September 16, 2025 • 44 mins
In Dinner Table Action v. Schneider, pending in the First Circuit, Maine is appealing a permanent injunction barring the enforcement of a ballot initiative passed in 2024 that would have capped contributions for independent expenditures at $5,000. The initiative, formulated and supported by the anti-super PAC group, Equal Citizens, was designed to challenge the case that “created” super PACs, SpeechNow.org v. FEC, a unanimous en banc D.C. Circuit decision, which held that no limits can be placed on contributions for independent expenditures, and has since been reaffirmed by several federal circuit courts. If the First Circuit were to remove the injunction, it would create a circuit split, and open up the possibility of revisiting SpeechNow.org v. FEC.The Dinner Table Action District Court also ruled that mandatory disclosure of donors starting at $0 unconstitutionally burdens Free Speech by not affording any possibility for anonymous speech. As such, this case sits at an interesting intersection between free speech and election law. Join us for a litigation update where we will discuss the developments to date in this case, its potential impacts, and where it may be headed. Featuring:
Charles Miller, Senior Attorney, Institute for Free Speech
(Moderator) Stephen R. Klein, Partner, Barr & Klein PLLC
Charles Miller, Senior Attorney, Institute for Free Speech
(Moderator) Stephen R. Klein, Partner, Barr & Klein PLLC
Mark as Played
Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:02):
Welcome to fedsock Forums, a podcast of the Federal Societies
Practice Groups. I'm Ny kas Merrick, Vice President and Director
of Practice Groups at the Federal Society. For exclusive access
to live recordings of fedsock form programs, become a Federal
Society member today at fedsoc dot org.
Speaker 2 (00:18):
Well, and welcome to this fed sock forum. Open our
call Today, September tenth, twenty twenty five, we're delighted to
host a litigation update on Dinner Table Action British Schneider,
an interesting case of the intersection of election law and
free speech. My name is Cail Kleist, and I'm Deputy
Director of Practice Groups here at the Federal Society. As always,
please note that all expressions of opinion are those of
(00:38):
the experts on today's program as a federalist society taking
a position on particular legal or public policy issues. In
the measte of time, I leave my introduction of our
guest today brief, certainly more brief than the careers would deserve,
so I highly recommend that if you're interested, you check
out their oppressive full.
Speaker 3 (00:54):
Bios at fedzoc dot org.
Speaker 2 (00:56):
Today, we're fortunate to have with us the honorable Charles Miller,
who serves as a Senior attorney at the Institute for
Free Speech. Mister Miller joined IFS in twenty twenty three
and his work focuses on campaign finance, donor privacy, political speech,
and freedom of the press. Mister Miller also previously served
as Ohio's Deputy Attorney General, where he directed their Mariager
of Litigation, and before joining the State AG's office as
(01:18):
General Counsel, he served as a judge for the First
Appellate District of Ohio and also served as a visiting.
Speaker 3 (01:23):
Judge on the Ohio Supreme Court.
Speaker 2 (01:26):
Also joining this today as our moderator is Steve Klein,
who was a partner at bar Cline PLLC, where he
advocates for the First Amendment rights of his clients against local, state,
and federal regulators. Mister Clines published articles in several legal journals,
and his commentary has appeared in The Wall Street Journal,
The Washington Times, the Detroit News, and other outlets.
Speaker 3 (01:44):
And I will leave it there.
Speaker 2 (01:46):
A last note throughout the program, if you have any questions,
please do submit them by the question and answer feature
likely found at the bottom of resume screen, so it'll
be accessible. When we get to that portion of today's webinar,
I'll ask that all questions submitted there A pertained to
this discussion and B and with a question mark.
Speaker 3 (02:01):
With that, thank you all for journey to day declined
for is yours?
Speaker 4 (02:05):
Thanks a lot, Kayla, and thanks to the Federalist Society
for having us today for this discussion. So I want
to throw it out to you right at the at
the outset chip because people may not have done some
research prior to this, which is completely understandable. So you're
the lead lead council here for Dinner Table Action. And
there are other plaintiffs in this case as well. Who
(02:26):
are they and what is their beef with the Main
Commission or the members of the Main Commission on Governmental
Ethics and Election Practices. And by beef I mean other
than the oxymoron governmental.
Speaker 5 (02:38):
Ethics, right, So yeah, I represent Alex Tickcomb and two
act organizations that he's involved with.
Speaker 6 (02:51):
One, as you.
Speaker 5 (02:52):
Said, is Dinner Table Action and a second is for
our Future In Maine, they sort of have hybrid pack
situations where packs can do both independ expenditures and also
make contributions and sort of have separate accounts for that,
(03:12):
and that's what that's what Dinner Table does for a
future pack really just kind of collects money and then
donates it to other packs for independ expenditure or other
other uses. And so that's a client. The issue that
arose here is that in November twenty twenty four, there
(03:37):
was an important election in Maine, you know, other than
the national election, in which there is a ballot issue
that was to place five thousand dollars contribution limits on
contributions made for independ expenditures. So it was and it
(03:57):
passed by over seventy percent of the vote. With the
proponents like to talk about a lot, and the state
likes to talk about and so on, behalf of our clients.
We at the Institute of Free Speech broad suit in
December and got the state to agree immediately. We didn't
even have to file motion, I agree immediately to hold
(04:21):
the law and an abeyance pending resolution of the district court.
Speaker 6 (04:27):
Of the case. There.
Speaker 4 (04:29):
So, just for those tuning in who don't have a
background in campaign finance to really to drive home here
with what Chip was saying, it's an independent expenditure is
basically money that pays for election speech, right, so if
you drive down you know a lot of TV ads
that you'll see for and you'll see the paid for
by dinner table pack for example, or a radio ad.
(04:50):
These are things that might support or oppose the election
or a candidate, but they're paid for independently, right by
these organizations. This is as opposed to a contribution to
a candidate him or herself right to their committee. So
you have this this divergence. That's that issue here. However,
what we're talking about here, Chip is of course contributions
(05:11):
people make to the pack, the money they give to
the pack so they can pay for these independent expenditures, right,
that's right, Yes, that's what we're talking about.
Speaker 6 (05:20):
And you know, and again there can also be coordinated.
Speaker 5 (05:22):
Expenditures, you know, for some entities, you know, but this
is about truly independent expenditures, groups just going out doing
their own thing.
Speaker 4 (05:30):
So why did the why why would Maine just fold
right away and agree to hold the law in abeyance.
Speaker 5 (05:36):
Well, you know, so there's been some case all out
there in this area already, you know, starting originally with
Buckley versus Vallejo, that says that infinite expenditures, you know,
can happen Uh. And then in the Supreme Court underline
that and Citizens United uh, where you know they said
there can be no restriction inpenet expenditures. And then immediately
(05:58):
on the heels of Citizens United, Uh, there was a
case uh called uh speech uh speech out uh dot
uh dot com that dot org that UH put out
the standard that that we're talking about in this case,
(06:20):
that that is, because independent expenditures cannot be limited, uh,
independent contributions for independent expenditures cannot be limited either. And
that was an en bounk decision of the d C Circuit.
So all ten judges uh weighed in on that and
it was unanimous.
Speaker 6 (06:36):
Uh.
Speaker 5 (06:36):
And since then, since since speech, now there has been
uh several other circuit courts that have weighed in, all unanimously,
all in the same direction. So in one sense, this
is well trotted ground.
Speaker 6 (06:50):
Uh.
Speaker 5 (06:51):
And you know, there's no surprise that the district court
ruled in our favor and ruled the wall uny constitutional, so.
Speaker 6 (07:00):
Never never went into effect. It remains enjoined. That's right.
The district court enjoined it. Uh.
Speaker 5 (07:06):
And then the state and there are some intervenersh appealed
and so now it's pending at the first Circuit, which
has not had one of these cases before, which is
one of the reasons, uh, which which was the reason
why uh, the proponents of the ballot initiative pursued this
in Maine.
Speaker 6 (07:26):
Now, So it's it's interesting to see in your complaint.
Speaker 4 (07:28):
And I think I've read this in some of the
newspaper articles, but I didn't quite find it in the record.
I mean, even the proponents of this bill stated, we
know this is unconstitutional, and we're passing it anyway, right.
Speaker 6 (07:41):
Yeah, that's right.
Speaker 5 (07:42):
When they would have public meetings and they go around,
you know, they say that, listen, you know, we know
that the case all out there, you know, is very
much against us, and you know, we expect, you know,
to lose in the district courts, and you know, and
and and that's certainly what happened. And you know, the
(08:08):
sort of a chief spokes person for the for the
folks on their side on this is Larry Lessig, who
is a founder of Equal Citizens, who's one of the interveners.
You know, he did a whole podcast series on this,
this main ballot iniative. You know, in one of those
he said they would not be a surprise at all
if the district court said, Hey, every other federal Pellet
(08:32):
judge has ruled this unconstitutional.
Speaker 6 (08:34):
I'm going to do the same. And so they really
shouldn't be surprised of that's what happened.
Speaker 4 (08:40):
And so equals, it wasn't just you weren't just up
against the AG's office in this case, right, the equal
citizens actually intervened and you had uh Neil kat Yall
on their behalf defending the law.
Speaker 6 (08:51):
Right. Yeah, yeah, Neil Kettyall who was got kind of
involved on there.
Speaker 5 (08:57):
You know, for them, And they brought in their own experts,
one of which was basically statistician who did some surveys
of public citizens to to get their reaction about uh,
setting contributional limits at different levels. And then they had
two historians from Stanford who they got to talk about
(09:22):
different aspects of what they called originalism.
Speaker 6 (09:27):
What they called originalism.
Speaker 4 (09:28):
So we're so now there's an originalist argument being posed
in an attempt to overturn speech now Citizens United, maybe
even maybe even Buckley before that.
Speaker 5 (09:40):
Yeah, that that's correct, and you know, and and so
that's that brings us kind of to why they brought
this this key or why why they brought the ballot
is you know, this is actually the third attempt at this,
uh did. They sued the state of Alaska in state
courts and to the Supreme Court, tried to get something
(10:01):
out of there to get to scotus.
Speaker 6 (10:03):
It did not work. They tried a ballot initiative.
Speaker 5 (10:06):
In in Massachusetts before Maine, and there there's a preclearance
procedure in the attorney general. The state attorney general would
not be certified to go on the ballot. So that's
how we got the main But but what they want
to do is that is they originally had one sort
of constitutional argument that they wanted to make, and they've
(10:28):
since I added a second. And then the first one
that they that they presented in Alaska and are presenting
here is the forms of corruption, uh, that it should
be constitously permissible for Congress or a state to regulate.
(10:50):
You know, those that know this area of law, you know,
will know that the Supreme Court says, for campaign finance,
the only justification is h is to prevent either actual
or parents quid pro quo corruption. And they are a
certain argument that originally founders were also very concerned about
(11:15):
dependence corruption and and so they said that when that
when in Buckley and the subsis in cases, when the
course talk about corruption, they're really not talking about the
corruption at the founding and they should be.
Speaker 6 (11:35):
So what I mean, what do they do?
Speaker 4 (11:38):
They break down the difference between quid pro quo corruption
and dependence corruption.
Speaker 5 (11:43):
Yes, they do, you know, and you know, starting with
the original it was a scholarship they did. Uh, they
spent a lot of times talking about foreign dependence corruption. Uh,
the idea that they you could have h individuals, candidates,
(12:03):
government officials who somehow you know, would would be bribed
by foreign officials and the like, and you know, so
and then they kind of went through there the constitual
visions that we got as a result of this, including
a monument's cause.
Speaker 6 (12:20):
And yeah, sorry, that's.
Speaker 5 (12:24):
Fine, but you know, but but by going by doing
that what they proved and I so I deposed their
scholars You know, they're they're a bit shocked by this,
but you know, I deposed them. And so so I asked, uh,
professor Rokoff, you know, like, isn't it true then that
(12:46):
you know, as you go through and you show these
examples of of how the founders addressed these forms of
corruption that you're concerned about or these that they were
concerned about that that they've been addressed. And he's like,
he agreed, yeh, yes they have. And I asked him
what it had to do at the First Amendment and
he said little to nothing.
Speaker 6 (13:07):
And so.
Speaker 5 (13:10):
You know that there was a there's a bit of
a disconnect between the argument and the provision of the
constitution that we have, you know, at stake here. So
the stependence corruption wasn't necessarily tied to the First Amendment
and how was it used at the time. So it
doesn't seem that argument really will play in here, which
is why I call it, which is one of the
(13:31):
reasons I called this so called originally their version of original.
Speaker 6 (13:36):
Yeah, it does strike me and my chuckle.
Speaker 4 (13:38):
You know, arises from a litigation that's now years old,
you know again part of the new toolbox against all
things Donald Trump, right, and we had this, you know,
frequent litigation.
Speaker 6 (13:48):
The virtue of.
Speaker 4 (13:51):
Any kind of business interests abroad, uh necessarily becomes some
kind of emolument. And I haven't heard about it in
a w aisle, right, but it's interesting to see it
sort of pop up again where I guess i'd moved
from there. So that's is that the first originalist argument
(14:12):
is there now another one coming to the four.
Speaker 5 (14:15):
Yes, yes, no, there's a second one, and the second
one is social contract there and so you know, a
lot of the historians of the time of the founding
uh note that many of the founders were, you know,
(14:37):
very obsessed with the concept of social contract as being
the way to which you formed governments. And essentially what
that is is that government is formed by the agreement
of the government you get together, and so you form
this social contract that we will be that we will
(14:58):
agree to be bound by the laws that are passed
by the representatives that we elect. And where they take
that in this case, as they say that there's one,
there's that. And then the second aspect of this argument
(15:20):
is that the free speech clause was never intent to be.
Speaker 6 (15:27):
Enforceable.
Speaker 5 (15:28):
It was a statement of a natural right, and that
under social contract theory, governments can restrict natural rights because
they're doing so by the agreement and consent of the government,
because the government elected the representatives. And what this is
(15:53):
really doing, in my mind is is it's sort of
taking the constitutional interpretation and method of you know, the
seventies and eighties and the War in court era of Hey,
we're just going to look at these concepts and then
we're going to abstract from them where they are where
to go about the law. And so they're taking the
(16:13):
concepts that were at play when the Founders were forming
governments in the states and at the federal level, and
they're just applying those sort of written large And what
they don't do is is they don't engage with the
actual text of the First Amendment. You know, Congress shall
(16:34):
pass no law abridging the freedom of speech. That they
don't engage with the meaning of that.
Speaker 6 (16:44):
You know, it's curious too that.
Speaker 4 (16:47):
This has always been a problem with you know, the
term gets thrown around the goo goo's right, good government
types or be it. You know, the professional reform community
at large has always this a level of disconnect that
sort of surprises me that that what we're discussing here,
particularly independent expenditures, right, the money to pay for political
(17:10):
speech that supports you know, and I mean explicitly supports
are opposed as the election of a candidate, right, And
to tell me start squawking about social contract and you know,
even let's let's lay the text aside, which I think
you've raised a great point there, are you you know,
are you going to tell me that the nine newspapers
(17:32):
serving the city of Philadelphia population sixty thousand back in
the late seventeen hundreds or during the Founding era, it
was just all they had to do was say, you
can't spend this money out much money on inc because
you're endorsing candidates. Is that really something that would have
flown in the Founding era?
Speaker 5 (17:49):
You know that they seem to think that it would have,
and you know, I think that, yeah, listen, so there
when you have opponents a free speech and they can
come from the writer the left, you know, there are
(18:11):
different ways they go about these things. But you know,
here pretty much in the work that they did in
this case, they disavowed.
Speaker 6 (18:24):
Originalism as their method of interpretation that they would use.
Speaker 5 (18:30):
So say, I'm not an originalist, but if you were
an originalist, this is what you'd have to believe. And
you know, and basically, you know, to answer your earlier
question about how far you know, how many other cases
would they would they would they strike down well, essentially
under their version of originalism, which they do not adopt
(18:53):
or or agree with the free speech cause would not
be enforceable at all. It's it's not really related or
restricted to campaign finance or political speech. It's just not enforceable.
Oh and you know, these type of arguments without limiting
principles typically do not fare well.
Speaker 4 (19:17):
It's sort of an unseeriousness being reflected not only in
disconnect from from reality, but even a disconnect from you
know at some point, you know, this has been fifteen
years post Citizens United, about the same amount of time
since speech now is it just do you get the
sense it's just like keep the just keep the merry
(19:38):
go around going. You wonder if with Lessig himself, it's
been in the game for about as long as you
know post see you as well.
Speaker 5 (19:46):
So No, I think what it is is because they
are not originalists. I don't think they necessarily take the
originalism seriously, and so what their effort is is to
expose originalism as a fraud and get to the point
(20:08):
where they want to say, well, listen, if you're originalists,
you have to believe this, and there's no way that
you will believe that, So you'll have to change your methodology,
you know, and admit that that system is broken. I
think that's where they're going because in his podcast you
Know less a carlfully stated that their success quote will
(20:30):
depend upon demonstrating to the Scalia want to be originalists
on the court, those keen to show that their originalism
is principled, not just politics. That the original meeting of
the First Amendment certainly doesn't give judges the power to
strike down walls an advanced core and pallid anti corruption
or anti aristocratic ideals. I guess that was not in
(20:54):
that podcast. That was in an article that he's written.
I don't think it's been published yet. He's got to
post it on on.
Speaker 6 (21:01):
Medium right now.
Speaker 4 (21:03):
And they're not They're not entirely wrong though, right, I
mean this is what's so, you know, the First Amendment
as we know it, right, subjecting contributional limitations to exacting scrutiny, right,
that's Buckley, Uh, subjecting disclosure requirements to intermediate scrutiny but
with narrow tailoring, right, or you know these are not
(21:26):
originalist concepts, right, The First Amendment doctrines as we know
it are not you know, we're born, you know, a
fairly recent vintage, let's say, and you know, just to
say it that you know, with that in mind, are
they are they possibly onto something?
Speaker 5 (21:47):
Well, you know, I think that they're possibly onto something
that we should look at applying originalism, uh, you know,
to to the First Amendment. And you know, I think
Justice Thomas uh has as you know, repeatedly encouraged his
colleagues to do so.
Speaker 6 (22:05):
And you know, and he.
Speaker 5 (22:06):
Concluded that the free speech clause, you know, is a
vision by by medicine, I would not allow contributional limits
at all. And so in this case, you know, we've
we've you know, we've we've called.
Speaker 6 (22:24):
Their bet uh.
Speaker 5 (22:25):
And you know, so if they're trying to preserve these
constomation arguments, you know, we're doing the same. We put
a marker down that that will make that originalism argument
to the Supreme Court. Uh, if this case ever gets there.
Speaker 4 (22:41):
And I did sort of reflect, we did just get
a question typed in here, and we do encourage people
if you do want to submit a question, we will
be doing it over the Q and a function at the.
Speaker 6 (22:51):
Bottom of your screen.
Speaker 4 (22:53):
And uh, I think I just sort of alluded to
this idea with this, you know, our tiers of scrutiny
First Amendment analysis, that is of holy modern vintage.
Speaker 6 (23:05):
You know, should there be.
Speaker 4 (23:07):
Difference, uh you know, on top of that, should there
be difference to the fact that we didn't see much
in the way First Amendment scrutiny at all by the
Supreme Court prior to the early twentieth century.
Speaker 5 (23:22):
You know, I think that in in the doctrins that
we have here, you know, we have had periods of
time where the Court has been more active and less active,
uh in in all areas. And and you know, it
certainly is true. You know that it took a while
(23:44):
for them to uh to sort of you know, find
their footing, uh and and and.
Speaker 6 (23:51):
To engage in this. But it doesn't necessarily mean.
Speaker 5 (23:55):
That that when they sort of do the work, that
it wasn't valid. And you know, in that time period
in the early nineteen hundreds, and you know, they were
doing originalism work at the time. You know, they were
looking back, you know, at the at the language itself
and how it was interpreted and trying.
Speaker 6 (24:17):
To apply it.
Speaker 5 (24:18):
You know, that was the method of interpretation that was
used by the courts of the time.
Speaker 4 (24:24):
And it's also as far as the campaign finance, right
was It's not to say it didn't exist, right, but
campaign finance as we know it didn't really start to
sink in until the progressive era of the early nineteen tens, right,
the State Level Corrupt Practices Act, the Federal Corrupt Practices Act,
which were incidentally many of them actually just expenditure limitations,
(24:47):
really based on an equality interest that used to be
what Professor Lessig was all about. He termed it in
some form of anti corruption, as I recalled it. So
it's funny that, you know, it is, the issues weren't
really uh in front of you know, it didn't even
exist really in some ways until the early twentieth century.
Speaker 6 (25:07):
Yeah, that's right.
Speaker 5 (25:08):
And you know, one of the arguments I'm sort of
making in this case, maybe a little bit tongan in cheek,
maybe not, is that if you think back to the
original presidential campaign, you know, the uh I hesitate to
even use the word candidate. You know, the person who
(25:29):
stood for election, you know, did not campaign themselves. You know,
Washington very undignified to go around and ask someone for
a vote and would not do so. And then you
know the other initial candidates you know, followed suit. So
the way that the initial presidential campaigns were run was
(25:52):
supporters of these people went out and uh and did
the campaigning. So in some ways the initial campaigns were
run only by super PACs, you know, so you know,
maybe maybe it's more akin to political parties. But be
at the point, you know, like like the third the
(26:12):
third party expenditure, you know, was the way that the
end of the deccurred at the founding. And you know,
like more on this point. You know, uh, if if
you look at the most recent presidential election, you know,
sure Trump won, and sure he had lots of uh
(26:33):
support from outside his own campaign, you know, but more
money was spent against him and supporting Harris, and it
was spent on his behalf. It was about total of
one point five billion on his behalf and the two
billion on her behalf. Now granted, uh he only received
(26:54):
you know, he received less than half of what she
received as his contributions that he could spend, so he
did have more money spent on his behalf independently. But
but but it's still but the amount that they but
they both they had spent on their behalfs independently was
(27:14):
remarkably close. So you know, I think it's benefiting both sides.
Uh here, but you know, one other aspect of this
case is that a provision of this, uh, this this
ballot issue of also sought to have disclosures of donations
(27:40):
all the way down to the zero dollar threshold for
these contributions for independent expenditures, and we had that. The
district court also struck that down independently, So it didn't
strike it down just because it was related to this,
but struck it down simply because you know, there was
(28:01):
no limiting principle, if you will. There was no limitation
that was placed upon the threshold. There was no threshold
put in there so that there would be no way
for somebody to make an anonymous donation if they wanted to.
Speaker 4 (28:19):
Yeah, particularly at the state level, it's always you know,
this is my time as a lobbyist at the state level,
but also even in litigation then just up against the
rhetoric in general when we talk about we speak of
big money in politics, and then these levels are laughably low.
Speaker 6 (28:36):
Right when I in.
Speaker 4 (28:39):
My reading, forgive me, I forget what the threshold here,
but the limitation here was what eight grand or five grand,
five thousand, Yeah, what you could actually contribute. And even
in a state level state like Maine, you know, you
want to talk a big money, you want to talk
corrupting levels of money, and you're really.
Speaker 6 (28:56):
Telling me that.
Speaker 4 (28:59):
Our elected leaders are are bought and paid for money
like that going into money they can't even touch. But
that's going into some organization that's going to say nice
things about them or oppose their candidate.
Speaker 6 (29:11):
Right.
Speaker 4 (29:11):
It has this, I think, a level of skepticism that
I think ends up undermining the entire premise. But you know,
to your point, you pivot then, and that's you know,
as we've discussed, this is just for boten under finding
First Amendment precedent. I don't think that's really going to
change anytime soon. But the more, a far more interesting
(29:32):
question is this post Americans for Prosperity Foundation versus Bonta,
where the Supreme Court implemented an exacting intermediate scrutiny but
with narrow tailoring to disclosure requirements. That the a FPF case.
Speaker 6 (29:50):
Was not.
Speaker 4 (29:51):
Was not a campaign finance case, but the doctrine quite
quickly poured over into a case. You know, I actually
worked with some of the folks Institute for Free Speech
CHIPS organization on a case Wyoming gun Owners versus Gray
at the tenth Circuit I think was one of the
first cases to recognize on appeal that yes, this kind
of this type of exacting scrutiny is going to apply
(30:14):
to campaign finance disclosure requirements. So having you know again,
it almost seems to your point chip that yeah, this
isn't it didn't get struck down just because it's part
of the silly and ballot initiative that went. But it's
also just independently a zero dollar threshold donate get disclosed, right,
(30:35):
which does tend to But having said that, right, I
don't know if you saw this. I only by accident
came upon it. But yesterday the tenth Circuit Rio Grand
Foundation ruling case case out of New Mexico, and it
looks to me like, you know there, I think it's
two hundred dollars thresholds for segregated accounts and then a
(30:56):
five thousand dollars threshold for if they're not using it,
just using in general funds. Right, So it's very interesting
this is sort of an ongoing They upheld those requirements
under Bonta over a dissent, particularly I think as to
issue advocacy, right, if you're talking ballot measure stuff that
should have a different kind of a disclosure question, right,
(31:20):
there's no quid pro quo as possible, right, right, And
so I'm you know this this is a much more
you know, unlike this this expenditure limitation that's just per
se going to get struck. This is a much richer
I guess, still a developing area of post bonta right
for disclosure.
Speaker 5 (31:38):
That's right, and you know, and it's I think it's
an area law where you know, we should not shy
away from, you know, trying to have originals applied to
because you know, look, the reason that they allow these
disclosures to occur is so they say that there is
the government can pursue an informational interest, you know, like
(32:02):
everybody has the right to be a nosy neighbor. Uh
and and know you know what someone else is doing.
And the argument goes that, well, if you're lazy and
you don't really know what the issues are, you don't
research them. If you know who supports it, then you
know that'll tell you where you go. Well, look, an
originalism approach to this is the exact opposite. You know,
the founders believed in inanimity and pseudonymity, when when speaking
(32:26):
and you know famously in the and the debates over
the Constitution itself. Uh, And they believe in that because
you know, high minded Elee they thought that ideas should
be judged on their merit, not by who said so
the interest is being you know, that's been found to
be valid for the government. Here is the exact opposite
(32:47):
interest that the founders found important at the time, you know.
And so you know, we certainly hope to continue to
work to improve the ability of people to do things
anonymously and ssunonymously. And you know, certainly in modern times
of course of being under recognized, you know in Americans
(33:09):
for Prosperity Foundation and others, you know, the harm that
can befall uh, you know, donors and help people get
docks and harassed and otherwise uh, you know, mistreated or
somebody that has a protectable against somebody, you know, they
could their location be disclosed because of this. You know
that So that there are you know, many interests that
(33:32):
should allow for anonymous and tsunonymous activity.
Speaker 4 (33:37):
So not only would uh founding era citizen balk at
the idea that we're going to limit the amount of
ink that a certain any newspaper can spend in a city,
they probably would walk that it's illegal to publish Pennsylvania
Farmer or Cato or any number of the pseudonyms, right,
And I think it's to your I think, Chip, what
(33:58):
you specifically alluded to, I still I believe and I
don't have the depth here, but my understanding is the
authorship of the Federalist was pretty well a pretty well
guarded secret until maybe the late seventeen hundreds, right, so
the Constitution had been had been ratified by the time.
There were certainly suspicions, but I think it wasn't really
confirmed until until.
Speaker 6 (34:20):
It was well after the fact, right.
Speaker 4 (34:21):
But I've always thought, you know, particularly that the Virginia,
while considering the Constitution, which they were, distributed hard copies
of the bound Federalist.
Speaker 6 (34:32):
You know, James Madison, of course.
Speaker 4 (34:34):
Of Virginia had written many of them, but Alexander Hamilton
wrote quite a few of them too. And I can
only wonder if that, you know, Bastard Son, New Yorker,
that could have tainted, right, been used to taint the proceedings. Right,
So in many ways we may owe this Republic of
ours to anonymity, right, Yeah, I think that's exactly right.
(34:58):
So I do want to throw out there we again,
if people do have questions, we do have the Q
and A at the bottom. Please feel free to submit,
submit anything you'd like. I think we've answered everything that's
up so far. So as far as what do you
think about what do you think about the first your time,
you know, going up to the first circuit. Also, I
(35:19):
kind of want to ask too many things here. Let's
let's get all jumbled. But you you just mentioned doing
you know, depositions I've seen on the docket.
Speaker 6 (35:29):
You have expert you know, your own expert witnesses.
Speaker 4 (35:32):
It looks like David Primo and of course him and
Jeff Millio have been, you know, the best social scientists ever.
Speaker 6 (35:37):
As far as on campaign finance and whatnot, you.
Speaker 4 (35:42):
It used to be, you know, the good old days,
which probably never existed, but it used to feel like,
you know, in these First Amendment cases, it was sue,
do a nice verified complaint, seek a preliminary injunction, get
your injunction, and you know that's pretty much going to.
Speaker 6 (35:56):
End the case.
Speaker 4 (35:56):
Right now, it seems like factual records are something we
we kind of have to consider going in and by
default and you. I mean, how much is that kind
of your posture now that we're going to we're going
to really tackle these cases knowing we were going to
you know, not only not only accepting discovery but actually
kind of.
Speaker 6 (36:16):
Kind of itching for it. Well, so you know, my view.
Speaker 5 (36:22):
Of this is that if they're going to be arguments,
they're going to be made, that you want to test them.
And you know, up until now, you know, these historians
have made arguments via amicus briefs, and sure you can
go and get your kind of counter Amichi.
Speaker 6 (36:40):
H to come out and uh, you know and put
things on there.
Speaker 5 (36:43):
But you know, if because they were put in by
by declaration here, you know, I thought it was a
good idea to go out there and you know and
depose them and really kind of you know, test their
theories and see why they were saying what they were saying. Uh,
and you know, as you would any other expert. And
(37:05):
to the extent that that you know.
Speaker 6 (37:09):
There are areas of wall that are going.
Speaker 5 (37:11):
To be determined more by by originalism. I do think
that you know, the ability to really test with the
other side of saying by asking them questions versus just
putting up your counter speech.
Speaker 6 (37:29):
Is is a better way to litigate a case? We
have one?
Speaker 4 (37:34):
A question just came in that does ask and I
think this goes back to what you know, they might
touch on the emoluments claim, but you know, and I
did the question isn't specific here, but does the same
analysis apply to governmental limitations for contributions from foreigners or
aggregation of foreign donations? And I guess that might apply
(37:54):
to the Originalism And I certainly know it's it's permissively
and quite under our existing framework for contributions. And there
are certainly movements to do expenditure limitations as well that
are completely constitutional under was it blumen?
Speaker 6 (38:14):
Is that the one that's right?
Speaker 5 (38:19):
Yeah, you know, like I've not dug into sort of
the Originalism arguments with respect to limitations on foreign contributions
and expenditures, you know, so I can't comment on that,
but yeah, under the existing blow that's out there, you know,
it seems that the court recognizes that that that is
(38:41):
a different preacher and that there can be limitations there.
Speaker 4 (38:46):
Yeah, and then I think it's again something that we've
seen exploited, you know, And I don't I don't use
this word, you know, I think there's a tendency of
the reform community to kind of pounce on any opportunity
they can to find regulation anywhere.
Speaker 6 (39:02):
Right.
Speaker 4 (39:02):
This was post Citizens United, there were well, there's no
such thing as an independent expenditure.
Speaker 6 (39:08):
Right.
Speaker 4 (39:08):
They claim that coordination is sort of a default, which
again is completely disconnected from reality. You also had the
disclosure fight that is still going on, was very much
a well, if we can't, you know, censor it, let's
put as much red tape on it as possible, particularly
disclosure at the lowest threshold we can can get away with.
And again this is me projecting, you know, assuming a
(39:29):
little bit of bad faith on their part. But you know,
the proof is kind of in the pudding. And it
seems the foreign the foreign issue, foreign contributions, foreign money,
and elections is one that it seems that they don't
really I haven't seen any laws that go as far
as you know, the reformers want. But it gets really
(39:49):
messy when you're dealing with again with newspapers because if
you know, Rupert Murdoch is a British national, I think still,
but I don't know if he's become an American citizen.
But so does that mean it's foreign money in elections, right.
I don't think that's the case, but these are areas
that they do that have come up, and I've seen
(40:10):
a number of states have passed, you know, prohibitions in
keeping with the Blumen decision Bluemen versus FC from the
d C Circuit, which was written by Judge Kavanaugh before
he was elevated to the Supreme Court, long time back.
So it doesn't seem it seems an interesting like question
(40:30):
that I haven't seen really developed since Bloomen, But I
worry about its exploitation.
Speaker 5 (40:35):
Well, there was another Bellot INITIAIP in Maine the year
before that sought to limit expenditures on ballot initiatives by
corporations that were you know, that had to five percent
foreign ownership, and that was struck down as well.
Speaker 7 (40:55):
Yes, well, yeah, so I want to apologize we had
another originalist question from our earlier question, and I apologize
because it's it's not out of not trying to ignore you.
Speaker 6 (41:07):
It's just hard to read through and digest it here.
Speaker 4 (41:10):
But it seems the social contract historians are teeing up.
What they're teeing up is about the respective role of
the courts versus the legislature in determining the scope of
First Amendment rights isn't and he again he's reiterates the
question isn't the lack of court action on the First
Amendment at least somewhat telling? And I guess that's in
(41:31):
favor of the social contract people. Okay, Well, so you know,
I view it as a Marberry versus medicine question when
they do that, you know, when they talk about these things,
and you know, somewhat with the questionnaire puts out there
is you know, what's the role?
Speaker 6 (41:45):
Did you just share it?
Speaker 5 (41:47):
You know when it says you know angerous, you know,
shall shall best know all? Is that something that's to
be enforced or not? And you know, I think that
it's been the site of this question that WI just
sure does have a rule to answer that question. But
I believe that that's how these questions should be viewed
(42:11):
as a challenge to tamar rare versus Madison, you not
as a manner of interpreting some officiental constitution.
Speaker 4 (42:20):
I've been asked to give us citations of the New
Mexico case. It was literally decided yesterday at the Tenth Circuit.
So I regret I don't have it, but it's a
Rio Grand foundation and if you go to the tenth
Circuit's website you should be able to find it.
Speaker 6 (42:34):
With a date search of the last few days, the
opinion should come up.
Speaker 4 (42:39):
So I don't have any further questions, so chip, I see.
So going forward, you know the briefing has there's not
even a briefing schedule. Is there a briefing schedule yet?
At the first circuit there is a briefing schedule now
there brief will be due.
Speaker 6 (42:54):
October twenty second.
Speaker 4 (42:56):
Okay, so coming up, so probably all stay on track,
oral arguments hopefully early next year, and then probably hopefully
a decision by summertime. Let's be optimistic. Yea, yeah, that'd
be optimistic. You know, I'd say by this time next year. Excellent, excellent.
Well again, I really really appreciate your time, chip. I
(43:18):
think this is a really fascinating case and developments, and
I certainly am plied you're out there doing this fight
because you know, I've been out of it a little while.
I've been out of it since Wyoming gun Owners a
few years back, and itching to get back in on
a case myself. So you certainly have my thanks, and
also a good dose of envy that you're doing such
(43:40):
great work.
Speaker 6 (43:41):
All right, thanks for having me.
Speaker 3 (43:43):
I'll chime in and thank you both.
Speaker 2 (43:45):
Really appreciate you taking out this section of your days
and sharing your expertise and insight. Thanks also to our
audience for joining and participating. Welcome listener feedback by email
at beedsoc forums at beedsock dot org, and as always,
keep an eye on our website and your emails pronouncements
of other upcoming virtual events.
Speaker 3 (44:02):
With that, thank you all for joining us today we
are adjourned.
Speaker 1 (44:06):
Thank you for listening to this episode of fedsoc Forums,
a podcast of the Federal Societies Practice Groups. For more
information about the Federal Society, the Practice Groups, and to
become a Federal Society member, please visit our website at
fedsoc dot org.
Welcome to fedsock Forums, a podcast of the Federal Societies
Practice Groups. I'm Ny kas Merrick, Vice President and Director
of Practice Groups at the Federal Society. For exclusive access
to live recordings of fedsock form programs, become a Federal
Society member today at fedsoc dot org.
Speaker 2 (00:18):
Well, and welcome to this fed sock forum. Open our
call Today, September tenth, twenty twenty five, we're delighted to
host a litigation update on Dinner Table Action British Schneider,
an interesting case of the intersection of election law and
free speech. My name is Cail Kleist, and I'm Deputy
Director of Practice Groups here at the Federal Society. As always,
please note that all expressions of opinion are those of
(00:38):
the experts on today's program as a federalist society taking
a position on particular legal or public policy issues. In
the measte of time, I leave my introduction of our
guest today brief, certainly more brief than the careers would deserve,
so I highly recommend that if you're interested, you check
out their oppressive full.
Speaker 3 (00:54):
Bios at fedzoc dot org.
Speaker 2 (00:56):
Today, we're fortunate to have with us the honorable Charles Miller,
who serves as a Senior attorney at the Institute for
Free Speech. Mister Miller joined IFS in twenty twenty three
and his work focuses on campaign finance, donor privacy, political speech,
and freedom of the press. Mister Miller also previously served
as Ohio's Deputy Attorney General, where he directed their Mariager
of Litigation, and before joining the State AG's office as
(01:18):
General Counsel, he served as a judge for the First
Appellate District of Ohio and also served as a visiting.
Speaker 3 (01:23):
Judge on the Ohio Supreme Court.
Speaker 2 (01:26):
Also joining this today as our moderator is Steve Klein,
who was a partner at bar Cline PLLC, where he
advocates for the First Amendment rights of his clients against local, state,
and federal regulators. Mister Clines published articles in several legal journals,
and his commentary has appeared in The Wall Street Journal,
The Washington Times, the Detroit News, and other outlets.
Speaker 3 (01:44):
And I will leave it there.
Speaker 2 (01:46):
A last note throughout the program, if you have any questions,
please do submit them by the question and answer feature
likely found at the bottom of resume screen, so it'll
be accessible. When we get to that portion of today's webinar,
I'll ask that all questions submitted there A pertained to
this discussion and B and with a question mark.
Speaker 3 (02:01):
With that, thank you all for journey to day declined
for is yours?
Speaker 4 (02:05):
Thanks a lot, Kayla, and thanks to the Federalist Society
for having us today for this discussion. So I want
to throw it out to you right at the at
the outset chip because people may not have done some
research prior to this, which is completely understandable. So you're
the lead lead council here for Dinner Table Action. And
there are other plaintiffs in this case as well. Who
(02:26):
are they and what is their beef with the Main
Commission or the members of the Main Commission on Governmental
Ethics and Election Practices. And by beef I mean other
than the oxymoron governmental.
Speaker 5 (02:38):
Ethics, right, So yeah, I represent Alex Tickcomb and two
act organizations that he's involved with.
Speaker 6 (02:51):
One, as you.
Speaker 5 (02:52):
Said, is Dinner Table Action and a second is for
our Future In Maine, they sort of have hybrid pack
situations where packs can do both independ expenditures and also
make contributions and sort of have separate accounts for that,
(03:12):
and that's what that's what Dinner Table does for a
future pack really just kind of collects money and then
donates it to other packs for independ expenditure or other
other uses. And so that's a client. The issue that
arose here is that in November twenty twenty four, there
(03:37):
was an important election in Maine, you know, other than
the national election, in which there is a ballot issue
that was to place five thousand dollars contribution limits on
contributions made for independ expenditures. So it was and it
(03:57):
passed by over seventy percent of the vote. With the
proponents like to talk about a lot, and the state
likes to talk about and so on, behalf of our clients.
We at the Institute of Free Speech broad suit in
December and got the state to agree immediately. We didn't
even have to file motion, I agree immediately to hold
(04:21):
the law and an abeyance pending resolution of the district court.
Speaker 6 (04:27):
Of the case. There.
Speaker 4 (04:29):
So, just for those tuning in who don't have a
background in campaign finance to really to drive home here
with what Chip was saying, it's an independent expenditure is
basically money that pays for election speech, right, so if
you drive down you know a lot of TV ads
that you'll see for and you'll see the paid for
by dinner table pack for example, or a radio ad.
(04:50):
These are things that might support or oppose the election
or a candidate, but they're paid for independently, right by
these organizations. This is as opposed to a contribution to
a candidate him or herself right to their committee. So
you have this this divergence. That's that issue here. However,
what we're talking about here, Chip is of course contributions
(05:11):
people make to the pack, the money they give to
the pack so they can pay for these independent expenditures, right,
that's right, Yes, that's what we're talking about.
Speaker 6 (05:20):
And you know, and again there can also be coordinated.
Speaker 5 (05:22):
Expenditures, you know, for some entities, you know, but this
is about truly independent expenditures, groups just going out doing
their own thing.
Speaker 4 (05:30):
So why did the why why would Maine just fold
right away and agree to hold the law in abeyance.
Speaker 5 (05:36):
Well, you know, so there's been some case all out
there in this area already, you know, starting originally with
Buckley versus Vallejo, that says that infinite expenditures, you know,
can happen Uh. And then in the Supreme Court underline
that and Citizens United uh, where you know they said
there can be no restriction inpenet expenditures. And then immediately
(05:58):
on the heels of Citizens United, Uh, there was a
case uh called uh speech uh speech out uh dot
uh dot com that dot org that UH put out
the standard that that we're talking about in this case,
(06:20):
that that is, because independent expenditures cannot be limited, uh,
independent contributions for independent expenditures cannot be limited either. And
that was an en bounk decision of the d C Circuit.
So all ten judges uh weighed in on that and
it was unanimous.
Speaker 6 (06:36):
Uh.
Speaker 5 (06:36):
And since then, since since speech, now there has been
uh several other circuit courts that have weighed in, all unanimously,
all in the same direction. So in one sense, this
is well trotted ground.
Speaker 6 (06:50):
Uh.
Speaker 5 (06:51):
And you know, there's no surprise that the district court
ruled in our favor and ruled the wall uny constitutional, so.
Speaker 6 (07:00):
Never never went into effect. It remains enjoined. That's right.
The district court enjoined it. Uh.
Speaker 5 (07:06):
And then the state and there are some intervenersh appealed
and so now it's pending at the first Circuit, which
has not had one of these cases before, which is
one of the reasons, uh, which which was the reason
why uh, the proponents of the ballot initiative pursued this
in Maine.
Speaker 6 (07:26):
Now, So it's it's interesting to see in your complaint.
Speaker 4 (07:28):
And I think I've read this in some of the
newspaper articles, but I didn't quite find it in the record.
I mean, even the proponents of this bill stated, we
know this is unconstitutional, and we're passing it anyway, right.
Speaker 6 (07:41):
Yeah, that's right.
Speaker 5 (07:42):
When they would have public meetings and they go around,
you know, they say that, listen, you know, we know
that the case all out there, you know, is very
much against us, and you know, we expect, you know,
to lose in the district courts, and you know, and
and and that's certainly what happened. And you know, the
(08:08):
sort of a chief spokes person for the for the
folks on their side on this is Larry Lessig, who
is a founder of Equal Citizens, who's one of the interveners.
You know, he did a whole podcast series on this,
this main ballot iniative. You know, in one of those
he said they would not be a surprise at all
if the district court said, Hey, every other federal Pellet
(08:32):
judge has ruled this unconstitutional.
Speaker 6 (08:34):
I'm going to do the same. And so they really
shouldn't be surprised of that's what happened.
Speaker 4 (08:40):
And so equals, it wasn't just you weren't just up
against the AG's office in this case, right, the equal
citizens actually intervened and you had uh Neil kat Yall
on their behalf defending the law.
Speaker 6 (08:51):
Right. Yeah, yeah, Neil Kettyall who was got kind of
involved on there.
Speaker 5 (08:57):
You know, for them, And they brought in their own experts,
one of which was basically statistician who did some surveys
of public citizens to to get their reaction about uh,
setting contributional limits at different levels. And then they had
two historians from Stanford who they got to talk about
(09:22):
different aspects of what they called originalism.
Speaker 6 (09:27):
What they called originalism.
Speaker 4 (09:28):
So we're so now there's an originalist argument being posed
in an attempt to overturn speech now Citizens United, maybe
even maybe even Buckley before that.
Speaker 5 (09:40):
Yeah, that that's correct, and you know, and and so
that's that brings us kind of to why they brought
this this key or why why they brought the ballot
is you know, this is actually the third attempt at this,
uh did. They sued the state of Alaska in state
courts and to the Supreme Court, tried to get something
(10:01):
out of there to get to scotus.
Speaker 6 (10:03):
It did not work. They tried a ballot initiative.
Speaker 5 (10:06):
In in Massachusetts before Maine, and there there's a preclearance
procedure in the attorney general. The state attorney general would
not be certified to go on the ballot. So that's
how we got the main But but what they want
to do is that is they originally had one sort
of constitutional argument that they wanted to make, and they've
(10:28):
since I added a second. And then the first one
that they that they presented in Alaska and are presenting
here is the forms of corruption, uh, that it should
be constitously permissible for Congress or a state to regulate.
(10:50):
You know, those that know this area of law, you know,
will know that the Supreme Court says, for campaign finance,
the only justification is h is to prevent either actual
or parents quid pro quo corruption. And they are a
certain argument that originally founders were also very concerned about
(11:15):
dependence corruption and and so they said that when that
when in Buckley and the subsis in cases, when the
course talk about corruption, they're really not talking about the
corruption at the founding and they should be.
Speaker 6 (11:35):
So what I mean, what do they do?
Speaker 4 (11:38):
They break down the difference between quid pro quo corruption
and dependence corruption.
Speaker 5 (11:43):
Yes, they do, you know, and you know, starting with
the original it was a scholarship they did. Uh, they
spent a lot of times talking about foreign dependence corruption. Uh,
the idea that they you could have h individuals, candidates,
(12:03):
government officials who somehow you know, would would be bribed
by foreign officials and the like, and you know, so
and then they kind of went through there the constitual
visions that we got as a result of this, including
a monument's cause.
Speaker 6 (12:20):
And yeah, sorry, that's.
Speaker 5 (12:24):
Fine, but you know, but but by going by doing
that what they proved and I so I deposed their
scholars You know, they're they're a bit shocked by this,
but you know, I deposed them. And so so I asked, uh,
professor Rokoff, you know, like, isn't it true then that
(12:46):
you know, as you go through and you show these
examples of of how the founders addressed these forms of
corruption that you're concerned about or these that they were
concerned about that that they've been addressed. And he's like,
he agreed, yeh, yes they have. And I asked him
what it had to do at the First Amendment and
he said little to nothing.
Speaker 6 (13:07):
And so.
Speaker 5 (13:10):
You know that there was a there's a bit of
a disconnect between the argument and the provision of the
constitution that we have, you know, at stake here. So
the stependence corruption wasn't necessarily tied to the First Amendment
and how was it used at the time. So it
doesn't seem that argument really will play in here, which
is why I call it, which is one of the
(13:31):
reasons I called this so called originally their version of original.
Speaker 6 (13:36):
Yeah, it does strike me and my chuckle.
Speaker 4 (13:38):
You know, arises from a litigation that's now years old,
you know again part of the new toolbox against all
things Donald Trump, right, and we had this, you know,
frequent litigation.
Speaker 6 (13:48):
The virtue of.
Speaker 4 (13:51):
Any kind of business interests abroad, uh necessarily becomes some
kind of emolument. And I haven't heard about it in
a w aisle, right, but it's interesting to see it
sort of pop up again where I guess i'd moved
from there. So that's is that the first originalist argument
(14:12):
is there now another one coming to the four.
Speaker 5 (14:15):
Yes, yes, no, there's a second one, and the second
one is social contract there and so you know, a
lot of the historians of the time of the founding
uh note that many of the founders were, you know,
(14:37):
very obsessed with the concept of social contract as being
the way to which you formed governments. And essentially what
that is is that government is formed by the agreement
of the government you get together, and so you form
this social contract that we will be that we will
(14:58):
agree to be bound by the laws that are passed
by the representatives that we elect. And where they take
that in this case, as they say that there's one,
there's that. And then the second aspect of this argument
(15:20):
is that the free speech clause was never intent to be.
Speaker 6 (15:27):
Enforceable.
Speaker 5 (15:28):
It was a statement of a natural right, and that
under social contract theory, governments can restrict natural rights because
they're doing so by the agreement and consent of the government,
because the government elected the representatives. And what this is
(15:53):
really doing, in my mind is is it's sort of
taking the constitutional interpretation and method of you know, the
seventies and eighties and the War in court era of Hey,
we're just going to look at these concepts and then
we're going to abstract from them where they are where
to go about the law. And so they're taking the
(16:13):
concepts that were at play when the Founders were forming
governments in the states and at the federal level, and
they're just applying those sort of written large And what
they don't do is is they don't engage with the
actual text of the First Amendment. You know, Congress shall
(16:34):
pass no law abridging the freedom of speech. That they
don't engage with the meaning of that.
Speaker 6 (16:44):
You know, it's curious too that.
Speaker 4 (16:47):
This has always been a problem with you know, the
term gets thrown around the goo goo's right, good government
types or be it. You know, the professional reform community
at large has always this a level of disconnect that
sort of surprises me that that what we're discussing here,
particularly independent expenditures, right, the money to pay for political
(17:10):
speech that supports you know, and I mean explicitly supports
are opposed as the election of a candidate, right, And
to tell me start squawking about social contract and you know,
even let's let's lay the text aside, which I think
you've raised a great point there, are you you know,
are you going to tell me that the nine newspapers
(17:32):
serving the city of Philadelphia population sixty thousand back in
the late seventeen hundreds or during the Founding era, it
was just all they had to do was say, you
can't spend this money out much money on inc because
you're endorsing candidates. Is that really something that would have
flown in the Founding era?
Speaker 5 (17:49):
You know that they seem to think that it would have,
and you know, I think that, yeah, listen, so there
when you have opponents a free speech and they can
come from the writer the left, you know, there are
(18:11):
different ways they go about these things. But you know,
here pretty much in the work that they did in
this case, they disavowed.
Speaker 6 (18:24):
Originalism as their method of interpretation that they would use.
Speaker 5 (18:30):
So say, I'm not an originalist, but if you were
an originalist, this is what you'd have to believe. And
you know, and basically, you know, to answer your earlier
question about how far you know, how many other cases
would they would they would they strike down well, essentially
under their version of originalism, which they do not adopt
(18:53):
or or agree with the free speech cause would not
be enforceable at all. It's it's not really related or
restricted to campaign finance or political speech. It's just not enforceable.
Oh and you know, these type of arguments without limiting
principles typically do not fare well.
Speaker 4 (19:17):
It's sort of an unseeriousness being reflected not only in
disconnect from from reality, but even a disconnect from you
know at some point, you know, this has been fifteen
years post Citizens United, about the same amount of time
since speech now is it just do you get the
sense it's just like keep the just keep the merry
(19:38):
go around going. You wonder if with Lessig himself, it's
been in the game for about as long as you
know post see you as well.
Speaker 5 (19:46):
So No, I think what it is is because they
are not originalists. I don't think they necessarily take the
originalism seriously, and so what their effort is is to
expose originalism as a fraud and get to the point
(20:08):
where they want to say, well, listen, if you're originalists,
you have to believe this, and there's no way that
you will believe that, So you'll have to change your methodology,
you know, and admit that that system is broken. I
think that's where they're going because in his podcast you
Know less a carlfully stated that their success quote will
(20:30):
depend upon demonstrating to the Scalia want to be originalists
on the court, those keen to show that their originalism
is principled, not just politics. That the original meeting of
the First Amendment certainly doesn't give judges the power to
strike down walls an advanced core and pallid anti corruption
or anti aristocratic ideals. I guess that was not in
(20:54):
that podcast. That was in an article that he's written.
I don't think it's been published yet. He's got to
post it on on.
Speaker 6 (21:01):
Medium right now.
Speaker 4 (21:03):
And they're not They're not entirely wrong though, right, I
mean this is what's so, you know, the First Amendment
as we know it, right, subjecting contributional limitations to exacting scrutiny, right,
that's Buckley, Uh, subjecting disclosure requirements to intermediate scrutiny but
with narrow tailoring, right, or you know these are not
(21:26):
originalist concepts, right, The First Amendment doctrines as we know
it are not you know, we're born, you know, a
fairly recent vintage, let's say, and you know, just to
say it that you know, with that in mind, are
they are they possibly onto something?
Speaker 5 (21:47):
Well, you know, I think that they're possibly onto something
that we should look at applying originalism, uh, you know,
to to the First Amendment. And you know, I think
Justice Thomas uh has as you know, repeatedly encouraged his
colleagues to do so.
Speaker 6 (22:05):
And you know, and he.
Speaker 5 (22:06):
Concluded that the free speech clause, you know, is a
vision by by medicine, I would not allow contributional limits
at all. And so in this case, you know, we've
we've you know, we've we've called.
Speaker 6 (22:24):
Their bet uh.
Speaker 5 (22:25):
And you know, so if they're trying to preserve these
constomation arguments, you know, we're doing the same. We put
a marker down that that will make that originalism argument
to the Supreme Court. Uh, if this case ever gets there.
Speaker 4 (22:41):
And I did sort of reflect, we did just get
a question typed in here, and we do encourage people
if you do want to submit a question, we will
be doing it over the Q and a function at the.
Speaker 6 (22:51):
Bottom of your screen.
Speaker 4 (22:53):
And uh, I think I just sort of alluded to
this idea with this, you know, our tiers of scrutiny
First Amendment analysis, that is of holy modern vintage.
Speaker 6 (23:05):
You know, should there be.
Speaker 4 (23:07):
Difference, uh you know, on top of that, should there
be difference to the fact that we didn't see much
in the way First Amendment scrutiny at all by the
Supreme Court prior to the early twentieth century.
Speaker 5 (23:22):
You know, I think that in in the doctrins that
we have here, you know, we have had periods of
time where the Court has been more active and less active,
uh in in all areas. And and you know, it
certainly is true. You know that it took a while
(23:44):
for them to uh to sort of you know, find
their footing, uh and and and.
Speaker 6 (23:51):
To engage in this. But it doesn't necessarily mean.
Speaker 5 (23:55):
That that when they sort of do the work, that
it wasn't valid. And you know, in that time period
in the early nineteen hundreds, and you know, they were
doing originalism work at the time. You know, they were
looking back, you know, at the at the language itself
and how it was interpreted and trying.
Speaker 6 (24:17):
To apply it.
Speaker 5 (24:18):
You know, that was the method of interpretation that was
used by the courts of the time.
Speaker 4 (24:24):
And it's also as far as the campaign finance, right
was It's not to say it didn't exist, right, but
campaign finance as we know it didn't really start to
sink in until the progressive era of the early nineteen tens, right,
the State Level Corrupt Practices Act, the Federal Corrupt Practices Act,
which were incidentally many of them actually just expenditure limitations,
(24:47):
really based on an equality interest that used to be
what Professor Lessig was all about. He termed it in
some form of anti corruption, as I recalled it. So
it's funny that, you know, it is, the issues weren't
really uh in front of you know, it didn't even
exist really in some ways until the early twentieth century.
Speaker 6 (25:07):
Yeah, that's right.
Speaker 5 (25:08):
And you know, one of the arguments I'm sort of
making in this case, maybe a little bit tongan in cheek,
maybe not, is that if you think back to the
original presidential campaign, you know, the uh I hesitate to
even use the word candidate. You know, the person who
(25:29):
stood for election, you know, did not campaign themselves. You know,
Washington very undignified to go around and ask someone for
a vote and would not do so. And then you
know the other initial candidates you know, followed suit. So
the way that the initial presidential campaigns were run was
(25:52):
supporters of these people went out and uh and did
the campaigning. So in some ways the initial campaigns were
run only by super PACs, you know, so you know,
maybe maybe it's more akin to political parties. But be
at the point, you know, like like the third the
(26:12):
third party expenditure, you know, was the way that the
end of the deccurred at the founding. And you know,
like more on this point. You know, uh, if if
you look at the most recent presidential election, you know,
sure Trump won, and sure he had lots of uh
(26:33):
support from outside his own campaign, you know, but more
money was spent against him and supporting Harris, and it
was spent on his behalf. It was about total of
one point five billion on his behalf and the two
billion on her behalf. Now granted, uh he only received
(26:54):
you know, he received less than half of what she
received as his contributions that he could spend, so he
did have more money spent on his behalf independently. But
but but it's still but the amount that they but
they both they had spent on their behalfs independently was
(27:14):
remarkably close. So you know, I think it's benefiting both sides.
Uh here, but you know, one other aspect of this
case is that a provision of this, uh, this this
ballot issue of also sought to have disclosures of donations
(27:40):
all the way down to the zero dollar threshold for
these contributions for independent expenditures, and we had that. The
district court also struck that down independently, So it didn't
strike it down just because it was related to this,
but struck it down simply because you know, there was
(28:01):
no limiting principle, if you will. There was no limitation
that was placed upon the threshold. There was no threshold
put in there so that there would be no way
for somebody to make an anonymous donation if they wanted to.
Speaker 4 (28:19):
Yeah, particularly at the state level, it's always you know,
this is my time as a lobbyist at the state level,
but also even in litigation then just up against the
rhetoric in general when we talk about we speak of
big money in politics, and then these levels are laughably low.
Speaker 6 (28:36):
Right when I in.
Speaker 4 (28:39):
My reading, forgive me, I forget what the threshold here,
but the limitation here was what eight grand or five grand,
five thousand, Yeah, what you could actually contribute. And even
in a state level state like Maine, you know, you
want to talk a big money, you want to talk
corrupting levels of money, and you're really.
Speaker 6 (28:56):
Telling me that.
Speaker 4 (28:59):
Our elected leaders are are bought and paid for money
like that going into money they can't even touch. But
that's going into some organization that's going to say nice
things about them or oppose their candidate.
Speaker 6 (29:11):
Right.
Speaker 4 (29:11):
It has this, I think, a level of skepticism that
I think ends up undermining the entire premise. But you know,
to your point, you pivot then, and that's you know,
as we've discussed, this is just for boten under finding
First Amendment precedent. I don't think that's really going to
change anytime soon. But the more, a far more interesting
(29:32):
question is this post Americans for Prosperity Foundation versus Bonta,
where the Supreme Court implemented an exacting intermediate scrutiny but
with narrow tailoring to disclosure requirements. That the a FPF case.
Speaker 6 (29:50):
Was not.
Speaker 4 (29:51):
Was not a campaign finance case, but the doctrine quite
quickly poured over into a case. You know, I actually
worked with some of the folks Institute for Free Speech
CHIPS organization on a case Wyoming gun Owners versus Gray
at the tenth Circuit I think was one of the
first cases to recognize on appeal that yes, this kind
of this type of exacting scrutiny is going to apply
(30:14):
to campaign finance disclosure requirements. So having you know again,
it almost seems to your point chip that yeah, this
isn't it didn't get struck down just because it's part
of the silly and ballot initiative that went. But it's
also just independently a zero dollar threshold donate get disclosed, right,
(30:35):
which does tend to But having said that, right, I
don't know if you saw this. I only by accident
came upon it. But yesterday the tenth Circuit Rio Grand
Foundation ruling case case out of New Mexico, and it
looks to me like, you know there, I think it's
two hundred dollars thresholds for segregated accounts and then a
(30:56):
five thousand dollars threshold for if they're not using it,
just using in general funds. Right, So it's very interesting
this is sort of an ongoing They upheld those requirements
under Bonta over a dissent, particularly I think as to
issue advocacy, right, if you're talking ballot measure stuff that
should have a different kind of a disclosure question, right,
(31:20):
there's no quid pro quo as possible, right, right, And
so I'm you know this this is a much more
you know, unlike this this expenditure limitation that's just per
se going to get struck. This is a much richer
I guess, still a developing area of post bonta right
for disclosure.
Speaker 5 (31:38):
That's right, and you know, and it's I think it's
an area law where you know, we should not shy
away from, you know, trying to have originals applied to
because you know, look, the reason that they allow these
disclosures to occur is so they say that there is
the government can pursue an informational interest, you know, like
(32:02):
everybody has the right to be a nosy neighbor. Uh
and and know you know what someone else is doing.
And the argument goes that, well, if you're lazy and
you don't really know what the issues are, you don't
research them. If you know who supports it, then you
know that'll tell you where you go. Well, look, an
originalism approach to this is the exact opposite. You know,
the founders believed in inanimity and pseudonymity, when when speaking
(32:26):
and you know famously in the and the debates over
the Constitution itself. Uh, And they believe in that because
you know, high minded Elee they thought that ideas should
be judged on their merit, not by who said so
the interest is being you know, that's been found to
be valid for the government. Here is the exact opposite
(32:47):
interest that the founders found important at the time, you know.
And so you know, we certainly hope to continue to
work to improve the ability of people to do things
anonymously and ssunonymously. And you know, certainly in modern times
of course of being under recognized, you know in Americans
(33:09):
for Prosperity Foundation and others, you know, the harm that
can befall uh, you know, donors and help people get
docks and harassed and otherwise uh, you know, mistreated or
somebody that has a protectable against somebody, you know, they
could their location be disclosed because of this. You know
that So that there are you know, many interests that
(33:32):
should allow for anonymous and tsunonymous activity.
Speaker 4 (33:37):
So not only would uh founding era citizen balk at
the idea that we're going to limit the amount of
ink that a certain any newspaper can spend in a city,
they probably would walk that it's illegal to publish Pennsylvania
Farmer or Cato or any number of the pseudonyms, right,
And I think it's to your I think, Chip, what
(33:58):
you specifically alluded to, I still I believe and I
don't have the depth here, but my understanding is the
authorship of the Federalist was pretty well a pretty well
guarded secret until maybe the late seventeen hundreds, right, so
the Constitution had been had been ratified by the time.
There were certainly suspicions, but I think it wasn't really
confirmed until until.
Speaker 6 (34:20):
It was well after the fact, right.
Speaker 4 (34:21):
But I've always thought, you know, particularly that the Virginia,
while considering the Constitution, which they were, distributed hard copies
of the bound Federalist.
Speaker 6 (34:32):
You know, James Madison, of course.
Speaker 4 (34:34):
Of Virginia had written many of them, but Alexander Hamilton
wrote quite a few of them too. And I can
only wonder if that, you know, Bastard Son, New Yorker,
that could have tainted, right, been used to taint the proceedings. Right,
So in many ways we may owe this Republic of
ours to anonymity, right, Yeah, I think that's exactly right.
(34:58):
So I do want to throw out there we again,
if people do have questions, we do have the Q
and A at the bottom. Please feel free to submit,
submit anything you'd like. I think we've answered everything that's
up so far. So as far as what do you
think about what do you think about the first your time,
you know, going up to the first circuit. Also, I
(35:19):
kind of want to ask too many things here. Let's
let's get all jumbled. But you you just mentioned doing
you know, depositions I've seen on the docket.
Speaker 6 (35:29):
You have expert you know, your own expert witnesses.
Speaker 4 (35:32):
It looks like David Primo and of course him and
Jeff Millio have been, you know, the best social scientists ever.
Speaker 6 (35:37):
As far as on campaign finance and whatnot, you.
Speaker 4 (35:42):
It used to be, you know, the good old days,
which probably never existed, but it used to feel like,
you know, in these First Amendment cases, it was sue,
do a nice verified complaint, seek a preliminary injunction, get
your injunction, and you know that's pretty much going to.
Speaker 6 (35:56):
End the case.
Speaker 4 (35:56):
Right now, it seems like factual records are something we
we kind of have to consider going in and by
default and you. I mean, how much is that kind
of your posture now that we're going to we're going
to really tackle these cases knowing we were going to
you know, not only not only accepting discovery but actually
kind of.
Speaker 6 (36:16):
Kind of itching for it. Well, so you know, my view.
Speaker 5 (36:22):
Of this is that if they're going to be arguments,
they're going to be made, that you want to test them.
And you know, up until now, you know, these historians
have made arguments via amicus briefs, and sure you can
go and get your kind of counter Amichi.
Speaker 6 (36:40):
H to come out and uh, you know and put
things on there.
Speaker 5 (36:43):
But you know, if because they were put in by
by declaration here, you know, I thought it was a
good idea to go out there and you know and
depose them and really kind of you know, test their
theories and see why they were saying what they were saying. Uh,
and you know, as you would any other expert. And
(37:05):
to the extent that that you know.
Speaker 6 (37:09):
There are areas of wall that are going.
Speaker 5 (37:11):
To be determined more by by originalism. I do think
that you know, the ability to really test with the
other side of saying by asking them questions versus just
putting up your counter speech.
Speaker 6 (37:29):
Is is a better way to litigate a case? We
have one?
Speaker 4 (37:34):
A question just came in that does ask and I
think this goes back to what you know, they might
touch on the emoluments claim, but you know, and I
did the question isn't specific here, but does the same
analysis apply to governmental limitations for contributions from foreigners or
aggregation of foreign donations? And I guess that might apply
(37:54):
to the Originalism And I certainly know it's it's permissively
and quite under our existing framework for contributions. And there
are certainly movements to do expenditure limitations as well that
are completely constitutional under was it blumen?
Speaker 6 (38:14):
Is that the one that's right?
Speaker 5 (38:19):
Yeah, you know, like I've not dug into sort of
the Originalism arguments with respect to limitations on foreign contributions
and expenditures, you know, so I can't comment on that,
but yeah, under the existing blow that's out there, you know,
it seems that the court recognizes that that that is
(38:41):
a different preacher and that there can be limitations there.
Speaker 4 (38:46):
Yeah, and then I think it's again something that we've
seen exploited, you know, And I don't I don't use
this word, you know, I think there's a tendency of
the reform community to kind of pounce on any opportunity
they can to find regulation anywhere.
Speaker 6 (39:02):
Right.
Speaker 4 (39:02):
This was post Citizens United, there were well, there's no
such thing as an independent expenditure.
Speaker 6 (39:08):
Right.
Speaker 4 (39:08):
They claim that coordination is sort of a default, which
again is completely disconnected from reality. You also had the
disclosure fight that is still going on, was very much
a well, if we can't, you know, censor it, let's
put as much red tape on it as possible, particularly
disclosure at the lowest threshold we can can get away with.
And again this is me projecting, you know, assuming a
(39:29):
little bit of bad faith on their part. But you know,
the proof is kind of in the pudding. And it
seems the foreign the foreign issue, foreign contributions, foreign money,
and elections is one that it seems that they don't
really I haven't seen any laws that go as far
as you know, the reformers want. But it gets really
(39:49):
messy when you're dealing with again with newspapers because if
you know, Rupert Murdoch is a British national, I think still,
but I don't know if he's become an American citizen.
But so does that mean it's foreign money in elections, right.
I don't think that's the case, but these are areas
that they do that have come up, and I've seen
(40:10):
a number of states have passed, you know, prohibitions in
keeping with the Blumen decision Bluemen versus FC from the
d C Circuit, which was written by Judge Kavanaugh before
he was elevated to the Supreme Court, long time back.
So it doesn't seem it seems an interesting like question
(40:30):
that I haven't seen really developed since Bloomen, But I
worry about its exploitation.
Speaker 5 (40:35):
Well, there was another Bellot INITIAIP in Maine the year
before that sought to limit expenditures on ballot initiatives by
corporations that were you know, that had to five percent
foreign ownership, and that was struck down as well.
Speaker 7 (40:55):
Yes, well, yeah, so I want to apologize we had
another originalist question from our earlier question, and I apologize
because it's it's not out of not trying to ignore you.
Speaker 6 (41:07):
It's just hard to read through and digest it here.
Speaker 4 (41:10):
But it seems the social contract historians are teeing up.
What they're teeing up is about the respective role of
the courts versus the legislature in determining the scope of
First Amendment rights isn't and he again he's reiterates the
question isn't the lack of court action on the First
Amendment at least somewhat telling? And I guess that's in
(41:31):
favor of the social contract people. Okay, Well, so you know,
I view it as a Marberry versus medicine question when
they do that, you know, when they talk about these things,
and you know, somewhat with the questionnaire puts out there
is you know, what's the role?
Speaker 6 (41:45):
Did you just share it?
Speaker 5 (41:47):
You know when it says you know angerous, you know,
shall shall best know all? Is that something that's to
be enforced or not? And you know, I think that
it's been the site of this question that WI just
sure does have a rule to answer that question. But
I believe that that's how these questions should be viewed
(42:11):
as a challenge to tamar rare versus Madison, you not
as a manner of interpreting some officiental constitution.
Speaker 4 (42:20):
I've been asked to give us citations of the New
Mexico case. It was literally decided yesterday at the Tenth Circuit.
So I regret I don't have it, but it's a
Rio Grand foundation and if you go to the tenth
Circuit's website you should be able to find it.
Speaker 6 (42:34):
With a date search of the last few days, the
opinion should come up.
Speaker 4 (42:39):
So I don't have any further questions, so chip, I see.
So going forward, you know the briefing has there's not
even a briefing schedule. Is there a briefing schedule yet?
At the first circuit there is a briefing schedule now
there brief will be due.
Speaker 6 (42:54):
October twenty second.
Speaker 4 (42:56):
Okay, so coming up, so probably all stay on track,
oral arguments hopefully early next year, and then probably hopefully
a decision by summertime. Let's be optimistic. Yea, yeah, that'd
be optimistic. You know, I'd say by this time next year. Excellent, excellent.
Well again, I really really appreciate your time, chip. I
(43:18):
think this is a really fascinating case and developments, and
I certainly am plied you're out there doing this fight
because you know, I've been out of it a little while.
I've been out of it since Wyoming gun Owners a
few years back, and itching to get back in on
a case myself. So you certainly have my thanks, and
also a good dose of envy that you're doing such
(43:40):
great work.
Speaker 6 (43:41):
All right, thanks for having me.
Speaker 3 (43:43):
I'll chime in and thank you both.
Speaker 2 (43:45):
Really appreciate you taking out this section of your days
and sharing your expertise and insight. Thanks also to our
audience for joining and participating. Welcome listener feedback by email
at beedsoc forums at beedsock dot org, and as always,
keep an eye on our website and your emails pronouncements
of other upcoming virtual events.
Speaker 3 (44:02):
With that, thank you all for joining us today we
are adjourned.
Speaker 1 (44:06):
Thank you for listening to this episode of fedsoc Forums,
a podcast of the Federal Societies Practice Groups. For more
information about the Federal Society, the Practice Groups, and to
become a Federal Society member, please visit our website at
fedsoc dot org.
Popular Podcasts
CrimeLess: Hillbilly Heist
It’s 1996 in rural North Carolina, and an oddball crew makes history when they pull off America’s third largest cash heist. But it’s all downhill from there. Join host Johnny Knoxville as he unspools a wild and woolly tale about a group of regular ‘ol folks who risked it all for a chance at a better life. CrimeLess: Hillbilly Heist answers the question: what would you do with 17.3 million dollars? The answer includes diamond rings, mansions, velvet Elvis paintings, plus a run for the border, murder-for-hire-plots, and FBI busts.
Crime Junkie
Does hearing about a true crime case always leave you scouring the internet for the truth behind the story? Dive into your next mystery with Crime Junkie. Every Monday, join your host Ashley Flowers as she unravels all the details of infamous and underreported true crime cases with her best friend Brit Prawat. From cold cases to missing persons and heroes in our community who seek justice, Crime Junkie is your destination for theories and stories you won’t hear anywhere else. Whether you're a seasoned true crime enthusiast or new to the genre, you'll find yourself on the edge of your seat awaiting a new episode every Monday. If you can never get enough true crime... Congratulations, you’ve found your people. Follow to join a community of Crime Junkies! Crime Junkie is presented by audiochuck Media Company.
Stuff You Should Know
If you've ever wanted to know about champagne, satanism, the Stonewall Uprising, chaos theory, LSD, El Nino, true crime and Rosa Parks, then look no further. Josh and Chuck have you covered.