Tuesday, May 31, 2011

Why the real fallout of Judge Cacheris’ expansion of the Citizen’s United case will be minimal

UPDATE: Judge Cacheris reconsiders his previous ruling, coverage here.

On May 29, 2011 I explained the nature of Judge Cacheris’ decision in U.S. v. Danielczyk, Case No. 1:11cr85, and how the portion reported in the media is only a small portion of a 52 page substantial opinion. 

Some commentary from learned observers prompts me to explain why in my estimation this opinion will have little effect on the electoral landscape.

Is the opinion subject to being overturned?

For the opinion to be overturned it must be appealed.  Only in certain specific and uncommon circumstances can a decision be appealed before a case has been resolved.  U.S. v. Danielczyk does not have a final decision, and can not be currently appealed.  There is a trial set for July 6, 2011.  No appeal will be happening at least until after trial, sentencing, and post trial motions.

Moreover, many criminal cases do not reach an appeal stage.  The case is a criminal matter with an indictment that has at least five counts that survived the Defendants’ motions to dismiss.  If there is any reasonable possibility of both actual guilt of the Defendants, and success on any count by the prosecution, the parties will probably reach a deal.  If there is a plea bargain the case will not be appealed, and the ruling will stand.
Professor Rick Hasen who runs the Election Law Blog believes the case will be overturned on appeal, or at least be reconsidered.  In this post, Prof Hasen points out that Judge Cacheris failed to address an earlier Supreme Court case, FEC v. Beaumont, that supports the Constitutionality of the ban on corporate giving.   

It would be odd that Judge Cacheris failed to mention this case, except, as suggested by Prof. Hasen, the federal government did not mention it in their brief.  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.

So if no appeal occurs do we have a corporate fundraising free-for-all?

In my last post I suggested, through a series of rhetorical questions, that a corporate fundraising free-for-all is unlikely for practical reasons.  In reality, as long as this decision is not appealed, a corporate fundraising free-for-all remains legally perilous for candidates and corporations alike.

In Roll Call on May 28, 2011 in an article entitled Campaign Finance Experts See Few Implications for Virginia Ruling, the author states the following:

“The interpretations of Thursday's U.S. District Court decision by Judge James C. Cacheris vary. Campaign finance lawyers believe the decision applies to only a small section of the country, would allow federal candidates to raise donations only from Virginia companies and even those contributions would be subject to donation limits.”
This is mostly accurate.  To understand how this works the reader needs to understand the jurisdictional effect of federal precedent.  In simpler terms, “if a court says something, who geographically is affected?”  For Supreme Court cases, the opinions affect the entire country.  For Federal appeals court cases, (Circuit Courts) the cases affect all of the states and territories within the Circuit. For example the Fourth Circuit encompasses the following states, MD, WV, VA, NC, and SC, and all of those states would be affected by a Fourth Circuit ruling.  For these reasons it is possible to have conflicting rulings in different parts of the country.

The article seems to suggest that the ruling of a District Court Judge will be binding on the entire District.  This is simply not the case.  The rulings of District Court Judges are binding only on the facts, circumstances, and parties of the exact case before the Court.  The other Judges in the Eastern District of Virginia re not even bound by Judge Cacheris’ ruling outside of the actual case of U.S. v. Danielczyk.  Any federal candidate or federal corporation engaging in direct solicitation or contribution, even in the Eastern District of Virginia, is doing so at the highly likely peril of prosecution, assignment to a Judge other than Judge Cacheris, and criminal sanctions.  Not even Judge Cacheris is technically bound by his previous decision, and could decide in a contrary manner for the next similar Defendants in his courtroom.

So if the decision is not appealed, does it matter at all?

Yes.  Any ruling declaring a law unconstitutional will be used by future litigants in an attempt to invalidate the law in other courtrooms.  Eventually this issue will make it to one or more Circuit Courts, and perhaps back to the Supreme Court.  This is just a very early skirmish in a very long litigation battle.  Corporations are far from being able to donate directly to federal candidates. 

For those interested in seeing how an alternative campaign finance system works with no limits, but full disclosure, look into Virginia’s state level campaign finance regulatory scheme.

Some basic sources can be found here:

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