Oct. 5 (Bloomberg) -- The new U.S. Supreme Court term gives the Republican-appointed majority a chance to undercut decades-old precedents in clashes over campaign finance, racial discrimination and legislative prayer.
While the term, which by statute starts on the first Monday in October, lacks the blockbusters of recent years, it features “an unusually large number of cases in which the decision under review relies on a Supreme Court precedent that may be vulnerable,” said Irv Gornstein, executive director of the Supreme Court Institute at Georgetown University.
“This term is deeper in important cases than either of the prior two terms,” Gornstein said.
The court’s four Democratic appointees won major rulings in each of the last two terms, upholding President Barack Obama’s health-care law and buttressing gay marriage.
The current docket is dominated by cases more likely to leave at least some of those justices in dissent. The court, led by Chief Justice John Roberts, may allow a freer flow of campaign dollars, loosen restrictions on prayer in the public arena and move another step toward a color-blind Constitution.
The justices also plan to hear cases involving presidential recess appointments, abortion-clinic picketing, housing discrimination and federal air-pollution regulations.
Next year could bring fights over abortion, gun restrictions and contraceptive coverage by employers with religious objections before the term ends in late June or early July.
The court next week will hear arguments in what may become its biggest campaign-finance case since the 2010 Citizens United ruling allowed unlimited corporate and union spending. Citizens United divided the court 5-4 along ideological lines, with Roberts and Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito in the majority.
The new case focuses on contributions to candidates and parties, rather than spending -- and raises questions about the 1976 decision that has been the bedrock of campaign-finance law for almost four decades. That ruling, Buckley v. Valeo, said the government had broad latitude to limit contributions to guard against corruption.
The court in the new term will rule on the federal limits on the total money people can give candidates, parties and political committees. Individual donors in 2013-14 can give no more than $123,200 every two years, including a maximum of $48,600 to federal candidates and $74,600 to political parties and political action committees.
Those aggregate limits, which date to 1974, are designed to supplement better-known restraints known as base limits. Under those, donors can contribute a maximum of $2,600 to particular candidates per election, $5,000 per year to individual PACs and $32,400 per year to each national party committee. The limits are indexed for inflation and increase every election cycle.
Shaun McCutcheon, a Republican businessman from Alabama who sued to challenge the aggregate limits, contends they violate his free speech rights, limiting his political participation without serving a clear purpose.
McCutcheon gave a symbolic $1,776 to 15 challengers trying to unseat incumbents in the 2012 election. He says he would have given to a dozen more had the aggregate limits not blocked him.
“Why is the government telling us we can’t donate to more campaigns?” he said in an interview. “We’ve established that 2,600 is not going to hurt anything.”
McCutcheon, who says he has no quarrel with the base limits, is arguing alongside the Republican National Committee and Senate Republican Leader Mitch McConnell. On the other side is the Obama administration, which says the aggregate caps ensure that donors don’t circumvent the base limits.
Without the aggregate limits, donors could contribute millions of dollars to support a single candidate by channeling the money through other political committees, says Tara Malloy, a lawyer with the Washington-based Campaign Legal Center, which supports the restrictions. The aggregate caps are “crucial to making sure the base limits actually work,” Malloy said.
In Buckley, the Supreme Court upheld the aggregate limits, saying they prevented “evasion” of the base limits.
Opponents argue that post-Buckley restrictions on contributions to parties and PACs have made the aggregate limits unnecessary. They also say federal law restricts the ability of donors to earmark their contributions.
Scalia, Thomas and Kennedy have said they would overturn the Buckley analysis, and Alito has hinted he would revisit it. That would subject contribution limits to the same tough scrutiny as spending caps, like those thrown out in Citizens United, and call the base limits themselves into question.
“I think there are five justices who would like to overrule Buckley,” said Pamela Harris, a Georgetown law professor in Washington who previously served in the Obama administration.
Even if that’s true, the court doesn’t need to take that step now, said Paul Clement, a Washington lawyer who served as President George W. Bush’s top Supreme Court advocate.
“This may not be a case where they really need to make the stronger move in order to get the result that maybe you suspect that five justices are going to be inclined to reach,” he said.
Two lesser-known precedents will be tested by the affirmative action case, to be argued on Oct. 15. They are 1969 and 1982 rulings designed to protect minority groups from laws that cut them out of the political process.
The dispute stems from a 2006 ballot initiative that amended Michigan’s constitution to bar race-based college admissions, nullifying a three-year-old Supreme Court decision. The case doesn’t directly concern the constitutionality of affirmative action, an issue the justices took up last term.
A federal appeals court said the Michigan measure put racial minorities at a unique disadvantage by barring them from asking universities for special preferences -- something the panel said athletes, band members and children of alumni could still do.
In defending the initiative, Michigan Attorney General Bill Schuette said the court might have to overturn a 1982 ruling in which the court invalidated a Washington ballot initiative that had prohibited busing for purposes of desegregating schools.
The court will also consider legislative prayer for the first time in 30 years. The case centers on the practice in Greece, New York, of beginning every town board meeting with a prayer from a local religious leader.
The prayers were exclusively Christian, often invoking Jesus, until two citizens of the Rochester suburb complained. They sued and a federal appeals court said the town’s practice violated the Constitution.
The Supreme Court will have to grapple with past cases that point in different directions. The most direct precedent is a 1983 Supreme Court decision upholding Nebraska’s practice of opening each session with a prayer from a paid chaplain, a Presbyterian minister. The court described the Nebraska prayers as “nonsectarian,” although the minister filed a brief in the Greece case to say he was delivering Christian invocations.
In ruling against Greece, the appeals court pointed to a 1989 Supreme Court ruling that barred a nativity scene on a courthouse staircase. With the now-retired Justice Sandra Day O’Connor casting the deciding vote, the court said the display was an impermissible government “endorsement” of religion.
The town is asking the court to say that O’Connor’s endorsement test has no place in a legislative prayer context. The town also is taking what Harris calls a “super-aggressive” position by arguing that it can’t constitutionally ask prayer-givers to excise sectarian references.
“They think they have the wind at their back,” Harris said. “They think they have a court ready to at least consider taking a very, very big step in this area.”
The court also will rule on the reach of the president’s constitutional power to bypass the Senate confirmation process by appointing officials during legislative recesses. The dispute stems from Obama’s 2012 appointment of members of the National Labor Relations Board. The board’s authority is being challenged by a company accused of labor violations, soft-drink bottler Noel Canning Corp. of Yakima, Washington.
A federal appeals court put sweeping new limitations on the president’s recess-appointment power. The panel said the authority applies only between Congress’s two-year sessions and only to vacancies that occurred while the Senate was adjourned.
The high court could rule against Obama without going that far. Noel Canning contends the Senate wasn’t in recess when Obama made his appointments because the body was convening every three days in “pro forma” sessions.
The court’s ruling will have less immediate impact than it might have had. Obama and Senate Republicans in July resolved their appointments standoff with an agreement that cleared the way for the confirmation of new NLRB nominees and of Richard Cordray as director of the Consumer Financial Protection Bureau.
The abortion-picketing case, concerning Massachusetts’ 35-foot buffer zone around clinics, also tests a precedent. The court in 2000 upheld a smaller buffer zone in Colorado.
In the housing case, at issue is whether people who file discrimination suits must show they were victims of intentional bias. Because every appeals court to consider the issue has allowed such suits, a high court ruling to the contrary could change the law throughout the country. It could also undermine the Obama administration’s crackdown on the lending industry.
In the clean-air case, the court is considering an Environmental Protection Agency rule that would curb emissions from coal-fired power plants.
The court formally opens its term on Oct. 7, when it will hear arguments in two cases, including one that stems from R. Allen Stanford’s Ponzi scheme and may tighten the limits on securities fraud suits. The question is whether aggrieved investors can sue law firms and outside companies for their alleged roles in Stanford’s international fraud.
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