Doug Lair v. Jonathan Motl , 889 F.3d 571 ( 2018 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DOUG LAIR; STEVE DOGIAKOS; No. 16-35424
AMERICAN TRADITION
PARTNERSHIP; AMERICAN D.C. No.
TRADITION PARTNERSHIP PAC; 6:12-cv-00012-
MONTANA RIGHT TO LIFE CCL
ASSOCIATION PAC; SWEET GRASS
COUNCIL FOR COMMUNITY
INTEGRITY; LAKE COUNTY ORDER
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.
2 LAIR V. MOTL
Filed May 2, 2018
Before: Raymond C. Fisher, Carlos T. Bea
and Mary H. Murguia, Circuit Judges.
Order;
Dissent by Judge Ikuta;
Response to Dissent by Judges Fisher and Murguia
LAIR V. MOTL 3
SUMMARY*
Civil Rights
The panel denied the petition for rehearing en banc on
behalf of the Court.
In its 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.
Judge 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
corruption.
Judges 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.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 LAIR V. MOTL
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, 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
LAIR V. MOTL 5
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 (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
6 LAIR V. MOTL
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; see also Nixon v. Shrink Mo. Gov’t PAC,
528 U.S. 377, 387–88 (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. 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)).
LAIR V. MOTL 7
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, 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).
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. 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,
J.)).1
1
The Supreme Court identified other legislative objectives that are
also insufficient to suppress campaign speech, such as trying to “level the
playing field,” or “level electoral opportunities”; to “equaliz[e] the
financial resources of candidates”; or to “restrict the speech of some
elements of our society in order to enhance the relative voice of others.”
McCutcheon, 134 S. Ct. at 1450 (citations omitted).
8 LAIR V. MOTL
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 (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
2
The majority notes that “a state’s contribution limits may even be
‘prophylactic,’” Response at 22, citing a passage in McCutcheon warning
against imposing “prophylaxis-upon-prophylaxis.” 134 S. Ct. at 1458
(citation omitted). But while a state’s contribution limit may be
prophylactic (meaning that a state is not limited to barring only the very
act of quid pro quo corruption), the state may not impose such a limit until
it has carried its burden of showing it has a problem with actual or
apparent quid pro quo corruption in the first place. Id. at 1452.
 LAIR V. MOTL 9
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, 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 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 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. Under the majority’s test, rather than prove the
existence of corrupt arrangements or their appearance, a state
need produce evidence only of a “risk” of such arrangements
or a “perceived threat” of such arrangements. And the
majority further reduces even that light burden: the “risk” or
“perceived threat” need only be “more than mere conjecture”
or “not illusory.” Motl, 873 F.3d at 1178–79.
Under this standard, Montana can carry its burden of
proving the need to combat actual or apparent quid pro quo
corruption without presenting any evidence of such a
problem. Instead, Montana need only produce evidence of a
risk or perception of a threat that is more than merely
10 LAIR V. MOTL
illusory. See Motl, 873 F.3d at 1179. This means that a state
can justify its restrictions merely by showing a substantial
donation by a special interest or a news article or survey
suggesting the public is concerned about donors furthering
their legislative goals. But this of course is merely evidence
of access or influence, which the Supreme Court has
specifically disavowed as inadequate. Citizens United,
558 U.S. at 359.
The majority’s minimal benchmark is wholly an invention
of our Ninth Circuit. Although the majority cites
McCutcheon for its “mere conjecture” standard, it plucks the
citation out of context. Motl, 873 F.3d at 1178. McCutcheon
emphasized that “we ‘have never accepted mere conjecture as
adequate to carry a First Amendment burden,’” 134 S. Ct. at
1452 (quoting Shrink Mo., 528 U.S. at 392), but it notably did
not hold that a scintilla of evidence more than mere
conjecture was sufficient. The majority’s citation to Buckley
for the “not illusory” baseline is similarly flimsy. Buckley
held that “the deeply disturbing examples [of quid pro quo
corruption] surfacing after the 1972 election demonstrate that
the problem [of quid pro quo corruption] is not an illusory
one.” 424 U.S. at 27. Again, this is a far cry from holding
that a state can justify a contribution limitation by producing
a peppercorn of evidence that is not entirely imaginary.
Rather, Buckley relied on the government’s evidence of
numerous specific examples of quid pro quo corruption to
justify FECA’s regulations.3
3
Buckley relied on the D.C. Circuit’s opinion, which detailed a
“number of abuses uncovered after the 1972 elections.” 424 U.S. at 27
n.28 (citing Buckley v. Valeo, 519 F.2d 821, 839–40 & nn. 36–38 (D.C.
Cir. 1975), aff’d in part, rev’d in part, 424 U.S. 1, and modified, 532 F.2d
187 (D.C. Cir. 1976) (mem)). For instance, the D.C. Circuit noted that
LAIR V. MOTL 11
III
Because the majority articulates the wrong standard, it
relies on the wrong type of evidence. In upholding
Montana’s strict contribution limits, the majority relies on
evidence that showed merely influence and access. First, the
majority cites a state representative’s testimony that “groups
funnel more money into campaigns when certain special
interests know an issue is coming up, because it gets results.”
Motl, 873 F.3d at 1179 (internal quotation marks and
alteration omitted). This “ingratiation and access” by interest
groups is not quid pro quo corruption. McCutcheon, 134 S.
Ct. at 1441 (quoting Citizens United, 558 U.S. at 360).
Second, the majority cites a letter sent to party colleagues
that urged other Republican representatives to vote for a bill
that was “important to” a certain PAC in hopes it would
“keep the contributions coming our way” and “keep [the
PAC] in our camp.” Motl, 873 F.3d at 1179. The state
representative didn’t offer money in exchange for votes, or
state that the PAC offered money in exchange for votes;
rather, he tried to impress on his colleagues that they should
be influenced by the PAC’s history of donations. A
legislator’s effort to motivate votes by pointing to helpful
dairy organizations had pledged $2,000,000 to President Nixon’s 1972
campaign, and “after a meeting with dairy organization representatives,
President Nixon decided to overrule the decision of the Secretary of
Agriculture and to increase price supports.” 519 F.2d at 839 n.36. The
court also observed that a major fund raiser “pleaded guilty to a charge of
violation of 18 U.S.C. § 600, in having promised, in 1971, a more
prestigious post to Ambassador (to Trinidad) J. Fife Symington, in return
for a $100,000 contribution to be split between 1970 senatorial candidates
designated by the White House and Mr. Nixon’s 1972 campaign.” Id. at
839 n.38.
12 LAIR V. MOTL
support from an interest group does not show the state has a
problem with quid pro quo corruption. Moreover,
McCutcheon is clear that “there is not the same risk of quid
pro quo corruption or its appearance when money flows
through independent actors to a candidate, as when a donor
contributes money to a candidate directly.” 134 S. Ct. at
1452. Rather, quid pro quo corruption can occur only “when
an individual makes large contributions to the candidate or
officeholder himself,” Id. at 1460; see also id. at 1452, and
here the letter cited by the majority focuses on PAC
contributions towards Republicans generally — not
individual contributions to individual officeholders, see id. at
1441–42, 1460–61.
The majority next cites a state senator’s declaration “that
during the 2009 legislative session the National Right to
Work group promised to contribute at least $100,000 to elect
Republican majorities in the next election if he and his
colleagues introduced and voted for a right-to-work bill in the
2011 legislative session.” Motl, 873 F.3d at 1179. As with
the other letter, this declaration does not show quid pro quo
corruption because it discusses PAC contributions funneled
towards the party generally.4 See McCutcheon, 134 S. Ct. at
4
The majority cites McCutcheon for its argument that “[i]ndirect
contributions to candidates can raise the same corruption concerns as
direct contributions.” Response at 26. But this adopts the position of the
McCutcheon dissent, which faulted the majority for discounting the risk
party committees would indirectly funnel money to a specific candidate.
134 S. Ct. at 1471–72 (Breyer, J., dissenting). By contrast, McCutcheon
concluded that the risk of indirect contributions was too speculative to
justify aggregate contribution limits. 134 S. Ct. at 1452–56. McCutcheon
explained that scenarios that might require limits on indirect contributions
were “implausible.” Id. at 1453. For instance, a donor wishing to channel
money to Representative Smith would be limited to contributing to “PACs
LAIR V. MOTL 13
1441–42, 1460–61. It also confuses donations geared
towards a common ideological interest — here, advancing a
right-to-work bill — with quid pro quo corruption. Such
“widely distributed support” intended “to further common
political beliefs” does not constitute quid pro quo corruption
because treating donors’ “shared interest, standing alone, as
an opportunity for quid pro quo corruption would
dramatically expand government regulation of the political
process.” Id. at 1461.
Finally, the majority cites two default judgments in which
“a state court found two 2010 state legislature candidates
violated state election laws by accepting large contributions
from a corporation that ‘bragged . . . that those candidates that
it “supported rode into office in 100% support of [the
corporation’s] . . . agenda.”’” Motl, 873 F.3d at 1179
(alterations in original) (citations omitted). Here again,
general support for a corporation’s agenda is not a quid
sufficient to justify restrictions on campaign contributions.
See McDonnell v. United States, 136 S. Ct. 2355, 2372 (2016)
(explaining that an official act “must involve a formal
exercise of governmental power” and be “something specific
and focused that is ‘pending’ or ‘may by law be brought’
that are likely to give to Smith.” Id. But his contributions “will be
significantly diluted by all the contributions from others to the same
PACs,” and he will discover that “[h]e cannot retain control over his
contribution,” or “direct his money ‘in any way’ to Smith, or even imply
that he would like his money to be recontributed to Smith.” Id. (citations
omitted). Therefore, “[h]is salience as a Smith supporter has been
diminished, and with it the potential for corruption.” Id. Here, as in
McCutcheon, the National Right to Work’s donation to the Republican
Legislative Campaign Committee will have little “salience” to any
particular candidate, and therefore presents little potential for quid pro quo
corruption. Id.; Motl, 873 F.3d at 1179.
14 LAIR V. MOTL
before a public official”); McCutcheon, 134 S. Ct. at 1441,
1450–51; Citizens United, 558 U.S. at 356.
The district court reviewed the evidence presented by the
parties, concluding that Montana had not proven a
sufficiently important state interest in preventing actual or
apparent quid pro quo corruption. Lair v. Motl, 189 F. Supp.
3d 1024, 1032–34 (D. Mont. 2016), rev’d, 873 F.3d 1170 (9th
Cir. 2017). The district court found that “the public would
more reasonably conclude that corruption is nearly absent
from Montana’s electoral system — the evidence shows that
despite a hand-full of opportunities, legislators chose to keep
their noses clean.” Id. at 1034. Moreover, the court
concluded that “none of Defendants’ examples demonstrate
a real harm to the election process or to the public’s interest
in that process.” Id.
The district court got it exactly right. As Judge Bea
eloquently explained, Motl, 873 F.3d at 1187–91 (Bea, J.,
dissenting), Montana’s evidence cannot justify contribution
limits because it shows only attempts by donors to garner
access or influence, or officeholders’ gratitude towards
supporters. Montana provided no evidence of an attempted
“direct exchange of an official act for money” — just
potential influence over legislators because of donors’ past or
future support. McCutcheon, 134 S. Ct. at 1441. Nor did the
evidence show a public perception of quid pro quo
corruption. Montana provided no surveys or empirical
evidence other than its own ipse dixit regarding the public’s
views.
In short, the majority applies a legal standard inconsistent
with Citizens United and McCutcheon, and as a result, relies
on evidence of access or influence that cannot prove
LAIR V. MOTL 15
Montana’s state interest in restricting contribution limits. As
Judge Bea explains in dissent, “[w]hile the panel majority’s
opinion pays lip service” to Citizens United and
McCutcheon’s shift, its analysis utterly fails “to account
substantively for this change.” Motl, 873 F.3d at 1191 (Bea,
J., dissenting). Rather than follow Citizens United and
McCutcheon, the majority undermines them. I would follow
the Supreme Court and require Montana to present evidence
of actual or apparent quid pro quo corruption. I therefore
dissent from the denial of rehearing en banc.
FISHER and MURGUIA, Circuit Judges, responding to the
dissent from the denial of rehearing en banc:
Forty states and the federal government place limits on
direct contributions to candidates for elective office. In our
opinion, we upheld Montana’s direct contribution limits
against a First Amendment challenge, holding they served a
sufficiently important interest in preventing quid pro quo
corruption or its appearance and were closely drawn to
achieve that purpose. See Lair v. Motl, 873 F.3d 1170 (9th
Cir. 2017).
The dissent from the denial of rehearing en banc contends
that, to demonstrate a sufficiently important state interest,
Montana needed to produce evidence that quid pro quo
arrangements actually exist. Dissent at 9–10. The
evidentiary burden the dissent proposes, however, 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
16 LAIR V. MOTL
nor illusory. That is the standard we correctly applied here.
Montana, moreover, has presented evidence of large
contributors, state legislators and candidates for election
attempting to enter into direct exchanges of campaign dollars
for official legislative acts. This evidence is more than
sufficient to demonstrate a concrete risk of actual quid pro
quo corruption or its appearance. Because we correctly stated
and applied the law, we agree with the denial of rehearing en
banc.
1.
The basic framework is not in dispute. All agree that First
Amendment challenges to contribution limits are subject to a
two-step test. Direct contribution limits will be sustained
when a state (1) “demonstrates a sufficiently important
interest” and (2) “employs means closely drawn to avoid
unnecessary abridgment of associational freedoms.” Buckley
v. Valeo, 424 U.S. 1, 25 (1976) (per curiam). Only the first
step in this framework is at issue here.
All also agree that, under the first step, the Supreme Court
“has identified only one legitimate governmental interest for
restricting campaign finances: preventing corruption or the
appearance of corruption.” McCutcheon v. FEC, 134 S. Ct.
1434, 1450 (2014). States, moreover, “may target only a
specific type of corruption – ‘quid pro quo’ corruption.” Id.
That is, states “may permissibly seek to rein in ‘large
contributions that are given to secure a political quid pro quo
from current and potential office holders.’” Id. (alteration
and emphasis omitted) (quoting Buckley, 424 U.S. at 26). In
addition, states “may permissibly limit ‘the appearance of
corruption stemming from public awareness of the
opportunities for abuse inherent in a regime of large
LAIR V. MOTL 17
individual financial contributions’ to particular candidates.”
Id. (quoting Buckley, 424 U.S. at 27).
Although legislating to prevent actual or apparent quid
pro quo corruption is permitted, legislating to prevent lesser
forms of corruption – mere access and influence – is not.
“Spending large sums of money in connection with elections,
but not in connection with an effort to control the exercise of
an officeholder’s official duties, does not give rise to such
quid pro quo corruption.” Id. (emphasis omitted). “Nor does
the possibility that an individual who spends large sums may
garner ‘influence over or access to’ elected officials or
political parties.” Id. at 1451 (quoting Citizens United v.
FEC, 558 U.S. 310, 359 (2010)).
Thus, after Citizens United and McCutcheon, at step one
a state must demonstrate that the limitation furthers the state’s
interest in preventing quid pro quo corruption or its
appearance, where “quid pro quo corruption” is defined as “a
direct exchange of an official act for money,” or “‘dollars for
political favors.’” McCutcheon, 134 S. Ct. at 1441 (quoting
FEC v. Nat’l Conservative Political Action Comm., 470 U.S.
480, 497 (1985)).
Although we faithfully applied all of these principles in
our opinion, the dissent from the denial of rehearing en banc
contends otherwise. As we shall explain, the dissent’s
contentions are without merit.
2.
The dissent begins by accusing us of “ignor[ing] the
“important change in Supreme Court jurisprudence” brought
about by Citizens United and McCutcheon. Dissent at 5. Not
18 LAIR V. MOTL
so. Our opinion specifically held that “Citizens United . . .
and McCutcheon . . . limited the important state interest at
[the] first step to preventing ‘quid pro quo corruption, or its
appearance,’” Lair, 873 F.3d at 1177 (quoting Lair v. Bullock,
798 F.3d 736, 746 (9th Cir. 2015)), and we expressly required
Montana to meet this revised standard, see id. at 1178–80.
3.
The dissent also disagrees with us regarding the nature of
the evidence a state must produce to establish a sufficiently
important interest in preventing quid pro quo corruption or its
appearance. The dissent contends a state can meet its burden
at step one only by proving “the existence of corrupt
arrangements or their appearance.” Dissent at 9 (emphasis
added). Without such evidence, according to the dissent,
states are wholly precluded from imposing direct contribution
limits in any amount. We, by contrast, held that a state can
satisfy its burden at step one by showing a risk of quid pro
quo corruption or its appearance that is neither conjectural
nor illusory. See Lair, 873 F.3d at 1178. A review of the
case law compels the conclusion that our approach is correct.
Tellingly, the dissent can cite to no authority, at either the
Supreme Court or any other level, requiring a state to prove
the existence of quid pro quo arrangements at step one. The
Supreme Court has never required a state to do so. Instead,
the Court has required a state to demonstrate only “a
cognizable risk of corruption” – a “risk of quid pro quo
corruption or its appearance” that rises above “mere
conjecture.” McCutcheon, 134 S. Ct. at 1452 (emphasis
altered) (quoting Nixon v. Shrink Missouri Gov’t PAC,
528 U.S. 377, 392 (2000)). The state need only “demonstrate
LAIR V. MOTL 19
that the problem is not an illusory one.” Buckley, 424 U.S. at
27.
When it comes to direct contribution limits, the Court has
never imposed an onerous evidentiary burden at step one. As
the Court made clear in Shrink Missouri, “[t]he quantum of
empirical evidence needed to satisfy heightened judicial
scrutiny of legislative judgments will vary up or down with
the novelty and plausibility of the justification raised.”
Shrink Missouri, 528 U.S. at 391. Because “the dangers of
large, corrupt contributions and the suspicion that large
contributions are corrupt are neither novel nor implausible,”
id., the Court has “declined to impose, let alone articulate, a
stringent evidentiary burden” in the context of direct
contribution limits, Thalheimer v. City of San Diego,
645 F.3d 1109, 1122 (9th Cir. 2011) (quoting Citizens for
Clean Gov’t v. City of San Diego, 474 F.3d 647, 653 (9th Cir.
2007)).
This low evidentiary burden is confirmed by case law.
Because “the dangers of large, corrupt contributions and the
suspicion that large contributions are corrupt” are generally
understood as presenting a real problem, Shrink Missouri,
528 U.S. at 391, the Supreme Court has never held that a state
– or Congress – failed to meet its evidentiary burden at step
one. The Court has either upheld direct contribution limits,
or struck them down at step two, which is not at issue here.
See Buckley, 424 U.S. at 20–28 (upholding federal limits);
Shrink Missouri, 528 U.S. at 390–97 (upholding state limits);
Randall v. Sorrell, 548 U.S. 230, 249–62 (2006) (plurality
opinion) (rejecting state limits at step two, i.e., because they
were “not closely drawn”).
20 LAIR V. MOTL
The dissent’s view that a state must show the existence of
quid pro quo corruption or its appearance is not supported by
the four cases upon which the dissent relies – Lorillard
Tobacco Co. v. Reilly, 533 U.S. 525, 555 (2001), Colorado
Republican Federal Campaign Committee v. FEC, 518 U.S.
604, 618 (1996) (plurality opinion), Citizens United and
McCutcheon.
Lorillard is a commercial speech case concerning tobacco
regulations, not campaign contribution limits. Buckley,
Shrink Missouri and McCutcheon govern here, not Central
Hudson or Lorillard.1
The dissent’s reliance on Colorado Republican is also
misplaced. Because Colorado Republican is a campaign
expenditure case, not a contribution case, it has no application
here. As the Supreme Court explained in Shrink Missouri,
Colorado Republican “did not deal with a government’s
burden to justify limits on contributions.” Shrink Missouri,
528 U.S. at 392. “Although the principal opinion in that case
charged the Government with failure to show a real risk of
corruption, the issue in question was limits on independent
1
Lorillard applied the Central Hudson commercial speech test.
Under Central Hudson Gas & Electric Corp. v. Public Service
Commission of N.Y., 447 U.S. 557 (1980), “[a]t the outset, we must
determine whether the expression is protected by the First Amendment.
For commercial speech to come within that provision, it at least must
concern lawful activity and not be misleading. Next, we ask whether the
asserted governmental interest is substantial. If both inquiries yield
positive answers, we must determine whether the regulation directly
advances the governmental interest asserted, and whether it is not more
extensive than is necessary to serve that interest.” Bd. of Trustees of State
Univ. of New York v. Fox, 492 U.S. 469, 475 (1989) (quoting Central
Hudson, 447 U.S. at 566).
LAIR V. MOTL 21
expenditures by political parties, which the principal opinion
expressly distinguished from contribution limits: ‘limitations
on independent expenditures are less directly related to
preventing corruption’ than contributions are.” Id. (citation
omitted) (quoting Colorado Republican, 518 U.S. at 615
(plurality opinion)).
Nor does anything in Citizens United or McCutcheon
require a state produce evidence that quid pro quo
arrangements actually exist. On the contrary, “because few
if any contributions to candidates will involve quid pro quo
arrangements,” and “‘the scope of such pernicious practices
can never be reliably ascertained,’” Citizens United expressly
recognizes that “restrictions on direct contributions are
preventative.” Citizens United, 558 U.S. at 356–57 (emphasis
altered) (quoting Buckley, 424 U.S. at 27). They “ensure
against the reality or appearance of corruption.” Id. at 357
(emphasis added). Similarly, recognizing “‘the opportunities
for abuse inherent in a regime of large individual financial
contributions’ to particular candidates,” McCutcheon requires
a state to demonstrate only “a cognizable risk of corruption”
– a “risk of quid pro quo corruption or its appearance” that
rises above “‘mere conjecture.’” McCutcheon, 134 S. Ct. at
1450, 1452 (emphasis altered) (quoting Buckley, 424 U.S. at
27, and Shrink Missouri, 528 U.S. at 392).2
2
We do not read Citizens United and McCutcheon as calling the
ongoing validity of direct contribution limits into doubt. Citizens United
noted that direct contribution limits “have been an accepted means to
prevent quid pro quo corruption.” Citizens United, 558 U.S. at 359
(emphasis omitted). In the post-Citizens United, post-McCutcheon world,
the Supreme Court continues to recognize that “contribution limits
advance the interest in preventing quid pro quo corruption and its
appearance in political elections.” Williams-Yulee v. Fla. Bar, 135 S. Ct.
1656, 1672 (2015) (emphasis omitted).
22 LAIR V. MOTL
When it comes to direct contribution limits, then, Citizens
United and McCutcheon go hand in hand with previous
decisions, not toe to toe. This line of cases, beginning with
Buckley and continuing through McCutcheon, demonstrates
that, in the context of contribution limits, the anti-corruption
interest is sufficiently well-established that a state need not
satisfy a stringent evidentiary burden at step one. Indeed, a
state’s contribution limits may even be “prophylactic.” See
McCutcheon, 134 S. Ct. at 1458 (describing direct
contribution limits as a “preventative,” “prophylactic
measure”); Nat’l Conservative Political Action Comm.,
470 U.S. at 500 (noting that the Court will accord “proper
deference to a congressional determination of the need for a
prophylactic rule where the evil of potential corruption had
long been recognized”); FEC v. Nat’l Right to Work Comm.,
459 U.S. 197, 210 (1982) (“Nor will we second-guess a
legislative determination as to the need for prophylactic
measures where corruption is the evil feared.”).
In sum, we properly held that a state need only produce
evidence of a cognizable risk of quid pro quo corruption or its
appearance. See McCutcheon, 134 S. Ct. at 1452. The state
need not, as the dissent contends, “prove the existence of
corrupt arrangements or their appearance.” Dissent at 9.
4.
Assuming we are correct that a state is required to
demonstrate only a risk of quid pro quo corruption rather than
the existence of such corruption, the dissent contends we
nonetheless erred by requiring Montana to show only that the
problem is neither illusory nor conjectural. Dissent at 9–10.
Because the Supreme Court has repeatedly used these very
words, however, we believe we properly included them in our
LAIR V. MOTL 23
opinion. See McCutcheon, 134 S. Ct. at 1452 (“mere
conjecture”); Shrink Missouri, 528 U.S. at 392 (“merely
conjectural”); id. (“mere conjecture”); Buckley, 424 U.S. at
27 (“the problem is not an illusory one”). We were,
moreover, bound by circuit precedent on this point. See
Montana Right to Life Ass’n v. Eddleman, 343 F.3d 1085,
1092 (9th Cir. 2003) (“With respect to the quantum of
evidence necessary to justify this interest, the Supreme Court
has required only that the perceived threat not be ‘illusory,’
Buckley, 424 U.S. at 27, or ‘mere conjecture,’ Shrink
Missouri, 528 U.S. at 392), abrogated on other grounds as
stated in a Lair, 798 F.3d at 745. And in any event, as
discussed below, the evidence Montana has presented here
demonstrates a concrete risk of quid pro quo corruption. This
case, therefore, “does not present a close call requiring further
definition of whatever the State’s evidentiary obligation may
be.” Shrink Missouri, 528 U.S. at 393.
5.
The dissent also contends our opinion, in effect, allows a
state to impose direct contribution limits based on evidence
of mere “access or influence, which the Supreme Court has
specifically disavowed as inadequate.” Dissent at 10. Under
our opinion, according to the dissent, “a state c[ould] justify
its restrictions merely by showing a substantial donation by
a special interest or a news article or survey suggesting the
public is concerned about donors furthering their legislative
goals.” Dissent at 10.
We disagree. Our opinion does not, as the dissent
charges, allow a state to “carry its burden with evidence
showing only that large contributions increase donors’
influence or access.” Dissent at 8. On the contrary, the
24 LAIR V. MOTL
opinion squarely rejects the access or influence theory, see
Lair, 873 F.3d at 1177, and it makes abundantly clear that the
problem the state must demonstrate is quid pro quo
corruption or its appearance, see id. at 1172, 1177, 1178,
1179, 1180, 1181, 1186. We do not hold that the type of
evidence the dissent describes – the mere existence of a large
contribution, or evidence that voters are concerned that
contributors have access or influence – would suffice.
Notably, the evidence in this case, which we discuss in
greater detail below, does not relate to mere access or
influence. It demonstrates a concrete risk of actual and
apparent quid pro quo corruption.
6.
We also disagree with the dissent’s contention that the
evidence Montana presented in this case was insufficient to
satisfy step one. The dissent’s evaluation of the evidence, of
course, is based on its contention that Montana was required
to prove the existence of quid pro quo corruption or its
appearance. As we have explained, Montana was required to
show only a risk of such corruption. Thus, to the extent the
dissent finds Montana’s evidence wanting merely because it
fails to establish the existence of quid pro quo arrangements
or their appearance, the dissent’s arguments are unpersuasive
for the reasons already discussed.
We further disagree that Montana failed to establish even
a risk of quid pro quo corruption or its appearance, because
the state’s evidence shows only “influence and access.”
Dissent at 11. Montana’s evidence, which shows attempts by
contributors, lawmakers and candidates to exchange
campaign contributions for official legislative acts, plainly
demonstrates a risk of quid pro quo arrangements that
LAIR V. MOTL 25
Montana was constitutionally permitted to legislate to
prevent.
State Senator Mike Anderson, for example, sent a
“destroy after reading” letter to his party colleagues, urging
them to vote for a specific bill so a political action committee
would funnel contributions to the party’s candidates:
Dear Fellow Republicans. Please destroy
this after reading. Why? Because the Life
Underwriters Association in Montana is one
of the larger Political Action Committees in
the state, and I don’t want the Demo’s to
know about it! In the last election they gave
$8,000 to state candidates. . . . Of this $8,000
– Republicans got $7,000 – you probably got
something from them. This bill is important
to the underwriters and I have been able to
keep the contributions coming our way. In
1983, the PAC will be $15,000. Let’s keep it
in our camp. Mike.
State Senator Bruce Tutvedt testified that the National
Right to Work group promised to contribute at least $100,000
to the Republican Legislative Campaign Committee if he and
his colleagues introduced and voted for a right-to-work bill in
the 2011 legislative session. Under the proposed
arrangement, “if Republican legislators promised to introduce
a right-to-work bill and get a vote of record in both houses,
then the Republican Legislative Campaign Committee would
receive in exchange $100,000 with more available if needed
to elect Republican majorities to the Montana House and
Senate.”
26 LAIR V. MOTL
Montana also presented evidence that a state court found
two 2010 state legislature candidates violated state election
laws by accepting large contributions from a corporation that
“bragged . . . that those candidates that it supported ‘rode into
office in 100% support of [the corporation’s] . . . agenda.’”
See Comm’r of Political Practices v. Prouse, DDV-2014-250
(1st Jud. Dist. Mont. 2016); Comm’r of Political Practices v.
Boniek, XADV-2014-202 (1st Jud. Dist. Mont. 2015).
We are not necessarily persuaded by the dissent’s
contention that none of these proposed exchanges involved
quid pro quo arrangements. For example, that the National
Right to Work group planned to funnel contributions to
compliant lawmakers through the Republican Legislative
Campaign Committee, rather than giving it to the lawmakers
directly (Dissent at 11–12), does not negate the possibility of
quid pro quo corruption. Indirect contributions to candidates
can raise the same corruption concerns as direct
contributions. See McCutcheon, 134 S. Ct. at 1442, 1446–47,
1453, 1455–56 (recognizing the importance of limits on
indirect contributions in order to prevent circumvention of
direct contribution limits, because the risk of corruption arises
when a contributor “directs his money ‘in any way’” to a
particular candidate (quoting 2 U.S.C. § 441a(a)(8)));
California Med. Ass’n v. FEC, 453 U.S. 182, 197–98 (1981)
(plurality opinion) (same). Quid pro quo corruption requires
only that the money is “directed, in some manner, to a
candidate or officeholder.” McCutcheon, 134 S. Ct. at 1452
(emphasis added) (quoting McConnell v. FEC, 540 U.S. 93,
310 (2003) (opinion of Justice Kennedy)). Similarly, to the
extent the dissent suggests that a direct exchange of dollars
for legislative acts cannot constitute quid pro quo corruption
if lawmakers and contributors share “a common ideological
interest” (Dissent at 13), we can find no authority for this
LAIR V. MOTL 27
proposition. We are similarly skeptical of the dissent’s
contention that the 2010 legislative candidates promised only
“general support” for the corporate contributor’s agenda
(Dissent at 13); the candidates’ promises to provide “100%
support of [the contributor’s] responsible development
agenda” may well have encompassed promises with respect
to specific legislative acts.
These questions, however, are beside the point. Because
Montana was required to establish only a cognizable risk of
quid pro quo corruption or its appearance, it is irrelevant
whether Montana has shown the existence of quid pro quo
arrangements. The evidence presented by Montana, which
shows serious attempts to exchange campaign dollars for
official legislative acts, is more than adequate to show a
cognizable risk of corruption. Montana, therefore, has
demonstrated a sufficiently important governmental interest
in limiting direct contributions.
***
We agree with the denial of rehearing en banc.