Doug Lair; Steve Dogiakos; American Tradition Partnership; American Tradition Partnership PAC; Montana Right to Life Association PAC; Sweet Grass Council for Community Integrity; Lake County Republican Central Committee; Beaverhead County Republican Central Committee; Jake Oil, LLC; JL Oil, LLC; Champion Painting; John Milanovich, Plaintiffs-Appellees,
v.
Jonathan Motl, in his official capacity as Commissioner of Political Practices; Tim Fox, in his official capacity as Attorney General of the State of Montana; Leo J. Gallagher, in his official capacity as Lewis and Clark County Attorney, Defendants-Appellants. Rick Hill, Warden, Intervenor-Plaintiff-Appellee,
Argued
and Submitted March 21, 2017 San Francisco, California
Appeal
from the United States District Court for the District of
Montana D.C. No. 6:12-cv-00012-CCL Charles C. Lovell, Senior
District Judge, Presiding
Matthew T. Cochenour (argued), Helena, Montana, for
Defendants-Appellants.
James
Bopp (argued), Terre Haute, Indiana, for
Plaintiffs-Appellees.
Before: Raymond C. Fisher, Carlos T. Bea and Mary H. Murguia,
Circuit Judges.
SUMMARY
[*]
Civil
Rights
The
panel reversed the district court's judgment in an action
challenging Montana's limits on the amount of money
individuals, political action committees and political
parties may contribute to candidates for state elective
office.
The
panel held that Montana's limits, as set forth in Montana
Code Annotated § 13-37-216, were both justified by and
adequately tailored to the state's interest in combating
quid pro quo corruption or its appearance. The panel held
that Montana had shown the risk of actual or perceived quid
pro quo corruption in Montana politics was more than
"mere conjecture." The state offered evidence of
attempts to purchase legislative action with campaign
contributions. The panel held that contribution limits served
the state's important interest in preventing this risk of
corruption from becoming reality.
The
panel held that Montana's limits were also "closely
drawn" to serve the state's anti-corruption
interest. The limits targeted those contributions most likely
to result in actual or perceived quid pro quo corruption -
high-end, direct contributions with a significant impact on
candidate fundraising. Moreover, the limits were tailored to
avoid favoring incumbents, not to curtail the influence of
political parties, and to permit candidates to raise enough
money to make their voices heard. Although Montana's
limits were lower than most other states' in absolute
terms, they were relatively high when comparing each
state's limits to the cost of campaigning there. Thus,
Montana's chosen limits fell within the realm of
legislative judgments the courts could not second guess.
Dissenting,
Judge Bea stated that the district court properly evaluated
the evidence submitted by Montana's officials and found
the officials had not established the only constitutionally
permissible and valid state interest sufficient to justify
Montana's campaign contribution limits: the prevention of
corruption or its appearance.
OPINION
FISHER, CIRCUIT JUDGE.
Montana
limits the amount of money individuals, political action
committees and political parties may contribute to candidates
for state elective office. The district court invalidated
these limits as unduly restrictive of political speech under
the First Amendment. Because Montana's limits are both
justified by and adequately tailored to the state's
interest in combating quid pro quo corruption or its
appearance, we reverse.
Montana
has shown the risk of actual or perceived quid pro quo
corruption in Montana politics is more than "mere
conjecture, " the low bar it must surmount before
imposing contribution limits of any amount. The state has
offered evidence of attempts to purchase legislative action
with campaign contributions. Contribution limits serve the
state's important interest in preventing this risk of
corruption from becoming reality.
Montana's
limits are also "closely drawn" to serve the
state's anti-corruption interest. The limits target those
contributions most likely to result in actual or perceived
quid pro quo corruption - high-end, direct contributions with
a significant impact on candidate fundraising. Moreover, the
limits are tailored to avoid favoring incumbents, not to
curtail the influence of political parties, and to permit
candidates to raise enough money to make their voices heard.
Although Montana's limits are lower than most other
states' in absolute terms, they are relatively high when
comparing each state's limits to the cost of campaigning
there. Thus, Montana's chosen limits fall within the
realm of legislative judgments we may not second guess.
I.
Background
A.
Montana's Contribution Limits
In
1994, Montana voters passed Initiative 118, a campaign
finance reform package that included the contribution limits
at issue here. I-118's limits replaced a regime that had
been in place since 1975. That regime permitted individuals
and political parties to contribute up to the following
limits:
Table
1: Pre-Initiative 118 Limits
-
|
Governor
|
Other Statewide Election
|
Public Service Commission
|
Legislature
|
City or County
|
Individual
|
$1500
|
$750
|
$400
|
$250
|
$200
|
Political party
|
$8000
|
$2000
|
$1000
|
$250
|
$200
|
See Mont. Code Ann. § 13-37-216 (1975) (enacted
by No. 23-4795, 1975 Mont. Laws Ch. 481 § 1).
I-118
lowered the cap on individual contributions while raising the
cap on contributions from political parties.[1] Although the contribution
limits at issue here originate from I-118, the limits have
not remained static. Since I-118's enactment, the Montana
legislature has both amended the limits and indexed them to
inflation. See id. § 13-37-216 (2003) (raising
the limits); Act of Apr. 27, 2007, 2007 Mont. Laws Ch. 328
§ 1 (H.B. 706) (indexing the limits to inflation);
Admin. R. Mont. 44.11.227. Moreover, unlike the pre-1994
limits, I-118's limits apply per election
(rather than per cycle), so a contributor may give
up to the maximum twice if a candidate faces a contested
primary (once for the primary and once for the general
election). See Mont. Code Ann. § 13-37-216(5);
Mont. Comm'r of Political Practices, Amended Office
Mgmt. Policy 2.4 Reinstating Pre-Lair 2016 Campaign
Contribution Limits at 2 (May 18, 2016) ("Pre-1994
Limits Policy"), http://politicalpractices.mt.gov/conte
nt/ContributionLimitPolicy (explaining that the pre-I-118
limits applied per cycle).
Table 2
shows the post I-118 contribution limits in 1994 (when they
were enacted), 2011 (when this lawsuit began) and today.
Table 3 compares the pre-I-118 limits to the post I-118
limits as of 2017.
Table
2: Post-Initiative 118 Limits [2]
|
Governor
|
Other Statewide Election
|
Public Service Commission
|
State Senate
|
Other Public Office
|
|
1994
|
2011
|
2017
|
1994
|
2011
|
2017
|
1994
|
2011
|
2017
|
1994
|
2011
|
2017
|
1994
|
2011
|
2017
|
Individual/ PAC
|
$800
|
$1000
|
$1320
|
$400
|
$500
|
$660
|
$200
|
$260
|
$340
|
$200
|
$260
|
$340
|
$200
|
$260
|
$340
|
Political party
|
$15,000
|
$36,000
|
$47,700
|
$5000
|
$13,000
|
$17,200
|
$2000
|
$5200
|
$6900
|
$800
|
$2100
|
$2800
|
$500
|
$1300
|
$1700
|
See
Mont. Code Ann. § 13-37-216; Admin. R. Mont.
44.11.227.
Table
3: Pre-Initiative 118 Limits vs. 2017 Limits
-
|
Pre-Initiative 118
|
2017
|
|
Per Cycle
|
Per Cycle
|
Per Election
|
Individuals/PAC
|
|
|
|
Governor
|
$1500
|
$1320
|
$660
|
Other statewide
|
$750
|
$660
|
$330
|
Public Service Commissioner
|
$400
|
$340
|
$170
|
State legislature
|
$250
|
$340
|
$170
|
City or county office
|
$200
|
$340
|
$170
|
Political Parties
|
|
|
|
Governor
|
$8000
|
$47,700
|
$23,850
|
Other statewide
|
$2000
|
$17,200
|
$8600
|
Public Service Commissioner
|
$1000
|
$6900
|
$3450
|
State legislature
|
$250
|
$2800
|
$1400
|
City or county office
|
$200
|
$1700
|
$850
|
B.
Eddleman
We
first addressed - and upheld - the constitutionality of
Montana's contribution limits in Montana Right to
Life Ass'n v. Eddleman, 343 F.3d 1085 (9th Cir.
2003). Applying Buckley v. Valeo, 424 U.S. 1 (1976)
(per curiam), and Nixon v. Shrink Missouri Government
PAC, 528 U.S. 377 (2000), we held
state campaign contribution limits will be upheld if (1)
there is adequate evidence that the limitation furthers a
sufficiently important state interest, and (2) if the limits
are "closely drawn" - i.e., if they (a) focus
narrowly on the state's interest, (b) leave the
contributor free to affiliate with a candidate, and (c) allow
the candidate to amass sufficient resources to wage an
effective campaign.
Eddleman, 343 F.3d at 1092.
At step
one, we held Montana's limits furthered the state's
"interest in preventing corruption or the appearance of
corruption." Id. In reaching this conclusion,
we noted "[t]he evidence presented by . . . Montana . .
. [wa]s sufficient to justify the contribution limits
imposed, and indeed carrie[d] more weight than that presented
in Shrink Missouri." Id. at 1093. We
defined "corruption" or its appearance to include
both "instances of bribery of public officials" and
"the broader threat from politicians too compliant with
the wishes of large contributors." Id. at 1092
(quoting Shrink, 528 U.S. at 389).
At step
two, we held Montana's limits were "'closely
drawn' to avoid unnecessary abridgement of associational
freedoms." Id. at 1093. The limits were
adequately tailored to the state's "interest in
preventing corruption and the appearance of corruption"
because they "affect[ed] only the top 10% of
contributions, and . . . the percentage affected include[d]
the largest contributions" - those most likely to be
associated with actual or perceived corruption. Id.
at 1094. The limits also allowed candidates to amass
sufficient resources to wage effective campaigns, as shown by
testimony from candidates and statistics demonstrating the
minor effects of the limits on fundraising compared to the
low cost of campaigning in Montana. See id. at
1094-95. The limits, moreover, had caused no significant
difference in the amount challengers were able to raise
compared to incumbents. See id. at 1095. We
therefore upheld Montana's limits.
C.
Randall
Three
years later, the Supreme Court's decision in Randall
v. Sorrell, 548 U.S. 230 (2006), left
Eddleman's holding on less stable footing.
Randall invalidated Vermont's contribution
limits, and a three-justice plurality led by Justice Breyer
proposed a new two-part, multi-factor "closely
drawn" test. As we subsequently explained,
[u]nder [the Randall] test, the reviewing court
first should identify if there are any "danger
signs" that the restrictions on contributions prevent
candidates from amassing the resources necessary to be heard
or put challengers at a disadvantage vis-a-vis incumbents.
[Randall, 548 U.S.] at 249-52. The plurality found
four "danger signs" in Vermont's contribution
limits: "(1) The limits are set per election cycle,
rather than divided between primary and general elections;
(2) the limits apply to contributions from political parties;
(3) the limits are the lowest in the Nation; and (4) the
limits are below those we have previously upheld."
Id. at 268 (Thomas, J., concurring) (listing the
plurality's "danger signs"). The plurality
held, if such danger signs exist, then the court must
determine whether the limits are "closely drawn."
The plurality looked to "five sets of
considerations" to determine whether the statute was
closely drawn: (1) whether the "contribution limits will
significantly restrict the amount of funding available for
challengers to run competitive campaigns"; (2) whether
"political parties [must] abide by exactly the
same low contribution limits that apply to other
contributors"; (3) whether "volunteer
services" are considered contributions that would count
toward the limit; (4) whether the "contribution limits
are . . . adjusted for inflation"; and (5) "any
special justification that might warrant a contribution limit
so low or so restrictive." Id. at 253-62.
Lair v. Bullock, 798 F.3d 736, 743 (9th Cir. 2015)
(Lair II) (last two alterations in original)
(citations omitted). Although this test is in many respects
similar to the tailoring inquiry at step two of the
Eddleman analysis, it does not map perfectly onto
Eddleman.
D.
Lair
After
Randall, the plaintiffs commenced this action
challenging Montana's limits a second time. The district
court concluded Randall abrogated
Eddleman's approach to evaluating contribution
limits and held Montana's limits were invalid under
Randall. ...