NRSC v. FEC

Yet another opinion where the Supreme Court decides that money is speech and bribery doesn’t exist without a big sack of money. 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 Andrew Parsons. Leon Neyfakh 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. Transcriptions of each episode are available at fivefourpod.com Follow the show at @fivefourpod on most platforms. On BlueSky, find Peter @notalawyer.bsky.social, Michael @fleerultra.bsky.social, and Rhiannon @aywarhiannon.bsky.social. 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.

• 0:00Speaker 00

  We will hear an argument this morning in case 24621, National Republican Senatorial Committee versus the Federal Election Commission.

• 0:13Peter Shamshiri?

  Hey, everyone. This is Leon from Prologue Projects. On this week's episode of Five to Four, Peter, Rhiannon, and Michael are talking about National Republican Senatorial Committee, the Federal Election Commission, or if you prefer that in letters instead of words, N R S C V F E C. It's a case from this past term in which the court overturned a law capping how much money political parties can spend in direct coordination with individual candidates. In effect, the ruling creates a workaround for donors who want to give more money to a candidate than they're legally allowed to.

• 0:47Michael Liroff?

  You have now coordinated spending that functions like a contribution. Political parties can sort of almost become vehicles for circumventing a contribution limits.

• 0:58Peter Shamshiri?

  It's the latest in a long line of cases in which the court has sought to undo decades of good governance laws aimed at reining in the influence of money in politics. This is Five to Four, a podcast about how much the Supreme Court sucks.

• 1:21Peter Shamshiri?

  Welcome to Five to Four, where we dissect and analyze the Supreme Court cases that have hidden away our civil liberties, like Donald Trump hiding in a catering cart. I'm Peter. I'm here with Rhiannon.

• 1:32Speaker 03

  Hey, everybody.

• 1:33Peter Shamshiri?

  And Michael.

• 1:33Michael Liroff?

  Must have been a big catering cart. He's not a small guy.

• 1:36Speaker 03

  He's not a tiny person, yeah.

• 1:39Peter Shamshiri?

  Right.

• 1:39Speaker 03

  They have the president crouched.

• 1:40Peter Shamshiri?

  He must have been balled up.

• 1:42Michael Liroff?

  Yeah.

• 1:43Peter Shamshiri?

  So, most people have probably heard this story by now, but Donald Trump, in order to avoid assassination, presumably, boarded Air Force One, waved to the cameras.

• 1:56Speaker 03

  Yeah.

• 1:56Peter Shamshiri?

  And then they snuck him off to another plane on a catering cart, like he hid inside a catering cart. Insanely funny, Veep-level stuff.

• 2:09Peter Shamshiri?

  Like, rather than get the plane to just like the point where it's like, we're 100% sure that Iran's not going to blow this up right now, sir. Someone is like, what if we snuck you out with the cookies?

• 2:21Peter Shamshiri?

  I honestly bet that he just liked that idea too much.

• 2:24Speaker 03

  Oh, he loved it.

• 2:24Peter Shamshiri?

  He was like, that's so fun.

• 2:25Speaker 03

  That's his favorite part of being the president, is little tricks. He thinks he's playing on everybody.

• 2:30Peter Shamshiri?

  So, yeah, he presumably huddled up inside a catering cart, and then they put him on another plane.

• 2:37Michael Liroff?

  But that also means he left like a bunch of staffers and like the entire White House press corps there as decoys to possibly get bombed by Iran.

• 2:47Peter Shamshiri?

  There's a timeline where that plane gets bombed by Iran, and then everyone's like, oh, my God, the president has been killed, and then Trump shows up on TV.

• 2:55Speaker 03

  And he's like, uh-uh.

• 2:57Peter Shamshiri?

  Imagine the feeling that you would have when he pops back up in the press room.

• 3:02Michael Liroff?

  Like, I snuck out in a catering cart.

• 3:03Speaker 03

  Yeah, he's like, I outsmarted them. I knew it was coming.

• 3:06Michael Liroff?

  Oh, my God. We would never hear the end of it.

• 3:09Peter Shamshiri?

  Today's case, National Republican Senatorial Committee versus the Federal Election Commission, N R S C V F E C. This is a case from the end of this past term about campaign finance specifically. It is about political candidates coordinating with political parties. The Federal Election Campaign Act is a law from the early 1970s that sought to regulate campaign finance. Part of that law was a cap on coordinated party expenditures. What that means is that political parties are allowed to spend their money in coordination with political candidates, but there is a limit on how much.

• 3:44Speaker 03

  Yes.

• 3:44Peter Shamshiri?

  We are talking about that limit. So, if the Republicans want to coordinate some ads with a Republican candidate of their choice, for example, they can, but they can't pass that threshold.

• 3:55Speaker 03

  Yeah.

• 3:55Peter Shamshiri?

  There's a cap on how much they can spend. The point of this is first to avoid allowing donors to end-run around campaign contribution limits by just like sending their donations to the party. And then also, you have broader concerns about corruption, right? The whole reason campaign contribution limits exists is because without them, large donors might be able to dictate what a candidate says and does. Believe it or not, there was a time when people in Congress thought that might be a bad thing, right? And they passed this law. But the Supreme Court, in a six-to-three decision, said this all sounds like it violates the First Amendment.

• 4:31Speaker 03

  Yes. What about our speech?

• 4:33Peter Shamshiri?

  What about the speech of the Republican Party?

• 4:35Speaker 03

  What about our speech and how our money is speech and how that's really, really important? And we take one or even two cases a term, it feels like, about our money being our speech.

• 4:48Peter Shamshiri?

  Can they just take one case and be like, campaign finance laws don't exist anymore? So that we don't have to do two of these a year?

• 4:54Speaker 03

  Absolutely. It's like, bit by bit, like, we knew this was coming, this holding about this, but it's so specific. We knew it was coming because Citizens United said this, you know?

• 5:04Michael Liroff?

  I disagree with my co-hosts. These are two cases a year where that we have layups that we get to just recycle the same talking points.

• 5:12Speaker 03

  You're right. I take it back. It's content, and we appreciate all content in this house. All right, let's start with the law. The Federal Election Campaign Act regulates campaign finance, and the provision of the law that's at issue in this case is one that regulates what are called coordinated party expenditures, okay? If you're not a campaign finance expert, you're not always wheeling and dealing in this ridiculous, eyes-glazed-over vocabulary. Think of campaign finance as happening with like different kinds of transactions, two categories of transactions. There are contributions, which of course is like what a donor or a PAC or a party can contribute to a candidate's campaign, and then there are expenditures, which is what a PAC or a party or what have you can expend, can spend on a campaign.

• 5:57Speaker 03

  So, this provision in the Federal Election Campaign Act allows party committees, that's like the DNC, the RNC, to make what are called coordinated party expenditures, but only up to certain amounts, like you just said, Peter. So, coordinated party expenditures, these are expenditures or spending that benefits the election campaigns of federal candidates, and it's coordinated with those candidates, meaning the candidate can give input on how that money is spent. So, a party can contribute to a candidate's campaign, and they can also spend on a candidate's campaign, and they can do so in a coordinated way, where the candidate has input on how the party spends that money.

• 6:41Speaker 03

  So, these coordinated party expenditures, like, often look like campaign advertising that the party committee is paying for, but it's in coordination with the candidate. The candidate might say, you know, I'm thinking about ads in this place, or I'm thinking about an ad that highlights this issue, or what have you, right? So, prior to this case, those coordinated expenditures from the party to a candidate's campaign were capped at certain amounts. In 2024, for example, the last presidential election, the coordinated party expenditure limit for nominees for president in the general election coming from those national party committees was just over $32 million.

• 7:23Speaker 03

  The coordinated party expenditure limit for a House candidate in 2026 this year is between $65,000 and $130,000. Meanwhile, the coordinated party expenditure limit for a Senate candidate this year is between about $130,000 and $4 million. In that case, that range depends on the state's voting age population, where that Senate candidate is running. So, that was the status quo, though, before this case. We're talking about a lot of money, but we are talking about some limits that federal election campaign finance law had in place. That's what the law said. But now, because of this case, and because of all the cases that came before it, you

• 8:05Speaker 03

  have money in elections designated as free speech. And now, you have this court, these six, up on the court, waiting for cases like this to come up, so clocking all of that, clocking this new context that we're in today. Back in 2022, were the National Republican Senatorial Committee, the National Republican Congressional Committee, former Republican Ohio Representative Steve Chabe, and then Senator J.D. Vance. That year, 2022, this polycule filed a lawsuit saying these limits on coordinated party expenditures are unconstitutional, because, say it with me, money is speech.

• 8:50Peter Shamshiri?

  I'm trying to talk here.

• 8:51Speaker 03

  The case, therefore, makes its way to the Supreme Court, another arm of the polycule, you might say. But one interesting note here, just about the parties, before we get into the opinion and what the court decides. These Republicans and the Republican Party committees.

• 9:10Speaker 03

  Sue the FEC, the Federal Election Commission, because the FEC is the federal agency that enforces these campaign laws. Now, since the FEC is a federal agency, defending that federal agency in that lawsuit would, of course, be the federal government. For example, the Solicitor General of the United States. But since the federal government at this time, i.e. the Trump administration, agrees with these guys who are suing, they say, actually, we're not going to argue against this. We're not going to represent the FEC to defend its enforcement of these laws because we agree that the law is unconstitutional.

• 9:46Peter Shamshiri?

  Right.

• 9:47Speaker 03

  So...

• 9:48Peter Shamshiri?

  JD Vance is one of our friends.

• 9:49Speaker 03

  Exactly. So the DNC actually intervenes here and files a motion asking to sort of like be subbed in. And they're the ones on the side defending the constitutionality of the law, saying, no, these coordinated party expenditure limits are constitutional and should stay in place.

• 10:07Michael Liroff?

  Yeah, there's a mechanism for interested parties, if they have like a real interest in the outcome of litigation, to sort of insert themselves in and defend one side or another, which is what happened here.

• 10:19Peter Shamshiri?

  So the legal question, of course, is whether these limitations on coordination between parties and candidates violate the First Amendment. This has been litigated before. The exact question came up to the Supreme Court in 2001 in a case called Colorado Republican Federal Campaign Committee, the FEC. The court there held five to four that the law was constitutional because a political party spending money in coordination with a campaign was functionally the same as a campaign contribution, and because these rules help mitigate corruption. So what has changed since 2001? Obviously, the makeup of the court, right? But with it, the definition of corruption.

• 11:04Peter Shamshiri?

  The court used to hold that any undue influence, or the appearance of undue influence, was corruption. And therefore, it was constitutional to create rules to curtail it.

• 11:15Michael Liroff?

  Yeah, and just to be very precise, when the government regulates in like a constitutionally protected area, it has to identify its interests, like its goal here. And one of those goals that the court has previously recognized was preventing corruption. But another goal that the court had acknowledged was important was preventing the appearance of corruption, because that reduces confidence in elections in democracy, in the idea that the government responds to the people at all. And that's important.

• 11:46Peter Shamshiri?

  Right, even if there wasn't clear, actual corruption, the trust in the system is something that the court was trying to protect, right? But this court does not see it that way. The court has narrowed the definition of corruption substantially, so now only quid pro quo corruption counts. We've seen this in a variety of contexts. They think that the only thing that counts as corruption is I give you a big bag of money with a dollar sign on the side, and I say, in exchange, I would like political favor, right? That's corruption, nothing else is corruption. So Brett Kavanaugh says, "In short, under the court's more recent First Amendment precedents, the government's desire to prevent or reduce influence, ingratiation, gratitude, access,

• 12:31Peter Shamshiri?

  or the like for those who spend in support of or contribute to political parties or candidates is not a constitutionally permissible objective for campaign finance restrictions." So he's saying, all of that's free speech, all that is protected free speech.

• 12:45Speaker 03

  Yeah.

• 12:46Peter Shamshiri?

  Influence, ingratiation, gratitude, access, that's what speech is, baby.

• 12:50Michael Liroff?

  That's why you run for office.

• 12:51Speaker 03

  Y'all, that's what they're paying for.

• 12:53Peter Shamshiri?

  And it's sort of interesting, he does a weird thing where, there was this precedent in 2001 saying this is okay. And then they created this like other contradictory precedent, where they're like, corruption is much narrower than that. And then now they're like, well, these aren't compatible.

• 13:08Michael Liroff?

  Right.

• 13:09Peter Shamshiri?

  Kavanaugh does a lot of talking about how the speech of candidates and parties is important in this context. He says, "Look, parties and candidates obviously coordinate all the time, and they need some level of coordination for the system to function." He says, quote, "In a campaign, the coordination between party and candidate may encompass the what, when, where, how, and to whom of political activities and communications. What policy positions should the party and candidate adopt and emphasize? When and where should the party and candidate run campaign ads? What is the best content for party ads, for candidate ads, for candidate and surrogate speeches? Which voters should the party and candidate target? How to best use social media? How can the party and candidate avoid duplication of effort?

• 13:53Peter Shamshiri?

  How can the party and candidate best get out the vote?" The list goes on.

• 13:56Speaker 03

  He's like, here's the manual, also, by the way.

• 13:59Peter Shamshiri?

  So almost every single one of those things I just listed is unrelated to money. Like, it has nothing to do with the case at all, right?

• 14:07Michael Liroff?

  Right.

• 14:08Peter Shamshiri?

  Which positions should the candidate adopt? When, where should ads be run? What should the content of ads be? What should the content of speeches be? What voters should they target? Literally, all of those things can be accomplished with a conversation. It has nothing to do with the cap on funds, right?

• 14:23Michael Liroff?

  Right. To the extent you're doing something like deciding when to run an ad, in what market, right?

• 14:29Peter Shamshiri?

  Yeah.

• 14:30Michael Liroff?

  To the extent we buy a lot of the speech lines of jurisprudence they have there, that's still like, the RNC's speech rights are implicated there, right? They're like, it's still their speech. Like, candidate may be saying, well, I really want to be competitive in Milwaukee, and you should run it around 8:00 PM, because that's when everybody tunes into the local news. But it's still the RNC's speech that's going out there, right? It's not the candidate's speech, which is what this is going to turn into, right?

• 14:57Speaker 03

  Yeah.

• 14:58Peter Shamshiri?

  So of everything he lists, all the different like types of coordination, as far as I can tell, only one of them is relevant to the case, which is what policy positions a candidate should emphasize? Because you could obviously emphasize a certain issue more if you had more money for ads, et cetera, right? I sort of think the majority is doing a sleight of hand here, and they do it several times, where they're like, look, it's so important that parties and candidates coordinate, look at all the ways in which they coordinate. But the law isn't about coordination in the colloquial sense, right? It's a restriction on how freely money can move.

• 15:29Michael Liroff?

  Right.

• 15:30Peter Shamshiri?

  And yeah, I don't know, I just think they collapse the distinction very frequently throughout the opinion. One of the big reasons for this law is to prevent what's called earmarking, which is when someone donates to a party with like the specific direction that it be given to a certain candidate, right? The problem with that is that it's an end run around candidate contribution limits, right? You can only give so much to a candidate legally, under federal election law. And this would provide a way around it. You give the money to the party instead, and you tell them, well, spend it on that candidate, right? So Kavanaugh says that's not a concern, because there are other laws that help regulate this. The law says that if you earmark a party donation for a certain candidate, that counts as a candidate contribution. Plus, you have disclosure laws.

• 16:13Peter Shamshiri?

  Now, leaving aside that at least a couple of the conservatives think that disclosure laws are unconstitutional, I think this misses the point. The argument is like, this makes it really easy to circumvent contribution limit laws.

• 16:26Michael Liroff?

  Right.

• 16:27Peter Shamshiri?

  And Kavanaugh is like, yeah, but that's illegal. I don't think that's the point.

• 16:30Michael Liroff?

  Yeah. The point is, it's easy to do something very illegal, and that's because this ruling makes it profoundly easy to do something that's supposed to be very illegal.

• 16:39Peter Shamshiri?

  Yeah. And this is very similar to other types of corruption, very hard to regulate, because a lot of the, a lot of corruption happens in back rooms that no one, it's not like anyone's listening or watching, right? You can't see it. So how do you regulate it? You regulate the channels of corruption. You make it harder to be corrupt, right? And one of the themes of this court's corruption jurisprudence over the last like 15, 20 years is, you can't do that. You can't really regulate the channels of corruption, right? The only thing that's illegal is the big bag of money for the favor.

• 17:20Speaker 03

  You can only say corruption is illegal.

• 17:22Michael Liroff?

  With the, with the big contract that says corruption contract at the top.

• 17:25Speaker 03

  Yes.

• 17:26Peter Shamshiri?

  So like, all of these laws that are designed to forbid things that make corruption easy, the court's like, you can't do that. You can't, you can't, you can't regulate that. And so in the end, what they're doing is just like, one by one, opening these channels of corruption up. Now, last thing I should mention is that Kavanaugh, at one point, is like, look, this benefits both parties equally. Both parties can now do this, the same exact coordination. So this is not, you know, he's trying, he's doing this like over the top, very Kavanaugh thing, where he explains something that like no, no lawyer needs explained to them, but he's sort of like, addressing the question that like a layperson might have about this.

• 18:11Peter Shamshiri?

  He's like, you might think this is a partisan issue on account of the cases being brought by the Republican Party. But it's actually not. This actually affects both parties the same way. Meanwhile, the Democratic Party has intervened on the other side of this. Like, they're, they're actively litigating against the Republican Party here. And Kavanaugh's like, who knows who this benefits?

• 18:33Speaker 03

  It's such a silly argument. Like, it's such a silly distraction. We were talking yesterday when we were prepping for the episode, Peter, you were saying, it sounds like Kavanaugh in Dobbs, when he has that concurrence that he's like, where he's like, this decision doesn't say abortion's like good or bad. This decision affects all the states equally, and now states can decide this issue. Kavanaugh does this a lot. It's a very sort of like immature, non-analysis mode of analysis. It's so absurd, because it's like, nobody's saying that's the problem of the holding. Nobody's saying your holding is not universally applicable or something, right?

• 19:13Peter Shamshiri?

  Right. The dissent's not like, this is unfair because it harms Democrats or something.

• 19:17Speaker 03

  Yeah.

• 19:18Peter Shamshiri?

  It's not part of the question.

• 19:19Speaker 03

  Nobody's saying that. And so it's a clarification that is not asked for and not needed clarification, that's only for like laundering the decision as neutral.

• 19:28Michael Liroff?

  Right.

• 19:29Peter Shamshiri?

  In this particular case, a sort of a doth protest too much, already answered by my t-shirt sort of situation.

• 19:34Michael Liroff?

  Right.

• 19:35Peter Shamshiri?

  Where he's like, by the way, you might think that I'm doing this for partisan reasons. No. It's like, actually, no one was talking about that, Brett.

• 19:41Speaker 03

  Yeah.

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• 22:57Michael Liroff?

  There is a dissent. It's by Kagan. The other two liberals join. It's very good, I think. It's very classic Kagan. She does get the dissent because, as Peter said, they're overruling this 2001 case, and she's the libs' stare decisis girl, which, for you non-lawyers, is just like, respect for precedent, the importance of cases not being overruled unless they absolutely have to be.

• 23:21Speaker 04

  Yeah.

• 23:21Michael Liroff?

  And she loves it. She loves stare decisis. She loves talking about it.

• 23:24Speaker 04

  Yeah.

• 23:25Michael Liroff?

  So she's very much in her bag, as is the case when she's breaking down like sort of complicated laws, like election laws.

• 23:34Speaker 04

  Yeah.

• 23:34Michael Liroff?

  And making them accessible to a layperson. Like, there's very much like, her background in academia shines through in this opinion as well. So, you know, she starts with Nixon. And she's like, look, before this law, there was like the Watergate investigations, and there was Nixon, like, on tape being like, yeah, we'll give the dairy industry this milk subsidy they want, but they better remember to pay us $2 million. Like legitimately, like on the actual quid pro quo on tape, right?

• 24:07Speaker 04

  Yeah.

• 24:07Peter Shamshiri?

  That's what's happening in the back rooms. Like, that's what's happening all the time.

• 24:11Michael Liroff?

  Exactly, exactly.

• 24:12Peter Shamshiri?

  There's not always a secretive recording of the politician.

• 24:14Speaker 04

  Yeah.

• 24:15Michael Liroff?

  Right. So that's what this law is designed to prevent, amongst other things. And so part of that mechanism is, well, so there's a cap on how much you can give to an individual candidate, but there's also anti-circumvention provisions, right? Mechanisms to make sure you can't circumvent the cap. Like, you can't give a bunch of money to the party, and then wink, wink, nudge, nudge, the party gives that money to the candidate, right? That's the whole point. It prevents a donor from giving $500,000 to a joint committee that will all go to one candidate when the actual cap is about $7,000, right? For primary and general.

• 24:54Peter Shamshiri?

  Yeah.

• 24:54Michael Liroff?

  It's like, there, one basically doesn't exist, and the other is substantial. And her point is, this is basically all you need to do the classical analysis. You have a compelling government interest in preventing quid pro quo corruption, and you have a narrowly tailored law to that end, capping individual contributions and crafting prohibitions on obvious methods of circumvention of those caps.

• 25:18Speaker 04

  Yeah. Check, check, check. It's all here.

• 25:20Michael Liroff?

  Yeah.

• 25:20Speaker 04

  And it all makes sense, she's saying.

• 25:22Michael Liroff?

  Yeah. And she's like, look what happened here. The candidate's campaign on its own produced a political advertisement and sent it to the party with just an invoice, right? It's just like, the campaign did stuff and then just billed the party?

• 25:34Speaker 04

  Yeah.

• 25:34Michael Liroff?

  And the party responded, received, will process. Like, that's it. Making clear it was not a collaborative speaker, right? She does a nice job explaining what these joint fundraising committees are. It's the candidate's own campaign committee plus all 50 state parties. So like, the State Democratic Party for Hawaii, the State Democratic Party for New York, and then the National DNC. All join one committee. And so the contribution limits for each, it's like, for each state party is $10,000. For the national party is $44,000. And then $7,000 to the campaign itself. If you do the math, that's $551,000, significantly more.

• 26:17Michael Liroff?

  And it all can be done in one check to like, the Michael Liroff Joint Victory Fund.

• 26:23Speaker 04

  Yeah.

• 26:23Michael Liroff?

  Right?

• 26:23Speaker 04

  Yeah.

• 26:24Michael Liroff?

  One check. And now, after this ruling, all that money can in turn be spent on my campaign, which is very much a $550,000 donation to my campaign, right?

• 26:36Speaker 04

  Yeah.

• 26:36Michael Liroff?

  She's like, this is exactly what the law is designed to prevent. And she says, the only thing that's different about it now than it was like 15, 20 years ago, is that it's more dangerous because it used to be that there were aggregate limits on the amount a donor could give to federal candidates at all, right?

• 26:54Peter Shamshiri?

  Right.

• 26:55Michael Liroff?

  In total.

• 26:56Speaker 04

  Yeah.

• 26:56Michael Liroff?

  And those are gone.

• 26:57Speaker 04

  Yeah, what happened to those?

• 26:58Michael Liroff?

  Because of this case, McCutcheon v FEC. And she has, I think her strongest point is in a footnote to this, which I wish she had been in the body. But she says, look, the dissent in McCutcheon warned about this, right? Breyer wrote a dissent that very much warned about this. And she says, I'm just going to read from her here. "The McCutcheon majority described as, quote, divorced from reality, quote, and foreclosed by, quote, 'experience and common sense,' end quote, the scenario of a donor giving a $500,000 check to a joint fundraising committee composed of a candidate, a national party committee, and most of the party's state party committees." That's the majority in McCutcheon.

• 27:41Michael Liroff?

  And before McCutcheon, the government could cap the total amount of money you could donate to candidates, period, across races. After McCutcheon, you can't. And before this case, you couldn't allocate $550,000 worth of donations to one candidate. And after this case, for all intents and purposes, you can. And after describing this, Kagan points out that Kamala Harris had a joint fundraising committee that raised donations of $550,000. Donald Trump had a 48-state joint fundraising committee that raised $530,000 donations, right?

• 28:21Michael Liroff?

  So we're already living in this reality created by McCutcheon of these massive donations, one-time donations, and now it's going to be very easy for those to be funneled to individual candidates.

• 28:33Speaker 04

  Yeah.

• 28:33Peter Shamshiri?

  Right.

• 28:33Michael Liroff?

  On the stare decisis stuff, she also has a strong portion of the opinion where she's like, well, look, Brett's strongest argument for why we need to overturn this case is, you know, what's changed in the last 25 years is that parties are no longer on even footing with super PACs, that independent expenditures have gotten so out of control that it's weakened parties, who are such an important player in our political system. And so it's weakened their speech rights. And so we need to strengthen their hand by allowing them to coordinate with their candidates so they can compete.

• 29:10Speaker 04

  It's so ridiculous.

• 29:11Peter Shamshiri?

  Incredibly funny argument.

• 29:12Michael Liroff?

  Yeah.

• 29:12Peter Shamshiri?

  Didn't we just do this last week where we were talking about independent agencies?

• 29:17Michael Liroff?

  Right.

• 29:17Peter Shamshiri?

  And the court had just given the president, like, the ability to reign over independent agencies like a king.

• 29:23Michael Liroff?

  Yeah.

• 29:23Peter Shamshiri?

  And Neil Gorsuch is like, it's a big problem how powerful they are and how powerful the executive branch is.

• 29:28Michael Liroff?

  Right. What are you talking about?

• 29:31Speaker 04

  Yeah.

• 29:31Peter Shamshiri?

  You did this.

• 29:32Michael Liroff?

  You did this.

• 29:32Peter Shamshiri?

  You just did it.

• 29:34Michael Liroff?

  It's incredible. She has a very good snarky line. I don't have it down here, but that's like, look, if we want to overturn an old case because we're worried about super PAC money, like, it's Citizens United.

• 29:45Speaker 04

  Exactly.

• 29:45Michael Liroff?

  Like, right?

• 29:46Speaker 04

  Exactly.

• 29:47Michael Liroff?

  You know, come on, guys.

• 29:48Peter Shamshiri?

  We were talking about like, why the Democrats intervened here. Because, you know, the big-picture narrative is that super PAC money in particular, and this is not about super PAC money, but it's about money in politics. But like, the massive increase in money in politics over the last 15 years initially benefited Republicans more, but over time, it drew even and at times has benefited Democrats more.

• 30:13Speaker 04

  Yeah.

• 30:13Peter Shamshiri?

  Right?

• 30:13Speaker 04

  Yeah.

• 30:13Peter Shamshiri?

  Now, in this particular case about parties, the DNC's broke, the RNC's flush, maybe that's relevant here. Maybe the Democrats just want to, you know, stand up for what they think their base believes. But at the end of the day, I actually think this is one of those issues, corruption issues broadly, campaign finance in particular, but corruption issues broadly, are just one of those issues where like, Democrats are just better.

• 30:37Michael Liroff?

  Yeah.

• 30:37Peter Shamshiri?

  Like, your median lib-ass Democrat is dramatically better than your median conservative, your median Republican. And it's annoying because I think if you ask the average person... Which party's better on corruption? This is one of those things where they'd be like, well, everyone's corrupt. Right?

• 30:55Michael Liroff?

  Right.

• 30:55Peter Shamshiri?

  The sort of common wisdom is that both parties are equally corrupt. And there's sort of a holistic argument where you can say, well, both parties are indebted to big donors in similar ways. I think that's true. But if you put Democrats in power, corruption laws get stronger. Is basically a lock. You can see that over the last 15 years.

• 31:15Michael Liroff?

  Right.

• 31:16Peter Shamshiri?

  And it's insanely frustrating that this is like not part of the Democratic platform because they can't anger the donors that funded them.

• 31:24Michael Liroff?

  Right.

• 31:24Speaker 03

  Exactly.

• 31:25Peter Shamshiri?

  It's so weird. There's such a weird little tension here. And we were having a conversation when we were prepping this about how you could probably trace a lot of the Democratic Party civil war that everyone's talking about to big donor money.

• 31:41Michael Liroff?

  Right.

• 31:41Peter Shamshiri?

  Right? Because you have all these issues where it's not really like there's a big split amongst Democrats. What's happening is that there's a split between the base and big donors. Right? So like, there's no split on Israel among Democrats.

• 31:57Michael Liroff?

  Frank and file, it's like becoming an 80/20 issue. Yeah.

• 32:00Peter Shamshiri?

  Yeah. It's a slam dunk. Democrats don't like Israel. Democrats think it's a genocide. That is like, that shows up in the polling time after time. The split is between the base and the people who have the money. And we see that all the time. You see that across a number of issues. The sort of defining feature of the Democratic civil war is just money. You know, when you look at someone like Haley Stevens in Michigan, who lost in Michigan, does that campaign exist without Citizens United?

• 32:29Speaker 03

  Right.

• 32:29Peter Shamshiri?

  Does that, does Haley Stevens, she disappears like one of the Avengers. Right?

• 32:34Speaker 03

  Yeah. Yeah. $60 million to that campaign.

• 32:38Peter Shamshiri?

  Right.

• 32:38Speaker 03

  Like for, for what? From whom? Right? Arguing what? What's the platform? Why is that possible? Is what we're saying, you know? This is all years down the line from Citizens United and something that everybody opposed to Citizens United said was exactly what was going to happen.

• 32:56Michael Liroff?

  My strong suspicion is that there are other issues that follow the same pattern. All sorts of institutional reform, stuff that's wildly popular with the base, whether it's ditching the filibuster, court reform.

• 33:08Peter Shamshiri?

  Medicare for all stuff.

• 33:09Michael Liroff?

  Yeah.

• 33:10Speaker 03

  Oh, yeah. Oh, yeah.

• 33:10Michael Liroff?

  The divide between that and, you know, party leadership in Congress is most easily explained by the fact that a handful of wealthy donors don't give a shit and don't want them to spend their time on court reform.

• 33:26Speaker 03

  Yeah.

• 33:27Michael Liroff?

  Right? When they're wealthy enough that they benefit from a lot of the conservative rulings, you know, on the court. They might not love Dobbs or whatever, but they don't care enough. Right? Nobody's giving millions and millions of dollars to the Democratic Party to explain to court from nine to 15, unfortunately. If there was someone, it would be taken more seriously. Peter did mention the civil war and I do want to like emphasize that's very real. Like you can see it playing out. You can see comments from people like Warnock made a comment last year about how he didn't think Schumer would continue to be in leadership. You can see it in people like Warren endorsing a lot of insurgent Senate campaigns throughout

• 34:08Michael Liroff?

  the country, even leading to some very stupid decisions on her part, like endorsing a guy with a known Nazi tattoo, who was a former, you know, Blackwater merc type.

• 34:17Peter Shamshiri?

  Win some, you lose some.

• 34:18Michael Liroff?

  Yeah. On the other side was Schumer's handpicked person who was going to support Schumer and Plattner was anti Schumer. And so it's like, it's not hard to pick out who are the senators who are actively working to try to dislodge leadership. And it's in part because leadership is very sort of in hoc to a handful of donors. And, and you can see like how they behave. You can see it in how people's behavior changes once they ascend to leadership. Right? Like Gillibrand has gotten phenomenally worse since she got put in charge of this Senate Campaign Committee.

• 34:53Peter Shamshiri?

  It's actually crazy.

• 34:54Michael Liroff?

  How like, how eerily you can track her descent.

• 34:58Peter Shamshiri?

  I mean, she was like loosely aligned with like a Liz Warren.

• 35:01Michael Liroff?

  Yeah.

• 35:02Peter Shamshiri?

  A decade ago.

• 35:03Michael Liroff?

  Yeah.

• 35:03Peter Shamshiri?

  It's crazy what happened to her.

• 35:04Michael Liroff?

  I think the most salient example is making Islamophobic comments about Zohran Mhamdani. And it's like, no history of anything like that.

• 35:12Speaker 03

  Well, yeah. Where'd you learn that, girl? Like, where's that coming from? I think you can also see this tension in the like, sometimes this quote unquote civil war within the Democratic Party is defined also as like a DSA versus, you know, the party establishment or like, you know, quote unquote, true Democratic candidates, where you also have Democratic leadership being like, you know, they're not the Democratic Party. They shouldn't be allowed to run as Democratic Party candidates.

• 35:38Michael Liroff?

  Oh, for sure.

• 35:38Speaker 03

  Their plan is to take over the Democratic Party and change the Democratic Party and they shouldn't be able to use our resources. Right? And it really reveals their capture.

• 35:45Peter Shamshiri?

  Yeah.

• 35:45Speaker 03

  Their capture to the donors. Like what is actually the threat?

• 35:48Michael Liroff?

  Right.

• 35:48Peter Shamshiri?

  Because right, what do you think the Democratic Party is?

• 35:50Speaker 03

  Exactly. What is the threat posed by candidates who are not beholden to these huge, huge wealthy donors?

• 35:58Peter Shamshiri?

  Right.

• 35:58Speaker 03

  Corporations and PACs and all of this stuff, who are more popular than you are.

• 36:02Peter Shamshiri?

  Yeah.

• 36:03Michael Liroff?

  Right.

• 36:03Speaker 03

  This is the disconnect is that you're not connected to the base because you are beholden, you are captured by these finance structures. It's not Democratic establishment versus DSA so much on the issues, let's say. It's like five billionaires versus everybody else in America, you know?

• 36:21Michael Liroff?

  Right.

• 36:22Peter Shamshiri?

  And the only way to fight back is to subscribe on Patreon so that we can become billionaires.

• 36:28Speaker 03

  It's one subscriber at a time.

• 36:30Michael Liroff?

  That's right.

• 36:31Peter Shamshiri?

  One at a time, folks. That's how billionaires are made.

• 36:33Speaker 03

  This is like, do you understand how big $1 billion is? Is how many patrons? How many $5 a month patrons do we need?

• 36:42Peter Shamshiri?

  Yeah.

• 36:43Speaker 03

  To be making a billion dollars?

• 36:46Peter Shamshiri?

  Well, you have to take out the cut to Patreon, which fucks us up. If you factor in fees, of course, it'd probably be more like 260 million, something like that.

• 36:55Speaker 03

  Which is two thirds of the American population.

• 36:57Michael Liroff?

  Yes.

• 36:57Peter Shamshiri?

  But that's a billion a year with just half that many.

• 37:02Peter Shamshiri?

  We could do it in two years.

• 37:03Speaker 03

  I'd be fine with that. Yeah.

• 37:04Peter Shamshiri?

  And we'd be fine with that. I'm not waiting three years, though. I'm not, I'm not going to wait three years. Also, of course, part of this goes to Leon Nefok, who, once becoming rich, would join the Democratic machine. He would join the establishment and become Islamophobic. That is, so we have to balance that out.

• 37:22Michael Liroff?

  Right. So it's important you make all three of us billionaires so that we can outweigh him.

• 37:27Peter Shamshiri?

  Which of course would require closer to about 650 million.

• 37:33Peter Shamshiri?

  One thing that is likely to happen from this decision, because of this decision, is that parties get more power.

• 37:40Speaker 03

  Right? Yeah.

• 37:40Peter Shamshiri?

  That means that the Democratic establishment is going to be able to direct money more than they were before.

• 37:49Michael Liroff?

  Right.

• 37:49Peter Shamshiri?

  Decision makers within the party are being given more power. Undeniably bad for the base if we really are in a base versus establishment

• 37:59Speaker 03

  Yeah.

• 37:59Peter Shamshiri?

  struggle in the Democratic Party.

• 38:02Michael Liroff?

  Right.

• 38:02Peter Shamshiri?

  The silver lining is that maybe it's bad for the Republican base. Right? Maybe the Republican Party gets a little more power, which I know sounds bad, but when you're talking about the Republican establishment versus the Republican base, you win some, you lose some.

• 38:15Speaker 03

  It's all a wash. All a fucking wash.

• 38:17Peter Shamshiri?

  I think the sort of like medium term effect of this is that the party establishment grows stronger. And I have to say that on the Democratic side at least, can't be good.

• 38:28Speaker 03

  Yeah.

• 38:28Michael Liroff?

  Right. Like Kagan talks a lot about the way, and we talked a lot about the way this enables quid pro quo corruption, which sort of presumes the candidate is in charge of all the money. But ultimately, an important in-between step is, you know, the candidate makes this big joint fundraising committee. Someone cash, someone writes a big check to it and that all goes to the national party. Right? It all goes to the DNC or the RNC. And then it's up to the DNC or RNC, um, you know, obviously with the tacit approval of the donor, or maybe not so tacit, just verbal agreement.

• 39:08Speaker 03

  Yeah, straight up expectation. Yeah.

• 39:10Michael Liroff?

  Right. They get to decide whether or not to give all that money to the candidate or not. And so this method of fundraising, it could be choked off for disfavored candidates who take a position that angers, you know, Kristin Gillibrand, for example. Like Peter said, a real problem in the medium term. And one of the reasons why it's very important to dislodge them sooner rather than later.

• 39:34Peter Shamshiri?

  Yeah.

• 39:38Peter Shamshiri?

  All right. Next week, premium episode, we're going to be talking about a few things, including the fact that John Roberts published a Substack post.

• 39:48Speaker 03

  Content creator, John Roberts. Influencer, John Roberts.

• 39:51Michael Liroff?

  He saw your newsletter, Peter, and was like, I need to get in on that sweet, sweet newsletter cache.

• 39:56Peter Shamshiri?

  Yeah. Follow us on social media at 54pod. Subscribe to our Patreon, patreon.com/54pod, all spelled out, for access to premium and ad-free episodes, special events, our Slack, all sorts of shit. We'll see you next week.

• 40:11Michael Liroff?

  Bye-bye.

• 40:12Speaker 03

  Peace.

• 40:17Michael Liroff?

  Five to Four is presented by Prologue Projects. This episode was produced by Andrew Parsons. Leon Nefok 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, ad-free episodes, discounts on merch, access to our Slack community and more, join at patreon.com/54pod.

• 41:02Peter Shamshiri?

  We had to use that metaphor, by the way, because the other option was AOC finally being officially single and we didn't want to give Michael the opportunity to shoot a shot and embarrass the whole podcast. Worst case scenario is you actually do start dating AOC and it ruins the podcast. That would be the worst.

• 41:19Speaker 03

  We have to cut all this. Sorry, guys. This sounds like loser shit.

• 41:22Michael Liroff?

  No, I agree.