Lawrence Lessig Thinks the Supreme Court Will End SuperPACs
Added 2024-12-30 09:04:28 +0000 UTC... and he might actually be right! Listen in and hear why.
OA1105 - Harvard Law professor and anti-corruption advocate Lawrence Lessig is almost certainly the only person on Earth to have had a personal relationship with both visionary hacker Aaron Swartz and former Supreme Court justice Antonin Scalia. We warmly welcome Professor Lessig back to OA to share--among many other things--his experiences with each of these very different people, why he remains optimistic about campaign finance reform going into the second Trump administration, and the originalist argument against Super PACs.
“Why They Mattered: Aaron Swartz,” Lawrence Lessig, Politico (12/22/2013)
They Don’t Represent Us: Reclaiming Our Democracy, Lawrence Lessig (2024)
Republic Lost: How Money Corrupts Congress--and a Plan to Stop It, Lawrence Lessig (2011)
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Comments
While professor Lessig is obviously incredibly smart and accomplished in law, it seems to me that pretty much all of his optimism relies on believing that these conservative Justices will keep internal consistency in their application of originalist logic, as opposed to them using originalism as a veneer to hide Project 2025-esque motives for their decisions. Like the idea that they'd take to heart an originalist argument for getting moneyed interests out of campaign finance, while at least two of those same Justices are taking absurd amounts of gifts from wealthy donors, is insane to me. This is the same SCOTUS that ruled on Snyder v US, which may have legalized bribery as long as it happens after the fact (gratuities). They already worsened the issue and now we think they'll revert it all? Additionally at ~51 minutes, to me, his counter-argument about a referendum for an amendment completely misses the point of the concern. We would be concerned that conservatives would try to pull some chicanery to get crazy right-wing amendments passed, not liberals pulling chicanery to get liberal amendments passed. Prof. Lessig's counter-point is that the conservative SCOTUS would prevent a beloved conservative amendment from being overruled. This does not neatly map on to the actual concern of conservatives trying to push new right-wing amendments, e.g. like one about fetal personhood. SCOTUS blocking an amendment they don't like, and SCOTUS blocking an amendment they do like, only works if you think this SCOTUS has internal consistency, and I don't see how we can believe that with what we've seen over the past 4 years. Maybe I'm wrong and have misplaced fear about all this, but I don't see how any of these concerns were actually addressed.
Ian Carlberg
2025-01-03 06:10:20 +0000 UTCProf. Lessig is amazing at thinking while talking. I love the spontaneous simplicity and clarity of his language. And I want to stand up and cheer his notion of applying originalism to the Reconstruction amendments. That should be the approach to amendments in general, no? Whenever an amendment has reversed the constitution's "take" on an issue, the clock of "history and tradition" on that issue should begin afresh from that point. Otherwise, (for example) (say) the morning after the 13th amendment abolished slavery, the balance of history and tradition clearly tolerated legal slavery. Decisions reached after an amendment is ratified shouldn't count the prior history as if it hadn't just been repudiated in the Constitutional text itself. (as a side note: the on-line spelling checker for these comments is underlining the word "originalism" in red as if maybe it would like to say something ...) Prof. Lessig also talked about the process by which the Continental Congress, acting under the Articles of Confederation, allowed the Constitution to be ratified by nine or more states rather than requiring all thirteen. The framers also specified that those nine states would determine their acceptance or rejection not by action of their legislatures (who surely would never have allowed their power to be so greatly reduced), but by constitutional conventions to be held in each of the states. That was at least as "un-Articles-of-Confederation-al" as lowering the threshold to nine states was, I think.
David in Brooklyn
2024-12-31 04:58:32 +0000 UTCThat's what I try to explain to people. Original intent should be part of it, and it is a part of Living Constitutionalism. The real point of Originalism is excluding any evidence beyond what conservative justices cherrypick to justify whatever outcome they want.
Gmork
2024-12-31 01:23:38 +0000 UTCYeah ultimately originalism is a bad approach. The original meaning has its place but it shouldn’t be the end of the analysis and not as a cover for one’s own personal preferences as a judge.
Ryan
2024-12-30 22:07:17 +0000 UTCI think this may be the better take/prediction, and I sincerely hope you are right about #3 (rather than SCOTUS issuing a stay and letting an awful executive order govern for any amount of time). I keep landing in the same place: I don't want to assume or expect the worst, but I also can't offer the reassurances to folks that I wish I could. Just so many unknowns.
Katie Herrmann
2024-12-30 21:24:02 +0000 UTCprof lessig may love the 1st circuit's judges, but does he know they only accept documents in COURIER NEW?! in all seriousness - really nice to have him back on the show.
get in the way!
2024-12-30 20:17:00 +0000 UTCI hear this and share some of these concerns, but my take (as outlined in the recent birthright citizenship episode) remains that (1) there definitely will be an executive order on this within the first day or two of the new administration, (2) ACLU will immediately get this in front of a reasonable judge who will impose a nationwide injunction under the basic federal standard (facially weak merits + obvious harm to babies born stateless), and (3) in the end SCOTUS will confirm that the 14th and Wong Kim Ark means what they say. I know it's naive at this point to assume that the Supreme Court will correctly read the plain text of the Constitution, but the originalist argument against a 14A guarantee of birthright citizenship is so thin that it barely exists and for the moment there isn't the same kind of multigenerational project behind this that there was for overturning Roe or (even for as relatively fringe as it was at the time) getting to an individual right to own a gun. There's also the ongoing chaos and social disorder which repealing this policy and replacing it with nothing would cause, and for as much as they pretend not to care about practical consequences of their decisions I know that has to be a factor for this one as well. The fact that we even have to consider the very real possibility that they would do this is really telling about where we're at as of now though!
Matt Cameron
2024-12-30 18:25:42 +0000 UTCAbsolutely! I went to law school where I did due to financial concerns and naivety (a legal education is a legal education, right? . . . oof). What an eye-opening experience those three years were. I like to think I still turned out OK haha.
Katie Herrmann
2024-12-30 16:15:02 +0000 UTCKatie, I just want to thank you for posting here given your experience and perspective.
David in Brooklyn
2024-12-30 15:18:41 +0000 UTCThat feels like a very real concern.
Katie Herrmann
2024-12-30 14:59:31 +0000 UTCI'm alarmist in a different way. I don't think SCOTUS will ever officially remove birthright citizenship, but I think we'll see mass end runs around deportation hearings. They'll just round up whoever they want and drag out any legal attempt to curtail it.
Gmork
2024-12-30 14:32:53 +0000 UTCI try not to be alarmist, so feel free to set me straight if I'm off-base here. But my concerns over SCOTUS reading birthright citizenship out of the 14th Amendment remain. I think Trump is going to show up equipped with an OLC memo on Day One outlining - based largely on bogus academic scholarship - support for such a reading. Beating a drum long enough has altered the plain text of the Constitution already. Decades of interpreting the Second Amendment one way went out the window with Heller, despite the plain language of the amendment. SCOTUS has also effectively rendered certain parts of the Constitution, such as the 9th Amendment, effectively meaningless. I went to the most conservative (and likely worst) law school in the country. I was told that if I had to forego purchasing a legal textbook to afford membership and donation to the Federalist Society, I should. The desire to portray credibility is, in my opinion, the only thing that keeps ultra-conservative ideology at bay, and SCOTUS has demonstrated an increasing lack of concern for keeping up its image.
Katie Herrmann
2024-12-30 14:22:44 +0000 UTCI'd love to be proven wrong, but these are the "originalists" who manufactured a regime to strike down local gun laws, create presidential immunity, and legalize "gratuities" to politicians. Professor Lessig is right to be incredulous that they could fail to understand that the Framers wanted to bar institutional corruption. But this court has been far more consistent in opening the door for institutional corruption than it has in s hewing to the Framers intent. If they strike down SuperPACs, it'll be to replace it w the right of billionaires to more openly pay and coordinate with their elected officials.
Gmork
2024-12-30 13:15:12 +0000 UTC
