Eighth Circuit Grants Rehearing En Banc in Swanson Case; Scope of En Banc Review Unclear

The Eighth Circuit just issued this order in MCCL v. Swanson:

Appellant’s petition for rehearing en banc has been considered by the Court and is granted. The opinion and judgment of this Court filed on May 16, 2011, are vacated.

The en banc argument will be scheduled for Wednesday, September 21, 2011, in St. Louis, Missouri.

Swanson had two holdings: (1) the state ban on corporate contributions to candidates remains constitutional even after Citizens United and (2) the state’s rules for disclosure of certain political activity are constitutional.

MCCL (through their attorney Jim Bopp) sought review only on the disclosure issue and not on the corporate contribution to candidate issue.  See this post, with a link to the petition.

What is unclear from the Eighth Circuit’s en banc order is whether the full Eighth Circuit sua sponte plans to review issue (1) as well.  The order does make it clear that the panel opinion is vacated and cannot be cited as precedent, on point (1) or point (2).

[Disclosure: I am one of the attorneys representing the City of San Diego where a similar issue to issue (1) is pending in a Ninth Circuit case brought by Jim Bopp; Bopp’s request for rehearing en banc there is pending.]

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