Federal Election Commission v. Ted Cruz for Senate

We will hear argument first this morning in case 2112 Federal Election Commission versus Ted Cruz for Senate.

Hey everyone, this is Leon from Viasco and Prologue Projects.

On this week's episode of 5-4, the hosts are talking about Federal Election Commission v.

Ted Cruz for Senate.

It's a bit of a convoluted case, but basically, Cruz loaned his campaign $260,000 of his own money, purposefully setting up a conflict with existing election law.

The law in question prevented campaigns from using post-election donations to pay back loans totaling more than a quarter million dollars.

Senator Cruz challenged a campaign finance law that limits the use of post-election funds to reimburse candidates' expenses and loans.

The court ruled that the regulation in question places a burden on core political speech without proper justification.

With a six to three vote from the court, Cruz prevailed in the case, making it possible for donors to give elected officials large amounts of cold hard cash after they've already won.

This is 5-4, a podcast about how much the Supreme Court sucks.

Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have sent our civil liberties into gradual decline, like the quality of Netflix's movie library.

I'm Peter, and I'm here with Michael.

Hey, everybody.

I will say, though, I watched the first episode of the new Stranger Things season.

I thought it was pretty good.

Some good horror, some good real body horror in it.

Yeah, I'm ahead of you.

I finished episode two.

I will say, I also enjoyed it.

I'm very confused at this point about the Stranger Things lore.

Like, is this sci-fi?

Is this horror?

Like, what's going on?

Yeah.

I'm enjoying myself.

It's fun, but pretty confused about how this fits into the broader universe.

I'm happy to do a whole podcast about that, by the way.

Let's forget Ted Cruz.

Rhea is not with us.

No, Rhiannon is out just drinking, partying, things like that.

She heard that Ted Cruz was going to get bashed on this, and she was like, that's my senator.

Right.

He represents my interests as a Texan, and I love him, and I can't be a part of it.

I think those were her exact words.

Today's episode: FEC v.

Ted Cruz for Senate.

This is a case about campaign finance, and specifically, it is about the ability of candidates to give their campaigns money and then use donor money to pay themselves back after they win.

It's so ridiculous.

Yeah,

this is going to be, this one's, it's just going to be sort of, you're going to witness Michael and I processing this emotionally in real time, I think.

Now, Rhee usually does our background and then I cover the law, but since she's taking the week off to do drugs and respect Ted Cruz, I'm going to do both.

And the situation here is actually pretty simple.

Political candidates are allowed to give loans to their campaigns, and then they can pay themselves back with money from the campaign.

But there's a limitation contained within the Bipartisan Campaign Finance Reform Act, aka McCain-Feingold.

If a candidate gives a loan to the campaign, the campaign can pay back any amount with donations received before the election.

But the amount it can pay back with donations received after the election is capped at $250,000.

So if I'm running for Senate, I can loan my campaign a million dollars, and my campaign can pay me back in full if it uses donations received before the election.

But if it tries to pay me back in funds received after the election, the amount that it can pay me back is capped at $250,000.

The reason the rule exists is to prevent corruption, right?

Because if a donor is giving your campaign money after the election, they are no longer funding your campaign.

The campaign is over, right?

So they're not trying to help a candidate win.

They're trying to ingratiate themselves with a candidate who has already won.

They know that you don't need the money for like ads or something, right?

So they're essentially just putting money into your pocket.

So Congress passed this law in order to at least partially close what is essentially a loophole that allows wealthy donors to pay politicians directly, as long as they time it right.

Enter Ted Cruz, senator from Texas and American freedom fighter.

That's right.

Ted wanted to challenge this law, so he intentionally loaned his campaign $260,000, $10,000 more than the legal maximum.

and claimed that the law impacted his ability to have the loan paid back.

He's such a little fucking rat creature.

He is.

He looks in real life the way that I feel like his soul looks, you know?

Right.

Yes.

Yeah.

So Cruz is claiming that this limitation on the ability of campaigns to pay back candidates with post-election donations violates the First Amendment.

As you all know, of course, in America, money is speech, which means that a candidate loaning their own money to their campaign qualifies as speech under the First Amendment.

Let's just like accept that as true.

It's so obscene.

I'm just going to loan myself some speech.

Yeah.

I'll get that speech paid back maybe later.

Loaning some speech to the corporate entity that represents my Senate campaign.

That's right.

That's the Constitution, baby.

So the argument is that this law reduces the ability of campaigns to pay back

their candidates' loans,

which reduces the likelihood that a candidate will loan money to their campaign in the first place, which infringes upon their right to free speech.

Majority opinion here.

By restricting the sources of funds that campaigns may use to repay candidate loans, Section 304 increases the risk that loans will not be repaid, which in turn inhibits candidates from loaning money to their campaigns in the first place, burdening core speech.

So

now I want to backtrack on this because this might be like a little bit complicated if you're just processing it for the first time.

But again,

Ted Cruz loaned his campaign money and his campaign can pay it back.

Except if it tries to use funds that were donated after the election was over, the amount of those funds it can use is capped at $250,000.

That's all we're talking about here.

Yeah.

That sentence,

I had to read it like four times because I know we've already gone through this, but the way it just like slides from inhibits candidates from loaning money to their campaigns, comma, burdening core speech.

Core speech.

The core speech of loaning money to your campaign.

I'm already mad.

I'm already so fucking mad.

If you like broke this down to like formal logic, between those two lines, you'd be like, this is missing.

There's something missing here.

You're missing a big thing here.

It doesn't go from one thing to the next.

Like, that's, they're not the same thing.

Yeah.

So on that point, one of the central oddities of this case is that the court is talking the whole time about the ability of candidates to like fund their own campaign and how important that is under the First Amendment.

They think that it's crucial to free speech that a person can donate their own money to their own political campaign.

Now, I'm not sure if I agree with that, but either way, as the dissent points out, this isn't really about the ability of candidates to like self-fund their campaigns.

If you're loaning your campaign money and then donors are paying you back, that's not self-funding.

That's donor funding with an additional step.

Right.

Right.

It's unbelievable.

It's donor funding, but the donors have the added benefit to them of knowing that their donations are going to a winning candidate because they already won.

Right.

Which makes their speech, I think, even less of a core political speech.

Even if you accept that money is speech, donating to someone who already won and the election is over,

I don't

think that's core political speech.

You're not,

it's, I'm sorry.

Right.

It's so upsetting.

It's so, it's such,

we will talk about like the layers here, like the layers of bullshit.

It's just layer on layer of like thing that you need to accept for this to be true.

And, you know, there is, there's one layer that we will talk about a little bit more later, but like

candidates can charge their own campaigns interest on the loans.

So like

is it First Amendment expression if the transaction is like profitable for you?

Like, oh, just made, just made 9% off my First Amendment rights.

Are you fucking kidding me?

Like the number of ridiculous things that you need to accept to get to a point where like Ted Cruz is charging his own campaign interest to like store his money on its books.

And that's, that's core political speech.

Right.

Like, are you, come on, getting better returns than he would putting that into like a fucking index fund.

Right.

Like

just

crushing it, just absolutely crushing it with donor funding.

Just lining his pockets with donor funding.

Unbelievable.

The other thing about this is like,

so if you go back and you read the first case in the 70s that said like money is speech, they make this analogy where they say like, it's one thing to say two people can both drive as far as they want, but if they only have one gallon of gas, then they really can't drive that far at all.

And

by the same token, you can say, oh, yeah, speech is totally, you can say whatever you want running for office, but if you don't have money, you can't like get your speech out there.

Right.

I don't think this analogy really holds, but even if you accept it, it's not true anymore.

It's just not.

Like

Peter has 125,000 followers on Twitter.

He's paid $0

and he can get a message out if he wanted to run to office.

He could get almost certainly could get millions upon millions of views on his like announcement if he wanted.

And it wouldn't cost him a dime, right?

Like Betto O'Rourke went to fucking Greg Abbott's press conference and yelled at him and got a ton of free media coverage.

That didn't cost him anything.

Like earning media, social media, Facebook, Twitter, Instagram, whatever.

There are so many ways now to get your message out without having to spend any money and to fundraise without having to spend any money.

If it was ever true, it's not anymore.

Like, it's just, it's just not.

So the court is very caught up in this idea that like loaning your campaign money

is core political speech.

Right.

And then they move on to sort of attacking the law itself and the purpose that the law is trying to serve.

They make several arguments, arguing that this law does not really prevent corruption.

They're trying to make the case that the law does not really do anything to like advance the public interest in stemming corruption.

It's worth noting, the Supreme Court has identified two things that will allow the government to burden speech, and that is when it's trying to prevent corruption

or

the appearance of corruption.

Right.

Because you don't want people to lose faith in democracy, even if the corruption isn't real, it's just perceived.

We'll come back to that a little bit later.

Yeah.

So

the majority says, quote, the government is unable to identify a single single case of quid pro quo corruption in this context.

This is their first argument.

Now,

first of all, the whole point of these laws is that this sort of corruption where someone is given money, a politician is given money and like favors are exchanged, it's almost impossible to prove that it happened, right?

If a senator-elect meets with a donor and says, like, thanks for the donation.

What do you want in exchange?

And then they talk openly about it and they do like a movie villain laugh.

You're never going to find out about that, right?

No.

Like, that's the entire point of these prophylactic laws.

We know that this stuff is near impossible to identify and prosecute.

So you pass laws that cut off the avenues that allow it to happen.

So, like, the fact that you haven't found many instances of this or any instances of this doesn't really prove much.

Wait, Ted Cruz hasn't emailed a donor BCCing his entire staff saying, thank you for the donation as promised in exchange.

I will be doing X, Y, and Z.

I hope to continue these transactions going forward.

Like, yeah, no, sorry that this stuff is hard to prove, but yeah, that's what then the donor replies, like, FYI, this is violating the law.

And Ted Cruz replies, I know, I am aware.

I know, I love being bribed.

But like, you know, maybe more importantly and more to the point, the government's brief identifies several pretty clear instances of quid pro quo corruption in this context.

And I'm going to quote from it in full: quote, in Kentucky, two governors loaned their campaign millions of dollars only to be repaid after the election by contributors seeking no-bid contracts.

In Ohio, an attorney general routed 225 state contracts worth $9.6 million in legal fees to law firms and lawyers who had given him $194,830

after the election to repay personal loans.

In Oregon, contributors who had supported losing candidates before an election contributed to the winning opponents after the election.

Oregon political insiders referred to these payments as apology money or makeup cash.

So like, okay, so first of all, yes, this has happened.

And the government's brief cites several instances.

And the Roberts court is just like, this has never happened before.

It's like, what the fuck?

Do you mean the West world doesn't look like anything to me?

Like, I was like, man, has this really never happened?

That's interesting.

And then I went and read the government's brief.

And they're like, here are several instances of it happening.

What the fuck?

Fuck full-on, bald-faced fucking lie.

And it's not something that slipped by them because the dissent quotes these two.

Like, John Roberts wrote out, like, there are no examples.

And the dissent's like, here are several examples.

And John Roberts read that and was like, I'm going to stick with lying about this.

Yeah.

Yeah.

And one final thought about this, this argument that there are no examples.

It's interesting that the court is demanding proof here.

They're like, well, you can't even prove this has ever happened.

So how can it be like an important state interest, right?

If you can't even give examples of this happening.

When states are passing voting restrictions based on completely unproven theories of voter fraud,

I don't recall the court demanding proof.

Fascinating, right?

Fascinating the dichotomy there.

And the opposite is the case.

They have like

been very clear that even in the absence of voter fraud, voters losing confidence because they perceive voter fraud is enough reason to burden someone's right to exercise the franchise, right?

Like that's they've straight up said it.

But here they're doing the opposite.

They're saying, even in the face of actual examples of corruption,

we're just going to pretend those don't exist and still say, yeah, no, this is, this doesn't apply.

They're such assholes.

I fucking.

The next argument that the majority makes is a doozy.

And I really need everyone to emotionally brace themselves.

Roberts argues that this isn't corruption because when you pay back a loan, you're not really making someone richer because they were owed the money anyway.

Oh, man.

I genuinely had to like read this a few times to just like process it, like both intellectually and uh emotionally it's one of those things that like even after doing this podcast for two and a half years i was like damn this is some brazen bullshit yes i'm gonna call up bank of america and let them know that paying back my mortgage actually won't enrich them

And so I'm just not going to do it.

That's interesting.

Yeah.

So unfortunately, we have to take this seriously and dig into it.

The argument is that donations that are used to repay a candidate's loans are not like a gift to the candidate under campaign finance law.

Right.

Because when the candidate loans the campaign money, he's owed that money back anyway.

How can it be a gift if it's something that you're owed?

Now, there's a few counter-arguments here.

The first, the most common sense counter-argument, shall we say, and stop me if I'm missing something.

Being owed money and having money are not the same thing.

No, no, no.

It's an interesting thing.

John Roberts, the Chief Justice of the Supreme Court, the number one lawyer in America, is telling you that being owed money and having money are the same thing.

They're functionally the same.

Do you think he took a huge bong grip before he came up with this?

This is one of those, like, this feels like the vestigial tale of like law and economics, you know?

Yeah.

But, you know, okay, let's flesh this out.

If I loan my campaign, my own campaign, a million dollars, there's a risk that I don't get paid back, right?

In fact, campaigns run out of money all the time.

And double in fact, there's some research showing that most campaigns fail to repay their candidate debts.

So when you loan to a campaign, like with any any loan, but perhaps more than your average loan, you are running a considerable risk that you do not see your money again.

So when a third party steps in and pays you back that money,

that's a gift.

That's a favor to you, right?

The financial risk that you were incurring by giving the loan has been erased.

That is worth money.

This is like the most basic economic concept on earth.

It is,

it is.

Is it better to not have money or have money?

Just,

I mean, we talked about charging interest, but this is, this is why banks charge interest.

They're saying, well, it would be better for us to have this money now.

Right.

If we're going to give it to you instead,

we need something in return.

We need some recompense because

you having the money instead of us is not not the same as us having the money.

And in fact, that injures us financially.

That's like the nature of loans.

Incredible.

The way they work.

So, okay, let's stick with interest, right?

Because they're not just giving their campaign a loan.

No.

They are charging interest to their own campaign, right?

That's something they're allowed to do.

So they're not just being paid back the loan that they're owed, but also the interest that they're charging.

In Kagan's dissent, she refers to a House member who loaned her campaign $150,000

at 18%

interest,

an amount that is usury in nearly every state.

Yeah.

Illegal.

in nearly every state.

The candidate ultimately collected over $200,000 in interest payments alone on the $150,000 loan.

So a candidate is not simply being paid back what they loaned.

They are being paid back plus interest, which means that if campaign donors cover your loan, they are literally paying you the interest that you charge the campaign straight into your fucking pocket.

You cannot tell me that that's not like a gift under campaign finance law or whatever yeah and

look it's worth saying explicitly that this should just be flat out illegal like full full stop you should not be able to charge your own political campaign interest on a loan you shouldn't

What are we talking about here?

When you loan your campaign money, you're loaning money to the legal entity created with the sole purpose of getting you elected.

and then you are charging that entity interest,

which your donors pay back to you.

This is just a way to funnel donor money to candidate pockets.

Right.

To elected politician pockets, because they're not doing this for people who lose.

Right.

It's such an obvious point.

There's a quote from the opinion, and they're trying to like illustrate this point that like paying back loans doesn't do anything.

It's not a gift.

They say, if the candidate did not have the money to buy a car before he made the loan to his campaign, repayment of the loan would not change that in any way.

So first of all, wrong, wrong, because if they fucking paid interest on the loan, then you have more money than you started with.

So maybe you can afford a car now.

Second of all, those aren't the operative moments in time, right?

To say like, oh, If he didn't have the money before he made the loan, he won't have it after it's paid back.

Even taking interest out of the equation, that's not the question.

Because after you make the loan,

what about after you make the loan?

Then you have less money than before you made the loan.

In fact, maybe you could buy a car, but then you made the loan and could no longer afford a new car.

But

getting the loan repaid means like, oh yeah, maybe I will get that Audi.

Yeah,

why not treat myself?

I mean, I don't even like know how, like, you're reading this stuff and it's like, okay,

you know, this is just mask off, right?

Like, this is a group of people who have lost the need or desire to give you a good reason for what they're doing.

That's all there is to it here.

It's just, it's just, it just feels insulting to read.

Like, how dare you?

I've been trying to read your opinion and you're

you're treating me like i'm an asshole i could only read this thing like two or three pages at a time because i was just like losing it like every few paragraphs there's something that would get me so upset like like so angry and soda my or

in oral argument asked a question that i thought was just like devastating

to the cruise campaigns argument.

She just says like, we know that after an election,

your contribution as a contributor is not being used to promote a candidate because the candidate has already won.

So it's not going to be an expenditure to promote your speech electing the candidate.

Why would someone donate to a campaign after the election is over?

Why do you give after an election to a candidate who's not going to spend it on getting elected?

He's going to spend it on something in the past, but certainly not nothing with respect to the actual election

and his getting his post.

And to me, that's a natural quid pro quo.

I'm giving because I want to draw my attention to you.

Like, literally, what's the point?

If you donate to a campaign in the middle of an election, everyone knows what you're trying to do.

You're trying to increase the chance that they win the election.

Right.

But if the election is over,

what are you trying to do?

And seeing as the obvious reason is you're trying to pay back the candidate's loans to curry favor with the candidate,

and there's no other plausible explanation, the fucking cruise campaign lawyer just like was like,

hemmed and hawed

and did not provide a solid answer.

And I'm sorry, but if the answer to that, which I think this has to be the reality, if the answer to that question is, well, it's just to pay down a campaign's debts, that's why donors are doing that, then I don't think that is like expressive in any way, right?

Not at all.

If it's like, oh, my homie Ted Cruz is out 200 grand, I'm going to give him a few grand to put a dent in that.

That's not like expression.

That's not First Amendment speech.

It's not paying for ads.

The ads have already been paid for.

They're done.

And if it's not expressive,

that means

that you could ban it entirely.

Yeah.

And if you could ban it entirely, why can't you just cap it at $250,000?

These are all very fundamental questions that go extremely not addressed in the majority opinion.

No, these questions get answered between commas, between sentences as assumptions, right?

They're never actually explicitly discussed.

It's just, well, of course it's expressive because money is speech and loaning money is speech and paying back a loan is speech.

Apparently,

of course, of course, of course.

Why would we even need to make this case?

It's just so obvious.

I think it is time for a quick break.

Another butte in this opinion.

Believe it or not, the argument we just went over was not the bleakest argument that the court makes.

Not at all.

So I'm just going to read this from the opinion.

Our cases make clear that the government may not seek to limit the appearance of mere influence or access.

As we've explained, influence and access embody a central feature of democracy, that constituents support candidates who share their beliefs and interests, and candidates who are elected can be expected to be responsive to those concerns.

It's a central feature of democracy

that people can buy influence in politics.

That is the holding of the Supreme Court.

Yes, yes, a central feature that you must be able to give money to candidates in exchange for influence over those candidates.

Literally purchasing influence.

Like we're a couple of lefty podcasters.

So when you hear us say like, oh, they're purchasing influence, you might think that that's our lefty spin on it.

That is the word.

That's what they fucking said.

They said that a central feature of democracy is purchasing with money influence and access in politics.

Mask off.

I'm telling you, it's mask off.

I want to contrast this with some things the conservatives have

held are not central.

I'm sorry, I'm like stuttering because I'm like so upset.

here are here are some things that are not central features of our democracy this is a line from bush v gore the individual citizen has no federal constitutional right to vote for electors for the president of the united states voting there's something that's not a central feature of our democracy the right to vote for president here's another one from rucho v common cause more fundamentally vote dilution in the one person one vote case refers to the idea that each vote must carry equal weight.

In other words, each representative must be accountable to approximately the same number of constituents.

That requirement does not extend to political parties.

It does not mean that each party must be influential in proportion to its number of supporters.

So here's something else that's not central to our democracy.

The majority of voters getting to see their will reflected

in the government.

Literally, government reflecting the will of voters, not central to democracy.

Not central.

Being able to purchase influence, central feature of democracy.

Literally, democracy as a transaction.

Like you, you cannot make this shit up.

Like there might not be a better summation of this court's poisonous impact on American democracy than Roberts explicitly stating that purchasing access and influence is a central feature of democracy.

First of all, this should be obvious, but the entire point of buying influence is that you are paying to disproportionately influence politicians.

Democracy is predicated on the idea that people are equally represented.

That is the whole point.

So like this very plainly violates the foundational promise of democratic government.

And further,

this sort of just like gives the game up.

They spend half of this opinion just saying that, like, this is not actually corruption, right?

This is, that's just loans and repayment of loans.

Then they say that actually

using money to influence politicians, well, that's just democracy.

That's democracy.

And at that point, you have to ask yourself, not just what do they think democracy is, but what do they think corruption is?

Yeah.

Right?

Well, I'll get into that later, too.

They focus on the term quid pro quo, right?

Which literally means something for something.

In other words, to prove corruption, you have to show that a politician gave you a specific favor in exchange for money.

But what's the difference between buying influence and buying favors?

Like, what does it mean to buy influence?

if not that you are paying in order to get something in return from the politician?

Like, is that not what influence is?

Hey, Peter.

Can you correct me?

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.

I'm glad this distinction that you have not described or explained

is legally meaningful and must be respected.

This entire case and really the entire line of campaign finance jurisprudence from this court is predicated on pretending that these are different things, right?

Yes.

That there's a difference between quid pro quo corruption and just like the general buying of influence.

Right.

But they're very plainly not distinct.

Yeah.

So what you get at the end of the day is Robert saying, well, no one has shown that quid pro quo corruption is happening here.

And then in the next breath, essentially admitting that that is what's happening here.

It happens all the way up.

But it's just that he thinks it's great, right?

Yes.

Their vision of democracy, if you look at their voting rights and campaign finance cases, is pretty clear.

And that is a minority party taking power and then taking money in order to decide how to exercise that power.

That's democracy to them.

If you think democracy is something else, like, I don't know, majority rule with minority rights,

that's some fourth grade shit.

Welcome to the real world.

Welcome to John Roberts, America.

There are so many little things to talk about here and so many like tangents we could go into.

But one of the things the government points out in their brief is that winning campaigns have their debt.

paid off by donors at a much higher rate than losing campaigns.

Wow.

Wonder why that is fascinating, right?

Yeah.

Yeah.

You know, you'd think if it's just like rah-rah rooting for my team or whatever, it's like, well, they would be at, you know, equal rates.

The fans stay and applaud their team at the end of a losing playoff game to let them know they had a good season, right?

Right.

The dissent also cites a study that showed that candidates who had campaign debt were more likely to switch their votes in Congress after receiving donations.

Roberts calls that meager, meager evidence.

Right.

Meager evidence.

You know, the whole point behind this law is like, well, there's a real prospect for corruption here, right?

You essentially have donors paying money directly into candidate pockets after the election is over.

Looks a lot like corruption.

We should be concerned.

And then you have actual instances of it happening that the Roberts court literally says aren't there.

You have research and data showing like a bunch of suspicious activity, right?

Like winning campaigns, getting more money, etc.

And then the Roberts court just brushes that off.

The majority is like, yeah, that's nothing.

You know, it's like, what exactly are they looking for here?

What would prove the government's case here in their minds?

Oh, God.

So I think maybe it's time to talk hypotheticals.

What could you do under the Roberts court rule?

And

our brilliant producer, Rachel, when we were talking about this case,

she thought of something.

Really good.

She said, couldn't you go to a bank, take a loan out at a low interest rate, loan it to your campaign at a higher interest rate, and just capture that delta.

Yeah.

Run arbitrage.

Using the backstop of post-election donor funds literally running arbitrage between your bank and your campaign your own campaign like this is the most transparently corrupt scheme i could ever think of and it's totally legal now

yes yes also i mean worth noting was mostly legal before i mean it's just yeah before before you could just cap the the amount that would get paid now it's just like go fucking wild full on just going to to your bank and being like, yo, I got a scam for you, bro.

I got fucking donors that'll pay me all the money I want after the election's over.

You give it to me at 6%.

I'm going to get it from them at 15%.

I'm going to bank that 9%.

You take that 6%

and we'll go our separate ways.

And the bank's like, fuck you.

Yeah.

And maybe when some like regulations come up you don't like, maybe I'll be pretty friendly then too.

Who knows?

After all, you're bankrolling

this scheme for me.

So thanks.

Unbelievable.

Yeah.

Fucking in the wrong political party.

Oh, man.

We're in hell.

This is like, I think that you can probably tell by our tone that like, this one really broke us.

Like, this one is like truly outrageous in a way that's hard to articulate in the sense that every argument they make is so transparently bad faith.

You know, a lot of these cases we do are sort of like

coming from places places of just markedly different values on certain subjects, you know, and I think their values are fucking disgusting.

And so we'll argue on that basis.

But this is one where it's like,

you know that they don't believe this shit.

They are fucking lying to your face in several different specific ways.

And you're just meant to eat it.

Like, it's genuinely insulting to read.

It really is.

I said it before, but I'll say it again.

It is.

The dissent, Kagan joined by the other libs, Sodomayor and Briar.

This is Kagan in her element, right?

She's like making the case for good governance, appealing to common sense, democratic norms.

The tone of the dissent is sort of just incredulous.

Sensible enough reaction in many ways.

I think we are...

demonstrating some incredulousness ourselves, but it still feels like something is missing here,

something that like more directly calls out the intentionality of what Roberts is doing here.

Part of it's the fact that the justices have to pretend that law is nonpartisan.

And so Kagan will never say, hey, the removal of campaign finance barriers is something that predominantly helps Republicans.

And it's being pushed predominantly by Republicans.

And everyone in the majority is a Republican.

In fact, Brett Kavanaugh has done legal work for Republican presidential candidates.

And Clarence Thomas's wife is functionally a Republican political operative whose income as an operative he tried for many years to hide from the public.

And in fact, his wife openly endorsed the 2016 presidential campaign of Ted Cruz, a party to this case.

And maybe that should all factor in to how you view this opinion.

So you have Kagan

acting incredulous.

But what is incredulousness if not a person asking why

and struggling to answer, right?

Yeah.

Why would six supposedly intelligent people reach these batshit conclusions?

Why would they greenlight transparent corruption?

How could they possibly be so stupid?

Why would they say that buying influence is central to democracy?

Kagan asks the question, but she doesn't answer it.

And I think that does us all a disservice.

You know, I think that's right.

I don't expect Kagan to do it.

I don't expect anyone on the court to do it.

You know, it doesn't feel like we're there yet.

Yeah.

But that's what's sort of missing here.

Doing a blow-by-blow refutation of a series of incredibly bad faith arguments.

Like, yes, you're going to, in some ways, win the argument.

She's right on the merits across several different discrete arguments, but she doesn't ever get to the heart of it.

She doesn't say these are bad faith actors.

She doesn't lay that groundwork.

And it's not groundwork that you can't lay.

This is like what Scalia did, right?

When he was talking about like gay rights or whatever.

He was like, you people are all pawns of like a cultural and political movement.

Yeah.

You know, and I'm the real lawyer.

Like literally, he said it.

No, absolutely.

He said it.

Yeah.

And so I think that's what's missing from the dissent.

And again, it's not something that I would be like crossing my fingers hoping that Kagan's going to say anytime soon.

But that's what she lacks.

Yeah.

You know, and Kagan and Sodomayor,

for better or worse, feel like they have to work with these people.

And maybe,

you know, in some cases, they'll be able to like convince Roberts or Gorsuch or Kavanaugh to like join them.

And so they have to, you know, be tactful and not say this stuff.

But Stephen fucking Breyer is retiring in like three weeks.

Like, go out, fucking guns blazing, man.

Like, grow some fucking balls.

Like, even.

Didn't he write a whole book about how like his interpretation of the law was a framework that like furthers democracy?

Yes, active liberty.

Active liberty.

About how you should interpret the Constitution to like promote democracy.

Yes.

Fucking A.

The other thing that the other thing that's missing is Clarence Thomas, if he were like on the other side, if he were a liberal, would be writing his own dissent saying, I join my colleagues because they correctly interpret the law as it and our precedents as they currently stand.

But it's my belief that we should revisit those precedents, that Citizens United was wrongly decided, that Buckley V.

Valleo was wrongly decided, that money is not speech, that corporations don't have speech rights, period.

Blah, blah, blah.

Down the line, there needs to be someone doing that.

There needs to be.

And there isn't.

Like, even Soto Mayor, who we are very fond of, is not doing that.

At least not in this case.

Yeah.

And this is, I mean, I said it's Kagan's wheelhouse for a reason.

You know, she really is

the

person on cases that sort of affect democratic processes.

Yeah, so to Mayori's got a lot of bright spots, but this isn't really one of them.

Yeah, the stuff we're saying is all the more necessary because, like, the Roberts Court has just this long history.

If you follow our podcast, I'm sure you're familiar with it by now, a long history of striking down campaign finance regulations.

And they fucking listen.

This string site they do is one of the most surreal fucking things I've ever read in a Supreme Court decision.

Yeah.

This is so I feel like we're reading a lot from this opinion, but that's just because, I mean, it's so bad.

So this is another one.

For example, we have denied attempts to reduce the amount of money in politics

to level electoral opportunities by equalizing candidate resources and to limit the general influence a contributor may have over an elected official.

However, convention such proposals

may be, the First Amendment prohibits

such attempts to tamper with the right of citizens to choose who shall govern them.

Like, you could literally use the sentence as a critique of them.

We have denied attempts to reduce the amount of money in politics, see McCutcheon.

To level electoral opportunities by equalizing candidate resources, see Bennett.

And to limit the general influence a contributor may have over an elected official, see Citizens United.

That reads like a critique.

Yeah,

crazy.

Do you know what it reminded me of is the scene in the big short where like Steve Carell goes down to Miami and he's talking to the mortgage brokers and they're like, yeah, we give out ninja loans.

We're giving out.

If I write a loan on Friday afternoon, Big Bank is going to buy it by Monday lunch.

Yeah.

And he turns to his buddies and he's like, Why are they confessing?

They're not confessing.

They're bragging.

They're bragging.

Yeah, exactly.

That is exactly.

I mean, Michael, I'm so glad you said that.

It almost reminded me of a villain listing off the awful things that they had done.

I've killed your mother.

I've killed your father.

And now I'm going to kill you.

Yes.

Oh, God, man.

It's so bleak.

All right.

Keep going.

So the thing is, like I mentioned earlier, preventing corruption isn't technically the only interest the government can pursue when regulating campaign finance and campaign speech.

They also can

seek to prevent the appearance of corruption.

You know, we compare it to voter fraud and the idea that voters will lose confidence in the government and that that's bad.

And so that's something the government can like try to address.

And the court like doesn't even like acknowledge this.

They say that's an interest the government can pursue, but then it's not

part of the analysis at all.

It's not contemplated.

But then, if you look at like what public opinion surveys show that people think Congress is corrupt, like they do.

One survey in 2018 found 75% of respondents, including 66% of Republicans and 85% of Democrats, back a constitutional amendment overturning Citizens United.

Congressional approval is in the fucking toilet.

It's in like the 20s, both parties.

SCODA's approval is in the fucking toilet.

It's like below 40% for the first time since they've been tracking approval of the Supreme Court.

Like everybody thinks this system is fucking broken.

The most successful political campaigns are the ones who run against it, talking about how broken it is.

They couldn't possibly reckon with what public opinion about congressional corruption actually looks like.

Right.

Because it would justify all the regulations they've struck down and then some.

It would justify far more aggressive action.

And they don't want that because they don't care about corruption or the appearance of corruption.

They care about the ability of wealthy people to buy influence.

And I know that because they said it explicitly in this opinion.

I think that part of our like exasperation here is

a product of what I think we've referred to before on this podcast as the stupid onion.

One layer after another of dumb shit.

Yes.

The number of layers of bullshit that you need to peel back to get to this point.

It's unreal.

I mean, so you have money being speech, right?

You have like the legal entity of the campaign being separate from the candidate itself, right?

You have donating to that campaign entity being speech.

Loaning money to your own campaign entity being speech.

Charging interest on a loan to your own campaign as free speech.

Donating to campaigns after they are over

as free speech.

In order to pay the interest on those loans.

In order to pay interest on loans from the candidate to

his own campaign.

And then finally, finally,

you have the idea that limitations on the ability of donors after an election is over to donate money to that completed campaign in order to refund the candidate his loan.

You cannot cap that because it impacts the candidates'

free speech.

The candidates.

The candidates.

You are so many layers of complete nonsense deep that it's almost hard to articulate where exactly this goes wrong.

I mean,

This shit went wrong in the 70s.

It took a hard turn when they said money is speech and everything since then has been a house of cards.

And I think what's interesting about this case is that it's very clear from the reasoning, which we've pointed out is just, I mean, just

nonsense, nonsense.

I felt like I was disassociating while you were like going down the ladders.

You can see by where the reasoning has gone, right?

Yeah.

The amount of bullshit that they need to justify the place that they have gotten to,

it just reveals, right, exactly how far off base they are right now.

They are in a dark place.

Yes.

It's one thing to be like, money is speech.

It's another to say, well, independent expenditures by third parties are unlimited, and that's speech.

Now we're at a place where fucking donors are funneling money into candidates' pockets to pay them back interest on their own loans to their own campaigns.

And the court's like, that's that speech too.

That's that speech too.

Protected by the First Amendment.

Unbelievable.

And so this is like, this is a thought I had while we were doing this case, while we were prepping for this.

And I really think like, There's so much awful that the court is doing right now.

You know,

Dobbs overturning Roe v.

Wade is set to come down, all the gun right shit.

They're certainly going to take a hack at the administrative state, and that's going to be awful.

But I really do think that the stuff that's going to define this era, looking back, will be their campaign finance and election-related decisions.

Right.

Just like, you know, the early 1900s, we call it the Lochner era for one of the more egregious cases of the court striking down worker-friendly regulations.

I think this is going to be the Citizens United era.

I think that's how we're going to look back at this as when arch conservative court went wild disassembling our democracy, gutting the Voting Rights Act, overturning a fucking election or handing it to George Bush.

The shit currently coming down the pipe, the independent state legislature theory that I'm sure we will be telling you about someday soon, and all the obscene things they've done with campaign finance.

This to me is the defining issue of this era.

It's like a real

end of democracy shit.

And to make that point, one last quote, one last quote.

This is from Roberts.

Essentially, all the government's evidence concerns the sort of quote-unquote corruption loosely conceived that we have repeatedly explained is not legitimately regulated under the First Amendment, which is

literally saying, yeah, some corruption can be regulated, but light corruption?

That's free speech.

That's,

yeah, go wild with the light corruption, the quote-unquote corruption.

That shit's awful.

God, what's really frustrating about this is that Democrats are just like not taking advantage

of how unpopular these cases are or would be if some light was being shined on them, right?

Citizens United is a notably unpopular case, a case that congressional candidates have like built campaigns around saying that case sucks.

Fucking Bernie Sanders was a big part of his appeal in 2016.

There's a degree to which like Democrats have allowed this shit to get like both sides, right?

Like corruption in Congress, you know, which party is guilty of it?

Oh, it's all of them, you know?

Yeah.

I mean, literally like Menendez in New Jersey is a dead man.

I mean, look, I don't want to make the case that like there's no corrupt Democrats or even that like corruption isn't a problem in the Democratic Party or anything like that.

All I'll say is that there is one party markedly benefiting from this, and it's Republicans.

The fucking RNC filed an amicus brief in this case.

They filed a brief in support of Ted Cruz.

If the Dems really thought that corruption benefited them, they might have filed a brief too, you know, maybe, you know, greased the wheels.

No, the

free flow of money to this degree in politics benefits Republicans because Republicans have access to large money in a way that Democrats currently don't.

And you see fucking Biden talking about this case?

No.

I mean,

they have no idea how to approach this stuff.

It's so fucking frustrating.

It's so fucking frustrating.

Compared to how conservatives responded to Brown v.

Board and Roe v.

Wade.

And all those great liberal victories, they fucking mobilized immediately.

But Citizens United, Shelby County, Bush Regore

just shrugged our shoulders.

Bernie is like the only high-profile Democrat.

Well, he's not even a Democrat,

but he was running as a Democrat.

Friend of the Democratic Party, yeah.

I mean, I'm not some huge Bernie stan, but he was like, he was actually talking about it and saying, like, I will appoint justices who will overturn Citizens United.

And I feel like that's good energy to have.

I feel like that there's a constituency for that.

I think it's not just just because the decision is unpopular, but because it sort of signals that you don't like money and politics.

Right.

Right.

It speaks to deeper values.

And it has all these like stars aligning.

Like it's very politically unpopular.

There's a very clear and coherent legal argument backing it up.

So like you could mobilize lefty lawyer types, you know, like you could mobilize nonprofits in the liberal legal world to fight these fights.

You have everything you need.

And I know that, like,

there are people who are listening who are thinking, well, the Democrats really like money in politics.

And I think there's some truth to that in the sense that there are some like rich Democrats or Democrats who are aligned with the ultra-wealthy who benefit from it.

But net, net, this benefits Republicans way more, and Democrats know that.

Like, I don't think that someone like Pelosi gives a shit about money and politics as like a moral matter, but I think that she knows that it's bad for Dems, you know, all in.

And that's why the Republican National Committee filed an amicus brief here in support of Ted Cruz.

The DNC stayed out of it, of course.

It's a situation where one party stands to benefit much more.

And when they're trying to build a sort of anti-democratic future, this stuff is very important, right?

They need to be in disproportionate control in various ways for their sort of project to work, right?

You need to suppress voting rights to maintain your power within legislatures across the country.

And you need to maintain the disproportionate ability to speak, quote unquote, during elections.

Because, you know, if it wasn't disproportionate, you would be, you know, the volume would be much louder on the left, right?

There are just more Democrats on the center left, I should say.

There are just more Democrats than Republicans in the country, and that's that.

This is, you know, all part of that same anti-democratic project, and it's very important to Republicans.

And,

you know, fucking Joe Biden doesn't talk about it.

Yeah.

It's such a simple pitch, too.

Money isn't speech.

Corporations aren't people.

And the wealthy don't have a stronger claim to democracy than the rest of you.

And it's obscene that anybody thinks the contrary.

And I am going to stand up for your rights in your speech.

Come on.

People see this for what it is, too.

Like, you barely need to explain it.

Yeah, I'm not a political consultant or anything, but come the fuck on, man.

Like, everybody thinks Washington is broken and incredible.

Right.

Right.

Like, everybody thinks that.

And with good reason, there's billions of dollars pouring into our elections.

Right.

I mean, the amount, like the amount of money spent in 2020 was double what was spent in 2016.

It went from 7 billion to 14.

So like,

this shit is ratcheting up.

I remember the, I think it was 2000.

When it first crossed a billion.

When it first crossed a billion.

And everybody was like, oh, shit, the first election over a billion dollars.

That is fucking chump change.

That's like

one primary.

If that.

You know, it's one of those things that is that it's this issue that has universal appeal.

You have the court

being like, yeah, buying influence is democracy, right?

These are like headline.

Voting, not democracy.

Buying influence is democracy.

The headlines are writing themselves, right?

And who's a party to this case?

Democratic Party enemy, Ted Cruz.

Fucking put his name all over it, right?

Like, how is it that he can just put his name on this and be like, yeah, this is the case I'm bringing and the Democrats aren't just fucking tying it around his neck?

Yeah.

It's, it's wild.

I mean, this is a guy who's like a credible 2024 contender and they're letting him just like

appeal corruption up to the Supreme Court without making any fuss about it.

It's fucking crazy.

Yeah.

Yeah.

Even if it wasn't.

popular, you still have to stand for something, right?

Yeah.

Like you still have to fight for something when you're a political party.

Like you still need values that you are willing to sacrifice for, right?

When you're in power,

you have to be able to do what you think is right, even if it's not popular, even if it means losing the next election cycle, because power is fleeting and you need to make the most of it.

I think this is good politics, but regardless, it's necessary policy.

Yeah.

Yeah.

Maybe even

an effective way to give the Democratic Party like a brand again.

If there's anything that you could say that the Democratic Party stands for now, and

you do have to search, it's something like the idea of a broad-based egalitarian society, right?

Like, you know, it's a big tent party, at least aesthetically, at least ostensibly embraces, you know, a lot of diversity, a broad group of people.

And this fits right into that, right?

The idea that we are clamping down on money in politics because we are a party of the people and money in politics drowns out their voices.

It makes perfect sense.

And instead, they're running with whatever, like trying to combat inflation.

Yeah.

Yeah.

Like that was like the fucking week after the Dobbs opinion leaked and everybody was like, oh shit, they're going to overturn Roe v.

Wade.

It was all like Ukraine in inflation, baby.

Ukraine in inflation.

Right.

They had one vote and then we're like, vote in November, I guess.

Like, couldn't codify Roe v.

Wade.

I guess that's it.

And I know we're going to get increasingly bleak here, but the calls to like, just vote, get out there and vote.

Like, as this shit happens, right?

As they continuously make it more difficult to vote, as they water down the democratic process in every way possible, if your only only response to that is like, ooh, well, you better vote,

I don't know what to tell you, but like people are losing faith in the system that you are telling them to engage in.

That's not sustainable.

You know, we have like one party that's just these fledgling idiots who can't put together a coherent message, even though it's on a fucking platter for them here.

And the other group is literally,

literally being like, corruption is good.

It's that fucking speech in like, what is it, Siriana, where the guy, the guy is like,

yes.

Corruption is.

Wait, what's the line?

Rachel, find that Siriana clip.

We're putting it in.

Corruption charges.

Corruption?

Corruption is government intrusion into market efficiencies in the form of regulation.

That's Milton Friedman.

He got a goddamn Nobel Prize.

We have laws against it precisely so we can get away with it.

Corruption is our protection.

Corruption keeps us safe and warm.

Corruption is why you and I are prancing around in here instead of fighting over scraps of meat out in the street.

Corruption is why we weep.

Corruption keeps us warm.

That's what this fucking opinion is.

Yes.

Yeah.

It's like literally a wholehearted embrace of corruption.

Being like, that's what this country is, baby.

Yeah.

It's unreal.

Oh, God, man.

I fucking hated doing this episode.

This one, I mean, I think that our listeners.

I'm prepping this episode.

Yeah.

I'll say I hate it prep.

I enjoyed doing the episode.

I hated prepping this episode.

Yeah.

I think our listeners can tell this might be one of our more exasperated episodes, you know, and that's

got to be saying a lot, you know?

Yes.

And maybe it's the lack of re mitigating us and telling us it'll be okay.

But it really feels to me like this was a uniquely bleak one.

I don't know how you can read read this and not think, well, they've really turned a corner here in some ways, right?

Yeah.

When they're being like, yeah, corruption's great.

It feels like it's, even though this is this sort of like, in some ways, ticky tack campaign finance case, in like the annals of the Roberts Court's jurisprudence on this stuff, it's not like a huge deal, right?

We're talking about post-election donor contribution caps, right?

It feels like it should be a small deal.

And then you read it and you're like, rhetorically, it's not.

Rhetorically, it feels like this is everything

that people were warning about and sounding the alarms about when Citizens United came down.

Yeah.

Yeah.

I mean,

it feels like between this and Dobbs and what I'm sure will be an unfavorable ruling on concealed carry licensure in New York, it feels like the court stared down the possibility of reform, came to the conclusion that it wasn't happening.

And we're like, we can do whatever the fuck we want.

Right.

Right.

That's what it feels like to me.

And so far they're right.

Next week,

oh man, I love a good next week joke.

What are we doing?

We don't know what we're doing, right?

We're going to send know your enemy down the street.

Next week, we're taking off.

We were recently guests on Know Your Enemy, and we discussed

how the conservative legal movement accomplished the overturning of Roe or the likely overturning of Roe.

Great discussion.

I'm sure many of our listeners have heard it.

If you haven't, we'll be sending it down the feed next week.

But mostly, I think we just wanted to take a week off

as June kicks off because it's about to get wild and we are prepping ourselves emotionally.

One other thing I'll add is that historically, when we take off for a week, something terrible has happened.

Every single time.

Every single time.

It's unreal.

Like RBG died once.

Yeah.

That was the worst one.

The Taub's opinion leaked when we were supposed to have a week.

Yeah.

And SB8.

We're at the point now where the only break we've taken in like the last two years that didn't result in something horrific was like for Christmas.

So all I'm saying is that if I were a betting man,

I'd say maybe we don't.

Maybe we don't end up taking next week off.

Maybe something horrific happens and we have to do an episode on it or something like that.

All right.

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All right, we'll see you in a couple weeks.

Or whenever something goes horribly wrong.

One of the two.

Fuck.

5-4 is presented by Prologue Projects.

Rachel Ward is our producer.

Leon Nafok and Andrew Parsons provide editorial support.

Our production manager is Percia Verlin, and our assistant producer is Arlene Arevalo.

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God,

if you're listening, please.

Please, just once.

Please, just one week, man.

I figure if I really dig in this time, then maybe it won't happen.

You know, if I really over-commit to it, I'm reverse-jinxing it.