Via Bloomberg BNA, comes news of this motion to dismiss or affirm a challenge brought by the Republican Party of Louisiana to the soft money limits in the Bipartisan Campaign Reform Act of 2002 (the McCain-Feingold law). The Court upheld those limits in McConnell v. FEC, but there have been a number of subsequent challenges to the provisions, and this one is the latest.
I was expecting that a Trump Administration with White House counsel Don McGahn (who is a big believer that campaign finance deregulation is mandated by the First Amendment) might do something unusual in defending the case, perhaps even filing two briefs (one on each side), similar to what happened in Buckley v. Valeo.
But the motion reads like a motion that would have been filed by the Obama DOJ; there’s not a hint that the issue is one the Court should hear. It has just the right tone for a brief of this type to say: nothing new here, and this is not the right vehicle to make a big change in campaign finance law.
So that’s a surprise, and good news for reformers.
Now the bad news: I still think the Court is fairly likely to take the case. From a post of mine on this case the day before the election:
Back in August I wrote at NLJ about Republicans’ third attempt to overturn McCain-Feingold’s limits on how much political parties can raise from donors for election related advertising and other things. I wrote that if the Republicans would be successful in getting a three-judge court, that would put the Supreme Court in a position where, because of technical procedural reasons, it would almost certainly take the case. When I wrote that in August, Justice Scalia was still on the Court, and I said there was a good chance that the Roberts Court, if confronted with the soft money rules, could well overturn them, killing the second part of McCain-Feingold. (The Court killed the first part, the limit on corporate and labor union independent spending, in Citizens United).
Well today the three judge court ruled unanimously ruled, and rightly so, that it is bound by the Supreme Court’s earlier decision in the McConnell case upholding the soft money rules.
So the issue is perfectly teed up through appeal to the Supreme Court. But…
No more Justice Scalia means that Court is likely evenly divided at best on the question. So little prospect now the ban would be overturned.
If we get a ninth Justice things could change. A Clinton-appointed Justice would almost certainly vote to uphold the limits, while a Trump-appointed Justice would almost certainly vote to strike them down.