LAWMAKERS: Sen. John McCain and former Sen. Russ Feingold, sponsors of the Bipartisan Campaign Reform Act, in 2006. (AP / Lauren Victoria Burke)
Did the congressional drafters of the 2002 McCain-Feingold campaign-finance law build within it the seeds for its own destruction?
Tucked within the Bipartisan Cam­paign Reform Act (the formal name for “McCain-Feingold”) is a provision requiring that certain constitutional challenges to the law be heard by a three-judge court, with direct appeal to the U.S. Supreme Court. This special jurisdictional provision makes it much more likely that within the next few years the Supreme Court will strike limits on the amounts people and entities can contribute to the political parties in so-called party soft money.
If the court does so, it would be knocking down the second of McCain-Feingold’s two pillars. The court knocked down the first pillar—the limits on corporate and union spending—in the 2010 case Citizens United v. Federal Election Commission.
It may seem hard to believe that procedural rules for court challenges could make a difference as to the fate of campaign financing in the United States, but it matters. When a case comes up to the Supreme Court through the normal process of federal district court or state court decision followed by appellate court review, the losing side files a petition for writ of certiorari.
A Supreme Court decision to deny certiorari has no precedential value; no one can cite a certiorari denial as proof the Supreme Court believes the lower court got it right.
But in a rare set of cases (these days confined to certain campaign finance, redistricting and voting-rights cases) pursuant to federal statute are heard initially by a three-judge federal district court with direct appeal to the Supreme Court. In these cases, a court decision to affirm a three-judge court or to dismiss the appeal does count as a decision that the lower court got right, even if not necessarily for its reasoning. This fact makes it much more likely that the Supreme Court will hear such cases.
Justices have said the ­jurisdictional provision matters. Consider this exchange during the first of two oral arguments in Citizens United between former Solicitor General Ted Olson, arguing against the constitutionality of the law, and Chief Justice John Roberts:
Olson: I said at the beginning that this is an incomprehensible prohibition, and … I think that’s demonstrated by the fact that since 2003 this court has issued something close to 500 pages of opinions interpreting and trying to apply the First Amendment to federal election law. And I counted 22 separate opinions from the justices of this court attempting to—in just the last six years, attempting to figure out what this statute means, how it can be interpreted. In fact —
Roberts: Well, that’s because it’s mandatory appellate jurisdiction. I mean, you don’t have a choice. (Laughter.)
Indeed, in a new study I note that of the 29 election law cases the Roberts Court has considered, nearly half (14 of them) came up on mandatory appellate review. In contrast, the court has turned away some major election cases that it could have taken that have come up on certiorari petitions.
Perhaps it is no surprise, then, that the Republican National Committee recently abandoned a case challenging the limits on party fundraising contained in McCain-Feingold after a federal district court denied the party’s request for a three-judge court. But the RNC’s lawyer, campaign-finance opponent James Bopp, has now filed a new case on behalf of the Republican Party of Louisiana making a new facial challenge to the soft-money provisions of McCain-Feingold. To succeed, he would have to get the Supreme Court to hear the case and overturn what remains after Citizens United of the Supreme Court’s 2003 decision in McConnell v. FEC.
What makes it more likely that the Republicans will get a three-judge court this time compared to the last? At least some campaign lawyers believe a 2013 D.C. Circuit decision concerning who should hear a challenge to the constitutionality of the ban on federal contractor contributions makes three-judge courts mandatory in constitutional challenges to McCain-Feingold.
The Roberts Court has proved itself quite deregulatory in campaign-finance cases. It has struck down or narrowed severely every campaign-finance limit it has ever considered. Further, in the 2014 McCutcheon case, Roberts suggested a soft money ban is unconstitutional.
But the court has also proven itself willing to not hear every campaign-finance case to come its way. Twice, for example, it turned down certiorari petitions testing whether the ban on direct campaign contributions by corporations violates the First Amendment. In 2010, over the dissents of justices Anthony Kennedy, Antonin Scalia and Clarence Thomas, it turned down a certiorari petition in yet another case Republicans brought to challenge the soft-money rules
If the Republican Party of Louisiana is able to convince the courts this time that the three-judge court is the appropriate route to hear its soft-money challenge, then there’s a good chance the court will not only take the case, but will strike down what remains of McCain-Feingold.
If only reformers could get Congress to remove that jurisdictional provision, the soft-money limits in McCain-Feingold could be safe for at least a little while longer. But with Republicans in control of Congress and backing the soft-money litigation, there’s no chance of that.