[EL] More than a dozen states could throw out donation caps after McCutcheon ruling

[Derek Muller]

http://www.publicintegrity.org/2014/04/04/14517/mccutcheon-ruling-may-affect-contribution-limits-many-20-statesvia
http://electionlawblog.org/?p=60043

I confess I don't understand why Massachusetts is now refusing to enforce
its $12,500 limit. *McCutcheon *was a federal law. Yes, its reasoning may
well apply to a state law; but, until the law is repealed, or until there
is a court order that says otherwise (which are the two routes Jim Bopp
identifies in the CPI piece), executive agencies are not in a place to
unilaterally refuse to enforce laws.

Yes, I understand that waiting for the legislature takes time, and
litigating in court can be expensive. But this
effective-repeal-by-non-enforcement is, in my view, troubling.

And yes, we saw that the Court extended *Citizens United* to Montana's laws
in *American Tradition Partnership v. Bullock*--but did so only when the
Court concluded (summarily) that Montana "fail[ed] to meaningfully
distinguish that case" in subsequent litigation.

Maybe this touches on broader rule-of-law notions that are better discussed
elsewhere, but it's another in a series of situations where the Supreme
Court speaks, narrowly (at least ostensibly, and certainly under basic
preclusion or law-of-the-case doctrine), on a single issue, and executive
agents elsewhere [fall over themselves to?] stop enforcing (or refuse to
defend) related laws because of their best guess that the laws are
unconstitutional. Giving the executive a second bite at the veto apple
under the guise of adhering to a judicial order that doesn't even purport
to bind them is, I think, less than ideal.

Derek

Derek T. Muller

Associate Professor of Law

Pepperdine University School of Law

24255 Pacific Coast Hwy.

Malibu, CA 90263

+1 310-506-7058

SSRN Author Page: http://ssrn.com/author=464341
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