I have now had a chance to review the transcript in today’s oral argument in this case. See also this AP report. Though predicting outcomes from oral argument is treacherous (and doing so from a transcript rather than in person especially so), it appears that the Court could well uphold the provision increasing contribution limits for candidates who face self-financed opponents (or strike down the provision but allow increased contribution limits for both candidates in the race), but strike down one aspect of the law allowing such candidates (but not their self-financed opponents) additional coordinated spending with political parties. In addition, the Court appeared poised to strike down one aspect of the disclosure regime applicable to these Millionaire candidates–that requiring a new report to be filed each time the candidate spends an additional $10,000 on the election–but uphold other reporting provisions.
Here’s how I see things breaking down. It is pretty clear that Justice Scalia would vote to strike down the contribution limits of the statute (and likely uphold the disclosure rules—though that’s less certain). And although Justice Thomas did not say a word, he’s a safe bet to strike down the whole law. Justice Kennedy seemed particularly bothered by the party coordination provision, bringing it up repeatedly even though it was not really argued or briefed by Davis. Justice Kennedy at least will vote to strike down this aspect of the statute, and perhaps the increased contribution limits as well. Justice Breyer argued for severability of that statute, suggesting he thought Justice Kennedy’s vote on the rest of it was not necessarily lost.
If we count Scalia, Thomas, and Kennedy as up to three votes to strike down the increased contribution limits for candidates facing self-financed opponents, the swing votes will likely be (as they were in the other two campaign finance cases of the Roberts Court, Randall v. Sorrell and WRTL II) Justice Alito and Chief Justice Roberts. (I assume Justices Breyer, Stevens, Souter, and Ginsburg would all vote to uphold the increased contribution limits.) Though these two Justices asked questions of both sides, both of them seemed attracted to the argument that the increased contribution limit provision is constitutional, because it provides more speech, not less speech. And rather than look for a justification an in equality argument—leveling the playing field—these Justices suggested that the law could be justified because it removes some of the first Amendment burdens on candidates by raising contribution limits. The problem with this line of reasoning, as these Justices also suggested, is that it does so for only one candidate, and not both candidates. So one outcome is upholding the provision; a second outcome is holding that Congress could permissibly increase the contribution limits, but such limits would be increased for the self-financed candidates as well.
On disclosure, even Justice Ginsburg seemed skeptical of the burden of disclosure within 24 hours of each $10,000 increment of self-financed spending. That provision could be struck down, though that would have some pretty bad ramifications overall: many opponents of contribution and spending limits point to “instant, Internet-based” disclosure as the best campaign finance regime out there. Such a holding could make such instantaneous disclosure harder to mandate.
One thing that also struck me about the argument was how little the four liberals on the Court spoke. Justice Breyer asked one question. Justices Souter and Stevens barely spoke as well. This area of the law is all about Justice Alito and Chief Justice Roberts now.
Finally, I was somewhat surprised that standing did not feature anywhere in the argument. How is it that the self-financed candidate was injured here? Because his opponent could outspend him? That’s something the Court will have to deal with in its opinion, expected by late June.