RHIANNON HAMAM

MICHAEL LIROFF

[ARCHIVE CLIP: We'll hear argument first this morning in Case 12-536, McCutcheon v. The Federal Election Commission.]

Leon Neyfakh: Hey, everyone. This is Leon from Prologue Projects. On this episode of 5-4, Peter, Rhiannon and Michael are talking about McCutcheon v. FEC, a case from 2014 about money in politics. A few years after Citizens United allowed billions of dollars to be pumped into politics in the name of free speech for corporations, conservatives again challenged spending limits, this time for individual donors.

Leon: In a five to four decision, the Supreme Court ruled in McCutcheon's favor. This is 5-4, a podcast about how much the Supreme Court sucks.

Peter Shamshiri: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have our civil liberties falling from the sky like airplanes during the Trump administration.

Michael Liroff: [laughs] Yes.

Peter: I'm Peter. I'm here with Rhiannon.

Rhiannon Hamam: Hey.

Peter: And Michael.

Michael: Hi, everybody. Yeah, they're not even just falling from the sky. Even—even when they land, they crash.

Rhiannon: They're flipping. They're flipping over.

Michael: They're flipping on the runways. Even the boats carrying them are crashing. There's an aircraft carrier that crashed. The planes just want to crash. They just need to run into things.

Rhiannon: Guys, being on a plane that flips over, can we ...

Peter: Hell, no. Hell, no.

Rhiannon: ... just take a step back and talk about it?

Michael: Oh my God.

Peter: The fact that everyone survived is obviously, like, borderline miracle. But like I was just telling you guys, if I'm on a plane that flips ...

Michael: Yeah.

Peter: ... I'm never flying again. Never flying again.

Rhiannon: No way! No way, no way!

Peter: I'm already a bit of an anxious flyer. Like, if there's turbulence, I'm not, like, sleeping on a flight or anything. Like, I'll be up during it. Like, I can't fucking wait until it's over. And I know it's irrational, and I know it's like, the safest mode of travel and all that shit—or was until recently, but you know when that plane is flipping, all you're thinking is, "This is the last split second of my life."

Rhiannon: Yeah.

Michael: Yeah.

Peter: I'm about to get obliterated.

Rhiannon: Yeah.

Peter: On the runway in Detroit.

Rhiannon: I'm about to die.

Michael: Yeah.

Peter: And then you're just hanging there.

Michael: Yeah.

Rhiannon: Yes.

Peter: And the person next to you is shitting and crying and …

Rhiannon: Throwing up?

Michael: While there's a massive fire out the window.

Rhiannon: Yes.

Peter: And, like, everyone's puking.

Michael: Yeah.

Rhiannon: Yeah. And everybody's upside down. And the flight attendants, God bless them, are coming through and releasing people one by one. And you're upside down.

Michael: Oh my gosh.

Rhiannon: To fall out of your seat.

Michael: It's insane.

Rhiannon: Hit the top of the plane and walk yourself out.

Michael: Yeah.

Peter: Right?

Rhiannon: I'm not a nervous flyer. I sleep through every flight. Pilot comes on, says, "Welcome aboard," I'm out. It's Zs, it's deep REM for me until we hit the next runway. Right?

Peter: I'm jealous.

Michael: That's incredible.

Rhiannon: That being said, I'm on a flight that fucking flips over? No, I'm not fucking flying again.

Michael: Permanent trauma.

Rhiannon: I am not fucking flying again.

Peter: I'm still traumatized from visiting Michael in Albuquerque when it was, like, during wildfires or whatever, which I guess caused turbulence. And I remember making eye contact during the descent with the flight attendant, because I'm always looking at the flight attendants when there's severe turbulence to be like, how chill do they seem? Right? And she was looking nervous as hell. And I was like, fuck.

Rhiannon: [laughs]

Michael: [laughs]

Peter: Today, long-awaited case, McCutcheon v. FEC. We had a running bit for about a month there where we just didn't do this case even though he said we would every week. But here we are.

Rhiannon: We're finally doing it. Now yeah, I mean, we're recording it. God knows what happens before next week, whether or not it gets published, but here we are. We are recording McCutcheon.

Peter: This is a case from 2014 about money in politics. Just a few years after Citizens United came down, conservative legal activists set their sights on another campaign finance law that they wanted to attack. This one was about aggregate campaign contribution limits. There are legal limitations on how much you can contribute to a political campaign or a political party in a given election cycle. And then on top of that, there are aggregate limits, meaning a cap on the total amount you can spend across all candidates and parties. So some entrepreneurial right wing activists teamed up to challenge the law as an infringement of their free speech rights. And the Supreme Court, in a five to four decision, agreed with them.

Michael: Mm-hmm.

Rhiannon: Yeah. Another speech case, right? Like, last week we did NIFLA v. Becerra, which is abortion and free speech, basically. Now we have campaign finance law and free speech.

Peter: When we do free speech cases, it's never actually about speaking out.

Rhiannon: That's right. Exactly.

Peter: It's either about someone paying for elections or lying to women about their reproductive health.

Michael: Mm-hmm.

Rhiannon: [laughs] Exactly. Exactly. So let's get into it. Some campaign finance laws—Peter did a little preview here. The Federal Election Campaign Act of 1971 and the Bipartisan Campaign Reform Act of 2002 impose some of these limits on campaign contributions that Peter was talking about. They impose base limits and aggregate limits on individual donor campaign contributions, meaning a donor is restricted in how much money they can contribute to a particular candidate or committee, and they're also restricted in how much money they can contribute in total to all candidates and committees. Again, that's the aggregate limits that are at issue in this case.

Rhiannon: I want to pause. Let's talk about this idea, this framework of campaign finance laws. We did Citizens United the second episode of this podcast, the second episode ever. I don't know if we joked in the episode that was published about me not understanding campaign finance laws, me not really understanding Citizens United, me never really understanding Citizens United.

[ARCHIVE CLIP, Rhiannon Hamam: Right. The whole point of creating a corporation is to limit individual people's liability and to create a legal entity that sort of takes the hit for legal problems in doing business. I don't fucking know what—I didn't take corporations. But what's clear is ...]

[ARCHIVE CLIP, Peter Shamshiri: Right.]

Rhiannon: But we did joke outside of the episode, for sure. And we've joked since then. In fact, preparing this case, McCutcheon.

Michael: Yes. [laughs]

Rhiannon: I have said, "Michael, I actually need you on this episode. I still don't understand Citizens United. Why would I understand McCutcheon?" [laughs] And I just want to pause. We make jokes about it, right? And I do want to point something out, though, that in law school and when I was learning about these cases, the framework of quote-unquote, "campaign finance law" turns my brain fucking off.

Peter: Mm-hmm.

Rhiannon: And I think this is a problem. I'm not critiquing anybody. It's just that, like, legislative representatives are the ones who pass campaign finance laws. And the way they're thinking about it is, "We must finance our campaigns. We're politicians. This is how we think about these things." Campaign finance law as a phrase does not make sense to the regular person. It doesn't say anything. And I think it would be a net benefit to all of us if we talked about actually campaign finance laws as money in politics.

Michael: Mm-hmm.

Rhiannon: That's actually what we are talking about when we're talking about campaign finance laws. And when I hear campaign finance law and I think actually money in politics, that's what's at issue here, then a lot more things make sense. And it makes sense why these cases are important. Okay, let's get into it. Aggregate limits on individual donor contributions. Okay? Shaun McCutcheon. This little worm, Shaun McCutcheon. In 2011, Shaun McCutcheon was at the Young Conservative Coalition's Reaganpalooza party in DC.

Michael: [laughs] Reaganpalooza party.

Rhiannon: Cool or not cool, guys? What do you say?

Michael: They just, like, serve jelly beans and everybody wears Depends? Or, like, how does that—how does that work?

Rhiannon: So that's where Shaun McCutcheon is in 2011 when he met attorney Dan Backer. Dan Backer made a legal career out of basically abolishing, obliterating campaign finance laws. I don't recommend going to Dan Backer's Twitter. It is awful. He was in Greenland a few days ago talking about being on a fact-finding mission and hashtagging #Trumpland.

Michael: [laughs]

Peter: Fact finding.

Rhiannon: Yeah.

Michael: Fact finding.

Rhiannon: All right. Anyway, so that's Dan Backer. McCutcheon, for his part, he was an electrical engineer in Alabama when he started to get involved in politics in the kind of late aughts. And he says that he got him—he was getting involved in politics locally as a hobby, and he was assisting conservative Republicans with their campaigns, was a member of the Jefferson County Republican Party and its executive committee. And he meets Dan Backer, who is a conservative activist, conservative lawyer who is trying to dismantle campaign finance laws in the United States. And, you know, all of a sudden, what blossoms from this relationship, Shaun McCutcheon suddenly feels very frustrated at the fact that he was starting to reach a limit to the number of candidates in aggregate that he could contribute money to.

Michael: Expensive hobby.

Rhiannon: Yeah. Yeah. In interviews, Shaun McCutcheon says, like, "Yeah, you know, I would talk about my hobby in politics, and how I was involved in Alabama Republican circles. And Dan Backer is the one who convinced me to file a lawsuit. I didn't think we should file a lawsuit. I didn't know that that would really be effective. Dan Backer convinced me." And so yeah, Dan Backer convinces him to file a lawsuit against the Federal Election Commission, the FEC. And what do you know? The Republican National Committee joins the lawsuit. And just want to say again, when attacking aggregate limits on campaign contributions, Shaun McCutcheon says this is about personal freedom, okay? Quote, "I don't think we ought to stay up all night with a spreadsheet figuring out what we can do and can't do in a free society in terms of spending money on political ads."

Peter: Yeah. That's the worst part about being American is having to have a spreadsheet where you figure out your political ad contribution.

Michael: Disposable income, that you're like, "I need to spend this on political ads, but I need a Google Doc and an accountant to help me figure this out."

Peter: "What if I go over the $117,000 aggregate limit?"

Rhiannon: You're telling me I'm breaking the law if I do that? Yeah. Dan Backer backs him up. Says, quote, "For Shaun, this wasn't about some esoteric legal concept. This was about his rights and his freedom."

Peter: Not an esoteric legal concept. Just rights and freedom, baby.

Michael: Just rights and freedom. [laughs]

Rhiannon: [laughs] All right, so those aggregate limits on donor campaign contributions, that's an infringement on free speech. The RNC joins this lawsuit against the Federal Election Commission, and that's how we get to the Supreme Court.

Peter: All right, so let's talk about the law here. And first, just so you can understand what Rhiannon does not, let's talk about Citizens United. That case came down in 2010. It was not actually about campaign contributions, it was about independent expenditures.

Michael: Mm-hmm.

Peter: Campaign contributions are money that you pay to a campaign or a party directly. Independent expenditures are money that you spend yourself. So if you're a rich dude, you don't have to give money to Donald Trump. You can just start a PAC and run ads for Donald Trump, right? Hire someone to make an ad, pay for it, run it. That's an independent expenditure. That's what Citizens United was about. Citizens United was about saying, "Hey, independent expenditures? Unlimited."

Michael: Right.

Peter: They can't stop that. But if you're this electrical engineer guy, McCutcheon, you're a millionaire and your politics are God-awful, but maybe you don't have run-my-own-ads money, right? You just want to donate to politicians, rub elbows with them.

Rhiannon: At Reaganpalooza.

Peter: Yeah, you want to be invited to their low budget Eyes Wide Shut parties, right?

Michael: Like the Always Sunny Eyes Wide Shut party?

Peter: Right. Right. Just the orgies where no one's hot. That's what you're trying to go to.

Rhiannon: None of the cool stuff is happening.

Peter: But the law says, "Hey, there's only so much money you can spread around. So the question is is that a violation of this man's free speech? The majority here is written by John Roberts, so you know it's rough. It's not good, folks. He says that the problem here is a mismatch between the objective of the law, which is to prevent corruption or the appearance of corruption, and the function of the law. The law, in effect, limits the number of candidates that a person can contribute to—at least theoretically, right? The law says you can donate to a bunch of candidates, but once you've hit that $117,000 or whatever, you gotta stop. Roberts says, "The government may no more restrict how many candidates or causes a donor may support than it may tell a newspaper how many candidates it may endorse." Which I have to say intuitively just doesn't make sense to me, right?

Rhiannon: No.

Peter: If the law is concerned with corruption, then surely you have to treat money differently than newspaper endorsements, right?

Michael: Right. One is actual speech.

Rhiannon: One is speech, and one is money. It's not that—one is a group, an institution, a person, whoever, saying, "I support this candidate."

Michael: Yeah.

Rhiannon: Another is donating a ton of money for them! [laughs]

Michael: Yes.

Peter: But this is what happens when you're just like, "Money is literally the same thing as speech."

Michael: Yes.

Rhiannon: Right!

Peter: Then all of a sudden you're like, "Yeah, and giving straight cash to a politician is the same thing as saying something in a newspaper." And it's like, well, no. No, it's not.

Michael: It's not.

Peter: And if the law is concerned about the facilitation of corruption, then you have to treat money as, like, this distinct thing.

Michael: Right.

Peter: But they don't. I'm going to address what I think are, like, the primary arguments in the majority. He also talks about the argument that allowing unfettered spending interferes with the public interest in collective speech, meaning that these sorts of restrictions help everyone else be heard. This is something the dissent talks about. You limit the amount of money that can get spread around, because not everyone has that kind of money, and you want them to be heard, too.

Michael: You don't want them drowned out, right?

Peter: Right.

Rhiannon: Yeah.

Peter: He says, "In assessing the First Amendment interest at stake, the proper focus is on an individual's right to engage in political speech, not a collective conception of the public good," which is, I mean, just very conservative, right? We're not talking about the public good, we're talking about this dude.

Michael: Right. This one dude.

Peter: We're talking about Shaun McCutcheon, bro.

Michael: We're talking about rich people's ability to flood the zone, right?

Peter: Right. So I think this is, like, objectively incorrect in almost every sense. Even in Supreme Court precedent, an important consideration in First Amendment analysis is the right of the public to both hear and be heard.

Michael: Right.

Peter: So I don't know how Roberts can say, "Oh, the focus should be on an individual's right to engage in speech." It's just not true under the precedent. Nor does it make any sense rationally, because even if you think that the right to spend money in elections should be protected, it's not the right to speak per se that's at issue here. What we're really talking about is volume.

Michael: Right.

Peter: When you're spending money, you aren't just expressing something, you are trying to do it loudly. When you're saying, "I want to spend more than $117,000," it's not that you're making a symbolic gesture. You're trying to influence the election, right?

Michael: Mm-hmm.

Peter: Which directly implicates the speech of others because there's only so much the public can hear. And other people might want to speak, too, but just not have the money. So this isn't about whether this guy can speak, it's about how large of a bullhorn he gets.

Michael: Right. Two people on a stage addressing an audience, and one gets a mic and speakers that are very loud, and the other is not allowed to do anything but whisper, right?

Peter: Right.

Michael: And saying, "Well, they both get to speak." And it's like, yeah, but it's not the same. You know, their speech rights are not equal here.

Rhiannon: Exactly.

Peter: Another thing that Roberts argues is that the real concern of the law is quid pro quo corruption, meaning corruption where someone provides money in exchange for favors. We've talked about this before. It's the money in a bag. In exchange, you get a law passed for you or whatever.

Michael: It doesn't have to be money. It could be, for example, not prosecuting the mayor of New York for engaging in blatant crimes.

Rhiannon: [laughs]

Peter: I feel like I could create a framework where that's not true.

Michael: [laughs]

Peter: Because is that corruption? Is politics not all transactional, right? If both favors are being delivered through the political system, then all the checks are in place because the check is democracy.

Rhiannon: There you go. Right.

Rhiannon: Who are you, John Roberts?

Peter: You can write that one down, John. I don't give a shit.

Rhiannon: [laughs]

Peter: So we've talked about this in other contexts where the conservatives are very eager, for mysterious reasons, to narrow the definition of corruption. Roberts says, quote, "The line between quid pro quo corruption and general influence may seem vague at times, but the distinction must be respected in order to safeguard basic First Amendment rights." Which, like, I just don't think it's true.

Michael: No, I don't.

Peter: And I don't understand why this is a meaningful distinction. If a person is purchasing influence using cash, we're not talking about the influence of someone's words or ideas. We're talking about cash money. If a person is purchasing influence, that means they are using money to alter the conduct of a politician. I simply do not see a meaningful difference between that and a more explicit agreement to do the exact same thing. Like, I guess my question for someone like John Roberts would be: Why do you think quid pro quo corruption is bad?

Michael: Right.

Peter: If you've already accepted that using money to influence a politician is fine, generally speaking, then why can't they just be like, "All right, here's the money, now give me the law that I want?"

Rhiannon: Exactly.

Peter: What exactly in John's mind makes that a bad thing? I don't understand it. They've already crossed the Rubicon here. They've already accepted that money can influence politics, so why are they drawing the line at quid pro quo corruption? I don't know. I just think it's the narrowest definition they can use, and they want to use the narrowest definition they can use.

Michael: Do you know who else thinks like that? Who's right with you, Peter?

Peter: [laughs]

Michael: It's Clarence Thomas. But he goes the other way and is like, "That's why we should just do away with all this shit." He's like, take the logic of your opinion one step further. Why do we have contribution limits at all? He's like, "This is a correct application of our precedent, but the rationale undermines the precedent which, you know, wants to treat contribution limits to individual candidates as sort of distinct from other sorts of speech and expenditure in the political sphere. And he's like, "No, just do away with contribution limits. People should just be able to give as much money directly to candidates as they want, because I am not concerned with quid pro quo corruption or influence at all." It's fucking wild!

Peter: I have to say that I appreciate the consistency here.

Michael: Yes.

Peter: Because his concurrence here is the natural conclusion of the logic that the majority is bringing to the case.

Michael: Right.

Peter: Sometimes Thomas is just going way too far with his concurrences, and sometimes he's like, "What are we doing? This is all—" like, you've John Roberts-ed yourself into this opinion.

Rhiannon: Yeah.

Peter: But what we need to be doing is just creating a very simple rule that's like, money in politics should be unfettered entirely.

Rhiannon: Yeah.

Michael: Yeah.

Peter: And I think he's right that, like, that's what the court is doing anyway. They're just trying to John Roberts it and, like, create this, like, elaborate maze of rules and guidelines. And there's no real difference, because any challenge to campaign finance laws is gonna get struck down by this court one way or another. So Clarence Thomas is like, "Let's drop the pretense here."

Michael: Right.

Rhiannon: Yeah. Let me clear the docket a bit. I don't need more cases coming up on this issue. We can just deal with it here. It's interesting with this concurrence, Thomas writing separately. So Thomas does join the conservatives, obviously in the judgment, which makes this a 5-4 decision in the judgment. But Thomas doesn't join the majority opinion in anything other than the judgment, the holding.

Michael: So it's, like, technically a plurality.

Rhiannon: Yeah, so it's technically a plurality, that four judges are in the plurality opinion here on the rationale.

Michael: This is one of those fun Thomas concurrences where, like, he only cites himself and, like, kicks off with it. He's—the first sentence has a bunch of cites and they are: Thomas, J., concurring in judgment. Thomas J., dissenting. Thomas J, dissenting. Thomas J. Dissenting. Thomas J, concurring in judgment and dissenting in part. It's so—it's beautiful. It's beautiful. Like, I love this guy. He's awful and I hate him.

Peter: We've said it before. That's what we do, too, you know? We'll be like, "We've talked about this."

Michael: We've talked about this. Yeah, exactly.

Peter: We don't talk about precedent with any real respect. Sometimes we'll tell people about precedent just to give them color, just to give you some history.

Michael: Yeah.

Peter: And I like that Thomas is doing the same thing. This is why he's sort of the dark version of us. You know what I mean?

Rhiannon: Yeah. Yeah.

Peter: He's just like, "Here's what I think the law should be, guys."

Michael: [laughs]

Rhiannon: The laser beam eyes version of us.

Peter: Yeah.

Rhiannon: There is a dissent here with all the liberals. Breyer, Justice Breyer writes this dissent. It's a meaty dissent. It's long. I think, like, he does a pretty good job of going through the precedent, getting in the nitty gritty on how the opinion here, the decision is really about corrupting politics, that the result will be corrupting politics. And I think that's the strongest point that Breyer makes. He's strongest on the point of corruption and the need for anti corruption in the law. He goes through a lot of the precedent to support this argument. But I don't want to break down so much of, you know, the technical portions of the argument and really actually want to hone in on this corruption point that he makes.

Rhiannon:You know, he does go through the record in the case that shows how money in politics does affect politics, does affect how elected officials operate. You know, talking about how, like, a large, like, soft money donor is gonna get the phone call at the end of the day when a senator only has 10 minutes to spare. Like, while the majority opinion tries to say that, like, there's no evidence that flooding politics with money, like, really actually changes the behavior of politicians, Breyer's like, "No, that's absolutely stupid. Of course it does."

Rhiannon: And Breyer also lays out how, like, there's an accusation—an accurate one—that doing away with aggregate limits is going to help people circumvent other contribution limits, like, circumvent individual campaign contribution limits, which the majority says, "Oh, these other limitations on campaign contributions, those are sufficient. We don't need the aggregate limitations." Breyer says, "No, doing away with the aggregate limitations is going to help people circumvent the other limitations." He gives three examples, three categories in which doing away with aggregate contribution limits is going to help people circumvent other contribution limits in the law. He says that's gonna happen in gifts for the benefit of the party, in donations to individual candidates and with political action committees.

Rhiannon: He goes through, like, examples, hypotheticals of, like, how this would work. And as history would show, like, every single one of those things is true or, like, now happens regularly. One example: gifts for the benefit of the party. Like, individuals can donate to national committees and to state party committees. Before this decision, that individual limitation would have been something like $74,000. Now over an election cycle, that would be $1.2 million. It's just like in donations to individual candidates after this decision made it possible over a two-year election cycle for an individual to donate to individual candidates up to $3.6 million. It's a wild, exponential flooding of American politics with money.

Michael: Yeah. And also, like, the way campaign finance works is that a lot of money flows from these, like, party committees and things like that, right? Like the Democratic National Campaign, Congressional Campaign Committee and shit like that. And so you can just go—you can one, donate to them, but also, you know, if you're connected, you can just be like, "What are the tough races?"

Peter: Right.

Michael: And they can tell you, like, "Oh, we are focusing on blah, blah, blah, blah." And then you can go donate to the state parties there, you can donate to those individual candidates. You can donate to PACs working in those jurisdictions and stuff, and just flood those areas with money in what is an effective donation to those either committees or those individual candidates.

Rhiannon: Yeah. Back to, like, my understanding or misunderstanding of, like, how these limits work and these laws work in real life. I actually think it would be beneficial if people do wonder about that, like, how do these things actually work? You can read Breyer's dissent here. The examples he goes through are very clear and very illuminating on, like, why do we need a law that limits aggregate contributions?

Michael: Right.

Rhiannon: Why do we need a law that limits individual contributions? He lays out tons of hypothetical examples that are really, really clear.

Rhiannon: Moving on to this strongest point, I think, and, like, the overarching theme of Breyer's dissent, which is about corruption. So he calls out what, Peter, you were talking about, where the majority uses, like, this really bad, overly narrow definition of what corruption is, that it's only a quid pro quo agreement or only a quid pro quo action. And also the majority kind of like, does away with, doesn't really pay attention, doesn't give any weight to corruption also being damaging to the political system, even when it's the appearance of corruption.

Rhiannon: And so Breyer really breaks this down and says, "Wait a minute. Corruption is the subversion of democratic political process. Anti corruption is about maintaining the integrity of our democracy, the integrity of public and government institutions. And so this is really important. The majority can hand wave about, like, you know, like, what are you talking about? Corruption is just a straight-up bribe and nothing else." But Breyer says, "No, obviously corruption is damaging, and encompasses a lot more than just that."

Rhiannon: He connects what I think is very, very strong is Breyer's connection of corruption and anti corruption to the First Amendment. Breyer says, like, "The way y'all are weighing First Amendment rights and quote-unquote, 'defining' free speech and what is free speech, it's all wrong." We can actually go to the First Amendment and see in the First Amendment that the First Amendment itself is about preventing corruption. The First Amendment is about protecting speech so that political speech, political expression is what influences government, not money, not the family that you came from, not, you know, consolidated power in some small group. It keeps government accountable to public opinion and not money. That's what the First Amendment does. It's about more than just, like, an individual's right to talk. There's a bigger idea, there's a much bigger role that the First Amendment plays in again, maintaining the integrity of our democracy and in supporting democracy.

Rhiannon: And Breyer also talks about, like, the damage of the appearance of corruption. You know, the appearance of corruption discourages political speech and expression and civic engagement and political involvement, because the appearance of corruption convinces people that their participation in the avenues that are accessible to them, meaning speech, expression, civic engagement, not the donations, it convinces them that those avenues that are accessible to them don't actually matter. You have to have the "other" quote-unquote kind of speech, which is money. That's just the appearance of corruption.

Rhiannon: And so taken together, Breyer is saying that the plurality is getting the interests all wrong here. Preventing corruption is super, super important. That is a massive interest public good that has to be weighed super, super heavily, and is rooted in the Constitution. It has to be weighed super heavily against what the plurality is identifying as just the individual interest in supposed free speech.

Michael: This warms my heart. I'm really glad that I got the concurrence and Rhi got the dissent, because hearing her speak—yes!

Rhiannon:I get it. Tear runs down my cheek. I understand campaign finance! [laughs]

Peter: It's very interesting to read the Breyer dissent and just see his, like, general concern for the mechanisms of democracy in an opinion written over a decade ago now. And it's sort of like, yeah, you were right, and it was a good try, you know?

Michael: Yeah. Yeah.

Rhiannon: Yeah. This made a lot click for me. This dissent made things click for me.

Michael: Yeah, it's a good opinion. This is, like, one area where he is good. I mean, that was like, we joked when he retired about the book I read of his that I forgot I had even read, that it even existed. But it was about, like, his whole thing was, like, reading the Constitution in a way that promotes sort of democratic engagement. That was his thing is sort of like democratic engagement is this core part of the Constitution. And so it's like, on issues like this, I think he actually writes very well. This is an area that he sort of gets. And now we're gonna talk about why he was right and why this is all fucking terrible.

Rhiannon: Yeah, why it's on fire.

Peter: So there's one really weird vestige of the old campaign finance system, the one that existed before the Supreme Court took a hatchet to it, and it's the fact that the primary limitation on campaign finance right now is that the average person can only donate $2,700 to a candidate per cycle. Billionaires can spend tens of millions of dollars due to their very important speech rights, fully funding their own ad campaigns, right? Because of Citizens United. They can also, because of this case, spread as many donations across as many candidates as they want. But if you're an average person, your donations are capped. If you're like a successful upper-middle-class person, a doctor or a lawyer, and let's say it's the 2020 primaries, you might say, "Hey, I'm making good money. I've done the budgeting. I love what Bernie Sanders is saying. I want to donate $5,000 to his campaign." Illegal! Illegal. You're under arrest, sir. Federal campaign finance law prohibits that. But if you're a billionaire, you can bankroll a PAC that runs $5-million in ads saying that Bernie's a communist. That's due to Citizens United. And you can also max out donations to every single candidate that you like all across the country, over and over again. Just have fun with it due to this case. Now I think realistically, if you brought a case today before the court about those individual campaign contribution limits, they might overturn them. They might say the individual limit of $2,700 per candidate per cycle is illegal. But they haven't brought that case. Why? Because there's not a lot of energy behind that cause because they don't need to do it.

Michael: No.

Rhiannon: They don't need it.

Peter: Anyone who wants to spend their money in elections can already do it through PACs, so why bother trying to get the contribution limit lifted? They don't need regular people to donate more than $2,700 to a candidate. In fact, that might hurt their cause.

Rhiannon: Yes.

Peter: What they need is to be able to run their, like, multi-million dollar ad campaigns that are completely independent of any given political candidate. If anything, that's better because it gives the oligarchs the power. They don't have to hand their money over to a campaign and say, "Hey, do what you want with this." They get to run their own shadow campaigns with their own messaging.

Michael: And by the way, that independence is often very much a farce. We talk about this a lot, I think, in the Citizens United episode but, like, examples are the longtime chief of staff of a politician, their closest confidant, will resign and go run the super PAC, and run it for a year and a half and then once the election is done, the super PAC will shutter and they'll go and work for the candidate again, right? And so the independence is in the individual candidate not necessarily having a say. Their campaign will instead, you know, like, post B roll on YouTube that can be used in ads and shit of the candidate doing random things. But the independence is more like the candidate is now just a vassal to the billionaire. Like, wholly-owned subsidiary of the billionaire is the way it works in practice.

Rhiannon: Yeah, that's a good way to put it.

Peter: Right. If the candidate, like, does things or says things that the billionaire doesn't like, guess what? Now they're reliant on the individual contributions of people whose expenditures are capped at $2,700, rather than the multimillion-dollar ad campaign that the billionaire can provide. So is that corruption, or is that just beautiful, beautiful speech?

Rhiannon: Or is that just politics?

Michael: And, like, look, the way this works, you know, when Citizens United first came out, Barack Obama criticized it at the State of the Union. And it was a big scandal. The cameras cut to Justice Alito in the audience mouthing, "Not true." Like, very clearly.

Peter: Mm-hmm.

Michael: A lot of people talked about how this was improper. There were editorials about this, like, that Barack Obama stepped over a line or whatever. He went too far to criticize the Supreme Court. [laughs] So insane. Insane in retrospect. Democrats don't really talk about this anymore. When was the last time a high-profile Democrat talked about Citizens United? I think it was 2016 in the Bernie primary challenge. Instead, you see things like the New York Times, I think it was, recently, sometime last year, identified Nancy Pelosi as a quote-unquote, "big believer" in money in politics. If you transported me back in time to 2012 or whatever and told me that in just a decade, the most powerful Democrats would be identified as big believers in money in politics, sort of offhand like that's no big thing, I would have been fucking floored, right? Like, Obama, that was part of his whole thing. He was like, "We're gonna stop the revolving door. Nobody in my administration is gonna go be lobbyists after and take money and all this shit." Like they—money in politics was a big thing back then for the Democratic Party. Now the guy who was running to beat—who won running to be DNC chair, Ken Martin, like, while he was running, said, like, "Of course we'll still take money from billionaires. We'll only take them from the good billionaires. We won't take them from the bad billionaires." This is the big brains on Democrats, Hakeem Jeffries. One of the first things he did as the head of the minority party in the House was go give a talk at Harlan Crow's institute or whatever. Like Harlan Crow again, that's the billionaire who essentially owns Clarence Thomas and collects Nazi paraphernalia. Like, the party is fully enthralled to their own billionaire funders at this point. And it's undeniable.

Rhiannon: Absolutely cooked.

Peter: I think, to put a little more color in there, a decade ago, Republicans had a very clear advantage in dark money. Now, small advantage to Democrats in recent elections—probably excluding 2024 once the data comes out. But in, like, 2018 or so, Democrats started reaching or surpassing Republican dark money spend. And this is sort of what happens, right? The Supreme Court created an ecosystem where you needed massive amounts of money to win elections, which means Democrats, like it or not—not that their hand's being forced exactly, right? But, like, like it or not, if you want to compete, probably want to go out and find some billionaires willing to finance some PACs to support you. A few years later, all of a sudden there's nothing you can do. You're at the whims of those billionaires. And now you have Nancy Pelosi being like, "Yeah. No, it's actually cool." Because you don't want to piss off the billionaires who are funding your entire fucking party.

Michael: Right. You'll see this all the time. Jeffries just said, I think, last week, he was like, "We need to make peace with Silicon Valley." So he went and flew out there to meet with a bunch of donors out there. Or you'll see comments from people like Pelosi or Jeffries or—and their campaign committees. When there's a competitive primary, and one is some grassroots teacher and one is some dude who looks like he was churned out on an assembly line staffed by McKinsey consultants, and the Democratic Party will be backing the McKinsey clone. And they'll be like, "Oh, he's a good fundraiser." And what does that mean? What does that mean, he's a good fundraiser? Does that mean he has some, like, access to these mystery donors that Democrats have never met before? No, it means that their billionaire backers like him, right? Like, Andy Beshear, the governor of Kentucky, when people were like, who's gonna be Kamala's VP nominee, a bunch of the names went and did media tours. This was, like, how Tim Walz sort of became briefly famous. Was doing really well on all these media hits. Bashear went. He didn't do any media hits. He went and met with billionaires. He met with Democratic donors. Like, that's what he did. It's just that's what it is now. The party has its set of billionaires who are—and they are their vassals. Like, it sucks. I say this as a dyed-in-the-wool blue Democrat, lifelong Democrat. It fucking sucks. The party is fully enthralled to their billionaire donors.

Peter: Yeah. And the worst part is at least Republican billionaires have a point of view because they're attached to this psychotic reactionary party.

Michael: Yeah.

Peter: And that allows them to be whatever they want to be. Democratic billionaires are sort of naturally at odds with the ideological positions that large segments of the Democratic base hold.

Michael: Right.

Peter: Which creates this permanent friction, right? That friction doesn't really exist on the right. That's why I think they've been so successful in this environment, because the billionaires who want to, like, dismantle the administrative state, dismantle labor, carve up this country and hand—and distribute it amongst themselves are generally expressing the same ideology that your, like, median Facebook poster/Trump supporter is expressing, right? Just in a different way.

Peter: Whereas a nut job Democratic Facebook poster does not really share a billionaire's ideology in the same exact way. There's going to be a friction because you're talking about different class interests, right? You're talking about very distinct class interests and a class consciousness that doesn't really exist on the right, or at least doesn't exist in the right wing base in the same way.

Michael: Yeah. You can't make peace with the Silicon Valley billionaires and be the party of labor and unions.

Peter: Right.

Michael: Right? Like, how do you do that? How do you represent both those interests? That's just one example. There's so many parts of the Democratic base that are just fundamentally at odds with the ideological commitments of the billionaire donor class. That's it. It's just like—and that's not even the end of the problem here. It's not even just like the formality of campaign finance that this has created, the formal structures that are so bad. It's also that between, like, Citizens United and McCutcheon and other campaign finance cases, and also the corruption cases which we've talked about at length, what the court has done is created a culture of permissiveness. The idea that, like, this isn't an area of government regulation and enforcement. That makes it hard to enforce even the laws that are still on the books. And, you know, a sort of general cultural—not just legal cultural, but societal cultural—sense that, like, no, campaign finance crimes don't go punished. They're not serious. You saw this with a lot of people denigrating the New York state prosecution of Donald Trump, which was based on campaign finance crimes, and being like, "Well, this isn't a serious prosecution. This isn't a real crime. He just lied on some campaign finance forms." Right? You see this all the time.

Peter: There but for the grace of God, Michael.

Michael: Yeah, exactly. This is like Elon Musk was out just fucking blatantly violating campaign finance laws and buying votes in Pennsylvania with his stupid lottery. And what did the DOJ do? They just sent him, like, an angry letter. They did nothing. Like, that might have flipped Pennsylvania, like, legitimately. Like, he was handing out cash and nothing. And nothing. Right?

Rhiannon: Yeah.

Michael: It's just wild how much our elections and our government is currently bought by billionaires.

Rhiannon: Mm-hmm. Yeah, in terms of being bought by billionaires, this case has me thinking a lot recently about oligarchy. This case has me thinking about that even more. But before I get into that, I also wanted to just talk—we've kind of referenced this throughout. I just wanted to state explicitly that the conservatives on the Supreme Court, their definition of, let's call them money-influence crimes, the way they define them so narrowly, is doing a lot of work for the conservative legal movement and just the right in this country. We've talked about it in cases like Snyder and McDonnell, which are about bribery, and how the Supreme Court narrowly, so narrowly defines bribery so as to make it almost—like, it's unrealistic, actually, the definition that they land on. Like, that's actually not how, like, money is exchanged for political favors or power is exchanged for power. How corruption works.

Rhiannon:And you see the same thing here with the campaign finance Supreme Court decisions that the way they define corruption, the way they define bribery, the way they define, you know, what is a violation of campaign finance laws, it's so narrow, and it's doing a lot of work for governance right now in our country. And so that leads me to my thoughts on oligarchy, which is, like, you see this word maybe thrown around recently. That is what we are seeing—the consolidation of power in a very small number of people at the top in ways that are, you know, completely undemocratic or don't make sense for a system that is supposedly based on representative, you know, democratic governance, right? You know, you hear "oligarchy," I think, like, people think like, "Oh, that's like Russia or that's like maybe like the Middle Eastern Gulf countries," or something like that. And I think it's really important to understand—obviously, and I think that people do. I think when you see, like, Elon Musk operating the way he does, I think that people are coming to understand that, like, this is an oligarchy that we live in right now. And I just want to make the point that in part, you can thank the United States Supreme Court for ushering in the age of American oligarchy.

Peter: I think "in part" is correct, but also probably undersells it. Without Citizens United, Elon Musk is making fucking cars right now.

Rhiannon: Exactly. Without Citizens United, Elon Musk is making cars. Without Citizens United, this case, other Supreme Court decisions, Elon Musk is not able to contribute over $280 million in the 2024 election. It's this case that allowed that. And Elon Musk is one billionaire, right? It didn't just give him the green light. So on this point of oligarchy, we do sort of—I think we hyper individualize and say that the oligarchy was ushered in by Donald Trump, the oligarchy is ushered in by Elon Musk, the tech billionaires, what have you, that are buying their influence and taking over our government. That is true. They were allowed to do it by the Supreme Court.

Peter: The last thing I want to say about this is I think McCutcheon is more of a symbolic case than a super meaningful case in the shadow of Citizens United, but it reflects the Court's not just unwillingness to engage with what corruption actually is, but their sincere belief that a very important part of how government should function is that it interacts with powerful people, that those powerful people are allowed to exert influence over it. That the people who acquire money have a right to exert influence over the government. That's what this sort of set of cases reflects, right? The belief that there really is no such thing as corruption, exactly. That money should be allowed to buy favor with power. And once you cross that line, like I mentioned earlier, there's really no stopping it. There's really no definition of corruption that makes sense. There's no limitation on the ability to spend money in politics that is constitutional, because they believe sincerely that wealthy people, that powerful people should exert more influence than you do. That they deserve it, right?

Rhiannon: Yeah.

Peter: It's built into the fabric of the Constitution in their minds, because they are oligarchs, not in the sense that they rule over us with their money. In the sense that they believe in oligarchy. They are oligarchists.

Rhiannon: Yes.

Michael: Right.

Rhiannon: Yes.

Peter: That they believe in the wisdom of the oligarch.

Rhiannon: That the wealthy and powerful have earned their position and should dominate us. This is the belief in a natural hierarchy. The fact that Elon Musk is functionally running the government clicks in their brain. He's the richest guy in the world. Of course. Of course he should be in there. Who else? Who else but Elon Musk? What are you gonna do? Have the second richest person in the world run our country?

Michael: [laughs] Ridiculous!

Peter: Preposterous.

Michael: Yeah. And so I think that brings me to probably the final thing I wanna say in this episode, which is I know it's really hard right now, given everything that's going on, to even think about what comes next, and imagine a world that is next, that is after this. The way the basic structures of government are being dismantled, the way there are concentration camps being built in Gitmo and the Panamanian jungle right now, and just the cruelty we see around us. But, you know, hope is a discipline. Optimism is a discipline. And thinking about what comes next, I think what this case tells us is that, you know, a replay of 2021, 2022 is not enough.

Peter: We need someone even older.

Michael: [laughs]

Rhiannon: [laughs]

Peter: We need to get the oldest guy we can find and make him president.

Michael: We cannot kick the can of reform down the road any longer. The court needs to be changed. The precedents, the Supreme Court cases that have built this society that we are now living in need to be overruled and done away with. And the party that is supposedly the opposition party needs to be on board with those programs. And anybody who isn't needs to get the fuck out, right? Like, it is not enough to just get back in power and pass some economic reforms or whatever. Like, it's not enough. Like, you need to rebuild American democracy from the foundations, and that means undoing shit like this.

Peter: Next week we're gonna talk about the Powell memo, a little memo by Supreme Court Justice Lewis Powell written back in the '70s about the need to focus on business interests in the law.

Rhiannon: Yeah.

Peter: A little history lesson in how we got here, and how the seeds for the modern moment were planted way back when. Follow us on social media at fivefourpod. Subscribe to our Patreon, Patreon.com/fivefourpod for access to premium episodes, ad-free episodes, special events, all sorts of shit. We will see you next week.

Michael: Bye, everybody.

Rhiannon: Bye!

Michael: 5-4 is presented by prologue Projects. This episode was produced by Dustin DeSoto. Leon Neyfakh provides editorial support. Our website was designed by Peter Murphy. Our artwork is by Teddy Blanks at CHIPS.NY, and our theme song is by Spatial Relations. If you're not a Patreon member, you're not hearing every episode. To get exclusive Patreon-only episodes, discounts on merch, access to our Slack community and more, join at Patreon.com/fivefourpod.

Peter: I have the vaguest memory of, like—I don't remember what year it was. Maybe it was like 2017 or 2018, but at the end of the year, there was, like, a story that there had been no major plane crashes and Donald Trump tweeted about it being like, "No crashes, baby!" I just remember joking about it with people, like, how stupid he was.

Rhiannon: Taking credit for it? Yeah.

Peter: Bragging about the planes doing good or whatever. And now it's like, hmm!