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Court returns to campaign finance issues

The Supreme Court, granting review of 11 new cases for the Term that opens formally on Oct. 3, on Monday stepped back into the lingering controversy over government restrictions on election campaign financing. It will hear two new cases in that area — including a highly significant test of government power to put limits on how much candidates may spend, not how much donors may give to them. The other case challenges federal restrictions on corporation and labor union spending on ads close to election day. The Court has already upheld those restrictions as written, but the new case tests them when applied to specific factual situations.

The Court took no action Monday on a major new case arising out of the war on terrorism — a test of the constitutionality of President Bush’s creation of military commissions to try war crimes cases against foreign nationals. The fate of that case (Hamdan v. Rumsfeld, 05-184) may be determined next Monday, when the Court next issues orders.

In the most important of the business cases accepted for review, the Court said it would consider the constitutionality of tax breaks that states, counties and cities give to businesses to entice them to keep their plants where they are, or to expand them. That case, though, might not be decided on the merits, since the Court added a question on whether Ohio taxpayers had the legal right (“standing”) to challenge the investment tax credits at issue. The Sixth Circuit ruled that the Ohio tax credits discriminated against other states’ attempts to attract business. (The combined cases are DaimlerChrysler v. Cuno, 04-1704, and Wilkins v. Cuno, 04-1724).

The Court also took on a new case on securities laws, agreeing to decide whether investors may sue for fraud in a class action lawsuit based on state law, if the claim is only that they were induced to hold onto their stocks, not to buy or sell (Merrill Lynch v. Dabit, 04-1371).

One of the more unusual grants involves a question of federal court jurisdiction that Circuit Judge Richard Posner has called “one of the most mysterious and esoteric branches of the law of federal jurisdiction.” The case tests whether the “probate exception” to federal court jurisdiction bars those courts entirely from deciding estate-settlement cases, usually reserved for state courts. The Court last ruled on that exception in 1946.

That new case is Marshall v. Marshall, 04-1544. While the legal issue may attract the attention of lawyers, judges and academics, the case is likely to get wider public notice, since the appeal was filed by Anna Nicole Smith, an erotic performer and model, who filed it in her name Vickie Lynn Marshall. She is the widow of a Texas billionaire, J. Howard Marshall II; she is involved in a long-running estate dispute with Marshall’s son, Pierce.

The new cases to be heard include four on criminal law issues:
** The power of federal judges to dismiss a habeas petition as too late when a state has waived any objection to a tardy filing by a prison inmate (Day v. Crosby, 04-1324).
** The reach of the Fourth Amendment as applied to an “anticipatory search warrant,” allowing a search by officers when a future event occurs. The issue is whether such a warrant is invalid if it does not spell out when the warrant is to be served, and the suspect is not given an affidavit showing that time when the search is carried out (U.S. v. Grubbs, 04-1414).
** In another Fourth Amendment case, the issue is whether police are barred from carrying out a warrantless seardch of a person on parole, when there is no suspicion of criminal wrongdoing so parole status is the sole reason for the search (Samson v. California, 04-9728).
** The validity of a South Carolina rule barring evidence that someone else committed the crime, if that does not create an indication of innocence, when compared to the prosecution’s evidence (Holmes v. South Carolina, 04-1327).

The other two new cases raise these issues:
** The right of states to get reimbursed for their Medicaid benefit payments when the person receiving those benefits gets money in settling a personal injury lawsuit (Arkansas Department of Human Services v. Ahlborn, 04-1506).
** Local governments’ duty to make added efforts to contact a property owner who owes taxes, when a notice of a tax sale is returned undelivered (Jones v. Flowers, 04-1477).

The Court’s actions on Monday on new campaign finance cases were a mixture of a predictable grant, and a surprise grant.

It seemed almost a certainty that the Court would hear three consolidated cases from Vermont, raising the fundamental issue of whether the Court will continue to forbid government to put any ceilings on campaign spending, as opposed to campaign contributions. Since the ruling in 1976 in Buckley v. Valeo, appearing to forbid all curbs on spending though the Court has never said that explicitly, the issue has still seemed somewhat unsettled. In the Vermont cases, the Court will confront the issue directly.

The three cases involve mandatory ceilings on candidates’ spending, and those restrictions thus raise the core issue of First Amendment rights of candidates. The Second Circuit ruled a year ago that the Buckley decision did not bar all spending ceilings.

The case also will test what types of government policy interests would justify curbing spending, if such curbs will be allowed as a constitutional matter.

The new cases are Randall v. Sorrell (04-1528), Vermont Republican State Committee v. Sorrell (04-1530), and Sorrell v. Randall (04-1697). All were granted, with one hour of hearing on the three.

The federal case, bringing back to the Court a key part of the Bipartisan Campaign Reform Act of 2002, gained review in the face of a government argument that the new challenge ran counter to the Supreme Court’s 2003 decisioin upholding that provision against a facial challenge. The as-applied challenge had been rejected in U.S. District Court, which said that the Supreme Court’s 2003 ruling “leaves no room for the kind of challenge” raised in the case. (The case is Wisconsin Right to Life v. Federal Election Commission, 04-1581).

The provision forbids corporations (and labor unions) from using general funds to pay for any campaign statement that refers to a candidate for federal office and is broadcast within 30 days of a federal primary election or 70 days of a federal general election in the area where that candidate is running. It applies to Wisconsin Right to Life as a non-profit corporation.

(The author of this post apologizes for the tardiness in reporting the Court’s orders. Those orders were released publicly well in advance of the time expected and planned, for reasons unknown to the author.)