[EL] Montana ruling on campaign contributions

[Scarberry, Mark]

Is it clear that, if the Ninth Circuit reverses, people who made contributions in violation of the Montana law but in reliance on the district court decision will not be subject to sanctions? Regardless of the merits here, would it chill exercise of constitutional rights if a person had to worry about potential reversal of a decision allowing exercise of constitutional rights, as decided by a lower court? Is there an injunction in place here protecting such persons in the event of a reversal? Would such an injunction be proper in this case and others? Would such an injunction be subject to reversal?

I imagine there is a clear answer to my first question, and that I just haven’t come across it the relevant authorities.

Mark

Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law




From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Rick Hasen
Sent: Tuesday, May 17, 2016 12:57 PM
To: law-election at UCI.edu
Subject: [EL] Montana ruling on campaign contributions

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 on May 17, 2016 12:52 pm<http://electionlawblog.org/?p=82847> by Rick Hasen<http://electionlawblog.org/?author=3>

Senior federal district court judge Charles Lovell<https://en.wikipedia.org/wiki/Charles_C._Lovell> has issued this 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.
[cid:image001.png at 01D1B03D.211960E0]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D82847&title=Breaking%3A%20Federal%20Court%20Strikes%20Down%20Key%20Montana%20Contribution%20Limits%2C%20Setting%20Up%20Quick%209th%20Circuit%20Battle%20and%20Potential%20SCOTUS%20Deadlock&description=>
Posted in campaign 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<mailto:rhasen at law.uci.edu>

http://www.law.uci.edu/faculty/full-time/hasen/

http://electionlawblog.org
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