On Tuesday, the U.S. Court of Appeals for the Ninth Circuit issued an order denying Montana’s petition for rehearing en banc in Montana’s contribution limits case. Quick background, then our analysis below.

Background

The history of this case is complex, but we explained the background in May when a three-judge panel of the Ninth Circuit issued its original opinion. Very briefly, the panel concluded that the district judge who  struck down Montana’s campaign contribution limits went too far in one part of the legal analysis, but not far enough in another. In particular, the panel decided that Supreme Court and Ninth Circuit precedent allowing states to limit forms of corruption that go beyond just bribery isn’t valid anymore, because the Supreme Court’s Citizens United v. FEC decision limits corruption to “quid pro quo corruption.”

Montana asked the court to revisit the case with a special “en banc” panel of eleven judges, and Free Speech For People filed an amicus brief in support of Montana’s request, joined by co-signers the Honorable James Nelson (a retired Justice of the Montana Supreme Court, and now a board member of Free Speech For People), the American Independent Business Alliance, and the American Sustainable Business Council.

Analysis

The Ninth Circuit’s decision not to rehear the case en banc means that the panel decision still stands, which means that the case goes back to the district judge. That means the Montana attorney general’s office must demonstrate that its campaign contribution limits are “closely drawn” to “quid pro quo corruption.”

Here’s some food for thought:

• There was a time, not too long ago, when courts, including the Supreme Court, understood the issue of money in politics as an issue of political equality. Then the Supreme Court narrowed its frame to “corruption,” and more recently, “quid pro quo corruption.” With each tightening of the judicial screws, there’s less and less room for the public to take control of election financing.
• Even so, there’s some room for hope. Some commentators treat “quid pro quo corruption” as synonymous with “bribery.” But actually, quid pro quo corruption is broader than just criminal bribery. In fact, the Supreme Court’s seminal Buckley v. Valeodecision itself relies on three specific examples of what it meant by quid pro quo corruption—and these examples go well beyond just bribery. The justices who joined the Citizens United majority opinion overruled plenty of precedent on their way to striking down limits on corporate and union election spending, so if they had wanted to overrule Buckley, they certainly could have. But they didn’t. And so the precedent allowing states to push back against the full range of quid pro quo corruption is still good. Montana may be able to prove its case with evidence drawing on the full breadth of quid pro quo corruption as set forth in Buckley.
• Even so, Montana has a difficult task in attempting to prove that its limits are “closely drawn” to quid pro quo corruption (however defined), precisely because its contribution limits have been in place for decades. If the contribution limits are effective, then they limit quid pro quo corruption! This type of problem hasn’t bothered the Roberts Court, which struck down key preventative provisions of the Voting Rights Act on the grounds that there wasn’t enough recent evidence of the problems the law was successfully preventing, in a move described by dissenting Justice Ginsburg as “like throwing away your umbrella in a rainstorm because you are not getting wet.”
• This case is probably ultimately headed for the Supreme Court. In 2006, a fractured Court struck down Vermont’s campaign contribution limits as “too low” in Randall v. Sorrell. That case was decided 6-3, but there was no controlling opinion, and so it is not considered binding precedent—an issue that was important in this Montana case. The Montana challengers may be hoping to replay Randall and this time get a dispositive majority ruling in their favor. If that happens, be prepared for challenges to campaign contribution limits all across the country.