In Lair v. Motl, a case I have been closely watching, the Ninth Circuit on a 2-1 vote reversed a district court decision and upheld Montana’s contribution limits.
The case is of course important to Montana, but it has national ramifications because the theory accepted by the trial court (and in part by a 9th Circuit motions panel) would have required very specific evidence of bribery-like corruption to sustain virtually any contribution limit. It would have had the effect of bringing down those limits wherever the precedent was applied. In today’s opinion by Judge Fisher, the court reaffirms the much laxer standard of review that has applied to contribution limits in the past, including in cases like Shrink Missouri, and even the later Randall case.
Judge Bea in dissent believes that the Supreme Court’s decisions in Citizens United and McCutcheon change everything, and that virtually all contribution limits now fail strict scrutiny (this, despite the fact that Citizens United expressly said it had nothing to say about contribution limits). From Judge Bea:
In footnote 5, the majority opinion notes that “[u]nder the dissent’s logic…Montana’s evidence is inadequate to justify any contribution limit whatsoever, no matter how high.” This is quite correct. Absent a showing of the existence or appearance of quid pro quo corruption based on objective evidence, the presence of a subjective sense that there is a risk of such corruption or its appearance does not justify a limit on campaign contributions. Restrictions on speech must be based on fact, not conjecture.
Whether the Supreme Court would go so far as Judge Bea is uncertain. But because any review would come up to the Supreme Court on a discretionary cert. petition, it may be hard to get the Court to bite on taking a case which would have such major ramifications for campaign financing in this country (particularly because many cases come up to the Court on non-discretionary appeals).