During the George W. Bush administration, then–Solicitor General Paul Clement successfully defended the constitutionality of the 2002 McCain-Feingold law, which tightened electioneering and fundraising regulations. Can Clement now get traction on a new case, Thompson v. Hebdon, that could partially reverse that earlier victory and help lead to more big money in politics? It seems possible, if not likely, that he will get the Supreme Court closer to killing what’s left of campaign-finance limits.
Back in the early 2000s, before the Court opened the door to corporate money in candidate elections in the 2010 Citizens United v. FEC case, it upheld almost every campaign-finance law it considered. Although plaintiffs in these cases argued that the laws infringed on their First Amendment rights, the Court, in a series of 5–4 votes, deferred to legislative expertise. It also expressed a belief that large contributors buy ingratiation and access, which it viewed as a form of corruption. Just as important, large contributions could create the appearance of such corruption, undermining voter confidence.
That five-justice majority included three Republican appointees: Sandra Day O’Connor, David Souter, and John Paul Stevens. In the case Clement argued, 2003’s McConnell v. FEC, these justices, joined by Democratic-appointed Justices Stephen Breyer and Ruth Bader Ginsburg, upheld the key provisions of the McCain-Feingold law. One of those provisions, later struck down in Citizens United, extended limitations on the ability of corporations and labor unions to spend money in candidate elections. The other key provision, which the Court has not yet reversed, barred political parties from accepting so-called soft-money contributions: money contributed to help elect the parties’ candidates, but which had not been subject to usual contribution limits, thanks to some technicalities.