Arizona Free Enterprise v. Bennett

The hosts return to examining cases with a little-known campaign finance decision from 2011: Arizona Free Enterprise Club PAC v. Bennett. They discuss the Supreme Court’s ruling, which declared unconstitutional a matching funds program for political candidates who opt out of private fundraising, effectively killing public campaign financing. The hosts also talk about the Trump campaign’s ongoing efforts -- in the courts and otherwise -- to contest the results of the 2020 election, and how likely they are to affect the Biden victory.

A podcast where we dissect and analyze the Supreme Court cases that have infiltrated American life, like an invasive species

00:00 [Archival]: We'll hear argument first this morning in case 10-238, Arizona Free Enterprise Club Freedom Club PAC versus Bennett and the consolidated case.

00:12 Leon: Hey, everyone, this is Leon from Fiasco and Slow Burn. On today's episode of 5-4, Peter, Rhiannon and Michael are talking about a campaign finance case you probably haven't heard of: Arizona Free Enterprise Club PAC v. Bennett. In 2011, the Supreme Court struck down an Arizona program that provided matching funds for political candidates who opted out of private fundraising. The ruling effectively killed publicly-funded campaigning.

00:39 [Archival]: When elected officials are beholden to big donors, they may act to serve those special interests. By supplanting private cash in elections, public financing eliminates the source of political corruption.

00:58 Leon: This is 5-4, a podcast about how much the Supreme Court sucks.

01:03 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have infiltrated American life like an invasive species. I am Peter. I'm here with Michael.

01:18 Michael: Hey, everybody.

01:18 Peter: And Rhiannon.

01:19 Rhiannon: Hi, there.

01:21 Peter: And today's case is Arizona Free Enterprise Club v. Bennett. We're coming off a spate of election-related episodes, and it's been a while since we just sort of did a case. We want to try to return to normal in the hopes that doing so will distract you from the ongoing soft coup, which we'll talk about a little bit at the bottom of this episode.

01:42 Rhiannon: The incompetent coup.

01:44 Peter: Yeah.

01:44 Michael: Yeah.

01:46 Peter: So let's talk about some fun election facts, 'cause this case, it is sort of about the election. It is estimated that the aggregate spending on this election was about $14 billion.

01:57 Rhiannon: Jesus!

01:58 Michael: Jesus!

01:58 Peter: Which is a twice 2016, more than the last two presidential election cycles combined.

02:04 Rhiannon: That's wild.

02:05 Peter: Also, apparently, $3 billion or so of that came in the last few weeks and was driven at least in part by the campaign-related fights over Amy Coney Barrett's nomination. Maybe those numbers set the vibe here. This case is a tale about the lengths the Supreme Court will go to ensure that our Constitution doesn't just operate to the benefit of the wealthy and powerful, but does so in a way that expressly excludes the weak and marginalized. Seeing as we just had an election and the world's biggest idiots are talking about how it was unfair to them, we thought we might talk about one of the many ways in which it actually was unfair.

02:45 Peter: We've done episodes on cases like Buckley v. Valeo, which established that money is speech, and Citizens United, which protected the ability of corporations to spend endlessly on campaigns, but this is a story about how some states tried to stem the influence of big money in elections, and how the Supreme Court stepped in to make sure they didn't. So in 1998, the state of Arizona, seeing how big money in elections was becoming a problem, came up with a pretty novel solution. If a wealthy candidate was spending big money in an election, the state itself would provide matching public funds to their opponent, as long as the opponent was garnering sufficient support. That would ensure that wealthy candidates could not drown out the voices of their opponents. It sounds cool enough, right? It seems pretty reasonable.

03:36 Michael: That's smart, creative.

03:38 Peter: But in this case, the Supreme Court struck that law down, claiming that it somehow infringed the First Amendment rights of the wealthier, private-financed candidates. Essentially, the Court held that the state funding other candidates was watering down the speech of the wealthier candidates. And by the way, the Court refers to the candidates as privately-financed, but I will just be calling them the rich candidates from here on in.

04:03 Michael: Yes, yes.

04:04 Rhiannon: Right. Yeah, I think that's perfect.

04:05 Peter: We're talking about candidates that have access to money, their own bank-rolling of their own campaigns, or it might be. PAC funding or whatever. But regardless, these are either people that are rich or representing the interests of rich people.

04:18 Rhiannon: Yes.

04:19 Peter: I think that this case is more egregious than Citizens United, and when I say that I'm serious, but I don't mean that its impact is more egregious. What I mean is that this case is just transparently the Court granting favor to the wealthy at the expense of everyone else. It's hard to believe that it's real. It is symbolic and symptomatic of the same anti-democratic tendencies of the Court that have marched us to the precipice of fascism, which we are very much teetering on at this very moment. So Rhi, give us a little background here. How did we get here?

04:51 Rhiannon: Yeah, yeah. Peter, you've touched on it already, but this case, I think is particularly relevant in this moment, because we just experienced an election, actually not past tense, it's fucking ongoing. We are experiencing an election that had more fundraising and spending than any other election in history, like you said.

05:11 Michael: I feel like prior to this year, we'd say we held an election or we're in the middle of an election, but experiencing an election feels like it captures the trauma of this one accurately. It's the right way to describe it. It's like we are experiencing the 2020 election in our full bodies.

05:30 Rhiannon: This is happening to us.

05:31 Michael: Yeah, it's something that is being put upon us in a way that we feel at a very fundamental level.

05:39 Rhiannon: Totally. Right. Something to highlight even within those massive numbers is that the spending in this election cycle was really unprecedented, specifically in the Presidential contest, which is expected by the end of all of this, to see over $6 billion in total spending alone, that's up from $2.4 billion in the 2016 race.

06:03 Michael: Jesus Christ.

06:04 Rhiannon: Yeah, so we're going to say it over and over on this podcast, and this is actually an obvious problem that people on both the left and the right want to fix, and so someone should really do something about this. But when states or Congress try to rein in this poisonous shit, the Supreme Court says, psych, we're not going to do that. So, moving to Arizona and this case specifically, and first of all, Arizona is a weird state, I'm just going to say it. My understanding is that the climate there makes it uninhabitable and yet people still habitate it.

06:39 Peter: Yeah, I believe it was Peggy Hill on King of the Hill, who described Phoenix as a monument to man's arrogance.

06:46 Rhiannon: That's right, yeah. And don't DM me on Twitter about how living in the desert is great and cool.

06:51 Peter: No, it's awful.

06:52 Rhiannon: Yeah, you're not supposed to be living there.

06:53 Peter: Those places, they're just funneling in water from inhabitable parts of the country, right?

07:00 Rhiannon: Right.

07:00 Peter: It's like Las Vegas.

07:01 Rhiannon: Exactly.

07:02 Peter: If you stopped shipping water to Las Vegas from other parts of the country, everyone there would die within three days.


07:10 Rhiannon: Exactly, you're not supposed to have a manicured lawn, Scottsdale. So the good people of Arizona, after a string of political scandals throughout the '80s and '90s, including multiple governors being criminally indicted or impeached or recalled from office, or actually all of the above, shout out to this guy, Mecham, who appears to have been the Governor of Arizona for like five minutes before he became the first US Governor to ever face removal from office, simultaneously through a criminal indictment, an impeachment and a scheduled recall election.


07:51 Peter: Hell, yes.

07:53 Michael: That guy... incredible levels of corrupted.

07:57 Rhiannon: Right. So after dealing with all of this bullshit, citizens of Arizona passed the Citizens Clean Elections Act in 1998. And the purpose of the act, according to its language, was to restore citizen participation and confidence in the political system, to improve the integrity of Arizona State Government and to promote freedom of speech. Now, the act did that by establishing a sort of a new system for voter education, clean funding for candidate campaigns, and also setting up mechanisms for campaign finance enforcement. The most important provision of the Act for our purposes today was providing public funding for legislative and statewide candidates who opted into this public financing system. And if you opted in to get public funds, you give up private fundraising. In addition, there was a unique aspect of the public funding of campaigns that sought to make campaign spending schemes more fair in Arizona.

08:58 Rhiannon: So if a candidate opted in to have their campaign publicly funded, the law contained a provision for triggered matching funds, which would be distributed to the publicly-funded candidates, if they had an opponent who was rich and privately financing their own campaign and who spent over a threshold trigger amount in that campaign. So say that you're a candidate for office in Arizona and you opt in to have your campaign publicly-funded. There are some conditions, like giving up private fundraising, like I mentioned, but also that you participate in a certain number of public debates, that you limit your expenditure of personal funds in your own campaign, you agree to adhere to an overall spending cap.

09:38 Rhiannon: These are things that the people of Arizona said they wanted to clean up the campaign and election process in their state. And so to just give an example of how the matching funds provision works, imagine that as a publicly-funded candidate, you get $10,000 from the state to run your campaign. It wasn't $10,000 in real life, but just so we have a kind of round number. So you get $10,000 from the state to run your campaign. If your opponent was a privately-funded, read rich person, who did not agree to public funding, then for every dollar the rich person candidate spent on their campaign over that $10,000, you'd get a dollar from the state to spend on your campaign. So they match that amount. For purposes of calculating the total sum that rich candidates were spending in their campaigns, the law included spending by independent expenditure organizations too. So the state gives you $10,000 and maybe the privately-funded, the rich candidate might spend $10,000 of their own, but if expenditures by an independent group in support of the rich candidate was like another $10,000, then you, as the publicly-funded candidate would get matched those funds also.

10:51 Michael: Right, so I just want to say really quick why this is important. Public funding is basically dead at this point, and a big reason is because you can just raise more money privately. So this sort of sought to address that concern. The idea was, "Well, look, like, if we just set a number like $20,000 or $50,000, privately-funded candidates are going to out-raise that, and so nobody's going to want to go into the public system, but if we set it an obscenely large number like $3 million, yeah, nobody's going to out-raise that, but we as the state are going to be on the hook for an obscenely large amount of money for all these elections." And so this was a creative and elegant way of meeting that challenge, saying, "Well, we'll you a baseline amount of money, but then if the race is more expensive, if being competitive in the race costs more than that, we'll give you some more money so that you can be competitive."

11:51 Rhiannon: Right. Exactly.

11:51 Michael: And so that there isn't a major drawback to taking public funds. And this is a way to encourage people to take public funds and ignore private funding altogether and engage in a more corruption-free form of campaigning, free of the influence of monied interests.

12:09 Rhiannon: Right.

12:10 Michael: Obviously, as we'll discuss, the Supreme Court did not like that one bit.


12:14 Rhiannon: Yeah, so petitioners in this case, the people who brought the suit, were five past and future candidates for office in Arizona, as well as two independent expenditure groups. And what they're saying is that this matching funds provision of the law was unconstitutional because it penalized their speech and it burdened their ability to exercise their First Amendment rights. Now, Peter, you get to talk about the law.

12:42 Peter: Yeah, yeah, so this is a free speech case, and so we should talk about the relevant free speech law here. It's pretty much uncontested at this point that campaign spending is speech, so that's not the issue before the Court here. The issue is whether the State of Arizona providing matching funds to the non-wealthy candidates somehow burdens the free speech of the wealthy candidates, and the Court in a 5-4 decision, authored by Chief Justice John Roberts...

13:13 Michael: Pod favorite.

13:14 Peter: Says that, yes, it does, in a decision that is almost devoid of any meaningful analysis. So the Court starts off by saying that this matching funds law "imposes an unprecedented penalty on any candidate who robustly exercises his First Amendment rights." And I was waiting with baited breath. Like, okay, what's the penalty? So the law doesn't limit how much a wealthy candidate or a PAC spends it all, it just provides matching campaign funds to other candidates, so how does that penalize anyone? And when I tell you that the Court never really answers that question, I'm not lying. Robert says, "the vigorous exercise of the right to use personal funds to finance campaign speech," to describe like rich people funding their campaigns, and he's like, when they do that, when they vigorously exercise their right to use personal funds, that leads to advantages for opponents because then the state provides matching funds, and it's like, okay.

14:18 Rhiannon: This is so stupid.

14:22 Michael: You're penalized by not being able to drown out your opponent.

14:25 Peter: Right. Yeah, so that might "penalize" the rich guy in the sense that it makes his campaign harder to win, but winning your election is not guaranteed under the First Amendment. The Court's primary argument is basically, well, this isn't fair. Which is a matter of opinion, but has very, very little to do with whether it is legal, which is the question the Court is supposed to be answering. The question isn't just generally, well, this doesn't seem fair. These other people are getting in the money from the government. The question is, does that violate the First Amendment.

14:58 Michael: Right. And I think you're right, that Roberts' opinion sort of is infused with this idea that this isn't fair, but he phrases it differently, they use fairness derogatorily later on. And I think that ties back into other cases we've discussed, like Rucho, which was the gerrymandering case, where the entire opinion seemed to be like, look, politics isn't always fair and elections aren't always played cleanly and all that, but all they're really doing is re-casting their ideas of fairness as constitutional, it's not fair that when I spend more money, my opponent also gets more money. So that's a burden. Your concerns are "fairness concerns," my concerns are constitutional burdens, that's how they frame this and it's just transparent bullshit. It is.

15:55 Rhiannon: Yeah. Yeah, and to just underscore Roberts using fair in sort of a derogatory way, there's a quote where he says "leveling the playing field can sound like a good thing, but in a democracy, campaigning for office is not a game. The First Amendment embodies our choice as a nation, that when it comes to such speech, the guiding principle is freedom, not whatever the state may view as fair." Okay, you're deciding what is fair, this is your idea of fair, it's your opinion.

16:26 Peter: Well, he's also deciding what freedom means, right?

16:30 Rhiannon: Exactly.

16:31 Michael: Right. At no point does this law prohibit anyone from spending any money of their own on their own campaign or somebody else's.

16:39 Peter: That's the fundamental issue. The question is supposed to be whether this burdens the speech of the rich guy spending his money. He still gets to spend as much as he wants, spread his message, as much as he wants, that's his speech. It's not inhibited at all. There's no restriction on his spending, on his ads, on the content of his speech, absolutely no restriction on his ability to get his message out. All this does is allow other candidates to spread their message as well. An analogy would be like if I said I have a First Amendment right to hold up a sign, and also no one should be allowed to hold up a sign near mine because that would take attention away from me, right? To make the analogy more accurate and get the government involved, if I get a permit to hold a protest and my political opponents get a permit to counter protest nearby, which happens all the time, can I claim that they are burdening my freedom of speech, and therefore shouldn't have been granted a permit?

17:31 Peter: It's the same logic. Any judge would laugh at the idea that your speech is somehow burdened by the mere presence of someone else's speech nearby, but here is the Supreme Court treating that idea as if it's common sense. It's fucking crazy.

17:46 Rhiannon: Yeah, it absolutely is. And Michael sort of touched on with a matching funds program really embodied earlier in the episode, the way I think about this is it's an incentive program. Arizona wanted to clean up election spending in campaigning because they had experienced what happens when this stuff is played dirty and wealthy people have too much influence over campaigns, and so they're incentivizing public funding. If you agree to some clean campaign conditions, we will give you the money to run your campaign. That's good for voters in Arizona and the political process. And if you don't do that, well, the more and more money you spend, it's going to be matched and given to your public-funded opponent, so consider carefully what amount you're spending and what you're spending it on. This is encouraging good governance and accountability in campaign finance, it's encouraging people to opt in to a public-funded program, it's like inexplicably so stupid and absurd to say that somehow that's actually unfair for rich people.

18:49 Peter: The dissent argued something that I think is pretty obvious, they're like, doesn't this just increase overall speech, we're giving funds to opposing candidates, which results in more ideas being shared and more overall public debate, like that's promoting speech, that's not inhibiting speech. And the Court's like, well, yeah, maybe, but that doesn't matter because you are still burdening speech of the "privately-financed" candidate, but again, the Court just fails to articulate how one person's speech is penalized by the presence of another person's speech. And I'll keep coming back to that because it is central to the case and it's never adequately addressed, never once in the opinion does Roberts clearly state why that is true, it's just sort of assumed throughout.

19:33 Peter: And this brought us to a discussion we had when we were discussing this case, which is like I feel like Roberts is sort of dumb in a way that he doesn't eat a lot of flak for. Obviously, he's very savvy in some ways, he's a consensus builder, he appears to be talented at that, but I think because of that, people have given him credit for being sharp in general, and he actually has some of the weakest opinions of the conservative bunch just from a pure legal reasoning, legal analysis perspective.

20:02 Peter: We talked in Shelby County about how he never explained what the Court's constitutional basis for interfering with the Voting Rights Act actually was, and then we have the same problem here where he's just never laying out the central premise of the case. This is the sort of opposite of what Clarence Thomas does. Roberts gets a lot of credit for taking more moderate positions every now and then, too much credit, of course, we believe, but he actually can't articulate his positions effectively at all. The opposite of that is someone like Clarence Thomas, who takes insanely radical positions constantly, but is actually pretty good at laying out the sort of internal logical consistency.

20:36 Rhiannon: Right. There's a legal framework that you can track when Thomas is right.

20:39 Michael: There's a clarity of thought and writing that sort of shines through and it's very forceful and it can be persuasive.

20:46 Peter: Yeah, and it flows from insane premises, but it still flows. So the Court then goes on to talk about how the government does not have an interest in "leveling the playing field" between different types of speech, which is something we mentioned earlier. This is something that conservatives on the Court have long held. They say like, look, it's not the government's responsibility to make sure that speech is fair, which is a very convenient position to take if you are looking to justify the fact that wealthy interests have access to vastly speech than everyone else.

21:17 Rhiannon: Exactly, and Justice Kagan points out in her dissent that the citizens of the state of Arizona have a strong interest in preventing wealthy donors from controlling their government by proxy, and this law was designed exactly to fight against that. And that reasoning is really compelling, but it just doesn't fly with conservatives. 'cause they don't give a shit.

21:39 Peter: Yeah, a core part of the conservative philosophy, and maybe the central part of conservative philosophy, as we've discussed before, is the idea that people generally deserve their lot in life. The wealthy have earned their wealth, the poor have failed to achieve and therefore deserve their poverty. The idea that it's unfair to purchase influence just does not comport with the conservative brain, because to them, those outcomes are inherently fair. They believe that the wealthy deserve to enjoy the fruits of their hard-earned wealth, and that includes influence over the government, it's as simple and twisted as that. Like you will never be able to convince them that the powerful should not be powerful, because that premise is the very core of conservatism.

22:23 Rhiannon: That's right.

22:24 Michael: Right. And I think we've hit on the ways this is like pro-wealthy very clearly and I think that's good, but I do want to highlight that it's not just in favor of Republican donors. It's also very anti-majoritarian and anti-democratic. Rhi mentioned that the citizens passed this, this was an initiative. This was a referenda, it wasn't passed by the Arizona legislature, this was literally passed by the citizens on the ballot. This is a popular legislation in the most pure sense of the word, in response to real documented ongoing corruption concerns.

23:05 Michael: And you have the Supreme Court stepping in saying, well, you gotta fucking live with the corruption, you don't get to decide, people of Arizona, how fair your elections are, you don't get to make these decisions, we do. It's transparently anti-majoritarian, and it ties into the larger Republican anti-majoritarian project in that way. I think it's important to think about it from that perspective as well, and remember that there's a real disdain here for the voting public.

23:37 Peter: Absolutely. I think it's worth noting, like when you take a step back here, what's happening. People within Arizona, average citizens, are saying, okay, corporations, rich people, whoever, have too much control and influence over our government, so let us pool our money together to combat that influence.

23:57 Rhiannon: Yeah, we'll pony up the funds.

24:00 Peter: How do we do that? Through the most natural vessel, the government, the public financing system.

24:05 Michael: Our tax dollars.

24:06 Peter: Right. And the Court is saying, no, you're not allowed to do that, you're not allowed to all agree, by referendum, to pool your funds to combat that. That is fucking crazy. And by the way, not once are the speech implications for that voting public referenced in this opinion, not once.

24:22 Michael: No, no.

24:24 Rhiannon: A glaring omission, for sure.

24:26 Michael: Yeah. I think it is important to note that the Justices are sort of just doing what they want here, this is a bare assertion of their policy preferences. As much as they want to act like they are bound by precedent in all this, the First Amendment at its inception, was very limited, and our earliest presidents were jailing newspapermen and political opponents for criticizing them. And you had Supreme Court Justices saying that was totally constitutional and above board. And the ideas that now sort infuse our First Amendment jurisprudence are all sort of 20th century inventions of the Supreme Court. And I think that's a good thing, but it's important to sort of remember that the Court here is sort of on its own, doing its own policymaking, and the First Amendment, more so than pretty much any other area, and the campaign finance environment that we live in should be properly understood as the Court's creation.

25:28 Rhiannon: That's right.

25:29 Michael: We have time and time again seen Congress trying to rein in campaign spending decade after decade after decade in cases we've discussed and the courts striking it down and picking and choosing what they think is okay and what is not. And so if you think campaign finance is broken and if you think money in politics is disgusting and all our politicians are corrupt, the people to thank are the Supreme Court Justices. Period.

25:57 Rhiannon: That's right here. Oh, guys, I had a really important thing to say. We need to go to an ad.

26:05 Peter: So we've complained about the Court's speech doctrine before, but it bears repeating. These doctrines are layers and layers of precedent that don't make sense. First, you have the idea that money is speech. You have the idea that governments can't "level the playing field." You have the idea that money and politics does not lead to corruption, which is established in Citizens United. All of those things are bizarre and detached from reality, but they're all settled precedent when this case is being decided in 2011. And at that point, you're talking about something that is so distant from what actual speech is, that the boundaries of the doctrine become very hazy and unclear, and that sort of a gray area gives conservatives the wiggle room to hold that somehow not only can candidates and corporations and whoever spend as much as they want, but public financing that helps balance that out is illegal.

27:00 Michael: Right, and I think this opinion sort of drives home how abstract and disconnected these discussions are, because this wasn't enacted in a vacuum. This was enacted in response to real documented corruption that was taking place in the presence of federal campaign finance laws, pre-existing campaign finance laws and spending caps and all the stuff that the Supreme Court has already said was okay. This was in response to corruption surviving despite those limits, and instead of an engagement with that reality, what you have are these citations to cases where they cite Citizens United, and they're like, "As we held in Citizens United, independent expenditures cannot be corruption or create the appearance of corruption."

27:47 Michael: That's not a legal determination. That's like saying, "As we held in Citizens United, the world is flat." Either they can or they can't, but you don't get to hold that. If somebody accepts a quid pro quo from independent expenditures, it happened, whether or not you intoned that it cannot. But they want to make this so abstract because they know the second you get into the facts, there's no, no justifying their position here at all, because it's blatantly obvious what's going on, why people are spending $14 billion on federal elections. They're not doing that because they expect to get nothing in return.

28:27 Rhiannon: Right, right, exactly. Reading these cases, reading Roberts' writing in particular on this stuff, it's sometimes hard to discern whether they actually believe this bullshit that they're saying and writing. John Roberts is either straight up lying or he lives on a completely different planet and is deeply disconnected from the reality of how our alleged democracy works. Both of those are really concerning, right? Like the Chief Justice lying to us about how this works, or the Chief Justice completely not understanding how this works in real life.

29:02 Rhiannon: There's a quote later on that gets, I think, Peter, to your point about how abstracted this discussion is and these concepts are in a way that just builds on their assumed premises from precedent, from shitty precedent. Roberts writes, "This sort of beggar thy neighbor approach to free speech, restricting the speech of some elements of our society in order to enhance the relative voice of others, is wholly foreign to the First Amendment." So that's stupid and incorrect, but what's he actually talking about right now? You're not even talking about speech, you're talking about fucking money. That's what you're talking about, but because y'all held a few years before this that money is speech, then you get to these even more absurd conclusions.

29:50 Peter: Yeah.

29:51 Michael: Right. And because you've assumed that somebody else speaking is a restriction, you can say, here's somebody who is not being restricted in spending at all, and that somehow has been converted into their speech being restricted.

30:06 Peter: Yeah, I mean, what they really mean when they say this is, like, interfering with or restricting the wealthy candidate's speech, what they really mean is like you are interfering with the natural order. There is a hierarchy that exists and you are fucking with it. There's this idea called the just world fallacy or the just world hypothesis or something. It's a bias held by people where you believe that people reap the just rewards for their actions. So if someone acts in a good or noble manner, they will be rewarded, and if they act in a evil or negative manner, they will be punished. That's the fallacy, and I feel like conservatism sometimes is just that fallacy extrapolated to all of human existence, and that just explains 95% of conservative positions.

30:50 Rhiannon: Right. And how illogical it is with how things work in the real world. In the real world, it's okay to have rules about how people do something. There's a rule in soccer about not being off sides, not passing to a player who is off sides, and there's a reason why we have that rule, right? It prevents you from cherry-picking, from having an unfair advantage. It forces you to meet an opponent and win. You earn your goal, right? And everybody accepts restrictions and rules on daily life because it makes things more fair. Here, what they're saying is the First Amendment gives you a right to just unrestricted speech, and since speech is money, if you have unrestricted money, you got all the speech in the world, right?

31:35 Peter: Now that you've made that analogy, Rhi, I am 100% positive that there's a Federalist Society dipshit somewhere who has written an article about how the off-sides rule is unfair. [laughter] It penalizes the fastest players.

31:49 Rhiannon: We don't like it.

31:50 Michael: Right. I do want to say, earlier, I think one of you, I think it was Peter, it may have been Rhiannon, said something about how this opinion says that it's not government's responsibility to make sure that speech is fair. And I think that's a good articulation of the opinion, but I just wanted to make the point that I do think it's the government's responsibility to make sure that elections are fair. I think the foundation of any democracy is a free and fair election, and that's like a pretty uncontroversial idea, and that's what campaign finance laws have been about since the start. And that's what they take umbrage with, the idea of free and fair elections is ultimately what bothers conservatives. The foundation of their electoral project is making sure that elections are as unfree and unfair as possible, and I think that's been never more ably demonstrated than this year.

32:45 Peter: Yeah.

32:46 Rhiannon: And they couch this in a so-called principled legal stance. Conservatives act like this is the only logical result because we are... Like, "I'm sorry, this is what the First Amendment says." Right? "And y'all can do what you want in your little democracy, but these certain lines are off limits," or whatever, and they make it seem like, well, this is the only thing we can do, we're sorry, our hands are tied because this is what the Constitution says. That ends up being weaponized against people, because what they're not saying is that our most important principle is democracy. There's language in the opinion where they say, well, we're not seating an opinion, Roberts says, on public financing of campaigns. Public financing of campaigns is fine, but after this decision, public financing...

33:35 Peter: Public financing of campaigns is fine, you just can't do it.

33:38 Rhiannon: Right, right, exactly.

33:39 Michael: In any way that's useful or meaningful.

33:44 Peter: If you come up with a way to do it effectively, they will strike it down, that's the basic premise.

33:46 Rhiannon: Right, exactly. I wonder what a constitutional public finance scheme would look like after this.

33:51 Peter: Using this logic, you could strike down any public financing scheme.

33:54 Rhiannon: Exactly, right.

33:55 Peter: The end result of this opinion is that the Court is holding functionally, that the First Amendment protects not only your right to speech, but the relative power of your speech. In other words, the First Amendment protects your right to drown out the message of your opponents. When you take a step back, what you have here is a law passed by the citizens of the state directly, allowing those citizens to ensure that they maintain influence over the government, and the Supreme Court steps in to say, no, that's unfair to the powerful interests who are using their hard-earned money to buy that influence. They've taken the First Amendment and essentially held that it gives the wealthy not just a right to speech, but a right to power, and that is self-evidently dangerous and untenable.

34:42 Michael: That's right.

34:45 Rhiannon: Correct.

34:46 Peter: Alright, so we mentioned we would talk a little bit about the soft coup currently currently under way in the United States. As we're recording this, things are sort of still unclear, but it's fairly clear that A, Donald Trump is not able to admit that he has been defeated and will never openly admit it, and B, that the Republican Party is, with some small but notable exceptions, essentially standing behind him, but in a way that's sort of a hedge, right, sort of a, well, let's see how this pans out.

35:22 Michael: We don't want to rule out a coup just yet, we're not diving head first either.

35:28 Peter: Right. There's going to be recounts in several states. A recount has been ordered in Georgia, which is like in and of itself sort of crazy, because it almost certainly would not have been ordered if not for just the political pressure, like politicians in Georgia very much want to appease the GOP base by acting like they're all in here, right, they're going for it. So the next step here is that the states would certify their electors to the Electoral College, and the question is whether something can be done by the states that were won by Biden, by the legislatures in those states, for example, to either refuse to certify results or try to appoint Republican electors that would actually vote for Trump rather than Biden, despite the fact that Biden has won the state.

36:12 Peter: So that's what's sort of hanging in the ether, like the extent to which that could happen, obviously it technically can happen, but whether there's really like they have the political capital and motivation to do it, that's what's sort of outstanding right now. And it's an impossible question to answer, but I think we can say it feels very unlikely. It feels very unlikely. Much more likely than it should, no question about that, but it still feels like we're in a situation where that is a very low probability.

36:39 Peter: Now, we mentioned last week that there was a lawsuit in Pennsylvania basically attacking all mail-in ballots. I don't think they're going to get anywhere with that, but they sort of showed what their move might be because what they were asking for in that lawsuit is an injunction preventing the certification of electors in Pennsylvania. They are never going to fucking... If they get that it, it's over.

37:03 Michael: Right at the Supreme Court and at every state house.

37:06 Peter: Just a campaign saying, well, look, this all looks a little bit shady, this state doesn't count, that's functionally the end of democracy. I don't think they're going to get it. I've had people online like, you really don't think there's five conservatives on the Court that would buy that? No, I don't.

37:21 Michael: I don't either.

37:21 Peter: I mean, it's genuinely something that might lose 9-0 in the Supreme Court, I wouldn't really guarantee that, but there's a real shot that it would get 9-0, that's how bad it is.

37:27 Michael: Yeah, it's a pretty laughable lawsuit. I read it.

37:33 Peter: Yeah, it's garbage, it's just garbage. Like we said last time, it has this sort of scope to maybe, at least it's trying to flip Pennsylvania or at least get rid of Pennsylvania, but it's even worse on the merits then all of the other lawsuits. There is still one avenue, which is that the state legislatures that are controlled by Republicans could band together and refuse to certify the election for Joe Biden. I don't think they have the sort of unanimity that is necessary to do it, it doesn't feel like they have, there's already dissent being voiced publicly by Republicans in Pennsylvania, but it is fun. I know you guys are dreading this. I on the other hand am sort of excited because I've been more or less a leftist, at the very least on and off since I was about 15, and when you're a leftist in 2001, trying to explain to people that the United States is a fascist dystopia, everyone's like what the fuck are talking about, you idiot. And here I am, 20 years later, I'm like, see? Now you see, motherfuckers.

38:37 Rhiannon: I'm just exhausted. I'm like same, right. But I don't know how...

38:41 Peter: But this is energizing me. This is giving me energy.

38:44 Michael: I wish our listeners could see us, because Rhi and I are both just like ground into dust by the past few months, and Peter is like, man, I could go for a fucking run, I'm going to clean my apartment, I think. Guys, there's a coup coming, I'm feeling good. He's like shadow boxing.

39:03 Rhiannon: And I am breaking out in hives.

39:07 Peter: Do not mistake me, I am sleeping five hours a night tops. I feel like garbage. However, yeah, I do have to say that something about the fascism in this country becoming undeniably transparent is sort of refreshing to me in a way that gives me energy. Of course, that'll wear off after a week and I'll be like, well, now you just live in a dictatorship, but I... For now, it feels like I'm winning an argument that I've been having my whole life, you know what I mean?

39:39 Michael: Yeah, yeah.

39:40 Rhiannon: Right.

39:41 Peter: And what's better than winning an argument, baby?

39:44 Rhiannon: The podcaster's creed.

39:45 Michael: I cannot wait to tell @Jeet_here to eat shit for saying that we were indecent for wishing Trump to die of COVID. See, motherfucker? It would have been better. I told you.

40:00 Peter: That's true. Michael, in our Trump got COVID episode said... He said outright, it'll be smoother if Trump dies, than if the election actually happens. And you've gotta take credit bro, you gotta pat yourself on the back for that one.

40:13 Rhiannon: That's why you tune in to 5-4.

40:16 Michael: That take nailed it. Fucking nailed it.


40:21 Peter: So like brass tacks on the coup stuff, certification for electors in most of these states is a late November, early December thing, so as those dates approach, you're going to start to understand one way or another which way it's tilting, and we don't have that insight right now. I still feel like the avenues are very narrow, but a lot of this... People keep asking me, "Can you explain the legal sides of this?" And it's like, this is not about law, this is about the coalescence of power around a position. If every conservative institution, from the media through the Executive Branch to the Federal Congress and state legislatures, takes the position that this election belongs to Trump, that is a very different story than a situation where you only have fractured support across those institutions.

41:14 Rhiannon: Right, and it's also a very different story than saying the Constitution allows this. The point is, is that power says what the law is and what the legal conclusions are.

41:24 Peter: By the way, even if the state legislatures certify the results either to nobody or to Donald Trump, if that happens, if there is sort of a fight over it, it almost certainly ends up in Congress, and although Democrats don't have a firm grip on Congress, someone like Mitt Romney is not about to throw the election to Trump. Republicans would really struggle to get a majority in the Senate, for example. And I don't think that they think it's worth the fight. We talked about that last time too, is they've done so much damage that it really feels like to some degree they need to step back and say, "Alright, mission accomplished, let Biden enter power," and that will be that.

42:00 Michael: And Kelly, in Arizona, I think he already has the temporary senate office and he assumes office soon, since that was a special election. He doesn't have to wait till January. And the Georgia runoffs, those would also be seated the first week of January and would be involved in the electoral count. So I also don't think that the Republican Party wants to make the Georgia runoffs and control of the Senate about whether or not they're going to do a soft coup and seat Donald Trump as President despite losing the election handily, which is what it would very quickly turn into, if this was the route they took, was like, "Look, Democrats need to control the Senate if you want American democracy to continue going forward."

42:47 Peter: I think there's a sort of question of just like how far can Trump's stubbornness get him? What if he just holds out, he refuses? I think the answer to that is that just results in him being kicked out of the White House, which is just way too embarrassing for him to tolerate, which is why at some point he's going to voluntarily leave, sort of a Nixonian peace with honor sort of thing, like, "I do not admit defeat, but I admit that everyone else agrees and thinks I was defeated and I'm leaving." Or alternative, if you guys remember the end of Parasite where the dad just stays in the basement of the house, [laughter] and then Donald Trump Jr has the dream about becoming the President himself and freeing Trump from the basement. But then the final shot is a cut to Donald Trump Jr, bleary-eyed on a couch somewhere.

43:37 Michael: Like coke spread out in front of him.

43:42 Rhiannon: Yeah, uh-huh, uh-huh.


43:49 Peter: Alright, next week, we are taking off 'cause it's Thanksgiving. It's not Thanksgiving on Tuesday, but just let us take a fucking break. For the love of God.

43:57 Rhiannon: For once. For once.

44:00 Peter: And in very important news...

44:02 Rhiannon: So exciting.

44:03 Peter: We have launched a merch store.

44:06 Rhiannon: Yes!

44:06 Peter: If you go to our website at fivefourpod, all spelled out, dot com, and click on Merch, it will take you to our merch store where you can choose from an assortment of options.

44:17 Rhiannon: Get your wares. You need some stickers? You need a shirt? You need a tote? You need a mug? We got you.

44:26 Peter: Follow us on Twitter @fivefourpod, tell your friends and don't sweat the election, I'm sure it's going to be fine. [chuckle]

44:39 Michael: 5-4 is presented by Westwood One and Prologue Projects. This episode was produced by Katya Kumkova with editorial oversight by Leon Neyfakh and Andrew Parsons. Our artwork is by Teddy Blanks at CHIPS NY and our theme song is by Spatial Relations.

44:58 Leon: From the Westwood One Podcast Network.