[Lnc-business] Proposed Petition for Certiorari in LNC v. FEC

[Oliver Hall]

Greetings,

The Chair has asked me to comment on the proposal to file a petition for 
certiorari in /LNC v. FEC/.

This case arises from Joseph Shaber's bequest of $235,000 to the LNC. 
Under federal law, the LNC is permitted to accept only $33,400 of that 
bequest per year for its general funds. In addition, the LNC is 
permitted to accept up to three times that amount -- /i.e./, $100,200 -- 
for each of three segregated funds. The three segregated funds are: 1) 
presidential nominating conventions; 2) party headquarters buildings; 
and 3) election recounts and other legal proceedings.

The LNC challenged those limitations on First Amendment grounds. The 
District Court certified the case to the D.C. Circuit Court of Appeals 
for determination en banc -- meaning by all judges of that court. The 
case raises three issues:

 1. Whether the contribution limits against the Shaber bequest violate
    the LNC's First Amendment rights;
 2. Whether the segregated fund contribution limits violate the LNC's
    First Amendment rights by restricting the purposes for which it may
    spend those funds (facial challenge);
 3. Whether the segregated fund contribution limits violate the LNC's
    First Amendment rights by restricting the purposes for which it may
    spend those funds (challenge as applied to Shaber bequest only).

In a split decision, a majority of the D.C. Circuit ruled against the 
LNC on all three issues. There were two dissenting opinions. In one 
dissent, Judge Katsas, joined by Judge Henderson, would have ruled for 
the LNC on the first issue. In the other dissent, Judge Griffith would 
have ruled for the LNC on the second and third issues.

The Supreme Court has never addressed the three issues raised in this 
case. Although the Court accepts very few cases for review, several 
factors suggest there is a reasonable chance it would accept this one.

First, the D.C. Circuit was split, with three judges ruling for the LNC 
on at least one issue. This is generally considered a compelling reason 
for seeking further review. Additionally, the D.C. Circuit's decisions 
were rendered along partisan lines: the judges in the majority were 
appointed by Democrats, and the dissenting judges were appointed by 
Republicans. If that dynamic held true at the Supreme Court -- a 
plausible if not probable result -- the case would be decided in the 
LNC's favor.

Second, the Supreme Court has decided several campaign finance cases in 
recent years, demonstrating its active interest in this area of the law. 
Further, the issues raised in this case are substantial, and this is the 
second time that the LNC has needed to litigate them. Arguably, 
therefore, the Court's intervention is needed, to provide the LNC and 
other parties with a final resolution of legal issues that are likely to 
arise again.

Third, this case was decided by the D.C. Circuit sitting en banc -- that 
alone speaks to its importance.

The Supreme Court is most likely to accept cases that involve a circuit 
split -- /i.e./, those in which federal circuit courts of appeal have 
reached conflicting decisions about the same issue of law. That factor 
is not present here because cases construing the constitutionality of 
federal campaign finance laws invariably arise from the D.C. Circuit. As 
such, the split among the judges of that court in this case might be 
viewed as analogous to a circuit split.

There are also reasons to believe the Court would not accept review of 
this case. Most likely, I think, is that the Court may find the issues 
raised are not sufficiently weighty, because relatively few people are 
impacted. The fact that the LNC is litigating these issues for the 
second time in recent years may dispel this concern.

The most significant benefits of seeking certiorari would be the 
opportunity to reverse the D.C. Circuit's negative decision, and to 
improve this area of campaign finance law going forward. Our attorney, 
Alan Gura, believes the case could have a broader impact, by deciding 
issues of more general applicability, such as the appropriate standard 
of review that applies to content-based restrictions on campaign 
contributions.

Apart from the printing costs and filing fees, which Mr. Gura estimates 
to be approximately $5,000 or more, I know of no detriment to filing a 
petition for certiorari. If the petition is denied, the only consequence 
will be that the D.C. Circuit's decision remains final, which is what 
the outcome will be if no petition is filed.

I am available for questions or further discussion.

Thank you,

Oliver

-- 
Oliver B. Hall
Special Counsel
Libertarian National Committee
202-280-0898