Free Speech for People has filed an amicus brief before the U.S. Court of Appeals for the Ninth Circuit supporting Montana’s request that a challenge to Montana’s campaign contribution limits for state elections be reheard before a larger group of judges. On May 26, a three-judge panel of the Ninth Circuit overturned a previous panel’s 2003 decision upholding the limits, basing their ruling on a perceived conflict with the Supreme Court’s Citizens United decision. Our brief argues that the panel misread Citizens United, invented a conflict where none exists, and thus acted outside its authority by overruling the earlier panel decision. We were joined in this brief by Board Member James Nelson (a retired Justice of the Montana Supreme Court), the Montana-based American Independent Business Alliance, and the American Sustainable Business Council.

Free Speech for People’s brief argues that the panel’s erroneous decision was rooted in a misunderstanding of the term “quid pro quo corruption.” It’s bad enough that the Supreme Court insists on limiting its focus narrowly to “quid pro quo corruption” and avoids considering how the dominance of big money in politics threatens the right to vote. In fact, earlier in this very case we argued that the court should recognize the role Montana’s contribution limits play in reducing the impact of a “wealth primary.” But even if courts are going to focus on “quid pro quo corruption,” they should at least get that concept right.

The Ninth Circuit’s 2003 ruling cited a 2000 Supreme Court decision that described Montana’s anticorruption interest as more extensive than merely preventing bribery of public officials. According to the May 26 panel decision, the earlier rulings were incompatible with Citizens United, which deemed the state’s anticorruption interest as “limited to quid pro quo corruption.” By defining quid pro quo corruption as synonymous with bribery, the court created a conflict between these rulings.

Our brief argues, however, that quid pro quo corruption has always included types of improper influence that go beyond just bribery, ever since the term was first applied in Buckley v. Valeo. Our brief reminds the court that Buckley defined quid pro quo corruption through specific examples showing the improper influence of money on elected officials, but which fall short of the crime of bribery.

Of course, we need to broaden the conversation beyond just quid pro quo corruption. But in the meantime, courts need to at least define it correctly.

Download the amicus brief [PDF]


— Commentary provided by Danny Gifford