Appeal from the United States District Court for the District of Montana Charles C. Lovell, Senior District Judge, Presiding D.C. No. 6:12-cv-00012-CCL
The opinion of the court was delivered by: Bybee, Circuit Judge
Submitted to Motions Panel October 15, 2012*fn1
Before: Ronald M. Gould, Richard R. Clifton, and Jay S. Bybee, Circuit Judges.
Since 1994, Montana has regulated the amount that individuals, political committees, and political parties can contribute to candidates for state office. Mont. Code Ann. § 13-37-216, as adjusted by Admin. R. Mont. § 44.10.338.*fn2 In 2003, we upheld this provision against a constitutional challenge based on Buckley v. Valeo, 424 U.S. 1 (1976), and Nixon v. Shrink Missouri Government PAC, 528 U.S. 377 (2000). Mont. Right to Life Ass'n v. Eddleman, 343 F.3d 1085 (9th Cir. 2003), cert. denied, 543 U.S. 812 (2004). Applying the "analytical framework set forth in Buckley and [Shrink Missouri]," we held that "Montana's interest in purging corruption and the appearance of corruption from its electoral system is sufficiently important to withstand constitutional scrutiny" and that § 13-37-216 was "closely tailored to achieving those ends." Id. at 1098. We concluded that § 13-37-216 was "constitutional and [did] not violate the First Amendment." Id.
On October 3, 2012, with less than five weeks before the general election and after absentee voting in Montana began, the district court concluded that "Montana's contribution limits in Montana Code Annotated § 13-37-216 are unconstitutional under the First Amendment." Order, Lair v. Murry, No. CV 12-12-H-CCL, at 4 (D. Mont. Oct. 3, 2012) [hereinafter Order]. The district court permanently enjoined Montana from enforcing its campaign contribution limits. Id. at 5. In an opinion and order issued on October 10, 2012, the district court explained that our decision in Eddleman was "not binding on this Court because the U.S. Supreme Court's intervening decision in Randall [v. Sorrell, 548 U.S. 230 (2006),] compels a different outcome." Opinion and Order, Lair v. Murry, No. CV 12-12-H-CCL, at 24 (D. Mont. Oct. 10, 2012).
The State of Montana has sought a stay of the district court's order pending appeal. For the reasons we explain below, we believe that the state is likely to succeed on appeal. We conclude that the State of Montana has made a strong showing that a merits panel of this Court will likely conclude that, absent en banc proceedings or an intervening decision of the Supreme Court, we remain bound by our decision in Eddleman. See Miller v. Gammie, 335 F.3d 889, 892-93 (9th Cir. 2003) (en banc). We also conclude that a merits panel is likely to hold that the analytical framework of the Supreme Court's decision in Randall does not alter the analysis of Buckley or Shrink Missouri in a way that affects our decision in Eddleman, for three reasons. First, there is no opinion of the Court in Randall. Thalheimer v. City of San Diego, 645 F.3d 1109, 1127 n.5 (9th Cir. 2011) ("[T]he plurality opinion [in Randall] [i]s persuasive authority, though not a binding precedent." (internal quotation marks omitted)). Second, even if we thought that Justice Breyer's plurality opinion represented the narrowest view of a majority of the Court, it did not depart from the principles of Buckley and Shrink Missouri that we applied in Eddleman. Randall, 548 U.S. at 242 (opinion of Breyer, J.) ("[T]his Court has repeatedly adhered to Buckley's constraints . . . ."). Third, even if we applied Randall to § 13-37-216, we cannot find, on the basis of the district court's findings, reason to disagree with, much less overturn, Eddleman. In light of Montana's interest in regulating campaign contributions, the lack of evidence that other parties will be substantially injured, and the public's substantial interest in the stability of its electoral system in the final weeks leading to an election, we will stay the order pending the state's appeal. See Nken v. Holder, 556 U.S. 418, 434 (2009).
The plaintiffs-appellees, various individuals, political action committees, and other political organizations, brought suit in September 2011 to challenge several provisions of Montana's finance and election laws. The defendants-appellants are various officials of the State of Montana. Only one provision, § 13-37-216 of the Montana Code Annotated, which limits contributions that individuals and political committees can make to candidates, is at issue in this case. The district court held a bench trial on September 12-14, 2012. On October 3, 2012, the district court issued a brief order recounting the procedural history of the suit and the fact of the bench trial. The court stated that "[h]aving reviewed and considered the entire record and the parties' arguments and evidence, the Court concludes that Montana's contribution limits in Montana Code Annotated § 13-37-216 are unconstitutional under the First Amendment." Order at 4. The court permanently enjoined the enforcement of § 13-37-216. The district court did not issue an opinion, but stated that "complete and extensive findings of fact and conclusions of law that support this order" would be filed separately. Order at 5. The order was filed before it issued the findings of fact and conclusions of law "so that th[e] order c[ould] be issued before voting begins in the upcoming election." Id.
The following day, October 4, 2012, the state defendants-appellants filed for a stay pending appeal. We ordered an expedited response from the plaintiffs-appellees, which they filed on October 9, 2012. That same day, noting that the district court had not issued findings and conclusions, we found that we were "severely constrained in [our] consideration of the underlying issues raised in the emergency motion." Order, Lair v. Murry, No. 12-35809, at 1 (9th Cir. Oct. 9, 2012). We nevertheless ordered that the injunction be "temporarily stayed pending further order of the court." Id. at 2.
The district court issued an Opinion and Order containing its findings of fact and conclusions of law on October 10, 2012. The state filed a reply in support of its motion for a stay on October 11, 2012.
 "A stay is not a matter of right. . . . It is instead 'an exercise of judicial discretion' . . . [that] 'is dependent upon the circumstances of the particular case.' " Nken, 556 U.S. at 433 (internal citations omitted) (quoting Virginian Ry. Co. v. United States, 272 U.S. 658, 672-73 (1926)). Judicial discretion in exercising a stay is to be guided by the following legal principles, as distilled into a four factor analysis in Nken: "(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies." Id. at 434 (citing Hilton v. Braunskill, 481 U.S. 770, 776 (1987)).*fn3
"The party requesting a stay bears the burden of showing that the circumstances justify an exercise of [this Court's] discretion." Id. at 433-34.
As discussed in detail below, we find that the State of Montana has satisfied this burden. As the Nken factors illustrate, especially in light of the delicate campaign contribution equilibrium leading up to the imminent election, we should and will exercise our discretion to stay the district court's order pending resolution of the appeal by a merits panel of this court.
A. Strong Showing that Success is Likely on the Merits
The first two Nken factors "are the most critical." Id. at 434. Regarding the first factor, Nken held that it is not enough that the likelihood of success on the merits is "better than negligible" or that there is a "mere possibility of relief." Id. (internal quotation marks omitted). Since Nken did not specify "the exact degree of likely success that stay petitioners must show, . . . courts routinely use different formulations to describe this [factor]." Leiva-Perez v. Holder, 640 F.3d 962, 966 (9th Cir. 2011) (per curiam). We have concluded that many of these formulations, including "reasonable probability," "fair prospect," "substantial case on the merits," and "serious legal questions . . . raised," are largely interchangeable. Id. at 967-68. All of these formulations indicate that, "at a minimum," a petitioner must show that there is a "substantial case for relief on the merits." Id. at 968. The standard does not require the petitioners to show that "it is more likely than not that they will win on the merits." Id. at 966.
 We find that the State of Montana has met its burden to make a strong showing that success on the merits is likely. In 2003, we specifically considered the constitutionality of the Montana statute at question here. Eddleman, 343 F.3d at 1092-96. Our decision in Eddleman stands as a barrier to be overcome, a barrier that works significantly to the State of Montana's advantage. The plaintiffs in this case do not argue that anything has fundamentally changed in Montana political campaigns since our decision in Eddleman that would call into question our conclusions made in 2003. In fact, the evidence presented before the district court in this case appears quite similar to the evidence that was presented in Eddleman. The only change in circumstance pointed to by the plaintiffs is the Supreme Court's decision in Randall. The presumption is that our holding in Eddleman is controlling in this case, see Miller, 335 F.3d at 892-93, and we find that Randall does not overcome this presumption. Randall is not binding authority because there was no opinion of the Court. Further, even if we looked to Justice Breyer's plurality opinion in Randall, it is not clearly irreconcilable with the pre-existing law that we applied in Eddleman. Finally, even if we apply Randall, our limited review suggests that Randall would not compel a result different from Eddleman. This is particularly the case given the points of tension and possible errors that we find on the face of the district court's Opinion and Order. Therefore, taken as a whole, and based upon our limited review, necessitated by the imminent election, we conclude that the State of Montana has made a "substantial case for relief on the merits."
1. Whether Randall has a majority opinion
Marks v. United States held that "[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds." 430 U.S. 188, 193 (1977) (internal quotation marks omitted). The Supreme Court has acknowledged that in some cases "[t]his test is more easily stated than applied," and that under certain circumstances it may not be "useful to pursue the Marks inquiry to the utmost logical possibility." Nichols v. United States, 511 U.S. 738, 745-46 (1994) (recognizing that where the application of the Marks test to a prior splintered decision "ha[d] so obviously baffled and divided the lower courts that ha[d] considered it," there is reason to re-examine that prior decision).
Likewise, we have also held that the Marks standard is not always helpful, and should only be applied "where one opinion can be meaningfully regarded as narrower than another and can represent a common denominator of the Court's reasoning." United States v. Rodriguez-Preciado, 399 F.3d 1118, 1140 (9th Cir.) (internal quotation marks omitted) (citing other circuits that have held similarly), amended by 416 F.3d 939 (9th Cir. 2005). This standard requires that the narrowest opinion is actually the "logical subset of other, broader opinions," such that it "embod[ies] a position implicitly approved by at least five Justices who support the judgment." Id. (quoting King v. Palmer, 950 F.2d 771, 781 (D.C. Cir. 1991) (en banc)); see also United States v. Williams, 435 F.3d 1148, 1157 (9th Cir. 2006) (explaining that Marks requires us to find a "legal standard which, when applied, will necessarily produce results with which a majority of the Court from that case would agree"). If there is no such narrow opinion, "the only binding aspect of a splintered decision is its specific result." Rodriguez-Preciado, 399 F.3d at 1140.
Randall is the epitome of a splintered decision. Although six Justices ultimately concurred in the judgment, the case generated six opinions, four of which were required for the six Justices to concur in the judgment. Since the opinions of both Justices Kennedy and Thomas would revisit-or, as preferred by Justices Thomas and Scalia, overrule Buckley, Justice Breyer's plurality decision offers the narrowest rationale in support of the judgment. See Randall, 548 U.S. at 265 (Kennedy, J., concurring in the judgment) ("Viewed within the legal universe we have ratified and helped create, the result the plurality reaches is correct; given my own skepticism regarding that system and its operation, however, it seems to me appropriate to concur only in the judgment."); id. at 265-66 (Thomas, J., concurring in the judgment) ("Although I agree with the plurality that [the Vermont contribution limit statute] is unconstitutional, I disagree with its rationale for striking down that statute. . . . I continue to believe that Buckley provides insufficient protection to political speech, the core of the First Amendment. . . . [S]tare decisis should pose no bar to overruling Buckley and replacing it with a standard faithful to the First Amendment.").
It cannot be said, however, that Justice Breyer's plurality opinion represents a "common denominator of the Court's reasoning," enjoying the assent of five Justices. Justices Thomas and Scalia would "overrule Buckley and subject both the contribution and expenditure restrictions of [the Vermont statute] to strict scrutiny, which they would fail." Id. at 267 (Thomas, J., concurring in the judgment). Thus, further consideration of Justice Kennedy's position is irrelevant for our purposes, since at most Justice Breyer's rationale could only garner the assent of four Justices. If Justice Kennedy's position were relevant to this inquiry, however, his "skepticism regarding that system and its operation," coupled with his previously asserted criticism of Buckley, strongly suggests that only three Justices assented to Justice Breyer's rationale. Id. at 265 (Kennedy, J., concurring in the judgment); see also Shrink Missouri, 528 U.S. at 409-10 (Kennedy, J., dissenting) ("I would overrule Buckley . . . . The First Amendment ought to be allowed to take its own course without further obstruction from the artificial system we have imposed. It suffices here to say that the law in question does not come even close to passing any serious scrutiny.").
This analysis is consistent with our previous recognition- a holding binding upon this Court, see Miller, 335 F.3d at 892-93-that no position in Randall garnered the support of more than three Justices. Thalheimer, 645 F.3d at 1127 & n.5 (explaining that "Justice Breyer's plurality opinion announced the judgment of the Court," so "we follow the plurality opinion as persuasive authority, though not a binding precedent" since "Justice Breyer's plurality opinion was [only] joined by two justices, one in full and one in part" (internal quotation marks omitted)). The only binding aspect of Randall, then, is its judgment, striking down the Vermont contribution limit statute as unconstitutional. Since Randall is otherwise only persuasive, in this context it could not have altered the law as previously dictated by such cases as Buckley and Shrink Missouri, the law we expressly relied upon in Eddleman.
2. Whether Justice Breyer's opinion alters Buckley
Even if Justice Breyer's plurality did represent a majority opinion under Marks, however, Randall is not irreconcilable with the principles of Buckley and Shrink Missouri. In Miller v. Gammie, sitting en banc, we considered the question of "when a three-judge panel may re-examine normally controlling circuit precedent in the face of an intervening United States Supreme Court decision." Miller, 335 F.3d at 892. We held that "where the reasoning or theory of our prior circuit authority is clearly irreconcilable with the reasoning or theory of intervening higher authority, a three-judge panel should consider itself bound by the later and controlling authority, and should reject the prior circuit opinion as having been effectively overruled." Id. at 893. We further held that "the issues decided by the higher court need not be identical in order to be controlling." Id. at 900. We made it clear that this standard applies not only to three-judge panels but also to district courts within this circuit. Id. at 899 (describing prior circuit decisions effectively overruled based on higher intervening authority as "no longer binding on district judges and three-judge panels of this court"); see also Day v. Apoliona, 496 F.3d 1027, 1031 (9th Cir. 2007) ("The Miller standard is thus not met, and we (and the district court) are bound by our earlier precedent.").
Since Miller, we have elaborated on this standard. Recently, in In re Flores, we explained that "we are bound by our prior precedent if it can be reasonably harmonized with the intervening authority." In re Flores, 692 F.3d 1021, 1030 (9th Cir. 2012). In that case, we explained that under Miller, we were compelled to defer to prior circuit precedent because
(1) the "overall analytical framework" of the intervening Supreme Court case was "consistent with our overall analytical approach" in prior circuit precedent, id. at 1030-31, and
(2) the specific application of that framework in the intervening Supreme Court case did not mandate a result in the prior case in conflict with the decision rendered by this Court in that case. Id. at 1030-38. As Flores' first consideration suggests, "Miller v. Gammie . . . instructs us to focus on the reasoning and analysis in support of a holding, rather than the holding alone." United States v. Lindsey, 634 F.3d 541, 550 (9th Cir. 2011); see also Miller, 335 F.3d at 900 (citing Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175, 1177 (1989)) (favorably discussing Justice Scalia's assertion in a law review essay that lower courts are bound by higher courts' "mode of analysis," not just their holdings).
Although we should consider the intervening authority's reasoning and analysis, as long as we can apply our prior circuit precedent without "running afoul" of the intervening authority, we must do so. United States v. Orm Hieng, 679 F.3d 1131, 1140 (9th Cir. 2012). It is not enough for there to be "some tension" between the intervening higher authority and prior circuit precedent, id. at 1140-41, or for the intervening higher authority to "cast doubt" on the prior circuit precedent, United States v. Delgado-Ramos, 635 F.3d 1237, 1239 (9th Cir. 2011). The intervening higher precedent ...