Court urged to reject campaign ad appeal
on Mar 12, 2008 at 1:22 pm
UPDATED 2:50 p.m. with links to the new briefs
The Justice Department urged the Supreme Court this week to find that it has no authority to hear an appeal challenging restrictions on broadcast of ads to promote a critical campaign film about presidential candidate Hillary Rodham Clinton. In a new brief, filed Monday, Solicitor General Paul D. Clement contended that the appeal in Citizens United v. Federal Election Commission (07-953) should be heard at this stage by the D.C. Circuit Court because, Clement contended, the Supreme Court simply has no jurisdiction. Clement also said that Citizens United still had time — until next Monday — to file an appeal at the Circuit Court to keep its case alive.
If the Court chooses not to reject the appeal on jurisdictional grounds, Clement suggested, it still should not hear the case, but should throw it out “for lack of a substantial federal question.” The government’s new brief can be downloaded here.
Citizens United, by contrast, argued in a new brief — also filed on Monday — that the Supreme Court clearly has jurisdiction, and should proceed to accept the case and rule on it; it has asked that the case be expedited, arguing that its opportunity to broadcast the film-promoting ads would be totally lost unless the Court acts quickly. Citizens United said that Congress had set up a system of direct appeals to the Supreme Court in campaign finance cases, because this is “an especially-sensitive area” tied to First Amendment rights of political speech. The group’s supplemental brief can be downloaded here.
A three-judge District Court in Washington refused a plea by Citizens United to block federal restrictions on ads the group plans to broadcast to promote its film, “Hillary: The Movie.” The organization plans a similar, critical film about president candidate Barack Obama. Citizens United has taken a direct appeal to the Supreme Court from the denial of its request for a preliminary injunction.
The two supplemental briefs were filed in response to an order by the Justices last Friday, asking counsel to advise the Court on whether it does have jurisdiction to proceed with the case That apparently was a response to the federal government’s suggestion earlier that the Court’s authority to hear the case was “not free from doubt.”  Both sides now have the opportunity to file replies on Thursday to each other’s jurisdictional arguments. It is unknown when the case will go to a Conference of the Justices.
 The Solicitor General, in the new brief, hardened the government position somewhat from its earlier stance, laying out a flat argument that the Citizens United case is beyond the Court’s reach at this point. Once the three-judge District Court reaches a final decision on Citizens United’s constitutional challenge to restrictions on the ads, that ruling could be appealed directly to the Justices, Clement said. In the meantime, the preliminary injunction issue should go to the Circuit Court.
 The jurisdictional dispute between the two sides of the case focuses on the interpretation of a federal law, 28 U.S.C. 1253, that allows a direct appeal to the Justices “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.”
