Johnstone: Thoughts on Montana Campaign Finance Decision

The following is a guest post from Anthony Johnstone:

The Purcell Principle is absent in the Lair v. Motl court’s repeatedly bad timing. Recall its last order invalidating Montana’s contribution limits came down just a month before the 2012 general election. Now, even though the general election is in November, the primary election (subject to its own per-election contribution limits) is in just three weeks!

Yet a separate state law principle should mitigate the disruption to ongoing Montana campaigns. In a 2013 Article I criticized the Lair court’s failure to recognize Montana law’s severability doctrine in its partial invalidation of several state campaign statutes. By relying on Randall v. Sorrell for its remedy instead, “In effect the Lair court answered a question about the Montana legislature’s intent behind the Montana law with what three U.S. Supreme Court justices thought was the Vermont legislature’s intent in enacting a different Vermont law.”

This time, the court properly left the remedial impact of its order to state law in the first instance. In its conclusion, the court writes: “Defendants have suggested that the contribution limits pre-dating Initiative 118-which the Court notes were significantly higher for individuals and political committees, but quite a bit lower for political parties-should spring into effect in the event the Court declares the 2011 contribution limits unconstitutional. The Court expresses no opinion on this point, as it was neither a subject at trial nor in the briefing submitted on summary judgment. The Court leaves this question for the Montana Attorney General to consider.”

Picking up on this cue, yesterday the Montana Commissioner of Political Practices announced:

* * * Under Montana law, the Court’s ruling striking the current limits effectively reinstates the political committee and individual contribution limits that were in place before the 1994 enactment. These limits apply to the election cycle rather than to each election. By statute, contribution limits must be adjusted for inflation. Based on the Court ruling and the statutory inflation factor, the contribution limits that currently apply are as follows: 2016 Contribution limits for individuals/political committees [per election cycle] Governor/Lieutenant Governor: $1,990 [from $660 per election] Other Statewide offices: $990 [from $330 per election] District Court Judge, PSC, State Senate: $530 [from $170 per election] All other elected offices, including House: $330 [from $170 per election] The above limits are reinstated under a policy adopted today by the Commissioner’s Office. The Policy is adopted under the reasoning, authority and direction set by the Montana Supreme Court in State ex. rel. Woodahl v. District Court, 162 Mont. 283, 290, 511 P. 2d 318, 322 (1973): “[a]n unconstitutional amendment to a law leaves the section intact as it had been before the attempted amendment.” This issue is further addressed by AG Opinion Vol. 51, No. 2. * * *

So Rick was incorrect to write “there are NO individual contribution limits in Montana.” It was part of the 1994 enactment that was unconstitutional, and the court’s analysis focused on the record developed under those relatively low contribution limits. With its invalidation, prior law—not NO law—takes its place. This might be a problem if prior law set more restrictive contribution limits. But the new (old) limits are well within the mainstream for contribution limits, especially considering Montana’s relatively low-cost politics. (Campaign finance is a salient issue for Montana voters, and the current candidates for governor not only said they will abide by the limits just invalidated but also called on other candidates to do the same.) Of course, the plaintiffs may rehash their constitutional challenge to the new (old) limits, and to the even earlier and higher limits set by Montana in the Watergate Era. If those relatively high limits are in jeopardy too, we should not expect most state and federal contribution limits to survive the kind of scrutiny this court applied. So with Rick, the litigants, and the Ninth Circuit, we now turn our attention to a certain short-handed federal court in Washington, D.C.

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