OA636: Finally, a Deep-Dive on Citizens United!

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:01:17 Thomas: Hello and welcome to Opening Arguments. This is episode 636. I'm Thomas. That's Andrew. How you doing, Andrew?

0:01:23 Andrew: I am doing fantastic, Thomas. I not could be more excited to bring this episode to folks.

0:01:29 Thomas: Long last, we're doing it. We're doing a deep dive that I thought, you know, I shazammed, whatever that phenomenon, I Berenstain Bears this into existence because in my mind we already did this, but I've traveled to the dimension in which it's BerenStain Bears and also we didn't do Citizens United yet. So, hello, I'm from another dimension, haven't it, it's new to me. So I'm excited for our breakdown of Citizens United. Let's get into it, Andrew.

0:01:59 Clip: So what you've now got are these super PACs, funded by billionaires, effectively trying to buy elections, and that cannot have been what the founding fathers intended. No, I think Thomas Jefferson would have said the more speech the better. That's what the First Amendment is all about. I'm But talking about money. You can't separate speech from the money. That Can't you? Utterly impossible.

0:02:20 Thomas: So, Andrew, I can't believe this, and I'm pretty sure this isn't true, but you are telling me, in all the 600 plus episodes we've done, we've never actually covered Citizens United?

0:02:33 Andrew: We have never done a deep dive on perhaps the most infamous Supreme Court decision, you up until Dobbs, Citizens United versus FEC, whoo,

0:02:41 Thomas: Yeah, up until a year or two ago, very notable decision, now it's not in the top ten of terrible decisions of this millennium.

0:02:52 Andrew: It is terrible, though, and and spoiler alert, I'm going to walk you through how this was a preview of the Supreme Court where we are now. So, I'm going to give you an originalist case against Citizens United. I'm gonna give you the ordinary model of jurisprudence case against citizens. It's a bad case. So, yeah,

0:03:11 Thomas: Let me ask you though I when I when saw That we were doing this, my first thought was like, oh yeah, remember when that was like the biggest problem? I compared to everything now, now it's, you know, it's insurrection, it's outright fascism, it's all this stuff. But it is interesting that like this was, I mean, for a decade, this, this was like the preeminent terrible thing that the court had done, and I am really curious to to get the breakdown the and finally learn why it was so terrible and wrong, even under their model of jurisprudence. Can't wait, yeah.

0:03:43 Andrew: And let's be clear about this. The fact that we have accepted as a background condition that corporations can raise infinite amounts of money and spend them any way they like on behalf of candidates, that shouldn't be the rules. That has not been the rules in this country for all but minus the last 10 years of our history. We could have that back again. And if you don't think that the pernicious effects of that are part of what put us in the position here today, you I'm here to some doubts on this. I'm not going to talk about the effects so much as I'm going to talking about, know, you what an unbelievably outcome-driven opinion this was, but make no mistake, the effects right? Here are incredibly pernitious. Ambitious yeah

0:04:16 Thomas: Yeah where do we start I mean I by the name I imagine it was a bunch of citizens got together and wanted to make the world a better place yeah

0:04:37 Andrew: They might as well call it kittens yeah in trees llc

0:04:39 Thomas: Yeah citizens united bald eagle freedom for america

0:04:44 Andrew: Yeah Let's talk a little bit about, like I said, I want to give you the originalist case against Citizens United. So let's talk about where we are now and then kind of work backwards. Because I think people look at corporate funding of elections and purchasing and outright purchasing of candidates as, you kind of a uniquely 20th, late 20th century, 21st century problem. But as it turns out, rich and storied history as there became increasing income inequality in this country with being concerned about rich people being able to buy the government they want alongside with being able able to buy everything else. So um, let's do a little bit of a backgrounder on, I know, I our listeners don't need to be told um what wealth disparity looks like in the United States right now. It um is at its all-time worst. Um, and let's differentiate, by the way, between wealth and income, right? So I know you know this, our wealth is the assets that you own, right,

0:04:44 Thomas: Uh minus the liabilities. Importantly Importantly, because a lot of people in our country have negative net wealth, probably

0:05:46 Andrew: Yeah. Right yeah all of your debt loans so credit card balances student loans mortgages anything that that has you in debt you subtract from your assets

0:06:01 Thomas: As long as you're not underwater on your mortgage, then you should be good there. Yeah.

0:06:02 Andrew: Right right and by when you talk about assets, for right, the overwhelming majority of this country, the two that assets that people own are home equity plus their retirement accounts, That's it. We no longer have savings accounts are no longer a significant portion of people's assets. That's, you checking accounts average out to about zero. In an aggregate, they average out to about to about 0. all Right. Of everything else in terms of ownership is almost exclusively a function of the wealthiest elite in this country. You know that it is stratified at the top.

You might not know how stratified it is at the top. Pulled So some census data in 2019. So, Total wealth in the country was $96.1 trillion. The census breaks it down by households. The 2019 population was 129 million households, So right? That would mean, right, quick math, the average household should have three quarters of a million dollars in assets. Assets yeah And if you're sitting there going, and I have three quarters of a million dollars in assets, um, here's why, because the minute you start breaking it down into, let's say, deciles, the top decile, right, so to be in the top 10 percent,

0:06:16 Thomas: Yeah. Right. Right, right.

0:07:04 Thomas: Holy crap.

0:07:18 Thomas: You got to be Conrad Michaels

0:07:19 Andrew: Yeah.

0:07:20 Thomas: And you got. Oh, no. Sorry. Different thing.

0:07:21 Andrew: A family needed to have $1.22 million or more in assets so in other words the very bottom of the top Decile was was a family, a household with $1.22 million in assets. Yeah,

0:07:31 Thomas: OK, can And this was just like households. This wasn't like corporate assets included or anything. Thing? Okay.

0:07:40 Andrew: Nope, just households.

0:07:41 Thomas: So just households. Got it.

0:07:41 Andrew: Right. Yep. That is 12.9 million families. We're at $1.22 million or more. And taken together, they own 76% of the wealth in this country. That is $73 trillion. And that number is almost certainly a little higher now, right?

0:07:57 Thomas: Oh, because these numbers are pre-COVID. And I know that COVID actually just made wealth inequality even worse.

0:07:59 Andrew: Yep. Way worse. Yep, So that back then in 2019 was an average of $5.7 million. If you were in that top 10%, that was your average wealth. So automatically then, if you were hit the rest of the 90%, you know that that that was not going to even approach the median. So then to I looked at the next 40%, okay? So those are the people from 11% all the way down to 50. So it's the rest of the top half. You to be in the top half, you needed $122,000 or more in assets. That's 51 and a half million households. And together, they own 22% of the wealth. So yeah, yeah.

0:08:04 Thomas: Yeah. Wow.

0:08:45 Thomas: That's a very reasonable amount of wealth for a household. I mean, you might have made enough mortgage payments and your house went up a little bit in value to easily have that amount. Yeah, but it's kind kind of depressing and crazy that that's such a small percentage of the total wealth of the country. If you take families and you're like, here's, you know, like a reasonable amount of wealth that your average family should have. Oh, how much of the whole wealth of the country is that? A meaningless amount.

0:08:49 Andrew: Yeah. To some assets. That's exactly right. Yeah.

0:09:12 Andrew: Yep.

0:09:12 Thomas: It's crazy.

0:09:13 Andrew: And that's 22%. So the 76% I'm rounding down, the 22% I'M rounding down, but you add those together and you get, once you count those two, 99. That means everybody else, 64 and a half million households, owns 1% of the wealth in this country. 13 and a half million are underwater. They have a negative net worth, their that debts exceed their assets. Um, gets worse in a couple of ways. So within that top percent, the curve is incredibly steep. The top one percent owns basically half of what the top 10 percent owns.

0:09:15 Thomas: Yeah. Yeah, wow.

0:09:51 Thomas: The fact that we're not doing a Bernie impression during this entire thing is, you now, I think the audience should could thank us for that. Yeah.

0:09:51 Andrew: Right. Know millionaires and billionaires he's

0:09:58 Thomas: Millionaires. Well, I mean, and he's right about this and it's an amazing, effective message. And I'm glad that he's, that he broadened our knowledge of this problem. And now we can say the one 10th of one of one 10 of 1%. I love it.

0:10:02 Andrew: Yep yep so top one percent owns half of the wealth that the top 10 percent owns so

0:10:16 Thomas: Half of the wealth that the top 10%. Okay. So not half the total wealth.

0:10:17 Andrew: Yeah Today, that's about $45 trillion just owned by the top one. It was about $35 trillion in 2019, which again tells you a little bit about the way the past three years have gone, and it is accelerating generationally and and the Way to think about that is, um, start off with, uh, what is now called, I did I not know that this was sort of the official name, is the silent generation, I, you know, it was always yeah it was Always the Greatest Generation when I was growing up those are the people born Oh, okay, all right, um, you were right. Greatest generation is right before that. Yeah, it, 1928 to 1945, and so that would make you 0 to 17 by the end of World War II, yep.

0:10:35 Thomas: Yeah, the one before boomers, right? Right yeah no the the greatest is before silent You weren't old enough to have won World War II, but you also weren't a boomer, that's right, that's why they're the sign, okay. Ja

0:11:06 Andrew: Yep. So silent generation, right? They have a median wealth right now of $253,000, okay? And you're sitting there going like, all right, well, yeah, because they're literally 100 years old. When you have the most assets.

0:11:17 Thomas: Literally 100 you would think

0:11:21 Andrew: I put them in there by contrast so that you understand that baby boomers, right? The next generation after that, 1946 to 1964, have a median wealth of $240,000. Dollars. And Right. When you say all the money, that is all the money, right? Like they have about the same wealth as those who were a generation older than them. And Yeah.

0:11:33 Thomas: The money well

0:11:44 Andrew: The next generation down from that is mine. I'm on far the end, but 1965 to 1980 is Gen X. And their average wealth is $120,000, so half. And then you get to divide that by when you get to millennials have

0:11:43 Thomas: On average right yeah yeah get ready for some millennials yeah because we bought too much avocado toast do they count the avocado toast numbers does that count to our wealth

0:12:10 Andrew: Yeah, that's in the assets, yeah. The average millennial has $27,000 in assets. So is a massive transfer transfer of wealth inequality. And part of the reason that the rich are getting richer is that we've put in politics and plans, created massive exemptions to the inheritance tax that make it easier for rich people to pass on their wealth to their talentless hack kids. Part of it is also Also, that income inequality is on the upswing. This is not a thing I should have to prove to you. Income inequality can be measured in any number of ways. And all of them show that income equality in the U.S. is on the rise. There are two kind of commonly used measures. One is the 90-10 ratio, right? That's the ratio of income needed to rank among the top 10 percent, the 90th percentile, versus to be in the bottom 10%. In 1980, that ratio was 9.1, right? Households at the top had incomes that were about nine times higher than households atthe bottom. In 2018, it was 12.6. So basically, you know, 40% more than it had been 40 years ago.

0:12:11 Thomas: Yeah yeah oh

0:13:23 Andrew: When you look at us as an overall economy, I know you know this measure. It is called the Gini coefficient. It requires advanced calculus to calculate. But basically, it's measure between zero and one, where zero would be perfect equality,

0:13:31 Thomas: Yeah yeah you know what I think it's the measure of is the American dream and America ranks very low in the American Dream I wish conservatives would freaking realize this

0:13:43 Andrew: I think that's an excellent way of putting it. So, zero to one, where one is complete inequality, zero is complete equality, uh, United States in 2017 was at 0.434, higher than any of the nations, uh, higher than continental Europe. Um, of control, are the- what arethe issues that you had mentioned to me, sort of offline, was the question of mobility, right? Like how well can you move from, you the bottom decile up, you up your deciles, right? And And economists have come up with a lot of ways of trying to measure that level of inequality and mobility, and particularly to track that data historically over time, because one of the things that we're a disadvantage about is that for a very, very, very long time, historical data were things like you

0:14:38 Thomas: How many railroads you owned?

0:14:39 Andrew: Yeah, that's exactly right. So in 2016, economist Peter Lindert and Jeffrey Williamson wrote a book called Unequal Gains, American Growth and Inequality Since 1700. And they were the first people to really try and go back and figure out what did income look like in 17th, 18th, 19th centuries. Right. And so one of the things that's really interesting about their methodology from an economic standpoint is that if you do it right, you should get the same aggregate number at the end of the day that you get from either looking at the production side or looking at at expenditure side, for which we do have some numbers.

0:14:41 Thomas: Yeah. Yeah. Hmm.

0:15:22 Andrew: Right, all the income in the united states added together multiplied by the pricing index gives you GDP right

0:15:28 Thomas: Right. And when do we start having those numbers?

0:15:30 Andrew: They've been able to reconstruct again with some ability to backstop and this is peer-reviewed they're economists and I'm not so I'm going to take their word for it uh going back to the 18th century, um, they created a measure, uh, that, um, reflects the the discounted income. Here, I'll read what they say: "We work on the income side, constructing nominal current price GDP from free labor earnings, property incomes, and, up to 1860, slaves' retained earnings, that is, slave maintenance or actual consumption." Okay, the other point that they make with respect income to inequality that I want to flesh out before we look at numbers the is, and this never, ever occurred to me, this shows up as a footnote on page two of their work, and they're like, no one ever talks about this. But one of the things that happened in the United States and in society more generally is that in the 19th century and in the 20th century, lifespans drastically lengthened, right?

0:15:32 Thomas: Oh, Okay. Sure. Yeah, well, This is always a interesting thing because I was under the the impression that lifespan actually doesn't change that much, but just average, uh, mortality, because of eliminating sicknesses and children and stillbirths and all that. So, if you average it all together, it looks like we live a lot longer, but if you actually look at the numbers, it's just that the people who make it out of the early years of childhood live about the same amount, it's way more of them are doing that.

0:16:54 Andrew: That is exactly right. So let me read what they say, "At this point, we need to emphasize that the inequality we should really care about is the distribution of lifetime resources as shared within a household, can be measured as an inflow by lifetime earnings plus inheritance, or as an outflow by lifetime consumption plus bequest. For most people, any calculation of their lifetime income reveals, reveals the quantitative dominance of labor earnings or of consumption flows, not of wealth. Earnings from accumulated skills, ability, and effort account for more than half of lifetime incomes, and wealth misses this. More importantly, the modern distribution debate has failed to note the fact that inequality of, of lifetime income must have been reduced dramatically by rises in life expectancy." And then this is your point. "Since the 19th century, the spectacular decline in infant and child mortality, and that of young mothers in childbirth, has not only improved average life expectancy, but has also caused a spectacular convergence in those rates across income classes."

0:17:50 Andrew: So let's unpack what that means. You are absolutely correct that the average lifespan, the reason it goes up drastically, is because infant child death rates drop down to, you almost zero, right? And the a third category, in addition to having high infant mortality, high child mortality, we had huge rates of dying in childbirth, right? And that's a third one. That we were able to bring down you're but correct that like you that dwarfs the like you if you lived out of childhood and survived childbirth, know, maybe you lived until 70 then and 80 now or 60 then and 70 now or whatever like Yeah, that's

0:18:10 Thomas: Yeah. It's not much yeah I'm pretty sure by the numbers it's not a whole lot.

0:18:26 Andrew: The overwhelming source of those gains. But the historical inequality of lifetime income has to then come down because changed the denominator.

0:18:28 Thomas: Yeah. Yeah, less time to be unequal. Or

0:18:34 Andrew: Yeah. Yeah. That's that's exactly right. Right. You have many more people over a longer period of time in the denominator across every decile, even right, at the bottom income levels, those people are earning longer. And so you're now dividing by a much larger number. And so to maintain the same ratio requires inequality. The numerator to have skyrocketed way more than people have thought about.

0:18:50 Thomas: Oh, I'll set aside a bunch of math questions I have. I'm not sure. What is a numerator that is inequality if the denominator is lifetimes? Calculus.

0:19:12 Andrew: I don't have their equation

0:19:13 Thomas: Yeah! I'm not doubting this math I just like to try to fully understand stuff and I just uh not fully getting it but we'll assume it's very advanced calculations that only Good Will Bunting could do on his uh lunch break at the uh yeah

0:19:13 Andrew: Yeah yeah I yep yeah I yeah they're the economists and I'm not but But let me, let me share some of their conclusions with you, because these were not things that, that I knew. Um, I suspect if if I asked it to you as a question, like, "When did economic inequality really start rising in this country?" I, my guess, prior to reading the data, would have been, yeah, at the end of the Industrial Revolution, right? End ofthe 19th century, beginning of the 20th. That's when you had robber barons, that's when things were out of control.

0:19:28 Thomas: Totally Oh.

0:19:53 Andrew: Here's

0:19:54 Thomas: Interesting. I would have guessed in because I thought the robber baron stuff was more in the later 1800s and stuff got really out of control then. And then I actually already just, I, I think I just know this fact. I'm pretty sure that, both World Wars were big equalizers in terms of wealth inequality. Go ahead. Yeah.

0:20:09 Andrew: Yeah you are more educated than I am

0:20:12 Thomas: And then I know what brought it back after it got a little better, but I won't skip ahead.

0:20:13 Andrew: Yeah we'll go there so now I'm quoting directly from their findings colonial colonial america was the most egalitarian rich place on the planet in 1774 america had a very equal distribution of income again you you obviously the slavery thing that's a that's a big thing we're measuring from households. So I am not saying that life is fantastic for, you the majority of Americans in 1774. But as a measure of household income, America was far more egalitarian than Britain, than continental Europe, than the rest of of Western civilization with a big bottom and middle income shares and small top income shares. As measured by the Gini coefficients we talked about on the top shares, America had a much more equal distribution, even including the slaves, than did Britain and the rest of

0:20:26 Thomas: Ah, if you don't count. Yeah. Right. Wow.

0:21:09 Andrew: Northwestern Europe.

0:21:09 Thomas: Even including slaves.

0:21:11 Andrew: Inequality was much lower than it is today,

0:21:14 Thomas: So we had a group of people in slaves. So definitionally with no wealth and no ability to earn money and our income inequality is worse now than then. All right. That should be a bit of a wake up call. I think.

0:21:24 Andrew: Correct. Correct. Yeah. And so also put a pin in it that when you're talking about our revered founding fathers, of whom you will see very little mention in these coming decisions that we talk about, interestingly enough, they lived in, to their peers, a fundamentally egalitarian society. Society they

0:21:44 Thomas: Yeah. I wondered if that should inform how we interpret their words. Did they also live in a a society where you could own like a grenade launcher and a nuclear weapon no they didn't weird I

0:21:52 Andrew: They did not but we'll get there when I say fundamentally egalitarian I understand for this episode I'm talking about in an economic sense right none of Us are defending slavery or the treatment of women as property or any of the problems in 18th century humanity. So there was a long steep rise in in American inequality between 1800 and 1860, matching the widening of income gaps that we have lived in since the 70s. The earlier rise was not dominated by a surge in the property income share, as has been true since the70s. Rather, the first great rise in inequality was broadly based, with a widening of income caps throughout the entire spectrum, urban-rural income gaps, skill premiums, gaps between slave and free, north-south income gaps. Earnings inequality and

0:21:55 Thomas: Yeah brackets yeah of course huh interesting

0:22:39 Andrew: Even property income inequality, the decline to the South did not begin with its defeat in the Civil War. The South's relative income per capita had already been falling for about 200 years, at least since 1670, when the South was apparently the richest of the 13 colonies, richest even when slaves are counted as low-income residents, right? The South relative decline at multiple causes, but prominent among them were Revolutionary War losses, declining export prices as a young republic, Civil War losses, and its failure in the 19th century to provide public education, even for free whites. Yeah.

0:23:14 Andrew: Interesting parallels, huh? Income Yeah. Inequality rose in the North during the 1860s, but emancipation and defeat greatly reduced Southern inequality. The widening within the North and the widening between North and South were sufficient to offset the massively egalitarian redistribution within the South. Chew on that for a bit. What we're saying is in the 1860s, the South all of a sudden became much more egalitarian, had two separate causes to that, broadly speaking. Number one, they lost a war, and so lots and lots of assets were destroyed during that time period. That by definition and as you alluded to earlier we

0:23:14 Thomas: Yeah yeah wars

0:23:50 Andrew: Will also see these downward spikes during world war one and world war two right they're equalizers because you are literally lighting your country's assets on fire Yeah, they had war losses, and and then they had radical shifts in emancipating slaves, so that was a a massive equalizer, and income inequality in the North nevertheless outpaced those two things. That's staggering. And this is the rise of the robber baron time period. A little more the South, on the big rise in black incomes is apparent despite in their labor force participation. Now, let me explain what that means in economic term, right? Like their labor force participation is, now they get to choose when they work.

0:23:54 Thomas: Are weirdly equalizers it's interesting yeah Yeah. Yeah, totally.

0:24:34 Thomas: Right.

0:24:34 Andrew: As opposed to being worked as slaves, right, but when you're an economist, you're still comparing those things. The amount of overall work being done is obviously less, you would want it to be less, that's why we fought the war, right? That had a big rise in African-American income. Emancipation meant that the freed slaves could now capture, and again these, these are economists, but they've but hedged, know, something it, you close to their marginal product rather than the 40 to 50 percent of it that slavery permitted. And again, that 40 to 50 percent is, you the the slave owning rationale of like, hey, I feed you, I give you room and board. Economists have measured that, like 60, right, percent of that was surplus profit on average, average, so uh you've now moved away from, okay, you were stealing 60 percent uh of a a slave's labor, to something, you know what they say is capture, quote, "something close to their marginal product," end of quote.

0:25:26 Andrew: As of 1870, African-Americans of a given age and sex still worked more than their white counterparts. But much less than during slavery. And then there is what the economists call the Great Leveling, and this is from 1910 to about 1970. It says, "For almost all countries that supply the necessary data, the income share captured by the richest one percent fell dramatically between the 1910s and the 1970s."

0:25:31 Thomas: Hmm.

0:25:52 Andrew: And That bottom half rose for several reasons. You point out, wars and other macro shocks destroyed private wealth, especially financial wealth, and shifted the political balance towards the left. The labor force grew more slowly, and automation was less rapid, improving wages for the less skilled. Rising trade barriers lowered the import of labor intensive products and the export of skill intensive products, favoring the less skilled in the lower middle ranks and at the bottom. And in the United States, the Great Depression was followed by half a century of tight financial regulation, which held down the incomes and those employed in the financial sector, and the net returns reaped by rich investors. In short, by, by the 1960s, American incomes were about as equally distributed as they were in 1774.

0:25:52 Thomas: So interesting.

0:26:36 Thomas: Huh?

0:26:37 Andrew: This is today's inequalities could have been avoided. The equality gained during the Great Leveling slipped away after the 1970s in North America, the UK, and Australia, while inequality hardly changed at all in continental Western Europe. These countries' new income gaps due were to big shifts in political climate and policy. The

0:26:48 Thomas: Jeez. Wow. Which I wonder which politics took took the main stage in the after the 70s. I just I can't. No way to know. No way to now.

0:26:56 Andrew: Yeah. Hard to imagine, you Ronald Reagan, Margaret Thatcher. Yeah. The U.S. lost its lead in the quantity and quality of mass education, and its gaps in educational achievement widened relative to other leading countries. Since 1980, financial deregulation also added volatility and work to favor the rich, especially in the United States. In addition, a regressive pattern in tax cuts has allowed more wealth to be inherited rather than earned. All three of these shortfalls, basic education, financial regulation, and the taxation of heritable wealth, are potentially reversible without any clear loss in gdp

0:27:32 Thomas: God. You know what is so fucking frustrating? Is whenever I have talked to, like, you know, my parents and other conservatives, uh, even, even that one time I debated that a-hole atheist conservative Trumper. Uh, whose name I won't even mention because the guy's such a sack of crap. Um, the number one thing they say when you talk about, uh, income inequality, and it's, by the way, when you hear them say this, it's just racism with different words, they say it's inevitable. It doesn't matter even if you, even redistribute it all right now. The rich would just take it back in a second, and the poor would be poor because the rich are smarter and better and whatever. And that is the prevailing view. And it's so infuriating to look at this data and say, no, actually, it was much, much, much better until your ideology came along and said, you know, a bunch of rich people convinced, convinced you, his name? Price, is that his name, something?

0:27:47 Andrew: Yeah. Yeah

0:28:27 Thomas: Price. Convinced, yeah, convinced you who doesn't, by the way, doesn't have anything, isn't wealthy. Convinched bunch of people a who just think of themselves as temporarily disgraced millionaires as the quote was. Convincing you that that's the truth, that, oh, yeah. It's inevitable. There's nothing you can do about it. And they utilize those policies to gain a bunch OF wealth. The very people who think that this is inevitable are the the are people who caused it

0:28:27 Andrew: Bob price To that, the idea that have had several egalitarian, relatively egalitarian periods in our history, and one of them is the sweet spot for, you know, the Make America Great Again folks, right? Because, you they're envisioning the 1950s and 1960s. And the reason they are envisioning that is because it is pre-Civil Rights Act. But those periods of time were not marked by the fundamental massive transfers of wealth to the top 1% that we have today. So that is the relationship between wealth and income and the American populace over time. What I want you to take away from that is, number one, our founding fathers lived in a time of relative equality of income per household. And number two, what has helped us maintain that relative equality over time are political shifts to the left, and in particular, beginning in the early 20th century.

0:29:43 Andrew: So let's talk about what those are, which is, which includes a growing awareness dating back to the 19th century that rich people seem to also be able to buy elections. So, come, this first case that I'm going to talk about is a 1957 case, but, but again, it goes to this about a law that was passed in 1907, so it is devoted to the history of discussing that law.

This case is called United States versus International Union of United Automobile Aircraft and Agricultural Implement Workers of America, that's the UAW CIO, before all the unions merged, right. And it is 352 U.S. 567, and I'm gonna read a little bit from the fact section. In the 1890s, many states passed laws requiring candidates for office and their political committees to make public the sources and amounts of contributions to their campaign funds, and the recipients and amounts of their campaign expenditures. Again, notice how a history of state regulation is all over the Dobbs decision, spoiler, it will not be all over the Citizens United decision. The right, existence of massive and frequent subsequent legislation restricting the rights, quote unquote, of rich people and corporations to buy politicians, is virtually ubiquitous through our nation's history. And yet the same supposedly originalist judges. Anyway, I've

0:31:05 Thomas: You bailed out before you even bothered finishing because it's so pointless

0:31:08 Andrew: I have made my point.

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0:34:18 Thomas: That's B-O-M-B-A-S.com slash Opening Arguments, all one word, and use code Opening Arguments at checkout. One more time, I'm Bombas, B-O-M-B-A-S dot com slash Opening Arguments and use that code Opening Arguments for that 20% off your first order. This show is brought to you by the Jordan Harbinger Show. I've told you about Jordan show a lot. If you're a podcast listener, this is another podcast that you should be listening to. The combines in-depth interviews with some of the world's most fascinating minds, with Feedback Friday episodes to respond to listener questions about everything from conventional conundrums like asking for a raise at work to doozies like helping a family member escape a cult. I Listeners will know I give you a recommendation every time, and usually it's very fun.

0:35:06 Thomas: I'm going to do something a little different because there's a recent episode that I think is very important, not necessarily as fun as say Bill Nye or some of the other delightful ones. This This is something that I just don't think is talked about enough. It's not really a thing for our show to do. There's not a lot of like US law deep dive questions about it. It is just a horrible thing that doesn't get enough attention. So if you'd like to learn more from somebody who has been on the ground and knows what's going on, listen to that latest episode of Jordan Harbinger show. Is the author of No Escape, The True Story of China's Genocide of the Uyghurs. And that's the kind of diversity of show that you get over on the Jordan Hardinger show. You get lots of fun, you get listener questions, you get advice, but you also get very serious topics and very important topics as well.

0:35:55 Thomas: So for the Jordan Harbinger Show, that H-A-R-B as in boy, I-N as in Nancy, G-E-R on Apple Podcast, Spotify, or wherever you listen to podcasts.

0:36:05 Andrew: The court continues, "The theory behind these laws was that the spotlight of publicity would discourage corporations from making political contributions and would thereby end their control over party policies." They're talking about the 1890s. "But these state publicity laws either became dead letters or were found to be futile. So as early as 1894, progressives saw the need for more effective legislation and began drives to cap corporate contributions." As early as 1895, concern over the size and source of campaign funds so actively entered the presidential campaign of 1904 that it crystallized popular sentiment for federal action to purge national politics of what was conceived to be the pernicious influence of big money campaign contributions. A few days after losing the 1904 election, the defeated candidate," that was Democrat Alton B.

0:36:52 Andrew: Parker, if you play bar trivia. I could not have named that, you know, the progressive, you know, Progressive Teddy Roosevelt won. I could not have named who he defeated in 1904. neither did this case. This case just called him the defeated presidential candidate of 1904, so I had go look that up. Alton Parker said, "The greatest moral question which now confronts us is, shall the trusts and corporations be prevented from contributing money to control or aid in controlling elections?" So that was taken up by President Roosevelt, his opponent. Right. Quickly responded to this national mood in his annual message to Congress on December 5th, 1905, President Roosevelt recommended that, quote, all contributions by corporations to any political committee or or for any any political purpose should be forbidden by law, directors should not be permitted to use stockholders' money for such purposes, and moreover, a prohibition of this kind would be, as far as it went, an effective method for stopping the evils aimed at corrupt practices act." The the court comments on this and says, I, um, love, I love

0:37:07 Thomas: That's interesting

0:37:54 Andrew: The way these old timey decisions read. "So grist was added to the reformers' mill by the investigation of the great life insurance companies conducted by the joint committee of the New York legislature, the Armstrong Committee, under the guidance of Charles Evans Hughes. The committee's report, filed in early 1906, revealed that one insurance company alone had contributed almost $50,000" "to a national campaign in 1904 and had given substantial amounts to preceding presidential campaigns. The committee concluded, quote, contributions by insurance corporations for political purposes should be strictly forbidden. Neither executive officers nor directors should be allowed to use the monies paid for purposes of insurance in support of political candidates or platforms, whether made for the purpose of supporting political views or with the desire to obtain protection for the corporation, these contributions have been wholly unjustifiable. The frank admission that monies have been obtained for use in state campaigns upon the expectation that candidates thus aided in their election would support the interests of the companies has exposed both those who solicited the contributions and those who made them to severe and just condemnation." Okay,

0:38:15 Thomas: And problem

0:39:04 Andrew: Yeah, yeah, problem solved

0:39:05 Thomas: Solved and that's how we achieve permanent income equality in this country and got money out of politics 1904 everybody let's

0:39:06 Andrew: Yeah And so instead Republican Theodore Roosevelt, 1906 State of the Union address, listed as his first item of congressional business a law prohibiting political contributions by corporations. And I keep saying this because the the importance of corporations is about to become, you significant. The court, and again, I'm going back to the court's history here. In 1907, Congress passed the law, and I'm going to lie it over a bunch of subsequent history. You don't care about this.

As amended, it was 18 U.S.C. Section 610. And it said this, and again, there were subsequent amendments that included labor unions in it, because with the rise and fall of labor unions, by 1957 the Republicans it were like, "Oh, well, if our corporations can't contribute money, then neither can your labor unions." And, you know, whatever, people went along.

So, quote, "So it is unlawful for any national bank or any corporation organized by authority of any law of Congress to make a contribution or expenditure in connection with any election to any political office, or in connection with any primary election or political convention or caucus to select candidates for any political office, or for any corporation whatsoever, any labor organization to make a contribution or expenditure in connection with any election at which presidential and vice presidential electors, or a senator or representative, or a delegate resident or commissioner to Congress," uh, that is including DC at the time, "are to be voted for, or in connection with any primary election or political convention or caucus held to select candidates for any of the foregoing offices, for any candidate, political committee, or other person to accept or receive any contribution prohibited by the section," uh, "fined not more than $5,000, imprisoned not more than one year, or both" and

0:40:49 Thomas: Imprisoned.

0:40:49 Andrew: Yeah So that is, uh, "any person who accepts or receives any contribution in violation of the section shall be imprisoned not more than, fined or imprisoned not more than a year, and if the violation was willful, shall be fined not more than $10,000 and imprisoned not more than two years, or" both yeah

0:40:49 Thomas: Wow. Wow. So that might as well just read nice things like that. It's just like, here, should we have nice things? Yeah. In 1906, let's have nice thing. And then, yeah,

0:41:15 Andrew: From from 1906 until 1957 that was the law of the land Nice things. And it was challenged in 1957. And this law was found. I want to be clear here. The case law surrounding corporate expenditures in political speech is messy. Right. I won't be 100% honest about that. So this first case that we're talking about looked at the question, is that statute that I just read to you, is That constitutional, but they never said yes or no, they made a narrow ruling. And they're like, look, if we can pass on the constitutional question, we can this at the district court level held that there was no violation of the statute, but there clearly is.

0:42:01 Andrew: So we're going to remand for further filings consistent with this opinion. Now, that is a pretty strong indication that the court thinks it's constitutional, right? Because if you thought it was unconstitutional, you would say, you we're going to make sure that nobody gets arrested, fined, possibly jailed under it. Curium. So was among other things that the statute that I just read to you good things abridges freedom of the speech and freedom of the press and the right peaceably to assemble in petition, abridges the right to choose senators and representatives guaranteed by Article 1 Section 2 and the 17th Amendment, creates an arbitrary and unlawful classification and discriminates against labor organizations in violation of the Fifth Amendment and is unconstitutionally vague. Yep.

0:42:17 Thomas: Yeah.

0:42:50 Thomas: So they tried to work that in, like, yeah, plus unions don't get to buy elections, so you know. We're all suffering that was

0:42:55 Andrew: Yep. That's exactly Right. And the Supreme Court punted, right? They said, look, the law is probably constitutional, we're not going to decide its constitutional authority, we're going to remand it back down on the facts, and then it never came back up. Right? That'sthat's 1957. Um, I will tell you that, uh, in its analysis that the Supreme Supreme Court said, speaking broadly, what is involved here is the integrity of our electoral process and not less the responsibility of the individual citizen for the successful functioning of that process. This case thus raises issues not less than basic to a democratic society. The concentration of wealth consequent upon the industrial expansion in the post-Civil War era had profound implications for American life. The impact of the abuses resulting from this concentration gradually, gradually made itself felt by a rising tide of reform, protest in the last decade of the 19th century, so recognizing The history, yeah, that's the Supreme court

0:43:46 Thomas: The court, yeah. So that's and that's before they have these complicated economist stuff like telling them everything even they were like yeah we kind of of know what went on here yeah

0:43:48 Andrew: Yeah we kind of know what happened that's exactly Right now, like I said, six three the dissent said, uh, uh, we think it is a problem that is fundamental to the electoral process and the operation of our a democratic society, whether a union can express its views on the issues of an election. And on the merits of the candidates unrestrained and unfettered by congress so the

0:43:56 Thomas: Sure Yeah. Yeah you can't express your views unless you cut a check I

0:44:15 Andrew: Yep was dissent it was a pro first amendment um and uh that was the uaw case 1957 now

0:44:22 Thomas: I am also pro first amendment it's just the interpretation of this

0:44:23 Andrew: Yeah me too So now that dissent was Earl Warren, Hugo Black, William O. Douglas. We now fast forward 19 years to 1976 to deal with the next election case. And again, I am not going to go over the whole history here. I can't. If you're an elections lawyer, forgive me on this. But I want to tell you, all three of those dissenting justices were off the court by 1976. 76, right, this case is a case called Buckley versus Vallejo, and this is a mess procedurally, okay? It is a per curiam opinion uh that draws five different uh concurrences slash dissents yeah, so if you're trying to figure out what the law is, this is the Supreme Court saying, we're wrestling with these issues, right? Like, we get it.

0:45:03 Thomas: Oh man we don't even know who to agree with whom we're just like a bunch of us agree in different ways

0:45:13 Andrew: That yeah Yeah, just want to articulate that, like, it is a hard question because we recognize the validity of wanting to control the influence of money in politics. That's been a longstanding historical concern, both at the state and at the national level. And also, we don't want to be overly glib about the fact there that is speech at issue here, political speech.

Um uh this was about again that same statute which has now been amended, a lot of the good stuff has been taken out, but was what um was put back in uh in 1976, uh, were uh hard caps on contributions to campaigns, okay? So uh the major contribution and expenditure limitations prohibit individuals from contributing more than $25,000 or more than $1,000 to any single candidate for an election campaign, and from spending more than one thousand dollars a year, quote, "relative to a clearly identified candidate" and end quote. Put Put a pin in that.

Other provisions restricted a candidate's use of personal and family, a candidate's use of personnel and family resources in his campaign and limited the overall amount that could be spent by a candidate in campaigning for federal office. So for the first time, the Supreme Court finally addressed the constitutional argument in Buckley versus Vallejo, and what they did was split the baby. They basically said, when it comes to capping campaign contributions, that's incidental to free speech, right? Yeah, we we get it, um, there is, you know, when you send money to a candidate's campaign, you are expressing a political opinion, uh, but when you are restricting it, you're not really restricting the political aspect of that opinion. That right, person's message is still coming across loud and clear, whether they're

0:46:18 Thomas: Yeah

0:47:01 Andrew: Allowed to give a thousand bucks or a million bucks, right and

0:47:00 Thomas: I would go so far as to say setting a and cap on this is vital to the First Amendment-ness of this. In the same way that it's like, think of this as like actual speech. If someone was like, all right, we've got a, common, whatever the phrases are for a commonplace where speech happens, people are allowed to talk here in different ways. And then someone's like I well, happen to own a lot of decibels, and I want want to be able to just blast this town square with an unbelievable fire hose of sound. That's just my speech all the time because I have a First Amendment right and you can't restrict my speech. But like, that restricts everybody else's speech. The ability to donate a billion zillion dollars means that my donation of $50 is nothing and meaningless.

0:47:24 Andrew: In fact, in 1976, in the the Buckley decision, with respect to the contributions limits, um, that's not dissimilar to what the Supreme Court actually said, right? Quote, "A limitation upon the amount that any one person or group may contribute to a candidate or political committee entails only a marginal restriction upon the contributor's ability to engage in free communication. Communication serves as general expression of support for the candidate and his views, but does not communicate the underlying basis for his support. The quantity of communication by the contributor does not increase perceptively with the size of his contribution, since the expression rests solely on the undifferentiated symbolic act of contributing. At most, the size of the contribution provides a very rough index of the intensity of the contributor's support for the candidate.

A limitation on that amount uh the person may give to a candidate thus involves very little direct restraint on political communication, for it permits the symbolic expression of support but does not in any way infringe upon the contributor's freedom to discuss candidates and issues." Um, and and there is some discussion I'm not going to read, but it, but that endorses your point, right? That says, look, um, "virtually every means of communicating ideas in today's mass society requires the expenditure of money.

The electorate's increasing dependence on television, radio, and other mass media for news and information has made these expensive modes of communication indispensable instruments of effective political speech." So yeah, concern, right, with leveling the playing field as politics gets expensive. So

0:48:20 Thomas: And I love the reasoning there. I mean, this is, I imagine, uh, there's plenty of ways that this Supreme Court from 1976, I wouldn't have been a big fan in many ways. But isn't it nice to have a well-reasoned argument about this, where it's like, well, we don't want to restrict your First Amendment right to voice your support for a candidate in the form of money. But setting a limit on that doesn't really stop that. If anything, as it said, it maybe stops some amount of communicating the intensity of your support. But it's, it's perfectly reasonable to set a limit on this. And that limit, is that's still allowing you to say, I like this candidate, by spending whatever amount of money on

0:49:45 Andrew: Yeah, that's, that's absolutely correct. The parts of the of the law that the court struck down related to the expenditures by candidates themselves and by individuals outside of the the campaign that were not, quote, "relative to a clearly identified candidate during a calendar year," right? And so what they said was, look, now we've really reached the the free speech portion of this, right?

And so they say, "First, assuming arguendo that large independent expenditures pose the same dangers of actual or apparent quid pro quo arrangements as do large contributions, contributions." So they're, so right, they're differentiating. I get to go out and say, you know, vote for Smith, so long as I'm not giving it to your campaign, right? So 1976, assuming that that's the same danger, my right? Spending a million bucks on your behalf is the equivalent of my giving you a million The Supreme Court says this the elimination of those dangers. Unlike the total ban on the giving of large money to candidates, this section prevents only some large expenditures. So long as persons and groups issue expenditures that in express terms advocate the election or defeat of a clearly identified candidate, they're free to spend as much as they want to promote the candidate and his views.

And let me explain what they mean by that. If I ran an ad that said vote for Thomas Smith paid for by Andrew Torres independent support for Thomas Schmitt committee, that would be prohibited.

But if I ran an ad that said, know, Californians face a stark choice in this next election and you should really vote for the candidate that is committed to election reform, to protecting the right to abortion for anyone who becomes pregnant, to reproductive equality, to personal equality, and keep that in mind as you go to vote in this election.

0:51:31 Andrew: Everybody knows that that's for Thomas Smith, right? But uh, there's no question I would be free to do that under this particular legislation. So the Supreme Court's like, that's drawing too fine of a hairline distinction, you're not going to solve the problem with this legislation, uh, because so long as I don't say the magic words, "vote for Thoma Smith," you're not going to prohibit it. And then answer the question. But look, isn't this going to be a huge loophole because candidates could then coordinate with these supposedly independent groups? Right? Put a pin in that. Right. And here's what the Supreme Court said. Shocker, they were wrong. In 1976, they, "quite apart from the shortcomings that we just discussed, the independent advocacy restricted by the provision does not presently appear to pose dangers of real or apparent corruption comparable to those identified with large contributions."

0:52:21 Andrew: "The parties defending it contend that it is necessary to prevent would-be contributors from avoiding the limitations by the simple expedient of paying directly for media advertisements or for other portions of the campaign's campaign activities. They argue that expenditures controlled by and coordinated with the candidate in his campaign might well have virtually the same value to the candidate as a contribution and would pose similar dangers of abuse." Seems sensible, right? Here's what the Supreme Court says. "Such controlled or coordinated expenditures are to be treated as contributions rather than expenditures under the act. Section 608's contribution ceilings, rather than the independent expenditure limitation, would prevent attempts to circumvent the act through prearranged or coordinated expenditures amounting to disguised contributions."

0:53:06 Andrew: Contributions. So put all that together. Buckley versus Vallejo struck down the independent contributions, the personal expenditures, and the total campaign expenditures on First Amendment grounds, but upheld the contributions limitations and said the way in which we stop the coordination, coordination, oh, okay, I can't give you a million dollars, but I can run a million dollars worth of ads on your behalf, is by prohibiting coordination, right? If they were coordinated, that would count as a contribution and to be prohibited. This is 1976, right? Yeah That's exactly, it would be subject to the law. They would be treated as a campaign contribution. Um, I told you this was a mess. There were five different partial dissents. I'm going to skip over all of them with the exception of the concurrence and dissent by Byron Whizzer-White. And it's where we're to bring this first episode close on to Citizens United, only 40 years before Citizens United was decided. So about what I think our listeners expected, right?

Now, remember, Byron Whizzer White was an old school moderate, right, slightly right of center. And, and, and this, as I read to you from his dissent, it's it, it helps to illustrate what I keep trying to to drive home, particularly to our younger listeners who have just grown up with, oh, it's before a Trump judge, and so therefore they're going to

0:53:37 Thomas: Be capped, at least. Right.

0:54:26 Andrew: Reach a conservative outcome. Oh, it'll go to the Supreme Court, so it's six three going to come back. It, do not wish to say that it was not predictable on some cases, and that things did not get worse in the 1980s and the 1990s and certainly the early 2000s. It accelerated, but the situation that we have with our Supreme Court is not the way that it has been throughout history. It has never been this predictable to just sort of look at it and go, oh, okay, well, know, he's, you sort of conservative, so he's going to come out with the conservative approach. And indeed that's what happens. Byron Whizzer White here, um, was a a moderate, slightly conservative, but on pragmatic grounds. And here's what he says. He says, quote, "It would make little sense to me, and apparently made none to Congress, to limit the amounts an individual may give to a candidate to spend with his approval, but fail to limit the amounts that could be spent on his behalf."

0:55:14 Andrew: "Yet the court permits the former while striking down the latter. No more than $1,000 may be given to a candidate or spent at his request or with with his approval or cooperation, but otherwise apparently a contributor is to be constitutionally protected in spending unlimited amounts of money in support of his chosen candidate or candidates." And then he gives, you know, he's like, "Let us suppose each of two brothers spends a million, a million dollars on TV announcements that is individually prepared, in which he appears, urging the election of the same candidate in identical words. One brother has sought and obtained the permission of the candidate, the other has not. The former may be prosecuted, the latter may not, even though the candidate could scarcely help knowing about and appreciating the favor. For constitutional purposes, it is difficult to see the difference between the two situations. I would take the word of those who know that limiting independent expenditures is essential to prevent transparent and widespread evasion of the contribution limits."

0:56:08 Andrew: And again, notice that, right, that is a very conservative set of reasoning. Why, right, would we just second-guessed the legislature? We're judges. Our job is to call balls and strikes. Why are we trying to tell the legislature what to do in terms of, we've established a valid legislative purpose, keeping money out of politics. Why are мы going to draw a hairline distinction between, oh, well, you know, if you talk to the candidate, you're on this side, but if you don't, it's on this?

Congress has already looked at that. Let's defer to them. He continues. News "As an initial matter, the argument that money is speech, and that limiting the flow of money to the speaker violates the First Amendment, proves entirely too much. Compulsory bargaining and the right to strike, both provided for and protected by federal law, inevitably have increased the labor costs of those" who publish newspapers, right, which are in turn an important factor in the recent disappearance of many daily papers. In 1976, I love that, worrying about The decline of newspapers. "Newspapers, federal and state taxation, directly removes from company coffers large amounts of money that might be spent on larger and better newspapers. The antitrust laws are aimed at preventing monopoly profits and price fiction, which gouge the consumer.

It is also true that general price controls have from time to time existed and been applied to the newspapers or other media, but it has not been suggested, nor could it be, that these laws and many others are invalid because they siphon off or prevent the accumulation of large sums of money that would otherwise be available for communicative activities." He's right. And White ends with this rather prescient statement.

"By the same token, the expenditure limit imposed on candidates plays its own role in lessening the chance that the contribution ceiling will be violated. Without limits on total expenditures,"

0:57:02 Thomas: Yeah.

0:57:48 Andrew: "Campaign costs will inevitably and endlessly escalate. Pressure to raise funds will constantly build, and with it the temptation to resort, in quote, emergencies, to those sources of large sums who history shows are sufficiently confident of not being caught to risk flouting campaign contribution limits. It should be added that many successful candidates will also be saved from large overhanging campaign debts, which must be paid off with money raised while holding public office, and at a time where they're already preparing or thinking about the next campaign. The danger to the public interest in such situations is self-evident." So, I, think we draw this one to close. Some words from 1976 that maybe were slightly prophetic. Yeah.

0:58:31 Thomas: Yeah, it's weird to be like, yeah, the thing from the 50s and that thing from the 70s. Boy, it was a better, more progressive time. But on this particular issue somehow it was well More on that in the sequel. Can't we, we're doing real hardcore history stuff here, I love it. Well, no, then we would have just done a six hour episode and covered all of the history back to the founding and all.

0:58:39 Andrew: Indeed It was, I don't, don't tempt me you specifically said this is going to be a two-parter by god so So I've already cut a bunch.

0:58:56 Thomas: Right well can't wait to uh listen to the follow-up

0:59:06 Clip: Sometimes you eat the bar, and sometimes the bar will eat you.

0:59:12 Thomas: And now it's time for T3BE Thomas takes the bar exam answer time. Time. Interesting question. Let's see if I go to 75% in the new book.

0:59:22 Andrew: All right, Thomas, this was Golf Corporation, may or may not rhyme with Wykie, right? Paid the world's number one golfer, that will always be Tiger Woods. $330,000, anyway, to promote its golf equipment during a White House dinner to which the world's number one golfer, Tiger Woods, was invited. On the night of the dinner, the golfer fell ill and did not attend. However, he may escape liability for damages by, and you narrowed it down to either B or D. B, offering an equivalent substitute performance. Performance uh D, you said, I think this is the, like, attractive distractor for lawyers, which says suing for specific performance of the contract instead of damages. Thomas, you nailed You it uh hit it out of the park.

1:00:05 Thomas: Wow.

1:00:05 Andrew: Uh, 300 yard drive on both of them.

1:00:09 Thomas: Thank you. I was just going to say the same thing. You found the correct, I got it. I eagled it. Found the right metaphor

1:00:15 Andrew: Very straightforward. D, the, is you sue for specific performance to require, right? That would make sense as an argument from the golf company's Standpoint, not from Tiger Woods' standpoint. Offering equal performance comes from Section 2-614 of the Uniform Commercial Code, which says, "Where without fault of either party, the agreed facilities fail, or an agreed type of carrier becomes unavailable, or the agreed manner of delivery otherwise becomes commercially impracticable, but a commercially reasonable substitute is available, such substitute performance must be tendered and accepted." So, in other words, the idea here is that you can substitute equivalent goods if the failure to perform on the contract was due to no fault of your own. And, you know, here, get you sick, not your fault, you couldn't go. You can't, you knows, spread coronavirus to the entire White House.

1:00:25 Thomas: Yeah.

1:01:09 Thomas: I Was going to Say, what if you're an anti-masker and didn't get vaccinated, Then could Golf Court be like, "That was your fault," right?

1:01:09 Andrew: So, yeah, They absolutely could. So remember, when we're looking in general, when you're evaluating breach of contract claims, the theory of the efficient breach, right, breach of contract damages are not, generally speaking, meant to include any kind of moral approbation. So yeah, that's how you go about, you offer the equivalent performance, and and uh everybody is happy uh and no one happier than you, Thomas.

1:01:35 Thomas: Yeah.

1:01:45 Thomas: Right, 75 percent, nailed it. I'm a lawyer, let's find out who also nailed it. Who is this week's winner, and

1:01:51 Andrew: You. All right, Thomas, this week's winner is Itzhak Safran, or possibly Isaac Safran. My apologies if I'm mispronouncing it, who wrote the best pun-laden answer that we received. Isaac writes, "To compensate for the hole in the pockets of Golf Corp., the golfer should offer something on par. A little birdie told me the answer was B." I think that's the most fair way to do it. And I groaned and loved every pun slash So Itzhak, Isaac, congratulations on being this week's winner. And everyone, let's give them a follow. They are at I-Z-A-K-S-A F-R-A N on Twitter. And congratulations, Itzhak, for being this year's week's winter.

1:02:48 Thomas: Now it's time to thank our hall of famers, our all-time greats on patreon.com/law. They make the world go round, they make this show happen, and uh, exciting announcement, this just in, we're on the final quintile every month.

1:03:05 Thomas: I get to hear a little few seconds of that song. We're in the final quartile, I'm gonna give you the honor of the final, final uh decile. I'll start us off. Thank you to the Time Traveler Who Prevented Hillary's, Hillary Clinton's COVID Overreaction. Sure. Wordorigins.org has a new book, From Bar Flies to Bitcoin: How Words Map Our Modern, available on Amazon. Seriously, though, live show in Minneapolis. The Gitz and Shiggles Center for Spoonerism Studies.

1:03:34 Andrew: Nice.

1:03:34 Thomas: Two fabulous bonus episodes. Nice. Metacon 7. False. Anonymous. Emotion in lemonade. Give to ModestNeeds.org. Then visit DeepFakeStop.com. Derek. Not that Chris Wallace. Big Easy Blasphemy. Please don't read this on the pod. We don't need a call out. Thanks for what what you do. Invisible Son, Eric Trump's tribute to the police. Ronofthedork.com, A String of Unpronounceable Characters, Tricicular Manslaughter, Malaika Chandler, and Malcolm the precious variant. Your turn, Andrew.

1:03:35 Andrew: And A big thank you to Dude Soggy Pants, Liz Puffy Coats, or Violence W Day, Jury Belly, at Packies at Last, Baby Heather L, Matthew Vernon in an Alley, Dan Irizari, Chris Waltrip, Teresa Chan, Teresa Gomez, the one and only Teresa Gomez, Adam Costa, David in Brooklyn Mitchell, Ice Cube or Ice T, I'm not sure, Michael Rops, Sam Donow, I agree with that 100%, and the current occupant of the Conrad Michaels Memorial Chair at the top of our top quartile is Sam Buck. Thank you so much.

1:04:44 Thomas: And that's our show. Thanks so much for listening, everybody. And of course, be ready for that part two. I know you got to wait a little while, but that's worth the wait. Can't wait for that. And we'll see you for Rapid Response Friday.

1:04:55 Clip: I move for a bad court thingy. You mean a mistrial? Yeah, that's why you're the judge and I'm the law talking guy.

1:05:29 Clip: www.openargs.com. Be sure to join the Facebook group at facebook.com slash groups slash Yodel Mountain and follow us on Twitter at OpenArgs. This podcast is a production of Opening Arguments Media LLC, all rights reserved. It is produced with the assistance of transcriptionist Heather Leverage, production assistant Ashley Smith, and additional contributions from Morgan Stringer and Debra Smith. Special thanks to Teresa Gomez, who runs our live shows and heads up the OA Wiki, follow at OA Wiki on Twitter. Additional thanks to the moderators of the Opening Arguments Facebook community, Emily Waters, Alicia Cook, Eric Brewer, Natalie Newell, Brian Ziegenhagen, and Teresa. And finally, thanks to Thomas Smith, who edits the show and created the fabulous theme music, which was used with permission.