S6E5: The Origins of the Initiative

This is Larry Lessig. Citizens United was decided on January 21, 2010, and the very same day that Citizens United was decided, a Massachusetts based nonprofit was born. Free Speech for People launched itself with the purpose to end the influence of Citizens United over our elections. It committed to doing everything it could to fight Citizens United and to fight the corrupting influences that make it so that our so called representative democracy is just not representative. So in the year after Citizens United was decided, they organized the campaign to challenge Citizens United. They organized election interference interventions to make sure that the elections would be free and fair. They took on corporate power when President Trump came to office. They organized a campaign to impeach him for his crimes, both originally related to to the Ukraine scandal and then afterwards related to January 6th. They've pushed for new democracy amendments to ensuring voter access to defending the voters and to challenging insurrectionists not just on January 6th in Washington, but also around the country. Those members of Congress who joined and supported the insurrection, they said, should not be allowed to serve. Free Speech for People is, in my view, a hero in this story. And Ron Fine, who was the legal director of Free Speech for People until very recently, is a particular hero to me because Ron Fine articulated a legal strategy that, that, look, I'm going to confess, I at first just didn't get. I didn't get because I think like 99% of lawyers, I was unwilling to believe that there was a way to apply the existing Supreme Court doctrine to this question of super PACs and win. I thought that the existing Supreme Court doctrine, at least as it had been interpreted in the case that gave US Super PACS SpeechNow vs FEC in the DC Circuit, was almost watertight, and that the only way we were going to get the court to reverse that decision was to find a clever way to get them to announce a new standard to test campaign finance regulations against. That new standard I described in the last episode was a standard that was informed in part through originalism. Not because I thought where I want, or I'm arguing that the whole court should become originalist, but because I thought if at least the originalists were consistent with their principles, then we would have at least five votes for upholding the regulation of super PACs. But Ron Fine showed me in a way that was incredibly embarrassing for me to see, but he showed me that that in fact was not what was necessary, that even if the court simply applied its existing principle consistently, we would win on the question of Super PACs. Now, Ron Fine's work and the work of Free Speech for people had been inspired by a bunch of scholars who had begun to map out this argument in the standard way scholars map out their argument. My former colleague from the University of Chicago, Alschuler Robert, wrote a piece with my current colleague, Larry Tribe at Harvard Law School. Richard Painter, who used to be the ethics czar for George W. Bush. Norm Ornstein, who worked in the Obama administration and became an ambassador at the end of the Obama administration. Those four penned an article that laid out the argument that under the existing supreme court jurisprudence, super PACs should be regulable, meaning speech now was wrong. And they teed up their argument with the help of other great scholars and activists, such as my hero, Zephyr Teachout, in a case that went to the D.C. circuit itself. It was a case headed by Congressman Liu from California. Case was Lou versus FEC. And in Lou versus FECund, what they tried to argue was that the FEC had misinterpreted the law and needed to apply the law differently. And the D.C. circuit Court, of course, which gave us speech now, which created super pacs, was impatient and really disrespectful of the argument that these lawyers and this great congressman had made. And they decided the case almost in a perfunctory manner, rejecting the argument and instead arguing that it wasn't even proper for the court to consider the constitutional question, because the issue in the case was really an issue of administrative law. Now, this is often how things get stuck in the courts. The only way we get something to the Supreme Court, the only practical way to get something to the Supreme Court, is for there to be a split in the circuits, meaning some circuit courts rule one way and other circuit courts rule another way. The United States is divided into 13 circuits, and we've got one of the circuits, the Federal Circuit, is focused on particular category of litigation. But all of these other circuits can compete with each other. And if there is competition, the court's got to resolve it. Because what the court has got to do is to determine what the law of the nation is. And you can't have law in one part of the country different from law in another part of the country. So the way to get to the Supreme Court, the way to force the Supreme Court to consider an issue, is to create a conflict about an important issue. And so the critical way to get to the Supreme Court about this question is to create a conflict between the circuits. But when a circuit court has decided a question, when they've looked at it and come to a conclusion and express that conclusion, and a Rehearing has been asked for, and that rehearing has been denied. It is very unlikely that they will reconsider their decision and come out another way. I mean, it's not likely for you either or me either. I mean, all of us become convinced of our views. We hear the facts to conform to our views. We are reinforced when we hear contrary facts because we're clever and we think about ways to spin them so that what we originally thought turns out to be true, evidence notwithstanding. So the point is, they took this on in the most difficult context they could, because at that time, that was the only way to take on this question. The only way to challenge the rule that the SpeechNow case had created was to challenge it in the administrative agency, the fec, that was supposed to be administering it. And so that's what they did in this sense. They did for the federal government what we had done in Alaska. We went to the administrative agency trying to administer election law, and we tried to. Forced them to acknowledge that super PACs could be regulated. We succeeded in the lower part of that litigation, but not at the supreme court. They were trying to do this at the federal level with the fec, but the FEC decided against them. And then the FEC argued that the supreme court should not take up the case because, as the FEC said, this question was totally settled. Every court to consider the question, every federal judge to consider the question, has concluded that Super PACs cannot be regulated because citizens united is the law. The supreme court refused to take up the appeal in Lou versus The fec. So after Lou versus FEC was decided, as I described in the last episode, free speech for People, Ron Fine and I decided that we would try to tee up this question again in the Massachusetts context by getting an initiative on the Massachusetts ballot to challenge super PACs to basically regulate super PACs. And we believe that that would be challenged. And when it was challenged, we would have a shot at taking it to the supreme court. And importantly, it would be challenged in a circuit, the first circuit court of appeals, which had not yet addressed the question of speech. Now, most other circuits have addressed the question, and they've all followed the D.C. circuit's conclusion, but the first circuit has not. And the first circuit is a really talented, relatively small circuit court whose judges are relatively young and extremely capable. And we believed that if the first circuit court of appeals had a shot at considering this, they would at least be open to recognizing the mistake that SpeechNow had made. And if they saw the mistake and they saw the harm that super PACs were doing across the country harm that both people on the left and people on the right recognized they would have the courage to call a mistake a mistake and get the question to the United States Supreme Court. But as I described in the last episode, though, I had been pushing the originalist argument to get to this point. As I watched Ron Fine make his argument, I was astonished by what I saw, or thought I saw in the potential for that argument to build a movement that might finally get us to the United States Supreme Court to overturn this decision. Ron Fein's argument to the Supreme Judicial Court was among the best legal arguments I have ever seen. And he had a manner, a capability of engaging with those justices right at their own level. He was not talking up to them, not talking down to them. He was talking to them, with them. And through the course of that argument, it was clear that they began to see exactly the point he was making. Now, as I described, they ducked the question. They didn't address the First Amendment question. They instead said that we would have to get signatures before they would even consider whether the Attorney General's judgment that this was unconstitutional could be reversed. So forget all that for a second. My point is Ron Fine's argument was completely compelling and true. And what I saw, when I saw that, was we just needed to find a way to begin to get more lawyers to see that what most of us had assumed was true was just not true. We need to get enough lawyers to begin to see this, to begin to look at it, to pay attention to it, to think not at the level of politics where our assumption is this conservative court is just going to do what a conservative court would do, but at the level of law, at the level of what does the legal doctrine mean? And if we could get enough to begin to question that, if we could get enough to begin to open their minds to the possibility that their presumption was wrong, a critical mass, we could begin to flip conventional wisdom and begin to get a recognition among at least lawyers and maybe then among judges, that the decision that upheld Super PACs in 2010 was just wrong, and that there is no reason that the First Amendment would block the ability of states or the federal government from limiting large contributions to Super PACs, just like the federal government and states are not blocked in limiting large contributions to campaigns directly. So the question was, what would the strategy be that could get us a chance to get lawyers to think about this and eventually get to a legal context where the question could be raised to the court again? So Equal Citizens US decided in the course of the spring of 2023 to launch a video competition to ask the creating class of YouTubers and TikTokers and Instagram creators to listen to the argument and to try to express it in a two or three minute video that would be compelling, completely compelling, about why in fact a mistake had been made. And I took this idea to a couple of the supporters of our fight against super PACs. And we very quickly raised a $50,000 prize for a video that would tell this story in a way that was completely compelling. And we put together a great group of judges, including Andrew Yang, my favorite hero in this movement in the Hollywood world, Jason Alexander, who one day just knocked on my door at Harvard and he came and he said, hi, I'm Jason Alexander. I want to talk to you about corruption. This was one of the most surreal moments in my life, to which my response was, I think I know who you are and I'm happy to talk to you about whatever you want to talk about. But Jason Alexander was one of the judges. Zephyr teachout was one of the judges, Guy Charles, who is one of my colleagues at Harvard and one of the most important contributors to the law of campaign finance. And. And Eli Pariser, who has written an extraordinary amount around the way the Internet is affecting our understanding and politics. He was one of the founding political directors at MoveOn and his book the Filter Bubble is one of the most important indictments of the way Google has evolved to change, change and direct our political understanding. Those judges would then review the videos that were submitted and pick the very best. And we had hundreds of videos that were submitted. They were brilliant. So many were so incredibly brilliant. And they announced at the end of the summer the winner, the winner of that video. And that winner received $50,000. There was a second and third prize as well. And we began to spread their videos to help the world see the point that they had made so powerfully. That Citizens United does not mean super PACs are constitutionally mandated. But a video competition was not going to change the law. And at the end of the summer, I wasn't quite sure what would change the law. We had failed to get the Massachusetts court to allow us to go to the ballot. They said we had to get signatures to get on the ballot before they would even address the question whether we were allowed to be on the ballot. That meant we would have to spend about a million dollars to gather signatures for the gamble, that the Supreme Court would then say, yes, you can be on the ballot. That was not a wise expenditure of reform dollars from the perspective of the reform community. So we didn't think we could do that. And I didn't see any other avenue to getting the question teed up. Legislatures are not eager to pass laws they know are unconstitutional, or at least viewed to be unconstitutional, because if they do that, they will be sued. And when the lawsuit prevails, then the plaintiffs get to get their attorney's fees from the state, which for a small state like Vermont or New York or New Hampshire or Maine, is a lot of money, like millions of dollars to lose a lawsuit, which most lawyers would have told them they were going to lose when the law was passed. So the opening was not clear, the opportunity was not clear. At the end of August last year, I was invited by a really fantastic democracy reform organization started by a bunch of young graduates, women graduates from business school, Harvard Business School, who thought they could knit together the network of people like them, their age, not just women, women and men, but they were the leader, women were the leaders. And they would then build that infrastructure into a strong movement to push for democracy reform and the support of democracy around the country. And so Leadership now project was expanding into Maine. And they asked me to come to a dinner in Maine that was going to be hosted at one of their supporters house houses and to talk about the work we were doing at Equal Citizens and the prospects for democratic reform as I saw them. So I went to this dinner hosted by Warren Valdmanis and his wife, Kay Roche Hope. And at the dinner there was a large number, I mean, not a large number, it was a small dinner, but there were many people from Maine who had been critical in building Leadership now in Maine and also would be critical in the future of Maine. There was an extraordinary senator, state senator, who I've become quite friendly with since his name is Rick Bennett, and Rick Bennett is a Republican, although he was a never Trumper, he was chairman of the Maine Republicans and he had been the leader in the movement to pass the anti foreign money initiative, which last year passed in Maine by 86%. And so Rick Bennett was a strong supporter of the idea of limiting super PACs. And he, like many, believed we needed to try every strategy we could. So that includes the strategy of American Promise, which is to stand up an amendment that was we try to get Congress to pass and then pass through the states. But he also was open to the idea of thinking about a strategy that could get the court to clarify that whatever rule Citizens United had established, it hadn't mandated super PACs. So Rick was there, and then, you know, very different sorts of people were there. People who ran. I'm not going to out everybody because I don't think I'm allowed to, but people who ran, ran local businesses, people who are important in the academic community in Maine. The point is, we all sat around a table and we all told a story of what we were doing, and I told the story of what we had been doing and how we had begun to think about where else could we do it. Now, at that dinner, one of the people was a woman named Kara Brown McCormick. And Cara had run a completely improbable campaign twice to pass the rank choice voting initiative in Maine. They had to do it twice because once they passed it, the legislature reversed it. And so Maine has a people's veto provision that gives them the ability to reverse the legislature, but to do that, they have to once again gather signatures and once again gather enough votes at the ballot to overturn the decision of the legislature. And she did that. So she twice rallied Maine to this kind of geeky idea of ranked choice voting, but an idea that was very important in Maine because Maine had seen the consequence of a system where the winner of an important election, in this case it was the governor is not necessarily the person who wins the most a majority of the votes in the state. And so they were motivated to fix that problem. Kara helped lead the campaign to make this a success, and she was at that dinner in the end of August 2023 as well. And by the end of the dinner, the people around that table began to say, why don't we try to pass this in Maine? Why don't we take the initiative that you tried to get the Massachusetts supreme judicial court to allow you to take to the ballot in Massachusetts and pass it in Maine? Because Mainers generally on the right and the left oppose big money in politics, and Mainers are eager to find ways to reform the democratic system to make it better. They, in the 1990s, were one of the first states to adopt public funding of state elections. They did ranked choice voting. They've done many other changes to make sure that Mainers can vote in easily, and so why not this as well? And as I listened to that encouraging talk, to me, I was split, because on the one hand I was like, hell yes, let's do it. But on the other hand, I was like, how are we going to do it? Because to get on the ballot for 2024, we would have to gather something like 75,000 signatures. And to gather those signatures in Maine requires basically raising the money to get signature gathering firm involved, or at least a team that is professional involved, because any tiny mistake in the gathering of signatures can throw the work of a district or a whole committee out. So we needed to be professional about gathering those signatures and to raise that amount of money in that short a period of time to stand up. That initiative was going to be tough. I knew that. I knew it was going to be tough. And it was going to be especially tough because every time the question would be asked, should the progressive community or the anti corruption community, which of course is more than just people on the left as people on the right as well, spend their time trying to get an initiative onto the ballot, which most lawyers will tell you is unconstitutional? The answer, the logical, the rational answer would be no. We got other things we should be fighting for. So I knew that the rational strategy of many of the people who would otherwise be supporters, many of the people who otherwise would say, hell yes, we've got to end Super PACs, the rational strategy for them would be to do nothing. And so on the one hand, I knew this was an opportunity, a real chance, indeed, a better chance than passing it in Massachusetts. Because if you pass it in Massachusetts, people will say, oh, that's just blue state Democratic Massachusetts. You pass it in Maine. It's a very purple state with lots of very conservative support. If you pass it overwhelmingly in Maine, nobody could say it was a partisan issue. So in some ways it was clear Maine was better than trying to pass it in Massachusetts. But in other ways, it was going to be extremely difficult to get it passed, to stand up the support necessary to gather the signatures by the deadline at the end of the year that would make it possible for us to be on the ballot in 2024. So how did we do it? That's the topic of the next episode of this season six of the podcast Another Way. This is still Larry Lussig. I'm still grateful that you're listening. As I've said in every episode, if you are listening and you are convinced or you are getting more and more convinced, please check out the work of the extraordinary ballot question committee in Maine. Committee is called Citizens toendsuper PACs.org those Mainers are now organizing volunteers to help turn out the vote. They're trying to find ways to spread the message in what will be an already crowded political field because of the elections, both at the federal level and at the state level. They're trying to tell the story in a way that makes Mainers see that they have a chance to once again make history by changing the rule that will ultimately lead to the end of the most corrupting money in American politics. So please, if you can support them if you're in Maine, please join them. Please join them by volunteering, by giving money, by helping others to understand what's going on. Spreading the word, spreading the word to help them raise the support they need to make their campaign success successful. And if you're outside of Maine, then please go to the website citizenstoendsuperpacks.org and give whatever you can, 5, 10, 15 or $500 million, whatever. It's up to you to make it possible for them to win this campaign. In the next episode, we'll take up how we did it, how we got to the ballot and what that means for the campaign that Maine will have to run to win this election in November 2024. Thanks for listening. Stay tuned for the next episod.