WRTL: Lyle Denniston reports on SCOTUSBlog: “The Supreme Court ruled on Monday, without dissent, that it has not barred all challenges to actual operation in practice of federal campaign finance restrictions. It ordered a lower court to reconsider an “as-applied” challenge by an anti-abortion group, Wisconsin Right to Life Inc. The unsigned opinion, only two and a half pages in length, was announced by Chief Justice John G. Roberts, Jr. It ordered a three-judge District Court to consider the merits of the organization’s complaint.” I’ll link to the actual opinion when I have it.
UPDATE: Here is the opinion. This unanimous per curiam opinion makes essentially two points. First, that a footnote in the Supreme Court’s earlier 5-4 McConnell opinion was not intended to preclude “as applied” challenges. That is, if corporate or union plaintiffs can prove that they are running “genuine issue ads,” it can be unconstitutional to apply the electioneering communications provisions to them (at least insofar as barring the use of corporate or treasury funds to pay for these ads). Second, that the lower court opinion was unclear as to whether it held that the ad in question (one that attacked Senators Feingold and Kohl (only Feingold was running for reelection) for their position on the filibustering of judicial nominees) was really an election ad that McConnell held it was permissible to regulate.
What is the significance of this ruling? In the short term, the greatest significance is that it allows the Supreme Court to put these issues over to another day. With Justice O’Connor leaving and a new Justice presumably coming in soon, the Court would have faced the possibility of reargument or, assuming Justice O’Connor would have recused, an affirmance by an equally divided Court. Reargument would have thrust the two newest Justices into a difficult position where their votes presumably would be dispositive.
Longer term, the opinion could be significant. First, it gets the courts and the FEC into the business of separating genuine issue ads from sham issue ads. The irony of course is that the bright line electioneering communications provision was sold as having the benefit of keeping the courts out of this mess. It is sometimes going to be impossible to determine whether an advertiser had an electioneering motive, as the facts of this case well demonstrate. It could be that the courts craft a tough test for plaintiffs to fit into this as applied exception. Or, if as I’ve suggested, the Supreme Court could well be moving toward more deregulation of campaign finance, this could be an important first step toward undermining McConnell without overruling it.
UPDATE 2: Some people have pointed out to me that there is language in the per curiam opinion that could leave open the possibility of the Supreme Court (when this case returns) again considering whether “as applied” challenges should be allowed to BCRA. All the Court says is that the lower court misread the McConnell footnote, leaving open the possibility (if only formally) that the Court could come back when this case comes back that as applied challenges should be precluded, perhaps because of the tremendous amount of discretion they will put in the hands of the FEC and courts to judge the “genuineness” of issue ads—the very thing that BCRA’s EC provisions were crafted to avoid. Note the language at the end of the first full paragraph on page 2: “In upholding s 203 against facial challenge, we did not purport to resolve future as-applied challenges.” Some wiggle room for Justice Breyer?
See also Marty Lederman’s very interesting SCOTUSBlog post, “A Big Term for As Applied Challenges,” here.
Judicial Elections: Notable on today’s Supreme Court order list is today’s cert denial in Dimick v. Republican Party of Minnesota, No. 05-566. This is the follow up to the Supreme Court’s decision in Republican Party of Minnesota v. White, where a 5-4 Supreme Court struck down a portion of Minnesota’s code of judicial campaign conduct as violating the First Amendment. The Eighth Circuit on remand went much further than the Supreme Court did in White, striking down key provisions of Minnesota’s judicial campaign rules, and a very strong effort was made to get the Supreme Court to take this case again.
UPDATE: With the campaign finance ruling today, it is easy to lose sight of the significance of this cert. denial. The earlier White case by the Supreme Court struck down Minnesota’s “announce clause,” which was a rarely used judicial campaign speech rule that the ABA itself had abandoned. In the current case, the Eighth Circuit struck down a rule limiting the partisan political activities of judges as well as a ban on certain direct solicitation of campaign contributions by judges. Along the way, the Eighth Circuit called into question all judicial campaign codes, suggesting that when such rules are enacted by state high courts rather than state legislatures, the courts have acted beyond their authority.
Already before this cert. denial, federal courts have began striking down a host of judicial campaign rules (while state courts have tended to uphold them). While the cert. denial is not a ruling on the merits, it is likely to accelerate the trend in the federal courts. Judicial elections are going to look even more like non-judicial elections as time goes on.
Oral arguments: The Court issued orders setting oral argument timing in the Vermont spending limits and Texas redistricting cases. More to come. UPDATE: At the Jenner and Block Texas Redistricting page, you can find the motions for divided argument along with the Supreme Court’s order. The Court granted 40 minutes of argument time to Paul M. Smith, attorney for the Jackson appellants, and 20 minutes to Nina Perales, attorney for the GI Forum appellants. This will allow for the Court to hear about the partisan gerrymandering, one person, one vote, and Voting Rights Act claims.