Jim Bopp Seeks En Banc Rehearing in 8th Circuit Swanson Case on Corporate Disclosure Issue, But Not on Corporate Contribution Issue (also at issue in Virginia Case)

You can read the petition for rehearing en banc here. Footnote 2 reads: “The Appellants do not seek en banc review of the Panel’s decision that they were unlikely to succeed on their challenge to Minnesota’s ban on corporate general fund contributions. However, Appellants here preserve their arguments that the corporate contribution ban is unconstitutional.”

Of course, it was the Eighth Circuit’s opinion in Swanson which held that a ban on direct corporate contributions remains constitutional after Citizens United under FEC v. Beaumont, the very issue under reconsideration in the Virginia case. [And, as I’ve disclosed, I’m defending a similar San Diego law in a suit brought by Bopp and now pending before the Ninth Circuit.]

Here’s part of what the Eighth Circuit panel said about Beaumont:

    In deciding the case, the Supreme Court in Citizens United never doubted the government’s strong interest in preventing quid pro quo corruption or materially questioned the ability of corporations to serve as conduits for circumventing valid contributions limits. See id. Thus, Beaumont remains controlling. See Green Party, 616 F.3d at 199 (concluding that Beaumont is “good law”).

    Moreover, even assuming that the Supreme Court implicitly overruled portions of Beaumont in Citizens United, we must still follow Beaumont until the Supreme Court holds to the contrary. See Agostini v. Felton, 521 U.S. 203, 237 (1997) (“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 if 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.” (internal quotation marks and alteration omitted)).

Here is what the concurring judge from the Eighth Circuit panel said on this point:

    I concur with the majority’s judgment in Part II.C., affirming the district court’s refusal to enjoin Minnesota’s ban on direct corporate contributions to candidates and affiliated entities. See § 211B.15, subdiv. 2. In Citizens United, the Supreme Court did not explicitly overrule Fed. Election Comm’n v. Beaumont, 539 U.S. 146 (2003), or the Court’s equal protection holding in Austin v. Mich. Chamber of Commerce, 494 U.S. 652 (1990), overruled in part by Citizens United, 120 S. Ct. at 913. Because the Supreme Court has instructed courts to wait for it to overrule its own decisions, see Agostini v. Felton, 521 U.S. 203, 237-38 (1997), the district court did not abuse its discretion in determining Minnesota Citizens is unlikely to win on the merits of this claim.

In the Virginia case, Judge Catcheris cited to the district court opinion in Swanson, and not the Eighth Circuit opinion which came out 10 days before his ruling. I expect the government to cite to Swanson in its briefing due within the hour in the Virginia case.

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