Doug Lair, et al v. Steve Bullock, et al
Filed opinion (RONALD M. GOULD, RICHARD R. CLIFTON and JAY S. BYBEE) (BYBEE, Circuit Judge) (See opinion for full text) We therefore find it necessary to exercise our judicial discretion, and we will stay the district court s permanent injunction pending resolution of the appeal by a merits panel of this court. The State of Montana s motion for stay pending appeal is GRANTED. 
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UNITED STATES COURT OF APPEALS
OCT 16 2012
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
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; JOHN
D.C. No. 6:12-cv-00012-CCL
Plaintiffs - Appellees,
STEVE BULLOCK, in his official
capacity as Attorney General of the State
of Montana; JAMES MURRY, “Jim”, in
his official capacity as Commissioner of
Political Practices; LEO GALLAGHER, in
his official capacity as Lewis and Clark
Defendants - Appellants.
Appeal from the United States District Court
for the District of Montana
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Charles C. Lovell, Senior District Judge, Presiding
Submitted to Motions Panel October 15, 2012
Before: GOULD, CLIFTON, and BYBEE, Circuit Judges.
Opinion by Judge Bybee
BYBEE, Circuit Judge:
Since 1994, Montana has regulated the amount that individuals, political
committees, and political parties can contribute to candidates for state office.
Mont. Code Ann. § 13-37-216, as adjusted by Admin. R. Mont. § 44.10.338.1 In
2003, we upheld this provision against a constitutional challenge based on Buckley
v. Valeo, 424 U.S. 1 (1976), and Nixon v. Shrink Missouri Government PAC, 528
U.S. 377 (2000). Mont. Right to Life Ass’n v. Eddleman, 343 F.3d 1085 (9th Cir.
2003), cert. denied, 543 U.S. 812 (2004). Applying the “analytical framework set
forth in Buckley and [Shrink Missouri],” we held that “Montana’s interest in
purging corruption and the appearance of corruption from its electoral system is
sufficiently important to withstand constitutional scrutiny” and that § 13-37-216
was “closely tailored to achieving those ends.” Id. at 1098. We concluded that
§ 13-37-216 was “constitutional and [did] not violate the First Amendment.” Id.
We have attached Mont. Code Ann. § 13-37-216 (“Appendix A”) and
Admin. R. Mont. § 44.10.338 (“Appendix B”) as appendices to this opinion.
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On October 3, 2012, with less than five weeks before the general election
and after absentee voting in Montana began, the district court concluded that
“Montana’s contribution limits in Montana Code Annotated § 13-37-216 are
unconstitutional under the First Amendment.” Order, Lair v. Murry, No. CV 1212-H-CCL, at 4 (D. Mont. Oct. 3, 2012) [hereinafter Order]. The district court
permanently enjoined Montana from enforcing its campaign contribution limits.
Id. at 5. In an opinion and order issued on October 10, 2012, the district court
explained that our decision in Eddleman was “not binding on this Court because
the U.S. Supreme Court’s intervening decision in Randall [v. Sorrell, 548 U.S. 230
(2006),] compels a different outcome.” Opinion and Order, Lair v. Murry, No. CV
12-12-H-CCL, at 24 (D. Mont. Oct. 10, 2012).
The State of Montana has sought a stay of the district court’s order pending
appeal. For the reasons we explain below, we believe that the state is likely to
succeed on appeal. We conclude that the State of Montana has made a strong
showing that a merits panel of this Court will likely conclude that, absent en banc
proceedings or an intervening decision of the Supreme Court, we remain bound by
our decision in Eddleman. See Miller v. Gammie, 335 F.3d 889, 892–93 (9th Cir.
2003) (en banc). We also conclude that a merits panel is likely to hold that the
analytical framework of the Supreme Court’s decision in Randall does not alter the
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analysis of Buckley or Shrink Missouri in a way that affects our decision in
Eddleman, for three reasons. First, there is no opinion of the Court in Randall.
Thalheimer v. City of San Diego, 645 F.3d 1109, 1127 n.5 (9th Cir. 2011) (“[T]he
plurality opinion [in Randall] [i]s persuasive authority, though not a binding
precedent.” (internal quotation marks omitted)). Second, even if we thought that
Justice Breyer’s plurality opinion represented the narrowest view of a majority of
the Court, it did not depart from the principles of Buckley and Shrink Missouri that
we applied in Eddleman. Randall, 548 U.S. at 242 (opinion of Breyer, J.) (“[T]his
Court has repeatedly adhered to Buckley’s constraints . . . .”). Third, even if we
applied Randall to § 13-37-216, we cannot find, on the basis of the district court’s
findings, reason to disagree with, much less overturn, Eddleman. In light of
Montana’s interest in regulating campaign contributions, the lack of evidence that
other parties will be substantially injured, and the public’s substantial interest in
the stability of its electoral system in the final weeks leading to an election, we will
stay the order pending the state’s appeal. See Nken v. Holder, 556 U.S. 418, 434
The plaintiffs-appellees, various individuals, political action committees,
and other political organizations, brought suit in September 2011 to challenge
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several provisions of Montana’s finance and election laws. The defendantsappellants are various officials of the State of Montana. Only one provision, § 1337-216 of the Montana Code Annotated, which limits contributions that individuals
and political committees can make to candidates, is at issue in this case. The
district court held a bench trial on September 12-14, 2012. On October 3, 2012,
the district court issued a brief order recounting the procedural history of the suit
and the fact of the bench trial. The court stated that “[h]aving reviewed and
considered the entire record and the parties’ arguments and evidence, the Court
concludes that Montana’s contribution limits in Montana Code Annotated § 13-37216 are unconstitutional under the First Amendment.” Order at 4. The court
permanently enjoined the enforcement of § 13-37-216. The district court did not
issue an opinion, but stated that “complete and extensive findings of fact and
conclusions of law that support this order” would be filed separately. Order at 5.
The order was filed before it issued the findings of fact and conclusions of law “so
that th[e] order c[ould] be issued before voting begins in the upcoming election.”
The following day, October 4, 2012, the state defendants-appellants filed for
a stay pending appeal. We ordered an expedited response from the plaintiffsappellees, which they filed on October 9, 2012. That same day, noting that the
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district court had not issued findings and conclusions, we found that we were
“severely constrained in [our] consideration of the underlying issues raised in the
emergency motion.” Order, Lair v. Murry, No. 12-35809, at 1 (9th Cir. Oct. 9,
2012). We nevertheless ordered that the injunction be “temporarily stayed pending
further order of the court.” Id. at 2.
The district court issued an Opinion and Order containing its findings of fact
and conclusions of law on October 10, 2012. The state filed a reply in support of
its motion for a stay on October 11, 2012.
STANDARD OF REVIEW
“A stay is not a matter of right. . . . It is instead ‘an exercise of judicial
discretion’ . . . [that] ‘is dependent upon the circumstances of the particular case.’”
Nken, 556 U.S. at 433 (internal citations omitted) (quoting Virginian Ry. Co. v.
United States, 272 U.S. 658, 672–73 (1926)). Judicial discretion in exercising a
stay is to be guided by the following legal principles, as distilled into a four factor
analysis in Nken: “(1) whether the stay applicant has made a strong showing that he
is likely to succeed on the merits; (2) whether the applicant will be irreparably
injured absent a stay; (3) whether issuance of the stay will substantially injure the
other parties interested in the proceeding; and (4) where the public interest lies.”
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Id. at 434 (citing Hilton v. Braunskill, 481 U.S. 770, 776 (1987)).2 “The party
requesting a stay bears the burden of showing that the circumstances justify an
exercise of [this Court’s] discretion.” Id. at 433–34.
As discussed in detail below, we find that the State of Montana has satisfied
this burden. As the Nken factors illustrate, especially in light of the delicate
campaign contribution equilibrium leading up to the imminent election, we should
and will exercise our discretion to stay the district court’s order pending resolution
of the appeal by a merits panel of this court.
Strong Showing that Success is Likely on the Merits
The first two Nken factors “are the most critical.” Id. at 434. Regarding the
first factor, Nken held that it is not enough that the likelihood of success on the
merits is “better than negligible” or that there is a “mere possibility of relief.” Id.
(internal quotation marks omitted). Since Nken did not specify “the exact degree
of likely success that stay petitioners must show, . . . courts routinely use different
formulations to describe this [factor].” Leiva-Perez v. Holder, 640 F.3d 962, 966
(9th Cir. 2011) (per curiam). We have concluded that many of these formulations,
As Nken recognized, “[t]here is substantial overlap between these and the
factors governing preliminary injunctions.” Nken, 556 U.S. at 434. Compare id.,
with Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).
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including “reasonable probability,” “fair prospect,” “substantial case on the
merits,” and “serious legal questions . . . raised,” are largely interchangeable. Id. at
967–68. All of these formulations indicate that, “at a minimum,” a petitioner must
show that there is a “substantial case for relief on the merits.” Id. at 968. The
standard does not require the petitioners to show that “it is more likely than not that
they will win on the merits.” Id. at 966.
We find that the State of Montana has met its burden to make a strong
showing that success on the merits is likely. In 2003, we specifically considered
the constitutionality of the Montana statute at question here. Eddleman, 343 F.3d
at 1092–96. Our decision in Eddleman stands as a barrier to be overcome, a barrier
that works significantly to the State of Montana’s advantage. The plaintiffs in this
case do not argue that anything has fundamentally changed in Montana political
campaigns since our decision in Eddleman that would call into question our
conclusions made in 2003. In fact, the evidence presented before the district court
in this case appears quite similar to the evidence that was presented in Eddleman.
The only change in circumstance pointed to by the plaintiffs is the Supreme
Court’s decision in Randall. The presumption is that our holding in Eddleman is
controlling in this case, see Miller, 335 F.3d at 892–93, and we find that Randall
does not overcome this presumption. Randall is not binding authority because
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there was no opinion of the Court. Further, even if we looked to Justice Breyer’s
plurality opinion in Randall, it is not clearly irreconcilable with the pre-existing
law that we applied in Eddleman. Finally, even if we apply Randall, our limited
review suggests that Randall would not compel a result different from Eddleman.
This is particularly the case given the points of tension and possible errors that we
find on the face of the district court’s Opinion and Order. Therefore, taken as a
whole, and based upon our limited review, necessitated by the imminent election,
we conclude that the State of Montana has made a “substantial case for relief on
Whether Randall has a majority opinion
Marks v. United States held that “[w]hen a fragmented Court decides a case
and no single rationale explaining the result enjoys the assent of five Justices, the
holding of the Court may be viewed as that position taken by those Members who
concurred in the judgments on the narrowest grounds.” 430 U.S. 188, 193 (1977)
(internal quotation marks omitted). The Supreme Court has acknowledged that in
some cases “[t]his test is more easily stated than applied,” and that under certain
circumstances it may not be “useful to pursue the Marks inquiry to the utmost
logical possibility.” Nichols v. United States, 511 U.S. 738, 745–46 (1994)
(recognizing that where the application of the Marks test to a prior splintered
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decision “ha[d] so obviously baffled and divided the lower courts that ha[d]
considered it,” there is reason to reexamine that prior decision).
Likewise, we have also held that the Marks standard is not always helpful,
and should only be applied “where one opinion can be meaningfully regarded as
narrower than another and can represent a common denominator of the Court’s
reasoning.” United States v. Rodriguez-Preciado, 399 F.3d 1118, 1140 (9th Cir.)
(internal quotation marks omitted) (citing other circuits that have held similarly),
amended by 416 F.3d 939 (9th Cir. 2005). This standard requires that the
narrowest opinion is actually the “logical subset of other, broader opinions,” such
that it “embod[ies] a position implicitly approved by at least five Justices who
support the judgment.” Id. (quoting King v. Palmer, 950 F.2d 771, 781 (D.C. Cir.
1991) (en banc)); see also United States v. Williams, 435 F.3d 1148, 1157 (9th Cir.
2006) (explaining that Marks requires us to find a “legal standard which, when
applied, will necessarily produce results with which a majority of the Court from
that case would agree”). If there is no such narrow opinion, “the only binding
aspect of a splintered decision is its specific result.” Rodriguez-Preciado, 399 F.3d
Randall is the epitome of a splintered decision. Although six Justices
ultimately concurred in the judgment, the case generated six opinions, four of
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which were required for the six Justices to concur in the judgment. Since the
opinions of both Justices Kennedy and Thomas would revisit—or, as preferred by
Justices Thomas and Scalia, overrule—Buckley, Justice Breyer’s plurality decision
offers the narrowest rationale in support of the judgment. See Randall, 548 U.S. at
265 (Kennedy, J., concurring in the judgment) (“Viewed within the legal universe
we have ratified and helped create, the result the plurality reaches is correct; given
my own skepticism regarding that system and its operation, however, it seems to
me appropriate to concur only in the judgment.”); id. at 265–66 (Thomas, J.,
concurring in the judgment) (“Although I agree with the plurality that [the
Vermont contribution limit statute] is unconstitutional, I disagree with its rationale
for striking down that statute. . . . I continue to believe that Buckley provides
insufficient protection to political speech, the core of the First Amendment. . . .
[S]tare decisis should pose no bar to overruling Buckley and replacing it with a
standard faithful to the First Amendment.”).
It cannot be said, however, that Justice Breyer’s plurality opinion represents
a “common denominator of the Court’s reasoning,” enjoying the assent of five
Justices. Justices Thomas and Scalia would “overrule Buckley and subject both the
contribution and expenditure restrictions of [the Vermont statute] to strict scrutiny,
which they would fail.” Id. at 267 (Thomas, J., concurring in the judgment). Thus,
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further consideration of Justice Kennedy’s position is irrelevant for our purposes,
since at most Justice Breyer’s rationale could only garner the assent of four
Justices. If Justice Kennedy’s position were relevant to this inquiry, however, his
“skepticism regarding that system and its operation,” coupled with his previously
asserted criticism of Buckley, strongly suggests that only three Justices assented to
Justice Breyer’s rationale. Id. at 265 (Kennedy, J., concurring in the judgment);
see also Shrink Missouri, 528 U.S. at 409–10 (Kennedy, J., dissenting) (“I would
overrule Buckley . . . . The First Amendment ought to be allowed to take its own
course without further obstruction from the artificial system we have imposed. It
suffices here to say that the law in question does not come even close to passing
any serious scrutiny.”).
This analysis is consistent with our previous recognition—a holding binding
upon this Court, see Miller, 335 F.3d at 892–93—that no position in
Randall garnered the support of more than three Justices. Thalheimer, 645 F.3d at
1127 & n.5 (explaining that “Justice Breyer’s plurality opinion announced the
judgment of the Court,” so “we follow the plurality opinion as persuasive
authority, though not a binding precedent” since “Justice Breyer’s plurality opinion
was [only] joined by two justices, one in full and one in part” (internal quotation
marks omitted)). The only binding aspect of Randall, then, is its judgment,
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striking down the Vermont contribution limit statute as unconstitutional. 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.
Whether Justice Breyer’s opinion alters Buckley
Even if Justice Breyer’s plurality did represent a majority opinion under
Marks, however, Randall is not irreconcilable with the principles of Buckley and
Shrink Missouri. In Miller v. Gammie, sitting en banc, we considered the question
of “when a three-judge panel may reexamine normally controlling circuit precedent
in the face of an intervening United States Supreme Court decision.” Miller, 335
F.3d at 892. We held that “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. We further held that “the issues decided by the
higher court need not be identical in order to be controlling.” Id. at 900. We made
it clear that this standard applies not only to three-judge panels but also to district
courts within this circuit. Id. at 899 (describing prior circuit decisions effectively
overruled based on higher intervening authority as “no longer binding on district
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judges and three-judge panels of this court”); see also Day v. Apoliona, 496 F.3d
1027, 1031 (9th Cir. 2007) (“The Miller standard is thus not met, and we (and the
district court) are bound by our earlier precedent.”).
Since Miller, we have elaborated on this standard. Recently, in In re Flores,
we explained that “we are bound by our prior precedent if it can be reasonably
harmonized with the intervening authority.” In re Flores, 692 F.3d 1021, 1030
(9th Cir. 2012). In that case, we explained that under Miller, we were compelled to
defer to prior circuit precedent because (1) the “overall analytical framework” of
the intervening Supreme Court case was “consistent with our overall analytical
approach” in prior circuit precedent, id. at 1030–31, and (2) the specific application
of that framework in the intervening Supreme Court case did not mandate a result
in the prior case in conflict with the decision rendered by this Court in that case.
Id. at 1030–38. As Flores’ first consideration suggests, “Miller v. Gammie . . .
instructs us to focus on the reasoning and analysis in support of a holding, rather
than the holding alone.” United States v. Lindsey, 634 F.3d 541, 550 (9th Cir.
2011); see also Miller, 335 F.3d at 900 (citing Antonin Scalia, The Rule of Law as
a Law of Rules, 56 U. Chi. L. Rev. 1175, 1177 (1989)) (favorably discussing
Justice Scalia’s assertion in a law review essay that lower courts are bound by
higher courts’ “mode of analysis,” not just their holdings).
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Although we should consider the intervening authority’s reasoning and
analysis, as long as we can apply our prior circuit precedent without “running
afoul” of the intervening authority, we must do so. United States v. Orm Hieng,
679 F.3d 1131, 1140 (9th Cir. 2012). It is not enough for there to be “some
tension” between the intervening higher authority and prior circuit precedent, id. at
1140–41, or for the intervening higher authority to “cast doubt” on the prior circuit
precedent, United States v. Delgado-Ramos, 635 F.3d 1237, 1239 (9th Cir. 2011).
The intervening higher precedent must be “clearly inconsistent” with the prior
circuit precedent. Orm Hieng, 679 F.3d at 1141. This is a “high standard.”
Delgado-Ramos, 635 F.3d at 1239.
Applying these principles here, it is obvious that even if Justice Breyer’s
plurality opinion were binding on this court, Randall is not “clearly irreconcilable”
with Eddleman. Miller, 335 F.3d at 893. On its face, Justice Breyer’s plurality
opinion does not purport to change the state of the law but expressly looked to
Buckley and its progeny: “Over the last 30 years, in considering the
constitutionality of a host of different campaign finance statutes, this Court has
repeatedly adhered to Buckley’s constraints . . . .” Randall, 548 U.S. at 242
(opinion of Breyer, J.); see id. at 246 (“[W]e begin with Buckley.”). Indeed, the
Breyer opinion specifically found that “[s]ince Buckley, the Court has consistently
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upheld contribution limits.” Id. at 247. Although the Court ultimately struck down
Vermont’s contribution limits, it did so consistent with the principles announced in
If anything, Randall’s plurality only clarified and reinforced Buckley and its
progeny. In Randall, Justice Breyer observed that Buckley “general[ly] approv[ed]
of statutes that limit campaign contributions,” as long as the statute could
demonstrate a “sufficiently important interest.” Id. at 246–47. The importance of
Randall, then, was that the plurality affirmed Buckley, while at the same time
showing that Buckley was not a rubberstamp. Other courts and scholars have
concluded that Randall is an application of Buckley, not a repudiation.3
See, e.g., McNeilly v. Land, 684 F.3d 611, 617 (6th Cir. 2012) (finding that
Randall “[a]ppl[ied] Buckley” in analyzing Vermont’s contribution limit); N.C.
Right to Life, Inc. v. Leake, 525 F.3d 274, 291 (4th Cir. 2008) (describing Randall
as affirming principles laid out in Buckley in discussing a North Carolina
contribution limit); Allison R. Hayward, The Per Curiam Opinion of Steel:
Buckley v. Valeo as Superprecedent? Clues from Wisconsin and Vermont, 2006
Cato Sup. Ct. Rev. 195, 196 (describing Randall as “declin[ing] to rework Buckley
v. Valeo’s holding”); Jason B. Frasco, Note, Full Public Funding: An Effective and
Legally Viable Model for Campaign Finance Reform in the States, 92 Cornell L.
Rev. 733, 742 (2007) (“[W]ith respect to the contribution limits, the plurality again
found the principles in Buckley to be controlling.”); Aimee Priya Ghosh,
Comment, Disrobing Judicial Campaign Contributions: A Case for Using the
Buckley Framework to Analyze the Constitutionality of Judicial Solicitation Bans,
61 Am. U. L. Rev. 125, 140 (2011) (“[T]he Court recognized that
Buckley established the existence of a ‘lower bound’ under which a regulation
would be so restrictive as to violate the First Amendment.”).
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As Justice Breyer wrote, Buckley requires that contribution limits not
“prevent candidates from ‘amassing the resources necessary for effective
[campaign] advocacy.’” Id. at 248 (quoting Buckley, 424 U.S. at 21) (alteration in
Randall). He also emphasized that contribution limits cannot “magnify the
advantages of incumbency to the point where they put challengers to a significant
disadvantage.” Id.; see also Shrink Missouri, 528 U.S. at 403–04 (Breyer, J.,
concurring). But, as Justice Breyer said, “we have ‘no scalpel to probe’ each
possible contribution level,” so the Court “cannot determine with any degree of
exactitude the precise restriction necessary to carry out the statute’s legitimate
objectives.” Randall, 548 U.S. at 248 (opinion of Breyer, J.) (quoting Buckley, 424
U.S. at 30). Accordingly, “the legislature is better equipped to make such
empirical judgments.” Id. Randall reaffirmed Buckley’s recognition that such
deference to the legislature has a limit, that after Buckley there is a “lower bound.”
Id. at 248–49.
Randall’s discussion of “danger signs” and the plurality’s subsequent
analysis of “five sets of considerations” did not present a new test for analyzing
contribution limits; rather, this discussion only explained a mode for determining
whether the limits were “narrowly tailored” under Buckley. Id. at 249–262.
Randall stands as a warning to lower courts that Buckley does not license them to
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approve any contribution limitation that professes an anti-corruption rationale;
instead, lower courts must carefully analyze statutes to ensure that they are
narrowly tailored. Id. at 249–50.
We took such a careful approach in Eddleman. As such, the “overall
analytical framework” in Eddleman is in harmony with Randall. In Eddleman, we
began with Buckley’s premise that contribution limits are constitutional as long as
they do not prevent candidates from “amassing the resources necessary for
effective advocacy.” Eddleman, 343 F.3d at 1091 (quoting Buckley, 424 U.S. at
21). We noted that such restrictions “are subject to the ‘closest scrutiny’” and must
be “closely drawn.” Id. (quoting Buckley, 424 U.S. at 25). We reviewed the
Court’s post-Buckley opinions and summarized the principles to be derived
Whether Eddleman’s analysis is consistent with Randall’s analysis
The bottom line is this: After Buckley and Shrink Missouri,
state 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.
Eddleman, 343 F.3d at 1092.
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Even if we thought Randall altered Buckley in some way, our decision in
Eddleman considered the same issues that were important in Justice Breyer’s
plurality opinion. The State of Montana has made a strong showing that
Randall would not have mandated a different result in Eddleman.
a. The Four “Danger Signs”
Justice Breyer’s opinion in Randall identified four “danger signs” to look for
in a campaign contribution statute: “(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 in the judgment) (listing Justice Breyer’s “danger signs”). We
considered, in some form, each of these “danger signs” in Eddleman.
First, we found that the Montana contribution limits “apply to ‘each election
in a campaign,’ [so,] the amount an individual may contribute to a candidate
doubles when the candidate participates in a contested primary.” Eddleman, 343
F.3d at 1088. By comparison, Vermont’s limits applied to a “two-year general
election cycle.” Randall, 548 U.S. at 238.
Second, although Eddleman did not specifically deal with the limit on
campaign contributions by political parties, there was no need to do so, because in
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Montana the aggregate contribution limits for political parties is much higher than
the individual and political committee contribution limits. See Eddleman, 343 F.3d
at 1094 (“[W]hile decreasing PAC and individual contributions, [Montana’s
contribution limit statute] simultaneously increased the amount of money political
parties may contribute to a candidate, almost doubling the amount that may be
contributed in some races.”); see also Mont. Code Ann. § 13-37-216(3). In this
regard, Montana’s statute stands in stark contrast with Vermont’s, which applied
the same low contribution limit to individuals, PACs, and political parties alike.
Randall, 548 U.S. at 238–39.
Third, we acknowledged that Montana’s limits were “some of the lowest in
the country,” but also observed that this was “unsurprising in light of the fact that
Montana is one of the least expensive states in the nation in which to mount a
political campaign.” Eddleman, 343 F.3d at 1095. As Randall shows, Montana
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retains some of the lowest contribution limits in the nation, but it is not the lowest,
a distinction that belonged to Vermont. See Randall, 548 U.S. at 250–51.5
Fourth, while Eddleman did not specifically compare Montana’s
contribution limits with other instances where the Court has upheld a contribution
limit as constitutional, we did compare the change in Montana’s total campaign
spending with other instances where the Court had upheld limits that involved
greater decreases in total campaign spending. Eddleman, 434 F.3d at 1094
(“Indeed, the Shrink Missouri Court upheld contributions limits despite a decrease
of more than 50% in total spending in Missouri elections, nearly twice the decrease
We also considered that there are “provision[s] preventing incumbents from
using excess funds from one campaign in future campaigns. Such provision[s]
keep incumbents from building campaign war chests and gaining a fundraising
The district court appears to read Randall’s “danger signs” as condemning
Montana’s contribution limits. Opinion and Order at 28 (concluding without
analysis that Montana’s limits violate Randall’s “danger signs” merely because
“the U.S. Supreme Court has previously observed that Montana’s limits, like
Vermont’s former limits, are among the lowest in the country”). This reading of
Randall is flawed. Randall referred to Montana’s contribution limits—along with
those of Arizona, Colorado, Florida, Maine, Massachusetts, and South
Dakota—only as a method for illustrating that Vermont’s limits raised one “danger
sign” and solidifying Vermont’s status as an outlier among other states with
regards to contribution limits. Randall, 548 U.S. at 250–51. Nothing in Randall
even hints that Montana’s limits are unconstitutional.
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head start over challengers.” Id. at 1095. We stressed that, in the end analysis, it is
not the dollar amount that is critical, it is whether a candidate can amass the
resources necessary to mount an effective campaign, id., a position in harmony
with Randall, see 548 U.S. at 248–49.
Thus, all of Randall’s “danger signs” were considered in one form or
another. Most importantly, and consistent with Randall, our decision in Eddleman
“review[ed] the record independently and carefully with an eye toward assessing
the statute’s ‘tailoring.’” Id. at 249. We think Eddleman took ample account of the
“danger signs” identified in Randall.
b. The “Five Considerations”
Aside from the four “danger signs,” our decision in Eddleman addressed
broadly what Justice Breyer called “five sets of considerations.” Id. at 261. The
five considerations were: (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) how “volunteer services”
are treated; (4) whether “contribution limits are . . . adjusted for inflation”; and (5)
whether there exists “any special justification that might warrant a contribution
Page: 23 of 41
limit so low or so restrictive.” Id. at 253–61. In Eddleman, we addressed each of
these considerations in some way.
(1). With respect to the first consideration, whether the limits restrict
challengers, the Court in Randall considered statistical analyses relevant to
discerning “the critical question . . . [, i.e., whether] a candidate running against an
incumbent officeholder [can] mount an effective challenge.” Id. at 255. The Court
noted that it emphasized the competitiveness of races because it was a proxy for
the relative ability of a challenger to overcome the advantages of incumbency. Id.
In Eddleman, we recognized the importance of considering “all dollars likely
to be forthcoming in a campaign, rather than the isolated contribution, and . . .
consider[ed] factors such as whether the candidate can look elsewhere for money,
the percentage of contributions that are affected, the total cost of a campaign, and
how much money each candidate would lose.” Eddleman, 343 F.3d at 1094
(internal citations omitted). We repeatedly emphasized that the mere fact that a
candidate could have raised more money without the limits was not the relevant
inquiry; rather, the issue was whether the limit prevented a campaign from being
effective. Id. at 1095 (“[A]part from bald, conclusory allegations that their
campaigns would have been more effective had they been able to raise more
money, none of the witnesses offered any specifics as to why their campaigns were
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not effective.”) (internal quotation marks omitted). We found that “Montana
candidates remain able to mount effective campaigns.” Id. (describing candidates
who claimed the limits prevented effective campaigns but some of which raised
more money after the limits were in place and another who won with a
large surplus of campaign funds). Additionally, even though the contribution
limits restrict the total amount of funds raised, candidates were still able to raise
funds “well within the range of money needed to run an effective . . . campaign.”
Id. at 1094–95.
Specific to the Court’s concern with challengers to incumbency, we
discussed provisions that increased the ability of challengers to overcome the
effects of incumbency. First, we pointed out that “§ 13-37-216 also contains a
provision preventing incumbents from using excess funds from one campaign in
future campaigns.” Id. at 1095. Second, we found that “the average gap between
the total amount of money raised by incumbents and challengers for all legislative
races was only $65.00 per race,” so there was almost no difference between
incumbents and challengers in the amount of money they raised. Id. Third, relying
on Buckley and Shrink Missouri, we suggested that there was no evidence that
Montana’s limitations allowed incumbents to leverage their incumbency unfairly
against their challengers. Id. at 1095–96.
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The district court did not look to our opinion in Eddleman. Instead, it
conducted its own inquiry. For example, it compared the Vermont limits for state
senate and house with those of Montana and concluded that Montana’s were lower.
Opinion and Order at 29. We think the district court did not account for one key
difference between Vermont and Montana. While Vermont’s contribution limits
apply to a “two-year general election cycle,” Randall, 548 U.S. at 238–39,
Montana’s limits apply to “each election,” Mont. Code Ann. § 13-37-216(1)(a),
meaning that if there is a contested primary, the district court has understated
Montana’s limits by half. See Eddleman, 343 F.3d at 1088 (“[T]he amount an
individual may contribute to a candidate doubles when the candidate participates in
a contested primary.”). In other words, if there is a primary, Montana’s limit for
the state legislature is $320, which is greater than Vermont’s limit for state senate
($300) and much higher than its limit for state house ($200).
Additionally, we are concerned that the evidence the district court received
and credited—which because of our time constraints, the parties have not briefed
and we have not examined as thoroughly as we ordinarily would like—does not
adequately account for the revenues actually available to candidates. For example,
Montana only requires that the identity of donors contributing $35 or more, and
their aggregate amount of contributions, be disclosed. Mont. Code Ann. § 13-3725
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229(2)–(3). While a candidate is required to disclose an “itemized account of
proceeds that total less than $35 from a person,” the donor’s identity is not
disclosed and therefore does not count against an individual’s aggregate
contribution limit. Mont. Code Ann. § 13-37-229(8). Thus, it is likely that
Montana’s limits understate the actual contributions made to the candidates. These
are matters that, undoubtedly, would benefit from briefing and oral argument but
raise serious concerns in our minds whether there is sufficient evidence to overrule
(2). With respect to the second consideration, the limits on political parties,
the Court was concerned that Vermont’s statute required “that political parties
abide by exactly the same low contribution limits that apply to other contributors.”
Randall, 548 U.S. at 256. The cumulative restrictions imposed by the Vermont
statute “severely inhibit[ed] collective political activity by preventing a political
party from using contributions by small donors to provide meaningful assistance to
any individual candidate,” including a party’s ability to engage in “coordinated
Neither the State of Montana, nor the appellees, had access to the district
court’s Opinion and Order when the motion and opposition were filed. The State
of Montana, however, had the benefit of the district court’s Opinion and Order
before filing its reply the next day.
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spending on advertising, candidate events, voter lists, mass mailings, even yard
signs.” Randall, 548 U.S. at 256–58.
In contrast to Vermont’s statute, we noted, in Eddleman, that in Montana
political parties were not subject to the same low contribution limit as individuals.
Eddleman, 343 F.3d at 1094 (discussing the increase in amount that can be
contributed by political parties, “almost doubling the amount that may be
contributed in some races”).
Despite the obvious differences between Vermont and Montana, the district
court concluded that the Montana statute was inconsistent with this factor because
“political committees [were held] to the same contribution limits as individuals”
and this “inhibit[s] the associational rights of political committees and,
consequently, a full and robust exchange of views.” Opinion and Order at 32
(internal quotation marks omitted). Instead of addressing Randall’s concern with
limits on political parties, the district court focused on limits on political
committees under § 13-37-216. Political committees are not political parties.
Political committees—including PACs and local party affiliates—are subject to the
same limits as individuals. Mont. Code Ann. § 13-37-216(3). “Political party
organizations,” however, are exempted from this restriction under the statute and
subject to a much higher cap. For example, individuals and political committees
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may not contribute more than $630 to a gubernatorial candidate, but a political
party organization can contribute up to $22,600. Id. § 13-37-216(1)(a), (3)(a), as
adjusted by Admin. R. Mont. § 44.10.338(1)(a), (2)(a).
Furthermore, the district court’s opinion fails to acknowledge that even
political committees remain free to spend as much money as they desire promoting
a candidate. See Citizens United v. Fed. Election Comm’n, 558 U.S. 310 (2010);
see also Am. Tradition P’ship, Inc. v. Bullock, 132 S. Ct. 2490 (2012). As we
pointed out, the PACs have many other ways “to convey their support.”
Eddleman, 343 F.3d at 1094. They just cannot give the money directly to the
candidate. Thus, the district court’s analysis on this point is inapposite; under the
Montana statute political committees remain free to participate in a “full and robust
exchange of views.”
(3). The third consideration is the treatment of volunteer services.
Montana’s scheme, however, is far more permissive than Vermont’s statute. In
Randall, Vermont counted expenses incurred during the provision of volunteer
services as contributions. Randall, 548 U.S. at 259–60. As we explained, “the
[Montana] statute in no way prevents PACs[, and individuals,] from affiliating
with their chosen candidates in ways other than direct contributions, such as
donating money to a candidate’s political party, volunteering individual members’
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services, sending direct mail to their supporters, or taking out independent
newspaper, radio, or television ads to convey their support.” Eddleman, 343 F.3d
at 1094. Moreover, we noted that nothing prevents “individuals and PACs [from] .
. . engag[ing] 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.” Id.
The district court concluded that Montana treats volunteer services in the
same manner as Vermont, “not exclud[ing] the expenses . . . volunteers incur, such
as travel expenses, in the course of campaign activities.” Opinion and Order at 34
(internal quotation marks omitted). This conclusion appears to be error.
Testimony provided by the plaintiff’s own witnesses—as well as a stipulation of
the parties—established that expenses incurred by volunteers are not considered
contributions under Montana law. Tr. at 50–54, 74–76, 154–56 (Sept. 12, 2012).
Even more importantly, other testimony established that an individual, political
party, or political committee can actually hire staff for a candidate, and that would
not be considered a contribution. Id.
(4). The fourth consideration is whether the limits are adjusted for inflation.
Vermont’s limits were not. Randall, 548 U.S. at 261. As we noted in Eddleman,
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the Montana contribution limits are regularly adjusted for inflation. Eddleman,
343 F.3d at 1089.
The district court recognized that Montana adjusts its limits for inflation, but
suggested that the Consumer Price Index (“CPI”) is a flawed method of accounting
for inflation. Opinion and Order at 35–36. The district court made that
determination on the basis of near anecdotal testimony that the cost of pencils, yard
signs, postage, and fuel have increased faster than the CPI. Id. at 13. The district
court also noted that the CPI does not account for certain inputs that an effective
campaign requires. Id. at 35.
This is too thin a reed to cling to in order to overturn our decision in
Eddleman. We do not doubt that the CPI fails to capture all changes in campaign
costs. It is, however, a well-recognized mechanism for adjusting for inflation, and
we have no indication that the Supreme Court intended that states do anything else
to “index limits.” Randall, 548 U.S. at 261. We continue to believe that
Montana’s statute will survive the Court’s analysis in Randall. If we were to
examine the district court’s findings, its methodology would raise a number of
questions. For example, the district court apparently did not consider whether
pencils, yard signs, postage, and fuel fall within the underlying basket of goods
used to calculate the CPI, nor did it question whether other campaign costs—such
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as office space—may have gone down during the same period. Further, even as we
acknowledge that campaign costs have gone up over time, so have contribution
limits risen since their inception in 1994, yet the district court made no attempt to
compare the overall increase in the contribution limits with the overall increases in
campaign inputs that were the subject of testimony at trial.
(5). The fifth and final consideration is a catchall: Whether there are any
“special justification[s]” for the limits that “bring about . . . serious associational
and expressive problems.” Randall, 548 U.S. at 261. We identified at least one
justification for why Montana’s contribution limits are among the lowest in the
nation: “[T]he State of Montana remains one of the least expensive states in the
nation in which to run a political campaign.” Eddleman, 343 F.3d at 1094. Thus,
unlike Randall, where Vermont’s justification was based solely upon the
prevention of corruption, Montana specifically justified the low limits based on the
relative inexpense of campaigning in Montana, a state where, for many offices,
“campaign[ing] primarily [takes place] door-to-door, and only occasionally
[through] advertis[ing] on radio and television.” Id.
Most importantly, in Eddleman, after considering all of the factors deemed
important by Justice Breyer’s plurality opinion in Randall, we held that the
Montana contribution limit does not prevent candidates from amassing the
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resources necessary to run an effective, competitive campaign. Id. at 1094–95,
1098. We cannot conclude that Randall is, in any material way, inconsistent with
our analysis in Eddleman. Therefore, under Miller, we remain bound by
Given the procedural posture of the state’s motion, we have tried to be
careful not to prejudge whether any of the district court’s findings of fact are
clearly erroneous or its conclusions errors of law. That is the province of a merits
panel of this court, to be decided on consideration of the appeal of the permanent
injunction after full briefing. Based on our emergency review, however, we have
noted that there appear to be sufficient problems with the district court’s findings
of fact and conclusions of law such that the State of Montana has met its burden of
making a substantial case for relief on the merits. This showing is sufficient for us,
under this factor, to exercise our discretion to stay the district court’s permanent
injunction pending appeal. Moreover, given the imminent nature of the election,
we find it important not to disturb long-established expectations that might have
We also note that the district court failed to perform a careful severability
analysis. Instead, it relied on the Court’s severability analysis of a quite different
Vermont statute—leveraging what might be the only offensive part of this statute
to strike down the entire statute, the majority of which has not even been
effectively challenged. See Opinion and Order at 36–37.
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unintended consequences, particularly in light of our previous holding in Eddleman
that this selfsame statute is constitutional, without first allowing a merits panel the
benefit of thoroughly examining the Montana statute in light of Randall.8 See
Purcell v. Gonzalez, 549 U.S. 1, 5–6 (2006) (“Given the imminence of the election
and the inadequate time to resolve the factual disputes, our action today shall of
necessity allow the election to proceed without an injunction . . . .”). We conclude
that the state is likely to succeed in its appeal.
Irreparable Injury to the Party Requesting Stay
Nken held that the second stay factor, “whether the applicant will be
irreparably injured absent a stay,” requires more than “some possibility of
irreparable injury.” Nken, 556 U.S. at 434–35 (internal quotation marks omitted).
But, in contrast to the first factor, we have interpreted Nken as requiring the
applicant to show under the second factor that there is a probability of irreparable
injury if the stay is not granted. Leiva-Perez, 640 F.3d at 968 (explaining that
while the first factor asks “whether the stay petitioner has made a strong argument
on which he could win,” the second factor asks us to “anticipate what would
See Randall, 548 U.S. at 249 (“[A]ppellate courts . . . must review the
record independently and carefully with an eye toward assessing the statute’s
‘tailoring,’ that is, toward assessing the proportionality of the restrictions.” (citing
Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 499 (1984)).
Page: 34 of 41
happen as a practical matter following the denial of a stay”). In analyzing whether
there is a probability of irreparable injury, we also focus on the individualized
nature of irreparable harm and not whether it is “categorically irreparable.” Id. at
969 (quoting Nken, 556 U.S. at 435).
The State of Montana has made a showing that there is a probability of
irreparable injury if a stay of the district court’s permanent injunction is not
granted. Since 1994, a clear framework has been in place allowing candidates to
plan for campaigns. In 2003, we held this statute constitutional, in the face of a
virtually indistinguishable attack. This has created a background upon which the
candidates in the current election have formed their campaign strategies and
expectations. Absentee voting has already begun in Montana and the general
election is imminent. Allowing the permanent injunction to remain in place before
a merits panel of this court can ultimately rule on the constitutionality of the
Montana contribution limit statute could throw a previously stable system into
chaos. In a state that has operated with some of the most restrictive campaign
limits in the country, there would suddenly be no limits whatsoever. In fact, there
is some evidence from media reports that before the temporary stay was issued in
this case, individuals had already begun to ask for unlimited donations. In light of
the fact that the State of Montana has made a substantial case for relief on the
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merits, this calls into question the fairness and integrity of elections in Montana.
Not all candidates might feel comfortable taking unlimited donations in the wake
of conflicting judicial decisions. Furthermore, once the election is over, it cannot
be reversed, and any consequences flowing from the disruption in equilibrium in
the campaign contribution laws would also be irreversible. Regardless, because of
the likely disruption to the election and the untold, irreversible consequences that
might result, the State of Montana has satisfied its burden of showing a probability
that irreparable harm will occur.
Substantial Injury to Other Parties Interested in the Proceeding
Finally, Nken explained that the last two factors of the test require us to
weigh the public interest against the harm to the opposing party. Nken, 556 U.S. at
435; see also Leiva-Perez, 640 F.3d at 964–66 (holding that the stay inquiry is
“flexible”and involves an equitable balancing of the stay factors). In doing so, we
again consider “the particulars of each individual case.” Leiva-Perez, 640 F.3d at
970 (citing Nken, 556 U.S. at 436).
We find that the other interested parties are not likely to be harmed. We
well understand that “political speech [is] the core of the First Amendment,”
Randall, 548 U.S. at 266, but for 36 years the Court has held that states may
restrict political contributions as “only a marginal restriction upon the contributor’s
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ability to engage in free communication.” Buckley, 424 U.S. at 20–21. Montana
largely restricts cash contributions to candidates; it thus leaves interested parties
with a number of other options for engaging in political speech, from
volunteering—or even paying for the provision of volunteer services to
candidates—to engaging in independent activities to support a candidate. See, e.g.,
Bullock, 132 S. Ct. at 2491. Additionally, we have already carefully analyzed the
Montana contribution limit statute and found it to be constitutional. Eddleman,
343 F.3d at 1098. All interested parties, who have operated under Montana’s
contribution limit statute since 1994, had clear notice of its constitutionality since
2003. Any harm that might be felt would, at most, be minimal and vastly
outweighed by the public interest.
Finally, we find that the public interest is closely aligned with the irreparable
harm shown by the State of Montana. The people comprising the State of Montana
have a deep interest in fair elections. See United States v. Gradwell, 243 U.S. 476,
480 (1917) (“[T]he people of the United States . . . have an interest in and a right to
honest and fair elections . . . .”). The Montana contribution limit statute has long
stood, not only to prevent corruption, see Eddleman, 343 F.3d at 1092–93, but also
to create an background of fairness to allow candidates to plan their campaigns and
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implement their strategies upon the foundation of well-laid and understood groundrules. Given the deep public interest in honest and fair elections and the numerous
available options for the interested parties to continue to vigorously participate in
the election, the balance of interests falls resoundingly in favor of the public
The State of Montana has satisfied the standards for a stay pending appeal.
Given the formidable obstacle presented by our decision in Eddleman, the fact that
Randall does not compel a different result in Eddleman, and the tensions and
possible errors in the district court’s application of Randall, the State of Montana
has made a strong showing that it is likely to succeed on appeal. Furthermore,
because the fairness of the imminent election would be put in danger by our failure
to stay the permanent injunction, the State of Montana and the public interest
would be irreparably harmed, and that harm vastly outweighs any minimal harm
that might come to the interested parties who have operated under the established
Montana contribution limits for almost two decades. We therefore find it
necessary to exercise our judicial discretion, and we will stay the district court’s
permanent injunction pending resolution of the appeal by a merits panel of this
court. The State of Montana’s motion for stay pending appeal is GRANTED.
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Michael G. Black and Andrew I. Huff, Assistant Attorneys General, Montana
Department of Justice, Helena, Montana, for defendants-appellants.
James Bopp, Jr., Jeffrey Gallant, and Anita Y. Woudenberg, The Bopp Law Firm,
PC, Terre Haute, Indiana, for plaintiffs-appellees.
Page: 39 of 41
Montana Code Annotated § 13-37-216
13-37-216. Limitations on contributions--adjustment
(a) Subject to adjustment as provided for in subsection (4), aggregate
contributions for each election in a campaign by a political committee or by
an individual, other than the candidate, to a candidate are limited as follows:
(i) for candidates filed jointly for the office of governor and lieutenant
governor, not to exceed $500;
(ii) for a candidate to be elected for state office in a statewide election,
other than the candidates for governor and lieutenant governor, not to
(iii) for a candidate for any other public office, not to exceed $130.
(b) A contribution to a candidate includes contributions made to the
candidate’s committee and to any political committee organized on the
(a) A political committee that is not independent of the candidate is
considered to be organized on the candidate’s behalf. For the purposes of
this section, an independent committee means a committee that is not
specifically organized on behalf of a particular candidate or that is not
controlled either directly or indirectly by a candidate or candidate’s
committee and that does not act jointly with a candidate or candidate’s
committee in conjunction with the making of expenditures or accepting
(b) A leadership political committee maintained by a political officeholder is
considered to be organized on the political officeholder’s behalf.
(3) All political committees except those of political party organizations are subject
to the provisions of subsections (1) and (2). For purposes of this subsection,
“political party organization” means any political organization that was represented
on the official ballot at the most recent gubernatorial election. Political party
organizations may form political committees that are subject to the following
aggregate limitations, adjusted as provided for in subsection (4), from all political
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(a) for candidates filed jointly for the offices of governor and lieutenant
governor, not to exceed $18,000;
(b) for a candidate to be elected for state office in a statewide election, other
than the candidates for governor and lieutenant governor, not to exceed
(c) for a candidate for public service commissioner, not to exceed $2,600;
(d) for a candidate for the state senate, not to exceed $1,050;
(e) for a candidate for any other public office, not to exceed $650.
(a) The commissioner shall adjust the limitations in subsections (1) and (3)
by multiplying each limit by an inflation factor, which is determined by
dividing the consumer price index for June of the year prior to the year in
which a general election is held by the consumer price index for June 2002.
(b) The resulting figure must be rounded up or down to the nearest:
(i) $10 increment for the limits established in subsection (1); and
(ii) $50 increment for the limits established in subsection (3).
(c) The commissioner shall publish the revised limitations as a rule.
(5) A candidate may not accept any contributions, including in-kind contributions,
in excess of the limits in this section.
(6) For purposes of this section, “election” means the general election or a primary
election that involves two or more candidates for the same nomination. If there is
not a contested primary, there is only one election to which the contribution limits
apply. If there is a contested primary, then there are two elections to which the
contribution limits apply.
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Admin. R. Mont. § 44.10.338
44.10.338 LIMITATIONS ON INDIVIDUAL AND POLITICAL PARTY
(1) Pursuant to the operation specified in 13-37-216, MCA, limits on total
combined contributions from individuals to candidates are as follows:
(a) a candidate for governor may receive no more than $630;
(b) a candidate for other statewide office may receive no more than $310;
(c) a candidate for all other public offices may receive no more than $160.
(2) Pursuant to the operation specified in 13-37-216, MCA, limits on total
combined contributions from political party committees to candidates are as
(a) a candidate for governor may receive no more than $22,600;
(b) a candidate for other statewide offices may receive no more than $8150;
(c) a candidate for Public Service Commission may receive no more than
(d) a candidate for senate may receive no more than $1300;
(e) a candidate for all other public offices may receive no more than $800.
(3) Pursuant to 13-37-218, MCA, in-kind contributions must be included in
computing these limitation totals.
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