More Denniston on the Maine Campaign Finance Case

In response to my post on the Maine campaign finance case (linking to his earlier post on the same case), Lyle Denniston of SCOTUSblog emails along the following comments:

    Thanks for linking to my post on the new electioneering comm. case, and thanks for providing a link to the juris. statement.
    I note you suggest the Court will not take the case at this point, and that you expect the Court to deny a request for a prelim. injunction.
    A couple of things to note:
    There is no request here for a preliminary injunction; this is a direct appeal, on the merits, and the Court can only act on it with full Court consideration. This is not a request to a single Justice (here, it would be CJ Roberts), as it was when WRTL was denied a prelim. inj. pending appeal by Rehnquist in September 2004.
    The Court does not have the option of simply denying review. It must either note jurisdiction, and proceed to decide the case on the merits; or, if it could muster five votes, it could act summarily — but the only summary options open to it are to affirm the DCt or to reverse it. Since an affirmance would be to decide an issue that the Court, in the WRTL case, has sent back to DCt to try), it may be doubtful that the Court wants to do that summarily. It could dismiss, again it would take five votes to do so, either for want of jurisdiction (but, since it took the WRTL case, it clearly has jurisdiction over these kinds of cases under BCRA), or it could dismiss it “for want of a substantial federal question,” or dismiss without saying why. But the summary decision in WRTL on January 23 made it quite clear that the Court thinks there is a substantial federal question in as-applied challenges on this part of BCRA.
    If there is another way it can brush it aside, and perhaps one might be devised, I frankly do not know what it would be.
    Bopp’s request for expedition, as he notes in the juris. statement, is to note jurisdiction, to expedite the appeal, have only one round of briefing, and rule on the merits. He probably would be content with a prelim. injunction, because the League could then go ahead with its ads between now and the Maine primary next month, but he did not ask for one, presumably because granting it would essentially decide the case his way, and the Court very likely is not inclined to do that, and denying it would take the ads off the air up through the primary. It looks to me as if he has done the most he can to maxmize the League’s chances of getting some resolution.
    Regards,
    Lyle

These are interesting procedural points. I suppose then what i would expect, consistent with my earlier post and with the points Lyle has just made, is a summary affirmance, perhaps with one or more justices concurring with a statement that the issue will soon be back before the court.

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