Via Ken Vogel comes word of this order from Judge Cacheris. This is not what I was expecting. The Court has held unconstitutional a 100-year-old ban on direct corporate campaign contributions to candidates. He has done so in direct contradiction to the Supreme Court’s holding in FEC v. Beaumont, and in contradiction to rulings in the Second Circuit, the Eighth Circuit, and a federal district court in San Diego [that case is on appeal, and I am defending San Diego’s similar law in the Ninth Circuit.]
Judge Cacheris makes two arguments as to why he is not bound by FEC v. Beaumont, in which the Supreme Court upheld the very same law.
1. He accepted the argument put forward in an amicus brief by the James Madison Center that the holding in Beaumont applied only to non-profit advocacy corporations, and not to for-profit companies. This argument is very weak. In Beaumont, a nonprofit ideological corporation argued that even if the statute could constitutionally be applied to for-profit corporations, it could not constitutionally be applied to non-profit corporations. The Court had already held in the case of Mass. Citizens for Life v. FEC that such corporations could not be barred from making independent expenditures. In Beaumont, the Court held that even such ideological MCFL corporations could constitutionally be barred from making direct contributions to candidates. Among other reasons, the law prevented such corporations from being used as conduits to evade individual contribution limits. If such non-profit corporations could constitutionally be barred from making contributions to candidates, a fortiori for-profit corporations should be barred as well.
2. The judge accepted the second argument that Citizens United silently overruled Beaumont. This too is a weak argument. 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.
What should happen next? I’m not an expert on the ability of the government to take an interlocutory appeal at this point in the criminal case, but I would urge them if they could to take this directly to the 4th Circuit. Otherwise, there will be great uncertainty going into the 2012 election season about an important constitutional question.
UPDATE: Here’s more analysis.