S8E7: Ron Fein

This is Larry Lessig. This is episode number 7 of season 8 of the podcast Another Way by Equal Citizens. And this is a continuation of the conversation we've been having over the whole of this season about the litigation involving Maine's Question 1. the anti-super PAC litigation, which, as you heard, if you heard the last episode, which was the recording of the oral argument in the First Circuit Court of Appeals, was argued incredibly well and leaves us very hopeful. But what I wanted to do in this episode is to talk to really one of the people most responsible for us being here today. friend Ron Fein, who, when I first came to know Ron, he was running Free Speech for People's legal department. He was leading the litigation that was strategizing to try to find a way to get SpeechNow overturned. And we began collaborating on that strategy. But let me just first welcome Ron to the show. And Ron, why don't you tell people a little bit about where you are now? Because you're no longer That's right.

Thank you, Larry. I spent a decade at Free Speech for People as legal director, where I worked on this issue with you and others, and it was very important work. I'm currently a senior legal advisor at Democracy Forward.

Great. So in the context of the work that we conspired on, that you guys have been pushing, you guys had been really the architects to the core argument that we're advancing in this case, the argument that in fact, under Citizens United, there's no reason why you can't limit the size of contributions because contributions create the risk of quid pro quo corruption, even if the expenditures don't. And I have to confess, as I've confessed to you, but now let me just make it as publicly a confession as I can. I originally was eager to find a way to overturn super PACs. imagining we weren't gonna win on this particular argument. I was pushing recognition that under the original meaning of the Constitution, which at least 6 of those justices say they care about, it's obviously clear that we should be able to have an ability to limit the size of contributions. But you and Free Speech for People had been pushing the core argument about quid pro quo corruption. So you originally tried to do this in the D.C. Circuit, right? Tell us a little bit about that case.

Yeah, so this argument, uh, we got, um, in part from Al Alschuler, who's a retired law professor with an expertise in white-collar crime and in particular bribery. And the vehicle that we initially used to challenge it was through the D.C. Circuit itself. And under the Federal Election Campaign Act, anyone can file a complaint with the Federal Election Commission alleging that someone has violated the Federal Election Campaign Act. And we filed a complaint on behalf of bipartisan groups of Democratic and Republican congressional candidates, including sitting members of Congress from both parties. And then the complaint was filed against a collection of super PACs representing both parties as well. And we raised these challenges against them for accepting contributions vastly in excess of the limits that are still on the books in federal law. Even after SpeechNow, it's not being enforced. And we argued that the FEC should find that these were a violation. Now, of course, we acknowledge that it was not currently doing so because of SpeechNow, but that, uh, that this was being set up as a vehicle for a test case. Um, that case ultimately stalled out in the D.C. Circuit, um, where we, we sought an en banc reconsideration of SpeechNow. Um, didn't work. Uh, we then sought, uh, review in the U.S. Supreme Court. Unfortunately, we get there through that case. So the attention then turned to other methods like legislation, such as Maine recently passed through your leadership, that would create a different type of test case.

Right. So then you at that time were pursuing the D.C. Circuit. We at Equal Citizens were trying to take this path through Alaska to get— using a very similar kind of standing vehicle, Alaska gives citizens the ability to complain if their election commission is not enforcing election law. And so a group of citizens in Alaska filed a lawsuit against the commission, basically saying, you're not enforcing the anti-super PAC law. They said, we wish we could, but we can't because of SpeechNow. We brought Jack Rakoff, who's one of the leading historians in America, up to Alaska, and he testified before this district court judge who eventually accepted the view that there should be an ability to regulate, um, in this context. He pointed to our originalist arguments. But then, um, uh, the Alaska Supreme Court overruled it, uh, and we lost in the Alaska Supreme Court. And for complicated legal reasons, that made it very hard to get, um, a decision, uh, into the— get the case into the United States Supreme Court. So both of us had basically struck out on our first effort. Then you and I decided We would try to tee up this question in Massachusetts. Do you remember that? Do you remember that strategy or that conversation that we had about that?

I don't know if I remember the original conversation, but I certainly remember how we proceeded together, joined, not totally united as a single effort, but joined at the hip.

Right, because you were going to pursue the argument that I think is the brilliant, correct argument that's going to win ultimately, the interpretation of Citizens United that gives you a way to limit quid pro quo corruption. We were gonna pursue the originalist argument. So we both joined, we both filed to get an initiative on the Massachusetts ballot. And that Massachusetts initiative would've done what the Maine initiative did. But in Massachusetts, there's a procedure that the attorney general gets to participate in. And that procedure gave the attorney general the ability to block the initiative. And so the Attorney General blocked the initiative because she believed it violated free speech, one of the conditions that exist under Massachusetts law. And so that created the opportunity for us to go to the Massachusetts Supreme Judicial Court, the kind of Supreme Court of Massachusetts, to try to get them to answer the question whether in fact it violated the First Amendment or free speech under Massachusetts law. to regulate contributions to super PACs. It, you know, I think we had to file like 1,000 pages of briefing to eventually get up to that position, to get the Massachusetts Supreme Judicial Court to address the question. And you and I went in and we gave our oral arguments, each of us getting a chance to make our separate arguments to advance this in the Massachusetts Supreme Judicial Court. And then the court eventually refused to address the First Amendment question, saying that we would have to gather signatures on our initiative before they would address the First Amendment question. So it was like a million-dollar filing fee to get the question addressed. But I can still remember, and I posted on our website a number of times, the argument that you gave, which has really inspired me to make this work. because you made an extraordinarily powerful argument to the Massachusetts Supreme Judicial Court to get them to see why this was not Citizens United, why under Citizens United we should be able to win. And I just, and it was a brilliant demonstration of oral advocacy. Again, we're gonna post it on the website so you can watch it as well. But I just want you to walk us through, if you can remember, the hypothetical that you offered to get the court to see why the fact that the expenditures are independent Does not mean that the contribution is independent or the contribution doesn't create a risk of corruption.

Well, thank you for those kind words, Larry, and I do want to again credit Professor Alschuler for having originated the argument. The basic issue is that Citizens United said that independent expenditures can't corrupt, and that is not something that we were challenging or questioning in this case, nor are you in Dinner Table Action, but what that really means is when a super PAC makes Independent expenditures. What that's saying is that the political professionals who run the super PAC, these are people who are by and large anonymous. In the federal system, they probably live in Northern Virginia, maybe in the Maryland suburbs. They come up through the ranks of political campaigns and professionals. Their expertise is in buying media ads, in deciding which social media influencers to pay how much, and how to design campaign advertisements. So the idea is that the spending by those super PAC spenders can't corrupt because those political professionals, if they're following the rules, are not talking to the candidate about where they're going to buy ads. But the truth is, no one really thinks that those political professionals from their condos in Northern Virginia are the ones who are engaging in any corruption with the candidate. Rather, the one who's creating the corruption is the big donor who's giving the money to the super PAC. You can have a scenario where a mega contributor, somebody who's, let's say, a billionaire, can go to the politician and say, I will give you $50 million if you will vote this way on, let's say, the data center bill. That's a quid pro quo transaction. I mean, that could be a bribe under the right circumstances. The super PAC might not even know about that conversation. The political professional who's running the super PAC keeps clean. They're not coordinating with the politician's campaign on, you know, what time to buy radio spots or anything like that, but the super PAC donor is coordinating, so to speak, with the politician on the quid and the quo, the money and the official act that the politician would take in response. And that's how you can have a quid pro quo transaction that creates corruption through a contribution to a super PAC, even if the super PAC spending itself is completely independent.

Right. And, and so it's important to unpack a little bit about the mechanism that's keeping it independent. I'm— I think one of the brilliant lines in Neil's oral argument was, um, to say that Citizens United is perhaps the most misunderstood opinion of the United States Supreme Court, because when the Supreme Court said there's no risk of quid pro quo corruption with an independent expenditure. Most people hear that and they just roll their eyes. They're like, what the frick are you talking about? Somebody spends $10 million to support your candidacy. You're expecting me to believe that they haven't coordinated with the candidate? And the part that Citizens United didn't make as clear as Buckley versus Valeo had made clear is that, well, if in fact they had coordinated, If in fact they had had a conversation about when to spend the money or like where the money's needed most, then the law converts the expenditure into a contribution. And so the point is the $10 million expenditure, which the spender hopes is independent and therefore can't be limited, all of a sudden is a contribution which $10 million wildly exceeds the maximum contribution amount. So you've engaged in an illegal contribution by spending spending that $10 million, and your committee— or if you're just an individual, you yourself— risk prosecution because of that expenditure. So the point is, this is regulated to be independent. And what the court should have said was, if everybody obeys the law, then it's independent and there's no risk of corruption. Because if you're not talking to the campaign, how are you ever going to engage in a kind quid pro quo. So that mechanism is central to Citizens United. But when you switch channels to the donor, which is the point you made so brilliantly in your oral argument following Al Schuler, uh, and, um, Al Schuler wrote an article with, um, uh, with Larry Tribe, my colleague, and Richard Painter, who's on the board of Equal Citizens, and, uh, Norm Eisen, who's a leader in this field, to kind of put this argument together. When you switch to the donor, the same regulation does not apply. The same regulation that converts the donation into a donation to the committee doesn't apply. So I've tried to think about a simple case to make this perfectly clear. So let me try this case on you and you tell me whether this is right. So imagine you've got a rich guy, forget a committee for a second, just a rich guy who says, I wanna make sure that this independent independent candidate for governor in Maine wins. So that rich guy sits down with the independent candidate for governor and says to that candidate, hey, look, I'm gonna support your campaign. I wanna spend $1 million to support your campaign. But I wanna know when it's best to make that spend. You tell me when it's best to make that spend. If that candidate, if that rich guy goes out and spends the money according to what that candidate says is the best time to spend, what happens to that expenditure?

Well, at that point, you've made it into a coordinated expenditure. It's no longer independent because you talked about it. Uh, and so that does create the, uh, the sort of standard, well-accepted, uh, quid pro quo corruption scenario, and it's also a violation of the contribution limits.

Okay, but I want to push you on the quid pro quo thing because It's not necessarily a quid pro quo. It's just a coordination, right? And the point is, the law says if you've coordinated, you don't have to prove it's a quid pro quo. The question is, have you coordinated? And the reason that kind of made sense is that we know if you're not coordinating, you're not going to be engaging in a quid pro quo. If you have engaged in a quid pro quo, you've definitely coordinated. So the point is, um, uh, the point is like they don't require under Maine law or federal law That you prove the quid pro quo. You just have to prove the coordination. So if I prove, if the prosecutor proves that you guys talked about when would the spending be best, and then you went out and spent according to that conversation, that million dollars is a contribution to the candidate. It's not an independent expenditure. And in Maine, the most you can give is I think two thousand dollars to an independent candidate. So the point is. You violated the independent expenditure law. Okay, now switch to the contribution story. They're exactly the same contribution conversation. You say, look, I want to get you elected governor. I understand there's an independent political action committee that's going to be spending money on your behalf. I just want to make sure that the money is there when they need it. So you tell me when it is that it's going to be best for that committee to be spending its money, and I'll make sure they have $1 million in their in their treasury at that point. It's the same conversation, it's the same coordination, but the difference is nothing in the law of Maine or in federal law would say that that donation to that independent political action committee is converted into a contribution to the campaign. So the point is, there's not the same regulation to make sure that it's independent That there is with the independent expenditures, which is why the point you made so powerfully is true: that even if there's no risk of quid pro quo corruption with the expenditure, we don't have anything like the same mechanism to make sure that there's no risk of quid pro quo corruption with the contribution. Which is why the state of Maine should be allowed to regulate the contribution under the under the reasoning of Citizens United, because that. creating a risk of corruption, and the state's allowed to regulate the risk of corruption. Is that, is that a fair summary of the argument then?

I, I think so. And, and a key point when you're talking about super PACs is you're injecting a third party. So with the third party of the super PAC, the, the super PAC managers who are political pros, they can, you know, try and toe the line and make sure that they are not talking to the politician's campaign staff about where to buy ads. But They can't know what the donor is talking to the politician about. They're often not in the room when those conversations happen. Uh, they're just there to, you know, receive checks, deposit them, and then buy, you know, media ads. So they couldn't possibly, uh, police or enforce any laws about, um, the laws that basically don't exist, uh, because they couldn't, uh, really, uh, that would restrict any coordination, so to speak, between the donor and the politician. So that's why The creation of a third party is actually appealing to, uh, to the wealthy donors. They would rather write the check to this super PAC third party rather than get involved in the messy business of deciding how to make their own independent expenditures.

Right. And so that's what they do. But the vast majority of this, all of this money basically is money that's spent through the super PAC because rich people don't want to spend this money on their own. Corporations don't want to spend this money on their own. Corporations discover the high cost of free speech when they go out and they support a candidate, and then all of a sudden they've got protesters on their front door, like telling them, why are you supporting this candidate versus that candidate? So they'd all rather flush it through the dark money structure of super PACs, which is in fact why you've seen the explosion in money inside of super PACs. Now, I wondered if, as you listened to that argument, I take it you share my view that it was a very powerful argument.

Uh, yeah, I mean, look, I don't like to, uh, you know, make, uh, prognostications and predictions, but, but based on that argument, uh, it certainly seemed like, uh, like you and Neil Katyal were, were winning.

Yeah, no, I think that, uh, he, you know, it's not just that we had truth on our side, which is good to have on your side.

Yeah, the judges seemed very responsive.

It's— yeah, because the judges were extremely well prepared. I mean, this is the thing you're always afraid of as you go into one of those arguments, that Especially in a case like this where there are 8 circuits against you. Like, they would just roll their eyes. Why waste my time trying to understand this case? Because, like, it's obvious which way I've got to go. But these judges knew this case down cold. I mean, they knew exactly what the issues were and which questions to probe. And some questions I don't think we, anybody had even thought about. So, like, the whole line of questions, which was asking about whether citizens, whether Buckley had held that independent expenditures are not important to the candidate. And so therefore, whether they would have to treat them as not important to the candidate and therefore not a reason for a quid pro quo was kind of bizarre and new. And, you know, Neil on his feet could basically say, look, you should treat this as a prediction, not as a holding. And then he knew from I don't know how he knew, but he could point to an internet case where the court had basically said, look, the fact that we had predicted this in the past doesn't bind us to what the reality is today. So like, he avoided that completely, which was exactly the kind of skill that a great oral advocate has. So it was the truth, it was the judges, and it was the advocate that made it so important. But I think that one thing that he did, which I, which again, I think is in is a frame— is a way of framing the issue that made it easier for the court to see what he was saying, is he said, look, there are 2 lines of authority thinking about campaign finance regulation. One line of authority is expenditures law, and the other line of authority is contributions law. And expenditures law is quite rigid and quite strict. It's quite probing. And for good reason, because if you're gonna stop somebody from spending money, you're basically stopping them from speaking. And you better have a damn good reason to stop them from speaking, because that's like the core protection the First Amendment has been interpreted to give. But with contributions limits, you're not stopping anybody from speaking. You're stopping them from paying for somebody else to speak. So it's a one-step-removed kind of interest. And so, the rule for contributions law historically has been much more forgiving, much more— much less probing. And part of the reason it's been much less probing is that with donors, it's kind of hard to imagine how you would police more carefully. Like, would you really wanna have the government look at all the emails between the donors and the candidates to see whether there's been some kind of illegal quid pro quo? Um, and, and so instead of allowing that, donor law has typically said, okay, you can just limit the size of a contribution and limit the size of the contribution. If it's low enough, most people are going to say, well, there's no way that he sold his office for $5,000, so therefore I trust that the system is not corrupt if it's $5,000. But if it's $270 million, I'm gonna ask a little bit more probing questions about whether this is in fact been corrupt. So this is the idea of like the appearance of quid pro quo corruption. In a system of unlimited contributions, there would be that kind of appearance. But I think that the framing here, do you think that this is like a good way to get the court to see why one is different from the other and why the mistake SpeechNow made was essentially not understanding that it's a different standard they should be applying here?

Yeah, I mean, this standard comes from the Buckley decision from 1976. It stood for 50 years. Um, I'm not going to say it is the, the best or only way that campaign finance law could have been set up, but it is the way that the Supreme Court has consistently distinguished contributions from expenditures, saying that contributions, when you're just writing a check or putting in your credit card to somebody else, first of all, it has a lower speech value. The court has said it's not a zero speech value because you're still ultimately funding speech and you're associating yourself with the recipient. Um, but it also has a higher risk of, of corruption. And this distinction has remained through every single Supreme Court case. Even the ones that have struck down particular campaign finance laws have reaffirmed that distinction. And a contribution to a super PAC is fundamentally a contribution. And just like a contribution to a candidate or a contribution to a party, it has a much lower speech value than actually spending the money to buy your own ads or print your own flyers, as the case may be, and it creates a higher risk of corruption.

Right. So both of them should argue in favor of being able to regulate here, um, as opposed to, um, in the context of limiting speech. Um, and so this— this— so the puzzle is really why it's taken this long And why these other courts have been so uniform in their conclusion the other way. Indeed, the Second Circuit, when it decided the case that basically was its following SpeechNow, had some passage about, there's, you know, rarely, there's no other issue in federal law that has been so uniformly followed by all these judges, like making it sound like it's It's crazy talk to imagine anything different. And when you tried to go to the Supreme Court in your DC Circuit case, asking the DC Circuit to repeat it, that's what the government cited. They're like, look, this is an easy case. Nobody ever questions it. So how do you understand why they got it so completely wrong and why that might be a reason for the court to reconsider it today?

I think you really need to look at 2 spans of time because time is a decisive factor here. And the first span of time is how quickly SpeechNow itself was decided and the other circuits' decisions. So SpeechNow was argued just a few days after the Supreme Court's decision in Citizens United, at a time when everybody was still processing what that Supreme Court decision meant. And the DC Circuit's decision in SpeechNow came just a few months later, at a time that super PACs hadn't really come into existence. All the other circuits, which were reviewing similar state or local limitations, not limitations specific to Super PACs, because those didn't exist, but rather limitations on contributions to political committees generally that were being challenged by somebody that said they wanted to make an independent expenditure committee. Those circuits decided their cases all within 2 or 3 years after SpeechNow, following very quickly and without much, if any, empirical record. And in fact, what happened was, as a result of that, the modern Super PAC was born, which was very different from what independent expenditure committees, including SpeechNow.org itself, Uh, actually looked like. SpeechNow.org, in the case, it describes, uh, one guy wanted to contribute $5,500, another guy wanted to contribute $6,000, 2 of them wanted to contribute $100 each, um, and then there was one final donor who wanted to contribute much more. And it was this supposedly independent organization, not affiliated with any candidate, with any party, that was just gonna support, um, issues of freedom of speech. What we saw instead was the birth of the modern super PAC, and there's another historical irony, which is that when the Attorney General of the United States decided not to seek Supreme Court review of the SpeechNow decision, he wrote a letter to the Senate Majority Leader explaining why not, because it was basically failing to defend a federal law, and he said that the SpeechNow decision would affect only a small subset of federally regulated contributions. And that is certainly a prediction that did not bear out well, because what we saw after, you know, the SpeechNow decision, after 2012, 2013, when all these other circuits decided, we saw how super PAC money came to become a very large portion, certainly in federal elections. It's, I believe, about 30% on average. In some races, it's The majority, in some cases up to 3 quarters of all the funding spent in particular races, is coming from super PACs, not from candidates or parties. And so what the First Circuit can now look at that those other circuits didn't have the benefit of is, first of all, they're not in quite the compressed timeframe of those immediate post-Citizens United days where there was no evidence, no record. They have the benefit of well over a decade of experience with super PACs in general and with Quid pro quo corruption coming through contributions to super PACs, something that the SpeechNow court said was impossible. People have been indicted. People have, people have gone to prison for contributions to super PACs, which is something that the SpeechNow court said could never happen.

Right. And, um, and, uh, there's a very important moment in that argument in SpeechNow, which I went back and I read the transcript, um, just to understand how they could have gotten it so wrong. And, you know, unfortunately on the panel is Judge Kavanaugh, who now is Justice Kavanaugh. And Justice— Judge Kavanaugh basically asked the question, you know, they were talking, it was asking the government lawyer to explain, like, what the risk of the corruption is. And the government lawyer made this point that you've made so effectively, effectively, that, you know, basically the donor could be engaging with the candidate. And so there would be an opportunity for this quid pro quo. And Kavanaugh said, well, that's the same with an independent expenditure, right? You could have an independent expenditure that's also a quid pro quo. And the government said, right. But what the government should have said was wrong. The difference is that the conversation with the expenditure committee and the candidate changes it into a contribution, whereas the contribution, the conversation with the donor and the candidate doesn't do anything to it. So this is like the core mistake that led them down the path to saying, well, if the Supreme Court says that independent expenditures have to be protected, then everything is going to have to be protected. And the timing, I think, is exactly right. 2013. is the Second Circuit decision. So by 2013, you've got 6 circuits that have basically said independent expenditure committees can't be capped in the size of their contributions. So now you've got essentially a majority of the court, or certainly the most important circuit court, plus these other courts. But 2014 is the first year you begin to see anything like super PACs. I mean, I had a super PAC in 2014, a super PAC to end all super PACs. We had like $18 million. We were a bigwig back then. You know, now it wouldn't even be noticed as a blip. But the point is, like, the idea that in 2014 you would cement in your head the question of whether this was corrupting or not is just crazy. And so what was really valuable in the way the judges were engaging in this question was that they understood times have changed, and they understood the question is like today. And the big difference in this case versus those earlier cases Is that in the earlier cases, every one of those courts said, because there's no risk of corruption with expenditures, uh, there could be no risk of corruption with the contributions. And our district court said, it's not true. It's not true. Yeah, there is a risk of quid pro quo corruption with the contributions. Um, now she went on to craft a whole new theory of the First Amendment to show why, even though there's a risk of corruption, there's nothing the state of Maine can do about it. But it really tees up the court to say, will it follow this mistake by these other 8 circuits simply because the 8 circuits have made that mistake, or will it point out the mistake and go the other way? And I think we were optimistic walking out that they would go the other way. Now, just yesterday, so we're recording this on the 11th of August or the 10th of August. The Court of Appeals asked for additional briefing to address the impact of the Supreme Court's latest case about campaign finance, National Republican Senate Campaign Committee versus the FEC. So I'm not sure whether— how close you are to this, Ron, but can you tell us a little bit about what that case was about?

Yeah, this is a case involving limits to political parties' coordinated expenditures with candidates. So political parties for years had been allowed to— obviously, they could spend unlimited amounts of money on independent expenditures with candidates, which meant that they would— the party operatives would not talk to the campaign staff about exactly how they were spending money. And then they would have smaller funds that they could spend for coordinated expenditures where they would talk about it quite openly. And, you know, anyone who worked on or volunteered on a campaign in the last, you know, 20 or so years knows that, you know, state parties would create a coordinated campaign and label it as such, and they would have a separate budget for that. But it was limited. And this was challenged by the NRSC, and the Supreme Court struck down the limits on coordinated expenditures as violating the First Amendment.

Okay. So it's important to keep in mind these party committees have contribution limits. So there's a maximum amount I'm allowed to give to a party committee. And so that's one, as the court puts it, prophylactic against quid pro quo corruption. Then the second prophylactic against quid pro quo corruption is that the law regulated earmarks. So if I gave my money to a party committee and I said, I want to make sure that this money goes to support Ron Fein's campaign for Senate, that's earmarking. And so that would be deemed a contribution to Ron Fein. It wouldn't be deemed a contribution to the committee. So that's a second prophylactic. And then the third prophylactic was that There's disclosure of any contributions, so you know exactly who's giving what. And then the fourth prophylactic was you could coordinate up to a certain amount. You could spend a certain amount in coordination, and then anything above that you had to do independently. And the belief is the independent spending is less valuable because you can't actually get the timing down exactly right. Okay. So the court said this fourth layer of protection. was not necessary given the first 3. And so it's lopped off the 4th layer and it said, you can coordinate for as much as you're going to spend, uh, because, um, that's still not gonna create a risk of corruption. Um, now, of course, what that left us with was still a system where there's a maximum amount you can give. There's still a contribution limit. And so when you compare that to super PACs, There are two big differences. Number one, there's no contribution limit to the super PACs. There's no contribution first layer of prophylactic. But number two, you can't coordinate. And so the question that was raised by the Court of Appeals in this request for additional briefing is basically, how is it that the court should decide the case about super PACs given the Supreme Court's decision to lop off this final prophylactic, that was protective, that was limiting party committees. And so I'm just, you know, wondering, brainstorming a little bit with you, how would you think about, like, why these 2 cases are distinct and why the court's decision in the NRSC case doesn't mean that the First Circuit can't decide that super PACs can be limited?

I think there are a couple of differences. So, you know, this is all with the heading of, obviously, it would've been great if, you know, That decision in the Supreme Court had come out the other way. But looking at the specifics of it, there are a few distinctions. One is that the court has consistently, and including in this decision, highlighted the special role of political parties as distinct from outside groups, outside committees, where political parties have an intimate relationship with candidates who are often seeking that party's nomination. And to some extent, the whole purpose of a party is to you know, coordinate platforms and positions and so forth with candidates. That's distinct from outside groups. And, um, the court has in recent years given that, uh, something of a constitutional status, that, that distinction. The, the second difference, and this is a huge one, is that the issue in the NRSC case was about expenditure limits. And this is not about expenditure limits. This is about contribution limits. And as you said, there are still contribution limits on contributions to parties, and that's all Maine is trying to do here is impose contribution limits on contributions to independent expenditure committees. And then the final point I would raise is that one interesting theme in the NRSC case is that the Supreme Court looked closely to empirical realities of how things have happened over the past years. They talked a lot about the evolution of the campaign finance system, how things work as a practical matter. They talked about the internet. One thing they highlighted was that there is not much, if any, evidence of quid pro quo corruption coming through the vehicle of contributions to political parties, whereas in the case of Super PACs, you have not just actual examples of people who have been indicted, prosecuted, imprisoned for such corruption, but you also have, importantly, evidence that the public sees it. as quid pro quo corruption, because— and that's important because the appearance of corruption is also a valid governmental interest.

Yeah, I mean, my favorite line in the oral argument in this case was delivered by Noel Francisca, uh, who was a former student of mine. And the basic argument he was making is, look, if you wanted to corrupt, you wouldn't use a party committee, you would use a super PAC. And so it was like recognizing that there's a vehicle for corruption, it just wouldn't be the party committee. And so therefore the party committees should, should have some slack cut in the system. And I got to say that personally, whereas I agree it would be better for our case if it had come down the other way, I kind of agree that party committees have become the kind of, um, you know, orphaned child on the field here. And, and that's really bad for democracy because we should have a vigorous engagement with parties and candidates, because then you could begin to get a coherent policy that's driven by more than just single-issue Super PACs, but when you when the most powerful player in the field is not the party, but instead a super PAC who can come in and say we're going to take out anybody who opposes crypto or we're going to take out anybody who wants to regulate AI—that's a really dangerous reality. But if the party needs to think about what's actually in the interest of the party, which is like a big organization, that's closer to what representative democracy should be worrying about. So I was happy to see the position of parties.

raised.

But I think that the question that people were pushing, and I just wonder what your reaction to this is, is if you look at the care with which the court was unpacking the layers of protection on the expenditure side, and you begin to extend the same level of analysis on the contribution side, You could imagine a different world of contributions law that would actually worry about whether contribution limits are actually the most— actually as necessary as people are thinking. Maybe we shouldn't have contribution limits. We should just have earmarking provisions. Like earmarking provisions would be a good way to avoid quid pro quo corruption rather than contributions limits. Um, and so if you think of yourself as the First Circuit, what should you think about this kind of question, whether the— that half of the case is really consistent with the contribution limit half of the case?

I think a fundamental, uh, principle that emerges from Buckley is that contribution limits are prophylactic. Because, look, most political contributions on average are not part of a bribe or a quid pro quo transaction. And yet Buckley says that you can set a limit on the dollar amount of contributions, even though many of them will be entirely innocent of any corruption. And the reason for that is that is really easy to regulate and enforce and see. It is visible to the public in the state how much somebody contributed. It is a lot harder to find out whether there was an oral earmarking conversation in a room with no microphones in it. And so having these dollar contribution limits, knowing for a That the maximum amount that, you know, some AI CEO can contribute to a super PAC active in Maine or anywhere else to promote their data centers is $5,000, and that $5,001 is an illegal contribution, is far easier to enforce. And it builds public confidence in the system in a way that saying that, you know, we'll have some earmarking provision that will be like almost impossible to investigate, almost impossible to enforce, and will be widely disregarded. Right.

Okay. But so you could— that's certainly true, and that's why they had contribution limits as the prophylactics established 50 years ago. But we've seen a whole string of cases now from this court that have slowly undone a bunch of the protections or the analysis from 50 years ago. And you know that there are gonna be people who are gonna try to argue on the basis of NRSC to unravel other restrictions, like, you know, like unravel the contribution limit on party committees. Why should there be a contribution limit? You know, so you can imagine this working itself out. And so from the perspective of a judge on the First Circuit Court of Appeals, why shouldn't you look at that trend in jurisprudence and say, well, I can see where this puck is gonna be. I should decide this case on the basis of where I can see the puck is gonna be?

Well, I can say as a former clerk for a judge on the First Circuit Court of Appeals, that that is not the way that First Circuit judges or most appellate judges should see their role, to anticipate future Supreme Court decisions that have not yet been made, because you don't know for a fact how they're going to be made. And it is— the Supreme Court has explicitly said that it is their prerogative only to change their law. So on a very simple jurisprudential level, the First Circuit is bound by Supreme Court precedent, Even if they anticipate that it might change in some future year, that's for the Supreme Court itself to change. But they don't also know for a fact that that's how it's going to be. You know, one of the interesting things about the justices of the Supreme Court when it comes to this particular issue is that, you know, I think for some of them, you can anticipate exactly how they're going to come out, but others have taken some more nuanced positions. Chief Justice Roberts, for example, in McCutcheon, um, which is a case that struck down aggregate contribution limits, uh, noted, um, on the side that while independent expenditures have less value to candidates than, um, having the money themselves, they do have some value. And I think that's indicative of the fact that, uh, there is some room for persuasion, uh, even at the U.S. Supreme Court level. And the, the role of the First Circuit here should be to, to look at what the Supreme Court precedent says and make the decision based on Citizens United is the law and RSC is the law, but a general trend of striking down prophylactics in past cases doesn't necessarily indicate how this is going to go because ultimately the contribution limit at issue in Maine is not prophylaxis upon prophylaxis upon prophylactics. Rather, it is a direct limit on contributions that are currently unlimited whatsoever. And, uh, and, and that hearkens much more closely back to Buckley than to some of the more complex laws that the Supreme Court has reviewed more recently.

Right, because Buckley expressly says, um, that, you know, people looking at a system of unlimited contributions can't help but believe that there is corruption going on in that system. Um, and indeed, what was really valuable in this case, even though it was ignored in the district court, was the empirical work that was done by Chris Robertson, Um, using, um, a randomized, uh, vignette study to evaluate, like, when do people think that the system is corrupt? Like, what's the number where they begin to really think the system is corrupt? And kind of surprising both to him and to us was when he did the analysis, which was through extensive interviews of, um, people across the country and then heavily sampled in Maine, it turned out $5,000 was a magical number. Like, once you hit $5,000, The skepticism of the system starts climbing dramatically, and in the world of no contribution limits, almost everybody believes the system is corrupt, which was like the real trigger for Neil's remixing of Hillel at the end, where he said, "If not now, when?" And if not on this record, then what would the record have to be? I mean, you know, you and I have been in this business for a long time. The the polling numbers about the public's view. about corruption in the political system have just gone through the roof. I mean, Brennan last month issued a report that I think on 6 different dimensions found over 90% of Americans believe the system is corrupt. So like, if you can't respond to that, that means you can't respond to anything, because we're never going to get to a point where 100% believe the system is corrupt. And I want to know what the 10% who don't believe it's corrupt are actually thinking right now. But this has got to be as strong as it possibly can And so I think there's a real reason to be hopeful. And I would say to the, you know, if the court's thinking about this, you know, we advanced the originalist argument that, you know, we tried to make in Massachusetts and which we made in Alaska. And here too, we're in the case because the state of Maine is a little bit like Free Speech for People. They didn't wanna be making the originalist argument. So they were like, we're happy that you joined the case as intervenors to make that argument. But Neal was quite explicit in saying to the court, you can't decide this case on the basis of the originalist argument. And one thing NSR— NRSC was clear about was that the only justification would be a quid pro quo justification. So our effort to get them to acknowledge what we call dependence corruption is just ruled out. But what we were saying is you should decide the case and also acknowledge that the court has never yet considered the originalist argument in the context of campaign finance, and that it should. And that if it did, it would find another reason to hold that this law was constitutional. I kind of think that same move should be made by the other side about this argument that implicit in NRSC is this further unraveling of Supreme Court doctrine, especially in the prophylactics rules context. Yes, Maybe the next time the court gets a case, it'll say, yeah, this whole prophylactic stuff is just too much gobbledygook and we ought to protect free speech. Maybe they will do that. But right now, the law is prophylactic limits on contributions are constitutional as long as there's some reason to believe there's a risk of corruption. And there's clearly that here. So the court ought to say, here are 2 potential arguments that might You know, one leads to reaffirm what we've concluded, the other might lead in the other way, but we are constrained by what the law is today. And NRSC had no quibbles with limits on the contributions to the party committees because they don't quibble with the basic framework of Buckley and Citizens United, that as long as there's a risk of corruption, you get to regulate. Okay, we've been going for an hour, which is our limit. But I just wanna end by again saying to you, Ron, you know, you are a brilliant lawyer and you gave really one of the best oral arguments I could have imagined in our effort to get the Massachusetts Supreme Judicial Court to take up this issue. I'm kind of glad we lost because I'm kind of glad we went to Maine because Maine is a beautifully purple state. And the fact that 600,000 Mainers voted with us, the most that have voted for anything in the history of Maine, made it a stronger argument than if we had won in the courts without ever having an initiative in the state of Massachusetts. So it's good to have lost that, but we shouldn't have lost that because your argument was slam dunk, absolutely brilliant, and should have prevailed. But ultimately it will prevail. And, um, because you were so persuasive, I committed that we're gonna fight this until we win it.

And, uh, we might have a chance now to win it, but I'm grateful to you for Thank you so much for the kind words, Larry, and thank you for your leadership in getting this through Maine because it is not easy to pass a ballot initiative. And even as popular as this one turned out to be with its record-setting number of votes, it was a ton of work, I know, to get it done.

Yeah, well, we're hopeful now. Okay, so I'm grateful. We're gonna end this podcast now. I'm not sure if there's gonna be another episode, but I wanna just say in conclusion to thank Our producer of this, uh, who is Josh Elstroh of Elstroh Productions. And these podcasts are supported by Equal Citizens. As we learn more about this case, we will continue to cover it. I'm not sure whether we'll have a new season or we'll just continue this season. But stay tuned, share the podcast, share the hope, because reality is most people think there's no hope here. Most people think this is, uh, just wishful thinking to imagine the Supreme Court. Will decide in our favor. But I keep on saying to them, show me where we're wrong, not just on the law, but on the politics, because we're right on the law. But on the politics, why would the Supreme Court want to rule against us? Because we're giving them a gift. We're saying to the Supreme Court, you get to write an opinion that says, no Bernie Sanders, there's nothing wrong with Citizens United. We believe in Citizens United and we reaffirm it. But nothing in Citizens United blocks the ability to limit the size of a contribution where there's a risk of corruption. And look at all the evidence that have been presented here that there is a risk of corruption. So Citizens United is right. Speech Now is wrong. Super PACs are a thing of the past, and the whole country will rise up and say, huzzah for the Supreme Court. So on the politics, on the institutional politics, on the law, we're right. And I think there's a reason then to be hopeful here. So stay tuned for that hope. And thanks so much for following and supporting the work of Equal Citizens and Protect Democracy Now!, which is where Ron is. And— Democracy Forward. I'm sorry, Democracy Forward. And also the great work of Free Speech for People, which is where Ron spent a decade of his life. They've been inspirational in getting this issue covered. In the right way, and they're now trying to get a law passed in Congress to double down on what we did in Maine. So thanks and stay tuned, and this is the end of our episode.