| Subject: Appeal in Maine campaign finance case |
| From: Rick Hasen |
| Date: 5/12/2006, 3:58 PM |
| To: election-law |
Lyle Denniston has this post on SCOTUSBlog about the appeal I noted was on the way in the Maine campaign finance case. Allison Hayward links to the jurisdictional statement. Lyle notes that the petitioners ask for an expedited briefing schedule, with oral argument requested for later this month.
My prediction: the Supreme Court will not take the case at this point. This case is an attempt to make an end-run around the remand in the Wisconsin Right to Life case, which raise the question whether a corporation may bring an as applied challenge to the rule in McCain-Feingold barring corporations from using general treasury funds to pay for electioneering ads. (In WRTL, plaintiffs claimed that its ad, which mentioned Sen. Feingold while he was running for reelection in Wisconsin, was about the issue of judicial nominations and not about Feingold's election, and therefore the McCain-Feingold rule could not be constitutionally applied to its corporate spending on the ad).
In WRTL, the Supreme Court unanimously agreed to send the case back to a three-judge D.C. court to decide whether as applied challenges may be brought and, if so, what the standard should be for determining when an ad is a "genuine issue ad" for which an as applied challenge should be successful. When Jim Bopp, the lawyer in the WRTL case could not get the lower court to expedite consideration of his case on remand, he brought this new case, raising the same issue in the context of a television advertisement to be run in Maine mentioning Sen. Snowe (up for reelection). The three judge court recently denied the request for a preliminary injunction in the case. It is this denial that is now before the court.
In the earlier WRTL case, Bopp tried the same approach of appealing to the Supreme Court the denial of a preliminary injunction. Chief Justice Rehnquist denied the request for a preliminary injunction, noting the high bar to get such an injunction overturned on appeal and the presumption of the constitutionality of federal statutes. The Court is likely to follow the same path again. Having put off the issue in the WRTL case, knowing it will be back before the Court in all likelihood next term, I find it difficult to believe that the Court will decided to plunge forward with this case, without a developed factual record (as in the WRTL case) on an expedited schedule. But I've been wrong before. We'll see.-- Rick Hasen William H. Hannon Distinguished Professor of Law Loyola Law School 919 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 http://electionlawblog.org