Supreme court litigator. You have three excellent panels that i think you will enjoy. The format we tend to use it instead of people giving short speeches we have aa question her, and interview process and people respond to the questions. This is all unscripted. In any case my name is brad smith command i will be a panelist here as well. Now, buckley was decided 40 years ago and has been criticized routine. If the decision has been surprisingly resilient despite being predictions that it will meet its demise at any time. I remember when i 1st began getting into this area there was an insistence that buckley was a wrong tree in the question was which direction it would fall. Now buckley continues to stand in one writer has suggested it is the president of steel. Criticism has been great. Likened it to the dred scott decision spending 2,000 on a political race. I mean, these are the luminaries of americas Legal Academy that have likened the case to lochner which is if you are familiar, you know that calling something akin to lochner is worse than calling it a can of the dred scott. It has been criticized and is worth noting what exactly it is that was done. Well, we will shorten this and get more elimination is the program goes on. But in essence to three or four crucial things. First, the court upheld the ability of congress or legislation to place limits on political contributions, direct contributions to candidates and parties on the grounds essentially that such contributions could be a can the bribes, too difficult to separate what was a bribe from what was not an is essentially a prophylactic measure limiting peoples ability to associate with candidates in that particular way. One of the reasons buckley allow that kind of limitation and recognize that this was a limitation that affected speech rights because if you cant spend money to get views out that it effectively limits or speech just as you cant limit money to buy gasoline could and travel. So on. Limit your right to freedom of religion. Religion. The court recognized if you single out the expenditures of money because it is being used for speech and limits speech. One of the reasons the court upheld was because it also struck down limits, people could spend separately from a campaigna campaign peoples ability to spend money would remain largely unlimited. Indeed we might say entirely unlimited. Unlimited. It would be regulated but not limited. So that was the out and is what made the burden on association of contribution limits something that was tolerable. Buckley also upheld the governments right to require political committees to register with the government and to compel the disclosure of information about contributions to Political Parties and candidates and the disclosure of information about donors contributing to speech that advocated specifically for the election or defeat of candidates and Political Parties. Before doing doingparties. Before doing at the Court Dramatically shrunk the scope of the required disclosure, the language of the statute was very broad in terms of what required to be disclosed which was narrowed down to disclosure of speech that was a direct call for action and then in ain a later decision on this slightly to include speech is close to an election but basically much more narrow than the original law and finally buckley allowed congress to set up a voluntary system of Public Financing of campaigns to having the government pay for campaigns. That is the basic core holding. We have three panels today, and the 1st to talk about im sorry, the 1st will talk about buckleys importance in that we will hear of you for how buckley has affected campaigning in politics and finally a panel on the continuing resilience of buckley the folio. The 1st panel will consist of me for those who dont know in addition i am a professor of law, so i. And i would be joined by a man who truly needs no introduction, floyd abrams a partner at Cahill Gordon and i know in new york and is probably the preeminent First Amendment litigator is a traina train to catch and we want to get underway. And our interviewer will be mattea gold previously worked for the Los Angeles Times and chicago tribune. After this 1st panel will have lunch and then we will have two great panels. So i will ask if they will come up and join me on stage. [applause] hello and thank you for joining us. The federal government for the cato and ccp. Ccp. I guess that is the way it works. So i wanted to start off since we are setting the stage to talk about the implications of buckley to get your take on an alternative history. Buckley had not been decided the way was how do you see our Current Campaign finance system working and what wouldve been different . Well, thats a great question. One thing that is often overlooked is what would the world look like. It is well known i tend to favor less regulation, rarely do we ask that question of those who favor more regulation. And i think the best way to look at that is to look at the statute that was struck down. The statute would have limited spending by candidates and Political Parties to a little amount considerably lower than what is typically spent. Some people like that. There is Good Research showing higher spending tends to benefit incumbents outsiders introduce new ideas and just looking at the last elections every incumbent is less than the limit would have one and every challengers but less would have lost because challenges need to spend money just to get views out to let people no why change needs to be made to overcome. The law also prohibits any group of citizens for spending 1000 or more relative to the candidate. This is an extremely broad phrase. One can imagine if the group should belong, truly limited and spending 1000 to say anything relevant the law also prevented corporations and unions spending any money at all connection. What does that mean . And it required americans to register with the government if they spent a thousand or more for the purpose of influencing election, broad phrase. I think they would be in a situation where we hear far fewer voices, incumbents the entrenched and we the people would essentially be left out of the process. Too often we ignore the fundamental question. I would like to answer that. Fewer individuals who are being considered throughout the campaign that we are mainstream in right now. This has been a subject of criticism as well all of the people able to fund candidates who but for them might not be able to stay around. At precisely the opposite view. It was a good thing for the cause of democracy no less than Newt Gingrich could stay in the race last time longer. He longer. He 127 primaries. After he would otherwise have been out. We have a number of candidates now of the republican nomination diminishing as we speak, for a number of candidates who have enough funding to continue to show up for debates to try to hold themselves out then they will fade away at some point that they have been with us longer have a better chance to express there views and we had lived under a buckley regimeabout the vision which was with the government was proffering we would simply have less speech, fewer candidates and the like which is why gene mccarthy, the great line, the liberal left and jane buckley conservative Party Senator from new york to get together and meaning that they share views absolutely on the proposition proposition that it was important to establish a proposition that speech was what was really involved here. It is not that money is speech, but it is that for the most part in Freedom Trump days that you cannot run a campaign that is probably the most contentious legacy which we saw also codified in Citizens United and something that is a source of substantial debate on the campaign trail. What do you say to those who argue that spending independent money is a can to speech that sets up an inequity. Is true the people who have more money wind up with more of a chance to get their message out. The people that owned newspapers could get there views out and some Great Supreme Court cases celebrated, rightly celebratedcelebrated for rightly celebrated by the press set in so many words patiently could no the amount of speech by a journalistic organization period, even for very good reasons, even on the last day, alabama had a statute that said basically he could not write an editorial on the last day of the campaign endorsing your support, degrading a candidate. What was the justification . Is not fair. Fair. We live in a country basically with one newspaper touts. They were so powerful and the effect of a newspaper raising something new line election day could be that the other candidate did not have a chance to answer. The supreme Supreme Court unanimously said we get it. But it is alien to our notion of the First Amendment to say that you can limit what the press conference. And implicitly at least all the money they spent in putting together the regime which allowed them. So it is not wrong for people to be concerned that maybe something we can deal with. If you want to limit the amount of money i can give you a list of variety of other side. Only going up in the speech. If you take away the ability to spend the money to get your flyers out to be on television other than it free debates you are greatly limiting speech. The question is, i think more than anything that is why. Buckley has things that i i disagree with. It is a huge decision, but on this one big core issue really gets it right which is absolutely crucial. There are people who say we need to use a quality and people need to be equal but you have to remember who is going to decide what that means and who is speaking enough and he needs to speak more. The people in that position will not always be the people you necessarily want in the position which is true no matter what your political views are. Political operatives on both side of the aisle its an incoherent system. There is money flowing to the outside that is supposed to go inside and close alliance with candidates are outside in order to skew the limits. They express frustration to me about how they are trying to navigate these regulations and rules. Id love to ask you if you feel like you have a coherent finance system . I think sometimes it looks like the wrong issue. A lot of people look at the issue and the kind of say it looks like these two groups are coordinating or these are in favor of somebody else. I think that kind of gets to the wrong issue. If we look at the coordination questions, we could say that group is clearly working hand in glove with that candidate. Run by a candidates former staffer. Maybe the answer should be, and who cares . Right . Are we shocked that people who have worked with and supported jeb bush are working to get jeb bush elected president . Are we surprised that people who have a long history and affiliations with the clintons are trying to help Hillary Clinton be elected . We think this is whats corrupting american politics . We become so focused and when i hear that kind of comment on the enforcement process that were forgetting the big picture. Maybe the answer is to simplify the system. Why does it seem so complex question markets because we have these arcane rules that say well, you can spend what you want but you cant talk to candidates. If you do that, then whats it mean and how much does it mean to talk to candidates. What does it mean when youre spending to help elect a candidates opposed to talking about issues that are important like immigration or taxes or whatever might be. I think that misses the point. If we look at the big picture, we should find ourselves saying why are some of these things so alarming . The problem is the enforcement system itself. Its sort of like if we had a road and there were no cross rocks in the road. So you have people crossing the street in all kinds of places. Oh my gosh the laws not being enforced. Some are walking and some are running across and some are crossing here and some are crossing there. Its a mess. So the simple answer is, lets find a way to find a way for people to cross the street rather than saying the system is breaking. Didnt they try to work on that by dividing up how money was classified in the system . I think it did. It was a compromise decision. I think its a tolerable compromise, but theres no doubt in my mind that it has led to a crazy quilt system of enforcement or nonenforcement. The area of coordination is a very good example. Things are coordinated in a way, and its not that there is complete independence on the ground between the candidate and the outside entities that are supporting the candidate. Ive been torn personally, just as thomas has org youd for some time on the court, that we should have one system. Contributions ought to be as open ended as expenditures, period. That they are basically the same. I think i am still of the mind to keep them separate because i do think there is a rationale that was stated earlier that contributions are closer to, perhaps more likely, to be a kin to another option. Quit pro quote . Maybe. Sometimes its not would pro quote but very close to it. Its hard on an intellectual level to say that candidates are more grateful to account for a contribution them for an independent entity spending lots of money, supporting the candidate. It is just hard to believe there i think the Supreme Court has been more candid in saying that gratitude is not enough. We need quid pro quo. The way we got there was to conclude that if they didnt have a bright line of that sort they would be eating up all the First Amendment themes that they deeply care about. Thats in terms of freedom of speech, freedom of expression at the broadest level with respect to the elections. Elections, more than anything, and so you do wind up, and i understand why people criticize it. As i say, i think inevitably and on the ground are sort of crazy regulations built on regulations to the point that im sure, i have no doubt that the people who are trying to live under them have long since forgotten why those relations exist and are bothered by them. It does interfere in some ways with freedom of expression. [inaudible] [inaudible] [inaudible] first of course, the argument that was suggested that maybe it was done on contributions and not expenditures must have some merit. I think there is merit to the buckley argument. If we didnt have these concerns through the 80s and 90s. It was a pretty clear system. You were unlimited in your issue ads. The enforcement confusion has come precisely because regulators, people who want more regulation, have been unwilling to accept that kind of compromise. If they try to extend that regime into voter scorecards or speech about issues or speech that is independent of a candidate but in their view not independent enough, they are the ones who upset the apple cart. If you look in the 80s and 90s, there were no lawsuits brought challenging contribution limits as a basic rule. There were not lawsuits brought in that respect. The effort came and there wasnt legislation primarily to push that. That effort came from those who wanted more regulation. Most of this confusion has come because of efforts to expand Regulatory Regime and to get around buckley, this view that the First Amendment interest that theres a big loophole to the extent that now people feel theres confusion. Thats really the origin of it. Its not so much that the politics have changed or anything else, but rather that people have been unwilling to live with that kind of temper mice. This goes back to our first point, what is is the endgame . I think the endgame is to limit the americans to speak, pretty much. Theyre going around now promoting their views that everyone should have a coupon from the government and thats all you can spend on elections. Thats it. It was like 100 bucks or Something Like that. I think thats sort of a fearful endgame of people who want regulation. If you read the debates when the bill was passed, senator mccain was nothing if not explicit, unambiguous in saying that one of the things we want to get rid of is all this negativity. Will thats not something government can get rid of. Its just off the table. And yet that was a prime driving force, above the water level, a prime argument in favor of significant limitations on when people could speak close to elections. Of course, that law, as its more commonly known, did go to the court and the court weighed in an marginally upheld it. Do you just agree . Did the court violate the principles of buckley . I lost that case. [laughter] we tried later on. Of course it was inconsistent. It was inconsistent with the whole approach with buckley. Time had passed and some mines had changed. It was a different court. Do bear in mind, the Buckley Court that wrote the most important parts of buckley certainly from an ideological First Amendment perspective, was dealing with expenditures, that was just an opinion of justice stewart. He is one of the most pro First Amendment that we have ever had. These were the people who were joining in the name of the First Amendment an opinion which basically said, we have to let freedom reign in this area of expenditure. That was a seven to one decision on that point. They had also voted that these laws should be unconstitutional on the expenditure side. I want to talk about limiting Campaign Contributions which is not just the potential for corruption but the appearance of corruption, which is something that appears to be circumscribed a bit. You think that the courts original framing of that was correct . Do you think that was too broad, and what you make of what happened in mccutchen . I think it was incorrect and i am glad that the court and mccutchen and Citizens United moved away from it. This idea of limiting First Amendment rights in the name, not of reality, but of the appearance is something thats just unacceptable. Especially because the appearance may be other free speech which we treasure and respect. But, the idea that you