S6E9: What Then?

Foreign. This is Larry Lessig. Nobody doubts that Tuesday, November 5, 2024, will be an extraordinarily important day in the history of America. The contest between Kamala Harris and and Donald Trump will be decided that day, even if not yet determined publicly. The Constitution gives to Congress the power to say when the states will appoint their electors. The states have decided that the appointment will be through an election. It's possible a state would decide to appoint its electors directly. My colleague Matt Seligman and I discussed that possibility in our book how to Steal a Presidential Election. But let's assume things are as they have been for more than 150 years. Let's assume every state decides to pick their electors through an election. That election happens on election day. Then the process continues after that day to determine who in fact was elected on that day. And the party that wins in each state, except two, Maine and Nebraska, gets all of the electors for that state for the winning candidate. And that winning candidates electors, if there is a majority, determines who the president will be. But In Maine on November 5th, there will be another question, indeed the first question among the initiatives that will be decided, and I'm pretty sure determined on that day, because I don't expect the contest will be close. That question is the question we've been talking about in the whole of this season of the podcast. Another way question that would limit contributions to committees that spend money independently of a campaign to support or oppose a political candidate in Maine. That initiative, I expect, will pass. And after it passes, there will then begin a process to determine whether it ultimately will bind the law in Maine and whether it will inform whether the federal law that limits super PACs will come back to life. So of course, the particular details of this next set of steps can't be known because some of the relevant actors are not actors that I or anybody I know will control. But after this passes, it's a month before the law goes into effect. And so when it goes into effect, people who believe that their rights have been affected by that law will have the right to challenge it. We expect that challenge will happen in the federal courts. They're quicker. The judges typically deal with constitutional issues in a more regular way. It's possible it will be challenged in main courts, but none of us expect that's what would happen. So the first challenge would happen in a federal district court, and that district court would need to decide whether the law of Maine, as informed by the law of the First Circuit, which is the circuit court of appeals in the federal system that governs Maine binds the district court to find regulations of super pacs unconstitutional. It's both a hard and easy question for a district court judge. It's a hard question because the district court judge needs to decide whether to act independently of every other federal judge that's considered the question so far. And so that requires a decision about whether to exercise courage or not. It's also a question about the judge's conception of his or her own role. A district court judge could well think, look, it's not my job to innovate. It's my job to apply the law as most think the law is. And if it's that judgment that district court judge would make, then I wouldn't be surprised at all if he or she writes a very short opinion that says the prevailing view about the regulation of super PACs is that the first amendment bans such regulation. Therefore, question one is unconstitutional. But that then shifts the debate to what will be the most important court in the cycle that will get us to victory. The first circuit court of appeals. Now, the first circuit covers Maine as well as Massachusetts, as well as Puerto Rico, amazingly. And in that circuit, there are a relatively small number of federal court appellate judges, not as big as California, which has dozens. Gosh, I don't know. I should know. But it has many, many judges. The first circuit has just six active judges and four active senior judges, which means it's the circuit with the fewest judges of any of the 13 United States courts of appeals. And it covers, again, Puerto Rico, Massachusetts, New Hampshire, and Maine. So, depending on how quickly the district court makes its determination, there will be a appeal to the first circuit court of appeals, regardless of who wins or loses. And that court will then have to decide whether it will follow the precedent of other circuits or whether it will recognize the mistake that so many have now identified about the reasoning in those other circuits. Specifically, it will have to decide whether, applying the principle that the chief justice of the United States supreme court has articulated now in a series of cases, that the only basis for regulating political speech, which in America, contributions to a committee are considered political speech, the only basis for regulating political speech is the risk of quid pro quo corruption. And as I've explained again and again and again and again in this season, while there is a argument, given the definitions, that spending by a committee or a person or a union or a corporation that is independent of a campaign has no risk of quid pro quo corruption, because otherwise it wouldn't be independent. Or put differently, if there's quid pro quo, it is not independent speech. Contributions to a committee are different because the speech can be independent. But there's nothing to block in the logic of contributions, the contributions from being very dependent, being part of a quid pro quo, as we saw was alleged in the Menendez case in 2015 and as many have alleged about Donald Trump with the oil executives in 2024. And you can see that best again by just thinking practically about what it means to be a political action committee receiving a check in a donation. The committee has nothing to do necessarily with raising the money or inspiring somebody to give the money. The committee doesn't raise the money in a way that guarantees there is no quid pro quo, the way that spending the money could guarantee there is no quid pro quo when the committee spends the money. If it wants to make sure there is no quid pro quo, if it wants to make sure that it's constitutionally protected in its ability to spend unlimited amounts without worrying about caps on spending as related to indirect contributions to a campaign, all it needs to do is to make sure that its team, it doesn't coordinate, it tells its political operatives, have no contact with the candidate or the committee, don't read their web pages, don't read their blogs to see what their strategy is going to be, just don't have any relationship. And then the spending decisions that that committee makes can be said to be independent. Not so with the funding. The chairman of the committee can tell the fundraising arm of the committee, have no connection to the campaign, say nothing to the campaign at all, don't do any coordination with the campaign, don't understand anything about what the campaign is doing. All you should be doing is raising money for our super pac. Yet the money coming into that super PAC could easily be money inspired by a quid pro quo. This is the logical mistake that the D.C. circuit made. And that logical mistake means that a court of appeals, applying the principle of Citizens United, embracing that principle and applying it to the question of contributions, should conclude that while spending independently is constitutionally protected, contributions to a committee that spends independently raise a different question. The risk of corruption is plain with those and if the risk of corruption is the predicate for the state's or the federal government's power to regulate the size of contributions, then the state or federal government should have the power to regulate the size of the contributions to an independent political action committee to what we call super PACs. So let's imagine the Court of Appeals. Reasons like that recognizes it's a dissenting circuit, but nonetheless has the courage to write an opinion that makes clear exactly why later evidence, actual cases, facts everybody sees and expects, show that the presumed independence which must have driven the DC circuit and speech now in March of 2010 just isn't there. That there's a plain and obvious way in which dependence can develop, quid pro quo can develop. And therefore the state of Maine should have the power to limit contributions to these independent political action committees, just like the state of Maine or the United States government has the power to limit contributions to a regular campaign committee. In both cases, the risk of quid pro quo corruption is present. In both cases, that should mean the state has the power to limit contributions. Now, you might say, as I've discussed before, why limit contributions? Why is that the right response? But that question was raised before in Buckley v. Vallejo, the foundation to modern campaign finance law, where the court said, as I explained before, yes, it's certainly possible to prosecute the quid pro quo, but the state is entitled to recognize that the difficulty in that prosecution, the difficulty of proof, combined with the public's obvious recognition that there is the capacity for this quid pro quo, even if it's not provable in court, means the state is not limited to prosecuting the quid pro quo. The state can also limit the size of contributions so that no reasonable person could believe the contribution is the quo in exchange for some quid that no reasonable person could believe the contribution is part of a corrupt deal. I don't think any reasonable person could believe that. When I give $3,300, I don't do that anymore. I used to. I used to, when I was trying to be a really important person. But when I give $3,300 to my local congressman running for Congress, I don't think anybody can really believe that the congressman would say, okay, what do you want in exchange for that $3,300? You tell me. Better tax policy for law professors. Nobody believes that because it'd be crazy. But nobody would believe that if I gave. If I was able to give my local congressman $5 million, assuming I had that money, that there wouldn't be a very strong reason for that congressman and me to have the sort of conversation that we call corrupt. And that's the same point with super PACs. So the First Circuit Court of Appeals could see, should see. And I think I have confidence in this court because I know the judges, or at least some of the judges I know. Not personally, I'm not saying I have ever spoken to them about this, but I know Their capacity and willingness to reason. And I am confident that when they reason this through, they will reach the conclusion that an increasingly large number of scholars and lawyers have reached that, in fact, this speech should be regulable. Okay. That decision will create what's called a split in the circuits, meaning one circuit, the first circuit will have taken one position, whereas most other circuits will have taken another position. And when there's a split in the circuit like that, both sides or the loser will then petition to the United States supreme court in something called a certiori petition. And the certiori petition basically says to the court, you have jurisdiction to hear this claim because it's raising a federal question. And you should raise this claim. You should hear this claim because this claim is important into in federal law, in enforcing federal law. And indeed because the principle that would be upheld, that's in fact independent committees can be limited in the size of the contributions received by them, would revive federal law to that same effect in the first circuit. And that means federal law would be different in the first circuit from how it is in every other circuit, because as I've said before, there is a statute on the books right now that was ruled unconstitutional in Speech now versus FEC, but was never repealed. And so if the First Circuit says SpeechNow versus FEC wasn't right, then that law applies in the First Circuit and the First Circuits conflicting view would force the United States supreme court to take the question up. Okay, now, in this whole process, we should be clear about one really important fact. I think that the district court is going to recognize that this claim has not yet persuaded anyone this claim that this law is constitutional. And the district court will most likely enjoin the operation of the initiative until the constitutional question is resolved. During this process, getting to the supreme court, even if the law passes, it won't immediately have any effect. Instead, its effect will depend upon its ultimately being deemed to be constitutional, as I think it will be. But it won't change the incentives of anybody running any campaign inside of Maine. So some are fearful that if this passes, then Maine will be disadvantaged relative to other states, that big money will decide to go elsewhere. Many Maine say good riddance. But some might say, well, the issues that we really care about, we're going to be hampered or handicapped by the passage of question one. But the point is that's not true. Any limit will be suspended until the law is ruled constitutional or not. And when it's ruled constitutional, then the limit in Maine will be replicated through this federal law across the nation. Maine will not be disadvantaged relative to the nation. Maine instead will help the politics of the nation become advantaged by disabling this mechanism of Super PACs. When the First Circuit decides in our favor, the critical decision, if we lose there, we lose everything. But when they decide in our favor and cert is taken, the question before the United States Supreme Court will focus on whether SpeechNow and the related other lower court cases was correct, whether contributions to independent political action committees can be regulated. Okay. Now, in considering that question, it's going to be critical that in the district court and in the Court of Appeals, two very different lines of argument have to be developed. The first line of argument is the line of argument inspired by free speech for people, based on the work of Al Alschuler, Larry Tribe, Richard Painter, Norm Eisen. The argument that I've emphasized again and again that applying the principle that Chief Justice Roberts has articulated that says you can only regulate if there's a risk of quid pro quo corruption, applying that principle here shows there is a risk of quid pro quo corruption. So therefore, the initiative must be held to be constitutional. But I think a second argument that also has to be developed is the originalism argument that we tried to develop in Alaska and that I was inspired to develop by the uber originalist himself, Justice Scalia. Remember, in Alaska, we presented the testimony of one of the greatest historians of early American history, Jack Rakoff. He went to Alaska and for three hours helped the district court judge understand the conceptions of corruption that animated our framers. And the argument that we developed in that case was either you apply the modern Buckley test that you can only regulate if there's a risk of corruption, but interpret corruption, the word corruption, in the way the framers would have interpreted it by. Because what right does a judge have to just pick a definition of corruption from any number of definitions that might exist? Some as in as of 1976, compelling. Some as of 1789, compelling. No originalist should see themselves as having that freedom. Instead of picking, they should be bound to the framing conception of corruption, which, as I've explained in the episode about originalism, was a conception that allowed the regulation of what we would call institutional corruption or the corruption of improper dependence which big money creates. So that's one really more narrow, less radical way in which originalism might be seen to inform the First Amendment jurisprudence as it affects campaign finance. But a more radical position is the position advanced by Justice Thomas that the Court should interpret the First Amendment the way the framers would have interpreted The First Amendment. And if something would have been free of First Amendment restrictions in the original period of the Constitution, then it should be free of First Amendment restrictions now. Now Thomas has advanced that argument primarily to attack a different doctrine, really important doctrine announced in New York Times versus Sullivan. That doctrine limits the ability of public figures to bring defamation actions primarily against newspapers or other publications like that. The reason for that decision made in the 1960s was to avoid the obvious opportunity of these judgments and defamation actions in civil rights context to block the ability of national newspapers like the New York Times to tell the story of civil rights in the South. So the Supreme Court articulated a First Amendment doctrine that basically says public figures can only win in a defamation action if the publication is reckless, by which the Court meant knowingly spreads false stories. Justice Thomas says that's all IPSE dixit made up. That's not constitutional law. What you should do is go back to the framing and ask in the framing, did the framers have any conception of a limit on the ability of somebody to bring a defamation action when they've been defamed? And his answer is no, there was no such limit. And so because there was no such limit in 1791, when the First Amendment became part of our Constitution, there should be no limit today. Now, I don't, as a lawyer, as a law professor, as somebody who believes in our Constitution, I don't think that's actually the best way to read the First Amendment. But, but the point is that that's the way he reads the First Amendment. And maybe other originalists read it as well. Indeed, a very prominent conservative senator, Senator Josh Hawley of Missouri, has introduced a bill in Congress to reverse Citizens United, grounded in the view that obviously Congress has the power to regulate how corporations spend their money. And why is that obvious? Because as any originalist would know, the First Amendment as originally understood, would not have restricted Congress' ability to regulate corporations. So the point is this argument needs to develop the originalism strain as well. Because though Chief Justice Roberts is the Chief justice of the Supreme Court, and though I'm sure that three liberals on the Court or the three non conservatives on the Court will agree with him and apply that principle in a way that would uphold anti super PAC regulation, that just gets you to four, need to get to five. And so of the five remaining, at least three have been striving to craft a consistent vision of originalism as it applies to the Constitution. I know people are skeptical of that, but this has been my life's work to understand this. So I'm going to assert it. They've been crafting, striving to craft that consistent vision of originalism. So Amy Coney Barrett is one, former clerk to Justice Scalia. Neil Gorsuch is another, consistently pushing the effort to understand originalism in the constitutional context as well as other contexts. And of course, Justice Thomas. So the second line of argument would appeal most directly to those three to say, if you are an originalist, apply your principles consistently and apply them in a way that says that Congress should have the power. Maine should have the power. Missouri, too. Heck, Pennsylvania, let's throw in even Connecticut. All of these states should have the power to limit contributions like this, because in the framing context, they certainly would have had that power too. The point is, in the lower courts, these two arguments need to be developed so that by the time it gets to the Supreme Court, the Supreme Court can look at the full range of arguments and decide which argument is the most persuasive. To get to the answer, the Court needs to give, which is, does the First Amendment block the ability of states or the federal government from limiting contributions to committees that spend their money independently in a political campaign? Okay, now, some have said that's a lot of lawyering. That's a lot of work. The poor Maine Attorney General's office, how are they going to bear all of that work? How are they going to do that work? And that's a fair question. We don't have an answer to that question yet. I've met with some of those lawyers. They're incredibly impressive, but it is true they have a relatively small office for a state. But I can say that, having also spoken to the many other lawyers who litigate and think about these questions and would ultimately even argue a question like this in the United States Supreme Court, there is enormous support to help Maine. However Maine wants or is willing to be helped, whether that's in strategy, whether that's in supporting litigation, whether that's in brief writing, whether that's in just simply taking the case. And I would say at this stage that we will do everything we can, equal citizens, to make sure that whatever burden Maine bears, we raise the resources to make sure that burden can be covered. I'm even willing to say that I would commit personally to raising the resources, not my own, because I don't have these resources to make sure that even if Maine loses, Maine doesn't lose economically from this fight. Because this is not Maine's fight alone. This is America's fight. And Maine alone should not have to bear the burden. Of this fight, we all should chip in. We all should be part of making it possible for Maine to get us the right answer for the nation. So when people have said to me, are you going to help to make sure that this doesn't cost Maine voters? My answer is, hell, yeah. Hell, yeah. It's the most important for me, really, the only important fight to make sure we win right now. So if Maine can develop that argument to have these two strands, Chief Justice's argument embracing Citizens United and the originalist argument, essentially arguing that the conception of corruption of Citizens United is too narrow, needs to be broader. At least an originalist would see it as broader. If we put those two together, then those two arguments together, I think get us seven votes on the Supreme Court. Now we win with five. So I could be optimistic, overly optimistic, though, if anybody knows me. The idea that Lessig is being optimistic is kind of crazy, crazy talk, but at least five, I think, seven for the view that the Constitution does not block states like Maine or the United States from protecting itself against an aristocratic democracy, because the democracy of our framers, representative democracy that builds a republic, is a democracy where the people alone direct and the people are not the rich more than the poor. Okay, finally, what if we lose? What's the worst that can happen? Well, of course, as I've already said, some think the worst that could happen is that Maine's going to have to pay a whole bunch of money, the money of defending the initiative, but also the money if they lose. Depending on who the plaintiff is, they might ask for attorneys fees, and that can be significant. And so, as I've said, I think we all need to step up and share that burden to make sure Maine doesn't bear it alone. But what about it in the legal doctrine? What's the worst that can happen in the legal doctrine? And here the answer is either nothing worse than things are right now, or if something worse than things are right now, something that will come regardless of this case. So let's take the first. First, right now, the conventional wisdom is super PACs cannot be regulated. Right now, the conventional wisdom is that it's obvious super PACs cannot be regulated. So if the Supreme Court says that, it's basically the baseline where we are right now, so no worse off than where we are right now. But what if it went further? What if it said, you know, all of these cases, it's just so hard to figure out whether there's a risk of corruption, quid pro quo corruption, or others? It's. It's just Too complicated for us. What if the Court said we're just going to abolish limits completely? Limits on direct contributions, limits on indirect contributions? People can contribute whatever they want and spend however they want. The more speech, the better. That's possible. But that possibility exists whether or not we're in the United States Supreme Court. There are any number of cases coming up the United States Supreme Court. The Court could do the very same thing. If the court wants to blow up all campaign finance restrictions, if it wants to reverse Buckley versus Vallejo and go even more extreme than that case and say that there can be no regulation of money in politics or in campaign speech, nothing we're doing is making it easier for them to do that. There are any number of cases on their docket that they could pull up to the Court and achieve exactly that end. So I'm not saying things couldn't get really dark. I'm just saying that this initiative is not going to make it more likely that things will get very dark. And if it gets very dark because of any number of these cases that the Court could take and then declare that there is no limits on spending or money in politics in America at all, Then that tees up the fight that some have already started. Indeed some. A fight that some started on January 21, 2010. The fight to amend the Constitution. Move to Amend American Promise. Free Speech for People. These are all organizations that have been fighting now for 14 years to bring about an amendment. And as I've said, I've been supporting that indirectly in the support I've given to Wolfpack and others to find a way to get a convention to propose an amendment. But regardless, if the Court blows up campaign finance regulation, the movement to amend will get extraordinary support. And it will be a hard fight. Don't get me wrong, the United States Constitution is flawed in the difficulty it has to amend it. So it will be a hard fight, but the fight will be focused. And I'm sure it's a fight we will win. This is our shot to win without that fight. Not because we shouldn't amend the Constitution, but because winning now in this way will itself help support the movement to amend the Constitution. This is the first step. There are so many others that have to happen to get us a representative democracy. This is our shot. And I don't think we should give up on this shot. We should do everything we can to make sure Maine passes this initiative so that we have a chance to win this fight. But let me end this season, at least for now. Who knows? Something May happen, might have to add an episode later, but this is the end of the season for now. Let me end the season with a story I've told before, that this initiative has changed in an important way. So if you've heard my voice speaking before in person, if you've seen presentations I've given, and I've given Jesus, hundreds and hundreds of them since I began this fight almost 18 years ago, you'll know that I'm typically extremely pessimistic about what we can do. It's a stupid strategy. It just happens to be what I believed. I was pretty good, I thought, at identifying the problem and the risk and the threats and the forces behind those threats and what we need to do to get around them, to succeed, to win, to overcome them. I pretty good at mapping that out, but never really good at believing we could do it. And that apparent contradiction, like, expressed itself in the story that I've told before about speech I gave in Dartmouth. And literally, as I sit here, I can visualize the moment in the auditorium, pretty big auditorium. The lights are not bright, but they're not dark. And I'm looking out and there's a woman in the audience who raises her hand and says, professor, you've convinced me it's hopeless and there's nothing we can do. And when she said that, I thought this is, this is a failure because I don't want to be spending all my time talking about this only to convince people there's nothing they can do. But I agreed with her in my head that I had told a hopeless story, a hopeless fight, a fight that I don't know how we can win. But as I've described this event, I say that at the moment she asked that question, for some reason, I thought about my then 6 year old son, who's now 20. And what if a doctor said to me, you know, your son has terminal brain cancer and there's nothing, nothing you could do? Would I do nothing? Would I just go home? And however rational it might be to do nothing, I mean, this is science telling you there's nothing you can do, just give up, go home. Even though that's the rational thing to do. The point, point I felt as I had this thought was that's not what you do when you love someone. When you love someone, you don't give up. However rational it is to give up, you don't give up. You do whatever you can, whatever you can to win. And when I thought that, I said that then and I said, look, you know, even we Liberals love our country. I think it's obvious we love our country, but I know not everyone sees that. So here, even we liberals, even I, I do deeply, deeply, in a most ridiculously romantic way, love our country. I love the ideals of our country. However, clearly, I see the failures in our history. I see those ideals, too. I see what we are working towards. I see the fight for a, quote, more perfect union. I see we have to make that fight and win. And so I love this country and I will not give up on that fight. And I haven't for 18 years. But I'm getting old. I feel it every day. I'm getting old. I'm not so old. I'm 63, but I feel old. And so maybe that's what's changed. Because when I've seen this fight, when I saw Ron Fine make his argument, when I saw how this artist argument could be framed and I imagined it presented to the Supreme Court, I'm not saying you should fight this fight because you're not going to win, but because you love our country and that's why you should be fighting it. No, I'm saying you're going to win this fight. You join with Maine, and we win in Maine. We're going to win this fight. Now, lawyers would tell people, never tell the clients that you're going to win. And I get that. You know them. And I understand there's a million ways in which things can go south. I understand this court is not bound by anything except what it wants to do. I get that. But I am saying, of all the chances we have, this is the best. And indeed, not just best compared to other chances, it's also the best because it's a real chance we win. And when we win this, it's just the first. It's just the first victory. Because when we win this, we will show the millions of Americans who've lost hope that there is reason for hope. And that if we can get this, even this conservative Supreme Court, to do the right thing, then we can also get legislatures and Congress to do the right thing. We can begin the long fight back to a representative democracy, a democracy dependent upon the people alone, whereby the people, Madison meant, and we mean, not the rich more than the poor. Thanks so much for listening to these episodes in season six of the podcast, Another Way this is still Larry Lustig. As I've said in every episode we've developed this season to support the movement in Maine, a movement you can find at the website citizenstoendsuperpact.org if you're in Maine, please join up at that website to help get this initiative passed. And if you're outside of Maine, please do what you can to help the fight in Maine. A fight that will benefit all of us. $5, $10, $500 million, it doesn't matter. Whatever you can do to help that fight, please do it now. Citizens to end super pacs.org these podcasts are produced by Equal Citizens. You can find us on the web at Equal Citizens Us not asking you to give us any money, but I am asking that if you have ideas, thoughts, suggestions, people we should talk to, please use the form at Equal Citizens Us anotherway to give feedback or ideas or Apparently a million people have my email address so you can email me directly. And as I said, this is the last episode of this season. Although we're still three months out. Stuff might happen. Keep the feed alive because if stuff does happen that it's important to report on or talk about or engage with others about, we will add more episodes to this season and then on November 6th, we'll be recording the first episode after the election to talk about where we're going to go from there. Thanks again for listening. Stay tuned for Justice Sam.