WASHINGTON — Conservative Supreme Court Justices Neil Gorsuch and Amy Coney Barrett were uncharacteristically mum during arguments in a blockbuster case revolving around Vice President JD Vance that could upend campaign finance in the midterm elections.
The two justices kept their cards close to the vest when examining a constitutional challenge against limits on coordinated spending between political parties and their preferred candidates, rendering it difficult to glean which way the high court was leaning.
“The coordinated spending limits range from $60,000 to $4 million, depending on the race and location,” Noel Francisco, an attorney for the National Republican Senatorial Committee (NRSC), argued.
“That makes no sense if what you’re concerned about is bribery; even a Senate candidate in California could be bribed for $4 million,” he added. “But it makes perfect sense if what you’re trying to do is limit the overall amount of money in politics. That, however, is what this court has repeatedly said is verboten.”
Tuesday’s hearing is one of the most consequential campaign finance cases to come before the high court since Citizens United v. FEC, which struck down limits on political spending by corporations due to free speech violations.
Back in 2022, Vance, the NRSC, National Republican Congressional Committee (NRCC) and then-Rep. Steve Chabot (R-Ohio) sued the Federal Election Commission over rules restricting coordination between candidates and the party apparatus under the Federal Election Campaign Act of 1971 (FECA).
While the Supreme Court’s 2001 FEC v. Colorado Republican Federal Campaign Committee decision upheld FECA, the plaintiffs argued that jurisprudence had changed, particularly with the rise of super PACs.
“The super PAC can’t be coordinated. And these party expenditures can be coordinated so they’re more helpful to the candidate,” liberal Justice Elena Kagan stressed during arguments.
“They effectively function as contributions to the candidate. There can be coordination to the max.”
Political candidates are subject to restrictions on how much money donors can contribute to their campaigns. Kagan was concerned that eliminating the coordination rules would be an end-run around that.
Looming over the case are concerns that political parties have effectively been weakened by the rise of super PACs, to which donors can contribute unlimited sums of cash. Party committees deal with contribution limits.
Some proponents believe that eliminating the coordination limits between political parties and candidates could help level the playing field with outside groups. Notably, candidates are prohibited from coordinating with super PACs.
“What I can say is that we are not here challenging that limit,” Noel said during arguments, regarding the limit on what donors can give to parties. “…I’m willing to assume for the sake of argument here that it’s constitutional.”
“You’re not going to want that cited back to you in a couple of years,” conservative Justice Brett Kavanaugh quipped in response.
Kavanaugh made sure to pepper both sides with pointed questions and admitted that he had reservations about “quid pro quo” and “circumvention” if the high court nixed the coordination limit.
Conservative Justices Samuel Alito and Clarence Thomas sounded sympathetic to striking the limit, while the three liberal justices openly voiced concerns about doing so. Chief Justice John Roberts had sharp questions for both sides.
While official congressional Republican campaign arms sought to nix the restrictions on coordination with candidates, their Democratic counterparts declined to back the effort.
Marc Elias, a longtime attorney for Democrats who argued before the high court against eliminating the limits on coordination, contended that the restrictions actually protect and strengthen the parties.
Without the coordination limits, political parties would turn into glorified bank accounts for candidates’ campaigns and neglect the critical infrastructure they need to build up, he contended.
“What this will do is create a collective action that will drive the parties inevitably to just being bill-payers,” he argued. “They will not be able to support activity that is long-term in nature, because it will be an arms race.”
“I think it’s no surprise that if you look at many of the states that have no limits on party-coordinated expenditures, they are among the weakest parties in the country, at the state level.”
Elias underscored that political parties’ official campaign arms favor incumbents.
The one question Barrett asked was about a claim that the Republican National Committee and Democratic National Committee were generally “aligned” on the coordination question.
Elias contended that the RNC and DNC were not actually “aligned” on it.
In one eye-catching moment during arguments, Roman Martinez, an attorney defending limits on coordinated campaign spending, contended that Vance isn’t a candidate in 2028, making the case moot.
“President Vance has repeatedly denied having any concrete plan to run for office in 2028,” Martinez, who was appointed by the court to argue in favor of keeping the limits. “Vice President Vance’s claim is moot unless he has a concrete plan to run.”
“If any other plaintiff in this court told you that his injury is speculative, that it’s uncertain that it’s premature, or that it might happen and it might not happen, they wouldn’t have a prayer [on standing],” he added.
A decision in the NRSC v. FEC is expected by the middle of next year.
Gorsuch, who was curiously silent in the case, had famously been quiet during the 2020 Bostock v. Clayton County decision, in which he shocked conservatives by ruling that transgender employees were protected from discrimination under the Civil Rights Act.
