Eighth Circuit: Missouri Constitutional Amendment Prohibiting Inter-PAC Contributions Violates First Amendment

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In its brief opinion in Free and Fair Election Fund v. Missouri Ethics Commission, a panel of the Eighth Circuit agreed with the district judge that Mo. Const. Art. VIII §23.3 violates the First Amendment.

The Missouri constitutional provision, approved by voters in November 2016, prohibited political action committees (PACs) from receiving contributions from other political action committees.  The PAC Free and Fair Election Fund quickly challenged the constitutional amendment contending that the inter-PAC transfer ban violated the First Amendment. The district judge and appellate panel agreed, reasoning that restricting the recipients to whom a PAC can donate "limits the donor-PAC’s speech and associational rights under the First Amendment," and thus "the challenged law must advance a sufficiently important state interest and employ means closely drawn to avoid unnecessary abridgment of First Amendment freedoms."

Quoting McCutcheon v. FEC (2014), the Eighth Circuit reasoned:

There is only one legitimate state interest in restricting campaign finances: “preventing corruption or the appearance of corruption.” This interest is limited to preventing “only a specific type of corruption—‘quid pro quo’ corruption” or its appearance.  A large donation that is not made “in connection with an effort to control the exercise of an officeholder’s official duties, does not give rise to . . . quid pro quo corruption.”  Similarly, the general risk that a donor, through large donations, will “garner influence over or access to elected officials or political parties,” either in fact or in appearance, is insufficient to create quid pro quo corruption.  Instead, “the risk of quid pro quo corruption is generally applicable only to the narrow category of money gifts that are directed, in some manner, to a candidate or officeholder.”

[citations omitted].  The Eighth Circuit held that the inter-PAC transfer ban "does little, if anything, to further the objective of preventing corruption or the appearance of corruption," distinguishing the 2016 Eleventh Circuit decision in Alabama Democratic Conference v. Attorney General of Alabama, because "unlike Alabama, Missouri limits the contributions that a PAC can make to a candidate, so the anti-corruption interest cited in support of the Alabama law is diminished here."

The Eighth Circuit further found that the transfer ban was not closely drawn: "the risk of corruption from PAC- to-PAC transfers is modest at best, and other regulations like contribution limits and disclosure requirements act as prophylactic measures against quid pro quo corruption."

The Eighth Circuit affirmed the injunction against the Missouri constitutional provision, perhaps setting up a circuit conflict on the constitutionality of inter-PAC transfers.

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