Court to hear campaign ads cases, six other cases
on Jan 19, 2007 at 4:02 pm
Returning to the much-litigated controversy over political campaign ads broadcast during election season, the Supreme Court on Friday agreed to rule on two cases that newly test the constitutionality of congressional curbs on such ads. In a brief order, the Court granted review of Federal Election Commission v. Wisconsin Right to Life (05-969) and McCain, et al., v. Wisconsin Right to Life (06-970). (The FEC’s appeal is here; the appeal of McCain, et al. is here; and Wisconsin Right to Life’s response is here.) The cases were consolidated and expedited so that the cases can be heard and decided during the current Term — well in advance of the opening of the presidential campaign in 2008. Because there is a potential issue of mootness in the case, the Court postponed a decision until the hearing on whether it does, indeed, have jurisdiction to rule.
The Orders List can be found here.
The Court also granted review on Friday of six other cases. Apparently, all of those cases will be heard and decided during this Term; that would indicate that the Court may hold hearings in three or more cases on some days during its April sitting, rather than the more common two-per-day.
The Court, among other cases, stepped into a constitutional controversy over the right of a congressional staff member to sue a lawmaker over personnel policy. That case involves a lawsuit against the office of former Minnesota Democratic Sen. Mark Dayton. The Court added to its review of that case new questions about the right to appeal and mootness. The issue raised in the appeal by Dayton’s office is whether the Constitution’s Speech or Debate Clause bars a federal court from hearing a congressional employee job rights claim, when the employee’s duties are part of the legislative process. Since Dayton’s term has ended, and he is no longer a Senator, his office suggested that the case was moot. The Court will consider that as it reviews the case overall. The case is Dayton v Hanson (06-618).
The campaign ad cases are sequels to the Court’s 2003 decision upholding the ban on so-called “electioneering communications.” However, it made clear in a summary ruling a year ago that that decision involved only a facial challenge and “did not purport to resolve future as-applied challenges.” The new appeals involved just such as-applied challenges, to the threat of FEC prosecution of Wisconsin Right to Life over three ads that group prepared to air during the 2004 senatorial campaign. A three-judge U.S. District Court in Washington, D.C., in a decision Dec. 21, ruled that the “electioneering communications” ban was invalid as applied to those specific ads.
The ban forbids corporations and labor unions from using their own in-house funds to pay for broadcast ads that mention in any way a federal candidate, if the ad runs 30 days before a primary election or 60 days before a general election. Wisconsin Right to Life’s planned ads would have mentioned Wisconsin Democratic Sen. Russ Feingold, who was running for reelection in 2004, in ads that discussed Senate filibusters of judicial nominees.
The Court ordered all briefing in the two cases to be completed by April 18. It did not set a date for hearing the cases, but that is likely to be late in the sitting that begins Monday, April 16. The parties had suggested a hearing on the final day of scheduled hearings, April 25.
Here, in brief, are summaries of the issues in the other cases the Court agreed on Friday to hear:
06-8120, Brendlin v. California: if police stop a car along the highway, does that result in detention of the passengers in the vehicle, for Fourth Amendment purposes, thus allowing them to contest the legality of the original stop. A divided California Supreme Court ruled that a Fourth Amendment violation resulting from an illegal traffic stop may be challenged only by the driver, not any passenger, since the passenger has not been “seized.”
06-562, U.S. v, Atlantic Research Corp. (Petition): a test of the scope of a right to sue for a company that is responsible for a hazardous waste deposit that seeks to share the cleanup costs with others. The case is specifically about the right to sue under Section 107 of the so-called Superfund law, a question that the Court had left unanswered in 2004 when it barred a cost-recovery lawsuit under another Superfund provision, Section 113.
05-1448, Beck. Trustee, v. PACE International Union (Petition, BIO, Reply): does a company that sponsors its own pension plan have a legal duty to consider merging it with another plan as a way to end the plan while carrying on the benefits.
05-85, Powerex Corp. v. Reliant Energy Services (Petition, Plaintiffs and Respondents in Opposition, Reply, Supp. Brief of Petitioner): a test of whether a foreign company owned by a Canadian province and doing commercial business in the U.S. is to be treated as an organ of a foreign government, and thus entitled to have legal claims against it heard in federal not state court. The Court added to this review the question of the Ninth Circuit Court’s jurisdiction to review a remand order by the District Court.
06-134, India Permanent Mission to the United Nations v. New York City (Petition, BIO, Reply): whether foreign embassy properties used as diplomats’ residence are immune to property taxes assessed by the local New York City government.
