Lair v. Motl

          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. ...