# Will Maine Case Change Super PACs & Justices Testify

An episode of [Bloomberg Law](https://invisiblenetwork.ai/podcast/277975394), 14 Jul 2026, 33 min.

Audio: https://podtrac.com/pts/redirect.mp3/traffic.omny.fm/d/clips/e73c998e-6e60-432f-8610-ae210140c5b1/7c892d84-801f-4c0b-b0e9-ae2b0012ff5f/d0b970bf-9cbe-4de7-a95a-b48701868768/audio.mp3?utm_source=Podcast&in_playlist=91224201-26a6-429d-ac3c-ae2b0012ff6d

Harvard Law School Professor Lawrence Lessig discusses the federal court case he is leading to uphold Maine’s law limiting contributions to super PACs. And Georgetown Law Professor Louis Michael Seidman, author of the book “The Constitution Cannot Save Us: Why We Can No Longer Rely on Our Founding Document,” discusses the testimony of Supreme Court Justices Elena Kagan and Amy Coney Barrett on the Supreme Court’s request for increased funding to beef up security amid increasing threats against the justices. June Grasso hosts. See omnystudio.com/listener for privacy information.

## Transcript

[0:02] Speaker 1: This is Bloomberg Law with June Brossel from Bloomberg Radio.
[0:08] Speaker 1: For some of us, those threats have come very close,
[0:12] Speaker 1: and all of us live with the knowledge that they
[0:14] Speaker 1: may again materialize. Justice is Elena Kagan and Amy Coney.
[0:19] Speaker 1: Barrett made a rare appearance before Congress today as the
[0:23] Speaker 1: Judiciary seeks millions of dollars to beef ump security amid
[0:28] Speaker 1: increasing threats against the Justices. Justice Barrett explained the challenges
[0:33] Speaker 1: for her family of navigating the enhanced threat landscape, recalling
[0:38] Speaker 1: an incident when her security detail sent her home with
[0:41] Speaker 1: a bulletproof vest after the leak of the Dobbs decision,
[0:45] Speaker 1: which overturned the constitutional right to abortion.
[0:49] Speaker 2: I carried it into my house, put it into my bedroom,
[0:52] Speaker 2: dropped it down on a table, turned around, and my
[0:54] Speaker 2: twelve year old son was standing in the doorway of
[0:57] Speaker 2: my bedroom and he wanted to know what it was,
[1:00] Speaker 2: why I had it. And I didn't know how to respond,
[1:03] Speaker 2: because maybe I lack imagination, but I didn't expect that
[1:06] 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
[1:12] Speaker 2: and why I had to wear one.
[1:13] Speaker 1: The Supreme Court is asking for two hundred and twenty
[1:16] Speaker 1: eight million dollars for next year's budget that includes a
[1:20] Speaker 1: fourteen point six million dollar increase, or ten percent over
[1:24] Speaker 1: last year, to expand the justice's security details and monitor
[1:29] 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.
[1:55] Speaker 3: Well, I think they're there now because they're worried about
[1:58] 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
[2:11] Speaker 3: of government doesn't just mean showing up when you want
[2:14] Speaker 3: something from them. They are built into the constitution checks
[2:18] 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
[2:32] 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,
[2:42] Speaker 3: and I think they ought to start using it.
[2:44] Speaker 1: I mean, has there been a Congress in our history
[2:47] Speaker 1: that's cut off or you know, limited funding to the
[2:51] Speaker 1: Supreme Court.
[2:52] 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
[3:04] Speaker 3: This was run up to a famous case called Marlbury b. Madison,
[3:08] 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
[3:14] Speaker 3: long time ago. It hasn't happened recently, but that doesn't
[3:17] Speaker 3: mean it can't happen. So here's an example of something
[3:21] 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.
[3:33] Speaker 3: Now they're down to about sixty with a quadrupled staff.
[3:37] 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
[3:45] Speaker 3: young law students to do it for them. So I
[3:48] Speaker 3: think it would be perfectly appropriate for Congress to cut
[3:51] Speaker 3: the line item for law clerks, make them do their
[3:54] Speaker 3: own work for goodness sake. But more broadly, if Congress
[3:58] Speaker 3: is not happy with how the Supreme Court is behaving,
[4:03] Speaker 3: they have perfectly legitimate and constitutional means to fight back,
[4:07] Speaker 3: and they ought to be more seriously thinking about using
[4:11] Speaker 3: those means.
[4:12] Speaker 1: I think the problem is that Congress doesn't agree. So
[4:15] Speaker 1: you'd have the Democratic lawmakers on one side and the
[4:18] Speaker 1: Republican lawmakers on the other end. You know, I think
[4:21] Speaker 1: the Republicans are pretty happy with the Supreme Court as
[4:24] Speaker 1: it is.
[4:25] Speaker 3: Well, they're happy about some things, not about others, true,
[4:28] Speaker 3: but yeah, sure, I think you're right. But the real
[4:31] 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
[4:39] Speaker 3: to be this widespread perception, and I don't know where
[4:43] Speaker 3: it comes from, that somehow it's illegitimate for dissatisfied members
[4:48] Speaker 3: of Congress to fight back. The fact is that just
[4:51] Speaker 3: in the last couple of weeks, the Supreme Court struck
[4:56] Speaker 3: down maybe the most important statute vers has passed in
[5:01] Speaker 3: the twentieth century. That is to say, the Voting Rights Act.
[5:04] Speaker 3: They effectively struck it down. They have now destroyed the
[5:09] Speaker 3: ability of Congress to control the terms of executive branch employees.
[5:15] Speaker 3: Those are major shots across the bow at a coordinate
[5:19] Speaker 3: branch of government, and Congress has the right to respond.
[5:24] Speaker 1: I won't hold my breath for Congress to respond, though,
[5:27] Speaker 1: at least not this Congress.
[5:28] Speaker 4: Maybe the next Congress.
[5:30] Speaker 3: That right now, but you can start making noises about this.
[5:34] 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
[5:41] Speaker 1: a swatting incident just a few weeks ago, and threats
[5:44] Speaker 1: are on the rise across the country for federal judges.
[5:48] Speaker 3: I think the security concerns are completely justified. Things really
[5:53] Speaker 3: have changed, and they've changed.
[5:55] Speaker 5: For the worst.
[5:56] Speaker 3: Years ago, when I worked for a Justice Marshall, not
[6:00] Speaker 3: only did he have no security detail, his number was
[6:04] Speaker 3: listed in the phone book along with his address.
[6:07] Speaker 4: Oh wow, So things are just.
[6:09] Speaker 3: Not like that anymore, and that's a legitimate concern now.
[6:13] Speaker 3: I do think Congress has a role to play in
[6:16] Speaker 3: deciding exactly what form the security should take. So, for example,
[6:22] Speaker 3: it's not completely obvious to me that the best thing
[6:25] Speaker 3: to do is to set up a visitor center outside
[6:28] Speaker 3: the Supreme Court. I'm not an expert on security. Maybe
[6:31] Speaker 3: that's necessary, maybe it's not. But I think Congress has
[6:34] Speaker 3: some role to decide about what the best way to
[6:38] Speaker 3: proceed is. But they certainly deserve to be safe, and
[6:41] Speaker 3: the threats of the justices are a serious matter and
[6:45] Speaker 3: ought to be handled appropriately.
[6:48] Speaker 1: There were some questions that were outside the budget, and
[6:51] Speaker 1: one was about the Code of Ethics. All nine justices
[6:55] Speaker 1: agreed to the code in twenty twenty three because there
[6:57] Speaker 1: was all that criticism over undisclosed strips and gifts from
[7:02] Speaker 1: wealthy benefactors to some justices, but Kagan and Barrett split
[7:07] 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
[7:13] Speaker 1: there should be an enforcement mechanism, but Barrett said there's
[7:17] Speaker 1: significant questions over who would do the enforcing. But what
[7:22] Speaker 1: good is a Code of Ethics if there's nothing to
[7:25] Speaker 1: enforce it.
[7:26] 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,
[7:36] Speaker 3: if you have life tenure and you wear these robes
[7:40] Speaker 3: that were associated with being priests, and everybody stands up
[7:45] Speaker 3: and says your honor whenever you walk into the room.
[7:47] Speaker 3: That even for normal people, that produces a kind of arrogance,
[7:51] Speaker 3: I think, and that's an occupational hazard for the Supreme Court.
[7:55] Speaker 3: So there ought to be enforceable code of ethics for them,
[7:59] Speaker 3: like there is for almost everybody else in the government.
[8:01] Speaker 3: And again Congress would be within its powers to impose
[8:06] Speaker 3: that on the Court.
[8:08] Speaker 1: That shows even in this hearing, because it wasn't the
[8:11] Speaker 1: usual combative hearing, you see, they were very respectful questions
[8:16] Speaker 1: asked very respectfully.
[8:18] 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
[8:30] 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.
[8:40] 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
[8:53] Speaker 1: from the justices, have been criticized, including by some of
[8:57] 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
[9:07] Speaker 1: the appeals are decided without full briefing or arguments, and
[9:11] Speaker 1: we should consider those downsides.
[9:14] 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
[9:29] Speaker 3: emergency orders without opinions is it leaves very unclear for
[9:34] Speaker 3: lower court judges who were trying.
[9:36] Speaker 5: To do what Spoon for Boston to do.
[9:38] Speaker 3: If the Court doesn't tell them clearly what they're supposed
[9:41] Speaker 3: to do, then it's firy.
[9:43] Speaker 1: What would you have What would you have asked the
[9:45] Speaker 1: justices if you were on the committee.
[9:47] Speaker 3: Well, I think it's appropriate to ask the justices about
[9:52] Speaker 3: cases that they've decided.
[9:54] Speaker 5: Now that's not a popular view.
[9:56] 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
[10:02] Speaker 3: I say, Congress is a coordinate branch of government, and
[10:06] Speaker 3: if the Court chooses to invalidate, as I said before,
[10:10] Speaker 3: maybe the most important law passed in the twentieth century
[10:14] Speaker 3: the nineteen sixty five Voting Rights Act, which and by
[10:17] Speaker 3: the way, the amendments to that which were at stake
[10:19] Speaker 3: were signed by President Reagan and passed by a bipartisan Congress.
[10:23] 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
[10:31] Speaker 3: I just wish the legislative brands were a little more
[10:34] Speaker 3: assertive and asserting the powers that it has under our constitution.
[10:39] Speaker 1: And in the opening statement, Kagan was careful to announce
[10:42] 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
[10:52] Speaker 1: coming to Congress to testify?
[10:54] Speaker 3: This is another aspect of the Court's lack of accountability.
[10:59] Speaker 3: For years, in year years, it was traditional that every
[11:02] Speaker 3: year the Chief Justice would come and testify. Then there
[11:06] Speaker 3: was controversy about the Code of Ethics. Congress wanted the
[11:11] Speaker 3: Chief Justice to come and explain, and he refused to
[11:14] Speaker 3: do so.
[11:14] Speaker 5: And so this is the.
[11:15] Speaker 3: First time in a long time that anybody's actually come
[11:18] Speaker 3: to the Hill and talked to the Senators and representatives.
[11:22] Speaker 1: Well, see if they make a return appearance next year.
[11:26] Speaker 1: Thanks so much for joining me. That's Professor Lewis Michael
[11:29] 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.
[11:45] Speaker 1: Super PACs have been part of American politics since twenty ten,
[11:49] Speaker 1: spending billions of dollars to influence races with no limits
[11:54] Speaker 1: on contributions. Now, a test case is making its way
[11:57] 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
[12:07] Speaker 1: five percent of Maine's voters approved a referendum that limited
[12:11] 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
[12:18] Speaker 1: struck it down in twenty twenty five, citing a twenty
[12:22] Speaker 1: ten ruling by the d C. Circuit Court of Appeals.
[12:25] 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
[12:45] Speaker 1: us about super PACs and their influence in politics.
[12:49] Speaker 4: Right, So, the significant thing about a superpack is that
[12:52] Speaker 4: it is not constrained in the size of the contribution
[12:56] Speaker 4: it can accept. So it can accept a contribution of
[12:58] Speaker 4: one thousand dollars, it can accept contribution of a billion dollars.
[13:02] Speaker 4: And so what's happened since they were created by a
[13:05] Speaker 4: lower federal court in twenty ten is that the concentration
[13:10] Speaker 4: of money coming from billionaires in our elections has exploded.
[13:15] Speaker 4: So in twenty ten, outside spending by billionaires accounted for
[13:19] 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.
[13:31] 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.
[13:49] 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.
[14:04] 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
[14:19] 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
[14:33] Speaker 4: a case called Buckley versus Valeo to say that anybody
[14:36] Speaker 4: who's spending money independently, whether a corporation or a union
[14:40] Speaker 4: or a.
[14:41] Speaker 5: Political action committee, could.
[14:43] 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
[14:52] Speaker 4: pro quo. It just means you can't coordinate. You can't like,
[14:55] Speaker 4: talk to each other when you're doing that spending. And
[14:58] 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
[15:15] 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
[15:31] 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
[15:53] Speaker 4: to a committee.
[15:54] Speaker 5: That makes that independent spending.
[15:56] Speaker 4: That's the move that created super PACs and that once
[16:00] Speaker 4: you see it, I didn't see it, but once you
[16:02] Speaker 4: see it, it is obviously wrong.
[16:04] Speaker 1: So you and your group equal citizens are behind the
[16:08] Speaker 1: main referendum. So tell us more about it, right.
[16:11] 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
[17:20] 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.
[17:29] Speaker 1: Explain what happened at the lower federal court the decision
[17:33] Speaker 1: by a main federal judge.
[17:35] 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.
[19:01] 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

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