April 15, 2010

Will SG Kagan Seek Supreme Court Review in SpeechNow? Is It Too Late?

This morning's New York Times story on SG Kagan talked about how she handled the last campaign finance case before the Supreme Court: Citizens United. But I've been wondering how she's going to handle the next campaign finance case potentially before the Supreme Court (aside from the RNC soft money case, where the government will be the respondent): SpeechNow.org v. FEC.

I was reminded of this today when I received this press release from the FEC setting forth the FEC's 2010 rulemaking schedule. The schedule itself shows a busy deregulatory agenda: there are many rules to dismantle and water down to comply with the Supreme Court's decisions. But I noted an asterisk, which says that "If the Solicitor General does not seek a writ of certiorari in SpeechNow v. Federal Election Commission, the Commission intends to incorporate the issues raised in that case into the EMILY's List II rulemaking."

This got me thinking about the question whether the government's decision on whether to seek review of the SpeechNow case might come up while SG Kagan could be considered by the Senate for appointment to the Supreme Court, and how she might answer questions about the case if it does arise. (Or course, if SG Kagan joins the Court and the Court hears SpeechNow, she would almost certainly recuse herself from the case.)

As I will explain below, the timing question seems unclear to me, though there may be a clear answer I'm missing (and would love to hear about it). Aside from the timing question, it is not clear to me that the government should seek review in this case. See How Liberals Can Win by Losing in the Roberts Court. [Disclosure: I have a similar issue to SpeechNow pending in the 9th Circuit.] Assuming the decision about whether or not to seek review still hangs as SG Kagan might be questioned about the case, it could make the campaign finance issue an even more interesting one at any confirmation hearings.

Super-geeky discussion of timing question below:

In looking at timing for seeking review, the question is a difficult one, because of the odd procedural posture of the case. When a case is brought under 2 U.S.C. 437h, this allows for direct appeal of this case to the Supreme Court. Under the old provisions of this statute, as set forth in the Bread Political Action Committee case in footnote 2, a losing party had 20 days to appeal to the Supreme Court (which runs out today, if I've counted correctly). But that 20 day period was removed from 437h. But it looks like Congress passed a 10 day appeal period in BCRA (see here, second page, under "Judicial Review"), but this does not appear in the text of 437h, and I'm not sure if the new provision applies to original FECA provisions (like the one in Speechnow) that were untouched by BCRA.

To make matters even more complicated, Speechnow was a case in which there was also a separate case brought in district court by the organization itself (because the organization lacked standing under section 437h). That case was consolidated with the other Speechnow case, and presumably SpeechNow (the organization) can seek cert on the disclosure arguments it lost. It is not clear to me if the government also can wait the usual time to seek cert. in this case.

So I am not sure which rules will apply to the timing question.

Posted by Rick Hasen at April 15, 2010 05:14 PM