OA672: How Conservative Courts Rewrite History

Transcript

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

0:01:18 Thomas: And welcome to Opening Arguments. This is episode 672. I'm Thomas. That's Andrew Torres. How you doing, sir?

0:01:24 Andrew: Hi! Did you survive the, uh, stormpocalypse of Northern California?

0:01:29 Thomas: Yeah Yeah, so yeah, obviously people know we recorded the last episode a bit early because there was, you know, talk of Blizzard to quote Yeah, yeah, and it was not that bomb. I gotta say It was that this Storm left this reviewer cold, or not cold, not cold enough. No, it was windy, trendy, but it was, it was a bit like when in the Australia Simpsons episode, the best one, probably of all of them, and for my money, when he's like, oh, I heard you have those giant beers here, and he and the bartender plops down an enormous beer and Homer goes, oh, I guess it's pretty big.

0:01:36 Andrew: A bomb cyclone? That was the word? Yeah?

0:01:55 Andrew: Wait, The...

0:02:07 Andrew: You're saying the Australia episode is the best episode of the Simpsons period?

0:02:10 Thomas: That might be my favorite episode of the Simpsions. It's so good. Go back and watch it, is so funny. It, it is. Oh, it's really good. But anyway, yeah, we were, we're all like prepping. I was, I turned into a real prepper. I got some like, you know, cause I had the power outage forever and I was like, well, I need, I needed to do what I can about this, which isn't much in the short term because all the important stuff is I need like a house battery. Some people have that. I want to get that. But so I got like lighting.

I gotta like have some, you Know, some extra lights cause the kids, you Now they actually love doing the flashlights and stuff. I Was like, yeah, I'll get a couple extra lights that they can do and all that. And then when you do a certain amount of prepping, you're disappointed when tragedy doesn't strike. You're like, damn it, nothing happened. And I feel like that's good insight into a of the right wing of our country. Like they're probably always prepping for like civil war, you know, apocalypse crap, and then disappointed that it isn't happening. I think that's a lot about the voters in our our country.

0:02:12 Andrew: Wow. Wow, that's always prepping for civil war, never doing something like electing a speaker. But there we go.

0:03:15 Thomas: There we go. Never not funny, but we shouldn't talk about it. We're stuck in the past. We shouldn't talking about that because who knows what will have happened by then. Let's talk about what we do want to talk about today, which is an update on a certain weirdo that you had teased us about.

0:03:16 Andrew: Oh, Is never not funny. True. Yep. True.

0:03:34 Andrew: So I have now been through, uh, of Sidney Powell's testimony before the January 6th committee. I shared some of that with you last week. And part of that, I talked about her truly insane professed beliefs. Right. And and I have to tell you, after having read one hundred and seventy two pages of Sidney Powell answering questions, I don't know if she sincerely BELIEVES THIS NONSENSE OR IS JUST A TREMENDOUS BULLSHIT ARTIST. Right. It,

0:04:01 Thomas: Yeah. I'll tell you my read on her has been that she does believe it. That's been what I've thought, but I'm not, you know, that's just my opinion. Man, what you, wherever you landed on that now, you genuinely can't tell, right?

0:04:13 Andrew: It So are a couple of pieces of evidence, just to kind of throw into the pot. The first thing, and I think, I this is going to contrast very, very nicely with Tuesday's deep dive. The first is at the hearing, at the January 6th hearing, Sydney Powell was represented. And she was represented by David Tobin of McDermott, Will & Emery. And if you haven't heard of McDermott, Will and Emery, they're a, sorry, coat factory law firm. They are one of the, I don't know, 20, 50 top, you know, big firms in the world. Very, very respectable. This guy, David Tobin, is an IP lawyer and not a stopping you from committing perjury before Congress lawyer. But like she's paying him two thousand bucks an hour. Right.

0:04:58 Thomas: Wow. Yeah.

0:05:04 Andrew: Like this is this is a real. He's younger. He just made partner. But like he just made part of his career. He's a partner at a huge.

0:05:12 Thomas: At a place where it's really good to make partner at, hmm

0:05:14 Andrew: Yeah, he's making millions right now. Right? Like he's a young partner. Maybe he's not quite there yet, but he's he's doing, he's not eating salmon out of the can, that's for damn sure. Right. And and that, I think, on the one hand, right, like she does not go into Congress and and say, like, "Hey, uh, Howard Kleinhandler and Julie Haller, why don't you, you know, why don't you guys line up and represent me?" Like, no, she knows that the people she's co-counseled with in these various Kraken lawsuits are terrible, crazy lawyers. And and when it's her ass on the line, she's gotten a real lawyer. So

0:05:47 Thomas: Interesting. That is a good point, is

0:05:52 Andrew: Yeah. Number two, people have found the magic fraction video. I'll put a link in the show notes.

0:05:59 Thomas: It, three is a magic number from Schoolhouse Rock by Blind Melon. They need that kind of song for it

0:06:01 Andrew: Is kind of it. It is attached to a Web site called Hacking Democracy dot com. There was a an HBO special on it. And the person behind it, and this is actually important, is a woman named Bev Harris. OK, magic fraction, the hacking democracy focuses on early 2000s allegation about Diebold machines. Was the machines anyway, and that that division was purchased was by Dominion Voting in 2010. And the site says, quote, the same hackable software is still inside it. And I'm sitting there thinking, 20 years later?

0:06:42 Thomas: Yeah.

0:06:42 Andrew: I don't know. Again, I don't know. That's all I can say, right? And we're going to, you know, criticize a certain former mentor of mine on Tuesday's episode for not doing your research. I wouldn't claim that that's impossible, but I would claim that would seem to require some follow-up research. But by far the biggest thing that came up, I mentioned to you that I had reached out to Clint Curtis, the person that Sidney Powell identifies by name in her January 6th testimony, and that he ran as a Democrat in Florida. And I thought perhaps that was going to be an indication that this was somebody who's, Yeah, hypotheticals were not. No, no. He is, as far as I can tell, completely crazy. And I take this from an Orlando Weekly article about his run for the House of Representatives in 2020, under the headline, "Is This Man Crazy?" Um,

0:06:43 Thomas: Yeah.

0:07:26 Thomas: He wasn't nuts.

0:07:44 Thomas: This was the guy who was like, if you want to hack an election, I'll get you a toe with nail polish. Right. And that guy, he was like I could definitely just hack it.

0:07:50 Andrew: And this guy was a lifelong Republican until he changed parties to register as a Democrat to run against, uh, guy that he thinks hired him to steal the election in 2000, 2004. It's not entirely clear. Are, I've noted it as eight kind of bullet points of maybe this person is not a trustworthy witness. Number one is that the Orlando Weekly went out and they interviewed Bev Harris, right? So that is the, the person who did the magic fraction video criticizing election, you know, the hackability of.

0:08:29 Thomas: Hmm. What is the magic fraction? Is it one one third out of one fourth? Which one? So, oh, that's not important. OK, I thought that was going to factor in here.

0:08:35 Andrew: Yeah, I don't I don'T know. I tried watching it and it just. Yeah. No. Oh, no, no. No. Bev Harris thinks Clint Curtis is crazy. So, you Know, so this is an example. Right. Sidney Powell of sort of doing the like flat earth thing. Right. Right. You know, it's like as long as you are, you know, opposing the model that has been validated by science, you're welcome in my tent, even if it's self -contradictory. So Bev Harris says the Clint Curtis testimony before the House Democratic panel does an excellent job of stimulating public imagination, but has a few problems of its own. Curtis's testimony assumed that Ohio's election had been rigged, though he admitted to never having studied the results.

And because Feeney, that's the guy he ran against, the Florida congressman, and because Feney allegedly pitched the program two years before any South Florida counties used electronic voting machines, it would have been impossible for Curtis to know what specific types of software would be used in the future. Quoting Harris, you can't do one size fits all software, Harris says, noting that Curtis isn't the only person to build a prototype that alters election results on theoretical vote counting platforms.

0:08:49 Thomas: Oh. Wow. Yeah. Yeah.

0:09:47 Andrew: Yeah. Like you did that literally on the air. Right. You're like, you know, 10. If vote is for Biden, multiply by. Yeah. You know, we can I can write that in basic for the Commodore 64. OK. OK, the way the scheme would work, she says, is if Feeney, that's the Florida congressman that Curtis says paid him off to do this, knew which company was going to run the voting machines, then approached a programmer inside that company to write a vote rigging program that would work on those machines. It wouldn't make sense to call in some random guy, she said. It wouldn'T even help. OK, so point one, the two sources that Sidney Powell directs us to in her congressional testimony are pointing the fingers at each other. Right. They each think the other one is crazy. Point two, Curtis's testimony is not what Sidney Paul says it is. On December 13th, 2004, when he testified at a panel of the House Judiciary Committee, Democrats investigating voter irregularities in Ohio, Curtis his 2000 meeting with Feeney and the subsequent software he developed made him think Republicans stole the 2004 election.

0:09:55 Thomas: Yeah. Oh.

0:10:54 Andrew: Yes, I would say it was. I mean, if you have exit poll data that is significantly off from the vote, then it's probably hacked. OK, that was his direct testimony. A few minutes later, though, he backed off. Jerry Nadler asked him, "To your knowledge, was this the vote rigging program used?" "I have no idea," Curtis answered that. Powell made much of the fact that he testified before a congressional committee. That turns out to be true. But the reason that I didn't think that he had testified before that congressional committee is because that congressional community on the 2004 election released its report January 5th, 2005, and identified it was one hundred and two pages long and identified a whole bunch of voting problems in Ohio that, quote, resulted in a significant disenfranchisement of voters.

0:11:42 Andrew: That's typical, you know, Republican dirty trickery, right? And raise grave doubts about the election outcome. But that report does not mention, I ctrl-F'd it, I went to the index, does not mention Clint Curtis. So, you know, the next point is that the House testimony was equivocal and the House decided that they were not going to rely upon his testimony at all when discussing voting machines. Machines. Says, "Well, I passed a lie detector test." Yeah, right.

0:12:14 Thomas: Well, That means nothing.

0:12:16 Andrew: Exactly. That means absolutely nothing. And the test itself, as the Orlando Sentinel points out, was paid for by an anonymous group investigating voter fraud. So, yeah.

0:12:27 Thomas: So, is just some random nut making claims. He gets interviewed by some sort of committees and something, and then everything he said is just, "Well, I, I heard that," or something. It's just, it's just nothing. There's no actual substance. Okay.

0:12:36 Andrew: Yep. And And it gets worse. I only have six more Of these, so, uh, published an on-demand book called "Just a Fly on the Wall", um, he published in September of 2004. As the Orlando Sentinel points out, this is pulling no punches, quote, "poorly written and full of off -topic rambling and grammatical errors". Curtis makes his distaste for Feeny clear in the, the last chapter, uh, quoting the book now, "This request to set up the vote tampering program was early in my exposure to Congressman Feeney, so I was not familiar with what a total piece of crap he truly was." So, look, I, did we would say something like that on the show, but, you know, uh, I love it. Okay, that last chapter, right, showing Congressman Phoenix as a piece of crap, um, uh, this is kind of point four of what the Orlando Sentinel notes.

0:12:43 Thomas: Oh, what?

0:13:32 Andrew: What of Curtis's biggest credibility problems? Because the last chapter is the one in which he describes the scheme to rig the 2004 election. But but when Curtis first published the book, the chapter wasn't in there. And when asked about it, Curtis says, well, no one really cared back then. It wasn't as important as the espionage. Right. The details of like stealing the software from it. Yeah. Right, yeah.

0:13:59 Thomas: Look, I'll be honest, man. I'm just a bundle of yarn right now. I've just, I've full on cartoon like mummy of yarn. What, what is happening? What is this? I can't.

0:14:09 Andrew: Yeah, I. made allegations about the 2000 and 2004 elections, the Orlando Sentinel notes that this means that that Curtis went four years to go public. From the time he says Congressman Feeney asked him to create vote rigging program and the time that he finally disclosed that. And that seems fishy. So Right. Another problem, this point five with Curtis's story, the meetings took place in the fall of 2000 before Florida used electronic voting. For electronic voting didn't happen, of course, until after the 2000 presidential election, which had the hanging chads And the butterfly. Those were all non -electronic ballots. So that's why Florida switched over to voting machines so that they wouldn't have that again. Not even there, going to read this, a prior employer filed a lawsuit against him for copyright infringement, deceptive trade practices, that they stole, that Curtis stole some of their software when he was working for them. And uh, the the former CEO says he's a wacko, I just think he's a compulsive liar. Um, well, okay, former employer, we all have bad former employers, we maybe cross that one off.

0:14:40 Thomas: Yeah. Yeah, this one tells a pretty consistent story. This guy's, if everybody and a newspaper is saying the same thing, you know, maybe maybe there's something to it.

0:15:23 Andrew: Then two more, this this came from a Wired News article, interview with Curtis, uh, 2004. Uh, first, uh, Curtis didn't know that um Diebold machines were being used in 2000 until a reporter told him, so that, that seems bad. And then in the same article, a Johns Hopkins University computer science grad student who had previously authored a paper critical of security flaws in the Diebold election machines said there is no, almost no chance Curtis's code was used in any voting. So that student was Adam Stubblefield, a TA, grad TA. And Adam Stubblefield said, quote, "Curtis clearly didn't have the source code to any voting machine, and his program is so trivial that it would be much easier to rewrite it than to rework it."

0:16:12 Andrew: So uh, for those eight reasons, I will not be inviting uh Clint Curtis to come on the show. I Uh, I I'm gonna, I'm gotta give that a uh, the old passaroo. So um, in attempting to save someone who I thought was being misrepresented by Sidney Powell, I did some further digging. And I, again, I still don't think, because, you know, he hasn't published anything about the 2020 election. I still, like, amazingly enough.

0:16:21 Thomas: You're not going to slip DMs.

0:16:45 Thomas: Yeah, I'm sorry. I can't remember what all this even is. He's just a source that Sidney Powell cited.

0:16:51 Andrew: Yes, this is Sidney. Powell says you have to look at Clint Curtis. Yeah, right.

0:16:53 Thomas: But all this, but all this is about 2004 and 2000. So, oh

0:16:58 Andrew: Right. Remember, the same hackable software code is still inside those Diebold machines that are now Dominion voting machines. So and and how that relates to the other Sidney Powell claim of, you know, Dominion Voting was started by the ghost of Hugo Chavez in the 1930s.

0:17:01 Thomas: Yeah. Oh, you got to follow the code.

0:17:19 Thomas: Well, see ghosts often recycle code as well. It's widely known, okay.

0:17:22 Andrew: It could be. So, yeah, it's crazies all the way down. That's the end of that. Wanted to do kind of a quick update. This was suggested by one of our patrons. And it was really, really illustrative of what the Supreme Court does when they have crafted an opinion out of whole cloth in order to kind of lock that down. Right. Model also is true with D.C. versus Heller. Right. And we've talked about how subsequent appellate court cases tried to use the like, well, you know, it's not like we're talking about, you know, military issue hardware here and the other like sarcastic language from Scalia to try and carve exceptions to it. The original Citizens United decision has a long analysis of, you know, balancing the governmental interests against the intrusion. But

0:17:28 Thomas: Right.

0:18:03 Thomas: Sorry.

0:18:20 Thomas: The intrusion being any limits at all on spending on elections, yeah.

0:18:23 Andrew: That's Exactly right. Right.

0:18:25 Thomas: Big. Intrusion.

0:18:25 Andrew: Yeah, and So, so Citizens United is 2011, and is a case, uh, that went up to the Montana Supreme Court in 2011. Um, it involved, uh, statute 13-35-227, which was enacted, uh, as a ballot initiative by the Montana voters in 1912. Right, so citizens of Montana been under this law for a hundred years, and again, are, you know, small government conservatives, just, you know, just calling balls and strikes, we're like, oh, hey, um, maybe I could overturn this hundred year old law, uh, and spoiler alert, um, lost in Montana, right, but got bailed out, spoiler, spoiler alert, but it got bailed out By the Supreme Court.

And And This story, I think, is really, really illustrative of what we mean when we talk about right-wing wing judicial activism. So the Montana law says a corporation may not make a contribution or expenditure in connection with a candidate or a political committee that supports or opposes a candidate or political party. Right. Some other stuff in the statute, but that's the big thing. Right? Can a candidate, can a corporation still fund a super PAC? You betcha. Okay. So throughout this opinion, the Montana Supreme Court is like, yeah, what we're just saying is, because corporations may be people, my friends, but they don't have the same speaking through the political system that a flesh and blood person does. And the super PAC system, like, while

0:18:26 Thomas: Uh, Yes. Of course. Yeah.

0:19:56 Andrew: It kind of sucks, at least requires you to make some disclosure requirements. And so the effect of this law is to say, yeah, OK. One way in which corporations are not do not have all the same rights as human beings is that don't get unlimited electioneering, unlimited spending and be on behalf of their candidates. Why is this important in Montana? Because there are no cities in Montana, right? Montana is a rural state and its elections until the past decade were basically like old timey kind of elections, right, like they weren't dictated by money, they were dictated by grassroots activism. And so even in a state that's like, you know, you think of as being super Republican today, that nevertheless proven to be iconoclastic, right?

0:20:01 Thomas: Yeah.

0:20:47 Andrew: It's elected Democratic members to the Senate and forth. But, you KNOW, you THINK of Montana, you're like, okay, right, you Know, really rural conservative. Also a tradition that they were trying to to protect from overweening corporate influence. So Montana Supreme Court says the Montana law at issue in this case cannot be understood outside the context of the time and place that it was enacted. Right. During the early 20th century, 1912, Montana became a state in 1889. Right. So, I mean, literally, right, like first three decades, two decades of statehood.

0:21:18 Thomas: I didn't think about that.

0:21:21 Andrew: Yeah. Yeah. Me neither. And again, notice that this is precisely what conservatives say they want to do. Right. Let's look at the history and tradition. OK. Montana becomes a state in 1889. Twenty years later, 23 years later. Voters They rise up, place a ballot initiative and pass a law that prohibits unlimited corporate campaign expenditures.

0:21:21 Thomas: Wow.

0:21:43 Thomas: Back then, too.

0:21:44 Andrew: Well, here's it just so happens I know the story.

0:21:44 Thomas: We don't want big buggy whip buying our election, I don't even know, what does they have some sort of railroad tycoon

0:21:51 Andrew: Yeah.

0:21:52 Thomas: Oh, okay, sweet.

0:21:52 Andrew: Here's here's what happened. Those tumultuous years were marked by rough contests for political and economic domination, primarily in the mining center of Butte, right between mining and industrial enterprises controlled by foreign trusts or corporations. These disputes had profound long-term impacts on the entire state, including issues regarding the judiciary, the location of the state capitol, the procedure for the election of U.S. senators, and the ownership and control of virtually all media outlets in the state. Then it describes a fight over mineral rights between entrepreneur F. Augustus Heinze and the Anaconda Company. Company, nope.

0:22:01 Thomas: There you go like Heintz is in the catch-up. Oh, are you

0:22:34 Andrew: Different different heights, uh, I am sure. And and the Anaconda Company, which, by the way, like, you know, if you're trying not to be evil, maybe don't call your company the anaconic company then.

0:22:36 Thomas: Sure yeah, Cobra.

0:22:47 Andrew: Controlled by Standard Oil, right, so yeah, Heinz

0:22:52 Thomas: Jeez, this is like three villains, book villains in a trench coat, that's

0:22:56 Andrew: That's exactly what it is. Heinz managed to control the two state judges in Butte who routinely decided cases in his favor, uh, judges denied being bribed, but one of them admitted that Anaconda representatives had offered him 250 000 cash to sign an affidavit that Heinz had bribed him. So, a great system there, right. Um, in response to the legal threats, uh, 1903, in Anacondah, closed down all of its mining operations. But not, as the Supreme Court notes, the many newspapers it controlled, throwing four fifths of the labor force of Montana out of work.

0:23:34 Thomas: That's like eight guys.

0:23:36 Andrew: Oh, we are getting letters. Its price for sending its employees back to work was that the governor.

0:23:40 Thomas: You're right. Sorry. That's, like, six guys and two horses.

0:23:43 Andrew: Nope. Anaconda, uh, to in front of these allegedly corrupt judges, shuts down its, all of its operations, unemployees 80% of the state of Montana, and then says, "Oh, you'd like us to start back up work again? Well, it's 1903, so good luck with that." But I'll tell you what we'll do, yes,

0:24:01 Thomas: Jeez. So one tycoon is, like... I'm taking my economy and going home. Like, you can just shut down the whole thing.

0:24:08 Andrew: Yes. Yeah. Yep. So its condition was that the governor call a special session of the legislature to enact a measure that would allow Anaconda to avoid having to litigate its cases in Butte. Did that. He called the special section of the legislator. And that law is still on the Montana books today. We could do a separate story on that. We don't have time. OK, W.A. Clark, who the Montana Supreme Court notes, quote, "had amassed a fortune from the industrial operations in Butte and set his sights on the United States Senate." Now, 1899, in wake of a large number of suddenly affluent members, the Montana legislature elected Clark to the U.S. Senate, because, again, remember, this was pre-popular election of senators. Senators, yep.

0:24:10 Thomas: Wow. Wow. Oh, right. Yeah, they

0:25:01 Andrew: Yep, Clark, uh, admitted to spending $272,000 in the effort, which again, that's a billion dollars today, and its animated expense was over $400,000. Complaints of Clark's bribery of the Montana legislature led to an investigation by the U.S. Senate in 1900. The Senate investigating committee concluded that Clark had won his seat through bribery and unseated him.

0:25:01 Thomas: Just get appointed. It's a billion dollars today. Yeah.

0:25:25 Thomas: Wow.

0:25:26 Andrew: The Senate committee, quote, "expressed horror at the amount of money which had been poured into politics in Montana elections and expressed its concern with respect to the general aura of corruption in Montana." End of quote.

0:25:41 Andrew: I love that. I wish I had clerked for the Montana Supreme Court because you don't get Supreme Court opinions like this, Quote, in a demonstration of extraordinary boldness, Clark returned to Montana, caused the governor to leave the state on a ruse, and with the assistance of the supportive lieutenant governor, won appointment to the very U.S. Senate seat that had just been denied him.

0:25:58 Thomas: Okay, what?

0:26:07 Andrew: Is uh supported by a book um Montana an uncommon land uh the author is K. Ross Toole uh will not surprise you that I have downloaded a copy of montana and uncommon common land so I'm I'm going to piece through this and try and figure out uh like uh hey governor uh look over there

0:26:31 Thomas: Yeah. Look over there. I'm now I'm the governor. I'm the senator now.

0:26:33 Andrew: No so what happened was right he tricked the governor to leaving the state and then had the lieutenant governor direct the state legislature to appoint clark

0:26:43 Thomas: Well, how does that work, though?

0:26:45 Andrew: Back to this I don't know I really wish I could know yeah

0:26:47 Thomas: I like there's there's several I get like kind of how this would work, but there's seven layers where I guess it's just like, well, politics were different in 1900 or whatever, because so we have seen the modern equivalent of like the lieutenant governor running amok when the governor leaves the state. Remember that?

0:26:56 Andrew: And

0:27:05 Thomas: What was that? I'm forgetting exactly the, example. The, I can't remember which state it was, but there was that that very thing and weird to think of you that being a different party than the governor but It can be, and that that so that still exists today, but the part where that the governor can then order the legislature who then, because it it was pre -whatever amendment, can appoint senators? That's several layers of intrigue there. Wow. Okay.

0:27:13 Andrew: That YEP

0:27:29 Thomas: What a plot.

0:27:29 Andrew: SO SO NOT DONE SO CLARK GETS THE LIEUTENANT GOVERNOR TO ENGINEER HIM TO BE APPOINTED MAYBE IT'S A RECESS APPOINMENT because the seat was unfilled I don't know, right? Like, but, uh, appointed back to the Senate seat that he was just expelled from. Then, of course, the U.S. Senate is like, we're just gonna expel you again, so he resigns and then, uh, enough races for the Montana state legislature that he basically controls the Montana state legislature and gets sent to the Senate a third time, by which time there, there's... there's no corruption at that point, because the corruption is, or there's no provable corruption in the Senate, because what he's

0:27:39 Thomas: That's even better. Wow, right? Yeah, there's Infinite appointments? Appointments? He's Bought

0:28:14 Andrew: Done is he's bought enough of the Montana State Legislature that he didn't have have to bribe them directly, they're now all just his lackeys. So Clark went to the Senate, by the way, he finally got you that thing that he greatly craved, um, continue, it's amazing, uh, gonna go back to the Supreme Court, quoting, uh, Ross Tool, the, uh, the historian who wrote Montana, An Uncommon Land, uh, the Supreme Court quotes this in support of the proposition of, the State of Montana was still contending with corporate domination even in the mid -20th century. The Anaconda Company maintained controlling ownership of all but one of Montana's major newspapers until 1959. Quote, today the influence of the Anacoda Company in the state legislature is unspectacular, but very great. It has been a long time since the company showed the mailed fist. It has shown the mailed fist in chain

0:28:14 Thomas: Enough Of it Oh My God, wow. Oh Oh

0:29:08 Andrew: Mail. I love that, that, yeah, but no informed person denies its influence, nor the fact that the basic use to which it is put is to maintain the status quo, to keep taxes down, not to rock the boat. Few of the company personnel in either Butte or New York remember F. Augustus Heintz, or even, for that matter, Joseph M. Dixon. But it would be foolish for anyone to deny the pervasive influence the Anaconda Company in Montana politics is part and parcel of the Montana heritage. Okay.

0:29:08 Thomas: Oh yeah So They lay in wait, they haven't seen the anaconda, but they're still, it's buried somewhere and could at any time influence politics again. Okay.

0:29:42 Andrew: Yeah, so so with that as background in 1912, Montana was like, would we like not to have. And the was a truly, you know, bipartisan effort that remains to 2011 this that, even small expenditures of money can impact Montana elections. So in connection with this case, the of Montana submitted affidavits from two experienced politicians, Bob Brown, a Republican, served in the Montana House of Representatives, the the Montana Senate as Montana Secretary of State and as an unsuccessful candidate for governor. He retired in 2010. Mike Cooney, a Democrat, served in the Montana House of Representatives in the Atlanta Senate as the Montana Secretary of State, and was also an unsuccessful candidate for Governor. Okay, so pretty good, you know, bipartisan resumes there.

0:30:30 Andrew: Both affirm that Montana, with its small population, enjoys political campaigns marked by person-to-person contact and a low cost of advertising compared to other states. They affirmed that allowing unlimited independent expenditures of corporate money into the Montana political process would drastically change campaigning by shifting the emphasis to raising money. By the way, that's true.

0:30:52 Thomas: Remind me where in the inception we are, this is Supreme Court in the case that eventually was slapped down by the... Okay.

0:30:59 Andrew: The Supreme court. So this is 2010 before as, as citizens United is being decided.

0:31:01 Thomas: Okay. Pre -Citizens United. Gotcha.

0:31:07 Andrew: Okay. So Cooney, Cooney, for example, ran his first state legislative campaign for seven hundred and fifty dollars. Affirmed that Montana politics are more susceptible to corruption than federal campaigns and that infusions of large amounts of corporate independent expenditures on just media coverage could accomplish the same type of corruption in Montana politics as that which led to the inaction of the enactment of the law in the first place. OK, I keep going, but I want to end with, you know, Clark, the guy who bought his Senate seat three times, caught the attention of Mark Twain, who wrote in 1907 that Clark, quote, is said to have bought legislatures and judges as other men by food and raiment.

By his example, he is so excused and so sweetened corruption that in Montana it no longer has an offensive smell. Well, got a lot. They don't, they don't make them like that anymore. More so, the Montana Supreme Court says the question then is when in the last 99 years did Montana lose the power or interest sufficient to support this law, if it ever did. And that is essentially, I could go through the rest of the legal analysis, but basically they say, look, um, United says we are, we are using strict scrutiny because it's free speech.

0:31:43 Thomas: Oh, nice.

0:32:28 Thomas: Everyone's

0:32:28 Andrew: Because. Right, right, right. Exactly.

0:32:28 Thomas: God -given right to buy an effing election. Oh sorry. It's every corporation's God given right to To buy an election.

0:32:35 Andrew: Yeah. So Montana says, OK, let's play by your rules, Supreme Court. Our state compelling interest is very, very great because of this unique history, because we have these incredibly rural elections where you could be the most powerful man in the Montana Senate for seven hundred and fifty dollars. And we'd like to keep that the way it is. We'd like to keep our elections, people running around and having to drive out, I don't know, I can't name other than

0:32:48 Thomas: Yeah, no kidding.

0:33:06 Thomas: Yeah, I can't name a single other place.

0:33:09 Andrew: Butte, I cannot name a single other place in Montana. Sorry, Montanites that listen to this show. We have a very, very compelling state interest. And in terms of the restriction, this is really nothing. A thing you can get around this by creating a super PAC and disclosing your donors, and so we think, fine, Citizens United says you apply strict scrutiny to efforts to restrain corporate spending, we think we've met that here because, because it's bad in Montana, um, doesn't care, and uh, five four, you know, it's five four, even though it's a per curiam opinion, uh, because there's a Briar, Ginsburg, Sotomayor, Kagan dissent, back when we had four liberals in dissent and not just three, uh, in a case called American Tradition Partnership versus Bullock, then the governor of Montana, uh, in which the Supreme, Supreme Court granted cert and summarily reverses in, I'm going to read you the entirety of the opinion.

Entirety of opinion is, a Montana state law provides that a corporation may not make an expenditure in connection with a candidate or political committee that supports or opposes a candidate or a political party. The Montana Supreme Court rejected petitioner's claim that the statute violates the First Amendment. That's the case I just read to you. In Citizens United, this court struck

0:33:36 Thomas: Yeah. Yeah. That sounds right.

0:34:27 Andrew: Down a similar federal law, holding that political speech does not lose First Amendment protection simply because it sources a corporation. Okay. The question presented in this case is whether the holding of Citizens United applies to the Montana state law. There can be no serious doubt that it does. Montana's arguments in support of the judgment below either were already rejected in Citizens United or fail to meaningfully distinguish that case. Reversed. That's it. So notice again how unbelievably shoddy that reasoning is.

0:34:34 Thomas: Yeah. Yeah.

0:34:57 Andrew: Right, you can say political speech has its First Amendment protection, lots of speech has First Amendment protection but gets restricted, right? Yeah, but the goal was to allow corporations to buy elections, and so, so this opinion immediately cemented that as the legacy of Citizens United. Right. Not even pretending that it's a question of looking through and undertaking a serious analysis of does this violate strict. No, it's just. Yeah. Citizens United now stands for corporations can do whatever they want. And you're screwed, sorry about that, um,

0:35:05 Thomas: Yeah.

0:35:33 Thomas: Then. Whereas, you like the right to privacy and, you know, making medical decisions about your own body, that was just invented out of whole cloth. That was wrong from the beginning, even though there's just plenty of jurisprudence establishing that very thing.

0:35:44 Andrew: Or you know, if, uh, the local governing parties have so contrived to gerrymander your vote as to make it meaningless, uh, the solution to that is to vote for different people, and yeah, should

0:36:00 Thomas: Yeah. Should have thought of that before you were disenfranchised. Oh, boy. It is really frustrating.

0:36:03 Andrew: Yeah. It's bad.

0:36:08 Thomas: That was a fun jaunt down some early 1900s memory lane. Good stuff. And

0:36:13 Andrew: It. Am And, more and more convinced, know, you following our buddy Larry Lessig that like really is a term problem that has to be solved. Right. Always keeping the barbarians back at the gate. But, you situation permeates our politics. The fact that ninety nine percent of House seats are safe one way or the other is what gives you your Lauren Boebert's and Matt Gates's and, you know, encourages the craziest wing of your party to, you run and just it. To be done about our fundamentally broken system for how we elect people in this country.

0:36:55 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

0:37:01 Thomas: Now it's time for T3BE. Thomas takes the bar exam. I think I aced the the last one, uh, still open for uh Andrew Torres hype intern, but uh, we'll see. Oh.

0:37:14 Andrew: Thomas City College is funded by the county government of State X.

0:37:19 Thomas: Wow, college.

0:37:20 Andrew: City College issues an email directive that all employees disclose all social club memberships at the start of every school year. The purpose of the directive is unclear. Most employees make the disclosure for fear of losing their jobs, but a college accountant challenges the directive as unconstitutional. Is the college accountant correct?

0:37:44 Thomas: Accountant like?

0:37:44 Andrew: Yeah, The college accountant is probably wrong. Such memberships exist. B.

0:37:49 Thomas: What?

0:37:50 Andrew: The directive is probably right. Social club memberships are a private right. C, no, the directive is probably constitutional so long as there is a connection to job performance, or D, yes, the directive ist probably unconstitutional if there is proven state action and it is wrongful.

0:38:11 Thomas: The hell.

0:38:11 Andrew: No.

0:38:12 Thomas: City, okay, yeah, city, I like, we got three different layers in one sentence. City college funded by county government of state X, but yeah, that's government. Okay. City college issues, an email directive. Don't think that matters. That all employees disclose. So you have to disclose social club membership. It's not banning anybody. It's just saying, and it's employees.

0:38:37 Thomas: Okay, so it's, so they are saying employees must disclose social club memberships. That doesn't, that doesn't seem that bad. I'm trying to think just prima facie here. If your employer is like, hey, just need to be notified of which social clubs you're in. Is that social clubs like at the college? What's a social club? Rotary club? I don't know. Anyway, it also seems like a little invasive. I don't know.

But I mean, we're allowed to drug test people to see what they do on their off hours, so that seems crazy to me. Um, okay, purpose of the directive is unclear. Well, that seems like, know, you got to have some, that is, that is interesting, because no matter what test we're applying, it fails. You know, strict scrutiny, moderate, intermediate scrutiny, no scrutiny, uh, know, whatever it is, it fails if there's just no purpose. Um, that's weird.

Most employees make the disclosure for fear of losing their jobs. But a college accountant challenges the directive as unconstitutional. Okay. Is that accountant correct? The college accountant is probably wrong. Such memberships exist. That's the weirdest answer. Because memberships exists, the college accountant, I don't know. I mean, that is really trying to trick me if that's the correct answer. I don't know how, you So, A seems like nonsense, but who knows. B, the directive is probably wrong. Directive is probably wrong? The question is, is the directive unconstitutional? Not wrong. I don't know what wrong would be. How, the The directive is probably wrong. Yeah, it might be wrong, but so B, I feel like sounds like one that would appeal to some non -lawyer.

0:40:26 Thomas: It's like the directive is Probably Wrong. Social club memberships are a private right. Like I love all that language, but directive is wrong. Can they just substitute wrong in for unconstitutional? That's that, that can't be right. No, the directive ist probably constitutional as long as there is a connection to job performance. Hmm. That's, see, that's plausible to me because, yeah, cause it's just disclosure. As long as there's a connection to job performance. So that's, I mean, that, that answer is stipulating that this meets some level of scrutiny, uh, like intermediate, maybe, can't remember what the first one is. Not much scrutiny. D yes, the directive is probably unconstitional if there is proven state action and it is wrongful?

0:41:13 Thomas: That's not, that can't be the test. Wrongful. I don't like anything but C, really. Is a weird one. It just seems like a bunch of word salad. And the only one that hits, from my experience and assuming I'm applying the right tests here, the only thing that hits the actual test that I remember is C. D, yes, D starts out well. Yes, the directive is probably unconstitutional if there's proven state action. Okay. That seems fine. And it is wrongful though. Cause that, that's not really, I don't think that's the test. Wrongful. State action is wrongful. You need to prove that there's state action and that there's not, it doesn't meet some sort of scrutiny. I think not that it is right. It's wrongful. Ah, boy. I, I really think every answer sucks except C. C. I don't know for sure.

0:42:03 Thomas: I'm between C and D. Those are the only ones that even mention right things at all. So I'm between C and D, and I will go with C. And before we wrap up, we've had a lot of requests to have ChatGPT take the bar with me, because this has been making waves. So, I'm going to attempt this. I have not done this yet because, again, I never spoilers anything. So this is fresh. I'm just pasting it in. Here we're gonna, we're going to react live. I don't know anything. This is my first time using chat GPT I assume, Andrew, we can just pop the multiple choice in there and it will use what, well, whatever I guess the test is, GPT neat, chat GP T needs to know what to do when I paste in a bar question. So we'll just say whatever, I paste it in, the question and the answers. Let's see what happens. It's gonna take the test along with me. Oh.

0:42:50 Andrew: All right.

0:42:51 Thomas: Right, well, here's what chat GPT had to say. Interesting, we'll throw this into, it's Thomas and ChatGPT takes the bar exam this week, and we'll see who's right and who is dead. Uh, it is possible that the directive is unconstitutional if there's proven state action and it is wrongful. Well, that's interesting, so it's, that's that's adopting the wording of D, but it goes on. State action refers to the actions of the government or a government-affiliated organization, and if the city college is funded by the county government and is issuing this directive, it could be considered state action. Okay, I agree with that. And that actually sounds like very cogent writing. I don't know. The directive may be wrongful if it violates the employee's right to privacy or freedom of association. Okay. It is also possible that the directive may be constitutional as long as there is a connection to job performance, but this would depend on the specific circumstances and details of the directive and how it is being implemented.

0:43:45 Thomas: Without more information, it is difficult to accurately assess the situation. You and me both, chat GPT. Here's the thing. I wanted to see if I could make it choose an answer. So I just typed in, like, I edited the question to say choose one of the answers. And it chose D. Yes, the directive is probably unconstitutional if there's proven state action. And it is wrongful. So, yep, that was my second choice answer. I would say odds are really good that ChatGPT is acing this one. But you'll have to decide, everybody. Andrew, tell them how they can play along. Long.

0:44:19 Andrew: Yeah, if you want to play along, just share out this episode on social media. Include the hashtag T3BE. I cannot stress how important that is. That's how I find people who are participating. Baiting, uh, us, your guests, your reasons therefore. We will pick a winner and shower that winner with never-ending fame and fortune. Fame and fortunate not guaranteed. And

0:44:37 Clip: And thank you, let's go!

0:44:39 Thomas: Now it's time to thank our new patrons at patreon.com/law. Enjoying all the goodies, the ad free episodes. We're back to the four episode a week schedule. So that means even more ads you're not hearing. So jump on patreon.com/law and Andrew, why don't you start us off?

0:44:53 Andrew: Palazzo, Loulou Dickey, Leonard Tramiel. Hey, Leonardo, thank you. Um, Hanlon, One I'd Nick became an OA subscriber because, a, episodes keep getting cut off, I think that's been fixed, strength, I like the show, C, for the math, or D, all of the above. Love that. Sam Cunningham, Aaron Marcia Formica, Dana Schwartz, AC, Chips Currency, I put chemicals in my punch to turn the freaking yuletides gay, that's amazing, Jordan.

0:45:25 Thomas: That's really good.

0:45:26 Andrew: And Jordan Faye Watkins, take it away, Thomas. This.

0:45:30 Thomas: Thank you to Violette with interesting Violet, like E-T-T-E, Jinx Greymoon, Nathan Grange, Austin, Kevin George, AstroOtter, client intake specialist (the intake is bourbon). I've listened to the entire catalog three times. No way. Is that true? That's like seven lifetimes. I don't know. How is that even possible? But wow. Congrats or I'm sorry. I know. I'm not sure. I mean, I don't know. Jared Ratoff, and Elizabeth Eddy. Thanks so much for pledging, everybody. Hope you enjoy the goodies. That's our show, Andrew. I'm excited to see if I can beat a bot at the bar exam, and I'm betting on no right now, but we'll see.

0:46:21 Andrew: Me too. Let's find out.

0:46:23 Thomas: Wait, you're also betting on a no? Or no, you also can't wait. Okay, okay. Good. It would really sway the betting markets if they found out how you were betting. So you can't do that.

0:46:27 Andrew: I also can't wait. We call that insider information.

0:46:35 Thomas: Yes.

0:46:38 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.

0:47:11 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.