Our Strategy to Cancel SuperPACs

Foreign. This is Larry Lessig. This is yet another interim episode before the launch of the next season, which I'm a little behind in preparing, but I am still hopeful we can launch at the beginning of October. But the point of this episode is to introduce and explain both the video competition that we've launched. The video competition with a $50,000 prize. That's right, 5,000prize for the video that most compellingly or creatively explains the logical mistake behind the decision that gave us super PACs. But in addition to that video competition, what I want to explain in this short episode is exactly what we are hoping to accomplish and what the strategy is that we have adopted to get from this competition to a chance to overturn the decision that gave us super PACs. Okay, so first on the video competition, as I've explained elsewhere, we have launched a competition to explain the mistake in the case that gave us super PACs. So here's the background. Most people, I think practically everybody you ask about super pacs will tell you that super pacs were created by the Supreme Court. When the Supreme Court decided the case of Citizens United in January 2010, that's not true. Citizens United decided the question whether you can spend unlimited amounts of money when you spend your money independently of a political committee. So if I decide to take a million dollars and spend it to support Joe Blow for Congress, and I don't talk to Joe Blow or his committee coordinating my message or anything about the substance or structure of the advertisement, then that's, quote, independent. And what the Supreme Court said was, if it is independent, that means there can't be any chance of a quid pro quo. This for that deal that produced that spending. Now, what the Supreme Court was distinguishing was the idea that you could spend money without there being a quid pro quo deal, and the fear that sometimes when candidates and donors get together, there is a quid pro quo deal. So way back in 1976, when the Supreme Court decided the case of Buckley vs. Vallejo, the question at the core of that case, there were many. But here's the one that's mattered most is whether Congress has the power to limit contributions at all. Does Congress have the power to limit contributions to candidates or their campaigns under the theory that unlimited contributions create either actual corruption or the appearance of corruption? And what the Supreme Court said in that case was, yes, you can limit contributions. Because if I, as a donor can give a candidate a million dollars, then it's quite probable, or at least most people would believe, that in that giving, I'VE gotten something in exchange. And what I would have gotten in exchange, quid pro quo would constitute that transaction as a crime or certainly constitute that transaction as corrupting the basic structure of governance. So because I'm allowed to say quid pro quo is possible, in that case, I, as Congress, am allowed to say, gosh, I'm not Congress. I don't want to be Congress. But okay, I don't want to edit that. Here we go. I, as Congress, am allowed to say, yeah, we're going to limit contributions. Now, one thing you could say when we say we're going to limit contributions is, well, do you really believe that every single time somebody's giving a large donation to a candidate, they're asking for something in return? And the answer, the Supreme Court said was no. No, indeed. The Supreme Court didn't require any evidence of the probability that a large donation involved corruption. And it acknowledged that indeed, a large donation was itself a crime if it was a donation given in exchange for some government benefit favor. So the Court acknowledged that there was already regulation against quid pro quo corruption. But what the Court said was, even though there is that regulation, even though quid pro quo corruption is a crime, it's still okay for Congress to limit contributions to make it unlikely that any contribution is quid pro quo so that the public doesn't believe there's either actually corruption or we don't create the appearance of corruption in the way we fund campaigns. Okay, now that's background to the actual decision that created super PACs, which again, was not Citizens United decided January 2010, but a lower federal court decision decided by the D.C. circuit in March of 2010. In that case, what the D.C. circuit said was the Supreme Court has just told us that there is no quid pro quo corruption when someone spends money independently of a campaign. And so it follows as a matter of law, which means as a matter of logic, which means you don't need to know anything about the actual facts of the case. It just is a matter of logic that if you can't corrupt a campaign by spending independently, then contributions to a committee that spends independently also can't corrupt a campaign. Okay? That's the critical step that created super PACs. And that critical step is obviously flawed. And though it might not have been obvious in 2010 how it could be flawed, by 2017, it was pretty obvious because in 2017, we. What the Justice Department did was file a lawsuit, a corruption prosecution, against a sitting United States Senator, Robert Menendez from New Jersey, Democratic senator, who was alleged to have engaged in a quid pro quo transaction with a Florida donor. And what the transaction involved was the Florida donor giving money to a super PAC that supported Menendez in exchange for Menendez doing favors for the Florida donor. Okay, that's plain quid pro quo corruption. That's what the government charged, though they failed to persuade a jury of that charge. So Menendez was not convicted. But a quid pro quo between Menendez and a Florida man was alleged. But that quid pro quo involved a contribution to a super pack. This is the critical point. That contribution was the product of that corruption. And so when the Supreme Court says you can regulate contributions so long as they're avoiding the risk of quid pro quo corruption, it should follow that you should be able to regulate contributions to Super PACs to avoid that risk. Let's call it unfairly to Menendez because he was not convicted. Let's call it the Menendez risk. The risk that the contribution, the large contribution, was the product of a deal with a member of our government and therefore the product of corruption. Now, again, some have said to me, yeah, but that's a theoretical possibility. Most people, most candidates know that they're never supposed to talk to donors to SuperPACs. So I don't think this might happen or would happen very often. But the point to remember is that that was the same argument made in Buckley versus Valeo in the first case to justify limits on campaign contributions. The resistance to that conclusion was, well, this is already a crime. It therefore doesn't happen very much. So there's no reason to add this extra prophylactic layer on top of the existing criminal prosecution. But what the court said was, no, the public deserves a political funding system where there is no reason to believe that there is corruption going on. And though it might be a low probability of donations that are in fact corruption, because it is possible that there is this quid pro quo involved, it justifies Congress limiting contributions, and so too should it justify Congress or the states limiting contributions to independent political action committees, what we have called super PACs. Okay, so here's where we are. There is a lower federal court decision, SpeechNow versus the FEC, which in 2010 said super PACs are protected by the First Amendment in just the way that Citizens United had said independent speech is protected by the First Amendment. That decision by that lower federal court was wrong, obviously wrong, mistaken in the most fundamental and obvious way yet, because super PACs had not really developed. Shortly afterwards, a bunch of other lower federal courts followed the decision of the D.C. circuit and they also held that super PACs cannot be regulated. And so when they followed the decision of the lower D.C. circuit that began to establish national precedent, that quickly became conventional wisdom. Nobody could imagine how the law could be different. And indeed, most people began to conclude that the Supreme Court had basically affirmed the decision, even though the decision in speechnow was not even taken up to the Supreme Court by the government, because the attorney general at the time didn't believe it was significant, didn't believe it would cause any significant problem. But what we've seen in the 13 years since is that Super PACS have become the most important vehicle through which large donors exercise their influence. And that's why we have forever but now, so vigorously taken up the charge to find a way to fix that corruption. Okay, so recognizing lawyers didn't get it, judges didn't get it, attorneys general didn't get it, recognizing how the legal profession has just so lazily taken this conclusion for granted, we thought, we need to find a way to break through. We need to. We need to find a way to get people to see that there's a deep and obvious mistake behind this monster of a corruption, and we should be able to wipe the monster away if only we could get to address the mistake. And that's what led us to the idea, well, let's try to bring in a whole new army of contributors, a whole new group of people who might, through their creativity or innovative expression, find a way to make it so obvious that even lawyers, even judges, even Supreme Court justices would recognize that this doctrine of super PACs is not a doctrine that was built into our first amendment or even the very narrow conception of campaign finance regulation that the most conservative justices on the Supreme Court have embraced. Chief Justice Roberts most expressly, that if you can regulate to avoid quid pro quo corruption, then you should be able to regulate donations to independent political action committees as much as donations to campaigns directly. So we launched the video competition after crowdfunding the $50,000 prize, and that was launched on Labor Day. And the last day to make an entry is election day. And after those entries are in, a panel of judges, including our prominent Chief Judge Jason Alexander, who has been in this fight for as long as I've been in this fight, will look through the submissions and pick the one that should be given the $50,000 prize. Just a little footnote on Jason Alexander. It was one of the most extraordinary experiences I had as a law professor. I was sitting in my office in Cambridge one day, and there was a knock on the door And I said, come in. And the door opened, and in walked a man who said, I'm Jason Alexander. And I said, I'm pretty sure I know who you are. But we had no appointment. I had no idea why he was there. Maybe he was looking for the bathroom. And he said, do you mind if I just sit down and talk to you for a minute? And he sat down and he told me about the corrupting influence of money in politics and about how we needed to do something about it. And he had heard I was interested in the problem and could I help. And that began, really, an extraordinary friendship and relationship with this incredible actor, which has to this day manifested itself in many ways that he's volunteered and stepped up to try to help the cause. And this is just his latest by being a judge and doing a really clear introductory video, which you can find on our site cancelsuperpacks.com and in that video, he describes what the competition is about. And he says, if you're going to enter the competition, go to this quote, rather mundane video. Ouch. I made that video. But, okay, rather mundane video explaining the error behind the case that gave us super PACs. And then use that rather mundane video to be inspired to find a more creative, obviously creative way to express the same idea. So Jason will be one of the judges on election day. We will have a winner, and we will award that prize. And I hope we'll begin to be able to spread not just that winner's prize, but the wide range of videos that that have competed to set the obvious point straight that super PACs were not what James Madison was trying to protect when James Madison proposed the First Amendment. Okay, but a video competition is not going to change the law. It will make changing the law easier, but it itself will not change the law. At the same time. Yeah, we can walk and chew gum at the same time. At the same time, we've been also hatching another strategy to tee up a case where the Supreme Court has a chance to do the right thing, by which I mean not decide the case according to the values that I myself would bring to the question if I were a Supreme Court justice. I mean, do the right thing, as in apply the principles you've already articulated to this question and decide side. Does the First Amendment mandate that there be no limits on contributions to committees that spend their money independently of a political campaign? Now, to get that to the Supreme Court, we have to find a jurisdiction, a state or locality which is actually enforcing a law that purports to limit contributions to independent political action committees. And the challenge we've had is that every jurisdiction around the country is, even if they have a law on their books, has adopted the conventional wisdom that such laws can't be enforced, and so therefore they refuse to enforce them. And so our challenge has been to find a way to get a law that's being enforced and challenge it so that we could get to the supreme court and have the supreme court make its ultimate judgment. Turns out the first circuit, which is the circuit in which massachusetts, puerto rico, maine, and new hampshire set, is such a circuit, where the first circuit has not decided the case of whether a political action committee can receive unlimited donations because of the first amendment. So it's an open question here, and our strategy has been for a while to think, how do we get a case in massachusetts to test this question so we can get to the supreme court and get the supreme court to decide it? And we tried to do that. If you remember, I've described this before by trying to get an initiative in Massachusetts that teed the question up. When we did that, we were working with free speech for people, and free speech for people wanted to advance the obvious seems to me absolutely clear argument that under the analysis of quid pro quo, super pacs can be regulated. And I wanted to add an additional argument that said, and oh, by the way, for you originalists, for you conservatives who say that you are guided by the original meaning of the constitution, if you looked at the original meaning of the constitution, there would be no doubt that a legislature, congress, or the states would have the freedom to limit contributions as a way to avoid what we call dependence, corruption, or we could call it aristocracy corruption, that the first amendment, as originally crafted, would never have limited such limits on contributions in a campaign. And so therefore, you originalists, if you're behaving consistently, would also vote to uphold a statute limiting contributions to political action committees. Now the attorney general in massachusetts, who's now the governor, refused to allow that petition on the ballot because she said it violated, quote, free speech. And then the current attorney general, who took over after the last one became governor, prosecuted that argument when we tried to get it reversed in the supreme judicial court, which is the highest court in massachusetts. And the current attorney general, who happens to be the first attorney general elected with super pac money, also said super pacs are protected by the first amendment. And so when the supreme judicial court was asked to consider the matter, she defended, or through her representatives, defended the idea that the first amendment protected super pacs. And so ron fine stood up and made his argument. The earlier prequel episode is Ron Fine, and you will remember, if you listen to that episode, the essence of that argument. But Ron Fine made his argument, and then I made my argument. And in the course of making my argument, I said, look, the standard you need to apply here in deciding whether we're allowed to have an initiative on the ballot is whether it is conceivable. Conceivable that the initiative is constitutional. That's what the court had said in prior decisions. And so that means, is it conceivable from the perspective the argument I was making, is it conceivable that the conservatives, the originalists who are conservatives, would apply their principles consistently? And one judge said, this most extraordinary moment in my life as a lawyer. One judge said, it's encouraging that you imagine the conservatives deciding a case with their principles applied consistently. And with that, the whole bench, the whole courtroom broke out in laughter. Laughter. It was okay to mock, openly mock the idea that the Supreme Court would decide cases consistent with principle. Okay, I get it. That's the deep cynicism that is American law right now. Never expected it to be quite as openly and grotesquely expressed by the highest court of the land, but whatever. That led that court to be skeptical. But that court decided not that the First Amendment protects super PACs, but that we had to gather signatures before we could challenge the decision of the Attorney general. Basically a million dollar filing fee in order to challenge the legal determinations of the Attorney General. Okay, so don't get me started on that decision. It's really one of the most outrageous decisions I've read as a law professor. And hey, I'm an old man. I've been doing this for a long time. But the point is not the point of this podcast. Okay, so that means Massachusetts was out because we're going to spend a million dollars to gather signatures just to have the court then opine about whether it thought that the initiative was constitutional or not. So we then looked around in the First Circuit and realized there was a really obvious alternative, even better alternative, and that was Maine. Better because Maine is not a blue state, It's a purple state. Better because Maine is one of the most important locations of democracy innovation of any place in the country. They were one of the first, the first to have public funding of state office campaigns. They've passed ranked choice voting. They've had fundamental reform in primaries. They have been an incredibly important state for democracy innovation. And our hope was, as goes Maine, goes the nation. That comes from an early before New Hampshire Primary recognition that the early decisions in Maine would actually predict how the presidential elections would come out. But I'm not worried about the presidential election. I'm hopeful about the opportunity for reform. So the question was, should we. Could we. How could we go to Maine? And it turns out that there's a pretty important democracy reform movement in Maine that we've been talking to to rally to the idea of an initiative like this. And we have now filed that initiative in Maine, and the government has about a month to decide whether the terms of the initiative are proper and therefore can it be on the ballot. They don't have the power to decide. It can't be on the ballot because in its view, it's not constitutional. So we will be on the ballot if we can gather signatures. And that will be the big challenge as we begin to pull together the resources and the team to be able to gather signatures. The great opportunity is election day, where everybody is showing up, is presumptively legal to sign a initiative. And so our hope is to rally 300 volunteers on that day to gather the vast majority of the signatures needed. But whatever we don't gather, we can collect between then and January, which is the date we need to be complete so that the legislature can then consider whether to enact the initiative which we've gathered signatures for. Our hope is that it will and that the governor will sign it, though there's reasons to be worried about that. But whether the legislature passes it or not, we still will have the opportunity to have the law ratified in Massachusetts, in Maine, by having it on the ballot in November 2024. And so the strategy is, if we can get it on the ballot in 2024, then we build and rally a campaign in Maine to get people to vote for it in November of 2024, if it. You can be as sure as anything that immediately after it passes, there will be a challenge to that law that will get to the first circuit quickly, because it would be an important question for the court to decide quickly. We would then, or actually technically main would, then we're not going to be involved in the arguments except supporting it however we can. But Maine would be defending the law in the first circuit. And if and when Maine prevails, based on the arguments that have been developed and the extraordinary video competition that has already gone on, then the first circuit's decision, if it's in our favor, would certainly trigger supreme court review. And that means By June of 2026, the Supreme Court would have decided whether the constitution requires super PACs okay. I've not been an optimist in this fight since the beginning. Indeed, my brand's been a kind of certain. Certain kind of pessimism, and I'm not proud of that. I'm just calling it as I see it. It's a hard fight to win. I've thrown away most of my professional career trying to fight this fight. I mean, I've also had a day job, but in my pro bono capacity as a lawyer and activist, I've done everything I can to try to win this fight. And it's never been a fight I thought was easy to win. But for the first time, I'm incredibly optimistic. For the first time, I think that if we can get this court to consider this question, this court will do the right thing. I predict 7 to 2. And if the originalist argument, which we will make sure is before them as well, prevails, then it would be 9, 090 or 7 to 2 that the Constitution does not mandate super PACs. Okay? Now, there are a lot of things the Constitution did mandate that were pretty crazy, like the protection of slavery. But it will be a great thing if we can all lean back and realize that our Constitution is not so crazy as to mandate super PACs. And it's finally had. The Supreme Court has finally had the opportunity to address the matter and clear it up. And if it does it in 2026, it will have only taken 16 years for this error to be corrected. Okay, that's it. That's the strategy. We've started this video campaign to break up the conventional wisdom that leads people to believe that somehow First Amendment law mandates super PACs. And once we've broken up that conventional wisdom, we're teeing up a challenge to that doctrine through an initiative in Maine. And that initiative, if we gather the signatures and it passes, will then give the First Circuit its first chance to address the question, and then the United States Supreme Court its chance to finally fix this problem. All right, here's what you can do first with the video competition. If you're super talented, a super talented creator, and J.J. abrams, I know you listen to everything I say, right? That must be true. But if you're a super talented creator, then take up the challenge. Go to cancelsuperpacks.com, look at the rather mundane video as Jason Alexander characterizes it, understand the error, then there's a bunch of other resources there you could draw upon. But then just sit back and think, how can I present this in a short, compelling video so that nobody could walk Away thinking, oh, my gosh, the first Amendment protects superbacs. Okay? So that's one thing you could do. You could enter the competition. Now, I, you know, producer of the rather mundane video myself, would not do that because I don't have that kind of talent. But I do know a lot of people who do. And so what I've been doing is, like, sending this out to them. And that's what you can do, too. Every single person you know of who might have the kind of talent to do this, and the most likely winner here is going to be someone who's super young and super talented, because they're the ones who see right now that zeitgeist of expression that would make this so compelling. So, you know, we're trying to make it clear in every single constitutional law class in the country and in high schools and in film schools that this competition is going on. But share this with people in the that realm who you think might be able to enter. The third thing you can do is just support the campaign. You can be one of the volunteers, help us coordinate it. You could help us with the cost of the campaign, which it turns out in the modern era is extremely high. In the old days, you used to rely on viral spread. Now you got to pay for ads. But whatever, it's an expensive campaign. So if you want to support that, then please do. Or, you know, if you're a billionaire and you want to create a new award or a bonus award that you're going to give the winner of the campaign, step up and say that, you know, million dollar award that might get the attention it needs, okay? But all of that is about what we can do to help make the video competition a success so that by election day 2023, we have the videos we need to be able to make this first point clearly. The second thing you do is help on the initiative campaign. Now, we're in the background right now trying to get the initiative approved. Then the month of October, we're going to be organizing the campaign to gather signatures. And then in November, we will be gathering signatures and check out Equal Citizens us for the opportunity to begin to join that movement. We're going to be partnering with local main organizations and all the resources we raise for this we want to channel through those organizations. But in the interim, At Citizens US, you can sign up to learn more about the Maine initiative. And when you do, we will ask you how you want to help. Do you want to volunteer? Do you want to go gather signatures? It's going to be A really fun party on election day in Maine, or do you want to support it in some other way? And most importantly, again, all you billionaires who listen to this, I know you're on here, Even I can feel it. Right? You can just help us most directly by helping us with the resources we need to make sure we have the infrastructure that's necessary to gather the 80,000 plus signatures it's going to take to get this on the ballot. That's not the technical number we need, but the number we need to gather to be sure we have enough qualified signatures. And then once we are on the ballot, then things shift into a different gear. Our fight will be to get the legislature to pass it, and we've crafted it so that the legislature has no reason not to pass it, and then to convince the governor not to stop it based on outdated ideas about what the First Amendment requires. But if we fail in that, then we will have a campaign to wage in the fall of 2024 to get this initiative passed in Maine. And if we can get it passed in 2024, then the work shifts to the lawyers to make the arguments clear about why the First Amendment doesn't protect super PACs. And there's many ways to help in that as well. But that's a little down the pike and this short episode is getting a little long. Okay, that's what we're doing. That's why we're doing it. That's the fight we've been engaged in at Equal Citizens since the beginning. That's the fight I've been engaged in now for 16, almost 17 years. I can date that because I promised my friend Aaron Swartz I would give up the work on copyright and the Internet and take up this fight to end the corrupting influence of money in politics. A couple weeks before my middle child was born, and they will turn 17 on January 15th. So I know I've been in this fight for now about 17 years. And if we can win this battle, boy, if we can win this battle, everything changes. Because if we can win this battle, we can convince the millions who are frustrated with the corruption that they see their government suffering into to step up and demand the other changes that we also need citizen funded elections to make it so candidates are not dependent on the tiny few to get elected. That's the next step after we end the corrupting influence of super PACs. And there are a million other changes as well. But this is the first one, this is the most important one for us to focus on now, not because money and politics is the most important issue. It's just the first issue, the issue we've got to solve if we're going to solve any of the other important issues sensibly. So help us as you can. Help us in whatever way you can. Share this with whoever you can. Make sure that anybody in your circle understands what this fight is about and at least has a chance, a choice whether to join it. This is Larry Lessig. Thanks so much for listening to this 30 plus minute long episode about what we're doing about super PACs. Stay tuned. Sign up. Continue to help us in the fight. I'm so grateful for everything everyone's done, and even more grateful for what I know will be the devotion to this fight going forward. Forward. Thanks very much.