Online election symposium: Supreme Court might-have-beens

The following contribution to our online symposium on the Supreme Court and the Election is by Gordon Todd, a partner in Sidley Austin’s Washington, D.C. office where his practice comprises civil and criminal government investigations and litigation.  Before joining Sidley, Mr. Todd held several posts at the Justice Department, where he served as Deputy to the Associate Attorney General, as Special Counsel for Supreme Court Nominations in the Office of Legal Policy, and as Counsel to the Assistant Attorney General for the Civil Rights Division.  Mr. Todd previously practiced at Cooper & Kirk, in Washington, D.C., and also served as law clerk to Supreme Court Justice Samuel Alito and Eighth Circuit Court of Appeals Judge C. Arlen Beam.  Mr. Todd lives in McLean, Virginia with his wife and two (soon to be three) children.  

The question proposed is what role, if any, will the Supreme Court play in this fall’s presidential tilt.  If this means to ask whether the Court itself will be an election issue, I think not.  The candidates, the key issues, and recent events suggest otherwise. But if the question is, more subtly, whether the Court will influence the election, it likely will.

Prior to the Supreme Court’s decision upholding the Affordable Care Act’s (ACA) individual mandate, conventional wisdom dictated that whatever the result, the Court would be a central focus of the election.  Either President Obama would lambast the Republican-controlled Court that eviscerated his signature achievement, or Governor Romney would decry liberal judicial activists for their rank infidelity to Constitutional principles of limited government and federalism.

The table was well set.  During his first term in office, President Obama never hesitated to criticize the Supreme Court, whether during the 2010 State of the Union when he critiqued the Court’s decision in Citizens United (famously piquing Justice Alito), or in the wake of oral arguments challenging the ACA when he warned the “unelected” Court not to “take what would be an unprecedented extraordinary step of overturning a law” passed by Congress.  While Governor Romney has not made such provocative statements, he has vowed repeatedly to appoint Justices in the mold of Chief Justice Roberts and Justices Scalia, Thomas, and Alito – “who understand judicial restraint and who won’t legislate from the bench.”

Chief Justice Roberts’s vote to uphold the ACA – and even more so, the opinion he penned to do so – upended this narrative.  Apart from some initial football spiking, President Obama has shown little interest in highlighting what is still a relatively unpopular piece of legislation.  Nor would it profit him to attack as judicial thugs the Court that upheld the ACA.  For his part, in order to make the Court an issue Governor Romney would have to take to task someone he has repeatedly identified as a model Justice.  And, Governor Romney’s campaign likely has little desire to return to debating whether individual mandates are a penalty or a tax.

More generally, current electoral dynamics do not lend themselves to a fight over judicial appointments.  Polls consistently show voters concerned principally with the economy and jobs, issues with which the Supreme Court is little associated.  Thus far, at least, the sorts of social issues more commonly hung on the judiciary seem to have little broad resonance.  Doubtless, each candidate will throw Supreme Court-related red meat to his base (see Roe v. Wade and Lilly Ledbetter).  But there is otherwise little reason to think that either will attempt to make much of the Supreme Court during this election cycle.

While the candidates are unlikely to elevate judicial politics to any meaningful degree, that is not to say that the Supreme Court will not play a role.  To the contrary, many will argue that the Court has exercised a profound influence on this election cycle.

Much is poured into the Court’s 2010 decision in Citizens United v. Federal Election Commission, much more than the decision actually holds.  As Justice Stevens explained at the fore of his dissent, the parties’ actual dispute was over whether “Citizens United had a right to use the funds in its general treasury to pay for broadcasts during the 30-day period” preceding a primary election.  Reviewing a history of decisions protecting various forms of corporate speech, the Court held that Congress could not, consistent with the First Amendment, prohibit independent expenditure corporate or union “electioneering communications,” statements directed to a particular candidate within thirty days of a primary or sixty days of a general election.

Citizens United is frequently credited with having birthed so-called “super PACs.”  But that honor more appropriately belongs to the D.C. Circuit’s unanimous en banc opinion in SpeechNow.org v. FEC.  There, the Circuit expanded Citizens United’s ruling on expenditure limits to strike limits on contributions to organizations engaging in independent (that is, not coordinated with a candidate) expenditures.

To be sure, SpeechNow did not spawn political advocacy groups, which have populated the political landscape in one form or another for years.  But its practical effect was to marry the benefits of non-PAC “527s,” which were exempt from campaign finance regulations but not permitted to advocate explicitly for or against a particular candidate, and PACs, which could engage in such advocacy under campaign finance restrictions, into a singular entity.  Now, super PACs may receive unlimited contributions and engage in unlimited expenditures directly in support of or in opposition to particular candidates.

Critics of Citizens United, from the President on down, have argued that the decision would facilitate the corporate takeover of elections.  That does not appear to have panned out, as the overwhelming majority of super PAC funds have come from individuals.  Nonetheless, the influx of additional speech allowed by Citizens United and SpeechNow is having an interesting, and possibly profound, effect on the presidential election.

This influence was first most prominently manifested in the failed candidacy of former Speaker of the House Gingrich.  A self-inflicted underdog from the start, Speaker Gingrich struggled to remain relevant in the months after announcing his candidacy.  Until, that is, Sheldon Adelson, a multibillionaire casino mogul, began supporting Speaker Gingrich.  By injecting $16.5 million into a Gingrich-affiliated super PAC, supporters of Speaker Gingrich were able to blanket the airwaves in early-primary states, keeping the focus on him for long enough to pull off an upset victory in South Carolina.  This support certainly carried Speaker Gingrich much further into the primary season than would have otherwise been possible.  And most significantly, it gave his otherwise quixotic campaign the platform and resources from which to attack Mitt Romney for his work at Bain Capital and for failing to release his tax returns, now-familiar themes that may otherwise not have been surfaced until the general election.

Super-PAC spending has played an even larger role in recent months.  In June, the campaign to re-elect the President spent $38.2 million on television advertisements attacking Governor Romney.  During that same time, Governor Romney’s campaign spent less than a third of that amount, $10.4 million, on advertising.  Expanding the time horizon slightly, from May to mid-July, President Obama spent $65.5 million in television ads versus Governor Romney’s $29.3 million.  While Governor Romney’s approach may reflect a purposeful hold-fire strategy, it more likely reflects the fact that his campaign had little money to spend.  Before their respective conventions, candidates are only permitted to spend money raised for the primary season.  This figure is many times smaller for Governor Romney than it is for President Obama (as of mid-July, $19 million versus $68 million), because Governor Romney was forced to spend much of his cash in a heavily contested primary.  President Obama, on the other hand, sailed through the primary season without viable opposition, taking advantage of that time to hold numerous fundraisers to fill his campaign coffers.

This fact, and the resulting disparity in ad spending, could have doomed Governor Romney’s candidacy – as some argue happened to John Kerry early in the 2004 election season.  In the seven weeks following Senator Kerry’s clinching of the Democratic nomination, President George W. Bush outspent Senator Kerry and his 527 backers by $10 million.  Yet this year, despite the spending onslaught, the race has remained virtually unchanged.  In fact, RealClearPolitics shows Governor Romney cutting a 3.5 point deficit in half through the end of July.  Why?  Two possible reasons to consider.  First, President Obama’s principal lines of attack, while certainly sharper and more sustained, are not new, having been aired during the Republican primary.  And second, Republican-leaning super PACs, such as American Crossroads and Restore our Future, have outspent President Obama and his allies on the airwaves – $179 million to $128 million – allowing Governor Romney to compete with an established, well-oiled, well-funded incumbent machine.

The same patterns occurred in 2004; were that election rerun today, it may well turn out differently.  First, it has been speculated that Senator Kerry secured the Democrat nomination too easily, leaving him vulnerable to definition by the Bush campaign.  Had Howard Dean or John Edwards had a Super-PAC or two, more rigorous primary vetting may have left Senator Kerry and his campaign better positioned to deflect subsequent GOP attacks.  And, unlimited independent expenditures could also have been invaluable in balancing the post-primary playing field.  Interestingly, in 2004, while President Bush and Republican groups combined to outspend Senator Kerry and Democrat groups $250 million to $240 million, Kerry-supporting 527s actually outspent Bush-supporting groups $70 million to $40 million.  Today, challenger Senator Kerry might see that advantage significantly multiplied.

The long-term effect of Citizens United and its progeny remains to be seen.  But to the extent its legacy is the infusion of more speech into the political process and the undercutting of incumbency, it promises to make American elections more expensive, yes, but also significantly more interesting.