H.R. 5175 - THE DISCLOSE ACT & JUDICIAL REVIEW

Representative Chris Van Hollen

The House is moving toward consideration of H.R. 5175, the Democracy is Strengthened by Casting Light on Spending in Elections Act (DISCLOSE),  I expect the Rule Committee will resume its work to bring the bill to the floor after the break. The bill was placed on the Union Calendar, a separate calendar in the House for bills dealing with money issues, on May 25th.

H.R. 5175 was introduced by Representative Chris Van Hollen, [D] Md. Senator Charles Schumer [D] NY has introduced related legislation in the Senate, S.3295.

For a synopsis of the bill refer back to this blog's posting on May 26th, H.R. 5175, CONGRESS ANSWERS THE SUPREME COURT'S DECISION IN "CITIZENS UNITED."

Today I want to focus on Section 401 of the proposed DISCLOSE Act. This is the section where the Congress confers tells us where and how we can sue if we don't like the legislation. Remember the posting about Hui v. Casteneda? Okay, that was yesterday's post! In that case the Supreme Court ruled that Hui had immunity from prosecution by Casteneda on the alleged charges in the civil case, as those questions were presented to the Court. Hui won because the Congress limited jurisdiction to sue. H.R. 5175 has a similar clause but limiting venue, where a case may be brought.

Section 401(a) (1) contains special rules for lawsuits brought on Constitutional grounds. First, original jurisdiction is conferred on the Federal District Court for the District of Columbia Circuit. By implication, then, appellate jurisdiction will lay with the Court of Appeals for the District of Columbia.

Thinking back to the Hui case, you will remember that the Supreme Court granted certiorari to resolve a dispute between the Ninth Circuit Court of Appeals and the Second Circuit Court of Appeals. Section 401 forecloses the possibility that the Supreme Court will take a Constitutional challenge because of a dispute between different districts of the Courts of Appeal.

A copy of any complaint filed under Section 401 (a) (1) must under Section (a) (2) be delivered to the Clerk of the House of Representatives and the Secretary of the Senate. This is delivery, not service. The distinction being that the law will require the House and the Senate to be given notice of the suit, Service is made upon litigants to the dispute. This section anticipates that the House or the Senate may want to intervene in either the trial proceedings in the Federal District Court or the appellate proceedings in a proceeding in the Federal Court of Appeals.

Section 401 (a) (3) provides for expedited proceedings. Under this section the courts must act with dispatch. The section says: "It shall be the duty of the United States District Court for the District of Columbia, the Court of Appeals for the District of Columbia Circuit, and the Supreme Court of the United States to advance on the docket and to expedite to the greatest possible extent the disposition of the action and appeal."

The possibility of delay could mean either that those who have a right to voice their opinions through massive monetary infusions in the electoral process will be denied. The opposite is also true. Delay could mean that money will continue to gush, thanks to Citizens United, and pollute the American electoral process. The Congress recognizes that these disputes need to be quickly resolved.

Section 401 (b) speaks to the issue of the Congress intervening in a case involving a Constitutional challenge to this statute. Each and every Member of Congress, including Delegates and Resident Commissioners, as well as each and every Senator will have standing to sue by intervention. It does not matter if a Representative or Senator wants to sue in support of or in opposition of the party who filed the suit. The individual Representatives or Senators can take adverse sides in the suit.

For judicial economy the courts may make rules providing those with similar positions to file joint papers or be represented by a single attorney at oral argument. The sheer number of both houses of the Congress make this a sensible provision.

Any Member of Congress, House or Senate, may bring suit to challenge the constitutionality of the DISCLOSE Act. Those lawsuits must also comply with the special rules set forth in Section 101 (a). There will be no special treatment or exceptions for Representatives and Senators.