Fight The Hypo

We recently had the opportunity to sit with Elizabeth Getman, a recent graduate of The Catholic University of America, Columbus School of Law and now an associate at Sandler, Reiff & Young, P.C., to discuss her role in Davis v. F.E.C. (recent SCOTUS decision on the “Millionaire’s Amendment” in McCain-Feingold).

Her role in the case was recently profiled in Roll Call, but we thought we’d get the inside story. She’s here, naturally, of her own accord and not as a spokesperson for any clients or employers.

So… be nice. (that means you, BigShow)

Fight The Hypo: Elizabeth, thanks for taking the time to answer some questions for our readers. I’m sure it will provide excellent reading during our summer classes!

Elizabeth Getman: No problem at all. Better to get me now before I dive into my next Supreme Court case (just kidding, just kidding). I could see this becoming addictive, though. And if you’re looking for a quick primer on the subject, the Davis opinion is one of the shortest campaign finance opinions out there.

FTH: Tell us a little about yourself…

EG: Well, I hail from Baltimore originally, went to college in St. Louis, and I’ve been in DC for six years and can’t imagine living anywhere else (though if I had the nerve, I would move to Aspen and just be a ski bum for a few years).  I love pro football (Eagles and Skins - and yes, I know that makes no sense), and I’m an excellent parallel-parker…

FTH: We’ll get to your experience at Catholic in a few minutes. But we’re really interested in this case you were involved with that made to the Supreme Court. A challenge to the Millionaire’s Amendment. Can you explain what the Millionaire’s Amendment is?

EG: The Millionaires’ Amendment is an oddity in campaign finance.  It allows candidates who face self-financing opponents to raise money under higher contribution limits than everyone else. The normal contribution limits are $2,300 per election.  The MA triples this limit to $6,900 per election for a House candidate (Candidate A) whose self-financing opponent (Candidate B) spends more than $350,000 of his own money on his own congressional race (Senate races are slightly different).  There’s a complicated formula that purports to measure each candidates’ finances to determine if the self-financer has a financial advantage.  If it’s determined under the formula that Candidate B comes out ahead with this personal infusion of cash, then Candidate A gets to ask his donors to contribute $6,900 for that election to make up for that supposed financial advantage.  However, the formula does not measure a candidate’s “war chest” from past elections, nor does it count any money raised during the year of the election.  So it’s an inaccurate snapshot of each candidate’s finances, and even though Candidate A may have a few million dollars in the bank, and Candidate B only contributed $350,000 in personal funds, the formula can still determine that Candidate B has a financial advantage and that Candidate A is eligible to raise money at triple the normal limits.

FTH: I understand you worked for a Congressman who faced a self-financed candidate himself. In your mind, what’s the problem with that? (aside from the frustration of having to raise that much more money)

EG: In the 2006 election, the Millionaires’ Amendment did indeed help Senator Ben Cardin raise a large amount of money in a short amount of time from maxed-out donors.  However, in the larger scheme of things, do we think that Senator Cardin would have lost if he had not raised that money? Certainly not.  As much as fundraising has become the focus of recent elections, money alone does not win elections.  Just because a candidate is able to blanket the airwaves with ads does not guarantee that the voters will agree with his or her message and vote accordingly.  Although the MA does not apply to Presidential races, consider Mitt Romney - he spent about $35 million dollars of his own money on his bid for the Presidency and still was unable to connect with the voters. So, first of all, the perception that wealthy candidates are buying seats in Congress is plainly misguided.  Second, any legislation passed by incumbent Members of Congress that presumes to create “fairness” in the context of electoral politics should be regarded with skepticism - what Member of Congress is going to vote for a law that may make it easier for him to get beaten in the next election? In the end, the Constitution charged the voters with deciding who was worthy to represent them. Congress should not be trying to make that decision for the electorate.

FTH: Absolutely agreed. So the issue before the Court was…

EG: Whether the Millionaires’ Amendment burdens a self-financer’s First and Fifth Amendment rights.  Even though Congress claimed that it was trying to “level the playing field” to prevent wealthy candidates from “buying” a seat in Congress, the provision places a price on the choice to self finance, which is First Amendment protected expression.  A candidate could either try to raise money under the normal $2,300-per election contribution limits like everyone else (which is an uphill climb for unknown challengers facing entrenched incumbents), or he could self-finance his race, knowing that if he did so, he was going to possibly give his opponent the benefit of collecting up to $6,900 per election from her donors.

FTH: And how did you get involved with the case? I mean it’s pretty cool that you were, but I’d imagine it’s unusual for an associate a year out of law school to land that gig.

EG: NETWORKING!! And a bit of luck. As part of the Law and Public Policy program at CUA, we’re required to write a policy thesis during our third year.  I decided to write mine on the Millionaires’ Amendment because it had struck me as such an odd statute.  During my research, I came across the attorney who was challenging the statute in the D.C. District Court.  He became my mentor for the thesis, we kept in touch after I graduated, and when the case was accepted by the Supreme Court, he asked for my help because I already knew so much about the statute (probably one of the ten people in this town who gets all worked up about the subject).

FTH: It’s pretty cool when we meet lawyers who get excited about the law they practice or have learned. But tell us more about writing the brief. Is it similar to briefs you wrote in law school? Did you write (or edit) with a certain Justice(s) in mind (i.e. “Kennedy said this in a prior opinion, so he might like this argument better…”)?

EG: It’s pretty different from writing a simple law school brief.  You’re kept to a specific word limit–15,000 words for a merits brief–which seems like a lot, but with such a complex statute, we really had to make sure that each word was necessary.  We did write with certain Justices in mind, knowing that the conservatives on the Court (whose votes we needed) would not buy the argument that contribution limits are in place in order to combat corruption, and therefore raising the limits for only one candidate would simply increase corruption.  We knew that Justice Scalia had written in the past about the dangers of incumbents legislating in their own self-interest, so we made sure to focus on that theme.  The writing process is different as well - in a law school brief, you’re focusing on whether you cited all the cases you needed, whether you supported your main points, but you’re not really concerned with “winning” in a real-world sense, you’re not trying to convince anyone. Your audience could be a law professor or moot court members grading briefs, who read it for flow, content, legal reasoning, etc.  But in a brief before a court, you have to make an effort to convince the judges, based on what you know about their legal philosophies and how they will react to a particular argument.  It’s a much more difficult task to accomplish, and you never know if you’ve gotten it exactly right.

FTH: Are you doing election law now?

EG: I am practicing campaign finance and election law now, digging into this crazy election cycle.  I almost act as a consultant instead of a typical lawyer.  I don’t write legal memos for senior partners or anything like that - I’ll research whether an organization can run a TV ad during a particular time frame, whether the content of the ad is okay, how to pay for it.  I’ll advise a candidate how to process a particular contribution, or help a client set up a political committee. It’s tons of fun and it keeps me on my toes.

FTH: So, that’s a cool job. At least I think so. Tell us about your experience Catholic. What made you choose to go there?

EG: I wanted to stay in DC, and I was attracted to the LPP program at Catholic.  I liked how I’d be able to combine internships with my legal education so that I’d be more prepared to enter the political or policy fields after graduation.  In fact, I spent much of my time at Catholic trying to figure out how I could get credits for NOT being in a classroom - and with credits for three internships, Moot Court and the CommLaw journal, I’d say I did pretty well!

FTH: Favorite law school moment? Least favorite?

EG: Favorite: During my second year, when my moot court team made it to the semi-finals at the national securities law moot court competition at Fordham University in New York.  Competing in that competition was an incredible rush, especially for someone who never considered herself much of a public speake

Least favorite: Facing Prof. Perez’s Torts final, first year. ‘Nuff said.  But at least I got it over with in the first year!

FTH: Was it worth it?

EG: In hindsight, it was completely worth it because I was so lucky to have landed where I did.  But it wasn’t such a certainty when I was in school.  I never did Fall Recruiting because I didn’t think I wanted to end up in private practice, and the government agencies that came to campus didn’t really interest me.  I didn’t want to do a clerkship because I wanted to stay as far away from litigation as possible (Ha! I guess that plan didn’t work!).  So I was pretty much left to my own devices, to find my own path.  For some people, that’s a blessing; for others, it can be terrifying.  I fell somewhere in the middle and just kept plugging along, figuring that everything would work out the way it was supposed to. And I’m happy to report that it did!

FTH: No fall recruiting!?!? That’s bold. So, when you graduated, did you feel prepared to enter your legal career?

EG: I did feel prepared, but only because I’d gotten so much real-world experience through my internships.  Practicing law is about so much more than memorizing the elements of a contract or being able to spit out the exceptions to the hearsay rule (trust me - you forget it all within a month of taking the bar!).  If you don’t have any awareness of the context of the law, or a sense of how to do things rather than why, then you’re going to be stuck for a while.  For example, when I was working on the Davis brief, I knew the legal arguments of why the statute was unconstitutional, but it was harder to figure out howto convince others that we were right.  The how part is something you can only learn by doing - a textbook can’t show you that.  And I’m still figuring it out.