Will Maine Case Change Super PACs & Justices Testify

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2:00Louis Michael Seidman:This is Bloomberg Law with June Grosso from Bloomberg Radio. For some of us, those threats have come very close. And all of us live with the knowledge that they may again materialize. Justices Elena Kagan and Amy Coney Barrett made a rare appearance before Congress today as the judiciary seeks millions of dollars to beef up security amid increasing threats against the justices. Justice Barrett explained the challenges for her family of navigating the enhanced threat landscape, type recalling an incident when her security detail sent her home with a bulletproof vest after the leak of the Dobbs decision, which overturned the constitutional right to abortion.

2:47I carried it into my house, put it into my bedroom, dropped it down on a table, turned around, and my 12-year-old son was standing in the doorway of my bedroom, and he wanted to know what it was and why I had it, and I didn't know how to respond, because maybe I lack imagination, but I didn't expect that performing this service was going to put me in the position of explaining to my children what a bulletproof vest was and why I had to wear one. The Supreme Court is asking for$228 million for next year's budget. That includes a$14.6 million increase, or 10 % over last year, to expand the justices' security details and monitor their residences.

3:29Joining me is constitutional law expert Lewis Michael Seidman, a professor at Georgetown Law. His new book is called The Constitution Cannot Save Us, Why We Can No Longer Rely on Our Founding Document. The justices haven't come to testify to Congress about their budget since 2019. So what's the significance of this appearance?

3:53Louis Michael Seidman:Well, I think they're there now because they're worried about their security. And that's completely legitimate. There are serious security problems and they ought to be taken care of. But the fact is that being properly respectful of another branch of government doesn't just mean showing up when you want something from them. There are built into the Constitution checks and balances. The court can check Congress, but Congress also has the power to check the court. And frankly, I think Congress ought to be doing a better job of that. And one way of doing a better job, Congress controls the court's budget.

4:32Louis Michael Seidman:You know, if Congress wanted to, they could cut off the lights and air conditioning. So I think they have more power than they realize they do have. And I think they ought to start using it. I mean, has there been a Congress in our history that's cut off or, you know, limited funding to the Supreme Court? So at the very beginning of our history, Congress terminated an entire term of the court. The court did not meet for over a year because of what Congress did. This was run up to a famous case called Marbury v. Madison, where Congress canceled the term of the court because they didn't want the court to hear the case.

5:12Louis Michael Seidman:That's a long time ago. It hasn't happened recently, but that doesn't mean it can't happen. So here's an example of something Congress could do. Each Supreme Court justice has four law clerks. Years ago, they had only one. Years ago, they would decide something like 160 cases a year. Now they're down to about 60 with a quadrupled staff. There's a kind of dirty little secret. The Supreme Court justices don't write their own opinions often. They get these young law students to do it for them. So I think it would be perfectly appropriate for Congress to cut the line item for law clerks, make them do their own work, for goodness sake.

5:54Louis Michael Seidman:But more broadly, if Congress is not happy with how the Supreme Court is behaving, they have perfectly legitimate and constitutional means to fight back. And they ought to be more seriously thinking about using those means. I think the problem is that Congress doesn't agree. So you'd have the Democratic lawmakers on one side and the Republican lawmakers on the other. And, you know, I think the Republicans are pretty happy with the Supreme Court as it is. Well, they're happy about some things, not about others. But yes, I think you're right. But the real problem is on the Democratic side. If they're unhappy, they can be making noise about doing something.

6:36Louis Michael Seidman:And there seems to be this widespread perception, and I don't know where it comes from, that somehow it's illegitimate for dissatisfied members of Congress to fight back. The fact is that just in the last couple of weeks, the Supreme Court struck down maybe the most important statute Congress has passed in the 20th century, that is to say the Voting Rights Act. They effectively struck it down. They have now destroyed the ability of Congress to control the terms of executive branch employees. Those are major shots across the bow at a coordinate branch of government. And Congress has the right to respond.

7:22I won't hold my breath for Congress to respond, though. At least not this Congress. Maybe the next Congress.

7:28Louis Michael Seidman:Not right now, but you can start making noises about this. To my mind, the justices seem to make a good case for the need for more security. Barrett testified about a swatting incident just a few weeks ago. and threats are on the rise across the country for federal judges. I think the security concerns are completely justified. Things really have changed and they've changed for the worse. Years ago, when I worked for Justice Marshall, not only did he have no security detail, his number was listed in the phone book along with his address. Oh, wow. So things are just not like that anymore. And that's a legitimate concern.

8:10Louis Michael Seidman:Now, I do think Congress has a role to play in deciding exactly what form the security should take. So, for example, it's not completely obvious to me that the best thing to do is to set up a visitor center outside the Supreme Court. I'm not an expert on security. Maybe that's necessary, maybe it's not. But I think Congress has some role to decide about what the best way to proceed is. But they certainly deserve to be safe. And the threats of the justices are a serious matter and ought to be handled appropriately. There were some questions that were outside the budget, and one was about the code of ethics.

8:52All nine justices agreed to the code in 2023 because there was all that criticism over undisclosed trips and gifts from wealthy benefactors to some justices. But Kagan and Barrett split on the need for a mechanism to enforce the code. Justice Kagan said she stood by her earlier suggestion that there should be an enforcement mechanism. But Barrett said there are significant questions over who would do the enforcing. But what good is a code of ethics if there's nothing to enforce it?

9:24Louis Michael Seidman:Well, there needs to be enforcement. What's happened with a number of Supreme Court justices, frankly, is disgraceful. And, you know, if you have life tenure and you wear these robes that are associated with being priests and everybody stands up and says, your honor, whenever you walk into the room, that even for normal people, that produces a kind of arrogance, I think. And that's an occupational hazard for the Supreme Court. So there ought to be an enforceable code of ethics for them, like there is for almost everybody else in the government. And again, Congress would be within its powers to impose that on the court.

10:06That shows even in this hearing, because it wasn't the usual combative hearing, you see. They were very respectful questions asked very respectfully.

10:16Louis Michael Seidman:Being a Supreme Court justice is never having to explain yourself, right? The justices, they don't hold press conferences. They only rarely appear before Congress. As I said before, they often don't write their own opinions. They are unaccountable. And that creates a kind of mindset that can be really quite dangerous. They also fielded questions about the use of the emergency docket, often referred to as the shadow docket. These orders that are typically issued early in cases and without much reasoning from the justices have been criticized, including by some of the liberal justices. Kagan pointed out some high profile decisions may have encouraged attorneys to file more appeals.

11:05And she said the appeals are decided without full briefing or arguments. And we should consider those downsides.

11:12Louis Michael Seidman:Justice Kagan said today she thought the problem had gotten somewhat better. And I think it has. The justices are doing more to explain themselves. But there still is something of a problem. And I think one downside of these emergency orders without opinions is it leaves very unclear for lower court judges who are trying to do what the Supreme Court wants them to do. If the court doesn't tell them clearly what they're supposed to do, then it's very... What would you have asked the justices if you were on the committee? Well, I think it's appropriate to ask the justices about cases that they've decided.

11:52Louis Michael Seidman:Now, that's not a popular view. I think most other law professors would disagree with that. But I don't really see what's wrong with it. As I say, Congress is a coordinate branch of government. And if the court chooses to invalidate, as I said before, maybe the most important law passed in the 20th century, the 1965 Voting Rights Act, which, and by the way, the amendments to that, which were at stake, were signed by President Reagan and passed by a bipartisan Congress. If they chose to invalidate that, then they ought to be subject to questions about what their reasons are. And I just wish the legislative branch were a little more assertive in asserting the powers that it has under our Constitution.

12:37And in the opening statement, Kagan was careful to announce that they can't address individual cases. You know, the justices testified about the budget for decades. Why did they stop coming to Congress to testify?

12:53Louis Michael Seidman:This is another aspect of the court's lack of accountability. For years and years, it was traditional that every year the chief justice would come and testify. Then there was controversy about the code of ethics. Congress wanted the chief justice to come and explain, and he refused to do so. And so this is the first time in a long time that anybody's actually come to the Hill and talked to the senators and representatives. We'll see if they make a return appearance next year. Thanks so much for joining me. That's Professor Louis Michael Seidman of Georgetown Law. Coming up next on the Bloomberg Law Show, a test case aimed at closing the door on those unlimited contributions to super PACs.

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14:57At IBM, we work with our employees to integrate technology right into the systems they need. Now, a global workforce of 300 ,000 can use AI to fill their HR questions, resolving 94 % of common questions. Not noise. Proof of how we can help companies get smarter by putting AI where it actually pays off. Deep in the work that moves the business. Let's create smarter business. IBM. Let's talk about healthcare for a second. It doesn't always work the way people expect it to. If you've ever waited on a prescription refill or had a hard time getting the care you needed, you know the feeling. The system should just work better for everyone.

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16:12Little by little, Optum is helping make healthcare work as one for everyone. Head to business.optim.com to see how. Super PACs have been part of American politics since 2010, spending billions of dollars to influence races with no limits on contributions. Now a test case is making its way through the courts that, if successful, could reinstate federal and state limits on contributions. In 2024, 75 percent of Maine's voters approved a referendum that limited contributions to a super PAC to$5 ,000 a year. Two super PACs challenged the law and a federal judge struck it down in 2025, citing a 2010 ruling by the D.C.

17:01Circuit Court of Appeals. The Maine case is now on appeal to the First Circuit. My guest is Harvard Law Professor Lawrence Lessig, who's leading the federal court case to uphold Maine's law. He's also the founder of Equal Citizens, which helped draft the referendum. For those who aren't familiar with campaign finance laws, tell us about super PACs and their influence in politics. Right.

17:27Lawrence Lessig:So the significant thing about a super PAC is that it is not constrained in the size of the contribution it can accept. So it can accept a contribution of$1 ,000, it can accept a contribution of a billion dollars. And so what's happened since they were created by a lower federal court in 2010 is that the concentration of money coming from billionaires in our elections has exploded. So in 2010, outside spending by billionaires accounted for about 0.3 % of total outside spending. And in In 2024, it accounted for 19%, which means 63 times what it accounted for in 2010. So what we see is the system is increasingly concentrating power in a smaller and smaller number of people who've demonstrated they have no qualms in exercising that power to demand policies that benefit them, even if they don't benefit ordinary Americans.

18:26So as you point out in your article, most people think that the creation of super PACs and the explosion is due to the Citizens United case. But you say it's due to a D.C. federal court case after Citizens United. Right.

18:42Lawrence Lessig:Three months after Citizens United, a lower federal court in a case called SpeechNow versus FEC had to address a different question from the question in Citizens United. So Citizens United had to address the question, what happens when an independent expenditure is made by a corporation or a labor union or any rich person? And they extended the ruling they had made in 1976 in a case called Buckley versus Vallejo to say that anybody who's spending money independently, whether a corporation or a union or a political action committee, could do that freely so long as their spending was not coordinated with the campaign.

19:27Lawrence Lessig:So coordinated is not quite quid pro quo. It just means you can't coordinate. You can't talk to each other when you're doing that spending. And the reason that was important was if you're not talking to the other side, there's no risk that you're going to be engaging in a quid pro quo with the other side, not making a deal this for that. And the only reason the Supreme Court said that we could limit political speech was the risk of this kind of quid pro quo, the risk of this kind of corruption. OK, that was Citizens United. But the lower federal court had to address a different question. Not could you spend unlimited amounts of money, but could you contribute unlimited sums to committees that were going to then spend their money independently of the campaign?

20:12Lawrence Lessig:And what the lower federal court said, Judge Santel was the judge who wrote the opinion, was that it followed as a matter of logic, he said, that if you had no risk of corruption with independent spending, you couldn't have a risk of corruption with a contribution to a committee that makes that independent spending. That's the move that created super PACs. And that move, once you see it, I didn't see it, but once you see it, it is obviously wrong. So you and your group Equal Citizens are behind the Maine referendum. So tell us more about it. Right. So in 2023, Mainers, having heard the story of this mistake made by the D.C.

20:56Lawrence Lessig:Circuit Court of Appeals, suggested to me, I was at a dinner telling them this story, and some of the leaders, including Rick Bennett, who was then a Republican state senator from Maine, he's now an independent running for governor, said to me, you know, we ought to have that initiative here in Maine. And so we helped gather the signatures, equal citizens, to get it on the ballot, the 2024 ballot. Once the signatures were certified, we stepped back and let the Mainers run the campaign. But in 2024, 74.9 % of Mainers, 600 ,000 Mainers, more people than have ever voted for anything, any candidate or any initiative in the history of Maine, said no to super PACs.

21:39Lawrence Lessig:They said they wanted no longer to live under a system where billionaires could come in and dump millions and millions of dollars in campaigns. Instead, they wanted to go back to the old system. Your contributors were capped at$5 ,000. And so that initiative, once it passed, was challenged by two super PACs within about a month of its passing. And that's the case that's currently being litigated and at the end of July will be heard in the First Circuit Court of Appeals. Explain what happened at the lower federal court, the decision by a main federal judge. Yes, the lower federal court actually ruled against us, but I think in the nicest possible way she could have, because she recognized something that none of the other courts acknowledged.

22:24Lawrence Lessig:So every other court, starting with the D.C. circuit in SpeechNow versus FEC, but then very quickly in a number of other circuits around the country, all these other courts made the same moved, they all said there's no risk of corruption with a contribution to an independent political action committee. And that's the core logic, which demonstrates why a state has no power to regulate it. Because again, the only reason you can invoke for regulating political speech is the risk of corruption. So if you don't think there's a risk, you can't regulate. The district court in our case said, yeah, okay, yeah, there's a risk of quid pro quo corruption.

23:05Lawrence Lessig:And it was hard for her not to acknowledge that because there have been so many obvious examples of a quid pro quo involving a contribution to a super PAC that you just have to shut your eyes to reality not to recognize them. The clearest was in 2015 when Robert Menendez, a Democratic senator from New Jersey, was indicted by the federal government. The indictment was he promised government favors in exchange for contribution, a contribution to his super PAC. So there was the very thing the D.C. Circuit said could not happen. A quid pro quo involving a contribution to a super PAC was the basis of the indictment.

23:48Indeed, Menendez's lawyers had the chutzpah to argue that the thing you've indicted us for, the D.C.