Monthly Archives: May 2011

Money Quote from Agostini (relevant to Va. contributions case)

In his order suggesting (on the Court’s own motion) reconsideration in Danielczyk in light of Agostini, Judge Cacheris was probably focused on this quotation:

    We do not acknowledge, and we do not hold, that other courts should conclude our more recent cases have, by implication, overruled an earlier precedent. We reaffirm that “[i]f a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.” Rodriguez de Quijas, supra, at 484. Adherence to this teaching by the District Court and Court of Appeals in this litigation does not insulate a legal principle on which they relied from our review to determine 238*238 its continued vitality. The trial court acted within its discretion in entertaining the motion with supporting allegations, but it was also correct to recognize that the motion had to be denied unless and until this Court reinterpreted the binding precedent.

More good news for the government.

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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.]

MORE from AP.

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“Wisconsin Board Delays Recall Certifications Amid Serious Problems”

National Journal Hotline: Recall elections targeting Republican and Democratic state senators may be postponed for weeks thanks to challenges to petitions filed with the state, the Wisconsin Government Accountability Board said Friday.

If you have a subscription to Hotline, they’ve put together a great resource page for those following election law: Campaign Law Watch.

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