Doug Lair v. Steve Bullock , 787 F.3d 989 ( 2015 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DOUG LAIR; STEVE DOGIAKOS; No. 12-35809
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
REPUBLICAN CENTRAL COMMITTEE;
BEAVERHEAD COUNTY REPUBLICAN
CENTRAL COMMITTEE; JAKE OIL,
LLC; JL OIL, LLC; CHAMPION
PAINTING,
Plaintiffs-Appellees,
v.
STEVE BULLOCK, in his official
capacity as Attorney General of the
State of Montana; JAMES MURRAY,
“Jim”, in his official capacity as
Commissioner of Political Practices;
LEO GALLAGHER, in his official
capacity as Lewis and Clark County
Attorney,
Defendants-Appellants.
2 LAIR V. BULLOCK
DOUG LAIR; STEVE DOGIAKOS; No. 12-35889
AMERICAN TRADITION
PARTNERSHIP; AMERICAN
TRADITION PARTNERSHIP PAC; D.C. No.
MONTANA RIGHT TO LIFE 6:12-cv-00012-
ASSOCIATION PAC; SWEET GRASS CCL
COUNCIL FOR COMMUNITY
INTEGRITY; LAKE COUNTY
REPUBLICAN CENTRAL COMMITTEE; OPINION
BEAVERHEAD COUNTY REPUBLICAN
CENTRAL COMMITTEE; JAKE OIL,
LLC; JL OIL, LLC; CHAMPION
PAINTING,
Plaintiffs,
and
RICK HILL, Warden; A LOT OF
FOLKS FOR RICK HILL; LORNA
KUNEY,
Intervenor-Plaintiffs–Appellants,
v.
STEVE BULLOCK, in his official
capacity as Attorney General of the
State of Montana; JAMES MURRAY,
“Jim”, in his official capacity as
Commissioner of Political Practices;
LEO GALLAGHER, in his official
capacity as Lewis and Clark County
Attorney,
Defendants-Appellees.
LAIR V. BULLOCK 3
Appeal from the United States District Court
for the District of Montana
Charles C. Lovell, Senior District Judge, Presiding
Argued and Submitted
February 5, 2015—Seattle Washington
Filed May 26, 2015
Before: Raymond C. Fisher, Carlos T. Bea,
and Mary H. Murguia, Circuit Judges.
Opinion by Judge Bea
SUMMARY*
Civil Rights
The panel reversed the district court’s judgment, entered
following a non-jury trial, and remanded in an action
challenging, under the First Amendment, Montana’s dollar
limits on contributions to political candidates.
The panel held that the district court applied the wrong
legal standard prior to enjoining permanently the enforcement
of Montana’s restrictions on campaign contributions by
individuals, political action committees, and political parties.
The panel held that the district court applied neither the new
formulation of what constitutes an important state interest set
*
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. BULLOCK
forth in Citizens United v. Fed. Election Comm’n, 558 U.S.
310 (2010), nor the correct formulation, set forth in Mont.
Right to Life Ass’n v. Eddleman, 343 F.3d 1085 (9th Cir.
2003), of whether the state’s contribution limits are “closely
drawn” to the state’s goal of preventing quid pro quo
corruption or its appearance. The panel remanded in order to
allow Montana’s political contribution limits to be tested
under the new and more restrictive standard of Citizens
United, and the correct “closely drawn” test set forth in
Eddleman.
COUNSEL
Matthew T. Cochenour (argued) and Michael G. Black,
Assistant Attorneys General, and Tim Fox, Attorney General,
Montana Department of Justice, Helena, Montana, for
Defendants-Appellants.
Matthew G. Monforton (argued), Monforton Law Offices,
PLLC, Bozeman, Montana, for Intervenor-Plaintiffs–
Appellants.
James Bopp, Jr. (argued) and Jeffrey Gallant, The Bopp Law
Firm, PC, Terre Haute, Indiana; Anita Y. Milanovich, The
Bopp Law Firm, PC, Bozeman, Montana, for Plaintiffs-
Appellees.
J. Gerald Hebert, Paul S. Ryan, Tara Malloy, and Megan
McAllen, Campaign Legal Center, Washington, D.C., for
Amici Curiae Campaign Legal Center, Common Cause,
Justice at Stake, and League of Women Voters.
LAIR V. BULLOCK 5
Ronald A. Fein and John C. Bonifaz, Free Speech for People,
Amherst, Massachusetts, for Amici Curiae Free Speech for
People, The Honorable James C. Nelson, American
Independent Business Alliance, and American Sustainable
Business Counsel.
OPINION
BEA, Circuit Judge:
We are called on to determine whether Montana’s dollar
limits on contributions to political candidates are
constitutional under the federal Constitution’s First
Amendment. The claims against the limits are familiar.
Limitations on contributions effectively abridge free speech
in two primary ways. First, the contribution itself is a general
expression of the donor’s support for the candidate and his
views. Limiting the amount a donor can contribute curtails
that expression. Second, it costs the candidate money to
produce political speech that will be heard. Without that
money, candidates will be silenced; their ideas will not be
considered by the voters at elections.
These claims are doubly familiar to us because we have
already considered some of Montana’s contribution limits
and found they passed constitutional muster.1 Why consider
them again? We must because, after Citizens United,2 what
constitutes a sufficiently important state interest to justify
limits on contributions has changed. Now, the prevention of
1
Mont. Right to Life Ass’n v. Eddleman, 343 F.3d 1085 (9th Cir. 2003).
2
Citizens United v. Fed. Election Comm’n, 558 U.S. 310 (2010).
6 LAIR V. BULLOCK
quid pro quo corruption, or its appearance, is the only
sufficiently important state interest to justify limits on
campaign contributions. Before Citizens United, it was
enough to show the state’s interest was simply to prevent the
influence contributors of large sums have on politicians, or
the appearance of such influence. No longer so.
After a non-jury trial, the district court held Montana’s
contribution limits were unconstitutional, and permanently
enjoined their enforcement.3 But the district court applied
neither Citizens United’s new formulation of what constitutes
an important state interest nor the correct formulation of
whether the state’s contribution limits are “closely drawn”4 to
the state’s goal of preventing quid pro quo corruption or its
appearance. To allow Montana’s political contribution limits
to be tested under the new and more restrictive standard of
Citizens United, and the correct “closely drawn” test, we
reverse and remand for proceedings consistent with this
opinion.
I.
A.
Since 1994, Montana has limited how much individuals,
political action committees, and political-party-affiliated
committees are allowed to contribute to candidates for state
3
We granted a stay of that injunction, pending determination of this
appeal. Lair v. Bullock, 697 F.3d 1200, 1202 (9th Cir. 2012).
4
A “closely drawn” test is one that ensures the state’s contribution limits
are not lower than needed to accomplish the state’s goal of preventing
quid pro quo corruption or its appearance.
LAIR V. BULLOCK 7
office. See Mont. Code Ann. § 13-37-216; Lair v. Bullock,
697 F.3d 1200, 1201 (9th Cir. 2012) (“Lair I”). By statute,
individuals and political action committees (“PACs”) can
contribute up to $500 total to two candidates who filed jointly
and are running together for the offices of governor and
lieutenant governor, $250 to candidates running for other
statewide offices, and $130 to candidates running for any
other state public office, including candidates for the state
senate and the state house of representatives. Mont. Code
Ann. § 13-37-216(1)(a) (“Individual/PAC Limits”). These
amounts are adjusted for inflation using the Consumer Price
Index as a marker. Mont. Code Ann. § 13-37-216(4)(a). The
current limits are $650, $320, and $170, respectively. Mont.
Admin. R. § 44.10.338(1).
Political parties and their affiliated committees can
contribute more than can individuals. Montana treats all
committees that are affiliated with a political party as one
entity.5 Mont. Code Ann. § 13-37-216(3). A political party
or its party-affiliated committees can contribute, in the
aggregate, up to $18,000 to two candidates running together
for the offices of governor and lieutenant governor, $6,500 to
candidates running for other statewide offices, $2,600 to
candidates for public service commissioner, $1,050 to
candidates for state senate, and $650 to candidates running
for any other state public office, including the state house of
representatives. Mont. Code Ann. § 13-37-216(3) (“Party
Limits”). These amounts are also adjusted for inflation using
5
The statute defines political parties as “any political organization that
was represented on the official ballot at the most recent gubernatorial
election.” Mont. Code Ann. § 13-37-216(3). Donations that come from
the political party itself and from political committees affiliated with that
party are subject to one aggregate limit. Id.
8 LAIR V. BULLOCK
the Consumer Price Index, and the current limits are $23,350,
$8,450, $3,350, $1,350, and $850 respectively. Mont.
Admin. R. § 44.10.338(2).
Appellees are individuals, PACs, and party-affiliated
committees (together, “Lair”) that challenge these restrictions
as unconstitutional burdens on their freedom of speech under
the federal Constitution’s First Amendment. Intervenors are
Rick Hill, a 2012 candidate for governor, Hill’s campaign
treasurer, and a committee associated with the Hill campaign
(together, “Hill Campaign”). The Hill Campaign supports
Lair’s challenge. Appellants are the Attorney General of the
State of Montana, Montana’s Commissioner of Political
Practices, and a county attorney, each sued in their official
capacity (together, “Montana”).
B.
The district court held a non-jury trial in September 2012
and shortly after issued findings of fact and conclusions of
law. The district court concluded Montana’s Individual/PAC
Limits and Party Limits were unconstitutional under the
federal Constitution’s First Amendment and permanently
enjoined their enforcement. The district court’s decision
turned on our prior case addressing the constitutionality of
Montana’s contribution limits and a Supreme Court case that
followed. Montana has appealed that decision. Because our
decision today relies in large part on the chronology of those
prior cases, as well as subsequent cases, we discuss them in
chronological order.
LAIR V. BULLOCK 9
1. Montana Right to Life Association v. Eddleman,
343 F.3d 1085 (9th Cir. 2003).
The story begins with our opinion in Montana Right to
Life Ass’n v. Eddleman, 343 F.3d 1085 (9th Cir. 2003), upon
whose continued validity this appeal turns. There, the district
court conducted a non-jury trial on the constitutionality of the
Individual/PAC Limits and found those limits were
constitutional under Buckley v. Valeo, 424 U.S. 1 (1976), and
its progeny. See Montana Right to Life Assoc. v. Eddleman,
96-165-BLG-JDS, 2000 U.S. Dist. LEXIS 23161, at *3 (D.
Mont. Sept. 19, 2000). We affirmed. We first set out the
Supreme Court’s framework for addressing campaign
contribution limits per Buckley, the Court’s foundational
opinion on what governmental limitations of campaign
finance violate the free speech rights guaranteed by the First
Amendment. Eddleman, 343 F.3d at 1090–92. In Buckley,
the Supreme Court struck down limitations on how much
candidates could spend on their campaigns, but upheld
limitations on how much donors could give to candidates’
campaigns. Id. at 1090. Central to the Supreme Court’s
decision validating contribution limits was its finding of the
minimal effect those contribution limits had on individuals’
First Amendment free speech rights: “A limitation upon the
amount that any one person or group may contribute to a
candidate or political committee entails only a marginal
restriction upon the contributor’s ability to engage in free
communication.” Id. (emphasis omitted) (quoting Buckley,
424 U.S. at 20). Per the Supreme Court, a contribution
“serves as a general expression of support for the candidate
and his views, but does not communicate the underlying basis
for the support.” Id. (quoting Buckley, 424 U.S. at 21). For
that reason, a contribution limitation “involves little direct
restraint on [the contributor’s] political communication, for
10 LAIR V. BULLOCK
it permits the symbolic expression of support evidenced by a
contribution but does not in any way infringe the
contributor’s freedom to discuss candidates and issues.” Id.
(quoting Buckley, 424 U.S. at 21). The Supreme Court
therefore did not apply the “strict scrutiny” doctrine to
contribution limits. Id. at 1091.6 Instead, the Court explained
that contribution limits will be upheld “if the State
demonstrates a sufficiently important interest and employs a
means closely drawn to avoid unnecessary abridgment of
associational freedoms.” Id. (quoting Buckley, 424 U.S. at
25).
We noted in Eddleman that the Supreme Court reaffirmed
Buckley in Nixon v. Shrink Missouri Gov’t PAC, 528 U.S. 377
(2000). Eddleman, 343 F.3d at 1091. We synthesized those
two cases to create a test for challenges to contribution limits:
[S]tate campaign contribution limits will be
upheld if (1) there is adequate evidence that
the limitation furthers a sufficiently important
state interest, and (2) if the limits are “closely
drawn”—i.e., if they (a) focus narrowly on the
state’s interest, (b) leave the contributor free
to affiliate with a candidate, and (c) allow the
candidate to amass sufficient resources to
wage an effective campaign.
6
“Strict scrutiny” is the most demanding test that the First Amendment
requires to test governmental regulation of speech for its constitutionality.
It requires the governmental regulation serve “a compelling government
interest and [be] narrowly drawn to serve that interest.” Brown v. Entm’t
Merchants Ass’n, 131 S. Ct. 2729, 2738 (2011).
LAIR V. BULLOCK 11
Eddleman, 343 F.3d at 1092. In conducting this “closely
drawn” tailoring analysis, courts must be “mindful that the
dollar amounts employed to prevent corruption should be
upheld unless they are ‘so radical in effect as to render
political association ineffective, drive the sound of a
candidate’s voice beyond the level of notice, and render
contributions pointless.’” Id. at 1094 (quoting Shrink
Missouri, 528 U.S. at 397). “[W]e look at all dollars likely to
be forthcoming in a campaign, rather than the isolated
contribution, and we also consider factors such as [1] whether
the candidate can look elsewhere for money, [2] the
percentage of contributions that are affected, [3] the total cost
of the campaign, and [4] how much money each candidate
would lose.” Id. (internal citations omitted).
In Eddleman, we identified Montana’s asserted
“important state interest” as “preventing corruption or the
appearance of corruption.” Id. at 1092. We explained that a
“state’s interest in preventing corruption or the appearance of
corruption is not confined to instances of bribery of public
officials, but extends ‘to the broader threat from politicians
too compliant with the wishes of large contributors.’” Id.
(quoting Shrink Missouri, 528 U.S. at 389). We affirmed the
district court’s finding that Montana carried its burden to
show that latter interest: the threat of large contributors
affecting over-compliant politicians. Id. at 1092–93; see also
Eddleman, 2000 U.S. Dist. LEXIS 23161, at *6–8, *11–12
(finding Montana had shown an important state interest in
combating “influence”). Neither we nor the district court
relied on a finding that Montana showed quid pro quo
corruption or its appearance. See Eddleman, 343 F.3d at
1092–93; Eddleman, 2000 U.S. Dist. LEXIS 23161, at *6–8,
*11–12. We also held the Individual/PAC Limits were
12 LAIR V. BULLOCK
“closely drawn” under this newly minted standard. Id. at
1093–96.
2. Randall v. Sorrell, 548 U.S. 230 (2006).
The Supreme Court decided Randall v. Sorrell, 548 U.S.
230 (2006), after our opinion in Eddleman. That case
addressed the constitutionality of Vermont’s campaign
contribution limits. Id. at 236. Like Montana, Vermont
limited contributions by individuals, PACs, and political
parties to candidates for state office. Id. at 238–39. The
Supreme Court found the contribution limits violated First
Amendment free speech rights and were unconstitutional. Id.
at 262–63. But no single opinion garnered a majority of the
justices. Justice Breyer wrote the plurality opinion, which
Chief Justice Roberts and Justice Alito joined in relevant part.
Id. at 246–53. The plurality outlined a new two-part, multi-
factor “closely drawn” test for restrictions on contributions.
Under that test, the reviewing court first should identify if
there are any “danger signs” that the restrictions on
contributions prevent candidates from amassing the resources
necessary to be heard or put challengers at a disadvantage vis-
a-vis incumbents. Id. at 249–52. The plurality found four
“danger signs” in Vermont’s contribution limits: “(1) The
limits are set per election cycle, rather than divided between
primary and general elections; (2) the limits apply to
contributions from political parties; (3) the limits are the
lowest in the Nation; and (4) the limits are below those we
have previously upheld.” Id. at 268 (Thomas, J., concurring)
(listing the plurality’s “danger signs”); see also id. at 249–53
(plurality op.); Lair I, 697 F.3d at 1208–10. The plurality
held, if such danger signs exist, then the court must determine
whether the limits are “closely drawn.” Randall, 548 U.S. at
249, 253.
LAIR V. BULLOCK 13
The plurality looked to “five sets of considerations” to
determine whether the statute was closely drawn: (1) whether
the “contribution limits will significantly restrict the amount
of funding available for challengers to run competitive
campaigns”; (2) whether “political parties [must] abide by
exactly the same low contribution limits that apply to other
contributors”; (3) whether “volunteer services” are considered
contributions that would count toward the limit; (4) whether
the “contribution limits are . . . adjusted for inflation”; and
(5) “any special justification that might warrant a contribution
limit so low or so restrictive.” Id. at 253–62; Lair I, 697 F.3d
at 1210. The plurality found each factor weighed against the
contribution limits’ constitutionality and held the limits
violated First Amendment free speech rights. Randall,
548 U.S. at 262.
Justice Thomas, joined by Justice Scalia, concurred in the
decision to strike down Vermont’s contribution limits. Id. at
265 (Thomas, J., concurring in the judgment). But Justice
Thomas expressly disagreed with the plurality’s “rationale for
striking down that statute.” Id. Instead, he would overrule
Buckley and its progeny because “Buckley provides
insufficient protection to political speech.” Id. at 266. He
noted “[t]he illegitimacy of Buckley is . . . underscored by the
continuing inability of the Court (and the plurality here) to
apply Buckley in a coherent and principled fashion.” Id.
Justice Kennedy concurred “only in the judgment” in a
separate opinion that expressed skepticism of Buckley and its
progeny’s viability. Id. at 264–65 (Kennedy, J., concurring
in the judgment).
14 LAIR V. BULLOCK
3. Lair’s Challenge in the District Court: Lair v. Murry,
903 F. Supp. 2d 1077 (D. Mont. 2012).
Lair now challenges the Individual/PAC Limits, which
the Ninth Circuit upheld in Eddleman, and the Party Limits,
which were not at issue in Eddleman. After a non-jury trial,
the district court issued a brief order, without any analysis.
It found the Individual/PAC Limits and Party Limits
unconstitutional and enjoined their enforcement. Seven days
later, the district court issued its findings of fact and
conclusions of law. Lair v. Murry, 903 F. Supp. 2d 1077 (D.
Mont. 2012). The district court concluded it was not bound
by the Ninth Circuit’s decision in Eddleman because the
Supreme Court’s “closely drawn” analysis in Randall
abrogated both Eddleman’s “closely drawn” analysis and
Eddleman’s ultimate holding that the Individual/PAC Limits
are constitutional. Id. at 1086–89. Unbound by Eddleman,
the district court then proceeded to analyze Montana’s
Individual/PAC Limits and Party Limits under the Randall
plurality’s standard. The court first “assum[ed] that the State
of Montana has a ‘sufficiently important interest’ in setting
contribution limits.” Id. at 1089 (quoting Randall, 548 U.S.
at 247). The court then applied the Randall plurality’s two-
part, multi-factor “closely drawn” analysis to the facts
presented at the bench trial and found Montana’s limits were
not closely drawn. Id. at 1089–93. The district court
therefore permanently enjoined Montana from enforcing the
Individual/PAC and Party Limits. Id. at 1093–94.
4. Emergency Motion in the Ninth Circuit to Stay: Lair
v. Bullock, 697 F.3d 1200 (9th Cir. 2012).
Montana filed in the Ninth Circuit an emergency motion
to stay the district court’s injunction. Lair I, 697 F.3d at
LAIR V. BULLOCK 15
1203. As a part of its analysis, our motions panel was
required to determine whether Montana “made a strong
showing that [it] is likely to succeed on the merits” of its
appeal. Id. (quoting Nken v. Holder, 556 U.S. 418, 434
(2009)). The panel concluded Montana made that showing
because, contrary to what the district court had stated, the
Supreme Court’s decision in Randall did not abrogate the
Ninth Circuit’s opinion upholding the Individual/PAC Limits
in Eddleman. To that end, the panel applied the Supreme
Court’s test from Marks v. United States, 430 U.S. 188
(1977), to determine whether Randall had a binding majority
opinion. Id. at 1204–06. That test asks whether, in a
fractured Supreme Court decision, “one opinion can be
meaningfully regarded as narrower than another and can
represent a common denominator of the Court’s reasoning.”
Id. at 1205 (quoting United States v. Rodriguez–Preciado,
399 F.3d 1118, 1140 (9th Cir. 2005)). The panel held that
Justice Breyer’s plurality opinion could not represent a
“common denominator” with Justice Thomas’s concurring
opinion because Justices Thomas and Scalia would strike
down Buckley and its progeny in their entirety rather than
apply Buckley, as did Justice Breyer’s plurality. Id. As a
result, there was no majority, controlling opinion in Randall:
“The only binding aspect of Randall . . . is its judgment,
striking down the Vermont contribution limit statute as
unconstitutional.” Id. at 1206. The motions panel therefore
held Montana was likely to succeed on the merits of its
appeal and, after addressing the other stay factors, stayed the
district court’s permanent injunction pending a decision by a
merits panel. Id. at 1215–16. The case then came before us.
16 LAIR V. BULLOCK
II.
We review for abuse of discretion a district court’s
decision to issue a permanent injunction. Gathright v. City of
Portland, 439 F.3d 573, 576 (9th Cir. 2006). Under that
standard, we review legal conclusions de novo. Brown v.
California DOT, 321 F.3d 1217, 1221 (9th Cir. 2003). We
review the district court’s findings of fact for clear error, but
review the application of law to those facts de novo on free
speech issues. Id.; see also La Quinta Worldwide LLC v.
Q.R.T.M., S.A. de C.V., 762 F.3d 867, 879 (9th Cir. 2014) (“If
the district court identified and applied the correct legal rule
to the relief requested, we will reverse [a permanent
injunction] only if the court’s decision resulted from a factual
finding that was illogical, implausible, or without support in
inferences that may be drawn from the facts in the record.”
(citation omitted) (internal quotation marks omitted)).
The most important standard for this case comes from our
en banc decision in Miller v. Gammie, 335 F.3d 889 (9th Cir.
2003) (en banc). Gammie explained that three-judge panels
are normally bound by the decisions of prior three-judge
panels. Id. at 892–93. But “where the reasoning or theory of
our prior circuit authority is clearly irreconcilable with the
reasoning or theory of intervening higher authority, a
three-judge panel should consider itself bound by the later
and controlling authority, and should reject the prior circuit
opinion as having been effectively overruled.” Id. at 893.
A.
The central question in this appeal is what parts of
Eddleman, if any, remain good law in this circuit. Lair
contends the district court was not bound to apply
LAIR V. BULLOCK 17
Eddleman’s “closely drawn” analysis or to follow
Eddleman’s holding that the Individual/PAC Limits are
constitutional. Lair makes two arguments in support:
(1) Citizens United abrogated Eddleman’s “important state
interest” analysis because, after Citizens United, a state may
no longer justify limits on political contributions as a means
to prevent politicians too compliant with the interests of
contributors of large sums—only quid pro quo corruption or
its appearance can justify contribution limits; and
(2) Randall’s two-part, multi-factor “closely drawn” test,
which evaluates various “danger signs” and case-specific
factors, abrogated Eddleman’s “closely drawn” test, which
analyzes (a) whether the contribution limits narrowly combat
quid pro quo corruption or its appearance, (b) whether
contributors are able to associate with the candidate in ways
other than donating money, and (c) whether the candidate is
able to amass sufficient resources to wage an effective
campaign. We address each argument in turn.
1. Citizens United abrogated Eddleman’s “important
state interest” analysis.
Lair argues the Supreme Court’s decision in Citizens
United v. Federal Election Commission, 558 U.S. 310 (2010),
and by extension McCutcheon v. Federal Election
Commision, 134 S. Ct. 1434 (2014), abrogated Eddleman’s
“important state interest” analysis; therefore, Eddleman is no
longer binding precedent on the point of what constitutes an
“important state interest” sufficient to limit political speech
through contribution limitations. The Supreme Court has
long held that preventing “corruption or the appearance of
corruption” is the only valid interest that supports limits on
campaign contributions. See, e.g., Shrink Missouri, 528 U.S.
at 388–89. But what constitutes “corruption” has been open
18 LAIR V. BULLOCK
to debate. Buckley held that “corruption” includes quid pro
quo arrangements or the appearance thereof. Id. (explaining
Buckley). The Supreme Court in Shrink Missouri defined
“corruption” more broadly, explaining that “corruption” is
“not confined to bribery of public officials, but extend[s] to
the broader threat from politicians too compliant with the
wishes of large contributors.” Id. at 389. To that end, the
government can “constitutionally address the power of money
‘to influence governmental action’ in ways less ‘blatant and
specific’ than bribery.” Id. (quoting Buckley, 424 U.S. at 28).
In Eddleman, the district court and the Ninth Circuit
relied on Shrink Missouri’s broader definition of corruption
to find Montana had shown an “important state interest.” In
that regard, the district court found Montana provided
sufficient evidence that “money results in improper influence
or the appearance thereof.” Eddleman, 2000 U.S. Dist.
LEXIS 23161, at *7 (emphasis added). The district court
expressly relied on Shrink Missouri’s holding that the valid
corruption interest is “not confined to bribery of public
officials, but extend[s] to the broader threat from politicians
too compliant with the wishes of large contributions.” Id. at
*9 (quoting Shrink Missouri, 528 U.S. at 389); see also id. at
*6–7, *11–12 (reiterating the district court was relying on an
“influence” standard). On appeal, we also relied on the same
broader definition of “corruption” in affirming the district
court. See Eddleman, 343 F.3d at 1092–93.
The Supreme Court has since clarified what qualifies as
“corruption” under the “important state interest” analysis. In
Citizens United, the Court explained that “[w]hen Buckley
identified a sufficiently important governmental interest in
preventing corruption or the appearance of corruption, that
interest was limited to quid pro quo corruption.” Citizens
LAIR V. BULLOCK 19
United, 558 U.S. at 359 (emphasis added). The Court
rejected the broader “influence” standard: “Reliance 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. (alteration in
original) (emphasis added) (quoting McConnell v. Fed.
Election Comm’n, 540 U.S. 93, 296 (2003) (Kennedy, J.,
concurring)). We have already recognized that Citizens
United “narrowed the scope of the anti-corruption rationale
to cover quid pro quo corruption only, as opposed to money
spent to obtain influence over or access to elected officials.”
Thalheimer v. City of San Diego, 645 F.3d 1109, 1119 (9th
Cir. 2011) (quoting Long Beach Area Chamber of Commerce
v. City of Long Beach, 603 F.3d 684, 694 n.5 (9th Cir. 2010))
(internal quotation marks omitted). Because Eddleman relied
on a state’s interest in combating “influence,” whereas
Citizens United narrowed the analysis to include quid pro quo
corruption but to exclude the state’s interest in combating
“influence,” Citizens United abrogated Eddleman’s
“important state interest” analysis. See Gammie, 335 F.3d at
893. Eddleman’s holding that the Individual/PAC Limits are
constitutional is no longer binding on this panel or courts of
the Ninth Circuit because that holding relied on a state
interest analysis now made invalid by Citizens United. We
must now follow Citizens United’s narrower analysis:
“corruption” means only quid pro quo corruption, or its
appearance.
2. Randall did not abrogate Eddleman’s “closely drawn”
analysis.
Lair also reprises the argument that the Supreme Court
abrogated Eddleman’s “closely drawn” analysis in Randall
when a plurality outlined a different “closely drawn” analysis,
20 LAIR V. BULLOCK
and the district court’s reliance on the Randall plurality was
therefore not legal error. This argument is foreclosed by
Gammie because of our motions panel decision. The motions
panel in Lair I explicitly held that Randall did not contain a
majority opinion capable of abrogating Eddleman. Lair I,
697 F.3d at 1204 (“Randall is not binding authority because
there was no opinion of the Court.”); id. at 1206 (“The only
binding aspect of Randall . . . is its judgment, striking down
the Vermont contribution limit statute as unconstitutional.”);
id. (“Since Randall is otherwise only persuasive, in this
context it could not have altered the law as previously
dictated by such cases as Buckley and Shrink Missouri, the
law we expressly relied upon in Eddleman.”). Lair contended
at oral argument that a motions panel’s decision cannot bind
a merits panel, and as a result we are not bound by the
motions panel’s analysis in this case. Not so. We have held
that motions panels can issue published decisions. See
Haggard v. Curry, 631 F.3d 931, 933 n.1 (9th Cir. 2010);
Pearson v. Muntz, 606 F.3d 606, 608 n.2 (9th Cir. 2010); see
also General Order 6.3(g)(3)(ii); Circuit Rule 36-1. Under
Gammie, we are bound by a prior three-judge panel’s
published opinions, Gammie, 335 F.3d at 892–93, and a
motions panel’s published opinion binds future panels the
same as does a merits panel’s published opinion, see Circuit
Rule 36-1 (“A written, reasoned disposition of a case or
motion which is designated as an opinion [under the Ninth
Circuit’s criteria for publication] is an OPINION of the
Court. . . . All opinions are published . . . . As used in this
rule, the term PUBLICATION means to make a disposition
available to legal publishing companies to be reported and
cited.” (emphasis added)). In any event, the Lair I panel was
not the first one to hold that no opinion in Randall carried a
majority. Another panel arrived at that same conclusion in
2011. See Thalheimer, 645 F.3d at 1127 n.5. We can hold
LAIR V. BULLOCK 21
Eddleman was abrogated only if “the reasoning or theory” of
Eddleman “is clearly irreconcilable with the reasoning or
theory of . . . later and controlling authority.” Gammie,
335 F.3d at 893 (emphasis added). With no majority opinion,
Randall cannot serve as the requisite “controlling authority”
capable of abrogating our precedent. See Thalheimer,
645 F.3d at 1127 n.5.
B.
Where does this leave us? We hold today the district
court was incorrect to find Randall’s “closely drawn” analysis
abrogated Eddleman’s “closely drawn” analysis, because
there simply was no binding Randall decision on that point.
But we also hold that Citizens United did abrogate Eddleman
because Eddleman relied on a now-invalid “important state
interest”—combating influence, not just preventing quid pro
quo corruption or its appearance. Because Eddleman relied
on a now-invalid state interest, its ultimate holding that the
Individual/PAC Limits are constitutional is abrogated. But
Citizens United left untouched Eddelman’s formulation of the
overall framework for determining whether contribution
limits are constitutional; it simply narrowed what constitutes
an “important state interest.” Eddleman’s framework is
otherwise still sound, and the test remains the same going
forward:
[S]tate campaign contribution limits will be
upheld if (1) there is adequate evidence that
the limitation furthers a sufficiently important
state interest, and (2) if the limits are “closely
drawn”—i.e., if they (a) focus narrowly on the
state’s interest, (b) leave the contributor free
to affiliate with a candidate, and (c) allow the
22 LAIR V. BULLOCK
candidate to amass sufficient resources to
wage an effective campaign.
Eddleman, 343 F.3d at 1092. As a result, the district court’s
decision to apply Randall’s “closely drawn” analysis to the
Individual/PAC Limits and the Party Limits was legal error.
The district court therefore abused its discretion when it
entered a permanent injunction, and we remand for the
district court to apply the correct standard.7
We provide some instruction on remand. The district
court here assumed Montana had shown an “important state
interest” but did not identify what that interest was. But it is
difficult to address whether contribution limits further the
state’s asserted interest, and whether the limits are “closely
drawn” to that interest, unless we know exactly what that
interest is. See, e.g., McCutcheon, 134 S. Ct. at 1445 (“[W]e
7
At oral argument, Lair asked us to review the record independently to
determine whether Montana’s contribution limits are valid. Though we
have recognized our review in First Amendment cases is more rigorous
than other cases, we still give some deference to the district court’s factual
findings. See Newton v. Nat’l Broad. Co., 930 F.2d 662, 670 (9th Cir.
1990) (“[W]e must simultaneously ensure the appropriate appellate
protection of First Amendment values and still defer to the findings of the
trier of fact.”); see also Planned Parenthood of Columbia/Willamette, Inc.
v. Am. Coal. of Life Activists, 290 F.3d 1058, 1082 (9th Cir. 2002). We
have no factual findings to review for either the “important state interest”
prong, because the district court assumed Montana had shown an
important state interest (without identifying what that interest was), or the
correct Eddleman “closely drawn” analysis, because the district court
applied the incorrect Randall “closely drawn” analysis. Further, the
parties developed a record with a different “important state interest”
standard in mind. Montana should have an opportunity to develop a
record aimed at the new “important state interest” standard as well as the
corresponding “closely drawn” analysis. We express no opinion on how
the parties should supplement the current record if they so choose to do.
LAIR V. BULLOCK 23
must assess the fit between the stated governmental objective
and the means selected to achieve that objective.”); id. at
1456 (“In the First Amendment context, fit matters.”). On
remand, we instruct the district court either (1) to decide
whether Montana has carried its burden in showing the
contribution limits further a valid “important state interest”
or, if the district court again assumes the state has carried its
burden, (2) to identify expressly what interest the district
court assumes exists. Doing so will ensure the district court
and any reviewing courts will be able to evaluate whether the
contribution limits are “closely drawn.”8
8
Intervenor Rick Hill was the Republican nominee for governor for the
2012 election who received a $500,000 contribution from the Montana
Republican Party during the few days the district court’s injunction was
in effect. The Montana Commissioner of Political Practices opened an
investigation into Hill for his receipt and use of the $500,000 donation.
The Commissioner has stayed that investigation pending the outcome of
this appeal.
Hill intervened in this appeal after the Lair I panel vacated the district
court’s injunction. Hill argues that if we reverse the district court and
vacate the injunction against the enforcement of the Party Limits, as we
do today, we should leave in place the district court’s order enjoining
enforcement of those limits for the few days the injunction was in place.
In effect, Hill asks this panel to enjoin Montana from prosecuting Hill for
receiving the $500,000 donation while the district court’s permanent
injunction was in place. This issue was not presented to the district court,
as Hill intervened after the Lair I decision. Moreover, it is not clear there
is a live dispute between Hill and Montana; indeed, a district court has
already found Hill’s attempt to enjoin Montana from prosecuting him to
be unripe because the threat of prosecution was too remote. See Order at
13–14, Hill v. Motl, 6:13-cv-41-RKS (D. Mont. Oct. 18, 2013), ECF No.
35. We therefore decline to grant the relief Hill requests.
24 LAIR V. BULLOCK
III
The district court applied the wrong legal standard prior
to enjoining permanently the enforcement of Montana’s
restrictions on campaign contributions by individuals, PACs,
and political parties. We therefore reverse and remand for
proceedings consistent with this opinion.9
REVERSED AND REMANDED.
9
Because we reverse and remand, Lair’s renewed motion to lift our stay
of the district court’s injunction and Montana’s motion to strike portions
of Lair’s motion are denied as moot. We grant the Hill Campaign’s
motion for judicial notice.