Congress Shall Make No Law...
June
29
8:02 PM
Supreme Court Rejects Challenge to Soft-Money Ban

In Citizens United v. FEC, the U.S. Supreme Court invalidated a major part of the Bipartisan Campaign Reform Act of 2002, also known as McCain-Feingold, which banned corporations and unions from running certain types of political advertisements close to elections.  Today the Supreme Court summarily rejected (.pdf) a challenge to another major part of McCain-Feingold, the so-called “soft-money ban,” which limits the amount of money that individuals may donate to political parties.  The case is Republican National Committee v. FEC, No. 09-1287.

 

Lovers of liberty needn’t worry.  As Professor Rick Hasen notes, the Court’s one-sentence order does not signal a reversal of its recent trend in favor of greater protection for free speech and against campaign finance laws.  Challenges to McCain-Feingold are subject to a special procedure—the cases are tried before a three-judge panel, and the losing party has a direct right of appeal to the Supreme Court.  What this means in practice is that if the Court rejects the case, as it did here, that counts as a summary affirmance of the three-judge panel’s opinion.  Because the Court does not provide the reasoning for the summary affirmance, the ruling is not necessarily an endorsement of the lower court’s decision

 

So what can we take away from the summary affirmance?  Not much.  We know that three Justices—Kennedy, Scalia, and Thomas—opposed the summary affirmance and would have had the case argued before the Court, presumably to reverse the lower court and strike down the soft money ban as it applied to the Republican National Committee.  Beyond that, the only take-away is that the soft-money ban has been granted at least a temporary reprieve.  But it will undoubtedly be subject to future challenges, and this summary affirmance does not foreclose the Court from holding the law unconstitutional in the next case to raise the issue.

 

Additional commentary from our friends at the Center for Competitive Politics is available here.