Ep. 258: Donor disclosure and campaign finance at SCOTUS

Summary

---

So to Speak: The Free Speech Podcast

Episode 258 – Donor Disclosure and Campaign Finance at SCOTUS

Host: Nico Perrino (FIRE)
Guests: Brad Smith (Chairman, Institute for Free Speech), Brett Nolan (Senior Attorney, Institute for Free Speech)
Date: November 25, 2025

---

Episode Overview

In this episode, Nico Perrino returns with a nuanced discussion on two pivotal Supreme Court cases that grapple with donor disclosure and campaign finance laws, examining their implications for free speech. Joined by Brad Smith and Brett Nolan from the Institute for Free Speech, the group delves into the cases of First Choice Women’s Resource Centers v. Platkin and National Republican Senatorial Committee v. FEC, contextualizes the legal frameworks at play, and thoughtfully debates the broader cultural and constitutional stakes these issues carry.

---

Key Discussion Points & Insights

I. The Work of the Institute for Free Speech

• [01:33] Brad Smith introduces the organization:
  • Focuses largely on political speech, especially campaign finance (regulating candidates’ ability to spend money to spread their message).
  • Also addresses controversial “false statements” laws and political ad restrictions, and occasionally works in campus free speech.
  • Emphasizes that democracy requires “vigorous debate," which means guarding against government-imposed limitations on election-related speech.

II. First Choice Women’s Resource Centers v. Platkin — Donor Disclosure Case

a. Case Background

• [05:35] Brett Nolan explains:
  • Crisis pregnancy centers (often religiously oriented, anti-abortion organizations) have become targets for controversial regulation.
  • New Jersey’s Attorney General issued a subpoena (or, as debated, a request) for the center’s donor list and other internal documents, raising serious First Amendment concerns regarding the right of private association.

b. Why Donor Privacy Matters

• [07:47] Brett Nolan references the NAACP v. Alabama case (1950s):
  • Disclosure of donor lists can expose supporters to harassment, threats, or violence, as it did during the civil rights era.
• [12:44] Brad Smith elaborates:
  • “Very often people's willingness to support causes depends on them not facing consequences." (12:44)
  • Donor privacy protects “meek people, too”—not just the outspoken—ensuring broad participation rather than just the loudest voices ([15:14]).

c. Critics’ Perspective – "Dark Money" Concerns

• [16:25] Nico Perrino: Raises the “billionaire controlling politics” worry.
• [16:49] Brad Smith: Dismisses the notion that disclosure would expose hidden individuals, noting the public usually knows the interests and backers behind major efforts.
• [21:24] Brett Nolan: Argues it is “fundamentally cynical" to question the people’s ability to decide for themselves despite large spending, noting that even with lots of money, a message still must persuade.

d. Selective Enforcement & Chilling Effects

• [23:28] Brett Nolan: Points out states may selectively target ideological opponents with investigative demands.
• [25:14] Brad Smith: Distinguishes between:
  • Blanket donor disclosure statutes (e.g., campaign finance laws) and
  • Targeted subpoenas during investigations (like in First Choice), emphasizing that only a “legitimate investigatory need” should justify forced disclosure.

e. Broader Implications & Similar Cases

• [27:27] Nico & Brett: Discuss the Texas AG’s sweeping investigation of Media Matters as a parallel example and how AG powers can be abused across the political spectrum.

f. Federal vs. State Court

• [31:07] Brett Nolan: Explains the preference for federal court in First Amendment cases, given federal judges’ relative insulation from state-level political pressures.

---

III. National Republican Senatorial Committee v. FEC — Campaign Finance Coordination

a. Case Background

• [32:10] Nico Perrino: Outlines challenge to federal limits on how much a political party can spend in coordination with its own candidates.
• [32:55] Brad Smith:
  • Current law: Parties and individuals have contribution limits; there are no limits on independent expenditures.
  • If a party coordinates too closely with a candidate, its spending counts toward the donation limit.
  • The argument: These limits prevent natural collaboration and actually weaken parties' constructive political roles.

b. The Justification for Coordination Limits

• [36:14] Nico and Brad:
  • Some fear parties will become “bagmen,” allowing individuals to skirt direct contribution limits by funneling money through party spending.
  • Brad rebuts: Empirically, this fear isn’t borne out, and state experiences suggest the system can function without such restrictions.

c. Constitutional Basis for Campaign Finance Law

• [37:41] Brad Smith: Delineates “elections" (properly regulated) versus “campaigns" (speech and debate, not the act of voting):
  • “A campaign is not part of the manner of having an election."
  • Warns: If government can regulate all campaign speech as ‘election manner,’ it “pretty much covers all of American society” ([39:39]).

d. Money as Speech

• [40:20] Brett Nolan: The Supreme Court has recognized that limiting money spent on speech is limiting the speech itself.
• [40:54] Brad Smith: Draws analogies to other rights:
  • “The right to have counsel doesn't mean much. If we said... you can't spend any money on a lawyer...”
  • Points out: Press institutions are exempt from campaign finance rules because we recognize their need to spend money to produce speech ([42:27]).

e. Citizens United Legacy

• [42:43] Discussion of how Citizens United clarified protections for corporate independent expenditures, i.e., documentaries or books about candidates (even if unflattering and timely).

f. The “Appearance of Corruption" Standard

• [46:25] Nico and Brett question the “appearance of corruption” rationale for limiting contributions, which relies more on public suspicion than empirical reality.
• [47:57] Brett Nolan: Critiques the use of “imagined threats” as a basis for limiting fundamental First Amendment rights.

g. What’s Left to Challenge?

• [52:24] Brad Smith: Lists major remaining targets for the Court:
  • The rules on coordination itself.
  • Broad donor disclosure laws (how deep do they go? Should they apply to think tanks, advocacy orgs, etc?).
  • Direct contribution limits—noting these didn’t exist for most of US history.

---

Notable Quotes & Timestamps

• "You don't have a democracy if you don't have vigorous debate.” — Brad Smith [01:33]
• "The First Amendment is intended to protect meek people, too." — Brad Smith [15:14]
• "What you're at bottom saying is that... we no longer trust the American people who hear a message to decide whether or not they buy it or not. Right? ... I just think it's cynical." — Brett Nolan [21:24]
• "If you limit the money, you're limiting the substantive right." — Brad Smith [41:57]
• "The idea that you could not air a documentary movie, even a bad and partisan documentary movie, that you could not air that about a major presidential candidate during an election year, strikes me as the antithesis of the First Amendment." — Brad Smith [43:18]
• "The government can limit contributions not just to stop quid pro quo corruption, but... the appearance of it. Because the real or imagined threat of quid pro quo corruption is something that the government can try to protect us against." — Brett Nolan [47:57]
• "If the manner of an election involves anything related to the campaign, it pretty much covers all of American society. And that's... incompatible with the First Amendment." — Brad Smith [39:39]

---

Key Timestamps by Segment

| Segment | Timestamps | |--------------------------------|-----------------| | Institute for Free Speech Intro | 01:25 – 04:04 | | First Choice Case Overview | 05:11 – 10:10 | | Donor Privacy & NAACP Analogy | 10:10 – 12:44 | | Policy Debate over Disclosure | 12:44 – 19:27 | | State Power, Selective Enforce. | 23:28 – 27:27 | | Federal vs. State Courts | 31:07 – 32:10 | | NRSC v. FEC Background | 32:10 – 36:54 | | Regulating Campaigns vs. Elections | 37:41 – 40:01 | | Money as Speech Analogies | 40:20 – 42:27 | | Citizens United Discussion | 42:27 – 44:46 | | Corruption & 'Appearance' Standard | 46:25 – 51:44 | | Remaining SCOTUS Targets | 52:24 – 54:34 |

---

Tone & Style

The conversation is rigorous yet accessible, with the speakers expressing strong libertarian/free-speech viewpoints but with attention to the real-world stakes and historical lessons. Humor, historical references, and empathy for less powerful voices add to the episode’s nuanced tone.

---

Summary Takeaway

The episode offers a deeply informed, candid look at Supreme Court cases whose outcomes will shape donor privacy, associational rights, and the permissible boundaries of political collaboration and spending. The discussion highlights the tension between preventing actual or perceived corruption and protecting a vibrant, pluralistic democratic debate—and calls attention to the potential chilling effects of donor disclosure and strict campaign finance laws on both “the meek” and those seeking to effect social change.

---

Transcript

[Brad Smith]

Somewhere I read of the freedom of speech.

[Nico Perino]

You're listening to so to Speak, the Free Speech podcast brought to you by fire, the foundation for Individual Rights and Expression. All right, folks, welcome back to so to Speak, the Free Speech podcast, where every other week we take an uncensored look at the world of free expression through the law, philosophy, and stories that define your right to free speech. I am your host, Nico Perino, and this week we're going to continue our coverage of First Amendment cases before the Supreme Court this term by diving into two cases that will be argued before the Court in early December. To do this, we are joined by two of our friends from the Institute for Free Speech. Brad Smith is chairman of the Institute for Free Speech. He served as a member of the Federal election commission from 2000 to 2005, and he was its chairman in 2004. But perhaps the most impressive line in Brad's resume is that he's been on the show twice before, once in 2019 and recently in 2020 22. Brad, welcome back onto the show.

[Brad Smith]

It's like a repeat champion in Jeopardy or something like that.

[Nico Perino]

We give you a gold watch the third time, so stay tuned for that. Don't hold me to that. We're also joined here to my left by Brett Nolan. He is a senior attorney at the Institute for Free Speech. And before joining the Institute, he served as the principal Deputy Solicitor General of Kentucky and served as the Deputy General Counsel to the former governor of Kentucky. Brett, welcome onto the show for the first time.

[Brett Nolan]

Well, thank you for having me.

[Nico Perino]

So, Brad, I'm going to start with you. You founded the Institute for Free Speech. You are its chairman. For our listeners who aren't familiar with the work that you all do, what is it?

[Brad Smith]

Okay, well, the Institute for Free Speech deals with free speech, but more specifically, what separates us from other groups like our good friends at FIRE here and some of the other groups that do a lot of work in the space is that we focus almost exclusively on political speech, that is campaigns and elections. That means a lot of work in the arena of campaign finance. Also states that have laws that restrict what they call false statement, which are usually just opinion statements, restrictions on when and where people can advertise politically. So that's our core. And our core work, though, has really always been the efforts to limit political speech by regulating candidates ability to spend money to get their message out to the public. And in recent years, we do branch into other areas a bit, such as free speech on campuses where people are being censored for blatantly political reasons, but that's our bread and butter. What can people say in a campaign? Can they say what they want? The public has to be able to hear. You don't have a democracy if you don't have vigorous debate. And that means you can't have government trying to limit people's ability to speak in that course of any election.

[Nico Perino]

And was your interest in these issues preceding your time on the fec, or was it really inspired by your time there and seeing how campaigns get regulated?

[Brad Smith]

Well, you know, it's kind of both. When I was nominated to the seat on the fec, you know, you have to go back to, like, every place you've ever lived and everything. Every speech you gave in eighth grade and stuff. And I remember in doing that, I found my senior comprehensive exam from college about 20 years before. And by God, if I hadn't talked about campaign finance laws and they're infringing on free speech, which I had no recollection of. So obviously I had some interest in it. That goes back a ways. But one thing I noticed while I was on the FEC was how little support free speech had in terms of institutional support. An organization that would exist, like FIRE or IFS or the Institute for Justice or other organizations that exist to defend people's rights in an area. So that when you had cases that were brought by the law, most people are kind of like, well, money in politics. I hate that. Great law, let's have it. And when somebody would challenge that law, they had no support. There were no groups to provide amicus briefs. Congress had no idea who to get for witnesses to speak for, a deregulatory angle in this. And that all really came home to me when I was sitting on the fec. And that was one reason that inspired us to start the Institute for Free Speech after I left the fec.

[Nico Perino]

And Brett, you've been at IFS for a couple of years now. You were working in government prior to that. What led you to an interest in this space?

[Brett Nolan]

You know, when I went to law school, I. I actually did not take our free speech class. We had one of the most prominent free speech professors, Jeff Stone. Jeff Stone. And I was not that interested in it. Didn't take the class, graduated, went and worked at a regular sort of corporate litigation job. And by happenstance, I get to work on a political defamation case involving a campaign strategist and a candidate for office. And it just lit something inside of me. It became something I was really passionate about. Even when I worked for the government, we often the government agencies that I worked with and represented often took very pro speech positions that you wouldn't expect the government to take. And so when this opportunity to come and work for ifs popped up, it was something I was really excited about doing.

[Nico Perino]

So, as I mentioned at the top, we're going to be talking about two upcoming Supreme Court arguments. They're cases that are near and dear to your guys's hearts. I believe you filed briefs in both of these cases. And the first one is First Choice Women's Resource Centers v. Platkin. This is a case that's going to be argued before the Supreme Court on December 2nd. Brett, I was wondering if you could kind of set up this case for us. What is it about?

[Brett Nolan]

So the, the basics of this case involve a pregnancy crisis center. This is an organization that exists to help women who experience, you know, unplanned pregnancies and what they can do about them.

[Nico Perino]

These centers are often pretty controversial.

[Brett Nolan]

Very controversial. There have been free speech and other kinds of cases involving them. The NIFLA case from years ago involved regulation of Pregnancy Crisis center in California, I believe.

[Nico Perino]

And why are they controversial? Is it because when people come into them, they don't, it's alleged, get all the information about ways that they can pursue or controversially terminate their pregnancy? Right. These are often religious groups that try and help mothers, you know, keep their pregnancy or consider adoption as an option.

[Brett Nolan]

Right. And so these are, you know, anti abortion kind of organizations. And that's what they, they try to do. They try to provide services, counseling, advice. That's all related to helping women choose options other than abortion. And so in some, you know, jurisdictions, they come under, have come under a lot of fire by various politicians because these are, these are ideologically charged issues. And in this case, I believe this case arises out of New Jersey.

[Nico Perino]

Yeah.

[Brett Nolan]

And the origin of it is the organization receives a subpoena from the Attorney General's office demanding, requesting. And that's an interesting part of this case. Whether it was a request or a demand, the list of donors and supporters of the organization, which are private. And they're private for obvious reasons. These are ideologically sort of polarizing organizations. And the Attorney General's request relates to issues related to consumer fraud, like the issues that you're talking about. Are they getting all the information? Women that come. Are they getting all the information that they should be? Are they being misled? That's sort of the charges that are levied at organizations like this.

[Nico Perino]

Yeah, sometimes they allege that they put themselves out as a medical provider when they're not medical providers or they're not licensed as such.

[Brett Nolan]

And so the, you know, the organization doesn't want to turn its donors over a list of its donors, and so they sue and. And to stop that from happening. And so there's a long history of, you know, First Amendment decisions going back to the 50s, where the Supreme Court has very consistently said that the right to speech and other First Amendment rights as well, but the right to speech includes with it a right of association. It's to be able to speak effectively. You have to be able to do so in groups.

[Brad Smith]

And.

[Brett Nolan]

And that that right is imperiled if you don't give people the right to do so anonymously or privately. And so in the 50s, there was a case involving the NAACP in Alabama. The Alabama's attorney attorney general's office was going after trying to get the donor list for the naacp, and the Supreme Court put a stop to it, wouldn't let them do it.

[Nico Perino]

It was politically motivated. Right. It was an effort to try and stifle the advocacy that this group had by trying to reveal who its donors were in a place that was hostile to the work of the naacp.

[Brett Nolan]

Right. And. And, you know, and it was obviously so at the time, the Alabama attorney general's office in that case, you know, it wasn't just donor lists. That was one part of the case, but there was a long history of doing, you know, all sorts of other things to try to keep the NAACP out of the state. And. And so that case sets really the big precedent in this area. And you fast forward, you know, 50 years later, we've had some other cases dealing with this. This issue. But. But the point being that it's pretty clearly established that you have a First Amendment right to what we call donor privacy. And so first choice goes into court to. To stop this subpoena from being enforced because it threatens the privacy of their donors. It gets really complicated after that.

[Nico Perino]

I was going to ask you about that, because this case, at its core, the question before the court is when you can press a First Amendment claim in federal court. Right. When you have a state action like this, a subpoena that's coming from the state attorney general, as is the case here.

[Brett Nolan]

Yeah, I think a lot of civil rights lawyers, whatever civil right is their particular interest, First Amendment, second Amendment, you know, fourth Amendment would say that, you know, half of their job is being just an expert on the strange things about federal courts and federal jurisdiction and the ways that they make it difficult for plaintiffs to come into Court. And when all these kinds of things that have nothing to do with the First Amendment, and this case really represents like a lot of that kind of technical nitty gritty stuff that that creates a lot of difficulty for people who are trying to vindicate their First Amendment rights or other kinds of rights. And so, you know, the issue in this case is the attorney General's office issues a subpoena, most subpoenas, in order to, you know, say that you have to comply or you could face some sort of punishment, contempt, something like that. But to enforce it, you have to go to court and enforce the subpoena. And there's this argument about whether or not the subpoena itself is a serious enough threat that you could go to court right then to stop it, or do you have to wait until the subpoena is going to be enforced in some way before you could try to go to court? And at that point you might not be able to. And all of this centers around this really important First Amendment idea about what can you do when the government hasn't punished you yet? But what the government is doing might chill your speech. It might make you worried about speaking, or in a case like this, it might make donors worried about making a donation because maybe that subpoena hasn't been enforced. But now everybody is on notice that the attorney General is going to come after your the donor list, and you don't want your name to appear on that when that happens.

[Nico Perino]

Yeah. Let's just take a step back here really quickly because I imagine we have some of our listeners who are asking, well, why is it a bad thing to turn over a donor list, for example? And you see this sometimes in the campaign finance or the issue advocacy space surrounding dark money groups. So, Brad, why is this an important question?

[Brad Smith]

Well, I'd go back first to the case Brent mentioned that really kind of started this all off, NAACP versus Alabama. It's not quite the case that started all off, but where the court really asserted a strong right here. And I think to people of my generation, it's pretty obvious what was going on. But to a lot of people they've kind of forgotten, for the NAACP to disclose its donor list in Alabama in the mid-1950s would subject some of those donors potentially to significant harassment, even threats of vandalism to their property, boycotts of their businesses, and even physical violence against them. It was not a trivial matter. And it's something the same here. As we said at the outset, what the pregnancy crisis centers do is very controversial in many quarters. And we live in a timeframe now where we see political violence going on quite a bit, from assassination attempts down to much more petty things, but people keying people's cars and things like that. And so, as Brett says, a lot of people are going to say, well, okay, this subpoena hasn't been enforced, but if it is, then my name goes out on a list. And so I think maybe I just won't give it all right now. So this is what people should see, is that very often people's willingness to support causes depends on them not facing consequences. To be honest, and I hear people respond to that as well. I would be proud of my views. You know, they puff their chest out and they talk about how bold and brave they are, but I often, you know, some of those people are telling the truth, but many others really haven't asked themselves, you know, when have they ever in their life stood up against the threat of losing their jobs, the threat of having family members be hurt or lose their jobs or have their businesses boycotted? If they're small business owners, do they feel an obligation not to do anything that would trigger a boycott against their business, that would harm their other employees and so on? And as was said years ago in the Hollywood Seven cases, Right? These are the Hollywood Blacklist case. One of the dissenting judges in the court of appeals, the courts remember, upheld those. And it's not a moment we're proud of in our history. Right. And one of the dissenting judges basically made the point that the First Amendment is intended to protect meek people, too. People who don't want to be out in the rough and tumble of the political realm. And in fact, we might even think about in this day and age when there's so much extremities in social media and in protesting and everything, whether maybe the people we most want to hear from are the people who just don't really want to deal with all that controversy. Maybe they're the people whose moderate voices need to be amplified. And it's not going to happen if they feel like, you know, I'm not willing to pay the price or again, risk others paying the price for my speech. So in this way, the protection of being able to associate with a group anonymously is very beneficial. And I always point out, too, to people, it's not like we don't have any idea what's going on. We knew in NAACP versus Alabama who the NAACP was and what they were saying. This wasn't some big controversy. They just wanted to find out who were these other People behind it. And one of the reasons people often join groups like that is precisely for the benefits that come from working through a group and the fact that no one person has to stand out. No one person can be harassed, picked away from the group. So these are the stakes here. It really goes to whether we're going to have an environment in which people feel free to speak, including again, people who maybe are more meek or have other responsibilities that might make them hold back, or whether we're just going to turn over the arena only to those who are willing to puff out their chest and be loud and solid.

[Nico Perino]

The arguments on the other side might be, well, okay, that assumes that there's a large group of people who are associating around a shared interest. But what about those cases where groups are stood up to just advance the interests of one rich person, for example? What would you say to those people who are say it's, you know, it's just unsavory that we have a billionaire controlling our politics and standing behind this group, for example, and not willing to put their name?

[Brad Smith]

Sure. I mean, I would say things on several levels. First, I really don't know of any such groups. I mean, what's always I find kind of funny is, well, that's the argument.

[Nico Perino]

That's the argument. Right. Is that we don't know of such groups because they can hide behind donor anonymity, for example.

[Brad Smith]

Well, what I usually hear goes something like this. They'll say, americans for Good Things is a dark money group created by Republican operatives A, B and C and funded by wealthy billionaire D and E. Right. And I'm like, okay, what do you need to know? It's often not that hard to figure out. And in other ways, if you really do want to know. And what's more important here is it's not that hard to figure out what the mission is. If a group is out there saying, here's what we believe and here's what we want and you don't know who they are, okay, you still have the message. You still know that a lot of money's behind it. And at some point you have to say, what price am I willing to pay to find out who's behind it? I find in real life, very few people actually really care who's behind it. I mean, they say they care, and if they find out and they don't like that person, it's part of the whole mode of personalize the target and go after it. But I find very few people actually would change their position at all. If they learned that somebody was funding something, now maybe that's not true anymore. Maybe if people knew that Donald Trump was funding opposition to ice, a whole bunch of people would go, oh, yeah, well, I'm all in favor of ice, have them go at it. You know, I mean, maybe we've hit that crazy point in our politics, but I've never seen that before. Most people ultimately now, if they find out that again, it could be Elon Musk, could be George Soros, whoever your villain is, is funding it, sure, that's another point of attack, but it didn't really change their opinion. It was just used to attack that person, which may not be the best way to set public policy. And to some extent, when we're talking people who aren't as powerful as someone like Elon Musk or George Soros, a way to drive them out of politics and convince them to be quiet.

[Nico Perino]

Well, we have this right in America to speak anonymously. So. So assuming that premise, just putting more money behind that right shouldn't diminish it, should it?

[Brad Smith]

If I follow your question, right? I mean, I think the answer is.

[Nico Perino]

By setting up these groups and putting those monies towards issue advocacy, for example, or even advocacy on behalf of a candidate, right? Like you can anonymously speak in favor of a candidate, and just because you put it behind an LLC or super peg or whatever you want to call it, shouldn't diminish it, I think is probably what you're arguing.

[Brad Smith]

Again, usually we know, we know who's behind those things and, or at least the message, you know, the interest behind them. And for example, in Ohio, there was a ballot measure a couple years ago as to whether the state was going to provide a bunch of subsidies to certain power plants. Right. And later it came out who had. Had funded that, and it was the, you know, certain energy companies operating in Ohio. And all these people acted as if they were terribly shocked and how this was unbelievable that. And if we'd had better disclosure laws, the voters would have known this. And I always felt like, like what voter who was paying any attention wasn't generally aware that this was a pet cause of power coming. I mean, we didn't know exactly which companies or exactly which people, but this was no secret what was at stake here and what was going on. And I think that's the kind of thing that we need to some extent to keep in mind also when we talk about should people be required to be disclosed? Should there be, or let's put it this way, is there a problem with putting More money behind something. I mean, I think what we need, a second thing we need to remember is oftentimes these people who are putting money behind things are speaking for many people. So let's take an example, let's take an example from some years ago, because maybe it won't be quite so charged. You know, Ross Perot in the 1990s, right, put a bunch of money and ran for president himself. Because only by running for president himself was he allowed in those days to spend all this money. Okay, so he ran for president. Ross Perot spoke for large numbers of the American people who didn't have financial resources. In other words, we shouldn't just assume that every person who's wealthy, this is a terrible thing. Oftentimes wealthy people willing to put their money behind their ideas have been catalyst of very positive change in the United States. And that's what we're giving up as well. So we need to think about that. And this goes back to movements for women's right, to votes, for abolitionist movements. All of these things are often funded by wealthy individuals who are willing to put their money there to promote those views.

[Brett Nolan]

Yeah, Brett, there's something fundamentally cynical about, I think the idea that because there's a lot of money, that should diminish the right. Because what you're at bottom saying is that, that because we've spent a lot of money that we no longer trust the American people who hear a message to decide whether or not they buy it or not. Right? And so at the end of the day, you're trying to root out who is paying for some sort of messaging. But that messaging still has to convince people people have to show up. See all the time, politicians who come in or candidates for office who dump tons and tons of personal funds into a campaign and they flame out because nobody's buying their message. And so if we equate this idea that a lot of money is, you know, into this system is bad. What we're saying is that we don't, we don't trust the people who are going to hear the message to make a good decision, which is, I just think, think it's cynical.

[Nico Perino]

So, Brett, I wanted to ask you, getting back to First Choice Women's Resource center and just the facts of the case, There was a lot that the Attorney General in this case was looking for. Not only donor information, but 10 years worth of documents, including statements on abortion, pill reversal, information it provided to clients and donors, documents identifying personnel, copies of every First Choice solicitation and advertisement, and information related to outside Organizations that First Choice works with. And I'm going off of the Alliance Defending Freedom's case page here. They're the ones that are litigating this case directly. If we know that donor information going back to NAACP v. Alabama should be allowed to be confidential, what about some of this other information? Is there a way to segment it out? Like, is there a compelling interest that the government has in. And looking at, for example, its statements on abortion pills reversal, to the extent that that's implicated in whether it's functioning as a medical provider that's not licensed.

[Brett Nolan]

I think that you certainly could have, you know, issues. They're very hard to prove and they're very. Cases that are really hard to bring of selective prosecution or selective investigation, I think is probably even a more difficult kind of idea out there where maybe you have a legitimate basis under a consumer fraud statute to go after information like, like, like that. But why are you only going after your ideological enemies?

[Nico Perino]

And that's the implication in this case is that the state of New Jersey and the attorney general don't like these groups and they're targeting these groups for that reason.

[Brett Nolan]

Right. And, and that, that's, that's certainly sort of what, you know, the, the plaintiffs here are. That's, that's the crux of their case. It's also a bipartisan problem, I think, with attorneys. You know, we have, every state has an attorney general, and all of those attorneys generals have a lot of power to issue subpoenas for this kind of information. Some of the information you talk about, you can see how associational privacy could expand to some of that other information.

[Nico Perino]

Yeah. Who they, what other groups they work with.

[Brett Nolan]

Right.

[Nico Perino]

For example.

[Brett Nolan]

Right. So, you know, you can, you can see this in other ways of. When we talk about information being publicized and how that can harm associational freedom. And you talk about like de. Platforming. Right. So you want to find out, okay, what banks are you using, what, you know, who are your various vendors. We're going. That gets publicized or they get investigated now. And now all of a sudden, nobody wants to do business with you. And so there are all these different ways the government and the public can kind of strangle your ability to, to a. So to freely associate by cutting off your access to resources and things like that.

[Brad Smith]

Niga, let me point out that there's sort of two issues going on here, very tightly related. One is the sort of statute you asked me about a moment ago, the sort of blanket disclosure statutes, like campaign finance statutes. Tell us all your donors. We just want to know who they are. And the other is the kind of thing we have in First Choice or that you had back in the NAACP versus Alabama case where the government has launched an investigation and asked for information. In that second type of case, let's be clear, nobody's saying that the government cannot ever get information on donors, but they have to show some legitimate need for it within investigation. So, for example, if you look at NAACP versus Alabama, the NAACP probably was violating Alabama incorporation laws. It wasn't a big deal. It probably was a politically motivated. Well, it definitely was a politically motivated prosecution that wouldn't have been prosecuted against almost anybody else. But they probably were in violation of law. But the thing is, they didn't need to prove this. The state didn't need all this information on donors that was just extraneous. They were going to collect it all, and it just, just might happen to leak out with very detrimental consequences for an organization the state government really did not like. Right. So that's one thing. We're not saying that you can never get that if there's a legitimate investigatory need for it. And I think that would be the same in First Choice. The other type are these blanket disclosure laws. We want to know everybody who's contributing to your group because you're speaking out on some public issue or some public candidate. And it's a similar type problem, but it's a little different. Again, it's kind of a balancing. Is there a public right to know in some of these things? And what is the cost of that? What is the cost of these blatant rules? So, for example, in many campaign finance laws in some states, donors of as little as $10 or $20 are forcibly disclosed to the public. Again, you might say, nobody cares. But some people in this day and age do care. They cancel friendships and everything else. You know, the interest in knowing those donors is almost, in my mind, zero. The interest in knowing somebody who gives a huge amount to a cand might be greater. So there might be a little bit of a balancing test. I'm still gonna be a free speech and privacy guy on this. But the argument becomes a little stronger for selective disclosure of high people, but not this kind of blunderbuss, get everybody in sight approach.

[Nico Perino]

Well, let's take a step back here and by way of closing, talk about the implications or potential implications of this case, because, Brett, you had suggested that there are politically motivated investigations, subpoenas that happen periodically. They transcend party, it seems like. I don't know if you guys are familiar with the Litigation surrounding Media Matters. For example, I believe a Texas subpoena was recently enjoined in the D.C. circuit over the effort of the attorney General there to issue a wide weight ranging. I think it was like a civil investigatory demand. I forget how they. What they call it cds. Yeah, the cids. And they asked Media Mandate Matters for its sources of income and expenditures in Texas. It sources of funding for its operations. This all relates to its reporting and report that it put out about X right after Elon Musk acquired it. I think it was still then called Twitter. They put out a report that showed that advertisers messages were next to anti Semitic or racist or white supremacist content and that those claims have been contested, of course. But the ftc, I believe launched an investigation. Elon Musk sued the day after Texas put out a press release that it was launching an investigation related to its Deceptive Trade Practices Act. And again they, they look sources of income and expenditures in Texas, its operations, its communications regarding Musk's acquisition of Twitter and its external communications with major corporations, advertisers and ex employees. So they were seeking kind of a broad swath of information just like the Attorney General in New Jersey was of first choice. And you also have the President suggesting that investigations be launched against his political opponents. In the case of Harvard, for example, it's not a subpoena, but he's suggested that the IRS should look into Harvard's tax exempt status. So this is kind of a problem that, that spans the country, so to speak. But how much of that problem will be fixed if you agree that it is a problem by the procedural question before the Supreme Court in this case?

[Brett Nolan]

I think a little bit. I mean it's, it's, it's certainly really important. It's, it's certainly a really big problem because you know, the, the state attorneys general all over the country have incredible amounts of power. And you know, we're going to have in a month, maybe a few weeks, right. They're going to announce the college football playoffs to give you a silly example. And inevitably a governor or an attorney general of a state who has a school that was left out is going to make a PR announcement about how they're going to file a lawsuit. Right. Over something as silly as someone being left out.

[Brad Smith]

Out. Yeah.

[Brett Nolan]

And I use that example because that's, that's silly. But then if you actually, if you watch every single political controversy that pops up in this country, there is an attorney general standing in front of a microphone talking about someone he's going to investigate because that's just how we respond now to political controversies. We figure out who we can sue, who we can investigate. And these CIDs that, you know, can be issued, that they, they have incredibly broad investigatory power. And it's, it takes very little to get into, you know, state court and meet your, your burden under your consumer fraud statute to go after this stuff. The First Amendment can stand as a bulwark against some of this stuff, but you have to be able to get into federal court, and that's what this case is about.

[Nico Perino]

Why do you have to get into federal court? I know everyone wants to rush into federal court to make a First amendment claim, but most of these states have stated constitutional protections for free speech as well.

[Brett Nolan]

That's true. And, and look, you can raise federal First Amendment defenses in state court as well. But historically, you know, what you've seen, we have what we, you know, section 1983, right, is the statute that you use to bring federal claims into court against state officials. And we have it and we use it because the idea is that federal courts are immune to some of the pressures that might exist in state court. You go to state court, you're in front of a judge who more often than not is elected or was appointed by the governor, who, you know, works with the attorney general. Like the state court systems are often more political, not necessarily in a partisan sense, but just in a sense of. They're part of the machinery of state government in a way that the federal courts are not. And, and so having that avenue to be able to vindicate your federal rights in federal court has been really important for a long time.

[Nico Perino]

All right, well, let's turn to the next case. Now, this is National Republican Senatorial Committee, the Federal Election Commission. Its argument as on December 9th, and Brad, you wrote an op ed in the Wall Street Journal in July talking about the importance of this case, and you summarize the case as such. It's challenging federal limits on how much a political party can spend in coordination with its own candidates. And you say, as if it were a bad thing for a party and its candidates to work together. So right now, give us a state of the law as it currently stands. So you're the National Republican Senatorial Committee. You want to support one of your senatorial candidates, There's a limit on how much you can spend on, for example, advertising in support of that candidate. Is that right?

[Brad Smith]

Right. Let's go back a little bit further in the law. So under federal law and in the law, in many States, but not all states. When we about talk about state races, governor or secretary of state stuff, but let's focus on the federal races, House, Senate, president. There are limits on how much an individual can contribute to a candidate, and there are limits on how much an individual can contribute to a political party. And so these are what are called contribution limits. There's no limit on what are called independent expenditures. So if, you know, if I'm a wealthy guy or if a bunch of us are not wealthy, but we have a bit of money and we want to pool our money and buy some radio ads locally in our congressional radio race, we can do that, and nobody can stop us from spending as much money as we want. So you can spend as much as you want, but the contributions to candidates and political parties and PACs and so on are limited. Now, the law provides that if a party coordinates its activity with a candidate, actually, if anybody does. But we're talking about a party here. If a party coordinates its activity with a candidate, that counts as a contribution. So what does it mean to coordinate? That means if the party and the candidate sit down together, and to use a real simple example, let's say the candidate said, here are a bunch of brochures. Would you run off 20,000 copies of these and hand them out in the neighborhood? Or here's an ad my staff and I recorded. Would you pay to put this on a television station? Right. That would be coordinating the activity that counts as a contribution. And it will very quickly go over the contribution limit because the contribution limit is very low. And the parties usually have already made that kind of contribution contribution to the campaign. So that's the question. The parties are now saying, well, look, the whole reason for limiting contributions is to prevent corruption. Prevent that kind of, you give me money for my campaign, I might vote for you. Parties don't have that effect with their own candidates. Parties and their candidates are supposed to work together. In fact, most people in the electorate assume that they're working together. And instead, we now have this very low limit on how much the party can spend in coordination with its own candidates. You know, the belief of us at the Institute for Free Speech, the belief of the nrsc, is that this is actually not healthy for our politics, that parties have historically been sort of meliorating institutions. They have to juggle a large coalition of people, and so they have to look for candidates who are in some ways more compromising, more moderate and so on, and that there's just no basis to presume that a political party is going to somehow corrupt its own candidates by contributing to that them. The counter argument is that, well, then the parties just become bagmen. People give the money to the party knowing that the party will spend it on the candidate. And that's a way to get around the limit on what an individual can give to the candidate by giving it to the party, which then can spend it in unlimited amounts. I don't think that's true. And the core of our argument is that's not true for a number of reasons, one of which is that there are very strict limits on how much an individual can give to a party. And an individual cannot earmark those contributions to a party to go to a candidate. He can't say, I'll give your party $3,000 if you promise to spend it on Congressman X's race. So we think those are barriers to that problem. But we also think that the empirical evidence simply doesn't support the idea that anybody actually does this in a way that causes public corruption or that is damaging to the electoral system.

[Nico Perino]

Don't you also have some states that don't have these sorts of requirements, like for state races and whatnot?

[Brad Smith]

Exactly. And that's one of the arguments that we make at some length, is that if you look at states, many have no limit on what you can give to the party and no limit on the party's ability to coordinate with the candidates. And yet we still don't see that as people using that as an end run around giving directly to a candidate. Or in other cases, you can give a lot more money to the party. Maybe not an unlimited amount, but you can give a lot more. But even then, people don't give that money to the party in hopes that the candidate will spend it in coordination with the candidate that the donor preferred. So we just think that empirically the case is not there, there.

[Nico Perino]

But you write in the op ed, there is no constitutional basis for the government to regulate political speech through campaign finance laws. That would suggest that there shouldn't be any limit to how much an individual can give to a candidate or an individual can give to one of these senatorial committees or that the senatorial committee can give to a candidate.

[Brad Smith]

Right, you got me.

[Nico Perino]

Yeah. Looking at the title of your op ed, campaign regulations are unconstitutional. But one of the interesting things that you note in your op ed is that there's a difference between elections which can, and I'm assuming you believe, should be regulated versus campaigns. The thing that precedes the election where we're having a debate as a body politic around who should and shouldn't get elected. And you say dating may precede marriage, but it isn't marriage. Similarly, campaigns precede elections, but those campaigns aren't elections.

[Brad Smith]

Yeah. So the argument I make in this op ed is actually a little different than the specific argument in, in the National Republican Senatorial Committee case, which why we filed an amicus brief and why we're not representing the nrsc. Because what we argue is a position that has not been accepted by the courts, but we think it should be. Let me go back to what has been accepted by the courts. The courts have long accepted that government can regulate campaign finance because the Constitution gives the federal government, Congress, the power to set certain election rules pertaining to the time, place, and manner of an election. Well, regulating campaign finance isn't part of the time of an election. It's not part of the place of an election. So it must be part of the manner of an election. Otherwise the government has no power to do that, particularly when we couple that with the First Amendment, which then provides no regulation of free speech. So we would argue that there's no stated power unless it's in that manner clause. And I think if you look at the history and if you think about this rationally, the manner of holding an election is. Is setting where the polling places are, what kind of machines you vote on, how the votes are counted, when you're entitled to a recount, do you do provisional balloting? Do you have early voting? Those are the manner of having an election. A campaign is not part of the manner of having an election. If it is, then the government has authority to regulate almost all speech all the time. Because, for example, in this conversation today, I don't think any of us have actually mentioned a specific candidate by name. And yet a person could easily say what we're saying could influence an election. Right? I mean, the person might hear a candidate voice a message that they heard here on this podcast and thought they agreed with. You know, there's all kinds of things that could influence a campaign. Somebody once asked me when Hillary Clinton. This was, you know, like around 2014 or 15 or something, when Hillary Clinton started running for president, I said, I think around 1974. Right. In other words, you know, we campaign in a sense all the time. Or as Justice Holmes, not one of my favorite justices, but this is a good quote.

[Nico Perino]

He's got a lot of good quotes.

[Brad Smith]

He made the point. He said, every idea is an incitement to act. You talk about politics in the hopes that people will eventually act on politics. So if the manner of an election involves anything related to the campaign, it pretty much covers all of American society. And that's both incompatible with the enumerated power to regulate the manner of an election, and it's incompatible with the First Amendment.

[Nico Perino]

Yeah. Well, brilliant, Brett. The question that critics are going to ask is what does this have to do with speech? This has to do with money, Right? So how is regulating how much money you can give to a candidate or how much money you can give to one of these committees related to speech?

[Brett Nolan]

Yeah, you know, the way that the Supreme Court has talked about it, which I think has to be right, which is that you have to have money, money to engage in speech. And over time, that's probably more true today than it was when, you know, that was written in, in Buckley and, and, you know, you could play that game with, with all sorts of things, right? I mean, you could, you know, shut down the bookstores and, well, people could go and write their own, print their own books. Right. We're just saying you can't sell books or, I mean, you can sort of play these, these games.

[Brad Smith]

Let's apply it to other rights.

[Brett Nolan]

Right?

[Brad Smith]

Let's say you said, for example, Dobbs overturn Roe v. Wade, so longer under Supreme Court doctrine, a constitutionally protected right to an abortion. Right. But before Dobbs, would anybody who was pro choice have said, well, it's perfectly okay if all the pro lifers want to do is just make it illegal for you to spend any money to travel, to obtain an abortion, to perform an abortion, to pay for an abortion. Would anybody on the Second Amendment say, well, you know, again, you might disagree with the Supreme Court's analysis of the Second Amendment. But nobody, I think, seriously is going to say, well, Congress can get around the right to keep and bear arms by simply prohibiting anybody from spending any money to purchase, manufacture, transport, or ship a gun. The right to have counsel doesn't mean much. If we said, well, you can't spend any money on a lawyer, you're entitled to counsel. You just can't spend any money on it. The right to the First Amendment says, well, you can practice your religion. You just can't pay for churches for upkeep, for hiring pastors, for printing hymnals, for doing missionary work, all of those things. People instinctively realize that if you limit the money, you're limiting the substantive right. And it's the same with speaking, you know, here today. I mean, we're sitting in a studio, we're getting salaries and stuff, we're spending money to produce this speech. I note that the campaign finance laws always include an exception for sort of the institutional press. What is the basis for that? Because if they dent the New York Times, the Washington Post, abc, they all spend money to produce the speech that you hear on their channels. And if they couldn't spend money, we wouldn't have a Washington Post on.

[Nico Perino]

And that much hated Citizens United case was about a corporation that spent money on a documentary about Hillary Clinton in the months preceding an election. Right. And that's what that case was about. Can you spend money independently about a candidate in the form of a documentary?

[Brad Smith]

Right, right. And they were producing a documentary movie, and the government claimed that because a corporation was involved at some stage in the production or distribution of that movie, it could be prohibited by the government. I would point that, point out to people that every movie you have ever seen on cable, on broadcast, in a theater, streaming, was produced at some point by a corporation. And the idea that you could not air a documentary movie, even a bad and partisan documentary movie, that you could not air that about a major presidential candidate during an election year, strikes me as the antithesis of the First Amendment.

[Brett Nolan]

Which I think why people will talk about the first time that Citizens United was argued and the government sort of conceded that under this law, you, a corporation was probably prohibited from printing and distributing a book that was not nice about a presidential candidate three weeks before the election. And when you put it that way, and people are like, wait, you could stop someone from printing and selling a book. Everybody thinks that that's. That crosses the line. But all of a sudden we're talking about a TV commercial or something, and the government.

[Brad Smith]

Further, they said if the book had just one line advocating the election of a candidate, that would be enough to prohibit.

[Nico Perino]

Wasn't there a question during oral argument about whether the New York Times could endorse a candidate as papers often do? I don't know if it was in an oral argument or just some of the discussion, but newspapers will often endorse a candidate in the run up to election, and presumably that to the extent that the people doing the endorsing are on salary at this corporation and it's printed on the corporation's paper that they pay for, that would fall under the.

[Brad Smith]

That would fall under it. And note that usually those endorsements are made. So even if we said, well, you can spend what you want, note that those endorsements are usually made in such a way that we would call them coordinated with the candidate. That is, the candidate typically goes in, sits down with the editorial board, they talk about his positions, what his campaign strategy is and that sort of thing, and then they make their decision to endorse all of that would put that into the realm of coordinated expenditure, which is the same thing that we're specifically talking about in nrsc. Can the political party coordinate its activities?

[Nico Perino]

Do you also believe that super PACs, for example, who can do independent expenditures but can't coordinate with candidates, should be allowed to coordinate with candidates?

[Brad Smith]

I think that there is a somewhat different argument there that again, political parties have a direct unity sort of identity. They exist to elect candidates. So to say they shouldn't coordinate with their candidates seems really strange. Now, Super PACs exist to elect candidates too, but in a slightly different way. They're not, you know, just electing. We just want to elect somebody with an R or with a D by their name. Super PACs are a little bit different. My own view is that, yes, I do think super PACs should be able to contribute. I think it would be best, and we would have the best politics if we did it how we did it for most of our nation's history, which is you can give whatever you want and you can spend whatever you want. But I do think that there is a somewhat different argument for super PACs than there is for parties. And the argument for parties to be able to coordinate is a stronger one.

[Nico Perino]

Well, presumably you wouldn't need super PACs if you could coordinate because people would mostly give their money. Money to the candidate, assuming they think the candidate can put that money to the best use. I'm assuming. Right.

[Brad Smith]

Well, assuming there are no limits on what the.

[Nico Perino]

Yes, that's what I mean. Yeah. So if you don't believe that there should be any limits, then if you.

[Brett Nolan]

Live in grads utopia, we don't have super PACs at all because you just write the check to the candidate.

[Brad Smith]

Right. But assuming we have limits, I think the argument for the NRC is, is a bit stronger than the argument for super pac.

[Nico Perino]

And the reason that people. So. So you can have a number of arguments for these regulations of campaigns. One is corruption, as you know, quid pro quid quote, corruption. But there's also the belief that there's this appearance of corruption, and if there's this appearance of corruption, it erodes democracy, even if there is no actual corruption there.

[Brad Smith]

Right.

[Nico Perino]

Is there, is there merit to that argument?

[Brad Smith]

This is an argument that comes out of Buckley. The court throws this out.

[Nico Perino]

Buckley v. Vallejo.

[Brad Smith]

Buckley VI Vallejo is a 1976 case. Right. That first upholds limits on contributions and also NASA Strikes down limits on expenditures. And Buckley, when it came to contributions, just kind of almost throwaway said, and, you know, almost as serious as actual quid pro quo corruption. I give you money, you agree to vote in some way is people will have that appearance, they'll think that that's going on. It's true that they might. We don't see a lot of empirical evidence that that is really affected by giving. Let's put it this way, an enormously large percentage of the American public just thinks that all the politicians are corrupt, period. But it doesn't seem to connect at all with where they get their money, whether people are making large contributions to them or not. They just think they're corrupt. And a large number of Americans think that politicians routinely, not occasionally routinely sell their votes for amounts of as little as like $100 or $200, which. This is an unpopular opinion, right? It's kind of a meme. Now, here's my unpopular opinion. My unpopular opinion is that that's absurd. I mean, if you actually know the people on Capitol Hill, you can think highly of them, you can think low of them, you can think low of some high of is even the ones I think the worst of don't routinely sell their votes for, you know, really what are paltry amount of money. That's just not true. So I feel like I've gotten off the question a little bit here. Where were we on this question?

[Brett Nolan]

I forget where we're talking about the appearance of corruption.

[Brad Smith]

Appearance of corruption, that's right. Thank you, Brett.

[Brett Nolan]

And I'll just add it's, it's kind of shocking when you, when you read what the Court said in Buckley when it talks about this, because, because if we all agree that, like First Amendment rights are at stake, what the Court says is that the government can limit contributions not just to stop quid pro quo corruption, but, you know, the appearance of it. Because the real or imagined threat of quid pro quo corruption is something that the government can try to protect us against. And it has to be the only, any constitutional right that we allow its limits to be dictated by things that people might imagine to be problems. I mean, it. The court uses the word imagined, right? And if you just, if you think about applying that, you know, in any other context, if you poll enough people and ask them, you know, do you think that this is a, do you think that, you know, gun violence is a problem? Do you. Whatever the issue is, and then we decide that the constitutional right is going to be limited by the results of that poll Even if that popular opinion has nothing to do with reality.

[Nico Perino]

Well, when we're talking about the First Amendment, First Amendment questions often receive the highest level of scrutiny. Right. If the government's going to take some action that's going to burden this right, that it has to have a really compelling interest, and it needs to be narrowly tailored to advance that interest. I don't think in any other context in the First Amendment real realm, they would have the public's imagined fears surrounding the exercise of that First Amendment right dictate what the government can do. It's almost a rational basis analysis.

[Brett Nolan]

And you're right that this is, it is considered a compelling interest, which is the highest kind of interest the government can have. And it's, you know, there. Brad mentions that there's, there's no empirical support for this. There's, there's studies that have been done that sort of try to show that, that people's belief in how corrupt the government is doesn't really change if you go from one campaign finance law to another in different places. But we have accepted this world in which people think that their government is corrupt. And that's the rationale for limiting the ability to, for people to contribute to campaigns.

[Nico Perino]

Well, why, why stop there with campaign contributions? Why not just censor speech that alleges that the government's corrupt?

[Brad Smith]

Well, that's right. I mean, one, one thing that might make people think the government's corrupt is politicians going around accusing other politicians of being. So maybe we should stop all that. And you know, we don't apply this in other areas of the law. So, for example, we don't say, well, people think that crime is a bigger problem than it is, and this means they'll not go out on the street and that will harm commerce. So let's just go in and sweep all these criminals up off the street and lock them up without any due process. You know, we don't allow that. You know, we say the government still has to sort of prove its case that these people actually are committing crimes. And, and, you know, it's remarkable that in the First Amendment arena we kind of throw that out the window. Well, you know, people suspect this, so let's just prohibit the activity completely.

[Brett Nolan]

And not just the First Amendment area. The part of the First Amendment that governs the most fundamental part of our country and our, you know, democracy, which is people talking about who to elect to govern us. And now those who govern us are writing these rules that limit the ability of people to talk about whether they should be reelected or whether you should support their opponents. And so it's the First Amendment gets the most serious protection, typically. And then this is the core. This is the most important part of maybe the most important. Right. And we've left it to sort of majority opinion.

[Nico Perino]

JD Vance is involved in this case in some way, isn't he?

[Brett Nolan]

He is. Was one of the original plaintiffs from when he was a senator.

[Nico Perino]

Gotcha. So over the past two decades, by way of close closing, the Supreme Court has whittled away at this web of regulation surrounding campaigns, often using the First Amendment to do so. What are the remaining big, juicy targets for the Supreme Court to consider in the realm of campaign finance as it relates to the First Amendment? We've all. We've talked about contributions. I'm assuming you think that's a big, juicy target. Is that something that the court is actually going to look at realistically?

[Brad Smith]

So we've talked about one, which is the coordination itself. That would be pretty big. And then we talk not in the campaign finance sense. We obliquely referenced it a couple points, and that's the disclosure issue. How much can be disclosed? How much should be disclosed? Should anything be disclosed? Or maybe at least big donors, but again, not every single donor. I think the court really needs to work through that again. And further, what should be disclosed? Do I have to disclose contributions to think tanks? Do I have to disclose contributions to advocacy groups like the Sierra Club or the NRA or Planned Parenthood? How deep are we going to let disclosure penetrate into our civil society? So those are the two that we've already talked about. And then, as you mentioned, contribution limits would be a very large one. I don't think it's a juicy target in the sense that it's ripe for the picking, but I think it is one that a lot of people feel. I pointed out, we often kind of accept that of course we need contribution limits. For most of the first 200 years of our country's existence, we didn't have these contribution limits on campaigns. And we elected Eisenhower and the Roosevelts and Coolidge and Lincoln and whoever you think are good presidents were all elected under this. The country did pretty well. And so I do think that's a target that needs to be.

[Nico Perino]

Did those come about in the 70s.

[Brad Smith]

Then those laws basically stem. Eliminating contributions stem from the 1970s.

[Nico Perino]

All right. Well, folks. Brett, did you have any last notes there on juicy targets for the Supreme Court?

[Brett Nolan]

No. I mean, I think the disclosure issue is interesting because what you often see is that disclosure is sort of the counter point to contribution limits. So maybe we could have fewer contribution limits if we have a lot more disclosure because people can see where the money's come from. But at the same time as those arguments have sort of picked up traction action we're absolutely in this world now where when disclosure is so accessible to people and our politics are so polarizing that people are also taking notice of disclosure might be leading to problems when everything is online and people can go after each other in different ways. And so that that tension, I'm not sure how this court sort of resolves it, but I do think that that tension is maybe a juicy topic for the the court to be taking up.

[Nico Perino]

So again, the two cases are first Choice Women's Resource Centers v. Platkin. That's going to be argued on December 2, and then less than a week later or a week later, I should say we have National Republican senatorial committee v. FEC that's being argued on December 9th. I'm assuming these are decisions what that we'll get maybe in late spring. I always ask lawyers to answer this question, June.

[Brett Nolan]

Don't bet on it before June.

[Nico Perino]

Well, now we have betting. All right, folks, that is IFS Chairman Brad Smith and Senior Attorney Brett Nolan. I am Nico Perino and this podcast is recorded and edited by rotating roster of my Fire colleagues, including Bruce Jones and Ronald Baez. To learn more about so to Speak, you can subscribe to our YouTube channel or substack page, both of which feature video versions of this conversation. You can follow us on X by searching for the handle Free Speech Talk. Feedback can be be sent to sotospeakatthefire. Org. Again, that is Sotospeak at the Fire. Org and I ask you every episode if you enjoyed this episode. Please leave us a review on Apple Podcasts or Spotify Reviews help us attract new listeners to the show. And until next time, I thank you again for listening.