It’s been six months since a three-judge panel of the Ninth Circuit Court of Appeals, on a 2-1 vote, upheld Montana’s right to limit campaign contributions. After Citizens United, the only governmental interest strong enough to over-ride the First Amendment is quid pro quo corruption or the appearance of corruption, and the government had to show “objective evidence” of that to justify a limit on speech. See McCutcheon v. FEC, 134 S. Ct. 1434, 1441, 1444–45 (2014); Citizens United v. FEC, 558 U.S. 310, 359 (2010).

The question in Lair was what was “objective evidence” of quid pro quo corruption: was evidence about lobbying or campaign contributions enough to show corruption, even though the Supreme Court held in Citizens United and McCutcheon that “ingratiation” or “access” was not corruption or its appearance? For example, Chief Justice Roberts wrote in McCutcheon:

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.

The original panel decision last October ruled that, to prove “objective evidence” of corruption, Montana only had to show objective evidence of lobbying activity or campaign contributions. Today, the entire Court of Appeals refused to rehear the case en banc.

There was a dissent by five judges, written by Judge Sandra Ikuta and a concurrence with the denial by two. Judge Ikuta’s dissent stressed that the cases on which the original panel majority relied were handed down before recent Supreme Court cases like McCutcheon and Citizens United. The concurrence, written by Judges Raymond Fisher and Mary Murguia, argued that the original panel had respected the newer Supreme Court precedents in its decision.

The denial’s dissent and concurrence have actually set up a set of very timely and important questions for the Supreme Court. Professor Richard Hasen, host of the Election Law Blog, has already posted about the denial of rehearing. Hasen, who has defended contribution limits in the past, believes that the dissents and concurrence have identified an issue that the Supreme Court might likely choose to review:

Judge Ikuta’s dissent hits on an unresolved question. There are a number of campaign contribution cases, such as Shrink Missouri, decided when the Court was much more deferential to campaign finance regulations and much more willing to let states and localities support contribution limits with a little bit of evidence. No doubt these cases are in tension with McCutcheon, but McCutcheon did not overrrule these cases. And so judges like today divide on what to do.

Nevertheless, Hasen posits that a reversal of the Ninth Circuit’s decision “would almost certainly be to call into question all campaign contribution limits (as indicated in the Judge Fisher/Judge Murguia response).” He doesn’t think the Supreme Court would want to do that much and so might be unlikely to grant certiorari. Hasen does not mention that both Citizens United and McCutcheon are controversial cases, but that is likely behind his thinking.

On the other hand, this is a “clean” case, in the sense that there aren’t a lot of extraneous procedural or other issues that prevent a direct Supreme Court review of the critical legal question. The primary method for convincing the Supreme Court to review a decision is a division (“conflict”) among the circuit courts of appeal. The reason for this is to prevent “forum-shopping” between federal courts when litigants see that decisions in one Circuit are favorable and another not so much. Uniformity of the law across the country is primary among the interests of the Supreme Court.

And the Supreme Court has always been fairly protective of its own decisions, and may choose to use this case to educate lower court judges on this fundamental question. McCutcheon is a particularly recent decision, and, in Part V of its opinion, the Court parsed at some length the corruptive effect of campaigns contributions and lobbying:

The Government argued that there is an opportunity for corruption whenever a large check is given to a legislator, even if the check consists of contributions within the base limits to be appropriately divided among numerous candidates and committees. The aggregate limits, the argument goes, ensure that the check amount does not become too large. That new rationale for the aggregate limits—embraced by the dissent, see post, at 15–17—does not wash. It dangerously broadens the circumscribed definition of quid pro quo corruption articulated in our prior cases, and targets as corruption the general, broad-based support of a political party.

But that’s exactly what the Ninth Circuit decision would do. The Fisher/Murguia concurrence, for example, gave two examples of legislators speculating about large contributions to the Republican Party. Slip op. 25. This is a fundamental divide about the corrupting effect of campaign contributions, just four years after the Supreme Court dealt with the same question in McCutcheon. 

This one might be more important than its focus on the quantum of evidence would indicate. And Jim Bopp, the legendary attorney who brought this case, just messaged me to say that he definitely would ask the Supreme Court to grant cert.

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