Ninth Circuit Judges Wrangle Over Right Standard for Political Contribution Limits

Steven D. Schwinn, John Marshall Law School

The Ninth Circuit this week denied rehearing en banc of a panel ruling upholding Montana's contribution limits against a First Amendment challenge. Through a forceful dissent and response-to-the-dissent, judges on the court wrangled over the right standard for contribution limits in the wake of Citizens United and McCutcheon v. FEC.

The long-running, up-and-down case, now Lair v. Motl, tests Montana's low contribution limits, designed to address the state's unique history with political corruption. A three-judge panel of the Ninth Circuit upheld the limits, and the full court voted to deny en banc review.

In dissent, Judge Ikuta, joined by Judges Callahan, Bea, M. Smith, and N.R. Smith, argued that the panel applied too lenient a standard. In particular, Judge Ikuta wrote that under McCutcheon and Citizens United, "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.'"

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. . . . [T]he government must provide evidence that 'the harms it recites are real and that its restriction will in fact alleviate them to a material degree.'" 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" by (for instance) presenting evidence that large monetary contributions were made "to control the exercise of an officeholder's official duties" or "point[ing] to record evidence or legislative findings suggesting any special corruption problem." One thing is certain: the state cannot carry its burden with evidence showing only that large contributions increase donors' influence or access.

Judges Fisher and Murguia responded, arguing that the dissent's test "has never been adopted by the Supreme Court or this court." "The evidentiary standard established by the Supreme Court requires that a state need only demonstrate a risk of quid pro quo corruption or its appearance that is neither conjectural nor illusory."