Excitement in the world of campaign finance litigation yesterday!*
On July 12, 2011 the U.S. Court of Appeals for the Eight
Circuit granted en banc review in the case of Minnesota Citizens Concerned for Life, Inc.
v. Swanson, Record No. 10-3126. This means that all of the
Judges of the Eight Circuit will rule upon the issue of whether the
Constitution allows the government to prevent corporations form making direct
contributions to candidates.
What is this about?
In May and June 2011 I
covered the details of an Eastern District of Virginia case referred to
generally as Danielczyk. Coverage here. In short the major issue of concern is
whether a federal ban on contributions from corporations directly to federal
candidates is Constitutional. Judge
Cacheris in the Eastern District of Virginia said the ban is
unconstitutional. The federal government
has now appealed the Danielczyk
decision. Three federal appellate courts
said a ban is Constitutional . . . until July 12. On July 12, 2011 the Eight Circuit Court of
appeals vacated
their holding of Constitutionality, and now all the judges on the Circuit will
have an opportunity to weigh in.
How does En banc review work?
When a case goes to a U.S. Court of Appeals it generally
will go before a randomly selected panel of three appellate judges for that
particular circuit. Those three judges
render an opinion, that then becomes the opinion of the entire circuit. Litigants dissatisfied with a ruling by a
panel may petition for rehearing (asking the same three judges to change their
minds) or petition for a rehearing en
banc. A rehearing en banc is when
all of the judges sit, hear argument, and rule upon a case. Successful petitions for rehearing and petitions
for rehearing en banc are very
uncommon, and publicly available statistics for these procedures are
unavailable (outside of the Federal Circuit).
Under Fed.
R. App. P. 35(b) a rehearing en banc
should only be granted in instances where the panel decision conflicts with a
decision of the Supreme Court, or another decision from the same circuit, or if
the case involves an issue of exceptional importance that can be concisely
stated. The petition is limited to 15
pages, and will often be narrowly focused on the major issue(s) in order to
make an important point in a small amount of space.
Once en banc review is granted, the court may, in its
discretion, order additional briefing. This
does not appear to have been done in this case.
What does this grant
of en banc review mean?
1) It likely means a number of judges at the Eighth Circuit
have serious misgivings about the Constitutionality of a ban on direct
contributions from corporations to candidates.
2) More importantly, the judges of the Eighth Circuit likely
believe this is an issue that will not be settled once and for all in the
Courts of Appeals. This issue is likely headed
back to the Supreme Court where the scope of the January 2010 Citizens United
Ruling will have to be clarified.
I just hope our Fourth Circuit Judges get a chance to opine
before the Supreme Court sets the matter straight.
*I know campaign finance law and appellate procedure are not
fun for everyone, but that is okay. I
think there is room enough in the world for all of us.
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