Monday, the Solicitor General/Federal Election Commission filed its brief in petition for certiorari in what is commonly known as SpeechNow.org v. Federal Election Commission.
According to the government, this case has morphed into Keating et al v. Federal Election Commission, placing our friend David (and his four fellow travelers) into a pantheon of named parties in FEC matters that includes Senator Mitch McConnell, Francis Valeo, and, of course, Sen. James Buckley—and also bringing together a very different Keating Five.
But, since the case was captioned below as SpeechNow.org v. Federal Election Commission, it seems a little strange (not to mention confusing) to insist that David Keating assume the mantle of named party and the immortality that comes with it as an individual—when the argument is about committee status. But, whatever. Maybe the Solicitor General is just feeling generous these days.
And, speaking of generous, what about the legal argument? SpeechNow.org doesn’t want to comply with the present paperwork required of political committees. It thinks the disclosure requirements for non-committee groups that make independent expenditures is sufficient.
The Solicitor General disagrees, of course. Right up front, the government embraces the Court of Appeals reliance on the distinction between the level of scrutiny applied to contributions and expenditures that traces back to Buckley v. Valeo. Yet, nowhere does the brief cite to Randall v. Sorrell, perhaps because if you count heads in that opinion, the chance that the contribution/expenditure distinction wins a popularity contest among the nine people that matter at One First Street NE is, um, not good.
At this point the government’s job is to try to convince the Justices this case isn’t worth taking. Not sure putting this issue up front, while neglecting recent evidence that it is salient and interesting to Justices, is the way to go.
Then the brief tackles “major purpose.” Again, if the idea is to not attract interest or attention to this cert petition, raising an issue of some definitional “complexity”-to put it nicely-may not be the way to go, especially since the brief takes head—on SpeechNow.org’s potential alternative definition of “major purpose” which is simply the plain reading of what the Court said in Buckley. The Buckley decision, read literally, would limit political committee status to groups in control of a candidate, or whose major purpose is the nomination or election of a candidate. But that’s not how major purpose has been interpreted subsequently.
Hmm… This is a reason not to grant review? Toss a little Unity ’08 in there, and I think you’ve got a puzzle that attracts judicial attention.
Of course, I’m easily amused.