It was an unlikely meeting, one that came through multiple layers of mutual friends.
Dan Backer, an attorney who won his biggest case before the Supreme Court on Wednesday, met Alabama engineer Shaun McCutcheon, his lead plaintiff, three years ago at the Conservative Political Action Conference in Washington. They met at “Reaganpalooza,” the annual conference wrap-up party — one of Backer’s friends had been dating one of McCutcheon’s friends.
That meeting was the start of a partnership that would produce another landmark campaign-finance ruling at the Supreme Court on Wednesday. In the most consequential decision involving money in politics since the 2010 Citizens United case, the high court threw out overall limits on campaign donations over a two-year election cycle.
Critics denounced the decision as one that would open the floodgates for the wealthy to have even more influence over politics. But supporters said it would lead to more transparency with donations, transferring power back to candidates and party committees who are required to disclose more information than the so-called “super” political action committees (PACs) that can currently get unlimited donations.
For McCutcheon and Backer, however, the case took a more personal tone. Backer wanted to make it “all about Shaun,” who felt the limits on donations limited his freedom of speech.
Backer and McCutcheon had discussed the possibility of this legal challenge about a year after they met, after Backer did some legal work for McCutcheon’s political action committee. McCutcheon had been told by the Alabama state Republican Party that he might have some trouble with aggregate limits. But in the early stages of their discussions, Backer couldn’t seem to convince McCutcheon they had a shot at a win.
“He didn’t really believe me,” Backer said in an interview with Business Insider on Wednesday. “So I won that bet.”
But McCutcheon’s feelings changed a few weeks later, when the two talked about the potential challenge again. Backer framed it as one centered on McCutcheon’s personal rights.
“When we’ve been successful all the way through this, it’s because we’ve argued this from the perspective that it’s the individual’s rights that are being denied by the government, not as an esoteric legal point,” Backer said.
Backer said he always felt good about his chances of success. For him, the clearest indication the case would result in at least a partial victory came when the Supreme Court allowed Senate Minority Leader Mitch McConnell’s lawyer to argue before the court last fall.
It’s extremely rare to allow an amicus-brief filer argument time. And McConnell’s lawyer went even further in his time before the court, arguing against most donation limits.
“I was always confident about this case,” Backer said. “At the end of the day, we have the Constitution on our side. All they have are wild hypotheticals.”
One of those hypotheticals posited by opponents of the Supreme Court’s decision is that it could open the door to challenges on all donation limits, including the $US5,200 limit on an individual’s donation to specific candidates in an election cycle.
In concurring with the majority opinion, Justice Clarence Thomas wrote an opinion in which he argued the so-called “Buckley standard” — from the Buckley v. Valeo Supreme Court case that held up donation limits — should also be thrown out.
But Backer said this case was not about those limits, and he doesn’t think they’re going away anytime soon. He said Thomas made “good arguments,” but the fact that none of the four other conservative-leaning justices didn’t join Thomas’ opinion was significant.
“I don’t think you’ve got three votes to repeal Buckley,” Backer said. “And frankly, I don’t know if Buckley is repeal-able.”
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