Welcome to fedsock Forums, a podcast of the Federal Society's Practice groups.

I'm Ny kas Merritt, Vice President and Director of Practice Groups at the Federal Society.

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Hello, and welcome to this the FEDSOC Forum webinar call today, December tenth, twenty twenty five.

We're delighted to host a Courthouse steps oral argument program on National Republican Senatorial Committee n RSC versus the Federal Election Commission FEC just argued yesterday before the Court.

My name is Cale 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 the expert on today's program, as the Federalist Society takes no position on particular legal or public policy issues.

Now a meation of time, I will keep my introduction of our guest today brief, certainly more brief than his career would deserve, so I highly recommend that, if you're interested, you check out his impressive full bio at fedsock dot org.

Today we're fortune to have with us.

Breton Nolan was his senior attorney at the Institute for Free Speech, a public interest law firm that works to defend the First Amendment rights of those engaged with political speech and advocacy across the country.

For joining the Institute, mister Nolan served as the principal of Deputy Solicitor General of Kentucky, where he represented the Commonwealth in a wide variety of high stakes litigation at every level of state and federal court.

Prior to that, mister Nolan served as Deputy General Counsel to the former Governor of Kentucky, where he advised the Governor and other executive branch officials on legal and public policy issues and represented them on litigation.

And I'll leave it there.

This program is slightly differently from some of our standard footstal forums, so I'll have a brief introduction that you've just gone through, leave it over to mister Nolan for a summary of the case and oral argument, and then we'll go into a time of extended questions.

On that note, if you have questions throughout the program, please do submit them via the question and answer feature likely found at the bottom of through zoom screen so they'll be accessible.

We'll get to that portion of today's webinar.

I'll ask that all questions submitted there acain to this discuss and be and with a question mark.

With that, I'll hand it over to Noel for is yours.

Well, thank you, thank you for having me, and thank you to everyone who is attending this.

We have an interesting case to talk about today and an argument that I think was even more interesting than I thought it was going to be.

I'll start with giving a background, so we're talking about NRSC the FEC, and I'll go through a little bit about what the case is about and how we got to the Supreme Court, because the procedure of how we got to the Supreme Court sheds a little bit of light on some of the argument that happened yesterday.

So this is a case that was brought challenging the federal limits on political parties engaging in coordinated expenditures with their candidates.

So when parties spend money to help support and elect their candidates, they can spend money independently without communicating with the party with their candidates where they can coordinate those expenses, and unlike some outside groups like super PACs.

Parties are allowed to coordinate with their candidates to some degree without that counting as a contribution where you run into the federal contribution limits pretty quickly.

But there are limits on how much parties can coordinate with their candidates, and so this is a case that challenges those limits under the First Amendment, argues that they're unconstitutional because they don't do anything really to prevent quid pro quote corruption or the appearance of quid pro quote corruption, which is the only justification that the government can rely on in order to limit or restrict political speech like this.

So the parties in this case the National Republican Senatorial Committee, as well as a few candidates.

One of those candidates that brought this case is Vice President Vance.

He was a senator in this case first first got filed.

He's now the Vice president.

And that potent, you know, affects a little bit of some of the arguments that we heard yesterday.

They bring this case and then they use a statutory procedure to have the question of the constitutionality of this law certified from the district court to the Sixth Circuit Court of Appeals sitting en banc.

And so this goes straight to the Sixth Circuit before there's a resolution at the district court, and the en banc six Circuit addresses the constitutionality of the coordinated party limits.

The biggest obstacle at the Sixth Circuit for the plaintiffs is that twenty five years ago the Supreme Court, in a case called Colorado two, already addressed a version of this statute and upheld the limits on party coordinated spending.

And so the plaintiffs, you know, in the Sixth Circuit are arguing that various changes in the law, both the statute that it's at issue, but also the legal doctrine that governs these kinds of claims.

The changes since that decision have made it so that Colorado two no longer binds even the lower courts, and so the court should apply the more recent First Amendment decisions and find that the law is unconstitutional.

Alternatively, the plaintiffs told the six Circuit, well, we might have to go to the Supreme Court and ask them to overrule it.

So the enbanc Sixth Circuit upholds the law.

All all but one judge I believe on the court found that Colorado two was still binding, and so it was an overwhelming majority of the Court of Appeals judges said that they're bound by Colorado two, you need to go to the Supreme Court.

There was a split in the Sixth Circuit with some concurring opinions about where we're of.

The opinions were, you know, yes we're bound, but we think that this law is probably unconstitutional, or some concurring opinions that this law is perfectly constitutional even though even though we're bound by Colorado too, and it doesn't matter.

But the the parties go to the Supreme Court, they file the curt petition, and then in the meantime, there's an election, the White House changes hands and so the plaintiff then Senator Vance becomes Vice President Vance.

And before the or or when it comes time for the Department of Justice to follow their response to the cer petition, you have, you know, new people in charge, and they the Department of Justice files a response to the cur petition, agreeing that the law is unconstitutional, telling the Supreme Court to grant cert and that if the Court does, they're going to argue in favor of the petitioners.

When that has happends, you have at the Supreme Court, the Democratic Party moves to intervene.

They this is again before this court I believe, had granted cert.

They you know, ask the court to allow them to intervene to defend the law on the merits.

As the Democratic Party, they believe the law is good and constitutional, and so they want to come in and intervene.

The Supreme Court lets them intervene, grants cert and then also appoints an amikus to defend the judgment below, which is a common practice when the Supreme Court grants sert in a case in which the Department of Justice is not defending a judgment in their favor below.

And so you sort of go into briefing on the merits and getting ready for this argument, and you have four different groups of attorneys in this case too, on each side, and so we had four the argument yesterday.

We had the petitioners, We had the Department of Justice arguing for the law, and then we had the court appointed amikas and the DNC arguing I'm sorry I flipped that arguing for the law and the petitioners obviously against.

So going into this argument, I think if you were to ask me, like what your prediction is to me, it feels almost like a no brainer.

You have a court that's very conservative, especially on these kinds of campaign finance finance issues in the First Amendment, the granted started in this case, you know where one of the questions is very clearly we're you know, however, you look at this case, it's either the Court is going to being asked to overrule Colorado to or say the Colorado two doesn't apply anymore.

The petitioners are coming to the court and saying, you know, your case from twenty five years ago shouldn't apply.

The grants are.

It looks like you probably have a majority of the court that wants to get rid of this law.

And it also sort of fits the mold of what we think of as the Chief Justice.

This is it seems like he can kind of prefer incremental decisions.

This is, you know, a case where you could cut back on some campaign finance regulation, strengthen the First Amendment, and do so with an issue that's kind of narrow it affects political parties.

It's, you know, rather than saying contribution limits are in constitutional, this is this is an incremental sort of strengthening of the First Amendment.

So you you see start granted, it seems it seems likely that that's where the Court's going.

So we have the argument yesterday.

It goes over two hours long, which which surprised me a little bit because again, it's it's it's an interesting issue, but it is a little bit more obscure.

It's not a real flashy First Amendment case, but you have four lawyers arguing.

I think that, you know, I still think that after hearing the argument, you know, it looks like the court to me, is probably going to hold this law's unconstitutional.

I'm no idea what that decision would say if my predictions right, but I think the way I would I'd like to sort of go about this today is start with what I think were three themes of the argument that I kind of came away with.

And the first theme was a discussion about whether or not this case really is as narrow as it seems, or is this a piece is this sort of what the A.

Meekus Council called a bait and switch?

So to frame the petitioner's argument.

At first, the petitioners have brought and they've been sort of really focused on how narrow and almost easy this case is.

From their point of view.

What the petitioner said and what you heard yesterday during the argument is that this case is easy.

It was basically already decided in McCutcheon and we just haven't gotten there yet, and all you have to do is apply McCutcheon and you've resolved this case.

So McCutcheon was a case from several years ago where the Supreme Court invalidated aggregate contribution limits, limits that prevented you from if you donate to so many candidates and committees, there was an aggregate cap you could donate to, and the argument was that the government is worried that these or what the aggregate limits do is they prevent you from donating to a bunch of different committees that then can donate to each other and sort of pool resources and you evade individual contribution limits.

The Supreme Court and validated those laws in mccutcheen, and the petitioner's argument here is this is just mccutcheen.

This is the same thing.

And I guess I should have maybe explained to my summary sort of the primary argument about why this law is in constitutional and what the government or what the into the law that responses.

So I mentioned at the outset.

The only permissible reason that the government can regulate or restrict political speech like contributions and expenditures is to prevent quid pro quote corruption or its appearance, and so contribution limits.

What you're worried about is a large contribution is used as a quid pro quo, and so you limit the theories that you limit the amount you can contribute, and you limit that from you prevent that from happening.

The count when it comes to limiting how parties coordinate with their candidates or actually, maybe a better way to explain this is that if you think about an outside group, an organization that might want to coordinate its spending with a candidate, that starts to look like and the court has said that that's very similar to a contribution.

So you can't give the candidate.

If you're an advocacy organization, you can't give the candidate a million dollars.

But you might go to the candidate and say, I want to spend a million dollars, what kind of ad should I run?

Or do you have a particular issue you think I should focus on?

And then at that point you have essentially done the same thing.

And so the risk of quid pro quo is still is still there, and so that's that justifies treating coordination as contributions now, because you have that risk of corruption or the perception of corruption.

Now, that argument is really doesn't fit when you talk about political parties.

And this is something that isn't really contested by even the people who support the law, which is that nobody thinks that a political party, when it spends money to support its candidate, is trying to corrupt its own candidate, that it's trying to bribe or engage in some sort of quid pro quo.

And so there's not really a risk when a political party is coordinating its spending with its candidate.

It's that you're going to have that kind of corruption.

Political parties exist for the purpose of supporting their candidates.

If you ask someone on the street, Hey, what do you think, does it seems pretty corrupt that the Republican Party is spending a lot of money in coordination with President Trump?

I think most people would look at you kind of funny.

And so the defenders of the law, they don't they don't make that argument.

What they make is is this they call it sort of a conduit theory or an anti circumvention theory, which is, we have to limit coordination with parties because otherwise a large a donor who wants to make a large contribution for some sort of quid pro quo to avoid the individual contribution limits, they're going to give to the party and they're going to say to the candidate, Hey, I'm going to give this money to the party, and the party is going to know to use it in your campaign, and now I want you to vote this way on a bill, or you know, give me this this political favor.

And so it's the defense of this law is this anti circumvention theory.

So it is a similar anti circumvention theory that you saw in McCutcheon when you had the limit on aggregate contributions and the and so the petitioners with this case just they repeatedly point to mccutcheen, and it's a good argument because mccutcheen says a lot of things that's very favorable to them.

One of those things, you know, is that once you hand money to a third party, yeah, you might think that they're going to use it for the candidate.

They can do whatever they want.

They have their own interests, and so it's really unlikely that you're going to have these elaborate bribery schemes where you're giving money to different people who are going to then send it to others or use it in certain ways, and that there's no evidence that this kind of thing happens.

And that becomes a big part of this the petitioner's argument here.

Now, I said that, you know, the first theme that kind of stuck out to me is like, is this really an arrow what the justices I think are are really struggling with yesterday, some of them at least, Is this a narrow case?

Or is this some kind of bait and switch?

And the reason that you see that is that the you know, in McCutcheon, for example, one of the things that the court says is we don't need these aggregate limits.

There are other things that protect from quid pro quo or you know, the appearance of and one of those things is that parties are limited in how much they can coordinate.

So even if you could give a lot of money to the parties and you don't have these aggregate limits, the parties are limited in how much they can give.

There are other things as well, earmarketing rules limit this, disclosure rules limit this.

So there are different things that all contribute toward limiting this, and one of those was the party coordination limits.

And so you have Amika's council.

You know, yesterday the argument, it's the first thing that he leads with.

This is a bait and switch.

They said in McCutcheon that the party coordination limits are what make this law, the aggregate limits unnecessary, and now they're here saying that the party coordination limits are unnecessary because there's ear marking rules, or because there are disclosure us and we're just we're just going one by one.

And and so I think that you saw Justice Jackson, just as Kavanaugh and some of the other justices were really focused on how what are the implications of this case.

Is it really as narrow as it seems, Is it just a matter of applying McCutcheon or I think at various points the petitioner's counsel was asked point blank, are you going to be back here in five years saying that you know today you're saying earmarking means that you know, the ear marketing rules keep everything make it so this is unnecessary.

You're going to be back here in five years challenging the ear marketing rules.

The ear marketing rules, I should explain, are if you donate to a part party your and you and you explicitly or implicitly tell the party I want you to spend this to support a particular candidate, that counts as a contribution.

And so you would hit the contribution limit if if you tried to give a party fifty thousand dollars forty four thousand dollars the max and ear market you couldn't do that.

That's illegal, that's a crime.

And so so the argument is that the ear marking makes it so that you don't need coordination limits because you can't have these elaborate circumvention because ear marking is going to is enough of it to turrent.

So the perditionous councils, that's okay, fine, but are you going to come and tell us that earmarking is unconstitutional in five years?

And you're just chipping away at the foundation here.

And so there was a lot of discussion in the argument about the limits of what the petitioner's argument is.

I think the petitioner was very sort of good at you know, not committing, you know, not committed challenging other things, but you know, making it very clear that it's you know, this statute here stands or falls today as it is.

And and that's that's a it's a totally different question if you come back and challenge a different kind of law.

One of you know, one of the reasons that I think that this case probably the court comes down really narrowly is the second theme of the argument that I kind of focused on, which is there was a lot of discussion about political parties and how they are unique, what their role is in the political system, and whether any of that matters for the First Amendment.

So just as Kavanaugh asked a lot of questions about this, and this is kind of an interesting an interesting problem that I think cuts in a lot of different ways.

So one of the things that the petitioners have have said throughout this case is that these coornation limits are are really harmful to political parties obviously because it prevents them from doing what their sort of core mission is, which is supporting their candidates.

And the effect of that is that other groups, outside groups have gained a lot more influence in our political system than the parties because outside groups can take very very large donations, unlimited donations, and they and spend those intelections, whereas political parties have caps on their contributions and limits on how much they coordinate, and so their ability to you know, support their candidates and uh has has diminished quite a bit.

And then there are arguments about why that that might be a bad thing.

Political parties are kind of a thought to be a moderating force.

And so perhaps if political parties have lost power because of this and because of the rise of outside groups, that contributes to polarization and those kinds of things and and and those you know are aren't really you know, First Amendment questions.

I think at at one point Justice Kagan made a comment in the argument about there's a lot of back and forth about what, you know, are these limits good?

Are they bad?

But that's not really a question for the court.

The Court's question is more focused on do these limits prevent quid pro quote corruption?

And obviously political parties are really unique in that respect, because again, political parties are they're not like an outside group in the sense that the reason a political party exists is to support their candidates.

They don't they're not going to be viewed us as a corrupting influence.

And so they're they're very unique from the UH standpoint of comparing them to outside groups and whether or not there's you know, several questions from from the justices about why would your ration now here be limited to political parties.

So, for example, if you're saying that this conduit theory of corruption where a donor gives money to a party and then that party uses it to support the candidate as part of a quid pro quo arrangement, that that's unlikely and there's no evidence that that happens.

Well, why isn't that also true of another outside group?

The petitioners.

The response to that is that unlike outside unlike a political party, an outside group, you know, an advocacy organization or some other group, that group might itself want to corrupt the candidates.

So I think that the Petitioner's Council use an example of maybe a labor union, where the labor union itself might want to make a big donation to a candidate in exchange for a quid pro quo, whereas a party is not is not doing that.

There's no there's no really corruption from the party trying to support its own candidates.

Again, that's why the party exists, and so it's not with outside groups.

Yeah, sure, you might have an individual who wants to use a group to funnel an illegal donation to the candidate.

You might, you know, and the petition are the petitioner's argument is that's really unlikely.

There's no evidence that that happens.

But what is maybe less unlikely, and that what makes parties unique is that that advocacy group itself, when it's in control of its own money, might try to extract a quid pro quo through some sort of large, coordinated spinning effort.

And so that's a distinguishing feature of political parties.

It also, I think, you know, a discussion and part of the argument about the long history of political parties and supporting their candidates, and I think historically it was pointed out that parties used to actually run the campaigns, that parties were much more the campaign apparatus than the individual or the candidate himself for herself.

And so all of this discussion about what is different about political parties and the associational rights and interests that political parties and candidates have, I didn't get a sense as to how any of the justices might come out on any of these questions about why parties are unique, whether they kind of buy that, whether it matters under the First Amendment, you know, other than the fact that it is certainly true that under the current sort of system, parties are treated differently because they have contribution limits and then they're allowed to do coordinated spinning.

And so there's something kind of about that that is curious and maybe doesn't doesn't make a lot of sense.

But I do think that the political party element of this is probably a way that you'll see that the Court can if it wants to really cabin a favorable decision to not have spillover effects to other parts of the law.

The third theme that I would highlight from the argument that I think is interesting in it It might be the only sort of big thing that I think that ends up really mattering in this case, and it's this question over what the evidence jerry burden on the government is when it imposes restrictions and limits like this.

So this question came up a lot of different ways, both from the justices and from how the lawyers talked about it, and the reason for that is that the Court's decision in McCutcheon and then the more recent decision from the Court in the Cruise case that was the Ted Cruz for Senate against the FEC from twenty twenty two.

Both of those cases seemed to really scale back on judicial deference in this area and really increase the burden on what the government has to show in order to justify laws that restrict political speech in this way.

And so in the know in the Cruise case, that was a case about a different kind of contribution limit, and the Court held that it was unconstitutional because the government couldn't show that it really furthered an anti corruption interest related to quid pro quote corruption.

And what the Court did in Cruise is it walked through the justifications and the evidence that the government had.

So the evidence the government pointed to some congressional statements and reports, the government pointed to some media reports, maybe even some polling data, and the uh the Supreme Court, in a really kind of meticulous way in the Cruise case walked through the evidence and explained how it just wasn't enough to meet the government's burden.

And if you compare that to what the Court did and Colorado two, or even quite Frankly and Buckley, it looks very different.

In Colorado two.

The court kind of acknowledged that there wasn't really a lot of evidence of the specific corruption problem that they were worried about.

And the court did two things that it said, well, one, we can it was it was it was fine to be kind of deferential to Congress's judgment knowing that this, you know, is a reasonable thing to worry about, this kind of anti circumvention issue with the parties, And to it said.

What the Court said is, well, you know this, this has been illegal for a long time, so it makes sense that we wouldn't have evidence that people are doing this because it's been illegal.

So, of course, of course there's not evidence.

And so a big question in yesterday's argument that came up in just a lot of different ways is what kind of evidence does the government really need?

So the petitioners have pointed out in this case that the FEC had some discovery, they had an expert, and they really failed to show in the record even one case that they think that the petitioners think would satisfy the burden here.

And they're really specific about what they think the government needs to show, which is that there is evidence that it is it's a real problem that people are using political parties as a conduit to circumvent the individual contribution limits as part of a quid pro quo arrangement between the donor and the candidate.

And so the petitioners said, look, there's they say that this is a problem.

There's no evidence in the record at all.

Now, several of the justices, I think Justice Sota, my Ora, Justice Jackson pointed out that again the thing that Colorado two said, which is this has been illegal.

Of course there's no evidence.

And the petitioner's response, and I think this is maybe for me, the most important part of this case and the most important takeaway that I have.

The petitioner's response is that that's that's really not true.

So it's not true in two big ways.

First, twenty eight states allow unlimited party coordination, and I think that seventeen of those states allow unlimited party coordination while also limiting individual contributions.

And so if in those if you thought that this was going to be a problem that when you have unlimited party coordination and individual donations, that you're going to have this kind of circumvention you would see evidence of it in the state, and there's no evidence of it in any of these states, definitely not in the record.

And if there are some cases that have been pointed out outside of the record by by a Meeky or something like that, they're they're definitely not at scale that this is a real problem.

To show that this is a real problem.

The other point that petitioners make is that federal law doesn't actually prevent coordination.

It imposes limits, and those limits are in some cases they're variable depending on the race and where, depending on uh, you know what race it is and what location that you're in, and they can be as high as, you know, four million dollars.

And if you were really so, so you do have actually a lot of ability to have this kind of circumvention even though you have these limits, and you still don't have any evidence that this is a problem under the current limits.

Uh.

And that also you have had with some statutory changes to the law, you've had exceptions to the limits, so that now parties can spend unlimited amounts of money in coordination on things like recount litigation.

And the petitioner's sort of point with all of this is it's actually not true that this is illegal everywhere all the time.

There are lots of places that this could be happening, and you still don't have any evidence for it.

And this is sort of in the line of reasoning from a cutcheon, which is that you're saying that this is a problem.

It seems kind of implausible, and you don't have any evidence, and so you can't defer to Congress here because First Amendment rights are at stake if you're not coming up with any evidence, you know.

I think that the reason I think that this is really important is that I don't think that at any point did either the justices, you know, who are more on the left of the court, Justice Kagan, so of my Ora Jackson, who are really challenging this point.

I never heard a response from either them or the lawyers defending this that really gives an adequate explanation as to how the court can deal with this lack of evidence.

I think that the lawyers defending the law repeated at times this idea that the law makes it illegal, so of course you're not going to have any evidence, and never really confronted the fact that it's actually not illegal everywhere and even under federal law, it's not completely illegal.

And so what do you make of the fact that you don't have these anti circumvents, you don't have these circumvention problems, And what you saw in the Cruise case is that that ended up being really fatal to the defense of the law.

And if if I were to sort of place a bed on this, I think that that's where the court probably ends up landing because us based off of Cruise that this seems to be a really important, a really important point.

But there was a lot of pushback on this from from the justices on the left of the court.

Not necessarily pushback as to what the record shows or whether there evid there is evidence, but a lot of pushback that I would characterize as re litigating Cruise and re litigating McCutcheon in the sense that questioning whether how much evidence the government really needs.

I think that Justice Kagan at times, you know, she made several statements as part of her questions that she doesn't you know, this idea that you would use parties as a conduit, and these committees are all talking to each other this this doesn't actually seem that far fetched.

It seems very plausible in you know, when the federal when FICA was enacted in the seventies, you had evidence that the dairy industry was making a bunch of different contributions to committees in order to get a you know, uh, a political favor from from Nixon.

And so there are some big, maybe examples in history.

It also seems plausible.

And so there are a lot of questions kind of pushing back on what the government's burden is.

And but to me, those sorts of arguments seem to be, you know, re litigating some of the more recent decisions, and it seems unlikely that the court is going to just move away from some of the cases that it has where it's been trending in the last a few days or a few years, excuse me.

So I think I think those are the big kind of takeaways.

The big themes that I got from the argument, you know, are we are we watching this sort of like tricky bait and switch where we undermine all of campaign finance law kind of one brick a time.

How much does it matter that political parties are different?

What's their role sort of in this this scheme and under the First Amendment, and what exactly should the evidence you're a burden on the government be over time?

I will, you know, there were a lot of other things that came up that I think I'd like to flag a few of them that are there interesting.

Amika's Council has really pushed on standing mootness arguments and led sort of led with that with his argument, and just as Thomas in particular seems really focused, I couldn't get a sense of from the questions of what Justice Thomas might be thinking other than he was focused on these issues.

So just to sort of give a sense of what those look like, there is a There are two kinds of issues that are going on.

The first is is with Vice President Vance and his status as a candidate and whether or not he has standing or whether or not at the outset of this case, or whether or not his claim is mood based off him not committing to running for office again.

Justice the A.

Meekis Council pushed on this a lot, because Justice I should say, I didn't get a sense of where Justice Thomas landed.

I think at one point with Vice President Advance, he did say that he was said something like he was comfortable with Vice President Vance and he was more focused on the committee's role in this case.

Justice Roberts seemed really skeptical of this argument that because Vice President Vance hasn't announced what office or that he will run for office, that he's keeping his options open, that that is enough to say that that this is mood.

There was kind of a discussion about how and then there was also a a another another piece to the mootoness argument with Vice President Vance, which is that the federal government, you know, by virtue of this case, and I think an executative order that was maybe signed, has said that it thinks that this law is unconstitutional.

So does Vice President Vance actually face any threat of enforcement if he were to violate it?

And that Justice the Chief Justice seems very skeptical of that argument that you would ever sort of advise a client the federal government today is saying they're not going to enforce it, so you should feel comfortable violating it, that that would be enough to moot a claim.

You know.

The other aspect of this, I Meanki's council really focused on the committees in their place.

It's an interesting statutory question because the mechan like I said, at the outset the mechanism to get to the Sixth Circuit.

Uh in the um banc Court, is this statutory procedure that allows you to go straight to the un banc court and it only applies to you know, individuals, and it says something like the National Committee.

And there's a statutory question about whether the congressional committees like the NRSC fit within this statute.

And if they don't, does that matter if you have Vice President Vance in this case and that you're now in front of the Supreme Court.

And then also is that if that's wrong, is that wavable?

I'm not really I couldn't really get a sense of where the Court might be leaning on that, except that there weren't a lot of questions other than from Justice Thomas on it.

So maybe a lot of the justices are satisfied that the case itself is before them, whether or not, you know, one particular party might not have a valid claim or had had jurisdiction to be there.

I think that another another interesting discussion we heard in the argument I think sort of centers on how we should interpret some of these old First Amendment cases in light of the fact that the doctrine has changed.

So one example of this is when they're talking about Colorado two.

And there was a sort of an argument discussion back and forth between the lawyers defending the law and some of the justices about why I think it was Justice so of my ore, it might have been Justice Jackson about whether or not Colorado two based its holding on the fact that this law prevents quid pro quote corruption, or whether it based its holding maybe in part on the fact that this law prevents corruption in a broader sense of the word, like undue influence and undue access, or even because you know, before you know, when Colorado two was issued, it was the case that the government could restrict political speech like this for you know, to to prevent corruption in that broader sense, preventing things like undo undo influence, or undo access to a politician.

And since Colorado two, the Court has said very clearly that the only permissible grounds for restricting political speech and political spending is preventing quid pro quote corruption.

And so how do you interpret I think a hard a hard issue for the court is how do you interpret these old cases that use words like corruption but maybe had a different meaning in a broader sense, And what do we what do we do about that.

Now, does that mean that the you just throw the opinion out, does the records?

And so there was a lot of back and forth about this because you know, the way this comes up is that a lot of these campaign finance statutes were enacted with the thought that Congress is allowed to prevent money in having too much money and politics, or Congress is allowed to prevent undo, you know, influence on politicians, and that's the reason the statue might have been enacted.

And now we're trying to sort of take a statute enacted for an impermissible purpose and kind of retrofitted and say it was actually enacted just for this other purpose of preventing with pro quo corruption.

The last thing that I'll comment on is, you know, obviously a big question in this case is what are the differences between coordination and contributions.

Coordination by independent groups are treated like contributions, and the Court has said that they're similar, and there were some questions about this.

The Chief Justice, I think his first question was about this that that obviously some kinds of coordination we treat his contributions.

So if you just allow it, isn't that just allowing unlimited contributions the the slitter General's office, the attorney arguing for the Department of Justice, you know, differentiated between these two things so that they're similar in some ways.

They're similar in terms of maybe the bottom line bank account for the campaign.

Coordination can help pay for bills that the campaign would otherwise have to pick up.

But coordination is also different in important ways.

When the party pays for an ad, the party's name goes on that ad, they're adopting it as their speech, so they're not exactly the same, which I can at least open the door for some daylight between treating these two things as the same.

So, you know, I think that if you're betting on this, I think you bet that the challengers win.

You bet that it's probably pretty narrow, And if I were to guess, I think that it would probably come down to kind of a deficient evidence your record for the government which allows the court to overrule Colorado to or say that the standard has been strengthened since.

So we can turn to some questions.

Now, well, thank you so much for that summary of oral argument and sort of the procedural history of this case, which is certainly important for understanding how we got to where we got to.

Yes, we can turn two questions now.

As a reminder to our audience, if you've got questions, feel free to submit those via the Q and A feature.

And as those start coming in, I'd love to oppose one of my own to kick things off.

Picking up where you left off on this issue of the types of speech, the lawyer for the interveners was making what I think is probably a fairly nuanced point about what kinds of speech campaign contributions are or this sort of these kinds of contributions are.

Could you give a little bit of nuance to the sort of pure speech side of things that he was talking about versus this sort of general approbation of a party or a sorry candidate's point.

Yeah.

So there was this discussion that came up, and I think it was confusing some of the justices maybe were not quite following us.

I think Justice Thomas had a few follow up questions where he's confused by this.

I think the sort of the point that was being made is that, going back to Buckley and in some other cases, the Supreme Court has has drawn a line between spending in support of a candidate and contributions.

Both of those are speech.

Both of those are protected by the First Amendment.

But what the Court has said is that a contribution, the value of a contribution is expressive.

It signals to the world or to to someone that you support that candidate, and that that expressive value doesn't necessarily change if it's three thousand or four thousand or five thousand, which is why, which is one of the reasons the government can restrict the contributions, because the real First Amendment value, or at least a lot of the First of the Amendment value, is that expressive aspect of supporting a candidate.

I don't there's a when you compare that to spending where someone is using their money to put out their message and to try to go to the voters and make a case that there is more value to there's more political speech going on there, that it's not just you know, it's not an expressive donation.

Now, I don't know if the Supreme Court has has I know, I don't know how much that has weight with the current Supreme Court, that sort of dividing line it has.

It has been sort of you know, repeated in some cases.

But I think that that is what the Meekest Council was sort of signaling is that when you it came up in the argument when talking about coordination, because some kinds of what we consider coordinated, you know, coordinated spending is the candidate incurs a bill of some kind and the party just pays for that bill, and maybe it's not an advertisement, so the party is named as they don't adopt and add as their own speech.

And I think Amikas Council's point is that some of this coordination just has the speech part of it is just the expressive act of supporting their candidate.

I think the pushback is that actually there's a lot of associational speech rights at stake when you are talking about the strategizing and coordinating, it's not just this kind of token, expressive kind of value.

Got it.

You touched on this a little bit in your sort of second category of conversation concerning the particularized nature of political parties.

There seemed to be a bit of distinction between the position of the Solicitor General's office and then the lawyer on speaking of half the petitioners concerning the nature of the relationship between the political party and candidates.

It was something I think mister Matuez called on and is like, Hey, these two premises that they're very aligned, or that the political party is trying to represent a whole bunch of people may or may not be in conversation.

Now, could you lay out those thess a little bit more and touch on how they may be interacting with each other in the larger conversation.

So let me I might I might a little bit of a clarification of your question.

But you know, the way I understand it is that you know there is actually it might just help if you could I'm not quite sure what the distinction you're drawing is, and then I think I could maybe answer that a little better.

Yet, it's possible there isn't one.

But it seemed to be that the layer, speaking of a half petitioneries, was saying that political parties were not going to be working on behalf of candidate's interests.

There wasn't going to be this sort of necessarily we are doing this, yes, whereas the Solicitor General's office contended that they were so parallel there wasn't going to be any conflict of interest.

Necessarily those might not be in sort of disagreement.

But the uh.

Amicist lawyers certainly seemed to argue that there was attention between those two positions.

Yes, so okay, no, this is this is a great point.

And and here's how I think where the disagreement is and where it really matters on this First Amendment issue.

So the argument that this case is like McCutcheon is that mccutcheen has this this part where it talks about how once you give a contribution to someone else and they control it, then you have really cut off the chain.

That that that makes applausible quid pro quo possible because you want something from the candidate, but the candidate does not control that money.

And and and the people who support this lawsuit, that's a fiction.

The candidate's going to get that money because the party is going to use it to support them.

The petitioner's point, and I think what a lot at this point that's made that parties don't actually operate that way.

So a party's goal is to support its candidates, but what that what the party really wants is to win elections.

And so what you see and there there is you know, there's some empirical evidence to support that this happens.

What you see is that parties spend their money where they think that their money is going to be the most effective.

And so even if they get a lot of donations through joint fundraising events with candidates, that does not mean that money goes to that candidate.

They will they have their interest is in having the largest majority that they can gain, winning the most seats that they can so they will cut ties with a candidate that they think is not They're not going to waste money if they think the candidate can't win.

They will spend money on races they think that they can win or where their money will be the most effective.

And so in that way, the parties and the candidate's interest are really disaligned.

Now when and so the worry that you're going to have this circumvention by giving money to the party to the candidate doesn't pan out because the party is not going to just answer to the candidate in that way.

So that's part of that argument.

Now, the reason coordination helps is if the party is going to spend money to support a particular candidate, you know they're going to be aligned and they're going to want to know what that candidate thinks is going to help them because that candidate probably has a lot more insight than the party is to their own particular race, but that the candidate is not going to have the argument, at least from the petitionous.

The candidate is not going to have that kind of control over the party because their interests are not always aligned.

That's one of the reasons that you see this argument that parties are moderating forces on our politics because parties are more likely to support the more moderate candidate because it's the more winnable candidate.

You know, the candidate has the better shot of winning, and so party candidates us aren't always aligned.

And you know, the counterpoint to that is that you know, of course, party you know, of course parties interests are going to be aligned with the with the candidate's helping them raise money.

They want the candidates to help them raise that money, so they're going to use that money to help the candidate.

And that kind of that kind of cycle.

Got it thanks so much.

Turning from sort of what was in or argument to sort of what wasn't.

Were there any arguments you were surprised not to see raise their heads?

And to what degree does the fact that we didn't get any questions from Justice Gorsich plan the way you're thinking about this case.

Yes, that's interesting the question about you know, some people noticed that Justice Gorsich didn't ask any questions.

I think Justice Bairt only answered one question.

I don't know what to make of his silence.

Who knows.

But one of the things that did make me think about is that in the Sixth Circuit you had two concurring opinions when by Judge the par And and by Judge Bush, and both of those opinions made this point that we really act, you know, we have all of these tiers of scrutiny and narrative, like all this stuff that we do at the First Amendment, and we should actually go and to something that looks more like Bruin an originalist approach to the First Amendment.

And Justice Judge Bush wrote along opinion about how this would come out under sort of that originalist thinking.

And you know, Justice Gorsich is an originalist, he's a formalist.

And you know, this area of the law is is really not originalist in any way.

Is as we've talked about it.

It's really driven by precedent and principles that that are not necessary.

You know, they might be right.

If you went and did an originalist analysis, maybe you come out the same way.

But nothing about these cases is originalist in any sense.

And and so so you know, it's interesting that you know there were there are obviously a lot of amiki briefs who've sort of ever hurts us too, But you have these lower court opinions and the parties have not brought any of this up.

You know, the petitioners are not making this point in their briefs.

So maybe it makes sense that it wouldn't come up at argument.

But it didn't come up at all.

You didn't see either Justice Thomas or Justice Corse Hitch.

Who are are really these you know, originalism over precedent kind of justices.

None of them are thinking about whether this whole or at the argument, this whole thing should be thrown out and we should do something like Bruin.

This looks like a case that they're just going to keep going, you know, and following the precedent and where it's at.

Got it, thanks so much.

Turning from sort of oral argument to the potential ramifications of this case.

You've staked your claim as sort of like what might be the outcome here.

I'd love to touch on a couple of the questions that you flogged were, hey, these were We're not quite sure where these going to stand out?

And then also the potential ramifications of a decision that rules as unconstitutional.

But starting with it was interesting to see the number of times the potential advantage or disadvantage to the parties was raised as a consideration by a variety of justices.

To what degree could that conversation play into the overall decisions and opinions that we get on us.

I think that it is unlikely that I think that we would see a majority opinion that leans into the disadvantages of the party in the sense of them becoming less important players in the electoral scheme.

I think that is really hard to reconcile with some sort of first principle in the First Amendment as to why we should care how influential parties are, but to the extent that there are unique associational concerns with parties and candidates in that by disrupting sort of this internal strategizing, we have actually allowed the government to decide like how candidates should be selected, how like how all these campaigns should work.

I mean because you could think of a system and right like we used to have where the parties are actually running these campaigns, and now the system has put its thumb on the scale of making candidates independent from their parties.

I do think that, you know, that that element could inform how the Court rights its opinion.

As a parties are unique kind of in that way as a way to sort of cabin the effects of this decision, if that's what the Court wants to do.

Got taking your thesis that the Court seems like I may call these limits unconstitutional, what would be the ramifications of such a decision?

You know?

I think that the practically speaking, you'll have you know, parties will get a lot more involved in their federal elections in terms of being able to spend money and coordinate, you know, in that I won't pretend to know how that would affect the actual politics of it all.

I think that it's it's very likely that the Court I mean, I don't know about very likely.

I don't think the argument necessarily tells me it's very likely.

But if I'm watching sort of the trend lines from these cases, I would guess that this is another case that really emphasizes how we have multiple layers of restrictions in the campaign finance world that all are you know, supposedly doing the same thing.

They're all trying to prevent quid pro quote corruption.

So you have contribution limits, you have ear marketing rules, you have disclosure rules, you have all of these different things, and the Court seems to be slowly saying some of that is enough, and if you want more than that, you need to come to us with a lot of evidence that this is something that you absolutely need, and that I think will continue to have ramifications.

I do think that it's likely that if you get an opinion light cruise that says something like that, that you will have more challenges to more restrictions that are these prophylactic upon profhilactic restrictions, these layers of restrictions, that the outer layers are going to continue to fall away.

If that's what we get from the court.

Got it, and I'll oppose the briefly that the contrapost what happens if this is upheld as constitutional or we get a decision that says it just isn't standing slash its mood.

If it's standing slash mood, I think that I don't.

I don't know.

If you haven't you if you're the NRC, or you try to go find another candidate in another circuit to try to do it again.

If it's upheld, I think a lot of it, I guess would depend on on why it was upheld.

I think it would be kind of a a shock wave a bit in terms of really disrupting the way in which campaign finance regulations in the First Amendment have been viewed by the Court.

I think, you know, so for people who are very pro campaign finance regulation, I US would be like, it wouldn't just be a victory for them, this would be like a huge breath of fresh air because this case, if you just follow what the Court's doing, this case looks like it's dead to rights.

And so I think that the Court would have to really break with what it has been doing in order to uphold this law.

And I don't I don't know what the ramifications are for that, except that you certainly would would see probably a lot less aggressive challenges to these kinds of laws.

Below.

Got it.

We're almost at the top of the hour, So final comments or thoughts.

No, I mean, I think it was it was you know, for a campaign finance law that many people have never heard of and never thought about because it's obscure, it only affects political parties.

The argument was really interesting when it went, It went really long.

It seems that the court is very aware and the parties are very aware that this obscure kind of case could have pretty big ramifications on the law, and so it'll be interesting to see what the court does.

Sounds good, well.

Thank you so much for taking the section of your day and sharing your expertise and insight.

Really appreciate you joining us to break down the case and some up where we may be going.

Thanks also to our audience for joining and participating.

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