00:00 [Archival]: We'll hear argument today in Case 08-205, Citizens United versus the Federal Election Commission.
00:07 Leon Neyfakh: Hey everyone, this is Leon Neyfakh, co-creator of the podcasts Fiasco and Slow Burn, bringing you this week's episode of 5-4. Today, Peter, Rhiannon, Michael are talking about Citizens United v. FEC, Supreme Court decision that allowed corporations to donate as much money as they want to the politicians of their choice.
00:26 [Archival]:: It has the potential to shake up the national political scene.
00:29 [Archival]: Five to four vote rules that corporations can contribute anything in political campaigns.
00:35 [Archival]: This really takes us into uncharted territory.
00:38 Leon Neyfakh: Citizens United resulted in billions of dollars being pumped into politics, all in the name of protecting the free speech rights of corporations and the rich people who run them.
00:47 Speaker 6: It has dealt a critical blow to our American Democracy.
00:51 Leon Neyfakh: This is 5-4, a podcast about how much the Supreme Court sucks.
01:02 Peter: Welcome to Episode 2 of 5-4, where we dissect and analyze the Supreme Court decisions that have made this country, by a wide margin, the worst in the world. I am Peter, a.k.a. The Law Boy. I'm here with Michael.
01:18 Michael: Hey.
01:18 Peter: And from Austin, Texas, Rhiannon.
01:21 Rhiannon: What up?
01:22 Peter: And together we are the only three lawyers without a diagnosed personality disorder.
01:27 Michael: Right. Not even limited to podcasts.
01:29 Rhiannon: That's right.
01:29 Peter: Not limited to podcasts. That's all lawyers.
01:32 Michael: All lawyers.
01:32 Peter: Worldwide.
01:33 Peter: There have been some garbage fucking cases these... In this past month or so.
01:38 Michael: They've really... The five conservatives have outdone themselves, I think.
01:42 Peter: They have. If you had asked me, a couple of years ago, if you could just no scope a teenager across the Mexican border without any consequences at all, I would have said probably not.
01:56 Michael: No. That doesn't...
01:57 Peter: Doesn't sound right.
01:58 Michael: It doesn't seem like a close issue either.
02:00 Peter: No. But I was wrong about that. I was wrong about that. And that's why I'm not up there with the big boys on the bench.
02:05 Michael: Right.
02:06 Peter: Today, we are covering Citizens United v. FEC. Maybe the most symbolically important case of the past decade. A case that has kind of come to represent the impact of income and inequality on the political process and has become emblematic of the ideas that money is speech and that corporations are people and all of these kind of big concepts that sound completely ridiculous and are completely ridiculous.
02:38 Michael: That's right. And we... With this podcast, we're trying to show that the Supreme Court is not apolitical, that Justices have agendas and they push those agendas. And I think this is a prime case for that. The whole process that gave us this decision was just blatantly political and hard to hide what was going on here.
03:01 Peter: Yeah, absolutely. I do wanna point out... I think we're likely to get some criticism here because this is about big money in political advertising, and this podcast also runs some ads. But we... Our promise is that we will not be influenced by those companies nor will we ever advertise... And this is a guarantee, for a company that was instrumental in a genocide in the past 50 years. That's our promise to all of you. And you might criticize that promise saying, "Oh, it's unclear what instrumental means," or 50 years. That's not...
03:36 Rhiannon: That's just a couple of genocides.
03:37 Peter: But, first of all, there are a lot of genocides in there. Second of all, if you wanna criticize us, that's fine, we're able to weather that criticism 'cause we're built Ford tough.
03:46 Michael: That's right.
03:50 Michael: And also beyond Citizens United, this is a nice time to talk about the First Amendment generally and the direction of the court, because we're also at just about 100 years even of First Amendment jurisprudence. The first Supreme Court, First Amendment case was in 1919, and obviously, 2019 just ended. If you look at the arc of the court's decision, the early cases seemed to be very concerned with minorities, the disenfranchised, the powerless citizens. You have anti-fascist leagues suing the government because they were put on some government watch list and the Supreme Court's saying that they can challenge their inclusion on that in the '40s, or the NAACP in the '50s, using the First Amendment as a shield. And this is, maybe, the case of all cases that sort of shows how the court's emphasis has shifted to protecting the wealthy and the powerful.
04:49 Peter: Yeah, so here in Citizens United, the court is asked whether McCain-Feingold, a 2002 law that bans outside political spending right before elections violates the First Amendment by unconstitutionally restricting a corporation's political speech. And the court says that not only does this particular ban violate the First Amendment, but in fact, any expenditure by a corporation at any time and for any amount is protected under a corporation's right to free speech. The idea that corporations have speech, is something that sort of slowly built up momentum until it hit this crescendo and turned into something that, I think, started off a little weird and is now just completely ridiculous.
05:30 Michael: Right.
05:30 Rhiannon: Right.
05:31 Peter: So in this case, the party asking for the Supreme Court to weigh in is Citizens United, originally known as Americans for Bush. These guys are a political action committee founded in the late '80s to support George H. W. Bush in his campaign for president against Michael Dukakis. So Rhi, you wanna start walking us through the history, how does this get to the court?
05:53 Rhiannon: Americans for Bush are the people who produced the racist as fuck Willie Horton ad back in the late '80s. So it's about this furloughed Massachusetts prisoner who was accused of sexually assaulting a woman while he was out of prison, Bush accused Dukakis of not being tough on crime in that ad. It's racist. It shows the guy's mug shot, it's disgusting.
06:16 Peter: It calls him Willie Horton even though he didn't go by Willie. [chuckle] It's like extremely fucked up.
06:21 Michael: Is that true?
06:22 Peter: It's 100% true.
06:23 Michael: I didn't know that. Jesus Christ.
06:25 Rhiannon: Yeah. Those guys who made that ad. Once Bush the first was elected, Americans for Bush turned into Citizens United. And they hired this guy, David Bossie. He is obviously obsessed with the Clintons in the '90s, running ads against Bill, Al Gore in 2000, and then, Kerry, John Kerry, of course, in 2004. This guy says that he's inspired by Michael Moore, and particularly Michael Moore's film Fahrenheit 911, and he's inspired to make political documentaries. He starts with a rebuttal documentary that's called Celsius 41.11.
07:05 Peter: Whoa, punchy.
07:08 Michael: Mind fucking blown. [laughter]
07:13 Rhiannon: So creative. In an LA Times article in 2004, Bossie says, "After seeing Moore's impact, I wanted to counter-punch. Documentaries have become a weapon of the left."
07:22 Peter: Still true.
07:22 Rhiannon: Right, yeah, totally right.
07:26 Peter: If you record stuff, and then show people, what happens?
07:27 Michael: There's something so perfect in that.
07:30 Peter: And that's a weapon of the left. Photographs too, I feel the same way about them.
07:35 Rhiannon: So this guy obviously sees himself as a propagandist, right?
07:36 Michael: Right, absolutely. He's a political operative.
07:40 Rhiannon: Yeah, the problem with that is the FEC correctly identified that Citizens United was a political organization, it's not a bonafide movie studio commercial venture, and so they continue to restrict Citizens United's ability to air their movies in advance of elections.
08:00 Michael: Right, again, because McCain-Feingold, the campaign finance law, said at the time that corporations couldn't run ads for a federal candidate within a certain time period before an election, right.
08:11 Rhiannon: So David Bossie is like, "Hmm, I don't like that."
08:13 Michael: He's got the fucking answer to that.
08:15 Rhiannon: And he says, "Alright, well what if I turn Citizens United into an actual movie studio then?"
08:24 Michael: And I bet they turned out some quality shit.
08:27 Rhiannon: Yeah, Citizens United has made over 20 movies now, including several that have been written and directed by the garbage, smelly, Steve Bannon, such as Fire from the Heartland, the Awakening of the Conservative Woman.
08:46 Peter: Something tells me that's not a sexual awakening.
08:50 Rhiannon: Which features Michelle Bachman, Ann Coulter, Michelle Malkin, etcetera.
08:55 Peter: Good stuff.
08:55 Rhiannon: One of the movies that they made was Hillary, the Movie. [chuckle]
09:00 Michael: Even punchier than Celsius 41.11.
09:03 Rhiannon: Which Hillary do we...
09:07 Rhiannon: And Citizens United wants to air this "documentary" in January 2008 to try to kneecap Hillary's primary run, they wanna get it to, obviously, to as many people as possible, and so they wanna put it on demand, but free to watch.
09:27 Michael: Right, they have an issue here, which is that there's campaign finance laws that say there's no corporate or union spending 30 days in advance of primaries or 60 days in advance of elections on electioneering communications. And so Citizens United, having been burned on this law previously sought a declaratory judgment in District Court saying, "Look, we're good to go. We're a movie studio. This is just a documentary." And the court was like, "No, you're not. And no, it isn't. Get the fuck out of here." And said they couldn't do it. And that was how we got to the Supreme Court with this case.
10:07 Peter: Right.
10:07 Michael: And so this starts on a very narrow question of whether the law is unconstitutional as it's applied to this documentary, and Citizens United is making a number of arguments that, look, the law doesn't really cover us or to the extent it does cover us, it's unconstitutional in those ways, and there's oral argument on this point in March of 2009, but the justices, the conservative justices were not satisfied with that. And they pushed Citizens United during oral argument on a much broader question of whether the campaign finance law and the restrictions on corporate spending were in their entirety unconstitutional, and this pisses off the liberals on the court. So David Souter, who's like a few weeks from retirement, writes a dissent that, according to some reporting is just airing all the court's dirty laundry, accusing the conservatives of blatant political machinations, and so somewhat shamed by this, actually cowed by a retiring justice ready to just put them on fucking blast they decide to set this case for re-argument and they're gonna make the parties brief them on the broader question of whether or not these campaign finance restrictions are constitutional at all.
11:37 Peter: Right, basically taking a very narrow question about some stupid movie and a very narrow law that applies to certain spending occurring within a month of a primary, and all of a sudden making it a case about corporate free speech that would apply in a huge array of context.
12:01 Michael: Right. The story, the detailed story is that at a conference originally, Roberts, Justice Chief Justice Roberts had written a majority opinion on the narrow question, and Justice Kennedy, who's very Libertarian, and which comes through in his writings, had wanted to write a concurrence on the broader constitutional question. But Roberts was persuaded by Kennedy and they decided to switch and that was when Souter started to write a dissent calling them out for being a bunch of fucking hacks, and it's important to realize a few things, which is, one, justices and judges in general, they have certain intuitions about the law and maybe on non-core issues, they can be persuaded one way or another, like some arcane workings of maybe patent law or some shit, they might be pursued-able. But these guys have ideas about the way the First Amendment works. They know what they think about things like campaign finance law. These are big issues that they've been thinking about for a long time.
13:11 Peter: They've been talking about it there, and all their friends have been complaining about it at fucking cocktail parties that they're at for 10 years.
13:16 Rhiannon: That's right.
13:17 Michael: Right, right, exactly. And there are just a number of ways they could have avoided ruling on this, which is generally speaking, what's required of the Supreme Court, is to avoid big constitutional questions unless absolutely pressed.
13:34 Peter: There's a doctrine called constitutional avoidance, which basically means if you don't have to answer to address a constitutional issue, you don't. And they flipped that completely on its head because they want to expand corporate speech rights and take a narrow question and turn it into a constitutional question.
13:52 Rhiannon: Right. You can't overstate how important it is that the petitioners themselves, Citizens United, as shitty an organization as it is, as awful a person David Bossie is and what they want the results of this case to be, that they didn't even ask for this result. This is the court really bending over backwards to fashion a case and a legal question so that they can... They're always planning backwards from the result that they want. And this is I think what makes Justice John Paul Stevens in dissent here, this is kind of a famous dissent of his, it's known as pretty intense, it's 90 fucking pages long.
14:31 Michael: Right. They wanted to avoid the shitty Souter dissent and instead they got the shitty Stevens dissent, and he's a better writer than Souter is.
14:37 Peter: Although 90 pages...
14:40 Michael: Nobody's gonna read it.
14:40 Peter: Believe, I didn't read that shit.
14:44 Rhiannon: But what is good about the dissent is it does do that... Like there's a little peel back of the curtain, it's a little bit mask off where he's calling out what's going on. So he says, "It is only in the most exceptional cases that we will consider issues outside the questions presented. The appellant in this case did not so much as assert an exceptional circumstance, and one searches the majority opinion in vain for the mention of any. That's unsurprising for non-exists. Setting the case for re-argument was a constructive step, but it did not cure this fundamental problem. Essentially, five justices were unhappy with the limited nature of the case before us, so they changed the case to give themselves an opportunity to change the law."
15:26 Michael: It's very upsetting and my heart is pounding right now. [chuckle] I'm so worked up. But one thing I was thinking about is, one, I feel like you could go through law school very easily without ever reading this case. But two, even if you did, there's no way any of this shit is gonna end up in your case book. You're gonna read a little introductory paragraph from the author of the case book that basically tease up some of the bullshit issues, and then you'll read a few excerpted paragraphs from Kennedy's majority opinion about the First Amendment, and then maybe a few paragraphs from Steven's dissent. And this context is very important for understanding what this case is and what the court is doing here.
16:13 Peter: Yeah. It's ideological warfare and its express. It's as close as you can get to admitting that you just have this political goal you wanna achieve and you're gonna go do it. But yeah, I did learn about this case in law school, and I didn't learn about the history of it until I read about it myself.
16:32 Rhiannon: Right. It's taken for granted that this argument and the holding of the case are legitimately gotten to. The process was legitimate, and...
16:42 Michael: Right. And I think setting the case for re-argument after you had already written your majority opinion deciding the case one way along those questions is such obvious bullshit. There's no chance.
16:56 Peter: Real weird.
16:57 Michael: Right? There's no chance that they're actually going to change their mind at this point. This is about laundering it, it's about legitimizing what they're doing.
17:08 Peter: Alright, let's talk about the opinion itself. Michael, you wanna... You're the election guy. The election law guy.
17:16 Michael: I was briefly an election lawyer, I know a little bit about this stuff.
17:19 Rhiannon: After this episode, Michael will have no more expertise. [laughter] Michael peaks episode two.
17:30 Michael: Alright, so just quickly going through the decision, and I don't think this decision is worthy of extended discussion other than to take a massive shit on it, so just describing its reasoning as briefly and succinctly as possible.
17:45 Rhiannon: That sucks ass.
17:48 Michael: Yeah. Moving on...
17:52 Michael: Obviously, when you're talking in abstract terms, the government banning speech sounds pretty bad. Censorship sounds bad. And in elections, of course, political speech is maybe the core of the First Amendment, that all sounds bad. Right? And so, there are portions of this opinion that you can be fooled into thinking sound reasonable.
18:15 Peter: Right. There are definitely a couple of big misconceptions about Citizens United, things that it's sort of... It's come to be associated with, although it's not really the case for those things. If you ever talk to a conservative or see a conservative academic talk about it, they all will say, "Well, actually you completely misunderstand the case." Because money as speech, that's a settled question. And whether corporations are people, that's a settled question.
18:39 Peter: But it's only really true in a narrow, almost semantic sense. There is absolutely no coherent, comprehensive explanation under federal law for why and to what extent corporations have constitutional rights at all, despite the fact they are not actual people. What there is, is a mish-mash of different theories of rights with no real consistent framework. And it's unclear why these entities created by state law, would be subject to federal constitutional protection. And some decisions have granted corporations due process and property protections, I guess you shouldn't... The Feds shouldn't be allowed to knock down a corporations door and steal their stuff. I would begrudgingly accept that that sounds right.
19:26 Michael: It depends on the corporation. [chuckle]
19:29 Peter: But they haven't been expressly granted speech rights, and it's not really clear if they even could be. Right.
19:35 Michael: And so when we're talking about bans on free speech, you gotta think about what's required. You need a speaker, and in this case, that's the corporation. And of course, corporate person make sense, like corporations need to be able to sign contracts, and you need to be able to sue them. But whether or not that means corporations have feelings that they need to express, that... Like General Motors is really behind Mayor Pete in the 2020 Democratic primary and it feels it in its heart. That's pretty ridiculous.
20:09 Peter: And before we really dive in, I think one question needs to be addressed, which is... What's a corporation? What is a corporation? And there are all kinds of little fancy academic theories about what a corporation is. But it's a separate legal entity designed to allow people to more readily do business. You can hide all of your assets and liabilities in this entity, and it's controlled by management and it's owned by shareholders. And that's really the most you can say about it without getting into froufrou academic bullshit, I think. And the theory that they use and that courts have used for 200 years to give them constitutional rights and speech rights, is the idea that corporations are, "An association of citizens." It's like kind of settled law that... Then this makes sense, if you're a group of citizens, the fact that you're acting as a group doesn't nullify your free speech rights, right? Because you're an association of citizens, you're all acting together to speak and say something, so you get free speech rights makes sense.
21:14 Peter: But the idea that a corporation is an association of citizens is completely ridiculous. And it feels like it's based on an extremely antiquated idea of what a shareholder is... Like some prospector rolls into town and goes to the local general store and goes in, and there's like six pelts on the wall and a bottle that just says, Alexa. And he's like, "Oh, well, I like the look of this store. I'll give you a Buffalo nickel for 25%." And then the guy's like, "Oh, my... A buffalo nickel?" And now he's... The guy's a shareholder. But the modern system of shareholders is that you give Vanguard or some other brokerage firm your money, and they invest it for you in a bunch of shares chosen based on some algorithm that tells them how to change their capital allocation for risk purposes or whatever. They buy and sell some stocks for you and you have no idea what you own... No idea. Do you know what's in any of your...
22:19 Michael: Exchange traded funds?
22:21 Peter: Really... Who could possibly know? I have like A 401 [k], I have absolutely no idea what's...
22:26 Rhiannon: Do I have stocks?
22:26 Michael: Not for a while.
22:27 Peter: No, you don't.
22:29 Rhiannon: Okay, I didn't think so. Thank you.
22:35 Peter: Most people have no idea what companies they have stock in, and that can't be an association of people. I can't be a part of an association of people when I don't know what the association is, right? The modern shareholder as like an entity is barely sentient, the idea that they're an association of citizens, such that they are able to express themselves and therefore deserve speech protections is just beyond absurd.
23:05 Michael: Right. The opinion tries to make itself seem like it's above basic sort of ideological concerns, and it mentions... Well, like Look, the Sierra Club is an association of individuals, and it's gotta be able to speak. But the Sierra Club is an advocacy group about people with...
23:23 Peter: That's their purpose.
23:24 Michael: A Shared interest in making political statements. That's the fucking point.
23:29 Peter: And that's why you join.
23:31 Michael: If you buy $500 of stock in Disney, because you heard that they're gonna buy Fox searchlight properties and you're gonna see Spider-Man in the Marvel Universe, that doesn't mean you have some fucking relationship with the other millions of people who hold stock in Disney and that now you have some coherent group viewpoint that you need to express in the political sphere... It's absurd.
23:57 Peter: Right. And it creates like... So you have this corporate entity, and then you have this inexplicably distinct Association of citizens that also has legal protections, and it's just allowing corporations to have their cake and eat it too. When they get sued, all of a sudden they are this... Just the corporate entity, right? And you can't sue the individuals who are part of it. And you have no remedy against any individual shareholder when they blast some baby in the face with sulfuric acid or whatever, because it increases the bottom line. But when they want free speech, all of a sudden, the shareholders are a part of it, and it's an association of citizens.
24:36 Michael: Right.
24:36 Rhiannon: Right. The whole point of creating a corporation is to limit individual people's liability and to create a legal entity that sort of takes the hit for legal problems in doing business... I don't fucking know what... I didn't take corporations. But what's clear is...
24:51 Peter: You didn't take corporations at all?
24:54 Michael: It was not required?
24:55 Rhiannon: No, of course, I didn't take corporations.
24:57 Michael: Well, it was my worst grade in law school, so I don't really have any ground to stand on. It was required...
25:02 Peter: I just rolled right up to the law school and I said, "Teach me about business."
25:06 Rhiannon: Yeah, you said. "Gimme, da corporate education."
25:10 Peter: Right.
25:11 Rhiannon: So one thing that's so, just infuriating to me is in the last substantive paragraph of the opinion, this is Anthony Kennedy, and so of course he's really... He's pulling out all the stops in terms of flowery, like how much we care about rights, all of this stuff. He loves that shit, but it's absolutely disgusting because actually, he like... Motherfucker, you're talking about corporations like these isn't actually people, so he's saying, The First Amendment, "Underwrites the freedom to experiment and to create in the realm of thought and speech, citizens must be free to use new forms and new forums for the expression of ideas. The civic discourse belongs to the people, and the government may not prescribe the means used to conduct it." Fuck you, please. Suck my ass.
26:03 Peter: In conclusion, the United States is the greatest country on earth.
26:07 Rhiannon: Anthony Kennedy is still alive, right? 'Cause I just...
26:11 Peter: Not for long...
26:12 Michael: Unfortunately.
26:12 Peter: I'm not gonna kill him... I'm not gonna kill... It's just a statement about his age.
26:15 Michael: Yeah.
26:17 Peter: You're alright Michael. Michael is having like an actual...
26:23 Michael: Like a minor nervous breakdown.
26:24 Peter: Like an anger attack.
26:26 Michael: There's a point in this opinion, when Kennedy says like, "Look, some people point out, accurately, that corporations could still do all this shit that we're saying they can't do, they just have to have a political action committee. What's called a separate segregated fund, which means rather than from their general treasury, they have a separate fund that only shareholders and executives and employees can contribute to, that will then engage in political advocacy." And he's like, "First of all, that's a lot of regulations, and that's really hard, and they have to submit a lot of forms to the government, and I don't think that's really fair, that they should have to do that. And, in any event, if a corporation has a PAC that doesn't allow them to speak, the PAC is a separate entity with, I guess, separate thoughts and feelings from the corporation that created it."
27:29 Peter: Once you give from one entity thoughts and feelings, all of a sudden, they all have them and it becomes this incredibly convoluted mess of bullshit.
27:36 Michael: Right. The idea that a corporate-created Political Action Committee is a separate and distinct speaker for the sake of the First Amendment, than the corporation itself that created it is fucking ridiculous. And he says it... He writes it in a way that he's offended by the idea that anybody would suggest.
28:00 Peter: So, one of the big arguments brought up by the dissent, maybe the biggest argument, is the corruption argument, they're like, "Doesn't this allow for corruption? Right? If corporations can simply spend with the purpose of influencing elections isn't that corruption? And Kennedy says, "Well, the only thing that really counts is quid pro quo corruption. Like literally just, "Here's your money, I would like this political objective in exchange."
28:23 Rhiannon: Yeah.
28:23 Michael: Right, and so Kennedy's argument is that since only direct quid pro quos count as corruption, any supposedly, "Independent campaign spending," meaning, spending that's not really directed by the candidate or the candidates campaign, that independent spending cannot actually be corruption for the purposes of the First Amendment, and that means you can't put any limits on it.
28:46 Rhiannon: Right.
28:46 Michael: Whereas direct contributions could be part of a corrupt scheme, and so you could put limits on this.
28:53 Peter: Right, and this distinction is the heart of what makes this decision so ludicrous, right?
28:57 Michael: Yes.
28:58 Peter: So, according to the court, giving direct contributions to a campaign can be limited, or in certain circumstances made illegal, but if you just run ads for the candidate on your own, that's independent and doesn't count, right?
29:10 Michael: Right.
29:11 Peter: This is how Super PACs became so powerful. Right? Their technical name is "Independent expenditure committees," and the idea is you form an entity whose sole purpose is to help a candidate or a group of candidates in an election, and as long as you don't directly coordinate with the campaign, the Supreme Court says, not only is that legal, but it cannot be limited due to the First Amendment, right? And this is as easily gamed as it sounds, right?
29:37 Rhiannon: Yeah.
29:37 Peter: So it was reported by Esquire, I think that in 2018, then Speaker of the House, Paul Ryan, facilitated a meeting between a big donor and a Super PAC, the Congressional GOP Super PAC and because he was an elected official, he couldn't legally solicit a donation, right? So what does he do? He makes the pitch to the donor and then just leaves the room while the donor and the PAC representatives talk money, that conversation ends with a $30 million donation to the PAC. And despite the fact that the distance between the politician and the PAC in this case, is completely artificial and fraudulent, that's ostensibly legal under Citizens United, and certainly Paul Ryan is banking on it being legal.
30:21 Rhiannon: Right.
30:23 Michael: No corruption there. And, yeah... And that's like... That's happening behind closed doors. But you have... Right out in the open, you have fucking Michael Bloomberg pouring hundreds of millions of dollars into elections.
30:32 Rhiannon: That's right.
30:33 Michael: For Democrats and Republicans, alike, and then bragging about it on national TV in a fucking Democratic primary debate, saying that he bought 21 congressmen, which, he's not a total idiot, he correct himself and he says he helped them get elected. But that shit slips out because he thinks that, he says that in private all the time, brags to his buddies at their little fucking cocktail parties, and the Supreme Court thinks that's okay, they say, "Look, that's not corruption, it's not even the appearance of corruption, 'cause he didn't directly coordinate with the campaigners."
31:08 Peter: Or if it's the appearance of a corruption, it doesn't matter.
31:10 Michael: Yeah, it doesn't matter, right.
31:12 Peter: Yeah, it's very fitting that a decade after Citizens United, you have Bloomberg, officially the ninth richest person in the world, just openly and unapologetically trying to purchase the Presidency of the United States with, what I think, no matter what happens, has to be described as some amount of success.
31:33 Michael: Absolutely.
31:34 Peter: And, it's in large part because he's making huge donations to establishment Democratic politicians to win their favor, and those donations are considered protected free speech under Citizens United, right?
31:47 Michael: Right.
31:47 Peter: And the Supreme Court has said, "Not only is this not corruption, but it is sacred and untouchable free speech." Alright? And I can... The bottom line with the stuff to me is that, I don't think the conservative Justices care whether this is corruption or not, right? They know the Republican Party is fueled by big money, and this is just how the wheels are greased, right? And they're gonna get behind it one way or another.
32:10 Rhiannon: Right, it's clear from the opinion, they think that that's normal, they think that you should be able to do this. It goes back to couching it in this really flowery language, in the second paragraph of this goddamn awful opinion, Kennedy is quoting the evil one himself, Scalia, saying... Oh, we should note that this case overturns the Austin decision. And in Austin, the Supreme Court held that speech could be banned based on a corporate speakers identity, so there are some rules, there are some restrictions on corporate speech, but in this opinion, Justice Kennedy quotes Scalia, who said in another case, that Austin was a significant departure from ancient First Amendment principles.
32:53 Michael: Ancient.
32:54 Peter: Ancient.
32:55 Rhiannon: Again, you have the mysticism around the law, ancient. Dude, the first amendment's like five minutes old. [laughter] What the fuck are you talking about? It's not ancient...
33:04 Michael: There was a longer gap between when the country was founded, and the first time the Supreme Court handled a First Amendment case, than...
33:12 Rhiannon: That's a really good point.
33:13 Michael: From then to now, this fucking ancient case isn't even half as old as the country. There are people alive today that are older than the oldest Supreme Court First Amendment case. This is not ancient, this is literally law that's been created in the lifetime of living people.
33:32 Peter: Yeah, but to be fair, it's just a couple of women in Japan.
33:35 Michael: It's like five people, but... [laughter]
33:39 Peter: So the other thing that they basically do away with is the idea that the appearance of corruption matters, and this is a part of the law previously where the court had said, "Look, we want to not only do away with corruption, but also the appearance of corruption, so that people don't lose confidence in democracy."
34:00 Michael: Which makes sense, if democracy is powered by people, it starts with their investment in the process. Right?
34:06 Peter: Right, and the majority basically says, "Well, look, the public's not gonna lose confidence in democracy." And that's really it.
34:13 Michael: That's like a direct quote.
34:15 Peter: It is, and it's...
34:16 Michael: I have it.
34:17 Peter: Yeah, pull up the quote.
34:18 Michael: Yeah, let me get it. "The appearance of influence or access, furthermore, will not cause the electorate to lose faith in our democracy." That's the fucking Supreme Court...
34:32 Peter: That's reassuring though.
34:33 Michael: Holding forth...
34:34 Rhiannon: Yeah, thank you so much.
34:35 Michael: On this shit.
34:36 Peter: Thank you Anthony Kennedy for letting me know.
34:39 Rhiannon: I'm gonna sleep good tonight, I don't know about you guys.
34:42 Michael: The constitution has spoken.
34:43 Peter: Anyway, objectively false. Objectively fucking false. [laughter]
34:45 Rhiannon: Right, right, fucking wrong.
34:47 Peter: One of the many times, this is a classic thing that conservatives do, where they just assert this thing and you're like, "Isn't that an objectively measurable concept?" And then they just move on. Then the other, I think big and related thing, is the idea of free speech in relation to the audience. Free speech isn't just about the freedom of the speaker, it's about your freedom to hear what they gotta say. And so their majority is like, "The public has a right to access all the information, and then they determine the reliability of that information after the fact." And I think it's important to note that here we are in an era of constant, often purposeful misinformation and extensive research, showing that some percentage of people will believe it no matter what. And maybe we should be evaluating the rights of the listener to hear something with a little more nuance given our understanding of that. We live in a world where 40% of the population believes Hillary Clinton is a murderous pedophile, which means that 60% of the population is wrong about that.
35:51 Michael: That's right.
35:56 Peter: And there's also... Kennedy says, this is a direct quote, "There's no such thing as too much speech."
36:02 Michael: Eat shit.
36:05 Peter: Obviously, there are restrictions on the First Amendment. There are all kinds of, classic fire in a crowded theater sort of thing, you can't make direct threats, there are tons of restrictions on the First Amendment, so when you are a Supreme Court Justice writing, "There's no such thing as too much speech." How does that get by your clerks? Does none of your clerks are like, "This is obviously not true." But by the way, in 2007, there is a case where a guy held up a banner near a school that said, "Bong hits for Jesus."
36:35 Michael: And you were like, "Fucking expel that shit."
36:36 Peter: And the Supreme Court was like, "Well, that was near a school." You can't say bong near a school.
36:43 Michael: If you say 'bong' near a school, that's something different. If you're annoying people, that's really...
36:48 Peter: That's different.
36:49 Michael: That's different.
36:50 Rhiannon: I think a really important point to make too, is that saying something as asinine as, "There can't be too much speech," you just have to call that out as being so connected to capitalism. That the idea of a free market being a good thing, where there's just an excess of shit out there and everybody chooses for themself what shit they engage with and by, a quote like that, "There's no such thing as too much speech."
37:20 Peter: It's just free speech in the form of a Coca-Cola billboard outside your fucking apartment.
37:24 Rhiannon: Exactly.
37:24 Michael: He even mentions the marketplace of ideas, which fucking drives me nuts because the marketplace of ideas is a great idea if we think, McDonald's makes the best fucking hamburgers that have ever existed. Right?
37:36 Peter: Right, right.
37:37 Michael: Because pretty much everybody, if they've eaten a hamburger and they've eaten a fucking McDonald's bullshit hamburger, and is that really... Is that what we're going for here? Is that the idea?
37:51 Peter: Have the best hamburgers won?
37:53 Michael: Well, that's...
37:54 Peter: Alright hold on, well let's... I wanna get into what I think is -- no joke -- the majority's only real decent point, which is that there's a weird tension here. If you're restricting the ability of corporations to spend on political expression, then what do you do about media corporations? And the majority puts this forward as just like, "Are you saying that you can restrict MSNBC or something?" Now, Justice Stevens in his dissent is just like, "Well, that question isn't even before us, this isn't a media corporation." Which is a good point, but also, let's be honest, a little bit of a dodge. But I think, perfect example of the conservative preference for rules, even if the rules are bad, rather than actually engaging with nuance and context, they would much rather have a bad rule, than give uncertain guidance to judges who might in their mind do the wrong thing with it.
38:54 Michael: Right. It sounds scary, right? And it does raise this concern, and if you're not really thinking too critically about it, you can be like, "Yeah, what if the government is like, no more CNN, where will I get my pro-Clinton news?" Or whatever. Right? I think the prototypical example of that would be like maybe a small independent film-maker with a strong political point of view trying to make a real artistic statement about the state of our society, like perhaps Michael Moore with Fahrenheit 9/11, which believe it or not, was able to be released within 30 days of an election over a complaint to the FEC because the FEC was able to very easily identify them as... His studio as a bonafide movie studio, and that this is a general political expression of the media, and this wasn't an issue. And what's amazing is that this was before the FEC because...
40:03 Rhiannon: Yeah, hey Michael, who lodged that complaint? Where did you get that complaint from?
40:06 Michael: Citizens fucking United. Citizens United tried to get Fahrenheit 9/11 pulled from the air, the same fucking company that's out here saying, "This shit is way too onerous," was trying to get media pulled like five years earlier. And that was their failed attempts to get Michael Moore silenced that inspired this whole thing.
40:33 Peter: Right. So what the court is trying to say is, "Look, it's hard to distinguish between types of speakers, and so it's best to just let them all do the same thing." But first of all, they don't actually do that, I referenced a case where there was a student on campus holding a sign that said "bong hits for Jesus", and they said it's okay to ban that because it's a student in a school. You're making these quantifiable judgments about the value or impact of speech based on the context, are we really pretending that the guy on the street corner with a sign saying "The end is near" is doing the same thing as the corporation that's lobbying the government for fucking changes in regulations in their own industry?
41:16 Michael: Right.
41:17 Peter: But that's what they're doing, that's what they're saying. It essentially means that the court sees no constitutional difference between a multi-million dollar expenditure by a corporation, and a nominal expenditure by an individual, none. What they're saying is, it's too hard to distinguish between those two things.
41:34 Michael: And the conservatives love doing this, they love talking about how difficult rules can be to be applied in the real world, but a common theme in the opinion is, we're sitting here banging on them about big, multi-million corporations that have tons of resources, and they're like, "Well, look, 96% of the Chamber of Commerce members have less than 100 employees and they're small businesses, and they can't handle this shit," and whatever, but the law easily distinguishes between those. There's a concept called a closely held corporation, and there's different laws that surround closely-held corporations. If corporations only have a few shareholders, and they don't really respect the formalities of the corporate form and have shareholder meetings and all that shit, they have duties to each other, and the laws are very different for them than they are for what Tesla stock owner owes, which is nothing to another Tesla stock owner, because that relationship is different and judges and courts have no problem distinguishing between them. And if the court was concerned about those corporations and their speech, they would have no problem distinguishing between them. They didn't wanna distinguish between them because what they want is to give fucking massively wealthy people and their corporate shells the ability to have a huge impact on elections, that's the goal.
43:00 Peter: I wanna get one point here before we talk about the impact of this decision, and that's that there was a concern here that this would open up a possibility of foreign intervention in elections. So this decision drops in late January 2010, couple of weeks later, State of the Union, Barrack Obama is talking about this, and he says that.
43:20 Barrack Obama: With all due deference to separation of powers, last week, the Supreme Court reversed a century of law that I believe will open the floodgates for special interests, including foreign corporations to spend without limit in our elections.
43:36 Peter: And Samuel Alito, the conservative justice, Bush Jr, appointee famously mouths, "Not true."
43:44 Michael: Big scandal.
43:46 Peter: Not true. Big scandal, because a Supreme Court Justice was talking. You're supposed to just sit there and sort of look angry, I think instead he mouths his opinion.
43:57 Rhiannon: You're supposed to sit there in your robe looking important.
44:01 Peter: That's right. Very sort of... At the time it was just like, "Oh, he's talking back at Obama, very sassy Supreme Court Justice." And now it's like, "You sure about that Sammy?"
44:14 Michael: You really wanna be the guy who went down as history, as telling Obama that he was...
44:18 Peter: He's the guy who was like, foreign intervention in elections in 2010, "Absolutely not, Barack, no. You're an idiot Barrack, you don't understand this stuff at all." And just... There's no question that Citizens United... It creates a pathway through which foreign money can run into our elections, there's absolutely no way to avoid that fact as will be made clear by some of the numbers we're about to tell you. The impact of this decision on spending, spending that can come from any corporation is considerable.
44:51 Michael: Right. And so the thing about the corporate form is that it is a great vehicle for pretty much anyone to get their fingers into the electoral process now, and I don't think it's maybe, worth our time to get into detail about all the various different ways individuals, foreign or domestic can do that, but the main thing is that by opening up this avenue, you just invited basically everybody who wanted to do this to just form a little fucking LLC or whatever, and...
45:31 Peter: Right. Right. The definition of corruption in this context is so narrow that anyone who is not a complete and total incompetent can now funnel huge amounts of money into elections.
45:45 Michael: Right.
45:45 Rhiannon: Yeah, and I think the reason why I wanna do this podcast is, not just to show that the Supreme Court Justices are political and actually not objective, but also that they're dumb as shit.
45:56 Michael: That's right.
45:56 Rhiannon: Everybody at the time...
45:57 Michael: Took the fucking words out of my mouth. Like, literally I was gonna be like, "Damn as shit."
46:01 Rhiannon: Everybody at the time was saying these would be the consequences. Corruption is a risk here. Foreign intervention is a risk here. This is what... And they were all like, "No. No way dog. That's not gonna happen."
46:14 Peter: If you read the Stevens dissent now you could look at it and be like, "Oh, he's fucking Nostradamus. This stuff all came true." Or you could realize any moron looking at this decision and understanding the basic framework of spending in elections could have predicted this stuff.
46:29 Michael: Fucking in 2018 Sheldon Adelson alone gave $122 million.
46:35 Peter: Casino magnet and one of the most disgusting people you will ever lay your eyes on.
46:40 Michael: Fucking Jabba the Hutt.
46:40 Peter: Just one of the most aesthetically disturbing people you will ever see in your fucking life. If you don't know what Sheldon Adelson looks like, just Google him right now. A-D-E-L-S-O-N.
46:50 Rhiannon: Google it.
46:51 Peter: He looks insane, just like an unbelievable human being. Barely human. I don't even think he deserves free speech rights. I don't think he qualifies a person. He looks like a nine-foot person was melted down into a normal person size. Sorry for that tangent.
47:09 Rhiannon: Yeah, so Michael said, in 2018 that Sheldon Adelson alone gives $122 million. And then just to compare that back in 2010, the year this decision comes out, the largest reported individual contributions totaled $7.5 million, so it's just ratcheted up.
47:25 Michael: It's a little bigger.
47:26 Rhiannon: Another big impact in terms of campaign spending being up is outside spending, which is referring to PACs, political action committees, operating independently of campaigns. So for example, in 2008 that outside spending totaled a little over $330 million. Fast-forward to 2016, we're talking in the billions now, $1.4 billion. And in 2018, the first midterm with over $1 billion in spending.
47:57 Peter: So one way to contextualize this is, has anyone listening to this podcast ever tried to max out their donation to a candidate? Because the maximum that you're allowed to donate is $2800 per candidate per cycle.
48:11 Rhiannon: If you've done that, call me, 'cause that means you have 3000 bucks.
48:15 Peter: That's also means you're rich. Yeah, that is a lot. So the end result of this, and by the way, those restrictions have been found constitutional. All of this highfalutin language about the importance of speech and shit has not prevented the Supreme Court from saying, "Well, yeah, you can cap individual contributions." And the result is that while you can only donate $2800, if you and some of your richer friends decide to form a company, pool together your millions, all of a sudden you can spend the whole fucking thing.
48:50 Michael: Right, and you wanna run an entire shadow campaign in parallel with the candidate of your choice. Yeah, you and your friends can do that too.
49:00 Peter: Just like a billionaire, you and your friends are allowed to run ads against or for the candidates of your choosing, so don't tell me that this country is unequal.
49:10 Michael: Right. The easiest way for a normal citizen to actively engage in the political process in a meaningful way beyond just talking to your neighbors is very restrained, whereas people with means can fucking go hog wild. There. Sorry.
49:31 Peter: Oh my God, I love it. Michael is just ready.
49:34 Michael: I'm sorry.
49:35 Rhiannon: He's so worked up.
49:37 Peter: Ready to punch someone.
49:39 Michael: I mean...
49:40 Peter: We'll, after this we'll go punching people.
49:44 Peter: Next episode is Fisher v. Texas, which is, I think the best way to put it is the story about the dumbest white girl you ever heard. It's gonna be good. It's an affirmative action case. A great exploration of one of the more mediocre women you'll ever hear about in your whole life.
50:10 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.
50:32 Leon Neyfakh: From the Westwood One Podcast Network.