Breaking: #SCOTUS Declines Soft Money Case; Thomas and Gorsuch Would Vote to Hear

Today’s order list contains this summary disposition:

16-865 REPUBLICAN PARTY OF LA, ET AL. V. FEC The judgment is affirmed. Justice Thomas and Justice Gorsuch would note probable jurisdiction and set the case for oral argument.

This is a surprise to me. Because this case came up on appeal from a three judge court, I thought it was pretty likely the Court would take the case. A decision to affirm means the lower court got it right on the bottom line, even if the reasoning was incorrect.

If my count is correct, this is Jim Bopp’s fourth attempt to get the Court to hear a soft money case to overturn one of the two main pillars of the McCain-Feingold campaign finance law (the Court overturned the other in Citizens United.) In one of those earlier attempts, Justices Kennedy, Scalia, and Thomas dissented from the Court’s refusal to hear the case.  And the Chief Justice has said that he feels an obligation to take appeals that come up through three judge courts. And we know that Justice Gorsuch expressed skepticism of campaign finance laws when he was a Tenth Circuit judge.

So what explains the Court refusing to take a case which could have been used to further deregulate campaign financing, by extending the narrow views of corruption and strong reading of the First Amendment that the Supreme Court put forward in Citizens United and McCutcheon? And why did it take only one Court conference to reach this conclusion, when the Court has been taking so long with many other cases (in part as J. Gorsuch got up to speed on the Court’s cases)?

This suggests to me that the Court has really no appetite to get back into this area right now—perhaps they want to save their capital in ruling on other high profile cases coming down the line. Perhaps there was something about Bopp’s petition that made the Court believe the issue of overturning the Supreme Court’s decision in McConnell v. FEC (upholding the soft money ban) not properly presented to it.

This also tells us something about Justice Gorsuch. He was not shy at all — not only about being willing to wade into this very controversial area, but about announcing publicly his vote to hear the case (something he did not need to do). It could well be that he will be as conservative as Justice Thomas is in these cases. (Justice Thomas believes all campaign finance laws—including disclosure—should be subject to strict scrutiny and are likely unconstitutional.) I expect that unlike most Justices J. Gorsuch may not begin his first few terms cautiously, and then work his way up to his full Supreme Court voice.

And that does this mean for campaign finance law? In one sense, this is a victory for campaign finance reformers, because the soft money ban lives for another day. This also means that the Court does not use this case as an opportunity to call other campaign contribution limits into question–so that’s a good thing from reformers’ point of view.

On the other hand, we now have a situation where political parties (especially state and local political parties, the subject of Bopp’s petition) are limited in what they can do, while Super PACs and non-disclosing 501c4s can operate without limit, and in the case of c4s, without adequate disclosure. This further weakens the political parties, which many political scientists and election law scholars leads to further polarization and political dysfunction.

Perhaps there would be room for some bipartisan reform in this area, if Mitch McConnell were not so difficult here. How about a trade?  Loosen the limits on party fundraising, and in exchange provide for greater campaign finance disclosure by all major players in elections, whether or not they choose to register as a c4.  I doubt McConnell would go for the trade but it would be a good deal all around.

 

[This post has been updated.]

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