On Thursday, the U.S. Court of Appeals for the D.C. Circuit wrapped up its 2012–2013 Term by hearing argument in Wagner v. FEC, a case that challenges the Federal Election Campaign Act provision prohibiting federal contractors from making political contributions in connection with federal elections. The court typically issues opinions argued during a term by the end of the summer.
Although the parties’ original briefs focused on the constitutional question of whether the federal contractor contribution ban violates the First Amendment, the D.C. Circuit’s opinion may stop short of resolving that dispute. Two weeks ago the court, on its own accord, ordered the parties to file supplemental briefs addressing whether the case should never have been decided by the trial court, which upheld the law, and instead should have been heard originally by the appellate court sitting en banc. Despite (or perhaps because of) the parties’ agreement in those additional briefs that the trial court had the power to hear the case first, the D.C. Circuit panel apparently explored the issue with some interest at the hearing.
These actions by the D.C. Circuit aren’t necessarily bellwethers. In the past, the court has found jurisdiction even after asking for additional briefs on the issue. But if the D.C. Circuit were to find that the trial court lacked jurisdiction to issue its opinion upholding the federal contractor contribution ban, the case would essentially start anew. This would be significant because the trial court’s opinion appears to be the only one of recent vintage to rule on the constitutionality of the federal contractor contribution ban, and appears to be the only reported case to focus squarely on the federal contractor question. (A 1978 opinion analyzes the corporate contribution ban and summarily applies that reasoning to federal contractors.) It would also likely lead to a somewhat rare sitting of the full D.C. Circuit on a high profile campaign finance law issue. Whatever the result, this case is one to look out for this summer.