Vermont Campaign Finance Ruling
on Jun 16, 2005 at 1:01 pm
Rick Hasen updates his earlier thoughts here and here on the Vermont campaign finance case. (This earlier post by Lyle has the questions presented.) Rick, who is an expert in the field, believes that cert. is likely to be granted. FWIW, my view is that cert. should be granted, in the sense that it would help provide needed clarity to the law, but that it’s very, very unlikely the Court will in fact take the case (notwithstanding the broad agreement of parties to the case that it should be heard), for a reason that Rick mentions in one of his posts. The court of appeals acknowledged a circuit split over whether spending limits could be constitutional. But it remanded to determine whether the Vermont statute survives constitutional scrutiny. So, the upshot is that the district court may rule for the plaintiffs on remand and invalidate the spending restriction, leaving no conflict in the outcome. Moreover, the opinions respecting the denial of en banc review strongly suggest that rehearing en banc would be granted if the restrictions were sustained on remand, permitting the Second Circuit itself to revisit the question presented by the petition and possibly eliminate the conflict. This is moreover not an area of the law in which the Justices have seemed to be interested in entering unnecessarily. Again, I think that the Court would be well served to hear the case; I just don’t think it will do so. [Disclosure: one of the parties has asked me for my views on the prospects for cert. in the case (albeit not in confidence); this post is a summary of what I told them.]
UPDATE: Rick Hasen has valuable further thoughts here about what a cert. grant would actually mean for those who support campaign finance reform and actually are supporting cert. despite their victory below. Rick’s uncertainty about what Justice O’Connor would do in such a case (as I said before, he’s the subject matter expert; I’m out of my league on how the case would come out) may well be shared by the other Justices. That fact, plus the anticipated retirement of the Chief Justice (who Rick counts as a merits-based vote to grant cert. and reverse), reinforces my bet that the Court will regrettably deny cert.
