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New briefs ordered in campaign ad case

The Supreme Court on Friday ordered both sides to file new briefs on whether the Court may hear an appeal challenging restrictions on broadcast of ads to promote a critical campaign film about presidential candidate Hillary Rodham Clinton.  The order was issued in the case of Citizens United v. Federal Election Commission (07-953), involving a constitutional challenge to disclosure requirements as applied to the promotional ads the group has prepared for the film, “Hillary: The Movie.”  (See the post just below for the text of Friday’s briefing order.)

The briefs, no longer than 3,000 words, are to be submitted by both sides on Monday, March 10, with reply briefs by the following Thursday, March 13. That schedule means the briefs will be before the Court at its next Conference, on Friday, March 14.  The Court has yet to indicate whether it will hear the case on the merits or dispost of it summarily; it also has not yet said whether it will make that decision on an expedited basis. The issue posed in Friday’s order is “whether this Court has jurisdiction to hear the appeal” in light of a federal law allowing a direct appeal to the Justices “in any civil action, suit or proceeding required by an act of Congress to be heard and determined by a district court of three judges.”

The FEC, in a motion on Feb. 14 urging the Court to dispose of the case summarily, raised a question about the Court’s jurisdiction to rule on the case, saying that question was “not free from doubt.”

Federal campaign finance law provides for a direct appeal to the Supreme Court involving a constitutional challenge to campaign finance restrictions, when a three-judge District Court has issued a “final decision.”   But this case involves a ruling by such a District Court refusing to issue a preliminary injunction to clear the way for Citizen United’s promotional radio and TV ads about the Clinton film (the film itself is already showing in other venues).

The FEC response noted that federal appeals courts are to hear such denials of preliminary injunctions by District Courts “except where a direct review may be had in the Supreme Court.”  The law goes on to say that the Supreme Court may review a denial of a preliminary injunction if the case was required to be heard by a three-judge District Court — that is the section the Court cited Friday in seeking new briefing.  In the Citizens United case, that organization opted for a three-judge District Court, as it had a right to do, but was not required to do so.

Still, the FEC indicated that, even if it turned out that the Court did not have jurisdiction to review the Citizens United appeal at this point, it could do so after the District Court makes a final decision, or it could allow the case to go first through a court of appeals on the preliminary injunction question, and then return to the Supreme Court as a petition for certiorari, rather than as a mandatory appeal.

Either one of those latter options, if they should become the only ones available to Citizens United, would very likely be a frustration of its desire to get a quick ruling by the Supreme Court on the requirements imposed on its promotional ads; it has told the Supreme Court that, if the case is not decided by the Justices on an expedited basis, it will have lost anyway because it would not be able to broadcast the promotional ads to have an effect during the presidential primary election season that is now in full swing.

It is apparent, from the FEC’s recitation of the various review provisions, that the jurisdictional question the Court posed Friday is quite complex.  Here, in full, is the footnote in the FEC response that discusses these provisions:

“1. The question whether this Court has jurisdiction over the instant appeal is not free from doubt.  Under BCRA sec. 403(a)(1) and (3), 116 Stat. 114, suits challenging the constitutonality of any BCRA provision may be heard by a three-judge district court within the District of Columbia, and the three-judge court’s ‘final decision’ is reviewable by direct appeal to this Court.  For suits filed on on before December 31, 2006, that three-judge court procedure was the exclusive mechanism for pursuing a constitutional challenge to BCRA.  See BCRA Sec. 403(d)(1), 116 Stat. 114; cf. Wisconsin Right to Life, Inc., v. FEC, No. 04-5292, 2004 WL 1946452 (D.C. Cir. Sept. 1, 2004).  BCRA sec. 403(d)(2), 116 Stat. 114, states, however, that ‘[w]ith respect to any action initially filed after December 31, 2006, the provisions of subsection (a) shall not apply to any action described in such section unless the person filing such action elects such provisions to apply to the action.’  Appellant elected to have its suit heard by a three-judge district court.  See J.S. App 7a n.8.

“Under 28 USC 1292(a)(1), the courts of appeals have jurisdiction to review ‘[i]nterlocutory orders of the district courts’ granting or denying preliminary injunction relief, ‘except where a direct review may be had in the Supreme Court.’  This Court has jurisdiction to review the denial of a preliminary injunction ‘in any civil action, suit or proceeding required by any Act of Congress to be heard and determined by a district court of three judges.’ 28 USC 1253 (emphasis added).  This case was not ‘required’ to be decided by a three-judge court insofar as appellant could have presented its constitutional claims to a single-judge court.  On the other hand, under BCRA Sec. 403(d)(2), appellant was entitled to a three-judge district court as of right, and once appellant elected that option, BCRA ‘required’ that a three-judge court be convened to decide the case.  That may be sufficient to trigger the application of Section 1253.  If this Court were to determine that it lacks jurisdiction over the instant interlocutory appeal, the district court’s ‘final decision’ in the case would still be reviewable by this Court pursuant to BCRA Sec. 403(a)(3), 116 Stat; 114, and the grant or denial of preliminary injunctions by three-judge district courts in cases in which the plaintiff elects a three-judge panel would be reviewable in the court of appeals (and in this Court via a petition for certiorari).”