Ninth Circuit Orders Plaintiffs to Respond in Montana Campaign Finance Case

Today, the U.S. Court of Appeals for the Ninth Circuit ordered the plaintiffs to respond to a petition to rehear an earlier decision that threatened Montana’s campaign contribution limits. Free Speech For People had filed an amicus brief urging the court to rehear this case, and we’re pleased that the court has taken this step.

The case involves a challenge to Montana’s campaign contribution limits by wealthy donors who claim that the limits—which range from $170 for state representative to $650 for governor—are “too low.” A federal district judge in Montana agreed and threw out the limits, and the state appealed.

On May 26, 2015, a three-judge panel of the Ninth Circuit issued an opinion sending the case back to the trial judge, saying, in essence, that the judge had botched the analysis by being too strict in one place but not strict 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.

As our brief explains, the panel’s mistake lies in its assumption that “quid pro quo corruption” simply means bribery. To the contrary, “quid pro quo corruption” includes forms of improper influence that don’t meet the standards for the crime of bribery. In fact, the Supreme Court’s seminal Buckley v. Valeo decision 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.

To be sure, quid pro quo corruption is just one type of corruption, and corruption (in all its forms) is just one of several good reasons to limit the flood of money into politics. “In the long term,” says Free Speech For People’s Legal Director Ron Fein, “we need to broaden the conversation beyond just quid pro quo corruption. But in the meantime, courts need to at least define it correctly.”

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