In my Slate column on the foreign spending ban, I predicted that the Supreme Court, if faced with the issue, would blink and hold the campaign finance law barring foreign spending on U.S. elections to be constitutional even though such a ruling would be inconsistent in important ways from the majority opinion in Citizens United.
Now the answer may come sooner rather than later. Check out the complaint in Bluman v. FEC. And the best part from the point of view of plaintiffs’ challenge: they’ve asked for a three-judge court, and if they get it, that means direct appeal to the Supreme Court (not a petition for cert). As I’ve explained in the past, decisions on appeals to the Supreme Court are decisions on the merits, so this means that a Supreme Court decision not to hear the case has precedential value. This makes it more likely that the Court would actually hear the case on appeal should it be appealed.