This exchange in McCutcheon is pretty funny. Here’s some context. Scalia is pushing Verrilli about the outer bounds of the Court’s campaign-finance law jurisprudence–much of which Scalia is responsible for developing.
JUSTICE SCALIA: General Verrilli, it seems to me — it seems to me fanciful to think that the sense of gratitude that an individual Senator or Congressman is going to feel because of a substantial contribution to the Republican National Committee or Democratic National Committee is any greater than the sense of gratitude that that Senator or Congressman will feel to a PAC which is spending enormous amount of money in his district or in his State for his election. I mean, it seems to me the latter is much more identifiable, and there is nothing in the law that excludes that. So apparently that’s not too much of a risk.
Verrilli shoots back, well Justice, this is your law, not mine:
GENERAL VERRILLI: Well, Justice Scalia, I’m not here to debate the question of whether the Court’s jurisprudence is correct with respect to the risks of corruption from independent expenditures.
And Scalia gives the answer I instruct my students never to give.
JUSTICE SCALIA: It is what it is, though.
I actually had a student a week ago tell me “it is what it is” and I asked him for a different answer.
Anyway, Justice Kennedy posed a few questions, and Verrilli adds that Congress can change the limits (of course subject to the Court’s jurisprudence):
GENERAL VERRILLI: if Justice Scalia’s critique of the situation proves correct and it is deeply disabling to candidates and parties, Congress can address that by changing the contribution limits.
And, for the coup de grace, Kagan gets the laugh line of the day:
JUSTICE KAGAN: And General, I suppose that if this Court is having second thoughts about its rulings that independent expenditures are not corrupting, we could change that part of the law. (Laughter.)
GENERAL VERRILLI: And far be it from me to suggest that you don’t, Your Honor. (Laughter.)
Oh snap! Of course who was the last Solicitor General urging the Court to change its campaign finance jurisprudence? Elena Kagan.