I’m at a break at the Hastings conference so I only have a few minutes here to blog. Following up on this post, the Supreme Court has issued an order in the Citizens United case raising the question whether the Court has jurisdiction to hear an appeal from what is not a final judgment. Lyle Denniston has a detailed analysis of the issue here.
Finding a lack of jurisdiction would allow the Court to dispose of the case without reaching the merits. And in any case the timing of the briefing order makes it appear quite unlikely that the case would be ordered heard this term. (The Court could have granted a hearing and postponed a ruling on jurisdiction, allowing the parties to brief this issue as part of their case).
As another knowledgeable observer expressed to me, by March Hillary Clinton may no longer be a candidate for office, which could have the effect of mooting the case.
One way or another, it appears the Court could resolve this appeal without reaching the merits.
Back in January Jim Bopp filed a motion seeking to expedite consideration of the Citizens United case before the Supreme Court (see docket; for background on the case see Lyle Denniston’s analysis at SCOTUSblog). The Court failed to rule on the motion at the last two conferences, and so far it appears that there have been no orders today coming from the Court’s conference. What does this mean for the Citizens United case?
First, I think it is clear that the Court is not going to expedite the case for consideration this term. We are getting late in the term and the Court has had three conferences to make such a ruling. It hasn’t happened and the Court is already setting cases for next term. If the Court was going to act on expedition, it would have done so already.
What I expect is most likely happening is that the Court is going to issue a summary affirmance of the order below accompanied by a dissent from Justice Thomas and perhaps one or more other Justices. I have seen this pattern before of a relisting of cases up on appeal (not cert) that ultimately led to an affirmance and dissent.
Here are the three reasons why I expect a summary affirmance in the case. (1) The issue raised in the case involves creating an exemption from McCain-Feingold’s rules requiring disclosure of electioneering communications, relying on the recent WRTL case. In McConnell, 8 of the 9 Justices on the Court (Justice Thomas dissenting) voted to uphold those disclosure rules. Even with the replacement of Rehnquist and O’Connor with Roberts and Ailto, it looks like there should be at least six Justices who are comfortable with the rule requiring that those who fund tv or radio ads run close to the election featuring candidates for federal office disclose their contributions and spending. (2) The case comes up on a request for a preliminary injunction. Even if some members of the Court wanted to consider the issue after final judgment, the Court will give a lot more discretion to a lower court’s decision to grant or withhold a preliminary injunction. (3) Even for Justices who believe that a “WRTL”-type exemption should apply to disclosure of the funding of ads for which there is “no reasonable interpretation” of the ads other than as an advertisement supporting or opposing a candidate for federal office, it is hard to see the ads for the anti-Clinton movie as fitting under the exemption. One of the lower court judges literally laughed when told the ad was about the issue of Clinton being a “European-style socialist” and not an ad against Clinton’s election.
If there is to be a summary affirmance, I expect a dissent. The reason is that unlike denials of cert., summary affirmances have precedential value. It means the lower court got the result right (though not necessarily the reasoning).
We may know more on Monday.
Carl Bialik has written this interesting column on voter turnout for the Wall Street Journal. Thanks to Dan Lowenstein for the pointer.
The Washington Post offers this front-page report.
The Boston Globe offers this report.
The Toledo Blade offers U.S. Judge in Toledo May Rule on ‘Issue Ads’ about a lawsuit brought by Sen. Gravel (is he still running?) against ALP, the pro-Clinton 527.
The Cleveland Plain Dealer offers Republicans Ohio Secretary of State Jennifer Brunner removed from elections boards cry foul.
USA Today offers this report.
BNA offers this report ($), which begins: “The Federal Election Commission cannot enforce a long-standing, controversial rule broadly defining ‘express advocacy,’ FEC Chairman David Mason suggested in a statement recently released by the commission. The rule–11 CFR Section 100.22(b)–says the FEC may regulate the funding of political messages based on their timing and context and may go beyond a narrow range of ‘magic words’ calling for a vote for or against a candidate. Mason said such broad regulation now must be considered unconstitutional in light of a Supreme Court ruling handed down last year in FEC v. Wisconsin Right to Life Inc.”
Adam Bonin has this important post on the pro-Clinton 527 that has so far failed to run its ads in Ohio or Texas. Did Bob Bauer scare away all the donors?
McClatchy offers this report.
AP offers this report. Says Gov. Huckabee: “He wrote these laws and one of the reasons I think people need to continue this discussion and this debate is I think one of the worst things that’s ever happened to American politics is the McCain-Feingold campaign finance act…It has created more problems than it has solved and it may very well be that the law that he pushed comes back to bite him.” I do not see how McCain-Feingold, whatever one thinks of it, is directly responsible for Sen. McCain’s troubles, except that by raising the individual contribution limit from $1000 to $2000 (indexed to inflation, and currently $2300), the public financing system has become even less appealing for successful fundraisers.
Linda Greenhouse is going to retire from the NYT at the end of this Supreme Court term, which I think is sad news for all of use who have relied upon her to make sense of Supreme Court cases in very diverse areas. I have had many conversations with Linda over the years about election law issues, and I’ve always marveled not only over how much homework she did (she seemed to master the arguments in all of the briefs—including the amicus briefs). She has an unrivaled ability to see beyond the lawyers’ argument to the politics and pulse of each case.
In this article she explains how she had 10 minutes to explain Bush v. Gore to the nation. She will be missed sorely on the daily beat, but at least she’s still planning on writing about the Court.