I’ve been keeping my eye on Thompson v. Hebdon v. Hebdon for a long time. In this case, leading Supreme Court attorney Paul Clement filed a petition for the Supreme Court to take a case challenging Alaska’s campaign contribution limits as unconstitutionally low. As I explained last summer at The Atlantic, the Court could have used the case to all into question all campaign contribution limits, including the current federal law that limits contributions to federal candidates to $2800.
This morning the Supreme Court in a per curiam (unsigned) opinion reversed the Ninth Circuit opinion upholding the limits, but did so in a way that avoided making a major change in the law. (In this way, the case is a victory for supporters of reasonable campaign finance regulation, even though it was a loss.)
The Court held that the Ninth Circuit erred in failing to apply the Supreme Court’s 2006 precedent, Randall v. Sorrell (and particularly Justice Breyer’s opinion for three Justices) to the case. The Ninth Circuit had failed to apply that precedent because no opinion for the Court commanded a majority. Today, the Supreme Court indicated that Justice Breyer’s opinion is the operable test, and remanded the case for reconsideration by the Ninth Circuit in light of Randall. In doing so, the Court avoided deciding, for example, that contribution limits should be judged under strict scrutiny.
This is not good news for supporters of the Alaska regulation, because along the way the Court gave reasons to suggest that under the Randall test, the limits were so low as to violate the First Amendment. Justice Ginsburg concurred separately, accepting the remand but saying that under the Randall test Alaska’s limits could still survive. This seems quite doubtful should the case make it back to the Supreme Court, and the Ninth Circuit is likely to get that message.
But as Justice Kagan (when she was solicitor general) explained at oral argument in the Citizens United case, there are better and worse ways for campaign finance reformers to lose at the current Supreme Court, which has not upheld a challenge to a campaign finance limit in a published opinion since Justice Alito replaced Justice O’Connor in 2006. And the way the state of Alaska lost today is the least bad way it could lose.