It’s a rare day that a federal judge decides to revisit a decision the week after making it or that the Justice Department apologizes for failing to brief him on the crucial precedent. A re-do is clearly called for.
Just a week ago, Judge James Cacheris of Eastern Virginia’s Federal District Court struck down a century-old ban on direct corporate contributions to political candidates. He wrote that it was an “inescapable” outcome of the Supreme Court’s ruling in the Citizens United case last year, even though the court specifically said the ruling was about allowing corporate expenditures through independent campaign groups.
If Judge Cacheris’s decision were to stand as law, it would lead to even more profligate spending on political campaigning and to the severe corruption that comes with it. Sua sponte, or on his own initiative, Judge Cacheris has now given himself the chance to reverse his usurpation of Supreme Court authority and avoid that disaster.
On Tuesday, he ordered the parties in the case to file briefs by Wednesday about whether, in light of two other Supreme Court cases, he should reconsider his finding about direct corporate contributions. They will argue the matter on Friday morning.
In the first case, Federal Election Commission v. Beaumont, the Supreme Court affirmed the longstanding ban on corporate contributions to candidates. In the second, Agostini v. Felton, it reserved for itself the “prerogative” of overturning precedents like Beaumont, making clear that’s not a lower court’s job.
In its new brief for the judge, the Justice Department “regrets omitting” the Beaumont precedent from an earlier brief. The expression of regret is extraordinary, but the omission was more so — a huge blunder. One also has to wonder how a veteran federal judge was unaware of such a crucial court precedent.
We don’t know when or how Judge Cacheris discovered Beaumont. But the credit for raising it may well go to Richard Hasen, a law professor and expert on election law whoseElection Law Blog is closely followed by people in law, politics and the news media. He blogged about last week’s Cacheris ruling the day it was issued, drawing attention to the omissions of Beaumont in both the Justice Department’s brief and the judge’s decision.
“I would expect this decision not to stand,” he wrote, “or at least to be reconsidered by the judge.” Now Judge Cacheris must put right what he got wrong.
