I have written this piece for The Atlantic. It begins:
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 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….
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 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 on behalf of 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.