0:00:00.0 S?: We will hear argument first this morning in case 2112, The federal election commission versus Ted Cruz for Senate.

0:00:13.7 Leon Neyfakh: Hey everyone. This is Leon from Fiasco and prologue projects. On this week's episode of 5-4, the hosts are talking about federal election commission V the Ted Cruz for Senate. It's a bit of a convoluted case, but basically Cruz loaned his campaign $260,000 of his own money purposefully setting up a conflict with existing election law. The law in question prevented campaigns from using post-election donations to pay back loans totalling more than a quarter million dollars.

0:00:47.5 S?: Senator Cruz challenged a campaign finance law that limits the use of post-election funds to reimburse candidates, expenses, and loans. The court ruled that the regulation in question places a burden on core political speech without proper justification.

0:01:07.0 Leon Neyfakh: With a six to three vote from the court, Cruz prevailed in the case, making it possible for donors to give elected officials large amounts of cold, hard cash after they've already won. This is 5-4 podcast about how much the Supreme court sucks.

0:01:27.5 Peter: Welcome to 5-4, where we dissect and analyze the Supreme court cases that have sent our civil liberties into gradual decline like the quality of Netflix's movie library. [laughter] I'm Peter and I'm here with Michael.

0:01:42.3 Michael: Hey everybody. I will say though, I watched the first episode of the new Stranger Thing season. I thought it was pretty good. Some good horror, some good real body horror in it.

0:01:53.3 Peter: Yeah. I'm ahead of you. I finished episode two. I will say I also enjoyed it. I'm very confused at this point about the Stranger Things lore. Like, is this sci-fi, is this horror? What's going on?

0:02:04.7 Michael: Yeah.

0:02:04.9 Peter: I'm enjoying myself. It's fun.

0:02:06.1 Michael: Yeah.

0:02:06.4 Peter: But pretty confused about how this fits into the broader universe. I'm happy to do a whole podcast about that, by the way, I wanna discuss...

0:02:12.6 Michael: Yeah. Let's forget Ted Cruz. [laughter] Rhi is not with us. 0:02:18.0 Peter: No, Rhi Annan is out just drinking, partying, things like that.

0:02:23.3 Michael: She heard that Ted Cruz was gonna get bashed on this. And she was like, "That's my Senator."

0:02:27.9 Peter: Right?

0:02:28.4 Michael: "He represents my interest as a Texan and I love him and I can't be a part of it." I think those were her exact words. [laughter]

0:02:35.5 Peter: Today's episode FEC V Ted Cruz for Senate. This is a case about campaign finance and specifically it is about the ability of candidates to give their campaigns money and then use donor money to pay themselves back after they win. [laughter]

0:03:00.0 Michael: It's so ridiculous.

0:03:01.6 Peter: Yeah. This is gonna be... This one's, it's just gonna be sort of, you're gonna witness Michael and I processing this emotionally in real time. I think.

0:03:11.6 Michael: Yes.

0:03:12.7 Peter: Now, Rhi usually does our background and then I cover the law. But since she's taking the week off to do drugs and respect Ted Cruz, [laughter], I'm gonna do both. And the situation here is actually pretty simple. Political candidates are allowed to give loans to their campaigns and then they can pay themselves back with money from the campaign. But there's a limitation contained within the bipartisan campaign, Finance reform act, AKA McCain, Feingold. If a candidate gives a loan to the campaign, the campaign can pay back any amount with donations received before the election. But the amount it can pay back with donations received after the election is capped at $250,000. So if I'm running for Senate, I can loan my campaign a million dollars, and my campaign can pay me back in full if it uses donations received before the election. But if it tries to pay me back in funds received after the election, the amount that it can pay me back is capped at 250,000. The reason the rule exists is to prevent corruption, right? Because if a donor is giving your campaign money after the election, they are no longer funding your campaign.

0:04:33.2 Michael: Right.

0:04:33.7 Peter: The campaign is over, right? So they're not trying to help a candidate win. They're trying to ingratiate themselves with a candidate who has already won. They know that you don't need the money for like ads or something, right?

0:04:50.3 Michael: Yeah.

0:04:50.5 Peter: So they're essentially just putting money into your pocket. So Congress passed this law in order to at least partially close what is essentially a loophole that allows wealthy donors to pay politicians directly, as long as they time it right. Enter Ted Cruz, Senator from Texas and American freedom fighter.

[laughter]

0:05:13.4 Michael: That's right.

0:05:14.6 Peter: Ted wanted to challenge this law. So he intentionally loaned his campaign $260,000, 10,000 more than the legal maximum, and claimed that the law impacted his ability to have the loan paid back. [laughter]

0:05:29.0 Michael: He's such a little fucking rat creature.

0:05:34.8 Peter: He is. He looks in real life the way that I feel like his soul looks, you know. [laughter]

0:05:39.6 Michael: Right. Yes. Yeah.

0:05:41.6 Peter: So Cruz is claiming that this limitation on the ability of campaigns to pay back candidates with post-election donations violates the first amendment, as you all know, of course in America, money is speech, which means that a candidate loaning their own money to their campaign qualifies as speech under the first amendment. [laughter] Let's just like, accept that as true. [laughter]

0:06:10.7 Michael: It's so obscene. I'm just gonna loan myself some speech. 0:06:14.9 Peter: Yeah. Right.

0:06:15.7 Michael: I'll get that speech paid back maybe later. Yeah.

0:06:18.5 Peter: Loaning some speech to the corporate entity that represents my Senate campaign. 0:06:24.2 Michael: That's right. That's right.

0:06:25.1 Peter: It's the constitution baby. So the argument is that this law reduces the ability of campaigns to pay back their candidate's loans, which reduces the likelihood that a candidate will loan money to their campaign in the first place, which infringes upon their right to free speech, majority opinion here by restricting the sources of funds that campaigns may use to repay candidate loans. Section 304 increases the risk that loans will not be repaid, which in turn inhibits candidates from loaning money to their campaigns in the first place, burdening core speech. So.

[laughter]

0:07:08.8 Peter: Now I wanna backtrack on this 'cause I, this might be like a little bit complicated if you're just processing it for the first time. But again, Ted Cruz loaned his campaign money and his campaign can pay it back. Except if it tries to use funds that were donated after the election was over the amount of those funds it can use is capped at $250,000, that's all we're talking about here.

0:07:37.9 Michael: Yeah. That sentence I had to read it like four times, because I know we've already gone through this, but the way it just like slides from inhibits candidates, from loaning money to their campaigns, comma, burdening core speech.

0:07:57.4 Peter: Core Speech. The core speech of loaning money to your campaign I'm already mad I'm already so fucking mad.

0:08:06.3 Michael: If you like broke this down to like formal logic between those two lines, you'd be like, this is missing. There's something missing here. [laughter] you're missing a big thing here it doesn't go from one thing to the next, like that's, they're not the same thing.

0:08:19.8 Peter: Yeah. So on that point, one of the central oddities of this case is that the court is talking the whole time about the ability of candidates to like fund their own campaign and how important that is under the first amendment. They think that it's crucial to free speech, that a person can donate their own money to their own political campaign. Now, I'm not sure if I agree with that, but either way, as the dissent points out, this isn't really about the ability of candidates to like self fund their campaigns. If you are loaning your campaign money, and then donors are paying you back, that's not self-funding.

0:09:02.1 Michael: No.

0:09:02.4 Peter: That's donor funding with an additional step.

0:09:05.9 Michael: Right right.

[laughter]

0:09:08.3 Peter: It's unbelievable. It's donor funding, but the donors have the added benefit to them of knowing that their donations are going to a winning candidate 'cause they already won.

0:09:19.8 Peter: Right.

0:09:20.1 Michael: Which makes their speech, I think even less of a core political speech even if you accept that money is speech donating to someone who already won and the election is over I don't think this core political speech you're not... [laughter] It's I'm sorry it's so upsetting it's so it's such bullshit.

0:09:44.7 Peter: We will, talk about like the layers here, like the layers of bullshit. 0:09:49.3 Michael: Yes.

0:09:49.3 Peter: It's just layer on layer of like thing that you need to accept for this to be true and there's one layer that we will talk about a little bit more later, but like candidates can charge their own campaign's interest on the loans.

[laughter]

0:10:04.3 Michael: It's like sin.

0:10:05.1 Peter: So like is it first amendment expression? If the transaction is like profitable for you, [laughter] like, oh, just made 9% off my first amendment rights. [laughter]

0:10:20.5 Peter: Are you fucking kidding me? Like the number of ridiculous things that you need to accept to get to a point where like Ted Cruz is charging his own campaign interest to like store his money on its books and that's that's core political speech like are, you Come on.

0:10:40.2 Michael: Getting better returns than he would putting that into like a fucking index fund like...

[laughter]

0:10:48.9 Michael: Just crushing it just absolutely crushing it with donor funding just lining his pockets with donor funding Unbelievable. And the other thing about this is like, so if you go back and read the first case in the 70s that said like money is speech, they make this analogy where they say like, it's one thing to say, two people can both drive as far as they want, but if they only have one gallon of gas and they really can't drive that far at all, and by the same token, you can say, oh yes, speeches, totally you can say whatever you want running for office, but if you don't have money, you can't like, get your speech out there I don't think this analogy really holds, but even if you accept it, it's not true anymore.

0:11:33.5 Michael: It's just not like Peter has 125,000 followers on Twitter. He's paid $0 and he can get a message out if he wanted to run to office he could get almost certainly could get millions upon millions of views on his like announcement if he wanted and it wouldn't cost him a dime, right? Like Bert O'Rourke went to fucking Greg Abbot's press conference and yelled at him and got a ton of free media coverage that didn't cost him anything like earning media, social media, Facebook, Twitter, Instagram, whatever. There are so many ways now to get your message out without having to spend any money and to fundraise, having to spend any money, if it was ever true, it's not anymore it's just not.

0:12:26.6 Peter: So the court is very caught up in this idea that like loaning your campaign money. 0:12:32.0 Michael: Yes.

0:12:32.5 Peter: Is core political speech and then they move on to sort of attacking the law itself and the purpose that the law is trying to serve they make several arguments arguing that this law does not really prevent corruption. They're trying to make the case that the law does not really do anything to like advance the public interest in stemming corruption.

0:12:57.8 Michael: It's worth noting. The Supreme court has identified two things that will allow the government to burden speech. And that is when it's trying to prevent corruption or the appearance of corruption.

0:13:11.8 Peter: Right, right.

0:13:12.8 Michael: 'Cause you don't want people to lose faith and democracy, even if the corruption isn't real, it's just perceived we'll come back to that a little bit later.

0:13:23.9 Peter: So, the majority says, "The government is unable to identify a single case of quid pro-quo corruption in this context." This is their first argument. [laughter] Now, first of all, the whole point of these laws is that this sort of corruption where someone is given money, a politician is given money and favors are exchanged, it's almost impossible to prove that it happened, right? If a Senator elect meets with a donor and says, "Thanks for the donation, what do you want in exchange?", and then they talk openly about it and they do like a movie villain laugh, [laughter] you're never gonna find out about that, right?

0:14:08.3 Michael: No, no.

0:14:08.6 Peter: That's the entire point of these prophylactic laws. We know that this stuff is near impossible to identify and prosecute, so you pass laws that cut off the avenues that allow it to happen. So the fact that you haven't found many instances of this or any instances of this, doesn't really prove much.

0:14:31.0 Michael: Wait, Ted Cruz has an email to donor, BCC'ing his entire staff saying, "Thank you for the donation. [laughter] As promised, in exchange I will be doing X, Y, and Z. I hope to continue these transactions going forward." Yeah, no, sorry that this stuff is hard to prove, but yeah, that's [0:14:51.8] ____.

0:14:51.9 Peter: Yeah. Then the donor replies, "FYI this is violating the law" and Ted Cruz replies,"I know, I am aware."

0:14:58.1 Michael: I know, I love being bribed. [laughter]

0:15:02.5 Peter: But maybe more importantly and more to the point, the government's brief identifies several pretty clear instances of quid pro-quo corruption in this context [laughter] and I'm gonna quote from it in full. Quote, "In Kentucky, two governors loan to their campaign millions of dollars, only to be repaid after the election by contributors seeking no bid contracts." "In Ohio, an Attorney General routed 225 state contracts worth $9.6 million in legal fees to law firms and lawyers who had given him $194,830 after the election to repay personal loans." "In Oregon, contributors who had supported losing candidates before an election contributed to the winning opponents after the election. Oregon political insight is referred to these payments as apology money [laughter] or makeup cash." [laughter] So, okay, so first of all, yes, this has happened and the government's brief site several instances, and the Roberts Court is just like, "This has never happened before." I was like, what the fuck?

0:16:16.8 Michael: Dude in the [0:16:17.1] ____ worst world doesn't look like anything to me. [laughter]

0:16:20.9 Peter: Like... I was like, man, does this really never happened? That's interesting. And then I went and read the government's brief, and they're like here are several instances of it happening. [laughter] What the fuck? Full on, bald faced fucking lie.

0:16:34.8 Michael: Yeah.

0:16:35.3 Peter: And it's not something that slipped by them because the dissent quotes these two. [laughter] John Roberts wrote out, "There are no examples." and the dissent is like, "Here are several examples." and John Roberts read that and was like, "I'm gonna stick with lying about this." [laughter] Yeah.

0:16:50.6 Michael: Yeah, yeah.

0:16:51.9 Peter: And one final thought about this argument that there are no examples. It's interesting that the court is demanding proof here. They're like, well, you can't even prove this has ever happened so how can it be an important state interest, right? If you can't even give examples of this happening. When states are passing voting restrictions based on completely unproven theories of voter fraud...

0:17:15.7 Michael: That's right.

0:17:16.5 Peter: I don't recall the court demanding proof. Fascinating, right? . Fascinating, the dichotomy there.

0:17:23.3 Michael: And the opposite is the case. They have been very clear that even in the absence of voter fraud, voters losing confidence because they perceive voter fraud is enough reason to burden someone's right to exercise their franchise, right? They've straight up said it, but here they're doing the opposite they're saying even in the face of actual examples, right? [laughter] We're just gonna pretend those don't exist and still say yeah, no, this is... This doesn't apply. They're such assholes. I fucking...

0:17:58.1 Michael: The next argument that the majority makes is a doozy and I really need everyone to emotionally brace themselves. Roberts argues that, "This isn't corruption because when you pay back a loan, you're not really making someone richer because they were owed the money anyway." [laughter] I genuinely had to read this a few times to just process it both intellectually and emotionally. It's one of those things that even after doing this podcast for two and a half years, I was like, damn, this is some braising bullshit.

0:18:40.0 Michael: Yes. I'm gonna call up Bank of America and let them know that paying back my mortgage actually won't enrich them, and so, I'm just not gonna do it.

[laughter]

0:18:49.8 Peter: That's interesting. Yeah. [laughter] So unfortunately, we have to take this seriously and dig into it. [laughter] The argument is that donations that are used to repay a

candidate's loans are not like a gift to the candidate under campaign finance law... 0:19:05.6 Michael: Right.

0:19:06.6 Peter: Because when the candidate loans the campaign money, he's owed that money back anyway. How can it be a gift if it's something that you're owed? Now, there's a few counterarguments [chuckle] here. The first, the most common sense counterargument shall we say, and stop me if I'm missing something, being owed money and having money are not the same thing.

[laughter]

0:19:31.2 Michael: No, no. That's an interesting point.

0:19:34.0 Peter: John Roberts, the Chief Justice of the Supreme Court, the number one lawyer [laughter] in America is telling you that being owed money and having money are the same thing.

[laughter]

0:19:47.7 Michael: They are functionally the same. You think if he took a huge bong rip before he came up with this?

[laughter]

0:19:56.4 Peter: This is one of those... This feels like the vestigial tail of law in Economics, you know?

0:20:02.7 Leon Neyfakh: Yeah. Yeah.

0:20:04.4 Peter: But okay, let's flesh this out. If I loaned my campaign, my own campaign, a million dollars, there's a risk that I don't get paid back, right? In fact, campaigns run out of money all the time. And double in fact, there is some research showing that most campaigns fail to repay their candidate debts. So when you loan to a campaign, like with any loan, but perhaps more than your average loan, you are running a considerable risk that you do not see your money again. So when a third party steps in and pays you back that money, that's a gift. That's a favor to you, right? The financial risk that you were incurring by giving the loan has been erased. That is worth money. This is like the most basic economic concept on earth.

[laughter]

0:21:01.2 Michael: It is. It is.

0:21:03.2 Peter: Is it better to not have money or have money? Just...

[chuckle]

0:21:06.1 Michael: I mean, we talked about charging interest, but this is why banks charge interest. They're saying, "Well, it would be better for us to have this money now... "

0:21:18.4 Peter: Right.

0:21:18.6 Michael: "If we're gonna give it to you instead, we need something in return. We need some recompense, because you having the money instead of us is not the same as us having the money. [laughter] And in fact, that injures us financially." That's like the nature of loans.

[laughter]

0:21:38.9 Peter: Incredible.

0:21:40.4 Michael: The way they work.

[laughter]

0:21:44.1 Peter: So okay, let's stick with interest, right? [chuckle] Because they're not just giving their campaign a loan.

0:21:48.7 Michael: No.

0:21:48.9 Peter: They are charging interest to their own campaign, right? That's something they're allowed to do.

0:21:54.9 Michael: Yeah.

0:21:55.8 Peter: So they're not just being paid back the loan that they're owed, but also the interest that they're charging. In Kagan's dissent, she refers to a House member who loaned her campaign $150,000 at 18% interest, [laughter] an amount that is usury in nearly every state.

0:22:22.5 Michael: Yeah.

0:22:23.3 Peter: Illegal in nearly every state. The candidate ultimately collected over $200,000 in interest payments alone on the $150,000 loan. So, a candidate is not simply being paid back what they loaned, they are being paid back plus interest. Which means that if campaign donors cover your loan, they are literally paying you the interest that you charged the campaign straight into your fucking pocket. [laughter] You cannot tell me that that's not like a gift under campaign finance law or whatever.

[chuckle]

0:23:04.1 Michael: Yeah, and look, it's worth saying explicitly that this should just be flat out illegal, like, [chuckle] full stop. You should not be able to charge your own political campaign interest on a loan. You shouldn't. [laughter] What are we talking about here? When you loan your campaign money, you're loaning money to the legal entity created with the sole purpose of getting you elected. And then you are charging that entity interest, which your donors pay back to you? This is just a way to funnel donor money to candidate pockets.

0:23:41.3 Peter: Right.

0:23:41.5 Michael: To elected politician pockets, 'cause they're not doing this for people who lose. [laughter]

0:23:47.6 Peter: Right. And it's such an obvious point. There's a quote from the Opinion, and they're trying to illustrate this point that paying back loans doesn't do anything. It's not a gift. They say, "If the candidate did not have the money to buy a car before he made the loan to his campaign, repayment of the loan would not change that in any way." So, first of all, wrong, wrong, because if they fucking [laughter] paid interest on a loan, then you have more money than you started with. So, maybe you can afford a car now.

0:24:17.8 Michael: Yes.

0:24:19.1 Peter: Second of all, those aren't the operative moments in time to say like, "Oh, if he didn't have the money before he made the loan, he won't have it after it's paid back." Even taking interest out of the equation, that's not the question, because after you make the loan... [laughter] What about after you make the loan? Then you have less money than before you made the loan.

[laughter]

0:24:46.1 Michael: In fact, maybe you could buy a car, but then you made the loan and could no longer afford a new car.

0:24:53.4 Peter: Right.

0:24:54.2 Michael: But getting the loan repaid means like, "Oh yeah, maybe I will get that Audi. Yeah, [laughter] why not treat myself?"

[laughter]

0:25:05.0 Peter: I mean, I don't even know... You're reading this stuff, and it's like okay, this is just mask off, right? Like, this is a group of people who have lost the need or desire to give you a good reason for what they're doing. That's all there is to it here. It just feels insulting to read. Like, "How dare you? I've been trying to read your opinion, and you're treating me like I'm an asshole."

[laughter]

0:25:34.9 Michael: I could only read this thing like, two or three pages at a time 'cause I was just losing it. Like, every few paragraphs, there's something that would get me so upset, [laughter] so angry.

0:25:43.2 Peter: Right. Right. And Sotomayor, in oral argument, asked a question that I thought was just devastating [chuckle] to the Cruz campaign's argument. She just says like...

0:25:58.7 S?: We know that after an election that your contribution as a contributor is not being used to promote a candidate, because the candidate has already won. So it's not going to be an expenditure to promote your speech in electing the candidate.

[laughter]

0:26:17.3 Peter: Why would someone donate to a campaign after the election is over?

0:26:22.2 S?: Why do you give after an election to a candidate who's not gonna spend it on getting elected? He's gonna spend it on something in the past, but certainly nothing with respect to the actual election and his getting his post. And to me, that's a natural quid pro quo. I'm giving because I wanna draw my attention to you.

0:26:45.8 Peter: Like, literally, what's the point? If you donate to a campaign in the middle of an election, everyone knows what you're trying to do. You're trying to increase the chance that they win the election.

0:26:58.1 Michael: Right.

0:26:58.1 Peter: But if the election is over, what are you trying to do? And seeing as the obvious reason is you're trying to pay back the candidate's loans to curry favor with the candidate and there's no other plausible explanation, the fucking Cruz campaign lawyer just like, was like... Hemmed and hawed. [laughter] And did not provide a solid answer. And I'm sorry, but if the answer to that, which I think... This has to be the reality. If the answer to that question is, well, it's just to pay down a campaign's debts, that's why donors are doing that.

0:27:38.3 Michael: Yeah.

0:27:38.9 Peter: Then I don't think of that is like expressive in any way. Right? 0:27:43.4 Michael: No, not at all.

0:27:43.8 Peter: If it's like, oh my homie Ted Cruz is out $200,000, I'm gonna give him a few grand to put a dent in that. That's not like expression. That's not first amendment speech.

0:27:52.6 Michael: No. It's not paying for ads. The ads have already been paid for. 0:27:56.1 Peter: Right. Right.

0:27:56.6 Michael: They're done.

0:27:57.3 Peter: And if it's not expressive, that means that you could ban it entirely. 0:28:04.5 Michael: Yeah.

0:28:04.7 Peter: And if you could ban it entirely, why can't you just cap it at $250,000? These are all very fundamental questions that go extremely not addressed [chuckle] in the majority opinion.

0:28:19.7 Michael: No. No. These questions get answered between commas, between sentences as assumptions, right? They're never actually explicitly discussed, it's just, well, of course it's expressive because money is speech and loaning money is speech and paying back a loan is speech.

0:28:41.2 Peter: Right.

[laughter]

0:28:41.3 Michael: Apparently...

0:28:41.9 Peter: Of course.

0:28:42.1 Michael: Yeah, of course, of course, of course. Why would we even need to make this case? It's just so obvious. Another beaut in this opinion...

[laughter]

0:28:50.0 Peter: Yeah. Believe it or not, the argument we just went over, it was not the bleakest argument that the court makes.

[laughter]

0:28:55.7 Michael: Not at all. I'm just gonna read this from the Opinion. Our cases make clear that the government may not seek to limit the appearance of mere influence or access. As we've explained, influence and access embody a central feature of democracy that constituents support candidates who share their beliefs and interests and candidates who are elected can be expected to be responsive to those concerns.

0:29:25.1 Peter: It's a central feature of democracy...

0:29:28.0 Michael: A central...

0:29:29.4 Peter: That people can buy influence in politics.

0:29:32.5 Michael: Yes.

0:29:32.6 Peter: That is the holding [chuckle] of the Supreme court.

0:29:37.0 Michael: Yes. Yes. A central feature that you must be able to give money to candidates in exchange for influence over those candidates.

0:29:49.5 Peter: In exchange for... Literally purchasing influence. Like, we're a couple of lefty podcasters. [laughter] So when you hear us say like, oh, they're purchasing influence, you might think that that's our lefty spin on it.

0:30:00.6 Michael: That is the word.

[laughter]

0:30:01.7 Peter: No, dude. That's what they fucking said.

[laughter]

0:30:05.4 Michael: Yes.

0:30:06.5 Peter: They said that a central feature of democracy is purchasing with money, [laughter] influence and access in politics. Mask off, [chuckle] I'm telling you, it's mask off.

0:30:16.2 Michael: Yeah. I wanna contrast this with some things the Conservatives have had held are not central... I'm sorry. I'm stuttering because I'm so upset. [laughter] Here are some things that are not central features of our democracy. This is a line from Bush v. Gore. The individual citizen has no federal constitutional right to vote for electors for the president of the United States.

[laughter]

0:30:43.2 Peter: Voting.

0:30:44.1 Michael: There's something that's not a central [laughter] feature of our democracy, the right to vote for president. Here's another one from Rucho v. Common Cause. More fundamentally vote dilution in the one person one vote case refers to the idea that each vote must carry equal weight. In other words, each representative must be accountable to approximately the same number of constituents. That requirement does not extend to political parties. It does not mean that each party must be influential in proportion to its number of supporters. So here's something else that's not central to our democracy. The majority of voters getting to see their will reflected...

0:31:24.0 Peter: Right. Right.

0:31:25.1 Michael: In the government.

0:31:25.9 Peter: Literally, government reflecting the will of voters, [laughter] not central to democracy.

0:31:32.5 Michael: Not central.

0:31:33.5 Peter: Being able to purchase influence central feature of democracy, literally democracy as a transaction. You cannot make this shit up. There might not be a better summation of this court's poisonous impact on American democracy than Robert's explicitly stating that purchasing access and influence is a central feature of democracy. First of all, this should be obvious. But the entire point of buying influence is that you are paying to disproportionately influence politicians.

[laughter]

0:32:12.8 Michael: Right.

0:32:13.8 Peter: Democracy is predicated on the idea that people are equally represented. That is the whole point. So like this very plainly violates the foundational promise of democratic government, and further [laughter] this sort of just like gives the game up.

0:32:28.7 Michael: It does.

0:32:29.2 Peter: They spend half of this Opinion just saying that like, this is not actually corruption, right? This is... That's just loans and repayment of loans. Then they say that actually using money to influence politicians, well, that's just democracy.

0:32:45.2 Michael: That's democracy.

0:32:46.5 Peter: And at that point you have to ask yourself not just what do they think democracy is, [chuckle] but what do they think corruption is, right?

0:32:52.6 Michael: Yeah. Well, [laughter] I'll get into that later too.

[laughter]

0:32:55.4 Peter: They focus on the term quid pro quo. Right?

0:32:58.2 Michael: Yeah.

0:32:58.3 Peter: Which literally means something for something. In other words, to prove corruption, you have to show that a politician gave you a specific favor in exchange for money. But what's the difference between buying influence and buying favors? Like, what does it mean to buy influence, if not that you are paying in order to get something in return from the politician? Like, is that not what influence is?

0:33:28.1 Michael: Hey Peter...

0:33:28.3 Peter: You're gonna correct me?

0:33:28.9 Michael: The line between quid pro quo corruption [laughter] and general influence may seem vague at times, but the distinction must be respected in order to safeguard basic first Amendment rights. [chuckle] I'm glad this distinction that you have not described or explained...

0:33:49.3 Peter: Right.

0:33:51.2 Michael: Is legally meaningful and must be respected. Yeah.

0:33:54.0 Peter: This entire case, and really the entire line of campaign finance jurisprudence from this court is predicated on pretending that these are different things, right?

0:34:04.1 Michael: Yes.

0:34:04.5 Peter: That there's a difference between quid pro quo, corruption, and just like the general buying of influence.

0:34:10.9 Michael: Right.

0:34:11.7 Peter: But they're very plainly not distinct.

0:34:14.0 Michael: Yeah.

0:34:15.3 Peter: So what you get at the end of the day is Robert saying, "Well, no one has shown that quid pro quo corruption is happening here," and then in the next breath, essentially admitting that, that is what's happening here...

0:34:27.8 Michael: It happens all the time.

0:34:28.9 Peter: But it's just that he thinks it's great, right?

[chuckle]

0:34:29.7 Michael: Yeah. Yes. Their vision of democracy, if you look at their voting rights and campaign finance cases, it's pretty clear, and that is a minority party taking power and then taking money in order to decide how to exercise that power. That's democracy to them. If you think democracy is something else like, I don't know, majority rule with minority rights, that's some fourth grade shit. Welcome to the real world.

[laughter]

0:35:02.5 Peter: Yeah.

[laughter]

0:35:05.6 Michael: Welcome to John Roberts' America.

0:35:06.9 Peter: There are so many little things to talk about here, and so many tangents we could go into, [chuckle] but one of the things the government points out in their brief is that winning campaigns have their debt paid off by donors at a much higher rate than losing campaigns.

0:35:27.1 Michael: Wow.

0:35:28.9 Peter: I wonder why that is, fascinating, right?

[chuckle]

0:35:30.2 Michael: Yeah. Yeah. You know, you think it's just like rah-rah, rooting for my team or whatever, it's like, well, they would be at equal rates. The fans stay and applaud their team at the end of a losing playoff game to let them know they had a good season, right?

0:35:45.8 Peter: Right. The dissent also cites a study that showed that candidates who had campaign debt were more likely to switch their votes in Congress after receiving donations.

[laughter]

0:36:00.3 Michael: Roberts calls that meager, merger evidence.

[laughter]

0:36:04.8 Peter: Yeah, right. Meager evidence. The whole point behind this law is like, well, there's a real prospect for corruption here, right? You essentially have donors paying money directly into candidate pockets after the election is over. Looks a lot like corruption, we should be concerned. And then, you have actual instances of it happening, that the Roberts court literally says, aren't there. [chuckle] You have research and data showing a bunch of suspicious activity, right? Like, winning campaigns, getting more money, etcetera. And then the Roberts' Court just brushes that off, the majority is like, "Yeah, that's nothing," you know? It's like, what exactly are they looking for here? What would prove the government's case here in their minds?

0:36:54.5 Michael: Whew.

[laughter]

0:36:56.2 Peter: Oh God. So, I think maybe it's time to talk hypotheticals.

0:37:02.0 Michael: Yeah.

0:37:02.1 Peter: What could you do under the Roberts' court rule, and our brilliant producer, Rachel, when we were talking about this case...

[chuckle]

0:37:07.9 Michael: Yeah.

0:37:08.3 Peter: She thought of something.

[laughter]

0:37:11.0 Michael: Really good.

0:37:11.5 Peter: She said, "Couldn't you go to a bank, take a loan out at a low interest rate, loan it to your campaign, at a higher interest rate, and just capture that delta."

0:37:23.8 Michael: Yeah run arbitrage.

0:37:25.8 Peter: Using the backstop of post-election donor funds. Literally running arbitrage between your bank and your fucking campaign, your own campaign. This is the most transparently corrupt scheme I could ever fucking think of, and it's totally legal now. [chuckle]

0:37:44.0 Michael: Yes, yes, yeah.

0:37:45.4 Peter: Also worth noting was mostly illegal before, [chuckle] I mean, it's just fucking crazy.

0:37:49.8 Michael: Before you could just cap the amount that would get paid, now it's just like go fucking wild.

0:37:55.5 Peter: Full on just going to your bank and being like, "Yo, I got a scam for you, bro. [chuckle] I got fucking donors that'll pay me all the money I want after the election's over, you give it to me at 6%. I'm gonna get it from them at 15%, I'm gonna bank that 9%, you take that 6%, and we'll go our separate ways." And the bank's like "Fuck, yeah."

0:38:18.4 Michael: Yeah, yeah, yeah. And maybe when some regulations come up, you don't like, maybe I'll be pretty friendly then too. [laughter]

0:38:23.6 Peter: Yeah... Who knows?

0:38:24.2 Michael: After all, you're bank rolling the scheme for me. So, thanks. [laughter] Unbelievable. Yeah, fucking in the wrong political party.

0:38:34.0 Peter: Oh man, we're in hell dude.

[laughter]

0:38:36.2 Peter: I think that you can probably tell by our tone that, this one really broke us. This one is truly outrageous in a way that's hard to articulate, in the sense that every argument they make is so transparently bad faith. A lot of these cases we do are sort of like, coming from places of just markedly different values on certain subjects. And I think their values are fucking disgusting, and so we'll argue on that basis. But this is one where it's like You know that they don't believe this shit.

0:39:13.0 Michael: Yeah.

0:39:13.8 Peter: They are fucking lying to your face.

0:39:15.6 Michael: Yeah.

0:39:16.2 Peter: In several different, specific ways, and you're just meant to eat it. It's genuinely insulting to read, it really is. I said it before, but I'll say it again, it is. The dissent, Kagan, joined by the other libs, Sotomayor and Breyer.

[chuckle]

0:39:33.8 Peter: This is Kagan in her element, right? She's...

0:39:36.4 Michael: Yeah.

0:39:36.6 Peter: Making the case for good governance, appealing to common sense Democratic norms. The tone of the dissent is sort of just incredulous, sensible enough reaction, in many ways, I think we are demonstrating some incredulousness ourselves, but it still feels like something is missing here, something that more directly calls out the intentionality of what Roberts is doing here.

0:40:01.9 Michael: Yeah.

0:40:02.5 Peter: Part of it's the fact that the Justices have to pretend that law is nonpartisan, and so Kagan will never say, "Hey, the removal of campaign finance barriers is something that predominantly helps Republicans, and it's being pushed predominantly by Republicans and everyone in the majority is a Republican."

0:40:26.0 Michael: Yeah.

0:40:26.3 Peter: In fact, Brett Kavanaugh has done legal work for Republican presidential candidates, and Clarence Thomas's wife is functionally a Republican political operative whose income as an operative he tried for many years to hide from the public. And in fact, his wife openly endorsed the 2016 presidential campaign of Ted Cruz, a party to this case, and maybe that should all factor in to how you view this opinion. So you have Kagan acting incredulous, but what is incredulousness if not a person asking why and struggling to answer, right?

0:41:11.5 Michael: Yeah.

0:41:11.6 Peter: Why would six supposedly intelligent people reach these bat-shit conclusions?

[chuckle]

0:41:16.3 Peter: Why would they green-light transparent corruption?

0:41:20.9 Michael: How could they possibly be so stupid? [laughter]

0:41:24.1 Peter: Right? Why would they say that buying influence is central to democracy? Kagan asks the question, but she doesn't answer it and I think that does us all a disservice.

0:41:35.7 Michael: I think that's right.

0:41:36.3 Peter: I don't expect Kagan to do it, I don't expect anyone on the court to do it, it doesn't feel like we're there yet. [chuckle]

0:41:42.1 Michael: Yeah.

0:41:43.0 Peter: But that's what's sort of missing here. Doing a blow by blow refutation of a series of incredibly bad faith arguments, like yes, you're gonna in some ways win the arguments argument, she's right on the merits across several different discrete arguments, but she doesn't ever get to the heart of it.

0:42:05.0 Michael: Yeah.

0:42:05.9 Peter: She doesn't say these are bad faith actors, she doesn't lay that groundwork. And it's not groundwork that you can't lay, this is like what Scalia did, right? When...

0:42:15.6 Michael: Yeah.

0:42:15.7 Peter: He was talking about gay rights or whatever, he was like, "You people are all pawns of a cultural and political movement... "

0:42:25.5 Michael: Yeah.

0:42:26.4 Peter: "And I'm the real lawyer."

0:42:27.5 Michael: Literally he said that.

0:42:28.3 Peter: Yeah. No, absolutely. He said it.

0:42:30.2 Michael: Yeah.

0:42:30.2 Michael: And so I think that's what's missing from the dissent, and again, it's not something that I would be crossing my fingers hoping that Kagan's gonna say anytime soon, but that's what she lacks.

0:42:40.0 Michael: Yeah. And Kagan and Sotomayor for better or worse feel like they have to work with these people, and maybe in some cases they'll be able to convince Roberts, or Gorsuch, or Kavanaugh to join them, and so they have to be tactful and not say this stuff, but Steven fucking Breyer is retiring in like three weeks.

[laughter]

0:43:08.8 Michael: Go out fucking guns blazing man, grow some fucking balls. Even...

0:43:15.2 Peter: Didn't he write a whole book about how his interpretation of the law was a framework that furthers democracy?

0:43:22.8 Michael: Yes. Active Liberty.

0:43:24.7 Peter: Active Liberty.

0:43:25.7 Michael: About how you should interpret the constitution to promote democracy, yes. Fucking A. The other thing that... [chuckle] The other thing that's missing is Clarence Thomas, if he were on the other side, if he were a liberal, would be writing his own dissent saying, "I joined my colleagues because they correctly interpret the law in our precedence as they currently stand, but it's to my belief that we should revisit those precedents, that Citizens United was wrongly decided, that Buckley v Valeo was wrongly decided, that money is not speech, that corporations don't have speech rights period. Blah, blah, blah." Down the line, there needs to be someone doing that.

0:44:11.1 Peter: Yeah.

0:44:11.4 Michael: There needs to be, and there isn't. Even Sotomayor, who we are very fond of, is not doing that, at least not in this case.

0:44:20.5 Michael: Yeah. And this is... I said it's Kagan's wheelhouse for a reason, she really is the person on cases that sort of affect democratic processes.

0:44:31.7 Michael: Yeah.

0:44:32.2 Peter: Sotomayor has got a lot of bright spots, but this isn't really one of them.

0:44:35.5 Michael: Yeah. The stuff we're saying is all the more necessary because like the Roberts court has just this long history... If you follow our podcast I'm sure you're familiar with it by now, a long history of striking down campaign finance regulations and they fucking list them.

0:44:53.4 Michael: This site, this string site they do is one of the most surreal fucking things I've ever read in a Supreme Court decision.

0:45:00.3 Michael: Yeah. This is... So I feel like we're reading a lot from this opinion, but that's just because it's so bat-shit.

0:45:05.5 Peter: Yeah.

0:45:05.8 Michael: So this is another one. For example, we have denied attempts to reduce the amount of money in politics. [laughter] To level electoral opportunities by equalizing candidate resources, and to limit the general influence a contributor may have over an elected official. However, [0:45:27.5] ____.

[laughter]

0:45:28.9 Peter: We're...

0:45:29.8 Michael: Maybe the First Amendment prohibits such attempts to tamper with the right of citizens to choose who shall govern them.

0:45:37.2 Peter: You could literally use the sentence to critique of them. We have denied attempts to reduce the amount of money in politics see McCutchin...

[laughter]

0:45:46.1 Peter: To level electoral opportunities by equalizing candidate resources, see Bennett. And to limit the general influence a contributor may have over an elected official see Citizens United that reads like a critique. That's fucking crazy.

0:46:00.6 Michael: Yeah. Do you know what it reminded me of is the scene in The Big Short where Steve Carell goes down to Miami, and he's talking to the mortgage brokers, and they're like, "Yeah, we give out ninja loans we are giving out."

0:46:11.8 S?: If I write a loan on Friday afternoon. Big Bank is gonna buy it by Monday lunch. 0:46:16.9 Michael: He turns to his buddies that, and he's like.

0:46:19.0 S?: Why are they confessing?

0:46:20.6 S?: They're not confessing. They're bragging.

0:46:22.5 S?: They're Bragging. [laughter]

0:46:24.8 Michael: Yeah. Exactly, that's exactly...

0:46:30.0 Peter: Micheal, I'm so glad you said that.

0:46:30.4 Michael: Yes.

0:46:30.9 Peter: It almost reminded me of a villain listing off the awful things that they had done. I've killed your mother. I've killed your father, and now I'm going to kill you. 0:46:42.2 Michael: Yes yes oh man.

[laughter]

0:46:44.2 Peter: Oh God, man. It's so weak, alright.

[laughter]

0:46:50.8 Michael: So the thing is, like I mentioned earlier, preventing corruption isn't technically the only interest the government can pursue, when regulating campaign finance and campaign speech. They also can seek to prevent the appearance of corruption.

0:47:11.0 Peter: Right.

0:47:11.7 Michael: We compared compare it to voter fraud. And the idea that voters will lose confidence in the government, and that's bad. And so that's something the government can try to address.

0:47:21.6 Peter: Yeah.

0:47:22.3 Michael: And the court doesn't even acknowledge this. They say, "That's an interest the government can pursue." But then it's not...

0:47:30.0 Peter: It's not part of the analysis at all.

0:47:31.6 Michael: It's not contemplated. But then if you look at what public opinion surveys, so that people think Congress is corrupt. They do one survey in 2018 fence found 75% of respondents including 66% of Republicans, 85% of Democrats back a constitutional amendment, overturning Citizens United. Congressional approval is in the fucking toilet. It's in the 20s. Both parties, SCOTUS approval is in the fucking toilet. It's below 40%, for the first time, since they've been tracking approval of the Supreme Court. Like everybody thinks this system is fucking broken. The most successful political campaigns are the ones who run against it talking about how broken it is.

0:48:19.4 Peter: Right. They couldn't possibly reckon with what public opinion about congressional corruption actually looks like.

0:48:27.8 Michael: Right, because it would justify all the regulations they've stripped struck down, and then some justify far more aggressive action. And they don't want that because they don't care about corruption or the appearance of corruption. They care about the ability of wealthy people to buy influence. And I know that because they said it explicitly.

0:48:53.3 Peter: Right, right, right.

0:48:53.9 Michael: In this opinion.

[laughter]

0:48:54.0 Peter: I think that part of our exasperation here is a product of what I think we've referred to before on this podcast as the stupid onion. One layer after another of dumb shit. The number of layers of bullshit that you need to peel back to get to this point. It's unreal. So you have money being speech, right? You have the legal entity of the campaign being separate from the candidate itself...

0:49:25.5 Michael: Right.

0:49:25.9 Peter: You have donating to that campaign entity, being speech, Loaning money to your own campaign entity, being speech. Charging interest on a loan to your own campaign as free speech. Donating to campaigns after they are over as free speech.

0:49:53.9 Michael: In order to pay the interests of those loans.

0:49:57.3 Peter: In order to pay interest on loans from the candidate to his own campaign. And then finally, finally, you have the idea that limitations on the ability of donors after an election is over to donate money to that completed campaign in order to refund the candidate his loan. You cannot cap that because it impacts the candidates candidate's free speech.

0:50:35.4 Michael: The candidates.

0:50:37.4 Peter: The candidates, you are so many layers of complete nonsense deep, that it's almost hard to articulate where exactly this goes wrong. This shit went wrong in the 70s. It took a hard turn when they said money is speech. And everything since then has been a house of cards. And I think what's interesting about this case, is that it's very clear from the reasoning, which we've pointed out, is just I mean just nonsense, nonsense.

[laughter]

0:51:17.4 Michael: I feel like I was disassociated while you were going down on layers there 'Cause I was like... [laughter]

0:51:23.3 Peter: You Can see by where the reasoning has gone, right?

0:51:26.7 Michael: Yeah.

0:51:26.7 Peter: The amount of bullshit that they need to justify the place that they have gotten to it just reveals right exactly how far off base they are right now, they are in a dark place.

0:51:43.9 Michael: Yes.

0:51:44.5 Peter: It's one thing to be like, money is speech, it's another to say, well, independent expenditures by third parties are unlimited and that's speech. Now we're at a place where fucking donors are funneling money into candidate's pockets to pay them back interest on their own loans on their own campaigns and the court's like...

0:52:06.8 Michael: That's speech.

0:52:07.4 Peter: Yeah that's speech too.

[laughter]

0:52:08.7 Michael: That's that speech too protected by the first amendment unbelievable and so this is like, this is a thought I had while we were doing this case while we were prepping for this. And I really think like there's so much awful that the court is doing right now Dobbs, overturning

Roe V. Wade is set to come down all the gun right shit. They're certainly gonna take a hack at the administrative state and that's gonna be awful. But I really do think that the stuff that's gonna define this era looking back will be their campaign finance and election related decisions.

0:52:47.7 Peter: Right.

0:52:48.5 Michael: Just like the early 19OOs, we call it the Lochner era for one of the more egregious cases of the court striking down worker friendly regulations. I think this is gonna be the citizens United era. I think that's how we're gonna look back at this. As when arch conservative court went wild disassembling our democracy gutting the voting rights act, overturning a fucking election, or handing it to George Bush, the shit currently coming down the pipe, the independent state legislature theory that I'm sure we will be telling you about [chuckle] Someday soon and all the obscene things they've done with campaign finance. This to me is the defining issue of this era it's like the, a real like end of democracy shit. And to make that one last quote, one last quote, as this is from Roberts, essentially all the government's evidence concerns the sort of "Corruption," loosely conceived that we have repeatedly explained it is not legitimately regulated under the first amendment, which is literally literally saying, yeah, some corruption can be regulated, but light corruption, that's free speech.

[laughter]

0:54:23.8 Michael: That's a go wild with the light corruption, the "corruption" that shit's off the game.

0:54:30.7 Peter: Oh, God, what's really frustrating about this is that Democrats are just like not taking advantage.

0:54:37.1 Michael: That's bizarre.

0:54:37.8 Peter: Of how unpopular these cases are or would be if some light was being shined on them. Citizens United is a notably unpopular case. A case that congressional candidates have like built campaigns around saying that case sucks.

0:54:54.9 Michael: Fucking Bernie Sanders, that was a big part of his appeal in 2016.

0:54:58.7 Peter: And there's a degree to which like Democrats have allowed this shit to get like both sides, right? Like corruption in Congress which party's guilty of it. Oh, it's all of them [chuckle]

0:55:11.6 Michael: Yeah. I mean literally like Menendez in New Jersey is a Dem and...

0:55:15.8 Peter: Right I mean, look, I don't wanna make the case that like there's no corrupt Democrats or even that like corruption isn't a problem in the democratic party or anything like that, all I'll say is that there is one party markedly benefiting from this and it's the Republicans.

0:55:31.3 Michael: Yes yeah.

0:55:31.6 Peter: The fucking RNC filed an Amicus brief. In this case, they filed a brief in support of Ted Cruz. [laughter] If the Dems really thought that corruption benefited them, they might have filed a brief too, maybe greased the wheels.

0:55:51.5 Michael: Yeah.

0:55:51.9 Peter: No, the free flow of money to this degree in politics, benefits Republicans, because Republicans have access to large money in a way that Democrats currently don't and you see fucking Biden talking about this case. No [chuckle] I mean, it they don't, they have no idea how to approach this stuff it's so fucking frustrating, it's so fucking frustrating.

0:56:14.0 Michael: Compared to how conservatives responded to Brown V Board and Roe V. Wade and all those great liberal victories they fucking mobilized immediately, but citizens United Shelby county, Bush V Gore, just shrugged our shoulders. Bernie is like the only high profile Democrat. Well, he's not even a Democrat, but he was running as a Democrat at the time.

0:56:39.5 Peter: Friend of the Democratic party yeah.

0:56:40.5 Michael: I mean, I'm not some huge Bernie stan, but he was like, he was actually talking about it and saying like, I will appoint justices who will overturn citizens United. And I feel like that's good energy to have. I feel like that there's a constituency for that. I think it's not just because the decision is unpopular, but because it sort of signals that you don't like money and politics.

0:57:03.8 Peter: Right.

0:57:04.9 Michael: Speaks to deeper values.

0:57:06.0 Peter: And it has all these like stars aligning, like it's very politically unpopular. There's a very clear and coherent legal argument backing it up. So like you could mobilize lefty lawyer types, you know, like you could mobilize nonprofits in the liberal legal world to fight these fights. You have everything you need and I know that like...

0:57:31.3 Peter: There are people who are listening, who are thinking, well, the Democrats really like money in politics. And I think there's some truth to that in the sense that there are some like rich Democrats or Democrats who are aligned with the ultra wealthy, who benefit from it. But net net, this benefits Republicans way more. And Democrats know that, like, I don't think that someone like Pelosi gives a shit about money in politics as like a moral matter [laughter]

0:58:00.0 Michael: Right.

0:58:00.4 Peter: But I think that she knows that it's bad for Dems, you know, all in. And that's why the Republican national committee filed an Amicus brief here.

0:58:08.3 Michael: Right.

0:58:08.3 Peter: In support of Ted Cruz, the DNC stayed out of it. Of course. It's a situation where one party stands to benefit much more. And when they're trying to build a sort of anti-democratic future, this stuff is very important, right? They need to be in disproportionate control in various ways for their sort of project to work, right. You need to suppress voting rights to maintain your power within legislatures across the country.

0:58:39.9 Michael: Right.

0:58:40.1 Peter: And you need to maintain the disproportionate ability to speak quote on quote, during elections, because, you know, if it wasn't disproportionate, you would be, you know, the volume would be much louder on the left, right?

0:58:53.5 Michael: Right.

0:58:53.7 Peter: There are just more Democrats on the center left, I should say, there are just more Democrats than Republicans in the country. And that's that this is, you know, all part of that same anti-democratic project. And it's very important to Republicans and, you know, fucking Joe Biden. Doesn't talk about it.

0:59:11.7 Michael: Yeah. It's such a simple pitch, too. Money isn't speech corporations, aren't people and the wealthy don't have a stronger claim to democracy than the rest of you. And it's obscene that anybody thinks the contrary and I am gonna stand up for your rights in your speech come on...

0:59:37.0 Peter: The people see this for what it is too. Like, you barely need to explain it.

0:59:40.5 Michael: I'm not a political consultant or anything, but come the fuck on man. [laughter] Like, everybody thinks Washington is broken and incorrect.

0:59:48.1 Peter: Well right.

0:59:48.9 Michael: Like everybody thinks that. And with good reason, there's billions of dollars pouring into our elections.

0:59:54.3 Peter: Right.

0:59:54.5 Michael: It's...

0:59:54.7 Peter: I mean, the, and the amount, like the amount of money spent in 2020 was double what was spent in 2016. It went from $7 billion to $14 billion So like...

1:00:04.5 Michael: Jesus Christ.

1:00:05.9 Peter: This shit is ratcheting up.

1:00:07.4 Michael: I remember the, I think it was 2008.

1:00:09.9 Peter: When it first crossed a billion...

1:00:11.1 Michael: When it first crossed a billion and everybody was like, oh shit, the first election over a billion dollars. That is fucking Trump change.

1:00:19.5 Peter: Right.

1:00:19.6 Michael: That's like...

1:00:20.4 Michael: Right.

1:00:21.0 Leon Neyfakh: One primary. If that...

1:00:23.1 Peter: You know, it it's one of those things that is that it's this issue that has universal appeal. You have the court being like, yeah, buying influence is democracy. Right? These are like headline.

1:00:36.4 Michael: Voting, not democracy. [laughter] Buying influence is democracy.

1:00:40.9 Peter: Right. The headlines are writing themselves. Right. And who's a party to this case, democratic party and me, Ted Cruz, fucking put his name all over it. Right. Like how is it that he can just put his name on this and be like, yeah, this is the case I'm bringing. And the Democrats, aren't just fucking tying it around his neck. It's it's wild. I mean, this is a guy who's like a credible 2024 contender. And they're letting him just like appeal corruption up to the Supreme court, [laughter] without making any fuss about it. It's fucking crazy.

1:01:17.3 Michael: Yeah. Yeah. Even if it wasn't popular, you still have to stand for something, right? Like you still have to fight for something when you're a political party. Like you still need values that you are willing to sacrifice for. Right? When you're in power, you have to be able to do what you think is right. Even if it's not popular. Even if it means losing the next election cycle, 'cause power is fleeting and you need to make the most of it. I think this's good politics, but regardless it's necessary policy. It's necessary.

1:01:54.3 Peter: Maybe even an effective way to give the democratic party like a brand again. If there's anything that you could say that the democratic party stands for now and you do have to [laughter] you do have to search. It's something like the idea of a broad based egalitarian society. Right. It's a big tent party, at least aesthetically, at least ostensibly embraces, a, a lot of diversity, a broad group of people and this fits right into that. Right. The idea that we are clamping down on money in politics, because we are a party of the people and money in politics drowns out their voices. It makes perfect sense.

1:02:37.2 Michael: Yes.

1:02:37.6 Peter: It may and instead they're running with whatever, like trying to combat inflation [laughter]

1:02:43.4 Michael: As if like that was like the fucking week after the Dobbs opinion leaked and everybody was like, oh shit, they're gonna overturn Roe V. Wade. It was all like Ukraine and inflation, baby Ukraine and inflation.

1:02:58.9 Peter: Right right.

1:03:00.6 Leon Neyfakh: They, they had one vote and then were like, oh, vote in November. I guess [laughter] like, couldn't codify Roe. V Wade, I guess that's it.

1:03:08.3 Peter: Right. And I know we're gonna get increasingly bleak here, but the calls to like, just vote, get out there and vote like as this shit happens, right. As they continuously make it more difficult to vote as they water down the democratic process in every way possible. If your only response to that is like, Ooh, well you better vote. I don't know what to tell you, but like people are losing faith in the system that you are telling them to engage in.

1:03:36.9 Michael: Right.

1:03:37.4 Peter: That's not sustainable. You know, we have like one party. That's just these fledgling idiots who can't put together a coherent message, even though it's on a fucking platter for them here. And the other group is literally, [laughter] literally being like corruption is good. [laughter]

1:03:56.3 Peter: It's that fucking speech and what is it, Syriana? Where the guy is like... 1:04:00.1 Michael: Yes.

[laughter]

1:04:02.5 Peter: "Corruption is... " Wait, What's the line? Rachel find that Syriana clip. [laughter] We're putting it in.

1:04:09.0 S?: Corruption charges. Corruption? Corruption is government intrusion into market efficiencies in the form of regulations. That's Milton Friedman. He got a goddamn Nobel Prize. We have laws against it precisely so we can get away with it. Corruption is our protection. Corruption keeps us safe and warm. Corruption is why you and I are prancing around in here instead of fighting over scraps of meat out in the streets. Corruption is why we win.

[laughter]

1:04:37.3 Peter: Corruption keeps us warm.

[laughter]

1:04:40.8 Peter: That's what his fucking opinion is.

1:04:42.4 Michael: Yeah it's, yeah.

1:04:44.5 Peter: It's literally a whole-hearted embrace of corruption being like, "That's what this country is, baby." It's unreal. Oh God, man.

1:04:56.0 Michael: I fucking hated doing this episode. [laughter]

1:04:57.5 Peter: This one, I mean, think that our listener...

1:05:00.9 Michael: No prepping this episode.

1:05:01.2 Peter: Yeah.

1:05:01.9 Michael: I enjoyed doing the episode, I hated prepping this episode.

1:05:05.4 Peter: Yeah, I think our listeners can tell this might be one of our more exasperated episodes and that's gotta be saying a lot.

1:05:13.7 Michael: Yes. [laughter]

1:05:14.8 Peter: And maybe it's the lack of re-mitigating us telling and us it'll be okay. [laughter]

1:05:22.4 Peter: But it really feels to me like this was a uniquely bleak one. I don't know how you can read this and not think, "Well, they've really turned a corner here in some ways." Right? When they're being like, "Yeah, corruption is great." It feels like it's, even though this is a story of in some ways, ticky tack, campaign finance case. In the annals of the Roberts court's jurisprudence on this stuff, it's not a huge deal. We're talking about post-election donor contribution caps. It feels like it should be a small deal and then you read it and you're like, rhetorically it's not. Rhetorically, it feels like this is everything that people were warning about and sounding the alarms about when Citizens United came down.

[laughter]

1:06:07.4 Michael: Yeah, it feels like between this and Dobbs and what I'm sure will be an unfavorable ruling on concealed carry licensure in New York. It feels like the court stared down the possibility of reform. Came to the conclusion that it wasn't happening and they're like, "We can do whatever the fuck we want."

1:06:31.2 Peter: Right, right.

1:06:32.5 Michael: That's what it feels like to me and so far, they're right.

1:06:39.2 Peter: Next week...

[laughter]

1:06:43.1 Peter: Man, I love a good next week joke.

[laughter]

1:06:49.4 Peter: What are we doing? We don't know what we're doing, right? 1:06:51.2 Michael: We're gonna send "Know Your Enemy" down the street. [music]

1:06:57.2 Peter: Next week, we're taking off. We were recently guests on Know Your Enemy and we discussed how the conservative legal movement accomplished the overturning of Roe, or the likely overturning of Roe. Great discussion. I'm sure many of our listeners have heard it. If you haven't, we'll be sending it down the feed next week, but mostly I think we just wanted to take a week off. As June kicks off, because it's about to get wild and we are prepping ourselves emotionally. One other thing I'll add is that historically, when we take off for a week something terrible has happened. Every single time. Every single time. It's unreal, like RBG died once. [chuckle] That was the worst one.

1:07:50.0 Michael: The Dobbs opinion leaked when we were supposed to have a...

1:07:53.3 Peter: And SPA. We're at the point now where the only break we've taken in the last two years, that didn't result in something horrific was for Christmas.

[laughter]

1:08:06.8 Peter: So, all I'm saying is that, if I were a betting man, I'd say, maybe we don't end up taking next week off. Maybe something horrific happens and we have to do an episode on it or something like that. Alright, follow us on Twitter @fivefourpod. Subscribed to our Patreon, patreon.com/fivefourpod, all spelled out. Premium episodes, special events, access to our slack, discounts on merch, all sorts of shit.

1:08:38.7 Michael: Ad free regular episodes.

1:08:40.1 Peter: Allright, we'll see in a couple of weeks. Or whenever something goes horribly wrong, one of the two.

[laughter]

1:08:49.1 Michael: Fuck.

1:08:49.2 S?: Five to Four is presented by Prologue Projects. Rachel Ward is our producer. Leon Nefakh and Andrew Parsons provide editorial support. Our production manager is Presio Verlin and our assistant producer is Arlene Arevolov. Our artwork is by Teddy Blanks, at Chips and Wine and our theme song is by Spatial Relations.

[music]

1:09:25.5 Peter: God, if you're listening, please.

[laughter]

1:09:30.7 Peter: Please, just once. Please just one week, man. I figure if I really dig in this time, then maybe it won't happen. If I really over-commit to it. I'm reverse jinxing it.