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.
On the losing end in those cases were Chief Justice William Rehnquist and Justices Anthony Kennedy, Antonin Scalia, and Clarence Thomas. The latter three wrote numerous dissenting opinions arguing against the constitutionality of these laws. Rather than deferring to legislatures, courts should be extra skeptical of such incumbency-protection plans, they said. And rather than applying a lax level of scrutiny to figure out whether the government’s interests were justified, these justices said a stricter scrutiny was warranted. Kennedy, in his McConnell dissent, argued that ingratiation and access were not a form of corruption, but rather an essential form of democracy.
Supreme Court deference to democratically enacted campaign-finance laws changed dramatically as the Court’s personnel shifted, especially with the retirement in 2006 of O’Connor and her replacement with Justice Samuel Alito. In the years since O’Connor’s departure, the Court has not upheld a contribution or spending limitation under consideration, except one related to foreign spending in elections, which it upheld without argument or briefing. In Citizens United, Kennedy resurrected his McConnell argument about ingratiation and access not being corruption, this time for the majority. In a 2014 case, McCutcheon v. FEC, Chief Justice John Roberts all but laid out the road map to finish the work begun in Citizens United and start using much stricter scrutiny to review, and strike down, campaign-contribution laws. The two newest justices, Neil Gorsuch and Brett Kavanaugh, have both expressed great skepticism about the constitutionality of any campaign-finance limits.
And so it is somewhat of a mystery why the Court has not taken more campaign-finance cases as vehicles to free up more big money in politics. The Court has turned down numerous challenges to the soft-money portion of McConnell, which still stands. It has repeatedly turned down an attempt to reverse a 2003 case, which held that corporations cannot contribute money directly to candidates. (Citizens United concerned only corporate spending independent of candidates.) And just this past term, the Court turned down a case from the Ninth Circuit upholding strict Montana contribution limits, and another from the Fifth Circuit, upholding low contribution limits in Austin, Texas. The latter case garnered a scathing dissenting opinion from Fifth Circuit Judge (and former Thomas clerk) James Ho, who said that if people don’t like too much money in politics, the solution was to shrink the size of government.
Perhaps the justices did not take these cases because they did not see them as ideal for overturning more precedent. Perhaps the Court is gun-shy about taking on more controversial issues that it could choose to avoid, when cases about guns, abortion, and LGBTQ rights wait in the wings.
Maybe Paul Clement can change that. He has just filed a petition, Thompson v. Hebdon, together with a conservative group, the Alliance Defending Freedom, asking the Court to review a Ninth Circuit decision upholding Alaska’s $500 contribution limits in candidate elections. The petition argues that the limits are too low under existing precedent, but Clement also drops a footnote suggesting that if existing precedent would allow such low limits, the Court should consider overturning such precedent. He hammers home the point, which Roberts reiterated in McCutcheon, that ingratiation and access are not a form of corruption.
Clement’s petition will be noticed at the Court, and not only because he argued the other side of these issues in the McConnell case, defending McCain-Feingold. A new study finds that repeat players have much greater success at the Supreme Court than novices, and Clement is one of the most talented lawyers I have ever seen argue a case. He argues without notes and has a casual, direct, conversational style with the justices. It is pretty remarkable.
If the Court takes this case and reverses the Ninth Circuit, it would not spell the end of all contribution limits immediately. But it could hasten a world in which individuals could give unlimited sums directly to candidates, buying all the ingratiation and access they want. The Court has been moving in this direction; the question is whether it wishes to act now, or delay the inevitable a bit longer.