The Illusion of Campaign Finance Reform

Summary

Advisory Opinions – “The Illusion of Campaign Finance Reform”

Podcast: Advisory Opinions – The Dispatch
Hosts: Sarah Isgur and David French
Date: December 11, 2025

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Episode Overview

This episode tackles the complexity and “illusory” nature of campaign finance reform in the United States. Sarah Isgur and David French discuss the history and current landscape of campaign finance law, including Supreme Court arguments and the ramifications for political parties, candidates, and democracy itself. Along the way, the hosts break down recent Supreme Court oral arguments (Olivier v. City of Brandon and NRSC v. FEC), the enduring access-to-justice crisis, and the practical and philosophical failures of American campaign finance regulation. The conversation is detailed, vibrant, and leavened with real-world experience and their signature, wry tone.

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Key Segments & Discussions

1. Revisiting Slaughter and Access to Justice

[01:50–06:01]

• Sarah and David reflect briefly on the Supreme Court’s “Slaughter” argument, with a listener email sparking a broader discussion on the vast difference in care and deliberation between Supreme Court proceedings and mass-production justice at the trial court level.
• The email highlights the imbalance in attention and resources between appellate and lower courts:

  “Even when I don’t like the outcome of a case. A lot of very smart people have collectively spent hundreds, thousands of hours contributing to the process. … But the system just does not lend itself to most cases getting even a sliver of the thoughtful consideration and deliberation that goes into decisions and arguments at the Supreme Court.”
  — Listener Email [02:08]

• The hosts underscore the persistent access-to-justice problem, especially in civil legal areas (e.g., family law) where many cannot afford representation:

  “There’s a huge category of legal services that are not criminal defense or personal injury… from kind of upper middle class to working class people just don’t have access to because it’s really expensive.”
  — David French [04:57]

• Sarah urges lawyers to consider pro bono family court representation, especially during the holidays.

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2. GVR in Religious Vaccine Exemption Case

[06:01–09:43]

• Quick analysis of a Supreme Court “GVR” (grant, vacate, remand) in a 2nd Circuit case involving New York’s removal of religious exemptions to school vaccine mandates, which was prompted by a prior religious-liberty case, Mahmoud v. Taylor.
• The Court’s move signals openness to reconsidering strict scrutiny and religious exemptions in the vaccine mandate context, especially after a 2019 measles outbreak led to the law change.
• David wonders whether the case could become a rare instance where strict scrutiny is met for vaccine mandates:

  “…if there is going to be a situation where you have a compelling governmental interest, this is going to be a compelling governmental interest. I wonder about the means.”
  — David French [08:00]

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3. Olivier v. City of Brandon: Street Preacher, Heck v. Humphrey, and First Amendment Litigation

[09:43–22:34]

• Recap and legal context for this unusual but representative Supreme Court case, where a street preacher (Olivier) seeks prospective injunctive relief after pleading no contest to violating a city ordinance restricting protest activities.
• Central legal question: Can a person who pled guilty or no contest (without appeal) later file a civil rights suit for injunctive relief against the same law, despite the rule from Heck v. Humphrey barring Section 1983 actions that would “imply the invalidity” of a criminal conviction?
• Sarah argues it is unfair for someone to lose all future opportunity to challenge an unconstitutional law simply because they didn’t contest their first ticket:

  “…you’ve lost. Let’s assume the law for a second does violate the First Amendment. You know, I think that’s the only way to really approach this case. Assume it violates the First Amendment. This guy just loses his First Amendment rights because he didn’t challenge it initially.”
  — Sarah Isgur [15:24]

• David brings up the practical difficulties defendants often face and the limits of habeas as a remedy.
• The hosts predict a likely 9–0 ruling making a clear distinction between past convictions (locked in a “box”) and future prospective conduct, allowing people like Olivier to challenge unconstitutional ordinances going forward:

  “Anything that happened in the past, including things that continue to this day are in the lockbox… Anything that could happen in the future, different box… So yes, you can bring a 1983 claim.”
  — Sarah Isgur [19:31]

• David:

  “…I think Olivier should win this case. … you know, I’m just. God has called me. You know, God’s called me to condemn whoreness. So I’m going to do this again. And this seems to be a situation really outside of that Heck context.” [21:00]

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4. NRSC v. FEC: The Illusion of Campaign Finance Reform

[26:06–51:16]

A. Campaign Finance Law Refresher

[26:06–38:33]

• Sarah provides a fast-paced but comprehensive summary of the major Supreme Court precedents framing the current system:
  • Buckley v. Valeo (1976): Upholds limits on direct contributions (as anti-corruption) but strikes down limits on expenditures.
  • Colorado II (2001): Permits limits on coordinated expenditures between party and candidate.
  • McConnell v. FEC (2003): Upholds “soft money” limits, much maligned by Sarah.
  • Citizens United v. FEC (2010): Bars limits on independent corporate expenditures close to elections, but allows disclosure requirements.
  • SpeechNow.org v. FEC (2010): Opens door for super PACs by allowing unlimited contributions to independent expenditure groups.
  • McCutcheon v. FEC (2014): Strikes down aggregate individual limits for contributions to multiple candidates.
• The case at hand asks: Can a party coordinate spending with its own candidates, or do such limits serve any anti-corruption interest?
• The hosts point out the tension between preventing circumvention (of individual contribution limits) and recognizing that parties “can’t bribe their own candidates.”
• The case features an unusual dynamic, with JD Vance as plaintiff and a standing challenge based on whether he is “really” running for re-election.

B. Critique of Technocratic Campaign Finance Regulation

[38:33–42:27]

• David attacks the underlying philosophy of campaign finance law:

  “Every time we walk through the history of campaign finance reform, it feels like this is what happens when you get the illusion that you can technocratically manage human nature, especially human nature and human behavior around expression.”
  — David French [38:33]

• Argues the system has worsened billionaire and big-donor influence and weakened political parties—despite the mountains of legal doctrine and “prophylactic” rules.

C. Real World Consequences and the Modern Campaign Finance Mess

[43:28–51:16]

• Sarah and David agree that no one in actual politics likes super PACs (except those running them), and that the system has crippled parties and magnified unintended consequences, such as:
  • Outsized role of small dollar fundraising, incentivized by rules aimed at “incumbent protection.”
  • Unaccountable, inefficient, and sometimes counterproductive super PAC interference in campaigns.
  • Death of party power, which once held candidates accountable and maintained legislative and policy platforms.

    “It was an incumbent protection racket that then had the exact opposite effect… just like Jeff Goldblum taught us in Jurassic Park, money finds a way.”
    — Sarah Isgur [43:28]

  • Kavanaugh’s pragmatic “real life” comment in oral argument:

    “…the combination of campaign finance laws and this court’s decisions over the years together have reduced the power of political parties as compared to the outside groups with negative effects on our constitutional democracy.”
    — Justice Kavanaugh, quoted by Sarah [48:06]

• Sarah predicts the Court will strike down party-candidate coordination limits due to lack of anti-bribery rationale, but acknowledges legitimate concerns about the slow chipping away of all campaign regulation.
• Both hosts lament Congress’s continuing refusal to revisit and reform the system, despite obvious and chronic breakdowns.

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5. Primary Voters, Grifter Tactics, and Modern Electoral Manipulation

[55:13–63:37]

• “Grifter Sarah” fielding: The NRSC’s strategy of boosting “unelectable” opponents, mirroring earlier Democratic efforts to push MAGA-style candidates in Republican primaries:

  “Not only do the party committees focus on candidate recruitment for their side, they focus on opponent recruitment on the other side.”
  — Sarah Isgur [56:17]

• This includes robocalls, polls, and buzz-building to influence opponent selection. Both Sarah and David agree it’s effective—and mutually corrosive—escalating partisan warfare.
• David’s key point:

  “We really have to focus on who’s really responsible for this problem. … It’s primary voters. God save us from primary voters right now…” [61:49]

• Commentary on how disengaged majorities have left the most radicalized, activist voters in control of party direction.

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6. Notable Hypotheticals and Class Discussion

[65:43–68:39]

• David shares a colorful hypothetical (set at a college party) for his students on the constitutionality of “Christian nation” proposals, sparking creative student responses and demonstrating how contemporary legal questions can be rendered vibrant—and fun.

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Notable Quotes

• On campaign finance futility:

  “Money always finds a way, that money finds a way to influence politics. And so it’s like playing constant whack-a-mole.”
  — David French [38:33]

• On the dysfunction of Congress:

  “Think how many things that are tearing America apart for which there are compromises available that Congress just won’t do jack or squat.”
  — David French [51:16]

• On the “book banning” implications of pre-Citizens United law:

  “How is it not the most egregious First Amendment violation that you’re not allowed to criticize someone because they’re running for office and it’s within 90 days of the general election… That’s insane to me.”
  — Sarah Isgur [43:28]

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Key Timestamps

• 01:50–06:01 – Slaughter recap and access to justice discussion
• 06:01–09:43 – GVR and religious vaccine exemption
• 09:43–22:34 – Olivier v. City of Brandon, First Amendment litigation for street preachers, Heck v. Humphrey
• 26:06–38:33 – History of campaign finance law, Buckley to Citizens United, case set-up
• 38:33–43:28 – Campaign finance as technocratic futility; the “illusion” revealed
• 43:28–51:16 – Systemic consequences of current law; super PACs, party power, and money's path
• 55:13–63:37 – Party “opponent recruitment,” Grifter Sarah, primaries, NRSC v. Paxton/Crockett
• 65:43–68:39 – Lord Protector Cromwell privacy hypo (religious freedom and constitutional limits)

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Tone & Takeaways

The episode moves briskly, filled with wry humor, candor, and lived professional experience. Both hosts express deep frustration with technocratic attempts to regulate money in politics, lament Congress’s abdication, and urge listeners to understand that rules built without recognition that “money finds a way” are doomed—often with perverse consequences. The discussion is accessible to non-lawyers, but does not shy from nuance or technical points; their mutual respect for nuance and compromise is apparent, as is their general pessimism about near-term solutions. The lasting message: campaign finance reform, as constructed by law and defended in Court, may be more illusory than real—calling into question the premise of much of American political regulation.

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Transcript

[A]

Ready? I was born ready.

Welcome to Advisory Opinions. I'm Sarah Isger, that's David French. We are gonna get through it today. A little quick revisit on Slaughter and and an access to justice point from one of our wonderful listeners. A new GVR on vaccine mandates in schools. Two oral arguments to get through Olivier versus City of Brandon and NRSC versus fec as well as some grifter Sarah there at the end. Don't miss out on advisory opinions.

[B]

Limu Emu and Doug.

[C]

Here we have the Limu Emu in its natural habitat helping people customize their car insurance and safeguards. Hundreds with Liberty Mutual. Fascinating. It's accompanied by his natural ally, Doug.

[B]

Limu is that guy with the binoculars watching us.

[C]

Cut the camera.

[B]

They see us.

[D]

Only pay for what you [e-mail] Liberty Liberty, Liberty.

[C]

Liberty Savings.

[B]

Very unwritten by Liberty Mutual Insurance company and affiliates.

[E]

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[A]

Do a very quick revisit of the Slaughter argument where we did the live podcast. You know, the more I've talk friends about this, a good friend of mine called it the Slaughter argument. That could have been an email.

[B]

I think that's so correct.

[A]

Right, like we really didn't need two hours. We probably just could have circulated some quick notes. We've all been on those conference calls. That could have been an email. This was the Supreme Court argument. That could have been an email. I did get a great email from a listener who had won in the lottery a ticket to go see the Slaughter argument. And I know that a lot of you guys listening are interested about potentially going to an argument someday or entering that lottery to see what you could get. So I thought I would just read what she said. As someone who attended this argument, as a non lawyer, watching all two and a half hours of the oral argument was a good reminder of the amount of time all parties involved are investing in these cases, both leading up to yesterday and in the months to come as the Justices deliberate and write their opinions. Even when I don't like the outcome of a case. A lot of very smart people have collectively spent hundreds, thousands of hours contributing to the process. I wish a proportionately scaled level of investment were also happening at the lowest levels of court proceedings rather than what often looks like a dysfunctional mass production process. A good friend and colleague recently told me that he had done some caseload analysis for a district attorney to get a sense of whether the prosecutors in in his county had higher caseloads than other nearby counties. To make the comparison as fair as possible, my friend estimated prosecutor hours spent per year of jail, prison time at stake. His estimate for the county in question was 33 hours per year of potential time incarcerated. I'll exercise some self restraint and not write several more paragraphs about rushed and slipshod work at the district court level. There are many hard working, principled people working in those courts trying to do good work and often succeeding within the scope of their influence. But the system just does not lend itself to most cases getting even a sliver of the thoughtful consideration and deliberation that goes into decisions and arguments at the Supreme Court. David, a couple things here. One, I just loved the like realization of other people's good faith like realization how much work other people are putting into something. I feel like this is the AO ethos, standing in someone else's shoes and assuming good faith. Love that. But I also loved the access to justice point and it's one that we're going to have for our Christmas episode as well. Just to tease that out this year, you know, we cover the Supreme Court, we cover appellate stuff here. There are so many access to justice issues at all levels of law and I hope, you know, we don't talk about it a ton but I hope people hear those little snippets and take it to heart. Especially you lawyers out there that are can really invest some of your time on access to justice issues with your pro bono hours or even as your job.

[B]

You know, I love that topic and I thought a lot about it when I was practicing and it would be really fun. I think maybe when the court's in recess or holiday episode, as we talked about that we're teasing where we really dug down and said where what are the access to justice issues? You know, I, I, I've long felt that, you know, obviously if you're indigent you can get a court appointed lawyer even if you have no money. If you've been in a catastrophic accident where a lawyer thinks they can make money from you, you can get a lawyer but there's a huge category of legal services that are not criminal defense or personal injury that you know, really, from kind of upper middle class to working class people just don't have access to because it's frankly really expensive. And so you, you end up doing shortcuts, for example, like will kits and things like that. That can be often adequate, but maybe adequate, sometimes adequate. It's a, it's a very interesting issue.

[A]

I'll just highlight one today again as you're sort of thinking of your Christmas giving this year, whether it's your money or your time. As David just noted with family law, family court, parental termination cases, you know, guardian ad litem, pro bono time to represent children in some of these, these are sad cases where there's not winners and it could use a lot more great lawyers time even in a, in a place where, you know, that's a lot of sad stories. So that's my plug for your Christmas access to justice right now. David. I also want to mention a GVR where the court granted cert but then immediately vacated the lower court and sent the case back down in this case to the second Circuit for further consideration in light of Mahmoud v. Taylor. That was the religious opt out for the books that were of, you know, a nature that the parents didn't like. That was Mahmoud v. Taylor last term. This is about schools in New York not having religious opt outs for vaccine mandates. So up until 2019, New York did have a religious belief exemption to school immunization law, but they had a measles outbreak and so they changed the law. This applies to students attending public, private or parochial schools and there's no religious exemption. So three Amish community schools sued. The second Circuit was like shrug emoji, measles outbreak, too bad.

And the Supreme Court has vacated that and sent it back to the second Circuit to think about based on Mahmoud. We see these from time to time. It doesn't mean that the lower court will change its mind. It doesn't mean that the Supreme Court will then take the case. But it's like a flag on the field to redo the play. And that alone is pretty interesting.

[B]

It is interesting and it does make me wonder if we are going to see a case that strict scrutiny is met. So this is sort of the, this is sort of the, you know, the great white whale. What are the cases that actually can meet strict scrutiny? And you know, we've talked about previously in other cases where it seemed as if the court didn't want to say that something met strict Scrutiny. You know, we were talking about in the porn context, in the, in the minors access to porn websites case, that it looked to all the world to me like an Elena Kagan was saying, hey, let's apply strict scrutiny. And this meets strict scrutiny. And the majority was like, no, no, no, no, we're not doing strict scrutiny here. This is very interesting because the history here is that there were religious exemptions until 2019 when there was a measles outbreak in a highly religious community that adopted out of vaccines. And so if there is going to be a situation where you have a compelling governmental interest, this is going to be a compelling governmental interest. I wonder about the means. But when you have a history here, which was, hey, court, we tried religious exemptions, lots of people got measles that didn't want to get measles.

Then you're gonna. It's gonna be a very interesting dynamic.

[A]

You know, it's interesting that you bring up the strict scrutiny thing because first of all, when you're gonna strike it down, you call it strict scrutiny, but when you're gonna find that very, very rare government interest that can overcome it, you call it heightened scrutiny.

And in this case, you know, like you said, there's that Jack Jacobson case about immunizations from 100 years ago that was brought up a lot during COVID We're also going to talk about another example where a government interest can overcome heightened scrutiny in the campaign finance context in a little bit. But let's continue down our path today because earlier this week a case was argued called Olivier vs City of Brandon. David, tell us all about it.

[B]

Yeah, this is a really interesting case. It involves a situation that a lot of college students will be very familiar with, and that is the wild eyed, crazy street preacher. So let me get in with the facts. And these are the facts from the fifth Circuit, but it's a very nice statement of them. So our. The central character in our story is a guy named Gabriel. Olivier. Olivier, whatever. And it says Olivier is an evangelical Christian who often preaches in public. He seeks to impart the message that everyone sins and deserves eternal damnation. But for Jesus Christ, he also protests sins he believes are relevant for the community, like abortion and what he describes as whores, drunkenness and fornication. So you guys, if you've been on a college campus, if you've been in, you know, public areas, you've probably seen this. A person like this, where he's got signs up, he's sort of a lone street preacher to spread his views. Olivier uses signs and loudspeakers and frequents high traffic areas with many pedestrians. So one of the areas is a Brandon Amphitheater owned by the city of Brandon, Mississippi. And Brandon changed an ordinance or passed an ordinance to reduce traffic around the amphitheater during live events. The ordinance redirects protests and demonstrations to a designated protest area area three hours before an event and one hour after. It also bans the use of loudspeakers that are clearly audible more than 100ft from the protest and requires all signs to be handheld. And the ordinance states that the restrictions apply regardless of the content and or expression of the Protest. So in 2021, Olivia shows up to. Olivier shows up to protest. He stopped by the chief of police. And this is interesting. I actually appreciated this approach by the police officer. He was stopped by the chief of police, who handed him a copy of the ordinance.

I like that. Here's the law. I think that's a tremendous. So he complies at first, but then Olivio complies at first, and then he doesn't because he feels like no one's hearing me. So he goes up. He's charged with violating the ordinance. He pleads no contest in municipal court. He gets a suspended sentence and a fine. He pays the fine. He does not appeal the conviction. But he later sues the city under section 1983, saying the ordinance violated his first and 14th amendment rights. So he seeks damages, but he also moved for a preliminary injunction. And here's the twist here. So we're walking through this case, and street preacher sues to overturn an ordinance. Okay, that's very normal. That's very fine. But remember, he's pled no contest and did not appeal a conviction under the ordinance. So there's a case from 1994 called Heck v. Humphrey that says that a plaintiff can't. It can't sue under 42 USC section 1983, which is the normal way to sue to try to claim your civil rights or civil liberties have been violated. You can't sue against under 42 USC section 1983 in a way that will imply the invalidity of your existing criminal conviction. So you've been convicted, proof beyond a reasonable doubt, or you've pled guilty or whatever. You can't then file a civil rights claim saying that the underlying prosecution was unconstitutional. Well, that's what you argue on criminal appeal. You don't then take that second bite of the Apple in section 1983. But what about here? What about here, where he's asking for mainly Injunctive relief in the future against the unconstitutional ordinance, not damages for the previous conviction. Or that would imply the invalidity. Not for damages, but this injunction, if granted, would imply the invalidity of the criminal conviction. A little convoluted, but that's the situation. And it's really interesting, Sarah. This is another one of those cases where I, I'm not quite sure how this thing is coming out. Based on the oral argument, it seemed clear to me that. And that HEC was not set to be reversed. It was much more. Does this, how, how much does this implicate heck. And how much is this going to be a burden on the constitutional rights of individuals like Mr. Olivier? And so very interesting case, Sarah. Very uncertain as to how this is going to come out, but it's also one of these that's just kind of hyper technical.

[A]

At the same time, I was very, I am very into this case because he dropped his damages claim. Right.

[B]

It's just focus on the injunction.

[A]

Yes, Right. And like you are someone who wants to, who has broken the law and wants to keep breaking a law that you think is unjust.

You happen not to fight it the first time. And then you sit back and think about it and you're like, wait, I think this law violates my First Amendment rights. But from now on, you can never challenge whether this law violates the First Amendment. And so you've lost. Let's assume the law for a second does violate the First Amendment. You know, I think that's the only way to really approach this case. Assume it violates the First Amendment. This guy just loses his First Amendment rights because he didn't challenge it initially. At the same time, of course, we don't want to undermine people's convictions. But I thought something that sort of came out during the course of the argument was, okay, let's assume that a third person challenges this law and the law gets struck down as unconstitutional. That would undermine the validity of his conviction as well. So while I understand the purpose of that legal doctrine, and you certainly don't want a whole bunch of people that are suing for the purpose of undermining their conviction, like, you don't want to flood the courts with, like, you know, I've been sitting in jail for five years and now I've thought about it real hard and I think I might have a constitutional case if I squint, you know, this way. This is just the perfect case to say, like, he obviously is likely to be charged again. He's not currently in jail. He isn't currently under any supervisory issues or whatever, of course he should be able to challenge it. And I think. I think this will be a 9.0 holding that with all of these caveats that basically, like, you can't currently be incarcerated, and if you are under some sort of probation, supervisory, if there's any limitations that were caused by your previous conviction, let's say, for instance, you get 922G'd, right? Like, you're out. There's no restrictions, but you're not allowed to own a gun. That even if you won your case, you would still be bound by the restrictions that were caused by your previous conviction. Basically, there are two. There's a wall of separation between the two. Nothing from your previous conviction can be challenged, including the circumstances of your current state that were based on that conviction.

[B]

Justice Kagan said something in the.

In the oral argument that I think is interesting. She said, if we take heck for all it's worth. In other words, if you're just reading heck in a broad way, you can't win. In other words, you're just done. But then she says, any of the kind of underlying concerns about Heck don't seem to apply here. So it does seem that there is a move to sort of like, really confine HEC to the facts. And I think you raise a really good point here. So let's say you have a defendant here who comes in, and let's just play out some potential scenarios. You've been charged under a law. You have a public defender. The public defender is not a First Amendment expert, and the law, you're plainly guilty of violating it in many circumstances, maybe even most circumstances, the law would be. Or in many circumstances, the law would be entirely constitutional, Maybe not as applied in this circumstance, and you just can treat it like a conventional criminal case.

Then you're just done from then on. That doesn't seem to make any sense at all. Although I totally also get the idea that, okay, as a general matter, the time to raise a constitutional objection to your prosecution is in the prosecution. Also, you have habeas. If you're imprisoned as a result of your prosecution, you have actual criminal procedures where you can challenge the constitutionality. So I get the reasoning behind hec, but I agree with you, Sarah. If you apply HEC here, you seem you'll be applying hack in a context that seems broader than its intended scope.

[A]

Yeah, I mean, and again, like, I couldn't think of a better hypo to give law students than a street preacher. Right? It's basically a ticket and you're likely to get that ticket over and over again because he wants to keep doing it. So you really have to think of it as two totally different things. There's the past that happened, that is locked in a box, and you can't unlock any part of it. But there's the future ticket. He's trying to prevent getting the future ticket with that injunctive relief. And I don't see why these nine very smart people can't craft an answer to this not that difficult problem. Anything that happened in the past, including things that continue to this day are in the lockbox, can't come out of the lockbox. Anything that could happen in the future, different box, and that box isn't locked yet. So, yes, you can bring a 1983 claim. Do I think this case matters a great deal? No, I do not. Because even if they come out the other way, and I'm. I misread everything about this argument, you could always find a third party to bring the 1983. Some other person who says they want to take up street preaching could have brought this case. I think that's kind of a waste of everyone's time. But I'm not also too concerned, David, about the overall effect of the outcome of this case.

[B]

Well, I'm actually very encouraged that you think it's 90 because I think Olivier should win this case. I mean, the idea that I've pled no contest.

In response to a statute that I then, after pondering and thinking about it, have decided, well, I'm going to do this again. You know, I'm just. God has called me. You know, God's called me to condemn whoorness. So I'm going to do this again. And this seems to be a situation really outside of that Heck context, which the real concern for heck was end run around habeas. This is. This is just a fundamentally different situation. You've got expressive activity. He's not in prison. There's no habeas alternative here, really, for him. And so what's he going to do? Violate it, get prosecuted again, and I guess then raise the constitutional objection? No, this seems to be a much more sensible way of dealing with it. When you're dealing with only injunctive prospective relief and you're not challenging the underlying conviction that you pled no contest to. It seems sensible, but, you know, the justices were getting a little bit exasperated in the oral argument, sort of thinking through all of the complexities. So I like where your head's at on nine zero. I like where Your head's at. I'm just. Okay. I'm going to circle my wagons around your prediction, Sarah. I like that better.

[A]

It was funny because most of the time there's at least a few justices where, you know, where they are. I think all of the justices were really struggling with this case, but I think in the end they will all be able to agree on whatever that rule should be. Is that a decent way to explain that? It's not like I'm sitting here like there's three on this side. There's three. This is not a three, three, three case.

[B]

No, no, no. This is not one that has much ideological valence at all. I don't think.

[A]

No. And I think all of the justices were struggling with like how this would apply in the future, you know, a rule for the ages, David. I think they also all were coming at it from roughly the same part place. And so therefore I think they'll all roughly end up in the same place. Maybe we'll have some concurrences or maybe I'm totally wrong and this will be one of those five, four cases that is all over the place ideologically and institutionally and you just couldn't possibly have guessed the outcome. Like one of my favorite cases from last term on the National Guard pay differential based on whether you were called up during an emergency or because of an emergency. That case was 5 4. Who knew? Couldn't have guessed that. All right, David, when we get back, we're going to do the NRSC versus the fec. Alphabets versus Alphabets in a campaign finance showdown.

[F]

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[A]

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[F]

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[A]

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[F]

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[A]

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[F]

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[A]

Eduardo all right, David, that big campaign finance case was argued this week, NRSC versus fec. Before we start, I got something wrong on the last podcast that I'm absolutely horrified about. Like I got it wrong wrong. Like the wronge is wrong. I was talking about the fec, the Federal Election Commission, as one of these examples under Slaughter, you know, if we got rid of independent agencies, what sort of a mess that would be and how the FEC has been basically hasn't had a quorum for years.

You know, all the problems. It was a live podcast. I should have thought through what was coming out of my mouth better. But I said that the FEC basically can only have Republicans and Democrats on it because of the way the statute's written. What it actually says is that the president appoints all six members of the fec, but that no more than three members may be affiliated with the same political party. So in theory, a president could appoint three Republicans and three Libertarians or, you know, three Democrats and three Green Party members. And in fact, there has been an independent who has served on the fec. So why hasn't this happened? For those who are wondering, you know, because of the sort of mutually assured destruction of it all. But frankly, I think we're in mutually assured destruction territory now. And I won't be surprised if something like that were to happen in the future. There's also no explicit, at least removal protection in the FEC statute. So I just want to apologize for all of my FEC errors before we dive into a case about the fec, something that, again, you'd think I would know a lot about, even off the top of my head, since this is what I did as a lawyer and in fact worked at the NRSC way, way back in the day in the counsel's office. Okay, David, so I want to just do a quick refresher on campaign finance law for everyone. First of all, the differences between expenditures and donations is what this whole game is about. So in Buckley v. Vallejo, our OG case from 1976, the court really delineates that difference. It upholds limits on direct contributions because of anti corruption interests overcoming that heightened scrutiny, David. But it strikes down limits on independent expenditures, self funding by candidates, and total campaign spending as violations of the First Amendment. Okay, so like, again, think of this as like a wall of separation. If you're spending the money, the First Amendment allows you to do that without limits. But if you're giving the money to someone else, that can look a lot or lead to quid pro quo bribery. Okay? So that's how you overcome heightened scrutiny. That's Buckley in 76. Now, I'm going to run through your other precedents that are relevant to what we're going to talk about. Colorado 2. It's called. This is 2001. This is the case that's at issue here to be overturned. It allowed limits on party coordinated expenditures, meaning the party spends money talking to and with the coordination of the candidate, because coordination with a candidate makes the spending functionally similar to a contribution, which can be regulated, but parties are welcome to independently spend money, is what Colorado2 said. Now, the reasoning behind Colorado2 is going to be a huge issue in this case as they try to basically not overturn Colorado, too, et cetera. So I won't even tell you what the reasoning was, because that's the debate. Okay, Then we move on to McConnell v. FEC in 2003. It's going to uphold most of Bikra, my boogeyman in the closet, as you guys know, which I think has led to the failure of Congress. McConnell v. FEC approves limits on soft money fundraising by parties. This is what's going to kill off political parties as we know them. In the modern era. It also upholds those restrictions on electioneering communication close to elections. Then we move on to drumroll the boogeyman in everyone else's closet. Citizens United v. FEC in 2010. Now, David, I think this is the least understood Supreme Court decision maybe in the history of the Supreme Court. It has become just a stand in for money and politics. Bad people are like, yeah, but Citizens United. And I'm like, okay, can you tell me what that case is about, what it actually held? So remember Citizens United, a outside group makes a documentary that is critical of Hillary Clinton. And under the law and McConnell v. FEC, you are not allowed to release a movie that is critical of a presidential candidate within a certain number of days of the election, even though you didn't work with any other candidates. Like, even though it's a movie. During the oral argument, the lawyer for the Solicitor General's office said, yes, this could apply to books. The government could ban books that were critical of candidates from being published too close to an election. It was a crazy application of the law. And so the Supreme Court said, limits on independent expenditures by corporations violate the First Amendment, but disclosure and disclaimer requirements are just fine. Now, what happened since then? The case that people should actually be upset about if you don't like super PACs is SpeechNow.org versus FEC. In 2010, it applied citizens United to. To individuals giving to independent expenditure groups. So it struck down contribution limits to these independent expenditure groups. That's what creates super PACs. But no one talks about speech now. Fine, okay, then we have McCutcheon v. FEC in 2014. That's going to strike down the aggregate contribution limits. Because before and disclosure, I was involved in this case. I was at the RNC at the time. At the time, even if you stuck to the individual contribution limits to each candidate, there was a limit then to basically how many candidates you could give to even if each one was below the contribution limit. And what McCutcheon said was, there's really no interest in preventing quid pro quo corruption with a aggregate contribution limit. Because if the contribution limit prevents the bribery, then what is the aggregate contribution limit doing? How does it matter if you're wanting to give to every member of the House of Representatives, why shouldn't you be allowed to do that? So that's what McCutcheon was about. And this brings us to this case today, David. NRSE versus fec. Back to the question of whether the party can coordinate its expenditures with its own candidates. Now what? This case is not about individual contribution limits to candidates and individual contribution limits to political parties, those not at issue. But once the party has all this money, can it work with its own candidates? A few things that came out during the argument that are just sort of obviously interesting in this case. As you can see, as we marched through the precedent, there's a little bit of a give a mouse a cookie problem here that every time the court's like, okay, yeah, that doesn't seem to have a lot of quid pro quo problems, they come back and are like, and now this. And now this. And we'd like, you know, a straw and some ice and an apron and we'd like to paint. And so, for instance, it came up a lot. Aren't you just going to come back and say that the donation limits to the party are unconstitutional or that coordination between outside groups between super pacs and candidates follows this logic, and suddenly, basically, we will have undone the vast majority of campaign finance law, except for individual contribution limits to individual candidates, but there'll be all these workarounds. This brings me to the second problem, David, which is circumvention. So if the two ways you can overcome strict scrutiny in the first amendment area here are actual prevention of quid pro quo corruption and the prevention of the appearance of quid pro quo corruption. What about the circumvention of these laws giving rise to the appearance of quid pro quo corruption? Like, basically, I can create a joint fundraising committee between the candidate, the party, the national party, and every state party. And suddenly that single donor who could only give $3,300 to the candidate has now donated somewhere in the vicinity of $500,000, let's say, David, now that money gets divvied up between all those political parties and all of that, like, the candidate can still never get more than $3,300 from that candidate. But if the parties can coordinate with their candidates, that donor gave $500,000, the candidate knows the donor gave $500,000, and now the party, sorry, the candidate can now have control over functional control over that money because it's in the political party. So we just eviscerated through circumvention those individual contribution limits. Okay? On the flip side, though, David, parties can't bribe their own candidates. It's literally not a thing that can happen. Like, hey, if you don't support this tax reform bill, we're not going to endorse you in the next election. That's not a bribe. Or, we're not going to spend money on Your reelection, not a bribe. That's just what political parties are. That's what they do. So what can the bribery interest be? How many prophylactics do you need? This was Judge the Parr's point in dissent in the Sixth Circuit. So look, this case goes up where you have the NRSC obviously arguing to get rid of it. You have the Solicitor General's office arguing on the same side as the nrsc. You have Democrats come in on the other side, even though generally the political parties have actually been aligned on this stuff. There's now this sense of competitive advantage of which political party is better at raising money itself versus the candidates. So Democrats seem to have an advantage in sort of that soft dollar fundraising, sorry, small dollar fundraising. So the candidates end up raising more money. Republicans seem to have a better advantage in party fundraising. So this splits the political parties across the V in this case. And then the court had to appoint someone to defend the lower court decision upholding Colorado 2, saying these contribution limits, sorry, the anti coordination laws were constitutional. They appointed Roman Martinez from Latham, who's like the man of the hour on this podcast. Somehow Roman's main argument, though, is worth mentioning. He's arguing like, don't decide it on the merits at all. You don't need to get to this. Just kick the case because of standing. So JD Vance is part of this case. And his argument was JD Vance has not said he's running for office ever again. He said he might, but he might not, and that that's what candidates say when they are going to run for office. But it's also what candidates say when they're not going to run for office. And he cited Joe Biden in 2015, giving the near identical language that J.D. vance has been saying. And of course, Joe Biden did not run in 2016, at least, even though we all think J.D. vance is gonna run in 2028. And the justices were kind of like, is it speculative? Do we really have to act so stupid as to think J.D. vance isn't running for office in 2028? And Roman Martinez was like, you should treat him like every other plaintiff. And if it's not, if they aren't willing to say concretely that they're going to do the thing, they shouldn't get away with being cute just because it's politically advantageous to do so. Okay, David, what was your overall take on coordination between parties and their candidates? Because I thought there were so some surprises in this one.

[B]

I'm gonna channel Bulldog Briscoe. Bulldog Briscoe was the sports commentator on the TV show Frasier, one of my favorites. Bulldog had this thing where he'd go, this is total BS this is total bs. That's how I feel. Every time we walk through the history of campaign finance reform, it feels like this is what happens when you get the illusion that you can technocratically manage human nature, especially human nature and human behavior around expression. Because what they've been trying to do for a long time is sort of create an environment where your right to free speech in the sense of contributing to candidates is protected, but that we're creating a kind of comprehensive prophylactic environment designed to avoid appearances of impropriety, et cetera. But as you know, Sarah, better than anybody, money always finds a way, that money finds a way to influence politics. And so it's like playing constant whack a mole. And you would look at it now and you would say, have we actually solved the problem of billionaire influence in politics or large dot? No, no. Have we made it substantially worse? In many ways, I would say yes, absolutely. And so, you know, part of me, anyway, and it gets into the parsing, the niceties of campaign finance law. And at some point, my eyes kind of glaze over because I'm thinking, oh, okay, what kind of technocratic prophylactic additional sort of doctrine are you going to develop this time versus how about we realize that we've actually inflicted a lot of damage, I think, on our body politic by a lot of this technocratic micromanaging of what is really core, core protected political activity.

So in that sense, this prohibition on coordination between parties and candidates just. It is almost the peak of technocratic sort of nitpickery to me, is this sort of idea that a candidate and a party are going to have these sorts of restrictions on their interaction with each other. And also there's a lot of unintended consequences that have popped up. The diminishing of the power.

Of the party has been a negative, a big negative in American politics. So to the extent that any sort of oral argument or any sort of argument is moving away from or is embracing this technocratic regime versus starting to undermine and chip away at this technocratic regime, I'm in favor of the underminery. I'm in favor. Let's not do chipping away. Let's do dynamiting. But I don't think this case is going to be a dynamiting case, Sarah. I don't. I don't see any evidence really here that this is going to be a dynamiting case. Although I do think. I do think the only chance that Vance I I think the I my own impression was that if the standing argument fails, if the standing argument here fails, the outcome here is going to.

[A]

Be.

[B]

However we phrase it, however it happens, we're going to have a chipping away. Not a demolition, a chipping away.

[A]

All right, when we get back, I'm going to give my full feelings about our current campaign finance system and exactly where it's gone wrong.

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[A]

David we're back. So here's the thing that may surprise people if you're not a political operative. Everyone from across the aisle hates super PACs. Hates except the operatives who of course work at super pacs and make their livelihood that way. But like, no one who works for a candidate likes the whole super PAC structure. It's a disaster. It is also the case that the political parties being shriveled up on the vine was written into the law by the incumbents who didn't want political parties having these carrots and sticks over them. So the incumbents themselves killed off sort of their own guardrails, because why not? And of course, I've talked about the fact that they also, I think, thought they were doing some incumbent protection by setting such low individual dollar limits because they were the ones that had the large dollar donor lists. And so if you were a new candidate trying to challenge an incumbent, you were going to be at a huge disadvantage based on Bicra's limits, of course. To your point, David, money finds a way. Just like Jeff Goldblum taught us in Jurassic park, the challenging candidates were just like, you're right, we can't compete with such low dollar limits because we don't have the large dollar donor lists. Instead we're gonna do these small dollar donor fundraising things that are then ubiquitous. Like I do small dollar donor fundraising all day. If I'm a candidate, every time I'm on tv, every time I'm posting something on social media, it's all to raise these small dollars. And I'm not doing rubber chicken dinners. So it was an incumbent protection racket that then had the exact opposite effect because they didn't really consider the fact that money finds a way. And just on Citizens United, I don't see a way around that because of the book banning and movie banning problem. Like, how is it not the most egregious First Amendment violation that you're not allowed to criticize someone because they're running for office and it's within 90 days of the general election. So I can't release a movie, I can't publish a book if it even mentions that person at the end. Like is a one line thing. And I don't think you should vote for aoc. Banned. I think Paxton is corrupt. Banned all of those things. That's insane to me. I just don't think anyone really believes that that's not a First Amendment violation. Now, what would happen if we didn't have speech now about the contributions to Super PACs? Basically, the incentives would be different. You would insist instead of having these incredibly wealthy people putting their money into super PACs, they'd be running for office themselves. Because individuals aren't limited in how much money they can spend on their own candidacy. So Elon Musk wouldn't have a super pac. He would be the candidate with unlimited money to spend on his own campaign. Now, as I've said before, while campaign dollar amounts keep rising and more and more money keeps being spent, the ability to predict outcomes, who's going to win based on that money? It used to be near 100%, David. I could tell you who was going to win based on who had more money 20 years ago. It's not only not predictive now, at least in 2018, it was actually counter predictive. The candidates who raised less were more likely to win for sort of the populist, anti establishment reasons, I'm sure. But nevertheless, it's also become, I think, far less of an issue. The money and politics thing. Now on lower ballot races, congressional races, and certainly those local races, your state legislative race, your city dog catcher type Stuff name ID matters a huge amount. Therefore money still matters and is still quite predictive.

[B]

Also the intention economy has changed so substantially from even 20, 25 years ago. I mean the ability through virality, through social media to achieve notoriety without large scale expenses is dramatically more than it was before the rise of social media. I mean these, you know, the creation, especially even including in local politics, the creation of local social media stars of local social media sensations, I mean these kinds of things are much more common to me. One of the periods where sort of this stranglehold on money ended, ironically enough, was in a billionaire, one Donald Trump. He was outspent pretty dramatically and won anyway. And, and then in this era, as you're saying, this anti incumbent era, it was almost as if I spent money to identify myself as the incumbent was counterproductive.

[A]

It was, you know, in the current moment we have the worst of the possible outcomes, I think, which is super PACs that can't coordinate with their candidates and therefore are doing things that are counterproductive. If you're a candidate, frankly, oftentimes it's certainly wasteful and inefficient and no political parties because we still have all these limitations on political parties. But you can give all the money you want to a super pac, but you're limited on how much you can give to the political party even though neither one can coordinate with the candidate. So why would you ever give to a political party? That's how the political parties die. But the super PAC has no ability to hold candidates accountable once they're in office. The parties actually did and they had legislative agendas and policy platforms because they were going to be repeat players over, you know, decades, not just for one election. You had Justice Kavanaugh in the argument. Here's a quote. I am concerned, as you said, that the combination of campaign finance laws and this court's decisions over the years together have reduced the power of political parties as compared to the outside groups with negative effects on our constitutional democracy. It's like the most consequentialist I've ever heard. Justice Kavanaugh. And also he is, and I mean this is like the highest compliment, the most sort of real life justice. Like he actually understands politics, he actually understands sports, I think. And like here's the example where he's talking about, yeah, like we had these campaign finance laws, then the court has come in piecemeal and changed them. And each time it massively moves the incentives for the players. And now we've ended up with this worst of all scenario system David, in the end, we did not hear anything from Justice Gorsuch. We only had one question from Justice Barrett. It's really hard to know where the justices are lining up on this. That being said, as much as I appreciated Roman's enthusiasm for his standing point, I don't know that that dog is going to hunt either. And if you didn't hear the oral argument, it was pretty clear to me walking into this that we were going to get rid of coordination limits between parties and their candidates, because, again, there is no bribery problem, even potential problem, between parties and their candidates. So I have to think that the coordination limits will be gone after this case. But really hard to say what the vote was. And frankly, many of the conservative justices that we did hear from did have real concerns about the circumvention problem and the give a mouse a cookie doctrine that, like, you just keep coming back to us and asking for more. And the next time, if it's donation limits to the parties, this could really eviscerate the entire campaign finance system. But, like, piece by piece, like, then we were better off just striking the whole thing down in McConnell v. FEC. I wish Congress would revisit this and pass a new campaign finance law, understanding what we know now.

[B]

Totally agree, Totally agree. I mean, but again, what are we doing, Sarah? We're getting back to something we've been talking about ever since this podcast launched. Think how many things that are tearing America apart for which there are compromises available that Congress just won't do jack or squat. I mean, it's at some point, just.

[A]

The Carter Baker Commission from 2005 with all of the proposals on how to make our elections both more open and more secure. We could do those in a heartbeat. Not doing them. We could pass campaign finance reform that, you know, look, we have examples of this in real life. Pennsylvania, Virginia, Texas are all no limits, full disclosure states. They have not fallen into the gutter. There's. I think I forget how many states, Arizona and West Virginia, I believe, have no coordination limits between parties, even though the rest of their campaign finance laws look a lot like the federal laws. There's been no falling of the sky in those states. This is where the laboratories of experiment can be really helpful.

[B]

So at some point, I wonder at what point does a member of Congress now, and I'm going to say something sweeping, and I know there are exceptions. So if you're listening and you're a member of Congress and you're really trying hard to get Congress to act, I'm with you. I'm standing with you in 100% solidarity. And the following words do not apply to you. Okay, with that caveat, have you guys any self respect?

Like, do you have any self respect? Or is this just. I want this position for the prestige. I want this position for the staff. I want this position to be able to say, I'm a member of Congress.

[A]

I mean, frankly, David, I think the prestige is falling off as a consequence of Congress not doing anything again. Remember that the chairman of House Ways and Means used to be a household name. The chairman of these various committees was like literal red carpets would be rolled out when they showed up at places because, like, this is the guy who's going to decide your appropriations. And now it's like, oh, you're a member of Congress, huh? Okay, Yeah.

[B]

I mean, I have turned down multiple opportunities. I'm using air quotes for those listening to spend time with members of Congress because why?

Seriously, why? You know, if they're a Republican? Like, I get what you're doing basically from reading Truth Social. Like, I know your agenda from reading Truth Social. Why do we have to have a conversation? I mean, this is, it's absolutely getting ridiculous. And it's. And I, you know, I think it's moving from a standpoint of academic consensus to it should be moving towards real public anger at this point.

[A]

I think part of the problem is, you know that New York Times piece that I wrote, David, last week, you look at the comments and so many of them just said, but what about Citizens United? And I'm so frustrated because this, like, we haven't educated people about what the court has actually done and what the alternatives are and like, and it's like, I don't like this current system either. I don't like super PACs either. But you really want to ban books because it mentions a candidate? I just don't believe that most people think that. They don't think that you should be able to put out a movie about Donald Trump, which is what, you know, there were plenty of movies about Donald Trump. The Apprentice would not have allowed to be released because Donald Trump was running for office. Does anyone think that that wouldn't violate the First Amendment anyway? The system's broken. Congress can fix. Could be any advisory opinions episode at this point. David, I think you had a question for Grifter Sarah.

[B]

Oh, I have a great question for Grifter Sarah. So right before the podcast, I.

Saw a fascinating tweet talking about a story that was the NRSC robocalled high propensity Democrats in Other words, people who are committed Democrats. High propensity voters urged them to call Jasmine Crockett's office urging her to run for Senate, then connected the caller to the office. The GOP also ran and pushed around polls suggesting she'd win. Crockett then believed the Astroturf hype and launched her bid. Okay, so Sarah, my question for Grifter Sarah is really twofold. One, is this something that actually works, or is this something that is a kind of a hyped way that political operatives sort of hype up their own influence, that efforts like this really don't make a difference? And so that's question number one. Question number one, does it make a difference? And question number two, if it does make a difference, what are the implications here for Texas? So go.

[A]

All right, so first of all, nrc, National Republican Senatorial Committee, they're going to be responsible for candidate recruitment to make sure that they've got good Republicans stepping up to the plate, that those people are introduced to donors and good operatives and campaign managers and all of that stuff. What we're seeing more and more of though is that not only do the party committees focus on candidate recruitment for their side, they focus on opponent recruitment on the other side. So we saw this. David and I threw a months long temper tantrum about it where Chuck Schumer and the Democratic victory fund spent $50 million.

Supporting candidates in Republican primaries that were more MAGA opponent recruitment basically because they believed that the Democratic incumbent was more likely to beat the more extreme Republican than the more moderate Republican. It worked in every single race that they did it in. And I was really mad about it because. Not because the operative side of it or even the cynicism side of it, frankly, like, it's not cynical, that's just facts. You know, I was mad because then Democrats turn around and say, you know, there's no Republicans for us to work with in Congress, when in fact they were out there recruiting primary challengers against Republican incumbents that had voted to impeach Donald Trump, ensuring that they either retired or left office.

[B]

Oh, that whole thing infuriated me so much.

[A]

Okay. And I said at the time, dangerous game because it works and therefore both sides are going to do it. So here we are in Texas where Attorney General Ken Paxton is like the most corrupt office holder probably in the country at this point. I'm not going to.

[B]

Astonishing. Yeah.

[A]

Rehash the whole thing. He's running in the Republican primary against John Cornyn. Now, again, full disclosure, I worked for John Cornyn's first senate race in 2002 was my first campaign. I'm basically obsessed with the man. But all the polling shows that Ken Paxton is likely to. To beat John Cornyn in the primary. But Ken Paxton is a very, very weak statewide candidate. And so he was increasingly looking like he was going to lose against, like, any Democrat. So all of a sudden, Texas was in real fear of being represented by a Democratic senator for the first time in 30 plus years. Here comes the NRSC, though, with a really good idea. There's a congresswoman in Texas named Jamie Crockett who is known for. Well, she's the Instagram influencer type of Congress. She, you know, makes viral videos saying kind of crazy stuff. And then, you know, it's like, we've seen this before, whether it's Lauren Boebert, Marjorie Taylor Greene, AOC Elon Omar, Rashida Tlaib. Like, both sides have these people that are backbenchers don't actually do any legislating, but become huge fundraising powerhouses because of this small dollar outrage network that they run. That's Jamie Crockett. So the NRSC needs to get her in this Senate race. So, as you say, David, they do all these robocalls into her office telling her to run. Sorry, robocalls to voters. And then they connect the voter to her office and the voter tells her to run. I mean, genius. And then they run all of these polls that she can't afford, putting her name in the race to see how she would do it shows her winning the Democratic primary in a lot of them. No surprise there. But of course, they're not showing the general election where Paxton trounces her. It's the only candidate that Paxton wins against is Jamie Crockett. Which also, it makes the Republican thing so much easier because a problem that Republicans were having is, you know, does Donald Trump offer Ken Paxton, ambassador to France, like, somewhere really nice to get him out of the race so that Republicans, you know, John Cornyn can win the primary and then win the general? Now, they don't have to be as worried about that, David, because I think Jamie Crockett is incredibly likely to win the Democratic primary. And I think she has close to no chance of even beating the weakest candidate in any Senate race in the nation. If it's Ken Paxton.

[B]

Yeah. I mean, then she would absolutely 1 million percent have to count on a national shift as her only hope. And for those who don't know, sort of the origin story, her origin story is classic. Classic callback to, as you were saying, like Lauren Boebert, et cetera, Marjorie Taylor Greene. And it was in fact her confrontation with Marjorie Taylor Greene that caused her to take off where she said that Marjorie Taylor Greene had a bleach blonde, bad built, bad butch body. And which is now referred to, there's actually shorthand for this, which is, comes from an Atlantic profile of her that's just really fascinating. And they have a trademark, the phrase B6 and they sell T shirts and. Okay, so there's a couple of things here, and I think your, your analysis here that this is, this is very similar to the Schumer play. Very, very similar to the Schumer play, which.

May have worked in some places in some instances that this what we really have to do though, Sarah, is we have to focus on who's really responsible for this problem. It's not the NRC recruiting Jasmine Crockett. It's not Chuck Schumer recruiting whacked out MAGA candidates. It's primary voters. It's primary voters. God save us from primary voters right now is, is, you know, and this is very sad. It's very sad that the people who are often most committed to American politics right now are some of our more unhinged members of our communities. And there's a lot of polling results right now that indicate that what's happening is we're creating almost a two tiered society politically where you have your highly engaged subset. And that highly engaged subset is radicalized. And it's often radicalized in really bad and embarrassing and destructive ways. And then you have a larger group, this exhausted majority we've talked about a lot that is looking at all of this radicalization and they're not leaning in to fix it, they're kind of leaning out because it's just so unpleasant. And so long as that majority lean out.

Is the primary response to primary campaigns, we're left with the people who are most committed, who are the most engaged. And again, I'm going to leave you guys out of that, who are AO listeners who are committed, engaged, thoughtful. You can see the shades of gray, which doesn't mean there aren't times of black and white. But a lot of the folks who are deeply, deeply involved in American politics right now are among our more.

Radicalized citizens. And they're often radicalized in weird and bad ways. And so if you're looking at somebody who calls Marjorie Taylor Greene bleach blonde, bad built, butch body and think that is what we need, you're part of the problem here. And so it's very difficult to Escape this moment when the fundamental reality that most politicians are facing, and this is my moment after tough love for members of Congress, this is my moment of sympathy. It's very sad that if you do look in the mirror, decide you get some self respect and want to assert yourself as a member of Congress, you suddenly put your career at risk. That's a sad reality, at least in the primary context. And so, you know, we are living in this world that ultimately the combination of apathy and a majority and intensity and a minority is building. And I've used these two numbers many times to illustrate the problem. There's a difference between the 17 million who voted for Donald Trump in the Republican primary and the 77 or so million who voted for him and the general that tens of millions of that 77 million were not at all following his, you know, his, what he says at rallies. They weren't at all following like all the grievances of the MAGA extended universe. They wanted lower prices, they wanted the border under control, they wanted a better economy. And then what we end up having is a lot of these, these parties are elected and then cater to the primary voter, they don't cater to the general election voter. And then are shocked when in the next two to four years that general election voter reemerges, tosses one side out, puts the other side in, which then caters to the primary voter. And lather, rinse, repeat.

[A]

Before we leave. David, you've been teaching. You had a hypo you gave to your class. Can you do it for the pod?

[B]

I had a fun class where I taught about the foundations of religious freedom and which is a really fun class to teach just in general. It's especially fun to teach it at an evangelical college. And it's very fun to teach it in an atmosphere where Christian nationalism is sort of rearing its head. And so I had a. Here, here is my hypothetical that I gave for my final assignment in the class. It's pretty simple. It's straight ahead. It's, it's a, it is a, it's a hypo for an undergrad class. This is not a law school class. But I thought this was a little bit fun. And the reason why I'm sharing it is I'm already getting the responses in from the students and they're hysterical. It's a cold January night and you're at an off campus party. The conversation turns to the First Amendment as college parties usually do. And one of your classmates has gotten a little strange. His name is Brian, but he now only answers to Lord Protector. His hero is the English general Oliver Cromwell, who briefly served as Lord Protector of the Commonwealth of England from 1653 to 1658. Cromwell was a bit of a theocrat and so is your friend Brian. He has lots of ideas about how to make America a Christian nation. And he's holding court in an apartment in Green Hills, y'.

[F]

All.

[B]

To save this godforsaken country, he says we need to do a few things right here and right now. First, we need the Ten Commandments up in every public school classroom, bar none. King James Version. Next, we need to reimplement blasphemy laws banning any use of the Lord's name in vain. And we need to close all businesses on Sunday. Mandate a day of rest. We also need to start every legislative session with a Christian prayer. Next, we need to ban no fault divorce. Divorces can only be granted according to biblical criteria, adultery and abandonment. We need 100% school choice. Every parent can spend the same amount of money at a private school they love, including Christian schools. That's just a start. But if we do these things, maybe, just maybe, can save America. But your friend Brittany is an atheist and she's pretty much fed up with Lord Protector. Brian, she says, I heard you just took Professor French's religious freedom class. I thought you were a nerd then, but now I know. That's so cool. You're an expert now. What do you think of the Lord Protector's stupid ideas? Are any of them constitutional? And that's the hypo. And I would ask that hypo for the listeners. Are any of those ideas constitutional and under current. Either under current authority or where you think current authority is headed. And it's fun. And what's fun about it is all of the responses I gave them, 1500 words, are beginning, Dear Brittany, it's, it's in their opening paragraphs are just cracking me up. You know, it's really. It's really funny. So that's. That's your hypo class. What do you think? Is any of that constitutional?

[A]

You know, there's a few other things floating out in the ether that I hope we can tackle on a future podcast. One a fascinating. Like one of the best interviews I've read all year was between Ross Douthat and Chase Strangio. I hope we'll get a chance to talk about that. There was a story in the Crimson. Not that we often cover things that are in a student newspaper, but in this case, a conservative debating society on Harvard undergrad's campus is quietly excluding women from it and just sort of what what that vibe shift is like. And David, we also got a really fun hypo on the Fourth Amendment that I wanted to read on the podcast. We are still waiting for the Supreme Court to decide whether Trump can deploy the National Guard. That Chicago case is pending, has been pending. It's why we can't really call them, you know, emergency petitions anymore because clearly not so much. All that and more on the next Advisory Opinions okay, David, that's it for us today. If you like what we're doing here.

[J]

There are a few easy ways to support us. You can rate, review and subscribe to.

[A]

The show on your podcast player of.

[J]

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[A]

That say David's right.

[J]

That's going to do it for our show today. Thanks so much for tuning in. We'll see you next time.

[D]

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[A]

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