The Supreme Court appeared uncertain about whether it would strike down a major campaign-finance restriction during oral arguments on Tuesday, with some of the court’s conservative members questioning a right-wing push to do so.
The case, National Republican Senatorial Committee v. Federal Election Commission, revolves around a legal challenge to Congress’s ban on “coordinated party expenditures.” Federal election law currently forbids political parties from coordinating their election spending with federal candidates for office.
A group of challengers, including the GOP’s Senate campaign-finance arm and Vice President J.D. Vance, argued that the ban violates their First Amendment rights to political speech through campaign spending. “The coordinated party spending limits are at war with this Court’s recent First Amendment cases,” Noel Francisco, who argued on behalf of the plaintiffs, told the court.
One big question in the case is whether procedural hurdles should prevent the court from deciding the case. “Well, Mr. Francisco, the RNC is not here,” Justice Clarence Thomas told him in his first question of the day. “I think you would have to explain why the groups, the Republican groups here, fit the bill of a national party.” The law does not necessarily apply to the NRSC, which is not structured as a formal political party.
While the FEC is the named defendant in the case, the GOP-controlled commission is also not defending the law’s constitutionality, raising questions about whether there is an actual dispute for the justices to resolve. As a result, the lower courts allowed Democratic lawyers to intervene in the case and the Supreme Court appointed an uninvolved lawyer to defend the law as well.
Sarah Harris, the Justice Department lawyer who argued for the commission, contended that the case wasn’t moot by distinguishing between the government’s belief that a law is unconstitutional and a formal decision to not enforce the law. “For mootness, the other side would need to establish that there is no possible credible threat of enforcement either way,” she told the justices. “I really don’t think they can do that.”
Vance, who was a candidate for the U.S. Senate when the lawsuit began, is also not currently an active candidate for political office. While vice presidents often run for president after their running mate’s term ends, Vance has refused to say whether he would do so. Roman Martinez, the court’s appointed lawyer, also noted that there is no real likelihood that the FEC would pursue him for violating the law.
“No one thinks President Trump is going to enforce this law and target his own vice president,” he told the justices during his opening remarks.
In addition to Thomas, whose questions suggested concerns about the court’s own jurisdiction over the matter, Chief Justice John Roberts signaled that he might not accept the challengers’ interpretation of the law in question. He asked Francisco to explain the difference between “coordinated expenditures” and actual contributions, describing it as a “legal fiction.”
“I don’t know in substance what the difference is,” Roberts added. His questioning suggested that “coordinated expenditures” would effectively count, in his eyes, as normal campaign contributions. That would bypass other regulations on contributions, most notably the annual and quarterly limits on them.
To prevail, the NRSC and its allies have to persuade the justices to remove a prohibition on coordinated expenditures that has existed since the post-Watergate reforms to campaign-finance laws. The Supreme Court previously upheld the ban in question in a 2001 case, but Francisco argued that the court’s rulings since then have called that decision into question.
Justice Sonia Sotomayor strenuously disputed Francisco’s assertions that the ban did not fall under the court-recognized justification for campaign-finance restrictions, which is to prevent the appearance or reality of quid pro quo corruption. She pointed to the original scandal that led Congress to enact it in the 1970s.
“The dairy industry channeled millions of dollars to President Nixon through the Republican party and its committees,” Sotomayor explained. “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.”
Francisco responded by claiming that there was no example of coordinated party spending ever being used in quid pro quo corruption, to which Sotomayor quickly pushed back. “Because it hasn’t happened,” she interjected. “We’ve been prohibiting it since Buckley.” (Buckley v. Valeo was the 1976 case that upheld the post-Watergate reforms.)
The law’s challengers also tried to argue that other measures, such as disclosure requirements and individual contribution limits, would serve the anti-corruption interest even without the coordinated expenditure ban. Justice Ketanji Brown Jackson was not persuaded. She noted that the court had struck down other campaign-finance restrictions on the premise that limits like the one in question on Tuesday would remain intact.
“How can your argument be today that these limits can fall and it will be okay because the other limits exist if you can’t make a representation that we’re still going to have those other limits?” she asked.
It was notable that the court’s deregulatory drive had relatively few defenders on the bench on Tuesday. While none of the conservatives expressed regret about their past rulings, only Justice Samuel Alito seemed interested in lauding them. At one point, he described the court’s infamous decision in Citizens United as “much maligned [and] I think unfairly maligned.”
But key voices on the court remained curiously quiet. Justice Kavanaugh’s questions expressed some concern that the “overall architecture of our jurisprudence” may have “weakened or disadvantaged political parties as compared to outside groups,” but did not clearly signal what conclusions that might lead him to. Justice Neil Gorsuch asked no questions, while Justice Amy Coney Barrett asked only one that shed little light on her overall thinking.
Since the mid-2000s, the Roberts Court’s conservative majority has worked in case after case to weaken the once-bipartisan legal infrastructure around campaign-finance reforms. It is unlikely that the court will reverse course so suddenly. But Tuesday’s oral arguments suggested that there might not be a great appetite to go much further—a state of affairs that the court’s liberal justices may have hinted at.
“Your answer’s suggesting to me that every time we interfere with the congressional design we make matters worse,” she told Francisco. “You’re telling us that Citizens United and McCutcheon [v. FEC] ended up, yes, in amplifying the voice of corporations but diminishing another voice, that of the party. Now you want to now tinker some more and try to raise the voice of one party.”
“Our tinkering,” Sotomayor concluded, “causes more harm than it does good.” A ruling in the case is expected by the end of the court’s current in late June. By then, we will find out how many other members of the court agree with her assessment.
