THE BLOG
06/01/2011 12:22 pm ET | Updated Aug 01, 2011

Will Corporations Be Prohibited From Giving to Candidates After All?

A few short days ago, I criticized a federal judge's decision to invalidate a law prohibiting corporations from giving campaign contributions to candidates, in a Huffington Post piece entitled, "Corporations Can Now Donate Directly to Candidates (According to One Federal Judge)." It now looks like that one federal judge may have changed his mind, as he has asked the parties in the case to file additional briefings on that issue.

As I noted in my article, Judge Cacheris did not address controlling Supreme Court precedent -- a 2003 case called FEC v. Beaumont in which the Court upheld the very law at issue, a ban on corporate contributions to candidates.

I have argued that despite the grievously broad language in the now-famous case of Citizens United v. FEC, in which the Court states that corporations must be treated like natural persons in the campaign finance context, it is up to the Court, and only the Court, to overturn its own precedent. In addition, Citizens United addressed the right of corporations to make independent expenditures, not contributions. Since the Court's seminal ruling in the area of campaign finance law in Buckley v. Valeo in 1976, it has analyzed contributions and expenditures under different analytical frameworks. Specifically, the Court has generally upheld restrictions on contributions, while striking down restrictions on expenditures. In part the Court has stated that direct contributions give rise to fears of actual or apparent corruption, while independent expenditures do not.

Judge Cacheris gave the parties until Wednesday, June 1st to file additional briefs, and ordered that oral argument be set for Friday, June 3rd. His unusual request for additional information and arguments very likely indicates a willingness to change his mind.