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The Oral Argument in Patrick v. Alaska

On Wednesday, I had an oral argument “in” (virtually, unfortunately) the Alaska Supreme Court in our case arguing to uphold the state’s law regulating SuperPACs, Patrick, et al., v. Alaska.

We’ve adopted a different strategy in this case from, say, Lieu v. FEC: Our aim is to argue to the originalists on the United States Supreme Court especially that their theory of constitutional interpretation should lead them to embrace an original understanding of the operative term in their First Amendment test — “corruption”—and that such an understanding would allow the regulation of SuperPACs.

If we get to the United States Supreme Court in this case, this will be the third time I will be arguing to originalists on the Supreme Court that their principles should favor my clients.

The first was Eldred v. Aschroft (2003), where the argument was that the original meaning of the Progress Clause (that copyrights shall be for “limited Times”) forbids the practice of perpetually extending copyright terms. We lost 7–2. The originalists stood silent.

The second was Chiafalo v. Washington (2020), where the argument was that the original meaning of the Presidential Electors Clause means that electors have a constitutional discretion to vote. We lost 9–0. The originalists were excoriated by one of America’s leading originalist scholars, Mike Rappaport.

This would be the third case: If Congress is free to regulate campaign speech to address “corruption,” then the originalists should at least allow regulation of the kinds of “corruption” that the Framers were most focused on — what we call here “institutional corruption.” Such “corruption” should count as a permissible “substantial state interests,” regulable under the First Amendment, just as quid pro quo corruption is.

You can read the argument in full in our brief. You can read the testimony of one of America’s leading historians, Jack Rakove, in the case here. The expert report of Professor Adam Bonica is here.

Obviously, these earlier cases had an effect even though we didn’t “win.” We lost Eldred, but Congress has not tried to extend the term of copyrights again (and so since 2019, we’re celebrating, with help from the Duke Center for the Public Domain, Public Domain Day each January 1). We lost Chiafalo, but that case made clear that electors had to follow the will of the people (“here, We the People rule”), and by implication, legislatures too.

But I’ve not been pressing this third case to lose. Naive as I am, and studiously remain, I genuinely believe that there are enough principled originalists on the Supreme Court (at least 2) to join with the non-originalists (3) to uphold the power of states and Congress to protect the “representative integrity” of our democratic process. That should permit the regulation of institutional — as well as individual, or quid pro quo—corruption. That should permit, given the evidence our expert, Professor Adam Bonica testified to, the regulation of SuperPACs.

For me personally, however, whether I argue this case or not, after spending my life as a liberal originalist (see Fidelity and Constraint (2019)), this third time is either the charm or an out. Someday, we’ll see. When I clerked for Justice Scalia, he promised me (and showed me) originalism was not partisan. (See, e.g., County of Riverside v. McLaughlin (1991)). In the last lunch I had with him, he laughed when I reminded him of that but pointed to all the cases where it seemed that wasn’t true.

You can see the Zoom recording of the argument in the Alaska Supreme Court here. Sign up to receive updates about the progress of the case here. The Alaska Supreme Court does not clear its docket each year (as the United States Supreme Court does), so it’s not clear how long it will take for them to render a decision.

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Citzens United v. FEC, 558 U.S.310, 359 (2010)

law professor, activist.

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