The Case That Could End Super PACs - ft. Larry Lessig

Larry Lessig (0:00)

I feel like Citizens United is the most misunderstood decision because Citizens United was not saying you couldn't police coordination. But the failure to police coordination is a failure of the FEC, it's a failure of the prosecutors, it's a failure of the system to actually live up to the policing that the Supreme Court has allowed.

Bethany McLean (0:22)

I'm Bethany McLean.

SPEAKER_3 (0:23)

Did you ever have a moment of doubt about capitalism and whether greed's a good idea?

Luigi Zingales (0:28)

And I'm Luigi Zingales.

SPEAKER_5 (0:30)

We have socialism for the very rich, rugged individualism for the poor.

Bethany McLean (0:35)

And this is Capitalisnt, a podcast about what is working in capitalism.

SPEAKER_6 (0:39)

First of all, tell me, is there some society you know that doesn't run on greed?

Luigi Zingales (0:44)

And most importantly, what isn't?

SPEAKER_5 (0:46)

We ought to do better by the people that get left behind. I don't think we should have killed the capital system in the process.

Bethany McLean (0:52)

We all know that the 2010 Citizens United Supreme Court decision is the root of all evil, don't we?

Luigi Zingales (0:59)

It equated cooperation to people, it equated money to speech, and it created the so-called super PACs, political groups that can raise and spend unlimited amount of money to help or hurt political candidates.

Bethany McLean (1:13)

Basically, Citizens United is responsible for the state of US politics.

Luigi Zingales (1:17)

Except that's completely wrong.

Larry Lessig (1:20)

When you say, why do we have super PACs, you're going to say, it's because of a Supreme Court decision called Citizens United. That's just false.

Bethany McLean (1:29)

That's Harvard Law Professor Larry Lessig at this year's Stigler Center Annual Conference.

Larry Lessig (1:34)

We have super PACs because of a lower federal court decision interpreting Citizens United three months after it was decided, a case called SpeechNow. And the upshot of this is SpeechNow is a mistake. Under Citizens United, SpeechNow is a mistake, and therefore fundamentally vulnerable.

Luigi Zingales (1:51)

You often hear a lot of interesting things at an academic conference, but rarely something you think will change anything. This time, we did.

Larry Lessig (2:00)

People like my friend Bertie Sanders make a million speeches about how if we believe in democracy, we must overturn Citizens United. Overturning Citizens United is technically impossible. It just cannot happen. There is zero chance the United States Supreme Court is going to overturn Citizens United.

So the idea that you would rally people to an impossible cause is absurd. But the idea that the court would recognize that speech now doesn't actually follow from Citizens United is not impossible. I think it's quite possible.

Bethany McLean (2:29)

After that talk, we knew we had to get Larry on the podcast to tell us more. And with election season in full force, that's exactly what we're doing on this episode.

Luigi Zingales (2:38)

Larry's argument is subtle, as many legal arguments are. Citizens United simply stated that independent expenditure don't give the appearance of corruption, and as such, they cannot be limited. As it is my constitutional right to express support for Larry Lessig for president, actually Larry did run for president.

Bethany McLean (2:57)

Did he?

Luigi Zingales (2:58)

Yeah, he did.

Bethany McLean (2:59)

I didn't know that. Wow.

Luigi Zingales (3:02)

It is my constitutional right to spend 100 million in supporting his candidacy. As long as I do so independently, I do not coordinate with him in his campaign.

Bethany McLean (3:13)

So so far, there is nothing about contributions, only expenditures. This is where the SpeechNow decision comes in. It ruled that limits on individual contributions to independent expenditure only political groups violate the First Amendment. This is what created Super PACs.

Luigi Zingales (3:29)

So Larry claims that individual contribution can be and are coordinated with political candidates. Candidates even fund raise for Super PACs.

So, there can be the possibility of a quid pro quo. And as such, this contribution can be regulated.

Bethany McLean (3:46)

In November 2025, 75% of Maine voters approved a law limiting contributions to Super PACs to $5,000. A local judge blocked the enforcement of the law claiming that the Supreme Court's 2010 decision in Citizens United clearly prohibits any limits on contributions.

Luigi Zingales (4:03)

This is where Larry comes in. Citizens United is about expenditures, not contribution. He appealed a judicial decision. The appeal was argued this July before the First Circuit. And in September, the First Circuit asked for supplemental arguments. The decision is due any day now.

If Larry wins, the Supreme Court must intervene because there will be an inconsistency in how the law is interpreted across the various districts.