Hello. And welcome to short circuit. Your podcast
from the federal Courts of appeals. I'm your
host, Anthony Sanders. Director of the center for
judicial engagement at the Institute for Justice. We're
recording this on Thursday, 07/11/2024
and we have a bit of a first
amendment
special today.
We have a special guest who's gonna talk
about a recent vic... 3 of his under
the first amendment involving
public school speech in the eighth circuit, and
then we're gonna turn to an old friend
who's going to
discuss the latest campaign finance news from the
a second circuit, and you may feel a
little bit of, anger in his voice as
he explains why the court doesn't really understand
the first amendment. So we'll get to that
in a little while, and that will be
our dear colleague, Paul Sermon. So Paul, welcome
back to short circuit. Hey. Thanks for having,
Anthony. It's great to be back.
Paul is 1 of our campaign finance
experts, so she... You should all stick around
and enjoy his expectation of this latest case
from the second circuit. But before that,
we have
someone who a long time ago was a
clerk. At the Institute for justice
Minnesota chapter.
That was aft just after he came off
his
career
as a golf pro. And I think this
is the first time we have a former
golf pro or, you know, maybe put, like,
current golf pro, you might even say. On
the show,
he's gone on to bigger and better things
since since those many years ago, he now
is a lit at the upper Midwest law
center in the great state of Minnesota, and
that is, James Dick. So James, welcome to
short circuit,
Anthony, thanks so much for having me on,
and I I appreciate you bringing up my
exploits as a golf pro. It's always nice
to the har back to those days. Yeah.
Well, you know, we could just turn this
into
into a golf podcast.
But, I remember you you you were you
were doing the golf. Thing and then law
school kind of rose, and you had the
you had to choose the 1 path or
the other
and and you chose Law. But then you
you moved to Minnesota, and it was like
you think You move... I remember with that
summer, you had just come to Minnesota first
time. It was like you you came to
the promised land. But the problem was it
was summer. You week... And I think I
remember we all told you we reminded you
that several times, but you've stuck around for
like, 14 winters now.
Yeah. I'm the rare person who's moved from
originally South Florida to now.
And because of the weather mostly.
And I... I'm a transplant from Florida myself
to Northern Virginia, and it
there's appeal to moving to a place with
seasons if you grow up in Florida.
I... Exactly. You get it. Well, we get
it. And, also, I think the eighth circuit
gets
a little bit of the first amendment. So
tell us about this case, so James actually
argued,
and won this case at the motion to
dismiss stage. At the eighth circuits now I've
been rem for further proceedings. So
what's it all about?
Thanks, Anthony. Yeah, this case is called, K
june versus independence school district 1 94. It's
the Lake fill public school system.
And our clients are Bob and Cynthia K
june and other parent of children in the
school district at the Lake schools.
What happened here is after the death of
George Floyd in May of 20 20
teachers and local activists in the Lake fill
public school district decided that they wanted
the school district to put Black lives matter,
posters up in the school. And the district's
policy at the time, contrary to that, which
is by the way, the same policy that
it is today, at least on its face,
is neutrality on all political
issues like the black lives matter issue.
And
what the district had said to those local
activists at the time was no. No. No.
No, No. For months, they pressured the school
district and said you need to put up
these posters
because we need to have this this message
endorsed essentially by the district. District said, no
We can't do that We can't do that
we can't do that because of our neutrality
policy.
Well, all of a sudden, in March of
20 21,
the
inclusive poster series as it's called, shows up
at the district's work session.
And by April 20 21, the district had
completely allowed these these posters created by private
activists
to be put into school district Hallways and
classrooms, not by the district's districts own
affirmative
decision to put those posters up, but based
on the individual decisions, of teachers and administrators
who want to feature this message themselves.
Well, at the same time, our clients throughout
this entire process
had been, going to school board meetings, being
in involved locally in their in their local
school district
and
continuing to praise the decision of staying neutral.
Neutral neutral neutral don't don't and get into
politics in our in our classrooms and hallways.
And the...
And then after the school district flipped 1
80 on this issue,
they said, well, hold on a second, you're
going to allow these local activists to have
these messages placed up by teachers and administrators
and others,
in the hallways and classrooms of the district,
then you also need to allow messages like
blue lives matter and all lives matter to
be placed up equally.
Well, that didn't sit well with the district,
and
it never cease to amaze me what some
people will actually say in writing in response
to agreed like this.
But
the the response to the request to allow
those types of...
Posters to be placed was that all lives
matter in Blue Lives matter motto were created
specifically in opposition to Black lives matter.
And so the district would not allow them
because they expressed a contrary point
to the...
School districts allowing this private. That was not
run by the district's districts council. I'm I...
I'm guessing. I attorneys.
Assume not. I'm... I look forward to the
deposition to find out exactly what went into
this.
So... You know, so our clients we're obviously
very upset by this. They believe that they
were,
Heather Viewpoint discriminated against, so we brought this
lawsuit on their behalf.
District Court dismissed on under on rule 12,
And the basis for the dismissal was that
the school district had essentially actually engaged in
government speech.
And the government speech doctrine allows governments to
say whatever they want
without triggering first amendment scrutiny
under the test that was originally 1 hour,
maybe not originally, but famously put forth in
the pleasant grow versus Sum case
and then recently,
reaffirmed and and kind of, I think,
improved and
clarify by the
shirt lift versus city of Boston case from
the Supreme Court just a couple years ago.
Now the the district court... District court held,
you know, there is no there is no
right for some right here because the district
is engaging in government speech.
And the district court didn't actually get to
the merits of the case below for Of
course, that was something that the district could
raise as an alternative argument for affirm at
the a circuit.
Then that we appealed the case to the
a circuit.
The a circuit then says,
no. This is not government speech. And there's
another part of the decision that's the beginning
of the decision talking about whether plaintiffs can
proceed as pseudo, which is interesting issue, but
maybe beside the point for for this particular
discussion, talking but the... The the court of
appeals, the a circuit court of appeal said,
under the test from Sum and Walker and
Shirt lift,
The school district did exactly what the Supreme
Court said you cannot do as a government
in mattel versus Tam, which is to slap
a government in promoter on private speech and
call it government speech.
And I think that that mattel case
persuasive
says, you know, this is a doctrine that
is subject to dangerous misuse. And as you
can tell from the facts as I relay
them to you, and and I have my
biases, but I'm pretty confident that we got
the public record right on this on this
case.
This was all cooked up. By private activists,
and the school district at the very last
minute came in and put their imp promoter
on this poster series and allowed
teachers and administrators to make the individual decisions
to hang them up. And as a result,
the a circuit said that's not government speech.
Your laundering private speech through the government and
promoter. And on top of that, this is
where, you know, this this decision is really
good. In our view it makes it very
difficult for the district now
as if if as if we... If we
go forward to summary judgment here,
it... The just... The the court actually said
that the government
engaged in viewpoint discrimination. Now I know it's
a rule 12
motion, and the court is deciding whether or
not we've stated to the claim for,
viewpoint discrimination. But the court held that there
is a limited public forum here because they
opened up their hallways
and classrooms. So that issue as far as
I'm concerned unless the facts and discovery show
something wildly different from what the public record
shows.
Is essentially established for this case.
And
beyond that, the the
The district... The court said this, I'll quote
from it and the page 16 of the
decision. According to the district, however, it rejected
Ka june request because the phrase is all
lives matter in blue lives matter were created
specifically in opposition to black lives matter.
Quote, that was imp,
viewpoint
discrimination
So
You know,
we have the email from the administrator and
the court was analyzing their own words. The
time. It's gonna be kinda hard for them
to back away from that. So
the a circuit held that,
we did state a claim for a few
viewpoint discrimination to the first amendment. And since
the government speech doctor didn't apply, the the
case has to go forward to
summary judgment and potentially trial.
Paul, this isn't an issue. The issue of
government speech is an issue we really cross
paths with much with at I j. But
I I'm guessing you agree with me that
kind of the the the lines around what
is government speech and what isn't have gotten
a little... Clear in the last few years
with that the Mattel case, the 1 that
James mentioned and that the Boston flag case.
Did do you see this as kind of,
like
the next level after,
after those cases, these kind of situations.
You know, I I think
this was sort of so clearly
not
government speech
that
I I don't think it develops the doctrine
in kind of a new way. But I
think what this case does is it really
shows
the danger and the temptation of the government
speech doctrine.
Because
clearly,
what has happened here
is the
the school district is sort of trying to
play, like, a a heads eye win tails
you lose
where
they will
be able to get only 1 set of
messages out there,
without
being accused of viewpoint discrimination. And the way
to do that is to actually make it
government speech, but
they also want to affirmative disc
that this is their speech because they don't
wanna make anybody mad.
And the
the results, I think the the court does
a good job saying,
you know, at this stage, at the motion
to dismiss, we actually have to read the
fact actual allegations in the light that are
most favorable to the plaintiff.
And here it really does seem like, you
know, no, they actually just 2 wanted to
let these these other people on 1 side
of a political debate into the schools.
James, I appreciated your
discussion of the facts too because it clarified
some questions I had
about sort of different ways
this might have been structured that would not
have raised some of
the same
constitutional problems,
like it it I wondered it first, like,
why are these private citizens? Why do they
have standing to sue?
And
because the the case keeps discussing it about,
like, well, this is about whether teachers have
these messages in their classrooms. And it seemed
to me that, like, maybe what the the
school could have done is say, you know
what,
we're changing our policy,
and now teachers will be allowed to make
political statements in the classroom. Now, of course,
if they did that, teachers would have to...
They couldn't engage a viewpoint discrimination.
A teacher who wanted to put up, all
lives matter or Blue Lives matter would be
able to sue.
But as your explanation made clear, that's
that's not what they did. I mean, they
basically did say, like, nope. We're we're gonna
let people come in and put these posters
up in the hallways.
And we're only letting 1 side of the
political debate in.
And when you do that, yeah, I think
the facts are pretty clear, they have they
didn't have to create a limited public forum.
They didn't have to create a limited public
forum that was as broad as they did.
But that's what they did. And if you
do that, you can't engage in viewpoint discrimination.
Yeah. And just to just to add on
that, Paul, thank you for that. I... You
know, this is... A situation. We we we
we've run across this issue, of course, with
other school districts around Minnesota, and it's something
that governments across the country, are engaging and
you you take a contrary example to this
case and you look at
New York City, Mayor D blasio at the
time, I believe affirmative said, we are going
to put black lives matter on, you know,
murals in the city of of New York.
And
they made that decision. It was the government's
idea. The government crafted the messaging, the government
did all that kind of stuff.
And and I think it was the second
circuit.
Held that,
despite their bad decisions on campaign finance law
sometimes,
they upheld that, and and we distinguish that
case from this case in our briefing.
And what's interesting about this case as well
is that,
well, while this is a rule 12 decision,
like I mentioned before, the the the district
in this case supplemented the record, and we...
We're okay with it because, hey, the tree
shelves that you free. We're happy to have
public record in.
Really brought a lot of the public record
that will be the discovery in this case
into this rule 12 motion on appeal,
and, you know, that was all stuff that
we talked about in the in the oral
argument, which you can, of course, go back
and listen to is a really very interesting
oral argument. And there's...
There is 1 other kind of follow on
issue that I think is an interesting 1,
and it doesn't necessarily get to the first
amendment.
But it gets to the question of to
what degree
are government speech actions by school districts like
this if they if they were to.
Go back and recreate the policy and change
the way that they approached it and make
their own messaging.
To what degree does, does kind of local
government really get into politics.
To what degree can they use taxpayer dollars
to
get involved in partisan politics, Can they... Well
I think it was judge G who asked
me at the world or ask the opposing
counsel of the oral argument.
Can,
the school they're certain to decide that they're
going to create a mantra of the We
need from the river to the sea and
paint that on the on the hallways of
their... Of the school district using taxpayer dollars.
And there wasn't really a good answer to
that question.
And and I think that even the school
district attorneys recognize that obviously political speech could
run a file. State constitutional
provisions, Anthony since that's a that's your baby
state constitution.
And I think that there is something there
There's a public purpose,
There's there's a a backstop that's gonna prevent
government speech from in ent on...
Are you making illegitimate uses of taxpayer dollars.
For for political purposes. Yeah. This is something
that I was thinking about recently
because
the court touches on this a little bit
where... When it says that, you know, the
the government has a right to speak and
typically your remedy when the government speaks and
you don't like it. Is the political remedy
at the ballot box. And I think New
York's a great example of that. You know,
if if you say, hey, I don't like
how politicized
the school district has become then you vote
for different school board members.
But there does seem to be
some... Deeper principle that I think is not
well developed in the case law
that is almost...
And maybe people have written about this, and
I'm just familiar with the literature. But there's
almost like an anti prop
principle
that
are there are limits to the government's ability
to
engage in partisan propaganda.
In ways that sort of directly undermine
kind of the the the balance of our
political system? Because it... Like, it's 1 thing
to say you can't engage in viewpoint discrimination.
But
in the government's own speech, like can the
government go out there and and just talk
about how great Republicans are and how terrible
Democrats are. Right.
You know, like, like, could that be the
official lesson plant in Minnesota schools. Like, today,
we're gonna learn about how terrible Republicans are
and and how great democrats are, or vice
versa.
And And in many ways, I think some
of these
issues,
a lot of the really interesting first amendment
issues that arise in the context of public
schools.
Arise
because
people's interactions with public schools are not fully
voluntary.
You know, we have compulsory education laws, your
kids have to go to school,
a private school typically could engage in this
kind of blatant viewpoint discrimination, and it could
say, you know, if you wanted to have,
like, the the this the super woke,
private school or the super conservative private school,
you could do that.
But if kids are forced to attend,
if their parents can be punished like Si
or criminal for not sending them there,
then it does seem that there should be
limits on the government's ability to, like, ind
or propaganda dies.
But it but I also feel like those
are not fully developed in the case lot
yet. But
as, like, politics comes to dominate more and
more asp. Of our life. Maybe
maybe we will see further development in that.
I I just wanna... Know I wanna get
too far field of this decision, but, we
also...
In the Ace circuit a couple years ago,
at the motion to this message stage, won
a case related to the municipal taxpayer standing
doctrine.
And it has to do with whether municipal
taxpayers
can be forced to
subsidize
union leave,
for
politics
political purposes,
within the school, you know, teachers from the
school district taking time out of teachings students
to go and lobby in S saint. Paul.
And so it's kind of a follow on.
And I I think the municipal taxpayer standing
doctrine and whether
you know, what message of it is left
and what message of it will be left
after we are now up on appeal and
summary judgment on that same case,
on the same issue,
the hai angle versus an independent schools or
11 case, what is going to be... You,
there's a there is a unique relationship between
the the local taxpayer to the school district,
and that school district itself. That's very similar
to the, you know, the compelled
association inherent in
the union members related to their, their... Or...
Collect... Members of a collective bargaining unit related
to their public employers like in the Jan
case. So
I think that there's a a lot of
interplay. And by the way, you know, a
couple of our clients in this case you
asked about standing, a couple of our clients.
Are,
taxpayers. And they're stay standing as taxpayers
because of the a circus decision in the
He case
so anyway, this is all... There's... These issues
are are certainly needing more development. So glad
to be involved with trying to... Push the
law a little bit. Yeah. That case, glad
you brought brought that up, James. That is
a...
I was... I remember, I was surprised when
you told me about that case a couple
years ago, and I and I read it
because that a little bit of an exception
to
the the barr on taxpayers standing in federal
court, Right. Which is if if it's the
federal government state is you're out of luck.
If you're just a taxpayer unless it's establishment
clause the 1 exception. But
with municipality, there is this kind of recognition
that it's kinda of more like you're a
shareholder for a private company. And, you know,
they analog to that. So to the extent
that exists, is we'll put a link in
the in the show notes to that case
if people are interested. And the the final
thing I'd say about the the public schools
is,
I I have all kinds of
critiques to make of public education as do
many of us at I and people are
familiar with our school choice, work won't be
surprised by that, But I think it's to
some extent,
maybe a a sign of a
that that we
healthy political culture such as it is as
that Paul was saying that these issues aren't
developed that much in the case law because
if school
schools have done all kinds of crazy things,
but it seems like... I mean, maybe this
was not true in Jim Crow south, I
don't know. But in in public schools you
don't typically just have, okay. Our policy is
we're gonna say that this party is always
right. This party is always wrong, and you
should vote for this party when you turn
18.
Don't really have that in American public schools
for And I think it's the political checks
on it.
Luckily have kept that bay,
even though there's all kinds of, of course,
ideological benson in in all kinds of ways.
I would say that in some ways, this
is the flip side of the issue
that
justice All,
highlighted in back in the angry cheerleader case.
So from a years ago,
this favorite case of mind, many listeners probably
remember about the cheerleader said something on,
Snapchat and got punished and whether that's, in
school speech out of school speech and all
that, And just Ali toledo, who I disagree
with on a lot of things.
Had a really interesting concur I really liked
where he said, you know,
public... Before all the reasons Paul gave, public
schools are just kind of a weird thing
when it comes to first amendment, you're forced
to go there. But the the the school
does have this ability to, you know, teach
the doctor it thinks is correct about all
kinds of stuff. And
it's... You gotta find a a comfortable kinda
medium there that comp ports with all kinds
of values, including for amendment values, but It's
not exactly clear what what that's supposed to
be.
And so,
I'm glad James at this case is. Shown
a few a few lines
about about where that's supposed to be. So
there's there's lines when it comes to public
schools
but there's much clear lines, I think when
it comes to political speech,
but the second circuit
isn't really aware of those. Those lines let's
see. At least as they are developed in
current case law, and Paul's is gonna tell
us about that and it... What... How it
relates to New York campaign finance.
Well, so the... I mean, the distressing thing
here is not so much that the second
circuit is completely off base. In its interpretation
of modern campaign finance law. It's more that
modern campaign finance law for all the... What...
I consider improvements it's had in the last
20 years.
It's it's still in kind of,
Dire shape.
And
it's
bizarre treats,
activity related to, like, the most core political
expression in America
as lesser protected
than
you know, all all kinds of speech that
ind
gets the full protection in the first amendment.
So this case is a challenged to a
New York system of
campaign
contribution limits.
It's brought by a group called the upstate
Jobs party and some people who are affiliated
with funding it.
And
the
laws issue are about a distinction between what
New York calls political parties.
And then these other
organizations that are called independent bodies,
But a better way to kind of think
of that distinction is
at least in many cases is the distinction
between what you might call major,
established political parties and minor or startup up
political parties.
And there are 3 laws or at issue
here. If you're a major political party in
New York, you can accept vastly higher
contributions
from political contributors. You can take in contributions
up to a hundred and 38600
dollars.
If you're an independent body
your
contribution limits are much lower.
They're about the same level as what you
could give directly to a candidate. So for
a statewide candidate, It's like 9000
dollars.
Political
parties
are also allowed to make unlimited
contributions, to members of their own party who
are running for office. So the the New
York Republicans or Democrats, or the New york
conservative party
can give an unlimited amount to someone who's
running for office.
Whereas
independent bodies
can only give the same amount that could
be given directly to the candidate. So if
the contribution limit for a statewide candidate is
9000 dollars
the independent body can only give 9000 dollars
to the candidate.
And then finally,
political parties are allowed to set up what
are called housekeeping
accounts, which cover things like their staff,
you know, wrench for their headquarters, that sort
of thing,
and they are allowed to accept
unlimited
contributions for funding, their housekeeping accounts.
Now there are also obligations that come with
being a political party. You have,
lots more record keeping requirements. You have to
have a a certain, like, structure for managing
yourself.
But the financial benefits of being a political
part of you're huge,
And New York has also drawn the line
between who can be a political party and
who can't.
Largely based on how
successful and established you are at being a
political party.
So you have to have received... I think
it was a hundred and 30000 votes or
more than 2 percent of the vote,
whichever is higher
in the last
statewide
election.
That has gone up since 20 20. So
in 20 20, there were 8
official political parties in New York.
Including the libertarian party.
When they raise the threshold to a hundred
and 20000 voters, it dropped to 4 political
parties. So now the libertarian party
is not a political party
in New York. It is an independent body.
And so Democrat... The Democratic party can accept
a hundred and 38000 dollar contributions, the libertarian
party can accept 9000 dollar contributions.
Because the big parties need a lot of
help. Yeah. And and and so
so here would be helpful to give just
and I could talk about campaign finance for
way longer than our audience wants to hear.
But I'm gonna give a very, very brief
history.
Of some background principles in campaign Finance law.
So, in the 19 seventies in the wake
of the Water date scandal
Congress enacted a law called the Federal election
campaign act, which was the first
comprehensive
regulation of federal election financing.
And this was challenged in a case called
Buckle Viva.
There were 2 main components of it. It
was a it's a long case. It's like
a... A hundred and 20 somewhat odd page
case, maybe maybe even 200 pages. I I
forget. Very long.
Has got a lot going on, but the
2 main components of the law, are that
Congress enacted
contribution limits. So limits on how much you
can give to candidates or political committees,
and it enacted expenditure limits. Limits on how
much candidates could spend on their elections. And
when it got to the Supreme Court, the
Supreme Court held that expenditure limits, candidates are
a direct limit on the amount of speech
you can engage in, and so those are
subject to strict scrutiny, and they're essentially per
s
unconstitutional.
And then in a series of cases, it's
struck down expenditure limits for independent groups and
yada yada yada.
Contribution limits, it said are not so direct
a burden on your speech. They don't limit
the total quantity
of speech you can engage in. They just
limit your ability to fund it by, you
know, you have to raise money for more
people,
and so they said that gets
intermediate scrutiny. And if you know anything about
intermediate scrutiny
at this Supreme Court, you know that intermediate
scrutiny is entirely in the eye of the
behold, and sometimes it means something and sometimes
it means nothing.
The And the question is does the intermediate
scrutiny that applies to contribution limits mean something.
And for a long time, it seemed like
it didn't.
And in more recent years,
particularly since the Supreme Court's decision in citizen
United,
while the court hasn't
overturned this distinction, between contribution limits and expenditure
limits.
It seems to have started to tighten up
the
contribution limits analysis a little bit
so then we get to this case, and
the second circuit has to decide, are these
differential contribution limits,
and these differential treatment of these groups, is
it constitutional,
under the type of intermediate scrutiny that we
apply
to contribution limits.
And it holds that all of them are
fine.
That all of them are closely drawn
to the government's
compelling interest in combating, political corruption.
There is a, like, a little bit of
hope, here
that's sort of technical and procedural. The court
says that, well,
we are looking at this just as a
facial challenge to the law saying that it
could... So you have to prove it could
never constitutional apply to anyone or that most
of its applications are
unconstitutional
and it turns out that most of these
independent bodies are not
really,
essentially minor party. Campaign committees like the libertarian
party, a lot of them are alter egos
of candidates essentially. And in that case, they
say it makes sense, campaign to
treat them the way you would the candidate.
Federal law is sort of like this when
it comes to political committees that support single
candidates. They're subject to the same kinds of
contribution limits
as candidates themselves.
But then it gets a little more
complicated.
III
think the court gets it wrong, but it's
not a completely
hopeless
decision.
The court basis, a lot of its analysis
on this distinction between so called facial and
as applied challenges,
and what it says is,
this group has brought what is basically a
facial challenge. They're saying that this can never
be constitutional applied to anyone.
And as it turns out, a lot of
these independent bodies are basically alter egos of
the candidates and federal law,
treats single candidate packs as basically alter egos
of candidates. So that's not that radical.
And then there's a footnote in the case
where it says we're not making any statements
on what this would mean for a group
that was more like.
A
a real political party,
supporting multiple candidates in multiple offices over multiple
elections.
Which is kind of like a
maybe a wink and a nod towards someone
like the libertarian party saying, hey,
you know,
you guys used to be considered a political
party. The state raised the threshold, and now
you're not a political party anymore, and your
contribution limits have been, like slashed by a
factor of 9 or whatever.
You know, you might have a claim, and
as applied claim if you brought it,
so as much as I think a lot
of the analysis in the case show sort
of the the bankruptcy
of campaign finance doctrine,
it does seem like there may be some
wiggle room for for someone to bring a
successful claim here.
When it gets to the actual,
constitutional analysis, though, I think it really shows
the weakness of the
the approach to intermediate scrutiny that has ty,
contribution limits analysis,
which is... And there's a a quote from
the opinion.
So the Supreme court has that the only
reason you can have contribution limits is to
combat
the reality or appearance of quid pro quo
corruption. So actual, you know, money for political
favors. So and the court says, the scope
of quid pro quote corruption can never reliably
be ascertain.
And what this really means is like... And
so we don't need to have any evidence
that
these kinds of contributions to independent bodies. Are
actually a problem and actually results in quid
pro corruption.
And this is kind of a dodge
that
courts have used to get out of meaningful
analysis of contribution limits for decades.
And I really think
it can't hold up to meaningful full scrutiny
and in part because we have this federal
system where we have 50 different systems of
state campaign finance laws, that very wildly.
So here in Virginia, for example, there are
no contribution limits.
Individuals and even corporations can give unlimited amounts
of money
directly to political candidates.
Do people think that Virginia politics
is more corrupt, the New York Politics,
I think that sentence speaks for itself. Yeah.
What... And, you know, a few years ago,
actually, there was a a funny
report that came out holding that, like, New
Jersey.
Was the least corrupt state in the nation,
which struck me as imp.
And I I looked at it,
and I I ended up writing an op
ed with a, a friend of I j
professor, Dave P at the University of Rochester.
And what we found is that, like, the
way they were measuring corrupt is, do you
have the kinds of campaign finance laws
and lobbying laws that reformer like. And if
you have those, then you're less corrupt.
Then states that don't have those. So, you
know, Virginia, which had a relatively healthy political
culture is,
you know, extremely prone to corruption in New
Jersey is is inc interrupt.
It reminds me, cut started in interrupt paul
reminds me of, like, when you when people
grade
states and their their educational
standards by, like, how how many requirements the
teachers are required to have to to teach
classes and not like, you know, the actual
outcomes of the students.
Yep. It's kind of a similar mentality. Yeah.
Yeah. I I think it's exactly the same
kind of thing.
So
basically, what it boils down to is I
think there's the... There's never been strong evidence
that contribution limits meaningfully.
Combat
corruption, let alone the appearance of corruption. I
mean, the the fact of the matter is,
like, if contribution limits are going to remain
constitutional until people like and trust government, then
contribution limits will always be constitutional because no
amount of evidence will ever convince people
that politicians are not corrupt.
And if they're just kind of, like vibes
about political corrupt, are enough to support these
laws. These laws will always be constitutional,
which doesn't sound like any kind of evidence
based first amendment standard, like we would apply
in other areas.
And so,
you know, the question I think is like,
how long is the Supreme Court going to
allow this
to continue.
After citizen United was decided,
you know, even though citizens United was clear
that it was limited to
expenditure limits.
I really kinda thought
contribution limits are gonna be gone in 10
years. The
Robert is gonna move in kind of an
incremental way, the way he sort of does.
And, you know, in 10 years, we're gonna
see contribution limits be gone. And we have
seen contribution limit cases
in that intervening time. There was Mc versus
Fe. There was.
Cruise versus Fe,
you know, which have, you know, taken
the first amendment seriously,
you know, I sort of wonder is this
gonna be the case
where they they get cert and they're able
to convince the court that
contribution limits
need to get strict scrutiny. I'm a little
more skeptical of that now that I've taken
a closer look at the case, and, you
know, this particularly the footnote where it talks
about, hey, if this had been brought by
the libertarian party,
you know, it might be a different story,
maybe the libertarian party should bring such a
case and that could end up,
resulting in the overt overturn of, of Buckle
contribution limit holding. They may have their own
problems by the way. But they... Yeah. I
mean, the way... Yeah. I mean, we won't
we won't get into that But the lip
but, you know, the Buckle Viva ale was
actually lit,
in part by the libertarian party, and they
made the arguments.
That look, the these laws are about ham
third parties that have difficulty raising money. We
often have to rely on a smaller number
of patrons
to make us politically viable.
And I think the the facts of this
case show that. You know, this
group
here in New York is not really the
alter ego of a candidate, but it is
a very small sort of nascent political party,
the upstate jobs party. That relies on mostly
this 1 patron.
And
it's not clear why we should view them
as a greater threat. To political integrity, then
the Democratic party of New York or the
Republican party of New York. And sort of
funnily enough, when you look at
the the limited amount of actual evidence that
the court cites in the opinion, it's all
corruption by the major parties.
It says, you know,
so
like, the concerns that independent bodies will be
corrupt.
Isn't imp
because they imposed contribution limits on political parties,
for example,
because there was this widely documented paid a
play system in New York in which political
parties were ex money from people. It's like.
So
And and so that's the group that should
have 15 times higher
contribution limits than
than independent bodies.
A very odd.
And, you know, you could imagine a system
that was drawn differently that could still address
the government's...
So, like, it... At the federal level, for
example,
you can become a national party committee,
and this doesn't have to do with the
share earn the vote you get.
Instead, this... It it's basically a fact based
inquiry that the commission engages and where they
look at
Are you a real party? Like, are you
running multiple candidates in multiple states doing the
kinds of things that national parties do? And
if you show them that you are, then
they say, okay, you're a national party and
you have the higher contribution limit.
It doesn't turn on the 6... On your
success.
As a party.
And, of course, when it turns on your
success, then what you have is a sort
of reinforcing thing that keeps the
the nascent
political parties and the third parties down.
In the name of combating
circumvent
by things that are actually not political parties.
Right So
I'm I'm disappointed
in the outcome of this case.
I'm less mad at the second circuit because
I I think they're sort of using the
case law that this Supreme court has allowed
to linger.
But it does show that the... Like, that
case law is just totally divorced from political
reality and And the type of factual inquiry
that courts typically engage in in first amendment
cases. James your thoughts? Yeah. I, you know,
there's a couple of things that, I guess,
and I'm not in a campaign finance finance
expert the way the You are, Paul.
But, you know, what would jumped out to
me and maybe there's a simple answer to
this is
is it... Whether you're applying strict scrutiny or
some kind of, you know, closely drawn intermediate
scrutiny,
Chime?
It seems that the state could
potentially
satisfy its anti corruption concerns.
By simply applying the same standards in term
related to these party organizations as opposed to
parties
that they apply to independent expenditure groups like
packs.
If you're worried about coordination between the party
and these non party parties or whatever you
wanna call them, whatever they're named.
Wouldn't... I mean, couldn't they just directly address
that that interest by saying just like packs
can't coordinate with campaigns, these other groups,
can't become essentially like a super super pac
that has... And they're allowed to coordinate with
campaign. You know, there's an interesting tension in
the the case law there.
That
derive and it's been a long time since
I read these opinions, but they were in
the early 2 thousands
involving the Colorado Republican party,
and it was a series of,
2
2 cases that concerned,
whether parties, could be limited in their independent
expenditures and whether they could be limited in
their coordinated expenditures.
And the coordinated expenditures issue matters
because under federal law, a,
coordinated
expenditure
is a contribution.
So if you arrange the...
The expenditure with someone is just, like giving
them the money and letting and letting them
spend it.
The... And what the court held at the
time was that you can impose limits on
coordinated party expenditures for candidates.
This has always struck me as a really
weird holding
because the notion is that somehow,
the Republican party is capable of corrupting its
own candidates.
So it can engage in
you know, like, unlimited party expenditure as long
as it's not coordinated, and that's not corrupting
for the candidates. But if it coordinates with
someone who is a member of this very
organization, that's that's corrupting.
You know,
to to get back to your questions, I
I think that would
it would run into...
Some related constitutional issues, but but also, I
think like, the the parties who... I mean,
and realistically, it's the
Democrats Republicans and conservative party in New York
who are getting
these limits enacted,
like, they wanna be able to coordinate with
their candidates.
So they're... They're not gonna make that that
trade off. Then the question is, like, well,
is the possibility of that trade off?
A more narrowly tailored alternative that the court
should consider.
And I think what you see in this
decision is that at least under this form
of intermediate scrutiny,
narrow tailoring doesn't mean very much at all.
You know,
what it really looks to is not
whether there's a less restrictive means,
but whether the means Right the government has
adopted,
is in some vague sense reasonable.
And and what does that mean?
You know, it just kind of means whatever
the, you know, 3
judges on a federal court of appeals think
it means. And there is... That's... I think
that gets answers my question mostly that there's
1 other thing in this... Opinion that e
me, which was the decision by the court
to say we're not even gonna consider an
as applied
challenge to this. And we're just gonna look
at it facial
And the reason that in the reason that
ir me is that in the citizens United
case, back in 20 10, the court said
that, facial versus as applied only goes to
the breadth of the remedy,
not whether you have this particular claim
pleaded in a particular manner.
So the idea that, you know, what... Especially
with 1 party arguing that we do want
the court to to review this as applied.
And the court says, no, we're just not
gonna do that. We're just gonna look at
this super strong medicine of a official challenge,
and we're not gonna get into the actual
facts of the case, determine whether there was
any...
Whether there really is any actual appearance and
corruption in this case.
It it seems to me like a dodge,
and and III
imagine just as Thomas the shaking his fist
is the fact that they're going for the
facial approach instead of looking at the As
applied challenge when you have people here, To
whom the law has been applied in a
way that they are complaining about very obvious.
Yeah. I... I mean, so the facial as
applied distinction is something that... I deals with
in a ton of our cases. I'm sure
you see it in your own litigation. And
it's enormously frustrating. It's a source of major
confusion in federal courts.
And
I, like citizen United was so great because
it does have this language. It's like, it's
not about what you plead. It's about the
scope of the remedy.
You know, here, I think there's also
maybe a little bit of doc
confusion, and without having read the brief, I
I don't know who to blame for it.
But, you know, the court says because this
is a facial challenge, you have to prove
there's no set of circumstances under which it
could constitutional be applied.
That is the the normal standard for facial
challenges
outside the first amendment context.
It out sides first down contact Important. Within
the first amendment context, there's a second test,
which is the first amendment over breath doctrine.
Where a law can be held facial
unconstitutional, if a
substantial number of its applications are
unconstitutional
in comparison to the laws, what they call
the plainly legitimate sweep.
So I think more accurately, that would have...
That should have been the standard that they
announced. Although I don't know that it would
have made a difference in this case
because I think
what the court sort of handset with that
footnote is
we think that there may be a couple,
a very specific
unconstitutional applications of this.
Groups like the libertarian party and the green
party, that used to be parties and are
now no longer parties.
But we definitely think
it's
constitutional as applied to these groups that are
just the alter ego of a candidate.
And then the question is
has update jobs
pleaded sufficient facts to show that, like, it
is unique,
from these alter ego groups. And the court
does a fair amount of discussion saying, like,
well, it's not that much different
and since most of these groups are alter
ego groups.
I think if the court had been a
little more doc trying precise what it would
have said is, we're not gonna hold it
facial unconstitutional because most of the groups are
these alter ego groups who we think this
can constitutional apply to.
And then
upstate jobs
hasn't sufficiently distinguished itself from those groups. I
think maybe upstate jobs, should be considered because
it it does seem like they're trying to
be a political party. They're just not very
successful. Yeah.
And I don't think the, like, the the
question for whether you should be subject to
these contribution limits shouldn't turn on how good
you are at being a political party. It
should be. Like do you pose this threat
of corruption.
And I... It it
doesn't seem super
plausible to me that upstate Jobs does, at
least compared to a group that is truly
the alter ego of a candidate. So
Yeah. You know, that's a that's a source
of frustration. I don't know how much difference
it made to the outcome of the case,
but you know, another indication that
1 of these now d listed political parties,
if they if they have the means, which
is by no means clear,
they could consider they could consider challenging this,
and, you know, I think this decision wouldn't
fore their challenge.
I agree with that. Well, we will be
watching this case to see if yet another
case that we talk about on short circuit.
Goes to the supreme court. I was realizing
the other day that a a bunch of
cases from last term were cases that we
talked about short circuit sometimes like,
3 years ago, and then through the
vaccinations of the lower courts, eventually, they they
got up to the supreme court. So I
think I think what we might do soon
on the show is do a kind of
a where are they now
on on some of those past case. Is
that that that we talked about and got
supreme Court. Course Most cases, we talked about,
that is the Apex of their career, and
and that's fine and their they're a good
story. But this some of them go further.
So,
that will be a future show. This show.
Thank you guys very much for this
this great, first amendment
conversation. James good luck in the rest of
your case and your other,
efforts at the upper Midwest law center. Thank
you. And, Paul, for all your, your matters
going forward. I'm sure we'll have you on
again soon. But for the rest of you,
stay tuned, we gotta, a couple special episodes
coming up in the next couple weeks, but
in the meantime, I'd ask that all of
you. Get engaged.
Couple