S5E03: Overturned Tables: SuperPACs: Ron Fein

Foreign. This is Larry Lessig. If you're a regular on this podcast, this episode will remind you of an episode released in August of this year. It's a repeated interview. We released this interview early because we were running a video competition about super PACs, and this episode is really helpful to understand the facts that might help the contestants develop their super powerful video to show the error, the logical error, the 2 +2 equals 5 error at the core of Super PACs. But whether you've heard this episode before or not, I hope you'll listen at least a bit to consider how this story fits into the arc of of the argument of this season and eventually this book. So the issue in this episode is money and politics. Specifically, it is the money provided by super pacs within our political system. A super PAC is a political action committee that spends its money independently of a political campaign and so long as it remains independent, meaning so long as it doesn't coordinate its messaging and with any campaign, it can spend as much money as it wants supporting or opposing any political candidate or political cause. That was the conclusion of the Supreme Court in January 2010 in the famous, maybe infamous case of Citizens United versus FEC. But three months after that case was decided, the D.C. circuit Court of Appeals decided a case involving a related question not can you spend unlimited amounts of money?

The Supreme Court had just decided that.

But if a political committee is independent and therefore can spend unlimited amounts of money supporting or opposing a political candidate, can they raise unlimited amounts of money supporting or opposing a candidate? Or more precisely, can they raise contributions of any size to to support their work supporting or opposing a political candidate? In Speech now versus the FEC, the District the D.C. circuit Court of Appeals said they could. Independent political action committees were constitutionally free. The D.C. circuit held to raise contributions in whatever size they wanted. Their size could not be limited by law because of the First Amendment, so long as they didn't coordinate with a political campaign. And thus was the Super PAC born. In this episode, I'm going to talk to Ron Fine, the legal director of the extraordinary group Free Speech for People. You can find them free speechforpeople allone word.org on the Internet. I'm going to talk to him about whether that conclusion of the D.C. circuit was correct. Now you might think 13 years after the case was decided seems a weird time to ask was it correct? And that's right. But it's never too late to correct an obvious at least once you see it, and deeply destructive as we increasingly see mistake. Ron does that in this episode repeating an argument which I heard him present to the Massachusetts Supreme Judicial Court, an argument that convinced me that we could write the overturned tables that gave us super PACs in American politics. Ron is a graduate of the Stanford Law School. Before that, he graduated from Harvard College. He clerked for the Honorable Kermit Lipez of the United States Court of Appeals for the First Circuit and the Honorable Douglas Woodlock of the District Court of the District of Massachusetts. Before working at Free Speech for People, he served as regional counsel for the United States EPA's agency in New England, where he received the EPA's National Gold Medal for exceptional service. He is a lawyer of incredible talent, and we should all be grateful for his and for Free Speech for people's work. But before we start, I want to make sure we understand the context of this question, whether super PACs are constitutionally mandated. About a decade ago, we did a poll at a nonprofit I had started, rootstrikers. The name was inspired by Thoreau. For every thousand hacking at the branches of evil, one striking at the root. And that poll found that 96% of Americans thought it was important to reduce the influence of money in politics. 96%. But that same poll found that 91% didn't think it was possible. This is the politics of resignation. We all want something, yet we're convinced we can't get it, so we don't do anything to try to get it. We all wish we could fly like Superman. We're all pretty much convinced, and trust me on this, that we can't fly like Superman. So we don't leap off of tall buildings. If we thought we could, if there was good proof we could, then a lot of us be leaping. I'd be leaping because obviously we all want to be able to fly like Superman. So because we think we can't,

that

affects what we, in fact try to do. If the vast majority thinks that there's nothing we can do about the corrupting influence of money in politics, we won't try to do anything about the corrupting influence of money in politics. If we don't think we can end super PACs, we won't do anything to end super PACs. And even worse, if we don't think we can end super PACs, we probably won't even try the other critical reforms of money in politics, like public funding, that could not only end the power of big money, but radically improve the responsiveness of politicians to the needs of ordinary citizens. Because why do all that when super PAC spending will come and sweep away the consequence of those important reforms. The purpose of this episode is to shake up that resignation, to convince you that this overturned table super PACs can be righted, that there is a way for us to get the court, even this United States Supreme Court, to agree that states and Congress have the right to limit contributions to these super PACs. Because what these super PACs have done is concentrate power in a very, very few. I took the numbers from OpenSecrets.org for all the contributions to Super PACs since the beginning of Super PACs. And if you look at all the itemized contributions, contributions of 200 or more, that totals about $11 billion. B billion. Of that 11 billion, 70% comes from contributions of a million dollars or more. That's 1896. Contributions constitute 70% of super PAC spending. If you look at contributions of $100,000 or more, you know, that's a lot. Not many of us could give $100,000 to a Super PAC.

$100,000 or more.

That's almost 91% of the contributions to these Super PACs. So 90, almost 90. Let's just be conservative about it. 90% of the contributions to these Super PACs come from people giving $100,000 or more. Now, when it's people who can give $100,000 or more who are 90% of the contributions from Super PACs, who do you think the politicians are listening to, really? On the right or the left? Who do you think they are listening to? This is why we have to find a way to write this overturned table.

And I'm confident.

Yeah, you call me naive. I call me naive. But I'm confident that even the Supreme Court, we'll get it right if we give him a chance to do the right thing. So listen for how and why.

Ron, thanks so much for talking. As I said in the introduction, we had talked a long time about the regulation of independent expenditure committees, what is known nationally as super PACs. And you and I had been involved in a case in Massachusetts that by the time this is released will have been decided. So we're going to pretend like that case didn't exist. And what I want to talk about is why? And I'm going to say obviously, you can say that or not, but I'm going to say why? Obviously, under the reasoning of the Supreme Court, contributions to independent expenditure committees or super PACs should be subject to regulation under the completely conventional way in which the court thinks about the justification for regulation. So let's get to that conclusion by taking the steps that should yield that conclusion, and I'm going to walk through kind of like an ignorant questioner, not quite as ignorant as it will sound, but I'm going to play that ignorant questioner to get us to the conclusion that I think we both think is true. So help me understand, what is the basis for regulating political speech anyway in the context of campaigns or contributions to campaigns?

The Supreme Court in the Buckley vs. Vallejo decision said that the only acceptable basis that it could see for regulating political money is to prevent corruption. And the definition of corruption is one that has expanded and contracted in the course of several decades. Right now, the Supreme Court is taking the view that it can only be quid pro quo corruption, which is sort of the narrowest form that one could imagine of corruption. That's bribery and extortion and things like that. And so the Supreme Court has said that if limits on money and politics can be said to serve the interest in preventing quid pro quo corruption or the appearance of quid pro quo corruption, and they are reasonably well tailored to serving that interest, then they can be constitutional.

Okay, so we're going to embrace the narrowest conception of corruption, which is quid pro quo. This for that. And so the basic picture we're imagining is some rich person says to a politician, look, I'll give you a million dollars for your campaign if you vote for the widget bill. That's quid pro quo corruption. Right?

That's. In a nutshell. That's quid pro quo.

Okay, so do we imagine in a world where there was no limits on contributions to campaigns, that every contribution to a campaign would be quid pro quo corruption?

Of course not. People can contribute to campaigns for a variety of reasons, and the Supreme Court has recognized that. One is that they may view it as a form of expression on their own that they want to associate themselves with a cause. This is the same reason that motivates people to put on bumper stickers and have yard signs supporting a candidate. Sometimes they make contributions for that purpose. Another is that maybe they don't expect anything specific in exchange for that contribution, but they generally agree with that candidate and want to help them. So the idea that all contributions would be quid pro quo, corrupt. No one is seriously advocating anything that extreme.

Okay, so this means that when the Court says it's okay to restrict the amount that someone can contribute to a candidate, it's not saying that because it believes that every contribution to a candidate is corruption. It's saying that because it believes that some of those contributions could be corruption. And so we want to reduce the likelihood that contributions are corruption by making the contributions limit so look low, that no decent soul would be selling their soul for that small amount of money. Is that a good summary of the reasoning?

That's right. So the idea is that if, let's say an oil magnate wants a favor from a legislator, if they can give that legislator a million dollars, that has a pretty good chance of quid pro quo corruption being part of that deal. But if the most they can give that legislator is $1,000, it's a lot less likely that a legislator would risk a bribery charge or the opprobrium that could come with that for a much smaller amount.

Okay, so in Buckley, did the court require the government to prove the likelihood that a large contribution was going to lead to quid pro quo corruption in order to uphold limits on contributions to campaigns?

Not on a case by case basis. And in fact, that's the whole point of contribution limits is to avoid needing to go through on a case, case by case basis determining whether something should actually be a chargeable bribery offense for a particular contribution, but rather to set this prophylactic limit that is designed to prevent the quid pro quo corruption from happening in the first place.

Okay, so we have a prophylactic limit in a context where it's absolutely clear that there could be quid pro quo corruption, even though it's also clear, clear that most certainly not all, maybe not even most, contributions would qualify as quid pro quo contributions because they could be contributions for lots of good, legitimate pro free speech, pro democracy reasons.

That's right. And remember, you could in theory bribe through quid pro quo a legislator at less than the contribution limit, and you could have contributions higher than the contribution limit that wouldn't be bribes. But the idea of setting the limit is that the Congress or the legislature has determined that this is a line at which it suffices to prevent the risk of quid pro quo corruption in the great majority of cases.

Okay, great. So good enough for government work.

It's close.

It's a reasonable relationship between avoiding this kind of quid pro quo corruption and the limits on speech. All right, now let's think about a completely different case. Imagine a rich person just really likes a candidate, and so they decide they want to spend, let's say, $10 million supporting that candidate by buying advertising on billboards, on television, on radio, on the Internet, but they have no connection to that candidate at all. They never talk to the candidate. They never say, here's what I'm going to do. Here's what I want. They just love that candidate and they want to make sure that candidate candidate wins. Is that type of spending regulable under the First Amendment?

Well, if they do it independently. If they. If this wealthy person buys their own billboards, makes their own TV ads, the Supreme Court has said that's classified as an independent expenditure. And the idea is that because the donor is not talking to the candidate, not talking in your hypothetical to anybody involved with the candidate, that it's very difficult, maybe even impossible, for a quid pro quo corrupt transaction to be part of that because they're not in any type of contact. And so the Supreme Court has said that an independent expenditure cannot be part of a quid pro quo corrupt transaction and therefore limiting independent expenditures would be unconstitutional.

Right. I mean, in one of the cases, the most maybe notorious Citizens United, Justice Kennedy said almost by definition it couldn't be quid pro quo corruption, because by the hypothetical, we're saying that the contributor has no connection to the candidate. So there would be no basis to say that this was done for that. If there's no connection between the candidate and the contributor or the expend of the person making the expenditures.

That's right. I like to think of it as if quid pro quo. Each of those words has a separate meaning. So in that scenario, you have quid, which is the money. Maybe the candidate does what the donor wants. That would be quo. But the pro is the connection, the this for that. If they're not in contact, they can't have that exchange. And so that's the idea of Citizens United, that independent expenditures can't be part of quid pro quo dealings.

Okay, so it's in fact Buckley, which first says that about rich people and then Citizens United, that says that about corporations and unions and any political action committee. The two of those cases together basically say if you are spending money independently of a candidate, there could be no quid pro quo, by definition, couldn't be any quid pro quo for the spending. And because there is no quid pro quo, the Supreme Court sees no legitimate or compelling governmental interest in limiting the amount you're going to spend.

That's what Citizens United said. I want to highlight that that's a contestable proposition. The idea that just because somebody is not engaged in direct communication with the candidate, there can't be a more of an implicit quid pro quo. I think the average American would understand that if it's clear what a big spender wants and candidates are usually not stupid, then there doesn't need to be an explicit discussion. Rather, it would suffice for the donor to generally make, or I shouldn't say donor in this case, spender, to generally make his or her or its, its views known and spend the money and the candidate understands what's expected.

Yeah, I mean, I completely agree. You and I completely agree about that. I mean, here's one example that kind of makes that point completely clear. You know, it's hard to remember, but actually, the Republican Party until 2010, was an active participant in the debate about what we should do about climate change. In 2008, John McCain had a climate change plan, and many people thought it was better than Barack Obama's plan because until 2010, you were allowed as a Republican to make arguments about what the best thing to do to address a problem that both parties agreed was a fundamental problem. Then in 2010, the Koch brothers and their affiliates began to make it known that any Republican who even acknowledged the truth about climate change or the truth about the climate science behind the fears about climate change would find themselves primaried. They would find themselves facing an opponent in their primary who did not believe the truth of climate change. And very quickly, the Republican Party's capacity to even talk about climate change changed because they knew that if they talked about climate change, they were going to be attacked. Now, in that scenario, nobody needs to believe that any of the Koch brothers or their affiliates actually spoke to any candidate. There didn't need to be any quid pro quo in that story. It's just the candidates knew the writing was on the wall, so to speak, and they conformed themselves to what they knew, what the consequence of their making those arguments would be. The Supreme Court would say, there's no corruption in that story because there's no quid pro quo. You and I, of course, believe there's an obvious way in which that's corrupting of the political system. But again, the premise of our conversation today is let's imagine we're John Roberts. Let's imagine we are the justice who believes the narrowest conception here. And so we both can agree that in our roles as Ron Fine and Larry Lessig, yeah, that's a horrible reality. But in our role as Chief Justice Roberts, that's not quid pro quo corruption. Do we agree that.

Yeah, we can proceed from that premise, which is the. The basis of our legal argument.

Great. Okay, great. So here's the source of the confusion, which is, you know, to me, just astonishing that we are basically 13 years past the moment when the decision first Decision making those mistakes, mistake was made. And still we don't have any court. Or maybe we do if we're optimistic about what's going to happen to our case. But we don't have any court even acknowledging the mistake. But here's the source of the confusion. Okay, so let's imagine we have an independent expenditure committee. Not a corporation, not an individual, not a union, but a committee that's set up and it says, look, we're going to make independent expenditures supporting Democratic candidates. And it says, obviously we need to raise money to make those expenditures. And imagine that committee goes out and talks to lots of Democratic billionaires and says to them, look, if you give us money, we'll get a Democratic Senate. And the Democratic billionaires say, okay, if you take our hundred million dollar contributions, you have to promise you're going to run campaigns that are smart campaigns to elect Democrats to the Senate. So there's a quid pro quo between the independent expenditure committee and the Democratic billionaires. Would that be corruption according to the Supreme Court, regulable under Citizens United?

No, that wouldn't be considered corruption because it's not corruption of the candidates or politicians themselves.

Okay, so that picture rich guy, rich dude, or rich people giving money to an independent political action committee could not be corruption. Kind of captured the D.C. circuit in its 2010 decision speech now versus the FEC. In that case, the court held, almost wrote the opinion as if it was a matter of logic, an obvious point of logic, that if expenditures by independent political action committees could not be regulated under the First Amendment, then contributions to independent political action committees could also not be regulated under the First Amendment because the failure of the absence of quid pro quo. In the first case, the expenditure of the money necessarily entailed the absence of quid pro quo corruption. In the second case, the contribution of the money to the independent political action committee. Is that a fair characterization of what SpeechNow imagined?

That's right. And SpeechNow proceeded as if it were a syllogism that was proceeding almost like a geometric proof based on logical premises and deductions, but missed the glaring loophole in its reasoning.

Yeah, let's get to the glaring loophole. And if you're a lawyer who's believed for the last 13 years, that speech now is obviously correct. And I've met many of these lawyers. I. I think I'm going to dislodge that belief. Or actually, Ron Fine is going to dislodge that belief in your head right now. All right, so the scenario we first talked about was some rich person who says to the Independent Political Action Committee, I'm going to give you $100 million if you support Democrats in their race for the Senate. It now imagine it's a rich dude who says to a Senator, look, I'll give the Independent Political Action Committee that is supporting Democrats to get Democratic control of the Senate. I'll support them. I'll give them $100 million. But I need you to move the widget bill in the Senate. I need you to make sure that the widget bill comes up for a vote. Are you willing to agree to that? Imagine the Senator says, yeah, I'm totally willing to agree to that. Okay, so that relationship between the contributor and the senator is corruption, right, Ron?

Absolutely. And I can't imagine that anybody wouldn't see it that way. But under the D.C. circuit's reasoning under speech now, it can't exist.

Yeah, it can't exist. They can't imagine that it exists. But it obviously exists. Indeed, in your argument before the Supreme Judicial Court of Massachusetts, you pointed to a case where in fact, that type of corruption was alleged. There wasn't actually a conviction that evinces that the facts supported it necessarily. But why don't you talk a little bit about that case?

So the Menendez case involved Senator Bob Menendez of New Jersey, a Democratic senator. And a donor to him was a Dr. Melgan in Florida. And what the federal grand jury found and what the charges brought against Dr. Melgan and Senator Menendez found was that Dr. Melgan bribed Senator Menendez through a contribution to a Democratic super PAC. And so the idea was Dr. Melgan needed some help with the Medicaid program. He was being investigated for violations of it. And again, this is according to the indictment and the charges that were brought. Dr. Melgan said to Senator Menendez, I will give $600,000 to the Democratic Senate super PAC if you will get the center for Medicaid off my back. And again, according to the grand jury, Senator Menendez said yes, and then Dr. Melganot made exactly that contribution. And what's important to note is that nobody ever accused the Democratic Senate's super PAC of being involved. They may have had no idea whatsoever that any of this was going on. What they knew was that they got a contribution of $600,000 with a note saying it should be spent in Democratic races in New Jersey, which is where Senator Menendez was from. So that's a prime example. In the end, during the jury trial, the jury hung, so it didn't result in a Conviction. But the key point is that all along the way, when the defendants tried to get the case dismissed, saying, this is legally impossible under Citizens United, the courts resisted and said, no, this is a solid bribery case.

Right?

So here we have a clear case of quid pro quo corruption, even though it is a contribution to an independent political expenditure committee, what we ordinarily call super pac. So a contribution to a super PAC that involves quid pro quo corruption. Right.

That's exactly what was alleged. And again, that the jury didn't find, you know, sufficient evidence to convict criminally. But that's sure what the picture looked like.

Okay? So if we had the D.C. circuit here, and we said to the D.C. circuit, okay, look, you imagine that it was logically impossible that there could be a case where there would be a contribution to an independent expenditure committee, a super PAC that involved quid pro quo corruption. But here is a clear case where a contribution to an independent expenditure committee, a super pac, at least a little alleged quid pro quo corruption. Would they say, no, that's not possible? Or would they, if they were being honest, say, oh, we didn't think about that. That's a kind of good point, that there could be such a thing.

I suppose if we really want to steel man, what the D.C. circuit might say, they might try to draw some distinction between an actual bribery charge and. And the prophylactic nature of contribution limits on contributions to super PACs. But I think they would have a very embarrassed time trying to draw that distinction.

And it's embarrassed because of the points we exercised at the beginning of this conversation, which is when we talk about limits to contributions to campaigns. The Supreme Court has never required that we demonstrate the likelihood that the contribution is actually corruption or even the extent to which contributions are corruption. It's just that it's reasonable to believe that a contribution of this size could be corruption, or at least lead people to believe that it was corruption. And because of that, we are allowed to regulate it, to restrict it. So it's not of a size that might be likely to eventually, in the context of SuperPACs, we have people giving contributions of, this is $600,000 in the Menendez case. But there are millions of dollars, tens of millions of dollars. There's a recent case of a contribution to a group controlled by Leonard Leo of more than a billion dollars. Now, I think if you ask most Americans, when you've got a contribution of more than a billion dollars to an INC. Independent political action committee, is it likely that there's some kind of understanding with the candidates who are going to be benefited from that, they would probably think, yeah, like, who would be giving a billion dollars if they didn't have some belief that there would be a consequence involving politicians? So if you. If you're not requiring a proof of the probability in the direct contribution case, under that standard, it would seem obvious you should be allowed to limit contributions to independent expenditure committees so as to avoid the obvious implication in the minds of many that that contribution is backed up by some sort of illicit assurance.

That's right. And I think it's important to note that quantity has a quality all its own. So if you're looking at a case where the limit on direct contributions to candidates is, for example, In Massachusetts, it's $1,000. At the federal level, it's a little less than $3,000. But then you can have a 3 million or $30 million contribution to a super PAC. At some point, the number becomes so large that the risk of either actual or apparent quid pro corruption becomes impossible to deny.

Right. And again, to be clear, the D.C. circuit didn't say it's unlikely contributions to independent expenditure committees. Super PACs, as they later became known, was quid pro quo corruption. They didn't say it was unlikely. They said it wasn't possible, that it was logically not conceivable that you could have a contribution to an independent political action committee that was corruption. But we just found one, and we can obviously see there are many other where that's certainly possible. And so the constitutional basis for denying the freedom of states or the federal government to regulate seems to be not, in fact, true.

Well, I want to speak for a moment about where the D.C. circuit went wrong, if that. If that's appropriate. The. The reasoning that the D.C. circuit engaged in focused on the fact that according to Citizens United, the actual independent expenditure that the super PAC made can't be corrupting. So they said, let's say the super PAC spends $20 million in support of a candidate, but really follows the rules about not talking to the candidate. We have to zero in on what that means. The super PAC's employees are political consultants. They're media buyers. They're the types of people who specialize in producing advertisements, in figuring out which channels to place those advertisements on, in buying search terms on Facebook and so forth. These are the people who are not talking to the candidate's campaign. If the super PAC is following the rules, and let's stipulate for a moment that they're following those rules. And so it is correct under Citizens United, that if the media buyers at the super PAC are not talking to the media buyers at the candidate's campaign, that the spending would be independent and therefore not part of a quid pro quo corrupt transaction. But what that entire analysis leaves out is the wealthy donor who gave the money to the super PAC in the first place and is perfectly free to talk to the candidate about the widget bill that the donor wants to have happen. And that's where the D.C. circuit went wrong.

It just didn't even imagine, didn't even conceive of this, didn't think about it. So what the D.C. circuit did wasn't so much make a mistake about the logic. It just made a mistake in understanding the potential facts. Or to put that more precisely, they didn't make a mistake about the logic of the case. They were imagining where the contributor just contributes to the super PAC without having any conversation with the candidate. They just didn't think about the obvious other potential interaction, which is a candidate who talks to a contributor to a super PAC and thereby engages or has the potential to engage in this illegitimate quid pro quo. Okay, so this decision by the D.C. circuit in SpeechNow is in 2010. Bring us up to the. Bring us. Bring this history a little bit forward. That's 13 years ago. What have other courts done and when did they do it? In trying to evaluate the same question that the D.C. circuit evaluated just months after Citizens United.

So several states, many states, like the federal system, had in place laws that limited contributions to political committees generally. There were very few, if any, that specifically had written laws to apply to independent expenditure committees before SpeechNow, because those didn't really exist as a category. But there were laws that would limit contributions to political committees. And in a number of states, donors or political committees themselves challenged those limits as unconstitutional, citing SpeechNow as applied to independent expenditure only political committees. And there were a number of federal court cases in about half of the federal circuits that within a very quick period of time, from about 2011 to 2013, about half the circuits considered this issue. And over a couple of dissents, all of them lined up behind SpeechNow and said it was obvious and didn't need further discussion.

And, and this is actually long before Super PACs became a huge force. I mean, they were beginning to be a significant force by 2013. But 2014 is the first real major election, I think, where you see them. But it's before anybody has a clear sense that this is going to be a hugely significant influence in. In politics, especially federal politics, is that Right.

That's right. And it helps to look at what the actual SpeechNow case involved. If I recall correctly, it involved a group of five people who each wanted to contribute $30,000. So it was going to be a total of 150,000. This was long before anybody anticipated, for example, super PACs that are associated formally or informally with the political parties and in fact, the rise of single candidate super PAC PACs. The person who founded SpeechNow said it never even occurred to him to envision a super PAC formed to support a single candidate. And so the force that super PACs have become in federal elections, increasingly in state elections, and in some cases even local elections, couldn't have been anticipated or certainly wasn't anticipated back when these decisions were rendered.

Indeed, as you point out in your brief, or in our brief in the case in the SJC, the Obama administration, which was the administration when SpeechNow was decided, chose not to take this case to the Supreme Court because the Attorney General didn't think this would be a significant category of speech affecting elections. Is that right?

That's right. The Attorney General, Eric Holder, was required to send a letter to the Senate Majority Leader explaining why I wasn't seeking Supreme Court review of the D.C. circuit decision. And he gave a few reasons. Among them was that it would affect only a small subset of federally regulated contributions.

Right. Talk about predictions that didn't age well. Okay, so we have a number of decisions, close to half the circuits within a couple years. Then, in the last decade, what has happened to try to get the courts to think again about the conclusion that we've seen the D.C. circuit erroneously made, that there could be no quid pro quo involved with contributions to independent political action committees.

Well, I want to give some credit here to Albert Alschuler, an academic, and as well to Larry Tribe and Harvard Law School, as well as yourself, for highlighting the issue of SpeechNow being distinguishable from Citizens United? Because in the minds of many people concerned about campaign finance, speech now was an ineluctable consequence of Citizens United, and they were stuck together like glue. And what you and Professors Alschuler and Tribe have done is shown some daylight between those two decisions. And so, working in parallel, we've brought some cases and efforts designed to shine a light into that gap and to show that even for a justice who is ideologically committed to upholding Citizens United, that they can, in good principle and good faith, strike down the SpeechNow decision as inconsistent, consistent with the principles of Citizens United and previous Supreme Court precedent.

So, again, if we're imagining Chief Justice Roberts as our target justice here. Chief Justice Roberts has not had a chance to address the question of whether limits on contributions to independent expenditure committees are required under Citizens United or not. That's right. Right.

Yeah. The case was never presented from the SpeechNow decision itself. Amongst those cases arising from other federal circuits that I mentioned, only one of them had sought Supreme Court review, and that was a very poorly done petition for certiorari. And so that's when, starting in the latter part of the previous decade, we began looking for vehicles, ways of bringing this before the Supreme Court for the first time.

And we've not yet had a vehicle that the Supreme Court has agreed to take. I mean, I think Al Shuler and Larry Tribe deserve a lot of credit here because though I've been pushing the issue, I've not been pushing it on the quid pro quo basis. I've been pushing it on a completely different basis. But I think they. And obviously free speech for people, the group that. That you've helped to lead, have done an extraordinary amount to try to make what should be obvious. Obvious. And you must experience it as frustrating that an issue which it's not. There are a lot of hard questions in the law, a lot of hard questions where you could easily see how people go one way or the other, where in good faith, you could just have a different view of the law. This doesn't feel. Feel like one of those. This feels like one where, okay, maybe if you don't read the briefs, you conclude that obviously if four circuits or five circuits have said it, it must be true, but it just doesn't seem plausible that if you read the briefs and you actually listen to or understand the argument, you could reach the conclusion that speech now does. Yet the law basically has reached that conclusion. I would imagine if we took a poll of lawyers who even knew anything about the issue, the vast majority would take the view that, yeah, obviously SpeechNow is correct. Does that make you frustrated in the reflections on our profession?

Well, one of the things I want to highlight here is how extreme speech now is, because you could imagine an alternate reality version of SpeechNow where the D.C. circuit had done something somewhat more moderate. So SpeechNow didn't say that the risk of quid pro quo corruption is relatively low and these particular dollar limits are unjustified. Come back with more evidence. The SpeechNow court didn't say there is some small risk of quid pro quo corruption, but these limits restrict too much speech, and so higher limits are needed. What the SpeechNow decision said is it is literally impossible for contributions to an independent expenditure political committee to ever be part of a quid pro quo corrupt scenario. And that's what is so absurd. And sometimes it can be frustrating to try and explain to people the absurdity. And that's why it's helpful to lay out these hypotheticals, which in some cases are not so hypothetical, as we've already seen. Just within a few years after speech now, you. You already had a United States senator charged with bribery for a contribution through a super PAC, something which was plainly impossible according to the SpeechNow decision.

Right. Okay, so last round on this. The last time your group, Free Speech for People, tried to get the United States Supreme Court to take up this issue, this was a case involving Congressman Liu. The FEC wrote a brief recommending against the Supreme Court taking cert in that case. And in that brief, they repeated a line that had been, I think, uttered in the Second Circuit, basically saying, you know, there's few issues in the law that have garnered such unanimous agreement than the erroneous conclusion that we have just worked through about Speech Now. But the FEC recommended against taking the case up. What was the FEC's argument for why the Supreme Court should not take up this case?

So in this case, we at Free Speech for People, along with Professor Alschuler, Professor Tribe, Norm Eisen, and Richard Painter, who are former chief ethics counsels to previous Democratic and Republican presidents, represented Congress. Congressman Ted Lieu, a Democrat, Congressman Walter Jones, a Republican, Senator Jeff Merkley, a Democrat, and several other candidates of different political parties. And the framework for the challenge was that before the FEC itself, we filed an administrative complaint alleging that the contributions that many large donors had made to the super PACs violated the federal statute, which is still on the books, that limits contributions to political committees to $5,000 a year because Congress never amended the statute after the SpeechNow decision. And of course, the FEC in its administrative process said, well, we can't enforce it against them because it's been struck down by Speech Now. And we issue an advisory opinion at the request of the Democratic Senate Majority PAC to say that you can do this given speech now. And so there's a provision in the Federal Election Campaign act that allows anyone who's on the wrong side of an FEC administrative decision like that to challenge the dismissal of the complaint as being contrary to law. And so that became the basis, basis for our federal court challenge. And when we brought it to the Supreme Court, in their opposition to the Supreme Court granting certiorari review, the federal election Commission said, look, even if you wanted to consider the constitutional question here, there are these complexities that arise from the statutory basis for the challenge. They're challenging it as being contrary to law. When we relied on a D.C. circuit decision and we've issued an advisory opinion allowing the donors to do this. And so these are the types of issues that unfortunately can make a Supreme Court decide not to take a case. They call them vehicle problems because they add complications. And it's hard to create a case that's perfect, that doesn't have any of those issues that you can also. Also find a way to construct the case and bring it to them.

Yeah.

And I mean, we had a similar block in a case that we brought in Alaska, which, which again, was not focused on the quid pro quo issue, was focused on a related question about whether there's actually a majority of the court that would uphold SpeechNow. And we lost in the Alaska Supreme Court. And because of these vehicle issues, the. The belief was that there could be no jurisdiction in the United States Supreme Court appealing a loss in the Alaska court, even though that loss was based on federal law. But if we had won in the Alaska court, then the same rules would have permitted that victory to be reviewed in the United States Supreme Court. But what this means is it's kind of hard to imagine the procedural posture in which you are going to be able to get this question reviewed in the United States Supreme Court. Right. Because basically all of these laws have, you know, are now supported in the states, are now not supported in the states because of the presumption of most circuits. Although, as you argued in. In our case, in the First Circuit, there's no. Not yet a decision actually of agreeing with speech now. But it makes it hard to imagine what the f. Factual circumstances will be like. That tees up a case that doesn't have these vehicle problems that blocks the Supreme Court from considering it in a context where the category of speech we're talking about is maybe the most important category, at least in federal elections. Affecting elections right now.

That's right. In federal elections, certainly super PACs dwarf the candidates campaigns. For most campaigns, the amounts of money involved are just so huge. There have been a number of races, starting with in the 2010s where you would see, for example, that super PACs were raising and spending two or three times as much as any of the candidates in the race so far, from Attorney General Eric Holder saying only a small subset of federally regulated contributions. They've actually become, in most races, the. The dominant source of Funding, and that the only way, I think, to create a truly clean vehicle for the Supreme Court to consider this would be for a lawmaking body to pass a law that limits contributions to Super PACs and then someone to challenge that law. It's hard to get a legislature to pass a law in the face of this type of precedent. And, and that's deeply ironic given that in every survey, every public opinion poll, every ballot measure, any other measure you take, something like three quarters of Americans believe that limits on that contributions to Super PACs should be limited.

Yeah, it's costly for a state to pass that law, not only because most would think it's going to be struck down, given the view most take, but if a state passes a law like that and it is struck down, then the state itself has to pay, is likely to have to pay the attorney's fees of the other side that has challenged the law. So, you know, states like Vermont have faced the embarrassment where attorney generals have had to defend a law that has turned out to be unconstitutional. And literally in that case, it was a million dollars in attorney's fees taxed against the state of Vermont. So everybody has an incentive to allow the status quo to be as it is, even though, as you said, the status quo is contrary to the vast majority of Americans view about what the law should be and contrary to the logic of what the law could allow, given even Chief Justice Roberts most narrow conception of the justifications for regulating contributions to political committees.

That is the deep irony, and it's the situation that we've been forced into.

Okay, Ron, I'm grateful for your time, even more grateful for the work that free speech for people has done for a very long time to try to get this obvious error corrected. We still can be hopeful that we have a chance here in Massachusetts. But if not here in Massachusetts, there will be a place in the optimistic forecast of American jurisprudence where this question gets asked and answered in a way that gives the court the chance to decide whether it will be consistent in the application of its principles to even the contributions to an independent political action committee. Thanks so much for your time.

Thank you for having me, Larry. It's been a pleasure.

Okay. That's been the third episode of season five of the podcast Another Way. This episode, like the others, was produced by Equal Citizens in the sense we're responsible for it, but quite literally by Josh Elstrow of Elstro Productions. You can learn about us in Equal Citizens Us. You can give us your feedback. I love the feedback, especially the ideas. Not so much the nasties, but the ideas are great, even if I disagree with them. And of course, you can also give us your support. We have a team. A tiny team, but a team that needs to earn a living. You can donate to this series to help us cover the cost of this podcast and help support help feed that team. Thanks again for listening. Stay tuned for the next episode. The introduction to Vouchers. This is Larry Lessig,

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