Balkinization  

Sunday, June 27, 2010

The Supreme Court and "Majority Opinion:" Monday's Test in the Campaign-Finance Appeal

Rick Pildes

Amidst all the other Supreme Court action that will take place on Monday, Rick Hasen notes that the Court will have to decide whether to hear an appeal in a major new campaign-finance case, Republican National Committee v. FEC. The Court's decision poses an interesting test over current popular discussion concerning how responsive the Court is to "public opinion." The case is an as-applied challenge to the McCain-Feingold law's ban on political parties soliciting and spending "soft money," including money that corporations might donate to the parties. On the one hand, if the Court is highly responsive to public opinion, one might think the Court would want to stay away from hearing this appeal on the merits, based on the enormous controversy surrounding its recent decision in Citizens United. In that case, the prediction would be a summary affirmance. On the other hand, it's difficult to believe the necessary five or more Justices would be comfortable doing so. Justices Kennedy, Scalia, and Thomas, for example, dissented on this issue in the McConnell case. Especially in light of the fact that Citizens United already overruled other parts of McConnell, there is certainly reason to think that several Justices would like to hear this issue on the merits.

There is, however, at least one other option which would permit the Court to avoid the choice. The Court could write a brief opinion indicating that it is summarily affirming the decision below, but on the ground that the challengers did not ask for McConnell to be overruled. Thus, the Court would write to affirm the rejection of an as-applied challenge to the soft-money ban, while expressly leaving open a facial challenge in the future to that ban. If the Court does decide to hear the appeal, however, that would provide some evidence that the public and political response to Citizens United would not deter the Court from jumping back into these waters right away.

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