Note to attorneys planning to argue before the Supreme Court: It may not be a good idea to take a swipe at former political candidates, even if it helps make your point and gets a laugh.
The was a lesson learned today by Andrew Herman, counsel for a political candidate seeking to strike down the Millionaire’s Amendment of the McCain-Feingold campaign finance law, which allows opponents of self-funded election candidates to receive campaign contributions above the normal statutory ceiling in some circumstances.
In oral arguments today in the case, Davis v. FEC, Chief Justice John G. Roberts, Jr., questioned Herman on his argument that the law benefits incumbents at the expense of challengers.
“Obviously you’re correct that this system benefits incumbents, but it benefits your client in a particular way as well,” Roberts said to Herman, who represented a largely self-funded congressional candidate seeking to unseat an incumbent. “The [political] parties are certainly interested in candidates who will fund themselves because that presents less strain on the party’s resources.”
“Mr. Chief Justice, [the parties] are interested in those candidates only inasmuch as they get elected,” said Herman, turning to the recent GOP presidential race for an example. “The moment that the public turns on them, they won’t be interested. And certainly the public was not particularly interested in Mitt Romney, who spent a significant amount of money on his own behalf, and many other spectacular flameouts.”
This drew a laugh from the crowd, and then a light admonition from the Chief Justice.
“I’m not sure we need characterizations of the political candidates in this forum,” Chief Justice Roberts said, drawing more laughs.
“I apologize,” Herman said.