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

[Joe Bishop-Henchman]

I support proceeding with a cert petition. I have to little to add to 
Mr. Hall's analysis, which is sound.

The difficult barrier will be whether the Supreme Court agrees to hear 
the case, which is entirely discretionary on their part. Odds go up if 
we get lots of other organizations to file amicus briefs asking the 
Court to take the case, and campaign finance cases tend to attract lots 
of those in addition to whatever we would drum up ourselves. If they do 
accept it, the odds are very good that we then win. The FEC's 
pronouncements in this area are bananas, make no consistently logical 
sense, and greatly hobble our ability to compete with the other two 
parties. Dispensing with them would make life easier for us and our 
fundraisers should the circumstances of this case ever reoccur.

JBH

------------
Joe Bishop-Henchman
LNC Member (At-Large)
joe.bishop-henchman at lp.org
www.facebook.com/groups/189510455174837

On 2019-05-23 15:31, Oliver Hall via Lnc-business wrote:
> 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