The Volokh Conspiracy
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"The Article III of the Deal" by Paul Clement
In Bost, Paul Clement engaged in negotiations with the Justices about the proper standing rule.
On October 8, the Supreme Court heard oral argument in Bost v. IL Bd. of Elections. The merits question in this case is juicy: does federal law prohibit states from accepting congressional ballots after election day? But in Bost, the Supreme Court only considered the threshold issue: does a congressional candidate have standing to bring a pre-enforcement challenge to a state law that allows the state to receive ballots for two weeks after election day?
A divided panel of the Seventh Circuit found that Representative Mike Bost, an Illinois Republican, did not have standing. The panel's ruling turned in large part on the fact that Bost was an incumbent, and had won many elections by a sizable margin. The court reasoned that any late-arriving ballots might have affected his margin of victory, but would not have affected the ultimate outcome. Moreover, Bost argued that he suffered a "pocketbook" injury because he had to maintain his campaign staff for two additional weeks. The Seventh Circuit panel ruled that this injury was self-inflicted, because the law did not require him to maintain his staff, even as late-arriving ballots are counted.
Going into the argument, I was fairly confident the Supreme Court would reverse this ruling. At a minimum, the Seventh Circuit's opinion forces these sorts of challenges into the post-election context, and we all know how well that worked out after the 2020 election. What I wasn't sure about was which rule the Court would adopt.
As things turned out, Paul Clement, counsel for Bost, would present an entire menu of options for the Justices. These arguments were unlike anything I had seen before. There was an ongoing dialogue between Clement and the Justices about what test to adopt. Indeed, it seemed more like a mediation than an oral argument. A Justice would ask "What about this test?" and Clement would respond with "I could accept that, but I'd like something better."
Call it "The Article III of the Deal." By the time Clement sat down, the case was basically over. I'll talk more about some of the arguments by Illinois in another post.
Here, I will flag some of the negotiation tactics. (Note to self: if I ever have to buy a used car, bring Paul Clement.)
At the outset, Justice Kagan rejected Clement's broadest test, and offered a more narrow one:
JUSTICE KAGAN: It's not enough to just walk in and say: Hi, I'm a candidate and I'm suing. But what you have to show is some kind of substantial risk or substantial likelihood, whatever the phrase may be from our standing doctrine, that the new rule puts you at an electoral disadvantage relative to the old rule so that, you know, if the new rule has --says more mail-in ballots, then you just have to plead that that's a kind of rule that puts you to an electoral disadvantage and say something, not a lot, but something to suggest that that's right.
Clement made an offer. Justice Kagan made a counter-offer. Clement continued to haggle.
MR. CLEMENT: So I could live with that rule. I don't know that it's the ideal rule. I mean, I'm not coming in here asking for a broad rule because I'd like to win this case in the hardest possible way. I'm asking for that because I actually see advantages to it, namely, that even under your view, you still, in theory, would have at the summary judgment stage this, like, debate in Article III courts about whether late-arriving ballots help Republican candidates or Democratic candidates. And that makes me sufficiently uncomfortable that I actually would prefer a rule that says: No, Congressman Bost is coming in and he's saying there are going to be unlawful votes cast and they'll be ballots with his name on it in his election. That's enough. We're done. None of these -
Justice Kagan tried to close the gap, but Clement left some wiggle room.
JUSTICE . . . It's like all you have to do is come in and say why it is that the rule puts you at a disadvantage relative to what's come before.
MR. CLEMENT: So, Justice Kagan, I don't think that much separates us, and so I don't want to sort of die on any particular hill here. The reason that I'm hedging a little bit, I'll say two things in response.
And Clement continued to hedge. But Justice Gorsuch would not let him wriggle away:
JUSTICE GORSUCH: --Mr. Clement, though, if you could just answer whether you could satisfy Justice Kagan's standard, I -I --I'd be grateful and whether you --and it doesn't require a competitive --as I understand the question, it doesn't require a competitive disadvantage. It just says: Compared to the law, what I understand the law to have been, I am at a disadvantage.
MR. CLEMENT: Yes, we can satisfy that.
JUSTICE GORSUCH: Would --would -can you spin that out?
MR. CLEMENT: Sure. I mean, we can satisfy it in sort of two ways.
Gorsuch's question reminded me of a similar exchange in Chiles v. Salazar. Justice Gorsuch engaged in an colloquy with Justice Sotomayor concerning standing. The Justices seemed to work out some thorny issues together. I share Richard Re's praise for this collaboration.
Later, Chief Justice Robert framed the terms of the debate. He even referred to Clement's initial argument as an "opening submission" or "opening pitch."
CHIEF JUSTICE ROBERTS: Thank you, counsel. You've answered a lot of hypotheticals. I just want to make sure I understand what your opening submission is. It is: Hi, I'm a candidate. These rules apply to me, and I'm suing. Right?
MR. CLEMENT: And if that's not enough for you -
CHIEF JUSTICE ROBERTS: No, but that --that is the opening pitch, right? That he's the one that's affected by the --well, that's the question, I guess, whether is it -is it enough to simply say, hi, I'm the candidate and I'm suing?
Clement acknowledged what his opening bid was, but immediately pivoted to "two fall back arguments."
MR. CLEMENT: So I want you to believe that it is. If it's not enough, I have my two fallback arguments, but I think the reason it is enough is because, in every one of these cases --I mean, you can run it one step further, which is what I tried to do with Justice Kagan, and you could say it's not just that I'm a candidate; I'm a candidate here and I have an injury in fact, which is I think there are going to be unlawful ballots counted in my campaign.
Clement also engaged in some negotiations with Justice Kavanaugh over buckets. (For whatever reason, people love talking about "buckets" now.) Justice Kavanaugh asked if Bost has standing because he is the "object" of the regulation.
JUSTICE KAVANAUGH: I think your answers and colloquy with the Chief Justice and Justice Gorsuch reveal that you're considering this case in the bucket that the candidates are objects, in essence, of the regulation, is that right? And, thus, we have said repeatedly that when you're the object of the regulation, you don't need to say much more than you're the object of the regulation. And --and we've said in cases like the fuel producers last year, the --the schools in Pierce, the broadcasting network at CBS, none of those were actually directly regulated, but we still said, in essence, they were the object. Is that --is that the analogy that you're using in your answer to the Chief?
When I first read this question, I was skeptical, because the regulation operates directly on voters, not the candidate. Clement seemed to have the same hesitation, and he pushed back slightly.
MR. CLEMENT: It is, except I might add one word just to avoid a quibble -
JUSTICE KAVANAUGH: Okay.
MR. CLEMENT: --which is I think they're the objects of the regulatory regime. Like, I think there's a fair argument and I think Justice Sotomayor sort of baked it into one of her questions that the object of the ballot deadline might be thought of as being the voter who gets the extra 14 days and not the candidate. So it's not that the candidate is the direct object -
Do you see the difference between the "object of the regulation" and the "object of the regulatory regime"? I think the latter is probably accurate, but I'm not sure about the former.
Kavanaugh parried back, and asked if the candidate is one of several potential objects of the regulation. This framing suggests that "regulation" is actually broader than the single Illinois law that is being challenged.
JUSTICE KAVANAUGH: Is not the only object.
MR. CLEMENT: Not the only. But probably, you know, you
Clement was willing to accept that test, but he probably saw the risk: he might lose other votes. And Justice Kagan chimed in on point:
MR. CLEMENT: Look, if it helps me to say they're the direct object, I'll say it. But I do kind of think it's a -
JUSTICE KAVANAUGH: They're an --an object.
JUSTICE KAGAN: It might help you with some people and not with other people.
MR. CLEMENT: Yeah. (Laughter.)
One last bit that only came out in the audio.
At one point, Paul Clement argued that fears of a broad standing rule are unfounded because most regulations, even silly ones, are never challenged. He told Justice Gorsuch not to worry
MR. CLEMENT: And I think, if you go --I don't need to tell you that if you go through the federal regulations, there are lots of silly provisions in there that have never been challenged, but somebody had standing.
If you listen carefully, Clement put an extra emphasis on "you." He was talking right to Justice Gorsuch, and was (obviously) talking about his books about government overregulation. It was so well done. Subtle, but effective. Gorsuch took the cue.
JUSTICE GORSUCH: Well, I --I --I'd be happy to go through those with you someday, Mr. Clement, but thank you. (Laughter.)
This was a high-stakes negotiation session before the United States Supreme Court. It was truly remarkable. You should listen to the audio to see mastery at work.
