I’ve been enjoying my co-blogger Aaron Nielson’s review of the DC Circuit’s cases. Perhaps some of this pleasure comes from my memories of clerking there, for the great Stephen F. Williams, the intellectual godfather of many an academic’s career—it’s a uniquely interesting place to clerk, with cases that can be at the core of some great public policy debate that, in the end, get resolved as jurisdictional questions interesting only to administrative law types.
Nothing illustrates the point better than today’s decision in New York Republican State Committee v. SEC. The case is about the SEC’s decision in 2010 to regulate the relationship between money managers and political campaigns. Out of an apparent interest to regulate campaign corruption, the SEC promulgated a rule under the Investment Act of 1940 that puts investment advisers in a two-year time out between when they donate to a political campaign and seeking money management business that that politician might influence. The rule raises some interesting questions under the First Amendment made more pressing by Citizens United, and the New York (and Tennessee) Republicans sued under that constitutional theory.
The problem is that the plaintiffs waited for four years before filing suit, and when they did, they sued in the district court rather than the court of appeals. Usually, an aggrieved party has sixty days to challenge an agency’s final rulemaking, and then in the court of appeals, as required by the relevant statute. One of the reasons the DC Circuit is so much fun for clerks and judges interested in administrative law is that the court is the most common destination of precisely these challenges. Four years is obviously longer than sixty days, and the U.S. District Court of the District of Columbia is obviously not the U.S. Court of Appeals for the DC Circuit. Because the Investment Act of 1940 is clear on both respects, the panel opinion unceremoniously bounced the case on jurisdictional grounds, as both untimely and filed in the wrong court.
On the legal merits, I have no special expertise in First Amendment law to opine, though my arm-chair policy preferences are sympathetic with the rulemaking. On procedure, it seems the DC Circuit is clearly correct here. On whether the law should be this way, I’m of two opinions. On the one hand, there’s an absurdity to slamming the courthouse doors shut after sixty days, especially for constitutional challenges. The implications sometimes take time to percolate, and anyway those regulated aren’t always around when the rule is issued. The agencies have come up with some doozies over the years, and these sixty-day jurisdictional restrictions (common in administrative law) render judicial review something of an empty promise.
But on the other hand, little-d democrats should cheer that kind of circumscription. Even if the SEC’s rule is unconstitutional, the courts are not and should not be the only constitutional game in town. The plaintiffs—especially these plaintiffs, given how close they are to the political process—have options. They can convince the agency to change course—something the Supreme Court has made clear they can do with any or essentially no explanation. Or they can win an election and get someone more to their liking to change the rule.
For lawyers and law students thinking about clerking on the DC Circuit, though, this is a terrific opinion. Some go to law school to tackle these kinds of questions on the merits. What could be sexier than a political party suing an agency over violations of free speech? But if your answer is “frankly, the statutory jurisdictional requirements of administrative law,” the DC Circuit is a great place to be.