Supreme Court Could Announce Monday Whether It is Taking Up McCain-Feingold Soft Money Case

It was listed for last Thursday’s conference. I suspect that it will be at least one more conference before we get an announcement.

As noted when the Trump Administration surprisingly supported the constitutionality of the soft money rules, 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 and before Justice Gorsuch was confirmed:

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.

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