On May 31, 2011 Judge Cacheris entered an additional briefing order requiring the parties in U.S. v. Danilczyk to submit additional materials on the effects of the decisions in FEC v. Beaumont, 539 U.S. 146 (2003), and Agostini v. Felton, 521 U.S. 203 (1997), and if these decisions should alter Judge Cacheris' extension of Citizens United from May 26, 2011 as discussed here.
Professor Hasen has the breaking coverage at the Election Law Blog of this additional briefing order, and a copy of the order here.
Procedural items of note:
Judge Cacheris issued this Order sua sponte (without either party requesting it). This indicates Judge Cacheris was concerned about some element of his ruling. He also ordered briefs within 24 hours and a hearing within four days. Motions for reconsideration will normally be heard quickly, but this is lightning fast.
So what is the purpose of this procedure?
Prof. Hasen indicates as follows:
"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.)"
Quite frankly I have not briefed this particular issue, yet I stand by my prediction, of this morning, before Judge Cacheris issued this briefing order that:
"As indicated, I do not think an appeal is likely, although I do believe this is grounds for reconsideration so Judge Cacheris can write an additional paragraph about how FEC v. Beaumont although not specifically overturned, was functionally overturned in Citizens United."
I believe Judge Cacheris already has an amended opinion in draft form, and needs to see if there is anything to add from the parties before issuing the opinion. Some folks may not give him credit for it, but I think Judge Cacheris wants to make sure his opinion is thorough, even if it is controversial.