Ninth Circuit decides campaign finance case In Montana Right to Life v. Eddleman, the Ninth Circuit, by a 2-1 vote, upheld two provisions in a Montana campaign finance initiative:

The first lowers the maximum dollar amount both political action committees and individuals may contribute to a political candidate; the second limits theaggregate dollar amount a candidate may receive from all PACs combined.

Plaintiffs-appellants brought suit to invalidate some of the measures in Initiative 118, claiming they unduly burdened protected speech and associational rights. After a four-day bench trial, the district court made numerous factual findings and struck down portions of Initiative 118 not at issue here. As to the two provisions challenged on appeal, the district judge upheld them as sufficiently tailored to achieving Montana’s important interest in preventing corruption and the appearance of corruption in Montana politics. We affirm. The district court’s factual findings are adequately supported by the record and are not clearly erroneous. Applying these facts to the analytical framework set forth in Buckley v. Valeo, 424 U.S. 1 (1976) and Nixon v. Shrink Missouri Gov’t PAC, 528 U.S. 377 (2000), we agree that the two challenged provisions do not violate the First Amendment.

The dissenting judge wrote:

Where I depart from the majority is on the constitutionality of the aggregate PAC contribution limit. I disagree that the State has demonstrated a “genuine threat to its important governmental interests” or has “employ[ed] means closely drawn to avoid unnecessary abridgment” of protected activity. Citizens Against Rent Control/Coalition for Fair Housing v. City of Berkeley, 454 U.S. 290, 302 (1981) (Blackmun, & O’Connor, J.J., concurring) (internal quotation marks omitted).
The Supreme Court has previously defined corruption as “a subversion of the political process” where “[e]lected officials are influenced to act contrary to their obligations of office by the prospect of financial gain to themselves or infusions of money into their campaigns.” Federal Election Comm’n v. National Conservative Political Action Comm., 470 U.S. 480, 497 (1985) (“NCPAC”). I agree that Montana has a significantly important interest in preventing corruption associated with large contributions. However, I submit that large individual contributions from persons and PACs have been addressed by Montana’s individual contribution limits as set forth in Mont. Code Ann. § 13-37-216 (2001). I find that having a limit on the amount an individual PAC may contribute to a candidate sufficiently prevents any one PAC from exerting “unfair influence” over a candidate. Nevertheless, the State has chosen to enact an aggregate PAC contribution limit to prevent a candidate from being overly influenced by special interests generally. The predicate for such a position must necessarily be that all PACs operate with a monolithic agenda. This ignores the obvious. Like individual persons, each PAC has its own interests and its own reasons for contributing. There is no evidence to support a proposition that all PACs exert unfair influence, or are collectively capable of doing so. I conclude that not only has the State failed to demonstrate a genuine threat, i.e., that all PAC contributions exert an unfair influence over candidates to justify the State’s interest in preventing perceived and actual corruption, but the State has also failed to employ means closely drawn to that interest.

Listen to oral argument in punch card case? The Ninth Circuit has posted this link purportedly to the oral argument in the recall case. So far, it is not working.

"A Congress in Reserve" Cal Thomas offers this commentary on the McCain-Feingold case.

"No Clear Victors Emerge" Roll Call offers this post-BCRA argument roundup (registration required).

Sitting next to Bob Bauer Here's a small item from Roll Call's "Heard on the Hill" column:

Reform War. In a sign of just how testy some insiders are getting as they await the fate of the McCain-Feingold reform law, Rep. Marty Meehan (D-Mass.) is taking aim at Democratic election lawyer Bob Bauer.

Meehan was overheard on Monday musing that Bauer, who advises clients like Senate Minority Leader Tom Daschle (D-S.D.), was spotted sitting with GOP election lawyer Ben Ginsburg at the Supreme Court during the oral arguments in McConnell v. FEC on Monday.

Meehan, one of the chief sponsors of the reform law up for review, griped that Bauer’s decision to sit with a Republican lawyer in the morning session proved he’s been hostile to the new law all along and hopes it collapses.

The Congressman told HOH on Wednesday that he was merely amused that Bauer, who believes the new law will hurt the Democratic Party, was showing his colors in his seat selection. “There’s a lack of bipartisanship in Washington, but not when it comes to the opponents of campaign finance reform,” he said.

But he stressed that Bauer’s efforts to kill the bill haven’t angered him. “We beat him on the issue,” Meehan said. “He worked hard to get the Democratic leadership to oppose this bill and they didn’t. So it certainly doesn’t irk me.”

Bauer did move during the afternoon session to sit next to Rick Hasen, a pro-reform scholar from California. And the lawyer said he doubts that his seating assignments will have any influence on the high court anyway.

“I am flattered that the Congressman noticed that I was there,” Bauer told HOH. “But he needn’t be concerned, because I am reasonably certain that none of the Justices spotted me.”

-- 
Rick Hasen
Professor of Law and William M. Rains Fellow
Loyola Law School
919 South Albany Street
Los Angeles, CA  90015-1211
(213)736-1466
(213)380-3769 - fax
rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html
http://electionlaw.blogspot.com