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

[Tim Hagan]

If the Supreme Court does accept the case, what do you estimate our 
costs, if any, will be, in addition to the petition for certiorari?

---
Tim Hagan
Treasurer, Libertarian National Committee

On 2019-05-23 12:31, 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
> 
> --
> Oliver B. Hall
> Special Counsel
> Libertarian National Committee
> 202-280-0898