The stay order: what law is in effect now, what happens next, and what are the implications for the merits?

What law is in effect now? It is as though the court never issued its 1600 page opinion; we go back to the BCRA as it was passed by Congress. The entire law is in effect, including those provisions struck down by all three judges such as the ban on campaign contributions by minors. Judge Leon's backup definition has come and gone; thus, the primary definition of "electioneering communications" goes back into effect. Political parties cannot raise or spend soft money (except to the extent they can find ways around the BCRA to do so).

What happens next? Any party to the litigation unhappy with this ruling can apply to Chief Justice Rehnquist for some sort of order staying enforcement of all or part of the BCRA. Who might do that? Likely not the NRA (who went to the Chief Justice last week to get the backup definition stayed), which at least for a while can its advertisements without running afoul of the primary definition's time constraints. But there are the Echols plaintiffs, who complained about the ban on contributions by minors. There are the James Madison Center plaintiffs, who want the entire BCRA stayed pending decision by the Supreme Court, and then there are the parties that gained from the lower court order most: the political parties. Will the California Democratic Party seek to get the BCRA soft money provisions stayed (at least those struck down by two judges below)? This is certainly possible. Will the Supreme Court grant some kind of stay? This is hard to predict. The Court might leave things alone pending its review on the merits. Or it might stay those portions of the BCRA that a majority of Justices believe likely will be upheld as unconstitutional. (The Chief is likely to refer any stay requests to the entire Court for decision.)

What are the implications on the merits? There is not much to read here on the ultimate merits of the disputes from the lower court decision to grant a stay. It does show that at least two of the judges realized the collective mess their split decisions made (though not the judge who made the most of the mess). The stay may take some pressure off the Supreme Court to decide the case on a more expedited schedule.

After due consideration of the motions, the oppositions, and replies, the relevant case law, and the pertinent Federal Rules of Civil Procedure, the Court is satisfied that a stay should be granted pending final disposition of these eleven actions in the Supreme Court of the United States. This Court’s desire to prevent the litigants from facing potentially threedifferent regulatory regimes in a very short time span, and the Court’s recognition of the divisions among the panel about the constitutionality of the challenged provisions of BCRA, counsel in favor of granting a stay of this case. Pursuant to Federal Rule of Civil Procedure 52(a) (“Findings of fact and conclusions of law are unnecessary on decisions of motions under Rule 12 or 56 or any other motion. . . .”), the Court deems no further discussion necessary to resolve these motions.

-- 
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