The plaintiffs in McCutcheon v. Federal Election Commission, the next major Supreme Court case attacking campaign finance regulation, have hired Erin Murphy, a protege of former solicitor general Paul Clement, to argue before the court on October 8.
Murphy, counsel at the Bancroft firm in D.C., and Clement, a partner at the firm, confirmed this morning that Alabama businessman Shaun McCutcheon and the Republican National Committee had picked Bancroft for the high-profile argument.
"In a case like this with multiple parties, there were multiple options. At the end of the day, rather than flipping a coin, they decided go with Bancroft, and we're delighted," said Clement. The other possible advocates were longtime foe of campaign finance regulation James Bopp Jr., who was counsel of record for the Republican National Committee, and Michael Morley, a New Jersey practitioner who was counsel of record for McCutcheon. As recently as two weeks ago, Bopp was planning to argue the case. Clement said Bopp remains part of the legal team even though he will not be arguing.
Murphy will argue against the constitutionality of aggregate contribution limits contained in the Bipartisan Campaign Reform Act. The case could give the high court an opening to weaken or even overturn the landmark 1976 ruling Buckley v. Valeo, which said in part that contribution limits did not violate the First Amendment.
"We've got some really strong arguments and I think we have a great case," Murphy said this morning. "The briefing has been terrific, and everything is there for me to draw on."
Murphy, 33, has argued before several appeals courts but not at the Supreme Court, though she was the crucial second-chair lawyer for Clement when he argued the Affordable Care Act cases in 2012. She clerked for Chief Justice John Roberts Jr. in 2008-2009 and was a Bristow Fellow in the solicitor general's office. She worked with Bancroft founder Viet Dinh and with Clement at King & Spalding before he joined Bancroft in 2011. Murphy's law degree is from Georgetown University Law Center and she has an undergraduate degree in journalism from Northwestern University.
"Erin is terrific and she has been involved in the case for a long time, so once they reched out to Bancroft it was an easy decision" to pick Murphy for the argument, said Clement. The parties had consulted with Bancroft at earlier stages, Clement explained, and Murphy's name was on a reply brief filed by McCutcheon on August 19. Another factor in picking Murphy instead of arguing himself, Clement said, was that he will be arguing a securities fraud case before the high court the day before, on October 7.
This is not the first time that Bopp has been left at the altar in major campaign finance litigation once it arrives at the Supreme Court. In the controversial Citizens United v. FEC case in 2010, Bopp was the lead lawyer in lower courts, but Citizens United founder David Bossie hired Gibson, Dunn & Crutcher veteran Theodore Olson to argue at the high court. "When you change battlefields, you change generals," Bossie was quoted as saying in the recent book The Roberts Court, by NLJ chief Washington correspondent Marcia Coyle. Olson redirected the arguments and won the case. Similarly, in McConnell v. FEC in 2003, Bopp was crowded out by former solicitor general Kenneth Starr and others.
Nonetheless, Bopp has argued five cases before the high court, including Wisconsin Right to Life v. FEC and Republican Party of Minnesota v. White, both of which he won. Bopp did not immediately respond to a request for comment.
Murphy will have 20 minutes of argument time instead of the usual 30. The court on August 30 granted 10 minutes to Sen. Mitch McConnell (R-Kentucky) who will be represented by Bobby Burchfield of McDermott Will & Emery. Clement said that once that time was granted to McConnell, it was clear to his clients that they could not divide the remaining 20 minutes, so they would have to pick one lawyer to represent both.