I recall when I testified before the Senate Judiciary Committee in 2006 about the reauthorization of the expiring provisions of the Voting Rights Act. Sen. Arlen Specter’s conservative staff brought in a bunch of liberal and left-leaning law professors to make the case that renewing the Act for another 25 years without updating the coverage formula or making other changes left the Act constitutionally vulnerable. (We know how that ended up.)
Almost all of the Senators on the committee asking questions asked predictable questions to those witnesses who were likely to support their own positions (Republicans that there were constitutional problems; Democrats that there were not.) Senator Specter, himself, however, was unpredictable and in the middle. His questions showed he was really struggling with the difficult questions and not posturing to score political points or to make a record.
I was reminded of the exchange with Senator Specter when I read the transcript of the oral argument in the Supreme Court’s McCutcheon case today. All the Justices were in their assigned roles: Justice Scalia, sarcastic as ever, bemoaning any regulation; Justice Ginsburg complaining about undue influence of big donors; Justice Breyer buried in the facts (and somewhat confused) looking for a way out without seeing campaign finance law further deregulated by the Court.
But the Chief Justice was different. He was not predictable. While he has shown great hostility to limits on independent spending, we really did not know much about what he thought about the danger of corruption from large money coming directly to officeholders and candidates. Today his questions suggested nuance and a middle ground—not a Scaliaesque (or Thomasesque) aversion to any limits. Consider this exchange from the transcript:
But the — the consequence is — just to get back to my prior question, the consequence is you are telling somebody who doesn’t want to give 3.4 million but wants to contribute to more than nine House candidates, just up to the maximum, which would be the $5,000 per the double cycle, you are telling him that he can’t make that contribution, however modest, certainly within the limits Congress has said does not present the problem of corruption, to a tenth candidate. I appreciate the argument you are making about the 3-point-whatever million-dollar check and the need for the aggregate limits to address that.I understand that point. But what do you do with the flip side? I mean, you can’t pretend that that is pursued with no First Amendment cost quite apart from the one that’s there. It seems to me a very direct restriction on much smaller contributions that Congress said do not present a problem with corruption.
I fully expect the Chief Justice to vote to strike the aggregate limits as to candidates, unless Justice Breyer can convince him to kick the can down the road by remanding for more factfinding. I’m less sure about what the Chief will do about the aggregate limits as to parties and PACs. I’m not sure how he would draw the distinction doctrinally between the two (looks like both could flunk strict scrutiny and pass the traditional Buckley standard of review for contributions). But this is a Justice looking for nuance and a middle path, not one who will take the Justice Scalia scorched earth policy to limits. It is someone who “gets it” that giving multi-million dollar checks to officeholders raises questions of corruption, conflict of interest, and a danger to public confidence.
The nuance and uncertainty was a pleasant surprise. We’ll see how long it lasts. A lot can happen between the time of oral argument and the time of decision.