Next year's Supreme Court decision on the healthcare reform law could be the most heavily lobbied ever.
Corporations, unions, trade groups and advocates are expected to spend millions of dollars over the next few months trying to shape the court's thinking on whether the law's individual mandate is constitutional. Their efforts will include ideological appeals, popularity contests and recusal campaigns - none of which are likely to have much effect on the outcome of the case.
"More effort will go into pushing this boulder up this Sisyphean hill in the next three months than in any court case in history," predicted Tom Goldstein, co-founder of the legal affairs SCOTUSblog and a lawyer for AARP in defense of the law. "However many op-eds or TV ads or whatever you want to place, you're just lighting money on fire when it comes to trying to change any Justice's opinions on these questions."
“I'm not so sure that all of these special interest groups are entirely about influencing the judicial process itself (as much as trying) to justify their own existence,” said Michael Wissot, a senior strategist with Republican messaging guru Frank Luntz's firm. “I see it as being more about taking one last opportunity to intensify the public outcry.”
Health policy consultant Alexander Vachon, a Republican health staffer for the Senate Finance Committee in the 1990’s, has an even simpler explanation: It’s what trade associations do.
“There’s probably a song here: Birds fly, porpoises swim, and lobbyists do what they do,” he said. “Whether all that adds up to anything beyond having well-reasoned, compelling arguments … is a secondary question.”
The language both sides will rely on to make their case is already well-honed, whether it’s through public statements, op-eds or friend of the court briefs.
For Democrats, it’s all about the law’s benefits.
White House Communications Director Dan Pfeiffer struck that theme when the court announced its review.
“Thanks to the Affordable Care Act, one million more young Americans have health insurance, women are getting mammograms and preventive services … and insurance companies have to spend more of your premiums on health care,” he said. “We know the Affordable Care Act is constitutional and are confident the Supreme Court will agree.”
Republicans’ rhetoric, meanwhile, is more ideological – and more directly aimed at the Justices.
“On the Republican side,” Wissot said, “the hope is to appeal to the [Antonin] Scalias and the [John] Roberts of the world when it comes to constantly referring to this as a 'government-run mandate,' using words like … 'overstepping its bounds’ … and 'invading' the lives of the private citizen.”
Senate Minority Leader Mitch McConnell (R-Kentucky), Wissot said, “has probably been echoing this message more than anybody” because Republican control of the upper chamber could be riding on the case’s outcome.
"Throughout the debate, Senate Republicans have argued that this misguided law represents an unprecedented and unconstitutional expansion of the federal government into the daily lives of every American," McConnell said when the court took the case. “Most Americans agree. In both public surveys and at the ballot box, Americans have rejected the law’s mandate that they must buy government-approved health insurance, and I hope the Supreme Court will do the same.”
The latest Quinnipiac University poll, released Wednesday, indeed shows Americans rooting for the Supreme Court to overturn the law by a 48 percent to 40 percent margin.
The popularity argument could backfire, though.
"The people who oppose the law and try and paint it as very unpopular to some extent shoot themselves in the foot,” Goldstein said, “because they illustrate that there's a popular will element to all of this. And if (voters) want to vote out the people who enacted the law and get the law repealed, they're entirely capable of doing that."
Wissot called the popularity argument “a losing proposition.”
"Some of the decisions these Justices are the most proud of are often ones that have no direct correlation to popularity,” he said. “What they pride themselves most on is being able to transcend the populist debate."
Likewise, efforts to get Justices to recuse themselves aren’t likely to go anywhere.
Congressional Republicans are demanding that the Justice Department release information about Justice Elena Kagan’s role in preparing for the law’s defense when she was Solicitor General after an email surfaced where she appears to support its passage. The administration has said she wasn’t involved in discussions about its constitutionality.
Democrats for their part are raising concerns with Justice Clarence Thomas, whose wife has worked for groups opposed to the law. Rep. Louise Slaughter (D-N.Y.) is also leading calls for an investigation into Thomas’s failure to declare his wife’s income.
Goldstein dismissed both efforts as "political campaigns … trying improperly to manipulate the outcome of the case."
When he represented Vice-President Al Gore in the 2000 Bush vs. Gore case, he said, he was under pressure to ask for Justice Scalia to recuse himself because his son worked for the law firm representing George W. Bush. He refused.
“For each side's base, it's red meat,” Goldstein said, “but it doesn't seem to be crossing over either way into a serious, non-hyperpartisan argument.”
Justices “are not ignorant people; they read their newspapers,” Goldstein said. “But this is right in their wheelhouse... They've been thinking about these questions for decades, each of them – even the ones that are new to the Supreme Court."
As a result, he said, the Justices’ position on the mandate is probably already “pretty fully baked.”
One key aspect of the case, however, may hinge on last-minute efforts to influence the court. If the Justices strike the mandate, they’ll then have to decide how much – if any – of the law can survive without it. That argument, called severability, basically puts Justices in charge of determining if the law would still work the way it was supposed to without a key component.
“When the court strikes down one part of a statute, it asks whether Congress would have wanted the rest of the statute to live on,” Goldstein said. “Because Congress isn't getting the law that it thought it was getting.”
Only one thing’s for sure. If the law survives, the influence campaign will only get stronger as both parties continue to make their case for and against repeal.
“If anything,” Wissot said, a Democratic court victory “will reignite more determination among the Republican Party and it will continue to keep this in play on the campaign trail.”