Federal Judiciary

New Citizens United sequel?

By Lyle Denniston

A Washington State conservative advocacy group, seeking to play a role in ballot measure campaigns in its state, on Friday asked the Supreme Court to clear the way for it to raise unlimited funds to pay for its efforts.  Its attack on a Washington state law that puts a $5,000 limit on contributions to ballot measure committees in the final three weeks before an election could become a significant sequel to the Court’s controversial ruling last January in Citizens United v. Federal Election Commission.

The stay application (Family PAC v. McKenna, et al., 10A357) is here, and the appendix, including a Ninth Circuit Court order on Tuesday that is under challenge, is here.  The application has been filed with Justice Anthony M. Kennedy as Circuit Justice for the Ninth Circuit; on Fridiay afternoon, Kennedy asked for a response from Washington State officials by noon Monday.  He can act on the application alone, or share it with the other Justices.

Family PAC is a political committee, under Washington State law, that was organized in 2009 to try to influence voters to repeal a state law giving same-sex couples the same legal benefits that opposite-sex couples get through civil marriage, but not marriage itself.  That challenge failed, but Family PAC was unable to play any role in that campaign because its legal challenge to the $5,000 limit on contributions it could raise was blocked by a federal judge.

The judge concluded that the challenge had arisen so late in the campaign that year that it would be disruptive to lift the ceiling at that time.  Later, however, the judge struck down the $5,000 ceiling on donations to political committees.

Washington State officials then asked the Ninth Circuit to stay the judge’s ruling, pending an appeal.  The Circuit Court did issue a stay, leading Family PAC to take the dispute on to Justice Kennedy and the Supreme Court.

The Ninth Circuit said in its order Tuesday that the outcome of the case on the $5,000 limit depends on what level of scrutiny the law would have to satisfy to survive.  While noting that the Supreme Court had said in the Citizens United decision that limits on political speech would have to satisfy the highest standard — strict scrutiny, the Ninth Circuit noted that the Supreme Court had not overruled its 1976 decision in Buckley v. Valeo setting a somewhat lower level of analysis (“exacting scrutiny”).

The state’s attorney general, the Ninth Circuit said, had made “a colorable argument that this court should continue to apply exacting scrutiny to contribution limits…and therefore has made a substantial case on the merits of his appeal.  That showing is sufficient to warrant a stay of the district court’s order, as the equities lie heavily in the state’s favor.”

The Circuit Court said that Family PAC had not identified any contribution above the $5,000 ceiing that it expected to receive if the law were overturned, and has not disclosed what plans, if any, it has for the coming election.

In its Supreme Court filings asking that the Circuit Court’s stay be lifted, Family PAC said that it is interested in an income tax measure, Initiative 1098, that is on the 2010 ballot in Washington State.  Because of the stay, it cannot make plans now, it argued. 

On the merits, it told Justice Kennedy that the ceiling imposed in Washington State on ballot measure committees “is identical to the contribution limit found unconstitutional” in a 1981 Supreme Court decision (Citizens Against Rent Control v. Berkeley).

Full post as published by SCOTUSBLOG on October 08, 2010 (boomark / email).