[EL] Montana ruling on campaign contributions

Tue May 17 12:56:44 PDT 2016

    Breaking: Federal Court Strikes Down Key Montana Contribution
    Limits, Setting Up Quick 9th Circuit Battle and Potential SCOTUS
    Deadlock <http://electionlawblog.org/?p=82847>

Posted onMay 17, 2016 12:52 pm 
<http://electionlawblog.org/?p=82847>byRick Hasen 
<http://electionlawblog.org/?author=3>

Senior federal district court judgeCharles Lovell 
<https://en.wikipedia.org/wiki/Charles_C._Lovell>has issuedthis 30 page 
opinion 
<http://electionlawblog.org/wp-content/uploads/lair.pdf> granting 
summary judgment to plaintiffs challenging key provisions of Montana’s 
campaign finance law, including individual and committee contributions 
to candidates for governor and state offices. This case has been 
bouncing around for years, and has been on remand from the 9th Circuit, 
but at bottom the trial court found the following: applying the 9th 
Circuit’s earlier opinion in this case and the Supreme Court’s 
definition of corruption from/Citizens United/, the court could only 
uphold Montana’s limits if they were justified to prevent quid pro quo 
corruption or its appearance, and that the limits were closely drawn 
toward that purpose. In a brief (I’d say quite superficial) analysis, 
the court held that Montana satisfied neither prong of this test. The 
court held that there was not enough evidence of corruption or its 
appearance to justify the law, and in any case the real motivation for 
the law was to promote political equality, an impermissible interest. 
(There are shades of the debate at the Supreme Court in the /Arizona 
Free Enterprise//Club/case here.) The court further held there was not 
enough evidence that the limits were closely drawn (no surprise, since 
the judge found no real interest in the law).

So what happens next? I expect the state of Montana to seek emergency 
relief from the Ninth Circuit, and in the meantime (as happened last 
time) I expect the Republican Party of Montana to /quickly/flood the 
coffers of those they want to support while this order is in effect (see 
the end of the opinion, where this happened with a $500,000 contribution 
from the party the last time around). Right now there are NO individual 
contribution limits in Montana, and the judge invites the state to enact 
new limits the next time the Legislature is in session.

Not sure what the Ninth Circuit motions panel will do, but I expect that 
this case could well end up /en banc/before the Ninth Circuit, where the 
questionable earlier decision in this case (which seems to require way 
too much evidence of quid pro quo corruption to justify campaign 
contribution limits given Supreme Court precedent) will be reconsidered. 
There’s a good chance if this happens that the district court will be 
reversed. Then again,as I’ve argued 
<http://www.slate.com/articles/news_and_politics/jurisprudence/2014/04/the_subtle_awfulness_of_the_mccutcheon_v_fec_campaign_finance_decision_the.html>, 
the McCutcheon case (which gets very little attention in Judge Lovell’s 
opinion) contains some language making it much easier to challenge 
contribution limit laws as violating the First Amendment.

Either way, the matter could come before the Supreme Court, which is 
currently divided 4-4 on these issues, leaving the matter in the hands 
of the Ninth Circuit. As I’ve said, the absence of Justice Scalia has 
empowered the circuit courts and state supreme courts tremendously.

Here 
<http://www.kxlh.com/story/31996565/federal-judge-strikes-down-montanas-campaign-contribution-limits>is 
an early news story on what should be a case that will garner national 
attention.

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Posted incampaign finance <http://electionlawblog.org/?cat=10>,Supreme 
Court <http://electionlawblog.org/?cat=29>

-- 
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org

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