were going. he knew when they came in to sand creek and he sent colonel who was the military had out here in colorado and they marched to sand creek and attacked the village, sleeping village at dawn on november 29 and just slaughtered a lot of people. most of the people they killed were women and children and old people. left hand was mortally wounded at sand creek and he died a few days later. so he gave his life believing in peace, believing there was going to be some agreement that was going to be made in his people would be able to live here on the plains and have a place to live. they knew they weren't going to have the whole plains like they did before to rome and to move their villages and hunt buffalo. they knew that and the buffalo were diminishing as more and

more newcomers came here so they knew they weren't going to have that but they kept asking for a reserved area that would be theirs where they could live in peace. that's where the term reservation comes from. it's a reserved area of their own land where they could live in safety and that is what he was hoping for and what he worked for and did not come about anything chief left-hand was published by the university of oklahoma press in 1981. it has never gone out of print. i think its time is gone by and more and more people have gotten interested in left-hand wanting to know about his life what happened to him that is just driven the interest in my book. so when i wrote the book i became obsessed with this topic. i wanted to know who these people were who had lived on the plains before my family came out

here and i'm a fourth-generation colorado so i wanted to know who were the people that were here before and how did they lift and what became of them? then i found chief left-hand was fluent in english so i thought okay i've got to write about this guy. so i just became obsessed with the whole subject and at the time i spent five years researching and writing the book and at the time everyone said to me what are you doing? other writers, historians and have lots of people said why are you writing about this? there wasn't that great an interest at that time in the late 70's and 1981 when the book came out there wasn't just that great of an interest in the indian people and indian chiefs. today there is much more been interest in durban wonderful books written about the various indian chiefs, crazy horse and

red cloud and sitting bull and different ones that we know about. i just think as time has gone by people have become more aware that we are not the first people who were here on the plains, that there was a whole other culture that lived here and i think there's more religious but who are they? i think more of the same questions like the questions i ask, where are they and what became of them? the whole idea that peace chiefs, that was really new. nobody ever thought there were indian chiefs out here who are trying to make peace. thank you hollywood we always thought they were all warriors trying to make war but in fact there were these peace chiefs. it just took time for something to finally come together and for an interest to develop. but certainly he's very well-known today and i'm happy.

i think you should be well-kno well-known. he should be applauded and he should be honored for the life that he lived in for what he did. >> for more permission of booktv's recent visit to boulder colorado and the many other cities visited by local content vehicles go to c-span.org/local content. next ronald collins talks about

supreme court ruling mccutcheon versus sec and the impact on democracy. this is about an hour and 10 minutes. >> thank you john and welcome to our panel, "when money speaks." money has long been an issue in american politics going back to the time of andrew jackson. congress congress had the first campaign finance law in 1867 and the federal corrupt practices act in 1910. the modern era began in 1976 and a landmark case of buckley v. alejo ended ended to that support team in the supreme court decided mccutcheon v. fec the world of politics have been turned upside down. the bow group said it once oppose government regulation of speech denounced today's opponent in regulation. the debate continues and indeed

we recently witnessed two united states senators and the spectacle on the floor of the senate pushing through the first amendment. the questions are profound. is it true that money is not speech? or corporations people? have liberals abandoned their prior commitment to free speech? who really benefits from government regulation? how much speech are the american people willing to tolerate during election campaigns? should some speech be banned during the campaign's? who can speak and how much can they speak and what's next? weather the coming cases and where's the court heading and what explains that the trail it raged against some of those like floyd abrams and former aclu -- for dean strossen who opposed regulation prepared and revolves around around in a remarkable case and a remarkable book "when money speaks" the mccutcheon decision, campaign finance laws and the first amendment. we have a stellar panel to

explore these issues. author in free-speech scholar ronald collins will discuss his book and allocate to be. aaron murphy who argued the mccutcheon case will share her insider's perspective. floyd abrams is simply one of the greatest figures in the 200 year history of the first amendment and there is no keener observer of the court then our moderator "new york times" correspondent anna liptak. i will briefly introduce each panelist and turn the program over to them. ronald collins as they herald supplement scholar at the university of washington law school where he teaches constitutional law that he was a supreme court fell under chief justice warren burger. he is the book center of scotusblog and writes a much read news column for the current news blog. co-author and editor of nine books including books on justice holmes the great book about floyd abrams books on lenny bruce allen ginsburg and jack

kerouac. last year he published a book entitled on dissent. his latest book with david goldberg is when -- "when money speaks" which is an analysis of not only case that the entire history of campaign speech regulation they publish this book a mere 30 hours after the case was decided by the supreme court. ron has written more than 70 scholarly articles for "the harvard law review," stanford, michigan law law review and a supreme court review. in 2003 he led a successful campaign to get a posthumous pardon for lenny bruce. the following year he received the hugh hefner first amendment award and in 2010 he was a fellow resident at the norman mailer -- in massachusetts and 2011 he received the supreme court's administration of justice award in recognition of his scholarly and professional achievements. eric murphy is a partner at bancroft llc.

her practice focuses on the supreme court appellate and constitutional litigation pages worked on numerous significant manners of the supreme court is successfully argued mccutcheon v. fec in which the court held aggregate limits on campaign contributions unconstitutional. she is also argued that also argued before u.s. courts of appeal on other important constitutional questions. she has briefed several high-profile supreme court cases such as the landmark challenge to the affordable care at bond because the united states and american broadcasting versus r reo. aereo. she served john roberts and diane sykes in the u.s. court of appeals 7th circuit. between clerkships she served as the bristol fellow in the office of the solicitor general and afterwards worked in the appellate practice of canaan spaulding has been profiled

widely around the world for her work on mccutcheon pitcher graduated magna cum laude from georgetown law school where she served as managing editor of the georgetown law general review of criminal procedure and got her undergraduate degree from northwestern school of journalism. floyd abrams is a partner in law firm of cahill gordon rendell in new york city. among all the among all accounts is apparent at first and a lawyer in the nation. the late senator daniel patrick moynihan called him the most significant first amendment lawyer of our age. he is a national trial and appellate practice involving securities litigation flexural property public policy policy and reckless policy and record trade issues issues preusser defrag when the supreme court in cases raising issues as diverse as the scope of the first interpretation of orissa the nature broadcast regulation, the impact of copyright law and the continuing viability of the

miranda rule. he was cocounsel with professor alex mccullen the landmark papers case. notably he prevailed in his argument before the supreme court in behalf of senator mitch mcconnell the ammo scary i defending their rights of corporations to speak publicly about politics and citizens united versus fec united versus fec. it's quite about the mcgraw-hill companies stanford -- standard & poor's and various pentagon papers and networks the nation "reader's digest" hurston mini-mart dated november 2011 yale law school announced the formation of the floyd abrams institute for freedom of expression. his mission is to promote free speech scholarship and lopper farm on emerging questions concerning traditional and new media. for 15 years it's been a william j. brennan visiting professor for cement like columbia graduate school in journalism or he is also benefiting lecture at the yale law school and columbia law school. our moderator covers the supreme

court for "the new york times." liptak's columns on legal affairs sidebar appears every other tuesday critic richard of yale law school and yelled college practice law at a large new york law firm. and who was a finalist for the pulitzer prize explanatory reporting in 2004 american exception a series of articles examining ways in which the american legal system differs from those of other developed nations. he received the 2010 scripps howard award from washington reporting for a five-part series on the roberts court city was awarded university presidential medal and an honorary doctorate from stetson university college of law at liptak is the author of two halves and uphold the supreme court and the battle for same-sex marriage is journalism has appeared in "the new yorker" "vanity fair" "businessweek" in "rolling stone" and he is publish articles on several law

reviews and also taught as a visiting lecturer at the university of chicago and taught courses at columbia u. s. c. c., ca -- ucla and yell. they forage in the pad over -- panel over tatum i will mention we'll do something a different tape each of the panels is not going to begin with the usual five to seven minute opening statement but instead they are going to jump right into the conversations he can get it sounds of what it might be like to sit at the table and eavesdrop with them as they discuss the first amendment case of adam. we will turn over to you. >> our format is meant to incite robust uninhibited and wide-open discussion. i want to say one thing about the subtitle of our panel today. the new assaults on campaign speech. i count you as an emissary from her war. campaign speeches in pretty good shape thanks in large part to the efforts of our panelists. campaign finance laws you know

gets prettier came pretty fast i'd like to keep this out of level of generality which is how the american public perceives it. this is probably the most timely and divisive issue in american law and politics and i want to explore why it is that we are so divided about something that you might think the first amendment was meant to protect. the first amendment by most accounts is meant to protect speech in politics that the question is citizens united case was whether or not he could make it a crime to dispense a documentary about a politician it's somewhat surprising that should be so divisive. let me start by asking floyd a question. the large new york city law firm james referred to, i worked there long time ago. i think of you floyd is a liberal. why is it that you find yourself isolated from some of your old friends on this issue?

>> i think they care more about their political liberalism than about the first amendment. i think it's because they are thinking about who this is going to help or hurt. from a political perspective than they are thinking broadly at their best they think in an egalitarian fashion of the view that it's just not fair for some people to have so much more money, therefore power in the american political system. and i think back at him to a time when i was very young but i do remember when dwight eisenhower ran against adlai stevenson in 1952 and governor stevenson gave a lot of speeches about what he called the one-party press which was illustrated by the fact that

just about every newspaper in america and all the large ones supported general eisenhower in that election. .. were focused on speech or of course focused on the merge, the merger of money and speech to

deal with the situation that governor stevens did very well that he wouldn't get a fair hearing because the press was so much against him. in my view is that an awful lot of my liberal friends simply resist the notion that the speech and the money become speech. speech which they so disapprove and which has such a potential in their view for harm of the country should be in the words that you used quoting someone uninhibited, wide open and robust with respect with who we should elect as president. >> any panelist who wants to

chime in and even on its own terms that argument is correct other liberals are correct that deregulated campaign programs with republicans. >> it wasn't always. history makes fools of us all. there was a time in 1976 where there was a democratic candidate to the far west of lyndon baines johnson and he thought that defeating johnson and campaign finance was restricting the out of money that he could raise and he thought that the law worked against heaven, so we all know that case but one of the plaintiffs in the case was g. eugene mccarthy a democrat.

in 1976, the nixon administration didn't like the idea that "the new york times" and the aclu were running ads calling for all things president nixon because of the bombing before cambodia. the nixon justice department, what did they it do? accused the campaign finance law to go after them. so, you know, and for many, many years the challenges brought the various campaign laws were brought by liberals. we have to defend unpopular speech. i mean, that's because it wasn't unpopular there is no need to average it and we see that today. i think that more and more liberals particular can see citizens united as a pressing

danger to their liberalism. that said, i think that part of the criticisms of citizen united and what fueled the sum of that was justified. recall that cases originally argued by ted olsen on the statutory grounds that the documentary did not constitute election engineering under the statute and there is a doctrine called the doctrine of the constitutional avoidance as i told one of my former students and others that the court has sometimes and you think this is what conservatives do and this is what any self-respecting judge would do. there were arguments to the contrary of course in the case, but what jeffrey has written is when the opinion was first written, it looked like the chief justice was going to dispense on that ground.

anthony kennedy and others based on what mr. jeffrey toobin and others have said it took exception. the case was set for the reargument and that almost out of the blue mcconnell was put up for grabs in terms of what issue should be briefed. i think that's posture -- idb that citizens united was correct although i do think that the case could have been disposed on statutory grounds that would have been entirely consistent. at the time they argue to come and correct me if i'm wrong, but that this was an issue that was likely to recur in other cases and given that they should reach the first amendment question. reasonable minds can differ. i will rush to judgment and citizens united did create a part of the animus to the case. it would have happened sooner or later and i think that it was inevitable and the main reason that the liberals are critical is because it is speech they see

as antithetical not to the constitutional principle that the principle of their liberalism. >> let me think about for a little bit because it is very much much would you argue to the court and the second citizens united argument. as ron points out, there were offramp galore in the case that would have allowed citizens united to win without this sweeping ruling. it is a nonprofit advocacy corporation and it wasn't a general motors. it was a 90 minute documentary. it wasn't a 30 minute ad. it was available on video on demand rather than something that came at you when you were watching the evening news. so all of those grounds strike me as easy grounds and you could have ruled on the citizens united and left. but when you got a future you a comparison against solomon, didn't do? >> i did. i said basically you could have decided that case on the grounds of "the new york times" did "new

york times" didn't sell enough copies on its newspapers in alabama to be subject to the personal jurisdiction. that was one of the arguments in the. they could have dealt with punitive damages as a way of limiting the damage white southern juries in those days were doing to the reporters by "the new york times," cbs, "time" magazine all of which had been sued and lost large sums of money in those days. but in the view that i took was that there are sometimes constitutional issues of such magnitude and with such a high likelihood of recurrence that the court asked to, and i would add that now candidly off to say that that's why we are taking this case and why we are deciding it now.

split along that line if i may and i rarely take exception with this man but there is a case before the supreme court the true threats case and there is a lot of talk about the first amendment issues raised in the case where i think you can look at the statute and say you can dispose of the case on the statutory grounds. there are so many questions that would be reoccurring if every first amendment case we get we said the doctrine of constitutional avoidance was put aside then the other problem is we are teaching generation after generation of students to skip over the law of the land mainly statute and move right to the constitutional questions and constitute every case or controversy in the back although i do think the results in the citizens united was somebody that believed in the rule of law that troubles me. >> i think of the rule of law as

being introduced at all. we come up with certain theories which limit the authority of the court to do do what it wants and because this is sort of interesting of that i don't think that we have a major threat problem in america which would require the court to decide an issue like that on the rather broad grounds but in those cases there are some areas of the law and the first amendment area with le pen and i'm sure others, too where the court reaches out more broadly and besides more broadly i don't think that it should be condemned for doing so and i would add to that an awful lot of the liberal professors who suddenly have adopted this record in a narrow way of looking at the constitution passed over the court rather easily and were overjoyed to see

one president after another either overruled or created because they thought that it was the right thing to do. that may be part of the danger although not adhering all the time to the composition of the court should decided a case as narrow as it can and avoid constitutional issues whenever they can. my own view as i said is that there are some areas where the speech is so important and where the issue of principle is so great that the court should be complemented rather then denounced for deciding the case broadly. >> do you have a view whether the case moved too fast and if the result was wrecked or not? >> i will speak more broadly since united was pending when i was clerking at the court. >> it's important to look at the

broad context of the court. citizens united after the right to life and some other cases in which we did see some of the justices tried hard when that is available. sometimes it works better in certain cases than a dozen other cases, and i don't really think that you can look at this court over the past decade and say that it's taken the most robust approach. it's a perfect example of one that wasn't an option other than deciding the issue before the court, so a lot of that has to do with the way the case comes up and i think in citizens united there was plenty of room for debate about whether there really was a viable alternative or not. we looked here and we don't think the arguments approaching the case more narrowly.

in the case, that also has driven large parts of the american left crazy. and among others justice stevens who continues to indicate a speech the other day where he thinks that he found a flaw in the chief justice plurality and he calls it and groups moment. i was reading it on the way over and i was going to see if i could quote from it. the decision starts by saying there is no right or basic to the democracy than the right to elect the political leaders. that sounds good. but what stevens says is that he

wasn't contributing to his political leaders. for the most part he was contributing to people who didn't represent him and people running in other parts of the country. and stevens says to the best of my knowledge and court cases prior has the court never mentioned by citizens right to participate in elections in which he or she has the right to vote you think that is appealing? the >> no. i think it is the kind of criticism that just goes to show how people treat campaign-finance so fundamentally different. it is a criticism that is rejecting the notion that it's political speech because i don't think that anybody would buy for a second the argument that i can't talk about which candidate i preferred in the election simply because they don't vote in that election. i would assume that it's common ground among everybody that that is protected political speech. and it should be for many

reasons. one being the reality that we are affected by far more than the direct representatives of the political process. some of the idea that somehow the different rule applies. you should only be able to contribute an election in which you get to vote for toomey that is just completely fighting the premise that this is protected first amendment activity in the first place. >> to echo that point, two points. opposition eight -- proposition eight. we gave money and time and energy to defeat that in california. i'm not a resident of california. i do pay taxes in california and i own my own property otherwise my ties to california are very important to me. i have a lot to defeat that proposition. in 2013, unions and liberal pacs spent i believe $35 million all out-of-state money to defeat governor of new jersey, governor christie.

so i do think that all the time, you know, there are things that go on and if we proceed injustice even if we are not citizens or voters of that state, we engage in political life to become a speech assembly and test money. give me money to the cause that we believe in. >> you should have no objection to the foreign contributor to another part of the world and the corporation spending money in american elections is that even the roberts court wouldn't go that far. i do think it makes a big difference whether the united states citizen or not. i am concerned where this is going. i have a feeling that you're going to ask what hypothetically, what if there was somebody. say that someone from england owned the press as a major holder of the press could we

then restart those rights? i do think that by and large when you're talking about citizens versus noncitizens the fact that the constitution has many references to the noncitizens, that it is an important difference. >> so, where do you stand on the foreign relations committee >> i try not to talk about it much. >> i don't think that it is in the principle to citizens, but we can look -- we can say that the vast amounts of foreign money flowing in to the country for a lot of different purposes, not just speech is one that congress is generally permitted to deal with, and i am content to allow the chip and to the

more general proposition that you can never limit the amount or the individual person or corporation that involved. if we spent some, they would want to contribute some vast amount and the forthcoming election and the determination of scotland about whether to become a separate country for not and that would seem to be me perfectly reasonable and would not make either in the kingdom of scotland or it felt the undemocratic states to say we don't want that foreign money here. >> i noticed certain squishiness in the last couple winters. another injures. another way that they have been criticized is the seeming narrow

justification for any government regulation of either independent expenditures or direct observation. how would you characterize where we are today and whether we've landed in the right place? >> part of it as a lot of the debate about what the baseline was. the chief justice opinion is to say what we are doing is bringing the ball back to what we thought that we set in buckley is the congress may regulate to prevent corruption and the only kind of corruption that congress may regulate is the quid pro quo reduction and i think the the chief justice very deliberately relies on the opinions to show this is not coming in after the fact end up narrowing the concept. it is a concept that was brought in substantially i think from the opinion that really brought into the most is the mcconnell opinion by justice stevens that takes the view of no corruption

is something much broader than that and then includes all sorts of influence and access and gratitude. i think where we are now come of the court has made it very clear that the justices do not delete that those broad conceptions are things that constitute corruption and this fits the debate between the two sides of the court at least on this issue i think in some respects, the majority of the five justices that take a narrow view a lot of what they have said gets a little taken out of context in the sense everybody wants to accuse them of being naïve and now realizing there is influencing all of this going on all the time but i think that an important part of that it that is driving the analysis here is that it's the first amendment and you have to figure out a place to draw the line that is good to prevent the congress from stepping over the line of attacking something that really can be thought of as corruption

and stepping in stepping into trying to prevent people that it doesn't want to have as much access or influence from having it. and justice kennedy has been very clear on his opinion saying this that we need to draw the line in a way that prevents the congress from going too far and this is the best way that we can draw that without getting into a lot more trouble and really acting antithetical to what the first amendment is about. >> i think that she makes a very powerful point here. i think what the court has been doing very consistent is that simply addressing first the question of what is corruption and then move on to the next step. it's asking itself how strong is the first amendment of power in this sort of case, how important is the first amendment and then concluding we must define

corruption narrowly to avoid overcoming the core first amendment interest at stake. and i think that they were right to do it that way. >> a couple points. first once you get off the dying of the quid pro quo corruption command we will have the various views about exactly what that means. but once you start talking about the public lost their confidence and the integrity of the system or the appearance of corruption, even if you grant that those are justifiable objectives in the first amendment context, the context in which was just mentioned, the question is what is the empirical link between the campaign spending and those

objectives? how is it possible to show that link into the problem is when you try to establish that all of a sudden the lines get very blurred into something happens and that is freedom of speech is diminished. so something needs to be said for the bright lines. now when all of this, this is just one consideration, for example, what justifies setting aside first amendment principles if i could take the liberty just for a moment, one of the other issues of controversy is the corporate entities entitled to the first amendment rights. and just we live in a highly advanced capitalistic culture. make of it what you will but descriptively that's our culture and many of us the leave our freedom and liberty comes from that culture. and in that culture, having the

right to incorporate your business by your religious business whatever it is is essential to the everyday operation of people's lives. and to think that at least for the purposes of speech and the press one would have to sacrifice those on the altar of some objective say the public lost on the system strikes me as problematic given how important it is and remember it is naacp versus alabama when in the 50s the segregationist southerners went after the national association for the advancement of colored people. the way they did it was because they have certain rules concerning certain corporations.

they said all corporations can turn over their membership list, therefore we want a membership list and the in the national associations and advancement of colored people, so that case went to the supreme court and the opinion was a very liberal justice by the name of john marshall harlan. the chords first amendment claim we have to think of the vital role of how these things interact with the way that we view the first amendment. >> i would like to add to that it seems a lot of the argument that the corporations has been fraudulent. i think the public has been told that it's some sort of an open issue or in general and open issue as to whether the corporations are so different from real people that they can

be stripped of the first amendment rights. justice stevens didn't say that in his dissent. he acknowledged that the court frequently had upheld the first amendment protection to corporations and he felt it could be overcome in this case. that's another issue with the notion that corporations shouldn't or don't or haven't generally gotten first amendment protection i've spent most of my professional life representing corporations of one sort or another ranging from the brooklyn museum to "the new york times" company to barnes and noble, all of which are corporations. they are not people but that doesn't mean and it can't mean they don't have first amendment rights and particularly the scholars who make a pass saying

that there should be in across-the-board distinction and across-the-board acceptance of the fact that that corporation because they are not live blood filled heart pounding people because corporations can't vote, because corporations -- and they go on and on that's not an argument at all, that's not serious. if you want to say profit corporations ought to be subject to greater limitations for one reason or if you want to say any corporation in certain circumstances can say or can be limited in saying certain sorts of things we can deal with those arguments. they sometimes prevail in certain types of cases that the broad articulation of the principal, principle, and i think the american public has

generally bought into that proposition that because they are corporations they shouldn't have first amendment rights is maddening and it is wholly inconsistent with the law and common sense as we have applied it for scores of years. but my newspaper editorial page might say is don't worry there is a press clause in the first amendment and that will protect these organizations like "the new york times." is that misguided? split just yesterday speaking of cato, and i can mention that organization, said that the basically what that says is that that media entity, "the new york times" can say things the rest of us can't. the right are maximized and everybody else is minimized and that sort of the quality of --

she thinks and i agree that it runs counter. >> and citizens united we are talking about a documentary. 90 minute documentary denouncing at the time it looked like she would be the democratic nominee for president. so we have that litigation and that the case one of the issues was the applicability of the statute to citizens united. in a free society. they can make the documentary and shove it and be free of any criminal liability for doing it, but that is why other sort of entity of the for-profit corporation makes precisely the same documentary and finds it

and puts it on television that that can be a crime i don't think so. >> so there is a kind of inconsistency or hypocrisy or intellectual dishonesty on the left. i want to turn the focus of a bid to the right because correct me if i'm wrong but it's shifted some in the campaign finance where for the longest time but we used to hear was to deregulate and don't worry disclosure will take care of everything and now that it's largely accomplished, all of a sudden the disclosure is under attack from the right. where do you stand on whether disclosure is a first amendment problem or first amendment value >> i think it can be both. in many respects it is a good thing and part of what has been driving the decision in this area is bought and we rather

than the money be given in the most transparent way where everybody can make determinations for themselves about what they in for from how someone voted in light of the set for half the money that kind of seems to be coming their way. and that all of that is a democratic good and in many respects it can be a constitutional good. on the other hand the court has always been clear about this that but you do have to reserve the question of when disclosure can start to become a first amendment and when it's designed in a way to detour people from providing support or from engaging in whatever activity they want to and there is the reality of disclosure being used. people talk about how they will get a letter that says everyone

off is in your community gave to so and so. it's a little awed at this point odd at this point that the disclosure is being used to target people there is one member of the court that would go a lot further and there are some that we have to worry about disclosure but it seems to me it seems to be a good thing. >> the rule as opposed to the exception is and ought to be the compelled disclosure in this area is constitutional. and that is what the court held in the citizens united by the vote that there are exceptions in circumstances in that case

itself with a disclosure that would suggest people. it seems to me it is true that there are elements on the right that have moved to the proposition that the disclosure per se is so threatening that they exercise their first amendment rights and that it shouldn't be viewed as at least presumptively constitutional. they are wrong in that and i think the court had it just about right. >> of the more that you think about disclosure of the more problematic it becomes. i think that we mentioned the opinion with me remind everybody here in the liberal court we

love to defend that are anti-disclosure. we've already mentioned that there was a case called brown v. socialist party workers and in which the 20 disclosure of the membership of the socialist party and they are written by that artist thurgood marshall and the court said that ran afoul of the first amendment. there was another case in the case that required disclosure and they are they are on the due process grounds and of course the court set that aside. in 1976 he aclu opinion of course brief in the buckley case argued that its support it supports research and carefully drafted to disclosure requirements. nadine said yesterday that that

view maintains so what i would say is that when you talk about disclosure, first of all the sides of the contribution. if somebody gets $50 it seems to me that the state interests in disclosing their names particularly in the highly controversial case diminishes. so you kind of look at the size of the contribution versus the gravity. if there's actual threats, harassment, reprisals, that could be a factor. how well tailored is the law. there are precedences that this is going to be an area subject to some scrutiny and it may well be that as earlier courts have held that due process concerns in first amendment concerns in certain instances counsel against disclosure requirements. >> i think we are going to turn to questions in just a second

but let me put on the table to other kinds of justifications for the campaign-finance regulation that we haven't talked about yet and maybe the panel can give me some brief responses. one is the idea that everybody has a right to speak that nobody has the right to drown out the other guy. why isn't it kind of regulatory interest one that would justify the campaign-finance regulation? and the other point i associate with, the question whether this idea option is not narrowly focused on the quid pro quo corruption but on the kind of dependence that the need for campaign money requires politicians to spend so much time raising money from such a small number of people that it works the system. compound question, quick

answers. >> the professor said that the problem in his words that you just mentioned is systemic and it's so great in his view that we have to have a constitutional convention that nothing short of structural change can remedy that problem and that strikes me as an alternative. >> i think that he's onto something. there is a problem -- there is no doubt to me there is a problem in the amount of time the members of congress and political figures have to spend raising money. to me, the question is is it worth the price in the first amendment sends to deal with that problem by expanding the notion of the circumstances under which the speech can be limited as to proceed down the path.

that is not something that i'm prepared to support and it's not something that i think more general first amendment would worship a while. >> i think it is a dangerous road to go down that first off we need to equalize the second way is to throw money. there are many people or entities the press being one that is in a different position where they have more influence over the electorate and the elected than other people and i don't know how you start crafting the rules that try to limit that and equalize without being exactly what it's supposed to stop the government from doing. >> of the panelists could focus more on your question i'm interested in this idea of equal rights speak under the first

amendment first first of the the equality of result. are we heading in the direction in our view that everyone has the same right to speak and everyone gets their ad in "the new york times" that everyone gets on tv. the question is what are we searching four. are we trying to force the inequality of the result? >> what i find rather remarkable in the way the justice breyer said this argument up in his dissent is that it almost is the notion that first amendment protects the collective maturity from the minority being able to drown them out or say things they don't want to hear or whatever it may be and that is where it is off the rails right from the start because this is an amendment that is very much

about protecting each individual and the idea that it's there to protect this collective voice. it's bigger to allow you to hold unconstitutional the laws that are passed to prevent the minority from speaking. so to me it is a very upside down way of even starting to think about the issue. >> i think that the opinions are a good starting place for people who want to see the different ways the core of different ways of viewing the first amendment. justice breyer's opinion in the first amendment as an instrument for helping the government to work more effectively and in better representing the views of the citizens. and the first amendment has that

impact, but that is not the core of the first amendment. if you view the first amendment as a limitation on government, if you view the first amendment as having been created because of the fear of government, then you have an entirely different way of looking at other sorts of cases and i think that the different expressions by justice breyer and the chief justice are a very valuable place for people to look to get a sense of quite how far apart the germans on the court are these days. >> if the acts have taught us anything it is or should be that the idea is antithetical to the

very principle of trying in the liberty of the first amendment. it is precisely for the two centuries that collective mindset the first amendment has in its finer moments to stand as a bulwark against and i think it is extremely important from a teaching tool in the case it was a wonderful case because it really does set out in very bold ways the view of the individual right to free speech as against the collectivity. mind you sean mccutcheon was here with us today and played a very key role in that case. he wanted to get x. amount of money and when he got to the

certain amount they said you can't give any more. you can't get any more money. and we do this in the name of the collective good. it isn't even clear that it was satisfied that what was the argument that the justice used is that top claim was enough to defeat the first amendment and i think that is a very dangerous precedent. >> why don't we go to the audience but let me ask this question what is the next case or controversy or if i can rephrase that was the next regulation the court is going to turn next and i'm particularly interested in public financing is that at the risk? >> james is somebody that has played a key role in many cases and i spoke about this very

question and he pointed out to me the most likely case to be heard by the court are those involving the question of what constitutes the pack under the federal election that is a group that does a political speech even though it does not support a candidate or its major purpose is not a denomination of the candidate. i will be writing more about that tomorrow on the opinions but that is one type of case. there are several that i matter that is likely, and these are difficult cases. there is one now before this up in court and the court will decide whether or not it's going to hear the case in the conference and that is the case out of florida where the florida

supreme court holds the rule that prohibited the counter judicial office from soliciting campaign funds. there was another case out of the ninth circuit called wolf where a similar issue was raised raised so the whole question of the campaign finance so it's one that we are likely to see more of. >> some of us have used the expression already when the case came down a few years ago and the court by the vote basically said what you don't have to have elections for the judges but if you are in the street and like elections basically freedom of

speech. that persuaded me. i have to say this is an area where the consequences of the opinion gives me able to pause and the idea running around raising money from the lawyers that appear before them is a very troubling one and one can really see the effect of the efficacy and even the honesty of the whole system so it's a problem. >> justice kennedy shares your views and will recall six months before citizens united and the majority of the both cases said the west virginia supreme court judge have been helped by $3 million of independent campaign spending must read cues from the case because he might

have a debt of gratitude to the independent supporter. we don't trust the judges because they might be subject to the debt of gratitude that the politicians can be trusted. >> politicians are supposed to react to listen to take account and judges are not at least the old-fashioned way they are supposed to apply the law. >> when is the last time they set imho arbiter. it is balls and strikes. you're not a conservative. >> would you like a final word of?

the >> it is a more generic one but it's important to remember they've got in there in that jurisdiction and there are a lot of interesting issues that have arisen as to whether certain things remain constitutional after united states and mccutcheon. they will do everything they can to save the litigation that's going on and stuff like that. it would be a less a lesson troll one that less than 121 that ultimately find their way to the court then some of the folks that would like to get up there. >> how about an audience question. wait for the microphone and give your affiliation. i understand the justification about the campaign contribution

i wonder what you see is the justification for the rule to apply in the constitutional level for the contributions to the referendum issues. let's take a polar extremities. if all the money for some particular referendum is coming from some very interested group, there is a public interest in knowing that whether that should outweigh the potential chilling effect that would have across

the board is something else but i think there are circumstances in which even in the referendum area there is a strong case to be made for public disclosure. >> i don't necessarily disagree just to add a little fun. that seems right. the first amendment interests on the speakers heidi seems no different in either context. the question is whether there is a stronger government justification and i think there's certainly decent argument that it's a stronger justification when you have the concern of money going directly to a candidate versus money that's going to support an issue. >> from the pacific legal foundation. a couple of responses that i thought you gave the most important answer to what was originally the question about the collective right versus the

individual right and i think that your response that george mason insisted on and others in the anti-federalist insisted on the first amendment to protect the collective right is quite right but the other thing that politicians can do and this is what i want you to respond to reduce is to reduce the influence of the government by restricting the kind of things that they are very unlikely to do so since that case from the party that runs the coal mine that might be put out of business, given the state's of the growth of government and the power or the power lets say of the state legislature to restrict abortion if you believe very strongly in abortion rights, doesn't that counsel for

people who feel strongly. you've seen the statistics. would you agree, disagree with that analogy? the >> i think that it's true that if the government did less. to diminish the importance of spending money to put ads for candidates that have been use use of one sort or another and if you deposit the government that that isn't doing much i think that sort of assumes the issue.

in any event a lot of candidates think the government should be doing more and think the government ought to be doing less. and i don't think that we should limit the to the amount or the intensity of the debate by those people and i don't think that at least from my own perspective that that should be a reason to cut back the size of government. i think that we should make an independent decision each one of us for ourselves and the public as a whole as to what role the government ought to play but i don't think that we ought to support the limitation of the role of government because of the impact on the area we are talking about today. >> coming back to justice

stevens criticism and why i think that it is unfounded because i need the reality today is that the government is involved in the very many levels and there are so many reasons to care a lot more who has control of the senate or the house of them specifically who your constituent is that's in office. so to me that underscores why it is unrealistic to think people wouldn't want to be able to make contributions with respect to all sorts of differences in elections. >> tyler would rethink media. i just want to i guess they that i think we've talked about how liberals are outraged about this decision and i guess i haven't seen any polling that suggests that it's just liberals and its large majorities of the american

population, both democrats and republicans and unaffiliated. and i guess i just wonder how you would respond to those large numbers of people in the saying that your rights are actually expanded and greater now that a few people can donate millions more to elections. how does that conversation work and what is the defense? i think the organized campaign against the citizens united and those things are largely led by the liberals. i could be wrong. the other point is that there may be some frustration and alienation. i think that there is less in the book that speaks to be cicely this point and more and more citizens for whatever variety of reasons feel that

they don't have an active and vital role in the operation of the government. they feel increasingly alienated from it. his because of money that the coke brothers or the unions spent? >> that's part of it but i don't think that by any means explains it. there is. there's a number of other factors that come into play and it seems to me that when one strives to consider that what concerns me is that the alienation has been citizens united and it seems that that detracts attention from other sorts of things that really caused those problems of alienation and disconnect and it seems to me that those are the problems that we have to focus on.

as the amount of problems into the campaigns a problem? it may be that there are other considerations that come into play. >> one of the interesting things is that for the most part there hasn't been a two-sided debate about the citizens united. the opponents not only have carried the day in terms of public opinion that is a general but as a general matter they are the only ones speaking. the people who care about citizens united have i don't want to say monopolized but they've been the only ones that have chosen, maybe because they care but have chosen to be public again and again and again as a matter of their deeply held views on public policy and the like and from the day that it was decided there were very few defenders on the public level of

the opinion that is certainly true in the press, and i think that in part because of that but not only because of that what you described is true. i think that there is an overwhelming hostility to what the public thinks the decision was in citizens united and indeed it's more than that. you get well over 50% saying it i was calling fraudulent earlier which is that the corporation shouldn't have any rights right to engage in the freedom of speech for all the reasons. so, i agree with your point that it's not just that the decision is unpopular but what is viewed as the underlining impact of the decision favoring the rich and favoring the view, favoring people who have it over people

who don't have so far carried the day and one of the problems for those of us to engage that engage with this on the public level is how to respond as your question asks, how to respond on a level that that isn't wholly theoretical. which is not based on the generalized view as to what the first amendment is about. it's a lot easier for me for example sitting here today to endorse the chief justices rather than justice breyer that is very dangerous from the intellectual point of view and if it is embodied in the law, dangerous from a public policy point of view than to sit with a citizen, a real person who says it's just not fair some people

have all the power and the answer to that has been -- has got to be a sort of broadening of the question. wealthy people have always had more power than people without money. people who owned newspapers have always had more money than people who don't. people who have access to the press have always had more than other people. that is the way of the world. the question is what sort of freedom of speech shall we allow in the free society? and the burden on those of us that are taking the side as it were than i have in this area is to try to do a better job of bringing back home to the real people out there. ..