For the second time in as many days, the Supreme Court is hearing a Republican-backed bid to overturn precedent.
On Monday, it was Humphrey’s Executor v. United States, a 90-year-old case that has protected independent federal agencies from presidential control. The 1935 decision had a rough outing, with Chief Justice John Roberts calling it a “dried husk of whatever people used to think it was.”
The precedent at risk in Tuesday’s case is the 2001 ruling in Federal Election Commission v. Colorado Republican Federal Campaign Committee. The 5-4 decision upheld limits on political parties’ campaign spending in coordination with candidates. The court said that a party’s coordinated expenditures “may be restricted to minimize circumvention of contribution limits.”
Although the Colorado ruling came this century, it was the product of a much different court. The only justice who’s still on the high court bench today is Clarence Thomas.
He dissented in that 2001 case, writing that he was “baffled that this Court has extended the most generous First Amendment safeguards to filing lawsuits, wearing profane jackets, and exhibiting drive-in movies with nudity, but has offered only tepid protection to the core speech and associational rights that our Founders sought to defend.” He argued that the party-expenditure limit “sweeps too broadly, interferes with the party-candidate relationship, and has not been proved necessary to combat corruption.”
Thomas is now part of a GOP-appointed supermajority that’s fulfilling long-held goals of the conservative legal movement. When it comes to campaign finance, the majority has blessed the flow of money in politics over corruption concerns.
That brings us to Tuesday’s hearing in National Republican Senatorial Committee v. FEC. The appeal stems from a case brought by JD Vance before he became vice president, along with national senatorial and congressional committees of the Republican Party and former Ohio Republican Rep. Steve Chabot. They raised a First Amendment claim against limits on political parties’ coordinated expenditures.
A federal appeals court rejected them, writing that the plaintiffs made “fair points” but that the high court “has not overruled the 2001 Colorado decision,” even if more recent rulings have created tension with that precedent.
In their appeal to the justices, the Republicans said this about the 2001 decision: “That 5-4 aberration was plainly wrong the day it was decided, and developments both in the law and on the ground in the 23 years since have only further eroded its foundations.” They cited a dissenting judge on the appeals court who called the challenged limits the “equivalent of prohibiting communication between a coach and quarterback late in a tied game.”
Instead of defending the law, as the government had done previously, the Trump administration said it now agrees that it “abridges the freedom of speech under this Court’s recent First Amendment and campaign-finance precedents.” That agreement leads to a crowded hearing on Tuesday. As opposed to the typical pair of opposing parties, four lawyers are set to argue: Noel Francisco, who was solicitor general during the first Trump administration, representing the Republicans; Sarah Harris, a top Trump Justice Department lawyer representing the administration; Roman Martinez, who was appointed by the court as a third party to defend the abandoned position; and Marc Elias, representing Democratic committees intervening in the appeal, who call the 2001 precedent “correct and well-reasoned” and warn of “chaos” if it’s overturned. An amicus brief from Democratic senators argues that, if any decision should be reconsidered, it’s the 2010 Citizens United case that opened the floodgates to dark money in politics. Noting that the ruling’s “central reasoning” was that “unlimited corporate political expenditures would not give rise to the reality or appearance of corruption,” they wrote that the court “should heed the lessons learned in the aftermath of Citizens United and decline the request to further distort our political process by undermining Congress’s ability to regulate campaign finance.” Obviously, the court that engineered the Citizens United ruling isn’t going to overturn it. The question is how much further the court will go. The extent to which it’s eager to ditch the 2001 Colorado precedent and shed any remaining campaign spending limits could become clearer at Tuesday’s hearing, with the ruling expected by early July in what’s shaping up to be another consequential term benefiting Republicans. Subscribe to the Deadline: Legal Newsletter for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in the Trump administration’s legal cases.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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