 Welcome to Free Thoughts from Libertarianism.org and the Cato Institute. I'm Aaron Ross Powell, editor of Libertarianism.org and a research fellow here at the Cato Institute. And I'm Trevor Burrus, a research fellow at the Cato Institute Center for Constitutional Studies. Joining us today is Alan Dickerson, legal director of the Center for Competitive Politics. I guess I'll start by asking, what is the Center for Competitive Politics? It's a nonpartisan, non-profit organization that defends and protects the First Amendment rights to speech, assembly, and petition. In practice, that means that we bring lawsuits against state and federal governments that have violated those clauses of the Constitution one way or another. In the competitive politics, it seems a really kind of inscrutable name. Say, I'm trying to produce a competitive in politics. Don't we want consensus? Exactly. Don't we want consensus? It is one of those names that could only occur in Washington. I think what we're trying to get at is the fact that traditionally there's been this problem in the elections of office holders in this country where there are these enormous advantages of incumbency, these enormous advantages of sort of built-in networks, and that in some ways the liberalization of campaign finance law is viewed in some circles, ours included, as a way of bringing more voices at the table, of creating a more sort of, to the extent we believe that there's a market in ideas, to creating a more competitive market in ideas. You can think of it as almost an antitrust regime. What are some of those advantages to incumbency? Well, they're very difficult to quantify, but at least, you know, some of them are obvious. You have the ability to send mail for free to your constituents touting all the wonderful things that you as a congressman or senator have done. You have enormous what's called in the business earned media. You get to go out and cut ribbons and give speeches and tour disaster sites and generally do things that I think are reasonably expected of elected officials, but which nonetheless do garner attention that you don't have to pay for. There's the advantages of simply being able to deliver for your constituencies. You know, if you're elected from a relatively safe district and you're doing the things that your constituents want you to do, there's relatively little reason for them to get wild up and start looking elsewhere. You said it's difficult to quantify these advantages, but can you give us a sense? I mean, how hard is it to unseat incumbent? Well, it's very difficult. It certainly happens. It tends to happen in wave elections when, you know, there are sort of larger advantages, institutional advantages for, you know, one side of the political spectrum or another. But now, if you wanted to go out to your home district and unseat the incumbent non-retiring office holder, it would be quite a slog. But isn't letting money into politics? I mean, you mentioned this, campaign finance, and you mentioned First Amendment, and a lot of people who would listen to this, although maybe they wouldn't be listening to this, but a lot of, if the other side were listening, they'd say you were just glossing over the fat that you really just want to allow billionaires to spend a ton of money in elections, and you called free speech rights. And that, I think, is fair, and it's one of – well, it's a fair statement of what some people would respond to me with. I mean, the fundamental difficulty, and this was not a controversial statement until very recently, is that, you know, two points. One, effective speech is undeniably enhanced by group association. That's a quote from the Supreme Court in the Civil Rights Era, in a case called NAACP versus Alabama. And also that it is obvious that in a mass society, in a society where speech has to be disseminated through various – you know, through TV, through radio, through even the internet, that it's going to cost money to effectively get a message out there. And I think that's a lot of the difficulty, is that, you know, people think of the freedom of speech or the freedom of petition as essentially a solitary activity. But in practice, that's not how it's ever been understood or how it's ever really been exercised. And a lot of what happens with the campaign finance regime is that because any effective speech about any topic, including government, costs money, attempts to regulate the money invariably turns into practical roadblocks to the effect of ability to influence the political debate. But wouldn't – I mean, given how important elections are to democracy, to American government, and given that it's true that it costs money to get your message out there, shouldn't the government just be providing free as in beer, not free as in speech, that they ought to be paying for that rather than, I mean, the problem with opening it up to outside money is that that outside money then influences the message, right? It gets to decide what the candidates are saying. And I think there's two points there. One is that your joke about beer is actually very well taken since for much of the history of this country – That's how you campaigned, yes. It was common to bribe the voters with usually hard cider unless you were really hard up. But no, I mean, I think your point about the importance of the election is – it really is in some ways the heart of the debate. In the sense that, yes, the election is sort of this crystallizing moment of the democratic process, but it's not the entire democratic process. And a lot of what happens is that it is true that the spending of money is going to have an effect on the election. But that doesn't mean that all money that is spent to talk about politics is intended to or does effect the election. And what you end up with is this sort of reductive out of certain problem where the more you try to capture speech and the spending of money that might quote influence the election, the more you make it hard to do other things in politics. The harder it is to talk about legislation, the harder it is to talk about even general policy problems we're having. It's hard to have a conversation about healthcare or defense policy if you're not allowed to mention the names of people who are involved in government. It also seems like the phrase – and this is the phrase that does get used the most often – influencing our elections. And it's used with sort of verboding tone often and as if it's a prima facia wrong or something like that. But if you just think about influencing our elections, people are trying to do that all the time in different ways, including politicians with pork braille spending, sending money to their Jewish and maybe the New York Times. They're also influencing elections too. Certainly. So we're all – I mean, is this in the statute? Is this saying you're not allowed to influence elections? Is this what the laws look like? If certain people aren't allowed to influence elections? Well, they try. Certainly laws have been written including the Federal Election Campaign Act. The largest of these laws was written to say that if you set up an organization that's intended to influence an election, you have to register with the government. And the Supreme Court, by an 8 to 1 majority in the 70s with people like Brennan and Thurgood Marshall in the majority, said you can't have a definition like that. That doesn't mean anything. It's so vague as to capture essentially all political activity. And that's – as I'm trying to wrap my brain about influencing an election and then just after that, it's just a snowball effect. Well, and it's fun, right? Because in some ways, I feel like the people who would say a phrase like, you know, give away the game in a sense, right? It's like, well, how does this work in your mind? Do you think that people just sort of have their political beliefs sort of spring full grown out of the head of Zeus and then they walk into the voting booth without any external and it's all a priori, as you said? I mean, I don't think anyone actually views the world as working that way. And if you believe that's not the way the world works, that we really are, you know, we do have a civil society and a social compact. We have to talk to each other and come to, you know, agreements on things. Well, what is that conversation? It's an attempt to influence the election. In the name of controlling this or regulating or monitoring the influencers of our elections, you mentioned the Federal Election Campaign Act. So maybe we should actually start there because I'd like to get a little bit into the weeds about some of these terms that get thrown about and then what they mean as you as a practitioner. But we start with the Federal Election Campaign Act and what was that and what did it do? So the Federal Election Campaign Act, well, at least the portions that we actually litigate these days or talk about are still governed by. So once upon a time there was a man named Richard Nixon who did some very bad things and the country in some ways reacted appropriately and in some ways was overreacted. One of the ways in which it overreacted was portions at least the Federal Election Campaign Act. And this is a law I just referenced which said that, you know, a political committee, a PAC, is basically anything that tries to influence an election. And Supreme Court said, that's too broad, that's too vague. We don't know what that means. You're going to end up capturing anything. So we've sort of – we've slowly walked away from that. But the central sort of terminology is I think you still have this idea in the law that there are these organizations. There's PACs and parties. And PAC stands – what is a PAC? It stands for Political Action Committee. And what is that? That's actually the debate. A PAC is an organization that exists whose major purpose is the election or defeat of a clearly identified candidate. That sounds like a lot of legal leads you just gave me, yes. That's the definition. And I think that's many ways the problem is sort of how do you identify organizations which we're going to say, you know, you exist to influence elections. That's your purpose. You know, you're doing it by trying to get specific people elected. And we need to know about that to sort of judge against corruption and make sure people aren't getting captured and prevent bribery and those sort of things. And to what extent are we talking about? The Sierra Club said something about the Keystone Pipeline that made a senator very angry. And maybe that's not the sort of thing we want having to be reported to the government and subject to various, you know, very complex legal regimes. Are there size restrictions on these things or limits that when it becomes – so committee sounds like more than one person, organization is more than one person. So can you have a one-person PAC or does it require five people? No, no. Well, it's a corporation essentially, right? It's a separate entity that exists out there in the universe. But no, what you have is – there are monetary triggers. They're very low. They're $1,000 for PACs. PAC, you mean spending or contributing? Contributing. Money coming in has to be $1,000. Yeah, because I'm trying to figure out. So I – let's say Aaron and I get together and we've been doing this for a while and we're sick of this town and we want to say politics makes us worse to the whole world and we say we pick out specific people we don't really like and let's say just he's going to put in $3,000 and I'm going to put in $3,000 and we're going to go buy some ads. Would we be running a foul of possibly of campaign laws? Is it possible? Well, how would we know? Who would I have to talk to? You're here so I should talk to you. Yes, exactly. The short answer would be it really depends. So certainly if you were putting in more than $3,000, if you're putting in large amounts of money, say $7,000 or $8,000, then we would have to talk about what exactly you're planning to do with this, this organization you're creating. Either way, you would certainly have to register with the Federal Election Commission if you planned to either run ads that were sort of pro or anti-candidates or if you were going to within 60 days of an election – this is my favorite. If within 60 days of the election you were to make an ad which mentioned a candidate. That can include a sitting office holder. But was this – what if we made sandwich boards? We stood down on the street with big sandwich boards. And they were just really expensive sandwich boards. Yes, we had a design – Aaron's very big in design. So we had a design firm design a really cool looking sandwich board. We just stood there on the corner. Gemstones. Yes, but we spent a good amount on the design firm. But it just says Nancy Pelosi makes us all worse and we just stand there. Could that – That could trigger it. And we could – could we go to jail? Very unlikely. Right. I mean, it's sort of – and this is part of the problem is that this gets really technical really quickly. The central point is if you're spending more than $200. 200. If you're spending more than $200, especially at the state level, if you're spending anything, you really should talk to a lawyer. Can you say that one more time? Sure. If you're spending more than $200 or if you're spending anything at all at the state level, you really should talk to a lawyer. How does that matter if you're saying candidate's names or if you're talking about lowering taxes? Sure. Anything that's political, both? No. I think it does matter in the sense that certainly if you're mentioning candidates, there's probably going to be a different legal regime than if you're just saying taxes are too high. Although, as I understand it, the traditional way of saying that is to throw a T over board. But if you want to do a sandwich board, that's fine too. I mean, the point is that – I call it the sort of centrifugal force's problem. You have the Federal Election Campaign Act. And the Federal Election Campaign Act goes through 30 years of litigation and many revisions and regulatory efforts by the FEC. And at the end of it, you kind of know what a federal political committee looks like. It's sort of – it's an organization that – And by you, you mean you. I mean, you mean about 200 other people. Yeah. There are about 200 people who probably know as much about – and you kind of know what a political action committee is like or if a campaign spending is like. But then it gets bad, right? Then that's a good part of the story. So, after that, you have these sort of centrifugal forces where every state legislature gets a hold on this. And they're like, oh, sure. Express advocacy for a candidate with electioneering communication. They just start throwing around these terms of art from the federal system, none of which they know anything about. And they end up cobbling together these Frankenstein statutes that sound vaguely like what you'd identify as law at the federal level but really don't operate that way. So, I mean, there's a lot of classic examples. But you certainly have states where any money, first dollar that's spent to sort of advocate for or against an actual vote means you have to register with the state. So, does this mean if I start a blog to talk about local politics and – so it costs some amount of money to start that blog. I got to pay for hosting, pay for design, whatever else that would mean I have to register for the state? Well, most states will have an exception for what they'll call press activity. Now, most states have not defined it. Your example of a blog is a telling one. Most states haven't really gotten around to saying whether blogs are covered or not. But there was a case out of Maine where there was a blogger who did a bunch of blog posts about how one candidate was terrible. And the main election authority said, actually, no, your blog isn't a legitimate press effort. It's an attempt to get this guy elected or defeated. And so we're going to regulate your blog in the past. That seems terrifying. This all seems insane to me, but also anti the spirit of American democracy in the sense that – I mean, we talk about how everyone should go out and vote, but also that – Get involved, yes. That you should get involved, that you should have an opinion. The whole point of this system is that we try to convince others to vote the way that we think they should, that that's part of participating in this civil process, right? And so heavily regulating that and making it so that you have to register and you have to consult with an attorney to simply be an American – I mean, these minor cases just being an American expressing a political opinion just seems counter to the spirit of the whole system to begin with. Which is why it's so dangerous, is that I think – I had a client who I put on the stand in a federal court in Denver. She got up there and this made its way into the final opinion. She said, I would never in a million years have imagined this was the legal regime I was up against. And this was a woman who had written a 10,000-word policy paper, the last sentence of which said you should vote against this ballot initiative if you agree with us, essentially. And the state of Colorado said that's a political ad. You have to register as a political committee, et cetera. And that's the problem, is that your average sort of civic-minded person who cares about the country, regardless of their particular views on how to fix the country, none of that's relevant, are not going to say to themselves, wow, I'm going to spend $200 on poster board to put up some signs about how this school bond measures a terrible idea. It's not to occur to them that they have to go fill out a form and get permission to do this. It seems kind of Talmudic in a weird way because you just – and we are all lawyers in this room to some extent, Aaron, to a lesser extent. He did go to law school, though. But you think about it. You say, I'm going to write a law that says if you influence an election or you advocate for a candidate, they clearly identify candidate, then you have to register. But then you say, well, what does that mean? So then you have to write a few hundred pages explaining what that – you just said these words, but now this is like the rabbis explaining what work means in the Torah, right? Like you can't work on the Sabbath. Does that mean you can turn on lights? Does that mean any of these things? And it just keeps going and you realize how damaging at the end of the day the vagueness of the entire regime could be to try to follow the law and to speak your mind anyway. Well, as much as with the Talmud, you'll get, you know, different opinions on how to go through and interpret these things. What's the motivation behind all this? I mean, one of the things that we talk about a fair amount here is this kind of bootleggers and Baptists problem, which is that the Baptists, the kind of people who are out to improve things say latch on to something like environmental regulation. We need to regulate this stuff in order to stop pollution and that's a laudable thing. And so they start supporting a law, but then at the same time industry comes in and says, look, if we support this law and get these restrictions, it's going to help us at the expense of our competitors. And so therefore industry is going to support the law. They're the bootleggers. And so you get these weird coalitions that don't seem to make sense. So what's the bootleggers and Baptist thing going on here, if at all? It's so much harder just because, you know, to take the original example, I mean, everyone kind of understands how prohibition works, right? You're not allowed to import, manufacture, or consume alcoholic beverages. That's pretty simple. This is so much harder because no one actually understands the underlying terms. But that being said, you know, to answer your question, I mean, I think it's a few things. On one hand, you know, a lot of what I'm saying here are stuff that liberals said for a very long time. I mean, this is the stuff the ACLU was arguing. This is the stuff that, you know, the Democratic Party was in some ways arguing for a long period. And I think what's happened is that, you know, there really is sort of the true believer worry that, no, we're headed for plutocracy. This is how it's going to happen. If we don't track $200 contributions or $50 contributions, some, you know, insanely brilliant evil person out there is going to find a loophole and, you know, run $50 contributions through a shell entity in the Cayman Islands or some insane theory that would never actually happen in the real world. And so you end up with that, you know, the true believer worry about tracking every dollar in politics because they really are worried about the system being captured. So that's I think one side of it. And I think there are people who believe that in good faith, although I don't think the political science really supports them. And on the other hand, I think you do have people who, I mean, look, that way of thinking is universalizable, right? Who you cast as the demon in that story is going to vary substantially. But you're still going to see this worry. And, you know, I see this state by state where you'll have states with very different political makeups coming to similarly constitutionally problematic, you know, sort of conclusions with opposite villains. You know, some people want to make sure the Sierra Club can't, you know, get, you know, mess up their attempts to grow the economy in their view. And other places, you know, people really want to mess up the ability of the NRA to sort of, you know, allow the indiscriminate slaughter of innocents in their view. And then when that's your world view, it becomes, it becomes acceptable, it becomes harder to sort of make the difficult compromises and trade-offs and to recognize that the money that's being spent here really is speech. And there are real costs, and that's the other side of it, too, is because, and that's one reason why we're talking about this today is because the real costs are not seen. And when you say, you have this sort of just-so story about how this bad thing could happen if a bunch of people got together and did $50 contributions and ran it through the Cayman Islands, as you said. So we have to stop that, but then, but they don't think there's anything that's being hurt by them doing that. And it's this entire system of squatching speech. I think that's exactly right. Let's go back more to the laws to help maybe explain what some of our listeners understand what some of these terms are. So a PAC, now, the other one is Super PAC. What is a Super PAC? So a Super PAC, so a PAC, your sort of standard old-school PAC from the 70s, you know, you would take in limited amounts of money from individuals and then you would give that money as contributions to parties and to candidates. And that all, you know, there were limits on the amount that could come in, there were limits on the amount that could go off, and it was sort of a, you know, nice, easy, boxed product. A Super PAC is the result of a case called SpeechNow.org in the DC Circuit, but, you know, in many ways it's a natural outgrowth of Citizens United. What a Super PAC is, is it can take unlimited amounts of money from individuals, from corporations, from unions, though not from foreigners or foreign corporations, something the president occasionally gets wrong. And can then, you know, spend that money unlimitedly so long as it's done independently of a candidate. So a Super PAC would do things like run ads saying we really like this guy or don't like this guy, but they can't give a cent to that guy or to his opponents. And that's sort of the distinction there. It's an entity that's operating independently of the political actors themselves. And as a result, the sort of limits on money come off. When you say independently, do you mean total independence, like they're not even talking to these other candidates or are they allowed to coordinate with them, like get together and say, you know, what ads would you buy if you had this much money and then we're going to buy those kinds of ads ourselves? Doing that would be a very good way to go to jail. No, no, you are not allowed to coordinate on the ads or on the message. There's quite a number of regulations on this, you know, when you can share, you know, vendors, you know, the sharing of polling data. And people do try to get cute on this. I certainly won't deny that. But, you know, the theory is that, you know, you can't have complete independence because this idea that I'm never allowed to talk to my congressman because I might, you know, support him is kind of insane. But you're not allowed to coordinate on strategy, essentially. But that is where a lot of the fight is currently because you mentioned this independent expenditure is where, you know, I always say, you know, this is like the sandwich board. I'm not going to give anything to the candidate, but I'm going to stand on the side. I'm going to have a sandwich board with this name on it and go out with him. And so that seems okay in practice, but then you have this other idea that the Koch brothers are going to spend not a sandwich board, but $200 million or $889 million. And it's supposedly independent where they're not talking to the candidate. And everyone kind of says, oh, that's laughable that the candidates, it's just a contribution. It's the exact same thing as a contribution. What is your response to that insinuation, I guess? I mean, it is a difficult concept. And I think you nailed it in saying that, you know, a lot of why this exists, why the Supreme Court said that this is a fundamental right is that it's the other side of the equation. It's that if you don't allow this, what room is left for civil society? You know, it's understandable to say we don't want money going directly within the control of a candidate. There are those of us who would like to sort of get into that. See more of that, yes. But it's the least, you know, it's a longstanding theory in the law. The independence prong really, I think, is an attempt to say this far and no further, to say that if you're going to say that anything that might possibly influence an election, anything where a candidate might feel grateful or, you know, be pleased that you agreed with something, you can't talk about issues anymore. And, I mean, and this is part of the problem with, you know, the independence prong. And this is what I've pointed out by my opponents, I think, in some ways correctly, though, they draw the wrong conclusion. But, you know, it's not really that hard to figure out what's going to hurt or help a candidate. You know, candidates have, you know, interests in the sense that they have their pet projects, they have their constituencies. I mean, I grew up in a town in California that was largely funded by the aerospace industry. I mean, that was, those were the employers. I mean, it was obvious that the congressman representing that area wanted a higher air force budget. I mean, this is not rocket science pun intended. But it's, you know, so you end up with that problem of, you know, if you're not, how do you talk about these issues? How do you talk about the Keystone pipeline without implicating the fact that every member of the Senate has taken a public position on it? And I've asked this, I've thought about this and given this example, because a lot of people bring up public financing of campaigns. And it's, well, let's just give everyone the same amount of money. And it's an interesting question, and this is a good way to highlight some of the problems because if you did do this thing, part of the goal of campaign finance reform is often this idea of, like, well, let's make it all fair. We're retired to the parlor and we'll talk about issues and you get five minutes and I get five minutes and we'll let people decide. And so maybe public financing campaigns can do that. But you first have the problem of incumbency. So you'd have to have the incumbent get less money than the challenger if they really wanted to make it fair and I'm not holding my breath on any incumbent passing that law. And the second question you'd have to answer is, okay, so they get this money given by the government, but are other people now prohibited from speaking about politics in some way lest they put too much weight on one side? So I'm not going to mention a candidate but I'm going to talk about low taxes. And now is it the case that we're putting too much weight on the low taxes side? Am I influencing the election? It never goes away. The public financing regime, the questions never go away. You still have to draw these really crazy, insane lines. Especially in our system where we don't have some guy running for prime minister who just decides what the party planks are. We have a much more dynamic and flexible system than that. And there's going to be a certain amount of chaos on the edges as a result. And that's an intentional part of the system. Is this chaos worth stumbling our way through though? All these attempts to restrict money and to restrict speech in these different ways and to rein in these groups and these ads is an attempt to fix something that people perceive as either wrong with the current electoral system or something that will go very wrong if we don't take these steps right now. Are they misguided in the actions they're taking to prevent these wrongs? Or are they misguided as well in even perceiving that these wrongs exist to begin with? Is our system screwed up by billionaires being able to spend all this money? I think there was a time when that was a real danger. The fact that the single legal change that I think is the most important in all of this history is the fact that when Richard Nixon was president and you gave money to a candidate, you gave the money to... Yeah, technically you gave it to his campaign committee, but there was no legal prohibition on him simply pocketing it. So you had this system where money was going directly to the office holder as a person. And yeah, no, I think that there are potential dangers in that way of thinking. And in some ways, the system grew out of that, grew up out of that sort of concern. That hasn't been the law for a very long time. You're not allowed to just transform political money into personal money. And so in that sense, I think that there is a miscommunication because I think a very large majority of Americans probably don't know that or at least don't think about it. The fact that, no, you're not giving to senators so-and-so. You're giving to this heavily regulated entity that the senator controls can only be used for certain purposes. If he steps down, he can maybe give it to other candidates, but he can't just pocket it. He has to give it to charity or something. So in that sense, yeah, I think there is a disconnect in the sort of dangers people are imagining versus the dangers that actually exist. And that includes even the danger of so-called quid pro quo corruption, the give me money and I will give you a vote in a law, which is... Everyone thinks it exists, but it would be a very strange way to try and influence the government, it seems. To buy one representative of 435 people's vote on a pipeline that is probably not going to be the deciding vote with what, $500,000 contribution, that would be a really weird way to spend your money, it actually seems like. Well, I also think it's back to this sort of, people are going to create dragons to fight problem. We don't have any problem prosecuting money laundering in this country or insider trading or how exactly... I really wish more sophisticated people would make this point. How exactly are you supposed to get $500,000 out of the banking system to a senator without anyone noticing? I mean, do you have any idea how difficult that is? Like, you know, we're not talking, we'll shut down people from material support to terrorist organizations for tiny amounts of money because we've got the banking system locked down. I mean, these just aren't realistic outcomes, which means that what we're really worried about isn't that. What we're really worried about is the fact that people are going to say things that are going to help the candidate in one way or another. At that point, it's more about ideology than it is about vanity. And that seems to be the question of attacking the problem the right way, which is what you deal with all the time because you have to have some sort of idea of what goal are you trying to achieve. And theoretically, you're supposed to do that narrowly. By the First Amendment, you're trying to stop corruption. We agree it's a problem. Let's attack that problem narrowly. But what you've done is you've just taken a sledgehammer to the entire spinning of money and campaigns and every time it breaks, you just keep adding more and more laws on and you've taped the whole thing together with duct tape. All to solve this problem that you could have solved more narrowly and attacked more narrowly with a far less heartache and squelching of speech. And that seems to be the argument you're always into telling judges this doesn't forward a good end. Right. If what you're worried about is a $500,000 bribe to a senator, why are we limiting contributions to $200? Exactly. And now, some of the other terms that get bandied about that are relevant and somewhat not relevant. 501c3s. Ah, yes. So 501c is a section of the tax code and people only talk about a very narrow range of it. There's actually, I think there's 29 501c organizations, which includes everything like black lund trucks, trusts, rather, and cemetery organizations. It's basically anything that isn't taxed by the IRS. So it's not an inherently anything group of things except for entities that are not basically for profit corporations. 501c's are the most sort of centrally and heavily regulated. My organization is the 501c, for instance, which means that under C3. Is a C3. Yes, thank you. So is the Cato Institute. Yes. I would expect so. This means a few things. One, it means that contributions to those entities are tax deductible. It also means that partially because they're tax deductible, these groups are prohibited by federal law from intervening in campaigns. Intervening means? Well, intervening means what the IRS says it means. But in practice, people steer wide clear of the mark. The dangers of a 51c3 losing its tax status are very substantial. Again, because these are in some ways, I hesitate to use the word, but the usual word in the case laws that these are sort of subsidized by the fact that they're tax deductible entities. So yeah, you're talking about charities. You're talking about organizations that are think tanks. You're talking about organizations. But the important things for this purpose are you can't intervene at all in a campaign full stop. Then you have 501c4 organizations, which are sort of the big fight right now. So 51c4 is what's called a social welfare organization. And in a not particularly brilliantly drawn statute, the way 51c4s are regulated is that they are allowed to intervene in campaigns. On the theory that if Congress says you can't intervene in a campaign for c3s and doesn't say that for c4s, obviously it can't be prohibited, which I think is correct. But it cannot be their primary purpose. And so there's a fight about, you know, well, one, what do we mean as you just flagged about an intervening in campaigns? And two, what do we mean by primary purpose? How much activity is that? And it's sort of been the understanding of the bar for a long time. So that means, well, less than half of what you're doing by spending is sort of intervening in campaigns is telling people who to vote for. And the rest of what you're doing really is talking about issues and saying, you know, we want more green space or we want stricter gun rights or, you know, whatever. That's essentially okay. Now, the other difference between a c3 and a c4, and this gets confused quite often, is that contributions to c4s are not tax deductible. So there's no sort of revenue interest of the government in 501c4. It's not being subsidized in some way, except in so far as, you know, it doesn't pay taxes. Of course, political committees don't pay taxes either, and their major purpose is intervening in politics. So that's sort of a distinction without a difference. Now, what about disclosure of donors? So c3s and 501c organizations do not disclose their donors. And, I mean, the theory for that, I think, is a very old one, which is that when you're talking about 501c organizations, you're essentially talking about civil society. This is any organized corporation that isn't for profit and isn't a political committee. I mean, these are your churches. These are your nonprofit organizations. These are your charities. These are your soup kitchens. These are everything. It's basically, it's very difficult to make any sort of effective organization for any purpose other than making a profit without being in section 501c. And so, you know, there's this feeling that it's not really it's not really people's business who's going around and contributing to those sort of efforts. And that's, you know, that's a hard fought victory in a lot of ways. This comes out of the civil rights movement when states try to abuse their sort of, you know, their state and corporation laws or their state licensing laws to try to get at these things. But given that at least some of these organizations are out there trying to influence elections or trying to influence American politics, shouldn't we know who's behind them? I mean, shouldn't like, given that people, especially they're giving me large sums of money, maybe doing it to advance their own interests, wouldn't that be something that's important for the American voter to know so that when he sees this ad for some policy, he can know, oh, that policy's being paid for by someone who's going to benefit greatly from it and so might have an incentive to oversell it or maybe shade the truth a little bit? I mean, our traditional answer has been no for the simple reason that, and again, I'm setting aside the question of, you know, here's an ad that just clearly says who you want to be the next senator. Leaving that aside, though, I mean, most of what 5-1's he sees do isn't that. And we've traditionally thought that, you know, whether or not we build pipelines, whether or not we create national parks, whether or not we, you know, ban magazine sizes over X should be decided on its merits. And one of the things that, you know, some of the people in my space really worry about is the increasingly ad hominem nature of political discourse in this country and the fact that it doesn't matter how good the argument is because you never get to the argument. It's immediately a question of, well, George Soros paid for that or the Koch brothers paid for that. And that's really enough for a lot of people. You know, at that point they sort of know which side they're on and we're done here. And, I mean, as I think this conversation and many of your other conversations have illustrated, the world isn't like that. The world is deeply complex and there are constant trade-offs that had to be made. In some ways, you know, the purpose of the democratic process is to decide which trade-offs we're going to go with and these sort of constant buddings of heads by these binary ideological choices doesn't help and probably isn't helped by the type of disclosure that you're talking about. What is a dark money group though? Because we hear this, this is the term, the new term, the dark money group. Going back, I mean, Aaron asked the question about is this a problem, which I agree with you, but when they say dark money groups, which I usually imply is disclosure things, what do they usually mean by that? Do they mean anything consistently? Well, I mean, and that is the rub. I mean, on one hand, I think the intellectually honest way of saying it is, you know, there are these organizations. You know, there are C4s out there who probably are spending 49% of their money trying to get someone elected and the 51% in a way that they think might help that guy. And I can understand why people who have certain ideological commitments would be upset by that. The problem is that the term isn't just used for that. The term is used generally for any sort of political activity that might influence an election. And so we're back to square one, right? Like if we're gonna, there's, because you have to choose, right? If you're gonna say we want a vibrant civil society that talks about issues and allows people to do so in concert with each other and allows them to do it anonymously, you know, allows a Republican in D.C. or a Democrat in, you know, Houston to contribute to ideas or churches or whatever else that they agree with, we have to draw the line somewhere. And so, you know, but I mean, in its common parlance, I think a dark money group is not terribly intellectually honest construct, but at best means an organization which does not disclose its donors publicly, but nonetheless intervenes in campaigns. What are some of the cases you've been working on recently that a good example of how these laws hurt even the small, the little guy, the worst, the most? Well, and this is a lot of our practice. So probably, I mean, the story I usually tell is the one that I sort of alluded to earlier about, you know, this woman who gets a PhD from the University of Colorado, Boulder. In philosophy, she's an Aristotelian, moral theorist. She writes a long paper with 180-something footnotes. Basically walking through her ideological objections to the personhood movement in its history and sort of the attempt to put something like this into law. And then the last sentence of this very long paper is, if you agree with everything I just said, you should vote, the only moral choice, I should quote from it, the only moral choice is to vote against this proposition. You know, so you're talking about, you know, 20 words out of 10,000. And it's not, I think, obvious to a person of common intelligence, just as it was not obvious to this woman of significantly greater than common intelligence, that that's the sort of activity that campaign finances and tenders regulate. So, I mean, that's one example, just sort of the difficulty of being a small person who wants to talk about policy and sort of let's drop that, I mean, heaven forbid, a citizen might have a position embedded in a larger sort of policy argument about how things should turn out. Did she get involved? Did she take that paper and somehow publicize it? Did she put it on the internet? And that was it. That was enough? So, did she spend money? She did. Well, she was paid by her nonprofit, the coalition secular government, which was a 5-1, actually wasn't registered with 5-1-C because it wasn't big enough. And so, you know, she was paid a few hundred bucks to do this. And so, is the triggering the line at the end of the paper or the fact that it's on the internet? It's all three. So, Colorado law, which is bad, says that, you know, an issue committee is any group of more than one person or any non-natural person, so a corporation or, you know, something called the Coalition for Secular Government, even if that's, you know, not a very large entity, which spends more than $200 to disseminate publicly something which, you know, advocates for or against a vote on a ballot measure. So, they had to kind of quantify how much it was worth putting it on the internet or... You would think they did that. But no, they didn't. They don't do that. Well, I mean, well... They just assert that it's worth more than $200. Well, and this is a lot of the problem. You know, how do you do that math? I don't think there's any way to write a regulation that clearly says... What do we do? We take every sentence that's in the express advocacy portion and we divide it by the overall thing. And then we assign a one to ten number scale for the accompanying visuals and divide that. I mean, this becomes absurd very quickly. Well, there's a really good story of, which I'm sure you're familiar with, the race car driver story from the FEC. Are you familiar with this one? The FEC was dealing with a question in 2006, the Federal Election Commission, when a NASCAR driver who was not very prominent put a bush sticker on his car in an area that didn't have any ads on it. And he couldn't... He wasn't popular enough to sell ads for that part of his car. So, but there was a complaint file that this was a contribution... An in-kind... An in-kind contribution worth enough to make him violate federal election law. And the debate in the Federal Election Committee was it worth nothing? Some people said it's worth nothing because he couldn't sell it to any ad buyer. And other people said, no, it's worth this much because I'm going to try and quantify how often people see it on television as the car speeds by and you see a bush sticker. That's the level of complete angels dancing on the head of a pin that we even have in, again, in Colorado. It sounds like it's even worse. It's much worse in Colorado. I mean, well, the other problem is that you sort of alluded to this in the complaint system. I mean, in many states, you have these sort of metaphysical problems. And I realize I was just discussing a philosopher, so maybe she's not the best example. But, you know, you'll have these metaphysical problems. And then at the back end of it, you've got the possibility for private rights of action. It's not like the state of Colorado has to come for you. Like if you've got a political enemy out there, someone who doesn't like you or, you know, you've parked in someone's parking space at one time, you know, they can bring a direct complaint in the state courts against you for having done these things. So it's a good way to play politics. Well, and in practice, that's how it works out. I mean, it just becomes, in some ways, another weapon in the quiver. And I think the opportunities for gamemanship there are pretty obvious. Are there rules in place to prevent using this as a political weapon? Like does the loser have to pay the legal fees? The loser does have to pay, but I'll point out that the loser isn't necessarily the person who used it as a political weapon. That in some ways, that makes it worse. All right, another question. So let's say I want to get a few friends together, spend, oh, let's say about $600 on some radio ads. And let's say we're in Florida. Florida would be a bad choice. Would that be a bad choice? What's wrong? Well, I mean, there would be a case, which I presume you're referencing called Worley, which the Institute for Justice didn't took up to the Eleventh Circuit, and the Supreme Court chose not to review over my organization's objections. But that was exactly what you're talking about. You have a small amount of money. It's friends around a coffee table. They want to take out a political ad. And no, they were told they had to sign up in the state. And in Florida, I found it a very troubling opinion, though the Eleventh Circuit didn't write the statute. In some ways, this really is a fault of the Florida authorities. But there, it's not a certain amount of money. Like you... $1. If you give $1 to an organization that does this, your name just is closed. That's the way Florida law works. And again, it's sort of... What possible public and state interest is there? I question what public state interest is for $100 contribution. But for $1, for $5, $10, you pass a hat around, a meeting in a bar and to put together your really ritzy sandwich broads from earlier. What exactly is this accomplishing aside from creating a paper trail and a disincentive for... specifically for people who don't have a lot of resources to get involved? It's in many ways... it's even worse than people... assume that you have sort of aggressive bent on this. And what you really care about is making sure that the voices of the relatively modest are not getting drowned out. This seems like a pretty good way to drown out their voices. The Koch brothers don't have to worry about being fired. They don't have to worry that they're going out on a date and someone's going to Google them and figure out they gave to an organization they don't like. The opportunities for sort of sorting are probably troubling as a matter of sort of policy and as a matter of constitutional law, why is the state using its coercive power to force this sort of sorting upon us? What's the state interest that's justifying that? Are there real burdens on... the individual might want to do this stuff beyond basically being outed for holding certain political beliefs? Like you mentioned, so if you're going to spend this money you have to register with the state, but is that as simple as, okay, I got to just take ten minutes to fill out a form and mail it in? Or are there other requirements that come with that that represent a much more substantial burden? Well, again, it depends on where you are and what activity you're doing. Generally, it's not... So generally there's been in the last five years or so sort of a division between transactional reporting and sort of you have to register your organization as a pack of one sort or another. I tend to think, honestly, that that's increasingly becoming a difference, a distinction that doesn't carry any real difference. So another of my clients, a group called Delaware Strong Families, which is in Delaware obviously, they have in Delaware a law which says that if you run... If you spend, I think it's $100 and you put it on the internet and it mentions the name of a candidate within 60 days and my client specifically was doing a nonpartisan voter guide that just listed the positions of everyone running for office. That's enough. At that point you do have to file only one report, but that report has to include all of your donors going back four years. So what's the difference at that point between registering your organization generally and just filing out one form? This isn't a Delaware Strong Family spent $500 to put something on the internet. This is, here's our entire organization on this form. Here you go. In some states like Vermont have even more restrictions in terms of registering as a political committee and then having to have a separate bank account and other things and then you start... A treasurer who's responsible for everything. You have to take on a new form to do these things. And hire a lawyer probably to do it. In some places it's a very good idea. Vermont's probably one of them. So what is the, in your opinion, worst campaign finance law that you've encountered or know of? Worst campaign finance law. So I would say probably and this is a little bit further afield. This is about there's a distinction between the disclosure you do of the funders of something and the disclosure you do on the face of a communication or I'm so and so and I approve this message, that sort of thing. And it's actually in that latter what they call disclaimer category. So in Massachusetts the law is if you if an organization runs an ad let's say it's a TV ad the chairman or CEO or whatever that company or that organization, that non-profit or what have you has to go on television at the end of the thing and announce that he approved it and if they get their way going forward who the top donors to the organization are and they have to do this on the air. So I sort of consider this a really good thought experiment right? So let's assume that we really do want all this transparency in the world. Why does it matter if the chairman of an organization because I mean we're talking about this may or may not be in state, let's say they don't have a Boston accent let's say they have an accent from the deep south let's say they're a racial minority let's say that they you know dress in a way that gives people certain you know opinions about their sexual orientation. I mean why is any of this anyone's business or relevant to how the voters of Massachusetts should be evaluating a message and in many ways I think that's in some ways you know almost the outer limit of the problems of the sort of the irrationality of the sort of everything must be disclosed is when you actually are intentionally forcing people to deal with these completely irrelevant factors in evaluating a political message. Do you think that there was some sort of ulterior motive behind this other than but to dissuade political speech possibly because it makes it pretty onerous to do that maybe they don't like people spending in campaigns some people don't like people spending campaigns generally so maybe you're like well I have to do this I won't spend on campaigns and maybe that's what they wanted the whole time. Probably some people I mean I wouldn't be surprised if some members of the Massachusetts you know legislature were thinking that way but in many ways I mean when you ask me the worst I mean that's why I picked this example is that I don't think any of them really thought it through I think it's just such a knee-jerk reaction to this point to say no we want more disclosure no we want to capture more money we want to keep people out of politics that you know people haven't thought through the costs of what that looks like including costs that you know don't don't necessarily neatly align with people's underlying political views. It's not that this is a right versus left or libertarian versus conservative or conservative versus liberal it's an issue of can you really write rules intended to keep this stuff out that are going to be neutral and you know I as a matter of draftmanship I think that Massachusetts kind of says the answers now So how do we keep undue forces from influencing our elections I mean if we it's not laws maybe or there's bad laws or too many laws but we don't want undue forces from influencing our elections we don't want there to be too much money in politics correct isn't that just what we obviously think about you mentioned like obviously we shouldn't be bribing candidates paying directly for votes I think we can all agree once we get those excluded I mean to just broaden it is there anything else that people will be doing that is actually an undue influence on the election as opposed to just like a do as an incumbent I might not like it when these guys are saying mean things about me right and well theoretically sure I mean the spring court recently you know declined to review a circuit court of opinion that said that no it's constitutional to exclude aliens from contributing in you know in campaigns it's presumably constitutional to exclude sort of foreign influences from our domestic political process and you know there's probably some dispute on that but I think that's a pretty reasonable position and certainly the position that you know has carried the day in the judiciary but no I think you're exactly asking the right question which is you know what does it mean to have an undue influence and the Chief Justice said this really great line in McCutcheon decided last year where he said you know actually we expect that candidates are going to be supported by people who agree with their positions and we expect that office holders are going to be responsive to you know their constituency is to people the idea that you're going to have some guys elected out of a district you know that relies on refining dollars and that's you know the basis of employment in that district to some substantial extent you know and he's going to get someone's going to give him a check for his campaign he's going to vote against the Keystone pipeline is insane I mean in general the vast majority of official action is going to be dictated not by you know these sort of discussions but by the underlying fact of representative democracy but no I mean I there's two ways of answering that question one is let's assume that money is really dangerous again how do you write this in a way where you're not just shutting down all discussion of issues and people have tried and I would argue they've largely failed and to the extent that's true maybe we need to be more careful about sort of circumscribing the type of activity we're trying to regulate in the first place and second of all you know once you're outside of whatever narrow window we consider corrupting I don't think there's such a thing as undue influence you know if someone drops a billion dollars into talking about I don't know how to reform the healthcare system I'm not sure that's such a bad thing I mean this is an issue a lot of people don't understand it's going to cost money I mean look I'm sitting in a think tank right now it costs money to run a place like this and come up with policy papers and think thoughts about how to fix these things I don't consider that undue influence I consider that civil society campaign finance system look like I think that's a very difficult question the ideal campaign finance system would minimize the possibility for bribery and maximize the possibility for group association to discuss the issues of the day we're in the middle of a 30 something year project to get that balance right and the fact it's been thrown into the courts I think is a sign that we're not going to reach any real agreement anytime soon I'm optimistic I'm optimistic in the sense that it's people should have a sense of history the joke about you know buying those with beer and hard cider wasn't merely a joke that was you know Lincoln got elected under that system so in some sense I'm optimistic just because I think that America is a constantly changing experiment and that we tend to in times of crisis get things right thank you for listening to free thoughts if you have any questions or comments about today's show you can find us on twitter at free thoughts pod that's free thoughts pod free thoughts is a project of libertarianism.org and the Cato Institute and is produced by Evan Banks to learn more about libertarianism visit us on the web at www.libertarianism.org