Back in October, I wrote the following:
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).
Today the 9th Circuit denied rehearing en banc. Judge Ikuta, for five judges wrote a dissent, to which Judges Fisher and Murguia responded. Judge Ikuta did not go as far as Judge Bea did in the panel decision. Instead she says that the Supreme Court’s opinions in Citizens United and McCutcheon have changed the Court’s approach to considering evidence of corruption to sustain a campaign contribution law.
Judge Ikuta’s dissent hits on an unresolved question. There are a number of campaign contribution cases, such as Shrink Missouri, decided when the Court was much more deferential to campaign finance regulations and much more willing to let states and localities support contribution limits with a little bit of evidence. No doubt these cases are in tension with McCutcheon, but McCutcheon did not overrrule these cases. And so judges like today divide on what to do.
The Supreme Court could well grant cert. in this case to resolve the ambiguity. The result, under the current Court, would almost certainly be to call into question all campaign contribution limits (as indicated in the Judge Fisher/Judge Murguia response). For that reason, the Court could decide to take a pass, as it has to the multiple challenges to the soft money provisions of the McCain-Feingold law which Jim Bopp has brought to the Court (he’s behind this one too).
In other words: if the Court decides this case following the jurisprudence it has been adopting in the campaign finance cases, it is hard to see how it will conclude many campaign contribution limits will stand. For this reason, the Court may not want to go down that road, given how disruptive and crazy such a ruling would be.