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July 2, 2025 15 mins
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Episode Transcript

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Speaker 1 (00:00):
Thanks so much for being here. You know, if you've
been listening to me for a while, that I am
a nerd, that I am a nerd in multiple dimensions.
You know, I'm a science nerd. You also know I
fancy myself something of a legal nerd. I'm definitely not

(00:20):
a lawyer, but I read and enjoy thinking about constitutional
law a lot. I read Supreme Court decisions, some appellate
Court decisions and all that, and.

Speaker 2 (00:30):
I find it both fascinating and important.

Speaker 1 (00:33):
And these are things that not every federal case, but
many federal cases really impact us in important ways.

Speaker 2 (00:41):
And one of the ways the.

Speaker 1 (00:44):
Federal courts at federal law and then law is interpreted
by courts affects US is through the regulation of elections.
And I saw a story the other day. Here's the
headline from the Associated Press. Supreme Court takes up a
Republican appeal to end limits on party spending in federal elections.

(01:06):
And this actually ties back to a case from a
couple decades ago from Colorado right here where we are,
so joining me to talk about it is Rick Pildus,
who is a professor of law at NYU and widely
regarded as one of the nation's true experts on constitutional law,
and I see him hear him on YouTube and other

(01:29):
places talking a lot about election laws. We're very lucky
to have Rick today. Rick, thanks so much for taking
some time.

Speaker 2 (01:36):
With us on k AWAY. I appreciate it.

Speaker 3 (01:39):
Very glad to be here, Ross, especially after I heard
about your interest in law and the Supreme Court.

Speaker 1 (01:45):
So let's just jump into this before we talk about
what you think might happen, Can you please explain the issue.

Speaker 3 (01:54):
Yes, and you know this, this area of law gets
kind of technical fairly quickly.

Speaker 2 (01:59):
But based.

Speaker 3 (02:01):
Congress back in the seventies started regulating campaign finance, and
one of the things it did is it limited how
much political parties could give to their candidates, or how
much they could coordinate with their candidates, how much they
could spend with their candidates. And the argument for doing this,
just so people understand, is that if without these regulations,

(02:26):
Congress thought wealthy individuals would be able to give lots
of money to the political parties and then the parties
would just transfer that money to the candidates. So the
worry was that people would be able to sort of
buy influence by working through the political parties. Now that's
way before the era of super PACs, right was in

(02:48):
the early nineteen seventies when this was first designed by Congress.

Speaker 1 (02:52):
All right, and we're going to talk about law much
more than opinion here, but just for the heck of it,
I will share with you my opinion. I call McCain
fine Gold the Bipartisan Incumbent Protection Act, and I am
generally against restrictions on campaign spending and I hope that

(03:13):
the Supreme Court overturns this thing. So tell us so again,
one more thing before we get to Colorado, what was
before we get to the Supreme Court?

Speaker 2 (03:22):
Right now? What was the Colorado case? Exactly?

Speaker 3 (03:26):
Yeah, So the Supreme Court had two big constitutional challenges
to these restrictions on the role of political parties. In
one case, they said, political parties, like every other actor,
have to be free to spend that's like not give
money to candidates, but to spend whatever they want to
spend to try to get their candidates elected. But on

(03:48):
the other hand, the court said it is constitutional for
Congress to limit how much parties can can work together
with their candidate on messaging. And just to make this concrete,
right now, the laws that a party can only give
about sixty six thousand dollars to a congressional candidate if

(04:11):
they're working in coordination with their candidate. Now, these races
are you know, many millions of dollars depending on how
competitive they are. So it's an incredibly you know, tight
restriction on how much money parties can spend in coordination
with their candidates. The Supreme Court did uphold that back
in two thousand and one, i think is the year,
in a five to four decision, and that's part of

(04:33):
what's being challenged now in this new case.

Speaker 1 (04:35):
Right, and that just coincidentally, it's not particularly important, but
that happened to be a challenge from the Republican Party
of Colorado just coincidentally. So do you think that I'm
going to delve into opinion here now? Actually, what do
you think about the question of whether this kind of

(04:59):
regulation and violates the First Amendment?

Speaker 3 (05:04):
Well, let me talk about it a little bit more
in policy terms at least first, Okay, because I think
this is a hard thing for audiences to you know,
kind of understand there's a lot of disaffection about the
role of money in politics. But with all the regulatory
kind of restraints we've had, what we've ended up doing

(05:26):
is pushing money towards these outside groups like super packs,
And in the view of many of us who work
on these issues, it's far better to have the money
coming through the political parties and the campaigns rather than
these outside groups. So I know people are very dissatisfied
with the political parties. You know, in American history that's

(05:47):
a kind of a perennial theme, but it's in my
view at least, it's still better to have the money
flowing through the parties because the parties are accountable to voters.
If you don't like what a Republican can it is doing,
or what the Publican Party is doing, you can vote
them out of office. If you don't like what some
super pac is doing, you have no way of responding

(06:08):
to that.

Speaker 2 (06:09):
Particularly, And you.

Speaker 3 (06:11):
Know, the political parties, for all their issues, are willing
to support moderate candidates more ideologically extreme candidates. They just
want to get their people elected. But these super packs,
when the money is encouraged to flow through them, are
more ideological than the parties. They tend to be often
very single issue oriented. These super packs, you know, parties

(06:35):
have to put together a big array of interest. You're
seeing that go on in Washington right now. As you know,
the Republican Party kind of struggles to please different factions
in the party as they're trying to enact their legislation.
Parties have to try to please a lot of different interests.
Super packs can be very single interest oriented. So what's

(06:57):
at stake in this case is a practical matter, is
whether the political parties are going to be given a
little bit more power to play a significant role in
the election process rather than the super packs. We've learned
over fifty years of regulation. Given Supreme Court doctrine especially,
you can't really drive the money out of politics.

Speaker 2 (07:19):
You can just.

Speaker 3 (07:20):
Sort of encourage it to flow through one channel or
another channel, and political parties and campaigns I think are
better channels than super packs.

Speaker 1 (07:29):
All right, So two, I have two responses to that,
and then I'll ask you another question. So first, I
do think it's really kind of dumb that we've set
up a system where now all the money and this
is basically what you're saying, I'm rewording what you're saying,
but where the money is flowing through organizations that are

(07:50):
purporting to or actually supporting a candidate without the candidate
having any way to influence what the message is and
maybe the candidate. It has you know, three top issues
and then a few other things they care about, and
a superpack is really really focused on issue number four.
The candidate, yeah, cares a little, has a position, doesn't

(08:12):
care that much. And now the super pac is going
to run fifteen million dollars of advertising that's going to
frame the candidates, as you know, being all about issue four,
and the candidates like that.

Speaker 2 (08:23):
That's not right.

Speaker 1 (08:24):
I'm not even sure I really agree with you here.
And of course the super pac can as a free
speech thing, they could, they could say what they want.
But but since we're forcing all the money to the
super pac, we're forcing a system where the candidate can't
control can't control the message about the candidate. And I
think that's really dumb. Do you want to say anything
to that before my one other comment?

Speaker 3 (08:49):
Yeah, so, so first i'll say something in agreement that
I'll say something in addition. So, uh, one of the
issues with super PACs is exactly what you describe, which is,
if they're actually acting legally, the candidates are not supposed
to be coordinating with the super PACs.

Speaker 2 (09:09):
They are supposed to be.

Speaker 3 (09:10):
Independent, and that can interfere with the messaging a candidate
wants to get out. As you say, some of the
super PACs may care a lot more about certain issues
than what the campaigns care about. There have been some
recent stories about the twenty twenty four election. There was
one really massive superpack for Kamala Harris, and there were

(09:32):
at least reports of significant tentions between what the campaign
wanted to do and what the super pac wanted to do,
what they wanted to emphasize. So that's an issue. I
think the super PACs make governance harder too, because you know,
they can sort of pull a party apart in a sense. Now,

(09:52):
it's also true the second thing I was going to
say is, at the same time, there's a worry that
a lot of these super PACs are not at actually independent,
and you know, there are ways the campaigns kind of
covertly are able to coordinate with the super PACs.

Speaker 2 (10:09):
Governor Cuomo got hit.

Speaker 3 (10:10):
With this in the New York mayor's primary, where the
campaign finance board decided he was implicitly coordinating with his
super pack. But I should say I don't want to
mislead people, give them the impressions that if the Court,
you know, comes out in favor of the First Amendment
challenge here, it means that super PACs will somehow go
away or be dramatically diminished. I think the case will

(10:34):
help empower the political parties to some extent, give them
a little bit more firepower, give them a little bit
more of a central role, but the super PACs will
still be here.

Speaker 1 (10:45):
Yeah, that'll be very interesting if the Supreme Court overturns
that Colorado case. The other thing I wanted to say,
and this is this is coming from me as president
of the Bad Analogy Club, and that is the people
who keep passing these laws are like people who throw
a medium sized rock into the middle of a river

(11:06):
and think the water is going to stop.

Speaker 2 (11:08):
It's right, it's just going to go a different place.
It's going to keep going.

Speaker 1 (11:12):
It's never slowed down the amount of spending, and it's
never going to.

Speaker 3 (11:17):
I think that's true, you know, as long as the
constitutional doctrine is basically what it is, and what I
mean by that is going back to the very first
foundational campaign finance case, Buckley versus the LEO, which was
an eight to one decision holding that it's unconstitutional to
regulate independence spending. And once that's established, then I think

(11:41):
what you say is right. The money is going to
continue to flow. There's going to be a demand for it.
If you close off one channel and you think that's
going to stop the flow, that's wrong. It's going to
find other channels. And in fact, when McCain Feingeld was
enacted in the early two thousand, one of the things
that did is to cut off certain kinds of money

(12:03):
to the political parties. Political scientists said. There were some
political scientists and experts in the process who said, don't
do this, because you're just going to make the money
flow to these outside groups away from the parties, and
the system will be worse off for that. So, you know,
as you said, if you think that cutting off the

(12:24):
money of the parties means that money is just going
to disappear, that's not particularly smart or sophisticated about you know,
how the political and campaign finance system is going to work.
The money will continue to flow through other routes, and
that's you know, obviously what's happened.

Speaker 1 (12:40):
Speaking of smart and sophisticated, we're talking with Rick Pildus,
who is professor of law at NYU and nationally recognized
leading expert on constitutional law. So let's just do two
more minutes here. So the Supreme Court is taking up
this case, and obviously the composition of this Supreme Court
is very different from the Supreme Court that decided the
Colorado case twenty four years ago or whatever that was.

(13:01):
So if you were a betting man, what would what
do you think the outcome of this is going to be?

Speaker 3 (13:08):
I think it's more likely that the Court will strike
down this constraint on political parties on First Amendment grounds.
I mean, they do have issues of starry decisives they'll
have to confront. So I guess the way I put
it is, if they were confronting this on a blank slate,
I think it's pretty likely this court would strike this
down on First Amendon grounds. I don't know how much

(13:31):
the stary decisive issue will, you know, play a role.
I'll mention that the court below made it clear in
various ways the majority of the court below that if
they were free of the Supreme Court precedent, they pretty
probably would have struck this down. But they, you know,
their hands are tied by Supreme Court precedent. So I

(13:53):
think most people assume it's more likely than not the Court,
if it reaches the merits gets past story decisive, would
would side with the with the political party, with the
Republican Party.

Speaker 1 (14:04):
Here, I agree with you, your opinion is much better informed
than mine.

Speaker 2 (14:09):
But I do happen to agree with you.

Speaker 1 (14:11):
And I think this Court seems to care a little
bit less about story decisis than most Supreme courts of
my lifetime.

Speaker 2 (14:21):
I don't think they've abandoned it. But you look like
you disagree with me. No, No, I don't disagree.

Speaker 3 (14:26):
I was going to actually make the point that in
the campaign finance context, we have pretty good evidence of
that because in the Citizens United case they overrule two
precedents from the court. So in this area in particular,
where I think that there's a majority that has pretty
strong views on the constitutional issues, you know, they've already

(14:47):
indicated that they're they're willing, at least in some context
to overrule prior cases. And I mentioned the president. Here
is a five to four decision which indicates it was
already you know, controversial within the court back in early
two thousands.

Speaker 1 (15:04):
Rick Pilledu, Professor of Law at NYU, Thank you so
much for making time for me. I know you had
no idea who I was, and probably wasn't sure if
this would be a huge waste of your time, and
I hope you don't think it was, and I'm grateful
that you joined us.

Speaker 2 (15:15):
No, it was a very very good discussion.

Speaker 3 (15:17):
I enjoyed it, and I like legal nerds as well
as other science nerds and other kind of nerds, so
that's great.

Speaker 2 (15:24):
Thanks so much, Rick, we'll have you back. Take care
all right, you too.

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