0:00:00.0 S?: We will hear argument first this morning in case 19-251, Americans for Prosperity Foundation v. Bonta and the consolidated case.

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0:00:13.5 Leon: Hey, everyone, this is Leon from Fiasco and Prologue Projects. On this week's episode of 5-4, Peter, Rhiannon and Michael are talking about Americans for Prosperity v. Bonta. At issue in this case, which was decided just this year, is how much power states have to force non-profits to disclose big charitable contributions. The case was brought by two libertarian groups against the State of California. In it, they argued that disclosure would cause a chilling effect on the right to free speech and association. California disputed that.

0:00:47.2 S?: Petitioners haven't shown that disclosure in the typical case involving the typical charity would expose donors to the risk of threats, harassment or reprisal. Absent that showing of an across the board First Amendment burden, they provide no basis to strike down this law on its face.

0:01:02.4 Leon: In the end, the Court agreed with the petitioners, in another Roberts' Court ruling that privileges the rights of the wealthy over the rights of everyone else. This is 5-4, a podcast about how much the Supreme Court sucks.

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0:01:24.8 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that are being force fed to the American people, like we're a goose being fattened up to make foie gras. I am Peter. I'm here with Michael.

0:01:37.4 Michael: Hey, everybody.

0:01:38.2 Peter: And Rhiannon.

0:01:39.8 Rhiannon: Hi, everyone.

0:01:39.9 Peter: I believe the process is referred to as gavage, something like that.

[laughter]

0:01:43.6 Rhiannon: Okay.

0:01:43.8 Peter: It might be pronounced gav-age, I don't know if it's French.

[chuckle]

0:01:46.6 Rhiannon: It is.

0:01:47.5 Peter: Okay. Wow, a lot of confidence.

[laughter]

0:01:51.1 Peter: Today's case is Americans for Prosperity Foundation v. Bonta. This is a case about free speech for very, very rich people. California, the State of California, requires non-profits to disclose the identities of their donors on tax forms. This is meant primarily to help avoid various forms of fraud, right?

0:02:15.5 Rhiannon: Sure.

0:02:16.3 Peter: But those rich donors challenged the disclosure requirement, saying that it violated the First Amendment, and here in a 6-3 decision, the Supreme Court agrees and strikes the requirement down, saying that it violates the free speech rights of those wealthy donors. This is another chapter in the Roberts' Court's long effort to insulate the extremely rich through the First Amendment by creating rules that from a practical perspective only really apply to them. So the Court has gifted us with yet another First Amendment right that is only actually accessible to the richest 0.1% of the population.

0:02:59.5 Rhiannon: Yes.

0:03:00.3 Peter: Thank God, thank you to the Supreme Court out here aggressively protecting the rights of like the 600 richest dudes.

0:03:06.6 Rhiannon: Yes.

0:03:07.7 Michael: Yeah.

0:03:08.4 Peter: So, Rhi, let's get some background going here. Let's do it.

0:03:12.0 Rhiannon: Yeah. Okay, let's jump right in. So, like Peter said, this case has to do with what non-profit organizations have to disclose to the government about who is giving them money. So a non-profit organization can't do exclusively political work, right? That would be against the tax code, but non-profits often have a political arm, like Planned Parenthood, for example, that complements their regular non-profit activities. That's different from a political action committee, because PACs are doing direct political work. They overtly advocate for or against a political candidate, and they use their money directly for those advocacy purposes, right? So PACs do have to disclose their donors to the public, whereas a non-profit does not have to do that. But like Peter mentioned, in California, the state did require the disclosure of major donors to non-profits, but they still weren't requiring that the disclosure be totally public.

0:04:12.1 Rhiannon: The State Attorney General's Office in California required that non-profits, and throughout this opinion, Chief Justice John Roberts doesn't necessarily refer to these organizations as a non-profit organization, but mostly refers to them as charitable organizations. So the State Attorney General's Office in California required that non-profits, these charitable organizations, disclose the identity of their major donors in order to renew their non-profit registration with the state every year. So, the California Attorney General's Office says that it required that information in order to effectively monitor, respond to misconduct by charitable organizations like fraud, self-dealing, that kind of thing.

0:04:58.8 Rhiannon: And I want to emphasize again here how limited this disclosure requirement really was. So California and the AG's Office, they are not requiring that non-profit organizations make their donor list public, only that non-profit organizations have to disclose that major donor list to the AG's Office. And the AG's Office is not turning around and posting that donor list publicly, they can keep that information confidential. So, that's the sort of legal background, let's talk about who brought this lawsuit and why.

0:05:35.2 Rhiannon: You will be shocked to hear that it's not your neighborhood grassroots non-profit organization which has been out in the community, like assisting families, set up a mutual aid network, right? These are very different non-profit situations that we're talking about here. There are two non-profit organizations who bring this lawsuit in California, saying that the state making them disclose the names of their major donors, just to the California AG's Office, is a burden on their free speech rights. The first organization is a little group called Americans for Prosperity, founded by America's sweethearts, David and Charles Koch.

0:06:15.0 Peter: Even if you didn't know it was them, you hear Americans for Prosperity...

0:06:18.5 Rhiannon: Oh, yeah.

0:06:19.3 Peter: We've talked about these organizations before.

0:06:19.9 Rhiannon: Yup.

0:06:20.8 Peter: Those sorts of names should be sending alarms off in your head.

0:06:24.8 Rhiannon: Yeah, and a chill down your spine. So AFP, Americans for Prosperity, their mission statement reads in part that they engage in, quote, "broad-based grassroots outreach to advocate for long-term solutions to the country's biggest problems that prevent people from realizing their incredible potential, unsustainable government spending and debt, a broken immigration system," etcetera. They have lots of issues.

0:06:52.0 Peter: Yeah, all the country's biggest problems.

0:06:54.2 Rhiannon: Right, right. And so be that as it may, maybe that's what they say their mission statement is, this is a libertarian conservative advocacy group that's one of the most influential conservative organizations in the country today. They have millions of members, they have hundreds of employees, they are a registered lobbying organization, their 2014 revenue was more than $80 million, and in 2018, USA Today reported that Americans for Prosperity was one of just 15 groups that accounted for more than three quarters of the anonymous money flowing into federal elections since the Citizens United decision. So, we love that, we feel great about that, excellent Koch brother dark money, weird shit.

0:07:44.3 Peter: If you're opposed to that, you're opposed to prosperity.

0:07:48.2 Rhiannon: Okay, so that's the first plaintiff in this case, saying, "Please, Mr. California, do not make me tell you who gave me so many dollars. You're giving me a boo-boo on my free speech heart." That's number one. The second organization to sue California alongside AFP is the Thomas More Law Center. Law center, you ask? Rhiannon, this law center says that they are a non-profit public interest law firm. Okay, well, if you believe that, you're a big dumb baby with a small baby brain, because this isn't just a humble legal aid organization, like getting legal services out to the poor. Just like AFP, these wackadoos at the Thomas More Law Center are conservative nut jobs moving a lot of money around their various advocacy priorities. Their website says, quote, "The Thomas More Law Center defends and promotes America's Judeo-Christian heritage and moral values, including the religious freedom of Christians, time-honored family values, and the sanctity of human life."

0:08:57.5 Peter: I don't know why they need to go into detail.

0:08:59.5 Rhiannon: Yeah, we get it.

0:09:01.8 Peter: I think everyone hears Judeo-Christian values, and it's like...

0:09:04.5 Rhiannon: Right, right. Yeah, you can stop there.

0:09:04.6 Peter: I know what you mean.

0:09:04.7 Rhiannon: Yep, we all threw up. So the Thomas More Law Center was founded actually by the founder of Domino's Pizza, Tom Monaghan, who apparently since leaving the pizza that tastes like dog shit business has been spending literal millions of dollars as a Catholic quote "activist and philanthropist," just opposing all things good, like abortion, gay rights, social welfare, what have you.

0:09:32.9 Michael: When we were prepping for this episode and it was like, don't forget to mention the pizza guy, I thought for sure it was like the Papa John's guy, but it turns out...

0:09:41.4 Rhiannon: No, it's Papa Dom's.

0:09:43.8 Michael: It's another crazy shitty pizza. Yeah, that's...

0:09:43.9 Rhiannon: Right, right.

0:09:44.0 Michael: It's disappointing. Of the shitty pizzas, I think Domino's is my favorite.

0:09:47.6 Peter: Yeah, but that's because... Do you remember 10 years ago when they had that whole ad campaign that was like, "Our pizza sucks, we know it, you know it, we're starting from scratch and we're doing it all over." That campaign actually worked, and they got a really good app and now it's like they've been on the comeback. And this guy left in 1998 or '99, so I don't give him credit for the current state of Domino's Pizza.

0:10:12.7 Rhiannon: No, no, no, we don't need to do that.

0:10:14.5 Michael: And I can continue ordering in good conscience.

0:10:18.8 Rhiannon: Yeah. Sleep well tonight, Michael.

0:10:23.5 Peter: I'm here to protect you, Michael.

0:10:23.6 Rhiannon: Yeah.

0:10:23.7 Michael: Thank you, Peter.

0:10:25.2 Rhiannon: So anyways, the law center, the Thomas More Law Center that this loser started, they have their hands, their grubby little hands in all kinds of ridiculous, absurd, conservative, dangerous lawsuits. For example, they sued the federal government during the Obama administration for allegedly engaging in Islamic religious activities based on Sharia Law, they've sued public schools and government employers for offering benefits to same-sex couples, before same-sex marriage was made legal, and I'm already tired of listing how awful they are. These are some freakazoids. So, Thomas More Law Center, AFP, Americans for Prosperity, those are the two plaintiffs we have here suing California because the State Attorney General's Office asked them to disclose, give the identities of their major donors.

0:11:17.4 Peter: Right. So let's talk about the law a little bit. The law here is actually pretty simple. The First Amendment grants the right to free speech, of course, and that in this country includes donating money, and the First Amendment also protects free association, the right to associate with whomever you please. So these rich guys are saying that if they are forced to disclose their names to the government, that will prevent them from freely speaking and associating with these non-profits, because disclosure might lead to harassment and intimidation. They're saying, "Well, we could hand it over. Yes, we hand it over to the government, but what if it leaks and becomes public?"

0:11:56.2 Michael: What if people know who's trying to prevent gay people from getting married? If they know it's me, they might get angry at me and I don't want that. I just don't want them to be married, I just... I don't want anybody to know that's what I want.

0:12:09.8 Peter: That's right. So basically they're saying that the disclosure requirements have what we call in the law a chilling effect; because of the disclosures people might be dissuaded from exercising their rights to free speech and association by donating to these charities, and that violates the First Amendment. And the Court, in a 6-3 opinion written by Chief Justice John Roberts agrees. They strike down the requirement saying that, yeah, if these donors have to disclose their names to the California AG's Office, that might lead to harassment and threats from the public, and that will dissuade people from donating their money to those charities, which violates their free speech rights.

0:13:04.4 Peter: So suck on this a bit. Yeah, okay. So, the first thing that jumps out here is that they are striking down this entire requirement based on an incredibly tenuous and completely speculative causal chain of events. They're saying that maybe these filings will result in a leak to the public, which will then in turn result in someone somewhere harassing or threatening or committing violence against a donor, and that possibility, although it involves a daisy chain of speculative events, might prevent a donor from donating, and that violates the First Amendment. Okay, so...

[laughter]

0:13:53.7 Rhiannon: Everyone take a breath. Alright.

0:13:55.6 Peter: This is one of those ones where it's hard to provide the counterargument, because I'm not sure that the actual argument even exists, it's more of a series of words. But to take a step back, the idea of threats or possible violence quote-unquote "chilling free speech," that's a real legal concept, right?

0:14:13.2 Michael: For sure.

0:14:14.9 Peter: But what's notable here is that there's just no actual cause for concern. The legal rule is supposed to be that they need to show a quote "reasonable probability" that they will suffer harassment or violence from the disclosure, but there's no actual evidence that the disclosure of donors' names to a few government officials leads to anything of the sort. The only evidence they provide is that the Americans for Prosperity Foundation once saw a threatening social media post from an IT contractor in their building, and then the Thomas More Law Center said that they've received hateful emails and stuff, and that was their evidence, none of which has anything to do with a tax disclosure to the California state government.

0:15:02.7 Peter: So, like, what the fuck are we even talking about here? What is going on? Why is a tax disclosure requirement being struck down in its entirety because some rich donors are claiming without any evidence that they might be harassed?

0:15:14.4 Rhiannon: Right.

0:15:17.5 Peter: It's sort of surreal to me.

0:15:17.6 Michael: So, one thing that I think is going on here, actually, is that I think the Justices really understand that this has positive benefits for them, because one way these sorts of organizations spend their money in a political manner without becoming a PAC is not to spend money on elections, but is to spend money on judicial nomination fights. The Judicial Crisis Network is precisely one of these types of organizations; they've spent $17 million, I think, on confirmations in just the last few years, including millions on Kavanaugh and Barrett both.

0:15:56.2 Peter: When they say judicial crisis, they mean there's too many libs on the Court? That's the crisis?

0:16:00.5 Michael: That's the crisis. That is the crisis. Sheldon Whitehouse, the Democrat from Rhode Island, like talked about this at Coney Barrett's confirmation. He has a bill that's been folded into the Senate version of the For the People Act that says spending money on ads related to judicial confirmation should be electioneering communications and be subject to campaign disclosure requirements. So I think there's a degree to which, and we'll talk about this later, that this is campaign finance regardless, but there's a degree to which I think they see maybe on the horizon that the monied interests they owe a lot to being brought to light, and don't like it.

0:16:41.5 Rhiannon: Yeah, I think that's spot on, Michael.

0:16:44.9 Michael: It's better for them when all this shit happens in the shadows. They are just as much a beneficiary of this as Republican politicians.

0:16:53.9 Peter: Right. So, digging into the details of the opinion a bit, one of the aspects of the opinion that grates me the most, and that's saying a lot, is that the majority is constantly citing NAACP v. Alabama.

0:17:05.1 Michael: It's so offensive.

0:17:06.2 Rhiannon: Yes.

0:17:07.8 Peter: Yeah, it's a 1958 case where the Court held that the State of Alabama couldn't force the NAACP to disclose its members.

0:17:17.0 Rhiannon: Right.

0:17:18.1 Peter: So, the Court is claiming like the same principles apply here. That case was about freedom of speech and freedom of association too. If the NAACP had to hand over its members to the State of Alabama in the 1950s, that would have had a chilling effect on NAACP membership and speech, and yeah, the rich donors are making the same argument, right?

0:17:36.7 Michael: There you go.

0:17:37.8 Peter: But that case, that case was a situation where the explicitly racist Alabama state government was fairly openly attempting to intimidate civil rights organizations, right?

0:17:49.9 Rhiannon: Right.

0:17:50.0 Peter: This case is about some sociopathic plutocrats who are clutching their pearls about what appears to be like a completely fictional threat of harassment that might happen when they hand over some tax information to the California state government, and then the California state government like drops it on the ground outside and a member of the public finds it or something, I don't know what they think is gonna happen. So, to treat this case as though it should be meaningfully informed by the overt campaigns of state violence against Black people during segregation, just like a perfect crystallization of why divorcing the interpretation of the Constitution from its historical context is counterproductive and fucking insane.

0:18:34.3 Rhiannon: Yes. And for her part, Justice Sotomayor points out in her dissent that this is all a really slippery slope. This case is about disclosing donors to charitable non-profits, but the logic of the opinion could just as easily be applied to campaign finance laws, which Michael just mentioned. So, Sotomayor sort of highlights this, because it's hard not to think that the next step could easily be the Supreme Court saying that large money donors in politics have this constitutional right to anonymity just the same.

0:19:06.9 Michael: Right. Sotomayor is right, but there's a degree to which she's also bearing the lead, because this already is campaign finance. There's this class of tax-exempt organizations, 501c4s, that are allowed to engage in some political activity as long as it's not their primary purpose, as long as they're not running campaign ads, and they can spend millions upon millions of dollars, tens or hundreds of millions of dollars, giving money to, for example, Super PACs, which are then engaged in campaign finance, they're engaged in electioneering. And that's what happens. I'm sure everybody who listens to us has heard the phrase "dark money" before. Dark money in campaigns is Americans for Prosperity, right?

0:19:56.4 Michael: That's what that is. Organizations like them are already pouring tens or hundreds of millions of dollars into federal election campaigns and state election campaigns. So it's now, it is anonymous political donations right now, and it's a problem, and I feel like this is the Court getting out in front of any movement towards making sure that disclosure laws have teeth.

0:20:24.0 Peter: Right. Any steps towards closing like the biggest loophole in American campaign finance law.

0:20:30.0 Michael: Right, it is already like, good luck. And I will say, I think a lot of the timing with this sort of goes to this point as well, you know, the majority opinion, it makes the point that these laws have been on the books in California since 2001, but it was only in 2010 that the Attorney General of California started trying to really enforce them. And a couple of other things happened in 2010. One, in January 2010, Citizens United came down, which opened the flood gates to the Super PAC spending, which in turn became an avenue for these organizations to start pouring money into federal elections.

0:21:13.3 Michael: And two, Americans for Prosperity in particular was getting written up in the New Yorker because they were astroturfing the Tea Party movement. AFP is basically what created the Tea Party movement. There is a quote from an Americans for Prosperity org in 2010 saying, "I was part of the Tea Party before it was cool."

0:21:36.7 Peter: Before that, a real point in time when it became cool.

0:21:39.5 Michael: And she also said that the job, the role of AFP was to educate Tea Party activists and give them next step training.

0:21:49.7 Peter: That's why they're all so educated now.

0:21:51.8 Michael: So this was a big deal in 2010, was all of a sudden, all of a sudden these organizations that nobody knows who's behind them, are able to pour a ton of money into elections and are creating from scratch social movements to influence politics and so yeah, I think the California Attorney General was like, well, fuck, we can know who they are, like let's start pulling their shit, right?

0:22:16.3 Peter: Right. So to get a little big picture now, this case is really the latest brick in the bulwark that the Roberts Court is building around the ultra-wealthy using the First Amendment, right. This case seems to almost explicitly hold that the First Amendment insulates extremely wealthy people from public backlash for the political causes they support. That really does feel like it's the bottom line of this decision. Roberts is protecting these billionaires and... Well, sorry, Thomas Monaghan, only worth something like $400 or $500 million, so I don't want to exaggerate.

0:22:50.1 Rhiannon: Fucking loser.

0:22:51.2 Peter: He's protecting them from the mere prospect of being bothered by the masses as a retaliation for the hideous burdens that they've placed upon the shoulders of humankind. One interesting thing that the Court does not address at all is even if somehow these donor disclosures became public and some very small number of people would use that information to harass or threaten these very rich donors, a much larger number of people might be interested in legitimately criticizing their actions, and to the extent that the donors' identities are obscured from the public view, the speech of the people who might want to criticize them is being obstructed.

0:23:33.0 Rhiannon: Yes.

0:23:33.5 Peter: So what about their speech, right? What happens to the speech of the thousands of people who have legitimate things to say about these donors when the Court is essentially banishing to the shadow realm the information they need to make those criticisms. The Roberts Court just doesn't address that, that's not part of their calculus.

0:23:49.9 Michael: Yeah, like if I wanted to organize a boycott of Domino's Pizza after learning these disturbing facts about it, I never would, because I'm such a fan, as earlier detailed.

0:24:04.2 Peter: The app tells you how far along the pizza is, so...

0:24:09.1 Michael: When I see that QC happening, and I know it's...

0:24:13.2 Rhiannon: Chad is on the way with your [0:24:14.0] ____.

0:24:16.0 Michael: But that is political organizing, right, that's political speech, that's association too, and it's being hindered. I think it's a great point, Peter.

0:24:25.2 Peter: And to use something more like direct and obvious, we have a podcast about the law, what if we have some shit to say about the Thomas More Law Center and their actions, right? That information is useful to us making public commentary and that we can't make it without understanding who is behind it.

0:24:42.3 Michael: I will say also, you could tell that the conservatives sort of know they're full of shit here, because this sort of lacks a lot of the flowery paeans to free speech that you see in a lot of opinions. Instead, it's like just the most arcane, impenetrable discussion of what sort of things trigger exacting scrutiny versus strict scrutiny, and what the exacting scrutiny standard requires versus a strict scrutiny standard, and what those sub-parts of exacting scrutiny mean, and it's just this really dry legalese.

0:25:22.7 Peter: Yeah, it's weird, because it's not in my view a very technical decision, but it's written as if it were a very technical decision.

0:25:28.1 Michael: Right, it's like drowning you in details, right?

0:25:32.5 Peter: Yeah.

0:25:32.5 Rhiannon: Yeah, yeah, absolutely. The case is really sort of fundamentally uninteresting when you read it. There's no discussion in the opinion about the kind of work these so-called charitable organizations actually do, there's no mention of their advocacy and policy positions, right. Plus on top of that, I personally think the First Amendment is boring. I just think it's a shit area of law, I don't like learning about it, and so I could see how a random member of the public wouldn't pay much attention to this ruling, because it feels so disconnected from any one person's individual daily life.

0:26:13.5 Rhiannon: It's easy to brush off the work the Supreme Court is doing here as technical and specific, it seems like it's not very broadly applicable. If I'm just a layman reading this opinion, I'm like, "Okay, non-profit donor list disclosure? It doesn't seem that important. It doesn't seem like that big of an issue." But I really can't stop thinking about how the Supreme Court is really reshaping our democracy by taking these cases and deciding these cases that are really laying out the rules of engagement for an ultra-wealthy, tiny elite group of people, right?

0:26:54.9 Michael: Yeah.

0:26:55.0 Rhiannon: So just stepping back and evaluating who is it that the Supreme Court is working for here. We have nine little Justices in their stupid secret meetings and their dumb robes shrouded in mystery, deciding a case that literally applies to what? A hundred people in the country? Fifty people? Think realistically about who in this country wants to donate huge amounts of money to organizations that network, organize, advocate around these disgusting, dangerously conservative political positions and political actors, and they don't want their name to be attached to it in any way, not even to be disclosed as sensitive sealed information to one state's Attorney General's Office.

0:27:45.5 Rhiannon: That's who this ruling applies to, that tiny group of people, and that's who the conservatives on the Supreme Court are ruling in favor of here. The Supreme Court takes 100 cases a year out of thousands that get appealed to them, and this year, this is one of the cases they take. We apparently needed the nine smartest lawyers in the country to weigh in on this, and I just think about that devotion of resources, on whose behalf? They're re-making the rules of democracy for the powerful few to do what they want, no matter how it affects the rest of us.

0:28:22.0 Peter: Yeah, to build off that, it's wild how many Roberts Court cases there have been concerning what is essentially speech accessible only to the richest Americans, right?

0:28:31.5 Rhiannon: Yes, yes.

0:28:32.5 Peter: We've covered Citizens United, we've covered Arizona Free Enterprise v. Bennett, we've covered this case now, plus there's a whole number we haven't covered. McCutcheon v. FEC, FEC v. Wisconsin Right to Life, Davis v. FEC, American Tradition Partnership v. Bullock. These are all cases about speech rights, but they're also, again, just functionally inapplicable to almost every single person in this country.

0:28:53.5 Rhiannon: Yes.

0:28:54.8 Peter: So you mentioned devotion of resources, we're talking about hundreds and hundreds of pages of Supreme Court decisions, likely hundreds of thousands of pages of briefing, hours and hours of argument, not to mention the huge deployment of what is almost certainly many tens of millions of dollars in private money to get these cases going.

0:29:12.5 Rhiannon: Absolutely.

0:29:14.2 Peter: All to hash out the rights of a tiny handful of extraordinarily rich and powerful people. In a country of 330 million, the Court has gone to incredible lengths to define and protect the rights of what is literally just a couple of thousand, really.

0:29:30.1 Rhiannon: Yeah, yeah.

0:29:31.0 Michael: Yeah, and I think also in terms of resources expended, I think it's worth noting that just the sheer number of Supreme Court cases themselves, the Court doesn't take that many cases, only like 80 a term, and we're talking about one of these cases every couple years under Roberts. This is like, they have to be economical about what issues they want to tackle in any given term, and it is very regularly rich people trying to shape or steal elections. That's a top priority for the Roberts Court.

0:30:05.3 Rhiannon: Yeah.

0:30:05.4 Peter: Yeah, they've made the First Amendment a tool for the ultra-wealthy, not just to engage in free speech, but to speak on precisely their own terms, right?

0:30:14.8 Michael: Yeah.

0:30:16.1 Peter: So we covered Citizens United where the Court upheld unlimited independent expenditures. We covered Arizona Free Enterprise v. Bennett, where the Court struck down public matching of private campaign fundraising. So, no limitations on their ability to spend, no competition from the public being allowed, and now we're seeing the groundwork being laid for a framework where disclosure is not required, just completely unfettered speech broadcast to millions of people who don't even know who's speaking.

0:30:44.7 Michael: Right.

0:30:45.6 Peter: Right. The Roberts Court protecting him.

0:30:47.2 Rhiannon: Yeah, like this isn't Batman, right? We don't live in a world where we need the billionaires to be anonymous in doing what's best for us, and nobody knows that it's actually Bruce Wayne behind all that bullshit.

0:30:59.1 Peter: That man who just out there fighting Sharia Law.

[laughter]

0:31:05.4 Rhiannon: Yeah, we very much do not need pro-life Batman at this point.

0:31:10.8 Michael: No.

0:31:11.5 Peter: Like the commissioner sees a Halal cart, and he puts up the bat signal.

[laughter]

0:31:20.1 Peter: So I think it might be useful to discuss how the law and this Court treat regular people in comparable circumstances. In 2010, there was a case called Doe v. Reed about the public disclosure of petition signatures. So there is a law in Washington State saying that petition signatures for ballot initiatives could be made public, so if you signed a petition for some ballot initiative, the fact that you did might become public knowledge. And in an 8-1 decision written by John Roberts himself, the Court said that that was fine, that that was constitutional. It said there was generally no real risk of the harassment of the signatories in those situations, so we're all good. Scalia wrote a concurrence talking about public disclosure of the signatures being important for accountability reasons.

0:32:08.9 Rhiannon: Oh!

0:32:10.0 Peter: Like, yeah, very cool to talk about accountability for random people signing a petition and not for billionaires playing puppet master with our entire body of politics.

0:32:18.0 Rhiannon: Right. [chuckle]

0:32:18.1 Michael: That's right. Correct.

0:32:20.8 Rhiannon: That's a different set of rules.

0:32:21.4 Peter: Yeah, I would say. And not directly on point, but there's a concept called retaliatory arrest, when cops arrest someone because they don't like the content of their speech. If you've been to a protest, you might be aware of how widespread this is, and you might also be aware of the fact that cops never get in trouble for it, right? In 2019, in a case called Nieves v. Bartlett, the Court made those cases against cops much harder to prove. So, again, not about disclosure rules, but goes to show how little the Court cares about the ways in which the state suppresses the speech of its normal citizens.

0:32:55.2 Michael: That's right.

0:32:55.3 Rhiannon: Absolutely, absolutely. I also think it's worth making the point here about the scope of this decision. So, John Roberts in the majority opinion, and it is a majority, he's joined by all of the conservative Justices, of course.

0:33:07.8 Michael: They didn't split into two factions of three? That's weird.

[laughter]

0:33:12.5 Rhiannon: Strange.

0:33:13.6 Michael: I thought they were fractured.

0:33:13.7 Rhiannon: I thought it was a 3-3-3 thing.

0:33:15.1 Peter: Bizarre.

0:33:16.3 Rhiannon: Anyways, they joined up, they set their differences aside, and joined together for this decision. And John Roberts, like we said, in the majority opinion, strikes down the entire law and says that these public disclosure requirements are unconstitutional across the board. Now, I think it is noteworthy pointing out the concurrences here, so Alito and Thomas both write separately to concur in the judgment, they agree that this law in California is unconstitutional, but they actually write from a position that is actually left of Roberts here, saying that, sure, this California requirement should be struck down, but across the board, these kinds of requirements are not unconstitutional. And so, just kind of pointing out that many in the media, I think the widespread public understanding of Chief Justice John Roberts is that he's some sort of moderator. I mean, here, he is sort of explicitly to the right of other so-called ultra-conservatives on the Court.

0:34:20.6 Michael: I think the way I think about Roberts is not that he's moderate, it's that he's pragmatic, and so sometimes being pragmatic means like, in his view, let's not try to sabotage the response to the COVID pandemic, right, and that appears moderate. But other times, being pragmatic is, let's hamper the ability of the opposite party from ever winning an election, right. That's pragmatic for conservative ends, and he's pretty radical in that. He does what he thinks is best for their movement, and sometimes that means putting a happy face on it and trying to smooth things over with the public, but oftentimes it's pretty radical stuff.

0:35:03.6 Peter: Yeah, and I think he's just more aggressively corporatist than a large chunk of the conservative bench.

0:35:10.8 Michael: Absolutely.

0:35:11.5 Peter: And I think you're gonna see more of that. As sort of like populist conservatism moves a little bit away from corporations, they're starting to get annoyed that corporations celebrate Pride Month and whatever other fucking whiny shit they have, that they hear from Tucker Carlson about what corporations are doing, and so you're starting to see a little bit of a rift between conservatives and their corporate overlords. And Roberts is sort of firmly in the camp of the corporatists, whereas people like Alito and Thomas are, at least in their own minds, more in the populist Republican parties.

0:35:43.5 Michael: Right, right. John Roberts is the Justice of the organizations like AFP that fund the Tea Party. And Clarence Thomas, husband of Jenny Thomas, is firmly in the Tea Party, right. That's the divide right there between those two.

0:36:02.8 Peter: It's funny that Clarence Thomas has just removed all the regulations from campaign finance, and as a result, his wife is now insane. He's just absorbing information on Facebook, that starts with these weird shady PACs, and now her brain is a molten mess, the universe in perfect harmony.

0:36:30.9 Peter: So as we wrap up, I would like to get a bit prescriptive with respect to how I think the Court should be conceptualizing the speech of the ultra-rich.

0:36:38.0 Rhiannon: Go off, doctor.

0:36:40.0 Peter: Thank you. Didn't we already have a discussion in the past about whether you say thank you to go off? The Roberts Court has gone one way, greasing the gears for the rich to funnel their money into channels of political power. They've sort of christened the privileges of wealth and made them fundamental constitutional rights. And, as you can imagine, we would like to see that undone, but I would like to go further. In defamation law, it's harder for a public figure to bring a defamation case against someone, the bar is higher for them, and the reason for that is that public figures are powerful and our society needs room for criticism of them, and so they should naturally have to endure more aggressive criticism than the rest of us, right.

0:37:26.8 Peter: I would like to see the same logic applied to the speech rights of the ultra-rich. If someone is deploying tens of millions of dollars to influence politics in this country, it's not just that the law shouldn't protect them in doing that, the law should make them feel the burden of doing it, right. Here, the Court is going out of its way to protect them from like fictional potential harassment, but why? The Koch brothers are more powerful than nearly every politician in this country, these people are oligarchs, they should be less protected from scrutiny than someone signing a petition or going outside to protest.

0:38:00.0 Peter: It should be understood that if you want to exert control over millions of people, you are willfully putting yourself in a situation where some people might get mad at you about it.

0:38:10.7 Rhiannon: That's right.

0:38:17.0 Peter: Alright, next week, premium episode on Supreme Court Justice Stephen Breyer. What he's like, what his interests are, maybe a little bit about how he is just a huge fucking idiot, who needs to retire immediately.

0:38:34.2 Michael: Maybe a bullet point on that or two.

0:38:34.7 Rhiannon: A little bit about that.

0:38:37.4 Peter: Just I think of his face and I'm like... He always has like a almost thoughtful pensive look on his face, but you know there's just so little going on and just...

0:38:47.2 Michael: It's just one little hamster on a wheel in his head.

0:38:52.7 Peter: Follow us on twitter @fivefourpod. Subscribe to our Patreon for premium episodes and events, Patreon.com/fivefourpod, all spelled out. Thanks.

0:39:05.2 Michael: Bye-bye.

0:39:07.8 Michael: 5-4 is presented by Prologue Projects. This episode was produced by Rachel Ward, with editorial support from Leon Nayfakh and Andrew Parsons. Our production manager is Percia Verlin. Our artwork is by Teddy Blanks at CHIPS NY, and our theme song is by Spatial Relations.