Bruce LaPierre writes:

Even if the three-judge court grants an injunction pending appeal (or if the Court grants similar relief), there is some risk that individuals and parties acting in reliance on such an injunction might still face enforcement proceedings.

In my Missouri Republican Party litigation (challenging party contribution limits) and the earlier Nixon v. Shrink Missouri litigation (challenging limits on individual contributions), the 8th Circuit enjoined enforcement of Missouri's contribution limits pending appeal and final resolution on the merits. Under the protection of these injunctions, individuals and political parties made contributions in excess of the enjoined limits. After final decisions on the merits upholding the state law limits, the state of Missouri threatened to enforce the limits with respect to contributions made while the 8th Circuit's injunctions were in effect. We took the position that contributions made while the injunctions were in effect were fully protected and that any effort to enforce the contribution limits retroactively was inconsistent with the purpose of the court's orders. Missouri ultimately decided not to test the bounds of the injunctions. If the Court upholds BCRA provisions that were enjoined pending appeal, any risk that the government might be tempted to follow Missouri's example probably can be addressed by drafting the injunction expressly to protect contributions made and accepted while the injunction is in effect.

D. Bruce La Pierre
Professor of Law
Washington University School of Law
One Brookings Drive
Campus Box 1120
St. Louis, MO 63130
(314) 935-6477
lapierre@wulaw.wustl.edu