S6S4: The Fight to End SuperPACs and Originalism

This is Larry Lessig. I've been in this democracy fight now for almost 18 years. For 14 of those years, we've been focused on the question of money in politics triggered by Citizens United and as I've explained in the other episodes, actually more accurately triggered by the D.C. circuit's decision in SpeechNow. And not just me, not just us. For most of that time, thousands, thousands, tens of thousands across America have been fighting this fight as well. Citizens United birthed great new organizations and Citizens United Move to Amend American Promise represent us Free speech for people to join traditional groups like Common Cause and the Brennan center arguing for a political system where money did not corrupt our politics. Now, the work of many of those groups has been for constitutional amendments, as I've explained, amendments to overturn Citizens United. Groups like Move to Amend and Citizens United originally at least, were trying to rally support to bring that amendment about. American Promise, as I explained in an earlier episode, is doing that work right now in an extraordinarily edifying democratic way by bringing thousands into the movement at the grassroots level in many states across the country to get their representatives to call for an amendment to overturn Citizens United. But all of these groups have discovered a deep truth about constitutional amendments in America today. They just don't seem to happen anymore. Now, we could have a very long discussion, and I've talked about it in other episodes of this podcast, but I'm not going to go into it today about whether that difficulty is related to the strategy that these groups have embraced for trying to bring about an amendment to the Constitution. Because it's become politically incorrect to call for the second of the two paths to an amendment to call for a convention that might propose amendments as opposed to an amendment being proposed by Congress. So most of these groups don't promote the idea of an Article 5 convention to bring about the change that would end the corrupting influence of money in politics. My favorite group, wolfpack, has been doing that work. But wolfpack stands alone among liberal money and politics groups, at least that are calling for amendments to the Constitution. Instead, most of these groups are calling for Congress to propose an amendment. And the challenge is for Congress to propose amendments. We need 2/3 in both houses to make that proposition. So far in the Senate, there's not a single Republican who has signaled that they would support an amendment to overturn Citizens United or even to achieve fundamental money and politics reform. That's not to say they won't achieve it. An American Promise again, is the most hopeful pushing for cross partisan support of a constitutional Amendment. But it is to say it's not happening next year or the year after. Others in this movement, triggered by Citizens United, have been aiming for a more reform minded Congress. And Citizens United has been doing that most aggressively, raising money that they can put into districts to elect members to Congress who commit to reforming the money in politics problem and supporting bills like the for the People act or the Freedom to Vote act, which were two of the most aggressive reforms, hopeful reforms of our democracy considered by our Congress in many generations. I was in the second camp about a decade ago. Decade ago, I launched something of a moonshot, a kind of super PAC to end all super PACs. Originally the theory was we should raise a billion dollars to run in 2016, a campaign focused on ending this corrupting influence of money. The belief was a billion dollars would be enough to get the attention of media and candidates and begin to rally candidates around this idea, maybe even a presidential candidate around this idea. I was advised to take this in steps, that we should run a pilot program in 2014 to get maybe eight or 10 candidates to take this issue on and see how the public reacted. That was a mistake to run the pilot because the pilot could never be big enough to attract the attention or even give people a reason why supporting candidates in that pilot would actually bring about the change that they wanted to bring about. So that pilot, though, it elected or supported the election of people like Ruben Gallego, who I am hopeful is going to win the Senate seat abandoned by Kyrsten Sinema. We didn't have many victories, and so therefore many thought that the effort was a failure, and technically it was. And, and it's another source of another regret for the many mistakes I feel like I've made in this movement. And that mistake was not sticking with the original plan, which was to raise a billion dollars, the biggest chunk of it from billionaires themselves, to support this reform. Now, I bring that up now not to beat up on myself, though I can promise you I do that enough every time I'm finding trouble sleeping. But it's to point out a really important difference that's happened in the decade since we launched that super pack, because in that decade, the billionaires have changed. When I launched Mayday, which was the super PAC to end all super PACs, and we raised 13, maybe $15 million, I don't have the number in front of me. And a huge chunk of that came from billionaires. And I remember speaking to those billionaires making this pitch, and almost every single one I pitched to was furious about the super pac. System and deeply committed to the idea that it was a deeply corrupt system that super PACs had created, and really eager to find a way to overturn it. And they were willing to spend one case, a million dollars donated, to support this experiment to see whether we could build the movement to take on money in politics in a way that would make sure that we would win. But a decade later, it's much harder to find those billionaires again, maybe because they don't think there's any chance we could win. But as I'll explain a little bit later, in a later episode, it's also because they increasingly believe that the system they have right now is good for them, not just because it's good for them economically. I mean, there are those who love the system because they can use it to push Congress to do the sort of things that benefit them economically, like keeping taxes low, ending climate change regulations, things like that, but also because they're trying to do good in the world, and this is a way for them to do good in the world. So if you support abortion rights and you want to fight the reversal of the Dodds decision by electing legislators who promise to pass legislation that will bring about the restoration of the freedom of women to choose whether to terminate a pregnancy or not within the limits of the law, then you like the fact that there's a channel open where you can spend millions, conceivably billions, to pass and support those candidates. So I'm not saying that the people who support the system now support it because they're trying to benefit themselves personally. They just like the power it gives them, and they justify that power based on the good they think their power is bringing about. Okay? Now, the thing to recognize about all of these strategies so far is that they all assume the legal conclusion that Super PACs are constitutionally protected is true. They all assume that Citizens United in some sense gave us super PACs, or in the important sense, meaning the Supreme Court gave us super PACs, and that therefore we have to figure a way to work around that, either by changing the Court or by changing the Constitution. They all take on the hardest task in response to the super PACs that we've seen emerge. But there have also been those who've been fighting that assumption, fighting the assumption that Super PACs are in fact, constitutionally protected, even in the light of Citizens United. Okay, so in this episode, I'm going to describe one of those efforts fighting that assumption, what I'm going to call the originalist gambit. In this episode, I'm Going to discuss one of those efforts, fighting that assumption, what I'm going to call the originalist gambit. That gambit was undertaken by me and my organization, equal citizens. And as you'll see, I think it's going to play an important role in the ultimate victory that we get in the United States Supreme Court. But it, like everything else I've done so far, was a failure in bringing about the change to super PAC law that we wanted to see changed. In the next episode, I'm going to talk about the birth of the strategy that I think will be the core of the victory that we will get to end Super PACs, a strategy launched by free speech for people, and which I think forms the core argument that will lead us to victory here. So sit back and listen to yet another failed strategy. And what helped? What led? What brought that strategy into life? In 2014, four years after Citizens United was decided, the Supreme Court decided a case called McCutcheon vs. The FEC. The question in McCutcheon was whether the aggregate limits on donations to candidates in federal elections were constitutional. Right. So the individual limits say that you can contribute up to an election cycle. Right now it's $3,300 for each election cycle, something like that. But there were aggregate limits in the law that said, and you could only donate that to a certain number of candidates, or there was a maximum amount you could be donating to all candidates together. And the question McCutcheon had to address is, if it was not quid pro quo corruption or the risk of quid pro quo corruption with each individual contribution, was it a risk of quid pro quo corruption when all of those individual contributions were added together? And the answer the court gave was no, if there's no corruption individually, simply by adding all those contributions together, we don't create any other corruption. So there's no quid pro quo corruption. And so therefore, there is no basis for limiting those aggregate contributions by the super wealthy. Okay? Now, leading up to that decision, it was clear to me that the court was going to reach that conclusion so long as the court was focused on corruption as quid pro quo corruption alone. And I had become convinced that at least the originalists on the Supreme Court could not, consistent with their originalism, believe that the only legitimate corruption that can be regulated is quid pro quo corruption alone. Because I had been convinced through the historical work I had been doing in writing my books and whatever else I was doing that the framers had a different conception of corruption that animated them more aggressively, more vigorously than they Pursued corruption in the individual sense. And that was what we could call a kind of institutional corruption. They were concerned not so much about bribery, not that they liked bribery, but they didn't think this was the constitutional problem they had to address in the design of their constitution. They were concerned with the corruption of institutions, meaning institutions being driven to serve something other than the purpose they were designed to be serving. Okay, so the clearest example among our framers of this is their referring to the British Parliament as corrupt, which they did again and again and again. It was the corruption of the British Parliament that led many in the revolution and the framing of our Constitution to design the system that wouldn't be corrupt in the way that the Parliament was corrupt. But the corruption of the British Parliament was not a corruption brought about by bribery. It wasn't that certain nobles were bribing members of the Commons to vote one way or another. That's not what anybody was really worried about. It's not to say it didn't happen. It's just not what they were talking about. The corruption they were talking about was the design of a system that created what was called rotten boroughs, meaning districts, which had so few voters that the king effectively selected the representative in those districts. So Parliament was to be separate from the king. The king, of course, had enormous power, but. But Parliament was to be a distinct power, dependent not on the king, but dependent on its support from the voters, who were not all the people. But anyway, put that aside. But the point is, they were to be separate. But if the king was effectively picking members of Parliament, that was a corruption of Parliament's design. It was institutional corruption of Parliament. And that kind of corruption has nothing to do with quid pro quo corruption. There would be that corruption whether there was a quid pro quo or not. And so the point that I increasingly saw was if the originalists in the Supreme Court who said that their whole purpose was to interpret the Constitution the way the framers would have interpreted it, thereby forcing us to amend the Constitution if we didn't like the way the framers would have interpreted it. Those originalists, if they could be brought to see this, would be brought to see that they couldn't be limiting Congress's power to quid pro quo corruption alone. So in the lead up to the Supreme Court case, I decided I would try to pitch a Solicitor General on this idea that he should be promoting a different conception of corruption. So I wrote Don Verelli, who was the Solicitor General, and I asked if I could have a meeting with him, and he he said he would meet with me. So I trundled onto an airplane in my fancy suit, and I flew to Washington, D.C. and I went to the Justice Department, up into the Solicitor General's office, which is a beautiful suite of offices, and into his room. And there he was. And he greeted me very warmly. And we sat down and he asked me to tell him what I came to tell him. And I realized that he was not really going to take seriously what I had to tell him, because he was the only person in the room. If this was an argument that was indeed going to be an argument in the briefs in the United States Supreme Court, there would have to be a gaggle of other lawyers in the room who would be the ones writing the brief, and they were not there. So I realized that I need to at least convince him and then maybe later at another meeting, convince the other lawyers about what I was trying to persuade him of. But I made this pitch to him. I said, you're going to lose. The only conception of corruption you advance is quid pro quo corruption, and there's no reason that's the only conception you should be advancing. And I laid out this originalist understanding. And I said, you need to also say that under an originalist conception of corruption, assuring that the institution is not corrupted is a legitimate, compelling interest of Congress. And if you have a conception of Congress which was to be, quote, dependent on the people alone, whereby the people, we mean, not the rich more than the poor, then a system where a couple billionaires could be giving money to every single member of Congress and creating those sorts of dependencies was precisely a system that was corrupt in the way our framers would have understood it. That was the pitch, the originalist pitch. When I read the brief the government submitted, I saw that this was nowhere in the brief. And so I realized we needed to introduce this argument separately. So, working with a Constitutional Accountability Center, I put together a brief, an amicus brief, to defend the law, that reported on research that I had done with students at Harvard about how the idea of corruption, the word corruption, was used at the framing. What we had done is we had found every single instance that we could of the word corruption being used in printed journals, in the records of Congress and newspapers, whatever. And we coded them, and we tried to see whether the corruption they were talking about was individual corruption or the corruption of an entity. Were they talking about quid pro quo corruption or something like institutional corruption or improper dependence corruption as we characterized it? And in the brief, I reported that the overwhelming use of the word corruption had nothing to do with quid pro quo corruption. I said quote, Of 325 recorded usages, 56% referred to the corruption of an entity, while 44% spoke of the corruption of individuals. There were five mentions of quid pro quo corruption and 29 mentions of improper dependence corruption. All quid pro quo corruption usages referred to individual corruption. On the other hand, only 9 of 29, 31% references to improper dependence corruption located that corruption in an individual, with 20 of those 29 meaning 69% speaking of corruption of an entity. Okay, so the point I was trying to make is, look, the way they used the word corruption then was not primarily focused on quid pro quo. It was focused instead on. On the idea of institutional or improper dependence corruption. A Framer would have thought that the corruption he was fighting was not the bribery necessarily, or not the bribery alone, but also the corruption of institutions, institutions of representative democracy. If that's what the Framers would have thought, then people who take seriously what the framers would have thought, namely the originalists, ought to be focused on this use of the word corruption. 2. So I filed my brief. I was hopeful maybe somebody would pick it up. It wasn't picked up in the argument. When the opinion was released, I quickly scanned the opinion to see whether anybody had made the argument, either in the majority or in the dissent. And of course, it was nowhere in the opinion at all. And I was, let's say, disappointed. So the case was decided on April 2nd. I was first especially disappointed that it didn't appear in Justice Breyer's really fantastic dissent, because Justice Breyer in his dissent had gone through all the different conceptions of the word corruption. And Shenho, in the vast majority of them, the kind of regulation Congress was being attacked for would have plainly been an example of quote, unquote, corruption. So Breyer's point was, you've picked one very narrow conception of corruption. And under that narrow conception of corruption, this law fails, but it doesn't fail under any number of other reasonable conceptions of corruption. And who are you to pick that very narrow conception of corruption? But the question I had was, why didn't Breyer tweak the originalists by pointing out that even the original conception of corruption would have supported the law. And so even under the originalist methodology, there should have been a decision upholding the law? And then I got a little bold. I decided, you know, Justice Breyer was a former Harvard law professor. He lived in Cambridge. I decided I'd go visit him So I emailed him, and I said, do you mind if I come over for coffee? And I came over for coffee, and we had a very pleasant conversation. In the middle of that conversation, I said to him, you know, I just don't understand why in this otherwise, really fantastic dissent in the McCutcheon case, you didn't include a paragraph that tweaked the originalists by saying, even under the originalist conception of corruption, this law would have been upheld. And Joseph Breyer said, well, do you mean. And I explained the whole originalist argument, as I've just explained to you. And he said, oh, my gosh, 76 briefs filed on that case. It's a number like that. I don't know if it's exactly 76, but something like that. And he said, 76 briefs filed in that case. Not a single person made that argument. And I said, actually, Justice, I think at least one person made that argument. I did. And he said, oh, my gosh, I'm sorry we didn't see it. That emboldened me even further to reach out to speak to the justice who I had had the honor to clerk for, Justice Antonin Scalia. Now, as I've explained elsewhere, I clerked for Scalia early in Scalia's career on the Supreme Court. It was one of the most important influences on my career as a lawyer, not so much because I was lapping up the substance of Scalia's conservative originalism or conservative views generally, but because he demonstrated something about how law could work. There are any number of cases where when you listen to the case, there was a conservative response, and then sometimes there was an originalist response that was inconsistent with the conservative response. One of the cases we worked on that year was a case called county of Riverside. And in county of Riverside, the question was, how long after you arrest somebody without a warrant can you hold them before you must present them to a magistrate to make sure that they were arrested with probable cause? Because you can't arrest somebody unless there's probable cause they committed a crime. And the conservative intuition, as evinced by justices like Justice o', Connor, who was ultimately the person who wrote the majority opinion, was that, well, you know, it's hard. It's a hard job to get a magistrate to review the evidence, you know, take time. And she originally was talking about, I think it was something like up to two weeks, you could just hold somebody without proving that you had probable cause to arrest them. And Scalia said to me, I want you to go look at every single case from the founding, where this question was raised. And we had a great library in the Supreme Court. And I asked them to pull every single case. And they sent me a note down that said all the cases had been pulled. And I went up and there was a table, and on the table was a line of books, it must have been 20ft long. And I went through each one of them and pulled the cases and looked at them. And every single case, the rule was the same. You bring the arrestee to the magistrate as soon as possible. Indeed, sometimes they would just order that the arrestee be brought in the middle of the night. They wake the magistrate up because the interest was to make sure that somebody was not being arrest, meaning arrested, meaning harassed, without probable cause. That freedom meant if the government's going to hold you, they need to prove to an independent person, a magistrate, that they have good cause to hold you. So the conservative answer was whenever it was convenient. The originalist answer was as soon as possible. And Justice Scalia took that position and originally said 24 hours at most. That was even more extreme than the most liberal member of the court, Justice Marshall, who eventually came around to that position. But he was, he was willing to go even more than the 24 hours. And the court eventually pulled back and agreed on something much, much shorter. 48 hours, maybe 36 hours, I should look that up. But the point is, it's much shorter than the two weeks they were originally talking about this. That was the Scalia I knew. And the idea that he would bend away from his politics in the in service of what he thought of as his guiding constitutional principle was an inspiration to me. I'd seen it elsewhere. I had clerked for Judge Richard posner on the 7th Circuit Court of Appeals, one of the most prolific law professors all through his life, including when he was a judge and one of the most prolific judges, maybe the most important court of appeals judge in the late 20th century, early 21st century. There are any number of times that Judge Posner would be assigned an opinion and he would take it home to write it because he wrote his own opinions. The clerks did not write his opinions. He would come in with beautiful 30 page opinions that could have been published at that moment, and our job was just to argue with what he had written. But any number of times he would go home having decided with the court that he sat on, the three judges having voted one way, and then come in the next day and just say, just didn't write, and he would have written an opinion going the other way, and then he would have to circulate it to the other judges and get them to go along with the other way, or if they wouldn't, then he would write a dissent and they would have to write an opinion. For two judges going the way that they originally said they would go, that, too was an extremely important lesson to me about the nature of law, because there too, you had a judge who felt himself constrained by the work, by the writing, by the opinion that he had to write to get to the answer that was actually the most supported given the nature of the law, as it was constraining him in, in his fingers as he typed those opinions. And even though he was the fastest typist I've ever seen, even then the law constrained him. And that's not the only example. When I clerked on the Supreme Court, there were two cases where the court had decided nine zero one way, and law clerks pointed out an error in the court's decision, you know, and not after the opinion was decided release, but in the process of deciding how the court was going to decide it, pointing out errors in how the decision had been reached, like, like not, you know, political errors, legal errors, like overlooked something or had failed to consider how a certain statute was actually to be read. And those clerks were able to get the court in one case to flip 90 the other way, and in one case 72 the other way. These were all examples for me of how law is supposed to work. But yes, there's politics, yes, there are preferences, yes, there are people who are going to bend against what the law is going to say. But the law is and is supposed to be something that guides and constrains what the judges do. And I'd seen that constraint with Judge Posner. I'd seen that constraint with Justice Scalia. I'd then seen that constraint with the whole Supreme Court. And so that was how I viewed the nature of law. And when I decided I would go see Justice Scalia and ask him about McCutcheon, too, it was that conception of law that guided me. So I reached out to him, and on 12th May, 2014, I had lunch with him in Washington. I'd had lunch with him a bunch of times since I clerked with him. Turned out that would be the last time I would see him before he died two years later. But I had lunch with him, and as always, it was an extraordinarily jovial and pleasant conversation. Justice Scalia liked to have wine with lunch, so it got more jovial as the conversation continued. But in that conversation, I said to him, you know, justice, you ruined me as a law professor. And he laughed and he said, what do you mean? I said, well, when I clerked with you, there are any number of times where there was a conservative decision and then there was an originalist decision. And each time you eventually were brought around to do the originalist thing. And so when I became a law professor, I told him, I predicted every time there was that conflict, you would do the originalist thing. And I said, you've let me down every single time. And Scalia again laughed in the way that he would laugh, and he said, what do you mean? What's an example? And so then I told him the McCutcheon story, and I told him about the original understanding of the First Amendment or the original meaning of the First Amendment, the way an originalist should interpret it. I told him about original conception of corruption, gave him two ways in which that might matter to the original meaning for an original meaning conservative like Scalia. And I said, but there you go, ignored all that, and you instead decided the case in a way that was based on a ipsy dixit conception of corruption, one made up in the 1970s by per curiam decision of the Burger Court. Like, how was that originalism? I said, he looked at me and he said, 76amicus briefs filed in that case. Not a single person made that argument. I said, justice, one person made that argument. And by the end of our lunch, and again, you know, we'd had some wine, so I'm not sure whether this was considered judgment. He had said to me, I think you're right, I think you're right. I don't think I can constrain Congress to quid pro quo alone. I think I at least have to allow them to regulate according to the original conception of corruption. It's not going to be easy. He wasn't convinced. He knew how he could do it, but at least he had seen the point. Okay, that lunch with Scalia then cemented when he passed in 2016, June, February of 2016 convinced me that I was going to try to press this originalist argument more aggressively. We started looking for a jurisdiction where we could bring a case that could tee up the originalist argument. We found that jurisdiction in Alaska because in Alaska, the law gave citizens an extremely interesting power. Citizens had the power to file a lawsuit against the person running the elections if that person was not enforcing Alaska election law. And so on the books in Alaska was a law that regulated super PACs or regulated contributions to independent political action committees. And so we found a bunch of citizens from Alaska people were Equal Citizens Network and friends of Friends in the Equal Citizens Network. And we asked them whether they would be working, willing to challenge this. And they were very eager to challenge this. And so we launched a complaint in the election commission in Alaska saying the election commission should be enforcing the anti super PAC law. And the election commission's response to us was we would love to enforce the anti super PAC law, but we can't because the anti super PAC law has been ruled to be unconstitutional by cases like SpeechNow, and therefore we will not enforce a law that has been ruled to be unconstitutional. And so that gave us the predicate for challenging whether indeed such laws were unconstitutional. And so we appealed that ruling by the election commission and that appeal would be taken up by a district court in Alaska. And so we had a district court and we asked that district court to allow us to come present evidence about the original meaning of the First Amendment and the word corruption. And the district court judge granted our request. And so we went to Alaska and we brought from Stanford professor Adam Wanika, who was a careful student of super PAC regulation, and we brought maybe the most prominent original historian of American constitutional historical history law at the time, Jack Rakoff. And it was my job to prepare and then to depose and then to present the testimony of Jack Rakoff about the meaning of corruption in the framing context. And Jack Rakoff was brilliant in laying out the framers conceptions of corruption and how those conceptions were plainly beyond the conception, the simple conception of quid pro quo, how what we called the institutional corruption conception was central to their thinking, like fundamental to the way that they thought about this problem. And then under that fundamental conception of corruption, regulation of things like super PACs would be perfectly consistent with that conception of corruption. So the district court judge took many, many months to think about this decision, think about this argument. Eventually the court, district court ruled in our favor, not quite for the reasons we had given, but crediting and reporting the original originalist argument. And that victory was then appealed by the Alaska Election Commission to the Alaska Supreme Court. And in the Alaska Supreme Court we made the same arguments. And the argument was essentially, look, the Supreme Court is now dominated by originalists. And in answering the question whether the Supreme Court would find the regulation of Super PACs to be violating the First Amendment, you need to consider the position of originalists and the originalist position, as Jack Rakoff laid out, and as you yourself can reason would say that the court could, if it were ruled, consistently find the regulation of superbacs constitutional. And so you, the state of Alaska, which has had ungodly amounts of out of state money spent in the most massive ways imaginable, should be free to regulate, to limit the contributions to those committees, and that the law that actually did that should be upheld. So this was a Covid argument. Standing in my basements, speaking through zoom to the COVID prepared and protected judges, I made this argument and we lost. The Alaska Supreme Court acknowledged the argument, but said that they thought that the contrary view, that super PACs couldn't be regulated, was more dominant in the circuits. That's certainly true. Even if it was wrong, it was wrong with flying flags and therefore that they would not rule that the Alaska law had to be enforced. Okay, so that was a big loss because for stupid reasons, I won't go into here. If you have a citizen suit like we did and you lose in the Supreme Court as we did, there is no jurisdiction to apply to the United States Supreme Court to reverse that ruling. If we had won, this weird rule of standing would have said that the state could have appealed to reverse that ruling, but we couldn't appeal to the United States Supreme Court to reverse that ruling. We tried to. We filed a cert petition and did all the work we could to demonstrate all the cases where in fact the court has allowed such an appeal. But the court ignored it and did not grant our cert petition. So we had tried and we had failed. But that failure led me to begin to speak again to my friends at Free Speech for People, and in particular to Ron Fine, who was the chief legal counsel at Free Speech for People at the time. And he and I had been talking about this issue forever. And Ron Fine had been at the core of bringing this issue before the D.C. circuit in a case called Lou vs. FEC. And in Lou vs. FEC, Ron Fine had lost. Now, Ron Fine's argument was not the originalist argument. His argument was the argument that I have described so far that in fact there is quid pro quo CR corruption that should be regulated here. But he and I said, well, why don't we try to tee up both arguments together? And we could do that by bringing an initiative, and that initiative would be challenged. And if the initiative was challenged, then we could make the arguments. And if the arguments prevailed, then at least we could begin to get decisions on the books that affirmed the freedom of states to regulate super PACs. And with that freedom, we could begin to get the chance to be in the Supreme Court, to have the Supreme Court hold the same thing. So we decided to bring an initiative in Massachusetts. And Massachusetts has this weird initiative provision which says that when you bring an initiative, you got to get a certain number of signatures, but then the Attorney General needs to review the initiative. And if the initiative is inconsistent with freedom of speech, then the Attorney General has to deny the initiative a chance to be on the ballot. And so actually, we kind of hoped, or at least I hoped, that the Attorney General would make that denial that would give us a chance to go, go to the Supreme Judicial Court directly, even without gathering signatures to test whether in fact that was true. And if the Supreme Judicial Court, the highest court in Massachusetts, agreed with us that in fact you could regulate super PACs, then maybe the Attorney General would then appeal that to the United States Supreme Court. So we would be in the Supreme Court even without gathering signatures in Massachusetts to be able to test the theory whether, in fact super PACs could be regulated. So we filed the initiative. The Attorney General did, as I kind of hoped she would. She ruled that, in fact, the regulation of super pacs was prohibited by Citizens United. We then began the process of briefing the reply or a challenge to her decision. The process is extremely burdensome. We had to file, literally. I counted 442 pages of argument, briefing and reply. That's not accounting, that's not including the appendices to be able to get this question up to the Supreme Judicial Court. And the Supreme Judicial Court granted our review and gave us an oral argument. And so in February 2023, February 7th of 2023, Ron Fine and I stood before the Supreme Judicial Court asking the Supreme Judicial Court to allow us to gather signatures on the petition because we believe the petition was constitutional. Okay, now I'm still toying with whether to do a whole season of the other podcast I have called law, such as it is, about the Supreme Court, Supreme Judicial Court in this decision, because what the court did was really quite extraordinary. They never reached the question whether the Constitution prohibits the regulation of Super PACs. They punted that question and said we would have to gather signatures before we were allowed to have them consider the question. So what that meant was, if the Attorney General rejects your initiative in Massachusetts, you have to spend, you know, like, a million dollars to gather signatures to be able to challenge her determination. This is like a million dollar filing fee that the Supreme Judicial Court of Massachusetts created out of whole cloth. It's nowhere in the law. Nothing in the law or the history even suggested made sense. The court instead said, it kind of makes sense because you Know, we get a lot of crazy petitions, so this is the way to make sure that we don't have crazy petitions. A certain point in one of the justices said it costs money to change the law. So even though the Massachusetts constitutional convention that created this provision to enable citizens to have initiatives was express about making sure it was as easy for citizens to do this as made sense, indeed, one time they considered the idea of $100 filing fees to be able to file a petition that would be returned once you gathered signatures. Even that burden was too much for the framers of the Massachusetts Constitutional convention, who created this initiative in the early first part of the 20th century. All of that notwithstanding, the court has created a rule that basically says the attorney general gets to decide which initiatives are on the ballot unless you've got a million dollars to challenge it. So we didn't get to be on the ballot. But that's not the important point here. The important point here is an exchange that I had with one of the justices about the originalist argument because Ron Fine stood up and made his brilliance. And as you'll see, I think this is super, super brilliant. It's the whole reason I've been living for the last two years argument about why under Citizens United, super pacs can be regulated, I then got up and said, I of course agree with my brother Ron Fine, but I also want you to see that even an originalist should adopt the position, or would adopt the position that you could regulate super PACs, and that therefore, for that reason, you should also allow us to be able to gather signatures on this initiative. But it was an even weaker standard that I had to set succeed at to be able to get them to agree with us that we should be able to gather signatures because the law, as Massachusetts had it to that date, was the attorney general needed to allow any initiative where it was, quote, conceivable, end quote, that the law was constitutional. Conceivable that the law was constitutional. And that made sense because, you know, the Massachusetts legislature is allowed to pass unconstitutional laws. They do it all the time. Time. Well, I don't know. They do it, they've done it. And when they do it, then it gets challenged. So you pass a law, and then it gets challenged. And so this is the people passing a law. This is a stronger burden for the people than the legislature. You can't stop a law in the legislature through a court by saying that it's unconstitutional. You have to wait until it's passed, and then you can challenge it. This is to be a certain kind of restriction in Massachusetts to say that the attorney general should be able to stop clearly unconstitutional laws. But if it's conceivable that it's constitutional, then the people should be able to pass the law and let the lawyers then argue about whether it's constitutional afterwards. So my argument to the court was, look, the government has not argued that we're wrong about the original understanding of the word corruption and how it should apply to the First Amendment analysis of super PAC regulation. They didn't say a single word against us. So I said, the question you need to answer is, is it conceivable that the conservatives on the Supreme Court will act consistent with their principles? Is that conceivable? And I was interrupted by a judge who said, I hope you are right that it is not an unreasonable belief to believe that they would act consistent. And when she said that, the whole court broke out and left her. I can still remember. I felt so sad. And not because I thought I was going to lose the argument. I felt so sad as a lawyer, as a law professor, as a person who's been working in this field for 30 years. I felt so sad because I thought, oh my God, it's okay to joke about the political inconsistency of the majority of the United States Supreme Court openly in court to encourage laughter at the idea that the conservatives would behave consistently. And it's not that I don't get why people would be worried and think that. That's not that I think they do behave consistently. I don't even think Scalia at the end of his career was concerned as much with consistency. It's just that it signaled just how deep the cynicism has become that you could, as a justice on the Supreme Judicial Court, throw into the wind this joke about the integrity of Supreme Court justices. Saint Voxantine, a Twitter report. Twitter user. That's. That's the word for that company, Twitter. I. I know people have heard this stuff about it being called X. It's not true. It's not true at all. It's fake news. It's Twitter. Anyway, he posted a tweet quote. It's by turns a adorable and tragic that even after being shown otherwise, Lessig still apparently believes that originalism is anything more than hype. Yeah, it's tragic, at least. And maybe I'm wrong. Maybe it is just hype. And maybe there are no justices left who call themselves an originalist on the Supreme Court who would think that their job is to do anything other than do what the conservatives would want, but I'm too old to change. I'm too old to get the hype. The cool, new, modern, cynical view that it's all just politics, because it turns out that view is old too. That view is old too. The Critical Legal Studies, which was the radical movement that took over the Harvard Law school in the 60s and the 70s, had won great many great leaders. But one of the greatest leaders was my colleague Roberto Unger, who is still on the faculty. And he ends his book, the Critical Legal Studies Movement, with a passage, and I'm calling this from memory. So it might not be exactly right, but it's pretty close. He says they were like priests who had lost their faith but kept their jobs. I didn't want to be. I don't want to be. I will not be one of those priests. I will act with faith that principle is possible, and I will push with faith that principle is possible even among the conservatives. That's what motivated the originalist arguments, rewarded only with Justice Scalia's acknowledgment the last time I got to have lunch with him. But it will continue through this fight. Now, the good news is that's not the only argument we've got. Because the other extraordinary moments that day in Supreme Judicial Court's chamber was the argument of Ron Fine, the head of Free Speech, the chief legal officer at Free Speech for people laying out the argument that even under Citizens United we should be able to regulate super PACs. His argument was just brilliant, seriously brilliant. He is a great lawyer, was a great advocate. It was a perfect exchange with the court, and the court got it. And I realized in my obsession to push this too clever by half originalist argument, I'd missed the most obvious argument or the most obviously correct argument, even if it wasn't obvious, even if it took people like Ron Fine to advance it in context where most had just missed it, I had missed it too. And I became doubly committed, triply committed to this fight to end Super PACs. This time finding a way to advance it, not just with the too clever by half originalist argument, but by the core logic of Chief Justice Roberts for why corruption can be regulated. That's what we'll talk about in episode five. Stay tuned. This is Larry Lessig. Thanks for listening. As I've explained in every other episode, at the end of every episode, this episode is produced by Equal Citizens, in particular by Josh Elstrow, whose work is extraordinary in pulling this into a listenable form. But we're asking you in these episodes to look To Maine, to citizens to end super PACs.org in Maine, which is leading the campaign to pass question one, Question one, which will tee up when passed, the question for the supreme court whether super PACs are in fact mandated by James Madison's first amendment. They are doing extraordinary work to turn out the votes, to make people understand the issue, to make them a agree to support it. And they need your support. If you're in Maine, they need your support as a volunteer, as people to help turn out the vote, as people who might make Maine into the state that brings about the end of super PACs. If you're from outside Maine, they could use your support in five or ten or twenty or a billion. It's up to you dollar contributions to help pass this initiative. And when the initiative is passed, then we will work with Maine in whatever way we can to get the issues teed up in a way that gives the Supreme Court the choice, the chance to do the right thing. So please support this movement if you can. And I've also been saying at the end of every episode, we also need you to help us spread spread this message. The algorithm of modern social media is not eager to spread messages like these because these are messages not of disagreement, not of hate, not of division, not of polarization, not of why the other side is evil. These are messages about, hey, we actually all agree about this. Overwhelmingly, we all agree. The polls show no difference between Republicans and Democrats and independents on this issue. No statistically significant difference. Overwhelmingly, Americans believe money has corrupted our political system. Overwhelmingly, they oppose the institutions like super PACs. Overwhelmingly in mess in Maine too. They want to bring about the end of super PACs. But that unity is just not sexy, at least to a social media algorithm. The AIs of social media are looking for something different. So we have to fight the algorithm. We have to fight the normal channels through which this stuff would be surfaced. We need you to spread this as broadly as you can. You need you to give your thumbs up on these podcasts so that the podcast platforms begin to see this podcast to some something people ought to be listening to. You need to think about which politicians, which leaders in your community, which leaders in the Democratic movement need to hear this argument, need to come to recognize we have a shot, a chance, a chance to do something to end the most consequential and polarizing speech in America today so that we can end the corrupting dependence that has turned our government into a government that just cannot function. So do what you can. I'm not asking you to give 18 years of your life. I was forced to do that. But you're not. I'm just asking you to help us pass this one initiative in Maine. And then watch as your work grows to be the most important victory we've had in the court in a generation. This is Larry Lessig. Still. Thanks for listening. Stay tuned for episode five where we tell the story of how this arguments got born. Sam.