Did the congressional drafters of the 2002 McCain-Feingold campaign-finance law build within it the seeds for its own destruction? Tucked within the Bipartisan Campaign Reform Act (the formal name for “McCain-Feingold”) is a provision requiring that certain constitutional challenges to the law be heard by a three-judge court, with direct appeal to the U.S. Supreme Court. This special jurisdictional provision makes it much more likely that within the next few years the Supreme Court will strike limits on the amounts people and entities can contribute to the political parties in so-called party soft money. If the court does so, it would be knocking down the second of McCain-Feingold’s two pillars. The court knocked down the first pillar—the limits on corporate and union spending—in the 2010 case Citizens United v. Federal Election Commission.
It may seem hard to believe that procedural rules for court challenges could make a difference as to the fate of campaign financing in the United States, but it matters. When a case comes up to the Supreme Court through the normal process of federal district court or state court decision followed by appellate court review, the losing side files a petition for writ of certiorari.
A Supreme Court decision to deny certiorari has no precedential value; no one can cite a certiorari denial as proof the Supreme Court believes the lower court got it right.
But in a rare set of cases (these days confined to certain campaign finance, redistricting and voting-rights cases) pursuant to federal statute are heard initially by a three-judge federal district court with direct appeal to the Supreme Court. In these cases, a court decision to affirm a three-judge court or to dismiss the appeal does count as a decision that the lower court got right, even if not necessarily for its reasoning. This fact makes it much more likely that the Supreme Court will hear such cases.
Full Article: Op-Ed: The McCain-Feingold Act May Doom Itself | National Law Journal.