Move to speed political case
on Apr 18, 2010 at 11:12 am
A group of conservative political activists, putting new pressure on the Obama Administration to make up its mind on taking a new campaign finance case to the Supreme Court, on Friday asked the D.C. Circuit Court to put into effect immediately its ruling in that case — SpeechNow.org, et al., v. Federal Election Commission (Circuit docket 08-5223). The motion to issue the mandate swiftly can be found here.
If the Circuit Court agrees to issue the mandate immediately, the case will return to U.S. District Court, likely leading to new court orders freeing the SpeechNow organization and its leaders to start raising money in unlimited amounts to support or oppose candidates in the coming congressional election primaries and the general election Nov. 2. In addition, the FEC itself would begin crafting new rules, presumably to accommodate that fund-raising. Those developments, however, would be delayed, or at least altered, if the Solicitor General pursues an appeal in the Supreme Court.
In a unanimous ruling in March, the en banc D.C. Circuit struck down as unconstitutional a federal ceiling on contributions to independent political groups that want to spend money directly to support or oppose candidates for Congress and for the presidency. The ruling significantly broadened the impact of the Supreme Court’s controversial ruling in January in Citizens United v. FEC, extending its constitutional reasoning from limits on campaign spending to restrictions on campaign donations.
The FEC has the option of asking the Circuit Court to reconsider that ruling, but since the decision was issued without dissent by the full Circuit bench, there is almost no chance such a plea would be granted. It is up to the Solicitor General, not the FEC, to make the decision on whether to file a petition for review (certiorari) in the Supreme Court to challenge the decision. Under Supreme Court Rules, the government has until June. 24 to file such a petition. If the Circuit mandate comes down quickly, however, follow-up procedures before a federal judge and before the FEC would soon get underway, unless the SG asks and obtains a Supreme Court order to delay the ruling while the government appeals.
Given how strongly the Obama Administration has protested the Citizens United ruling, it seems quite unlikely that it will be content to leave the Circuit Court’s SpeechNow decision unchallenged, especially since it marks a major constitutional shift in campaign finance law and opens the way for many more millions of dollars to flood intoi the congressional campaign and into future presidential campaigns. Moreover, the SG seldom fails to defend the constitutionality of a federal law that has been nullified by a lower court.
When the Circuit Court issued its ruling on March 26, it simultaneously issued an order withholding the implementing order — that is, the mandate — until seven days after any party sought re-hearing. The mandate apparently is now scheduled to be issued no earlier than May 17. The Court, however, noted that any party could “move for expedited issuance of the mandate for good cause shown.”
On Friday, SpeechNow and its leaders and major potential donors filed such a motion. The congressional primary season “is now upon us,” the motion said, and the group is now eager to “speak for and against candidates” running in those primaries. Two states – Illinois and Texas — have already had their primaries, it added, and 23 others are due to do so “between now and June 8.” If the mandate is not issued now, the motion added, it would not come down until mid-May.
“Even after the mandate issues, there will be additional proceedings in the District Court before a final judgment issues that allows” SpeechNow’s political operations  to get underway, the motion said. Further practical steps would then have to be taken by SpeechNow to actually start paying for broadcast advertisements seeking to influence election outcomes.
“In light of this Court’s decision holding that [SpeechNow and its donors] have a First Amendment right to raise funds in unlimited amounts to finance their advertisements, the public interest is plainly served by allowing the proceedings on remand to go forward as quickly as possible,” the motion argued.
While the motion said that the FEC had notified SpeechNow’s lawyers that it was opposed to immediate issuance of the mandate, the motion contended that there was little chance that FEC could get reconsideration even if it decided to seek it.
In the meantime, the FEC on Thursday released a schedule of its plans in coming months to take up potential new rules on campaign finance. If the Solicitor General does not seek to take the SpeechNow case to the Supreme Court, the Commission noted, it would take up rulemaking issues related to that case during proceedings that could start in July. The agency would consider possible rules, and invite public comment on them, over the summer months, and then vote on final issues beginning in October. That likely would mean any new rules related to SpeechNow would not be finished until shortly before the Nov. 2 general election, if then.
(Thanks to Rick Hasen of Election Law blog for alerts on developments in this case.)
