[EL] McCutcheon transcript -- Definition of Audacity

[Smith, Brad]

What actually struck me as audacity - the alternative explanation is, I suppose, ignorance - was the questioning by Breyer and Kagan. 

Breyer opened the argument with a hypothesis that is illegal regardless of how this case turns out. Then Breyer actually suggested that there are actually joint fundraising committees with as many as 4000 PACs! And Breyer swore this was true - we just need to look at the Internet! Have to wonder what websites he visits. Kagan offered her own preposterous hypos, and embarrassingly (we hope) stated that she didn't think that the FEC would ever find earmarking for a situation in which, in fact, the FEC has found earmarking in the past. The justices, in other words, didn't know the law, based hypos on their own incorrect understandings of the law and imaginary scenarios that Breyer swore were true, and then, when appellants council correctly stated the law, Kagan denied it. 

A rather embarrassing performance for the Harvard Law faculty, and the Court. Or perhaps merely audacious.

Bradley A. Smith

Josiah H. Blackmore II/Shirley M. Nault

   Professor of Law

Capital University Law School

303 E. Broad St.

Columbus, OH 43215

614.236.6317

http://law.capital.edu/faculty/bios/bsmith.aspx

________________________________________
From: law-election-bounces at department-lists.uci.edu [law-election-bounces at department-lists.uci.edu] on behalf of Marty Lederman [lederman.marty at gmail.com]
Sent: Tuesday, October 08, 2013 8:05 PM
To: Rick Hasen
Cc: law-election at UCI.edu
Subject: Re: [EL] McCutcheon transcript -- Definition of Audacity

Please let me know if I'm misreading this, but doesn't Justice Scalia, joined by Justice Kennedy, spend page after page chiding the SG that the contribution limits can't possibly serve an anti-corruption interest because they'll simply cause wealthy individuals to funnel their dollars into independent expenditures (and PAC expenditures), for which officeholders will be even more grateful, thereby increasing the risk and degree of corruption?

Finally, after exhibiting admirable patience, SG Verrilli said:  "Well, Justice Scalia, I'm not here to debate the question of whether the Court's jurisprudence is correct with respect to the risks of corruption from independent expenditures."  And then when Justice Kennedy expressed dissatisfaction with that answer, Justice Kagan quipped:  "I suppose that if this Court is having second thoughts about its rulings that independent expenditures are not corrupting, we could change that part of the law."

I don't know how it played in the courtroom . . . but on the page, it sure comes off as the ultimate in chutzpah.


On Tue, Oct 8, 2013 at 1:34 PM, Rick Hasen <rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>> wrote:
Read the Transcript in McCutcheon Oral Argument at Supreme Court<http://electionlawblog.org/?p=55810>
Posted on October 8, 2013 10:33 am<http://electionlawblog.org/?p=55810> by Rick Hasen<http://electionlawblog.org/?author=3>

Here<http://www.supremecourt.gov/oral_arguments/argument_transcripts/12-536_21o2.pdf>.

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