[EL] Montana ruling on campaign contributions

Tue May 17 13:41:41 PDT 2016

Typically administrative enforcement bodies, like the FEC for instance, put
the onus of following contribution limits on committees and not individual
donors. (This, in my opinion, made the McCutcheon decision so easy to
decide because the FEC stopped enforcing the biennial limits altogether
leaving little track record of infracrions or enforcement). I would
envision that if limits were reinstated the state of Montana would require
registered committees to fall in accordance with said limits in a
reasonable period of time, or reinstate the limits for the following
election cycle, putting little or no burden on donors.
On May 17, 2016 4:10 PM, "Scarberry, Mark" <Mark.Scarberry at pepperdine.edu>
wrote:

> 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.
>
> [image: Share]
> <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
>
> http://www.law.uci.edu/faculty/full-time/hasen/
>
> http://electionlawblog.org
>
>
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