Five Questions with Elias Law Partner David Fox

. . . about the Supreme Court and your voting rights

David Fox is a Partner at the Elias Law Group, election law guru Marc Elias’ shop. David is a litigator with expertise in voting rights, ballot access, campaign finance, and redistricting cases. In 2024 alone, David argued six voting-rights and ballot-access appeals in three state supreme courts, including four en banc arguments at the Nevada Supreme Court—more than any other lawyer in the country. He also successfully defended a reproductive rights ballot measure in Nevada and successfully challenged an absentee ballot drop box prohibition in Wisconsin. David has also argued in federal courts of appeals, including one in the Eleventh Circuit, where he successfully challenged a vote suppressing measure in Florida.

Next week, the Supreme Court will hear oral argument in NRSC v. FEC, the next in the line of dangerous voting cases to work their way there. And David is the perfect person to start our discussion about the case with because he clerked for Supreme Court Justice Stephen Breyer. His partner Marc Elias will be in the mix when the case is argued, on behalf of the DNC, which we’ll be able to listen in on (details below). David sets the table for us tonight, so we know what the issues are and what we should listen for next week.

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Joyce: For readers who may not be following this case closely, what is at stake in NRSC v. FEC? And how did the Democratic Party get involved in this case?

David: At its core, this case is about whether political parties, alone out of all the groups and people with an interest in federal elections, have a constitutional right to spend unlimited money in coordination with candidates. For everyone else in federal elections, that sort of coordinated spending is very sharply limited, for a simple reason. Spending money in coordination with a candidate is practically indistinguishable from just giving the candidate the money directly, and giving candidates large sums of money carries obvious risks of corruption and the appearance of corruption.

Already, under current law, political parties get special treatment here—they can spend much more money in coordination with candidates than anyone else can. But that has never been good enough for the Republican Party, which wants to engage in coordinated spending with no limits at all. The Supreme Court rejected that effort in 2001 in a case called Colorado II, recognizing that unlimited coordinated spending between parties and candidates creates serious corruption risks.

Now the Republican Party is asking the Court, once again, to overturn that precedent and eliminate these limits entirely. If they succeed, wealthy donors could give very large contributions to groups of political party committees, which could then transfer those contributions and spend them all in coordination with individual candidates. As a practical matter, this would gut the individual contribution limits that have been the backbone of federal campaign finance law for decades.

Republicans are aggressively pursuing this drastic change as their approval ratings drop and all signs point to a good political environment for Democrats in next year’s midterm elections, and in the face of the rising power of grassroots donors across the country who have created a legitimate fundraising advantage for Democratic candidates in recent election cycles under the current law, $5 or $10 at a time.

And, in a sharp change of position, the Trump Administration is refusing to defend the existing law—a law that the Supreme Court has already upheld. So our team at Elias Law Group intervened on behalf of the Democratic National Committee (DNC), the Democratic Senatorial Campaign Committee (DSCC), and the Democratic Congressional Campaign Committee (DCCC) to make sure someone stands up and makes the case for why this longstanding law should be upheld.

Joyce: This case has an unusual setup. The Federal Election Commission and the Department of Justice, both of whom might be expected to defend an existing federal campaign finance law, have actually sided with the Republican plaintiffs and agree that limits on coordinated party expenditures are unconstitutional. How does that dynamic change your strategy, both in briefing and at oral argument?

David: It changes everything. Normally, in a case like this, you’d have the FEC and the Solicitor General vigorously defending the existing law. They’re the experts on campaign finance law, and they’re best positioned to defend Congress’s handiwork. That is what both Democratic and Republican administrations have done—successfully—in the past when this law has been challenged. Instead, the Trump Administration is actively arguing that the law should be struck down.

That means the Democratic committees we represent are now the primary voices defending the constitutionality of the limits on coordinated party expenditures against a coordinated attack by the Republican Party and the United States Government, alongside a volunteer lawyer appointed by the U.S. Supreme Court to argue in defense of the decision below. It gives us a lot of ground to cover. In our brief, we had to build the case from the ground up, explaining why Colorado II was correctly decided, laying out the evidence about corruption risks, and addressing every argument made by the Republicans.

The same will be true during oral argument. The Republican Party and then the Solicitor General’s office will both be arguing that the longstanding rule is unconstitutional. It will be on us to convince the Court that these limits on coordinated spending serve vital anti-corruption interests and that stare decisis counsels strongly against overruling settled law that parties, candidates, state governments, and other stakeholders have all relied upon for decades.

Joyce: Oral argument is on December 9. For Civil Discourse readers who want to watch or listen, what should they be listening for? What are the key moments or questions that will tell us where the Court might be headed?

David: There are a few things to listen for. First, what do the Justices say about the various arguments that the Court-appointed lawyer, Roman Martinez, has made that the Court lacks jurisdiction over this case? The Court granted review in this case to consider whether to overrule Colorado II, but Mr. Martinez has raised a number of quite-technical arguments that the case is not properly before the Court—arguments that the Court would have to resolve before even reaching the underlying question of whether Colorado II should remain good law. The more time that Justices spend on those arguments, the more likely it is that they never reach Colorado II at all.

Second, how do the Justices characterize the challenged law? Do their questions recognize that this is a special privilege granted to parties—a higher limit than applies to anyone else in federal politics? Or do they seem to view the challenged law as a substantial restriction of what parties could otherwise do? The more the Justices recognize that the challenged law is already a benefit to parties, not a limit, the more likely they are to understand that invalidating the limit would risk wide-ranging damage to the campaign finance system.

Third, watch how the Court treats stare decisis. Colorado II has been the law for nearly 25 years, and the principles on which it was decided are at the core of the entire campaign finance system. Keep an eye out for questions probing the extent to which changes to the law and to the political system since 2001 warrant overruling Colorado II.

Joyce: After graduating law school, you clerked for Justice Stephen Breyer in the U.S. Supreme Court. Now, you are helping Marc Elias prepare to argue before the Court in a key campaign finance case. What was it like to clerk for Justice Breyer, and how did that experience prepare you to litigate cases before the Supreme Court?

David: Clerking for Justice Breyer was a formative experience in so many ways. He’s fundamentally a pragmatist who deeply believes that the law needs to work—that we have a Constitution, laws, and a government for important reasons, and that our legal system needs to serve those reasons. That does not mean he does not focus on the law: Justice Breyer applies statutes and follows precedent, just like anyone else. But when the legal materials leave discretion, one should consider purposes and consequences, and make a choice that makes sense. That may seem obvious, but it’s increasingly out of fashion among lawyers and judges.

The other unique aspect of clerking at the Supreme Court is that you spend a great deal of time talking about cases with clerks for the other eight justices. And they have very different perspectives. So you learn a great deal about how smart lawyers who think about legal issues in very different ways approach cases—and about what moves them and what does not.

All of that goes into helping Marc prepare. Because one of the main difficulties in preparing for argument at the Supreme Court is anticipating what questions the Justices may ask, and crafting answers that are likely to be persuasive in response. Having broad exposure to how lawyers with different legal perspectives think about difficult legal issues is perfect preparation for that. And of course, you also then see how the Justices respond to particular issues and questions.

Joyce: If the Court rules in favor of the Republicans and eliminates limits on coordinated party spending, what happens next? How would a ruling like that impact the midterms?

David: If the Court strikes down these limits, the most direct effect is to open a massive new avenue for wealthy donors to write seven-figure checks to joint fundraising committees, all of which can be spent in coordination with a single candidate in support of their campaign. This would open an enormous loophole in the individual contribution limits and create a serious risk of corruption.

But that’s really just the beginning, because if the Court does this for parties, every other group interested in politics is going to come knocking, too. If parties can engage in unlimited coordinated expenditures, why can’t Super PACs or corporations do the same? You already see this in the amicus briefs on the Republican side, where other groups are saying—yes, parties should be able to do this, but they are not special—we should be able to do this too. And if you allow that, why have contribution limits at all? They become an easily evaded trap that will catch only the unwary and the poorly advised.

This would all add up to an avalanche of mega-donor money combined with legal uncertainty for the 2026 midterms. The Democratic Party will adapt, as it has before, but the end result will unavoidably be more apparent corruption and more of a risk of the real corruption that both parties sought to eliminate for good after the Watergate scandal. So, the stakes are very high, which is why I really appreciate the opportunity to talk about it with you and your readers. Thank you, Joyce!

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And thanks to David, we’re now ready for NRSC v. FEC. It’s important that this case doesn’t get argued and decided in the dark, that we’re aware and paying attention. Make sure you talk about this one with the people in your life who are too young to remember when States United happened and changed everything, people who have known the outcome of that decision as “normal” for their entire adult lives. Prepare them for what is likely to happen here and the importance of using our power as voters to create a Congress that is willing to protect our rights, not sit on the sidelines while they’re whittled away. It can get better, but it’s going to take commitment and hard work.

We’re in this together,

Joyce