Earlier today a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit issued its opinion in Wagner v. FEC, sending the legal challenge brought by three federal contractors back to the start.
The contractors had sued the Federal Election Commission back in October 2011, arguing that federal law unconstitutionally prohibits federal contractors from making political contributions to influence federal elections. The FEC prevailed in federal district court last fall, but appeared to run into a roadblock on appeal when the judges raised the question whether the district court ever had the power to decide the constitutional issue in the first instance. All parties—perhaps not wanting to begin anew after 20 months of litigation—argued that the case had followed the correct procedural path. But the D.C. Circuit today disagreed without reaching the constitutional question and vacated the district court’s opinion upholding the statute.
Still, the constitutional question will get its day in court—although in a slightly different one. Under the jurisdictional statute, the district court is required to create a factual record and certify its findings to the full D.C. Circuit, something the D.C. Circuit has asked for by the end of next week. The parties will likely then file new briefs over the summer and argue the case to the eight active judges on the court in the fall. With the Supreme Court also hearing a challenge to the biennial contribution limits, it promises to be an important few months for major provisions of the Federal Election Campaign Act.