[00:00:00] This is Democracy and Destiny. With Ciara Torres Spelliscy I have the per curium opinion and judgment to announce on behalf of the court in Buckley against Valeo. We have a cancer close to the presidency is growing in case 0 8 2 0 5 Citizens United versus the FEC, Justice Kennedy has the opinion of the court.

The First Amendment's core purpose is to foster a vibrant political system full of robust discussion and debate. There is no right more basic in our democracy than the right to participate in electing our political leaders with fear for our democracy. I, along with Justices, Kagan, and Jackson. dissent.

[00:00:54] Ciara Torres-Spelliscy: Welcome to the show. I'm Ciara Torres Spelliscy. I'm a law professor at Stetson Law [00:01:00] School in Florida, and I'm a fellow at the Brennan Center for Justice at NYU School of Law. I work on the intersection of election law and corporate law. This show was inspired by my third book, Corporatocracy, How to Protect Democracy From Dark Money and Corrupt Politicians.

Published by NYU Press, election Day 2024. I realize in today's busy world, reading a 300 page book is not on everyone's to-do list. But even I as a law professor, have time to listen to radio shows and podcasts when I'm commuting to campus or walking my dog. So here we are. This is “Democracy and Destiny.”

Today's episode is about legal attempts to hold people accountable for their actions around the 2020 election, and I will be joined in a few minutes with my guest. Professor Richard Hasen from UCLA Law school who will talk about election law. But first, let's start with pay to play today.[00:02:00]

The term pay to play comes from the radio payola scandals from the 1950s and 1960s. Record companies would pay radio stations to play their music, hence it was literally pay to play. Today. The phrase pay to play is shorthand for all kinds of political corruption, especially when government contractors or others with business pending in front of the government, pay bribes to public officials to get a private benefit, like a lucrative, no big contract or approval of a corporate merger.

One of the things I learned while writing my book Corporatocracy is that political corruption is prosecuted frequently, but the media just doesn't report on it as often as it does. Other things like celebrity news that leaves the misimpression with the public, that corrupt politicians [00:03:00] or shady government contractors are always getting away with crimes.

So I swore to myself if I ever had a news generating platform that I would highlight that political corruption can be met with serious consequences, including fines and jail time. So our example of Pay to play today comes from the US Supreme Court. I'll call this one. Oh my gosh. The Supreme Court upheld a fraud conviction in 2025.

The Supreme Court. Upheld the fraud conviction of a Philadelphia area government contractor. The following language comes from the syllabus of the case Kousisis versus United States and was written by the US Supreme Court quote. The Pennsylvania Department of Transportation awarded Petitioner  Kousisis and Alpha Painting and construction company two contracts for painting projects in Philadelphia.[00:04:00]

Federal regulations required contract awardees to subcontract a portion of every contract to a disadvantaged business enterprise. So as part of the bidding process,  Kousisis falsely represented that Alpha would obtain its paint supplies from Inc. A pre-qualified, disadvantaged business. This was a lie unbeknownst to.

Pennsylvania Department of Transportation or PennDOT, arranged for  Kousisis to function as a mere pass through entity as a pass through.  Kousisis did not provide any paint supplies. To the contrary, its only role was that of a paper pusher funneling checks and invoices to and from Alpha's actual suppliers.

Not only did this arrangement contradict [00:05:00] S'S prior representations, it also violated the requirement that disadvantaged businesses perform a commercially useful function. In the end, however, Alpha performed the paint projects. To PennDOT's satisfaction and pocketed over 20 million in gross profit. The government charged Alpha and Kousisis with wire fraud and conspiracy to commit the same.

The charges were premised on the fraudulent inducement theory. In other words, that petitioners had induced PennDOT to award them the painting contracts. Under materially false pretenses. After a jury convicted Alpha and ses of wire fraud, they moved for acquittal. In their view, despite the lack of disadvantaged business participation, PennDOT had received the full economic benefit of its bargain, so petitioners, [00:06:00] contended, the government could not prove that they had schemed to defraud PennDOT of money or property.

Section 1343 requires held a defendant who induced a victim to enter into a transaction under materially false pretenses may be convicted of federal fraud even if the defendant did not seek to cause the victim economic loss. To convict, Alpha and Kousisis, the government needed to prove that they use the wires to execute a scheme or artifice to defraud or for obtaining money or property by means of false or fraudulent pretenses representations or promises under this court's precedent.

A defendant commits wire fraud only if he both engaged in deception and had money or property as an object of his fraud. [00:07:00] It follows from this rule. Alpha and Kousisis say that a federal fraud conviction cannot stand unless the defendant sought to cause the victim. Net pecuniary loss, not so. The fraudulent inducement theory is consistent with both the text of Section 1343 and this court's precedent.

The text of Section 1343 does not mention economic loss, let alone require it. In fact, Alpha and Kousisis conduct satisfied each element of Section 1343. They devised a scheme to obtain money, tens of millions from PennDOT through false representations about their compliance with the disadvantaged business requirements.

And while petitioners argue otherwise, a scheme may still [00:08:00] constitute wire fraud, even if the defendant provides something of value in return to obtain means to gain or attain possession. Citing Webster's Third International Dictionary and money or property is no less obtained simply because something else is given in return.

Petitioners argue that economic loss is inherent to common law, understanding of fraud, a term that appears twice in the wire fraud statute, but when Congress uses a common law term. The presumption that the term brings its old soil with it applies only to the extent that the term has a settled meaning.

At common law, the term fraud had an expansive reach. Its elements and remedies depended on the plaintiff's alleged injury. It was sufficient that the [00:09:00] victim had received property of a different character or condition than it was promised, even if of equal value stated otherwise, it was the deception induced deprivation of property, not economic loss that common law courts generally deemed injurious.

Petitioners concede that the common law did not require economic loss in every case, but their purported exception cases in which either the plaintiff received something different from what was promised or the bargain involved. An item with unique qualities lacks a driving principle at the right level of specificity.

Anything can be described as unique or different from something else as the principled basis for distinguishing everyday misstatements from actionable fraud. Today, the court reiterates that materiality of falsehood is an [00:10:00] element and thus a limit on the federal fraud statutes. The fraudulent inducement theory is neither foreclosed by nor inconsistent with the court's precedent.

The court has twice rejected an argument that a fraud conviction depends on economic loss, first in carpenter versus United States, and then in Shaw versus United States. And despite Alpha and Kousisis' contrary arguments, the fraudulent inducement theory does not permit a fraud conviction. Premised on mere interference with the state's power to regulate.

No matter the underlying theory of fraud, section 1343 requires that money or property have been an object of the fraudster scheme. The money or property requirement also explains why the fraudulent inducement theory does not as petitioners maintain collapse. The distinction between the wire fraud statute and the statutes that prohibit [00:11:00] conspiracies to defraud the United States and false or fraudulent statements in federal matters, nor does the theory undermine this court's precedent.

Holding that aside from the honest services exception, section 1343 does not protect intangible interests, unconnected to traditional property rights. If a scheme instead targets some kind of intangible interest, for example, a citizen's interest in impartial government, the fraudulent inducement theory is inapplicable.

Finally, the fraudulent inducement theory does not repackage the right to control theory rejected in Cimonelli. Unlike the right to control theory, fraudulent inducement does not treat mere information as the protected interest. Rather it protects money and property. The fraudulent inducement theory does not [00:12:00] risk turning every misrepresentation designed to induce a transaction into property fraud.

Instead, the theory criminalizes a particular species of fraud and the demanding materiality requirement substantially narrows the universe of actionable misrepresentations. While the wire fraud statute is broad, it is up to Congress if it so chooses to change it. Affirmed end quote, from the Supreme Court's syllabus of  Kousisis versus United States.

Our next segment is Corruption Junction. I've been writing about money and politics for two decades. I was inspired to write my book Corporatocracy because of the events on January 6th at the US Capitol. One way to think of this book is it's the [00:13:00] Supreme Court's horrible Citizens United decision meets the horrifying events of January 6th, so that we are literally on the same page.

Let me read a short excerpt from Corporatocracy

[Reading from Chapter 11 of Corporatocracy]

Let's take a short break.[00:25:00]

We're back.

Now we get to the heart of the matter, which is the problem of political corruption. My guest professor Rick Hasen writes on all aspects of election law and has written several books including A Real Right to Vote, Plutocrats United, and Election Meltdown. Rick runs the excellent Election Law Blog.

I'm so glad to have you here today to speak about the state of [00:26:00] American democracy.

[00:26:00] Rick Hasen: It's great to be with you. Thanks for having me on.

[00:26:02] Ciara Torres-Spelliscy: So what do you do to keep your sanity during these trying times?

[00:26:06] Rick Hasen: We just got a new goldendoodle, so that is taking up some of my time, which is good distraction from the reality of what's going on in this country right now, which is very challenging, and we're living in a quite dangerous time.

[00:26:19] Ciara Torres-Spelliscy: Part of my show talks about my chocolate labradoodle, which is my way of keeping sane. So I think we have a similar approach. But what is the Safeguarding Democracy Project?

[00:26:29] Rick Hasen: When I came to UCLA, I began the Safeguarding Democracy Project. The idea is for it to be a forum to bring together people across the political spectrum.

We get people in the room who are deep conservatives and strong liberals and everyone in between, and also get in the same room. Academics and practitioners. So it's not often you'll have a conference where you'll have a computer scientist next to a historian, next to a lawyer talking about issues of elections.

But you know, that's what we try and do. The idea is what unites [00:27:00] everyone across disciplines and across ideology is a belief that we need to do what we can to. Assure that we continue to have free and fair elections in this country. That's not something that was really on my radar even a decade ago, but it's become a real threat.

And so it is focused narrowly on the question of free and fair elections, but broadly in the sense that what it takes to assure that we have free and fair elections is a, a very complicated question, because we live in a very complex and contentious society.

[00:27:29] Ciara Torres-Spelliscy: Was prosecuting perpetrators of January 6th, doomed to fail.

[00:27:33] Rick Hasen: Well, no, I don't think so. And in fact, I think that if Donald Trump had not been reelected, then those prosecutions would have served as a valuable way of signaling to people that when you try to take steps to interfere with the peaceful transition of power to overturn the results of free and fair election, there are gonna be consequences.

Trump's election in [00:28:00] 2024 actually had the opposite effect. It emboldened people. It said that, don't worry if you commit crimes. If you try to mess with the peaceful transition of power, those people end up succeeding eventually. Then you'll be rewarded and you'll be paid back. It was not doomed to failure.

There's a different question about the attempts to go after Trump himself, but the people who actually committed violence. That would have been successful had it not been for the reelection of Donald Trump. And then his decision to pardon many, not just of the nonviolent people who got caught up in the moment, but some of the most violent people convicted of engaging in sedition, and that really threatened the integrity of American democracy.

[00:28:39] Ciara Torres-Spelliscy: What did you think of the presidential immunity case, Trump versus United States?

[00:28:43] Rick Hasen: That case I is a very bad sign for American democracy. It showed a Supreme Court that was much more concerned about a hypothetical threat to a future president's. Ability to engage in a [00:29:00] vigorous presidency. It was worried about that danger and not worried about the danger right before it, which is the danger that someone who is not respectful of the rule of law could decide, well, this is now a license for me to do whatever I want.

When you combine. The community decision with the breadth of the pardon power, it just gives a president who's not committed to the rule of law, way too much power compared to the kind of power that was actually given to the executive branch in the constitution. It showed a kind of myopia that it showed that many of the conservative justices on the court didn't recognize the full breadth of the powers that Trump might exercise in the future.

Or that another president who's not committed to the rule of law might exercise in the future. And I think it will go down in history as one of the. Great dangerous decisions, not just wrongheaded, but dangerous decisions of the United States Supreme Court.

[00:29:56] Ciara Torres-Spelliscy: When Trump was first president, the Supreme Court decided Trump versus [00:30:00] Vance, which allowed the Manhattan DA to use a grand jury to get at the personal papers of a sitting president, eventually turned into New York versus Trump was prosecuting this case wise.

[00:30:13] Rick Hasen: I do not think it was wise. The theory of the case was hard for me to understand, and I say that as someone who has been teaching and writing about election law for three decades. The original idea was the payment of money to a adult film actress who allegedly had an affair with Donald Trump, that this was a campaign expense that needed to be reported.

There was an attempt to consider federal charges for violating federal campaign finance law for not reporting these, and the federal government declined. This is when it was the Biden administrations, the federal government declined to pursue those charges, but those charges were revived. In the New York case, the New York case involved a New York law, which basically said, if you falsify a business record and you do so for [00:31:00] purposes of trying to commit another crime, or that this turns a misdemeanor failure to accurately report your business records because the payments were concealed as payments to a lawyer, turns it from a misdemeanor to a felony. Certainly Trump was guilty of a misdemeanor, and if this were a normal case, it might have been pled out because of prosecutorial discretion, but this was an attempt to try to charge Trump with a felony, and I think the reason for it was because the more serious charges, the charges of real election interference, what Trump tried to do in overturning the results of the 2020 election, those charges were not going to be resolved in time.

That's part of what got caught up in the Trump versus United States case. There were also very serious charges of mishandling classified documents. That case went nowhere because the judge who had that case. Was essentially running political interference for Donald Trump. There were two cases with very strong arguments that Donald Trump committed serious criminality, but this case was not that.

The New [00:32:00] York State case was essentially an attempt to try to take something that was very minor, something that would not have been a. Considered to be a serious crime and try to turn Donald Trump into a felon, I think for political purposes, and I was consistently very critical of this case. But when that's the only weapon you have and you're trying to go after Donald Trump, I think some people decided that that was the way to go.

[00:32:20] Ciara Torres-Spelliscy: Did you have any more positive assessment of the Georgia case against Trump?

[00:32:24] Rick Hasen: The problem with the Georgia case against Trump. Was that it was brought as a very complex RICO case. A RICO is just essentially a criminal conspiracy. It was very clear that that case was going to take years to prosecute if the federal indictment of Trump for actions related to 2020 was kind of like a precision missile.

This was a broad based cluster bomb attack. I certainly think that from my knowledge of reading the statutes, that there was a plausible case to be brought against Trump, but it was so unwieldy, it seemed like the wrong vehicle. And of course that case ended up running into two other problems. First, there was a scandal [00:33:00] involving the prosecutor and that derailed things, but also there's now this question of immunity and so if we ever get back to trying to try this case, there's gonna be a whole set of immunity questions. The Georgia case, probably they had the right idea in mind, but the way that they were trying to go about doing it was tactically a mistake.

[00:33:18] Ciara Torres-Spelliscy: So when I teach Watergate, I remind my law students, lots of the lawyers who were involved were disbarred, including the Attorney General and President Nixon. Should the lawyers who were involved in the 2020 election denial and or the fake elector scheme be punished by the bar?

[00:33:35] Rick Hasen: So I think each case is subject to its own processes, and I've been watching the processes related to John Eastman, related to Rudy Giuliani.

A lot of it depends upon whether the lawyers were offering good faith legal arguments or not. And that is a factual question, and I would leave it up to the fact finders at the bar and the decisions related to Eastman and Giuliani. There were certainly plenty of evidence to [00:34:00] make those kinds of determinations.

The fact that Sidney Powell, one of the lawyers in the so-called Kraken cases, these were really ludicrous kinds of claims that were based on no evidence. At bottom, lawyers have a responsibility to be truthful to courts. They have responsibility not to deliberately put out frivolous legal claims for political purposes, and to the extent that it could be shown that any lawyer has done that.

And done so in the serious context of trying to overturn the results of a free and fair election that is grounds for disbarring someone. Certainly.

[00:34:32] Ciara Torres-Spelliscy: When I first started teaching, I never taught the crime fraud exception, and now I find myself teaching the crime fraud exception to attorney-client privilege in election law, which is sort of a wild thing to have to do.

[00:34:47] Rick Hasen: Yes,

[00:34:49] Ciara Torres-Spelliscy: Protect democracy helped Ruby Freeman and Shaye Moss sue Rudy Giuliani for Defamation. Is defamation a good tool to combat lies about [00:35:00] election workers?

[00:35:01] Rick Hasen: Yes, the short answer is yes. What I would say is that defamation is a limited tool to try to deal with the broader risk of election subversion.

I've written about this a little bit in a new article I have in the Yale Law Journal called The Stagnation, Retrogression, and Potential Pro Voter Transformation of US Election Law. We need a lot of legal tools to try to assure that we continue to have free and fair elections. One of those is defamation.

So defamation, someone has to make a false statement that injures someone else's reputation under the First Amendment. The statements have to be proven to be made with actual malice, which means either knowing that they're false or with reckless disregard as to their truth or falsity. When someone is actually defamed, as these election workers were, they were accused of engaging in conduct to try to manipulate the results of the US presidential election in 2020.

In Georgia, it was completely false. It was based on video evidence that was completely, deliberately [00:36:00] misinterpreted to create the impression that there was some kind of fraud going on, and it was absolutely untrue. So it's great for them and it essentially bankrupted Rudy Giuliani until somebody, we don't know who, paid for some of his expenses and saved him from essentially losing just about everything for these malicious lies.

The reason I say it's only a limited tool is that when you think of some of the statements made, like the election was stolen, the election was rigged. Things like that, that could be used to try to manipulate public opinion to make people think that an election's being stoned when it's not, even if the statement is made with actual malice, there's no person that's being defamed.

But if no one is defamed, you cannot use defamation law to go after them. And then there's question if there's other things you could do consistent with the First Amendment to try to deal with the problem of people making up lies to try to undermine the public confidence in the integrity of the election.

It's a tool, it's a valuable tool, but it's not what's gonna save us.

[00:36:57] Ciara Torres-Spelliscy: My father talked with some dismay about [00:37:00] how embarrassing it was that America couldn't run an election more competently. He was referring to Florida during the 2000 election. How did Bush versus Gore change election law?

[00:37:11] Rick Hasen: Bush versus Gore changed election law in a lot of ways.

The first and foremost, and perhaps this is the best thing that came out of Bush versus Gore, is it demonstrated how poorly our election technology worked. The Caltech MIT voting technology project said that over a million people had their votes not counted because of faulty technology. The old voting machines, like the ones that produced the hanging chads, didn't work well.

What happened afterwards was that the worst of the voting technology was phased out. That is a positive story and with greater attention on how elections are run. There's been more attention paid to professionalism, to metrics to see that elections are being done fairly. Congress passed the Help America Vote Act, which did some things to improve elections with so much fighting about elections.

There's a [00:38:00] lot more attention on how elections are run, and I think that's made them better. So that's all positive. Negatively, one of the things that Bush versus Gore taught was that in very close elections, the rules of the game matter. And there might be a reason to try to change those rules about how people vote, where they could vote, when they can vote. And this has led to lots of changes passed along party lines in various states. We have a decentralized election system. The changes could be made on the state or county level. This in turn, spurred a lot more litigation. The amount of election litigation nearly tripled in the post Bush versus Gore period compared to the pre- Bush versus Gore period.

We set records in terms of the amount of election litigation in 2020 and then again in 2024. We live in what I call the period of the voting wars. Bush versus Gore really started us down the road towards our elections being more contested. It overlapped with periods of greater polarization in how elections are being conducted.

In the end, the case itself has led to people thinking that the court is [00:39:00] more politicized. And of course, today, major election cases end up dividing along ideological, and in many cases along party lines because now all the conservatives on the court were appointed by Republican presidents, all the liberals by Democrats.

When you get a ideological split. It looks like a party split too.

[00:39:16] Ciara Torres-Spelliscy: How has the Roberts Court impacted the justiciability of election law? Would you mind telling our audience what in the world justiciability is?

[00:39:25] Rick Hasen: So the question is really, what kinds of disputes will the court be willing to hear?

Let's compare two kinds of cases. One kind of cases. Somebody says that a particular limit on how much they can contribute to a political committee, violates the First Amendment. Supreme Court's very willing to hear that case. That's a Justiciable case. It's a case that the court will decide whether or not there's a First Amendment violation.

Compare that to the question of partisan gerrymandering when a legislature or some other body draws district lines for the election of members of Congress or a state or local legislature. And they do so in order to give [00:40:00] one party an advantage over the others, the Supreme Court, in a case called Rucho versus Common cause, the Supreme Court said there are no standards that we can apply to determine whether or not partisan gerrymandering violates the Constitution.

We're not gonna hear those kind of cases. What does that mean? You put those two things together? Well, the Roberts Court is perfectly happy to strike down campaign finance limits. It's not going to interfere when a legislature passes a law that makes it easier for the party in power to stay in power. So these kinds of decisions about whether or not to hear a certain kinds of cases, well those have repercussions, essentially gives a green light, at least as far as the US Constitution is concerned, to be able to engage in conduct that potentially affects political power in this country.

And that potentially violates the Constitution Supreme Court in a case like Rucho and say, well, it is constitutional, but just fine. It says, instead, we can't decide that question, which is in essence giving the green light.

[00:40:57] Ciara Torres-Spelliscy: What has the Roberts Supreme Court done to [00:41:00] the Voting Rights Act in Shelby County?

[00:41:02] Rick Hasen: The Voting Rights Act passed originally 1965, contained a provision that said that jurisdictions with a history of. Racial discrimination in voting had to get federal approval or pre-clearance before they could make changes in their voting rules in order to get the pre-clearance. The jurisdiction had the burden of proving that the law wouldn't make minority voters worse off.

And the whole idea of this pre-clearance provision was before this time, US government would sue for some voter suppression tool that was being used against black voters as soon as, DOJ won the case. The jurisdiction would impose a new kind of restriction and they'd argue, well, we're not bound by that old case 'cause that was about a different restriction. And this pre-clearance was meant to flip the burden of proof and to sell states. If you're gonna make a change, you need to show that the change would not make things worse. In the Shelby County case, the Supreme Court after held that it was no longer constitutional that the problem of race discrimination in the South was no longer.

As bad as it used to be, the Congress had to come up with [00:42:00] contemporary evidence of the kind of discrimination that existed before the Voting Rights Act in order to demonstrate that this law is necessary. This was of course, impossible to do because the Preclearance provision meant that these restrictive provisions could not be put in place.

So the court had imposed a new standard. It had been deferential to Congress, which after all in the Constitution has the power to protect voters against race discrimination and voting under the. Enforcement powers given in the 15th Amendment. It was really the first wave of the Roberts Court's major attacks on the Voting Rights Act.

[00:42:35] Ciara Torres-Spelliscy: What did the Roberts Supreme Court do to the Voting Rights Act in Brnovich?

[00:42:39] Rick Hasen: If it's a one two punch? Here's the second punch. Brnovich was the case about a different part of the Voting Rights Act. Section two, the Voting Rights Act. Applies nationally, puts the burden on plaintiffs to show that a voting practice or procedure gives voters less opportunity than others to participate in the political process and elect representative of their choice in the Brnovich, which case the Supreme [00:43:00] Court read this part of the Voting Rights Act, section two very narrowly in the context of laws that make it harder for people to register or to vote.

Section two still had a lot of teeth when it was applied to redistricting. It was a way to assure that minority voters would have some kind of fair representation in Congress and in state legislatures. But the Supreme Court in a series of other cases has been whittling away at the Voting Rights Act.

There's currently a case pending before the court that should be decided by the end of the Supreme Court's term. This, that weighs in on the question of the scope of section

two.

[00:43:36] Ciara Torres-Spelliscy: Congress passed FECA, the Federal Election Campaign Act of 1974. What did the Supreme Court do in Buckley versus Valeo to that law?

[00:43:45] Rick Hasen: The 1970 FECA amendments were the most comprehensive and important campaign finance laws that had been passed in the United States. The court essentially split the baby. It said that certain kinds of campaign finance laws are a violation of the First Amendment. Those are [00:44:00] basically laws that limit independent spending by individuals or by candidates.

Court said it was, it was too much of a restriction on speech and struck it down, applying strict scrutiny. The court said that such limits couldn't be justified by preventing corruption because if the spending is really independent, it cannot really corrupt. However, the court upheld. Limits on contributions to candidates.

So the court said you could limit them on to giving, say, up to a thousand dollars to a candidate. That wouldn't be a as big a restriction on speech, and that could be justified to prevent corrupt. The court also upheld the disclosure laws saying that they help prevent corruption, provided information to voters and also help to enforce other campaign finance laws.

But it's set up, most importantly, this dichotomy between contributions and spending where the general pattern has been the contribution limits had. Been upheld and spending limits had been almost uniformly struck down. The general framework of Buckley stands to this day.

[00:44:59] Ciara Torres-Spelliscy: My next [00:45:00] question, both of us have

written full law review articles on what has the Roberts Supreme Court done to campaign finance.

[00:45:07] Rick Hasen: When Justice O'Connor retired from the court and was replaced by Justice Alito, the Supreme Court went from having a court majority that was mostly upholding campaign finance laws, including the rare spending limit that was applied against corporations to now the court either struck down or limited such a limitation, and that includes contribution limits.

So that Buckley dichotomy between contributions and expenditures we're moving much more towards a period where. Most campaign finance laws are considered to be unconstitutional. Recently written a draft article, which is on SSRN, talking about how we live in a time of foe regulation. There are still some limits.

So for example, you can't give more than $3,500 to a candidate running for federal office for their primary campaign. Now, the $3,500 for the general election, that's a real limit. And if you start try and give a candidate [00:46:00] $10,000, you're violating the law. But if you actually wanna influence the outcome of the election, you could simply give the money to an outside group, like a so-called Super pac, and it can help the candidate almost as much as the money going to the candidate herself. And so the little guy who doesn't really understand the rules, that person could get caught up in violating campaign finance laws.

But if you're super wealthy, no problem. You could spend as much as you want. And new paper I have, I've computed that there were six people or couples. Who gave at least a hundred million dollars to outside groups in the 2024 elections. Like we've never had a period where there was more than one or two.

And we have this period where the ultra wealthy are able to give whatever they want, the whole concept, that it's somehow is not corrupt because the money's not going directly to the candidate. That's one of the ideas behind the Buckley case. I think that's been proven to be false. I think it's very clear that those who are ultra wealthy [00:47:00] have outsized influence not only over who's elected, but what policies those who are elected pursue once they're in office.

[00:47:07] Ciara Torres-Spelliscy: What has the Robert Supreme Court done in public corruption prosecutions?

[00:47:11] Rick Hasen: Well, I mean, Ciara I think you're much more of the expert on this than me, but I'll just say a sentence or two, which is that these are cases where there's often unanimity on the court. In saying that a lot of these public prosecutions are illegal for corruption.

The most prominent of these recent cases is a case involving Bob McDonnell, the former governor of Virginia. Where he was doing some crazy things like accepting Rolex watches and having his daughter's wedding paid for by this donor who was also trying to get business before the Virginia universities to do research into this product that he was creating.

The Supreme Court said that the governor making introductions to people in government, to this big donor, that this was not an official act. There's a difficulty [00:48:00] here. Look on the one hand. When it comes to state and local corruption, often the federal government's gonna be the only entity that's gonna go after it.

It's very hard for state prosecutors to go after important people in the state, like the governor. On the other hand, someone who's a politically ambitious US attorney might decide to pursue one of these cases because they're trying to make a name for themselves. A court is skeptical of these things. One of the most surprising things to me about the McDonnell case is that it wasn't illegal under Virginia law at the time to give the governor a Rolex. There should have been gift laws and things that would've prevented some of this. The message the court sends in these public corruption prosecution cases is that the court's going to err on the side of seeing these shady kind of deals as business as usual, and that unless there's something that looks like a smoking gun of a kind of quid pro quo bribery situation, it's gonna be very hard for that prosecution to be sustained.

[00:48:59] Ciara Torres-Spelliscy: Can [00:49:00] the government by the people long survive?

[00:49:02] Rick Hasen: There are real, real concerns about whether we can continue to have free and fair elections. There have been many attacks on the processes by which we run our elections. These attacks are not based in reality, but they do undermine people's confidence. The message I send people is one of resilience.

We need to fight to make sure that the center holds, that there is a group of people who may disagree about lots of things, but agree on the need for free and fair elections. That's the work that we're doing at the Safeguarding Democracy Project. People are paying attention now if there is enough pushback and enough of a sense that our democracy is at stake in what's going on now, that there is a chance for us to actually be able to make it through this period.

[00:49:47] Ciara Torres-Spelliscy: Is there a final thought that you would leave with our audience?

[00:49:50] Rick Hasen: The world's kind of a crazy place right now, but for those who are paying attention. This is the time to be activated. It's time to be contacting your [00:50:00] elected officials, your election officials, to make sure and to advocate for the continued experiment in American democracy.

That's been going on for at least many decades, and I hope for many more decades to come.

[00:50:13] Ciara Torres-Spelliscy: Where can the audience find your work?

[00:50:14] Rick Hasen: Election law blog.org. And I'm also on Blue Sky at Rick Hassen.

[00:50:19] Ciara Torres-Spelliscy: Thank you so much for being here today.

[00:50:21] Rick Hasen: It was my pleasure.

[00:50:22] Ciara Torres-Spelliscy: Let's take a short break.[00:51:00]

And we're back.

As someone who spends her time focused on political corruption, it's easy to end up with a dim view of humanity. But one thing that has kept me sane and happy over the past eight years is my 100 pound chocolate Labradoodle. Let me share my life motto with you, which is "Loves dogs hates corruption."

There are a lot of draw bridges in my part of Florida. Depending on which way I drive, I can hit three different draw bridges between my home and my campus. There is a draw bridge between my home and the nearest beach, and my husband likes to get exercise by walking the doodle down to the beach. So most days they just walk across the bridge. Easy peasy. Go to and from the beach, but [00:52:00] recently when they were walking from the beach, the drawbridge was going up, which meant that they were stuck on one side.

While the drawbridge slowly is raised, a boat goes through, and then the drawbridge is lowered back into place. And this was the first time that my dog had seen a drawbridge in action. His reaction was to give the experience exactly zero stars. His expression was what fresh hell is this? That a bridge that he had walked across was suddenly vertical instead of horizontal. And when the bridge was back in place, he walked on it very carefully and very gingerly, as if it could break into a million pieces at any moment, but he made it safely across the bridge and safely home. Okay, now back to business.[00:53:00]

So now we get to our final segment. The fixes in many of the problems with our democracy seem unfixable, but that is not true. These problems were created by human beings, and they can be solved by human beings. We can improve laws and practices at the local, state, and federal level. The first step is realizing that these are not unsolvable problems.

We can fix it. Today, we talked about legal accountability and election law. Some of what we talked about is civil litigation, like that being done by protect democracy to defend election workers using defamation law. This is how Rudy Giuliani was sued by two Georgia election workers who he defamed a jury in his case awarded $150 million.

One of the ways that you can help is find the nonprofits [00:54:00] that are doing this groundbreaking legal work and support them. Just remember that democracy is worth defending and a little truth goes a long way. Thank you to my guests for joining me today. This is a production of Ciara Torres acy, who can be found on social media as Prof Ciara, P-R-O-F-C-I-A-R-A.

The episode was mixed by WBAI. Our logo is by entire world. Theme music was composed and performed by Matt Bowler. This show is based on the book Corporatocracy, published by NYU Press. This has been Democracy and Destiny with Ciara Torres Spelliscy.