Legal Docket: The scales tilt

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MARY REICHARD, HOST: It’s The World and Everything in It for this 15th day of December, 2025. We’re so glad you’ve joined us today. Good morning! I’m Mary Reichard.

NICK EICHER, HOST: And I’m Nick Eicher. Before we get going today, just a quick word about the December Giving Drive—and the work of journalism. Every interview we do, every trip we take, every draft we write—

REICHARD: —and rewrite…

EICHER: Yeah—and rewrite again. The point is this: all that work assumes an audience—listeners, viewers, readers of all of WORLD’s products. But without an audience, there’s no story to write. No point in the effort.

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EICHER: It’s our December Giving Drive. Visit wng.org/donate.

REICHARD: It’s time for Legal Docket.

Today, two cases, both about speech; one about political influence and money, the other about a street preacher.

We start with the case with the big name: National Republican Senatorial Committee v Federal Election Commission.

If you’re frustrated or exasperated by the state of our politics today … you’re in pretty good company. Even some of our Supreme Court justices can get incredulous!

ALITO: I mean, are you serious? Are you serious? Anyway, my time is up.

MARTINEZ: I’m serious, Your Honor, I’m serious that the same rules have to apply to all plaintiffs.

EICHER: …and that wasn’t even about the merits of the case.

The real issue is this: whether it’s constitutional for Congress to cap the amount of money political parties can spend on their candidates.

The aim was to fight corruption—by preventing coordinated party spending from becoming a backdoor for unlimited financial support.

Lots of interested parties in this one: the committees House and Senate Republicans built to get reelected, a former member of Congress, even Vice President JD Vance, who when he got involved was in the Senate.

They say what Congress did is unconstitutional: the spending caps restrict speech, they’re outdated, and they don’t even work to prevent corruption.

REICHARD: The lawyer for Senate Republicans is Noel Francisco.

FRANCISCO: The base limits here show almost to a metaphyslical certitude that the coordinated spending limits have nothing to do with quid pro quo bribery. The base limits are the same everywhere for every race: $3500 for individuals, $500 for the party committees. That shows that Congress thinks the risk of bribery is the same everywhere… Yet the coordinated spending limits range from $60,000 to $4 million depending on the race and location. That makes no sense if what you're concerned about is bribery. Even a Senate candidate in California could be bribed for $4 million. But it makes perfect sense if what you're trying to do is limit the overall amount of money in politics. That, however, is what this Court has repeatedly said is verboten under the First Amendment. The last people who should be saying what should be spent in elections are the people who are holding power today.

More than half the states do permit unlimited coordination between party and candidate. And supporters of the campaign spending caps didn’t show even a single example of a donor laundering a bribe through a political party.

EICHER: But the Democrats in support of the caps argue that if a political party pays for something in coordination with a candidate, that counts as though the party directly cut the candidate a check. That’s just a disguised contribution, and Congress can restrict it. Court precedent says so.

REICHARD: The issue of standing came up, with lawyer Roman Martinez arguing that JD Vance has no standing to sue because he’s not declared himself a candidate for 2028. So he’s got no injury, an element of standing. In fact, no plaintiff has standing here, he argues.

So the court ought to dismiss the case right now.

That was what got Justice Samuel Alito’s dander up:

ALITO: Isn’t that what every potential candidate always says…until the day when they make the announcement?

MARTINEZ: That’s what candidates say when they’re running. That’s also what candidates say when they’re not running.

EICHER: It’s worth noting that President Biden at first defended the caps. Then he decided not to—concluding the spending caps were no longer defensible under Supreme Court precedent.

So the court appointed Martinez to defend the caps in this case.

The Trump administration also saw the caps as indefensible and took the side of the Republicans, urging the high court to toss out a case called Colorado II.

But Justice Sonia Sotomayor contradicted the Republicans and said she found historical examples of why the rule was necessary in the first place.

SOTOMAYOR: You keep saying there's no evidence of this kind of coordination resulting in a quid pro quo or the appearance thereof, but the whole Campaign Finance…--law is based on just such an evidence. In the early 1970s, that's what led to all of this congressional action. The dairy industry channeled millions of dollars to President Nixon through the Republican party and its committees. The industry landed a hundred-million-dollar subsidy from President Nixon in return. Was there a quid pro quo? There certainly was an appearance of quid pro quo. That's what started the entire campaign finance reform legislation. The threat hasn't diminished.

REICHARD: Marc Elias argued for the Democratic campaign committees in favor of the spending caps:

ELIAS: Over the past 50 years, this Court has had opportunity to review many campaign finance laws, and it has appropriately treated many of them skeptically, but it has never wavered on one foundational pillar: Congress may limit contributions to candidates.

Justice Brett Kavanaugh questioned the Supreme Court’s involvement with campaign finance at all. For example, letting super PACs spend unlimited sums, yet strictly limiting how much parties can coordinate with candidates:

KAVANAUGH: Should we be concerned about the overall architecture of our jurisprudence having weakened or disadvantaged political parties as compared to outside groups?

EICHER: Justice Department lawyer Sarah Harris said we should be very concerned. Court precedent simply cannot be squared with the First Amendment. The Democratic side took the opposite view, arguing that lifting the caps will ruin the only remaining rationale the Court still has to control political spending.

Justice Amy Coney Barret asked just one question, one that cut right through the political incentives:

BARRETT: Mr. Francisco said that the RNC and the DNC had long been aligned on this question. And, normally, regulated parties are happy to get rid of regulation. And, obviously, this ties the DNC's hands just as much as it ties the RNC's hands. So I guess my questions are two. One is, if the parties had long been aligned on this, why change the position? And, two, if there isn't an imbalance in who this benefits, why would the DNC be here? Like, why would your client be here if it didn't perceive this to be something that would benefit the RNC more than the DNC?

REICHARD: The Democratic side tried to reframe the motive from partisan advantage to protecting the parties.

But the government position appealed to constitutional first principles, not political winners and losers.

HARRIS: And the answer is to allow the First Amendment to do its work so that parties can engage in this coordination with candidates in heartland issues for campaigns and let the chips fall where they may…

I heard no clear majority one way or the other in all this. But the stakes are very high. If the caps fall, billionaire donors would get huge leverage over party strategy. If the caps stay, then Super PACS remain the dominant vehicles for big money.

Alright, our second case today—

OLIVIER: I love to go out and tell folks about Jesus. …

—the case of a street preacher. The audio is from CBN:

OLIVIER: … I hand out Gospel tracts to people and tell them about the message of Christ as they’re walking to the concert.

It’s Olivier v. City of Brandon, Mississippi, and the voice you heard is Gabriel Olivier.

The question seems so simple: If you’ve been convicted under a law you think is unconstitutional, can you still sue in federal court to prevent that law from being used against you in the future?

EICHER: The case arises from Olivier’s arrest in Brandon, Mississippi four years ago.

Police ordered Olivier to move to a designated protest zone, 265 feet away from the city’s amphitheater. His wife Christina told First Liberty Institute:

CHRISTINA: Next thing I know, I'm looking over there, and Gabe was in handcuffs, and the police chief said, you know, unless y'all want to be arrested, you need to leave immediately as well.

A city ordinance bars demonstrators from getting too close to the concert venue or speaking from the public sidewalk next to it. The city says earlier demonstrations were disruptive … words like “nasty” and “Jezebel” shouted at people going to the concert, forcing attendees onto the street. Officers said the noise made it hard to hear their radio orders.

That’s why the city passed an ordinance: Demonstrators have to stay in that designated area 265 feet away.

REICHARD: But Olivier says he just wants to preach the Gospel, and nobody can hear him from that far away. He argues the city is targeting religious speech by isolating him to a speech zone.

He’s not trying to undo his old conviction; but he does want to prevent it from happening again.

Here’s the legal wrinkle: A 1994 case called Heck v Humphrey says you cannot sue under the relevant law because that suggests the earlier conviction wasn’t valid.

EICHER: Justice Elena Kagan pressed Olivier’s lawyer Allyson Ho on that point:

KAGAN: …if we take Heck for all it's worth, I think …you can't win. I think that you have to be saying you just can't take that language to mean what it means.

HO: Respectfully, Justice Kagan, I -- I -- I don't -- I don't believe that's true…

….going on to distinguish that case from this one: the Heck decision bars claims that undermine the past. But her client is asking for protection going forward.

Not the same thing.

The city argued Olivier had plenty of other state laws he could’ve sued under, but Justice Sonia Sotomayor wasn’t impressed:

SOTOMAYOR: But what you’re telling me is…there is no remedy for him or her in order to secure their rights even 20 years from now. What you’re basically saying is simply because they’ve been previously convicted, they cannot seek prospective relief 20 years from now, unless they get an expungement. But if they’re barred for some procedural reason, they have no protection.

And then, a rare moment of agreement with her from Justice Alito:

ALITO: And doesn’t it seem a stretch of the underlying reasoning, the rationale of Heck to say, no you can’t ever do that, you’re forever barred from engaging in what you think is protected First Amendment activity because you were previously convicted under this statute and received more or less a slap on the wrist?

REICHARD: The “slap on the wrist” Justice Alito refers to is that Olivier paid a fine and received a suspended 10 day jail sentence.

The city of Brandon argues its regulation is “personal,” meaning another preacher without a conviction could bring a challenge under that provision of civil-rights law, known as Section 1983. That is the law people use to sue officials for civil rights violations.

That led to Justice Clarence Thomas pointing out the logical flaw in the city’s theory. The exchange is with Olivier’s lawyer.

THOMAS: Ms. Ho, would a victory by a third person who was never convicted under this ordinance in a 1983 action… would it impugn the reasoning underlying the conviction of Petitioner?

HO: Yes, absolutely your honor…

THOMAS: Would it impugn it any differently than if Petitioner brought the 1983 action?

HO: No, your honor.

THOMAS: Would it undo the conviction or the confinement of Petitioner?

HO: No.

EICHER: …a devastating take-down for the city. Because Heck is about stopping people from using Section 1983 to overturn their past convictions. Olivier isn’t doing that, so the city’s reading of the Heck decision cannot be right.

REICHARD: But it’s that all-important limiting principle the justices are looking for.

So, whether a person with a prior conviction can be protected in future speech, the justices will decide.

And that’s this week’s Legal Docket!

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