Lair v. Motl

• Decision Date: 02 May 2018
• Docket Number: No. 16-35424,16-35424
• Citation: 889 F.3d 571 (Mem)
• Parties: 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, Rick Hill, Warden, Intervenor–Plaintiff–Appellee, v. 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.
• Court: U.S. Court of Appeals — Ninth Circuit

889 F.3d 571 (Mem)

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,Rick Hill, Warden, Intervenor–Plaintiff–Appellee,

v.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.

No. 16-35424

United States Court of Appeals, Ninth Circuit.

Filed May 2, 2018

Dissent by Judge Ikuta ;

Response to Dissent by Judges Fisher and Murguia

ORDER

Judge 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.

The 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.

The petition for rehearing en banc, filed November 6, 2017, is DENIED .

IKUTA, Circuit Judge, with whom CALLAHAN, BEA, M. SMITH, and N.R. SMITH, Circuit Judges, join, dissenting from denial of rehearing en banc:

In two 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 , ––– U.S. ––––, 134 S.Ct. 1434, 1441, 1444–45, 188 L.Ed.2d 468 (2014) ; Citizens United v. FEC , 558 U.S. 310, 359, 130 S.Ct. 876, 175 L.Ed.2d 753 (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").

Our 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.

Because the majority's framework contravenes Citizens United and McCutcheon , we should have taken this case en banc to correct the panel opinion's error.

I

Donor 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, 96 S.Ct. 612, 46 L.Ed.2d 659 (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, 96 S.Ct. 612 ). Thus, the First Amendment protects an individual's "right to participate in democracy through political contributions." Id. at 1441.

Because 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, 96 S.Ct. 612 ; see also Nixon v. Shrink Mo. Gov't PAC , 528 U.S. 377, 387–88, 120 S.Ct. 897, 145 L.Ed.2d 886 (2000).

In 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, 96 S.Ct. 612. 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 § 1(a)(3) ) ).

But 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, 130 S.Ct. 876, 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, 105 S.Ct. 1459, 84 L.Ed.2d 455 (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, 124 S.Ct. 619, 157 L.Ed.2d 491 (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, 130 S.Ct. 876 (citation omitted).

Most 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, 130 S.Ct. 876. 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, 124 S.Ct. 619 (opinion of Kennedy, J.) ).¹

In 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.² 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, 121 S.Ct. 2404, 150 L.Ed.2d 532 (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, 130 S.Ct. 876, 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, 116 S.Ct. 2309, 135 L.Ed.2d 795 (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, 127 S.Ct. 2652, 168 L.Ed.2d 329 (2007) (opinion of Roberts, C.J.) ).

II

Despite 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 conjec ture.’ " 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 the risk of actual or perceived quid pro quo corruption is not illusory , a bar Montana's evidence easily clears." Id. (emphasis added).

This highly attenuated standard is two steps removed from the standard explained by Citizens United and McCutcheon ....