“What we really have here is a corporate takeover of the White House.”
An interview with John Bonifaz re: Free Speech for People and the #MarchforTruth
Note: the following was transcribed from a live interview conducted on May 25, 2017. If you come across spelling errors or typos, please feel free to email us at support@l4gg.org.
Traci Feit Love: [00:01:51] Hi everyone this is Traci Feit Love with Lawyers for Good Government. I’m here today with John Bonifaz from Free Speech for People. John, thank you so much for being here.
John Bonifaz: [00:02:56] Thank you, Traci. Pleased to be with you.
Traci Feit Love: [00:02:59] Really looking forward to hearing from you today. I was hoping you would start by just telling everyone a little bit about you. You have a fascinating background. We’d love to learn a little bit about you and how you ended up at Free Speech for People.
John Bonifaz: [00:03:11] Sure. I am the co-founder and president of Free Speech for People, and I helped to start it with Jeff Clements (the other co-founder) on the day of the Citizens United ruling in January 2010, the Supreme Court’s ruling which equated corporations as people with political speech rights and set us on this current course of unlimited corporate spending in our elections, making a campaign finance system exponentially worse.
“[T]he Citizens United ruling in January 2010…set us on this course of unlimited corporate spending in our elections, making the campaign finance system exponentially worse.”
John Bonifaz: [00:03:42] I’ve been engaged in democracy advocacy for more than two decades. I helped to engage in election integrity work as a legal director for Voter Action prior to co-founding Free Speech for People, and prior to that I founded an organization called the National Voting Rights Institute, which I directed for more than a decade and then served as its general counsel. Our work at the National Voting Rights Institute was engaging in redefining campaign finance as a voting rights issue of our time, and litigating the campaign finance questions all around the country, including challenges to Buckley v. Valeo, the 1976 Supreme Court ruling which equated money with speech.
Traci Feit Love: [00:04:28] So you founded Free Speech for People after the Citizens United ruling. Tell us a little bit more about what you were thinking on that day. What were your thoughts about the ruling? Why did you see it as such a big problem for the country?
John Bonifaz: [00:04:42] Well the ruling really exploded the system of campaign financing to a place that it makes even more dangerous from the standpoint of the promise of political equality for all, and government of, by, and for the people. The ruling extended an extreme doctrine of corporate constitutional rights, a false doctrine in our view which essentially equates corporations as people with constitutional rights and now allows these artificial state actors — entities that we create via state governments — to essentially interfere with our political process; to engage as political actors like people in the political arena. And we saw that as a direct threat to our democracy and to the promise of political equality for all. And that’s why we launched Free Speech for People, both with a campaign for a 28th amendment to the Constitution (to overturn the ruling, and the doctrines underlying that ruling, of money equaling speech and corporations being treated as people) but also to litigate in the courts to push back and advance a new jurisprudence on money and politics and on corporate power that would reclaim democracy for all.
“[W]e have a ‘wealth primary’ in our system today that’s akin to the white primaries in the past…not based on race (although it’s disproportionately impacting communities of color), but this time based on economic status.”
Traci Feit Love: [00:06:08] So before we get into the next subject I’m curious to know (and I think many of the people listening today are lawyers and might also be curious to know) about that litigation; what are some of the specific things that you’ve worked on in terms of litigation to further the cause?
John Bonifaz: [00:06:27] Well at the National Voting Rights Insitute, what we were principally engaged in doing was challenging the system on voting rights grounds, advancing the argument that we have a “wealth primary” in our system today that’s akin to the white primaries in the past that excludes people, this time not based on race (although it’s disproportionately impacting communities of color), but this time based on economic status. Just like the poll tax filing fee cases demonstrated that economic discrimination in the political arena has no place, the “wealth primary” system we argued should be struck down as well. We were not able to get to the merits of those arguments. Unfortunately the courts did not see us as having plaintiffs with the standing to make these arguments. But frankly I do continue to believe that the “wealth primary” that exists today is unconstitutional and violates the Equal Protection Clause.
John Bonifaz: [00:07:26] Congressman Jamie Raskin from Maryland, who of course has been a constitutional law professor for many years, coauthored that theory with me in two law review articles in the 1990s and we were litigating those cases at the National Voting Rights Institute since then. We also litigated in three different courts the focus on Buckley v. Valeo and the need to revisit that ruling, and ultimately we did get one of those cases to the Supreme Court in 2006 and that was the case coming out of Vermont where Vermont had passed mandatory spending limits that were then struck down by the courts. We were not able to get the court at that time to revisit Buckley, but you know I continue to believe that Buckley was wrongly decided and needs to be revisited, either by the courts or via a constitutional amendment.
John Bonifaz: [00:08:23] Our current litigation at Free Speech for People follows along those lines. We are focused on challenging the D.C. Circuit Court of Appeals ruling right after Citizens United known as SpeechNow.org v. FEC which effectively unleashed super PACs into our elections.
John Bonifaz: [00:08:43] It’s commonly thought that Citizens United led to the super PACs actually coming into our cycle, but actually it was a D.C. Circuit Court of Appeals ruling that the Supreme Court never considered. That decision really has wreaked havoc as well with our political process, and we are looking at various ways to getting that decision reviewed by the Supreme Court since it never reviewed the SpeechNow ruling. So we have a lawsuit pending in Washington D.C., in the District Court there, against the FEC on the SpeechNow ruling essentially seeking to abolish super PACs.
John Bonifaz: [00:09:27] We represent Congressman Lou, Senator Merkley, Congressman Walter Jones (a Republican from North Carolina), and other plaintiffs in challenging the FEC’s failure to enforce the existing law, which sets limits on donations to PACs. We also have a campaign in St. Petersburg, Florida, to pass a local ordinance which would set up a new test case (or it could set up a new test case) that challenges super PACs and challenges foreign corporate money in our elections. And there’s similar model legislation that we’ve worked on in the state of Connecticut, pending in the Connecticut legislature.
“[W]hat we saw in the 2016 election, both for president and for congressional races…is this dominance of big money interests unlike we’ve ever seen. What that means is that those who are able to raise the most money are often able to drown out the voices of ordinary citizens…”
Traci Feit Love: [00:10:08] So to what extent do you believe Citizens United (and the decisions that followed) influenced the outcome of the November 2016 election?
John Bonifaz: [00:10:18] Well there’s no question that Citizens United dramatically changed the landscape in terms of the ability of billionaires and wealthy interests to dominate our political process. They had enormous influence before Citizens United, but that influence grew exponentially. And so what we saw in the in the 2016 election both for president and for congressional races — and even for state races as well — is this dominance of big money interests unlike we’ve ever seen.
John Bonifaz: [00:10:51] What that means is that those who are able to raise the most money are often able to drown out the voices of ordinary citizens and scare away any real competition. Many (or most, I should say) congressional races don’t involve meaningful competition, because the districts are drawn in such a way that there’s no real competition between the two parties. But even in the primaries there’s no competition because the incumbents who are running for re-election build a war chest to scare away any challenger unless they’re phenomenally wealthy.
John Bonifaz: [00:11:28] So that means that we don’t really have a healthy democracy when you see so many races that effectively go out with little or no competition.
John Bonifaz: [00:11:37] At the presidential level, there’s no question that the Clinton campaign and the Trump campaign both were beneficiaries of this system; they were engaged in raising huge sums of money from wealthy interests. But I do also think that the ability for specific billionaires and very wealthy people to control the debate and the process is new than it has been in the past and is quite dangerous. So you of course probably know the Robert Mercer story and his influence in this past 2016 election. He’s but one example of why this system is so wrong, to have someone with such wealth be able to exert such influence over the process and now over this president.
“[T]he March for Truth is really designed to demonstrate the public demand…to know as to whether or not this president and his campaign engaged in any kind of coordination with the Russian government. This is a very critical moment in our history and that question needs to be answered fully and clearly for the American people.”
Traci Feit Love: [00:12:30] OK so let’s shift tack a little bit now. I’d like to find out more about your involvement with the March for Truth coming up on June 3rd. I know Free Speech for People is a national partner, so is Lawyers for Good Government. For those who are listening, why did you decide as an organization to come on board as a partner? Why do you believe the march is so important?
John Bonifaz: [00:12:51] Well, Free Speech for People after the election made a decision at our board level that we needed to be engaged in challenging the unprecedented level of corruption of this White House. And we saw that initially happening via the violations that the President was going to start committing from day one of the Emoluments Clauses (the foreign Emoluments Clause and domestic Emoluments Clause) based on his refusal to divest fully from his business interests.
John Bonifaz: [00:13:22] And the March for Truth is a further extension of that, because of course we saw this dangerous situation in the 2016 election of a foreign power hacking into one political party’s e-mail system and then revealing those e-mails. The question of whether or not the Trump campaign coordinated in any way with the Russian government in doing that is paramount. It’s a critical question for the state of our democracy and for our Constitution, and the March for Truth is really designed to demonstrate the public demand for an independent commission, independent investigation into what happened and to have the truth come out for all Americans to know as to whether or not this president and his campaign engaged in any kind of coordination with the Russian government. This is a very critical moment in our history and that question needs to be answered fully and clearly for the American people.
John Bonifaz: [00:14:29] But independent of that you know I should say we have launched from the first day of this presidency, starting on Inauguration Day, a campaign with Roots Action at impeachdonaldtrumpnow.org, focused initially on his ongoing and direct violations of foreign and domestic corruption clauses of the Constitution. And now we’ve expanded that campaign to include the obstruction of justice issue that has arisen as a result of the president’s decision to fire the FBI director in the midst of a criminal investigation into whether or not in fact the Trump campaign coordinated with the Russian government with that interference.
“An independent commission is separately needed so that the public can learn the truth of what happened, because it’s not required, in any way whatsoever, for the Special Counsel to unveil what he finds through his investigation. If in fact he determines there is no reason to prosecute, he doesn’t have to tell us why.”
Traci Feit Love: [00:15:15] There were some who were questioning whether the march should continue after the appointment of the Special Counsel. How do you address those who think that now that the Special Counsel has been appointed there’s not as much need for us to push forward in terms of a public demand for an investigation?
John Bonifaz: [00:15:35] Well I think the Special Counsel plays a very important role here and I do think that we needed one. And I’m glad that we finally do have a Special Counsel. But that is an investigation on whether or not there were any violations of criminal statutes, and that does need to move forward.
John Bonifaz: [00:15:56] An independent commission is separately needed so that the public can learn the truth of what happened, because it’s not required, in any way whatsoever, for the Special Counsel to unveil what he finds through his investigation. If in fact he determines there is no reason to prosecute, he doesn’t have to tell us why. And if he determines that only some people should be prosecuted (but not others), he doesn’t have to tell us about those he chose not to prosecute. So the independent commission provides that opportunity. And I think that is a critical demand.
John Bonifaz: [00:16:40] I also think frankly that there are congressional investigations that need to feel the pressure from the public at large to do their job. And we’ve seen some movement by Congress to subpoena the documents coming from FBI Director Comey, to subpoena documents coming from former national security advisor Michael Flynn. But frankly, you know, they have not been moving as aggressively as they should be, and this March for Truth provides the opportunity for the public to speak out and demand that they move forward.
“[W]e all need to be standing up at this critical moment in our history. We are facing a constitutional crisis. This is a president who has so openly defied the rule of law, and our Constitution, he must be held accountable…these marches coming up for the #MarchforTruth are critical…”
Traci Feit Love: [00:17:17] We’ve heard from some of the local march organizers that things are going really well and they’re confident about the success of the march. Others are saying that they’re talking with people who say they have “march fatigue,” or people who are saying there are too many protests, too many rallies, too many marches. What would you have to say to those people? How would you encourage them to press forward and show up at the March for Truth on June 3rd?
John Bonifaz: [00:17:44] Well you know I think we all need to be standing up at this critical moment in our history. We are facing a constitutional crisis. This is a president who has so openly defied the rule of law, and our Constitution, he must be held accountable — in our view via the impeachment process, but also via these investigations.
John Bonifaz: [00:18:03] It’s really our responsibility as people who believe in our democracy and believe in our Constitution, to show up and stand up and fight back. And I know this takes time and I recognize that there are many other things we all want to be doing (with our families, with our friends, and in our work life) that we have to be doing. But the fact is that we are in this critical moment in our history, and the marches that have happened since this election have been critical to exposing where the public is, and these marches coming up for the March for Truth are critical for demanding again that there be these independent investigations to make sure we uncover the truth of what happened in the 2016 election.
“[W]e did not think we could be true to our mandate of taking on big money in politics and unchecked corporate power if we were not also going to be taking on this unprecedented level of corruption at the White House.”
Traci Feit Love: [00:18:55] OK so let’s take a step back now. I’d like to hear more about how things changed for you as an organization since the November election. You mentioned that there was a decision at the Board level that Free Speech for People would work to address the issues of corruption and so on with the administration, but what else has changed for you since then? What’s something most people probably don’t realize about what it’s been like for you or for your organization over the past six months?
John Bonifaz: [00:19:26] Well you know I think Free Speech for People we did not — just to follow up on the point about our Board decision — we did not think we could be true to our mandate of taking on big money in politics and unchecked corporate power if we were not also going to be taking on this unprecedented level of corruption at the White House under this new administration. This is a nonpartisan organization and we’re engaged in a nonpartisan campaign with respect to the impeachment call.
John Bonifaz: [00:19:53] We also have separately launched a campaign seeking the New York Attorney General to launch an investigation to whether or not to de-charter the Trump Organization for colluding with the President to violate the foreign and domestic Emoluments Clauses. And we intend to do other innovative work to take on this corruption. But it was in our view not a change necessarily, but an extension of where we’ve been in demanding that our government be of, for, and by the people — not of, for, and by the corporate interests.
“What we really have here is a corporate takeover of the White House where the President and his family are enriching themselves at the expense of the public.”
John Bonifaz: [00:20:26] What we really have here is a corporate takeover of the White House where the President and his family are enriching themselves at the expense of the public. So that’s really where we are as an organization.
John Bonifaz: [00:20:39] I think that, you know, on a personal level you know I recognize — and others on the team at Free Speech for People recognize — that while we need to be engaging in sprinting, we also need to be seeing the long distance run that we’re in. And none of us have any view that something’s going to dramatically change overnight, although there’s been a rapid speed at which we’ve grown the impeachment campaign where we’re over 1.1 million signers now. But I do think that we have to look for the long haul as well as engage in the sprinting at times that we’re doing.
John Bonifaz: [00:21:21] And I did get quite involved — separate from Free Speech for People — in the recount fight. I was very much involved in helping to get it off the ground. And as a legal adviser on those recounts in Michigan, Pennsylvania, and Wisconsin, and I continue to believe that election integrity is a critical question for us that we sometimes only look at around every election, and we don’t look at it during the times that we’re not focused on an election result. But we do NOT verify our elections in this country in any way whatsoever. We rely on machine tallies to tell us the results. And unfortunately with this election, more than any other, we needed to verify it and it’s a shame that we did not.
“[W]e do think that the New York Attorney General or other state attorneys general have an important role to play in holding the Trump Organization accountable for its collusion with the President in violating the Emoluments Clauses.”
Traci Feit Love: [00:22:11] OK so I would like to delve more into that but we don’t have too much time left and I want to make sure we have a chance to cover everything. So here’s a question from one of our listeners today: Christopher asks, “Could we hear more about the effort to de-charter in New York? Any news on whether Schneiderman has commented on this or materials that have been brought to the New York AG’s attention that might help such an investigation?
John Bonifaz: [00:22:35] So thank you for that question. If you go to our home page we have a few slides of main areas of our work. And one of the slides that you can access, just from the top there with the arrow, is the de-charter campaign page, and you’ll see there a number of materials. We’ve provided the New York Attorney General two separate letters detailing why we believe this investigation needs to proceed. We’re joined in this filing by Professor Jed Shugerman of Fordham Law School as well as the law firms of Emery Celli Brinckerhoff & Abady in New York and Clements & Pineault in Boston, Ben Clements being our Board Chair.
John Bonifaz: [00:23:20] We have not yet had any indication from the New York Attorney General in any public way that he is actively moving in this way, and we do believe that pressure is needed, and that people in New York and beyond ought to join us in calling on the New York Attorney General to start this investigation. So we welcome the help there. We have — on that same page that you can access from our home page — we have both the information on how to contact the New York Attorney General, but also a petition online to sign.
John Bonifaz: [00:23:57] You know we do think that the New York Attorney General or other state attorneys general have an important role to play in holding the Trump Organization accountable for its collusion with the President in violating the Emoluments Clauses.
Traci Feit Love: [00:24:15] OK, so I’ve shared in the chat (for those on the live webinar) your home page link, which is freespeechforpeople.org. I’ve also shared the link to freespeechforpeople.org/revoke-trump-charter. Is there another link that everyone needs to know about in order to support the de-chartering campaign?
John Bonifaz: [00:24:36] Well thank you for doing that, the same link can be accessed via revoketrumpcharter.org.
Traci Feit Love: [00:24:44] Great, ok so I’ll share that one as well: revoketrumpcharter.org. Thank you.
“Monsanto claims a free speech right to essentially hide what is in our food, and not tell us of GMOs in our food, when Vermont tries to pass a GMO labeling bill. Seattle, in a case that we have since won, passes a living wage ordinance, and McDonald’s and other companies challenge it on equal protection grounds because smaller businesses are not having to implement the law as quickly as big corporations.”
Traci Feit Love: [00:24:51] OK so just a few more minutes here…let’s make sure we’ve covered your current priorities. So you mentioned the campaign to impeach Trump, you mentioned the campaign to revoke Trump Organization’s charter in New York, what else if anything is a priority for your organization right now that you think activists should know about?
John Bonifaz: [00:25:11] Well we’re still very much involved in taking on big money in politics and unchecked corporate power, so we have a campaign in St. Petersburg, Florida that we hope will be successful and have the city council pass an ordinance that would as I say abolish super PACs and limit foreign corporate money and potentially set up a test case on that. I’m going to be testifying before the city council in late June as they continue to consider this ordinance. And then in Connecticut we have a similar bill pending there, so if any of your listeners are from either of those areas, we welcome their help in getting the word out about both of those model bills.
John Bonifaz: [00:25:55] The case against the FEC that I mentioned is a priority because that is another opportunity to revisit the SpeechNow ruling and abolish super PACs.
John Bonifaz: [00:26:04] The other area that I haven’t discussed that is a priority is the challenge to the fiction of corporate constitutional rights, so we are continuing to show up in cases with amici briefs where corporations are making these false claims of constitutional rights in order to strike down public interest laws.
John Bonifaz: [00:26:25] Monsanto claims a free speech right to essentially hide what is in our food, and not tell us of GMOs in our food, when Vermont tries to pass a GMO labeling bill. Seattle, in a case that we have since won, passes a living wage ordinance, and McDonald’s and other companies challenge it on equal protection grounds because smaller businesses are not having to implement the law as quickly as big corporations. So these are examples among many in which corporations are now extending Citizens United even further, and trying to essentially claim the rights of people under the Constitution, to strike down laws that protect our health, our environment, our civil rights, and our worker rights. And that is why, you know, we’re seeing that as an important priority of our work as well.
Traci Feit Love: [00:27:22] OK and I know you shared with me before the call that there’s a link where lawyers can go if they would like to get more involved with legal advocacy. So I will share that link as well. But while I’m doing that, do you want to say a little bit more about specifically how lawyers might be able to get involved with your pro bono legal advocacy network?
John Bonifaz: [00:27:42] Sure. So really where we’d love to have people help us is potentially on assisting with drafting amici briefs. You know if we have case work that people are willing to participate volunteer co-counsel, we’d welcome that. We do already have firms, pro bono firms, that are on board with us in our FEC case and we anticipate if there is a case coming out of St. Petersburg, we’ll enlist pro bono firms that way as well. So that link under our legal advocacy section, getting involved, you know provides the opportunity to do that litigation work.
John Bonifaz: [00:28:20] But you know we we don’t limit our work obviously only to the courtroom, and if there are lawyers or those with legal training in your network that want to help us in terms of writing op/eds, in terms of writing letters to the editor, and serving in that capacity to help in the court of public opinion in many of these areas, we welcome that as well.
“[We] oppose the current call for a Constitutional convention in this political environment. We are quite concerned about the level at which corporate interests would dominate such a convention and the potential to set us back in the area of human rights and civil rights and all of the gains that people have fought and struggled for over the past many decades.”
Traci Feit Love: [00:28:45] Perfect, ok so I want to let everyone know (for those of you on the live call): last call for questions. We just have about two more minutes, so if you have questions for John, please go ahead and type them in the question box now. While you’re thinking about that, I’m going to go back and ask a question that was e-mailed in ahead of time.
Traci Feit Love: [00:29:03] So the question for you John is this (and I’m quoting from the email I received): “It is my understanding that Free Speech for People supports an Article V Constitutional convention — the same method to amend the Constitution supported by corporate interests. Are you concerned that an Article 5 convention would be co-opted by corporate interests? And is there any way to protect against outcomes favoring corporate interests if such a convention has been called?”
John Bonifaz: [00:29:29] I appreciate this question so that I can actually help correct the record: Free Speech for People does not support an Article V convention. In fact if you go to our blog on our site (at freespeechforpeople.org) you’ll find very recently a posting where we issued a statement unanimously approved by the Board to oppose the current call for a Constitutional convention in this political environment. We are quite concerned about the level at which corporate interests would dominate such a convention and the potential to set us back in the area of human rights and civil rights and all of the gains that people have fought and struggled for over the past many decades. That could happen via that convention.
John Bonifaz: [00:30:08] So we do not actually support an Article V convention and we are deeply concerned about the danger of what could happen there if it goes forward. We also don’t support the notion that there’s any guarantee whatsoever of limiting a Constitutional convention solely to a question of, for example, money in politics or the fiction of corporate constitutional rights. That’s never been tested. The only way we’ve amended our Constitution in our entire history, all 27 amendments have gone through Congress passing an amended bill and sending it to the states for ratification. I understand that there is another route which is to call for a convention but it’s actually never been used and we don’t think in this current political environment it should be used at all.
Traci Feit Love: [00:30:56] Got it. OK well thank you for correcting the record on that. We are going to have to wrap up. For those of you who are Lawyers for Good Government members, if you would like to stick around to speak with me about anything — questions you may have about the organization, projects we’re working on, and so on — please feel free to stick around. But John we’re going to let you go, after I encourage everyone to check out MarchforTruth.info. Find your local march, I believe there are now 100 of them across the country on June 3rd. And John, will you be attending one of the marches, and if so where will you be on June 3rd?
John Bonifaz: [00:31:31] I will. I’ll be attending the one in my community. I live in Amherst, Massachusetts and there’s one in Northampton right nearby and I’ll be speaking at that rally in March.
Traci Feit Love: [00:31:41] Excellent, ok well thank you so much again John for being here. I hope everyone will join us on June 3rd at the March for Truth and we really appreciate you taking the time today.
John Bonifaz: [00:31:51] Thank you Traci, and thanks everyone for being on this call and for all that Lawyers for Good Government is doing at this critical moment.
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Traci Feit Love is the founder, President & Executive Director of Lawyers for Good Government (L4GG). For regular e-mail updates from L4GG, fill out the “join us” form on lawyersforgoodgovernment.org.
