Subject: Re: BCRA on the Supreme Court's agenda Thursday, sort of
From: Rick Hasen
Date: 5/13/2003, 4:57 PM
To: election-law@majordomo.lls.edu
CC: Roy Schotland <schotlan@law.georgetown.edu>, "Lowenstein, Daniel" <lowenste@mail.law.ucla.edu>


In response to my suggestion of a motion to expedite consideration of the BCRA case in the Supreme Court, Roy Schotland asks here whether we might be better off "not expediting, and so having argument when Term opens in order to assure that SupCt has plenty of time to ruminate and vent before argument." Dan Lowenstein agrees, writing: "The Supreme Court now could make one side or the other side or neither side happy by staying all, part, or none of the District Court's ruling, and we could all live with that through the 2004 election. In addition to the advantages Roy mentions of enhanced judicial deliberation, the problem of changing the rules while the game is being played would be minimized."

I disagree that the advantages of waiting outweigh the disadvantages.

(1) Congress directed that the courts expedite this case. The only reason we are in this mess now is because the lower court failed to follow Congress's instructions. As complicated as this case is, the case did not require 1,600 pages of opinions, with three judge issuing four opinions. For months before the decision I publicly urged the parties to seek mandamus in the Supreme Court directing the lower court to issue its opinion and move on. The lower court took too long. But that does not relieve the Supreme Court of it's independent duty to expedite matters.

(2) The 2004 election season is getting underway now (with Democratic presidential nominees beginning fundraising activity). But things will really heat up in the fall. A ruling in summer or early fall will allow the country to function under rules that Congress crafted to take effect in the 2004 election season (or under some alternative of the rules as the Supreme Court's constitutional analysis will allow).

(3) To the extent that there are serious constitutional problems with the BCRA as interpreted by the three judge court (as I believe there are with Judge Leon's rulings on issue advocacy), waiting for a ruling without a stay in place will impose significant constitutional costs on the parties. Other stay options impose similar risks of constitutional problems.

(4) To the extent there is delay for delay's sake, it allows the opponents of BCRA to run out the clock in the hopes of a retirement by a Supreme Court justice favoring reform in favor of a Bush appointee likely to be more hostile to BCRA.

My alternative I am sure that the parties are already working on their briefs on the merits in the Supreme Court. The parties do not need more time to develop arguments or evidence. Given the number of parties and the various positions, the Court should set a special simultaneous briefing schedule, with opening (enlarged) briefs (and amicus briefs) filed at the beginning of June and reply briefs filed two weeks later. The Court could then set argument before the end of the term. At that point, the Court can best determine how much it can expedite the drafting of the opinion given the summer recess.

Rick

Roy Schotland wrote:
Query Rick's "hope to see the government defendants, the BCRA sponsors, and/or the Adams' plaintiffs move to expedite consideration."
    a) What's the minimal time youall believe appropriate for briefs, reply briefs ... and for the Court to read them?
    b)  In Buckley, CtAppeals decision came down Aug 15, SupCt argument was Nov 10 and decision was Jan. 30.  (How much better off we'd be if the BCRA lower court had drawn upon the Buckley lower-court's schedule and process-- see appendix to CtApls decision.)
    c)  There are obvious advantages to getting SupCt decision ASAP.  But maybe some disadvantages too?  What of the possible advantages in not expediting, and so having argument when Term opens in order to assure that SupCt has plenty of time to ruminate and vent before argument?  Also, by then they could have an infinity of pages from Hasen et al that, in all seriousness, would add value to whatever they get in the briefs.
    Onwards!  roy

Rick Hasen wrote:

  I understand from conversations with a reporter that the Supreme Court has two BCRA items on its agenda when it meets on May 15. These are motions from the McConnell plaintiffs and from the government defendants to dispense with the printing of the lower court opinion as an appendix. Given the bulk of the opinion and its easy accessibility, this seems like a reasonable request. Apparently not on the agenda is McConnell's request to have his typewritten jurisdictional statement accepted in lieu of the usual printed document. (Why didn't McConnell just print up his jurisdictional statement? As I noted here McConnell filed his papers within hours of the 1600 page decision likely to gain the advantage (such as it is) of being the first named plaintiff (now appellant) in the Supreme Court.)
 

Also apparently not on the agenda is any consideration of expediting consideration of the appeal. Why not? As I indicated here, the Court appears to be waiting for a party (or all the parties) to file a motion to expedite consideration of the case. I hope to see the government defendants, the BCRA sponsors, and/or the Adams' plaintiffs move to expedite consideration. 

-- 
Rick Hasen
Professor of Law and William M. Rains Fellow
Loyola Law School
919 South Albany Street
Los Angeles, CA  90015-1211
(213)736-1466
(213)380-3769 - fax
rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html

--
Roy A. Schotland
Professor
Georgetown U. Law Ctr.
600 New Jersey Ave. N.W.
Washington, D.C. 20001
phone 202/662-9098
fax        662-9680 or -9444
 


-- 
Rick Hasen
Professor of Law and William M. Rains Fellow
Loyola Law School
919 South Albany Street
Los Angeles, CA  90015-1211
(213)736-1466
(213)380-3769 - fax
rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html