Lair et al v. Gallik et al
ORDER granting in part and denying in part 9 Motion for Preliminary Injunction. The Court GRANTS the motion as to MCA Sections 13-37-131 and 13-35-225(3)(a). The Defendants are ENJOINED from enforcing those statutory provisions pending further o rder from the Court. The Court DENIES the motion as to MCA Section 13-37-216(1),(3),(5) and the corporate-contribution provision in MCA Section 13-35-227. The Court DENIES as moot the motion as to corporate-independent-expenditure provision of MCA Section 13-35-227. Signed by Judge Charles C. Lovell on 2/24/2012. (DED, )
IN THE UNITED STATES DISTRICT COURT
FEB 24 2012
FOR THE DISTRICT OF MONTANA
. ATRICK E. DUFFY, CLt
DOUG LAIR, STEVE DOGIAKOS,
TRADITION PARTNERSHIP PAC,
MONTANA RIGHT TO LIFE
ASSOCIATION PAC, SWEET GRASS
COUNCIL FOR COMMUNITY
INTEGRITY, LAKE COUNTY
COUNTY REPUBLICAN CENTRAL
COMMITTEE, JAKE OIL LLC, JL
OIL LLC, CHAMPION PAINTING INC,
and JOHN MILANOVICH,
JAMES MURRY, in his official capacity )
as Commissioner ofPolitical Practices;
STEVE BULLOCK, in his official capacity )
as Attorney General ofthe State of
Montana; and LEO GALLAGHER, in his )
official capacity as Lewis and Clark
DEPUTY ClERK. HELENA
ORDER GRANTING AND
DENYING MOTION FOR
The plaintiffs filed this lawsuit, challenging several of Montana's campaign
finance and election laws. They move the Court for a preliminary injunction
enjoining the enforcement ofthose statutes. The defendants oppose the motion.
On February 17,2012, the Court held a hearing on the motion. Noel
Johnson of Bopp, Coleson, & Bostrom and James Edward Brown of Doney
Crowley Payne Bloomquist P.e. appeared for the plaintiffs. Michael Black and
Andrew Huff of the Montana Attorney General's office appeared for the
The Court grants the motion in part and denies it in part.
The plaintiffs are individuals, corporations, political committees,
associations, and political parties that have expressed a desire to take actions that
would violate several of Montana's campaign finance and election laws:
Montana Code Annotated § 13-35-225(3)(a), which requires
authors of political election materials to disclose another
candidate's voting record;
Montana Code Annotated § 13-37-131, which makes it
unlawful for a person to misrepresent a candidate's public
voting record or any other matter relevant to the issues of the
campaign with knowledge that the assertion is false or with a
reckless disregard of whether it is false;
Montana Code Annotated § 13-37-216(1), (5), which limits
contributions that individuals and political committees may
make to candidates;
Montana Code Annotated § 13-37-216(3), (5), which imposes
an aggregate contribution limit on all political parties; and
Montana Code Annotated § 13-35-227, which prevents corporations
from making either direct contributions to candidates or independent
expenditures on behalf of a candidate.
The plaintiffs argue that each ofthese statutory provisions violates the First
Amendment ofthe United States Constitution.
The plaintiffs have launched a multi-front attack on at least one of these
provisions--Section 13-35-227' s ban on corporate independent expenditures.
Many of the plaintiffs in this case previously sued the defendants in state court,
claiming that the ban is unconstitutional. The state district court, Judge Sherlock,
agreed with the plaintiffs in light of the U.S. Supreme Court's decision in Citizens
Unitedv. FEC, 130 S. Ct. 876 (2010), where the Supreme Court held that bans on
corporate independent expenditures violate the First Amendment.
The Attorney General and Commissioner of Political Practices then
appealed to the Montana Supreme Court. Notwithstanding Citizens United, the
Montana Supreme Court upheld Montana's ban on corporate independent
expenditures. See W. Tradition Partn. v. Atty. Gen. ofthe St. ofMont., 2012 MT
328. The Montana Supreme Court reasoned that Montana's storied history of
political corruption demonstrates that the State has a compelling interest in
preventing corporations from making independent expenditures on a candidate's
behalf. Id. at' 48.
Justice Nelson, in his dissent, expressed sympathy for the majority's ruling
in favor of the State, but he could not agree with the majority in light of Citizens
United. He wrote, "The language of the Citizens United majority opinion is
remarkably sweeping and leaves virtually no conceivable basis for muzzling or
otherwise restricting corporate political speech in the form of independent
expenditures." Id. at ~ 62 (footnote omitted).
Justice Baker also dissented. Id. at ~ 49-60. She agreed with Justice
Nelson that Citizens United should have controlled the Court's decision. Id. at ~
49. But, unlike the majority, she would have expressly ruled to preserve the
disclosure requirements that apply to independent expenditures in order to further
the interest in preventing corruption. Id. at ~ 50. Justice Baker poignantly
I believe it is our unflagging obligation, in keeping with the courts' duty
to safeguard the rule of law, to honor the decisions of our nation's
highest Court. "Americans today accept the [United States Supreme]
Court's role as guardian of the law. They understand the value to the
nation of following Court decisions, ... even when they disagree with
a Court decision and even when they may be right and the decisions may
Id. at ~ 60 (quoting Stephen Breyer, Making Our Democracy Work: A Judge '8
View 214 (Alfred A. Knopf 20 10)).
One ofthe plaintiffs, Western Tradition Partnership (now American
Tradition Partnership), agreed with the dissenting opinions and asked the U.S.
Supreme Court to either summarily reverse the Montana Supreme Court or stay its
decision pending American Tradition Partnership's petition for a writ of certiorari.
See Am. Tradition Partn., Inc. v. Bullock, Cause No. IIA762. On February 17,
2012-Qne day after this Court heard oral argument on the plaintiffs' motion for a
preliminary injunction-the U.S. Supreme Court granted the application to stay
the Montana Supreme Court's decision.
Against this backdrop, the Court turns to the plaintiffs' motion. Because the
parties are familiar with the facts of this case, they are restated here only when
necessary to explain the Court's decision.
PRELIMINARY INJUNCTION STANDARD
'"A plaintiff seeking a preliminary injunction must establish that he is likely
to succeed on the merits, that he is likely to suffer irreparable harm in the absence
of preliminary relief, that the balance of equities tips in his favor, and that an
injunction is in the public interest.'" Thalheimer v. City o/San Diego, 645 F.3d
1109, IllS (9th Cir. 2011) (quoting Winterv. NRDC, 555 U.S. 7, 24-25 (2008)).
"[T]he moving party bears the initial burden of making a colorable claim
that its First Amendment rights have been infringed, or are threatened with
infringement, at which point the burden shifts to the government to justify the
restriction." Jd. at 1116 (citing Klein v. City olSan Clemente, 584 F.3d 1196, 1201
(9th Cir. 2009)).
The plaintiffs argue that the five statutory provisions described above are
unconstitutional under the First Amendment. The defendants disagree and argue
that the plaintiffs do not have standing to bring this challenge. As explained
below, though, the plaintiffs have standing and they are entitled to injunctive relief
on some, but not all, of their claims.
In the first amendment context, '''[I]t is sufficient for standing purposes that
the plaintiff intends to engage in a course of conduct arguably affected with a
constitutional interest and that there is a credible threat that the challenged
provision will be invoked against the plaintiff.'" Wong v. Bush, 542 F.3d 732, 736
(2008) (quoting LSO, Ltd. v. Stroh, 205 F.3d 1146,1154-55 (9th Cir. 2000)).
Here, in their verified complaint,l the plaintiffs thoroughly laid out their
plans and desire to violate the statutes at issue. See Compl.
n 24-102 (dkt # I).
And the plaintiffs have shown there is a "credible threat that the challenged
provision[s] will be invoked against [them]." See Wong, 542 F.3d at 736. Some of
the plaintiffs, for example, have been recently threatened with lawsuits for
violating the laws at issue here. See Pl.'s Preliminary Injunction Memo. 22-23
(dkt # 10). And, some ofthe plaintiffs have had contributions returned to them by
a candidate after that candidate had already received the maximum contribution
allowed by statute. See id. at 11.
In short, the plaintiffs have sufficiently shown that (I) they "intend[ ] to
engage in a course of conduct arguably affected with a constitutional interest" and
(2) "there is a credible threat that the challenged provision will be invoked against
II. Montana Code Ann. § 13-35-225(3)(a): vote-reporting requirement
The plaintiffs challenge the vote-reporting requirement in Section
Printed election material described in subsection (1) that includes
information about another candidate's voting record must include:
("A verified complaint may be treated as an affidavit, and, as such, it is
evidence that may support injunctive relief." Thalheimer, 645 F.3d at 1116
(i) a reference to the particular vote or votes upon which the information
(ii) a disclosure of contrasting votes known to have been made by the
candidate on the same issue if closely related in time; and
(iii) a statement, signed as provided in subsection (3 )(b), that to the best
of the signer's knowledge, the statements made about the other
candidate's voting record are accurate and true.
The plaintiffs argue that this statute is unconstitutional because it is
unconstitutionally vague, overbroad, and fails strict scrutiny review. The Court
agrees, at least in part.
A statute is unconstitutionally vague if it "fails to clearly mark the boundary
between permissible and impermissible speech ...." Buckley v. Valeo, 424 U.S. 1,
41 (1976). "Statutes that are insufficiently clear are void for three reasons: '(1) to
avoid punishing people for behavior that they could not have known was illegal;
(2) to avoid subjective enforcement ofthe laws based on 'arbitrary and
discriminatory enforcement' by government officers; and (3) to avoid any chilling
effect on the exercise of First Amendment freedoms.'" Humanitarian Law Project
v. Us. Treas. Dept., 578 F.3d 1133, 1146 (9th Cir. 2009)(quoting Foti v. City 0/
Menlo Park, 146 F.3d 629, 638 (9th Cir. 1998». Stated differently, "A statute
must be sufficiently clear so as to allow persons of' ordinary intelligence a
reasonable opportunity to know what is prohibited.'" Foti, 146 F.3d at 638
(quoting Graynedv. City o/Rockford, 408 U.S. 104, 108 (1972»; see also
Humanitarian Law Project, 578 F.3d at 1146.
Here, the problematic portion of Section 13-35-225(3)(a) is subsection (ii).
Under that subsection, when printed election material includes information about a
candidate's voting record, the material must also include "a disclosure of
contrasting votes known to have been made by the candidate on the same issue if
closely related in time." Mont. Code Ann. § 13-35-225(3)(a)(ii).
As the plaintiffs discuss, the phrase "closely related in time" is not defined
anywhere in Montana's statutes or regulations, and a candidate could not possibly
know to what "closely related in time" refers. The defendants argue that "closely
related in time" simply refers to votes that occur in the same legislative session as
the votes discussed in the printed election material. That is one possibility, but are
Could the phrase "closely related in time" also include the previous
legislative session? Yes, possibly. A candidate's vote on a particular tax issue in
2009 could be construed as "closely related in time" to a vote on the same tax
issue in 2011 (the following legislative session). But someone else might construe
it differently to mean, as the defendants suggest, the same legislative session. And
that is the point-the statute utterly "fails to clearly mark the boundary between
permissible and impermissible speech." Buckley, 424 U.S. at 41. As such, it is
unconstitutionally vague. Id
Similarly, the phrase "the same issue" is unconstitutionally vague. Suppose,
for example, that the Montana Legislature is addressing the question of campaign
financing and that a state senator votes to raise the contribution limit for
individuals and political committees in gubernatorial races from $500 to $1,000.
But suppose also that the same senator votes to lower that limit for political parties
from $18,000 to $13,000. Do the two votes involve "the same issue" under Section
13-35-225(3)(a)(ii)? Maybe. Broadly defined, both votes concern campaign
financing for gubernatorial races. But, narrowly defined, they are different--one
concerns individuals and political committees and the other concerns political
parties. The question of sameness, then is a question of scale. At one level the
issues are the same, but, at another, they are not. As such, "persons of ordinary
intelligence" do not have "a reasonable opportunity to know what is prohibited"
by the phrase "the same issue." See Foti, 146 F.3d at 638. The phrase "the same
issue" is therefore unconstitutionally vague. Id
Each of the elements for injunctive relief is met here. First, as discussed
above, the plaintiffs are likely to succeed on their claim that 13-35-225(3)(a)
violates the First Amendment because it is unconstitutionally vague. Second, the
enforcement of Section 13-3 5-225(3)(a) would create irreparable harm because,
"'The loss of First Amendment freedoms for even minimal periods of time,
unquestionably constitutes irreparable injury.'" Thalheimer, 645 F.3d at 1128
(quoting Elrod v. Burns, 427 U.S. 347, 373 (1976)). Finally, the equities and
public interest in "upholding free speech and association rights outweigh[ J the
interest in continued enforcement" of Section 13-35-225(3)(a). As a result, the
Court preliminarily enjoins the defendants from enforcing Section
Since the Court enjoins the enforcement of Section 13-35-225(3)(a) on
account of its unconstitutional vagueness, the Court need not address the
remaining bases upon which the statute might be unconstitutional. 2 Suffice it to
say that the plaintiffs stand at least a colorable chance of prevailing on one or
more of those alternative bases. See Citizens United, 130 S. Ct. at 895-96
(discussing prior restraint); Human Life ofWash. Inc. v. Brumsickle, 624 F.3d 990,
1004-05 (9th Cir. 2010) (discussing the application of "exacting scrutiny" to
disclosure requirements); ACLU v. Heller, 378 F.3d 979,987 (9th Cir. 2004)
(discussing the application of strict scrutiny to content-based restrictions on
Montana Code Ann. § 13-37-131: political eivillibel
Next, the plaintiffs challenge Montana's political-civil-libel
statute-Montana Code Annotated § 13-3 7-131-which makes it unlawful for a
For the reasons discussed in Randall v. Sorrell, 548 U.S. 230, 262 (2006),
the Court does not sever the unconstitutional portions of Section 13-35-225(3)(a)
from the remaining portions of the statute that might be constitutional.
person to "misrepresent" a candidate's "public voting record or any other matter
that is relevant to the issues of the campaign with knowledge that the assertion is
false or with a reckless disregard ofwhether or not the assertion is false."} Like the
statute discussed above, the plaintiffs claim the political-civil-libel statute is
unconstitutionally vague, overbroad, and fails strict scrutiny. The plaintiffs also
claim that Section 13-37-131 is unconstitutional as applied to lobbyists taking
positions on political issues. As above, the Court agrees, at least in part, with the
Section 13-37-131 provides:
(1) It is unlawful for a person to misrepresent a candidate's public
voting record or any other matter that is relevant to the issues of the
campaign with knowledge that the assertion is false or with a reckless
disregard of whether or not the assertion is false.
(2) It is unlawful for a person to misrepresent to a candidate another
candidate's public voting record or any other matter that is relevant to
the issues of the campaign with knowledge that the assertion is false or
with a reckless disregard of whether or not the assertion is false.
(3) For the purposes of this section, the public voting record of a
candidate who was previously a member of the legislature includes a
vote of that candidate recorded in committee minutes or in journals of
the senate or the house of representatives. Failure of a person to verify
a public voting record is evidence of the person's reckless disregard if
the statement made by the person or the information provided to the
candidate is false.
(4) A person violating subsection (1) or (2) is liable in a civil action
brought by the commissioner or county attorney pursuant to 13-37-124
for an amount up to $1,000. An action pursuant to this section is subject
to the provisions of 13-37-129 and 13-37-130.
The plaintiffs argue the phrase "relevant to the issues ofthe campaign" is
unconstitutionally vague. The plaintiffs are correct. There is simply no way for a
person or an organization to know with certainty whether an issue is "relevant" to
a candidate's campaign. The plaintiffs poignantly ask whether this statute is
"restricted to statements about the candidates' prior and current government
service? Or does it also include statements about such things as candidates'
academic backgrounds? Their spouses? Their current or past employment? Their
The plaintiffs' questions are well taken. A person of "ordinary intelligence"
would not have "a reasonable opportunity to know what is prohibited" under the
statute. Foti, 146 F.3d at 638. The defendants counter that the statute is not vague
because the speaker's speech determines the relevancy. In other words, if a person
says something about a candidate, then that makes the speech "relevant to the
issues of the campaign." The Court disagrees. If the defendants were correct, then
the statute would be unconstitutionally overbroad. Suppose, for example, that
Candidate A says that Candidate B has blue eyes when, in fact, she has brown
eyes. Is that statement "relevant to the issues of the campaign"? Under the
defendants' theory, yes. But, as we are often reminded during elections, not
everything that is said during a campaign is truly "relevant to the issues of the
campaign." Moreover, relevancy is in the eye of the beholder-what is relevant to
one voter might not be relevant to another.
Since there is no way to know what constitutes a matter "relevant to the
issues of the campaign," Section 13-37-131 "fails to clearly mark the boundary
between permissible and impermissible speech ...." Buckley, 424 U.S. at 41. As
such, it is unconstitutionally vague. fd.
As above, each of the elements for injunctive relief is met here. First, the
plaintiffs are likely to succeed on their claim that Section 13-37-131 violates the
First Amendment. Second, enforcement of Section 13-37-131 would create
irreparable harm because, '''The loss of First Amendment freedoms for even
minimal periods of time, unquestionably constitutes irreparable injury.'"
Thalheimer, 645 F.3d at 1128 (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976)).
Finally, the equities and public interest in "upholding free speech and association
rights outweigh[ 1the interest in continued enforcement" of Section 13-37-131.
As a result, the Court preliminarily enjoins the defendants from enforcing Section
Since the Court enjoins the enforcement of Section 13-37-131 on account
of its unconstitutional vagueness, the Court need not address the remaining bases
upon which the statute might be unconstitutional. 4 But, again, the plaintiffs stand
at least a colorable chance of prevailing on one or more of those alternative
arguments. See e.g. Wash. St. Grange v. Wash. St. Republican Party, 552 U.S.
442,449 n.6 (2008) (discussing when a law is unconstitutionally overbroad);
United States v. Alvarez, 617 F.3d 1198 (9th Cir. 2010) (discussing government
restriction offalse statements), rehearing en banc denied, 638 F.3d 66,674 (9th
Cir. 2011); see also McIntyre v. Ohio Elections Commn., 514 U.S. 334 (1995).
IV. Montana Code Annotated § 13-37-216(1), (5): contribution limits for
individuals and political committee
Section 13-37-216(1) imposes the following contribution limits on
individuals and political committees: $500 for governor and lieutenant governor,
$250 for other statewide offices, and $130 for any other public office. The
plaintiffs argue that these limits are unconstitutional. Controlling Ninth Circuit
precedent suggests the opposite is true, though, and the plaintiffs are therefore not
likely to succeed on their claim, based on the facts presented to the Court thus far.
That could change, though, as the factual evidence continues to develop.
Unlike corporate independent expenditures, which are subject to strict
scrutiny under Citizens United, limits on campaign contributions "need only be
For the reasons discussed in Randall, the Court does not sever the
unconstitutional portions of Section 13-35-225(3)(a) from the remaining portions
ofthe statute that might be constitutional. 548 U.S. at 262.
'closely drawn' to match a sufficiently important interest to survive a
constitutional challenge."s Thalheimer, 645 F.3d at 1117-18 (quoting Randall v.
Sorrell, 548 U.S. 230, 247 (2006) (plurality)); see also Nixon v. Shrink Mo. Govt.
PAC, 528 U.S. 377, 387-88 (2000); Buckley, 424 U.S. I, 25 (1976); see also
Family PAC v. McKenna, _
F.3d _ , 2012 WL 266111 (9th Cir. Jan. 31,2012).
Contribution limits are "closely drawn" 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." Mont.
Right to Life Assn. v. Eddleman, 343 F.3d 1085, 1092 (9th Cir. 2003), cert. denied,
125 S. Ct. 47 (2004).
The Ninth Circuit's decision in Montana Right to Life Assn. v.
In Eddleman, the Ninth Circuit expressly held that Montana's contribution
limits for individuals and political committees in Section 13-37-216 are
constitutional. 343 F.3d 1085. The U.S. Supreme Court later denied the Montana
Right to Life Association's petition for a writ of certiorari. 125 S. Ct. 47. In its
decision, the Ninth Circuit relied on the familiar analytic framework set out in
Buckley and Shrink Missouri, among other cases. The court offered a thorough
The plaintiffs argue that strict scrutiny applies in light of Citizens United,
but their argument fails. The Ninth Circuit expressly held that Citizens United did
not change the standard of review that applies to contribution limits. Thalheimer,
645 F.3d at 1117-18.
discussion of Section 13-37-216, explaining that (1) the State of Montana has an
anti-corruption interest that justifies the contribution limits and (2) the statute is
closely drawn. 343 F.3d at 1092-96.
Eddleman arrived at the Ninth Circuit after a four-day bench trial before
Judge Shanstrom, who made extensive findings offact. Id. at 1091, 1098.
Applying Shrink Missouri and Buckley-and relying on the findings of facts--the
Ninth Circuit first observed that Montana has a "sufficiently important interest"
that justifies contribution limits. Id. at 1092-93. In particular, the court pointed to
the findings of fact made by Judge Shanstrom, which, among other things,
demonstrated that "special interests funnel more money into campaigns when
particular issues approach a vote 'because it gets results. '" Id. at 1092. The court's
decision is replete with other findings of fact that show how money influences
campaigns in Montana. Id. at 1092-93.
Having concluded that Montana has a sufficiently important interest that
justifies contribution limits, the Ninth Circuit next examined whether the limit
amounts are closely drawn to avoid unnecessary abridgment of associational
freedoms. Id. at 1093-96. The court cited Buckley and observed that a campaign
contribution limit is "closely drawn" if it:
focus[es] on the narrow aspect of political aSSOciatIOn where the
actuality and potential for corruption have been identified-while leaving
persons free to engage in independent political expression, to associate
actively through volunteering their services, and to assist in a limited but
nonetheless substantial extent in supporting the candidates and
committees with financial resources.
ld. at 1094-93 (quoting Buckley, 424 U.S. at 28). Moreover, under Shrink
Missouri, contribution limits 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.'" Eddleman, 343
F.3d at 1094 (quoting Shrink Mo., 528 U.S. at 397). When making this
determination, courts "look at all dollars likely to be forthcoming in a campaign,
rather than the isolated contribution," as well as "whether the candidate can look
elsewhere for money, the percentage of contributions that are affected, the total
cost ofa campaign, and how much money each candidate would lose."
ld. (citations omitted).
The Ninth Circuit applied this framework and concluded that Section
13-37-216 is closely drawn because:
the contribution limits affect only the top 10% of contributions,
id. at 1094;
Section 13-37-216 increased the amount of money that
political parties can contribute to a candidate, id.;
the State of Montana remains one of the least expensive states
in which to run a campaign, id. at 1094-95; and
the contribution limits do not prevent Montana candidates from
mounting effective campaigns, td. at 1095.
In its conclusion, the Ninth Circuit noted that questions of contribution
limits are better left to the legislature and Montana voters, not the courts: "The
voters of Montana are entitled to considerable deference when it comes to
campaign finance reform initiatives designed to preserve the integrity of their
electoral process." Id. at 1098 (citing FEe v. Beaumont, 539 U.S. 146, 156-58
Eddleman has not been overruled. Indeed, as discussed above, the Supreme
Court denied the Montana Right to Life Association's petition for a writ of
certiorari. 125 S. Ct. 47. The most significant case dealing with contribution limits
since Eddleman was decided is the U.S. Supreme Court's plurality decision in
Randall, 548 U.S. 230.
The U.S. Supreme Court's decision in Randall v. Sorrell
In Randall, which was decided a few years after Eddleman, the Supreme
Court struck down Vermont's contribution-limit statute. 6 518 U.S. 230. Randall,
though, is not inconsistent with Eddleman in any way. The Supreme Court applied
precisely the same law that the Ninth Circuit did in Eddleman, and Vermont's
former law is distinguishable from Montana's in very important ways.
Vermont's law-"Act 64"-imposed contribution limits of $400 for the
As a plurality decision, Randall is highly persuasive, but not binding,
authority. Texas v. Brown, 460 U.S. 730,737 (1983).
offices of governor, lieutenant governor, and other state-wide offices; $300 for
state senator; and $200 for state representative. Jd. at 238.
As the Ninth Circuit did in Eddleman, the Supreme Court based its analysis
of the Vermont law on its prior opinions in Buckley and Shrink Missouri. The
Court observed that "contribution limits are permissible as long as the
Government demonstrates that the limits are 'closely drawn' to match a
'sufficiently important interest. '" Randall, 518 U.S. at 247 (quoting Buckl~, 424
U.S. at 25). It also recognized that it has "consistently upheld contribution limits
in other statutes." Id. (citing Shrink Mo., 528 U.S. 377; Cal. Med. Assn. v. FEC,
453 US. 182). Nevertheless, "[C]ontribution limits might sometimes work more
harm to protected First Amendment interests than their anticorruption objectives
could justify." Id. at 247-48 (emphasis original) (citing Shrink Mo., 528 US. at
395-97; Buckl~, 424 U.S. at 21). The critical question, after Buckley, is whether
the "contribution limits prevent candidates from 'amassing the resources necessary
for effective [campaign] advocacy.'" Id. at 248 (quoting Buckl~, 424 U.S. at 21).
As the Ninth Circuit did in Eddleman, the Supreme Court acknowledged
that, ordinarily, the state legislatures are better equipped to empirically evaluate
contribution limits. Id. at 248. But it remarked, H[A]s Buckley acknowledged, we
must recognize the existence of some lower bound." Id. Courts must look for
'''danger signs' that contribution limits are low enough to threaten 'democratic
accountability. '" Thalheimer, 645 F.3d at 1127 (quoting Randall, 548 U.S. at
The Supreme Court found there were a number of"danger signs" with
regard to Vermont's law. Significantly, unlike Section 13-37-216 here, Vermont's
contribution limits were not adjusted for inflation. Randall, 548 U.S. at 250-51,
261. Moreover, the Supreme Court pointed to Montana's contribution-limit law,
among others, and observed that Vermont's limits were the lowest in the country.
Jd. at 250. In total, there were five principal factors that caused the Supreme Court
to declare Vermont's law unconstitutional:
Vermont's contribution limits significantly restricted the amount
of funding available for challengers to run competitive
campaigns, id. at 253;
Vermont's law applied the same, low contribution limits to
political parties, id. at 256;
volunteer services provided without compensation were excluded
from the definition of "contribution," but travel expenses and
other expenses that volunteers incur were not, id. at 259;
the contribution limits were not adjusted for inflation, id. at 261;
the record did not show there was a "special justification" that
might warrant such a low or restrictive limit, id. at 261.
After concluding that Vermont's contribution limits were unconstitutional, the
Supreme Court further held that the constitutional portions of the law could not be
severed from the ones that were unconstitutional: "We add that we do not believe it
possible to sever some of the Act's contribution limit provisions from others that
might remain fully operative." !d. at 262.
Randall's effect on Eddleman and this case
The Randall Court did not draw a bright line demarcating the bounds of
acceptable contribution limits. And, important here, it did not change the standard
that applies to contribution limits. It relied primarily on Buckley and Shrink, just as
the Ninth Circuit did in Eddleman.
Nothing the Supreme Court said or did in Randall is inconsistent with
Eddleman. In particular, none ofthe five factors discussed in Randall apply to
Montana's contribution limits: (1) Montana's limits are greater than Vermont's
former limits and, as the Ninth Circuit held in Eddleman, those limits do not
prevent candidates from mounting successful campaigns; (2) Montana's limits for
political parties are not the same as those for individuals and political committees;
(3) Montana's limits do not treat volunteer services and expenses differently; (4)
Montana's limits are adjusted for inflation; and (5) as the Ninth Circuit held in
Eddleman, the facts show that Montana's contribution limits are justified.
This preliminary conclusion does not imply that this Court will reach the
same conclusion further down the road in this litigation. The plaintiffs might, for
instance, marshal evidence showing that the contribution limits (adjusted for
inflation), while fonnerly adequate, no longer allow candidates to '''amass[ ] the
resources necessary for effective [campaign] advocacy. '" Randall, 518 U.S. at 248
(quoting Buckley, 424 U.S. at 21). But the record does not support that assessment
at this point, and the Court will not preliminarily enjoin the enforcement of
Montana Code Annotated § 13-37-216(3), (5): aggregate contribution
limits for political parties
Section 13-37-216(3) imposes the following contribution limits on political
parties: $18,000 for governor and lieutenant governor, $2,600 for public service
commissioner, $1,050 for state senators, and $650 for any other public officer.
Each of these amounts is adjusted for inflation. This argument, like the previous,
fails on the record currently before the Court.
Much of the plaintiffs' argument is based on their contention that
contribution limits for political parties are subject to strict scrutiny under Citizens
United. Not so. The Ninth Circuit, in Thalheimer, made clear that contribution
limits-including those imposed on political parties-are subject to the "closely
drawn" standard laid out in Buckley and Shrink Missouri. See Thalheimer, 645
In Eddleman, the Ninth Circuit addressed Montana's contribution limits for
individuals and political committees, but it did not explicitly address the limits for
political parties. It did, however, note that the political-party limits had been
increased. In fact, the court upheld the limits for individuals and political
committees, in part, because of the increased limits for political parties. See
Eddleman, 343 F.3d at 1088-89, 1094.
In Randall, the Supreme Court addressed Vermont's contribution limit for
political parties. The Court declared that limit unconstitutional, but Vermont's law
was much different than Montana's. The only similarity that the two laws share is
that they both impose aggregate limits--that is, the limit applies to the total of all
party contributions. Randall, 548 U.S. at 257. Importantly, though, Vermont's law,
unlike Montana's, imposed the same limits on political parties that it imposed on
individuals and political committees. Id. Montana's limits for political parties are
much higher and, depending on the office, the contribution limits are between five
and 36 times greater than individual and political committee limits.
The Ninth Circuit recently addressed limits for political parties in
Thalheimer. There, the district court had granted a preliminary injunction
enjoining San Diego's $1,000 contribution limit for political parties. 645 F.3d at
1126-27. The Ninth Circuit did not necessarily agree with the district court's
conclusion, but it held that, since the question was a close one, the district court
did not abuse its discretion by granting the injunction. Id.
The district court later struck down the $1,000 contribution limit as
unconstitutional. 2012 WL 177414, * 15-* 19. A key factor in the district court's
decision was that the limit imposed on political parties was "merely twice that of
individuals." Id. at *17. As the district court explained:
[T]he fact that the limitation contributions by political parties is only
twice that of the individual limit, appears to give "no weight at all" to
the required balance between: (I) "the need to allow individuals to
participate in the political process by contributing to political parties that
help elect candidates" with (2) "the need to prevent the use of political
parties 'to circumvent contribution limits that apply to individuals.' "
There are, of course, other factors that the Court must consider in addition
to how the political-party limits compare to the individual and political committee
limits. The Court, for example, should consider the factors laid out in Eddleman
and Randall, as described in the previous section. But the fact that Montana's
contribution limit for political parties is five to 36 times greater than the individual
and political-committee limits, which the Ninth Circuit upheld in Eddleman,
counsels against a preliminary injunction. At trial, the plaintiffs might come
forward with facts showing that the contribution limits for individuals, political
committees, and political parties are inadequate. But the plaintiffs are not likely to
succeed at this point.
VI. Montana Code Annotated § 13-35-227: corporate contributions and
Montana Code Annotated § 13-35-227 bans both corporate contributions
and independent expenditures made in connection with a candidate or political
committee that supports or opposes a candidate or a political party.? The plaintiffs
argue that these bans are unconstitutional. The plaintiffs' argument with respect to
corporate contributions fails. Both the U.S. Supreme Court and the Ninth Circuit
have held that bans on corporate contributions are constitutional. The Court need
not address the issue of corporate independent expenditures because, as a practical
matter, that issue is moot in light of the U.S. Supreme Court's order staying the
Montana Supreme Court's decision in Western Tradition Partnership.
In Beaumont, 539 U.S. 146, the United States Supreme Court held that
governments may constitutionally ban corporate contributions. See Thalheimer,
Montana Code Annotated § 13-35-227 provides:
(1) A corporation may not make a contribution or an expenditure in
connection with a candidate or a political committee that supports or
opposes a candidate or a political party.
(2) A person, candidate, or political committee may not accept or
receive a corporate contribution described in subsection (1).
(3) This section does not prohibit the establishment or administration
of a separate, segregated fund to be used for making political
contributions or expenditures ifthe fund consists only ofvoluntary
contributions solicited from an individual who is a shareholder,
employee, or member ofthe corporation.
(4) A person who violates this section is subject to the civil penalty
provisions of 13-37-128.
645 FJd at 1124-25 (discussing Beaumont). The Court observed that such bans,
among other things, '''preven[t] corruption or the appearance of corruption. '"
Beaumont, 539 U.S. at 154 (quoting FEC v. Natl. Conservative Political Action
Comm., 470 U.S. 480,496-97 (1985)). Moreover, unlike bans on independent
expenditures, "bans on political contributions have been treated as merely
'marginal' speech restrictions subject to relatively complaisant review under the
First Amendment, because contributions lie closer to the edges than to the core of
political expression." Id. at 161 (quoting FEC v. Colo. Republican Fed. Campaign
Comm., 533 U.S. 431,440 (2001)).
The Ninth Circuit recently made clear that Beaumont is still good law in the
wake of the U.S. Supreme Court's decision in Citizens United, 130 S. Ct. 876,
where the Court held that bans on corporate independent expenditures are
unconstitutional. See Thalheimer, 645 F.3d at 1124-25. The Citizens United Court
expressly declined to revisit its precedent related to contributions and contribution
limits. 130 S. Ct. at 909. As a result, and relying on Beaumont, the Ninth Circuit
affirmed the district court's decision to not grant a preliminary injunction
enjoining San Diego's ban on contributions by "non-individuals," including those
made by corporations. Thalheimer, 645 F.3d at 1124-25. The court recognized
that such bans are constitutional. Id.
The plaintiffs argue that Citizens United somehow abrogated Beaumont and
that Beaumont does not stand for the proposition that bans on corporate
contributions are constitutional. The Ninth Circuit's decision in Thalheimer,
though, shows the opposite is true. Yet the plaintiffs fail entirely to acknowledge
the effect of Thalheimer, despite relying on it for more favorable propositions.
Since the U.S. Supreme Court and the Ninth Circuit (after Citizens United)
have held that bans on corporate contributions are constitutional, the plaintiffs
argument necessarily fails, and the Court does not enjoin the enforcement the
corporate-contribution provision in Montana Code Annotated § 13-35-227.
Corporate independent expenditures
Montana Code Annotated § 13-35-227 prevents corporations from making
"expenditure[s] in connection with a candidate or a political committee that
supports or opposes a candidate or a political party." In Citizens United, the U.S.
Supreme Court held, in sweeping language, that such bans on corporate
independent expenditures are facially unconstitutional under the First Amendment.
See 130 S. Ct. at 913. Despite the Supreme Court's decision in Citizens United, the
Montana Supreme Court upheld Montana's ban on corporate independent
expenditures. See W. Tradition Partnership, 2012 MT 328. American Tradition
Partnership, a plaintiff both here and in Western Tradition Partnership, then
applied to the U.S. Supreme Court for a stay ofthe Montana Supreme Court's
decision, pending a petition for writ of certiorari. See Am. Tradition Partn., Inc.,
Cause No. l1A762. The U.S. Supreme Court granted that application.
The U.S. Supreme Court's order, with which I agree, effectively prevents
the State of Montana from enforcing Section 13-35-227.8 The plaintiffs' motion
here to preliminarily enjoin that statute is therefore at this stage of the proceeding
moot. This Court should not duplicate or interfere with the U.S. Supreme Court's
order by also preliminarily enjoining the enforcement of Section 13-35-227.
The Court grants the motion in part and denies it in part. The Court grants
the motion as to the voter-reporting requirement, Mont. Code Ann. §
13-35-225(3Xa), and the political-civil-libel provision, Mont. Code Ann. §
13-37-131. Both of those statutes are unconstitutionally vague.
The Court, though, denies the motion as it relates to the contribution limits
for individuals, political committees, and political parties. See Mont. Code Ann. §
13-37-216(1), (3), (5). Current Ninth Circuit and U.S. Supreme Court precedent
counsels against an injunction at this point. As the litigation in this matter
continues, though, the plaintiffs might come forward with facts that show the
contribution limits for individuals, political committees, and political parties are
When a corporation gives money to a political committee that then makes
an independent expenditure ofthat money to support or oppose a candidate, the
corporation has made an independent expenditure, as contemplated in Westem
Tradition Partnership and Section 13-35-277.
Finally, the Court denies the motion as it relates to the corporate
contribution and independent expenditure provisions. The U.S. Supreme Court has
held that governments may ban direct corporate contributions to candidates. See
Thalheimer, 645 F.3d at 1124-25 (discussing Beaumont, 539 U.S. 146). As for
independent expenditures, that question is moot at this point in light of the U.S.
Supreme Court's order in Am. Tradition Partnership, Cause No. I1A762.
Accordingly, IT IS HEREBY ORDERED that the plaintiffs' motion for a
preliminary injunction (dkt # 9) is GRANTED IN PART and DENIED IN PART.
The Court GRANTS the motion as to Montana Code Annotated §§
13-37-131, 13-35-225(3)(a). The defendants are ENJOINED from enforcing
those statutory provisions pending further order from the court.
The Court DENIES the motion as to Montana Code Annotated §
13-37-216(1), (3), (5) and the corporate-contribution provision in Montana Code
Annotated § 13-35-227.
The Court DENIES as moot the motion as to the corporate-independent
expenditure provision in Montana Code Annotated § 13-35-227.
Dated thisU day of February 2012.
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