Latest / rationally BASED / Episode 31 | Who Writes the Rules of the Game?

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Episode 31 | Who Writes the Rules of the Game? · rationally BASED

• 0:00
  SPEAKER_03: Welcome back to Rationally Based, a podcast about law and politics on the edge.
• 0:04
  SPEAKER_03: I'm your host, Elon Worman, a law professor at the University of Minnesota Law School.
• 0:07
  SPEAKER_00: I'm Catherine Johnson with Center of the American Experiment.
• 0:10
  SPEAKER_02: And I'm Joshua Kleinfeld, a Rouse Professor of Law at Scalia Law School, George Mason University.
• 0:16
  SPEAKER_02: Katherine, what's on deck?
• 0:18
  SPEAKER_03: Lots of elections.
• 0:19
  SPEAKER_00: Lots of elections.
• 0:20
  SPEAKER_00: First, we'll catch you up on the 6-3 campaign finance decision.
• 0:24
  SPEAKER_00: The Supreme Court decided at the end of the term.
• 0:26
  SPEAKER_00: Also, why Citizens United was obviously right.
• 0:30
  SPEAKER_00: Second, we will also revisit the meaning of election day in the Supreme Court's decision there.
• 0:35
  SPEAKER_00: And third and final, Trump's executive order directing DHS and USPS to ensure integrity in the mail-in ballots for federal elections.
• 0:44
  SPEAKER_00: It's already been enjoined even though the agencies haven't done anything yet.
• 0:48
  SPEAKER_00: Can they do that?
• 0:49
  SPEAKER_03: Let's dive in.
• 1:04
  SPEAKER_03: All right, Catherine, before we dive in, I just want to remind everybody, please hit that like and subscribe button.
• 1:11
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• 1:12
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• 1:18
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• 1:25
  SPEAKER_03: The early support really, really, really, really helps.
• 1:28
  SPEAKER_03: Um, okay, Catherine, where should we start?
• 1:30
  SPEAKER_00: Uh let's start with campaign finance.
• 1:33
  SPEAKER_00: This was a big decision at the end of the term, and it goes all the way back to Citizens United, which we've mentioned a few times on this podcast, so we might as well finally get into it.
• 1:44
  SPEAKER_00: Um well, in a six-through decision last month, the NRSC, the National Republican Senatorial Committee, versus the FEC, the Federal Election Commission, the Supreme Court struck down limits on the amount a political party can spend in coordination with a political candidate.
• 2:03
  SPEAKER_03: Uh so uh, like a lot of the big cases, this one requires background.
• 2:09
  SPEAKER_03: And we've been talking before the show.
• 2:11
  SPEAKER_03: I know Josh has a lot of thoughts about campaign finance, but before we get to those big thoughts, Josh, why don't you tell us a little bit about the McCain Feingold Act and what led up to Citizens United?
• 2:21
  SPEAKER_03: I'd like to start with Citizens United before diving into the recent decision from last month.
• 2:27
  SPEAKER_02: Yeah, I I think that makes sense.
• 2:28
  SPEAKER_02: And, you know, uh big constitutional decisions that overturn statutes, you've got to start with the statute.
• 2:35
  SPEAKER_02: So the statute in question is the Bipartisan Campaign Reform Act of 2002, better known as McCain Feingold.
• 2:42
  SPEAKER_02: And the aim of the McCain Feingold Act was to reform campaign finance, to reduce the place of money in politics, level the playing field so that wealthy don't have wealthy persons don't have undue influence over elections or after elections on politicians' behavior, make sure politicians don't spend all their time chasing dollars, et cetera, et cetera.
• 3:02
  SPEAKER_02: All of this sounds very sensible.
• 3:04
  SPEAKER_02: But the problem is that in politics, spending money is part and parcel of speaking.
• 3:11
  SPEAKER_02: Someone's got to pay for the ad or the flyers or whatever.
• 3:15
  SPEAKER_02: So anytime you limit spending, you limit speaking.
• 3:18
  SPEAKER_02: And in fact, spending money itself is often how people just express themselves.
• 3:23
  SPEAKER_02: Uh, you know, giving money to a candidate or a party is itself an expressive act for many people.
• 3:30
  SPEAKER_02: So money is both necessary to speaking and be and can be thought of as a kind of speaking itself.
• 3:35
  SPEAKER_02: I mean, think about this podcast, right?
• 3:37
  SPEAKER_02: We're speaking here.
• 3:38
  SPEAKER_02: This is core-protected First Amendment activity, but it costs money.
• 3:42
  SPEAKER_02: It costs money for the microphones and the production and all that kind of thing.
• 3:46
  SPEAKER_02: So somebody's spending money when we do speaking in in the public sphere in America.
• 3:51
  SPEAKER_02: Well, the First Amendment provides Congress shall make no law abridging the freedom of speech.
• 3:56
  SPEAKER_02: And at the volcanic center, the molten core of the First Amendment is the right to speak out about politics.
• 4:03
  SPEAKER_02: So how do you limit spending without thereby limiting speaking?
• 4:07
  SPEAKER_02: How do you reduce the influence of wealth on politics without stopping people from expressing their views?
• 4:13
  SPEAKER_02: And that is a hard question.
• 4:15
  SPEAKER_02: It's a reasonable question.
• 4:16
  SPEAKER_02: I think McCain Feingold can be seen as an effort to answer that question that proved to be just a sort of noble failure.
• 4:26
  SPEAKER_03: So can you go more into detail though about specifically what McCain Feingold did?
• 4:31
  SPEAKER_03: Now, Catherine, I'm gonna have you set up the case, Citizens United, because it's so fun about Hillary the movie.
• 4:37
  SPEAKER_03: But Josh, McCain Feingold had these two pieces, right?
• 4:39
  SPEAKER_03: It had this ban on electiering communications, right?
• 4:43
  SPEAKER_03: That there was a limit on how much corporations, right?
• 4:47
  SPEAKER_03: How much corporations could spend.
• 4:48
  SPEAKER_03: And then there also was something about soft money, and I think Citizens United was about the former issue rather than the latter.
• 4:54
  SPEAKER_03: Why don't you explain McCain Feingold?
• 4:56
  SPEAKER_02: So McCain Feingold had two pieces that were particularly kind of constitutionally controversial.
• 5:01
  SPEAKER_02: A ban on certain issue ads, which were called electioneering communications.
• 5:06
  SPEAKER_02: And those were communications, I believe, tied to a specific candidate that were funded by corporate or union money in the months immediately before an election.
• 5:17
  SPEAKER_02: So it was an effort to make sure, you know, Coca-Cola or whatever can't fund ads that favor a certain candidate in the months immediately before an election.
• 5:27
  SPEAKER_02: And the other ban was the ban on what they call soft money, unlimited contributions from individuals, corporations, and unions, you know, so natural persons or artificial persons to national parties as opposed to political candidates.
• 5:41
  SPEAKER_02: So it limited how much, you know, the Teamsters or Coca-Cola or you and I can give to the Democratic Party or the Republican Party.
• 5:50
  SPEAKER_00: And in Because there weren't limits on that already, there are limits when you donate directly to a candidate.
• 5:56
  SPEAKER_00: I think that's crucial too, because that's what they were trying to get around someone donating to the party and then saying, use this on this candidate.
• 6:03
  SPEAKER_00: And if they did it that way, they could basically surpass the limits that were already in place for donating to a candidate.
• 6:08
  SPEAKER_02: Yeah, exactly.
• 6:09
  SPEAKER_02: Yeah, precisely.
• 6:10
  SPEAKER_02: And so when George W.
• 6:12
  SPEAKER_02: Bush, the president at the time, signed McCain Feingold into law, he said he had, and I'm quoting from a signing statement here, he said he had reservations about its constitutionality, particularly with respect to the issue ads and the soft money.
• 6:26
  SPEAKER_02: And he quote, expects that the court will resolve these legitimate legal questions as appropriate.
• 6:32
  SPEAKER_02: And so the, you know, for immediately the conservative legal community said, so why did you sign it, right?
• 6:38
  SPEAKER_02: If you think this is unconstitutional, don't you have a constitutional duty not to sign it?
• 6:43
  SPEAKER_02: But he did sign it and said the courts will straighten it out.
• 6:46
  SPEAKER_02: And they've been straightening it out for 25 years now, still going.
• 6:49
  SPEAKER_02: Latest one was a couple months ago.
• 6:51
  SPEAKER_03: Well, Josh, do members of Congress have a constitutional duty to read the legislation before they enact it?
• 6:57
  SPEAKER_03: Because what is it that Nancy Pelosi said?
• 6:59
  SPEAKER_03: We have to pass it to find out what's in it.
• 7:01
  SPEAKER_03: You know, so at least George Bush read it, you know, before he signed it and expressed his constitutional reservations.
• 7:07
  SPEAKER_03: Okay, Catherine, uh, Citizens United, who are Citizens United and what video were they trying to publish?
• 7:12
  SPEAKER_03: This is just so much fun.
• 7:13
  SPEAKER_00: Okay, so Citizens United was a conservative, is a conservative nonprofit organization.
• 7:18
  SPEAKER_00: In 2008, it produced this 90-minute documentary called Hillary the Movie.
• 7:24
  SPEAKER_00: That was highly critical of uh then Senator Hillary Clinton during her campaign for the Democratic presidential nomination.
• 7:32
  SPEAKER_00: The group wanted to make the film available through cable video on demand and to air television ads, promoting it within the 30-day window before the primaries.
• 7:43
  SPEAKER_00: Uh, but the McCain Feingold Act prohibited corporations from using general treasury funds for those kind of electioneering communications in that window.
• 7:51
  SPEAKER_00: Specifically, I think it was like 60 days before a primary, 30 days before an election, or vice versa, something like that.
• 7:58
  SPEAKER_00: So the question is, was this law abridging speech?
• 8:02
  SPEAKER_00: It seems to me, obviously, yes, because uh they want to run this documentary about Hillary Clinton.
• 8:09
  SPEAKER_00: Why not?
• 8:10
  SPEAKER_00: Um, I guess the question is, is money speech, first of all?
• 8:14
  SPEAKER_00: And the other question is, are corporations entitled to the same speech rights as a person like I would be?
• 8:23
  SPEAKER_03: Okay, so let me back up and do some legal doctrine, and then we can get sort of into this bigger discussion.
• 8:29
  SPEAKER_03: Uh so I think Citizens United was obviously right as a matter of constitutional law, and I'll explain why, and then we can have sort of this discussion about whether that's actually a good thing or not to have corporations you know spending all of this um money.
• 8:44
  SPEAKER_03: But before I even get into sort of like the originalist answer here, the textual answer here, uh, as a doctrinal matter, uh both the 6-3 decision, uh, NRSC V F E C and the Citizen that the Supreme Court decided last month and the Citizens United decision, were decided against this deep sort of substructure of like half a century of legal doctrine.
• 9:05
  SPEAKER_03: And there are distinctions, and I think Catherine, you actually mentioned some of these distinctions already earlier between independent expenditures, how much you can just spend on election ideas and your own policy ideas and your own advocacy ideas, and then how much you can contribute directly to a candidate.
• 9:21
  SPEAKER_03: And then if you do engage in independent expenditures, there is a question, you know, there's a distinction between coordinated expenditures and uncoordinated, right?
• 9:30
  SPEAKER_03: You don't want to necessarily coordinate with a candidate because that could be seen as a contribution uh to that candidate.
• 9:36
  SPEAKER_03: Now, the Supreme Court had long held, uh, and we'll get into the doctrine about this, but some speech restrictions are okay.
• 9:44
  SPEAKER_03: Uh and in this case, uh speech restrictions are okay if they prevent actual corruption.
• 9:51
  SPEAKER_03: Let me just stop there for a moment.
• 9:53
  SPEAKER_03: This actually is obvious, right?
• 9:55
  SPEAKER_03: Uh you know, you commit speech, a speech act when you engage in bribery, uh, when you lie and mislead, and you commit a fraud for the purpose of taking money from somebody.
• 10:05
  SPEAKER_03: Those are speech acts, but they're also, in a way, conduct or they're incident to certain conduct.
• 10:12
  SPEAKER_03: Not all speech is protected.
• 10:14
  SPEAKER_03: So you can prohibit bribes, you can prohibit actual corruption, a quid pro quo, but you could also prohibit the appearance of uh corruption.
• 10:22
  SPEAKER_03: Okay, so that was that substructure.
• 10:24
  SPEAKER_03: And uh in Justice Kennedy's uh 5-4 opinion in Citizens United, it was very meandering, it was long, I think it was like a hundred pages uh long.
• 10:34
  SPEAKER_03: Uh he kind of went into you know uh this sort of deep substructure, and they concluded after 100 pages or so of analysis that Citizens United um has a right to publish um uh this video about Hillary Clinton.
• 10:49
  SPEAKER_03: Uh now, let me just make the originalist case very briefly.
• 10:54
  SPEAKER_03: I hate when the Supreme Court publishes hundred-page decisions that pisses everybody off.
• 11:00
  SPEAKER_03: Am I allowed to say that on this show?
• 11:01
  SPEAKER_03: That's kind of vulgar.
• 11:02
  SPEAKER_03: That upsets everybody, okay?
• 11:04
  SPEAKER_03: I don't know, I think that's vulgar, okay?
• 11:06
  SPEAKER_03: That upsets everybody.
• 11:08
  SPEAKER_03: We're a family-friendly show, okay, but that upsets uh everybody when they could just do a two-paragraph opinion, okay?
• 11:15
  SPEAKER_03: So here's the two-paragraph opinion.
• 11:18
  SPEAKER_03: And let me try this on you, Catherine.
• 11:20
  SPEAKER_03: Catherine, can the New York Times, the New York Times, spend money to publish and promote an editorial on election day promoting a particular candidate?
• 11:30
  SPEAKER_00: Oh, yes.
• 11:32
  SPEAKER_03: The freedom of press, if nothing else, right?
• 11:35
  SPEAKER_03: Okay, and in fact, there is a case called Mills v.
• 11:38
  SPEAKER_03: Alabama from 1966 that basically says this.
• 11:41
  SPEAKER_03: So Alabama had a statute that made it, I think it was a crime, for a newspaper, okay, to publish an editorial on election day, supporting or opposing a particular candidate.
• 11:52
  SPEAKER_03: I mean, this sounds insane.
• 11:54
  SPEAKER_00: Our newspapers today would go wild, by the way.
• 11:56
  SPEAKER_00: This is like all they do is publish, you know, things to influence elections.
• 12:00
  SPEAKER_00: Carry on.
• 12:00
  SPEAKER_03: And that's the point.
• 12:01
  SPEAKER_03: That's the point.
• 12:02
  SPEAKER_03: I I mean, historically, there was no objective news industry.
• 12:05
  SPEAKER_03: They were all political newspapers.
• 12:07
  SPEAKER_03: Like it was there were federalist newspapers and there were anti-federalist newspapers.
• 12:11
  SPEAKER_03: Anyway, that's a little bit of a digression.
• 12:13
  SPEAKER_03: But the editorial was published on election day urging for the votes of a particular candidate, uh, and they were charged under the law.
• 12:19
  SPEAKER_03: And the Supreme Court unanimously said you cannot criminally charge them for publishing on Election Day, that is the freedom of the press.
• 12:27
  SPEAKER_03: Okay.
• 12:28
  SPEAKER_03: Catherine, is the New York Times a corporation?
• 12:32
  SPEAKER_03: Yes.
• 12:33
  SPEAKER_03: Yes, yes.
• 12:34
  SPEAKER_03: Does the New York Times as a corporation spend money to promote and distribute its content?
• 12:39
  SPEAKER_00: Yes.
• 12:40
  SPEAKER_03: Yes, okay.
• 12:40
  SPEAKER_03: So if that's true.
• 12:43
  SPEAKER_03: Yes, you pass.
• 12:44
  SPEAKER_03: If the New York Times, a corporation, can publish an editorial on Election Day, then why can't a private nonprofit corporation, say, Citizens United, publish an editorial in the form of a documentary about a political candidate?
• 12:59
  SPEAKER_03: In other words, legally, doctrinally, it doesn't seem to me that there is a legal, legitimate distinction between a corporation like the New York Times and Citizens United, also a corporation.
• 13:09
  SPEAKER_03: And so it seems to me uh that that this decision could have been an easy two-paragraph opinion, kind of along the lines of Law Professor Michael McConnell has an art article.
• 13:18
  SPEAKER_03: Um I think it's called Citizens United and the Press Clause, being like, it's the freedom of the press.
• 13:22
  SPEAKER_03: Uh and I think uh uh Citizens United is a much maligned, unnecessarily unfairly maligned decision from a constitutional perspective.
• 13:31
  SPEAKER_00: Yeah, I you pulled out some quotes from the oral arguments, and they're really interesting.
• 13:36
  SPEAKER_00: They're basically asking the government, could you ban um books about Hillary Clinton from coming out right before the election day?
• 13:43
  SPEAKER_00: And the government basically said, yeah, sure.
• 13:46
  SPEAKER_00: You can restrict how a corporation must raise funds and pay for the publication of the book, which I think shows how kind of absurd this is.
• 13:55
  SPEAKER_03: Yeah, uh people say that that was sort of the moment, if you were there at Oral Argument, that you knew the government lost the case.
• 14:00
  SPEAKER_03: Now, to be fair, to be fair to Obama's lawyers, they didn't say you could ban the book.
• 14:06
  SPEAKER_03: You could just say you can't pay to promote it.
• 14:09
  SPEAKER_03: But as Josh said at the sub, they're kind of the same thing, right?
• 14:13
  SPEAKER_03: I mean, like money is necessary for speech.
• 14:16
  SPEAKER_03: But the point about books, let me actually make this one last point, suggests um why the freedom of press is really the clause at issue here.
• 14:25
  SPEAKER_03: Uh so there's a debate in the academic literature over whether the freedom of press is a special protection for the institutional press.
• 14:34
  SPEAKER_03: Like only like the New York Times and the Wall Street Journal and the Washington Post get special protections under the freedom of the press.
• 14:41
  SPEAKER_03: Or is this a right that belongs to everybody?
• 14:44
  SPEAKER_03: Is freedom of the press really the freedom to use the printing press?
• 14:49
  SPEAKER_03: That is the medium of communications that happens to exist.
• 14:53
  SPEAKER_03: So the freedom of the press, um so Eugene Volick, uh formerly a professor at UCLA Law School, now the Hoover Institution, has what I still think is the definitive article on this, where he shows that at the founding, the freedom of the press was this technological right of every person to use the medium of communications.
• 15:11
  SPEAKER_03: So I pulled one quote up from Blackstone, William Blackstone, commentaries on the laws of England, hugely influential.
• 15:18
  SPEAKER_03: Quote Every free man has an undoubted right to lay what sentiments he pleases before the public.
• 15:24
  SPEAKER_03: To forbid this is to destroy the freedom of the press.
• 15:28
  SPEAKER_03: Every free man.
• 15:29
  SPEAKER_03: In other words, the freedom of speech is what we're doing now speaking to each other, speaking outside.
• 15:34
  SPEAKER_03: The freedom of the press is to publish our ideas and disseminate them through print, through TV, through radio, and uh that's really what's at issue here, and that's why there is no distinction between Hillary the book and Hillary the movie.
• 15:49
  SPEAKER_03: Let me say one last thing about uh the Eugene Volk article, and then Josh, uh I want to get your thoughts on Citizens United, because I think you are a bit more of a skeptic, actually.
• 15:58
  SPEAKER_03: Uh this is the rationing-based podcast, and so we have uh diverging views.
• 16:02
  SPEAKER_03: Um just because we've been talking about academia a lot and you know the proper way to like approach other scholars' work, um, a lot of people have attacked Eugene Volick very, very viciously, too.
• 16:14
  SPEAKER_03: Um there's an adjunct professor at Fordham who's viciously attacked his article and says weird things like, you know, he barely has any sources, no methodology.
• 16:23
  SPEAKER_03: And let me just say that like when you dig down into that criticism, he's like, oh, Volk just has 18 sources from the decade before the founding.
• 16:30
  SPEAKER_03: Well, 18's a lot.
• 16:32
  SPEAKER_03: Like, how many sources do you have saying the opposite?
• 16:34
  SPEAKER_03: And then you increase like the decade after the founding, it's 30 more sources.
• 16:39
  SPEAKER_03: So you got 50 sources all saying this stuff.
• 16:41
  SPEAKER_03: How many sources do you have?
• 16:43
  SPEAKER_03: I don't know.
• 16:43
  SPEAKER_03: I just think Eugene Volk's uh paper has withstood the test of time.
• 16:47
  SPEAKER_03: And I just don't quite understand, Josh, this is maybe for you.
• 16:50
  SPEAKER_03: Why academics are so vicious in the way they attack, you know, just like show, don't tell, right?
• 16:56
  SPEAKER_03: Um, you know, show that you think his sources don't say what he says or that there's contrary sources, but don't just say he misunderstood this, he misconceived that, he committed malpractice there, and that you know, I just uh don't understand that approach.
• 17:09
  SPEAKER_03: But okay, that is all I wanted to say about Citizens United and Legal Academy.
• 17:14
  SPEAKER_03: Josh, what do you think about Citizens United?
• 17:17
  SPEAKER_02: So one of the things I love about our podcast is we discover, I mean, for the audience, we often discover that we disagree about things and we didn't know beforehand that we disagreed about things.
• 17:28
  SPEAKER_02: Like when we're prepping the episode, it turns out Elon and I really disagree about Citizens United.
• 17:35
  SPEAKER_02: And uh, I think this is gonna be one of those cases where we're both like the knights errant, kind of asking for Catherine's favor.
• 17:43
  SPEAKER_02: So let me see if I can convince Elan, but also Catherine, of my view.
• 17:48
  SPEAKER_02: So I disagree with Elon's sort of full-throated originalist endorsement of Citizens United.
• 17:54
  SPEAKER_02: You know, McCain Feingold when overshot when it restricted small nonprofits aimed at political advocacy.
• 18:02
  SPEAKER_02: But McCain Feingold was aimed at a real problem, which is the massive power of corporate America being enlisted on one side of politics.
• 18:12
  SPEAKER_02: Think of Disney spending heavily to promote the trans movement and fight Republican legislation in Florida schools, or the broader corporate embrace of BLM and Me Too and gender ideology, and coming to the very brink of endorsing particular candidates in just the last few years.
• 18:30
  SPEAKER_02: I mean, Disney and Citizens United, the nonprofit, are both technically corporations, but they are not alike in anything but the most formalist reading of the law.
• 18:41
  SPEAKER_02: Citizens United is a relatively small group of natural persons who banded together to express a political view.
• 18:50
  SPEAKER_02: The nonprofit is their expressive vehicle.
• 18:53
  SPEAKER_02: Disney or Coca-Cola or Budweiser or Google or whatever are massive publicly traded corporations with vast wealth based on the things they own and sell and their access to the public capital markets.
• 19:06
  SPEAKER_02: They're not formed for political purposes.
• 19:09
  SPEAKER_02: They're formed for profit.
• 19:10
  SPEAKER_02: They get certain privileges because they're formed for profit and we want them to compete in the marketplace.
• 19:16
  SPEAKER_02: Well, we want them to win in the marketplace and to make huge wealth for their shareholders.
• 19:22
  SPEAKER_02: But the point was never to give them political power, and there's no principled reason they should be able to convert their huge wealth by selling that they got from like selling movies or burgers or whatever into political power.
• 19:35
  SPEAKER_02: And there's also a structural problem.
• 19:37
  SPEAKER_02: You know, big public corporations are nominally under the control of their shareholders, but functionally under the control of management.
• 19:45
  SPEAKER_02: So what's really going on in these instances that we've seen so much of in recent years is progressive management using other people's money, shareholder capital, for their own expressive purposes.
• 19:58
  SPEAKER_02: So at Disney, for example, you have like 800,000 named shareholders.
• 20:04
  SPEAKER_02: 4,000 of those are institutional shareholders, like BlackRock or Vanguard, where all of us have like our 401ks, and they represent those institutional shareholders, they have millions of indirect shareholders.
• 20:17
  SPEAKER_02: So you have millions of people, directly or indirectly, holding stock at Disney.
• 20:23
  SPEAKER_02: It is ridiculous to suggest that those millions of people are speaking when Disney opines about politics.
• 20:31
  SPEAKER_02: That's not at all what happens.
• 20:33
  SPEAKER_02: There's management who control Disney, and they could spend their own money, which is considerable, to advocate for their political views and more power to them if they want to do that.
• 20:43
  SPEAKER_02: But they prefer to spend corporate money, shareholders' money, which is under their control.
• 20:49
  SPEAKER_02: So what we're seeing here is just a managerial class in control of the corporation using it as an instrument of power that happens to be under the managerial class's disposal.
• 21:01
  SPEAKER_02: And the scale of that power is so massive that it is sufficient to create an oppressive society.
• 21:08
  SPEAKER_02: You might have an issue that is 80-20 on one side, maybe on the conservative side.
• 21:14
  SPEAKER_02: But if the managerial class is on the other side, corporations collectively can make a noise so loud that it'll seem as though the whole country is shouting at you every time you turn on the TV or walk into a store.
• 21:27
  SPEAKER_02: Okay, there's a word for that phenomenon.
• 21:30
  SPEAKER_02: The word is propaganda.
• 21:32
  SPEAKER_02: And it's skillful propaganda.
• 21:34
  SPEAKER_02: You know, these companies have the most advanced techniques of mass manipulation at their disposal.
• 21:42
  SPEAKER_02: And if they don't, they buy those techniques of mass manipulation.
• 21:45
  SPEAKER_02: And like all propaganda, it makes the daily experience of American life incredibly oppressive.
• 21:51
  SPEAKER_02: This is not hypothetical.
• 21:53
  SPEAKER_02: We've got amnesia because corporations have backed off their naked political advocacy since essentially November 2024, when Trump won the second time.
• 22:03
  SPEAKER_02: But that's less than two years.
• 22:05
  SPEAKER_02: Remember the five or 10 years before that?
• 22:08
  SPEAKER_02: Corporations got really involved in politics.
• 22:11
  SPEAKER_02: They were almost exclusively on the left.
• 22:14
  SPEAKER_02: A whole lot of the older generation was sort of like saying in disbelief, like, I thought corporations were Republican.
• 22:21
  SPEAKER_02: What happened?
• 22:22
  SPEAKER_02: And the younger generation was like, we can't live with a society this oppressive.
• 22:26
  SPEAKER_02: I remember going around giving lectures about how corporations are not as different from universities as everyone thought.
• 22:33
  SPEAKER_02: They're just as biased, uh, they're just as one-sided, and about how private power can be as oppressive as state power.
• 22:40
  SPEAKER_02: So, what is Citizens United essentially saying?
• 22:43
  SPEAKER_02: It's saying, hey, America, you can't regulate this phenomenon by ordinary democratic law.
• 22:50
  SPEAKER_02: You can't tell corporations, you know, go sell French fries and knock off the political propaganda.
• 22:56
  SPEAKER_02: Budweiser is not the piggy bank of woke executives to make themselves look noble in their social circles without spending a dime of their own money, right?
• 23:06
  SPEAKER_02: Go back to that George W.
• 23:08
  SPEAKER_02: Bush signing statement.
• 23:09
  SPEAKER_02: So when, I mean, listen, he should have not signed into law a statute that he thought was unconstitutional.
• 23:16
  SPEAKER_02: But he said something really wise in it, and I'm gonna quote it: quote, unions and corporations often take political action without the consent of their members or shareholders, so that the influence of these groups on elections does not necessarily comport with the actual views of the individuals who comprise these organizations.
• 23:34
  SPEAKER_02: I would have preferred a bill that included a provision to protect union members and shareholders from involuntary political activities undertaken by their leadership.
• 23:45
  SPEAKER_02: Okay, that's wisdom.
• 23:47
  SPEAKER_02: Actually, that's fire from 2002.
• 23:50
  SPEAKER_02: And one more thing.
• 23:51
  SPEAKER_02: I'm just gonna stop in a second.
• 23:53
  SPEAKER_00: Can I interrupt and have you gone through one thing?
• 23:55
  SPEAKER_00: I feel like you just said something that to me sounds counterintuitive because you mentioned Budweiser.
• 24:02
  SPEAKER_00: Think of what happened with Bud Light.
• 24:04
  SPEAKER_00: And when they came out and did their woke thing with Dylan Mulvaney, the shareholders, or maybe the consumers rather, were so appalled by that political action that their stock tanked.
• 24:16
  SPEAKER_00: They had to fire all these people.
• 24:18
  SPEAKER_00: There were videos going viral of people being like, you know, scanning over the beer, would never buy their.
• 24:26
  SPEAKER_02: Yes, when all of corporate America, I mean, including like the NFL and the NBA, of course, Sports America, and when all of corporate America went hard progressive, there was a little bit of, you know, customer pushback against Budweiser that got them to back down.
• 24:45
  SPEAKER_02: Is that a strategy for America to contend with vast corporate wealth?
• 24:50
  SPEAKER_02: No.
• 24:51
  SPEAKER_02: It happens every once in a while in exceptional circumstances.
• 24:55
  SPEAKER_02: It is not a strategy.
• 24:56
  SPEAKER_02: A strategy is a democratic country getting together and saying, as a matter of law, we don't want our wealthiest corporations, which got wealthy because they sell good beer or whatever, or mediocre beer.
• 25:09
  SPEAKER_02: We don't want them to um we we don't want them to um dominate politics.
• 25:16
  SPEAKER_02: That's not what they're here to do.
• 25:17
  SPEAKER_02: And I just want to mention one more thing, and then and then I'll close my you know my monologue on this.
• 25:24
  SPEAKER_02: Because I think, by the way, and the reason I'm so passionate about this, I don't think you guys are being based.
• 25:30
  SPEAKER_02: I think you're being originalists.
• 25:31
  SPEAKER_02: You are not being base.
• 25:32
  SPEAKER_02: This is the base position.
• 25:34
  SPEAKER_02: One more thing.
• 25:35
  SPEAKER_02: There's a philosophical mistake in Citizens United.
• 25:39
  SPEAKER_02: Natural persons are the bearers of natural rights that the Bill of Rights recognizes, right?
• 25:45
  SPEAKER_02: Natural rights have to come from somewhere.
• 25:47
  SPEAKER_02: In my view, given my religious priors, they come from the fact that we are all made in the image of God.
• 25:53
  SPEAKER_02: Corporations are not made in the image of God.
• 25:56
  SPEAKER_02: They properly have two kinds of rights.
• 25:59
  SPEAKER_02: They have those that a democratic society chooses to confer on them, and they have those rights, some rights as a reflection of the real human beings who compose them.
• 26:09
  SPEAKER_02: But they are not themselves made in the image of God.
• 26:12
  SPEAKER_02: They are not themselves bearers of natural rights.
• 26:14
  SPEAKER_02: Now, there's a good argument that a small group formed to make a political statement, like the Citizens United Nonprofit, just borrows the religion, the natural rights of its members, right?
• 26:25
  SPEAKER_02: It's like an extension of their human rights to their human natural rights to Citizens United as a nonprofit.
• 26:31
  SPEAKER_02: But it's totally implausible to think that's true of a vast publicly traded corporation with a million shareholders formed for profit, like any of the corporations we've been talking about.
• 26:43
  SPEAKER_02: And treating the two as constitutionally identical is a formalist error that takes a major question of political power away from democratic self-government.
• 26:53
  SPEAKER_02: So this is to me yet another of the court stretching the constitution to rule on issues that properly belong to a democratic people.
• 27:02
  SPEAKER_00: If you're only listening, Elon looks like he's going to explode.
• 27:04
  SPEAKER_00: Like come out, like I just explode across the screen.
• 27:07
  SPEAKER_00: He is just jumping.
• 27:08
  SPEAKER_00: He can't wait to respond.
• 27:10
  SPEAKER_02: Catherine, did I convince you before?
• 27:12
  SPEAKER_02: Did I convince you a little?
• 27:14
  SPEAKER_02: I need to rejest though.
• 27:16
  SPEAKER_02: No, no, no, no, no, no.
• 27:17
  SPEAKER_03: No, no, Catherine, give me my chance.
• 27:19
  SPEAKER_03: Okay, fine.
• 27:19
  SPEAKER_03: Okay, go ahead.
• 27:21
  SPEAKER_03: Okay.
• 27:22
  SPEAKER_03: So, Josh, I think less separates us.
• 27:25
  SPEAKER_03: First of all, the idea that you are more based.
• 27:28
  SPEAKER_03: Fighting works.
• 27:29
  SPEAKER_03: Okay.
• 27:30
  SPEAKER_03: Um, so now maybe that's okay.
• 27:33
  SPEAKER_03: Like I do, I do believe that there is this thing called law, and that law sometimes compels an answer that may not be the base to answer.
• 27:41
  SPEAKER_03: And you know what?
• 27:42
  SPEAKER_03: I think it's based to think that occasionally.
• 27:45
  SPEAKER_03: Okay.
• 27:46
  SPEAKER_03: Now, the Catherine's skeptical.
• 27:48
  SPEAKER_03: I'm losing her.
• 27:49
  SPEAKER_03: Josh, this is, you know, you're off the podcast.
• 27:51
  SPEAKER_03: You're not getting if you're not watching us on YouTube, Catherine is clearly taking Josh's side here.
• 27:57
  SPEAKER_03: But okay.
• 27:58
  SPEAKER_03: So the okay, so let me give a few um reactions here.
• 28:02
  SPEAKER_03: One is Josh, I actually agree in the sense that like I remember when I was uh in college and uh my government professor, this was in the era when McCain Feingold had just sort of been enacted a few years before, and he said, the politicians loved McCain Feingold.
• 28:17
  SPEAKER_03: Everybody thinks that it's like the politicians extorting from the corporations.
• 28:22
  SPEAKER_03: No, it's the corporations extorting from the politicians.
• 28:25
  SPEAKER_03: Like, oh, you want my money and my support, you'd better do this.
• 28:28
  SPEAKER_03: And so the politicians actually liked McCain Feingold.
• 28:30
  SPEAKER_03: And when and in that respect, um, you know, I agree that private power here um can be sort of corrupting, but why isn't but for from a formalist constitutional manner?
• 28:42
  SPEAKER_03: I have trouble distinguishing between the New York Times and the organization called Citizens United.
• 28:48
  SPEAKER_03: And you also seem to have trouble distinguishing them, right?
• 28:51
  SPEAKER_03: They're both corporate form, they're both basically advocacy organizations, they both use the medium of the press and technology and the medium of communication to publish their ideas.
• 29:01
  SPEAKER_03: I do not see the distinction under the Constitution between the New York Times and this organization called Citizens United now.
• 29:08
  SPEAKER_03: Having said that, why isn't the answer, why can't we address the problems that you raised without drawing that distinction?
• 29:16
  SPEAKER_03: In other words, why can't the Bush signing statement itself be made into a legislation?
• 29:21
  SPEAKER_03: Congress has to do something, okay, which is a problem and probably a theme of today, but why can't it pass legislation that says before we're not saying corporations can't spend on X, Y, or Z, but before you spend over X amount, okay, on express advocacy or political advocacy or political contributions or money to political parties or whatever it is, you must get a vote of your shareholders.
• 29:47
  SPEAKER_03: Because it's one thing to say money is necessary for speech and corporations have the same rights as people because they're just an association of people, just like the government isn't special.
• 29:56
  SPEAKER_03: It's just an association of people.
• 29:57
  SPEAKER_03: I don't know exactly if that's true.
• 30:00
  SPEAKER_03: But the problem is that the corporations are supposed to, in law, act and speak on behalf of certain people, namely the shareholders, and they're not, as you said.
• 30:11
  SPEAKER_03: It's actually just management pilfering the money that their shareholders give them.
• 30:17
  SPEAKER_03: I think it would be constitutional to just pass a law that says before corporations can spend this amount of money, they must get shareholder approval.
• 30:27
  SPEAKER_03: So I guess would that be problematic or would that solve your problem?
• 30:31
  SPEAKER_02: I I think first of all, I think that would be a good legal and policy solution.
• 30:36
  SPEAKER_02: It might be one that Citizens United is ordinarily read just bars, right?
• 30:40
  SPEAKER_02: I mean, Citizens United doesn't just fail to make a distinction between the New York Times and uh the Citizens United nonprofit.
• 30:50
  SPEAKER_02: It can't make a distinction between uh uh the New York Times nonprofit, Citizens United, Coca-Cola, Google, and Budweiser.
• 30:58
  SPEAKER_02: They're all the same.
• 30:59
  SPEAKER_02: They're all just, you know, legal persons with full First Amendment rights to spend as they see fit.
• 31:06
  SPEAKER_02: So, you know, I don't disagree with you that Citizens United as a small nonprofit is on all fours with New York Times.
• 31:14
  SPEAKER_02: The fact that one is big and prestigious and the other isn't is not a legal distinction.
• 31:19
  SPEAKER_02: The legal distinction is between organizations that exist to put ideas forth into the political sphere, the sphere of democratic discourse, and organizations that are rich from selling products are publicly held with widely dispersed ownership, and that are putting um um putting ideas into politics at the behest of their managers.
• 31:43
  SPEAKER_02: Now, with that said, I think there might be a corporate law problem with um a statute requiring um shareholders to vote on a specific issue ordinarily under managerial control.
• 31:59
  SPEAKER_02: Like what you're essentially doing is revising the corporate charter to say a certain class of decisions is not under managerial control.
• 32:06
  SPEAKER_02: It requires a special and usually corporate charters only have shareholder votes for things like members of the board or uh major actions like mergers.
• 32:18
  SPEAKER_02: Um I don't I don't know.
• 32:19
  SPEAKER_02: I don't teach corporate law.
• 32:20
  SPEAKER_02: I don't know what the you know if it would be plausible under like like federal law to modify Delaware law and California corporate law so that corporations have to, like management has to seek approval for political speech.
• 32:34
  SPEAKER_03: I will be based.
• 32:35
  SPEAKER_03: I I will be based.
• 32:36
  SPEAKER_03: I do know a little bit about this because there was a debate in the 19th century about whether states under their police powers could alter uh corporate charters after the charters had been granted under state law.
• 32:49
  SPEAKER_03: And the states, the courts basically universally said that if it's a legitimate exercise of the police power, of course corporate charters can be modified, that you cannot freeze in time the legislative power of a state with respect to a particular corporation.
• 33:04
  SPEAKER_03: So I would actually say that you probably can modify that.
• 33:07
  SPEAKER_03: I don't think there's a constitutional restraint on it.
• 33:09
  SPEAKER_03: But you're right, the court didn't draw these distinctions, and maybe Citizens United precludes it under the First Amendment.
• 33:14
  SPEAKER_02: That's my read of it.
• 33:16
  SPEAKER_02: And so to me, I'll give you my, you know, maybe not two-paragraph, but maybe five-page version of what Citizens United should have said.
• 33:24
  SPEAKER_02: It should have said the First Amendment fully protects the political speech of individuals and of genuine voluntary associations formed for expressive purposes, excuse me, including both, you know, ordinary media uh organizations and uh advocacy groups like Citizens United.
• 33:45
  SPEAKER_02: The First Amendment does not give large publicly traded corporations an unrestricted right to spend general treasury funds on electoral politics.
• 33:54
  SPEAKER_02: If Citizens United had said that, that it would have avoided both the overreach of McCain Feingold in restricting a nonprofit like Citizens United and the formalist overcorrection of the Supreme Court opinion in Citizens United, which gave carte blanche for the world we saw in the last 10 years, a world in which the corporations line up on one side of politics, the progressive side, and teach us what oppressive oligarchic wealth really looks like.
• 34:24
  SPEAKER_00: But can I just say from a practical perspective, one of the reasons I probably lean towards the Elon approach, even though in general I'm very much on the side of you, Josh, that I think corporations wield way too much power, especially in our political discourse.
• 34:38
  SPEAKER_00: Is because I don't think there is any reasonable way to actually uh legislate away their power.
• 34:46
  SPEAKER_00: I think that what we've seen is that no matter what the law says, they will find a way to influence our elections.
• 34:52
  SPEAKER_00: Look at what happened in 2020 with Mark Zuckerberg and Meta.
• 34:55
  SPEAKER_00: Meta poured tons of money into the 2020 election to sway um the election.
• 35:01
  SPEAKER_00: Most of that money went to nonprofits.
• 35:03
  SPEAKER_00: Nonprofits are never gonna be part of this.
• 35:05
  SPEAKER_00: You know, the the Congress is never gonna say, oh, you can't give to nonprofits if you're a corporation.
• 35:10
  SPEAKER_00: That's never gonna happen.
• 35:12
  SPEAKER_00: Yet it remains the case that many nonprofits, especially on the left, do engage in things that are clearly fairly political, like issue advocacy and things that ultimately read Molly Hemingway's great book, did sway the election, even though they're nonprofits.
• 35:29
  SPEAKER_00: And so to me, if we just have more transparency and things around these issues so that consumers can know where their money is going, that is how we actually can begin to solve some of these problems.
• 35:41
  SPEAKER_00: When I I just think there's no way, no matter how much we've seen Congress try and limit, you know, campaign spending and things like it's never been successful.
• 35:51
  SPEAKER_00: And like Citizens United, people at the time said this is gonna ruin our elections.
• 35:56
  SPEAKER_00: This is gonna be, you know, I mean, people were really doomsday about it.
• 35:59
  SPEAKER_00: But it hasn't changed all that much because all of this can still happen.
• 36:04
  SPEAKER_00: The people with money find a way.
• 36:06
  SPEAKER_00: And I think transparency is really the only um thing that is going to uh keep that kind of check in place so at least the consumers can know uh where their money is going to when they you know spend with that corporation.
• 36:21
  SPEAKER_03: I have a dark thought here.
• 36:23
  SPEAKER_03: And Catherine, you I I think that's exactly right what you just said, and that's what sort of uh induced this dark thought um in my mind.
• 36:31
  SPEAKER_03: First, let me just say I think we're actually pretty much on the same page uh in terms of like the problem with corporate uh uh corporations and corporate power, uh, just in case anyone doubts my base uh bona fides.
• 36:44
  SPEAKER_03: But my question was going to be, and I think Catherine answered it, why were liberals so opposed to Citizens United?
• 36:51
  SPEAKER_03: And I think the answer is because the liberals are very good at acting in concert across all levels of society, that they could just do things without um, you know, this open public corporate spending.
• 37:03
  SPEAKER_03: Whereas corporate spending, you know, you have a couple corporations that were Republican, it was like the one thing Republicans had going for them.
• 37:09
  SPEAKER_03: I so it's very cynical.
• 37:11
  SPEAKER_03: Very cynical.
• 37:12
  SPEAKER_03: But as Catherine suggested, so suppose you know Citizens United had gone the other way.
• 37:16
  SPEAKER_03: What would the Democrats have done?
• 37:17
  SPEAKER_03: Oh, well, Mark Zuckerberg, as Catherine said, just miraculously spent tons and tons of money on election administration to support voting centers and get out the vote and things like that in Democrat heavy areas.
• 37:32
  SPEAKER_03: Like 70 to 80 percent of the money went to Democrat heavy areas.
• 37:36
  SPEAKER_03: You think the Democratic Party isn't coordinating somehow?
• 37:39
  SPEAKER_03: You think they don't talk about this?
• 37:41
  SPEAKER_03: Look what they did to Eric Swalwell.
• 37:43
  SPEAKER_03: Okay, the the the left is like the Borg, okay?
• 37:46
  SPEAKER_03: They just act in concert, okay?
• 37:49
  SPEAKER_03: Everybody, a bunch of people knew that Eric Swalwell was a sexual abuser.
• 37:53
  SPEAKER_03: Not a single person broke rank.
• 37:56
  SPEAKER_03: Not a single person broke rank, okay?
• 37:59
  SPEAKER_03: Until it was useful, and then everybody breaks rank.
• 38:01
  SPEAKER_03: Same thing with Grand Planner.
• 38:02
  SPEAKER_03: It's like the Borg.
• 38:03
  SPEAKER_03: So they they somehow have their tentacles at all levels of society.
• 38:08
  SPEAKER_03: Um, and it is just this totalizing approach.
• 38:11
  SPEAKER_03: And so I just feel like they probably oppose Citizens United because deep down they thought that that they didn't need it to get all this money in coordination, and it was a benefit to Republicans, which is like the one thing they had.
• 38:23
  SPEAKER_03: But I don't know.
• 38:24
  SPEAKER_03: I'm largely speculating, but based on data that I observe in in the real world.
• 38:28
  SPEAKER_03: Am I too cynical?
• 38:31
  SPEAKER_00: No, I think that's right.
• 38:33
  SPEAKER_02: Well, I think my my gauge of the motivations was that at the time, uh progressives, people on the left didn't appreciate the extent to which they were going to control corporate America.
• 38:48
  SPEAKER_02: There was still the widespread belief that corporate America being profit-oriented would thereby be Republican or conservative, and that this was a power center not under the left's control.
• 39:02
  SPEAKER_02: And I think it was in the next sort of 25 years that it became evident that corporate America is under a managerial class and the managerial class is progressive, and uh actually um uh corporations can be recruited, including things like Wall Street banks or consulting firms, you know, McKinsey, uh, the big law firms, all the traditional scions of like the Wall Street uh power can be recruited for left-wing purposes and just how powerful they are.
• 39:33
  SPEAKER_02: And and Catherine, that's where I sort of think you're sort of like this is hopeless anyway, so why not constitutionalize it?
• 39:40
  SPEAKER_02: Position is not sound.
• 39:42
  SPEAKER_02: Um it's not totally hopeless.
• 39:46
  SPEAKER_02: There are legal uh techniques you can use to reduce the extent to which corporations uh get into politics and influence it.
• 39:55
  SPEAKER_02: And we already see that.
• 39:56
  SPEAKER_02: We we see um how bad it can be when corporations kind of collectively like really put their thumb on the hands.
• 40:04
  SPEAKER_02: You know, one thing corporations can't do is directly endorse candidates.
• 40:08
  SPEAKER_02: And if you think that doesn't make a difference, imagine what it would be like on the other side if we had the entire marketing budget of you know the SP 500 being put behind like Kamala Harris or something like that.
• 40:21
  SPEAKER_02: It would be worse.
• 40:22
  SPEAKER_02: So the law does work sometimes, but you know what prevents the law from working at all?
• 40:26
  SPEAKER_02: When the court says it's all constitutional, it's all First Amendment, you're not allowed to do anything democratically.
• 40:32
  SPEAKER_03: Okay, we have a bunch of law to get back to.
• 40:35
  SPEAKER_03: Uh so let's briefly talk about the actual 6-3 decision.
• 40:39
  SPEAKER_03: Uh I don't think we need to spend much time on this.
• 40:42
  SPEAKER_03: Then we'll talk about election day and then the federal executive order about uh election integrity.
• 40:48
  SPEAKER_03: We've got about 30 minutes left, a little bit less.
• 40:50
  SPEAKER_03: I think we can do it.
• 40:50
  SPEAKER_03: All right, Catherine, set us up.
• 40:52
  SPEAKER_00: All right, so the 6-3 decision last month, the majority argued that the only legitimate government interest in campaign finance regulation is preventing quid pro quo corruption or its appearance, like you said, Elon, um, and that the coordinated expenditure limits are not necessary or narrowly tailored to that goal.
• 41:13
  SPEAKER_00: So we've talked about the tiers of scrutiny before, and it sounds like restrictions here get strict scrutiny.
• 41:20
  SPEAKER_00: So it requires a compelling government interest and narrow tailoring.
• 41:25
  SPEAKER_03: Now, Catherine, the the coordinated, I can't remember if we mentioned it, the coordinated expenditure, the question is like there's a limit on actually giving money to the candidates themselves, right?
• 41:34
  SPEAKER_03: And the question is um, is there a limit as to how much you can give to the party?
• 41:39
  SPEAKER_03: And then the party can give to the candidate, right?
• 41:42
  SPEAKER_03: And so that's the question.
• 41:44
  SPEAKER_03: Um, can you impose limits on how much you give to the party?
• 41:48
  SPEAKER_03: Because the party will then I think give uh to the candidates, right?
• 41:51
  SPEAKER_03: And so you could potentially get around.
• 41:53
  SPEAKER_00: Because the parties and the candidates can coordinate.
• 41:56
  SPEAKER_00: A candidate and an independent expenditure cannot coordinate.
• 42:00
  SPEAKER_00: So those that's kind of the thing.
• 42:09
  SPEAKER_00: Now, the majority said that these coordinated spending limits were not narrowly tailored because there were already far more narrowly tailored regulations that address the quid pro quo issue.
• 42:20
  SPEAKER_00: An individual can't earmark a donation to a political party to a particular candidate.
• 42:25
  SPEAKER_00: Or at least if you did, it would count towards the limits on a donation to a candidate.
• 42:32
  SPEAKER_00: There's also a disclosure requirement.
• 42:33
  SPEAKER_00: You know, uh parties have to disclose who is giving to them and to whom they are giving.
• 42:40
  SPEAKER_00: Um the court thought that was enough to address the concern of quid pro quote corruption or the appearance of it.
• 42:47
  SPEAKER_00: The dissent then thought that more was necessary.
• 42:50
  SPEAKER_00: So here's what Justice Kagan said in the dissent.
• 42:54
  SPEAKER_00: Without limits on those coordinated expenditures, a candidate could ask a donor to make a substantial contribution to the party so as to finance his own campaign expenses.
• 43:05
  SPEAKER_00: It would then be as though the candidate contribution limits didn't exist.
• 43:09
  SPEAKER_00: The donor could give far more to the party than to the candidate directly, understanding that the money would be passed through to the candidate.
• 43:16
  SPEAKER_00: And with that evasion of contribution limits, all the old opportunities for quid pro quo deals would come back into play.
• 43:22
  SPEAKER_00: The majority invalidates Congress's restriction of coordinated expenditures, thus enabling a party to serve as an alternative checking account for a campaign.
• 43:31
  SPEAKER_00: As a result, a donor will be able to give a party as much as half a million dollars as compared to the$7,000 he can give directly to the candidate to cover the candidate's bills.
• 43:41
  SPEAKER_00: And the candidate can seek just such a donation.
• 43:43
  SPEAKER_00: So the court ushers back in his lame opportunities for a donate in that contribution off meant to check.
• 43:51
  SPEAKER_00: What do you guys think?
• 43:53
  SPEAKER_01: Okay.
• 43:54
  SPEAKER_01: I just love how you said that.
• 43:55
  SPEAKER_01: Admittedly, I don't hate a point.
• 43:58
  SPEAKER_01: That's wonderful.
• 44:00
  SPEAKER_03: I um let me start with the legalistic point.
• 44:02
  SPEAKER_03: Uh so we've talked about tiers of scrutiny before in the context of discrimination uh and the fourteenth amendment, right?
• 44:10
  SPEAKER_03: So what's an invidious discrimination versus what's just a classification, right?
• 44:14
  SPEAKER_03: Distinctions based on race, gets scrutiny, sex, intermediate scrutiny, and everything else that's rational basis.
• 44:18
  SPEAKER_03: It's the same thing in First Amendment law.
• 44:20
  SPEAKER_03: Again, a lot of people object to the tiers of scrutiny.
• 44:22
  SPEAKER_03: I think Josh objects to the tiers of scrutiny.
• 44:24
  SPEAKER_03: A lot of other originalists object to the tiers of scrutiny.
• 44:27
  SPEAKER_03: I'm not sure I object to the tiers of scrutiny, right?
• 44:29
  SPEAKER_03: You have to all rights are regulable, I think, in the public interest, right?
• 44:33
  SPEAKER_03: All rights are regulable in the common good.
• 44:37
  SPEAKER_03: But you can't infringe the core of the right.
• 44:39
  SPEAKER_03: You can't regulate the right out of existence.
• 44:42
  SPEAKER_03: And so, how do you figure out what's a genuine regulation for the common good and what's an infringement on the core of a right?
• 44:48
  SPEAKER_03: Well, the tiers of scrutiny help.
• 44:50
  SPEAKER_03: So, for example, under the First Amendment, viewpoint discrimination is per se unlawful.
• 44:56
  SPEAKER_03: So if certain speech is prohibited because of the viewpoint expressed, you're gone.
• 45:00
  SPEAKER_03: You're out.
• 45:00
  SPEAKER_03: That's unconstitutional.
• 45:02
  SPEAKER_03: Then there are content-based restrictions.
• 45:04
  SPEAKER_03: If you have to know the content of the speech, it gets strict scrutiny because often that could be like a guise for viewpoint discrimination.
• 45:11
  SPEAKER_03: So if you say things like, no labor protests, you know, at these hours or whatever, oh, you have to know that they are speaking about labor matters or whatever, or that it's a labor uh protest or labor strike, uh, then that is content-based and it gets what's called strict scrutiny.
• 45:27
  SPEAKER_03: So you need a compelling government interest that's narrowly tailored.
• 45:30
  SPEAKER_03: And then there are time, place, and manner restrictions.
• 45:32
  SPEAKER_03: Okay?
• 45:33
  SPEAKER_03: You can't speak in front of someone's house with a megaphone uh between the hours of 10 p.m.
• 45:38
  SPEAKER_03: and 8 a.m.
• 45:39
  SPEAKER_03: That is content neutral.
• 45:41
  SPEAKER_03: Uh you don't have to know what the content is.
• 45:43
  SPEAKER_03: It's a time, place, and manner restriction, and it gets intermediate uh scrutiny.
• 45:47
  SPEAKER_03: And so here it's content-based speech, right?
• 45:50
  SPEAKER_03: It's money that goes to a political campaign for political ideas, and uh so it gets strict scrutiny, so it requires a compelling government interest and it requires narrow tailoring.
• 46:01
  SPEAKER_03: And once that's the legal doctrine, I can see it both ways.
• 46:04
  SPEAKER_03: Because again, as Catherine pointed out, the the you already, if you earmark your money to a particular candidate, that counts towards your disclosure.
• 46:13
  SPEAKER_03: Uh that counts towards your limits to that individual candidate.
• 46:16
  SPEAKER_03: It basically counts as an individual donation.
• 46:18
  SPEAKER_03: The party has to disclose who's donating to it.
• 46:21
  SPEAKER_03: The party has to disclose to whom it's donating.
• 46:23
  SPEAKER_03: And so that is pretty narrowly tailored to avoid this appearance of corruption.
• 46:27
  SPEAKER_03: Uh and so on the doctrine, I could see it go both ways.
• 46:31
  SPEAKER_03: You know, um, I find the majority's opinion persuasive, uh, but I didn't hate the dissent either.
• 46:37
  SPEAKER_03: Uh so Josh, um take it away.
• 46:40
  SPEAKER_03: What do you think?
• 46:41
  SPEAKER_02: Well, uh, you know, I think there's a distinction here between the legal analysis and the policy, underlying policy question.
• 46:48
  SPEAKER_02: And we can kind of go in either direction.
• 46:50
  SPEAKER_02: Why don't I start with the policy question and then the legal one?
• 46:54
  SPEAKER_02: You know, as to policy, what's really going on in this case, you know, one way to look at it is what explains the 6-3 split?
• 47:04
  SPEAKER_02: Why are liberal Democrats on one side and, you know, the Republicans on the other?
• 47:08
  SPEAKER_02: And I think what's going on is that, and by the way, that's not just on the court, that's in the country, right?
• 47:13
  SPEAKER_02: The the Republican movement wants the case decided as the court decided it, and the Democrat movement wants it on the other side.
• 47:23
  SPEAKER_02: Well, Republicans want parties to be able to coordinate money among candidates and thereby to be able to discipline candidates.
• 47:30
  SPEAKER_02: Uh, Republicans want the the there's my dog in the background, by the way, making some noise and walking around and stuff.
• 47:38
  SPEAKER_02: Loki.
• 47:39
  SPEAKER_02: Come here, Loki.
• 47:41
  SPEAKER_02: Um, so I I think what's going on is that uh Democrats have a dense and very effective ecosystem of advocacy organizations, super PACs, 501c4s, 501c3s that aren't supposed to get involved in partisan politics, but really, really, really do get involved in partisan politics.
• 48:01
  SPEAKER_02: And uh just networks that drive money and messages, and they want those networks to drive money and messages.
• 48:09
  SPEAKER_02: They want that that network is effective and large and well coordinated, and they want it to maintain.
• 48:15
  SPEAKER_02: And there's also a partisan effect because the network of advocacy organizations will tend to drive candidates to ideological purity.
• 48:24
  SPEAKER_02: On the Democrat side, that means to the left, the the party central committees will tend to drive the candidates to moderate positions that make them more electable, right?
• 48:38
  SPEAKER_02: So you have a real kind of like Chuck Schumer Mundami kind of split between these two wings of the party.
• 48:45
  SPEAKER_02: And uh, you know, Democrats are happy with um advocacy organizations being the nerve of the party instead of uh party central committees.
• 48:55
  SPEAKER_02: I'm honestly not sure what I think about that as a broad sort of political philosophy matter, but I think that's the real stakes of this case.
• 49:02
  SPEAKER_02: I mean, what what the majority really did was make party central committees a lot more powerful relative to advocacy organizations that would otherwise be influencing candidates and you know, query whether, you know, what side of that you fall on.
• 49:20
  SPEAKER_02: Why don't I pause that?
• 49:20
  SPEAKER_02: I want to I want to say something about the legal merits of the decision and why I don't like the tears of scrutiny, but why don't I just pause and see, you know, how do you how do you think about the um party versus advocacy organization question?
• 49:34
  SPEAKER_00: No, I don't know.
• 49:35
  SPEAKER_00: It's interesting because my that the only counterexample I have is where I am in Minnesota, where the parties are the people driving our candidates to the far right and far left.
• 49:45
  SPEAKER_00: And it's the advocacy groups usually that bring people more in the middle because of the way that our system is set up.
• 49:50
  SPEAKER_00: So I think that maybe you certainly have a point, but they can be different in in state to state.
• 49:56
  SPEAKER_00: Our system is such that the endorsement process uh mobilizes the most, the people most involved, most ideological.
• 50:04
  SPEAKER_00: And that means those are the people who are chosen.
• 50:06
  SPEAKER_00: And so, as the parties are going to have potentially more power, more money, I have been thinking about how this is gonna cause in my own state, could cause more of a divide.
• 50:17
  SPEAKER_00: I've also been thinking about how our candidates and our parties don't coordinate well whatsoever, even though they can.
• 50:24
  SPEAKER_00: So all of these things are kind of theoretical, and then I see it in practice in my state.
• 50:28
  SPEAKER_00: Again, it's probably different everywhere, but in my state, it doesn't play out the way that I think um I'm reading about it online.
• 50:35
  SPEAKER_03: I yeah, so Minnesota is weird, right?
• 50:38
  SPEAKER_03: And there's the caucuses, which also makes it weird, the endorsement system.
• 50:41
  SPEAKER_03: But as a general matter, it's the primary voters that drive the party kind of crazy, right?
• 50:46
  SPEAKER_03: Um I'm in favor of smoke-filled rooms, I think.
• 50:50
  SPEAKER_03: Uh, and you know, we should take a leaf out of the Democrat playbook, right?
• 50:54
  SPEAKER_03: Um Eric Swalwell, um, you know, was they weren't gonna let the primary voters decide that.
• 51:00
  SPEAKER_03: They absolutely decapitated him when it was relevant uh for them to do that.
• 51:04
  SPEAKER_03: Graham Plattner, they let the primary voters decide, and then they decapitated him, and then they took it out, and what did they do?
• 51:11
  SPEAKER_03: In a big convention, almost unanimously chose some other guy that they thought would be better.
• 51:17
  SPEAKER_03: So, like, you know, it's called revealed preferences, not stated preferences.
• 51:20
  SPEAKER_03: Even the Democratic Party understands that smoke-filled backrooms are better, the conventions are better in terms of winning a general election, and I'm actually okay with that because quite frankly, this idea that the highly motivated primary voters select the candidate, uh, and then ultimately that candidate is not really the acceptable candidate to the vast majority of the electorate of both political parties, that that does not strike me as democratic.
• 51:45
  SPEAKER_03: It strikes me as there's a chokehold, you know, on both parties in the primaries.
• 51:49
  SPEAKER_03: And so I'm all for giving more power uh to the parties.
• 51:53
  SPEAKER_03: Okay, Josh, legal thoughts, and then let's move on to the last two things we wanted to talk about.
• 51:57
  SPEAKER_02: Yeah, on the on the legal side, I think the nerve of the case is the majority's statement that only could pro-crow corruption is serious enough to justify restricting campaign spending.
• 52:08
  SPEAKER_02: So here's how I see the majority opinion working.
• 52:11
  SPEAKER_02: Step one is they say spending is part and parcel of political speech, and parties working with candidates is a perfectly healthy feature of American government.
• 52:21
  SPEAKER_02: And so all of this is constitutionally protected, and any limitations on it requires ample justification.
• 52:27
  SPEAKER_02: So that's how you get into the whole tiers of scrutiny sort of analysis is that you say, prima facie, something is constitutionally protected.
• 52:36
  SPEAKER_02: Now give us your reasons why you want us to limit the constitutional protection and we would judge them as a court, right?
• 52:42
  SPEAKER_02: That's how tiers of scrutiny really work.
• 52:44
  SPEAKER_02: Uh and step two of the court's analysis is they list the reasons that are commonly given for limiting uh party um campaign expenditures for in coordination with individual candidates.
• 52:56
  SPEAKER_02: And they basically say all but one of those reasons is constitutionally inadequate.
• 53:01
  SPEAKER_02: So reason number one, the general goal of getting money out of politics, says the majority, not enough.
• 53:08
  SPEAKER_02: Reason number two, preventing the political party from having undue influence over candidates, not enough.
• 53:17
  SPEAKER_02: Reason number three, undue influence from wealthy individuals or groups over candidates, not enough.
• 53:23
  SPEAKER_02: By the way, that's probably the primary one for most people.
• 53:26
  SPEAKER_02: They don't want to see billionaires or huge corporations or unions or something having undue influence just because they've got money.
• 53:34
  SPEAKER_02: And um, the court just says, and it doesn't even reason about it, it just says that's not enough.
• 53:39
  SPEAKER_02: That doesn't cut it constitutionally.
• 53:42
  SPEAKER_02: So inequality, um uh not enough.
• 53:47
  SPEAKER_02: What about the appearance of undue influence?
• 53:49
  SPEAKER_02: The court takes that one up enough, too.
• 53:51
  SPEAKER_02: And it says the appearance of undue influence is not enough.
• 53:55
  SPEAKER_02: And then the court says the following um only quid pro quo corruption, I have trouble saying that, quid pro quo corruption is enough.
• 54:06
  SPEAKER_02: You know, the kind of scenario of, you know, senator, I'll give$10 million to your campaign if you make sure I get a data center.
• 54:12
  SPEAKER_02: That cuts it in the court's view.
• 54:14
  SPEAKER_02: That you can limit.
• 54:15
  SPEAKER_02: It's the only thing you can limit, a specific bribe.
• 54:18
  SPEAKER_02: Um, as the I'm gonna quote the court on this so you know, listeners believe me when I say how extreme this is.
• 54:24
  SPEAKER_02: The court says, quote, there's only one legitimate governmental interest for restricting campaign finances, preventing corruption or the appearance of corruption.
• 54:34
  SPEAKER_02: Moreover, Congress may target only quid pro quo assump corruption.
• 54:38
  SPEAKER_02: Right?
• 54:38
  SPEAKER_02: That's the court I'm quoting there.
• 54:40
  SPEAKER_02: So it is very, very directive.
• 54:42
  SPEAKER_02: And then step three is easy.
• 54:44
  SPEAKER_02: I mean, the rule against the court just reasons that the rule against political parties giving money to candidates is too broad for quid pro-quo corruption.
• 54:53
  SPEAKER_02: But it all seems simple because the court just announces that virtually every reason that people bring to the table for regulating campaign uh spending is just inadequate under the First Amendment with virtually no reasoning.
• 55:07
  SPEAKER_02: The court just announces, like, here's your seven reasons, six of them are no good, we'll give you the seventh if you can find a rule that fits it.
• 55:14
  SPEAKER_02: And the thing that bothers me about the Tears of Scrutiny, Elon, is they cover up the naked exercise of judicial power in something like that.
• 55:24
  SPEAKER_02: They make the analysis seem technical, you know, this reciting um is this a compelling state interest?
• 55:32
  SPEAKER_02: Uh is this a uh, or maybe it's it's heightened scrutiny, is this a substantial state interest?
• 55:40
  SPEAKER_02: Uh is the rule narrowly tailored to accomplish a compelling governmental interest?
• 55:45
  SPEAKER_02: I mean, those are just words, right?
• 55:47
  SPEAKER_02: The words don't really mean anything except, okay, you've got seven reasons for wanting to like renovate your kitchen.
• 55:53
  SPEAKER_02: I'm gonna give you, I'm gonna judge each of your reasons, and I'm gonna say six of them are no good, and the seventh is fine with me.
• 55:59
  SPEAKER_02: That's all that's really going on.
• 56:01
  SPEAKER_02: And it gives me this like this strong instinctive reaction that um the court doesn't have a legitimate constitutional basis to just sit in judgment over which reasons are adequate and which aren't.
• 56:18
  SPEAKER_02: All it's doing is making a naked political judgment under cover.
• 56:23
  SPEAKER_02: And so I find this distasteful, but let me throw it open to you.
• 56:26
  SPEAKER_03: Okay.
• 56:27
  SPEAKER_03: And then we really do have to move on uh to our last two topics, which will be shorter, but this is this is an important discussion to have, and I'm glad we're having it.
• 56:33
  SPEAKER_03: I don't know of so on the one hand, like judicial balancing, tiers of scrutiny, it feels like lawmaking.
• 56:39
  SPEAKER_03: And if it's lawmaking, well then you should leave it to the lawmakers.
• 56:42
  SPEAKER_03: On the other hand, I do not know of a much better way to ensure uh that rights can be regulable in the public interest, but that the legislature cannot regulate them out of existence.
• 56:54
  SPEAKER_03: What's the alternative to this tiers of scrutiny?
• 56:56
  SPEAKER_03: You could do a Bruin Second Amendment test, which is like, okay, let's look if there's a history of regulation on corporate speech and campaign finance.
• 57:04
  SPEAKER_03: Okay, well, you're not gonna find that.
• 57:06
  SPEAKER_03: You're not gonna find that.
• 57:07
  SPEAKER_03: Okay.
• 57:08
  SPEAKER_03: Uh so the alternative in the other direction would be just let the legislature decide for itself what's in the public good.
• 57:14
  SPEAKER_03: But if that's the case, you know, why can't the legislature decide that race-based restrictions are necessary for certain rights?
• 57:21
  SPEAKER_03: And so it's obviously the case that some reasons are impermissible under the various provisions of the Constitution.
• 57:28
  SPEAKER_03: And I just don't know of a better way uh than you know that these tiers of scrutiny with appropriate deference to the political branches.
• 57:36
  SPEAKER_03: I don't know if we're gonna solve this problem, Josh, but it's a problem.
• 57:40
  SPEAKER_02: It's a problem, and I agree.
• 57:41
  SPEAKER_02: I will give you that.
• 57:42
  SPEAKER_02: I mean, I wish I could say right now I have this intellectual breakthrough and I've solved the problem of the tiers of scrutiny and judicial balancing in general.
• 57:49
  SPEAKER_02: And here, I don't have that solution.
• 57:51
  SPEAKER_02: It's really a difficult problem.
• 57:53
  SPEAKER_02: But I do think we should just be clear-eyed and not fall for the legal mumbo jumbo.
• 58:00
  SPEAKER_02: You know, I was a clerk for the Chief Justice of the Israeli Supreme Court, and um uh I would watch that court do proportionality analysis or reasonableness analysis or dignity analysis.
• 58:15
  SPEAKER_02: And it it was made to look like it was law.
• 58:18
  SPEAKER_02: It was not law.
• 58:19
  SPEAKER_02: It was just naked political judgment being exercised under a sort of a sort of verbally technical formulation with certain kinds of recitations, like proportionality consists in two parts and two subparts.
• 58:36
  SPEAKER_02: And you know, that makes it look like it's a technical legal analysis when really all that's going on is the court is reconsidering for itself the political judgment, the parliament, they are the knesset already made.
• 58:48
  SPEAKER_02: Well, we have the same thing.
• 58:50
  SPEAKER_02: That's what's going on here, right?
• 58:53
  SPEAKER_02: Congress makes political judgment, and the court says, Well, does it survive?
• 58:58
  SPEAKER_02: Is it a compelling state interest?
• 59:00
  SPEAKER_02: What is compelling state interest?
• 59:01
  SPEAKER_02: It means we the judges find it compelling.
• 59:03
  SPEAKER_02: The difference is nothing to this.
• 59:06
  SPEAKER_03: The difference is there are specific textual commands that our courts are actually supposed to enforce, like a prohibition.
• 59:13
  SPEAKER_03: Isn't tiers of scrutiny analysis?
• 59:15
  SPEAKER_02: You're right, but that isn't tiers of scrutiny.
• 59:18
  SPEAKER_03: Yeah, I I'm I I don't know about that, right?
• 59:20
  SPEAKER_03: Again, how do we know what freedom of speech is versus what a good regulation of the freedom of speech is versus an abridgement?
• 59:25
  SPEAKER_03: It sort of requires that analysis.
• 59:26
  SPEAKER_03: But we're not gonna solve here.
• 59:28
  SPEAKER_03: And we promised our listeners two more topics two more topics.
• 59:31
  SPEAKER_03: We're running out of time.
• 59:31
  SPEAKER_03: We have, I would say, about 10 uh more minutes, maybe 15 tops.
• 59:35
  SPEAKER_03: So, Catherine, why don't you and I briefly go through the election day ruling and the um federal election uh EO, and then we'll get Josh's uh thoughts on, I think, the judicial power implications of the latter.
• 59:47
  SPEAKER_03: I just want to update our readers, uh listeners about this before we sign off today.
• 59:51
  SPEAKER_00: Yeah, absolutely.
• 59:52
  SPEAKER_00: So the other Supreme Court case involving elections is uh it basically answers the question of what is election day?
• 59:59
  SPEAKER_00: So can Mississippi count ballots postmarked by the day designated for the election, but which are received up to five days after.
• 1:00:08
  SPEAKER_00: Um this is kind of crazy.
• 1:00:10
  SPEAKER_00: We talked about this on a previous episode.
• 1:00:12
  SPEAKER_00: I forget what it was called.
• 1:00:14
  SPEAKER_00: Oh, election day, election integrity.
• 1:00:16
  SPEAKER_00: It was a very fire episode.
• 1:00:17
  SPEAKER_00: Everyone should go back and listen to it.
• 1:00:19
  SPEAKER_00: Um but basically, yeah, Mississippi was counting these mail-in ballots up to five days after the election was already over.
• 1:00:26
  SPEAKER_00: Um now, a lot of people were giving Amy Coney Barrett flack about this because she joined along with Chief Justice Roberts, the three liberals, and concluded that Mississippi's election scheme was okay.
• 1:00:39
  SPEAKER_00: So they were okay with this, you know, counting ballots five days after the election.
• 1:00:43
  SPEAKER_00: And it was a five-four decision.
• 1:00:46
  SPEAKER_00: Um to be charitable to uh Justice Barrett.
• 1:00:49
  SPEAKER_03: There were Republicans, I know, I know it's hard, Catherine, for you to be charitable to her, but let's try.
• 1:00:53
  SPEAKER_03: Okay.
• 1:00:55
  SPEAKER_00: Okay, there were Republicans on both sides of this issue.
• 1:00:57
  SPEAKER_00: I mean, it's Mississippi that we're talking about.
• 1:01:00
  SPEAKER_00: Um so it it was uh, you know, the Mississippi law was defended by the Republican Solicitor General of that state, the same lawyers who argued the Dobbs case overturning Roe.
• 1:01:11
  SPEAKER_00: And it wasn't a constitutional decision, it was a statutory decision.
• 1:01:15
  SPEAKER_00: Uh the question was whether federal statutes preempted Mississippi's law.
• 1:01:19
  SPEAKER_00: So Congress can always clarify the question.
• 1:01:22
  SPEAKER_00: And I wish they would, but um kind of doubt they will.
• 1:01:26
  SPEAKER_03: Yeah, so the question here is simply a federal preemption question, right?
• 1:01:30
  SPEAKER_03: The election day statutes say the election shall, you know, on a particular day in November, the members of Congress, the Senate, the president shall be elected or shall be appointed.
• 1:01:40
  SPEAKER_03: And the question is, what does that mean?
• 1:01:42
  SPEAKER_03: So there were really sort of three options here, right?
• 1:01:44
  SPEAKER_03: Then we talked about this in the prior episode.
• 1:01:46
  SPEAKER_03: One is the voters make a choice, and that's it.
• 1:01:49
  SPEAKER_03: The second option is the voters make a choice and deliver it to an election official.
• 1:01:54
  SPEAKER_03: And the third choice is voters make a choice, it's delivered, and it's counted.
• 1:01:58
  SPEAKER_03: Okay?
• 1:01:59
  SPEAKER_03: And so Mississippi said, number one, as long as the voters make a choice and it is eventually received, you know, within a reasonable time, so postmarked or whatever, um, then that's enough.
• 1:02:09
  SPEAKER_03: And then the RNC said, well, no, it has to be received by election officials.
• 1:02:13
  SPEAKER_03: But as we talked about on the prior episode, each view sort of has its problems, right?
• 1:02:17
  SPEAKER_03: Um, so if the RNC is right that it must be received, okay, well, why doesn't it have to be counted, right?
• 1:02:23
  SPEAKER_03: I mean, are you elected until it's counted?
• 1:02:26
  SPEAKER_03: Uh you don't, you know, and so if the theory is, well, they were elected as long as it was received.
• 1:02:32
  SPEAKER_03: You don't know who it is yet, but that person is elected.
• 1:02:35
  SPEAKER_03: Well, why aren't you elected the moment everyone fills out their ballots and postmarks them, right?
• 1:02:40
  SPEAKER_03: On the other hand, even Mississippi recognizes that some receipt is necessary.
• 1:02:44
  SPEAKER_03: It's just they were okay giving it to the post office, right?
• 1:02:47
  SPEAKER_03: I'm not sure they would be okay with someone just waltzing in three days late saying, See, I signed this three days ago, right?
• 1:02:52
  SPEAKER_03: Uh so the point is both sides sort of recognized you need some amount of receipt.
• 1:02:58
  SPEAKER_03: And the question is, what kind of receipt uh do you need?
• 1:03:01
  SPEAKER_03: And that you don't have to count on that day.
• 1:03:03
  SPEAKER_03: And so look, it's a really weird question.
• 1:03:04
  SPEAKER_03: Let me just say my view on this.
• 1:03:06
  SPEAKER_03: As I said last time, a page of history is worth a volume of logic.
• 1:03:10
  SPEAKER_03: During the Civil War, when they started doing these proxy votings and um, you know, absentee votings in during the Civil War, uh, they had to be received by election day.
• 1:03:20
  SPEAKER_03: Uh and you know, I think the history is is telling.
• 1:03:24
  SPEAKER_03: From a linguistic perspective, I do think it's weird.
• 1:03:27
  SPEAKER_03: I don't think you are elected or appointed until it's announced that you are the winner.
• 1:03:32
  SPEAKER_03: Okay?
• 1:03:32
  SPEAKER_03: But realistically, uh today you really can't count all of these on one day.
• 1:03:38
  SPEAKER_03: And so linguistically, I do think it should be at least possible that you can count.
• 1:03:43
  SPEAKER_03: This is the argument I made last time, right?
• 1:03:44
  SPEAKER_03: It should be possible that you can count.
• 1:03:47
  SPEAKER_03: Uh, and so that requires the receipt.
• 1:03:49
  SPEAKER_03: That's my view.
• 1:03:49
  SPEAKER_03: Okay, even if you're not actually uh the counting isn't actually completed.
• 1:03:54
  SPEAKER_03: But Justice Barrett did not take that approach.
• 1:03:57
  SPEAKER_03: It was basically a statutory analysis involving UOCAV, right?
• 1:04:01
  SPEAKER_03: The Uniformed and Overseas Citizens Voting Act.
• 1:04:04
  SPEAKER_03: And just in a nutshell, UOCava uh treats certain ballot receipt deadlines as a matter of state law.
• 1:04:12
  SPEAKER_03: Uh, and so she said it doesn't make sense for the federal election day statutes to supersede and preempt contrary state election laws in terms of when the ballots must be received, because we have this other federal statute, Yukawa, that presumes it to be a matter of state law.
• 1:04:28
  SPEAKER_03: That's totally plausible.
• 1:04:29
  SPEAKER_03: I mean, the dissent said, yeah, but YoCava deals with primaries and not just general elections.
• 1:04:34
  SPEAKER_03: And so Alito and the four dissenters would have uh had some way of making this cohere.
• 1:04:40
  SPEAKER_03: Look, I can go both ways on this, but Catherine, as you said, Congress can fix it.
• 1:04:44
  SPEAKER_03: Fat chance?
• 1:04:46
  SPEAKER_00: Fat chance.
• 1:04:47
  SPEAKER_00: Also, I learned on our last episode a very fun fact that you taught me, Elon, is that we only have an election day because of election fraud.
• 1:04:54
  SPEAKER_00: When we had all these different election days in different states, people were being busted from state to state to vote on different days.
• 1:05:03
  SPEAKER_00: So the only reason we have an election day is because of fraud.
• 1:05:06
  SPEAKER_02: And like you said, I think that history matters, and I think they should take that into the And I say something on this score, because I I I know we're running out of time and I don't want to take up too much time on this, but you know, for me, this question of like what is the nature of an election, is it the expressed and concretized choice of a people as evidenced by their ballots, or is it the receipt of those ballots?
• 1:05:33
  SPEAKER_02: Like philosophic, I'm a philosopher, but come on, existential questions about the nature of the election, these are not resolvable.
• 1:05:41
  SPEAKER_02: What this case is really about, what it should be about is shenanigans, right?
• 1:05:46
  SPEAKER_02: Like, what is the way of preserving our election integrity against shenanigans?
• 1:05:50
  SPEAKER_02: And we had a lot of shenanigans in our country's history, like what you just referred to, Catherine, and we tried to prevent them by limiting um.
• 1:06:00
  SPEAKER_02: Uh uh by by creating election days that are relatively concrete and clear.
• 1:06:06
  SPEAKER_02: And I think we should take seriously.
• 1:06:08
  SPEAKER_02: I mean, some media sources tell us that there's no shenanigans today in our country of 300 plus million people.
• 1:06:13
  SPEAKER_02: There are no shenanigans in elections.
• 1:06:15
  SPEAKER_02: I don't buy it.
• 1:06:16
  SPEAKER_02: I think there's a lot of shenanigans.
• 1:06:18
  SPEAKER_02: I think what we're doing here is shenanigans limiting, and we should look at it pragmatically.
• 1:06:23
  SPEAKER_03: So you would support the dissent, which is very based.
• 1:06:27
  SPEAKER_03: I think all else equal, you should look at policy consequences, perhaps, right?
• 1:06:31
  SPEAKER_02: I think you should look at policy consequences, especially when they're built into the history that goes into the statutes, right?
• 1:06:38
  SPEAKER_02: Because that's not neglecting the legal content, it's being informed about what the statutes were trying to accomplish.
• 1:06:46
  SPEAKER_03: So maybe Barrett was wrong, after all, an overly literalistic sort of approach to the Yuacava, whereas if you look to the spirit of uh why uh it was written, these statutes in the 19th century, um, you know, the there's a presumption against shenanigans, and you should interpret it uh consistent with that.
• 1:07:04
  SPEAKER_03: Super interesting.
• 1:07:04
  SPEAKER_03: Okay, last topic, bring us home, Catherine, the uh election day integrity mail in um EO, post office EO.
• 1:07:12
  SPEAKER_00: Yes.
• 1:07:12
  SPEAKER_00: So on March 31st, President Trump signed an executive order entitled Ensuring Citizenship, Verification and Integrity in Federal Elections.
• 1:07:22
  SPEAKER_00: Looks like there are really two parts to this, but it's really all about the federal government's use of the post office.
• 1:07:28
  SPEAKER_00: The EO basically says the USPS will not deliver election day materials that don't contain some kind of barcode that is unique to any particular citizen.
• 1:07:39
  SPEAKER_00: And how do you identify who are citizens for purposes of getting a USPS ballot?
• 1:07:45
  SPEAKER_00: It sounds like the federal government, using various databases, including the Social Security Administration, will transmit to the state some information it has about who are US citizens over the age of 18 and residents of that state.
• 1:07:59
  SPEAKER_00: And if you aren't on that list, you can't get a ballot.
• 1:08:02
  SPEAKER_00: Now, crucially, the EO does not actually do anything itself.
• 1:08:07
  SPEAKER_00: It only tells departments to do stuff.
• 1:08:10
  SPEAKER_00: Uh so it it directs DHS and USPS to engage in rulemakings or the making of regulations.
• 1:08:18
  SPEAKER_00: Um, Elon, first question is this legal?
• 1:08:21
  SPEAKER_00: And then we'll talk about what the courts have been up to after that.
• 1:08:24
  SPEAKER_03: Yeah, we don't have to spend too much time on it because I still don't know what the answer to this is because nothing's happened yet, right?
• 1:08:30
  SPEAKER_03: Which is sort of the point.
• 1:08:32
  SPEAKER_03: But when we talked about it on the last episode, Catherine, my sense was that they're gonna have trouble because the USPS statute describes very specific things as non-mailable, like explosives and knives, and the implication is everything else is mailable, right?
• 1:08:46
  SPEAKER_03: It's the expressio uniest est exclusio alterius canon of construction.
• 1:08:50
  SPEAKER_03: Uh and so I don't know that there's authority to deny mail for things that Congress hasn't uh specified in the statute.
• 1:08:57
  SPEAKER_03: But I don't know.
• 1:08:58
  SPEAKER_03: I don't know what DOJ's arguments are going to be because the executive order directed the post office to promulgate a regulation, which they've proposed something now.
• 1:09:06
  SPEAKER_03: It directed DHS to uh promulgate a regulation, and that hasn't happened yet, and yet the plaintiffs, uh interest groups, liberal interest groups, sued.
• 1:09:17
  SPEAKER_03: Of course, they got a district court, I think it was in Massachusetts, to enjoin the executive order, to enjoin an EO that hasn't done anything yet.
• 1:09:24
  SPEAKER_03: And the First Circuit, of course, could not be trusted to stop it.
• 1:09:27
  SPEAKER_03: So earlier this week, uh the Trump administration filed that application to the Supreme Court to issue a stay of the First Circuit and the lower courts, basically saying nothing has happened yet.
• 1:09:39
  SPEAKER_03: Nothing has happened yet.
• 1:09:41
  SPEAKER_03: And that is absolutely true.
• 1:09:42
  SPEAKER_03: There is a concept in administrative law called final agency action.
• 1:09:47
  SPEAKER_03: For an agency action to be reviewable, it must be final agency action.
• 1:09:52
  SPEAKER_03: And uh that means legal consequences must flow.
• 1:09:55
  SPEAKER_03: No legal consequences have flown yet because there hasn't been a rulemaking.
• 1:09:58
  SPEAKER_03: There hasn't been a regulation.
• 1:10:00
  SPEAKER_03: No legal consequences have flown for anybody.
• 1:10:02
  SPEAKER_03: The other thing is the Administrative Procedure Act doesn't apply to the president.
• 1:10:05
  SPEAKER_03: And the EO is just the president telling his agencies to do things.
• 1:10:10
  SPEAKER_03: This is utterly insane that the First Circuit and lower courts, you know, uh you know, even they couldn't be trusted to say, okay, this is not right for a lawsuit yet.
• 1:10:20
  SPEAKER_03: There's no final agency action, there's no cause of action out of the APA until the agencies do something.
• 1:10:25
  SPEAKER_03: So again, uh judicial overreach.
• 1:10:27
  SPEAKER_03: Josh, what do you think?
• 1:10:29
  SPEAKER_02: Well, I I'm a little hesitant to speak on this case because um I just learned about it shortly before the episode and haven't read the district court's opinion and the sour Solicitor General appeal to the Supreme Court.
• 1:10:43
  SPEAKER_02: Um and uh and so I don't feel like I really know this case, but I will speak to the general issue.
• 1:10:50
  SPEAKER_02: When judges enjoin things before they happen, they're acting as um a council of revision.
• 1:11:01
  SPEAKER_02: That is not what courts are supposed to do.
• 1:11:03
  SPEAKER_02: Courts are supposed to intervene, and a limited conception of judicial power is that when government takes an action and it leads to a dispute with a party that's affected adversely by the action, the court can resolve that dispute.
• 1:11:20
  SPEAKER_02: It is quite different for courts to like, like um declare the actions of another branch of government, uh, you know, uh, the executive, Congress, when it's before it's even passed a law, to just start declaring that stuff unconstitutional or unlawful and start acting as a council of revision.
• 1:11:42
  SPEAKER_02: Uh you could speak to this better than me, Elon, uh, with your mastery of the history.
• 1:11:47
  SPEAKER_02: But as I understand it, um the framers in Philadelphia thought about a council of revision and rejected the idea.
• 1:11:56
  SPEAKER_02: And I will add one thing from my comparative studies, which is that um France's constitutional court started out as a very passive, it was not intended to be vastly powerful, but it acquired the power to review legislation before it was promulgated by the French parliament.
• 1:12:18
  SPEAKER_02: And the effect of it has been totally to transform French politics.
• 1:12:23
  SPEAKER_02: It's happened quite recently, actually, just in the last couple decades.
• 1:12:27
  SPEAKER_02: But it is now routine that when uh the French Parliament produces a piece of legislation, they give it to the constitutional court routinely for redlining.
• 1:12:38
  SPEAKER_02: And the constitutional court edits it and sends it back.
• 1:12:42
  SPEAKER_02: And inevitably, it's just third chamber review and it's just a vastly powerful court controlling the content of legislation.
• 1:12:51
  SPEAKER_02: So the framers did not want our courts to act that way, and they're getting perilously close with all these, you know, aggressive district courts.
• 1:12:59
  SPEAKER_03: I think that's exactly right.
• 1:13:01
  SPEAKER_03: And as you said, a council of revision was rejected precisely because they thought courts would have the power of judicial review in actual concrete cases and controversies.
• 1:13:10
  SPEAKER_03: And that's not obviously what we have here.
• 1:13:12
  SPEAKER_03: And um again, this is like a council of revision, as Joss said, because the second they do something, everything stops and it's evaluated for constitutionality.
• 1:13:20
  SPEAKER_03: That's not how it's supposed to work in our system.
• 1:13:22
  SPEAKER_03: That gives way too much power to judges.
• 1:13:25
  SPEAKER_03: And so here again, we'll see what the Supreme Court uh does uh in this case.
• 1:13:29
  SPEAKER_03: Well, that was pretty fun, a lot of election stuff.
• 1:13:32
  SPEAKER_03: I think that's all we have time for today.
• 1:13:34
  SPEAKER_03: To our listeners, thank you so much.
• 1:13:35
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• 1:13:36
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