Trevor Potter served for four years on the Federal Election Commission, including one as chairman, and as a lawyer for the presidential campaigns of George H.W. Bush and Sen. John McCain, R-Ariz. But he recently achieved his greatest notice for providing on-air legal advice to Stephen Colbert in the political satirist’s successful effort to start a political action committee. Edited excerpts of National Journal’s interview follow.
NJ What has it been like being Stephen Colbert’s attorney?
POTTER It has definitely given me a level of visibility I have not had before. I’m always asked to characterize why he is doing this. He can speak for himself. But I was willing to spend my time doing this because there are a lot of developments in campaign finance law, starting last year at the Supreme Court with Citizens United, and at the FEC, and I think they’re really important subjects for the future of democracy. And to have a popular television show talk about them is educational.
NJ What would you like to see result from this?
POTTER Well, first of all, people refer to the “campaign finance system.” We don’t have a system. We have an accidental conglomeration of laws and court decisions and FEC decisions that have resulted in a campaign finance world that wasn’t designed in any coherent way.
McCain-Feingold was coherent, more or less. It was designed to accomplish something. It pretty much wanted all money disclosed when it was spent, and it wanted officeholders [and] candidates not to solicit soft money and national parties not to spend soft money—corporate and labor money.
Then you had Citizens United saying you can’t restrict corporate and union expenditures, which has been done in one form or another by states or the federal government since 1907. It’s a huge change. And I think people are still grappling with what that means.
The other aspect of Citizens United is that the Supreme Court turned back the challenge to disclosure. The Supreme Court upheld the disclosure requirements, resoundingly. It is inaction in Washington that is giving us no disclosure. The FEC is now deadlocked 3-3. Congress is deadlocked. So even though the Court said it was really important to have disclosure and that shareholders should know how their money was being spent and voters should know who is communicating, we don’t have it. People need to focus on that.
NJ Is it fair to say that you’ve become so frustrated that you’ve resorted to guerrilla theater?
POTTER No. I’m a let-a-thousand-flowers-bloom guy. This is yet another way to talk about these issues. And I think the more vehicles to talk about them, the better.
NJ How did you get interested in campaign finance law?
POTTER I worked for the George H.W. Bush campaign for three and a half years. Through the whole process—the primary—the law was visibly being broken by other candidates; [they] were spending money without reporting it, were spending corporate money, were running campaigns without declaring themselves candidates. All of that came out after the election. There were FEC audits, and at the end of the day the commission found that other people running campaigns had engaged in illegal activity.
But my question as a lawyer for Bush is, why couldn’t they stop this at the time? Why did the system take so long? Why did the commission miss as much as it had? I felt we were operating by the rules and other candidates weren’t. So that got me interested in what the rules were.
NJ Are you satisfied with the progress you made at the FEC?
POTTER I think I made progress in the 1990s. One reason is that when I left, in the ensuing years as Republicans were looking for new commissioners, occasionally I heard that one of the criteria was “No more Trevor Potters.” I think there was a sense in Congress, among the leadership, that everyone was better off if the FEC was not as active as I was pushing it to be.
NJ How would you characterize in a couple of sentences, post-Citizens United, the 2012 campaign?
POTTER Well, it would be overstating it, but it would still be in the right ballpark to say it’s going to look a lot like the 1904 campaign, which was the last one before there were federal laws regulating money in politics. You’re going to find a lot of money being spent. I think you’re going to find people who don’t want to disclose donors being able to hide the money. So you’ll find secret money. What I don’t know is what the popular reaction to all that is going to be.
NJ Are you still a Republican?
POTTER Yes. I’ve been happily a George H.W. Bush Republican, and that bridged into a John McCain Republican. I haven’t figured out what kind of Republican I am this year.
This article appears in the July 16, 2011, edition of National Journal.