[EL] Breaking: #SCOTUS Declines Soft Money Case; Thomas and Gorsuch Would Vote to Hear

Mon May 22 08:02:30 PDT 2017

This is a very balanced post by Rick on a matter of great importance to
him. Perhaps J. Holmes was right about the working of time; "time has upset
many fighting faiths," and so forth. If time does not wholly upset a
"faith" -- as in the case of Rick -- perhaps it tempers....

Rick's right, though, Mitch McConnell may not go for it... just as the
Republicans will repeal Obamacare root and branch the moment they have the
House, Senate and White House -- take it to the bank!

As to Gorsuch, I think the Team who created the List of 21 felt burned by
*NFIB* and *King v Burwell*. These, incidentally, are not "health care
cases." They are, respectively, a scope-of-federal-power case, and a
bureaucratic-sovereignty case. With all due respect to the Left,
Republicans see -- and, in my opinion should see (as we had a path to 5) --
the *King* case as an intra-party struggle: a battle of judicial philosophy
oft aired at *The Federalist Society*. The moment one faction of Republican
think tankers heard the IRS might e ordered to defer to Congress they
immediately started writing of the headaches the Right would endure without
health-care exchanges. They then rolled-out their full trope on "moderation
and prudence" in every publication available to them, and immediately began
pushing "Obamacare Lite" in the form of UptonBurrHatch.

Gorsuch, no doubt, is aware of this rift, notices he headed a List of 21
that, say, wunderkind Jeff Sutton failed to make and had no trouble showing
his spine on a matter as important to the List-Of-21ers as the First
Amendment and campaign finance.

But, as to other matters, I predict Gorsuch will operate within the fold...
with any stridency in presentation (if not in substance) tempered by
passing of time.

On Mon, May 22, 2017 at 9:49 AM, Rick Hasen <rhasen at law.uci.edu> wrote:

> http://electionlawblog.org/?p=92665
>
>
> Breaking: #SCOTUS Declines Soft Money Case; Thomas and Gorsuch Would Vote
> to Hear <http://electionlawblog.org/?p=92665>
>
> Posted on May 22, 2017 6:32 am <http://electionlawblog.org/?p=92665> by *Rick
> Hasen* <http://electionlawblog.org/?author=3>
>
> Today’s order list
> <https://www.supremecourt.gov/orders/courtorders/052217zor_4gd5.pdf>contains
> this summary disposition:
>
> *16-865 REPUBLICAN PARTY OF LA, ET AL. V. FEC The judgment is affirmed.
> Justice Thomas and Justice Gorsuch would note probable jurisdiction and set
> the case for oral argument.*
>
> This is a surprise to me. Because this case came up on appeal from a three
> judge court, I thought it was pretty likely
> <http://electionlawblog.org/?p=92651> the Court would take the case. A
> decision to affirm means the lower court got it right on the bottom line,
> even if the reasoning was incorrect.
>
> If my count is correct, this is Jim Bopp’s fourth attempt to get the Court
> to hear a soft money case to overturn one of the two main pillars of the
> McCain-Feingold campaign finance law (the Court overturned the other in *Citizens
> United*.) In one of those earlier attempts, Justices Kennedy, Scalia, and
> Thomas dissented from the Court’s refusal to hear the case.  And the Chief
> Justice has said that he feels an obligation to take appeals that come up
> through three judge courts. And we know that Justice Gorsuch expressed
> skepticism of campaign finance laws when he was a Tenth Circuit judge.
>
> So what explains the Court refusing to take a case which could have been
> used to further deregulate campaign financing, by extending the narrow
> views of corruption and strong reading of the First Amendment that the
> Supreme Court put forward in *Citizens United* and *McCutcheon*? And why
> did it take only one Court conference to reach this conclusion, when the
> Court has been taking so long with many other cases (in part as J. Gorsuch
> got up to speed on the Court’s cases)?
>
> This suggests to me that the Court has really no appetite to get back into
> this area right now—perhaps they want to save their capital in ruling on
> other high profile cases coming down the line. Perhaps there was something
> about Bopp’s petition that made the Court believe the issue of overturning
> the Supreme Court’s decision in *McConnell v. FEC* (upholding the soft
> money ban) not properly presented to it.
>
> This also tells us something about Justice Gorsuch. He was not shy at all
> — not only about being willing to wade into this very controversial area,
> but about announcing publicly his vote to hear the case (something he did
> not need to do). It could well be that he will be as conservative as
> Justice Thomas is in these cases. (Justice Thomas believes all campaign
> finance laws—including disclosure—should be subject to strict scrutiny and
> are likely unconstitutional.) I expect that unlike most Justices J. Gorsuch
> may not begin his first few terms cautiously, and then work his way up to
> his full Supreme Court voice.
>
> And that does this mean for campaign finance law? In one sense, this is a
> victory for campaign finance reformers, because the soft money ban lives
> for another day. This also means that the Court does not use this case as
> an opportunity to call other campaign contribution limits into question–so
> that’s a good thing from reformers’ point of view.
>
> On the other hand, we now have a situation where political parties
> (especially state and local political parties, the subject of Bopp’s
> petition) are limited in what they can do, while Super PACs and
> non-disclosing 501c4s can operate without limit, and in the case of c4s,
> without adequate disclosure. This further weakens the political parties,
> which many political scientists and election law scholars leads to further
> polarization and political dysfunction.
>
> Perhaps there would be room for some bipartisan reform in this area, if
> Mitch McConnell were not so difficult here. How about a trade?  Loosen the
> limits on party fundraising, and in exchange provide for greater campaign
> finance disclosure by all major players in elections, whether or not they
> choose to register as a c4.  I doubt McConnell would go for the trade but
> it would be a good deal all around.
>
>
>
> [This post has been updated.]
>
> [image: hare]
> <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D92665&title=Breaking%3A%20%23SCOTUS%20Declines%20Soft%20Money%20Case%3B%20Thomas%20and%20Gorsuch%20Would%20Vote%20to%20Hear>
>
> Posted in campaign finance <http://electionlawblog.org/?cat=10>, political
> parties <http://electionlawblog.org/?cat=25>, Supreme Court
> <http://electionlawblog.org/?cat=29>
>
>
>
>
>
>
>
>
>
> --
>
> 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 <(949)%20824-3072> - office
>
> 949.824.0495 <(949)%20824-0495> - fax
>
> rhasen at law.uci.edu
>
> http://www.law.uci.edu/faculty/full-time/hasen/
>
> http://electionlawblog.org
>
> _______________________________________________
> Law-election mailing list
> Law-election at department-lists.uci.edu
> http://department-lists.uci.edu/mailman/listinfo/law-election
>

-- 
Stephen M. Hoersting
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20170522/e2ceea3d/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image001.png
Type: image/png
Size: 2021 bytes
Desc: not available
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20170522/e2ceea3d/attachment.png>