Nine Robed Lawyers Ponder The Meaning of Cash on a Cold Shutdown Morning

This morning the Supreme Court heard oral arguments in McCutcheon v. FEC, and I was there. It was my second time at the Supreme Court, and it struck me about how much had changed about me and the court since 2007. Back then I was a young law student, bedazzled by the grandeur of the court and the brilliance of the attorneys arguing in front of it, even though I had immense difficulty following them. This time around everyone seemed a little bit more human, from the besieged lawyers to the aging justices to the skeptical plebes wondering if these robed geniuses could figure out how money in politics really works. 

This case concerns aggregate contribution limits, the amount a person can directly contribute to campaigns and political parties every election cycle. Donors are currently capped at $123,200, and the plaintiff argues that he wants to give a cute $1,776 (a legally permissible amount) to so many candidates that he will spend more than $123,200 in the aggregate. The case is the newest member of the Citizens United “money in politics” family. If you want to better understand the briefing and procedural history in this case, I recommend this summary from SCOTUSblog

I arrived at the line outside the Supreme Court building around 5:40am, later than expected thanks to a Capitol Bike malfunction and misunderstanding the Metro payment system (5:30am is “peak hours”?). The Supreme Court hearing room is pretty small, and between the lawyers, clerks, members of the Supreme Court bar (available to any lawyer willing to pay the dues), the press, and groups with reservations, only a scant number of folks from the regular pubic are allowed to watch the preceding; though the internet failed to even hazard a guess, the buzz in the line was 30-40 of us would get in. I passed the time by staring at the neighborhood’s only lighted building, ironically the Capitol dome. 

I was #32 at first, but had slipped to #39 by the time we were formally lined up by security, thanks in part to three obnoxious teenagers who skipped to the front of the line and refused to leave when confronted by people who had been camped out there all night. I asked the cop on duty if he would do anything about it, and he said he was there to protect public safety, not police the line. After reason had long failed, I snarled at the kids, “I hope you learn something about fucking justice while you’re in there, because you don’t know a damn thing about it right now.” 

In the end, fewer than 50 of us got in, but I did make the cut after four hours of waiting, mostly in the cold. “I’ve never waited in line this long for anything,” murmured the fellow behind me. “I don’t even ride the big roller coasters at amusement parks.” I feel you, dude, and at least I didn’t have to deal with the slick-haired election gambler behind him feverishly trying to grasp the basics of the case we were about to hear. 

Relying on an internet tip, I stored everything except my wallet in a downstairs locker, so when we arrived on the hearing room floor, I cut sharply to the metal detector while everyone else checked in their stuff. This gave me one of the best seats in the house for the argument.

 Nevertheless, my main takeaway was that the Supreme Court needs to televise oral arguments. This morning was ridiculous. I was sandwiched between pockets of law students chattering about their class schedules and legal careers for hours, which made me feel like I was on the worst class trip ever. All of this to see our taxpayer-funded court system carry on its basic duties- and I almost didn’t get in! I don’t understand why it can’t just be broadcast unfiltered like C-Span, which would leave the courtroom dynamics unaltered.

 I ended up sitting next to the communications director for the Republican National Committee, one of the plaintiffs in the case. We were cordial, and it turned out we shared an acquaintance with one of the few Republicans I count as a friend. I asked how they had come to pick the 32-year old Erin Murphy to argue the case. She said the client had not wanted legendary Supreme Court lawyer Paul Clement to argue cases two days in a row, so he had recommended her.

Murphy was first up, and she suffered a blistering barrage of questions, critiques and wandering monologues. The New York Times recently ran a story in which several justices admitted that the bench had become too hot- the justices had become preoccupied with asking questions, rather than letting the lawyers make their case. From their treatment of Murphy, it doesn’t seem like that is going to change.

Murphy’s point was simple- the FEC already has enough rules governing the earmarking and transfers of political donations to prevent what the government argues will happen if aggregate limits on campaign contributions are lifted. She questioned the premise of various doomsday scenarios floated by Justices Breyer and Kagan, and lamented the great First Amendment imposition of not being able to contribute huge amounts of money to lots of candidates. She and attorney Bobby Burchfield, arguing on behalf of Mitch McConnell, were at their weakest arguing what had changed since Buckley v. Valeo and McConnell v. FEC, two Supreme Court precedents that had poured over exhaustive records and concluded that aggregate contribution limits were permissible. In truth, we all know that the main thing that has changed is that Justice Alito replaced Justice O’Connor on the bench since McConnell, but here at the Supreme Court we pretend we are above politics.

A less than charming southern lawyer argued after Murphy, making the policy case that hamstringing contributions to candidates and parties simply drives campaign contributions into outside PACs, which are worse for democracy than political parties because…I am sure there are some from both sides of the aisle who lament the decline of political parties as bastions of power, but this argument didn’t feel compelling to me or anyone except maybe Justice Scalia.

Next up was Solicitor General Donald Verrilli, he who argued the Obamacare case, among many others. His familiarity with Court’s penchant for relentless interrupting was evident- before answering each justice, he would hold up his hand and telegraph his next move: “If I may quickly answer that specific question, and then make an analogy about the broader point…” He spoke often of the doomsday scenario in which a Speaker or Majority Leader could ask a donor to cut a $3.5 million check- the total number of legal contributions one could make in a campaign cycle if aggregate limits were struck down, but also subtly tried to weave a larger tale of corruption into his narrative. One of the problems with the Citizens United decision was the narrow definition of quid quo pro corruption, which basically allows for anything short a shady fellow handing over a suitcase in an alley.

It was here that the questions got intriguing. Chief Justice Roberts asked Verrilli, as he had Murphy, whether there was a way to prevent the doomsday scenario without preventing that “smaller contributor” (you know, the one trying to give a mere $150,000) from getting his message out. This one was easy- Verrilli pointed out that if the issue is just allowing slightly higher amounts, Congress could fix that tomorrow, and indeed, allowing themselves to rake in bigger contributions could be a rare moment of bipartisanship.

 At this point, Justices Breyer and Scalia both asked questions that asked variations whether the gratitude inspired by a $2600 contribution to a candidate was matched or surpassed by an individual spending $500,000 on independent expenditures on behalf of the same candidate. Verrilli clung for dear life to the distinction between contributions and expenditures made first in Buckley v. Valeo and more recently in Citizens United. At this point, enter Justice Kennedy, who surmised that in fact the $500,000 must surely make more of an impact, and wasn’t that a problem? Both my Republican neighbor and I stifled laughter and bewilderment. Justice Kennedy, the author of Citizens United, is literally the last person on earth who should be asking that question. After all, the whole premise of that decision was that independent expenditures simply could not corrupt candidates and officials, which we all knew was crazy then, and which was proven patently false during the 2012 Republican primary, when billionaires adopted favorite candidates and spent millions on their behalf.

That exchange led to Justice Kagan quipping, “I suppose if this court is having second thoughts about its ruling that independent expenditures not corrupting, we could change that part of the law.” Verilli threw up his hands and praised Allah.

Of course Justice Thomas remained silent. Last time I visited the court, in 2007, Justice Thomas waited about fifteen seconds before kicking back his feet, cupping his hands on his face, and drifting into daydreams. At one point he stirred, wrote an excited note, and motioned for his clerk, who delivered the note to Justice Scalia. Justice Scalia, upon receiving the note, laughed uproariously, at which point Justice Thomas returned to slumber. Six years later, Justices Thomas and Scalia are seated next to each other, a dream come true. The two traded off-mic barbs throughout Tuesday’s second case, about defining ineffective assistance of counsel. Justice Scalia once again led the room in laughs, his inside the beltway claim to fame (I doubt non-lawyers are bedazzled by his humor). Yet he lacked his typical cross-examiner punch, and his face seemed drawn by the gravitational force of the desk in front of him. This is a typical sign of the aging Supreme Court Justice- by the end of his term Justice John Paul Stevens was barely visible.

Justice Ginsburg similarly left her A-game at home, which was quite different from 2007. Back then she was the lioness of the liberal wing. She looked small and frail even then, but her questions were sharp as daggers, and she mixed wit with insightful soliloquy. Today she asked few questions, which were tame and easily batted away. Maybe it was just a bad day.

In her stead, a particularly animated Justice Breyer lead the charge. Rather than ask actual questions, he lectured at length on the perils democracy faced, including the intriguing argument that allowing the super wealthy to control election curtailed the First Amendment rights of ordinary citizens, ending each diatribe with a flourish and “so what do you think of that?” at which point he would do some MJ-like move in which he kicked forward, pulled his hand back and swung way to the back of his reclining chair with a big grin on his face.

In contrast, Justice Alito wears a mean face at all times. His hostility towards all counsel makes him hard to read, though he is probably closest to Justices Thomas and Scalia’s view of a world without contribution limits.

Perhaps the biggest elephant in the room was the efficacy of the FEC itself. The agency has been paralyzed by partisanship for years, and is by no means a competent regulator of federal elections. Conservatives avoid bringing this up because the FEC’s “onerous restrictions” make for a useful punching bag, and liberals don’t want to concede that the whole campaign finance reform effort is rendered pointless without effective regulators. Justice Breyer came closest to acknowledging this by noting that “surely candidates know” when their benefactors funnel huge chunks of money to them, no matter what the vehicle. Of course Murphy had to disingenuously deny this, but the idea that candidates who spend a third of their days dialing for dollars can play dumb is ridiculous.

In the end, the outcome of this case will likely rest on the baby-splitting efforts of Chief Justice Roberts and the confused ramblings of Justice Kennedy. There’s good money on aggregate limits as we know them being struck down, though Chief Justice Roberts is probably not in the mood to completely upend forty years of case law in an area that the nine justices seem overwhelmed in dealing with. We won’t know the justices’ answer until 2014, and speculating turned out pretty foolishly for the legal punditry during Obamacare. I wandered into the gift shop and bought a 2014 Supreme Court datebook for $4.95. In a world where Justice Scalia doesn’t consider $3.5 million “a heck of a lot of money”, that’s a pretty good deal.  

About Janos Marton

Janos Marton is a lawyer, advocate and writer.
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2 Responses to Nine Robed Lawyers Ponder The Meaning of Cash on a Cold Shutdown Morning

  1. Peter Marton says:

    I guess I can’t really picture you snarling.

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