Doug Lair; Steve Dogiakos; American Tradition Partnership; American Tradition Partnership PAC; Montana Right to Life Association PAC; Sweet Grass Council for Community Integrity; Lake County Republican Central Committee; Beaverhead County Republican Central Committee; Jake Oil, LLC; Jl Oil, LLC; Champion Painting; John Milanovich, Plaintiffs-Appellees,
Jonathan Motl, in his official capacity as Commissioner of Political Practices; Tim Fox, in his official capacity as Attorney General of the State of Montana; Leo J. Gallagher, in his official capacity as Lewis and Clark County Attorney, Defendants-Appellants. Rick Hill, Warden, Intervenor-Plaintiff-Appellee,
Before: Raymond C. Fisher, Carlos T. Bea and Mary H. Murguia,
panel denied the petition for rehearing en banc on behalf of
opinion, filed November 6, 2017, the panel reversed the
district court's judgment in an action challenging
Montana's limits on the amount of money individuals,
political action committees and political parties may
contribute to candidates for state elective office.
Ikuta, joined by Judges Callahan, Bea, M. Smith, and N.R.
Smith dissented from the denial of rehearing en banc because
the majority applied a legal standard inconsistent with
McCutcheon v. FEC, 134 S.Ct. 1434 (2014), and
Citizens United v. FEC, 558 U.S. 310 (2010), and as
a result, relied on evidence of access or influence that
could not prove Montana's state interest in restricting
contribution limits. Judge Ikuta would require Montana to
present evidence of actual or apparent quid pro quo
Fisher and Murguia responded to the dissent from the denial
of rehearing en banc, and wrote that the evidentiary burden
proposed by the dissent has never been adopted by the U.S.
Supreme Court or this court.
Murguia has voted to deny the petition for rehearing en banc,
and Judge Fisher has so recommended. Judge Bea has voted to
grant the petition for rehearing en banc.
full court was advised of the petition for rehearing en banc.
A judge requested a vote on whether to rehear the matter en
banc. The matter failed to receive a majority of the votes of
the nonrecused active judges in favor of en banc
consideration. Fed. R. App. P. 35.
petition for rehearing en banc, filed November 6, 2017, is
Circuit Judge, with whom CALLAHAN, BEA, M. SMITH, and N.R.
SMITH, Circuit Judges, join, dissenting from denial of
rehearing en banc:
important cases, Citizens United and
McCutcheon, the Supreme Court clarified that the
only state interest that can justify restrictions on campaign
contributions is "quid pro quo" corruption or its
appearance, and that the government must present objective
evidence that such a problem exists. See McCutcheon v.
FEC, 134 S.Ct. 1434, 1441, 1444-45 (2014); Citizens
United v. FEC, 558 U.S. 310, 359 (2010). In doing so,
the Court swept away the Ninth Circuit's case law that
gave states essentially free rein to restrict campaign
contributions. See Mont. Right to Life Ass'n v.
Eddleman, 343 F.3d 1085, 1096 (9th Cir. 2003) (holding
that a state may justify its restrictions by showing merely a
problem of "undue influence and the appearance of undue
influence by special interest groups").
court may not ignore such an important change in Supreme
Court jurisprudence. But the majority here does just that by
applying the same legal standard and evidentiary burden that
we had adopted before the Supreme Court decided
McCutcheon and Citizens United. See
Lair v. Motl, 873 F.3d 1170, 1178 (9th Cir. 2017).
Applying this superseded standard, the majority upholds
Montana's contribution limits without any
evidence of actual or apparent quid pro quo corruption.
See id. at 1178-80.
the majority's framework contravenes Citizens
United and McCutcheon, we should have taken
this case en banc to correct the panel opinion's error.
contributions are a form of political speech that merit the
respect the First Amendment requires. "[T]he First
Amendment safeguards an individual's right to participate
in the public debate through political expression and
political association." McCutcheon, 134 S.Ct.
at 1448. "When an individual contributes money to a
candidate, he exercises both of those rights: The
contribution 'serves as a general expression of support
for the candidate and his views' and 'serves to
affiliate a person with a candidate.'" Id.
(quoting Buckley v. Valeo, 424 U.S. 1, 21-22
(1976)). By contributing money, an individual participates
"in an electoral debate that we have recognized is
'integral to the operation of the system of government
established by our Constitution.'" Id.
(quoting Buckley, 424 U.S. at 14). Thus, the First
Amendment protects an individual's "right to
participate in democracy through political
contributions." Id. at 1441.
the First Amendment protects political contributions, states
may restrict contributions only if they can show that the
restrictions meet a heightened standard of scrutiny: a state
must demonstrate "a sufficiently important
interest" and employ "means closely drawn to avoid
unnecessary abridgment of associational freedoms."
Buckley, 424 U.S. at 25; see also Nixon v.
Shrink Mo. Gov't PAC, 528 U.S. 377, 387-88 (2000).
Eddleman, our court misinterpreted Buckley
and Shrink Missouri as setting a low bar for the
sort of state interest that was "sufficiently
important" to justify restrictions on campaign
contributions. We read Buckley as identifying two
sufficient state interests: (1) quid pro quo corruption and
(2) "the avoidance of the appearance of improper
influence." 424 U.S. at 27. Focusing primarily on the
second prong, we extended this interpretation to hold that a
state's interest in "preventing undue influence and
the appearance of undue influence by special interest
groups" was a sufficiently important state interest to
justify limitations on campaign contributions.
Eddleman, 343 F.3d at 1096. As a practical matter,
this standard means that a state can restrict political
contributions with little or no evidence of any corruption
problem. See, e.g., Jacobus v. Alaska, 338
F.3d 1095, 1114 (9th Cir. 2003) (upholding a complete ban on
contributions to political parties based solely on a
legislative statement that "organized special interests
are responsible for raising a significant portion of all
election campaign funds and may thereby gain an undue
influence over election campaigns and elected
officials." (quoting 1996 Alaska Sess. Laws 48 §
Citizens United and McCutcheon clarified
that we misinterpreted Buckley in Eddleman
and Jacobus. We now know that the only qualifying
state interest is an interest in preventing quid pro quo
corruption or its appearance, Citizens United, 558
U.S. at 359, and we also have a definition of this qualifying
interest. "[Q]uid pro quo corruption" means "a
direct exchange of an official act for money, "
McCutcheon, 134 S.Ct. at 1441, or "dollars for
political favors, " id. (quoting FEC v.
Nat'l Conservative Political Action Comm., 470 U.S.
480, 497 (1985)), or "the narrow category of money gifts
that are directed, in some manner, to a candidate or
officeholder, " McCutcheon, 134 S.Ct. at 1452
(quoting McConnell v. FEC, 540 U.S. 93, 310 (2003)
(opinion of Kennedy, J.)). In short, the only state interest
that justifies contribution limits is the prevention of acts
that "would be covered by bribery laws if a quid pro quo
arrangement were proved." Citizens United, 558
U.S. at 356 (citation omitted).
important for correcting our case law, the Supreme Court has
now made clear an interest in combating influence and access
is not enough. Id. at 359. Indeed, the Court
expressly rejected any "influence" standard,
holding that "[r]eliance on a 'generic favoritism or
influence theory . . . is at odds with standard First
Amendment analyses because it is unbounded and susceptible to
no limiting principle.'" Id. (quoting
McConnell, 540 U.S. at 296 (opinion of Kennedy,
light of the Supreme Court's clarification, a state can
justify imposing regulations limiting individuals'
political speech (via limiting political contributions) only
by producing evidence that it has a real problem in combating
actual or apparent quid pro quo corruption. The Court
regularly imposes such an evidentiary burden in intermediate
scrutiny contexts: the government must provide evidence that
"the harms it recites are real and that its restriction
will in fact alleviate them to a material degree."
Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 555
(2001) (citation omitted) (applying intermediate scrutiny to
commercial speech). To meet this test here, a state must show
that it has a realistic need to prevent acts that "would
be covered by bribery laws, " Citizens United,
558 U.S. at 356, by (for instance) presenting evidence that
large monetary contributions were made "to control the
exercise of an officeholder's official duties, "
McCutcheon, 134 S.Ct. at 1450, or "point[ing]
to record evidence or legislative findings suggesting any
special corruption problem, " Colo. Republican Fed.
Campaign Comm. v. FEC, 518 U.S. 604, 618 (1996)
(principal opinion). One thing is certain: the state cannot
carry its burden with evidence showing only that large
contributions increase donors' influence or access.
McCutcheon, 134 S.Ct. at 1441, 1451. Even if the
"line between quid pro quo corruption and general
influence may seem vague at times . . . 'the First
Amendment requires us to err on the side of protecting
political speech rather than suppressing it.'"
Id. at 1451 (quoting FEC v. Wis. Right to Life,
Inc., 551 U.S. 449, 457 (2007) (opinion of Roberts,
the Supreme Court's timely clarification, the majority
elects to ignore it in upholding Montana's limitations on
contributions. Instead, the majority articulates the
following legal standard: "To satisfy its burden,
Montana must show the risk of actual or perceived
quid pro quo corruption is more than 'mere
conjecture.'" Motl, 873 F.3d at 1178
(emphasis added) (quoting Eddleman, 343 F.3d at
1092). Moreover, "Montana need not show any completed
quid pro quo transactions to satisfy its burden."
Id. at 1180. Rather, Montana "simply must show