[EL] McCutheon

[Scarberry, Mark]

The Office of Solicitor General says that a refusal to hear a case that comes up on appeal (instead of by way of a petition for cert.) is generally not considered to be precedential. http://www.justice.gov/osg/briefs/help.html ("Summary affirmances and reversals have precedential value; dismissals are generally viewed as similar to denials of certiorari.") Rick suggests the contrary. (I'm running out the door and can't do any case research on the point.) Thoughts?

Mark

Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law



From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Rick Hasen
Sent: Tuesday, February 19, 2013 7:40 AM
To: law-election at uci.edu
Subject: [EL] McCutheon

The Significance of the Supreme Court's Decision to Hear the McCutcheon Campaign Finance Case<http://electionlawblog.org/?p=47428>
Posted on February 19, 2013 7:37 am<http://electionlawblog.org/?p=47428> by Rick Hasen<http://electionlawblog.org/?author=3>

Today the Supreme Court agreed to hear<http://www.supremecourt.gov/orders/courtorders/021913zor_19m1.pdf> the McCutcheon case<http://electionlawblog.org/?s=mccutcheon> challenging the limits on the total amount of aggregate contributions a person may make to candidates, party committees, and certain PACs.  I thought this decision to hear the case was fairly likely<http://electionlawblog.org/?p=47425>, given that the case came up on appeal rather than on cert.-meaning a decision not to hear the case would mean that the Supreme Court agreed with the lower court ruling on the merits (something not true with a cert. petition-once again, the technical distinction between cert. petitions and appeals in election law cases moves the law forward more quickly).

How significant is this case?  In some ways, in the era of Super PACs and c4s, the issues here are less burning than in years past. After all, while it is true that a person could not give, say, $2,600 to a candidate for each congressional office in a two-year period without running afoul of the contribution limits, that same person could give unlimited sums to Super PACs or c4s which could spend MUCH more than $2,600 per race from that person to support that candidate for office.

But the case has broader significance-this case will mark the first opportunity for the Supreme Court to say something about how it will review the constitutionality of contribution limits after the Citizens United case. CU involved independent expenditures by corporations, and the Court in CU expressly refused in that case to reconsider any of the law related to contributions. It is possible in this case, for example, that the conservative five Justices in CU set out a general standard for reviewing contribution limits which makes them harder to sustain against constitutional challenge.  In the past, contribution limits were subject to a very complaisant standard of review, very easy to sustain against challenge. (The possibility that the Court could do this may explain why the Court has not ruled on the pending cert. petition in the Danielczyk case, <http://electionlawblog.org/?s=danielczyk> challenging the constitutionality of the ban on direct corporate contributions to candidates. It could well hold this case for the outcome of McCutheon.)

More broadly, a decision to strike down aggregate contribution limits could lead the Court to overrule that portion of Buckley v. Valeo upholding aggregate contribution limits. This would be of enormous symbolic significance. Buckley has been the law since 1976, an uneasy compromise making independent spending limits very tough to uphold (upheld later against corporations in Austin, later reversed in CU), but contribution limits very easy to uphold. Striking part of the Buckley edifice could mean that more will fall, and that the Court's general skepticism toward the constitutionality of limits already in play in the independent spending area could spread to contribution limits.

This would be the next logical progression of the Roberts court on these issues, ever since Justice Alito replaced Justice O'Connor. As I wrote in 2006 in No Exit? The Roberts Court and the Future of Election Law<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=850544>:
Making predictions is always dangerous, and the conclusions I reach should be taken in the tentative spirit in which they are made. My best guess is that a decade from now, we may well face a set of election law rules that differ a great deal from today's rules. It may be that in 2016, individuals, corporations, and unions will be free to give as much money as they want to any candidate or group, subject to the filing of disclosure reports. The federal government's ability to protect the voting rights of minority groups that historically have been the victims of state discrimination may be curtailed by the inability of Congress to require any jurisdictions to submit their voting changes for preclearance and by an emasculated reading of Section 2 of the Voting Rights Act. The ability of states to manipulate election rules for partisan gain may present the greatest danger as the Court exits from that corner of the political thicket. For those who look to courts for the promotion of political equality, the signs are not encouraging.


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Posted in campaign finance<http://electionlawblog.org/?cat=10> | Comments Off |
--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>
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http://electionlawblog.org
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