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Will Maine Case Change Super PACs & Justices Testify · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Brossel from Bloomberg Radio.
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Speaker 1: For some of us, those threats have come very close,
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Speaker 1: and all of us live with the knowledge that they
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Speaker 1: may again materialize. Justice is Elena Kagan and Amy Coney.
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Speaker 1: Barrett made a rare appearance before Congress today as the
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Speaker 1: Judiciary seeks millions of dollars to beef ump security amid
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Speaker 1: increasing threats against the Justices. Justice Barrett explained the challenges
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Speaker 1: for her family of navigating the enhanced threat landscape, recalling
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Speaker 1: an incident when her security detail sent her home with
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Speaker 1: a bulletproof vest after the leak of the Dobbs decision,
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Speaker 1: which overturned the constitutional right to abortion.
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Speaker 2: I carried it into my house, put it into my bedroom,
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Speaker 2: dropped it down on a table, turned around, and my
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Speaker 2: twelve year old son was standing in the doorway of
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Speaker 2: my bedroom and he wanted to know what it was,
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Speaker 2: why I had it. And I didn't know how to respond,
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Speaker 2: because maybe I lack imagination, but I didn't expect that
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Speaker 2: performing this service was going to put me in the
1:08
Speaker 2: position of explaining to my children what a bulletproofest was
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Speaker 2: and why I had to wear one.
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Speaker 1: The Supreme Court is asking for two hundred and twenty
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Speaker 1: eight million dollars for next year's budget that includes a
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Speaker 1: fourteen point six million dollar increase, or ten percent over
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Speaker 1: last year, to expand the justice's security details and monitor
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Speaker 1: their residences. Joining me is constitutional law expert Lewis Michael Sideman,
1:35
Speaker 1: a professor at Georgetown Law. His new book is called
1:38
Speaker 1: The Constitution Cannot Save Us? Why we can no longer
1:42
Speaker 1: rely on our founding document. The Justices having come to
1:47
Speaker 1: testify to Congress about their budget since twenty nineteen. So
1:52
Speaker 1: what's the significance of this appearance.
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Speaker 3: Well, I think they're there now because they're worried about
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Speaker 3: their security, and that's completely legitimate. There are serious security
2:04
Speaker 3: problems and they are to be taken care of. But
2:07
Speaker 3: the fact is that being properly respectful of another branch
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Speaker 3: of government doesn't just mean showing up when you want
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Speaker 3: something from them. They are built into the constitution checks
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Speaker 3: and balances. The Court can check Congress, but Congress also
2:21
Speaker 3: has the power to check the Court, and frankly, I
2:25
Speaker 3: think Congress ought to be doing a better job of that.
2:28
Speaker 3: And one way of doing a better job, Congress controls
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Speaker 3: the Court's budget. You know, if Congress wanted to, they
2:35
Speaker 3: could cut off the lights and air conditioning. So I
2:38
Speaker 3: think they have more power than they realize they do have,
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Speaker 3: and I think they ought to start using it.
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Speaker 1: I mean, has there been a Congress in our history
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Speaker 1: that's cut off or you know, limited funding to the
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Speaker 1: Supreme Court.
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Speaker 3: So at the very beginning of our history, Congress terminated
2:57
Speaker 3: an entire term of the Court did not meet for
3:01
Speaker 3: over a year because of what Congress did. They were
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Speaker 3: This was run up to a famous case called Marlbury b. Madison,
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Speaker 3: where Congress canceled the term of the court because they
3:11
Speaker 3: didn't want the court to hear the case. That's a
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Speaker 3: long time ago. It hasn't happened recently, but that doesn't
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Speaker 3: mean it can't happen. So here's an example of something
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Speaker 3: Congress could do. Each Supreme Court justice has four law clerks.
3:27
Speaker 3: Years ago, they had only one. Years ago, they would
3:30
Speaker 3: decide something like one hundred and sixty cases a year.
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Speaker 3: Now they're down to about sixty with a quadrupled staff.
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Speaker 3: There's a kind of dirty little secret. The Supreme Court
3:41
Speaker 3: justices don't write their own opinions. Often they get these
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Speaker 3: young law students to do it for them. So I
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Speaker 3: think it would be perfectly appropriate for Congress to cut
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Speaker 3: the line item for law clerks, make them do their
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Speaker 3: own work for goodness sake. But more broadly, if Congress
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Speaker 3: is not happy with how the Supreme Court is behaving,
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Speaker 3: they have perfectly legitimate and constitutional means to fight back,
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Speaker 3: and they ought to be more seriously thinking about using
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Speaker 3: those means.
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Speaker 1: I think the problem is that Congress doesn't agree. So
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Speaker 1: you'd have the Democratic lawmakers on one side and the
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Speaker 1: Republican lawmakers on the other end. You know, I think
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Speaker 1: the Republicans are pretty happy with the Supreme Court as
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Speaker 1: it is.
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Speaker 3: Well, they're happy about some things, not about others, true,
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Speaker 3: but yeah, sure, I think you're right. But the real
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Speaker 3: problem is on the Democratic side. If they're unhappy, they
4:35
Speaker 3: can be making noise about doing something. And there seems
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Speaker 3: to be this widespread perception, and I don't know where
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Speaker 3: it comes from, that somehow it's illegitimate for dissatisfied members
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Speaker 3: of Congress to fight back. The fact is that just
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Speaker 3: in the last couple of weeks, the Supreme Court struck
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Speaker 3: down maybe the most important statute vers has passed in
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Speaker 3: the twentieth century. That is to say, the Voting Rights Act.
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Speaker 3: They effectively struck it down. They have now destroyed the
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Speaker 3: ability of Congress to control the terms of executive branch employees.
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Speaker 3: Those are major shots across the bow at a coordinate
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Speaker 3: branch of government, and Congress has the right to respond.
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Speaker 1: I won't hold my breath for Congress to respond, though,
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Speaker 1: at least not this Congress.
5:28
Speaker 4: Maybe the next Congress.
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Speaker 3: That right now, but you can start making noises about this.
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Speaker 1: To my mind, the justices seem to make a good
5:36
Speaker 1: case for the need for more security. Barrett testified about
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Speaker 1: a swatting incident just a few weeks ago, and threats
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Speaker 1: are on the rise across the country for federal judges.
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Speaker 3: I think the security concerns are completely justified. Things really
5:53
Speaker 3: have changed, and they've changed.
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Speaker 5: For the worst.
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Speaker 3: Years ago, when I worked for a Justice Marshall, not
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Speaker 3: only did he have no security detail, his number was
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Speaker 3: listed in the phone book along with his address.
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Speaker 4: Oh wow, So things are just.
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Speaker 3: Not like that anymore, and that's a legitimate concern now.
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Speaker 3: I do think Congress has a role to play in
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Speaker 3: deciding exactly what form the security should take. So, for example,
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Speaker 3: it's not completely obvious to me that the best thing
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Speaker 3: to do is to set up a visitor center outside
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Speaker 3: the Supreme Court. I'm not an expert on security. Maybe
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Speaker 3: that's necessary, maybe it's not. But I think Congress has
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Speaker 3: some role to decide about what the best way to
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Speaker 3: proceed is. But they certainly deserve to be safe, and
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Speaker 3: the threats of the justices are a serious matter and
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Speaker 3: ought to be handled appropriately.
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Speaker 1: There were some questions that were outside the budget, and
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Speaker 1: one was about the Code of Ethics. All nine justices
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Speaker 1: agreed to the code in twenty twenty three because there
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Speaker 1: was all that criticism over undisclosed strips and gifts from
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Speaker 1: wealthy benefactors to some justices, but Kagan and Barrett split
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Speaker 1: on the need for a mechanism to enforce the code.
7:10
Speaker 1: Justice Kagan said she stood by her earlier suggestion that
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Speaker 1: there should be an enforcement mechanism, but Barrett said there's
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Speaker 1: significant questions over who would do the enforcing. But what
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Speaker 1: good is a Code of Ethics if there's nothing to
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Speaker 1: enforce it.
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Speaker 3: Well, there needs to be enforcement. What's happened with a
7:30
Speaker 3: number of Supreme Court justices, frankly is disgraceful. And you know,
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Speaker 3: if you have life tenure and you wear these robes
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Speaker 3: that were associated with being priests, and everybody stands up
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Speaker 3: and says your honor whenever you walk into the room.
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Speaker 3: That even for normal people, that produces a kind of arrogance,
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Speaker 3: I think, and that's an occupational hazard for the Supreme Court.
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Speaker 3: So there ought to be enforceable code of ethics for them,
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Speaker 3: like there is for almost everybody else in the government.
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Speaker 3: And again Congress would be within its powers to impose
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Speaker 3: that on the Court.
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Speaker 1: That shows even in this hearing, because it wasn't the
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Speaker 1: usual combative hearing, you see, they were very respectful questions
8:16
Speaker 1: asked very respectfully.
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Speaker 3: Being a Supreme Court justice is never having to explain yourself, right,
8:22
Speaker 3: the justices, they don't hold press conferences, They only rarely
8:27
Speaker 3: appeared before Congress. As I said before, they often don't
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Speaker 3: write their own opinions. They are unaccountable, and that creates
8:35
Speaker 3: a kind of mindset that can be really quite dangerous.
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Speaker 1: They also fielded questions about the use of the emergency docket,
8:45
Speaker 1: often referred to as the shadow docket. These orders that
8:48
Speaker 1: are typically issued early in cases and without much reasoning
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Speaker 1: from the justices, have been criticized, including by some of
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Speaker 1: the liberal justices pointed out some high profile decisions may
9:03
Speaker 1: have encouraged attorneys to file more appeals, and she said
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Speaker 1: the appeals are decided without full briefing or arguments, and
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Speaker 1: we should consider those downsides.
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Speaker 3: Justice Kagan said today she thought the problem had gotten
9:17
Speaker 3: somewhat better, and I think it has. The Justices are
9:21
Speaker 3: doing more to explain themselves. But there still is something
9:26
Speaker 3: of a problem. And I think one downside of these
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Speaker 3: emergency orders without opinions is it leaves very unclear for
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Speaker 3: lower court judges who were trying.
9:36
Speaker 5: To do what Spoon for Boston to do.
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Speaker 3: If the Court doesn't tell them clearly what they're supposed
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Speaker 3: to do, then it's firy.
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Speaker 1: What would you have What would you have asked the
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Speaker 1: justices if you were on the committee.
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Speaker 3: Well, I think it's appropriate to ask the justices about
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Speaker 3: cases that they've decided.
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Speaker 5: Now that's not a popular view.
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Speaker 3: I think most other law professors would disagree with that,
10:00
Speaker 3: but I don't really see what's wrong with it. As
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Speaker 3: I say, Congress is a coordinate branch of government, and
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Speaker 3: if the Court chooses to invalidate, as I said before,
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Speaker 3: maybe the most important law passed in the twentieth century
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Speaker 3: the nineteen sixty five Voting Rights Act, which and by
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Speaker 3: the way, the amendments to that which were at stake
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Speaker 3: were signed by President Reagan and passed by a bipartisan Congress.
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Speaker 3: If they chose to invalidate that, then they ought to
10:26
Speaker 3: be subject to questions about what their reasons are. And
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Speaker 3: I just wish the legislative brands were a little more
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Speaker 3: assertive and asserting the powers that it has under our constitution.
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Speaker 1: And in the opening statement, Kagan was careful to announce
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Speaker 1: that they can't address individual cases. You know, the justices
10:48
Speaker 1: testified about the budget for decades. Why did they stop
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Speaker 1: coming to Congress to testify?
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Speaker 3: This is another aspect of the Court's lack of accountability.
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Speaker 3: For years, in year years, it was traditional that every
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Speaker 3: year the Chief Justice would come and testify. Then there
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Speaker 3: was controversy about the Code of Ethics. Congress wanted the
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Speaker 3: Chief Justice to come and explain, and he refused to
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Speaker 3: do so.
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Speaker 5: And so this is the.
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Speaker 3: First time in a long time that anybody's actually come
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Speaker 3: to the Hill and talked to the Senators and representatives.
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Speaker 1: Well, see if they make a return appearance next year.
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Speaker 1: Thanks so much for joining me. That's Professor Lewis Michael
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Speaker 1: Sideman of Georgetown Law. Coming up next on the Bloomberg
11:33
Speaker 1: Law Show, a test case aimed at closing the door
11:37
Speaker 1: on those unlimited contributions to super PACs you're listening to Bloomberg.
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Speaker 1: Super PACs have been part of American politics since twenty ten,
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Speaker 1: spending billions of dollars to influence races with no limits
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Speaker 1: on contributions. Now, a test case is making its way
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Speaker 1: through the courts that, if success essful, could reinstate, federal
12:02
Speaker 1: and state limits on contributions. In twenty twenty four, seventy
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Speaker 1: five percent of Maine's voters approved a referendum that limited
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Speaker 1: contributions to a super pac to five thousand dollars a year.
12:15
Speaker 1: To super PACs challenge the law, and a federal judge
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Speaker 1: struck it down in twenty twenty five, citing a twenty
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Speaker 1: ten ruling by the d C. Circuit Court of Appeals.
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Speaker 1: The main case is now on appeal to the First Circuit.
12:29
Speaker 1: My guest is Harvard Law professor Lawrence Lessig, who's leading
12:32
Speaker 1: the federal court case to uphold Maine's law. He's also
12:37
Speaker 1: the founder of Equal Citizens, which helped draft the referendum
12:41
Speaker 1: for those who aren't familiar with campaign finance laws tell
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Speaker 1: us about super PACs and their influence in politics.
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Speaker 4: Right, So, the significant thing about a superpack is that
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Speaker 4: it is not constrained in the size of the contribution
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Speaker 4: it can accept. So it can accept a contribution of
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Speaker 4: one thousand dollars, it can accept contribution of a billion dollars.
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Speaker 4: And so what's happened since they were created by a
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Speaker 4: lower federal court in twenty ten is that the concentration
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Speaker 4: of money coming from billionaires in our elections has exploded.
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Speaker 4: So in twenty ten, outside spending by billionaires accounted for
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Speaker 4: abou zero point three percent of total outside spending, and
13:23
Speaker 4: in twenty twenty four it accounted for nineteen percent, which
13:27
Speaker 4: means sixty three times what it accounted for in twenty ten.
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Speaker 4: So what we see is the system is increasingly concentrating
13:35
Speaker 4: power in a smaller and smaller number of people who've
13:39
Speaker 4: demonstrated they have no qualms in exercising that power to
13:44
Speaker 4: demand policies that benefit them, even if they don't benefit
13:47
Speaker 4: ordinary Americans.
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Speaker 1: So, as you point out in your article, most people
13:52
Speaker 1: think that the creation of super PACs and the explosion
13:55
Speaker 1: is due to the citizens United case, but you say
13:59
Speaker 1: it's due to so a DC federal court case after
14:02
Speaker 1: its Citizens United right.
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Speaker 4: Three months after Citizens United, a lower federal court, in
14:08
Speaker 4: a case called speech Now versus p PC, had to
14:11
Speaker 4: address a different question from the question in Citizens United.
14:15
Speaker 4: So Citizens United had to address the question what happens
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Speaker 4: when an independent expenditure is made by a corporation or
14:23
Speaker 4: a labor union or any rich person. And they extended
14:29
Speaker 4: the ruling they had made in nineteen seventy six in
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Speaker 4: a case called Buckley versus Valeo to say that anybody
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Speaker 4: who's spending money independently, whether a corporation or a union
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Speaker 4: or a.
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Speaker 5: Political action committee, could.
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Speaker 4: Do that freely so long as their spending was not
14:47
Speaker 4: coordinated with the campaign. So coordinated is not quite quid
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Speaker 4: pro quo. It just means you can't coordinate. You can't like,
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Speaker 4: talk to each other when you're doing that spending. And
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Speaker 4: the reason that was important it was if you're not
15:01
Speaker 4: talking to the other side, there's no risk that you're
15:04
Speaker 4: going to be engaging in a quid pro quo with
15:06
Speaker 4: the other side not making a deal. This for that,
15:09
Speaker 4: and the only reason the Supreme Court said that we
15:11
Speaker 4: could limit political speech was the risk of this kind
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Speaker 4: of quid pro quote, the risk of this kind of corruption. Okay,
15:18
Speaker 4: that was Citizens United. But the lower federal court had
15:21
Speaker 4: to address a different question. Could you spend unlimited amounts
15:26
Speaker 4: of money, but could you contribute unlimited sums to committees
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Speaker 4: that were going to then spend their money independently of
15:34
Speaker 4: the campaign. And what the lower federal court said, Judge
15:37
Speaker 4: Centel was the judge who wrote the opinion was that
15:40
Speaker 4: it followed as a matter of logic. He said that
15:43
Speaker 4: if you had no risk of corruption with independent spending,
15:49
Speaker 4: you couldn't have a risk of corruption with a contribution
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Speaker 4: to a committee.
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Speaker 5: That makes that independent spending.
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Speaker 4: That's the move that created super PACs and that once
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Speaker 4: you see it, I didn't see it, but once you
16:02
Speaker 4: see it, it is obviously wrong.
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Speaker 1: So you and your group equal citizens are behind the
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Speaker 1: main referendum. So tell us more about it, right.
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Speaker 4: So in twenty twenty three, Mayners, having heard the story
16:16
Speaker 4: of this mistake made by the d C Circuit Court
16:19
Speaker 4: of Appeals, suggested to me I was at a dinner
16:23
Speaker 4: telling them the story, and some of the leaders, including
16:26
Speaker 4: Rick Bennett, who is then a Republican state senator, from Maine.
16:30
Speaker 4: He's now an independent running for governor. Said to me,
16:33
Speaker 4: you know, we ought to have that initiative here in Maine,
16:36
Speaker 4: and so we helped gather the signatures equal citizens to
16:40
Speaker 4: get it on the ballot the twenty twenty four ballot.
16:42
Speaker 4: Once the signatures were certified, we stepped back and let
16:45
Speaker 4: the maners run the campaign. But in twenty twenty four,
16:49
Speaker 4: seventy four point nine percent of maynors six hundred thousand maynors,
16:53
Speaker 4: more people than have ever voted for anything, any candidate
16:57
Speaker 4: or any initiative in the history of Maine, said no
17:00
Speaker 4: to super Packs. They said they wanted no longer to
17:03
Speaker 4: live under a system where billionaires could come in and
17:06
Speaker 4: dump millions and millions of dollars in campaigns. Instead, they
17:10
Speaker 4: wanted to go back to the old system. Your contributors
17:13
Speaker 4: were capped at five thousand dollars. And so that initiative,
17:16
Speaker 4: once it passed, was challenged by two super packs within
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Speaker 4: about a month of its passing. And that's the case
17:23
Speaker 4: that's currently being litigated, and in the end of July
17:26
Speaker 4: will be heard in the First Circuit Court of Appeals.
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Speaker 1: Explain what happened at the lower federal court the decision
17:33
Speaker 1: by a main federal judge.
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Speaker 4: Yah, the lower federal court actually ruled against us, but
17:39
Speaker 4: I think in the nicest possible way she could have
17:41
Speaker 4: because she she's recognized something that none of the other
17:45
Speaker 4: courts acknowledged. So every other court, starting with the DC
17:50
Speaker 4: Circuit in Speech Now versus FBC, but then very quickly
17:54
Speaker 4: in a number of other circuits around the country, all
17:57
Speaker 4: these other courts made the same move. They all said,
18:00
Speaker 4: there's no risk of corruption with a contribution to an
18:04
Speaker 4: independent political action committee. And that's the core logic which
18:09
Speaker 4: demonstrates why a state has no power to regulate it,
18:12
Speaker 4: because again, the only reason you can invoke for regulating
18:16
Speaker 4: political speech is the risk of corruption. So if you
18:19
Speaker 4: don't think there's a risk, you can't regulate. The district
18:22
Speaker 4: court in our case said yeah, okay, yeah, there's a
18:26
Speaker 4: risk of quid pro quo corruption. And it was hard
18:28
Speaker 4: for her not to acknowledge that because there have been
18:32
Speaker 4: so many obvious examples of a quid pro quo involving
18:37
Speaker 4: a contribution to a superpack that you just have to
18:39
Speaker 4: shut your eyes to reality not to recognize them. The
18:43
Speaker 4: clearest was in twenty fifteen when Robert Menendez, a Democratic
18:48
Speaker 4: senator from New Jersey, was indicted by the federal government.
18:52
Speaker 4: The indictment was he promised government favors in exchange for contribution,
18:59
Speaker 4: a contribution.
19:00
Speaker 5: To his super pack.
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Speaker 4: So there was the very thing the DC Circuit said
19:04
Speaker 4: could not happen. A quid pro quo involving a contribution
19:08
Speaker 4: to a superpack was the basis of the indictment. Indeed,
19:11
Speaker 4: Menendez's lawyers had the hood spot to argue that the
19:15
Speaker 4: thing you've indicted us for, the DC Circuit says cannot happen,
19:20
Speaker 4: so we must be innocent. But of course the court
19:22
Speaker 4: didn't dismiss the indictment because what then in fact was
19:25
Speaker 4: revealing was the mistake the DC Circuit had made. And
19:29
Speaker 4: so artist re court acknowledged that there was the risk
19:32
Speaker 4: of corruption. There's too many examples just to deny that.
19:36
Speaker 4: But then she constructed a whole new theory of the
19:38
Speaker 4: First Amendment to show that even though there's a risk
19:41
Speaker 4: of corruption, the one thing the Court has said again
19:44
Speaker 4: and again governments have the power to address even though
19:47
Speaker 4: there is that risk, there's nothing the state can do,
19:50
Speaker 4: and that we think sets this case up for an
19:53
Speaker 4: obvious reversal. By the First Circuit Court of Appeals because
19:57
Speaker 4: the First Circuit Court of Appeals will realize that the
19:59
Speaker 4: whole basis for super packs has been blown up once
20:03
Speaker 4: you acknowledge that there's this risk of corruption.
20:06
Speaker 1: So the goal with this test case is to get
20:09
Speaker 1: it to the Supreme Court. I mean, have the conservative
20:12
Speaker 1: justices on this Supreme Court ever seen a campaign finance
20:15
Speaker 1: restriction that they liked?
20:18
Speaker 4: So the answer to your question is yes, they have
20:21
Speaker 4: repeatedly found campaign finance restrictions that they like. The ones
20:27
Speaker 4: they like are restrictions on contributions, not restrictions on spending.
20:32
Speaker 4: So any time a spending restriction has come before this court,
20:36
Speaker 4: the Court has found a way to strike it down.
20:38
Speaker 4: And that's not surprising given the way this court.
20:41
Speaker 5: Views the question.
20:42
Speaker 4: But the point is it has never looked at a
20:45
Speaker 4: contribution restriction and said, I, no, no, the contribution restriction can't.
20:51
Speaker 5: Be can't be imposed.
20:52
Speaker 4: I can't say never, because once the State of Vermont
20:55
Speaker 4: created a very very low contribution restriction in the court
20:58
Speaker 4: said that's just too low. I mean, there's no plausible
21:01
Speaker 4: risk of corruption when you're giving somebody five hundred dollars,
21:03
Speaker 4: So you setting it at four hundred dollars is just
21:06
Speaker 4: too low. So the point is, the Court has a
21:08
Speaker 4: regime for thinking about contribution restrictions. It's never considered the
21:13
Speaker 4: contribution restriction. We are addressing a contribution restriction on an
21:18
Speaker 4: independent political action committee. And that's why we're saying, we're
21:22
Speaker 4: not questioning you're spending jurisprudence. We're asking you to apply
21:26
Speaker 4: your contribution jurisprudence, and if you do that, then we win. Now,
21:31
Speaker 4: I will tell you that there's another part to the argument. Indeed,
21:35
Speaker 4: you know, we have Neil Katyal Neil the Tariff Slayer
21:38
Speaker 4: soon to be known as Neil the Super pac Slayer
21:41
Speaker 4: Katyal in our case, and Neil is in the case
21:46
Speaker 4: along with the Attorney General of Maine because we wanted
21:50
Speaker 4: to make the originalist argument, the argument that the conservative
21:54
Speaker 4: justices on the Supreme Court says is the way that
21:57
Speaker 4: they think about the meaning of the Constitution. The Attorney
21:59
Speaker 4: General of Maya was not eager to make that argument
22:01
Speaker 4: because it has a kind of political overtones that you know,
22:04
Speaker 4: people aren't maybe comfortable with. But the point is it's
22:08
Speaker 4: an argument that presumptively six justices on the United States
22:12
Speaker 4: Supreme Court are interested in and so under the originalist argument.
22:16
Speaker 5: The point that we're making.
22:18
Speaker 4: Is that this whole line of jurisprudence born in nineteen
22:23
Speaker 4: seventy six at the height of the Burger Court in
22:27
Speaker 4: the case Buckley versus Valeo one hundred and forty four
22:30
Speaker 4: page opinion, which never once explains what the original meaning
22:33
Speaker 4: of the First Amendment is or why it's relevant in
22:35
Speaker 4: this case. If you apply to originalism to the question
22:40
Speaker 4: of whether Buckley versus Valao is constitutionally compelled or not,
22:44
Speaker 4: the answer is obviously that Buckley is wrong, that Buckley
22:48
Speaker 4: should be overturned. And indeed, you don't tay have to
22:51
Speaker 4: take me a non conservative's view on this. Josh Holly
22:56
Speaker 4: in October of twenty twenty three introduced a bill in
22:59
Speaker 4: Congress to quote overturn Citizens United And when he introduced
23:04
Speaker 4: that bill, he explained it by saying, as any good
23:07
Speaker 4: originalist knows, the original meeting of the First Amendment would
23:11
Speaker 4: never have limited how Congress regulated what corporations could spend
23:15
Speaker 4: their money on. And so the point is, if you
23:18
Speaker 4: were consistent, if the Court were consistent in its originalism
23:22
Speaker 4: and applied originalism here, it should step back and.
23:25
Speaker 5: Say, whoa, whoa, whoa.
23:26
Speaker 4: We've been weaving this incredibly complex set of rules under
23:32
Speaker 4: Buckley versus Valeo, very much like the complex set of
23:35
Speaker 4: rules that were woven under Roe versus. Weight. Both opinions
23:40
Speaker 4: grounded an approach to constitutional jermansprudence that didn't take originalism seriously. Well,
23:46
Speaker 4: we're now a majority originalist court and we're pushing them
23:50
Speaker 4: to say, what should the originalist court say about regulations
23:55
Speaker 4: on campaign finance? Because as our experts submitted, and there's
23:59
Speaker 4: no substantial counter submission in this case, but no doubt
24:04
Speaker 4: the original meeting of the First Amendment would never have
24:07
Speaker 4: stopped the people of Maine, or Congress for that matter,
24:11
Speaker 4: from doing what they did in this case.
24:14
Speaker 1: Coming up next on the Bloomberg Law Show, I'll continue
24:17
Speaker 1: this conversation with Harvard Law School professor Larry lesseg we'll
24:21
Speaker 1: talk about those appellate arguments that are coming up at
24:24
Speaker 1: the end of the month. I'm June Grosso, and you're
24:27
Speaker 1: listening to Bloomberg. In twenty twenty four, Main's voters approved
24:32
Speaker 1: a referendum that limited contributions to super PACs to five
24:36
Speaker 1: thousand dollars a year. A federal judge struck down the
24:40
Speaker 1: law in twenty twenty five, but the case is now
24:43
Speaker 1: on appeal to the First Circuit. I've been talking to
24:46
Speaker 1: Harvard law professor Larry Lesseg who's leading the case to
24:49
Speaker 1: uphol Main's law. The oral arguments are coming up on
24:53
Speaker 1: July twenty ninth. What will be the focus of the
24:56
Speaker 1: oral arguments? Give us a sort of preview of both sides.
25:00
Speaker 4: Well, I think that the court is going to want
25:03
Speaker 4: to unpack the logical mistake that we allege Speech Now
25:07
Speaker 4: made and that other courts have followed, and so they
25:10
Speaker 4: will want to figure out if in fact the District
25:13
Speaker 4: Court is right that there is a risk of quick
25:15
Speaker 4: pro quote corruption with contributions to independent political action committees.
25:19
Speaker 4: Does that mean that they need to effectively reverse speech
25:23
Speaker 4: now Now? Not technically, because Speech Now is a decision
25:26
Speaker 4: from the d C Circuit Court of Appeals, it doesn't
25:28
Speaker 4: apply in the First Circuit. So the First Circuits never
25:32
Speaker 4: had a chance to think about whether the law governing
25:35
Speaker 4: super packs should be what the DC Circuits at or
25:38
Speaker 4: something else. So for the first time it will address
25:40
Speaker 4: that question and give us an answer. And if the
25:43
Speaker 4: court says that under the reasoning of Citizens United, there's
25:47
Speaker 4: no reason why the people of Maine can't limit the
25:50
Speaker 4: size of contributions given the risk of corruption from those contributions.
25:55
Speaker 4: Then that will tee up the case to go to
25:57
Speaker 4: the Supreme Court, because it will have created a split,
26:00
Speaker 4: a really pretty important split in the circuits between circuits
26:04
Speaker 4: that say you can't limit the size of contributions and
26:08
Speaker 4: the first circuit that would say you can, and that
26:10
Speaker 4: would give the Supreme Court a chance to adjust the question.
26:13
Speaker 4: And you know, I feel like I feel like I'm
26:15
Speaker 4: giving the Supreme Court a gift here because the Supreme
26:19
Speaker 4: Court has been ridiculed, attacked, slandered by people for the
26:24
Speaker 4: last sixteen years who complain about super PACs. My friend
26:27
Speaker 4: Bertie Sanders constantly saying it's the worst decision the Supreme Court.
26:31
Speaker 4: Citizens in United created superbacks are destroying democracy, And it's
26:34
Speaker 4: certainly true. I believe that super PACs are destroying our democracy,
26:38
Speaker 4: are destroying the trust people have in their system when
26:40
Speaker 4: they see people giving two hundred and seventy million dollars
26:44
Speaker 4: in an election and then turning around and seeing government
26:48
Speaker 4: policies radically changed to benefit that contributor. So I think
26:52
Speaker 4: Bernie Sanders is right about the consequence of superpacks. What
26:56
Speaker 4: he's wrong about is that the Supreme Court creates this problem.
27:01
Speaker 4: The Supreme Court didn't create this problem. And I think
27:03
Speaker 4: we're giving the Court the chance to say, hey, Senator Sanders,
27:07
Speaker 4: you're wrong about Citizens United.
27:09
Speaker 5: We love Citizens United. Citizen is right.
27:11
Speaker 4: We completely affirm Citizens United. But question in this case
27:15
Speaker 4: is fundamentally different. It's not about spending, it's about contributions.
27:19
Speaker 4: And our jurisprudence from Buckley on has said you can
27:24
Speaker 4: limit contributions if it's an appropriate way to address the
27:28
Speaker 4: risk of corruption. And as this court in this case recognized,
27:31
Speaker 4: there's a risk of corruption, so therefore you can limit contributions.
27:34
Speaker 4: The whole country would say, has ah. They would be
27:37
Speaker 4: astonished because everybody would react as you have by saying,
27:41
Speaker 4: I've never seen this court do anything sensible in the
27:43
Speaker 4: context of campaign finance. Well here they would. Ninety percent
27:47
Speaker 4: of people would say this is an amazing victory. But
27:50
Speaker 4: my point is it's not really a victory. It's not
27:52
Speaker 4: really the Court changing its mind about anything. It's the
27:55
Speaker 4: Court applying its principles consistently. And I think seven justices
28:01
Speaker 4: of this court would do that without a hesitation, and
28:04
Speaker 4: so that's why we're optimistic that when we get this
28:07
Speaker 4: to the court, the court will give America what America
28:10
Speaker 4: desperately wants, not just maners, all of America, a democracy
28:14
Speaker 4: that is not dominated by the few billionaires who've decided
28:18
Speaker 4: this is the best.
28:18
Speaker 5: Way to make a buck.
28:20
Speaker 1: What argument from the other side do you think is,
28:24
Speaker 1: let's say, most dangerous to your case.
28:28
Speaker 4: Well, I mean, there is this view that some justices
28:31
Speaker 4: have articulated, and I think Justice Thomas is the best
28:34
Speaker 4: example of this. Then we can think of this libertarian
28:37
Speaker 4: view of campaign finance regulations that all of it is unconstitutional,
28:42
Speaker 4: that any attempt to regulate in the context of political
28:45
Speaker 4: speech is unconstitutional, and so therefore it's not just limits
28:49
Speaker 4: on contributions, it's also in the context of independent political
28:53
Speaker 4: action committees. It should also be limits on contributions in
28:56
Speaker 4: the ordinary campaigns, like there should be no regulation here
28:59
Speaker 4: at all, the extreme libertarian view. Okay, So if that's
29:03
Speaker 4: your political preference, if that's your political view about what
29:07
Speaker 4: a good constitution would require, you could be led to
29:10
Speaker 4: think this is a good idea to impose that political view.
29:14
Speaker 5: On American democracy.
29:15
Speaker 4: The problem for originalists, especially Justice Thomas, is it has
29:19
Speaker 4: no relation to what our framers actually did. The framers
29:25
Speaker 4: of our constitution never embraced that libertarian view. And so
29:30
Speaker 4: what's striking about Justice Thomas is when you look, for example,
29:33
Speaker 4: in the context of New York Times versus Sullivan, a
29:36
Speaker 4: really important case that created immunity for Reportersuas Thomas has
29:42
Speaker 4: been trying to get the court to overturn that case,
29:44
Speaker 4: and when he has tried to do that, he has said, look,
29:47
Speaker 4: that case, New York Times versus Sullivan is policy making
29:51
Speaker 4: dressed up as constitutional law. When I read that, I thought,
29:54
Speaker 4: have you ever read Buckley versus Falleo, Justice Thomas? There's
29:58
Speaker 4: no case more clearly making dressed up as constitutional law.
30:01
Speaker 4: But what Justice Thomas says in the context of New
30:04
Speaker 4: York Times versus Sullivan is we should go back to
30:07
Speaker 4: seventeen ninety one and ask the question, what would the
30:10
Speaker 4: courts in seventeen ninety one have said, if you'd ask them,
30:14
Speaker 4: is there an immunity that reporters have when they make
30:19
Speaker 4: a mistake and cause mistakenly cause defamation?
30:22
Speaker 5: The answers, no, there's no such immunity.
30:23
Speaker 4: So therefore there shouldn't be an immunity to day Well,
30:26
Speaker 4: you know, you and I i'm sure would share the
30:30
Speaker 4: view that that's not a great constitutional regime. Would we
30:33
Speaker 4: would rather there be immunity for reporters like that's not
30:36
Speaker 4: a question of what we substantively or politically would want.
30:40
Speaker 4: My point is that's the consequence of that method of interpretation.
30:45
Speaker 4: And my claim is, Okay, change the channel to campaign
30:49
Speaker 4: finance and ask the same question, Justice Thomas, what is
30:54
Speaker 4: the principled Originalist answer and the context of campaign finance
30:59
Speaker 4: towards prudence, and the answer has got to be the same.
31:02
Speaker 4: You go back to the framing. You ask them in
31:04
Speaker 4: that context, did the First Amendment blocking Congress from quota
31:07
Speaker 4: bridging the freedom of speech mean that you couldn't limit
31:12
Speaker 4: the size of contributions to an independent political action committee?
31:16
Speaker 4: And seven ways from Sunday, the answer to that question
31:19
Speaker 4: is no. And you know, we've pulled together a submission
31:23
Speaker 4: by Jonathan Ginnepp, one of the leading Stanford scholars about
31:26
Speaker 4: the original meeting, but we also had submissions by Jack Raykoff,
31:30
Speaker 4: maybe the dean of Originalist to understand historical understanding, it's
31:34
Speaker 4: consistent with jud Campbell, whose work Justice Thomas has cited
31:40
Speaker 4: for the principle that you can't as an originalist, have
31:43
Speaker 4: a First Amendment that operates the way it does in
31:45
Speaker 4: the context of New York Times versus Sullivan. So we're
31:48
Speaker 4: just saying you have the right because the Senate confirmed
31:51
Speaker 4: her appointment to the Supreme Court. You have the right
31:53
Speaker 4: to decide how you're going to interpret the Constitution, but
31:57
Speaker 4: we have the right to say do it consistently. And
32:00
Speaker 4: so if you're going to strike down a woman's right
32:03
Speaker 4: to choose whether to carry a pregnancy to term or
32:05
Speaker 4: not on the basis of an original understanding of the
32:09
Speaker 4: due process clause, fine, Not that I like that answer,
32:12
Speaker 4: but fine, if you're going to do that there, you
32:15
Speaker 4: should be doing it here. The idea that the Constitution
32:18
Speaker 4: doesn't protect a woman's right to choose, but it protects
32:20
Speaker 4: a billionaire's right to control elections is just crazy talk.
32:25
Speaker 4: Does not follow from an originalist understanding of the Constitution.
32:28
Speaker 1: Well before the Supreme Court comes the first Circuit and
32:31
Speaker 1: we'll be listening to the arguments to see how they go.
32:34
Speaker 1: Thanks so much, Larry for joining me. That's Harvard Law
32:37
Speaker 1: School Professor Lawrence Lessig