Yesterday, I reported that the Ninth Circuit had stayed federal district judge Lowell’s order permanently enjoining a host of campaign contribution limits in Montana. The appeals court indicated it did so because Judge Lowell issued his order but did not provide an accompanying opinion to explain his reasoning.  It seems pretty clear from this case and the Nevada “none of the above” case that in these emergency election type situations, the 9th Circuit is not going to uphold orders when district courts issue opinions without explaining their reasoning at the same time. But the 9th Circuit left open the possibility it could lift the stay once it reviewed Judge Lowell’s opinion.

Soon after the Ninth Circuit issued its temporary stay, Judge Lowell issued his 38-page opinion. I indicated yesterday that the court could well keep the stay in place because the courts have expressed concerns about changing rules just before an election–when there are reliance interests in the system as it is and the potential for confusion.

I have now had a chance to read Judge Lowell’s opinion, and I think that the Ninth Circuit could well lift the stay in part.

1. This is a pretty conservative 9th Circuit panel (Bybee, Clifton, Gould) and they are likely to be sympathetic with the general thrust of Judge Lowell’s analysis that the very low $160 contribution limit applicable to some elections in Montana is too low to allow for effective advocacy.  Judge Lowell does a very good job applying the Randall factors, and this is the first case I’ve seen since Randall where I thought plaintiffs actually presented decent evidence to satisfy the burden under the test set forth by Justice Breyer in his plurality Randall opinion.  The judges could well lift the stay as to the $160 limit, if they are not bothered that doing so would be changing rules just before the election.

2. I see two big problems with what Judge Lowell did, aside from changing the rules just before the election.  First, Judge Lowell made this apply immediately, even though he recognized that the Montana Legislature will not reconvene forthree months.  The effect of Judge Lowell’s ruling, if it is allowed to stand, is to get rid of the main set of contributions in the state, without the ability of the state to enact limits which would pass constitutional muster (it won’t be hard to find limits which are constitutionally acceptable under existing precedent).  This puts the state in a terrible bind, and it seems that it doesn’t show enough deference to the idea that legislatures can enact reasonable contribution limits for anticorruption reasons, and this order deprives the state of the chance to have a reasonable transition to new rules.

3. Second, the judge struck down the whole statute, even though there was no evidence to support challenges to most of the parts of the statute, something Judge Lowell acknowledged. The judge’s severability analysis was not persuasive: the rest of the law easily could function without the $160 limit applied to some races, and clearly the state legislature would like to have at least some of these laws in place.  The court hearing this case on the merits could well reverse on this broad ruling. Randall requires a detailed factual analysis, and while it looks like there was such an analysis as to the $160 limit, it does not appear to be there for the rest of the statute.

Stay tuned.