UPDATE: The Supreme Court on Monday afternoon denied a request from a Maine group to speed up the Justices’ consideration of a constitutional challenge to federal limits on broadcast of a message opposing same-sex marriage during the month prior to Maine’s primary election for a U.S. Senate seat on June 13. The Court’s order reads: “The motion of appellant to expedite consideration of the appeal and to consolidate briefing is denied.”
As a result, the Federal Election Commission’s response to the appeal is due June 12. Monday’s order, plus the Court’s likely conclusion of its current Term near the end of June, very likely means that the case will go over to the new Term starting Oct. 2. By then, it could be moot, or there could be a new appeal later, after further proceedings in U.S. District Court. The Maine group involved has said it plans to run similar broadcast messages during the general election campaign this Fall. (The following is an earlier post on the case.)
Solicitor General Paul D. Clement on Monday opposed expedited review of a new appeal challenging the constitutionality of federal limits on broadcasts of so-called “grass roots lobbying” in the pre-election season. The opposition urged the Court to let the case of Christian Civic League of Maine v. Federal Election Commission (05-1447) play out on the usual schedule, meaning it probably would not come up for review until the new Term starting Oct. 2.
Also joining in opposing the speedy review of the case were two U.S. senators and three members of the House of Representatives, proponents of campaign finance laws who have been in the case in lower courts as intervenors. They argued that “nothing in this case justifies” the “extraordinary action” of swift review and a decision.
Attorneys for the Maine organization had asked the Court to put their appeal on a fast track, with only one round of briefs, and with a prompt hearing. The request included a plea for the FEC to file its response on the merits by Wednesday of this week.
The Solicitor General’s response argued that the group would be free to broadcast its Maine message targeting same-sex marriage after the Senate primary election in that state on June 13. So, it said, the District Court’s denial of a preliminary injunction “is likely to become moot” before the Court court rule on the merits, unless there was unusual expedition of Court review.
“The Court,” Clement argued, “has no obligation to reorder its calendar and issue a decision in this case under the extraordinarily expedited schedule proposed by CCLM simply to ensure that the appeal of an interlocutory order in the case is decided while a live controversy remains with respect to the validity of the district court’s preliminary injunctiion….No statute requires the Court to expedite its consideration of the interlocutory appeal in this case.”
Thus, Clement said, the Court should deny the motion to expedite and consolidate briefing “and permit the FEC to respond to CCLM’s jurisdictional statement in the ordinary course.” Any ruling on as-applied challenges to the federal law’s restriction on “electioneering communications” would be likely to spell out general standards for such challenges, he added, and the parties if pushed to act rapidly would be likely to brief those issues in truncated form. The Court would have only a narrow window of time — less than three weeks — to hear orgal argument and issue a decision “during what is otherwise one of the busiest times of the Court’s year,” he said.
In addition, the Solicitor General said that, even if expedition is denied, the Maine group may still ask the District Court to provide relief after further facts are developed. Thus, he argued, “this Court should await a case in which the record concerning the communications at issue has been fully developed, and the Court is able to engage in its customary decisionmaking process rather than the truncated procedure proposed by CCLM.” The choice, he said, “is not between now and never, but between orderly review in due course or rushed proceedings at an interlocutory stage.”
The government filing suggested that the particular advertisement in question, promoting a federal constitutional amendment against same-sex marriage and specifically mentioning Sen. Olympia Snowe, a Republican seeking reelection and appearing in the state’s June 13 primary, was “designed so as to create a test case” by triggering the federal law’s ban on corporate financing of such communications. It notes that the Maine league agreed to put on the ad after the message was composed by a related group, Focus on the Family, and after Focus on the Family had sent out e-mails to the League and other organizations to recruit them to mount legal action.
The five members of Congress who joined in opposing fast-track review also related for the Court the story of how the ad in question had been the result of an attempt to create a test case, “thus undercutting any claim of significant injury.” The lawmakers said that the Focus on the Family e-mail to various organizations had included an attachment from a lawyer, offering to pursue the case “at no charge” and anticipating an appeal to the Supreme Court, resulting in “a landmark ruling.”
Later Monday, the League filed its reply, accusing the FEC and the lawmakers of engaging in manipulation of the federal courts tp scuttlling any litigation over the communications blackout provision to “grass roots lobbying” broadcasts. The other side, it said, wants the case to be allowed to become moot and then allow it to proceed further in District Court. Calling the tactic “bait and switch,” the League said that, “if tolerated,” it “would put citizen groups in an endless loop of being mooted but never ripe in their efforts to obtain this Court’s constitutional judgment on this important public issue.”
With that reply in hand, the Court is expected to respond promptly to the question of expediting the case.
CLICK HERE FOR FULL VERSION OF THIS STORY