Supreme Court hearings sometimes suffer from a degree of formalism that can obscure the reality of what’s at stake and the consequences of the court’s decision in a given case.
But at a hearing Tuesday over a Republican bid to strike down yet another campaign finance limit, a lawyer plainly described what was afoot: a “bait and switch.”
The high court appointed that lawyer, Roman Martinez, to defend an appeals court ruling that rejected a challenge, brought by JD Vance and GOP senatorial and congressional committees, to limits on political parties’ coordination with candidates on campaign spending. The court brought in that outside lawyer because the government, having previously defended the law, switched under the Trump administration to agree with the challengers’ First Amendment claim.
“They are setting up bait and switch 2.0,” said Martinez, an experienced Supreme Court lawyer who clerked for both John Roberts and Brett Kavanaugh.
The first round, he said, came in a previous Supreme Court case in which the challengers got other limits struck down while pointing to limits on coordinated expenditures that would remain in place.
“Now,” he said, “they’re coming back and saying, ‘Ha, just kidding. Actually, the coordinated expenditure provision is unlawful as well.’” Martinez said that “what they’re really aiming at is all the other laws that they want to take down.”
Justice Samuel Alito, who is likely to be in the majority ruling in favor of the Republicans, seemed to prefer to view the case in isolation. The justice said, “We have one provision before us today, right, so don’t we have to decide this case and not speculate about what might come later?”
There’s as an outside chance that the court won’t rule on the issue at all. Martinez argued separately that the case is moot because Vance, who was a Senate candidate and senator during previous phases of the litigation, “has repeatedly denied having any concrete plan to run for office in 2028.” A lawyer for the Republicans, Noel Francisco, said Vance was doing “what virtually every candidate for the presidency does,” which is “wait until after the midterm elections in order to announce his specific intentions.” If the court is satisfied that it can rule on the merits of the issue, then it will do so with the clear stakes of the gambit having been laid out in open court. Its ruling, expected by July, will show the extent to which it’s concerned with those stakes, if at all. In the end, the court that engineered the 2010 Citizens United ruling might not see it as a “bait and switch” if it’s in on the trick. 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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