On August 28, WilmerHale filed an amicus brief in the United States Supreme Court on behalf of American Promise in National Republican Senatorial Committee v. Federal Election Commission.

While NRSC v. FEC challenges limits on financial coordination between political parties and candidates, the brief argues that the Court should fundamentally reconsider its approach to campaign finance law, exercise judicial restraint, and grant due deference to lawmakers.

The nonpartisan brief draws on historical and originalist scholarship, to argue that voters and legislatures — not judges — should hold primary responsibility for regulating elections.

In Buckley v. Valeo (1976), the Supreme Court held, for the first time, that political spending is a form of free speech. In subsequent decades, longstanding campaign finance laws were challenged en masse, subjected to rigorous judicial review, and deemed violations of the First Amendment.

The brief begins with pointing out that the Court’s decision in Buckley v. Valeo never considered originalist principles, and that subsequent modern Court decisions therefore also run contrary to the original understanding of both the First Amendment and the role of the judiciary.

The brief urges the Supreme Court to fundamentally reconsider how it reviews campaign finance laws by largely deferring to lawmakers, who are more accountable to citizens, possess democratic legitimacy, and can refine deficient laws with relative ease. The brief is narrowly focused on the issue of campaign finance, and does not take any position on how this argument might apply to other areas of constitutional law.

The brief was drafted and filed by a team at WilmerHale, including Felicia Ellsworth, Partner-in-Charge of WilmerHale’s Boston office and Vice Chair of its Litigation/Controversy Department, Angela Boettcher, Jonathan Ellison, Madeleine Laupheimer, and Tony Lee.

Read the full brief.