Trevor Potter and the Magic Briefcase

Does Trevor Potter look familiar? The Caplin & Drysdale lawyer helped Stephen Colbert’s “Americans For A Better Tomorrow, Tomorrow” Super PAC navigate federal election law

Published in 2015 Washington DC Super Lawyers Magazine — May 2015

Q: Literature suggests you’re a very serious Republican lawyer, but on TV, I’ve watched you tell Stephen Colbert that killing a ham in the likeness of Karl Rove won’t get him in trouble. Which guy are you?

A: I’m a lawyer who loves the law, and loves thinking through these issues, but understands that sometimes the answers appear crazy. The joy of working with The Colbert Report was that Stephen freed me up to acknowledge that there is humor and irony in how all of this is interpreted. I enjoyed watching him sort through the puzzle box and figure out how things worked.

Q: I loved when Colbert asked you—in reference to moving money from one 501 (c) (4) to a Super PAC—“What is the difference between that and money laundering?” Your answer: “It’s hard to say.”

A: The better answer would have been, “One is legal and one is not.” Because that really was the point, that depending on the context, some things would be permissible.

The quickest moment that I got, though, which was absolutely not rehearsed, was shortly after the Bin Laden apprehension. I was on the show and we were talking about getting an FEC advisory opinion and he said, “So if I get an opinion then I’m OK?” And I said, “Yes, you would be bulletproof.” And he looked at me, and the phrase “you could see his mind whirring” was absolutely true. He said, “Bulletproof?” He paused. Then he said, “Boy, I’ll bet Bin Laden wished he asked for one of these.”

Q: Colbert used a “Trevor May I” button to ask you what he could get away with. What’s the craziest question he asked?

A: The very first one. I thought I was going to the show to explain what a PAC was, answer a few questions and go back to Washington. After the segment, he came backstage as I was getting the makeup taken off. He asked, “Can I do this? I actually want to have a PAC. Will you be my lawyer?” That was a crazy jump.

Q: The episodes were hilarious, but what was their critical message?

A: He did a great job educating people that our campaign finance system has essentially fallen apart and now makes no sense. I had a lawyer in Washington stop me on the street after I’d done one of these episodes and say, “You know, I did not understand Super PACs until last night.”

I think that there was this buzz in the papers and the phrase “Super PACs” and so forth, and people didn’t really understand how much the system had changed until Stephen could illustrate it by walking through the questions that a PAC creator and funder would actually ask.

There was a fascinating study out of Penn this past summer. [Researchers] interviewed three groups of people: people who watched the nightly news on TV, people who got their news primarily from major national newspapers, and people who got their news from Colbert. They asked all three groups the same questions about how campaign finance worked. Hands down, the people who got their news from Colbert understood the system better.

Q: The Report recently aired its final episode—

A: And it’s a great loss for the country. I really mean that.

Q: Did I happen to catch you crooning next to Big Bird, Jeff Daniels and Cyndi Lauper?

A: Yes. Big Bird managed to drown out my enthusiastic but off-key rendition of the song, but I was there. 

Q: PACs and Super PACs: Will this discussion ever reach the fever pitchof 2012?

A: I fear it may not reach such a high-level humorous pitch again, partly because behind the humor is a sad reality: I think people are feeling disaffected and unconnected to the political system. We just spent a phenomenal amount of money in the mid-term elections and we had the lowest percentage turnout of voters since the Second World War. People say, “Well, the more spending you have, the more political speech you have, the more voters will be educated and that’s a good thing because then they’re more likely to be involved and vote.” That’s the theory. The reality seems to be that the more money that is spent by these outside groups on negative ads, the more negative political speech there is, the more attack ads, the less likely people are going to vote because they’re turned off. I think that people are just feeling less engaged in a system they think is rigged.

I was giving a talk at the University of Kentucky Law School this fall and on the front page of the newspaper was a story about the McConnell vs. Grimes [Kentucky Senate] race, and the fact that the vast majority of the financing of both candidates came from out of state. There were maps; where does McConnell get his money, where does Grimes get hers. I think that people in Kentucky are losing touch; and around the country, people are feeling that they are not any more connected, that these are not their representatives whom they are selecting.

Q: So big money in politics is a big problem. How do we fix it?

A: I’m not one of those people who says that we’re spending too much on campaigns. It isn’t that the amount of money is too large, but I think the dominance in the system of a handful of major donors, and therefore the lack of participation by average voters, is the problem—the figures that show that 80 percent of Super PAC money comes from under 200 individuals.

It is becoming a smaller and smaller closed circle. There was an article recently in the Times saying that the Republican billionaire super donors were hoping to avoid a nasty primary in 2016 and their goal was to whittle the field down to one.

When [CEO of Las Vegas Sands Corp.] Sheldon Adelson announces that he will see potential candidates in Las Vegas, everyone gets on a plane and goes to what the press calls “The Sheldon Adelson Primary.” It’s a very odd development for American democracy.

Q: Do you have a solution?

A: Yeah. First of all, I think the Supreme Court went in the wrong direction in Citizens United. While I understand what they were saying—the sophisticated view of Justice Scalia and some of the other justices: Well, corporations are made up of people and they do not operate without people. Then the view that some corporations are just the corner barbershop that incorporates, and why shouldn’t they be involved in politics? That’s fair, but some corporations are vast international conglomerates with a majority of foreign shareholders who have very little interest in the future of the American political system.

It seemed to me that the better view of what our founders had in mind is that individual citizens were the people who should be the decision-makers in a democracy, and that if those individual American citizens and voters happen to be in corporations, fine, they can still express their own views, they can still contribute their own funds. I think it is a mistake to jump from that to the corporate form and the potential worldwide involvement in the political system.

Justice Stevens recently raised a very good question: “If we think that we can prohibit foreigners from participating in U.S. elections, because they should be owned by U.S. voters, not foreign citizens and foreign companies, then why can’t the voters and citizens of Montana say that their elections for who is going to represent them in Washington should be owned by the citizens and voters of Montana?”

Q: Your reform pitch is …

A: I would favor a system that Britain now has, where corporations need approval from the shareholders before they spend the shareholders’ money on politics. That seems to make sense.

How do we make that appealing? I think the answer is you go to a system that now a number of states and cities have tried; New York City is a model for this, where you have a five- or six-to-one match, and you raise private money at a barbeque, and then the government fund matches that private money, so that the initial citizen choice is, “I want to give to the candidate,” and then that contribution is magnified. You give $20 and the candidate gets another $100. But you have to get the $20 first from the citizen.

There is another proposal I’ve seen by professor Richard Painter, who was in the George W. Bush White House as the ethics officer. His proposal is that you give every registered voter basically a credit card that that they can use for up to $100 for any and all candidates and political committees. The theory is, we all pay taxes. You’re getting your first $100 in tax money back to spend, and you spend it to determine who is going to make the decisions about how to spend the rest of your tax money.

Q: What are we going to be talking about in the 2016 election?

A: What are we going to be talking about, or what should we be talking about?

Q: Nice edit. What should we be talking about?

A: We should be talking about a simplified tax system. We should be talking about how we’re going to get back to the more traditional access to good education and higher education to all Americans. That’s been the vehicle for economic growth, and I think we’re losing that. 

Q: You told NPR in 2012 that the Federal Election Commission is “not a watch dog, because it’s sitting there tied up.” Is the dog back on watch?

A: No. The dog is still deadlocked, fighting with itself in the kennels. I think what’s happened to the commission is that it has essentially been taken out of action by

gridlock. The commission is an odd agency. There is only one other like it in the government in that it has an even number of commissioners. So it has six commissioners and it requires a majority to take any action.

So you take that structure, and you combine it with what has occurred—which is that particularly the Republican leadership in Congress has picked commissioners who are as opposed to campaign finance regulation and the remains of McCain-Feingold and the role of the FEC as the leaders themselves are—and you end up with a commission that is deadlocked. You have two choices: either the Democrats agree to deregulate or everyone splits 3-3. We are largely in a nothing-happens mode.

Q: And you were once chairman of the FEC.

A: Right. I got to the commission in 1988. I spent my time there trying to make it more efficient, trying to make it work, trying to have it enforce the law, and in general, I found my fellow commissioners agreed. But a concern was, “I’m going to make sure that whatever you do against my team also gets done against your team.”

Q: Did your experience with the FEC encourage you to establish your nonprofit, Campaign Legal Center?

A: It was coming out of the FEC and realizing that in most matters that came before the commission, the entities were the two political parties. There wasn’t anyone from the outside representing the voters. So I thought we needed an entity to impart a broader public advocacy of the values of our democracy.

The CLC has done a great job of holding the legal line on disclosure. Again and again, groups have been bringing challenges to existing disclosure statutes, and the CLC has had a very high win rate in defending those statutes.

Q: You also lead Caplin & Drysdale’s political law group.

A: I represent a whole range of clients who have reform missions. And then I represent a range of clients who are looking at ways to involve more citizens to increase knowledge of what’s happening in politics and in Washington. I’m surprised I am much busier now than I was a decade ago. It sounds trite, but I genuinely wake up and come to the office excited. I had breakfast with two younger people just this morning who have a whole new idea of how to get their generation involved in politics through a prism I had never thought of.

Q: Can you tell me about it?

A: [Laughs] Absolutely not.

Running into people who have ideas and a commitment to making the country better is great. If only I had more time to read.

Q: What’s the last great book you read?

A: The Hare with Amber Eyes. It’s about a family that was once rivals to the Rothschilds in Europe, who have completely disappeared.

It’s a fascinating book because it tells whatever place we’re in, whichever empire, whichever political system—it’s remarkably transient.

Look at Russia before the revolution; at the dissolution of the Austro-Hungarian Empire. What you come to realize is that what appears to be a solid political body can disappear in remarkably quick order. That is a lesson for Americans.

I am reminded of the Benjamin Franklin line, whether true or not, when asked upon coming out of the Constitutional Convention: “What have you given us, Dr. Franklin?” His response: “A republic, Madam, if you can keep it.”

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