The Montana Plan

This conversation explores the impact of Citizens United on American politics, the Montana Plan as a strategy to combat dark money, and the legal and constitutional nuances involved. Experts discuss how state-level actions can reshape campaign finance laws and the potential legal hurdles and opportunities. This episode explores the potential for state-level legal reforms to challenge corporate influence in politics, focusing on Montana's innovative efforts. Experts discuss the legal, political, and strategic aspects of using state initiatives to reshape campaign finance laws and limit dark money's impact.

Transcript

SPEAKER_03 0:07

We all just choose to be stuffed evident. Corporations are not people. Money is not people. It is not a Christian nature. And the government of the people, by the people, for the people shall not perish from this terror. Welcome to Disorderly Conduct.

SPEAKER_04 0:34

Good morning and welcome to Disorderly Conduct. Today we're talking about one of the most corrosive forces in modern American politics, not left versus right, not red versus blue, money. 16 years ago, the Supreme Court handed down a decision that fundamentally reshaped American elections. As we know, that decision was Citizens United. And since then, the floodgates have opened. Billions of dollars in outside spending, super PACs that can raise unlimited money, dark money groups that don't even don't even have to tell you who's paying the bill. The result is a political system where the ordinary American feels like a spectator while billionaires and corporate interests sit in the owner's box. Here's the thing Americans across the political spectrum are furious about this. Conservatives, liberals, independents, and poll after poll show overwhelming agreement that the current system is corrupting our democracy and drowning out the voices of our citizens. So the question becomes: if Washington can't fix it, if Congress won't fix it, and if the Supreme Court created the problem, is there another way? Today we're exploring a strategy that might be the most serious attempt yet to actually neutralize Citizens United without wanting or waiting for a constitutional amendment. It's called the Montana Plan. And it's based on a deceptively simple idea. Corporations are created by states, which means states can decide what powers corporations have, including whether they're allowed to spend money in politics. If that power disappears, so does the flood of corporate cash. And to walk us through it, we've got three people who understand this issue from completely different angles. Maybe that's a stretch, if not completely. We've got with us today Professor Eric Siegel, who's a constitutional scholar and studies the Supreme Court, published author, policy architect, uh Mr. Thomas More, who helped design this strategy, and the practitioner leading the fight on the ground in Montana, Mr. Jeff Mengan of the Transparent Election Initiative. This conversation is not theoretical. Montana is already trying to do it. And if it works, it could become a playbook for the entire country. So today we're going to break down what Citizens United actually did, why the current system exploded with dark money, and how one state might have found a legal way to fight back. Let's get into it. And before we move on, we've got with us today, and then for the sake of time, uh we're going to forego our normal introductions. We've got Jesse with us, we've got Fingers with us, and let's get started. And so I'd like to lead in with Professor Siegel, if you'd introduce yourself, your background, and then we'll kind of go down the line to Mr. Moore and then Mr. Manning. Thank you.

SPEAKER_05 3:05

Uh sure. Thanks for having me. Good morning, everybody. I'm Professor, I'm the Ash family chair, professor of law at Georgia State University College of Law and the executive director of the Bond Durant Center for Constitutional Law Practice and Democracy. I've been at Georgia State for 34 years, uh teaching and writing about constitutional law. Before that, I worked for the Department of Justice, I clicked for a couple of judges in a big law firm. And I do think that Citizens United is one of the most misunderstood cases we've ever had in America for reasons that might not be all that popular with these folks. But I do think that that the wake of Citizens United has caused a disaster uh for the American political system. I think money in politics is one of our biggest problems, maybe maybe a biggest problem, at least into the current administration. But it's a major, major problem. And I welcome attempts to uh A get around Citizens United, uh B show why although Citizens United this will spark some controversy may have been correctly decided on a very narrow merit. What it said about corporate speech was wrong in every imaginable way. And then led to all kinds of disasters. We can get into that later if you want. And I hope this and I hope this thing in Montana works. And if it does, we'll be talking about it a lot. Absolutely. And thank you for that introduction, Professor Siegel.

SPEAKER_04 4:28

And now on to uh Mr. Moore, who is currently serving with the Center for American Progress. Mr. Moore.

SPEAKER_01 4:34

Hey, thanks for having me on here. Delighted to talk about this and delighted to be with this crew uh to kick it around. I've been at uh the Center for American Progress for about almost three years, working on this project for almost two years and working on it for about a year and a half with Jeff here. Before that, I was uh senior counsel and chief of staff to Commissioner Ellen Weintraub at the Federal Election Commission, where we she kind of sent me out about 10 years ago to take a hammer to Citizens United and see what I could chip off. And uh did some good work there. And uh this project uh came, it got fully formed to CAP, and we've been uh running with it since then. Looking forward to discussion.

SPEAKER_04 5:09

And thank you for that, Mr. Moore, and uh Mr. Mingum from the Transparent Election Initiative.

SPEAKER_02 5:14

Hey, thank you guys. Uh, first of all, Tom and and Professor, I think we need we need some some cool nicknames, you know, so it shows up on the I agree. Yeah. All good. Jeff Mangan, uh, so welcome from uh the great state of Montana, under of the Transparent Election Initiative. I served as Montana's uh uh 12th Commissioner of Political Practices from 2017 to 2023, and as Tom said, spent the last year and a half working in a volunteer basis primarily on the Transparent Election Initiative and in getting the Montana Plan off the ground. And so we're really excited to be here, talk about exactly what it is, how it got started, why Montana, and how we've been an inspiration for uh a number of states across the country who have already started doing their own version of the Montana Plan. And uh so we're just excited to to uh to share what we're doing and and keep everybody talking about why the Montana Plan can work not only in Montana, but in every other state across the country, and finally make Citizens United basically moot for all of us. So thank you.

SPEAKER_04 6:26

All right, fantastic. And and look, we're gonna jump right in. Um we've got a lot of material to cover, a lot of questions to answer for the listeners out there. And we're gonna start by first framing the problem the framing of what did Citizens United United ultimately, what were the impacts on the ground? We've heard Professor Siegel allude to the fact that maybe they got it right uh at its core, but the impacts are what have been problematic. Direct question for you, Mr. Moore, in plain language, what did Citizens United do and what has it meant for the explosion of super PACs and dark money over the course of the last 16 years?

SPEAKER_01 6:58

Sure. So what the what the Supreme Court decided was that as a matter of law, it was unconstitutional to restrict the ability of corporations to spend independently in politics, that as a matter of law it that could not be corrupting, that it could not uh create the appearance of corruption, even, that it wouldn't hurt people's faith in democracy, all of those things. There's a case back in 1976, Buckley Vivle, that basically said, look, the only way that you can regulate money in politics is if you're going after corruption or the appearance of corruption. So in in Citizens United, they they basically said, look, if you're spending independently, you're not corrupting anybody. You know, you're not putting in their pocket, it's it's just fine, no problem. And so basically opened the floodgates for unlimited expenditures to go out there from any kind of corporation, whether it be a business corporation, a union, other kinds of nonprofits, that was it. The way they did it, you know, they did not say the corporations are people. And actually, the Supreme Court has never said that corporations aren't people. It's it's odd. They are legal persons in a way, and they are separate. They are their own thing. They're not the same thing as a general partnership. They are a thing. If you've got a corporation and all the shareholders sell to somebody else and all the employees quit and the board quits and new people get brought on, it's the same corporation. It exists outside of all the people in it. What they said in Citizens United and the way they made this work, and it was uh kind of janky, but they said corporations are associations of citizens. And you know, if we're a bunch of citizens and we've got rights and we gather together in some form, like corporate form, we don't lose those rights. We get to express those rights through the corporation that we're gathered together in. And that violates every precept of corporate law. The whole point of corporation law is that you don't things don't flow up and back and forth. If your corporation kills a bunch of people in a gas leak, you know, the shareholders don't lose their houses. There's that's the whole point. But as a matter of law, for the last 16 years, that's been it. That corporations, at least the corporation that was the plaintiff in Citizens United, which is key, are associations of citizens, and you don't lose your rights to speak if you are gathered together in that kind of corporation. Professor's got some uh some glosses on that. I'm dying to hear him, but uh that's a good idea. That's some friendly amendments to the case.

SPEAKER_05 9:06

I guess from friendly amendments to that recounting. So, first of all, so uh I'm not an originalist. In fact, I've written a book against originalism, but the one thing that we know the original meaning of the First Amendment was supposed to prevent. In fact, the only thing the original meaning of the First Amendment was supposed to prevent was prior restraints and licensing fees. Meaning the government can't to the founding fathers, the government couldn't punish speech before it came out. But after it came out, then everything you know about the First Amendment is 1935 and four. Pretty much. Citizens United involves a prior restraint on speech. It just does. The law that was at issue in that case, the plaintiff in that case was an ideological organization, in my opinion, not a particularly good one for a democracy, but nevertheless, an ideological organization that made a movie, a very critical movie, about Hillary Clinton. And then were told they could not promote that movie, could not uh play that movie. I think it was 60 days before the election, maybe 30. I think it's six days. Um, okay. Just looking at the case that way, it's unconstitutional. And in fact, it's one of the easiest cases in Supreme Court, should have been one of the easiest cases in Supreme Court history. It's a prior restraint on political speech, and political speech has the most protection of any kinds of speech, and and it just should not be able to be applied, especially to an ideological corporation and all of that. And that's what the court should have held. But instead, the court said all kinds of things about the rights of corporations that went way too far and did suggest that corporations have the same free speech rights as people, which is absolutely absurd and ridiculous. Now, one more friendly amendment, just so we're all on the same page here, to Tom's recitation. Of course, corporations have constitutional rights. Now, I mean, there were some moments early in our history when that was dubious, but think about it for a minute. Do we want the FBI to be able to search the New York Times without a warrant, without any probable cause? We all know that both the New York Times and the Wall Street Journal have Fourth Amendment rights. This is something that we know. They likely have Fifth Amendment rights. Uh the government just can't come over and take over the New York Times building without giving them just compensation, most probably. But the Fourth Amendment example is the best. So we know that the fact that something is in the corporate form does not and by the way, no state could change that. No state can pass a law saying the New York corporations in this state no longer have Fourth Amendment rights. That's not a thing states could do. So so we have that does not mean corporations have the same rights as people. They unequivocally do not, but they do have some rights. So Adam Winkler wrote one of the best books about this. He's a professor at UCLA. And to look at this honestly, because Citizens United, Hillary Clinton made Citizens United a litmus test in 2016, reversing Citizens United. And that was a huge miscalculation at the time. It's also wrong. I don't think we can justify the prior restraint that was in play at Citizens United. What we can do, though, is require corporations to do all kinds of other things before they spend their money. And what we can do is not equate corporations with people because they're not the same things. And so I'll I'll hold off there, but we just have to realize this is a much more nuanced issue than frankly it was a DC circuit in opinion that that came after Citizens United that we don't have to go through right now. But that really took Citizens United and led to gross spending by unions, corporations, and all that kind of stuff. But for now, the important point is yes, corporations have free speech rights, but not the same free speech rights as people. And we can take it off. I mean it shouldn't have the same free speech rights as people. The courts shouldn't hear. Right, right.

SPEAKER_04 12:56

And I think we're gonna, I think maybe a little later on, Professor, we're gonna we're gonna touch on uh some of these some of these kind of you were leading down the road uh about some of the follow-on cases, and we do have some some things coming up on that. And and I just wanted to kind of bounce over, you know, to Mr. Mengan, you know, and not to not to change this, we're kind of we're kind of getting our toes wet here, but it's easy to write off comp campaign finance reform. So we've kind of heard the the problem frame. It's easy to write it off as a progressive pipe dream. Oh, we've been working at this for 15 years, you know, what what's different here? But we have some incredible new polling, and we talked about this before we went live from issue one showing 74% of Montanans support this initiative, including 69% of Republicans. How does this bipartisan anger on the ground translate to momentum for people out there trying to replicate this?

SPEAKER_02 13:48

Yeah, well, well, that's the that's the that'll probably be the easiest question all day. Um, and first of all, um yeah, Jeff, please. Uh you know, when we I've always thought, um, and I I I probably I can't speak for for Tom but and and others, but I've always thought this was a 75, 80% issue, if not more. As far as do, you know, do people you know think there's too much money in politics? And that's literally always my first question when I when I talk to folks is do you think there's too much money in politics? And to a person, they'll all say yes, regardless of their background, regardless of you know, the Republican, Democrat, independent, what have you. Now, we may not all agree on what the solution is, but we do all agree that there's there's too much money in politics, particularly today, and how it's from where we've come in the past 16 years since Citizens United, because it's in our face every every day, and it's not getting any better. That people, you know, actually see it getting worse and can relate to it because it's on their screens, it's in their mailboxes, it's you know, in their newspapers, if they still read an old-fashioned newsprint, um, tablets, watches, uh, phones, whatever it might be, they cannot get away from it. So it's it's in one of those um, I guess, easy issues for folks to relate to because they see it all the time. Now, how it relates to momentum for the Montana plan is we've always presented this as a nonpartisan issue. It's really difficult to talk about nonpartisan issues or anything.

SPEAKER_05 15:21

I'm sorry to interrupt folks, but Jeff, why don't you tell us what the Montana plan is? Because we haven't had that. The audience doesn't yet know what we mean when we say the Montana plan. So my suggestion would be we get that on the table before we go any further. Hate to hate to usurp the moderator's role, but I do think that's probably important.

SPEAKER_02 15:38

Well, actually, I'll uh since Tom was the original architect, I'll throw it to him. He can give that that quick that quick overview and then I'll jump into on the ground. You're mute, mute.

SPEAKER_01 15:49

Sure, happy to do that. Every case we've seen from the Supreme Court has talked about rights, whether corporations have the right to do this, you know, what's the concept, what the contours of the rights are, what's going on with rights. And when you talk about people and you're regulating people and you're and you're you know passing laws to do things, but you're always touching people's rights in some ways, like, you know, don't drive 120 miles an hour in a school zone, don't kill people, you know, you are you know chipping away at people's rights every time you pass one of these things. With corporations, there's another government function that is totally different from the whole regulating rights part of the world. It is this affirmative grant of powers. Corporations are absolute creatures of state laws. The first thing you learn on the first day of your corporation's class in law school, they did not exist before corporations were written into state laws and they won't exist the day they're taken out. Every single power that a corporation has is given to it by the state: the power to own property, the power to sign a contract, the power to do anything. And what happened a hundred years ago is that all the states were competing with each other to get corporate registrations. And so they said, like, fine, all the corporations can have all the power to do anything a human can do. And that was written into statutes. And when the Supreme Court got to that in Citizens United, they said, like, all right, so here we have a Virginia nonprofit corporation that under Virginia law has all the powers of a human being. Human beings have the power to spend in politics, and so corporations must have the power to spend in politics. Therefore, if you have the power, you have the right. And that's where that, that's how the the uh case got decided. All that power stuff, though, was assumed. And every case that's ever talked about this stuff has assumed that you are talking about a corporation that has the full power of a human being to do anything that it needs to do to run its business. And what the Montana plan does and the other 10 bills that have been introduced in states around the country is basically says, like, wait a minute. No, no, no, we've got another piece of our law that says that we can shorten up those powers or get rid of you guys at any time. And we're gonna do that. We're just gonna say, look, we're gonna give you every power you need to run your business, but we're not going to include the power to spend in politics. And you're not regulating their right to spend in politics. You're not restricting them, you're not punishing them. Nobody goes to jail. You know, these are not, you know, standard kind of like regulation side uh, you know, kinds of this is not a regulation kind of law that we're talking about here. This is affirmative power granting. And when a state does that, it's, you know, it it that's it. I mean, basically it's it's not, it hasn't regulated its corporations, it has redefined its corporations as entities that do not have the power to spend in politics. And that's what the Montana plan does. It's a it's a constitutional bound initiative and a statutory bound initiative, hopefully going before the voters of Montana this November, that basically just shortens up that list of powers and says, like, no, no, no, no, we never meant to give you that in the first place, actually. And uh Supreme Court kind of took these general grants of power and said, you know, you can, you know, it included all this political spending power. Nobody meant that 100 years ago. But that's fine. That's the law, that's no problem. We're just gonna make absolutely clear to you now that these general grants of power do not include political spending power. That's the Montana plan.

SPEAKER_04 18:59

And and I'm so glad. And and and Professor Siegel, thank you for that question. It's a great question. And it does properly segue us into uh our second portion of this, which is aptly named rights versus powers. Okay. Um, and and you know, that was that was always common. And Professor Siegel, just just preempting the counterattack, I would like to pose this question specifically for you. Uh opponents of the Montana Planner, and I believe not argue, that the state is holding corporation hostage. You can't force an entity, and I'm bringing this back to you because of your comments on the First Amendment specifically, you can't force an enemy entity to give up its First Amendment rights in exchange for the benefit of a state charter. So let's talk about the doctrine of unconstitutional conditions and how does the Montana plan bypass this specific attack?

SPEAKER_05 19:47

Well, first of all, the doctrine of unconstitutional conditions is one of the most incoherent and impossible to understand and impossible to apply doctrine. Maybe only standing is worse. The doctrine of standing is worse, that's about it. Um let me give the audience, though, a uh a very clear example. And I'm not suggesting in any way this is what the Montana law does. I just want to give a clear example. I have no right to receive sanitation services, water services from my city or my state. No right at all. They can decide tomorrow, you know what, fend for yourself. Hopefully, private companies will come in and blah, blah, blah. Uh, natural gas, same stuff. I have no right for that. But if the state says to get water for get your water from the city of Atlanta to get, you know, your your sanitation, you must agree not to speak about politics, that would clearly be unconstitutional. The Supreme Court would say that violates the unconstitutional conditions of the document. Now the cases are never that clear. But that that that's that's the fundamental idea. I assume we all agree on that. The state can't use its coercive power to make you forfeit constitutional rights for things, you know, for benefits like that. Um so that's that's like the wor that's the obvious case. But it gets much more complicated. And so the federal government gives grants all the time, all the time with conditions to the states, either take our money and do this or don't take our money, you know, we don't care. That condition cannot force states to violate constitutional rights. Just like the condition can't force me to waive the constitutional rights. That all sounds easy, but the case law gets very murky. So the Supreme Court upheld in a case called Rush versus Sullivan a gag order from family planning clinics that they would not advocate for abortion if they took federal money. That sounds like an unconstitutional thing under the the paradigm I just talked about, but the court found a very slippery way to get around that idea in that case, which is incoherent, so I won't go into it. Um but this is different though, because corporations are not people. That's number number one. And number two, what what the government can do to individuals is different than what the government can do to corporations. So think about a new corporation not in existence. To get this charter, you have to agree that your company will not allow people to go to church. That would be unconstitutional. There's no question of that. Um but I don't think a rule that says to be a corporation in the state, you have to agree not to talk about politics is the same kind of issue. But I do think it is a substantial question. And if we went through the doctrine line by line, your audience would be bored. But I think a a well-meaning judge could come out on this case in either direction. Which is so to put my cards on the table, I hope Montana passes this. I think it would be a great 50 states pass this, I think it would be a great thing. I think the Supreme Court will strike it down. I think it has virtually no chance of passing the Roberts Court. But that does that doesn't mean it's not worth doing, though. It's very, very, very much worth doing because that's how constitutional change happens.

SPEAKER_01 23:01

Thank you for that. That is actually that is a a one of the more cogent explanations of the unconstitutional conditions doctrine I've heard. And that's exactly right. And I agree with that. And one of the and I this comes up a lot when we talk when this uh topic is talked about. And what and people say, like, hey, it's obviously, you know, you're saying that uh you know, people who own shares can the cop corporation can't speak, you're restricting it, right? So if you if you take a step back, um, there are a couple threads that do hold through the the court's uh unconstitutional conditions doctrine. One is that it's got to affect uh behavior outside the program. So it's like, look, you you're getting your trash services and you can't speak about politics even when you're not getting your trash picked up, you know, on Tuesdays when your trash is picked up on Mondays. You know, that's so it's outside the the project. And also it's always about it's always about rights. It's always about it's it's always in this regulatory rights era. That's just that all of the laws that have been passed in the hundred last hundred years have been on this regulatory side and nobody's really touched this power granting side. So if Montana were to pass this, if somebody walks into the Secretary of State's office with a check for 50 bucks to get their general corporate charter, and Montana is only handing out charters that don't have the power to spend in politics, you know, where the corporation doesn't have the power to spend in politics. You've got all your bundle of rights in one hand and your check in the other hand, and you walk into the Secretary of State's office, give him the check, they give you the charter, you walk back out, you haven't lost any rights. You maybe haven't received every possible right you could have gotten if they didn't have their laws set up that way, but you haven't lost any rights. And that's why it's not an unconstitutional condition, because the and that's what Rust v. Sullivan said, and I agree there was a lot going on there. But at the end of the day, it basically said, like, look, we don't, the government's under no obligation to set up a program that gives you everything you could possibly have. It just needs to not restrict you outside the contours of the program. So that's the that is the reason uh I think it does pass through that. And it can be explained pretty well in that. And um, we'll get into it, and I'm looking forward to this part of the discussion. But there are we will never convince the Supreme Court that they will like this. You know, this is gonna be like eating a spider. We will never convince them that they will enjoy eating a spider. What I think we can convince them is that flipping it and constitutionalizing, federally constitutionalizing state corporation law is like a big glass of battery acid. And between the two, they're never gonna enjoy eating the spider, but they will take it over the glass of battery acid. So that's that's our task for the next year is to set that up.

SPEAKER_05 25:29

One quick note about that, and there are other constitutional doctrines that might come into play as well, but we're staying on this one for the moment. One potential way for the Supreme Court to duck federalizing all of state corporate law, which I do think the Roberts Court does not want to do. I I don't think they would have that'd be a hard spider to swallow. I do agree with that. Um so I think they would probably go about it a different way. Of course, law won't stop the Supreme Court from doing anything, so we know that. But the problem is defining what you mean by spending on politics. And I could see vagueness and over breath arguments there that might so let him give you an example. This August passed in Montana, and some big city in Montana wants to use bonds to build a stadium for a minor league or major league sports team, whatever. And a corporation does not want that bond to go because for whatever reason the corporation wants. Is opposing a bond referendum to build a minor league baseball stadium, you know, in in Great Falls, Montana, is that politics? I think you're gonna have a very you have to really think through what you mean by politics.

SPEAKER_01 26:39

Actually, oh Jeff, I'll ask you that. Opposing a bond referendum with corporate money, is that uh is that disempowered by the Montana plan?

SPEAKER_02 26:46

It is, if they're spending on it and it's and it's an actual ballot initiative or a uh a a ballot a question on the ballot. That doesn't mean they can't not spend money and talk about it all day long and talk about it before it becomes an issue. But it places in Montana, it places them the same place where that government is coming. The government can't spend to uh support or oppose an issue like that if they choose to put it on the ballot that comes from the government or or someone else. So at any rate. I I first of all, I have to say I love being between the listening to the two lawyers about this. And this is this is just as fascinating to me as it is, I'm sure, for for everyone else listening to this. So this is great.

SPEAKER_04 27:21

Yeah, and we and I'll be honest with you, guys, we love these conversations. I think we are able to, and this is just as much. I mean, I I'm so happy to hear that you're enjoying the conversation that I think this is great for folks that might be listening to this. They're hearing some of the challenge they may be encountering when they try to do this in their state.

SPEAKER_05 27:38

They're gonna try I I feel obligated to step in and make something clearer. Citizens United in all those cases, all the can Buckley versus Vileo, going all of them are based on an idea of judicial review that we should all really be skeptical of these days. Liberal, conservative, moderate, whatever. All of the questions we're talking about, except for the prior restraint, that's different. But everything but the prior restraint is a close call. I don't know if I agree with Jeff. I I mean I I think there would be pro I I if if by political speech you mean you can't oppose any referendum that's ever in the state of Montana if you're a corporation. I don't know. Uh that's going to be interesting. And you can you can oppose it before it gets. But my only point here is in a sane world, the Supreme, I'll never forget when Montana tried to attack Citizens United by saying our state is different, by saying we've had court we've had corruption in this state since 1912, and and we have a very small state, and they and and and they really detailed with specificity why what the court said in Citizens United was not true about Montana. And Montana was right about this, and the court dismissed it, you know, in a summary of opinion about it. One page opinion. How this looks is as important to how it what it does. So my reason I want to jump in here for Jeff was. Yeah, and and actually I would encourage you to rethink some of the breadth of what you're trying to do. You know, how it looks is different than what it does to the Supreme Court.

SPEAKER_01 29:04

No, and actually, uh thank you for that. I appreciate that. Here's the thing, though. This is dealing in corporation law, which is not campaign finance law. And it is not a rights discussion. It's this powers discussion which precedes rights. If you don't have the power to do something, the right to do it has nothing to attach to. And just to some of you heard this before, there let me illustrate the difference between powers and rights. None of us have the power to fly. Our creators did not give us the power to fly. You know, birds, bats, pterodactyls, their creator gave them the power to fly. They can fly all they want. We are defined as entities that do not have the capacity to fly, just can't. If the Supreme Court came to us tomorrow and said, hey, you guys have a constitutional right to fly, none of us would go to the roof and give it a shot. Because whatever a court says about your right to do something, it doesn't change the underlying reality that we are defined as entities that can't do it. And the same goes for corporations. And it's it's weird, but corporation law is very, very different from every, you know, all of the all of the First Amendment and rights-based jurisprudence that we've seen. If the state doesn't empower a corporation to do something, that's it. Like the Supreme Court literally has never told a state that it needs to give any particular power to any corporation that it creates. And they've never said that a state can't punish a corporation for going beyond the powers that the state has given it. And, you know, there's there's the um when you're dealing with rights and First Amendment and that kind of thing, you're in strict scrutiny. You know, political speech, especially, is the most protected speech we've got, and it should be. And strict scrutiny, I think, is appropriate. It's like you've got to the government's gotta jump through a thousand hoops and really threaten a tiny needle in order to pass a restriction on political speech. I'm for that. The standard of review, when the Supreme Court is looking at when a state is adjusting the powers of its corporations, it's called the reserved powers doctrine. And literally, the entire inquiry is hey, does the state have something in its law that says that it can adjust the powers of its corporations? And if the answer is yes, we're done. That's the entire inquiry. And all states have this. All 50 states have had this since the 1820s or so. And there's a string of Supreme Court cases that says, look, every corporation that's ever been created since you put that in your law in the 1800s is on notice that you could change up their powers at any time or get rid of them altogether.

SPEAKER_05 31:24

But Tom, sorry, sorry, but Tom, what if a state passed a law saying to be a corporation in this state, you have to promise to publish editorials that favor the Democratic Party and you have to publish and you have to promise to publish editorials that criticize the Republican Party? You and I both know that's unconstitutional.

SPEAKER_01 31:42

No, that's right. And that's why, I mean, basically it's been 200 unbroken years of jurisprudence on this. That I think, or if you said like you only have the power to hire white people. Yeah. That is, those are those are those are content-based, those are viewpoint-based, those affect the civil rights of people outside the corporation in a way that limiting the kind of treasury spending a corporation can do doesn't do. So that is, you're absolutely right on that. And that's why I think the actual power of a state to do this is near universal, near absolute. But as far as the Supreme Court's been concerned for 200 years, it's absolute.

SPEAKER_05 32:12

They've never seen the court would do with the law that said if you open a corporation in this state, no employee of the corporation on corporate on corporation property can carry a gun. The court would strike that down. My only court would strike down.

SPEAKER_01 32:26

So I don't think Well, no, it's it's it's if it's a question, if you can fit that into a corporate powers box, you've got a very different, a very profoundly different analysis that's going on there. We shouldn't jump too deep into the rabbit hole in this. But it's a uh, you know, it is there's a lot of things that could be fit into the corporate powers box. I'm not sure that one could. Sit down and kind of pencil that one out a little bit. But absolutely whether corporations have the power to spend in politics, which really no state ever meant to give to its corporations ever, clarifying that question really seems like it is within, absolutely within the jurisprudence that the Supreme Court has done on corporate powers.

SPEAKER_02 33:06

And basically, we've just been given a preview of what we will be discussing for the next several months, perhaps years, on this particular issue. But um, the professor and Tom those type of arguments. Thanks, Eric. Those type of arguments, and that's exactly uh the Eric's questions, but exactly the questions we get. Tom's response, you know, our response are what you heard. And that is what what's different today is we can actually have those conversations and can folks can actually what's different with what we're doing, and it kind of goes kind of full circle back to where before we explained what the Montana plan is, is where citizens and Montanans take a look at this. They're they're sick of hearing that the corporations aren't people, and they're sick of seeing saying that we need to end dark money. And give me a hundred bucks and I'll go give another speech and tell other people that we need to end dark money. But what they haven't seen is people actually working on it and coming with an idea or a strategy in a sense to do that, um, looking outside the box, you know, like Tom said, what Tom basically did was move from the First Amendment to the 10th Amendment. I'm not sure, I mean, I'll let him explain it, but I think he was researching a governance issue for a board of directors, and it kind of went down that rabbit hole. It's, oh, wait a minute. I've I've been thinking about Citizens United for the past 10 years. This might actually work. And then when he brought the idea to me, I'm like, absolutely. This is the kind of this is the kind of mechanism that we can take to citizens to say, we understand what the court has said, we are looking at it differently, we know that there's an issue, you've been asking for a solution, let's try to fix this together. Citizens have just embraced it because, regardless of their Republican, regardless of their Democrat, because they know that there's a problem there. And the problem isn't necessarily, isn't necessarily partisan. What's partisan is parties and the bosses and when the partisan politics get involved, what they want is something that you know eliminates dark money on the other side, but allows them to continue to work the way that they're currently working. So as long as it, or, or they think that, well, it's a solution that could work, but the other side isn't going to follow the same rules. So why should we even go down that path? Um, and and citizens are smart enough to understand that A, it's politics. Yes, we can get together, work on an issue, talk to our friends or neighbors and our family, and collectively present it to solve a problem that's driving people absolutely mad. And that's kind of what we've stumbled across. Um I'll let the attorneys work on the on why and how and in those arguments. I have the great job of working with just normal, you know, average citizens on how can we make their lives better in politics? How can they actually talk to their elected officials? How can they actually talk to the candidates that want to serve them in government in a different way than they've been able to do in the last 16 years? So kind of how their parents or how their grandparents, you know, they remember the time in whatever state you're in that people actually came to your door and talked about an issue that was important to you. People actually went to a government um function or a town hall and listened to folks asking questions and responded in a different way. They came home on break and didn't fundraise, but rather spent time with them. That's what they kind of want to go back to. We think this is a solution that will get them there. Um, there's others that don't, and it will certainly go through the courts. But what's exciting about it is folks understand that and they can get excited about it and move the partisanship aside. That's and that's what I think is so exciting about what we're doing.

SPEAKER_05 37:06

So as a matter of fact, I love that, Jeff. I love everything you said. As a matter of, as a matter of strategy, excuse me, not legal strategy. One of the things that I've studied in my 35 years is the art from Roe versus Wade to Casey to Dobbs. Um, and I just at the outset say I am radically pro-choice. I met my wife giving a I was giving a talk at Planned Parenthood. I devote a lot of time to Planned Parenthood, but I always, much to the chagrin of my progressive friends, thought Roe and Casey were wrongly decided. And because I think this that's not the Supreme Court's business. What I want to say to you, Jeff, is learning from that process, learning from how the right got Roe versus Wade overturned, you know, eventually. I think one of the things citizens will be amenable to is to hear whatever you think about the First Amendment, whatever you think about free speech rights, you know, and corporate rights and corporate powers and charters and all the legal mumbo jumbo. The bottom line is why are five lawyers or six lawyers in Washington, D.C. telling Montana how to run its political system? I I think I think an essential part of the battle against Roe and Casey was who are they to make this decision for us? And I think that's that argument should go hand in hand with all the legal arguments that you have. Kind of the the meta-argument that we agree, these are some touchy issues and these are some controversial issues, and they should be decided by the people at the local level. They shouldn't be decided, and and if other states want to do it differently, we can have that conversation. But Montana has the right to structure its political processes, the way Montana wants to structure its political process.

unknown 38:44

Yeah.

SPEAKER_02 38:44

And I'm absolutely Eric, you're absolutely right, absolutely right. And this week it's even we take one step further from the five attorneys telling folks now. We could even go, if you just anybody watched at all what happened in Montana politics, you may have heard about Danes and Zinke and a couple of the our current representatives and senators, and in a sense, um, you know, king making or handpicking their successor in a in a period of time, you know, which again is it's and you know, Democrats have done that too. But it's the same thing is that people it's outside the control of the citizens that folks are trying to make those decisions on their behalf that really get people riled up. And we shouldn't take that away from them. And you know, you're absolutely right, and that's certainly part of it.

SPEAKER_01 39:34

Yeah, and there's there's an even wider view of this, which is it's not just it's not just the people of the state and how they're how they should do their politics and that sort of thing. There's also this thing about the relationship between people and the corporations in their state. And all of these laws from the 1800s that basically said, like, you look, you can change them up in a time, take them back, get rid of them, fine. That was the fear in the 19th century of too much corporate power, controlling too much capital, controlling too much land, you know, controlling politics. I mean, that was that was the thing. And the this allows people to actually, this this cracks open a conversation. Uh, it's like, wait a minute, what is who do corporations work for? Like, actually, when you really, really get back to it, they don't work for their shareholders, they work for the people of the state that created them. And, you know, the only reason there is a corporation law in Montana is because Montana thought that having corporations and allocating capital more efficiently and so forth would be a good thing for the state and a good thing for the people of Montana. And if all of a sudden that creation is doing something that is screwing stuff up, then look at that. We've got the right, you know, we've got the ability to change that up. And so there is this like, I think people have been kind of like helpless about their politics for the last 16 years because they were told nothing could, they nobody could do anything about it. And for for many years before that, been kind of helpless about the what their corporations are doing in their state. It's like, actually, this is all in your hands. If you're in Montana or Wyoming or Maryland or Florida, whatever. Like what corporations do, whether they're Florida corporations or out-of-state corporations to Florida, whatever a corporation does in corporate form using corporate protections in Florida, that is up to the people of Florida. And as long as they treat everybody equally, as long as you don't knead cap the out-of-state guys in order to help the hometown guys, you're fine. Like you can adjust those powers.

SPEAKER_05 41:21

So sadly, there's another constitutional doctrine called the dormant commerce clause. That's right. That might be the third or fourth most incoherent doctrine after standing and unconditional conditions. Um and what the clause basically says is state, first of all, there is no dormant commerce clause. The Supreme Court made it up. But it is nevertheless the Supreme Court made it up in the early 19th century. So it's been around for a very long time. And what it means is a state cannot treat out-of-state corporations differently or worse than they treat in-state corporations. Now the conservatives on the court, most of them, Scalia Thomas, you know, hate this doctrine. Um, but but it does cross a this is the one area of constitutional law where like justice at least partisan politics don't play a role here. Some liberals and conservatives disagree on this. But my my point here though is there are some we know that if a state says we're going to treat all corporations better in a law on its face, that's unconstitutional, absent the most compelling interest. But the question is when do neutral laws that make no distinction between in-state and out-of-state corporations, which is what this amendment would do in Montana, if it burdens interstate commerce too much, then that's another way for the court to strike it down. The argument would be here that co that that corporations that do business in all 50 states, it's very difficult for them to submit themselves to the rules of all 50 states if those rules are very different. I will say I think your proposed amendment is much easier to negotiate than most of these kinds of laws. Just don't spend money in Montana. That's not that hard. I mean, it's you know, it's not it's not that hard not to do that. But that is a that is another constitutional issue looking in the background. And the reason I bring it up is simply this as a matter of political prediction, I just think it's really important to do these things with an eye on the ball. Your eye should not be to convince the Supreme Court of the United States because you're not going to. Your eye should be to get people so angry and so mad that maybe separate from the law, the Supreme Court will feel a lot of pressure to do something more narrow or to at least so because this is realistic. You're not going to convince the Roberts Court of this. Now, two or three of them retire or die, have different conversations, but right now you're not. So the PR battle in the long term is so important here. It really is.

unknown 43:41

Yeah. Yeah.

SPEAKER_01 43:42

Respectfully on that one, I actually I would I I got a different view on that one. Um, I think the Roberts Court is beyond shame. Uh they clearly do not respond to public pressure, and there's no amount of public pressure that would cause them to change their views on some of these things. They have overturned all kinds of standing regimes. They've Like they are, they've they just run roughshod over precedent. They've done all this stuff, all this horrible judging stuff. They are terrible. It's a terribly lawless court. But what they don't do ever is rule against their interests. And the in politics and in life, the way to get people to do what you want them to do is to convince them that your way is the easy way. And what we can do, and we can show this, and there's some fun ways to show it, is that upholding the Montana plan will involve overturning zero Supreme Court precedents. None. It comports with every Supreme Court case ever done, every statute's ever been passed in corporation law and so forth. Flipping it will be pulling out the foundations of American corporation law. It will be destabilizing. It could cause 25 states to no longer be able to charter corporations, and it will call into question the validity of every corporation they've ever chartered. And that will be something that the Supreme Court won't have any control over because there'll be 25 separate state Supreme Courts interpreting their own constitutions. There is a minefield that they would be walking into if they were to flip this. So it's not because we're never going to convince them it's the right thing, but we will convince them it's the least, it's the lesser of two evils.

SPEAKER_04 45:09

The path of least resistance. And you know, this is this kind of segues well for us into what I think. And and a little bit, I think we're we're kind of wrapping up the the uh maybe the nuanced conversation of this. But before we do, right, and I and I'm I've this is a question I've been wanting to hear uh on from you guys the most. When we talk about revoking corporate powers to spend, right? Powers, right? The distinction you guys uh so adequately made between powers and rights. The immediate question is how do we actually enforce it? You've talked about, Mr. Moore, you've talked about the corporate death penalty. Can you explain for the listeners and for us what actually happens if a company breaks the rules? And how do corporate insurance insurers become our accidental enforcers here?

SPEAKER_01 45:54

So it's this it's this uh doctrine of ultra virus, um, where it's it which literally is Latin for beyond the powers. And so if you had, you know, corporate powers started zero, and then 100 years ago, everybody was given all the powers to do everything legal or everything that a person can do. And so basically, if you're going beyond your corporate powers, you are breaking criminal law, or you know, you're going beyond the actual law. So, you know, there's that's that's how that's treated. But before that, throughout the 19th century, when states gave very limited charters, they'd say, like, all right, we're gonna give you this many powers. And then there's a space between what was legal and what you could do as a corporation. And if you did anything there, maybe, maybe this action you took was legal. Say, say you got a charter to be a railroad company. Okay, and you decided one day that you wanted to open a bakery. It's like, okay, not illegal to open a bakery, not illegal to open a bakery at all. But it is outside the powers of the charter that you were given. So that's ultraviras, and you could be punished for that, going beyond the powers of your that you were given by the state when they chartered you. And ultraviras is some serious stuff. Basically, shareholders and others can sue the officers and directors in their personal capacity for violations on that. You can lose all your all the privileges that the state gave you in order when they when they cut this deal when they chartered you, like limited liability, perpetual existence, all these good things that only the state can give you. And if it's bad enough, and if you've got a uh an attorney general with uh with a desire to do this, the attorney general of the state can dissolve your charter or you uh undo your license to operate in another state if if if you're chartered in another state and you've done this in that state. Ultra viras, like this is something that uh like you really got to dust off the law books to go see that doctrine. It has not been used much in the last hundred years because you know there were the distance between what you're empowered to do and what the law says was kind of got it all closed up. But we're opening that up a little bit. And in that space right there, you've got the corporate death penalty, you've got officers and directors being held in their personal capacity. It's not criminal law and it's not illegal. It's just be it's a it's a matter of as a matter of corporate law, you've gone up beyond your powers, and as a matter of corporate law, you can be punished for that. And again, in 250 years, the Supreme Court has never ever said that a state that punishes a corporation for going beyond its granted powers, that anything there is um is inappropriate or illegal or unconstitutional.

SPEAKER_05 48:22

You keep saying that, and I and I and I agree that that would be nice if the world was like that. But a couple complicating factors, and and this one's a big one. I don't care, I don't mean to get back into the law of this, but I I do think it's important to mention so until 1880 something, corporations were not um persons under the 14th Amendment. And the way corporations became persons is a tragic tale of woe. I recommend Adam Winkler's book about that. Supreme Court actually never held it. The person who wrote the syllabus of the Supreme Court held it. But leaving that aside, uh what you're gonna what you're gonna be up against is the following idea. Okay, corporations are now persons under the 14th Amendment, which says no state shall deny to any person the equal protection of the law, due process of the law. Someone who uh the the analogy would be a a uh I was I I I was naturalized in 1983. So before that I was a Canadian citizen. Um to become an American citizen, it would have been, I think, illegal to condition my agreement to become an American citizen on me giving up some of my political views. And I had, you know, um whether you do that as a right as a power, it's more just unconst unconstitutional condition on my becoming an You don't think that'd be unconstitutional? No, so you can't you can't mix rights and powers. There is a Berlin wall between those two. No, no, what I'm saying, what I'm saying is I agree with you that corporations should have no rights at common law. I mean they didn't, so I don't agree with you, it's a fact. Corporations didn't have rights at common law. What I am telling you is the Roberts Court is very likely to find that the raw that the corporations do have rights under the 14th Amendment because they are persons under the 14th Amendment. And if they do that, that's a real problematic thing.

SPEAKER_01 50:12

And if they do that, then they disable 25 states from being able to create corporations because which is which they don't want to do. So it's like, and and uh you know, if if you the again getting into a rights discussion, this it's like you've got to have the capacity to do something in order to be considered to have a right to do it. That's that's nobody's nobody's thought of in that way in a hundred years, and it's a very uncomfortable way for First Amendment folks to think about it.

SPEAKER_03 50:34

I like to have the solution. I think I have the solution to that. We just need to find the budget for an RV for Thomas and a high-end fishing trip for Alito, and I think we're good. There you go. It would help. Yeah, I mean, as a so this is fascinating as somebody from the sidelines, right, who doesn't have a legal background, and I love the discussions about, you know, the various doctrines and the rocks and shoals that we're looking at. You know, I want to touch on the political will, you know, I think to Jeff's point earlier. I think zooming out to 50,000 feet, I think what the citizens want at the end of the day is the ability to have good faith conversations around the topics that face the country and feel like they're not excluded from those conversations. You know, I think we get the message that this is not necessarily a slam dunk. It may not be as easy as we would like it to be. Um obviously we've got a strong proponent. We've got more of a skeptic, which I think is. No, no, no. This is great. This is the best. I mean, I mean in the form of um, you know, your devil's advocate, the person who is like, hey, here's the rocks and shoals. You know, I'm an accountant in my day job. I joke with people like in that encounter me in my professional capacity that think I'm a sour puss. It's like, look, my job is to stand on the front of the ship going iceberg. You know, my nickname is dog to get somewhere. Right.

SPEAKER_04 51:55

And you and you do it exceedingly well for yourself.

SPEAKER_03 51:58

Yeah, yeah. That's good. You know, I just wanted to kind of throw that out there and make sure that we're able to have like the full conversation.

SPEAKER_02 52:07

At its very core, voters, the citizens, you know, what they want, they want their government to work. They want whether it's whether it's a pothole in the road or how they spend their money or a fee or or what have you, they just want it to work. They want, they realize that money in politics today is doesn't work. It's broken. It's affecting everything else. You know, so you just kind of take, and it's almost, you know, I I try to keep it very, very simple with folks. It's like it really is that simple. They just want things to work. So, and and that's why you know folks, you know, if you know, collab onto this because they think it could be a solution. Again, I mean, we've heard now, this has been a perfect discussion on on how, you know, when we get to that point, you know, what the arguments are in court and all of that, with um, you know, that's what that'll be. But when if you're just talking to whether you're a Democrat, a Republican, a libertarian, conservative, liberal, progressive, what have you, they they all tell you the same thing. We just we just want it to work. I'm sick of the ads. I'm sick of I'm sick of picking up a paper and seeing that that some company wants to spend a hundred million dollars to tell my what my my representative not to not to support or to support AI, because those numbers to them are are you know, it's they're not in reach. You know, they're making fifty, sixty, seventy thousand dollars a year. They have a family of, you know, three or four, you know, one or two, three or four kids. Um, that's what's important to them. And they just, you know, when people start talking about, oh, it's not a big deal, you know, from the party level or from the election, yeah, you know, and they're turning around and spending in Montana in the last race in the Senate race, $180 million just on independent expenditures alone, you know, twice that for the entire it's they can't fathom that. And before Citizens United, and I like to point this out, before Citizens United, um in the in the in the very same race in a Senate race in Montana, federal Senate race, and independent expenditures $38,000. That's something they can wrap their arms around. So, oh, that was a lot of money, you know, in 2008, wasn't very long ago, but even that was a lot of money. Now it's they can't even fathom it because but that's why it's gotten, you know, so it's almost, you know, folks have almost given up until we, until we kind of say, oh, we got an idea for you. It's called the Montana Plan. It's like that's the reason people are, you know, embracing it. And so we just tried to try to take it back, keeping it simple. I love what what Eric said earlier about um, because they absolutely understand um this other, I want to say class, but this other, these other folks are trying to tell them exactly what how they're how they should be thinking or what their lives should be because they may know better. They know that's not true. They just know it.

SPEAKER_05 55:05

Yeah, make it a federalism issue. This shouldn't be decided. Absolutely. This should not be decided in Washington, D.C. This should be decided in Montana and Tennessee and Florida and New York.

unknown 55:14

Yes.

SPEAKER_01 55:15

One of the things I think uh we'll all agree on on this, Eric and the rest of them will agree, is that there's ordinarily, if you've got something going on at the federal level, then you've got something going on at the state level. The feds can just say, like, no, no, no, we got a supremacy clause here, we're in charge, our rule trumps yours, our laws trump yours, you know, you can't do that. With with the creation of corporations, that is a police power of the state. It is the Supreme Court has said over and over again that that is the jurisdiction of the states. It's can't just be that Congress can pass a law and just say, like, nope, you can't do that. That is there, there is this 10th Amendment that says, look, whatever the Constitution assigns to the federal government, you've got everything else belongs to the states and the people. Regular business corporation, nonprofit corporation, all that kind of thing, that belongs to the people and the states at the state level. So it's it is a it is a it is a very different issue. And yes, I think the state's rights conversation here is a really good one. I mean, and and we're seeing this in Montana. Jeff's seeing this every day. It's like Montana's taking back Montana's politics. And it's it is actually, you know, there are there are other wrinkles that Eric and I will probably grab a beer over uh at some point and and enjoy that conversation mightily. But you know, when it when it comes down to the base of it, you know, it is people acting at the state level to to improve their state's politics. Yeah.

SPEAKER_05 56:28

So I read your materials a little bit, and I one one quick suggestion while I have you guys. There is a horrific footnote, I think it's a footnote in Justice Scalia's concurring opinion in Citizens United. Justice Stevens argued in Citizens United in a very strong dissent that this that everything Citizens United did was inconsistent with the original meaning, which he's trying to get to the conservatives, the original understanding of corporate law. And he's right. Justice Stevens was 100% accurate, and everything Tom just said is right about the historical and most of your materials talk about the 19th century. But Scalia drops this horrific, hypocritical, malevolent footnote where he says, even if Justice Stevens is correct about the history of corporations, and of course Justice Stevens was correct, just as Tom is correct right now about the history of corporations, the role of Scalia really said this. The role of I'm paraphrasing, but the role of corporations in our country has changed so dramatically that we might need different now for a I mean I call Scalia a fake originalist, but for a self-identified originalist to say that sentence, that's something Justice Brennan or Marshall would have said. You wouldn't expect that from Justice Scalia. But that's the hypocrisy, that's the hypocrisy you're up against. So my little kernel of advice here is make it about policy and make it about today. You won't win the historical arguments with these people.

SPEAKER_01 57:52

You just won't. So actually, you know what? You've uh you've brought up my favorite footnote in this entire debate because what Scalia actually said, like we're and you're you're exactly right. He was just smacking back Stevens and saying, like, look, common law, blah, blah, blah, what is that? But what you would think he would have cared about that, but leave that aside. You would think, but what Scalia actually said, and this is key, this is super key, and nobody picked up on it at the time, is even if common law was interpreted, blah, blah, blah, that would have nothing to do with whether political expenditures that were authorized by a corporation's charter could constitutionally be suppressed. And that is the key right there. Even Scalia, even in Citizens United, even in concurrence, said, you know, yes, this is all possible if the charter of the of the corporation allows it. And whether it's the actual charter that was written up by the guys who incorporated it or the state behind the charter that set the powers, underlying powers. You know, that is what that is what makes that difference. Actually, the full text and straight text of that uh footnote is one of the strongest things we've got going for us is that even in that case, it was the charter setup.

SPEAKER_05 58:59

They'll say it's a concurring, it's a footnote and a concurring opinion on an issue that we were not discussing. In a 5-4 decision makes the difference. I can see footnote, I can see footnote one in the majority opinion. Justice Flea said X, but of course, we weren't resolving that issue at the time, and blah, blah, blah, blah, blah, blah, blah.

SPEAKER_01 59:16

But so the the other thing that we've got going for us, which is a little bit of history, a little bit of current practice, is this idea of national banks. They were chartered starting in the 1860s by the National Banking Acts of the 1860s. And they have an enumerated list of powers, like, you know, you can have accounts, you can checking savings, all these bank powers. And then there's a clause at the end, come at catch all that says, like, or anything that's incidental to banking. And these powers have always been held very tightly to banking. For our 160 years, there's never been a suggestion, and there's a lot of guidance that says the other way, there's never been a suggestion that national banks that have been created by Congress here, one of the few things where Congress does create corporations at the national level, that they have the power to spend in elections. So if the if the question at the end of the day here is is an American sovereign required to create a corporation that has the power to spend in elections? We know that that answer is no, because national banks have been doing it since the 1860s, and the constitutionality of that has never been questioned. So it's a, you know, there's there's, you know, and and they exist today. We've got a thousand national banks in this country. They're they're big banks. And so that's there's a there's a lot to this. And the it I was surprised diving into this just how rich and powerful the corporation law side of this is, because it all operates before any rights attach. Like you're you're you're creating corporations out of clay, and what you create may have rights or not have rights, but it matters what you create.

SPEAKER_05 1:00:50

One last plea about this. After Citizens United was decided, my colleague Ann Tucker, who no longer my colleague left, but she was my colleague at the time, was a corporate law expert. She and I organized, I think, the first symposium ever that brought together corporate law scholars and First Amendment scholars to discuss Citizens United. And uh Jamie Rasting at the time was a law professor at American, he was there, but also a lot of corporate people were there. And one thing every single corporate law person who was there said, and I've since asked this question to other corporate law professors, like Professor Lemley, who you talked about in your in your work, is that the Supreme Court has no understanding of corporate law, doesn't care about corporate as much as free speech experts thought that the Supreme Court got First Amendment law wrong in Citizens United, and a lot of what they said I think was wrong, they got corporate law even worse. So again, I'm going to make this plea to you. Your goal is what Jeff is doing. Your goal is to get people angry and to get people mad and to get people riled up, um, and to get even you know people outside of Montana on board on this and to wage a public relations coup that kind of thing. Which won't which won't be hard on this issue. Unlike abortion, which is 50-50 or you know, 55-45, this issue is 70-30, like you were saying. But don't lose sight of that in your zeal to convince the Supreme Court to get this right, because the Supreme Court's not going to get this right.

SPEAKER_03 1:02:19

The you know, if I may jump in there, like part of the point, right? You know, moving to a more political conversation about how to move this forward. You know, I'm glad you mentioned both abortion rights and the PR campaign in the same sentence, Dr. Siegel. Because part of what's occurring to me here is just for sorry, not Dr. Sorry, sorry, my apologies. My apologies. Layman's screw up. We could, in terms of public pressure, you could use this the same way the abortion issue was used to drive public policy, to drive political fortunes by individual politicians, to the point where individual politicians had to come out and say, if I'm made senator, I will confirm, you know, justices who feel this way about this issue. So just war-gaming it in my head, it's like if it passes the Supreme Court, cook, cool, we're good. If it doesn't, you use that as a rallying cry and say, hey, we know everybody wants this. So we need to start looking at the long game. We need to start making sure, and like you say, activate public anger and say, this is gonna be a litmus test for the candidates that I vote for. It's gonna be a litmus test for a president that I vote for, that they're gonna be willing to push this. And as justices retire, they're gonna use this as another litmus test for what kind of justices we want to put on the Supreme Court, you know? So just throwing that out as a way to look at overall strategy over the long term. Well said.

SPEAKER_02 1:03:39

And Eric, you're you're exactly right. And we rarely, and I'm I'm across I'm I traveled across the state now several times and and talk to folks every day now. And with the exception of podcasts like this and others, where those direct questions come up, and that's the reason that's the reason we have these, because it's important to have that conversation. You're absolutely right. What the what the citizen wants to talk about is how they fix it, how their life can be better, and what and what the issue is. And um, they know that there's too much money in politics. And it's almost like a broken record for me, just like you, and they want to help fix it. And I love that. I mean, it's when we first started this, it was kind of interesting because in Montana, probably like elsewhere, um, where I'm starting to learn more and more about how other ballot initiatives in other states, the states that allow it, um, how it works. But there's then been this movement from, you know, basically this top-down, these top-down political folks throw a bunch of money at an issue and they pay to attempt to fix it, in a sense, you know, whether it's paid signature gatherers and all of this. And really, I mean, they almost forget about the voter until the very end, or uh the citizen until the very end. We've we've had to do this completely really the old way, and I hate to say that, but really the old-fashioned way. Back to bottom-up grassroots, that um it's getting people excited about what the issue is and that they can have a hand in fix it. Because A, we're not gonna have the money to pay the signature gathers because the people that pay the signature gathers, we're trying to change the way they do business. The citizens absolutely understand that. So we've heard from the very beginning, I wouldn't likely volunteer to gather signatures as a citizen until now. It's didn't think I'd be wanting to do that again as a volunteer until now. This is one of those issues that I will gladly pick up a clipboard and walk down the street and and and gather signatures.

SPEAKER_01 1:05:42

And between now and June 19th day, Jeff has an incredibly difficult organizing challenge to get uh to get all his signatures done and set and all that. But he's got the easiest sales job in the world. That's like, I mean, you you tell people like, hey, you know, we got this to uh we're gonna uh you know make citizens united irrelevant people are like like they're you're in you have them at hello i mean it's so it it's a it's a strategy that most people haven't tried with ballot signatures but it's like it's like the the enthusiasm Jeff's just gets just by talking about the topic is extraordinary.

SPEAKER_00 1:06:17

Yeah our our adversary is is is literally the calendar so I mean and that's you know that's the big the biggest barrier for what we have now because of some of the the hoops and I know we'll talk about this later that the hoops that we have to jump through our our biggest barrier is time and the calendar and not necessarily the issue because of what what Eric said several minutes ago because we have taken it to the people we are getting people to talk about that you know what's important to them in their lives not necessarily why um you know Scalia or Roberts would make this decision or that decision because you're absolutely right that would go I don't want to talk about that but at any rate it is exciting to talk about Jeff says sometimes for the group I'm dying to hear yeah just just a few things um first off it's a pleasure listening to Brilliant Minds Tom Jeff Eric I really appreciate you guys I'm learning uh a lot to Jeff to your point uh I I'm a history guy I absolutely love history I always like to compare our current situation to Gilded Age 2.0 uh it has a lot of similarities and we all know that what preceded the the Gilded Age was the progressive era right and this snowbought into momentum that led to this the 17th, the 18th and 19th Amendment to uh the the Tillman Act in 1911 and so on and so forth. And I'm hoping you know I'm hoping uh uh in layman's terms that we can replicate that progressive era momentum with everything that's happening and I think I think this is phenomenal right because it has such bipartisan support regardless of where we're at and it seems like Montana and Montana is a great testing ground for this you know like again the the reason why I mentioned the 17th 18th and 19th amendment is they all started in states right ironically if we can deny ourselves drinking alcohol I think we can uh we can hopefully tackle the the issue of uh money in politics if I can I do have a question for each of you if I can ask if that's okay Jeff I want to start with you really quick basically I want to just ask like how can we build momentum and where can people go right now you know as listeners you know or on YouTube or the podcast where can they go right now to find out more information to help support you to help maybe build momentum in their own states in their own communities yeah first of all thanks Jesse for that question uh they can go to transparentelection.org and we we've recently just updated the site um it used to be mostly Montana now we've updated the site to to explore where other states are at and what they might be doing other whether legislatively or getting interest on the ground you know so that's the place to start and then from there we have several different places you can go to to find all kinds of resources and information about either specifically Montana you know you'll find links to what Tom's doing and and and what other states are doing and the folks that we're working out and reaching out to to chat with.

SPEAKER_02 1:09:08

So that's the the best place to start. And if they forget that just go to Montanaplan.com which is easy to remember and they can get to the same places eventually as well. So but thank you.

SPEAKER_00 1:09:19

Yeah no fantastic uh considering me recruited in Connecticut once the snowball gets started here as well to Tom I wanted to ask who would you select so assume this all pans out right we get multiple states to do this this goes before the Supreme Court who would you select to make the argument before the court and what opposition do you expect not just in the courts but outside opposition for corporations or other groups thank you.

SPEAKER_01 1:09:43

So yeah actually I got asked in in uh one group I was talking to that said are you going to argue this before the Supreme Court I was like oh my God no no there is a there's a small set number of very experienced appellate litigators who argue before the Supreme Court and it would it would be it will be one of those folks. If we're if this is going well it'll be one of those folks. If it's going extremely poorly it will be me. So uh yeah that is that that is not I've been a litigator I was not good at it. So but the opposition's been interesting actually and I don't think it's I don't think it's gonna c fall exactly the way we I don't think we know exactly how it's gonna fall. We actually had a group of folks legislators who were introducing a bill in Colorado and they like the day before they were going to introduce the bill they got a huge amount of pushback from progressive C4s and labor who basically said look like we've adjusted to Citizens United. We're making bank you know raising dark money and bringing in corporate money and then spending in politics and not having to disclose anything isn't that great. And we don't want to give that up uh you know especially when Elon Musk can still write a $250 million check and so forth. And there's there's something to that but it's it's actually the the first wave of resistance has been progressive groups that don't want to give up their current fundraising. I mean you can turn to them and say yes but you've been getting your asses kicked for the last 16 years both in fundraising and on the policy side. So it's like that is I can see how you're comfortable with what you're doing right now and you know how you're going to make next month's budget on that but you a change would it might actually do you well. If this change happens, you know, it'll be you know whether there's a business corporation or a union or a or a C4 nonprofit you know basically they won't be able to write checks under the treasury anymore. You move it back to the the to political action committees, which is what it was before Citizens United and say like hey, you know, all right you know this this this uh union it's like you can't just write it out of your main checking account where mandatory dues are anymore, which is real easy, great. You have to beg people to to donate to the pack. That is that's what everybody's gonna have to move to. But in terms of opposition from regular business corporations, I'm not, it's not clear to me that they're gonna be up in arms about this because I think in a lot of the political giving that a like a Fortune 500 company does like hey give a million bucks to this super PAC or else you know you got to pay to play here. I think they consider a fair amount of that to be extortion and they'd rather take that million bucks and and use it on lobbying, which is much better bang for the buck and you know things like that. So your ideological C4s, like these, these shadowy nonprofit dark money groups that basically only exist to bring in a bunch of money that they don't have to disclose and then spend a bunch of money they don't have to disclose, they'll be killed dead by this. You know, obviously they're going to oppose it you know no doubt. The Fortune 500, it's not clear to me that they're gonna actually um freak out about this.

SPEAKER_05 1:12:35

I'd go further than that. I would go further I I think well leaving aside the recent tech awesome if if we'd had this discussion 20 years ago or 15 years ago I would have said as a no-brainer um Target does not want to have to be tempted to do this. I think they'd be thrilled I I don't know about the tech billionaires. I think that's a different conversation but the traditional Fortune 500 I think unfortunately tech the tech companies not owned the world but I do think that the the traditional I the traditional um Walmarts of the world would be relieved of this allegation.

SPEAKER_02 1:13:11

That's brilliant I'd never never considered that actually yeah I I agree and I and I love the the depth and breadth you've got a little bit more time left there's a couple things I would like for us get to let me just make one little quick point on that because this is the pushback we're getting here in Montana it's those the the larger association of those folks saying that they speak for all those either no matter how small they are or how large they are they say they speak for those and saying we'll oppose this. So while I I you know listening to Tom and Eric, I hope corporations start thinking about that and thinking how they're just particularly the smaller businesses in Montana because 90% of business in Montana is small mom and pop Main Street, you know, small business start thinking like they're just as affected by money corporate money and dark money in in elections as the customers are that are coming in and buying their products or services. And they're the last people that want to involve themselves in electing a a candidate or or supporting an issue. They just want us to sell the best products take care of their customers be a good neighbor help their community and their their local government out and feed their families and and just be happy go lucky modernist that just happen to have a small business. So I'm hoping that that's the part that they embrace and not where the money comes in saying oh no they all support this idea that we, you know, they're going to be run out of business or whatever they can't spend in politics. And we know that's not the case.

SPEAKER_05 1:14:42

Jeff what do you how do you answer the question about ideological not for profit corporations? Isn't it hard to tell whether it's the ACLU or Alliance for freedom which is really alliance for not freedom but um isn't it isn't it complicated when it comes to ideological nonprofit corporations?

SPEAKER_02 1:15:02

The nice part is they've been open to the conversation and the thing that we have going for us it's their members, their volunteers, their rank and file whether it be a union or membership or the folks that they depend on support what we do. What we're doing pathway now is not writing a check from their their treasury or their orgs treasury. It's rather like they did before setting up a separate pack, raising monies from those same individuals that are supporting what they do and if they want to actually spend in politics or I say things like you know what they get to be they get to be damn good social welfare organizations and going out and educating folks about why they wanted to be a social welfare organization in the first place. They might deny it but you know that's they're created solely to spend money um in in politics.

SPEAKER_01 1:16:03

Yeah and people understand that so I don't know Tom what's your answer what's so to be to be clear on this you know the ACLU they litigate they educate on issues they lobby they do all kinds of things that they'll still be able to do which a C4 was set up to do under the tax code and that's what nonprofit organizations like that are supposed to be doing the one thing they won't be able to do is to say vote no on question B or vote against Senator Schweitzer. So they will they they can't do that. That kind of spending on ads and that kind of thing will be have to be done by a PAC. If they want to endorse a candidate or endorse a ballot issue and tell their membership about that, no problem. You know, that is not election spending all the things they could do before Citizens United they can continue to do and all the really as Jeff said all the things that make them a good C4 if you if you want to talk on an issue you can talk about it all the way all you want is spend all the money in the world you want on it. You don't have to disclose your donors and so forth that's that is okay with these groups. But when it comes to when when that issue becomes a ballot issue and then you're you know telling people to vote for or against it, okay. You know, you got to pass that off to your PAC, which is all disclosed. I mean that's the big thing. At the end of the day here, all of the money that is being flowed through our system right now, every dollar will come from an individual and every dollar will be disclosed. So it'll be unlimited is still throwing through flowing through super PACs and that is still a problem. That's got to be a separate fix. But you know if we can get all of our money to be coming directly from individuals and all of it disclosed, we're pretty good.

SPEAKER_05 1:17:33

Yeah so that's where post-Citizens United decisions come in that no one ever talks about like no one ever talks about the McCutcheon decision which I think is just one of the worst decisions in American history. When Alabama businessman wants to write a check to a politician in California and various rules said he couldn't do it and the court said writing that check was speech. And of course writing that check was not speech writing that check was spending money when I write a check to my air conditioned repair man I'm not speaking. When I write a check to buy Atlanta Hawks tickets which sadly I do too often I'm not I'm not speaking. Money facilitates speech of course but it's not speech that's I what I what I found in my travels talking about this line of cases is people are incredibly receptive to that notion that just because you're writing a check to a politician, that does not mean you are exercising your free speech rights under the First Amendment. Because when you write a check to an economic repair man, we know you're not doing it. And I would urge you to make those arguments as well.

SPEAKER_02 1:18:36

Yeah.

SPEAKER_01 1:18:36

And this idea that states set up you know state pension funds and states set up you know municipal bonds and so forth and they set up business corporations that sell stock and so forth and so on. They're all investment vehicles. And basically what kind of what this one way boils down to is like look look at a municipal bond. You wouldn't think that a state would be required to create a municipal bond that had the power and right to speak in politics somehow. That would be absurd. But it's like that's the kind of the same thing as a business corporation. These are these are investment vehicles and they are you know absolutely just 100% state creations. And so that's they're also persons under the 14th Amendment they well but they are but you have to you have to yes but you have to get to capacity first and give me capacity tell me what those powers are and then I can tell you what universe of rights we're working in. And that is the way it works. It's so not for people that's the thing if you confuse with people it does not work that way with people at all only corporations.

SPEAKER_00 1:19:31

So mayhem I I do have one last question for Eric it may be a segue into the one that you want to get into and I apologize if I'm jumping the gun but I just I'm really interested to see what Eric has to say. So Eric it sounds like you believe this is at least worth a shot if we make the momentum at the state level. And so I guess my question is from your experience and from what you know how can this go south? If Citizens United was correct in its ruling and in its theory but the consequences that preceded it or that came after were catastrophic what do you see in this particular plan that could potentially be equivalent to that first of all I'm not I'm not mildly in favor of this I am very very very strongly in favor of this I respect what Tom and Jeff are doing immensely and I I am behind it 100%.

SPEAKER_05 1:20:16

I just feel like you know this podcast is needs kind of the devil's advocate you know thing. Because they're going to find that out in the real world. Here here is my biggest concern and it goes back to what happened in 2000 when was it around 2009 2010 in the gay rights movement. In the gay rights movement they were slint roughly half of the activists wanted to bring same sex marriage to the Supreme Court you know as quickly as possible and get and get a good decision. And they wanted Ted Olson sort of you know George Bush Solicitor general and by the way my former boss that gives it done a crutcher they wanted Ted Ted Olson and David Boyce both of whom argued Bush versus Gore on opposite sides they wanted they wanted to create this national movement to get same-sex marriage recognized by the Supreme Court and you couldn't find two more high-powered lawyers to do it especially Ted who was always a conservative so he's on the cover of Time magazine back when that was a thing as you know because he was a conservative arguing for same-sex marriage the the anti-argument was if we lose in the Supreme Court it'll set back gay rights for a century. When I was asked that question my answer was very clear very obvious one side was right one side was wrong there are five votes you have four liberals in Justice Kennedy and they are all going to vote for same-sex marriage get there before Justice Kennedy dies is basically my and before the court changes this is the opposite though so so the fear that the gay rights movement had that a Supreme Court decision against same-sex marriage would be worse than no decision at all and that's a correct by the way that's correct except I was sure what Justice Kennedy would do so I wasn't worried about it. Here your biggest public relations disaster kind of would be getting it to the Supreme Court at a time when we know the court is not going I'm sorry Tom but the court is just not going to hold it. And then the movement the the steam goes out of the movement you know everything deflates and it's kind of like Bowers versus Hardwick for those who don't know what that is the Supreme Court once upheld a Georgia law that has interpreted uh prohibited private same-sex sex among adults and nobody was being arrested in Georgia for that it was a law it had no consequence but the court upholding of it anyway set back gay rights for a decade my so my my warning here would be to not make this ever about winning in the Supreme Court. That's not what this is about. This is about changing hearts and minds of people across America to birth a political movement that when the court is more amenable to this kind of thing will be strong and and aggressive and don't equate a loss at the Supreme Court with a loss of the movement. That's the and and game that's what abortion advocates you know abortion people against abortion did for decades. They kept losing they kept losing and they kept losing to Republicans. I mean the KC court that upheld Roe versus Wade had eight Republicans on it.

SPEAKER_01 1:23:24

Eight so don't make this about winning in the Supreme Court that's my advice so the the the note on that and I I I I I I do agree with a lot of that when I was at the Federal Election Commission we were terrified about the next campaign finance case that would go up to the Supreme Court because I think they are like this close to getting rid of disclosure requirements like they are just they're getting ready to just pull the rest of the foundation out from underneath campaign finance law. And but this is not campaign finance law. This is corporation law. And so if they go in and absolutely like pull the foundations out and so forth, it's like I'm not that concerned about that. That's that's the it's American corporate world's business and they they've got to deal with that. It is unlikely to do any further damage to campaign finance law because we're not in that realm.

SPEAKER_05 1:24:14

They're going to put it in that realm. They're going to put it in the it input citizens united in the context of prior restraints which would have been a stronger argument for them but they didn't even do that. They're not gonna they're not gonna characterize it the way you think they're gonna characterize it.

SPEAKER_01 1:24:26

No, but at the end of the day they invalidated a part of BICRA that that was a regulation and they said you can't enforce that anymore. This is very very different. If they if they if they federalize and constitutionalize corporation law that'll have huge consequences not so much for campaign finance law on them.

SPEAKER_02 1:24:44

I think the good part is that we're gonna have lots lots of very positive things happening on the ground not only in Montana but across the country before it gets to that point that that Eric is making um that we will be solely focused or at least we're believe me we very very seldom talk about the Supreme Court we're very focused on you know um that's that's the those citizens um and and what their experience is uh and uh you know how we get this on the ballot and then how we get it passed. So that's the positive thing. And we will get there and we will have those discussions and people will go I don't want to listen to that. I just want it fixed like I said to go back about an hour ago. Let's just fix it, damn it.

SPEAKER_05 1:25:30

I agree I like that Jeff I like that.

SPEAKER_02 1:25:32

I think it's the right one quick observation I'm gonna use the air conditioner anecdote that you you laid out. So I like that too thank you.

SPEAKER_03 1:25:40

One um observation on the political fight to expand on what I was saying before about making this a litmus test, right? If you have broad political base for this, you know, there could be back room conversations with Thomas and Alito it's like hey if y'all don't get on board we Congress might suddenly find their appetite to impeach a sitting court justice for corruption.

SPEAKER_01 1:26:02

It'll not be over this I wish the number of members of Congress who talk the talk on Citizens United but would never walk the walk on Citizens United is large.

SPEAKER_03 1:26:12

Yeah I'm talking about the longer term strategy right if you make this a litmus test you get people into Congress who've said that this is what we're here about. Yeah it could be I'm a dreamer I have a question for Eric on this.

SPEAKER_05 1:26:24

If if Montana does pass this, Jeff gets it on the ballot, Montanans pass it 7525, pop through the district court in the Ninth Circuit, if one state has made this reform, does the Supreme Court grant cert and take the case or do they wait or what would be your handicapping of that I will remind you again I hate to be Professor gloom and doom here but that's kind of what I have in my I want to remind you that after Citizens United, the Montana Supreme Court upheld a law in Montana that was tailored to Montana that argued that the facts of Citizens United that were portrayed in that case while maybe generally true about New York and California and Florida were not were not true about Montana and we're not undercutting a Supreme Court decision here. We're saying that decision doesn't apply to us because the facts you relied on at Citizens United clearly don't apply to a state like Montana you know with only whatever the population is and you know the the small government and all that stuff. And the court didn't even have oral argument they reversed it summar summarily coming from the Montana Supreme Court no bastion of liberal you know it's not the Ninth Circuit the court reverses all the time. There's going to be an enormous hostility among the conservative justices to this idea. And they are not going to talk the talk in terms of corporate law no matter how hard you try. But your job is not to convince the Supreme Court of this by the way they will t they they will take cert and they will reverse if it happens if it happens We'll take the first one. They might even and they might even do it summarily again, um, which would be awful. Summarily means there's no argument, especially now with the rise of the shadow docket because back then the shadow docket didn't even exist. Now, you know, so I I don't know. I think I think Jeff's side, I I really I I know Tom that the lawyers have to be involved in this, and I know that that that that that there are a lot of law professors like me out there who want to dilute the court's decisions here about campaign finance reform. But but the but because we haven't such an it's not Justice Kennedy and four liberals on gay rights. It's the opposite of Justice Kennedy and four liberals on gay rights. I would not lose track of that in the public relations battle for also make the politicians pay who don't support this, make local judges even in state elections, you know, make this the reason why I went around the country for decades saying Woe versus Wade and Casey, despite my I'm radically pro-choice, hurt the left more than any two decisions in Supreme Court history, other than maybe these decisions, was because on every issue other than abortion, it killed liberals. On every issue, it gave Jerry Fall and senior and junior their rise in politics. It created a whole social movement of conservatives. It's why, it's all that. Do that on this issue for the left. And on the long not for the left, not in the left, it's for the people in favor of it. This cuts across left and right. And make that the goal. A long-term political movement to take power away from the Supreme Court on this issue, restore it to the people, and the state, more importantly, to the states, and let states run corporate law the way states want to run corporate law. I do like that message. I think it's a great message, but it has to be a public relations thing because perhaps in a plane crash that Supreme Court justices got, you know, or retirements. It's just they they wouldn't issue an opinion that's going to be terrible.

SPEAKER_04 1:29:52

Yeah, and hey, listen, I I love this, and I think I think we've we've certainly um gotten into the the points of this where we think there's there's uh still some some open-ended questions specifically regarding the Supreme Court and what their posture is gonna be when this comes across their desk. I think what we agree on is that this is what is best for our country, that this is the best avenue I think any of us have seen to get around it's our best shot. And I think we all know that. And I think the beauty of this is that people are interested. You guys have done a fantastic job of really, and I mean, this has been some some pretty in-depth stuff, but I think that for the average interested person, i.e., the type of person that's listening to disorderly conduct, they're gonna very deeply understand what you said here. And I think that people that are listening to this are gonna want to know how do we do it? So let's transition into, I want to hear top three uh around the room for what we can do to get this off the ground, where we are, because I think there's a tremendous amount of importance in exactly what Jeff, the way that you're approaching this in terms of getting people excited. Professor Siegel, I think you've made an excellent point about the importance of putting pressure on the Supreme Court, right? And and I've I've said, you know, and we talked about this when we had you on last time, Professor Siegel, the Supreme Court answers to nobody. But legacy is important. And we have seen that, we have seen several, several occasions in which pressure from the people, I think, matters deeply. And so I think that that pressure is important. And then, Mr. Moore, I also want to know from your perspective, you know, how are people having these conversations? And this is kind of how I'd like to wrap this up is really express to people this is how you start it. This is how you start the advocacy, this is how you start the process, this is this is how you uh get going.

SPEAKER_02 1:31:32

I'll I'll start, just jump in here. And there's basically three ways, you know, we can we can do this in every state for those states that that have a constant, you know, the ability for direct citizen democracy, uh, constitutional initiatives or ballot initiatives, strong from the people, start organized, or through through their legislatures. Every one of those options for the states that have the first two, or if your state only has the legislative option, all every single state has to educate and organize and empower the folks to get behind the idea and work together, even if it's legislatively. The problem with legislation, you know, and I use I was I served in the Montana legislature. I understand. Once you introduce a bill, what comes out on the other side could be completely different. They lose you lose complete, you know, you may you may introduce a bill with absolutely no loopholes and it comes out, you know, looking like Swiss cheese, you know, and that you have no control over. But what we do have a control over is, you know, the citizens in that state working together, talking to their legislators to make sure that doesn't happen if it's moving through, support those types of bills as as they're working through, oppose those type of amendments that might dilute what the bill does and continue, continue to talk about it with your friends, your family, um, your neighbors, just like we do in Montana, or just like you were doing with the ballot initiative. So what we've been, we've been focusing on, while we plan to just focus on Montana and shepherd that through, just because we have been kind of an inspiration and people just talk to us, which is great. We want to empower those groups in those states to do exactly the same thing and assist them with whatever resources we can to get that groundswell off the ground, basically putting into practice what Eric's been talking about for the last, for the last hour, just focus on what's important and making sure everybody understands the public relations side of this and keeping that excitement state to state. If we're successful in doing that, Tom and his groups and his folks that are working on kind of those legislative models and and and talking with legislators and how to um, you know, what's important to get introduced, et cetera, et cetera, we can get that done. But it's going to take some time. People, you know, just have to go out and look and just literally raise their hand and say, I volunteer, I want to support this, let me know how we can get that done. And we will start putting you, we will start if when we can, put them to like-minded folks in their states with groups that are supporting those types of efforts, and we can collectively move this along in a format that hopefully doesn't have those loopholes and doesn't change how we see it actually functioning and actually making the mechanism work. Um, and whether it's the Montana Plan or the Ohio Plan or the Wyoming plan or the Pennsylvania Plan or the Georgia Plan or whatever they might end up calling it, we all have a say in how that gets done.

SPEAKER_04 1:34:30

Yeah. Okay, Mr. Moore, what are your what are your biggest uh takeaways for the listeners? What are the top three? Do we kind of hear what's to do on the ground from a policy standpoint? What are the things that folks you might be listening that are more involved on the policy side of things or maybe tied into their state legislatures or activism a little bit more? What can they do on the policy side to get this going?

SPEAKER_01 1:34:51

Yeah, so the first thing from the legal point of view, you know, I just we need to get one state passing this. And right now, Montana is far and away the the strongest state on this. It's got the best language, it is the furthest along. So Jeff's been too polite to mention this, but you know, if you go to transparentelectioninitiative.org or MontanaPlan.com, like throw some money, Jeff Swank. You know, they they they're gonna need some bucks to get these signatures. And if that case, if that goes forward and it passes in Montana, and we get the federal case we're looking for and it goes to the Supreme Court the way we're looking for, and I appreciate Eric's answer on that, because that's been an unanswered question about whether they grant cert on just one state passing this. If the day pack comes when the Supreme Court says, like, yep, you know what, we can't find a way to flip this. And, you know, that is that is my job to figure that out how to get them to that in the next year or two. That will be the day that every state legislator in the country will get 500 calls from their constituents saying, Leb, we want you to pass this today. And so that's a that is, you know, basically getting it done, getting one done somewhere is the most important thing right now. But we do have bills moving all over the country. There are bills that have been introduced in California, Georgia, Hawaii, Maryland, Minnesota, Missouri, New York, Rhode Island, Vermont, and Virginia. So far, the Virginia one didn't get out of committee. The other nine are active. Sponsors have bills in hand in Kansas, North Carolina, and Pennsylvania. And Jesse, you'll be happy to know that uh sponsors in Connecticut have vowed, if they're in office next year, to uh sponsor the 2027 legislative session because it's a longer session and they could do that. But it is moving all over the place. And it actually, in some ways, you know, Jeff's got the easiest sales job to the voters of Montana that you could possibly have. And I've got the easiest lobbying job in the world. I've got state legislators calling each other, their friends in other states and saying, like, hey, you should do this. And it is, it has just kind of grown up organically. And a lot of people have just, instead of going to the model bills that my organization has put out, they just go to what Jeff has on his website, grab it, and throw it, you know, throw it into a model bill of their own. And it's, it's, it's been great. But it's, you know, right now, the from the legal point of view, uh, you know, just do it, everybody should do everything they can to help Jeff pass this in Montana, get it on the ballot and get it passed. And then after that, you know, let's talk to your legislators and say that you want this. One thing, too, that we haven't really talked about is there's no reason Republican state legislators can't glom onto this. There is absolutely nothing ideological about this. They don't like dark money-funded primary challengers forcing them further out to the edges, just as progressives don't like that. Um, you know, nobody this doesn't benefit anybody. So there is no reason that you can't have a bipartisan coalition of legislators in any state of picking this up and running with.

SPEAKER_05 1:37:28

Couple of thoughts, one of which, well, both of which are going to seem probably very um high in the sky, but here's one. Get some celebrities on board. I mean this really seriously. Um and that's a local thing. Whoever is a big celebrity in Montana is different than is a big celebrity in New York. But that, you know, and even and the more moderate to conservative they are the better. Because Citizens United, that phrase is kind of associated with Democrats and Hillary and all that stuff. Don't make it about that. But get get get some celebrities on board. It's really, it can be extraordinarily helpful. Um and and and as a public relations matter, it can really work. I know it sounds cynical, but it's true. Um the other thing is, and this is going to sound a little amorphous, but if this country moves forward after Donald Trump, and that's a big if in many of our opinions, but if this country moves forward and we return to some sense of normal politics, which I don't think I think we all whoever side drawn in this country, I think we can all agree this is not a normal time. And some people that's a good thing, other people it's a bad thing, but we all can agree this is not a normal time. Um I think there's going to be an anti-elitist movement. I think that's possible. And I would try to characterize this debate as elites versus non-elites. I think the rhetoric of that can be very important. And then you can throw in it's those elite lawyers in Washington, D.C., who go on yachts and you know, and and that kind of thing who are causing this problem to begin with. That's a much better way to attack the Supreme Court in the public's eye than to make fun of the court's legal archives. You know, it's a bunch of elite lawyers making policy for the that's how the abortion movement did it, uh, and you know it eventually paid off. But even before the abortion movement paid off, it paid off in many other ways for the people who are for that movement. There are other things we I assume that we have in common that we want to do, and this might make it easier to do those things if we can't get a full scale. And then finally, on a very micro basis, I will tell you guys that if this passes in Montana, and God knows I hope it does, come back. We will have you. My center is gonna have all kinds of programs and activities. And we now we're we're committed to intellectual diversity. So we'll have you guys on who have some people who think it's a bad idea on, and let's do a big event in Atlanta and get and get that done. So I do I do think goal one is to get this passed. I could not agree with that more. Get it passed. And and then make it an elite issue, elites versus non-elites. I think that's power.

SPEAKER_04 1:39:56

Well, I have to tell you guys, and uh uh before we before we wrap up, I'd like to hear uh closing comments from Jesse and Fingers both. Uh this has been an absolutely fantastic and also enlightening conversation. I know for me, and I'm sure for them as well, I'll leave to them uh for those comments.

SPEAKER_03 1:40:12

I want to jump in real quick just because it's a tag on to what um you said, Eric, which is about framing this as elites versus non-elites. You know, I think the lesson of the last 10 years of American politics is how fed up people were with the status quo, you know, and to your comment about lawyers inside the beltway making rules for the rest of us, right? And I think, you know, as flawed as he was as a candidate and kind of is as a politician, you know, Bernie was there, and you know, the Democrats had an opportunity to run an outsider and they didn't. The GOP ran an outsider and they did. And I think at the end of the day, the people voted for Donald Trump were voting less for individual policies, even though that's what they'll tell you, than they were for somebody that was outside the establishment and was promising to break some of this deadlock and to try to not necessarily return power to the people, but definitely take power away from the elites. So just trying to expand on that argument. And I think you were right about the political leverage point, you know, and then also because I love my own ideas, restate the whole point of, you know, looking at this as a litmus test issue the same way abortion was used, same way uh marriage equality was used for a while there in the 2010s. And that was a much shorter window, obviously, than abortion has been politically. But I think that, you know, it is the real fight is in the political sphere. The real fight is for hearts and minds and for getting the people's will to be pushed up to the legislative bodies and then using the legislative bodies to put pressure on the judicial bodies.

SPEAKER_00 1:41:40

Yeah, no, um, again, I kind of keep harping back, I guess, in my own brain, to the whole Gilded Age and Progressive Error. I see so many similarities. Um, and I I do have a question for the panel of guests as well after my little spiel, but I I've noticed that throughout American history, there is usually a slew of different pieces of legislation, Supreme Court case law, and so on and so forth that accompanies massive change, right? We've seen this after the Civil War with the 13th, 14th, 15th Amendment and preceding Supreme Court cases thereafter that would affirm or diminish the severity or the implications of those laws, right? We also saw that, I would argue, with a few other ones, but the point I'm trying to make is that I I'm really hoping that this momentum takes place. I'm hoping that the kind of big corporations, big money, dark money that mirrors the Gilded Age, it seems to be building this momentum into people getting tired of this on both sides. And again, that's what led to the progressive era. And I'm hoping that's what we see again today. And to your point, Eric, right? That we can make this a momentum that when a more favorable lineup of judges in the Supreme Court aligns, if it goes to the Supreme Court kind of thing, we can have a more favorable outcome. So I guess my question to the panel, to all, you know, uh Tom, Jeff, and Eric, is again, major changes have happened with multiple areas of our government pushing it forward. I know that right now the focus is the Montana plan, right? But post-Montana plan, assuming it passes, what are other necessary changes in other areas of our government do you think would be necessary to accompany or to attack money in politics?

SPEAKER_05 1:43:11

Well, I do think, I mean, I'm not I'm not a tax expert in any way, shape, or form. I don't like saying the word. I I I do think tax reform is unbelievably important at some point, especially the taxes that corporations pay. I mean, they have all they have what I mean, Tom wouldn't call it a right, but they have all these rights that the Supreme Court has given them, yet, you know, they don't pay they don't pay their fair share. So I think that's one I think people are kind of fair about that. I the only other contribution I'd make here is to Jesse's historical point. Assuming that we get back to America in some form that we the history of America is definitely psychologist, there is no question about it. And if eventually people get tired of both Donald Trump's substance substance and style, which we have to, if not, this conversation is moved. But assuming we get we get past that, I think there may well be a counter shock, a counter, a very strong anti-elitist. Um because in fact he has made corruption worse. And I I think even his base is starting to see that. You know, Christy Noam was unqualified in 75 million ways, but when corruption came into it, she had to go, right? When there was alleged corrupt when there was alleged corruption that, you know, she she had to do it. So I I I do think that the time will be right if if that happens. And my hope, yeah. So so I I I do think your cycles of American history point is correct, unless you know, we go to civil war.

SPEAKER_01 1:44:45

The other big reform that's going on right now that would actually do the kind of second half of this circle is something that uh Harvard law professor Larry Lessig is doing. Uh he got a ballot initiative passed in Maine that said, hey, we're gonna regulate super PACs like regular PACs. You know, they've got unlimited money coming in, Citizens United said unlimited money could go out. He's attacking that first part and saying, like, hey, that whole unlimited money coming in thing, you gotta strike that. That was never a Supreme Court decision. It was a DC circuit decision, and every other circuit except First Circuit, which is Maine, has decided that. So he's got that moving there. If that holds, or if Congress passes a bill that does the same thing, that will be a tremendous, uh tremendous um reform in all of this. The other thing, though, is you look at you know how the Supreme Court has has just dismantled campaign finance regulation, anything that, you know, and might go after disclosure next and so forth. I think you're gonna have to look at it in new ways, like the Montana plan or like things like Seattle has done with democracy vouchers, where it is a um they hand out $25, four $25 vouchers to everybody in the city, every registered voter. And that's if you're in the system, that's the only money you can go collect and spend. And what that forces candidates to do is actually go knock on doors that have never been knocked on before because those folks have vouchers that you need. And it actually pushes, it's provides incentives for uh candidates to get out there. And then there's been a bunch of social pressure in Seattle to run on that. It's kind of like, hey, like you, why aren't you running in the system? You should run in the system. The good people run in the system. Those two things I think could actually be pretty helpful. But it's not gonna be another McCain Feingold Act. It's not going to be, you know, more, it's not gonna be HR1 or, you know, a lot of these reforms that are that are going through Congress. Those, those, the Supreme Court's gonna like you know, whittle those down as much as they possibly can. I think you've you've got to look outside Washington and you have to look outside the the normal campaign finance realm to get some solutions.

SPEAKER_02 1:46:40

The only thing I'll add is, and it's tangentally uh connected, is I think eventually, or maybe even sooner than eventually, we're gonna start seeing a discussion on political parties and how parties work and are they necessary and you know what, you know, I mean, this whole, you know, every state has a different, you know, way of dealing with political parties and and and whether it's in elections or how they raise money or whatever it might be, I think we're gonna see eventually a sea change in how political parties are are operated, run, or even if they potentially exist.

SPEAKER_05 1:47:16

Speaking of originalism, I mean the founding fathers, you know, for a couple of years fought against political parties and didn't like them and didn't want them. Um yeah, the two-party system is a major cause of a war.

SPEAKER_03 1:47:28

And on that note, ranked choice voting. Right? Ranked choice voting would be helpful to start to moderate the effects. I think whatever we can do to moderate the political sphere and try to get people moving towards each other instead of all of these forces that drive hyperpolarization. You know, people in safe districts, people being in safe districts where the whole competition is how far to the edge you can run, how quickly, you know, trying to find ways to go around those. Wow.

SPEAKER_04 1:47:58

Wow, what an enlightening conversation. And thank you guys so much for joining us today. Before we wrap up, I'm gonna step back just for a moment, talk about what this conversation means. For years now, Americans have been told that the corruption in our political system is basically impossible to fix. Citizens United is locked it in, and the only way out is a constitutional amendment that might take decades, nothing can be done. That's been the narrative. But what we talked about today challenges that entire assumption. Uh, because the truth is this corporations do not exist on their own. They exist because states create them, states grant their powers, and states can define the limits of those powers. The simple fact, that simple fact opens a door most people don't even didn't even realize was there. Um and that's what we've obviously been talking about today. And that's what the Montana effort is about. It's not theory, it's not a think tank memo sitting on a shelf. It's a real campaign happening right now built on Montana's own history of fighting corporate domination and politics. And what happens there matters, as as we've discussed. Because if one state proves that this works, it won't stay in one state. It becomes a blueprint, a playbook, something that communities across our country can pick up and run with. And I think that's the real takeaway from today. This fight's not going to be solved by waiting for Washington to fix itself. Real reform in this country has almost always started somewhere else, in states, communities, and in people deciding they're done accepting a broken system. So if this conversation resonated with you, here's what you can do next. Learn more about the transparent election initiatives and what's happening in Montana. Take a look at the work being done on the corporate power reset framework. And if you care about building a country where elected officials answer to voters instead of donors, connect with organizations pushing for real accountability in our political system because at the end of the day, we know democracy will not fix itself.

SPEAKER_05 1:49:45

Can I do a quick postscript really fast? Um I misunderstood. In a sane world, the Supreme Court would uphold this, and it wouldn't be hard. It'd be an easy decision. In a sane world, we wouldn't have luckly version. I believe it's illegal in England to run TV advertisements for politicians a period or maybe 60 days a day. You can't even do TV ads in in England, you know. We're the only free country in the world that allows this kind of free marketplace of of free marketplace, capitalistic free marketplace in our political system. No other free country does this. And when every other free country in the world does something differently than us, we should take that seriously. And that's another, I'm not sure how it plays in Montana, but in New York and California and Florida, that that's also an argument. We no one else does this. We're the only ones. And when I say we in that sense, it's not us, it's the Supreme Court that's done it. Because the people don't like what the Supreme Court has done. So I want to be clear, as a legal matter, I think all of this is constitutional, except for the except for the prior restraint. The now prior restraint in Citizens United. I think all of this is constitutional. I think all of it is right. And we're the only country in the world where we have to fight for this in free countries. So I I would I would not hesitate to make the global argument.

SPEAKER_04 1:51:00

And with that, I want to extend uh the sincerest and warmest thank you to our guests for joining us today. And thank you to everyone who ends up tuning in uh for this episode. Extremely important. And we will see you next time on Disorderly Conduct. Thanks so much for everyone.

SPEAKER_03 1:51:17

Thank you for listening to the Disorderly Conduct Podcast, a production of the Public Integrity Network. We believe that the first step to taking back our democracy is getting money out of politics. Come find us at moneyaoutofpolitics.org and we'll put you to work. In the meantime, get involved in your community. Volunteer to Stupid Kitchen. Start a ride chair service. Go to school board meetings. Anything you can to make sure this government remembers that their power is derived from the consent of the government.