Pardon the inside-baseball post, but I think it reveals a little bit more about how the Court is going about dismantling what’s left of campaign finance limits.
After the Supreme Court decided McCutcheon v. FEC, striking down the aggregate limits on federal contributions, it disposed of two other cases it had been holding since McCutcheon. In one case, James v. FEC, also involving federal aggregate limits, the Court sent the appeal back to the district court to reconsider in light of McCutcheon. That’s sort of standard operating procedure when the Court holds a case and then decides another case on the same topic. (Indeed, Justin wrote a column for Justia a while back suggesting that James might have been a better case for the Court than McCutcheon when it came to striking aggregate limits.)
In contrast, the Court denied cert. in Iowa Right to Life v. Tooker, a case challenging a ban on direct corporate contributions to candidates and allowing them for unions. The union twist is somewhat different, but I litigated the corporate ban against Jim Bopp in the Ninth Circuit and won. And all circuits to have considered the issue (including the 4th Circuit, reversing a contrary decision in the Danielczyk case) have rejected challenges to the corporate ban under the authority of an earlier Supreme Court case, FEC v. Beaumont.
Beaumont was on somewhat shaky ground after Citizens United, and on very shaky ground now (for reasons I explained at Slate) under McCutcheon. I still think lower courts are bound to follow Beaumont. But one can easily imagine a lower court on remand in Tooker saying something like “While we are bound by Beaumont, we don’t see how Beaumont can coexist with McCutcheon and we urge the Supreme Court to clarify and take the case.” But the Court denied cert., meaning the case is essentially over.
So why the different treatment of James and Tooker? There is both a procedural answer and a strategic answer.
The procedural answer is that James came up on an appeal and Tooker on a cert. petition. A cert. denial means nothing on the merits but a decision on appeal, even if it is a summary affirmance or dismissal, means the lower court got it right (although not necessarily for the right reasons). I’ve written a lot about how mandatory appellate jurisdiction in some election cases has skewed those cases (it explains the demise of the poll tax, for example, as I explain in The Supreme Court and Election Law). Michael Solimine and Josh Douglas have written on these courts too, and Will Baude had a recent blog post on it. So procedurally the cert. denial in Tooker is no big deal and expresses nothing on the merits.
But strategically I think it is a big deal. A remand of Tooker to reconsider in light of McCutcheon almost certainly would have set up the case for eventual Supreme Court review—because the lower court likely would have seen itself bound by Beaumont but seriously questioning Beaumont‘s reasoning.
And CJ Roberts is playing the long game, not wanting to move quickly. It is pretty clear he resents the mandatory appellate jurisdiction that brings so many McCain-Feingold and FECA campaign finance cases directly to the Supreme Court. Note what the Chief writes in McCutcheon: “McCutcheon and the RNC appealed directly to thisCourt, as authorized by law. 28 U. S. C. §1253. In such a case, ‘we ha[ve] no discretion to refuse adjudication of the case on its merits,’ Hicks v. Miranda, 422 U. S. 332, 344 (1975), and accordingly we noted probable jurisdiction.568 U. S. ___ (2013).” And consider this exchange between the Chief and Ted Olson in the first Citizens United oral argument:
MR. OLSON: I — I think I would agree with that, but I would also say that the — the idea, the functional equivalent of express advocacy is the very magic word problem that this Court has struggled with in McConnell and in — in each of the cases.
I would — I said at the beginning that this is an incomprehensible prohibition, and I — and my — I think that’s demonstrated by the fact that since 2003 this Court has issued something close to 500 pages of opinions interpreting and trying to apply the First Amendment to Federal election law. And I counted 22 separate opinions from the Justices of this Court attempting to — in just the last 6 years, attempting to figure out what this statute means, how it can be interpreted. In fact —
CHIEF JUSTICE ROBERTS: Well, that’s because it’s mandatory appellate jurisdiction. I mean, you don’t have a choice.
Roberts wants to go slow. As I explained here, the contrast is with Justice Thomas, who hates Roberts’ faux judicial restraint and is ready to kill off all of campaign finance.
A decision striking the corporate ban next would further enmesh the Court in controversy. I expect instead Roberts’ preferred order is (1) strike down federal soft money ban (for reasons explained in the Slate piece); (2) strike individual contribution limits: (3) strike corporate ban.
This is about strategy, not the end result.