Last night the U.S. Court of Appeals for the Ninth Circuit issued a divided opinion that sets up the next challenge to the Supreme Court’s decisions in Citizens United and McCutcheon. The Ninth Circuit panel in Lair v. Motl,  upheld Montana’s limits on campaign contributions to state officeholders, rejecting a constitutional challenge that the limits violated the First Amendment. Since Citizens United, the Supreme Court has  held that the Government’s only interest strong enough to overcome the First Amendment’s freedom to speak during political campaigns was preventing quid pro quo corruption. As the Court said in McCutcheon:

 In a series of cases over the past 40 years, we have spelled out how to draw the constitutional line between the permissible goal of avoiding corruption in the political process and the impermissible desire simply to limit political speech. We have said that government regulation may not target the general gratitude a candidate may feel toward those who support him or his allies, or the political access such support may afford. “Ingratiation and access . . . are not corruption.” Citizens United v. Federal Election Comm’n, 558 U. S. 310, 360 (2010). They embody a central feature of democracy–that constituents support candidates who share their beliefs and interests, and candidates who are elected can be expected to be responsive to those concerns.

Any regulation must instead target what we have called “quid pro quo” corruption or its appearance. See id.,at 359. That Latin phrase captures the notion of a direct exchange of an official act for money. See McCormickv. United States, 500 U. S. 257, 266 (1991). “The hallmark of corruption is the financial quid pro quo: dollars for political favors.” Federal Election Comm’n v. National Conservative Political Action Comm., 470 U. S. 480, 497 (1985). Campaign finance restrictions that pursue other objectives, we have explained, impermissibly inject the Government “into the debate over who should govern.” Bennett, supra, at ___ (slip op., at 25). And those who govern should be the last people to help decide who should govern.

The key question in Lair was what evidence the Government needed to show that quid pro quo corruption was likely to occur; did they need to show that corruption had actually occurred, or that it was imminent, or just likely, or even just possible? The Lair majority said even less was required; to sustain a law governing campaign-related speech against a constitutional challenge, the Government need only show that quid pro quo corruption was just not “illusory,”  or not “implausible.” Slip op., 16. Don’t need actual evidence, just someone declaring in an affidavit that it might happen. Slip op., 17. In Lair, state legislators testified that PACs would make more campaign contributions “when certain special interests know an issue is coming up, because it gets results.” Slip Op., 18. That was enough to show quid pro quo corruption, the panel majority held.

Ninth Circuit Judge Carlos Bea dissented strongly, noting that Supreme Court decisions require more than just some hypothetical corruption threat, that there be some realistic quid pro quo corruption threat.  Slip Op., 37, 38, 41, 42 (Bea, J., dissenting). Judge Bea wrote:

The mere prevention of influence on legislators by contributors is now not a valid important state interest that could justify campaign contribution limits. Citizens United v. FEC, 558 U.S. 310, 359 (2010); see also McCutcheon, 134 S. Ct. at 1441. As such, only the avoidance of corruption or the appearance of corruption remain as a
state interest valid and important enough to limit the free speech rights of contributors exercised through their contributions to their legislators. … To establish this sole valid important state interest defendants here must demonstrate that the existence of actual or apparent quid pro quo corruption is more than “mere
conjecture” and is not “illusory.”

Slip Op. 36-37.

And Judge Bea’s dissent pointed out that all of the examples cited by the panel majority were rejected by the legislators to whom they were targeted. Slip Op., 38-41. Thus, Judge Bea argued, there was no actual threat of quid pro quo corruption, only fears that there might be from what the Supreme Court had repeatedly declared to be legitimate speech (or at least speech that the Court would not allow government to prohibit). Judge Bea concluded:

While it is admittedly difficult at times to distinguish between proscribed corruption and acceptable influence, given the important First Amendment interests at stake when restricting political speech we are obliged to scrutinize carefully whether a valid important state interest exists before upholding the constitutionality of such restrictions. See McCutcheon, 134 S. Ct. at 1451 (“The line between quid pro quo corruption and general influence may seem vague at times, but the distinction must be respected in order to safeguard basic First Amendment rights.”). Although there
is admittedly some common sense to the notion that limiting the amount of money citizens may contribute to political candidates inherently forestalls corruption, because so doing also restricts speech our federal constitution requires a greater
evidentiary showing than made on this record before a state may restrict political speech through campaign contribution limits.

Slip Op., 42-42.

The Lair case was filed by Jim Bopp, a legendary attorney whose cases have included many of those leading to current Supreme Court precedents in this area. Bopp vowed to appeal the Ninth Circuit decision. Bopp told the Associated Press that:

“I’m very disappointed that the majority is not willing to apply the changes in the law that Citizens United has mandated,” that “only quid pro quo corruption can justify contribution limits,” Bopp said Monday. Under this ruling, you can “have your constitutional rights stripped from you because somebody can imagine that someone might do something wrong with those rights.”

So yet another Bopp First Amendment case is teed up for the Supreme Court in coming months. This one may tie together threads left dangling in earlier cases:

• do the newly-reinvigorated First Amendment protections for campaign expenditures now apply to campaign contributions as well? That would carry on the logic of McCutcheon, which, using the newer definitions of corruption, removed overall limits on some campaign-related expenditures.
• do the First Amendment protections against limiting campaign expenditures on the basis of the identity of the spender (the real holding of Citizens United) apply to campaign contributions as well? Again, that would simply extend the logic of McCutcheon.
• Can an “infusion” of campaign funds ever constitute quid pro quo corruption? Both McCutcheon and earlier cases held that they might. If so, where are the lines to be drawn between “legitimate” associational rights and corruption?

Stay tuned.

• Uncategorized