S8E3: Courtney Hostetler

This is Larry Lessig. This is episode 3 of the podcast Another Way, season 8. We've been talking this season about the case that we are litigating right now to defend the initiative in Maine that ended super PACs in Maine. Today we're gonna talk to Courtney Hostetler, who is a lawyer at Free Speech for People. Free Speech for People is the group that showed me the critical argument, which is why I think we're gonna win in the Supreme Court. It's a brilliant argument. I saw it first presented in a case that we were litigating in the Massachusetts Supreme Judicial Court by Ron Fine, who was then the lawyer that, uh, in the position that Courtney is in. And so in the conversation with Courtney, you'll hear her unpack the essence of this argument. And why under the existing rules of the Supreme Court, under the principles of Citizens United, this case should be decided to uphold the initiative and to allow Maine and any state, including the federal government, to limit the size of contributions to independent political action committees, thereby ending super PACs. Stay tuned. Thank you so much for helping us understand really what I think of as the critical part to this case. And it's appropriate that you help us understand that because this is the work that Free Speech for People has done since this issue became an issue of litigation. Obviously, Free Speech for People as a group started just after Citizens United really inspired to stand up after Citizens United to try to resolve the problem Citizens United created. But I think of you guys as being at the center of helping people understand why it actually wasn't Citizens United that's responsible for the problem of super PACs. Now, this all happened a little bit before your time, but I wonder if you could just help us get into this story by telling us a little bit about where Free Speech for People fought it needed to go and how it thought originally about trying to achieve reforming this particular part of the problem.

Sure. So as you rightly pointed out, Free Speech for People started to correct the mistakes made by Citizens United and make it clear that corporations are not people and money is not speech. And that's clearly something that's still near and dear to our organizational heart. However, one of the things that my predecessor, Ron Fine, and our co-founder, John Bonifaz, realized right from the beginning was that Citizens United also left quite a bit of room for ongoing efforts to, you know, control campaign finance. And one of the big things that it could do, one of the big things that we can do without touching Citizens United, is end super PACs. And that's something that we've been involved in in a number of ways, uh, for years and years and years. And we do that in a couple ways. One is trying get this lower court decision called SpeechNow overturned or revisited, because that's really the decision that led to— the wrong decision that led to super PACs becoming the force that they are now. And then simultaneously lobbying for legislation to end super PACs, including federal legislation that was introduced just this past term. Those are two ways that we are trying to really get at the issue of super PACs. And it really stems from this idea that nothing that the Supreme Court has done in Citizens United or in other cases changes the fact that the jurisprudence absolutely allows for limitations on contributions to these political committees that make independent expenditures, really, which is all super PACs are, right? Super PACs are committees, political committees, that can, that spend, uh, they may, they make independent expenditures. And there used to be a federal— there is still on the books a federal law that places reasonable limits on contributions to these committees. Those limits were struck down not by the Supreme Court but by a lower court decision that's, that's the SpeechNow decision I mentioned earlier. And they really got the law wrong. The court just absolutely got the Citizens United wrong. It got the law wrong. But it's something that absolutely can be corrected by other circuits and by the Supreme Court itself. So that's really where we're coming from.

Right. So, I mean, part of the difficulty, the kind of rhetorical difficulty, I think in this fight is that in a certain sense, even though there's lots in Citizens United one might wanna criticize, again, the kind of corporations having rights like this, speech, money being speech, these are issues that of course echo across First Amendment jurisprudence ever since Buckley v. Valeo. So there's lots to criticize in the case. The case actually depends on embracing a certain part of the logic of the case. So Citizens United makes a claim. The claim is that independent expenditures do not create the risk of quid pro quo corruption. That's actually not the full part of the argument because what they actually are saying is independent expenditures are expenditures that are not, quote, coordinated with a campaign. And if they're not coordinated, then as Buckley had said, they create no risk of quid pro quo corruption, or put the other way around, if there is a quid pro quo, they're not uncoordinated. And if they are not uncoordinated, as Buckley said, then the expenditure becomes a contribution. So the point that I think is lost a bunch when people think about this is it's not a declaration that these, this speech is completely unregulated. To the contrary, it's a really complicated regulation around that kind of speech. If you spend your money independently, you can only do so if you don't coordinate. And if you do coordinate, then the expenditure is a contribution. So Elon Musk spends $10 million in a campaign independently. He says, "This is an independent expenditure." But it turns out it's not an independent expenditure. Then it's a contribution way in excess of the limitation on the amount that he can contribute. Probably a felony if he does it intentionally. So the point is, that's a really heavy set of regulation that sits around the world of independent expenditures. But the point that you guys have been making, and we both saw Ron make this really powerfully when we were standing in the Supreme Judicial Court of Massachusetts and he was trying to get, we were trying to get them to allow us to bring an initiative in Massachusetts. The point that Ron made so powerfully is, That scheme of regulation, that way of controlling to make sure that there's no risk of corruption, just doesn't exist in the context of a contribution. So when I make a— if I were a billionaire and I made a billion-dollar contribution to some super PAC, and I quote coordinated, or I had some relationship with the donor, that doesn't turn that contribution to the super PAC into a contribution to the campaign, or to put another way around, there's no policing of that contribution. Is that right? Is that the essence of how you guys want to get us to see it?

Yeah, I mean, again, it goes to this exactly this idea. So I think going back to Citizens United, and you really hit the nail on the head, there is a difference between the way that the Supreme Court deals with expenditures and contributions. And the Supreme Court has said, well, when it's an expenditure, that is closer to the heart of political speech, and we're going to provide that with more protections, and we're going to scrutinize more carefully any effort to limit it. This is not saying I agree with that, but that's what the Supreme Court is saying. What they have also said is contributions further away, less scrutinized, not deserving of the same level of protection as expenditures. And so what you get are a number of cases, including cases after Citizens United, in which the Supreme Court does strike down limits on expenditures. Again, don't agree with it, but that's what they do, upholding limits on contributions, right? This bifurcated system. And then what you got with SpeechNow was, I think, you know, SpeechNow was decided immediately in the aftermath of Citizens Citizens United, probably knee-jerk reaction, a knee-jerk decision. I believe it was even already briefed and they didn't get new briefing, right? It was very, very much in the shadow of Citizens United. And the court just got some big things wrong. So first, completely collapsed the distinction between expenditures and contributions, treated contributions and expenditures exactly the same. That's not what the Supreme Court says it's supposed to do. So that's kind of the— that's legal mistake number one. And then the other big mistake it made was this just logical misunderstanding of how contributions work and why a contribution can lead to quid pro quo corruption and the appearance of quid pro quo corruption when the expenditure, at least theoretically, theoretically doing some heavy lifting here, can't. As you very accurately stated a couple minutes ago, Supreme Court said, well, it's independent, so if it's not coordinated, it can't lead to quid pro quo corruption because they're not allowed to be interacting with each other, right? You can't, right? So that's the Supreme Court's logic. I don't think it's great logic. I don't think it makes a lot of sense given what we know about how the world operates, but that's the logic. If it's not coordinated, you can't have the discussion between sort of the briber and the bribee that you would need to have for quid pro quo corruption. Or fear, like the appearance of quid pro quo corruption, to exist. But none of that, none of that separation exists with the contribution. None of the rules that limit or— So you have the super PAC doing the expenditures, right? They're making the independent expenditures there, right? Whoever is making the spending decisions for this super PAC has some anti-coordination rules they're supposed to follow. These rules are collapsing in the FEC, but maybe we'll save that for a conversation for another day. But they have these anti-coordination rules they're supposed to follow. So they're theoretically, allegedly making independent decisions about how they want to express political speech. The person making contributions to that group has none of that. There's no regulation that stops them from coordinating with the candidate, from talking with the candidate, from making quid pro quo agreements with the candidate. Hey, we'll give you $1 million. We'll toss $1 million, $500 million into a super PAC that you know supports you. You know it supports you, right? It's run by your former campaign manager. You know it's going to support you. And the candidate and that contributor can have those conversations. Let's say, even assuming best intentions, the person in charge of the super PAC doesn't know that a quid pro quo, an illegal bribery agreement, gave them this donation that they're now using. They don't have to know. It's still illegal. If you were a— if you were my city council, right, and I paid and I wanted you to do something and you said, you know what, give $25,000 to the Red Cross I'll do what you want. That's an illegal bribe. That's an illegal bribe. Federal law even says bribes to third parties, still bribes. It doesn't need to go to the candidate to be a bribe. And that's federal law. It's in a lot of the state bribery laws too. We know this is what happens. So that, in fact, while the SpeechNow court assumed, well, If a person making an independent expenditure is too far from the candidate, then certainly a person contributing to the entity making an independent expenditure must be even further from the candidate. Wildly, wildly wrong and just simply not engaging with actually how these relationships work. And that's really what SpeechNow got wrong in addition to that kind of major legal issue of collapsing contributions and expenditures. So that's a big thing. Free Speech for People is spending a lot of time really trying to parse that out and making sure that both, you know, people, politicians, candidates, and, you know, people who might support bills and ballot measures like the one in Maine really understand.

Yeah. Now I want to do something I don't typically do, but I want to defend Citizens United a little bit here because I think it's important to understand the sense in which the court was describing these expenditures as independent, right? Because all of us, you know, if you tell me Elon Musk has spent $10 million in a race and you tell me it's independent, my eyes are rolling. I'm like, yeah, no, it's not. Come on. You can't be, you can't expect me to be that stupid. But, but what the court was not saying was, We've gone out in the world and we've looked at all these independent expenditures and we've determined that in fact they were independent. What they were saying was, as a matter of logic, they are independent. And if in fact they are not independent, then there's a principle that says the expenditure gets converted into a contribution and then it's illegal. It's an illegal expenditure. So there are two halves to it, the logical half, which you described perfectly. Lawrence Lessig, when you were saying that if you guys are not coordinating, then there's no chance for you to be having any kind of bad quid pro quo agreement. And so therefore, by a ma— as a matter of logic, there's no basis. If the only basis we have for regulating is quid pro quo corruption, there's no risk of any quid pro quo corruption there. But if you are coordinating, you are in fact violating the independent require— independence requirement., and so therefore your expenditure becomes a contribution. Those two halves are essential to understanding Citizens United. But as you, I think, really clearly just described, those two halves don't live in the side for the contribution. They just don't live in that side. So the contributor, I do think you really brilliantly put this, there's a geography to the SpeechNow decision. There's a kind of map. They have in their head. And the map they have in their head, which the district court in our case also had in her head, is that you've got the independent expenditure, the entity making the independent expenditure, who's like 2 steps removed from the candidate, and then the donor to the independent expenditure campaign, the political action committee, who's a couple steps removed from that committee. And so therefore, as a matter of logic, that donor is like 4 clicks away from the candidate. So if the independent committee is too far away, then by definition, the donor is too far away. But there's nothing in that layout that's required as a matter of logic. And indeed, we know the donor is sitting right next to the candidate. So my favorite US Senator, Robert Menendez from the state of New Jersey, like he gets indicted for a quid pro quo. And the quid pro quo is he has some Florida businessman who wants favors from the government, and he says, okay, I'll get you favors from the government if you agree to make a contribution to my super PAC. There, those guys are talking to each other. They are coordinating. But the point is, the law does not regulate that coordination. There's no— I don't think you constitutionally could regulate that coordination. The idea that you would say that donors can't talk to candidates is just ridiculous. And so therefore, the only way to make sure that this isn't corruption is to do as we've done since the beginning of regulated speech here in Buckley v. Valeo, limit the size of the contribution. That's the remedy for it. So that's one point. The second point that I wanna make sure is clear, it's clear in what you said, but I just wanna emphasize it. One thing you could be worried about is just quid pro quo. And of course, people would say, well, there's bribery statutes to regulate quid pro quo.. And in Buckley, the court said, yeah, of course there are, but it's too hard, obviously, all the time to determine bribery statutes. But the point about Citizens United is it's not saying it's independent because there is no quid pro quo. It's saying it's not independent because there is no coordination. And coordination is not quid pro quo. Coordination is just, here, we're going to say this, and you're going to say that, and we're going to do this, and we're going to have these kinds of understandings about what we're going to do. And the court was willing to say, well, if you're coordinating, then there's a chance of quid pro quo. And if you're not coordinating, there is no chance of quid pro quo. But, well, you don't have to prove quid pro quo to prove coordination. You just have to prove coordination. And so this is a lower standard than a quid pro quo, and which is again why it's so striking that in the context of the donor, there's no regulation of that. At all. There's a weird regulation about what that candidate can say. So, you know, as you know, if you are a candidate and you show up at a dinner that's organized by a super PAC, so you're trying to raise $1 billion to support this candidate, and the candidate shows up, he's allowed to show up. He's allowed to be a speaker at that dinner. He's allowed to say, here's why I'm such a great candidate. What he's not allowed to say is, please contribute more than $7,000 to this political action committee, or $5,000 to this political action committee. He's not allowed to ask for more than the limits, but the donor is certainly allowed to stand up and say, we all ought to be giving $50 million to this super PAC that's gonna support this great candidate for president. So there's no limit on what the donor can say. And so it's that reality, which you guys so, and again, I remember this kind of aha moment because I just stupidly never really clicked on it until I saw you guys present it. This aha moment when you see that there's a gap, a fundamental gap between these two contexts, which is why SpeechNow is just completely wrong and why the First Circuit and the Supreme Court should be in a position where they can finally follow what you guys have been saying for more than a decade now.

Absolutely. And to do so with the unfortunate knowledge that we've developed over the course of the last 15 years since SpeechNow came down, which is that super PACs have enormous power, right? These are not folks out there and the candidate is sort of hoping, oh, well, these guys say they support me, so hopefully they'll stay on brand, right? They are sending their former campaign managers, you know, their campaign manager leads them a month later is leading a super PAC that is able to control unlimited amounts in contributions, right? The candidates are allowed to speak and, you know, you say they're not allowed to ask for more money, but we all saw Trump and his conversation with the oil companies. So, you know, that was pretty quick.

That was playing quid pro quo. I mean, he said to them in April of '24, raise $1 billion for me and I will relax the oil regulations on day one.

I mean, that is as clear quid pro quo as you could And yet no charge, right? So the idea that a bribery statute alone can do the heavy lifting here to protect our elections is absurd and demonstrably absurd. When you just looking at that single instance of quid pro quo corruption, clear as day on the, you know, we have a record of it happening. I mean, so that is why even if we stick with the Supreme Court's idea that the only state interest is blocking quid pro quo corruption or its appearance, That's enough. That's a clear— people aren't stupid. We know it's happening. We see it happen. We've heard it happening. And we know that the criminal statutes can't, just are not in a position to do the kind of lifting they would need to protect elections. Too much happens. Putting aside the fact that something as overt as that didn't lead to any prosecutions, we know how many of the conversations happen without people, without being recorded, right? So there's that piece of it, right? There's that, that people understand. And then there's the piece of how powerful these are. There's a lot of talk and a lot of recognition in the 2024 election of how much campaign heavy lifting that's, that these super PACs are doing. Campaigns are basically farming work out to super PACs. Super PACs are doing the mailings. They're doing door-to-door. They're doing the data collection, right? They're running the poll. They're running polls ahead of elections. They're doing work that used to be the purview of campaigns. So there is a huge impetus. I mean, there's an incentive, sorry, there's an incentive for candidates who are interested in accepting bribes to get a much, much bigger bribe that goes to the super PAC that's doing half of their their campaign work already than to get, you know, the much smaller bribe that could go directly to the, the candidate's own PAC, right? So because it is unlimited, it is unlimited. They can get a billion dollars if they want from somebody who's, who's willing to do that in exchange for the kind of policy that they want. Or maybe 10 people give, you know, a million dollars each to get, I don't know, the kind of oil regulation changes that they're hoping to get. That's the kind of thing that, you know, those— however corrupt a politician is, however corrupt an industry or a person within an industry may be, there are limits to how much money they can give directly to the candidate through the candidate's PAC. But with these super PACs, they're unlimited and they are intensely important right now to campaigns, especially these national campaigns, these federal campaigns. But also we're seeing it at the local levels too. Where a lot, you know, many, we're talking billions, right? You know, you mentioned Elon Musk. Typically, we're looking at the federal elections, the presidential elections. We're seeing, you know, million-dollar contributions. Let's not discount the power that is held by school boards, by sheriffs, by district attorneys, by city councils. And those super PACs can have enormous sway over local elections with tremendous power. For a lot less money. And that is just as dangerous, right? Those bribes are just as dangerous. And so it's kind of across the board and something that we— and the fact that voters are aware of it, they understand the quid pro quo corruption. They understand that it's very, very difficult to prove it, but it's very easy to see. Is seeing how it's undermining their faith in our elections. And again, nothing that the Supreme Court has done would prevent these laws prohibiting super PACs from going into effect. Not the one that— Yeah.

Yeah. So now, your organization wrote an amicus brief on behalf of— is it the Working Families Party?

Working Families— Mainers for Working Families. Working families.

And, uh, in our case, we have 9 amazing amicus briefs, um, uh, that have gathered extraordinary range of evidence that's evincing exactly the point that you're making, that we've seen all across the country since this happened 16 years ago, the explosion of obvious cases of these quid pro quos in the context of contribution to super PACs. And that actually, I think, led to a really important victory, I think, in our case, even though we lost in the district court, relative to every time this issue has been litigated before. Because once Citizens, once SpeechNow said that there was no risk of quid pro quo corruption, we saw pretty quickly 4 other circuits follow suit and all of them write opinions that asserted There is no risk of quid pro quo corruption with a contribution to an independent political action committee. And indeed, my favorite part of the Menéndez story is that his lawyers tried to get the indictment against him dismissed, arguing that the thing you've indicted us for, the D.C. Circuit says cannot happen, so we must be innocent, right? And of course, they just chuckled at that, but it showed the mistake. In our case, the district court was willing to concede that there was a risk of quid pro quo corruption with contributions to independent political action committees. And then she just crafted a whole new theory of the First Amendment. I remember talking to you immediately after that case, and you described how you went back to read Citizens United 'cause you thought, "I don't remember that in Citizens United at all." And of course, it's 'cause it wasn't there, but it's a whole new theory of the First Amendment that even though there's a risk of corruption, corruption. She was willing to say that there was nothing the people of Maine could do about it. And I think that's a great opportunity because I think that's the most extreme we've ever seen in the context of a federal court looking at this issue, to concede that there's corruption, to concede that there's a risk of this kind of corruption, and not just a theoretical risk, practical risk, not just around the country, but also in Maine. And yet still to say that the people can do nothing about it. Is really a kind of democratic disablement that I don't think any court has been willing to articulate so far.

Yeah. And I mean, and I, this should really speak to voters and should alarm voters that there is potentially a court there saying that they are powerless to prevent corruption when it is right before their eyes. But again, that is not what the Supreme Court the Supreme Court says, right? So again, we can disagree with the Supreme Court about the way in which they've limited what a state's interest is when it limits campaign, you know, when it limits contributions and expenditures. And I very much disagree with this narrowing. However, even within this narrowing, this is what they've said is quid pro quo, risk of quid pro quo corruption, essentially bribery, right? Somebody promising money to a candidate or to an inter— something in, you know, some giving money to a third party that the candidate wants it to go to, whether it's a spouse or a nonprofit near and dear to the candidate's heart, or a super PAC that supports that candidate. And the candidate in return does something, some sort of government action, right? That is, that is quid pro quo. That's what bribery is. That risk or its appearance, because the Supreme Court has also recognized that when people, you know, when essentially politicians are failing the sniff test, when we see it as voters, when we recognize that this is, that there are avenues for this to happen, it undermines their faith in our elections, it undermines their faith in our democracy, and that is also a state interest. And it is very clear that when you're talking about unlimited contributions to super PACs, unlimited contributions to these committees that have created super PACs, that make super PACs this unstoppable force that we're seeing today, that is not only leading to quid pro quo corruption, not only creating those clear avenues, the easy pathways for corruption to happen, but is also creating that very dangerous and, you know, alarming sense that people have that this is happening. The pathway is there. The money is flooding in that river. There is bribery in that river along with that money. The state has an absolute interest in that. So what the courts need to do is recognize that the state's interest in passing these laws is squarely, squarely within the interests that have been affirmed by the Supreme Court.

Yeah. And in a certain way, you know, the current administration is making it almost undeniable that there's an interest here to be addressing because, you know, I think this administration has just become shameless. They have no shame, literally no shame. And they're willing to live with the reality that the whole world sees them as basically selling off favors of the government in exchange for this kind of money. Now, you know, the contributions that are being made in order to facilitate, for example, pardons are all contributions to super PACs. So this regime is what enables this kind of corruption to flourish. And we're not going to end that corruption until we end this kind of regime. What's striking about this with Donald Trump in particular is that I don't know if you remember, this was very important to what I was thinking about at the time. In 2015, when he became a candidate, he repeatedly talked about super PACs being an incredible corruption, that if we didn't get super PACs, get rid of super PACs, it would be the end of democracy as we saw it. He was Bernie Sanders about super PACs in 2015, long before he had one, of course, and long before he was using it to facilitate his power. But I think that this echoes, it echoes the attitude of his supporters. You know, when I helped to gather signatures to get the initiative in Maine on the ballot in 2023, I was in a town called Hollis, Maine. And the first guy to come up to me said, I'm here getting signatures to get Donald Trump on the ballot. What are you here for? And I showed him my initiative and he read it and he said, Hell yeah. And he signed it and he said, I'm going to get everybody who signs a Trump petition to come over and sign your initiative as well. And that's what he did for the couple hours he was there. All the Trumpers came over and signed this initiative. And because this is as authentic to the MAGA base, I think, as it is to anybody on the left, this is the one issue which we are overwhelmingly in agreement about. Brennan Center just did an amazing study of polling here and found that literally it's in the 90% range right now, where we see this corruption, we think that something ought to be done about it, and super PACs are exactly that, which is why the second half of the test that you've, I think, powerfully articulated, the appearance of corruption part, it's just unavoidable by the court. So the court can either say, we're throwing out all regulations, which of course they are always free to say, or they have got to apply their regulation consistently, and they've got to be able to allow the people of Maine to stop this channel of corruption. And if not, if the people of Maine, then the people of the United States as well. Now, what's interesting about what Free Speech for People is doing is they're also supporting this bill. And I've been with John Bonifaz down in Washington trying to get support for this bill. If the Supreme Court follows through and does in fact tell us that even though Citizens United is good law, SpeechNow is not good law. What would the consequence be at the federal level? I mean, assume they write the opinion in a way that makes it clear that SpeechNow was just not correct. What would the status of super PACs be at the federal level?

So there is a law, and I think what you're getting at is there is a lot. SpeechNow challenged a law, right? It wasn't a theoretical advisory opinion. Our courts don't do that. It challenged a law that is on the books right now that limits contributions to political action committees, including ones that only make independent expenditures, to I think it was $5,000. I could be wrong on the number, but they set a reasonable limit on that, and that is on the book. So theoretically, um, that, you know, that is still there if SpeechNow were to go away tomorrow. However, the reason that these laws are so important, the bills are so important, like the one that Representative Lee introduced there's a companion bill in Senate, the reason that the ballot measure in Maine is so important, the reason why it's so powerful that we're seeing these bills get introduced at the federal level and we're also seeing it at the state level is because it is such a powerful conversation to be having to demonstrate this bipartisan, fully across-the-board American support for the idea that we need to, you know, take our elections back. From these entities that are so, you know, that engage in quid pro corruption, that are undermining the sanctity and the integrity of our elections. And so while there is that law there, and ideally, yes, let's get SpeechNow reversed, I do think it's also important that we are moving forward with these federal bills and that we have champions in Congress, in the Senate and in the states controlling state elections saying, we're not gonna stand for this. We see, right? We see where our country has gone in 15 years. We see the erosion of the integrity of our candidates, of our representatives, of our elections, and we're not gonna stand for that. We as representatives are demanding better from our cohort. We are demanding better better for the people of the United States. And people, like you said, these polls, the Brennan Center poll is demonstrating that this is widely understood to be something that we need to tackle as a country. And frankly, I also think it's really powerful to have these bills because you know what, make these people who are supposedly representing us, who are, refusing to vote in favor of these, knowing that their people support it, knowing that the people they represent support it on both sides of the aisle, knowing the damage that these unlimited contributions to super PACs are doing to our elections. Make them go on the record and say, no, I'm still gonna, I'm still gonna oppose this bill, right? No, like, because people need to start looking at what their representatives are willing to stand by. Right. You mentioned Trump in 2015. We know Trump lies. We know he lies to his constituents. We know he lies to the American people. We know he lies about super PACs and claiming it's everybody else who's corrupt while he is again standing in front of the oil industry and saying, well, I'll do what you want, just give me the money. And so make people who support— make Trump— make people who support Trump go on the record. Are you going to vote for this because your people want you to? The people who put you in office wanted you to. You told them that you're for integrity and against. So stand by that. And I think we're seeing that they won't. And that is something to vote for.

But this is why the work that you guys have done, I think, is so important. Because if it's not clear that Citizens United did not create super PACs, if it's not clear that Citizens United and SpeechNow are different cases, and that the Supreme Court has never reviewed speech now. Then when a representative decides not to vote to support Representative Lee's bill, the excuse can be, look, I don't make the Supreme Court decide what the Supreme Court's decided, but I'm gonna respect the law as the Supreme Court has articulated it. It's an excuse for not supporting the law. But when people understand that nothing in the Supreme Court's decision guarantees super PACs, then it really is a choice of the legislator to decide whether that legislator supports the idea of super PACs or not. And so obviously in the Democratic Party right now, you're seeing a big split between those who are happy to have the super PAC money and want to continue to see the super PAC money and don't want to see the Democrats turn it away because they think they're not going to have any money, And Democrats who are completely committed to ending the kind of role of super PACs, whether it be the crypto super PAC, AIPAC, or, you know, the upcoming super PAC, the AI super PAC that is already, you know, pegged to raise $100 million to be in these races to disable Congress's ability to regulate in the context of AI. And so I think what you've done to make this point point as clear as it can be made is to make it harder for them to do the wrong thing. And maybe it's going to be enough, but I know that you're going to be with us if we win demanding that the FEC recognize the law that's on the books right then. And, you know, depending on when we win, it could be a really complicated question. I mean, I think if we get the court to decide this by the close of the term in '27, that's going to be fine for the campaigns coming up in '28. Any time after that, it's going to be hard for the court to decide exactly how their case is going to apply. And so this is why it's so important that we find a way to get the First Circuit to make a decision quick enough so it can get up to the Supreme Court. So are you going to be at the argument at the end of July?

That is my hope. We're going to try to get down there. We'd love to see, we'd love to see that argument. And we're really looking forward to everything that you're going to put forward before the panel, because I think they're going to have a very, very difficult time not hearing the very clear, both kind of factual and legal logic that is on the side of these super PAC prohibitions.

Yeah, I think it's going to be hard. And depending on the panel, it's a great court. They've got a really, they've got a lot of really great judges. So they could get this right, get it right quickly, and we'll be up to the court. And then we'll have another round of a chance to get the right thing done by the Supreme Court. Courtney, I just wanna thank you, and I wanna thank Free Speech for People, the work that, you know, John and Ron Fein, who's obviously no longer with Free Speech for People, did to push this issue forward. And I know we've collaborated a lot to figure out the strategy. You and I both were involved in the effort to get this in Massachusetts. And I think I counted 1,000 pages of briefing we had to do to get this issue in Massachusetts. And it got up to the Massachusetts Supreme Judicial Court. And Ron made, I thought, an absolutely powerful argument to show why under the First Amendment, there was no reason to block us from having this initiative in Massachusetts. And the Supreme Judicial Court said, we're not gonna decide that question. Until you gather signatures. So it was like a million-dollar filing fee. You have to spend a million dollars, gather signatures, and then we'll decide whether your initiative is constitutional or not, which was, I thought, a completely cowardly way to ruin the initiative process. And so we were lucky that Maine doesn't have that process. I went to Maine after our loss and had a dinner with people, including Rick Bennett, who's been a fabulous pro, anti-corruption candidate in Maine. And Ron and Rick Bennett at that dinner said, let's do it in Maine. And so that's why we have this chance to do it in Maine. But you guys have been really critically important in this for a very long time. And I'm grateful as an American and also as someone who's trying to make sure that we win this case finally for the work that you guys have done. But thank you so much for taking time to explain this to us here.

Well, it's been an honor to work with you, be here today and also to work with you on these initiatives and our great conversations around both the big substantive issues and also those procedural issues of Massachusetts, because I think we both agree that that court got the procedural issue wrong. That is not what the court— that is not what the Constitution of the Commonwealth requires when it comes to getting petitions heard. But maybe that's a different podcast. But we're really grateful for the fight that you took to Maine and for all Mainers who supported this. I mean, a breathtaking number of Mainers recognize their interest here in protecting their elections from this kind of quid pro quo corruption. And we're grateful that they came out, and we're grateful for everything you're doing to protect this obviously popular and important ballot measure. And hopefully we'll see this this, uh, build steam across the country.

I'm grateful to you too. Thank you very much, Courtney.

Thank you.

That was episode 3 of the podcast Another Way with Courtney Hostetler. Um, in episode 4, we're gonna talk to Jonathan Ginepp, who is an historian at Stanford and a scholar in the original meaning of the Constitution, and he's gonna help us understand exactly how the framers would have understood their First Amendment and whether their First Amendment would be violated by something like the Maine Initiative. Stay tuned for that. I'm grateful to Josh Elstrow for Elstrow Productions producing these podcasts. You can find an audio version of these podcasts on any platform that carries podcasts and, uh, video platform on YouTube. Thanks so much for listening and watching.