For federal rules junkies only

Ever since the Supreme Court handed down the Citizens United decision in 2010, challenging the constitutionality of campaign finance laws is the latest craze. When the Supreme Court made it easier to strike down campaign contribution restrictions on free speech grounds, business people, and the New York Conservative Party sued the City of New York over its campaign finance laws. Although the federal courts upheld the City laws, a 2014 Supreme Court ruling inspired them to try to reopen that case. The courts will not let them do so.

The case is Tapper v. Hearn, decided on August 10. This case raises an interesting question. Let's say lost a lawsuit because the law is not on your side. Then, at some point in the future, the Supreme Court issues a ruling that might have allowed you to win that case. Can you reopen the case based on that new Supreme Court ruling?

In this case, the SDNY and 2d Circuit held a few years ago that the First Amendment did not prohibit the City from enforcing campaign finance laws that, among other things, limited campaign finance contributions from companies that did business with the City. The 2d Circuit ruling in that case was handed down in 2011. In 2014, the Supreme Court issued another in its recent string of cases that applied Citizens United principles to certain campaign finance laws. Plaintiffs in this case think that case, McCutcheon v. FEC, would compel a different result in their case that they lost in 2011. So they asked the district court to reopen the case under Rule 60(b)(5).

That rule allows you to reopen a federal judgment under certain circumstances, such as when an injunction or some final judgment for prospective relief needs to be modified for equitable reasons. The Court of Appeals (Walker, Calabresi and Hall) frames the issue this way: "While we have made clear that orders or judgments that provide for ongoing injunctive relief fall squarely within [Rule 60(b)(5)], we have not yet had the occasion to review the denial of a Rule 60(b)(5) motion in which, as here, the movants seek reconsideration of an order dismissing their request for injunctive relief."

Other Circuits have taken up this issue and ruled that Rule 60(b)(5) does not reach that far, and the Court of Appeals agrees with those rulings and says the plaintiffs here cannot reopen the case under this rule.

The Court of Appeals does not discuss what the plaintiffs' remedies might be if in fact the Supreme Court's McCutcheon ruling might alter the 2d Circuit's analysis that upheld the constitutionality of the City campaign finance law. My guess is that if plaintiffs want to take advantage of the McCutcheon ruling, they have to file a new lawsuit and start from scratch.