency into federal campaigns and to limit the money spent in campaigns, in particular money spent on what's known as issue ads. That is advertisements designed to influence elections, but that referred to issues, not to specific candidates. The Supreme Court in Citizens United struck down a key provision of McCain-Feingold, one that limited corporate and union money on issue ads in the weeks before an election.

This Supreme Court-created loophole really opened the floodgates for corporate and union spending on these issue ads that really do influence elections but don't name candidates. Moreover, lower courts relied on Citizens United's reasoning to strike down a number of other campaign finance laws.

Now, the court in Citizens United said that instead of limiting corporate and union money, Congress could require disclosure of this kind of spending. Due to strong GOP opposition in Congress, no new disclosure laws have been adopted, so there's been this large influx of so-called dark money, money that we don't know who's giving it and who's spending it, influencing our elections.

Brian Lehrer: We'll talk more about the dark part of dark money as we go, but I imagine you disagree with Mitt Romney's take in that clip that corporations are people. His argument there was that their profits go into the pockets of human beings, so taxing corporations or limiting their free speech rights in campaigns is really doing those things to the people who come together voluntarily to form corporations, and as you put it also, for unions. Is he wrong, either in the letter or the spirit of what he was saying there, in your opinion?

Adam Winkler: Well, he's certainly right in describing constitutional law today. The Supreme Court does say that corporations are people, and effectively has given corporations many of the same constitutional rights as ordinary human beings in ways that I think are destructive for democracy in both the campaign finance area and in other areas of law. Of course, he's descriptively wrong in the idea that the money that goes to corporations goes to individuals.

Apple, for instance, has a huge war chest of profits that it's made. Tens of billions of dollars that it's not giving to people. It's holding for itself and planning to use to exercise power or to invest in whatever kinds of businesses or innovations they wish to invest in. It's not really technically true that all the money that corporations make goes to people. It often goes to other corporations that own the stock of that business.

Brian Lehrer: You mentioned unions in the same breath as corporations when you were talking about the original Citizens United era. Mitt Romney in the clip was only talking about corporations being people. Do you know the relative balance of power there? In a liberal state like New York where there are strong unions too, do unions actually spend more to support candidates in campaigns than corporations do? How does the balance of power work out there between owners and workers?

Adam Winkler: One of the interesting things is when we talk about corporations, most of the rules that apply to corporations in campaign finance law also apply to unions. When Citizens United was decided, the biggest effect in the first few years was really on union spending because unions have long been very active political spenders. However, in the, I guess, 12 years since Citizens United, what we've really seen is a stark increase in the rise of corporate spending on elections. One of the things that Citizens United did was kind of normalize corporate money in elections.

Whereas unions had always been pretty active, corporations had often stayed on the sidelines, allowing their executives, who were pretty wealthy, to exert their power and gain access through their contributions. In those 12 years, we've really seen the normalization of corporate money and huge increases in corporate money, especially in the dark money space, which is not a space that unions traditionally use very much of.

Brian Lehrer: Let's talk about dark money. The dark in dark money refers to anonymity of the donors?

Adam Winkler: That's right. There's what we call hard money, which is money that you, say, make a contribution to a candidate. That has to be disclosed, and everyone can see what money is being spent. There's something called soft money, which is money spent on ads that don't identify specific candidates or go to party-building activities. Then there's dark money. Dark money is money that comes from corporations or wealthy individuals, and even foreign entities that are prohibited from contributing directly to candidates, but that go into influencing elections.

For instance, we might see corporations or wealthy individuals give money to a nonprofit. That nonprofit will spend the money on political ads, but the nonprofit isn't required to disclose the names of donors. Or the nonprofit gives the money to a political action committee, or a Super PAC, which buys ads. The Super PACs must disclose their donors, but they're only disclosing the name of the nonprofit. We don't know who the ultimate contributor was because the nonprofit doesn't have to reveal the money that's going into campaigns.

We're seeing a variety of different ways in which this is happening, but mostly through the use of shell companies or nonprofits that spend money on politics but just don't disclose their donors.

Brian Lehrer: Wasn't part of the Citizens United decision an affirmation that transparency in campaign spending is supposed to protect the public from being manipulated because we could know whose interests were paying for campaign ads?

Adam Winkler: That's exactly right. In Citizens United, the court itself said, "Well, if you're worried about shareholders having their money spent on politics that they don't support, there's disclosure and there's other mechanisms that the political system can use, especially related to transparency, to prevent or to react to this kind of spending." One thing we've seen is that Congress has really been unable to pass any kind of disclosure laws. Giving, at least corporate spending on things like issue ads, is not required under current law to be disclosed.

Congress did consider last year in September something called the DISCLOSE Act. A proposed law that would've required Super PACs and other groups to disclose donors who give $10,000 or more during an election cycle. Senate Republicans blocked that legislation and it hasn't moved forward. Transparency and disclosure laws are an important part of what Citizens United said and theorized about campaign finance law, but not actually part of the law today because there is so little transparency.

Brian Lehrer: The Mitt Romney clip is an example of Republicans' traditional comfort with corporate power. I mentioned The New York Times article called Democrats Decried Dark Money. Then They Won With It in 2020. It has a stat that groups that generally align with the Democratic Party spent $1.5 billion in that election cycle compared with a little less than a billion by Republican-aligned groups. Do you have any sense of who these different groups or their secret donors tend to be on the two different sides of the aisle? Is one less corrupting than the other, in your opinion, for any reason?

Adam Winkler: I think they're corrupting on both sides of the political aisle for the exact same reason. We don't know who's spending the money, and we can't judge their motives or their agenda. Because campaigns increasingly rely on dark money sources for campaign ads, even if it's supposedly uncoordinated campaign ads, then these undisclosed donors are having a big impact. Like you say, it happens on both sides of the aisle, Democrats do it, Republicans do it.

I think one big difference between Democrats and Republicans is that Democrats have proposed and supported laws to prevent this from happening, to add transparency and disclosure, and Republicans have been 100% opposed to doing it. That is one difference, but certainly given the current state of the law, both sides are doing it.

Brian Lehrer: Jane Mayer from The New Yorker wrote a book, that I'm sure you're familiar with, around the beginning of the Trump as president and candidate era called Dark Money: The Hidden History of the Billionaires Behind the Rise of the Radical Right. Now, I think we tend to think of dark money more in connection with corporate taxation agendas, rights to pollute, things like that, but do you think dark money has had a significant role to play in supporting the big lie and the effort to weaken democracy itself that we associate with it, not just on specific pro-corporate policies that might not be in the public's financial interest?

Adam Winkler: Absolutely. We shouldn't mistake dark money for being corporate money. Sometimes it is corporate money, and corporations have taken advantage of dark money. Most of the dark money contributions and expenditures we're seeing really come from very wealthy individuals, and they support whatever the wealthy individual's political agenda is. Right now there are a lot of these non-profit groups that are taking out ads about election integrity, and about the stolen election and what you call the big lie.

They're not mentioning specific candidates, but rather just supporting the general Republican agenda of claiming that the last election was stolen and that we need extensive kinds of reforms of the electoral process, including things that keep people from voting, like voter ID laws, in order to preserve election integrity today. Absolutely it is being used to support the basic Republican agenda, as it's being used to support the basic Democratic agenda on the other side of the aisle.

Brian Lehrer: A few more minutes with Adam Winkler, UCLA law professor and author of the book We the Corporations, as we talk about dark money and the effect of Citizens United 12 years after that Supreme Court ruling on the midterm elections and on our democracy right now as part of our 30 issues in 30 days: Democracy in Peril series.

The other aspect of the dark money groups that I want to touch on before we run out of time, is that they're supposed to be independent of the candidates themselves. You touched on that in describing Citizens United. That they can spend as much as they want on politics as members of the private sector, but the transparency and campaign finance limits would apply if they coordinate with the campaigns. That line has apparently become fuzzy and not much enforced. Here's a very current example. Something the Republican candidate for Governor of New York, Lee Zeldin, said to reporters just this month about whether he's keeping up with Kathy Hochul in his campaign spending on TV. Listen.

Lee Zeldin: There are multiple independent expenditures that are also in the race. One is Save Together. They have an ad out focused on crime. The other one is an independent expenditure called Save Our State. Together for the last week and a half, our side has been outspending them.

Brian Lehrer: Our side has been outspending them even though he referred to these outside groups as independent expenditures. To be fair, Adam, Kathy Hochul, the Democrat in the race, is raising gobs of campaign cash from all kinds of corporate interests. More than Zeldin, from what's been reported. She's been on the defensive about that, rightly, but there's also the specific question of legal or illegal coordination. What do you make of that clip and its implications for democracy?

Adam Winkler: It really shows one of the big flaws of the Supreme Court's approach to campaign finance law. You're absolutely right. These non-profit groups that are taking these unlimited contributions, if they coordinate with a candidate, they meet with a candidate, talk about strategy, then that money has to be disclosed. It's no longer considered independent expenditures. It's coordinated expenditures, and are subject to the disclosure requirement.

However, the Supreme Court requires that coordination to be like real coordination. Brian, you and I sit in a room and talk about what we're going to do. However, you don't need that kind of coordination to have effective and practical coordination. That is to say, everyone fighting for the same thing. Everyone knows what the Republican agenda is. Everyone knows what the Democratic agenda is. You don't need to coordinate with the candidate if you're a Republican non-profit to figure out that you want to sell the story that crime is on the rise. That Kathy Hochul is corrupt in their view.

You don't need to have that coordination. You know what the candidate is thinking. You know what the candidate's issues are. These non-profit groups are technically independent, but they're usually run by former party members or existing party members. As long as they don't have some sit in a room, like I said you and I might do, as long as they're not doing that then it's considered independent. It's really just a big charade.

Brian Lehrer: As we wrap this up, is there any hope of getting out of this permanent condition - it seems permanent - of big money being able to overly influence campaigns and politics? Very rich individuals or very rich corporations who can basically flood the zone with paid messages supporting their issues or candidates more than Americans of ordinary means can? I saw you quoted in a Brennan Center symposium on some ways that we might still try, but are we doomed to be subject to big-money politics forever?

Adam Winkler: I don't think we're doomed forever, Brian, but certainly the playing field is very tilted right now. The Supreme Court and Citizens United and other campaign finance rulings have said that the First Amendment freedom of speech protects political spending, especially if it's independent political spending. Given the conservative Supreme Court, it seems unlikely that the justices are going to reverse course in the near future on cases like Citizens United.

However, you have to keep your eye focused on potential reforms. First of all, there are reforms that the Supreme Court has said are okay. Things like disclosure of these kinds of ads. Disclosure, I don't think is the be-all end-all of reform, but it's at least a step that you can take to try to combat dark money.

Then you also have to think about long-term change. One thing Republicans have done very well in America is focus on the long term. They fought a 50-year battle to overturn Roe v. Wade and they succeeded. Sometimes it takes a long time. I think the battle against money in [beep] is not going to be won any time soon, but it's a battle worth undertaking and fighting. Hopefully, our children or our children's children will grow up in a society where the electoral process is not being abused in the way that we're seeing it abused today.

Brian Lehrer: That's exactly why we included it in our 30 issues election series, even though there's no immediate prospect of changing the system. Adam Winkler, UCLA law professor and author of books, including We the Corporations. Adam, thanks for letting us audit your class [chuckles] and getting up early in LA for it to boot. Thanks a lot.

Adam Winkler: Always a pleasure, Brian. Thank you for having me.

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