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Hello. And welcome to short circuit. Your podcast

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from the federal Courts of appeals. I'm your

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host, Anthony Sanders. Director of the center for

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judicial engagement at the Institute for Justice. We're

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recording this on Thursday, 07/11/2024

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and we have a bit of a first

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amendment

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special today.

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We have a special guest who's gonna talk

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about a recent vic... 3 of his under

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the first amendment involving

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public school speech in the eighth circuit, and

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then we're gonna turn to an old friend

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who's going to

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discuss the latest campaign finance news from the

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a second circuit, and you may feel a

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little bit of, anger in his voice as

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he explains why the court doesn't really understand

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the first amendment. So we'll get to that

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in a little while, and that will be

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our dear colleague, Paul Sermon. So Paul, welcome

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back to short circuit. Hey. Thanks for having,

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Anthony. It's great to be back.

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Paul is 1 of our campaign finance

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experts, so she... You should all stick around

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and enjoy his expectation of this latest case

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from the second circuit. But before that,

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we have

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someone who a long time ago was a

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clerk. At the Institute for justice

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Minnesota chapter.

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That was aft just after he came off

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his

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career

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as a golf pro. And I think this

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is the first time we have a former

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golf pro or, you know, maybe put, like,

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current golf pro, you might even say. On

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the show,

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he's gone on to bigger and better things

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since since those many years ago, he now

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is a lit at the upper Midwest law

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center in the great state of Minnesota, and

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that is, James Dick. So James, welcome to

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short circuit,

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Anthony, thanks so much for having me on,

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and I I appreciate you bringing up my

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exploits as a golf pro. It's always nice

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to the har back to those days. Yeah.

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Well, you know, we could just turn this

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into

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into a golf podcast.

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But, I remember you you you were you

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were doing the golf. Thing and then law

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school kind of rose, and you had the

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you had to choose the 1 path or

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the other

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and and you chose Law. But then you

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you moved to Minnesota, and it was like

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you think You move... I remember with that

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summer, you had just come to Minnesota first

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time. It was like you you came to

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the promised land. But the problem was it

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was summer. You week... And I think I

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remember we all told you we reminded you

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that several times, but you've stuck around for

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like, 14 winters now.

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Yeah. I'm the rare person who's moved from

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originally South Florida to now.

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And because of the weather mostly.

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And I... I'm a transplant from Florida myself

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to Northern Virginia, and it

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there's appeal to moving to a place with

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seasons if you grow up in Florida.

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I... Exactly. You get it. Well, we get

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it. And, also, I think the eighth circuit

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gets

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a little bit of the first amendment. So

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tell us about this case, so James actually

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argued,

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and won this case at the motion to

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dismiss stage. At the eighth circuits now I've

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been rem for further proceedings. So

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what's it all about?

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Thanks, Anthony. Yeah, this case is called, K

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june versus independence school district 1 94. It's

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the Lake fill public school system.

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And our clients are Bob and Cynthia K

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june and other parent of children in the

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school district at the Lake schools.

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What happened here is after the death of

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George Floyd in May of 20 20

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teachers and local activists in the Lake fill

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public school district decided that they wanted

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the school district to put Black lives matter,

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posters up in the school. And the district's

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policy at the time, contrary to that, which

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is by the way, the same policy that

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it is today, at least on its face,

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is neutrality on all political

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issues like the black lives matter issue.

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And

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what the district had said to those local

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activists at the time was no. No. No.

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No, No. For months, they pressured the school

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district and said you need to put up

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these posters

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because we need to have this this message

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endorsed essentially by the district. District said, no

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We can't do that We can't do that

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we can't do that because of our neutrality

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policy.

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Well, all of a sudden, in March of

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20 21,

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the

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inclusive poster series as it's called, shows up

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at the district's work session.

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And by April 20 21, the district had

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completely allowed these these posters created by private

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activists

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to be put into school district Hallways and

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classrooms, not by the district's districts own

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affirmative

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decision to put those posters up, but based

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on the individual decisions, of teachers and administrators

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who want to feature this message themselves.

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Well, at the same time, our clients throughout

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this entire process

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had been, going to school board meetings, being

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in involved locally in their in their local

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school district

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and

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continuing to praise the decision of staying neutral.

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Neutral neutral neutral don't don't and get into

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politics in our in our classrooms and hallways.

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And the...

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And then after the school district flipped 1

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80 on this issue,

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they said, well, hold on a second, you're

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going to allow these local activists to have

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these messages placed up by teachers and administrators

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and others,

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in the hallways and classrooms of the district,

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then you also need to allow messages like

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blue lives matter and all lives matter to

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be placed up equally.

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Well, that didn't sit well with the district,

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and

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it never cease to amaze me what some

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people will actually say in writing in response

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to agreed like this.

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But

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the the response to the request to allow

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those types of...

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Posters to be placed was that all lives

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matter in Blue Lives matter motto were created

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specifically in opposition to Black lives matter.

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And so the district would not allow them

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because they expressed a contrary point

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to the...

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School districts allowing this private. That was not

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run by the district's districts council. I'm I...

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I'm guessing. I attorneys.

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Assume not. I'm... I look forward to the

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deposition to find out exactly what went into

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this.

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So... You know, so our clients we're obviously

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very upset by this. They believe that they

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were,

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Heather Viewpoint discriminated against, so we brought this

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lawsuit on their behalf.

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District Court dismissed on under on rule 12,

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And the basis for the dismissal was that

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the school district had essentially actually engaged in

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government speech.

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And the government speech doctrine allows governments to

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say whatever they want

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without triggering first amendment scrutiny

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under the test that was originally 1 hour,

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maybe not originally, but famously put forth in

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the pleasant grow versus Sum case

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and then recently,

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reaffirmed and and kind of, I think,

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improved and

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clarify by the

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shirt lift versus city of Boston case from

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the Supreme Court just a couple years ago.

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Now the the district court... District court held,

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you know, there is no there is no

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right for some right here because the district

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is engaging in government speech.

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And the district court didn't actually get to

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the merits of the case below for Of

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course, that was something that the district could

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raise as an alternative argument for affirm at

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the a circuit.

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Then that we appealed the case to the

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a circuit.

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The a circuit then says,

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no. This is not government speech. And there's

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another part of the decision that's the beginning

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of the decision talking about whether plaintiffs can

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proceed as pseudo, which is interesting issue, but

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maybe beside the point for for this particular

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discussion, talking but the... The the court of

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appeals, the a circuit court of appeal said,

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under the test from Sum and Walker and

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Shirt lift,

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The school district did exactly what the Supreme

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Court said you cannot do as a government

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in mattel versus Tam, which is to slap

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a government in promoter on private speech and

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call it government speech.

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And I think that that mattel case

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persuasive

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says, you know, this is a doctrine that

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is subject to dangerous misuse. And as you

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can tell from the facts as I relay

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them to you, and and I have my

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biases, but I'm pretty confident that we got

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the public record right on this on this

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case.

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This was all cooked up. By private activists,

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and the school district at the very last

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minute came in and put their imp promoter

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on this poster series and allowed

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teachers and administrators to make the individual decisions

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to hang them up. And as a result,

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the a circuit said that's not government speech.

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Your laundering private speech through the government and

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promoter. And on top of that, this is

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where, you know, this this decision is really

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good. In our view it makes it very

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difficult for the district now

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as if if as if we... If we

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go forward to summary judgment here,

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it... The just... The the court actually said

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that the government

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engaged in viewpoint discrimination. Now I know it's

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a rule 12

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motion, and the court is deciding whether or

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not we've stated to the claim for,

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viewpoint discrimination. But the court held that there

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is a limited public forum here because they

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opened up their hallways

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and classrooms. So that issue as far as

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I'm concerned unless the facts and discovery show

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something wildly different from what the public record

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shows.

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Is essentially established for this case.

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And

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beyond that, the the

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The district... The court said this, I'll quote

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from it and the page 16 of the

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decision. According to the district, however, it rejected

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Ka june request because the phrase is all

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lives matter in blue lives matter were created

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specifically in opposition to black lives matter.

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Quote, that was imp,

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viewpoint

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discrimination

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So

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You know,

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we have the email from the administrator and

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the court was analyzing their own words. The

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time. It's gonna be kinda hard for them

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to back away from that. So

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the a circuit held that,

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we did state a claim for a few

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viewpoint discrimination to the first amendment. And since

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the government speech doctor didn't apply, the the

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case has to go forward to

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summary judgment and potentially trial.

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Paul, this isn't an issue. The issue of

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00:10:37,802 --> 00:10:40,341
government speech is an issue we really cross

276
00:10:40,341 --> 00:10:43,039
paths with much with at I j. But

277
00:10:43,769 --> 00:10:46,099
I I'm guessing you agree with me that

278
00:10:46,475 --> 00:10:49,022
kind of the the the lines around what

279
00:10:49,022 --> 00:10:51,012
is government speech and what isn't have gotten

280
00:10:51,012 --> 00:10:53,099
a little... Clear in the last few years

281
00:10:53,099 --> 00:10:54,933
with that the Mattel case, the 1 that

282
00:10:55,093 --> 00:10:58,123
James mentioned and that the Boston flag case.

283
00:10:58,442 --> 00:11:00,196
Did do you see this as kind of,

284
00:11:00,276 --> 00:11:00,776
like

285
00:11:01,087 --> 00:11:02,438
the next level after,

286
00:11:03,152 --> 00:11:05,297
after those cases, these kind of situations.

287
00:11:06,885 --> 00:11:08,894
You know, I I think

288
00:11:09,444 --> 00:11:11,302
this was sort of so clearly

289
00:11:11,841 --> 00:11:12,341
not

290
00:11:12,720 --> 00:11:13,859
government speech

291
00:11:14,318 --> 00:11:14,797
that

292
00:11:15,356 --> 00:11:17,788
I I don't think it develops the doctrine

293
00:11:18,086 --> 00:11:19,761
in kind of a new way. But I

294
00:11:19,761 --> 00:11:21,755
think what this case does is it really

295
00:11:21,755 --> 00:11:22,255
shows

296
00:11:22,951 --> 00:11:25,822
the danger and the temptation of the government

297
00:11:25,822 --> 00:11:26,540
speech doctrine.

298
00:11:27,988 --> 00:11:28,488
Because

299
00:11:28,942 --> 00:11:29,420
clearly,

300
00:11:29,817 --> 00:11:31,590
what has happened here

301
00:11:32,124 --> 00:11:33,340
is the

302
00:11:34,287 --> 00:11:36,436
the school district is sort of trying to

303
00:11:36,436 --> 00:11:38,427
play, like, a a heads eye win tails

304
00:11:38,427 --> 00:11:39,086
you lose

305
00:11:39,541 --> 00:11:40,041
where

306
00:11:42,421 --> 00:11:43,319
they will

307
00:11:44,568 --> 00:11:46,636
be able to get only 1 set of

308
00:11:46,636 --> 00:11:47,510
messages out there,

309
00:11:49,499 --> 00:11:49,999
without

310
00:11:50,469 --> 00:11:53,105
being accused of viewpoint discrimination. And the way

311
00:11:53,105 --> 00:11:55,502
to do that is to actually make it

312
00:11:55,502 --> 00:11:57,201
government speech, but

313
00:11:57,674 --> 00:11:59,930
they also want to affirmative disc

314
00:12:00,548 --> 00:12:02,942
that this is their speech because they don't

315
00:12:02,942 --> 00:12:03,980
wanna make anybody mad.

316
00:12:05,337 --> 00:12:06,316
And the

317
00:12:06,627 --> 00:12:09,324
the results, I think the the court does

318
00:12:09,324 --> 00:12:10,038
a good job saying,

319
00:12:11,228 --> 00:12:12,655
you know, at this stage, at the motion

320
00:12:12,655 --> 00:12:14,321
to dismiss, we actually have to read the

321
00:12:14,321 --> 00:12:16,162
fact actual allegations in the light that are

322
00:12:16,162 --> 00:12:17,511
most favorable to the plaintiff.

323
00:12:18,941 --> 00:12:21,005
And here it really does seem like, you

324
00:12:21,005 --> 00:12:23,008
know, no, they actually just 2 wanted to

325
00:12:23,008 --> 00:12:25,561
let these these other people on 1 side

326
00:12:25,561 --> 00:12:27,396
of a political debate into the schools.

327
00:12:28,194 --> 00:12:29,731
James, I appreciated your

328
00:12:30,605 --> 00:12:33,245
discussion of the facts too because it clarified

329
00:12:33,245 --> 00:12:34,544
some questions I had

330
00:12:35,725 --> 00:12:37,264
about sort of different ways

331
00:12:37,579 --> 00:12:39,732
this might have been structured that would not

332
00:12:39,732 --> 00:12:41,269
have raised some of

333
00:12:42,125 --> 00:12:42,784
the same

334
00:12:43,241 --> 00:12:44,518
constitutional problems,

335
00:12:46,192 --> 00:12:48,437
like it it I wondered it first, like,

336
00:12:48,676 --> 00:12:50,982
why are these private citizens? Why do they

337
00:12:50,982 --> 00:12:52,255
have standing to sue?

338
00:12:55,139 --> 00:12:55,639
And

339
00:12:56,340 --> 00:12:58,420
because the the case keeps discussing it about,

340
00:12:58,580 --> 00:13:00,679
like, well, this is about whether teachers have

341
00:13:00,980 --> 00:13:03,314
these messages in their classrooms. And it seemed

342
00:13:03,314 --> 00:13:05,551
to me that, like, maybe what the the

343
00:13:05,551 --> 00:13:07,948
school could have done is say, you know

344
00:13:07,948 --> 00:13:08,108
what,

345
00:13:09,067 --> 00:13:10,505
we're changing our policy,

346
00:13:11,477 --> 00:13:13,386
and now teachers will be allowed to make

347
00:13:13,386 --> 00:13:15,375
political statements in the classroom. Now, of course,

348
00:13:15,534 --> 00:13:17,363
if they did that, teachers would have to...

349
00:13:17,522 --> 00:13:19,272
They couldn't engage a viewpoint discrimination.

350
00:13:20,164 --> 00:13:22,404
A teacher who wanted to put up, all

351
00:13:22,404 --> 00:13:24,404
lives matter or Blue Lives matter would be

352
00:13:24,404 --> 00:13:24,964
able to sue.

353
00:13:26,164 --> 00:13:28,345
But as your explanation made clear, that's

354
00:13:28,819 --> 00:13:30,257
that's not what they did. I mean, they

355
00:13:30,257 --> 00:13:32,495
basically did say, like, nope. We're we're gonna

356
00:13:32,495 --> 00:13:34,253
let people come in and put these posters

357
00:13:34,253 --> 00:13:35,291
up in the hallways.

358
00:13:37,384 --> 00:13:39,625
And we're only letting 1 side of the

359
00:13:39,625 --> 00:13:40,424
political debate in.

360
00:13:41,304 --> 00:13:43,225
And when you do that, yeah, I think

361
00:13:43,225 --> 00:13:45,317
the facts are pretty clear, they have they

362
00:13:45,317 --> 00:13:47,142
didn't have to create a limited public forum.

363
00:13:47,935 --> 00:13:49,443
They didn't have to create a limited public

364
00:13:49,443 --> 00:13:50,792
forum that was as broad as they did.

365
00:13:52,394 --> 00:13:53,827
But that's what they did. And if you

366
00:13:53,827 --> 00:13:55,659
do that, you can't engage in viewpoint discrimination.

367
00:13:56,296 --> 00:13:57,889
Yeah. And just to just to add on

368
00:13:57,889 --> 00:14:00,039
that, Paul, thank you for that. I... You

369
00:14:00,039 --> 00:14:02,446
know, this is... A situation. We we we

370
00:14:02,446 --> 00:14:04,442
we've run across this issue, of course, with

371
00:14:04,442 --> 00:14:07,315
other school districts around Minnesota, and it's something

372
00:14:07,315 --> 00:14:10,678
that governments across the country, are engaging and

373
00:14:10,678 --> 00:14:12,583
you you take a contrary example to this

374
00:14:12,583 --> 00:14:13,536
case and you look at

375
00:14:14,330 --> 00:14:16,473
New York City, Mayor D blasio at the

376
00:14:16,473 --> 00:14:19,106
time, I believe affirmative said, we are going

377
00:14:19,106 --> 00:14:21,642
to put black lives matter on, you know,

378
00:14:22,117 --> 00:14:23,861
murals in the city of of New York.

379
00:14:24,416 --> 00:14:24,916
And

380
00:14:25,383 --> 00:14:27,234
they made that decision. It was the government's

381
00:14:27,449 --> 00:14:29,913
idea. The government crafted the messaging, the government

382
00:14:29,913 --> 00:14:31,026
did all that kind of stuff.

383
00:14:31,821 --> 00:14:33,490
And and I think it was the second

384
00:14:33,490 --> 00:14:33,728
circuit.

385
00:14:34,539 --> 00:14:35,018
Held that,

386
00:14:35,657 --> 00:14:38,052
despite their bad decisions on campaign finance law

387
00:14:38,052 --> 00:14:38,451
sometimes,

388
00:14:39,089 --> 00:14:41,564
they upheld that, and and we distinguish that

389
00:14:41,564 --> 00:14:43,320
case from this case in our briefing.

390
00:14:44,052 --> 00:14:46,121
And what's interesting about this case as well

391
00:14:46,121 --> 00:14:46,598
is that,

392
00:14:47,393 --> 00:14:49,223
well, while this is a rule 12 decision,

393
00:14:49,382 --> 00:14:52,505
like I mentioned before, the the the district

394
00:14:52,505 --> 00:14:54,740
in this case supplemented the record, and we...

395
00:14:54,979 --> 00:14:56,655
We're okay with it because, hey, the tree

396
00:14:56,655 --> 00:14:58,012
shelves that you free. We're happy to have

397
00:14:58,012 --> 00:14:58,651
public record in.

398
00:14:59,943 --> 00:15:01,941
Really brought a lot of the public record

399
00:15:01,941 --> 00:15:03,959
that will be the discovery in this case

400
00:15:04,019 --> 00:15:06,975
into this rule 12 motion on appeal,

401
00:15:07,548 --> 00:15:09,613
and, you know, that was all stuff that

402
00:15:09,613 --> 00:15:10,962
we talked about in the in the oral

403
00:15:10,962 --> 00:15:12,471
argument, which you can, of course, go back

404
00:15:12,471 --> 00:15:14,877
and listen to is a really very interesting

405
00:15:15,092 --> 00:15:16,203
oral argument. And there's...

406
00:15:16,933 --> 00:15:19,309
There is 1 other kind of follow on

407
00:15:19,309 --> 00:15:20,815
issue that I think is an interesting 1,

408
00:15:20,973 --> 00:15:23,271
and it doesn't necessarily get to the first

409
00:15:23,271 --> 00:15:23,588
amendment.

410
00:15:24,079 --> 00:15:25,673
But it gets to the question of to

411
00:15:25,673 --> 00:15:26,891
what degree

412
00:15:27,347 --> 00:15:30,297
are government speech actions by school districts like

413
00:15:30,297 --> 00:15:31,731
this if they if they were to.

414
00:15:32,544 --> 00:15:34,697
Go back and recreate the policy and change

415
00:15:34,697 --> 00:15:35,973
the way that they approached it and make

416
00:15:35,973 --> 00:15:36,771
their own messaging.

417
00:15:37,170 --> 00:15:39,642
To what degree does, does kind of local

418
00:15:39,642 --> 00:15:41,876
government really get into politics.

419
00:15:42,769 --> 00:15:44,867
To what degree can they use taxpayer dollars

420
00:15:45,326 --> 00:15:45,826
to

421
00:15:46,205 --> 00:15:49,082
get involved in partisan politics, Can they... Well

422
00:15:49,162 --> 00:15:50,441
I think it was judge G who asked

423
00:15:50,441 --> 00:15:52,050
me at the world or ask the opposing

424
00:15:52,050 --> 00:15:53,082
counsel of the oral argument.

425
00:15:53,717 --> 00:15:53,955
Can,

426
00:15:54,669 --> 00:15:56,177
the school they're certain to decide that they're

427
00:15:56,177 --> 00:15:59,447
going to create a mantra of the We

428
00:15:59,447 --> 00:16:01,118
need from the river to the sea and

429
00:16:01,118 --> 00:16:03,106
paint that on the on the hallways of

430
00:16:03,106 --> 00:16:05,493
their... Of the school district using taxpayer dollars.

431
00:16:06,144 --> 00:16:08,060
And there wasn't really a good answer to

432
00:16:08,060 --> 00:16:08,698
that question.

433
00:16:09,656 --> 00:16:11,333
And and I think that even the school

434
00:16:11,333 --> 00:16:14,286
district attorneys recognize that obviously political speech could

435
00:16:14,286 --> 00:16:16,319
run a file. State constitutional

436
00:16:16,857 --> 00:16:19,575
provisions, Anthony since that's a that's your baby

437
00:16:19,575 --> 00:16:20,374
state constitution.

438
00:16:21,333 --> 00:16:22,691
And I think that there is something there

439
00:16:22,851 --> 00:16:23,970
There's a public purpose,

440
00:16:24,464 --> 00:16:26,694
There's there's a a backstop that's gonna prevent

441
00:16:26,694 --> 00:16:28,764
government speech from in ent on...

442
00:16:30,516 --> 00:16:32,825
Are you making illegitimate uses of taxpayer dollars.

443
00:16:33,477 --> 00:16:35,646
For for political purposes. Yeah. This is something

444
00:16:35,782 --> 00:16:37,792
that I was thinking about recently

445
00:16:39,517 --> 00:16:40,017
because

446
00:16:41,524 --> 00:16:42,965
the court touches on this a little bit

447
00:16:42,965 --> 00:16:44,804
where... When it says that, you know, the

448
00:16:44,804 --> 00:16:46,485
the government has a right to speak and

449
00:16:46,485 --> 00:16:48,644
typically your remedy when the government speaks and

450
00:16:48,644 --> 00:16:51,604
you don't like it. Is the political remedy

451
00:16:51,604 --> 00:16:52,953
at the ballot box. And I think New

452
00:16:53,112 --> 00:16:54,620
York's a great example of that. You know,

453
00:16:54,779 --> 00:16:57,001
if if you say, hey, I don't like

454
00:16:57,001 --> 00:16:58,056
how politicized

455
00:16:58,604 --> 00:17:00,681
the school district has become then you vote

456
00:17:00,681 --> 00:17:01,800
for different school board members.

457
00:17:02,918 --> 00:17:04,457
But there does seem to be

458
00:17:04,835 --> 00:17:07,562
some... Deeper principle that I think is not

459
00:17:07,562 --> 00:17:09,257
well developed in the case law

460
00:17:09,634 --> 00:17:10,590
that is almost...

461
00:17:11,228 --> 00:17:13,141
And maybe people have written about this, and

462
00:17:13,221 --> 00:17:15,304
I'm just familiar with the literature. But there's

463
00:17:15,304 --> 00:17:16,918
almost like an anti prop

464
00:17:17,611 --> 00:17:18,111
principle

465
00:17:18,725 --> 00:17:19,225
that

466
00:17:20,395 --> 00:17:24,413
are there are limits to the government's ability

467
00:17:24,550 --> 00:17:25,050
to

468
00:17:26,301 --> 00:17:28,155
engage in partisan propaganda.

469
00:17:29,424 --> 00:17:31,921
In ways that sort of directly undermine

470
00:17:33,418 --> 00:17:35,415
kind of the the the balance of our

471
00:17:35,415 --> 00:17:37,268
political system? Because it... Like, it's 1 thing

472
00:17:37,268 --> 00:17:39,586
to say you can't engage in viewpoint discrimination.

473
00:17:41,903 --> 00:17:42,403
But

474
00:17:42,782 --> 00:17:44,940
in the government's own speech, like can the

475
00:17:44,940 --> 00:17:47,185
government go out there and and just talk

476
00:17:47,185 --> 00:17:49,751
about how great Republicans are and how terrible

477
00:17:50,204 --> 00:17:51,317
Democrats are. Right.

478
00:17:52,032 --> 00:17:53,781
You know, like, like, could that be the

479
00:17:53,781 --> 00:17:56,574
official lesson plant in Minnesota schools. Like, today,

480
00:17:56,653 --> 00:17:58,875
we're gonna learn about how terrible Republicans are

481
00:17:58,875 --> 00:18:01,414
and and how great democrats are, or vice

482
00:18:01,414 --> 00:18:01,652
versa.

483
00:18:03,000 --> 00:18:05,174
And And in many ways, I think some

484
00:18:05,174 --> 00:18:05,914
of these

485
00:18:06,295 --> 00:18:06,615
issues,

486
00:18:07,414 --> 00:18:09,494
a lot of the really interesting first amendment

487
00:18:09,494 --> 00:18:11,974
issues that arise in the context of public

488
00:18:11,974 --> 00:18:12,214
schools.

489
00:18:12,949 --> 00:18:13,449
Arise

490
00:18:13,906 --> 00:18:14,406
because

491
00:18:15,263 --> 00:18:17,898
people's interactions with public schools are not fully

492
00:18:17,898 --> 00:18:18,398
voluntary.

493
00:18:19,335 --> 00:18:21,570
You know, we have compulsory education laws, your

494
00:18:21,570 --> 00:18:22,937
kids have to go to school,

495
00:18:24,288 --> 00:18:27,387
a private school typically could engage in this

496
00:18:27,387 --> 00:18:29,692
kind of blatant viewpoint discrimination, and it could

497
00:18:29,692 --> 00:18:31,771
say, you know, if you wanted to have,

498
00:18:31,930 --> 00:18:34,547
like, the the this the super woke,

499
00:18:35,420 --> 00:18:37,799
private school or the super conservative private school,

500
00:18:38,037 --> 00:18:38,593
you could do that.

501
00:18:39,963 --> 00:18:41,801
But if kids are forced to attend,

502
00:18:43,000 --> 00:18:45,397
if their parents can be punished like Si

503
00:18:45,397 --> 00:18:47,235
or criminal for not sending them there,

504
00:18:48,368 --> 00:18:49,884
then it does seem that there should be

505
00:18:49,884 --> 00:18:52,857
limits on the government's ability to, like, ind

506
00:18:53,952 --> 00:18:54,990
or propaganda dies.

507
00:18:55,641 --> 00:18:57,151
But it but I also feel like those

508
00:18:57,151 --> 00:18:59,375
are not fully developed in the case lot

509
00:18:59,375 --> 00:19:00,193
yet. But

510
00:19:00,806 --> 00:19:03,428
as, like, politics comes to dominate more and

511
00:19:03,428 --> 00:19:05,038
more asp. Of our life. Maybe

512
00:19:05,757 --> 00:19:07,755
maybe we will see further development in that.

513
00:19:08,714 --> 00:19:10,232
I I just wanna... Know I wanna get

514
00:19:10,232 --> 00:19:12,310
too far field of this decision, but, we

515
00:19:12,310 --> 00:19:12,550
also...

516
00:19:13,202 --> 00:19:14,873
In the Ace circuit a couple years ago,

517
00:19:15,430 --> 00:19:16,862
at the motion to this message stage, won

518
00:19:16,862 --> 00:19:19,329
a case related to the municipal taxpayer standing

519
00:19:19,329 --> 00:19:19,647
doctrine.

520
00:19:20,298 --> 00:19:21,805
And it has to do with whether municipal

521
00:19:21,805 --> 00:19:22,305
taxpayers

522
00:19:22,836 --> 00:19:24,130
can be forced to

523
00:19:24,502 --> 00:19:25,002
subsidize

524
00:19:25,692 --> 00:19:26,565
union leave,

525
00:19:27,374 --> 00:19:27,874
for

526
00:19:28,252 --> 00:19:28,752
politics

527
00:19:29,129 --> 00:19:29,927
political purposes,

528
00:19:30,645 --> 00:19:32,241
within the school, you know, teachers from the

529
00:19:32,241 --> 00:19:35,127
school district taking time out of teachings students

530
00:19:35,127 --> 00:19:37,038
to go and lobby in S saint. Paul.

531
00:19:37,754 --> 00:19:38,948
And so it's kind of a follow on.

532
00:19:39,107 --> 00:19:41,496
And I I think the municipal taxpayer standing

533
00:19:41,496 --> 00:19:42,633
doctrine and whether

534
00:19:42,944 --> 00:19:44,614
you know, what message of it is left

535
00:19:44,614 --> 00:19:46,285
and what message of it will be left

536
00:19:46,285 --> 00:19:48,114
after we are now up on appeal and

537
00:19:48,114 --> 00:19:49,546
summary judgment on that same case,

538
00:19:50,196 --> 00:19:51,070
on the same issue,

539
00:19:51,784 --> 00:19:53,530
the hai angle versus an independent schools or

540
00:19:53,530 --> 00:19:55,910
11 case, what is going to be... You,

541
00:19:55,990 --> 00:19:58,132
there's a there is a unique relationship between

542
00:19:58,132 --> 00:20:00,532
the the local taxpayer to the school district,

543
00:20:00,929 --> 00:20:03,394
and that school district itself. That's very similar

544
00:20:03,394 --> 00:20:05,722
to the, you know, the compelled

545
00:20:06,335 --> 00:20:07,448
association inherent in

546
00:20:07,925 --> 00:20:11,202
the union members related to their, their... Or...

547
00:20:11,441 --> 00:20:13,828
Collect... Members of a collective bargaining unit related

548
00:20:13,828 --> 00:20:15,897
to their public employers like in the Jan

549
00:20:15,897 --> 00:20:17,193
case. So

550
00:20:17,582 --> 00:20:19,483
I think that there's a a lot of

551
00:20:19,483 --> 00:20:21,226
interplay. And by the way, you know, a

552
00:20:21,226 --> 00:20:22,415
couple of our clients in this case you

553
00:20:22,415 --> 00:20:24,079
asked about standing, a couple of our clients.

554
00:20:24,729 --> 00:20:25,048
Are,

555
00:20:25,605 --> 00:20:28,257
taxpayers. And they're stay standing as taxpayers

556
00:20:28,633 --> 00:20:30,705
because of the a circus decision in the

557
00:20:30,864 --> 00:20:31,843
He case

558
00:20:32,392 --> 00:20:34,930
so anyway, this is all... There's... These issues

559
00:20:34,930 --> 00:20:38,181
are are certainly needing more development. So glad

560
00:20:38,181 --> 00:20:40,578
to be involved with trying to... Push the

561
00:20:40,578 --> 00:20:42,333
law a little bit. Yeah. That case, glad

562
00:20:42,333 --> 00:20:44,327
you brought brought that up, James. That is

563
00:20:44,327 --> 00:20:44,646
a...

564
00:20:45,523 --> 00:20:47,278
I was... I remember, I was surprised when

565
00:20:47,278 --> 00:20:48,554
you told me about that case a couple

566
00:20:48,554 --> 00:20:49,750
years ago, and I and I read it

567
00:20:49,750 --> 00:20:51,619
because that a little bit of an exception

568
00:20:51,676 --> 00:20:52,176
to

569
00:20:52,711 --> 00:20:56,372
the the barr on taxpayers standing in federal

570
00:20:56,372 --> 00:20:58,202
court, Right. Which is if if it's the

571
00:20:58,202 --> 00:21:00,445
federal government state is you're out of luck.

572
00:21:00,604 --> 00:21:03,092
If you're just a taxpayer unless it's establishment

573
00:21:03,149 --> 00:21:04,842
clause the 1 exception. But

574
00:21:05,536 --> 00:21:08,569
with municipality, there is this kind of recognition

575
00:21:08,569 --> 00:21:10,076
that it's kinda of more like you're a

576
00:21:10,076 --> 00:21:12,378
shareholder for a private company. And, you know,

577
00:21:12,457 --> 00:21:14,521
they analog to that. So to the extent

578
00:21:14,521 --> 00:21:16,207
that exists, is we'll put a link in

579
00:21:16,207 --> 00:21:18,280
the in the show notes to that case

580
00:21:18,280 --> 00:21:20,434
if people are interested. And the the final

581
00:21:20,434 --> 00:21:22,348
thing I'd say about the the public schools

582
00:21:22,348 --> 00:21:22,508
is,

583
00:21:23,385 --> 00:21:25,275
I I have all kinds of

584
00:21:26,430 --> 00:21:28,740
critiques to make of public education as do

585
00:21:28,740 --> 00:21:30,971
many of us at I and people are

586
00:21:30,971 --> 00:21:33,797
familiar with our school choice, work won't be

587
00:21:33,855 --> 00:21:36,246
surprised by that, But I think it's to

588
00:21:36,246 --> 00:21:36,963
some extent,

589
00:21:37,681 --> 00:21:39,456
maybe a a sign of a

590
00:21:39,912 --> 00:21:40,684
that that we

591
00:21:41,442 --> 00:21:44,313
healthy political culture such as it is as

592
00:21:44,313 --> 00:21:46,726
that Paul was saying that these issues aren't

593
00:21:46,864 --> 00:21:49,676
developed that much in the case law because

594
00:21:50,226 --> 00:21:51,045
if school

595
00:21:51,579 --> 00:21:53,487
schools have done all kinds of crazy things,

596
00:21:53,885 --> 00:21:55,714
but it seems like... I mean, maybe this

597
00:21:55,714 --> 00:21:57,544
was not true in Jim Crow south, I

598
00:21:57,544 --> 00:21:59,950
don't know. But in in public schools you

599
00:21:59,950 --> 00:22:02,981
don't typically just have, okay. Our policy is

600
00:22:02,981 --> 00:22:05,135
we're gonna say that this party is always

601
00:22:05,135 --> 00:22:07,218
right. This party is always wrong, and you

602
00:22:07,218 --> 00:22:09,681
should vote for this party when you turn

603
00:22:09,681 --> 00:22:09,919
18.

604
00:22:10,634 --> 00:22:13,836
Don't really have that in American public schools

605
00:22:13,892 --> 00:22:16,053
for And I think it's the political checks

606
00:22:16,053 --> 00:22:16,371
on it.

607
00:22:17,086 --> 00:22:18,596
Luckily have kept that bay,

608
00:22:19,312 --> 00:22:20,822
even though there's all kinds of, of course,

609
00:22:21,378 --> 00:22:23,127
ideological benson in in all kinds of ways.

610
00:22:24,338 --> 00:22:26,655
I would say that in some ways, this

611
00:22:26,655 --> 00:22:28,834
is the flip side of the issue

612
00:22:29,292 --> 00:22:29,692
that

613
00:22:30,251 --> 00:22:31,151
justice All,

614
00:22:31,704 --> 00:22:34,505
highlighted in back in the angry cheerleader case.

615
00:22:34,984 --> 00:22:36,184
So from a years ago,

616
00:22:36,744 --> 00:22:39,144
this favorite case of mind, many listeners probably

617
00:22:39,144 --> 00:22:41,389
remember about the cheerleader said something on,

618
00:22:42,184 --> 00:22:45,203
Snapchat and got punished and whether that's, in

619
00:22:45,203 --> 00:22:46,951
school speech out of school speech and all

620
00:22:46,951 --> 00:22:49,506
that, And just Ali toledo, who I disagree

621
00:22:49,506 --> 00:22:50,616
with on a lot of things.

622
00:22:51,330 --> 00:22:53,790
Had a really interesting concur I really liked

623
00:22:53,790 --> 00:22:55,298
where he said, you know,

624
00:22:56,268 --> 00:22:58,981
public... Before all the reasons Paul gave, public

625
00:22:58,981 --> 00:23:00,577
schools are just kind of a weird thing

626
00:23:00,577 --> 00:23:02,332
when it comes to first amendment, you're forced

627
00:23:02,332 --> 00:23:04,578
to go there. But the the the school

628
00:23:04,578 --> 00:23:07,046
does have this ability to, you know, teach

629
00:23:07,046 --> 00:23:09,355
the doctor it thinks is correct about all

630
00:23:09,355 --> 00:23:10,970
kinds of stuff. And

631
00:23:12,075 --> 00:23:14,454
it's... You gotta find a a comfortable kinda

632
00:23:14,454 --> 00:23:16,833
medium there that comp ports with all kinds

633
00:23:16,833 --> 00:23:19,863
of values, including for amendment values, but It's

634
00:23:19,863 --> 00:23:21,855
not exactly clear what what that's supposed to

635
00:23:21,855 --> 00:23:22,014
be.

636
00:23:23,049 --> 00:23:23,687
And so,

637
00:23:24,324 --> 00:23:27,388
I'm glad James at this case is. Shown

638
00:23:27,523 --> 00:23:29,136
a few a few lines

639
00:23:29,589 --> 00:23:32,529
about about where that's supposed to be. So

640
00:23:32,529 --> 00:23:34,674
there's there's lines when it comes to public

641
00:23:34,674 --> 00:23:35,174
schools

642
00:23:35,484 --> 00:23:37,639
but there's much clear lines, I think when

643
00:23:37,639 --> 00:23:39,395
it comes to political speech,

644
00:23:40,113 --> 00:23:41,491
but the second circuit

645
00:23:42,028 --> 00:23:44,517
isn't really aware of those. Those lines let's

646
00:23:44,517 --> 00:23:46,351
see. At least as they are developed in

647
00:23:46,351 --> 00:23:48,425
current case law, and Paul's is gonna tell

648
00:23:48,425 --> 00:23:50,419
us about that and it... What... How it

649
00:23:50,419 --> 00:23:53,131
relates to New York campaign finance.

650
00:23:53,941 --> 00:23:56,163
Well, so the... I mean, the distressing thing

651
00:23:56,163 --> 00:23:58,544
here is not so much that the second

652
00:23:58,544 --> 00:24:02,371
circuit is completely off base. In its interpretation

653
00:24:02,371 --> 00:24:05,709
of modern campaign finance law. It's more that

654
00:24:05,709 --> 00:24:08,570
modern campaign finance law for all the... What...

655
00:24:08,903 --> 00:24:11,385
I consider improvements it's had in the last

656
00:24:12,471 --> 00:24:13,026
20 years.

657
00:24:14,136 --> 00:24:15,722
It's it's still in kind of,

658
00:24:16,928 --> 00:24:17,564
Dire shape.

659
00:24:18,439 --> 00:24:18,939
And

660
00:24:19,951 --> 00:24:20,451
it's

661
00:24:21,382 --> 00:24:22,496
bizarre treats,

662
00:24:24,024 --> 00:24:27,376
activity related to, like, the most core political

663
00:24:27,376 --> 00:24:28,515
expression in America

664
00:24:29,531 --> 00:24:31,308
as lesser protected

665
00:24:31,766 --> 00:24:32,266
than

666
00:24:32,896 --> 00:24:34,721
you know, all all kinds of speech that

667
00:24:34,721 --> 00:24:35,221
ind

668
00:24:35,752 --> 00:24:37,338
gets the full protection in the first amendment.

669
00:24:37,656 --> 00:24:41,321
So this case is a challenged to a

670
00:24:41,480 --> 00:24:43,014
New York system of

671
00:24:43,627 --> 00:24:44,127
campaign

672
00:24:44,662 --> 00:24:45,139
contribution limits.

673
00:24:45,775 --> 00:24:47,286
It's brought by a group called the upstate

674
00:24:47,366 --> 00:24:49,949
Jobs party and some people who are affiliated

675
00:24:50,007 --> 00:24:50,724
with funding it.

676
00:24:52,795 --> 00:24:53,295
And

677
00:24:53,751 --> 00:24:54,251
the

678
00:24:54,866 --> 00:24:58,292
laws issue are about a distinction between what

679
00:24:58,452 --> 00:25:00,858
New York calls political parties.

680
00:25:02,214 --> 00:25:03,671
And then these other

681
00:25:04,127 --> 00:25:06,679
organizations that are called independent bodies,

682
00:25:08,289 --> 00:25:10,444
But a better way to kind of think

683
00:25:10,444 --> 00:25:12,221
of that distinction is

684
00:25:12,838 --> 00:25:15,153
at least in many cases is the distinction

685
00:25:15,153 --> 00:25:16,430
between what you might call major,

686
00:25:16,923 --> 00:25:20,530
established political parties and minor or startup up

687
00:25:20,588 --> 00:25:21,225
political parties.

688
00:25:22,420 --> 00:25:24,582
And there are 3 laws or at issue

689
00:25:24,582 --> 00:25:27,039
here. If you're a major political party in

690
00:25:27,198 --> 00:25:30,156
New York, you can accept vastly higher

691
00:25:30,766 --> 00:25:31,266
contributions

692
00:25:32,134 --> 00:25:34,934
from political contributors. You can take in contributions

693
00:25:34,934 --> 00:25:37,414
up to a hundred and 38600

694
00:25:37,414 --> 00:25:37,654
dollars.

695
00:25:38,214 --> 00:25:39,994
If you're an independent body

696
00:25:41,107 --> 00:25:41,607
your

697
00:25:42,304 --> 00:25:43,819
contribution limits are much lower.

698
00:25:44,537 --> 00:25:47,009
They're about the same level as what you

699
00:25:47,009 --> 00:25:49,003
could give directly to a candidate. So for

700
00:25:49,003 --> 00:25:51,672
a statewide candidate, It's like 9000

701
00:25:51,810 --> 00:25:52,209
dollars.

702
00:25:55,160 --> 00:25:55,660
Political

703
00:25:56,037 --> 00:25:56,537
parties

704
00:25:57,313 --> 00:25:59,967
are also allowed to make unlimited

705
00:26:01,236 --> 00:26:03,946
contributions, to members of their own party who

706
00:26:03,946 --> 00:26:06,656
are running for office. So the the New

707
00:26:06,736 --> 00:26:09,545
York Republicans or Democrats, or the New york

708
00:26:09,545 --> 00:26:10,525
conservative party

709
00:26:11,465 --> 00:26:14,424
can give an unlimited amount to someone who's

710
00:26:14,424 --> 00:26:15,225
running for office.

711
00:26:16,105 --> 00:26:16,605
Whereas

712
00:26:17,144 --> 00:26:18,045
independent bodies

713
00:26:18,518 --> 00:26:20,981
can only give the same amount that could

714
00:26:20,981 --> 00:26:23,524
be given directly to the candidate. So if

715
00:26:23,524 --> 00:26:25,748
the contribution limit for a statewide candidate is

716
00:26:25,748 --> 00:26:26,884
9000 dollars

717
00:26:27,273 --> 00:26:30,398
the independent body can only give 9000 dollars

718
00:26:30,614 --> 00:26:31,410
to the candidate.

719
00:26:32,523 --> 00:26:33,717
And then finally,

720
00:26:34,448 --> 00:26:36,363
political parties are allowed to set up what

721
00:26:36,363 --> 00:26:37,261
are called housekeeping

722
00:26:37,639 --> 00:26:40,510
accounts, which cover things like their staff,

723
00:26:41,308 --> 00:26:43,541
you know, wrench for their headquarters, that sort

724
00:26:43,541 --> 00:26:43,860
of thing,

725
00:26:44,833 --> 00:26:46,372
and they are allowed to accept

726
00:26:46,990 --> 00:26:47,490
unlimited

727
00:26:48,029 --> 00:26:50,745
contributions for funding, their housekeeping accounts.

728
00:26:51,877 --> 00:26:53,633
Now there are also obligations that come with

729
00:26:53,633 --> 00:26:55,228
being a political party. You have,

730
00:26:56,106 --> 00:26:59,151
lots more record keeping requirements. You have to

731
00:26:59,151 --> 00:27:01,640
have a a certain, like, structure for managing

732
00:27:01,776 --> 00:27:01,935
yourself.

733
00:27:03,129 --> 00:27:05,117
But the financial benefits of being a political

734
00:27:05,117 --> 00:27:05,754
part of you're huge,

735
00:27:07,995 --> 00:27:11,276
And New York has also drawn the line

736
00:27:11,332 --> 00:27:13,397
between who can be a political party and

737
00:27:13,397 --> 00:27:13,794
who can't.

738
00:27:14,668 --> 00:27:15,914
Largely based on how

739
00:27:16,595 --> 00:27:18,515
successful and established you are at being a

740
00:27:18,515 --> 00:27:19,075
political party.

741
00:27:19,795 --> 00:27:21,475
So you have to have received... I think

742
00:27:21,475 --> 00:27:23,975
it was a hundred and 30000 votes or

743
00:27:24,289 --> 00:27:26,529
more than 2 percent of the vote,

744
00:27:27,730 --> 00:27:28,710
whichever is higher

745
00:27:29,650 --> 00:27:30,470
in the last

746
00:27:30,769 --> 00:27:31,269
statewide

747
00:27:32,049 --> 00:27:32,210
election.

748
00:27:34,065 --> 00:27:36,865
That has gone up since 20 20. So

749
00:27:36,865 --> 00:27:38,484
in 20 20, there were 8

750
00:27:39,664 --> 00:27:41,184
official political parties in New York.

751
00:27:42,233 --> 00:27:43,583
Including the libertarian party.

752
00:27:45,648 --> 00:27:47,792
When they raise the threshold to a hundred

753
00:27:47,792 --> 00:27:50,412
and 20000 voters, it dropped to 4 political

754
00:27:50,412 --> 00:27:52,677
parties. So now the libertarian party

755
00:27:53,530 --> 00:27:55,701
is not a political party

756
00:27:56,076 --> 00:27:58,145
in New York. It is an independent body.

757
00:27:58,861 --> 00:28:01,587
And so Democrat... The Democratic party can accept

758
00:28:01,587 --> 00:28:04,703
a hundred and 38000 dollar contributions, the libertarian

759
00:28:04,703 --> 00:28:06,780
party can accept 9000 dollar contributions.

760
00:28:07,433 --> 00:28:08,948
Because the big parties need a lot of

761
00:28:08,948 --> 00:28:10,962
help. Yeah. And and and so

762
00:28:12,853 --> 00:28:14,526
so here would be helpful to give just

763
00:28:14,526 --> 00:28:17,336
and I could talk about campaign finance for

764
00:28:17,336 --> 00:28:19,414
way longer than our audience wants to hear.

765
00:28:20,053 --> 00:28:21,890
But I'm gonna give a very, very brief

766
00:28:21,890 --> 00:28:22,290
history.

767
00:28:22,703 --> 00:28:25,328
Of some background principles in campaign Finance law.

768
00:28:25,965 --> 00:28:28,192
So, in the 19 seventies in the wake

769
00:28:28,192 --> 00:28:29,487
of the Water date scandal

770
00:28:29,798 --> 00:28:32,025
Congress enacted a law called the Federal election

771
00:28:32,025 --> 00:28:33,957
campaign act, which was the first

772
00:28:34,332 --> 00:28:34,832
comprehensive

773
00:28:35,526 --> 00:28:37,935
regulation of federal election financing.

774
00:28:39,040 --> 00:28:40,711
And this was challenged in a case called

775
00:28:40,790 --> 00:28:41,188
Buckle Viva.

776
00:28:42,540 --> 00:28:44,767
There were 2 main components of it. It

777
00:28:44,767 --> 00:28:46,596
was a it's a long case. It's like

778
00:28:46,596 --> 00:28:48,994
a... A hundred and 20 somewhat odd page

779
00:28:48,994 --> 00:28:51,217
case, maybe maybe even 200 pages. I I

780
00:28:51,217 --> 00:28:52,090
forget. Very long.

781
00:28:53,281 --> 00:28:54,551
Has got a lot going on, but the

782
00:28:54,551 --> 00:28:56,711
2 main components of the law, are that

783
00:28:56,791 --> 00:28:57,769
Congress enacted

784
00:28:58,303 --> 00:28:59,895
contribution limits. So limits on how much you

785
00:28:59,895 --> 00:29:02,044
can give to candidates or political committees,

786
00:29:02,920 --> 00:29:05,705
and it enacted expenditure limits. Limits on how

787
00:29:05,705 --> 00:29:08,509
much candidates could spend on their elections. And

788
00:29:08,509 --> 00:29:10,500
when it got to the Supreme Court, the

789
00:29:10,739 --> 00:29:13,382
Supreme Court held that expenditure limits, candidates are

790
00:29:13,382 --> 00:29:15,287
a direct limit on the amount of speech

791
00:29:15,287 --> 00:29:17,193
you can engage in, and so those are

792
00:29:17,193 --> 00:29:20,448
subject to strict scrutiny, and they're essentially per

793
00:29:20,448 --> 00:29:20,948
s

794
00:29:21,400 --> 00:29:21,638
unconstitutional.

795
00:29:22,846 --> 00:29:24,437
And then in a series of cases, it's

796
00:29:24,437 --> 00:29:27,141
struck down expenditure limits for independent groups and

797
00:29:27,141 --> 00:29:27,937
yada yada yada.

798
00:29:29,942 --> 00:29:33,209
Contribution limits, it said are not so direct

799
00:29:33,209 --> 00:29:35,201
a burden on your speech. They don't limit

800
00:29:35,201 --> 00:29:36,338
the total quantity

801
00:29:36,889 --> 00:29:39,510
of speech you can engage in. They just

802
00:29:39,510 --> 00:29:42,369
limit your ability to fund it by, you

803
00:29:42,369 --> 00:29:44,195
know, you have to raise money for more

804
00:29:44,195 --> 00:29:44,434
people,

805
00:29:45,723 --> 00:29:47,260
and so they said that gets

806
00:29:47,877 --> 00:29:50,589
intermediate scrutiny. And if you know anything about

807
00:29:50,589 --> 00:29:51,488
intermediate scrutiny

808
00:29:51,866 --> 00:29:54,268
at this Supreme Court, you know that intermediate

809
00:29:54,268 --> 00:29:56,097
scrutiny is entirely in the eye of the

810
00:29:56,097 --> 00:29:58,722
behold, and sometimes it means something and sometimes

811
00:29:58,722 --> 00:29:59,438
it means nothing.

812
00:30:00,790 --> 00:30:02,639
The And the question is does the intermediate

813
00:30:02,639 --> 00:30:06,308
scrutiny that applies to contribution limits mean something.

814
00:30:07,425 --> 00:30:08,860
And for a long time, it seemed like

815
00:30:08,860 --> 00:30:09,259
it didn't.

816
00:30:11,348 --> 00:30:13,182
And in more recent years,

817
00:30:14,299 --> 00:30:16,772
particularly since the Supreme Court's decision in citizen

818
00:30:17,011 --> 00:30:17,330
United,

819
00:30:17,888 --> 00:30:19,186
while the court hasn't

820
00:30:19,563 --> 00:30:22,921
overturned this distinction, between contribution limits and expenditure

821
00:30:22,921 --> 00:30:23,159
limits.

822
00:30:24,033 --> 00:30:26,838
It seems to have started to tighten up

823
00:30:26,895 --> 00:30:27,395
the

824
00:30:27,769 --> 00:30:29,938
contribution limits analysis a little bit

825
00:30:31,285 --> 00:30:32,880
so then we get to this case, and

826
00:30:32,880 --> 00:30:35,374
the second circuit has to decide, are these

827
00:30:35,432 --> 00:30:36,548
differential contribution limits,

828
00:30:37,345 --> 00:30:39,352
and these differential treatment of these groups, is

829
00:30:39,352 --> 00:30:40,464
it constitutional,

830
00:30:41,259 --> 00:30:43,880
under the type of intermediate scrutiny that we

831
00:30:43,880 --> 00:30:44,380
apply

832
00:30:45,468 --> 00:30:46,659
to contribution limits.

833
00:30:47,947 --> 00:30:49,301
And it holds that all of them are

834
00:30:49,301 --> 00:30:49,461
fine.

835
00:30:50,178 --> 00:30:52,510
That all of them are closely drawn

836
00:30:52,886 --> 00:30:54,024
to the government's

837
00:30:55,117 --> 00:30:58,000
compelling interest in combating, political corruption.

838
00:31:01,825 --> 00:31:03,976
There is a, like, a little bit of

839
00:31:03,976 --> 00:31:05,129
hope, here

840
00:31:05,826 --> 00:31:08,539
that's sort of technical and procedural. The court

841
00:31:08,539 --> 00:31:09,257
says that, well,

842
00:31:10,375 --> 00:31:12,311
we are looking at this just as a

843
00:31:12,943 --> 00:31:15,256
facial challenge to the law saying that it

844
00:31:15,256 --> 00:31:16,931
could... So you have to prove it could

845
00:31:16,931 --> 00:31:19,244
never constitutional apply to anyone or that most

846
00:31:19,244 --> 00:31:21,339
of its applications are

847
00:31:21,797 --> 00:31:22,297
unconstitutional

848
00:31:22,689 --> 00:31:24,522
and it turns out that most of these

849
00:31:24,522 --> 00:31:26,376
independent bodies are not

850
00:31:26,992 --> 00:31:27,391
really,

851
00:31:29,064 --> 00:31:32,099
essentially minor party. Campaign committees like the libertarian

852
00:31:32,099 --> 00:31:34,081
party, a lot of them are alter egos

853
00:31:34,081 --> 00:31:36,857
of candidates essentially. And in that case, they

854
00:31:36,857 --> 00:31:38,959
say it makes sense, campaign to

855
00:31:39,813 --> 00:31:41,326
treat them the way you would the candidate.

856
00:31:42,123 --> 00:31:44,513
Federal law is sort of like this when

857
00:31:44,513 --> 00:31:47,394
it comes to political committees that support single

858
00:31:47,394 --> 00:31:49,862
candidates. They're subject to the same kinds of

859
00:31:49,862 --> 00:31:50,601
contribution limits

860
00:31:51,295 --> 00:31:52,648
as candidates themselves.

861
00:31:53,856 --> 00:31:55,864
But then it gets a little more

862
00:31:56,794 --> 00:31:57,294
complicated.

863
00:31:59,017 --> 00:31:59,970
III

864
00:31:59,970 --> 00:32:01,558
think the court gets it wrong, but it's

865
00:32:01,558 --> 00:32:02,614
not a completely

866
00:32:02,924 --> 00:32:03,424
hopeless

867
00:32:04,120 --> 00:32:04,279
decision.

868
00:32:05,316 --> 00:32:07,251
The court basis, a lot of its analysis

869
00:32:07,708 --> 00:32:10,499
on this distinction between so called facial and

870
00:32:10,499 --> 00:32:11,616
as applied challenges,

871
00:32:12,905 --> 00:32:14,339
and what it says is,

872
00:32:15,136 --> 00:32:17,207
this group has brought what is basically a

873
00:32:17,207 --> 00:32:19,039
facial challenge. They're saying that this can never

874
00:32:19,039 --> 00:32:20,632
be constitutional applied to anyone.

875
00:32:21,841 --> 00:32:23,591
And as it turns out, a lot of

876
00:32:23,591 --> 00:32:26,295
these independent bodies are basically alter egos of

877
00:32:26,295 --> 00:32:27,807
the candidates and federal law,

878
00:32:28,935 --> 00:32:33,151
treats single candidate packs as basically alter egos

879
00:32:33,151 --> 00:32:35,379
of candidates. So that's not that radical.

880
00:32:37,384 --> 00:32:39,062
And then there's a footnote in the case

881
00:32:39,062 --> 00:32:41,320
where it says we're not making any statements

882
00:32:41,699 --> 00:32:43,856
on what this would mean for a group

883
00:32:43,856 --> 00:32:44,895
that was more like.

884
00:32:45,469 --> 00:32:45,969
A

885
00:32:47,227 --> 00:32:48,506
a real political party,

886
00:32:49,305 --> 00:32:52,682
supporting multiple candidates in multiple offices over multiple

887
00:32:53,061 --> 00:32:53,301
elections.

888
00:32:54,993 --> 00:32:56,586
Which is kind of like a

889
00:32:57,382 --> 00:32:59,213
maybe a wink and a nod towards someone

890
00:32:59,213 --> 00:33:01,920
like the libertarian party saying, hey,

891
00:33:02,398 --> 00:33:02,717
you know,

892
00:33:03,448 --> 00:33:05,197
you guys used to be considered a political

893
00:33:05,197 --> 00:33:07,344
party. The state raised the threshold, and now

894
00:33:07,344 --> 00:33:09,831
you're not a political party anymore, and your

895
00:33:09,968 --> 00:33:12,035
contribution limits have been, like slashed by a

896
00:33:12,035 --> 00:33:14,363
factor of 9 or whatever.

897
00:33:16,121 --> 00:33:18,757
You know, you might have a claim, and

898
00:33:18,757 --> 00:33:20,915
as applied claim if you brought it,

899
00:33:22,369 --> 00:33:24,049
so as much as I think a lot

900
00:33:24,049 --> 00:33:25,730
of the analysis in the case show sort

901
00:33:25,730 --> 00:33:26,950
of the the bankruptcy

902
00:33:27,329 --> 00:33:29,170
of campaign finance doctrine,

903
00:33:29,904 --> 00:33:31,664
it does seem like there may be some

904
00:33:31,664 --> 00:33:33,505
wiggle room for for someone to bring a

905
00:33:33,505 --> 00:33:34,625
successful claim here.

906
00:33:35,664 --> 00:33:37,184
When it gets to the actual,

907
00:33:37,917 --> 00:33:39,908
constitutional analysis, though, I think it really shows

908
00:33:39,908 --> 00:33:42,002
the weakness of the

909
00:33:42,378 --> 00:33:45,746
the approach to intermediate scrutiny that has ty,

910
00:33:47,331 --> 00:33:48,286
contribution limits analysis,

911
00:33:49,002 --> 00:33:51,308
which is... And there's a a quote from

912
00:33:51,308 --> 00:33:51,786
the opinion.

913
00:33:52,422 --> 00:33:54,425
So the Supreme court has that the only

914
00:33:54,425 --> 00:33:56,331
reason you can have contribution limits is to

915
00:33:56,331 --> 00:33:56,831
combat

916
00:33:57,284 --> 00:34:00,167
the reality or appearance of quid pro quo

917
00:34:00,223 --> 00:34:02,845
corruption. So actual, you know, money for political

918
00:34:02,845 --> 00:34:05,885
favors. So and the court says, the scope

919
00:34:05,885 --> 00:34:09,333
of quid pro quote corruption can never reliably

920
00:34:09,390 --> 00:34:10,129
be ascertain.

921
00:34:11,236 --> 00:34:13,302
And what this really means is like... And

922
00:34:13,302 --> 00:34:15,550
so we don't need to have any evidence

923
00:34:16,083 --> 00:34:16,583
that

924
00:34:16,956 --> 00:34:20,149
these kinds of contributions to independent bodies. Are

925
00:34:20,149 --> 00:34:22,449
actually a problem and actually results in quid

926
00:34:22,449 --> 00:34:23,243
pro corruption.

927
00:34:24,195 --> 00:34:25,726
And this is kind of a dodge

928
00:34:26,178 --> 00:34:26,550
that

929
00:34:27,385 --> 00:34:29,398
courts have used to get out of meaningful

930
00:34:29,455 --> 00:34:31,525
analysis of contribution limits for decades.

931
00:34:33,117 --> 00:34:34,525
And I really think

932
00:34:35,199 --> 00:34:37,367
it can't hold up to meaningful full scrutiny

933
00:34:37,502 --> 00:34:39,486
and in part because we have this federal

934
00:34:39,486 --> 00:34:42,186
system where we have 50 different systems of

935
00:34:42,186 --> 00:34:45,005
state campaign finance laws, that very wildly.

936
00:34:45,699 --> 00:34:47,848
So here in Virginia, for example, there are

937
00:34:47,848 --> 00:34:48,963
no contribution limits.

938
00:34:50,156 --> 00:34:52,703
Individuals and even corporations can give unlimited amounts

939
00:34:52,703 --> 00:34:53,362
of money

940
00:34:54,072 --> 00:34:55,504
directly to political candidates.

941
00:34:56,061 --> 00:34:57,675
Do people think that Virginia politics

942
00:34:58,051 --> 00:35:00,836
is more corrupt, the New York Politics,

943
00:35:01,728 --> 00:35:04,040
I think that sentence speaks for itself. Yeah.

944
00:35:04,199 --> 00:35:05,555
What... And, you know, a few years ago,

945
00:35:05,714 --> 00:35:07,069
actually, there was a a funny

946
00:35:07,548 --> 00:35:09,222
report that came out holding that, like, New

947
00:35:09,382 --> 00:35:09,701
Jersey.

948
00:35:10,193 --> 00:35:12,900
Was the least corrupt state in the nation,

949
00:35:13,458 --> 00:35:15,369
which struck me as imp.

950
00:35:16,403 --> 00:35:17,836
And I I looked at it,

951
00:35:18,888 --> 00:35:20,405
and I I ended up writing an op

952
00:35:20,405 --> 00:35:22,161
ed with a, a friend of I j

953
00:35:22,161 --> 00:35:24,157
professor, Dave P at the University of Rochester.

954
00:35:24,476 --> 00:35:25,913
And what we found is that, like, the

955
00:35:25,913 --> 00:35:28,085
way they were measuring corrupt is, do you

956
00:35:28,085 --> 00:35:30,664
have the kinds of campaign finance laws

957
00:35:31,284 --> 00:35:33,364
and lobbying laws that reformer like. And if

958
00:35:33,364 --> 00:35:35,605
you have those, then you're less corrupt.

959
00:35:36,813 --> 00:35:39,037
Then states that don't have those. So, you

960
00:35:39,037 --> 00:35:41,739
know, Virginia, which had a relatively healthy political

961
00:35:41,739 --> 00:35:42,215
culture is,

962
00:35:44,382 --> 00:35:46,617
you know, extremely prone to corruption in New

963
00:35:46,777 --> 00:35:48,693
Jersey is is inc interrupt.

964
00:35:49,331 --> 00:35:51,327
It reminds me, cut started in interrupt paul

965
00:35:51,327 --> 00:35:53,418
reminds me of, like, when you when people

966
00:35:53,418 --> 00:35:53,918
grade

967
00:35:55,971 --> 00:35:58,067
states and their their educational

968
00:35:59,243 --> 00:36:03,238
standards by, like, how how many requirements the

969
00:36:03,238 --> 00:36:06,101
teachers are required to have to to teach

970
00:36:06,101 --> 00:36:08,271
classes and not like, you know, the actual

971
00:36:08,884 --> 00:36:10,157
outcomes of the students.

972
00:36:10,649 --> 00:36:12,876
Yep. It's kind of a similar mentality. Yeah.

973
00:36:13,273 --> 00:36:15,659
Yeah. I I think it's exactly the same

974
00:36:15,659 --> 00:36:16,056
kind of thing.

975
00:36:17,647 --> 00:36:18,147
So

976
00:36:19,094 --> 00:36:20,855
basically, what it boils down to is I

977
00:36:20,855 --> 00:36:23,835
think there's the... There's never been strong evidence

978
00:36:23,974 --> 00:36:25,914
that contribution limits meaningfully.

979
00:36:27,422 --> 00:36:27,922
Combat

980
00:36:28,454 --> 00:36:30,995
corruption, let alone the appearance of corruption. I

981
00:36:30,995 --> 00:36:32,424
mean, the the fact of the matter is,

982
00:36:32,504 --> 00:36:35,623
like, if contribution limits are going to remain

983
00:36:36,412 --> 00:36:39,784
constitutional until people like and trust government, then

984
00:36:39,922 --> 00:36:42,953
contribution limits will always be constitutional because no

985
00:36:42,953 --> 00:36:45,447
amount of evidence will ever convince people

986
00:36:45,759 --> 00:36:47,349
that politicians are not corrupt.

987
00:36:49,099 --> 00:36:51,111
And if they're just kind of, like vibes

988
00:36:51,486 --> 00:36:53,891
about political corrupt, are enough to support these

989
00:36:53,891 --> 00:36:55,725
laws. These laws will always be constitutional,

990
00:36:56,762 --> 00:36:59,554
which doesn't sound like any kind of evidence

991
00:36:59,554 --> 00:37:02,606
based first amendment standard, like we would apply

992
00:37:02,918 --> 00:37:03,875
in other areas.

993
00:37:04,832 --> 00:37:05,651
And so,

994
00:37:06,107 --> 00:37:07,622
you know, the question I think is like,

995
00:37:07,781 --> 00:37:10,173
how long is the Supreme Court going to

996
00:37:10,173 --> 00:37:10,992
allow this

997
00:37:11,383 --> 00:37:12,336
to continue.

998
00:37:12,971 --> 00:37:14,876
After citizen United was decided,

999
00:37:15,670 --> 00:37:17,655
you know, even though citizens United was clear

1000
00:37:17,655 --> 00:37:19,108
that it was limited to

1001
00:37:20,847 --> 00:37:21,563
expenditure limits.

1002
00:37:22,994 --> 00:37:24,449
I really kinda thought

1003
00:37:25,301 --> 00:37:26,733
contribution limits are gonna be gone in 10

1004
00:37:26,733 --> 00:37:27,344
years. The

1005
00:37:28,497 --> 00:37:30,167
Robert is gonna move in kind of an

1006
00:37:30,167 --> 00:37:31,916
incremental way, the way he sort of does.

1007
00:37:33,268 --> 00:37:35,414
And, you know, in 10 years, we're gonna

1008
00:37:35,414 --> 00:37:37,894
see contribution limits be gone. And we have

1009
00:37:37,894 --> 00:37:39,586
seen contribution limit cases

1010
00:37:40,358 --> 00:37:42,981
in that intervening time. There was Mc versus

1011
00:37:43,219 --> 00:37:44,332
Fe. There was.

1012
00:37:45,384 --> 00:37:46,583
Cruise versus Fe,

1013
00:37:47,781 --> 00:37:50,039
you know, which have, you know, taken

1014
00:37:50,658 --> 00:37:52,017
the first amendment seriously,

1015
00:37:54,429 --> 00:37:56,107
you know, I sort of wonder is this

1016
00:37:56,107 --> 00:37:57,166
gonna be the case

1017
00:37:58,903 --> 00:38:00,901
where they they get cert and they're able

1018
00:38:00,901 --> 00:38:02,394
to convince the court that

1019
00:38:02,994 --> 00:38:03,735
contribution limits

1020
00:38:04,434 --> 00:38:06,515
need to get strict scrutiny. I'm a little

1021
00:38:06,515 --> 00:38:08,114
more skeptical of that now that I've taken

1022
00:38:08,114 --> 00:38:09,715
a closer look at the case, and, you

1023
00:38:09,715 --> 00:38:12,039
know, this particularly the footnote where it talks

1024
00:38:12,039 --> 00:38:13,788
about, hey, if this had been brought by

1025
00:38:13,788 --> 00:38:14,821
the libertarian party,

1026
00:38:16,570 --> 00:38:18,002
you know, it might be a different story,

1027
00:38:19,053 --> 00:38:21,047
maybe the libertarian party should bring such a

1028
00:38:21,047 --> 00:38:22,563
case and that could end up,

1029
00:38:24,398 --> 00:38:26,669
resulting in the overt overturn of, of Buckle

1030
00:38:26,807 --> 00:38:28,722
contribution limit holding. They may have their own

1031
00:38:28,722 --> 00:38:30,796
problems by the way. But they... Yeah. I

1032
00:38:30,796 --> 00:38:32,392
mean, the way... Yeah. I mean, we won't

1033
00:38:32,392 --> 00:38:33,924
we won't get into that But the lip

1034
00:38:33,924 --> 00:38:35,921
but, you know, the Buckle Viva ale was

1035
00:38:35,921 --> 00:38:36,820
actually lit,

1036
00:38:37,279 --> 00:38:39,756
in part by the libertarian party, and they

1037
00:38:39,756 --> 00:38:40,555
made the arguments.

1038
00:38:41,047 --> 00:38:43,453
That look, the these laws are about ham

1039
00:38:44,144 --> 00:38:46,447
third parties that have difficulty raising money. We

1040
00:38:46,447 --> 00:38:48,988
often have to rely on a smaller number

1041
00:38:48,988 --> 00:38:49,885
of patrons

1042
00:38:50,274 --> 00:38:51,786
to make us politically viable.

1043
00:38:52,979 --> 00:38:55,286
And I think the the facts of this

1044
00:38:55,286 --> 00:38:57,378
case show that. You know, this

1045
00:38:58,247 --> 00:38:58,747
group

1046
00:38:59,603 --> 00:39:01,198
here in New York is not really the

1047
00:39:01,198 --> 00:39:03,351
alter ego of a candidate, but it is

1048
00:39:03,351 --> 00:39:05,904
a very small sort of nascent political party,

1049
00:39:06,063 --> 00:39:09,113
the upstate jobs party. That relies on mostly

1050
00:39:09,113 --> 00:39:09,912
this 1 patron.

1051
00:39:11,431 --> 00:39:11,931
And

1052
00:39:12,709 --> 00:39:15,746
it's not clear why we should view them

1053
00:39:15,746 --> 00:39:19,460
as a greater threat. To political integrity, then

1054
00:39:19,920 --> 00:39:21,760
the Democratic party of New York or the

1055
00:39:22,000 --> 00:39:24,400
Republican party of New York. And sort of

1056
00:39:24,400 --> 00:39:26,660
funnily enough, when you look at

1057
00:39:27,212 --> 00:39:30,068
the the limited amount of actual evidence that

1058
00:39:30,068 --> 00:39:32,710
the court cites in the opinion, it's all

1059
00:39:32,766 --> 00:39:33,956
corruption by the major parties.

1060
00:39:35,405 --> 00:39:36,600
It says, you know,

1061
00:39:37,716 --> 00:39:38,216
so

1062
00:39:38,911 --> 00:39:41,541
like, the concerns that independent bodies will be

1063
00:39:41,541 --> 00:39:41,780
corrupt.

1064
00:39:42,591 --> 00:39:43,648
Isn't imp

1065
00:39:44,023 --> 00:39:46,967
because they imposed contribution limits on political parties,

1066
00:39:47,047 --> 00:39:47,763
for example,

1067
00:39:48,240 --> 00:39:51,123
because there was this widely documented paid a

1068
00:39:51,123 --> 00:39:53,195
play system in New York in which political

1069
00:39:53,195 --> 00:39:56,007
parties were ex money from people. It's like.

1070
00:39:56,862 --> 00:39:57,362
So

1071
00:39:57,911 --> 00:39:59,658
And and so that's the group that should

1072
00:39:59,658 --> 00:40:01,190
have 15 times higher

1073
00:40:02,358 --> 00:40:03,469
contribution limits than

1074
00:40:04,025 --> 00:40:05,057
than independent bodies.

1075
00:40:05,550 --> 00:40:06,190
A very odd.

1076
00:40:07,390 --> 00:40:09,329
And, you know, you could imagine a system

1077
00:40:10,590 --> 00:40:13,710
that was drawn differently that could still address

1078
00:40:13,710 --> 00:40:14,450
the government's...

1079
00:40:14,923 --> 00:40:16,917
So, like, it... At the federal level, for

1080
00:40:16,917 --> 00:40:17,236
example,

1081
00:40:18,592 --> 00:40:20,984
you can become a national party committee,

1082
00:40:22,021 --> 00:40:23,615
and this doesn't have to do with the

1083
00:40:23,615 --> 00:40:24,747
share earn the vote you get.

1084
00:40:25,864 --> 00:40:28,897
Instead, this... It it's basically a fact based

1085
00:40:28,897 --> 00:40:31,132
inquiry that the commission engages and where they

1086
00:40:31,132 --> 00:40:31,871
look at

1087
00:40:32,263 --> 00:40:34,170
Are you a real party? Like, are you

1088
00:40:34,170 --> 00:40:36,952
running multiple candidates in multiple states doing the

1089
00:40:36,952 --> 00:40:40,146
kinds of things that national parties do? And

1090
00:40:40,146 --> 00:40:41,421
if you show them that you are, then

1091
00:40:41,421 --> 00:40:43,253
they say, okay, you're a national party and

1092
00:40:43,253 --> 00:40:44,686
you have the higher contribution limit.

1093
00:40:45,642 --> 00:40:47,894
It doesn't turn on the 6... On your

1094
00:40:47,952 --> 00:40:48,190
success.

1095
00:40:48,761 --> 00:40:49,396
As a party.

1096
00:40:50,188 --> 00:40:51,695
And, of course, when it turns on your

1097
00:40:51,695 --> 00:40:53,042
success, then what you have is a sort

1098
00:40:53,042 --> 00:40:56,000
of reinforcing thing that keeps the

1099
00:40:56,309 --> 00:40:57,048
the nascent

1100
00:40:57,665 --> 00:40:59,420
political parties and the third parties down.

1101
00:41:01,175 --> 00:41:03,032
In the name of combating

1102
00:41:04,062 --> 00:41:04,562
circumvent

1103
00:41:05,098 --> 00:41:07,330
by things that are actually not political parties.

1104
00:41:07,729 --> 00:41:09,026
Right So

1105
00:41:09,881 --> 00:41:11,737
I'm I'm disappointed

1106
00:41:12,128 --> 00:41:13,958
in the outcome of this case.

1107
00:41:14,753 --> 00:41:17,003
I'm less mad at the second circuit because

1108
00:41:17,697 --> 00:41:19,765
I I think they're sort of using the

1109
00:41:19,765 --> 00:41:21,766
case law that this Supreme court has allowed

1110
00:41:21,766 --> 00:41:22,243
to linger.

1111
00:41:24,228 --> 00:41:25,815
But it does show that the... Like, that

1112
00:41:25,815 --> 00:41:28,697
case law is just totally divorced from political

1113
00:41:28,832 --> 00:41:32,197
reality and And the type of factual inquiry

1114
00:41:32,197 --> 00:41:34,914
that courts typically engage in in first amendment

1115
00:41:34,914 --> 00:41:37,552
cases. James your thoughts? Yeah. I, you know,

1116
00:41:38,271 --> 00:41:39,630
there's a couple of things that, I guess,

1117
00:41:40,043 --> 00:41:42,378
and I'm not in a campaign finance finance

1118
00:41:42,436 --> 00:41:43,791
expert the way the You are, Paul.

1119
00:41:44,429 --> 00:41:46,264
But, you know, what would jumped out to

1120
00:41:46,264 --> 00:41:48,018
me and maybe there's a simple answer to

1121
00:41:48,018 --> 00:41:48,757
this is

1122
00:41:49,228 --> 00:41:51,447
is it... Whether you're applying strict scrutiny or

1123
00:41:51,447 --> 00:41:54,062
some kind of, you know, closely drawn intermediate

1124
00:41:54,062 --> 00:41:54,538
scrutiny,

1125
00:41:55,330 --> 00:41:55,830
Chime?

1126
00:41:56,931 --> 00:41:59,016
It seems that the state could

1127
00:41:59,626 --> 00:42:00,126
potentially

1128
00:42:00,815 --> 00:42:03,670
satisfy its anti corruption concerns.

1129
00:42:04,399 --> 00:42:07,356
By simply applying the same standards in term

1130
00:42:07,756 --> 00:42:10,074
related to these party organizations as opposed to

1131
00:42:10,074 --> 00:42:10,574
parties

1132
00:42:10,953 --> 00:42:13,670
that they apply to independent expenditure groups like

1133
00:42:13,670 --> 00:42:13,910
packs.

1134
00:42:14,804 --> 00:42:17,465
If you're worried about coordination between the party

1135
00:42:17,605 --> 00:42:20,164
and these non party parties or whatever you

1136
00:42:20,164 --> 00:42:22,094
wanna call them, whatever they're named.

1137
00:42:23,048 --> 00:42:25,274
Wouldn't... I mean, couldn't they just directly address

1138
00:42:25,274 --> 00:42:28,375
that that interest by saying just like packs

1139
00:42:28,375 --> 00:42:30,282
can't coordinate with campaigns, these other groups,

1140
00:42:30,934 --> 00:42:34,464
can't become essentially like a super super pac

1141
00:42:34,522 --> 00:42:36,117
that has... And they're allowed to coordinate with

1142
00:42:36,117 --> 00:42:38,350
campaign. You know, there's an interesting tension in

1143
00:42:38,350 --> 00:42:39,626
the the case law there.

1144
00:42:40,838 --> 00:42:41,338
That

1145
00:42:41,875 --> 00:42:43,232
derive and it's been a long time since

1146
00:42:43,312 --> 00:42:44,589
I read these opinions, but they were in

1147
00:42:44,589 --> 00:42:45,727
the early 2 thousands

1148
00:42:46,425 --> 00:42:48,260
involving the Colorado Republican party,

1149
00:42:49,394 --> 00:42:50,514
and it was a series of,

1150
00:42:51,474 --> 00:42:51,974
2

1151
00:42:52,594 --> 00:42:54,275
2 cases that concerned,

1152
00:42:55,554 --> 00:42:58,607
whether parties, could be limited in their independent

1153
00:42:58,607 --> 00:43:00,525
expenditures and whether they could be limited in

1154
00:43:00,525 --> 00:43:02,044
their coordinated expenditures.

1155
00:43:03,242 --> 00:43:05,900
And the coordinated expenditures issue matters

1156
00:43:06,213 --> 00:43:07,643
because under federal law, a,

1157
00:43:08,596 --> 00:43:09,096
coordinated

1158
00:43:09,549 --> 00:43:10,049
expenditure

1159
00:43:10,423 --> 00:43:11,456
is a contribution.

1160
00:43:12,568 --> 00:43:14,157
So if you arrange the...

1161
00:43:14,728 --> 00:43:16,874
The expenditure with someone is just, like giving

1162
00:43:16,874 --> 00:43:18,862
them the money and letting and letting them

1163
00:43:18,862 --> 00:43:19,179
spend it.

1164
00:43:21,167 --> 00:43:22,916
The... And what the court held at the

1165
00:43:22,916 --> 00:43:26,132
time was that you can impose limits on

1166
00:43:26,188 --> 00:43:28,570
coordinated party expenditures for candidates.

1167
00:43:29,364 --> 00:43:31,770
This has always struck me as a really

1168
00:43:31,984 --> 00:43:33,119
weird holding

1169
00:43:33,747 --> 00:43:36,317
because the notion is that somehow,

1170
00:43:37,250 --> 00:43:40,355
the Republican party is capable of corrupting its

1171
00:43:40,355 --> 00:43:41,094
own candidates.

1172
00:43:42,917 --> 00:43:44,292
So it can engage in

1173
00:43:44,826 --> 00:43:47,372
you know, like, unlimited party expenditure as long

1174
00:43:47,372 --> 00:43:49,361
as it's not coordinated, and that's not corrupting

1175
00:43:49,361 --> 00:43:52,081
for the candidates. But if it coordinates with

1176
00:43:52,081 --> 00:43:53,932
someone who is a member of this very

1177
00:43:54,148 --> 00:43:55,898
organization, that's that's corrupting.

1178
00:43:58,045 --> 00:43:58,363
You know,

1179
00:44:00,211 --> 00:44:01,807
to to get back to your questions, I

1180
00:44:02,046 --> 00:44:03,025
I think that would

1181
00:44:03,881 --> 00:44:05,317
it would run into...

1182
00:44:06,609 --> 00:44:10,525
Some related constitutional issues, but but also, I

1183
00:44:10,525 --> 00:44:13,402
think like, the the parties who... I mean,

1184
00:44:13,641 --> 00:44:15,614
and realistically, it's the

1185
00:44:16,772 --> 00:44:19,566
Democrats Republicans and conservative party in New York

1186
00:44:19,566 --> 00:44:20,545
who are getting

1187
00:44:22,040 --> 00:44:23,237
these limits enacted,

1188
00:44:24,768 --> 00:44:27,002
like, they wanna be able to coordinate with

1189
00:44:27,002 --> 00:44:27,640
their candidates.

1190
00:44:28,358 --> 00:44:30,272
So they're... They're not gonna make that that

1191
00:44:30,272 --> 00:44:32,346
trade off. Then the question is, like, well,

1192
00:44:32,505 --> 00:44:34,181
is the possibility of that trade off?

1193
00:44:35,471 --> 00:44:38,259
A more narrowly tailored alternative that the court

1194
00:44:38,259 --> 00:44:38,896
should consider.

1195
00:44:40,012 --> 00:44:41,820
And I think what you see in this

1196
00:44:42,338 --> 00:44:44,973
decision is that at least under this form

1197
00:44:44,973 --> 00:44:46,250
of intermediate scrutiny,

1198
00:44:48,246 --> 00:44:50,880
narrow tailoring doesn't mean very much at all.

1199
00:44:51,934 --> 00:44:52,175
You know,

1200
00:44:52,974 --> 00:44:55,074
what it really looks to is not

1201
00:44:55,855 --> 00:44:57,535
whether there's a less restrictive means,

1202
00:44:58,255 --> 00:45:00,335
but whether the means Right the government has

1203
00:45:00,335 --> 00:45:00,655
adopted,

1204
00:45:01,149 --> 00:45:03,327
is in some vague sense reasonable.

1205
00:45:04,745 --> 00:45:06,344
And and what does that mean?

1206
00:45:07,063 --> 00:45:08,762
You know, it just kind of means whatever

1207
00:45:08,901 --> 00:45:10,120
the, you know, 3

1208
00:45:10,433 --> 00:45:11,947
judges on a federal court of appeals think

1209
00:45:11,947 --> 00:45:14,098
it means. And there is... That's... I think

1210
00:45:14,098 --> 00:45:16,568
that gets answers my question mostly that there's

1211
00:45:16,568 --> 00:45:18,418
1 other thing in this... Opinion that e

1212
00:45:18,418 --> 00:45:20,413
me, which was the decision by the court

1213
00:45:20,413 --> 00:45:23,048
to say we're not even gonna consider an

1214
00:45:23,048 --> 00:45:23,867
as applied

1215
00:45:24,325 --> 00:45:25,762
challenge to this. And we're just gonna look

1216
00:45:25,762 --> 00:45:26,741
at it facial

1217
00:45:27,693 --> 00:45:29,927
And the reason that in the reason that

1218
00:45:29,927 --> 00:45:32,001
ir me is that in the citizens United

1219
00:45:32,001 --> 00:45:33,836
case, back in 20 10, the court said

1220
00:45:33,836 --> 00:45:36,157
that, facial versus as applied only goes to

1221
00:45:36,157 --> 00:45:37,190
the breadth of the remedy,

1222
00:45:37,746 --> 00:45:40,313
not whether you have this particular claim

1223
00:45:40,925 --> 00:45:42,833
pleaded in a particular manner.

1224
00:45:43,404 --> 00:45:45,790
So the idea that, you know, what... Especially

1225
00:45:45,790 --> 00:45:47,779
with 1 party arguing that we do want

1226
00:45:47,779 --> 00:45:49,847
the court to to review this as applied.

1227
00:45:50,420 --> 00:45:51,860
And the court says, no, we're just not

1228
00:45:51,860 --> 00:45:53,460
gonna do that. We're just gonna look at

1229
00:45:53,460 --> 00:45:55,940
this super strong medicine of a official challenge,

1230
00:45:56,340 --> 00:45:58,019
and we're not gonna get into the actual

1231
00:45:58,019 --> 00:46:00,355
facts of the case, determine whether there was

1232
00:46:00,355 --> 00:46:00,594
any...

1233
00:46:01,235 --> 00:46:03,715
Whether there really is any actual appearance and

1234
00:46:03,715 --> 00:46:04,434
corruption in this case.

1235
00:46:05,235 --> 00:46:06,675
It it seems to me like a dodge,

1236
00:46:06,994 --> 00:46:08,765
and and III

1237
00:46:08,765 --> 00:46:10,907
imagine just as Thomas the shaking his fist

1238
00:46:10,907 --> 00:46:12,415
is the fact that they're going for the

1239
00:46:12,415 --> 00:46:14,875
facial approach instead of looking at the As

1240
00:46:14,875 --> 00:46:17,195
applied challenge when you have people here, To

1241
00:46:17,195 --> 00:46:19,114
whom the law has been applied in a

1242
00:46:19,114 --> 00:46:21,594
way that they are complaining about very obvious.

1243
00:46:21,835 --> 00:46:24,795
Yeah. I... I mean, so the facial as

1244
00:46:24,795 --> 00:46:27,526
applied distinction is something that... I deals with

1245
00:46:27,526 --> 00:46:28,960
in a ton of our cases. I'm sure

1246
00:46:28,960 --> 00:46:32,009
you see it in your own litigation. And

1247
00:46:32,147 --> 00:46:35,117
it's enormously frustrating. It's a source of major

1248
00:46:35,254 --> 00:46:36,050
confusion in federal courts.

1249
00:46:37,341 --> 00:46:37,841
And

1250
00:46:38,219 --> 00:46:40,931
I, like citizen United was so great because

1251
00:46:40,931 --> 00:46:42,605
it does have this language. It's like, it's

1252
00:46:42,605 --> 00:46:44,121
not about what you plead. It's about the

1253
00:46:44,121 --> 00:46:44,838
scope of the remedy.

1254
00:46:47,084 --> 00:46:49,652
You know, here, I think there's also

1255
00:46:50,026 --> 00:46:51,401
maybe a little bit of doc

1256
00:46:51,775 --> 00:46:53,922
confusion, and without having read the brief, I

1257
00:46:54,081 --> 00:46:55,512
I don't know who to blame for it.

1258
00:46:57,598 --> 00:46:59,351
But, you know, the court says because this

1259
00:46:59,351 --> 00:47:01,024
is a facial challenge, you have to prove

1260
00:47:01,024 --> 00:47:03,175
there's no set of circumstances under which it

1261
00:47:03,175 --> 00:47:04,371
could constitutional be applied.

1262
00:47:06,456 --> 00:47:09,241
That is the the normal standard for facial

1263
00:47:09,241 --> 00:47:09,741
challenges

1264
00:47:10,195 --> 00:47:11,469
outside the first amendment context.

1265
00:47:12,264 --> 00:47:15,617
It out sides first down contact Important. Within

1266
00:47:15,617 --> 00:47:17,841
the first amendment context, there's a second test,

1267
00:47:19,271 --> 00:47:21,336
which is the first amendment over breath doctrine.

1268
00:47:21,829 --> 00:47:23,684
Where a law can be held facial

1269
00:47:24,220 --> 00:47:25,438
unconstitutional, if a

1270
00:47:25,814 --> 00:47:28,786
substantial number of its applications are

1271
00:47:29,322 --> 00:47:29,822
unconstitutional

1272
00:47:30,691 --> 00:47:32,839
in comparison to the laws, what they call

1273
00:47:32,839 --> 00:47:34,272
the plainly legitimate sweep.

1274
00:47:35,784 --> 00:47:37,932
So I think more accurately, that would have...

1275
00:47:38,251 --> 00:47:39,938
That should have been the standard that they

1276
00:47:39,938 --> 00:47:41,611
announced. Although I don't know that it would

1277
00:47:41,611 --> 00:47:43,545
have made a difference in this case

1278
00:47:44,479 --> 00:47:45,457
because I think

1279
00:47:46,072 --> 00:47:48,303
what the court sort of handset with that

1280
00:47:48,303 --> 00:47:49,121
footnote is

1281
00:47:49,434 --> 00:47:51,670
we think that there may be a couple,

1282
00:47:52,148 --> 00:47:53,447
a very specific

1283
00:47:53,985 --> 00:47:55,262
unconstitutional applications of this.

1284
00:47:55,981 --> 00:47:58,456
Groups like the libertarian party and the green

1285
00:47:58,456 --> 00:48:01,107
party, that used to be parties and are

1286
00:48:01,107 --> 00:48:02,305
now no longer parties.

1287
00:48:04,542 --> 00:48:06,161
But we definitely think

1288
00:48:06,473 --> 00:48:06,973
it's

1289
00:48:07,347 --> 00:48:09,252
constitutional as applied to these groups that are

1290
00:48:09,252 --> 00:48:11,317
just the alter ego of a candidate.

1291
00:48:12,746 --> 00:48:14,119
And then the question is

1292
00:48:15,150 --> 00:48:16,449
has update jobs

1293
00:48:17,469 --> 00:48:21,150
pleaded sufficient facts to show that, like, it

1294
00:48:21,150 --> 00:48:21,949
is unique,

1295
00:48:23,801 --> 00:48:26,036
from these alter ego groups. And the court

1296
00:48:26,036 --> 00:48:28,030
does a fair amount of discussion saying, like,

1297
00:48:28,190 --> 00:48:30,046
well, it's not that much different

1298
00:48:30,836 --> 00:48:32,741
and since most of these groups are alter

1299
00:48:32,741 --> 00:48:33,297
ego groups.

1300
00:48:36,155 --> 00:48:37,187
I think if the court had been a

1301
00:48:37,187 --> 00:48:38,854
little more doc trying precise what it would

1302
00:48:38,854 --> 00:48:40,458
have said is, we're not gonna hold it

1303
00:48:40,458 --> 00:48:42,921
facial unconstitutional because most of the groups are

1304
00:48:42,921 --> 00:48:44,669
these alter ego groups who we think this

1305
00:48:44,669 --> 00:48:46,099
can constitutional apply to.

1306
00:48:47,291 --> 00:48:48,029
And then

1307
00:48:49,134 --> 00:48:49,952
upstate jobs

1308
00:48:50,487 --> 00:48:53,827
hasn't sufficiently distinguished itself from those groups. I

1309
00:48:53,827 --> 00:48:56,706
think maybe upstate jobs, should be considered because

1310
00:48:56,706 --> 00:48:58,775
it it does seem like they're trying to

1311
00:48:58,775 --> 00:49:00,525
be a political party. They're just not very

1312
00:49:00,525 --> 00:49:01,161
successful. Yeah.

1313
00:49:02,527 --> 00:49:05,148
And I don't think the, like, the the

1314
00:49:05,148 --> 00:49:07,451
question for whether you should be subject to

1315
00:49:07,451 --> 00:49:09,436
these contribution limits shouldn't turn on how good

1316
00:49:09,436 --> 00:49:11,024
you are at being a political party. It

1317
00:49:11,024 --> 00:49:13,499
should be. Like do you pose this threat

1318
00:49:13,499 --> 00:49:14,213
of corruption.

1319
00:49:15,323 --> 00:49:16,855
And I... It it

1320
00:49:17,227 --> 00:49:18,520
doesn't seem super

1321
00:49:18,909 --> 00:49:20,976
plausible to me that upstate Jobs does, at

1322
00:49:20,976 --> 00:49:22,749
least compared to a group that is truly

1323
00:49:23,124 --> 00:49:25,613
the alter ego of a candidate. So

1324
00:49:26,004 --> 00:49:27,519
Yeah. You know, that's a that's a source

1325
00:49:27,519 --> 00:49:29,114
of frustration. I don't know how much difference

1326
00:49:29,114 --> 00:49:30,949
it made to the outcome of the case,

1327
00:49:32,784 --> 00:49:35,710
but you know, another indication that

1328
00:49:36,547 --> 00:49:39,102
1 of these now d listed political parties,

1329
00:49:40,619 --> 00:49:42,933
if they if they have the means, which

1330
00:49:42,933 --> 00:49:44,210
is by no means clear,

1331
00:49:45,578 --> 00:49:48,280
they could consider they could consider challenging this,

1332
00:49:48,598 --> 00:49:50,664
and, you know, I think this decision wouldn't

1333
00:49:50,664 --> 00:49:51,539
fore their challenge.

1334
00:49:52,590 --> 00:49:54,750
I agree with that. Well, we will be

1335
00:49:54,750 --> 00:49:57,650
watching this case to see if yet another

1336
00:49:58,030 --> 00:49:59,710
case that we talk about on short circuit.

1337
00:50:00,043 --> 00:50:03,140
Goes to the supreme court. I was realizing

1338
00:50:03,140 --> 00:50:04,967
the other day that a a bunch of

1339
00:50:04,967 --> 00:50:07,191
cases from last term were cases that we

1340
00:50:07,191 --> 00:50:08,938
talked about short circuit sometimes like,

1341
00:50:09,747 --> 00:50:12,468
3 years ago, and then through the

1342
00:50:12,841 --> 00:50:15,221
vaccinations of the lower courts, eventually, they they

1343
00:50:15,221 --> 00:50:16,823
got up to the supreme court. So I

1344
00:50:16,823 --> 00:50:18,735
think I think what we might do soon

1345
00:50:18,735 --> 00:50:20,010
on the show is do a kind of

1346
00:50:20,010 --> 00:50:21,705
a where are they now

1347
00:50:22,240 --> 00:50:24,086
on on some of those past case. Is

1348
00:50:24,086 --> 00:50:25,673
that that that we talked about and got

1349
00:50:25,673 --> 00:50:27,340
supreme Court. Course Most cases, we talked about,

1350
00:50:27,736 --> 00:50:29,641
that is the Apex of their career, and

1351
00:50:29,641 --> 00:50:31,149
and that's fine and their they're a good

1352
00:50:31,149 --> 00:50:33,387
story. But this some of them go further.

1353
00:50:33,625 --> 00:50:33,784
So,

1354
00:50:34,499 --> 00:50:36,803
that will be a future show. This show.

1355
00:50:37,279 --> 00:50:39,765
Thank you guys very much for this

1356
00:50:40,139 --> 00:50:41,849
this great, first amendment

1357
00:50:42,309 --> 00:50:44,390
conversation. James good luck in the rest of

1358
00:50:44,390 --> 00:50:45,590
your case and your other,

1359
00:50:46,070 --> 00:50:48,390
efforts at the upper Midwest law center. Thank

1360
00:50:48,390 --> 00:50:52,237
you. And, Paul, for all your, your matters

1361
00:50:52,237 --> 00:50:54,150
going forward. I'm sure we'll have you on

1362
00:50:54,150 --> 00:50:56,462
again soon. But for the rest of you,

1363
00:50:57,339 --> 00:50:59,978
stay tuned, we gotta, a couple special episodes

1364
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coming up in the next couple weeks, but

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in the meantime, I'd ask that all of

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you. Get engaged.

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Couple