Breaking News: Judge Asks for Briefing on Whether He Should Reconsider Holding that Federal Direct Corporate Contribution Ban is Unconstitutional

Last week I wrote the following about a federal district court in Virginia decision holding that the 100-year ban on direct corporate contributions to federal candidates is unconstitutional:

    I would expect this decision not to stand, or at least to be reconsidered by the judge. The United States Supreme Court in FEC v. Beaumont upheld a ban on corporate contributions in the case of FEC v. Beaumont, and the lower courts that have considered this question have all held that Citizens United did not overrule Beaumont on this question. The most recent case so holding is the Eighth Circuit’s opinion in MCCL v. Swanson, which I noted on the blog on May 16. (The district court in Danielczyk cites to the district court opinion in Swanson and seems unaware of the more recent opinion on appeal.) [Disclosure: I have a case pending in the 9th Circuit City of San Diego case, currently awaiting decision, raising a similar issue. The trial court agreed with the City that the city's ban on entity contributions to candidates was likely constitutional.]

    It is curious that the district court did not discuss Beaumont. In Swanson, all three appellate judges agreed that Beaumont controlled; the concurring judge noted that he was bound by Beaumont even though he thought the Supreme Court might overrule it if it reconsidered the question. Jim Bopp, upon losing the appeal in Swanson, told the Washington Post: “’We don’t expect lower courts to overturn Supreme Court decisions,’ Bopp said, ‘but you do have to raise these issues’ in hopes of getting the subject before the high court again.”

    But it may not be the district court judge’s fault in Danielcyzk for not discussing Beaumont. It does not appear the federal government even raised it in its brief.

I made similar comments about reconsideration to the NY Times.

Today the district court issued this order: “the parties shall file briefing with this Court addressing whether, in light of FEC v. Beaumont, 539 U.S. 146 (2003), and Agostini v. Felton, 521 U.S. 203 (1997), this Court should reconsider its ruling with respect to paragraph (1) of this Court’s May 26, 2011 Order…”

This is not to say that the judge will necessarily reverse himself. The reference to Agostini means he could decide that Citizens United implicitly overruled Beaumont. (I think that argument is dead wrong, for reasons explained in great detail in Part I of this brief filed in the San Diego case.) But I expect he will do what the other lower courts have done so far in facing this question: hold that Beaumont is binding on the lower courts and if it is to be reversed it is for the Supreme Court to do so.
[UPDATE: For more on how the citation to Agostini helps the government, see my new post.]

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