The Supreme Court's Fat Cat Decision Is OK

The decision of the Supreme Court in Davis v. Federal Election Commission, issued on 27 June 2008, is rather a dull and boring one; it involves neither sex nor violence nor even the rights to habeas corpus of detainees at Gitmo. Nevertheless, it is a potentially important decision and worthy of discussion. Perhaps only brief discussion (difficult), but discussion nonetheless. It involves the Constitutionality of The Bipartisan Campaign Reform Act of 2002 (BCRA), 2 U.S.C. §441a-1(a), part of the so-called "Millionaire's Amendment."

The first part of the Court's opinion deals with whether the petitioner, Mr. Davis, had standing to come before the Court. The holding that he did is, in my opinion, correct. Basically, the answer to a question of standing revolves about whether the petitioner's case is one with which the Court ought to concern itself. He has standing only if he is directly affected. As the Court put it,

That restriction requires that the party invoking federal jurisdiction [have] a personal interest that must exist at the commencement of the litigation. . .  [Moreover,] [t]o qualify as a case fit for federal-court adjudication, an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed.

I have no standing to bring before a court the theft of my neighbor's cow, because it does not affect me directly. I do have standing to bring before a court the theft of my own cow, because it does affect me directly, did so at the beginning of the litigation, and continues to do so. There are some fuzzy areas; one such is whether a taxpayer has standing to contest a law the effect of which is to spend money collected from him and other taxpayers, on a project which he deems stupid but which does not otherwise directly affect him more or less than it affects other taxpayers. Generally, the courts have held that he lacks standing. These are interesting questions, which attorneys love to argue about. So be it. It sometimes helps to keep us from doing real harm.

Article Author: Dan Miller

Dan was graduated from Yale University in 1963 and from the University of Virginia School of Law in 1966. He practiced law in Washington, D.C., retiring in 1996 to sail with his wife in the Caribbean. They settled in a rural area in Panama in 2001. …

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