A Supreme Disappointment, Con't

Republicans are now in the process of getting rid of what few campaign finance limits remain, and the next frontier is the Last Frontier, Alaska.  The case is Thompson v Hebdon, involving overturning Alaska's campaign finance donation limit for out-of-state individuals for state races.  It's been bopping around for the last two years in the court system.

The challenger to the law is David Thompson, who in 2015 donated $100 to support the re-election of his brother-in-law, former Republican Alaska state Rep. Wes Keller. Thompson lives in Wisconsin, and Keller had already reached the limit for out-of-state contributions, so the campaign had to return the money. Thompson’s lawyers are aping the arguments in Citizens United, contending that this limit on campaign contributions is an unconstitutional regulation of free speech. Thompson told the Alaska Dispatch News, “I thought it was pretty restrictive and it held up my ability to speak out.”

Attorneys for Alaska are citing as precedent Bluman v. FEC, a 2012 Supreme Court case ruling that foreign citizens do not have the right to contribute money to U.S. elections. The state’s attorneys wrote in their brief, “Just as a Canadian citizen is not part of the political community governed by the U.S. federal government, a Florida resident is not part of the political community governed by the Alaska state government.” Advocacy group Free Speech for People, which filed an amicus brief supporting Alaska in July, points out that the state has long been suspicious of out-of-state actors interfering in its politics. The Alaskan tundra is often the target of companies seeking to tap its natural resources and to influence local elections—presumably for extraction privileges.

Although the decision on Thompson v. Hebdon would only directly affect Alaska’s state-level elections, the legal rationale behind these limits, if upheld in court, could be of consequence for elections in other states, including congressional races. A state’s election laws must abide by the Constitution, so if a federal court decides that a state is not hindering the First Amendment by limiting outside donations, then any future laws imposing similar restrictions on congressional races would also likely be consistent with the Constitution. George Washington University professor David Fontana, whose work was the basis of Free Speech for People’s amicus brief, wrote in an email, “If our argument is accepted, the reason why it would have broader implications is because it would be a federal court interpreting federal constitutional law, and federal constitutional law is relevant everywhere and in every election.”

Republicans had this case on the back burner for a while, but now it's a top priority ahead of the 2020 campaign.  They want the Supreme Court to take up the case now, and that effort is being led by former Bush 43 Solicitor General Paul Clement, as UC-Irvine law professor Rich Hasen details at The Atlantic.

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.

Such a ruling in June 2020 would be just in time for the heart of the 2020 campaign season, and the wealthy could give unlimited campaign funds to the GOP.  Imagine being swamped with GOP campaign ads everywhere, tens of billions of dollars' worth, for the final five months of the campaign season.

It would be madness...and if you thought lobbying was bad before, imagine corporate giants giving billions to get the exact legislation they want from the candidates they buy in every House and Senate race.  We're essentially at that point now on a lot of things, but the last few limitations on that would be gone.

Everyone would be corrupt as Trump, and anyone who wasn't would be buried in races by people who were.  We're rapidly approaching the era where corporations are the only free speech game in town.