June 29, 2010

Breaking News: Supreme Court Summarily Affirms in RNC Case: What This Means for the Future

The Court's order reads: "09-1287
REPUBLICAN NAT. COMM., ET AL. V. FEC, ET AL. The judgment is affirmed. Justice Scalia, Justice Kennedy, and Justice Thomas would note probable jurisdiction and set the case for oral argument."

A "summary affirmance" means the Court agrees that the lower court reached the right result, though not necessarily for the reasons offered by the lower court.

How should this ruling be interpreted? I believe this is only temporary good news for those who think the soft money ban is an important anticorruption component of federal campaign finance law. Let me explain.
I had been predicting the summary affirmance for some time---this was just a very weak case for overturning the ban. Here's what I wrote a few months ago about the case:

    Here are some reasons why the Court may simply summarily affirm in the case. First, the Court likely will think the lower court got it right. The case seeks an "as applied" exemption to the soft money rules, but as I read the lower court opinion, the "as applied" challenge does not seem all that strong. Basically the RNC is offering to create a walled off fund to try to get around the kind of corruption that the Court found could happen with soft money. It seems the stronger basis for the RNC's claim is to argue that McConnell's holding upholding the facial challenge to the soft money ban needs to be overturned, but that issue is not presented in the case. Remember that Justice Kennedy also voted to uphold a portion of the soft money ban, and his views on this do not appear as strongly against the corruption argument as some other Justices in the (new) majority. Second, the Court has heard a lot of campaign finance cases recently, and may not be interested in hearing another now. First, so many of these cases are up on mandatory jurisdiction (this one is too), and there's a certain amount of fatigue in hearing these cases, which was expressed by the Chief Justice during the Citizens United oral argument. The Court also may be gun-shy after all the criticism of Citizens United in delving into all of this again, so soon. Third, the Court may not want to do something that will upset the rules in the midst of the election season.

But here's why this is not good news going forward. I had expected a case like this would not appeal to Justice Alito, who has seemed to be very concerned that arguments for overruling precedent are made straightforwardly before he'd be willing to consider them. (That's my guess as to why we got the supplemental briefing in CU on overruling Austin.) The order today indicates that you already have three justices willing to at least consider seriously undermining the soft money ban, if not overrule the rest of McConnell left standing after CU. I believe that if the RNC (or someone else) files a new case straightforwardly seeking to overturn the soft money ban, Justice Alito, and probably the Chief, will be quite receptive to considering the question.

So the soft money ban lives for another election, and we won't have to have another September campaign finance argument before the first Monday in October.

Posted by Rick Hasen at June 29, 2010 07:09 AM