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Not by rankandfile folks across the country who look on Michelle Bachman as the incarnation of joan of arc, but by old hands at rightwing politics who are burrowed deep into the culture of washington. Like this man, edwin meese, who was Ronald Reagans attorney general and has been hanging around the Heritage Foundation more or less ever since. Heritage is where the faithful receive communion and pick up their talking points. According to reporting by New York Times journalists sheryl gay stolberg and mike mcintire, just after barack obama began his second term, ed meese and the leaders of three dozen conservative groups met to decide on a takenoprisoners strategy to defund obamacare, even if it meant shutting down the government. They gathered big bucks from the billionaire koch brothers, over 200 million from one kochrelated group alone. One of the plotters, michael needham, ceo of the Heritage Action fund, told the times that what happened was a groundswell that changed washington from the outside in not so. This was an inside job by dissidents of longstanding, who, having slipped to minority status, attempted a coup detat against majority rule. The storys far from over, and well be coming back to it the weeks ahead. But for now, theres Something Else deserving your attention, an important story that more or less got pushed to the side by the storm over the shutdown. Conservatives sent their lawyers to the Supreme Court to argue for a green light to flood politics with a lot more cash. Keep in mind that we already have in this country what the watchdog Sunlight Foundation describes as an elite class that increasingly serves as the gatekeepers of public office. That thin sliver of the very rich, the 1 of the 1 ers, has so much money it wants to keep on giving. So here was the Supreme Court hearing a big case that could take the lid off, allowing the rich to spend even greater sums of cash to influence our elections. Although its official name is mccutcheon v. Fec, lets call the case Citizens United the sequel. Here to talk with me about this is heather gerken, described by the boston globe as one of the most closely watched young stars in the legal academy. Thats because of her provocative and innovative thinking about election and constitutional law. Shes a board member of the Campaign Legal center, a nonpartisan, Nonprofit Organization founded by someone familiar to viewers of this broadcast, the republican reformer trevor potter. Heather gerken clerked with Supreme CourtJustice David souter, practiced law, then taught at harvard before joining the faculty of yale. She is the brains behind the democracy index, a new plan for fair elections. Heather gerken, its good to meet you. Thank you so much for having me. Whats at issue in this case . As you know when you give in a campaign, you can only give a certain amount of money to a candidate. But theres also a limit that most people never notice because most people dont have nearly enough money to reach it, but there are limits on how much you can spend in the aggregate. So you can spend about 123,000 on federal elections all told. In one election cycle in one election cycle. In one two year period exactly. But whats being argued in this case is that you should be able to spend as much as you want, that is you can have limits on the amount you can give to each candidate and each Party Committee and each party, but you can give to as many candidates as you want and as many Party Committees as you want and as many pacs as you want. All of those things are capped right now, which would mean just in real terms that instead of about 123,000 being the cap, one donor could give 3. 5 million to Political Parties and candidates. There was this moment during the oral arguments when Justice Scalia told solicitor general verrilli that compared with the billions of dollars already spent on federal campaigns by parties, candidates, Political Action committees and super pacs, he said, i dont think 3. 5 million is a heck of a lot of money. Does this surprise you to hear that from a Supreme Court justice . Well, i will say two things. One is 3. 5 million is a lot of money, i think, to just about anyone except for the, you know, the adelsons of the world. But the other thing that i will just say, and this was made by another commentator, talk about chutzpah. So the reason that these people are spending millions and millions and millions of dollars in the last election is Justice Scalia. You know, theyre the ones who allowed this to happen in the first place. And so scalia and the majority on the court . Scalia and the majority on the court. So for them to say, well, weve got a giant problem on one side, so the solution is to create a giant problem on the other side, well, they are the reason for the giant problem that they were describing Citizens United . Citizens united. In response to scalia, solicitor general verrilli said, i dont think thats the right way to look at it, your honor. If you think that a partys got to get 1. 5 billion together thats about 450 people you need to round up, less than 500 people, the solicitor general said, can fund the whole shooting match. Its a remarkable statement. Although ill just tell you my worry is bigger than general verrillis worry. So he worries that 400 people will fund the whole shooting match. My worry is that once 400 people realize they can put funding in like that, therell be 800 of them or maybe 1,200 of them, that more money will move into the system because people will realize just how far their moneys going to go, just how much influence their money can buy. That takes us to a world where money plays an even more powerful role in politics than it does now. And ill just say, i mean, i believe in the First Amendment. But its hard to imagine money playing a bigger role than it did in 2012. And yet it looks like were heading in that direction in 2016. But can it be worse than it is now . You know, i actually was one of the people who thought it couldnt. But it never occurred to me that the Supreme Court would be striking down contribution limits. So we actually could see something thats much worse than we have now. This is a deregulatory court. And in Citizens United made it very difficult to regulate what was called independent spending, thats the money that you spend on your own in favor of your candidates. And right now its the wild west in independent spending. You can spend basically as much as you want often without anyone even knowing that youre spending the money. So what were looking at now on the contribution side, which is the amount of money you give directly to the candidate for him or her to spend as much as she, in the way she wants, that looks like its moving into the world of the wild west as well. I read some Research Last evening that in the last election cycle there were 1,219 of the wealthiest donors who reached or almost reached the limit now prevailing. Yes. Well, i will just say those numbers actually could increase for the following reasons. Reaching a limit of 123,000 isnt really that influential. Thats the point of the limit, that even if you reach the cap of it, youre not going to be the person who gets a seat at the table automatically. So 123,000 is just not that much money in politics nowadays if youre thinking about how much is spent for all the campaigns. However, if youre someone who can fund an entire senatorial campaign, if youre someone who can give a chunk of the president , what the president ial campaign needs, youre get a seat at the table. So those numbers may underestimate the number of people who are going to want to do this. But when you can spend 3. 5 million, you can get a lot more influence and people still start to say, hmmm, that sounds like a really good use of my money. Well, you say seat at the table, but dont you really mean they can set the agenda, they can buy the ads that determine what we talk about in a campaign . They can actually destroy an opponent with spending money in negative advertising . Its more than a seat at the table. Its actually worse than that though. I worry not just about their ability to influence the election, but theyre going to influence the governance agenda. So if you know that the people who are funding your campaign are against this legislation or in favor of this legislation, its going to be very hard for Party Leaders not to Pay Attention to that fact. So its not just a seat at the table on election day. Is a seat at the table for the next four to six years when theyre governing. It means they can in effect buy the policy outcomes they want for the legislative process because the incumbents they have supported with 3. 5 million or more are going to be paying attention to them when they come to the table . Its not the direct kind of thing, bags full of money in exchange for votes, but its actually more pernicious in a way because it shapes the whole background of politics about whats allowed to be talked about and what isnt allowed to be talked about, about what kind of votes are going to happen and what kind of votes arent going to happen. So what it means is wall street is going to be controlling the congressional agenda, but main street is not. But, the majority in the court would disagree with you because remember in Citizens United they said well, if corruption were the issue here, if we could, if you could prove a corruption, ms. Gerken, we would listen to you. But you cant prove corruption. This is just the politicians give gratitude to their donors, but its not a quid pro quo and you cant demonstrate that it is buying these policy outcomes. Thats right. The Supreme Court in Citizens United changed the standard. So it used to be in fact that what Justice Kennedy called ingratiation and access, that was corruption. And that was corruption under Supreme Court precedent. In the early 1990s, in the early 2000s thats exactly the definition because the rest of the Supreme Court, the majority that once held understands that politics is more complicated than, you give me money, i give you a vote. They understand that corruption can run through a system in a way thats far more pernicious and deeper but subtle. Justice kennedy has a much narrower view of what constitutes corruption. And that has been the source of deregulation in Citizens United. Yes, if we saw a baseball player before he bats hand a wad of cash to the umpire, wed know that thats corruption. But we dont see the donor handing, the politician, the incumbent senator or congressman handing a decision to the donor, we never see that. We never see it, but we see it in the aggregate. Just take a look at what happened when we had the biggest financial crisis in history. Wall street was right there helping write the legislation, working on all kinds of pieces of blocking things they didnt want. Look at what happened when we had health care, something at the core of the interests of the american people, the Insurance Industry was right there. Those are the people who have the money. Those are the people who are capable of setting the agenda when they can give this much money. And theyre the reason why legislation looks like it does nowadays. What do you thinks been the main impact of Citizens United . To create what i think are shadow parties. So in the olden days, right, money went through the parties, money went through the candidates. But now Citizens United has made it possible to raise inordinate amounts of money outside of the party system. So this is karl roves crossroads gps, this is the super pacs. And the thing thats amazing about these organizations is theyre not really independent. Theyre technically independent, but theyre being run by the campaign staff. They are constantly interacting with the campaigns, which means if youre a politician you can have your cake and eat it too. You can be part of the party which has lots of limits right now, before mccutcheon on what it can raise. But you can have your shadow party with your guys raising money in exactly the way you want them to and running ads for you. Why do you call it a shadow party . Theyre doing all the kinds of things you can do in a campaign, theyre framing issues, theyre running ads, theyre helping candidates get elected. The one key difference though is that the Party Faithful who are the people who knock on doors, the foot soldiers of our democracy, the people who show up at rallies with donuts, the people who put signs on their yard, the people who go drive people around to get them out to vote, theyre in the regular party. Theyre not in the shadow party. The shadow party is for the big donors, the elites, the top campaign staff. But the regular everyday people are still stuck back in the old party. Which is more powerful, the old real party or the shadow party . Right now, were seeing both of them sort of neck and neck in terms of power. But ill just say if we continue with this deregulatory strategy, we may see the shadow party by virtue of the fact that all the money is there be the one that really matters. I mean, theres a great story that was run in politico right before the election about romney. And romney didnt have enough money inside the party to get him through november. And so what politico asked is will karl rove whose independent money is whats really bringing romney through to the end of the election, will he just cut romney off . So now imagine for yourself youre an important player in republican or democratic politics. Do you want to work for romney or do you want to work for rove . Who is the most powerful . So the worry over time is that the people who can raise these giant sums of money are the ones that are going to be the most powerful. You call this a deregulatory court. Explain that. So one of the things thats been really interesting about the Supreme Court is that in cases that people know about, Citizens United and in lots of cases that they dont know about theyre gradually pulling away at the regulation that was passed by congress in mccainfeingold. So mccainfeingold was actually a big Campaign Finance bill that changed the system entirely. And people thought it was working. But little by little, quietly the Supreme Court just pulled one thread out of that cloth after another. And as we see now, theyve pulled enough threads out of it that the system has begun to unravel. And now what weve seen is, thanks to Citizens United and the courts deregulatory impulse, were seeing these donors are coming back. You know, the empire always strikes back. Theyre coming back fiercely and theyve got a huge amount of money in the system. I have to think this is somewhat if not all wellcoordinated. I mean, james bopp, who is the lawyer who was the intellectual architect of Citizens United was a player in this mccutcheon case. He didnt argue the case, but he signed onto it. Mitch mcconnell, leading republican is a vacuum cleaner for money in congress. The court thats come into play as appointed by one conservative president after another. Is it wrong of me to be skeptical . I would say this is a movement. This is a group of people who decided they wanted to achieve a goal which is deregulation, and they have been working bit by bit, case by case in order to achieve that goal. Now, in some senses thats what everybody does. If you think about the olden days, you know, the naacp litigated some cases to build the precedent that led to brown v. Board of education. So jim bopp is doing that for a slightly different kind of purpose. But for the last ten years, he has been bringing case after case. And it used to be youd read his legal arguments and youd think, theres no way that could win. Under current precedent thats plainly wrong. But what jim bopp has done is change what the precedent is. And now we are at a point were seeing arguments and briefs for example that Public Finance is unconstitutional, that a variety of challenge, of things that have been sort of the base of Campaign Finance over time are unconstitutional. And thats because this group of lawyers using test