McCutcheon v. FEC

Presidential candidates raised more than $1.6 billion in the 2024 election cycle, but if you think flooding politics with money is bad then you don’t understand FREEDOM OF SPEECH. Thanks to this Supreme Court decision, that pesky problem of an individual donor not being able to give more than $117,000 to political campaigns because of stupid campaign finance laws has now been solved. If you're not a 5-4 Premium member, you're not hearing every episode! To hear this and other Premium-only episodes, access to our Slack community, and more, join at fivefourpod.com/support http://fivefourpod.com/support. 5-4 is presented by Prologue Projects. This episode was produced by Dustin DeSoto. Leon Neyfakh provides editorial support. Our researcher is Jonathan DeBruin, and our website was designed by Peter Murphy. Our artwork is by Teddy Blanks at Chips NY, and our theme song is by Spatial Relations. Follow the show at @fivefourpod on most platforms. On BlueSky, find Peter @notalawyer.bsky.social, Michael @fleerultra.bsky.social, and Rhiannon @aywarhiannon.bsky.social. Hosted on Acast. See acast.com/privacy https://acast.com/privacy for more information. Our Sponsors: * Check out Mint Mobile and use my code mintmobile.com/fivefour for a great deal: https://www.mintmobile.com * Check out Quince and use my code FIVEFOUR for a great deal: https://www.quince.com Advertising Inquiries: https://redcircle.com/brands

Speaker names marked ? are inferred from speaking time and the show’s known hosts — they are not voice-verified.

• 0:00Michael Liroff?

  We'll hear argument first this morning in case 12536 McCutcheon versus the Federal Election Commission.

• 0:10Speaker 01

  Hey, everyone. This is Leon from Prologue Projects. On this episode of Five to Four, Peter, Rhiannon, and Michael are talking about McCutcheon v FEC, a case from 2014 about money and politics. A few years after Citizens United allowed billions of dollars to be pumped into politics in the name of free speech for corporations, conservatives once again challenged spending limits, this time for individual donors.

• 0:36Speaker 02

  Like Citizens United, the name of this case could be associated with the rise of money in politics for decades.

• 0:42Speaker 01

  At the time, the FEC had a cap on how much money a single individual could donate in a given election cycle. Sean McCutcheon had been donating to multiple Republican candidates, the Republican National Committee, and other Republican committees when he found out he had reached his spending limit. So he sued the FEC, claiming the limit violated his free speech rights.

• 1:03Speaker 03

  I wanted to spend more money on more candidates, committees, and PACs and parties. It's about freedom of speech, and the government does not need to limit any Americans regardless of economic status.

• 1:16Speaker 01

  In a five to four decision, the Supreme Court ruled in McCutcheon's favor. This is Five to Four, a podcast about how much the Supreme Court sucks.

• 1:32Peter Shamshiri?

  Welcome to Five to Four, where we dissect and analyze the Supreme Court cases that have our civil liberties falling from the sky, like airplanes during the Trump administration.

• 1:41Michael Liroff?

  Yes.

• 1:42Peter Shamshiri?

  I'm Peter. I'm here with Rhiannon.

• 1:44Michael Liroff?

  Hey.

• 1:45Peter Shamshiri?

  And Michael.

• 1:46Michael Liroff?

  Hi, everybody. Yeah, they're not even just falling from the sky. Even when they land, they crash? They're flipping. They're flipping over. They're flipping on the runways? Even the boats carrying them are crashing? There's an aircraft carrier that crashed? The planes just want to crash. They just need to run into things. It's...

• 2:05Speaker 05

  Guys, being on a plane that flips over, can we just take a step back and talk about it?

• 2:12Michael Liroff?

  Oh, my God.

• 2:13Peter Shamshiri?

  The fact that everyone survived is obviously borderline miracle. But like I was just telling you guys, if I'm on a plane that flips...

• 2:23Michael Liroff?

  Yeah.

• 2:24Peter Shamshiri?

  I'm never flying again. Never flying again.

• 2:27Speaker 05

  No way. No way. No... Way.

• 2:30Peter Shamshiri?

  I'm already a bit of an anxious flyer. Like if there's turbulence, I'm not like sleeping on a flight or anything. Like I'll be up during it. Like I can't fucking wait until it's over. And I know it's irrational and I know it's like the safest mode of travel and all that shit. Or, or was until recently. But you know when that plane is flipping, all you're thinking is this is the last split second of my life.

• 2:53Speaker 05

  Yeah.

• 2:54Peter Shamshiri?

  I'm about to get obliterated.

• 2:56Speaker 05

  Yeah.

• 2:56Peter Shamshiri?

  On the runway in Detroit.

• 2:58Speaker 05

  I'm about to die.

• 2:59Peter Shamshiri?

  Yeah. And then you just hang in there.

• 3:01Michael Liroff?

  Yeah.

• 3:01Speaker 05

  Yes.

• 3:02Peter Shamshiri?

  And the person next to you is shitting and crying and.

• 3:06Speaker 05

  Throwing up.

• 3:06Michael Liroff?

  While there's a massive fire out the window.

• 3:10Peter Shamshiri?

  And like everyone's puking.

• 3:12Michael Liroff?

  Yeah.

• 3:12Speaker 05

  Yeah. And everybody's upside down and the flight attendants, God bless them, are coming through and releasing people one by one and you're upside down.

• 3:22Michael Liroff?

  Oh my gosh.

• 3:23Speaker 05

  To fall out of your seat.

• 3:25Michael Liroff?

  It's insane.

• 3:26Speaker 05

  Hit the top of the plane and walk yourself out.

• 3:30Michael Liroff?

  Yeah.

• 3:30Peter Shamshiri?

  Right?

• 3:31Speaker 05

  I'm not a nervous flyer. I sleep through every flight. Pilot comes on, says, welcome aboard. I'm out. It's Z's. It's deep REM for me until we hit the next runway, right?

• 3:41Peter Shamshiri?

  I'm jealous.

• 3:42Michael Liroff?

  That's incredible.

• 3:43Speaker 05

  That being said, I'm on a flight that fucking flips over. No, I'm not fucking flying again.

• 3:49Michael Liroff?

  Permanent trauma.

• 3:50Speaker 05

  I am not fucking flying again.

• 3:54Peter Shamshiri?

  I'm still traumatized from visiting Michael in Albuquerque when it was like during wildfires or whatever, which I guess caused turbulence. And I remember making eye contact during the descent with the flight attendant. Cause I'm always looking at the flight attendants when there's severe turbulence to be like.

• 4:11Speaker 05

  Right.

• 4:11Peter Shamshiri?

  How chill do they seem?

• 4:13Speaker 05

  Yeah.

• 4:13Peter Shamshiri?

  Right? And she was looking nervous as hell.

• 4:21Peter Shamshiri?

  Today, long awaited case, McCutcheon v FEC. We had a running bit for about a month there where we just didn't do this case, even though we said we would every week. But here we are.

• 4:33Speaker 05

  We're finally doing it. Now, yeah, I mean, we're recording it. God knows what happened

• 4:37Peter Shamshiri?

  Yes.

• 4:38Speaker 05

  before next week, whether or not it gets published. But here we are. We are recording McCutcheon.

• 4:43Peter Shamshiri?

  This is a case from 2014 about money in politics. Just a few years after Citizens United came down, conservative legal activists set their sights on another campaign finance law that they wanted to attack. This one was about aggregate campaign contribution limits. There are legal limitations on how much you can contribute to a political campaign or a political party in a given election cycle. And then on top of that, there are aggregate limits, meaning a cap on the total amount you can spend across all candidates and parties.

• 5:22Peter Shamshiri?

  So some entrepreneurial right wing activists teamed up to challenge the law as an infringement of their free speech rights. And the Supreme Court, in a five to four decision, agreed with them.

• 5:37Speaker 05

  Yeah, another speech case, right? Like last week, we did Nifla v. Becerra, which is abortion and free speech, basically. Now we have campaign finance law and free speech.

• 5:47Peter Shamshiri?

  When we do free speech cases, it's never actually about speaking out.

• 5:51Speaker 05

  That's right. Exactly.

• 5:52Peter Shamshiri?

  It's either about someone paying for elections or lying to women about their reproductive health.

• 6:00Speaker 05

  Exactly. Exactly. So let's get into it. Some campaign finance laws. Peter did a little preview here. The Federal Election Campaign Act of 1971 and the Bipartisan Campaign Reform Act of 2002 impose some of these limits on campaign contributions that Peter was talking about. They impose base limits and aggregate limits on individual donor campaign contributions, meaning a donor is restricted in how much money they can contribute to a particular candidate or committee. And they're also restricted in how much money they can contribute in total to all candidates and committees. Again, that's the aggregate limits that are at issue in this case. I want to pause.

• 6:45Speaker 05

  Let's talk about this idea, this framework of campaign finance laws. We did Citizens United, the second episode of this podcast, the second episode ever. I don't know if we joked in the episode that was published about me not understanding campaign finance laws, me not really understanding Citizens United, me never really understanding Citizens United.

• 7:11Speaker 05

  Right, the whole point of creating a corporation, right, is to, is to limit individual people's liability and to create a legal entity that sort of takes the hit for legal problems in doing business. I don't fucking know. I didn't take corporations. But, but what's clear is-

• 7:27Michael Liroff?

  You didn't take corporations at all? Was that required?

• 7:30Speaker 05

  No, of course I didn't take corporations.

• 7:32Michael Liroff?

  Well, it was my worst grade in law school, so I don't really have any ground to stand on.

• 7:36Peter Shamshiri?

  I strolled right up to the law school. I said, "Teach me about business."

• 7:41Speaker 05

  Yeah, you said, "Give me that corporate education."

• 7:45Michael Liroff?

  Right.

• 7:49Speaker 05

  But we did joke outside of the episode, for sure, and we've joked since then. In fact, preparing this case, McCutcheon.

• 7:56Michael Liroff?

  Yes.

• 7:58Speaker 05

  I have said, "Michael, I actually need you on this episode. I still don't understand Citizens United. Why would I understand McCutcheon?"

• 8:07Speaker 05

  And I just want to pause. We make jokes about it, right? And I do want to point something out, though, that in law school, and when I was learning about these cases, the framework of quote-unquote "campaign finance law" turns my brain fucking off. And I think this is a problem. It's not a problem. I'm not critiquing anybody. It's just that, like, legislative representatives are the ones who pass campaign finance laws. And the way they're thinking about it is, "We must finance our campaigns. We're politicians. This is how we think about these things." Campaign finance law, as a phrase, does not make sense to the regular person. It doesn't say anything. And I think it would be a net benefit to all of us if we talked about actually

• 8:50Speaker 05

  campaign finance laws as money in politics. That's actually what we are talking about when we're talking about campaign finance laws. And when I hear campaign finance law, and I think, "Actually, money in politics, that's what's at issue here," then a lot more things make sense. And it makes sense why these cases are important. Okay.

• 9:12Speaker 05

  Let's get into it. Aggregate limits on individual donor contributions. Okay. Sean McCutcheon. This little worm, Sean McCutcheon. In 2011, Sean McCutcheon was at the Young Conservative Coalition's Reagan Palooza Party in DC.

• 9:34Speaker 05

  Cool or not cool, guys? What do you say?

• 9:36Michael Liroff?

  They're just like, serve jelly beans and everybody wears the pens? Or like, how does that, how does that work?

• 9:46Speaker 05

  So that's where Sean McCutcheon is in 2011, when he met attorney Dan Backer. Dan Backer made a legal career out of basically abolishing, obliterating campaign finance laws. I don't recommend going to Dan Backer's Twitter. It is awful. He was in Greenland a few days ago, talking about being on a fact-finding mission and hashtagging Trump land.

• 10:14Michael Liroff?

  Fact-finding.

• 10:15Speaker 05

  Yeah.

• 10:16Michael Liroff?

  Fact-finding.

• 10:18Speaker 05

  All right. Anyway, so that's Dan Backer. McCutcheon, for his part, he was an electrical engineer in Alabama when he started to get involved in politics in the kind of late aughts. And he says that he got him, he was getting involved in politics locally as a hobby. And he was assisting conservative Republicans with their campaigns, was a member of the Jefferson County Republican Party and its executive committee. And he meets Dan Backer, who is a conservative activist, conservative lawyer, who is trying to dismantle campaign finance laws in the United States. And, you know, all of a sudden, what blossoms from this relationship? Sean McCutcheon suddenly feels very frustrated at the fact that he was starting to reach

• 11:03Speaker 05

  a limit to the number of candidates in aggregate that he could contribute money to.

• 11:10Michael Liroff?

  Expensive hobby.

• 11:11Speaker 05

  Yeah. In interviews, Sean McCutcheon says, like, yeah, you know, I would talk about my hobby in politics and how I was involved in Alabama Republican circles. And Dan Bacher is the one who convinced me to file a lawsuit. I didn't think we should file a lawsuit. I didn't know that that would really be effective. Dan Bacher convinced me. And so, yeah, Dan Bacher convinces him to file a lawsuit against the Federal Election Commission, the FEC. And what do you know, the Republican National Committee joins the lawsuit. Hmm. And just want to say again, when attacking aggregate limits on campaign contributions, Sean McCutcheon says, this is about personal freedom, okay? Quote, "I don't think we ought

• 11:55Speaker 05

  to stay up all night with a spreadsheet figuring out what we can do and can't do in a free society in terms of spending money on political ads."

• 12:04Peter Shamshiri?

  Yeah, that's the worst part about being American is having to have a spreadsheet where you figure out your political ad contribution.

• 12:14Michael Liroff?

  Disposable income that you're like, I need to spend this on political ads, but I I need a Google Doc and an accountant to help me figure this out. Yeah.

• 12:25Peter Shamshiri?

  What if I go over the $117,000 aggregate limit?

• 12:31Speaker 05

  Yeah. You're telling me I'm breaking the law if I do that? Yeah. Dan Bacher backs him up, says, quote, "For Sean, this wasn't about some esoteric legal concept. This was about his rights and his freedom."

• 12:44Peter Shamshiri?

  Not an esoteric legal concept, just rights and freedom, baby.

• 12:49Michael Liroff?

  Just rights and freedom.

• 12:53Speaker 05

  All right. So those aggregate limits on on donor campaign contributions, that's an infringement on free speech. The RNC joins this lawsuit against the Federal Election Commission, and that's how we get to the Supreme Court.

• 13:10Peter Shamshiri?

  All right, so let's talk about the law here. And first, just so you can understand what Rhiannon does not, let's talk about Citizens United. That case came down in 2010. It was not actually about campaign contributions. It was about independent expenditures. Campaign contributions are money that you pay to a campaign or a party directly. Independent expenditures are money that you spend yourself. So if you're a rich dude, you don't have to give money to Donald Trump. You can just start a PAC and run ads for Donald Trump, right? Hire someone to make an ad, pay for it, run it. That's an independent expenditure. That's what Citizens United was about.

• 13:55Peter Shamshiri?

  Citizens United was about saying, hey, independent expenditures, unlimited.

• 14:01Michael Liroff?

  Right.

• 14:01Peter Shamshiri?

  They can't stop that. But if you're this electrical engineer guy, McCutcheon, you're a millionaire and your politics are god awful. But maybe you don't have run my own ads money, right? You just want to donate to politicians, rub elbows with them.

• 14:19Speaker 05

  At Reagan Palooza.

• 14:21Peter Shamshiri?

  Yeah, you want to be invited to their low budget Eyes Wide Shut parties, right?

• 14:27Michael Liroff?

  Like the always sunny Eyes Wide Shut party?

• 14:30Peter Shamshiri?

  Right, right. Just the orgies where no one's hot. That's what you're trying to go to.

• 14:36Speaker 05

  None of the cool stuff is happening.

• 14:39Peter Shamshiri?

  But the law says, hey, there's only so much money you can spread around. So the question is, is that a violation of this man's free speech? The majority here is written by John Roberts, so you know it's rough. It's not good, folks. He says that the problem here is a mismatch between the objective of the law, which is to prevent corruption or the appearance of corruption, and the function of the law. The law, in effect, limits the number of candidates that a person can contribute to, at least theoretically, right? The law says you can donate to a bunch of candidates, but once you've hit that $117,000 or whatever, you gotta stop.

• 15:24Peter Shamshiri?

  Robert says, "The government may no more restrict how many candidates or causes a donor may support than it may tell a newspaper how many candidates it may endorse." Which I have to say intuitively just doesn't make sense to me.

• 15:39Michael Liroff?

  No.

• 15:39Speaker 05

  No.

• 15:40Peter Shamshiri?

  If the law is concerned with corruption, then surely you have to treat money differently than newspaper endorsements, right?

• 15:48Michael Liroff?

  Right. One is actual speech.

• 15:51Speaker 05

  One is speech and one is money. It's not that much like, one is a group, an institution, a person, whoever saying, I support this candidate.

• 16:00Michael Liroff?

  Yeah.

• 16:01Speaker 05

  Another is donating a ton of money for it.

• 16:06Peter Shamshiri?

  But this is what happens when you're just like, money is literally the same thing as speech.

• 16:11Michael Liroff?

  Yes.

• 16:11Speaker 05

  Right?

• 16:11Peter Shamshiri?

  Then all of a sudden, you're like, yeah, and giving straight cash to a politician is the same thing as saying something in a newspaper. And it's like, well, no, no, it's not.

• 16:21Michael Liroff?

  It's not.

• 16:21Peter Shamshiri?

  And if the law is concerned about the facilitation of corruption, then you have to treat money as like this distinct thing.

• 16:31Michael Liroff?

  Right.

• 16:31Peter Shamshiri?

  But they don't. I'm going to address what I think are like the primary arguments in the majority. He, he also talks about the argument that allowing unfettered spending interferes with the public interest in collective speech, meaning that these sorts of restrictions help everyone else be heard. This is something that dissent talks about. You limit the amount of money that can get spread around because not everyone has that kind of money and you want them to be heard too.

• 16:59Michael Liroff?

  You don't want them drowned out, right?

• 17:01Peter Shamshiri?

  Right.

• 17:01Speaker 05

  Yeah.

• 17:02Peter Shamshiri?

  He says, "In assessing the First Amendment interest at stake, the proper focus is on an individual's right to engage in political speech, not a collective conception of the public good." Which is, I mean, just very conservative, right?

• 17:17Michael Liroff?

  Yes.

• 17:18Peter Shamshiri?

  We're not talking about the public good. We're talking about this dude.

• 17:21Michael Liroff?

  Right.

• 17:21Peter Shamshiri?

  We're talking about Sean McCutcheon, bro.

• 17:24Michael Liroff?

  We're talking about rich people's ability to flood the zone, right?

• 17:29Peter Shamshiri?

  Right. So I think this is like objectively incorrect in almost every sense. Even in Supreme Court precedent, an important consideration in First Amendment analysis is the right of the public to both hear and be heard.

• 17:43Michael Liroff?

  Right.

• 17:44Peter Shamshiri?

  So I don't know how Roberts can say, oh, the focus should be on an individual's right to engage in speech. It's just not true under the precedent, nor does it make any sense rationally, because even if you think that the right to spend money in elections should be protected, it's not the right to speak per se that's at issue here. What we're really talking about is volume.

• 18:06Michael Liroff?

  Right.

• 18:07Peter Shamshiri?

  When you're spending money, you aren't just expressing something, you are trying to do it loudly. When you're saying, I want to spend more than $117,000. It's not that you're making a symbolic gesture, you're trying to influence the election, right? Which directly implicates the speech of others, because there's only so much the public can hear, and other people might want to speak too, but just not have the money. So this isn't about whether this guy can speak, it's about how large of a bullhorn he gets.

• 18:42Michael Liroff?

  Right. Two people on a stage addressing an audience, and one gets a mic and speakers that are very loud, and the other is not allowed to do anything but whisper, right?

• 18:52Peter Shamshiri?

  Right.

• 18:52Michael Liroff?

  And saying, well, they both get to speak. And it's like, yeah, but it's not the same. You know, their speech rights are not equal here.

• 19:00Speaker 05

  Exactly.

• 19:01Peter Shamshiri?

  Another thing that Roberts argues is that the real concern of the law is quid pro quo corruption, meaning corruption where someone provides money in exchange for favors. We've talked about this before, it's the money in a bag, in exchange, you get a law passed for you, or whatever.

• 19:19Michael Liroff?

  It doesn't have to be money. It could be, for example, not prosecuting the mayor of New York for engaging in blatant crimes.

• 19:30Peter Shamshiri?

  I feel like I could create a framework where that's not true. Because is that corruption? Is politics not all transactional, right? If both favors are being delivered through the political system, then all the checks are in place, because the check is democracy.

• 19:46Michael Liroff?

  There you go.

• 19:47Peter Shamshiri?

  Right?

• 19:48Speaker 05

  Who are you, John Roberts?

• 19:49Michael Liroff?

  Yes.

• 19:50Peter Shamshiri?

  You can write that one down, John, I don't give a shit.

• 19:56Peter Shamshiri?

  So we've talked about this in other contexts where the conservatives are very eager, for mysterious reasons, to narrow the definition of corruption. Robert says, quote, "The line between quid pro quo corruption and general influence may seem vague at times, but the distinction must be respected in order to safeguard basic First Amendment rights." Which like, I just don't think is true.

• 20:21Michael Liroff?

  No, I don't.

• 20:22Peter Shamshiri?

  And I don't understand why this is a meaningful distinction. If a person is purchasing influence using cash.

• 20:31Michael Liroff?

  Yeah.

• 20:31Peter Shamshiri?

  We're not talking about the influence of someone's words or ideas. We're talking about cash money.

• 20:37Michael Liroff?

  Yeah.

• 20:38Peter Shamshiri?

  If a person is purchasing influence, that means they are using money to alter the conduct of a politician. I simply do not see a meaningful difference between that and a more explicit agreement to do the exact same thing. Like, I guess my question for someone like John Roberts would be, why do you think quid pro quo corruption is bad?

• 21:02Michael Liroff?

  Right.

• 21:03Peter Shamshiri?

  If you've already accepted that using money to influence a politician is fine, generally speaking, then why can't they just be like, alright, here's the money, now give me the law that I want? Exactly. What exactly in John's mind makes that a bad thing? I don't understand it. They've already crossed the Rubicon here. They've already accepted that money can influence politics, so why are they drawing the line at quid pro quo corruption? I don't know. I just think it's the narrowest definition they can use, and they want to use the narrowest definition they can use.

• 21:40Michael Liroff?

  Do you know who else thinks like that? Who's right with you, Peter?

• 21:46Michael Liroff?

  Is Clarence Thomas, but he goes the other way and is like, that's why we should just, we should just do away with all this shit. Like, he's like,

• 21:54Peter Shamshiri?

  Right.

• 21:54Michael Liroff?

  Take the logic of your opinion one step further. Why do we have contribution limits at all? He's like, this is a correct application of our precedent, but the rationale undermines the precedent, which, you know, wants to treat contribution limits to individual candidates as sort of distinct from other sorts of, you know, speech and expenditure in the political sphere. And he's like, no, just do away with contribution limits. People should just be able to give as much money directly to candidates as they want, because I am not concerned with quid pro quo corruption or influence at all.

• 22:40Michael Liroff?

  It's, it's fucking wild.

• 22:42Peter Shamshiri?

  I have to say that I, I appreciate the consistency here.

• 22:45Michael Liroff?

  Yes.

• 22:46Peter Shamshiri?

  Because his concurrence here is the natural conclusion of the logic that the majority is bringing to the case.

• 22:56Michael Liroff?

  Right.

• 22:56Peter Shamshiri?

  Sometimes Thomas is just going way too far with his concurrences. And sometimes he's like, what are we doing? This is all, like, you've John Roberts'd yourself into this opinion.

• 23:07Speaker 05

  Yeah.

• 23:07Peter Shamshiri?

  But what we need to be doing is just creating a very simple rule that's like, money in politics should be unfettered entirely.

• 23:15Speaker 05

  Yeah.

• 23:15Michael Liroff?

  Yeah.

• 23:16Peter Shamshiri?

  And I think he's right, that like, that's what the court is doing anyway. They're just trying to John Roberts it and like,

• 23:22Michael Liroff?

  Right.

• 23:22Peter Shamshiri?

  Create this like elaborate maze of rules and guidelines. And there's no real difference, because any challenge to campaign finance laws is gonna get struck down by this court, one way or another. So Clarence Thomas is like, let's drop the pretense here.

• 23:37Michael Liroff?

  Right.

• 23:38Speaker 05

  Yeah, let me clear the docket a bit. I don't need more cases coming up on this issue. We can just deal with it here. It's interesting with this concurrence, Thomas writing separately. So Thomas does join the conservatives, obviously in the judgment, which makes this a 5-4 decision in the judgment. But Thomas doesn't join the majority opinion in anything other than the judgment, the holding.

• 24:02Michael Liroff?

  So it's like technically a plurality.

• 24:03Speaker 05

  Yeah, so it's technically a plurality that four judges are in the plurality opinion here on the rationale.

• 24:10Michael Liroff?

  This is one of those fun Thomas concurrences where like he only cites himself and like kicks off with it. He's, the first sentence has a bunch of sites and they are Thomas J. incurring in judgment. Thomas J. dissenting. Thomas J. dissenting. Thomas J. dissenting. Thomas J. incurring in judgment and dissenting in part. It's so, it's beautiful. It's beautiful. Like this, I love this guy. He's awful and I hate him.

• 24:37Peter Shamshiri?

  We've said it before. That's what we do too, you know? We'll be like, we've talked about this.

• 24:40Michael Liroff?

  We've talked about this. Yeah, exactly.

• 24:42Peter Shamshiri?

  We don't talk about precedent with any real respect. Sometimes we'll tell people about precedent just to give them color. Just to give you some history.

• 24:50Michael Liroff?

  Yeah.

• 24:50Peter Shamshiri?

  And I like that Thomas is doing the same thing. This is why he's sort of the dark version of us. You know what I mean?

• 24:56Speaker 05

  Yeah, yeah.

• 24:57Peter Shamshiri?

  He's just like, here's what I think the law should be, guys.

• 25:00Speaker 05

  The, the laser beam eyes version of us. Yeah. There is a dissent here with all the liberals. Breyer, just as Breyer writes this dissent. It's a meaty dissent. It's long. I think like he does a pretty good job of going through the precedent. Getting in the nitty gritty on how the opinion here, the decision is really about corrupting politics. That the result will be corrupting politics. And I think that's the strongest point that Breyer makes. He's strongest on the point of corruption and the need for anti-corruption in the law. He goes through a lot of the precedent to support this argument. But I don't want to break down so much of, of, you know, the technical portions of the argument.

• 25:44Speaker 05

  And really actually want to hone in on this corruption point that he makes. You know, he does go through the record in the case that shows how money in politics does affect politics, does affect how elected officials operate. You know, talking about how like a large, like, soft money donor is gonna get the phone call at the end of the day when a senator only has 10 minutes to spare. Like, while the majority opinion tries to say that, like, there's no evidence that flooding politics with money, like, really actually changes the behavior of politicians. Breyer's like, no, that's absolutely stupid. Of course it does. And Breyer also lays out how, like, there's an accusation, an accurate one,

• 26:27Speaker 05

  that doing away with aggregate limits is going to help people circumvent other contribution limits, like circumvent individual campaign contribution limits, which the majority says, oh, these other limitations on campaign contributions, those are sufficient. We don't need the aggregate limitations. Breyer says, no, doing away with the aggregate limitations is going to help people circumvent the other limitations. He gives three examples, three categories in which doing away with aggregate contribution limits is going to help people circumvent other contribution limits in the law. He says that's gonna happen in gifts for the benefit of the party,

• 27:08Speaker 05

  in donations to individual candidates, and with political action committees. He goes through, like, examples, hypotheticals, of like, how this would work. And as history would show, like, every single one of those things is true. Or, like, now happens regularly. One example, gifts for the benefit of the party, like, individuals can donate to national committees and to state party committees. Before this decision, that individual limitation would have been something like $74,000. Now, over an election cycle, that would be $1.2 million. It's just, like, in donations to individual candidates. After this decision, it made it possible, over a two-year election cycle,

• 27:49Speaker 05

  for an individual to donate to individual candidates up to $3.6 million. It's a wild exponential flooding of American politics with money.

• 27:58Michael Liroff?

  Yeah. And also, like, the way campaign finance works is that a lot of money flows from these, like, party committees and things like that, right? Like, the Democratic National Campaign Congressional Campaign Committee and shit like that. And so you can just go, you can, one, donate to them, but also, you know, if you're connected, you can just be like, what are the tough races? Right. And they can tell you, like, oh, we are focusing on blah, blah, blah, blah. And then you can go donate to the state parties there. You can donate to those individual candidates. You can donate to PACs, working in those jurisdictions and stuff, and just flood those areas with money in what is an effective donation to those either committees or those individual candidates.

• 28:43Speaker 05

  Yeah. Back to, like, my understanding or misunderstanding of, like, how these limits work and these laws work in real life. I actually think it would be beneficial if people do wonder about that, like, how do these things actually work? You can read Breyer's dissent here. The examples he goes through are very clear and very illuminating on, like, why do we need a law that limits aggregate contributions?

• 29:06Michael Liroff?

  Right.

• 29:06Speaker 05

  Why do we need a law that limits individual contributions? He lays out tons of hypothetical examples that are really, really clear. Moving on to this strongest point, I think, and like, the overarching theme of Breyer's dissent, which is about corruption. So he calls out what, Peter, you were talking about, where the majority uses, like, this really bad, overly narrow definition of what corruption is, that it's only a quid pro quo agreement or only a quid pro quo action. And also, the majority kind of, like, does away with, doesn't really pay attention, doesn't give any weight to corruption also being damaging to the political system, even when it's the appearance of corruption. And so Breyer really breaks this down and says, wait a minute.

• 29:51Speaker 05

  Corruption is the subversion of democratic political process. Anti-corruption is about maintaining the integrity of our democracy, the integrity of public and government institutions. And so this is really important. The majority can hand wave about like, eh, you know, like, what are you talking about? Corruption is just a straight up bribe and nothing else. But Breyer says, no, obviously corruption is damaging and encompasses a lot more than just that. He connects what I think is very, very strong is Breyer's connection of corruption and anti-corruption to the First Amendment.

• 30:34Speaker 05

  Breyer says, like, the way y'all are weighing First Amendment rights and quote unquote defining free speech and what is free speech, it's all wrong. We can actually go to the First Amendment and see in the First Amendment that the First Amendment itself is about preventing corruption. The First Amendment is about protecting speech so that political speech, political expression is what influences government, not money, not the family that you came from, not, you know, consolidated power in some small group. It keeps government accountable to public opinion and not money. That's what the First Amendment does. It's about more than just like an individual's right to talk. There's a bigger idea.

• 31:19Speaker 05

  There's the much bigger role that the First Amendment plays in, again, maintaining the integrity of our democracy and in supporting democracy. And Breyer also talks about like the damage of the appearance of corruption. You know, the appearance of corruption discourages political speech and expression and civic engagement and political involvement because the appearance of corruption convinces people that their participation in the avenues that are accessible to them, meaning speech, expression, civic engagement, not the donations. It convinces them that those avenues that are accessible to them don't actually matter. You have to have the other quote unquote kind of speech, which is money. That's just the appearance of corruption.

• 32:03Speaker 05

  And so taken together, Breyer is saying that the plurality is getting the interests all wrong here. Preventing corruption is super, super important. That is a massive. Interest, public good, that has to be weighed super, super heavily and is rooted in the Constitution. It has to be weighed super heavily against what the plurality is identifying as just the individual interest in supposed free speech.

• 32:30Michael Liroff?

  This warms my heart. I'm really glad that I got the concurrence and we got the dissent because just hearing her speaks. Yes.

• 32:40Speaker 05

  I get it. Tear runs down my cheek. I understand campaign finance.

• 32:48Peter Shamshiri?

  It's very interesting to read the Breyer dissent. And just see his like, general concern for the mechanisms of democracy.

• 32:59Michael Liroff?

  Mm hmm.

• 32:59Peter Shamshiri?

  And an opinion written over a decade ago now. And it's sort of like, yeah, you were right. And it was a good try, you know?

• 33:08Michael Liroff?

  Yeah. Yeah.

• 33:10Speaker 05

  Yeah. Yeah. This made a lot click for me. This dissent made things click for me.

• 33:15Michael Liroff?

  Yeah, it's a good opinion. This is like, one area where he's is good. I mean, that was like, we joked when he retired about the book I read of his that I forgot.

• 33:24Peter Shamshiri?

  Yeah.

• 33:25Michael Liroff?

  I had even read, it even existed.

• 33:27Speaker 05

  Oh, yeah.

• 33:28Michael Liroff?

  It was about like, his whole thing was like, reading the Constitution in a way that promotes sort of democratic engagement. That was his thing is sort of like, democratic engagement is this core part of the Constitution. And so it's like, on issues like this, I think he actually writes very well. Like, this is an area that he sort of gets. So. And now we're going to talk about why he was right and why this is all fucking terrible.

• 33:56Speaker 05

  Yeah, why it's on fire.

• 34:00Peter Shamshiri?

  So there's one really weird vestige of the old campaign finance system, the one that existed before the Supreme Court took a hatchet to it. And it's the fact that the primary limitation on campaign finance right now is that the average person can only donate $2,700 to a candidate per cycle. Billionaires can spend tens of millions of dollars due to their very important speech rights, fully funding their own ad campaigns, right? Because of Citizens United.

• 34:32Peter Shamshiri?

  They can also, because of this case, spread as many donations across as many candidates as they want. But if you're an average person, your donations are capped. If you're like a successful, upper-middle-class person, a doctor or a lawyer, and let's say it's the 2020 primaries, you might say, hey, I'm making good money. I've done the budgeting. I love what Bernie Sanders is saying. I want to donate $5,000 to his campaign. Illegal, illegal. You're under arrest, sir. Federal campaign finance law prohibits that. But if you're a billionaire,

• 35:15Peter Shamshiri?

  you can bankroll a PAC that runs $5 million in ads saying that Bernie's a communist. That's due to Citizens United. And you can also max out donations to every single candidate that you like, all across the country, over and over again. Just have fun with it, due to this case. Now, I think realistically, if you brought a case today before the court about those individual campaign contribution limits, they might overturn them. They might say the individual limit of 2,700 per candidate per cycle is illegal. But they haven't brought that case. Why? Because there's not a lot of energy behind that cause

• 36:00Peter Shamshiri?

  because they don't need to do it. No. They don't need it. Anyone who wants to spend their money in elections can already do it through PACs. So why bother trying to get the contribution limit lifted? They don't need Yeah. regular people to donate more than $2,700 to a candidate. In fact, that might hurt their cause. Yes. What they need is to be able to Run their like multimillion dollar ad campaigns that are completely independent of any given political candidate. If anything, that's better because it gives the oligarchs the power. They don't have to hand their money over to a campaign and say, hey, do what you want with this. They get to run their own shadow campaigns with their own messaging.

• 36:44Michael Liroff?

  And by the way, that independence is often very much a farce. We talk about this a lot, I think, in the Citizens United episode, but like examples are like the longtime chief of staff of a politician, their closest confidant will resign and go run the super PAC and run it for a year and a half. And then, once the election is done, the super PAC will shutter and they'll go and work for the candidate again. Right? And so there's, the independence is in the individual candidate, like not necessarily having a say. Their campaign will instead, you know, like post B-roll on YouTube that can be used in ads and shit

• 37:25Michael Liroff?

  of the candidate doing random things. But the independence is more like the candidate is now just a vassal to the billionaire. Yeah. Like wholly owned subsidiary of the billionaire is the way it works in practice. Yeah, that's a good way to put it.

• 37:41Peter Shamshiri?

  Right. If the candidate like does things or says things that the billionaire doesn't like, guess what? Now they're reliant on the individual contributions of people whose expenditures are capped at $2,700 rather than the multimillion dollar ad campaign that the billionaire can provide. So is that corruption? Or is that just beautiful, beautiful speech?

• 38:06Michael Liroff?

  That's just politics. And like, look, the way this works, you know, when Citizens United first came out, Barack Obama criticized it at the State of the Union, and it was a big scandal. The cameras cut to Justice Alito in the audience mouthing not true, like very clearly. A lot of people talked about how this was improper. There were like editorials about this, like that Barack Obama stepped over a line or whatever. He went too far to criticize the Supreme Court. So insane, insane in retrospect. Democrats don't really talk about this anymore. When was the last time a high profile Democrat talked about Citizens United? I think it was 2016 in the Bernie primary challenge?

• 38:54Michael Liroff?

  Instead, you see things like the New York Times, I think it was recently sometime last year, identified Nancy Pelosi as a quote unquote, "big believer in money in politics." If you transported me back in time to 2012 or whatever, and told me that in just a decade, the most powerful Democrats would be identified as big believers in money in politics, sort of offhand, like that's no big thing, I would have been fucking floored, right? Like Obama, that was part of his whole thing. He was like, "We're gonna stop the revolving door. Nobody in my administration's gonna go be lobbyists after and take money and all this shit."

• 39:39Michael Liroff?

  Like, money in politics was a big thing back then for the Democratic Party. Now, the guy who was running to be, who won running to be DNC Chair, Ken Martin, like while he was running, said like, "Of course, we'll still take money from billionaires. We'll only take them from the good billionaires. We won't take them from the bad billionaires." This is the big brains on Democrats. Hakeem Jeffries, one of the first things he did as the head of the minority party in the House, was go give a talk at Harlan Crowe's Institute or whatever. Like, Harlan Crowe, again, that's the billionaire who essentially owns Clarence Thomas and collects Nazi paraphernalia.

• 40:21Michael Liroff?

  Like, the party is fully enthralled to their own billionaire funders at this point. And it's like, it's undeniable.

• 40:29Speaker 05

  Absolutely cooked.

• 40:30Peter Shamshiri?

  I think to put a little more color in there, a decade ago, Republicans had a very clear advantage in dark money. Now, small advantage to Democrats in recent elections. Probably excluding 2024, once the data comes out. But in like 2018 or so, Democrats started reaching or surpassing Republican dark money spend. And this is sort of what happens, right? The Supreme Court created an ecosystem where you needed massive amounts of money to win elections, which means Democrats, like it or not, not that their hands being forced exactly, right?

• 41:12Peter Shamshiri?

  But like, like it or not, if you want to compete, probably wanna go out and find some billionaires willing to finance some PACs to support you. Few years later, all of a sudden, there's nothing you can do. You're at the whims of those billionaires. And now you have Nancy Pelosi being like, yeah, no, it's actually cool. Because you don't want to piss off the billionaires who are funding your entire fucking party.

• 41:35Michael Liroff?

  Right. You'll see this all the time. Jeffries just said, I think like last week, he was like, we need to make peace with Silicon Valley. So he like went and flew out there to like meet with a bunch of donors out there. Or you'll see like comments from people like Pelosi or Jeffries are in their campaign committees. When there's a competitive primary and, you know, one is like some grassroots teacher. And one is like some dude who looks like he was like churned out on an assembly line, staffed by McKinsey consultants. And the Democratic Party will be backing the McKinsey clone. And they'll be like, oh, he's a good fundraiser. And what does that mean? What does that mean? He's a good fundraiser.

• 42:19Michael Liroff?

  Does that mean he's, uh, has some like access to these mystery donors that Democrats have never met before? No, it means that they're billionaire backers like him. Right? Like Andy Beshear. Yeah. The governor of Kentucky. When people were like, who's going to be Kamala's VP nominee? A bunch of the names went and did like media tours. This was like how Tim Walz sort of became briefly famous, was doing really well on all these media hits. Beshear went, he didn't do any media hits. He went and met with billionaires. He met with Democratic donors. Like, that's what he did. It's just, that's what it is now. The party has its set of billionaires who are, and they are their vassals.

• 43:03Michael Liroff?

  Like, it sucks. I say this as a dyed-in-the-wool, blue Democrat, lifelong Democrat. It fucking sucks. The party is fully enthralled to their billionaire donors.

• 43:16Peter Shamshiri?

  Yeah. And the worst part is, at least Republican billionaires have a point of view. Because they're attached to this psychotic reactionary party.

• 43:27Michael Liroff?

  Yeah.

• 43:28Peter Shamshiri?

  And that allows them to be whatever they want to be. Democratic billionaires are sort of naturally at odds with the ideological positions that large segments of the Democratic base hold.

• 43:44Michael Liroff?

  Right.

• 43:45Peter Shamshiri?

  Which creates this permanent friction, right? That friction doesn't really exist on the right. That's why I think they've been so successful in this environment because the billionaires who want to dismantle the administrative state, dismantle labor, carve up this country and distribute it amongst themselves are generally expressing the same ideology that your median Facebook poster Trump supporter is expressing, right? Just in a different way. Whereas a nut job Democratic Facebook poster does not really share a billionaire's ideology in the same exact way.

• 44:25Peter Shamshiri?

  There's going to be a friction because you're talking about different class interests, right? You're talking about very distinct class interests and a class consciousness that doesn't really exist on the right, or at least doesn't exist in the right wing base in the same way.

• 44:43Michael Liroff?

  Yeah, you can't make peace with the Silicon Valley billionaires and be the party of labor and unions, right? Like, how do you do that? How do you represent both those interests? Like, you know, that's just one example. There's so many parts of the Democratic base that are just fundamentally at odds with the ideological commitments of the billionaire donor class. That's it. It's just like, and it's not, that's not even the end of the problem here, right? It's not even just like the formality of campaign finance that this has created, the formal structures that are so bad. It's also that between Citizens United and McCutcheon and other campaign finance cases,

• 45:25Michael Liroff?

  and also the corruption cases, which we've talked about at length, what the court has done is created a culture of permissiveness. The idea that like, this isn't an area of government regulation and enforcement that makes it hard to enforce even the laws that are still like on the books and...

• 45:47Michael Liroff?

  You know, a sort of general cultural, not just like legal cultural, but societal cultural sense that like, no, campaign finance crimes don't go punished. They're not serious. You saw this with like, a lot of people denigrating the New York state prosecution of Donald Trump, which was based on campaign finance crimes and being like, well, this isn't a serious prosecution. This isn't a real crime. It's just, he just lied on some campaign finance forms, right? You see this all the time and

• 46:23Peter Shamshiri?

  There, but for the grace of God, Michael.

• 46:25Michael Liroff?

  Yeah, exactly. This is like Elon Musk was out just fucking blatantly violating campaign finance laws and buying votes in Pennsylvania with his stupid lottery. And what did the DOJ do? They just sent him like a, an angry letter. They did nothing. Like that might have flipped Pennsylvania, like legitimately, like he, he was handing out cash and nothing and nothing, right? Like, yeah, it's just wild how much our elections and our government is currently bought by, by billionaires.

• 47:01Speaker 05

  Yeah. In terms of being bought by billionaires, like this case has me thinking a lot recently about oligarchy. This case has me thinking about that in even more. But before I get into that, I also wanted to just talk, we've kind of referenced this throughout. I just wanted to state explicitly that the conservatives on the Supreme Court, their definition of, let's call them money influence crimes, the way they define them so narrowly is doing a lot of work for

• 47:37Speaker 05

  The conservative legal movement and just the right in this country. We've talked about it in cases like Snyder and McDonnell, which are about bribery and how the Supreme Court narrowly, so narrowly defines bribery. So as to make it almost like it's unrealistic, actually, the definition that they land on. Like, that's actually not how like money is exchanged for political favors or power is exchanged for power, how corruption works. And you see the same thing here with the campaign finance Supreme Court decisions, that the way they define corruption, the way they define bribery, the way they define, you know, what is a violation of campaign finance laws.

• 48:20Speaker 05

  It's so narrow and it's doing a lot of work for governance right now in our country. And so that leads me to my thoughts on oligarchy, which is like, you see this word maybe thrown around recently, that is what we are seeing, the consolidation of power in a very small number of people at the top in ways that are, you know, completely undemocratic or don't make sense for a system that is supposedly based on representative, you know, democratic governance, right? You know, you hear oligarchy, I think like people think like, oh, that's like Russia or that's like, maybe like the Middle Eastern Gulf countries or something like that. And I think it's really important to understand, obviously, and I think that people do, I

• 49:05Speaker 05

  think when you see like Elon Musk operating the way he does, I think that people are coming to understand that like this is an oligarchy and that we live in right now. And I just want to make the point that in part, you can thank the United States Supreme Court for ushering in the age of American oligarchy.

• 49:25Peter Shamshiri?

  I mean, I think in part is correct, but also probably undersells it. Without Citizens United, Elon Musk is making fucking cars right now.

• 49:34Speaker 05

  Exactly. Without Citizens United, Elon Musk is making cars. Without Citizens United, this case, other Supreme Court decisions, Elon Musk is not able to contribute over $280 million in the 2024 election. It's this case that allowed that, and Elon Musk is one billionaire, right? It didn't just give him the green light. So on this point of oligarchy, we do sort of, I think we hyper-individualize and say that the oligarchy was ushered in by Donald Trump, the oligarchy is ushered in by Elon Musk, the tech billionaires, what have you, that are buying their influence and taking over our government. That is true, that we're allowed to do it by the Supreme Court.

• 50:17Peter Shamshiri?

  The last thing I want to say about this is I think McCutcheon is more of a symbolic case than a super meaningful case in the shadow of Citizens United, but it reflects the court's not just unwillingness to engage with what corruption actually is, but their sincere belief that a very important part of how government should function is that it interacts with powerful people, that those powerful people are allowed to exert

• 50:56Peter Shamshiri?

  influence over it, that the people who acquire money have a right to exert influence over the government. That's what this sort of set of cases reflects, right? The belief that there really is no such thing as corruption exactly, that money should be allowed to buy favor with power. And once you cross that line, like I mentioned earlier, there's really no stopping it. There's really no definition of corruption that makes sense. There's no limitation on the ability to spend money in politics that is constitutional, because

• 51:38Peter Shamshiri?

  they believe sincerely that wealthy people, that powerful people should exert more influence than you do, that they deserve it.

• 51:47Speaker 05

  Yeah.

• 51:47Peter Shamshiri?

  Right?

• 51:48Speaker 05

  Yeah.

• 51:48Peter Shamshiri?

  It's built into the fabric of the Constitution in their minds, because they are oligarchs, not in the sense that they rule over us with their money, in the sense that they believe in oligarchy. They are oligarchists.

• 52:02Speaker 05

  Yes.

• 52:03Peter Shamshiri?

  Yes. That they believe in the wisdom of the oligarch, that the wealthy and powerful have earned their position and should dominate us. This is the belief in a natural hierarchy. The fact that Elon Musk is functionally running the government clicks in their brain. He's the richest guy in the world, of course, of course, he should be in there. Who else? Who else but Elon Musk? What are you gonna do? Have the second richest person in the world run our country?

• 52:36Michael Liroff?

  Ridiculous.

• 52:37Peter Shamshiri?

  Preposterous.

• 52:40Michael Liroff?

  Yeah. And so I think that brings me to probably the final thing I want to say in this this episode, which is, I know it's really hard right now, given everything that's going on, to even think about what comes next and imagine, you know, a world that is next, that is after this, the way, you know, the basic structures of government are being dismantled, the way there are concentration camps being built in Gitmo and the Panamanian jungle right now, and just the cruelty we see around us. But, you know, hope is a discipline,

• 53:19Michael Liroff?

  optimism is a discipline, and thinking about what comes next, I think what this case tells us is that, you know, a replay of 2021, 2022 is not enough.

• 53:34Peter Shamshiri?

  We need someone even older. We need to get the oldest guy we can find and make him president.

• 53:41Michael Liroff?

  We cannot kick the can of reform down the road any longer. The court needs to be changed. The precedents, the Supreme Court cases that have built this society that we are now living in, need to be overruled and done away with. And the party that is supposedly the opposition party needs to be on board with those programs. And anybody who isn't, needs to get the fuck out, right? Like, it is not enough to just get back in power and pass some...

• 54:18Michael Liroff?

  Economic reforms or whatever, like it's not enough. Like you need to rebuild American democracy from the foundations. And that means undoing shit like this.

• 54:38Peter Shamshiri?

  Next week, we're going to talk about the Powell memo. A little memo by Supreme Court Justice Louis Powell, written back in the 70s, about the need to focus on business interests in the law.

• 54:55Speaker 05

  Yeah.

• 54:56Peter Shamshiri?

  A little history lesson in how we got here and how the seeds for the modern moment were planted way back when. Follow us on social media at 54pod, subscribe to our Patreon, patreon.com/54pod for access to premium episodes, ad-free episodes, special events, all sorts of shit. We will see you next week.

• 55:19Michael Liroff?

  Bye, everybody.

• 55:20Speaker 05

  Bye.

• 55:33Michael Liroff?

  Five to Four is presented by Prolog Projects. This episode was produced by Dustin DeSoto. Leon Nefert provides editorial support. Our website was designed by Peter Murphy. Our artwork is by Teddy Blanks at Chips NY and our theme song is by Spatial Relations. If you're not a Patreon member, you're not hearing every episode. To get exclusive Patreon-only episodes, discounts on merch, access to our Slack community and more, join at patreon.com/54pod.

• 56:14Peter Shamshiri?

  I have the vaguest memory of like, I don't remember what year it was. Maybe it was like 2017 or 2018. But at the end of the year, there was like a story that there had been no major plane crashes. And Donald Trump tweeted about it, being like, no crashes, baby. I just remember joking about it with people, like how stupid he was.

• 56:35Speaker 05

  Taking credit for it, yeah.

• 56:37Peter Shamshiri?

  Bragging about the planes, the planes doing good or whatever. And now it's like, hmm.