Lair et al v. Motl et al
FINDINGS OF FACT AND CONCLUSIONS OF LAW OPINION AND ORDER. IT IS ORDERED that the Court's order declaring the contribution limits in Montana Code Annotated § 13-37-126 unconstitutional and permanently enjoining the defendants from enforcing those limits is hereby confirmed subject however to the Circuit's temporary stay order received only minutes ago. Signed by Judge Charles C. Lovell on 10/10/2012. (HEG, )
IN TIffi UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
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 of Political 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
FINDINGS OF FACT
CONCLUSIONS OF LAW
OPINION AND ORDER
The remainder of this case--the constitutionality of Montana's contribution
limits in Montana Code Annotated §
before the Court in a
bench trial held from September 12, 2012, to September 14,2012. The plaintiffs
were represented by James Bopp, Jr., and the defendants were represented by
Michael Black and Andrew Huff. The plaintiffs argue that the contribution limits
are unconstitutional under the First Amendment. For the reasons below, the Court
declares those limits unconstitutional and permanently enjoins the defendants from
JURISDICTION, VENUE, AND PARTIES
The plaintiffs seek injunctive and declaratory relief under 42 U.S.C. § 1983.
Jurisdiction is proper under 28 U.S.C. §§ 1331 and 1343(a). Venue is proper under
28 U.S.c. § 1391(b).
Plaintiffs American Tradition Partnership PAC, Montana Right to Life
Association PAC, Lake County Republican Central Committee, and Beaverhead
County Republican Central Committee each constitute a "political committee" as
defined by Mont. Code Ann. §
Plaintiffs Lake County Republican
Central Committee and Beaverhead County Republican Central Committee further
qualifY as "political party organizations" within the meaning of Mont. Code Ann.
§ 13-37-216(3). Plaintiffs Doug Lair and Steve Dogiakos both want to make
contributions above the contribution limits to candidates for various Montana
elected offices. They would do so but for Montana's contribution limits. Plaintiff
John Milanovich has run for State House in the past and intends to run again in the
As Commissioner of Political Practices, Defendant Jim Murry has authority
to investigate violations of, enforce the provisions of, and hire attorneys to
prosecute violations of, Montana Code Chapters 35 and 37 and the rules adopted
to carry out these provisions. The Commissioner acts under color of state law and
is sued in his official capacity. As Montana Attorney General, Defendant Steve
Bullock has power to investigate and prosecute violations of Montana Code
Chapters 35 and 37 by and through the county attorneys under his supervision.
The Attorney General acts under color of state law and is sued in his official
capacity. As Lewis and Clark County Attorney, Defendant Leo Gallagher has
power to investigate and prosecute violations of Montana Code Chapters 35 and
37. The County Attorney acts under color of state law and is sued in his official
The plaintiffs filed this lawsuit in the Billings Division for the District of
Montana on September 6,2011. They claim that several of Montana's campaign
fmance and election laws are unconstitutional under the First Amendment. The
statutes that they challenge are:
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
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 moved for a preliminary injunction on September 7,2011,
seeking to enjoin the defendants from enforcing each of these statutes. Before any
action was taken on the motion, the defendants moved to change venue that Court
granted that motion on January 31,2012, and the case was transferred to the
Helena Division assigned by lot to the undersigned.
On February 16,2012, the Court held a hearing on the motion for a
preliminary injunction and enjoined enforcement of Montana's vote-reporting
requirement and political-civil libel statute (See doc. 66); Mont. Code Ann. §§
13-35-225(3)(a), 13-37-131. The Court denied the motion as to the remaining
The Court issued its scheduling order on March 9, 2012. The parties agreed
that all of the issues regarding the contribution limits in Montana Code Annotated
§ 13-37-216(1), (3), and (5) would be resolved through a bench trial and that all
other matters would be adjudicated by summary judgment. (See doc. 73.) The
Court and the parties all agreed to place this matter on an expedited schedule so
that it will be resolved prior to this year's election.
The parties cross-moved for summary judgment, and the Court held a
hearing on May 12,2012. The Court granted both motions in part and denied them
in part. (See doc. 90.) The Court permanently enjoined Montana's vote-reporting
requirement, political-civil libel statute, and ban on corporate contributions to
political committees that the committees use for independent expenditures. See
Mont. Code Ann. §§ J3-35-225(3)(a), 13-37-13\,13-35-227. The Court,
however, concluded that Montana's ban on direct and indirect corporate
contributions to candidates and political parties is constitutional. Id. at §
13-35-227. The parties cross-appealed that order but then voluntarily dismissed
the appeals on July 23, 2012.
On June 20, 2012, the defendants-without leave ofthe Court-moved for
summary judgment on the plaintiffs' claims concerning Montana's contribution
limits. The Court denied the motion because, as explained in the scheduling order,
the parties agreed that those claims would be resolved only through a bench trial.
Moreover, the defendants' motion was untimely.
The Court held a bench trial from September 12, 2012, to September 14,
2012, in order to resolve the plaintiffs' claims related to Montana's campaign
contribution limits in Montana Code Annotated § 13-37-216(1), (3), and (5). At
the final pretrial conference immediately preceding the trial, the plaintiffs renewed
their motion for summary judgment, and the Court took that motion under
TESTIMONY AT THE BENCH TRIAL
James Bopp, Jr. argued the plaintiffs' case.! Michael Black and Andrew
Huff argued the defendants' case. Having considered the testimony of both the
plaintiffs' and the defendants' witnesses, the Court finds the plaintiffs' witnesses
more persuasive and that the facts weigh in favor of the plaintiffs.
James E. Brown initially appeared on behalf of the plaintiffs, but he was
called as the plaintiffs' first witness and was therefore barred from subsequently
arguing the plaintiffs' case at the trial. See Mont. R. Prof Conduct 3.7.
Plaintiffs' expert witness: Clark Bensen
The plaintiffs presented an expert, Clark Bensen, who analyzed the effect of
Montana's contribution limits. Bensen analyzed "competitive" races in Montana,
which he defined as elections where the margin of victory was 10% or less.
Bensen studied 112 campaigns. Those campaigns were for either Public Service
Commission offices or the Legislature. Most ofthese elections were for the 2008
or 20 I 0 elections, but there were some for the 2004 and 2006 elections. Bensen
considered only "itemized contributions," which are contributions over $35.
Bensen concluded that these campaigns relied substantially on "maxed-out
donors" for campaign revenue. Bensen calculated that, on average, 29% ofthe
contributors in the campaigns had donated to the maximum level (26% for
Democrats, and 34% for Republicans). Roughly 37% of the contributors were at a
"near-max" level. On average, the campaigns that Bensen analyzed receive 86% of
their itemized contributions from individuals (generating 74% of their overall
revenue), 9% of their itemized contributions from political committees (generating
10% of their overall revenue), and 2% of their itemized contributions from
political parties (generating 6% of their overall revenue). Many campaigns are
self-financed to some degree.
Bensen found that the reliance on maxed-out donors is substantial: On
average, 44% of the aggregate amount of funds raised by itemized contributions
from individuals and political committees are generated by maxed-out donors.
This percentage rises to 54% when considering "near-max" donors.
Of the 112 campaigns at issue (excepting one candidate from the
Constitution Party), Bensen determined that 40% of the candidates received the
maximum aggregate contribution limit from their political parties.
Of particular note and relevance here, the average campaign spends more
than it raises, by about 7%. Bensen therefore concluded that campaigns struggle
"to meet their perceived needs for operations and communication with voters."
Testimony from other witnesses for the plaintiffs
The Lake County Republican Central Committee ("Lake County
Republicans") is the local Republican Party for Lake County. It has a history of
making contributions to Republican candidates, including in the last election.
Darren Breckenridge testified on behalf of the Lake County Republicans.
The Lake County RepUblicans plans to make contributions to candidates in
the 2012 election. Specific planned contributions include a contribution to Joe
Reed, who will be running for election in House District 15, and a contribution to
whichever Republican runs for election in Senate District 6. It plans to contribute
up to the limits allowed by law. The Lake County Republicans wants to make its
planned contributions, including a $2,000 contribution to Reed, even if other
political parties also make contributions to their chosen candidates. If other
political parties contribute to its chosen candidates, the Lake County Republicans
would make its planned contributions, but for the aggregate limits imposed by
Montana Code Annotated § 13-37-216(3), (5), and the penalties imposed on those
who violate them. Montana's law, however, limits its contributions to $800 for
State House candidates. The Lake County Republicans would have made a
contribution of more than $400 to House District candidate Jenna Taylor except
she had already received $400 and so could only legally accept $400 more.
The Beaverhead County Republican Central Committee ("Beaverhead
County Republicans") is the local Republican Party for Beaverhead County. It has
a history of making contributions to Republican candidates, including in the last
election. James E. Brown testified at trial on behalf of the Beaverhead County
Republicans? The Beaverhead County Republicans plans to make contributions to
candidates in the 2012 election. The Beaverhead County Republicans plans to
make a contribution to Joe Reed, who will be running for election in House
District 15, a contribution to Debby Barrett, who will be running for re-election in
Senate District 36, and a contribution to Rick Hill. It plans to contribute up to the
limits allowed by law.
The Beaverhead County Republicans wants to make its planned
contributions, even if other political parties also make contributions to its chosen
See note 1, supra.
candidates. If other political parties contribute to its chosen candidates, the
Beaverhead County Republicans would still make its planned contributions, but
for the aggregate limits imposed by Montana Code Annotated § 13-37-216(3),
(5), and the penalties imposed on those who violate them. The Beaverhead County
Republicans attempted to make contributions to several candidates for State House
and State Senate during the 2010 election. Because ofthe aggregate party
contribution limits, five of those candidates were forced to return the Beaverhead
County Republicans' contributions.
Plaintiff Doug Lair is a Big Timber area rancher and investor. Plaintiff
Steve Dogiakos is a political activist and small businessman who owns a company
offering web design services. Both Lair and Dogiakos have previously made
contributions to candidates running for office in Montana. Lair and Dogiakos
intend to make contributions to candidates running for office in 2012.
Lair has already contributed the maximum to candidates Ken Miller, Debra
Lamm, Bob Faw, and Tim Fox in the 2012 primary and plans to contribute the
maximum amount to Republican candidates like Ed Walker, Dan Kennedy, Rick
Hill, and Dan Skattum. He would give more if allowed by law.
Dogiakos intends to make contributions to Republican candidates for the
Public Service Commission and the State House. Dogiakos would give $500 to
Christy Clark, 2012 candidate for the State House from House District 17; $1,000
to Bob Lake, a Public Service Commissioner candidate; $500 to Wylie Galt, a
candidate for House District 83; and Liz Bangerter, a candidate for House District
80, except he is prohibited from giving that much by law.
Plaintiff John Milanovich resides in Bozeman. Milanovich ran
unsuccessfully for the State House in 2008. He appeared on the ballot for the
Republican primary in 2010, but decided to endorse one of his primary opponents
in that race. Milanovich intended to run for the State House again in 2012 from
House District 69, but after filing his candidacy, withdrew due to growing
obligations with his growing business. Milanovich filed his "Statement of
Candidate" Form C-l with the Office of the Commissioner of Montana Political
Practices. Form C-l must be filed within five days after a candidate for office
receives or spends money, appoints a campaign treasurer, or files for office,
whichever occurs first. The statutory authority for Form C-l is contained in
Montana Code Annotated §§ 13-37-201, 13-37-202, 13-37-205. Because
Milanovich filed his Fonn C-l, he was allowed to solicit and accept contributions
for his campaign. Milanovich began doing so.
Milanovich would have solicited and accepted contributions above the $160
contribution limit if the law did not prohibit and penalize him for doing so.
Moreover, Milanovich would have solicited and accepted contributions from the
Montana Republican Party above the $800 contribution limit. He also would have
solicited and accepted contributions from various county Republican parties above
the $800 contribution limit if the law had permitted him to do so.
Richard Mike Miller was first elected as the House District 84
Representative in 2008. Representative Miller is a Republican. He ran successfully
in 2010 and is now a candidate for the same seat in the 2012 election. House
District 84 is primarily rural and is approximately 2,500 square miles in size.
Approximately 9,500 people live in Representative Miller's House District 84.
Representative Miller ran an opposed campaign in 2008 and 2010, and his
current campaign is opposed. In the 2008 election, Representative Miller raised
between $8,000 and $9,000 for his campaign. In 2010, he raised between $5,000
and $6,000. In the current election, Representative Miller has raised approximately
$3,500. Between 5% and 10% of Representative Miller's donors have made
donations up to the contribution limits.
In 2008, Representative Miller received the contribution limit from political
committees, but he did not receive the contribution limit from his political party.
Since Representative Miller received the maximum aggregate contribution from
political committees in 2008, he was not able to accept additional money from
political committees after reaching that limit and he was not able to identify
additional political committees as contributors. In 2010, Representative Miller
came within $10 of reaching the aggregate contribution limit for political
committees and then stopped accepting contributions from political committees.
For his 2012 campaign, Representative Miller has received the aggregate
contribution limit for political committees. During his 2008, 2010, and 2012
campaigns, Representative Miller received contributions from political committees
after reaching the aggregate limit, and he has been forced to return those
A significant aspect of Representative Miller's campaign involves mailing
information to potential voters. He believes that roughly $12,000 would be
necessary to effectively reach potential voters through mailings. Representative
Miller testified that the cost of running a campaign has increased while he has
been in office. For example, in 2008,1,000 pencils cost Representative Miller
$170. They now cost $195, a 15% increase. In 2008, 100 yard signs cost $320.
They are now $345, an 8% increase. Postage has increased from 41 to 45 cents, a
10% increase. Perhaps most significantly, Representative Miller testified that his
cost of gasoline has increased from $2.25 a gallon to $3.75 a galion, a 67%
increase. Representative Miller testified that these are essential items that he needs
to run a campaign. Representative Miller testified that, but for Montana's
contribution limits, he believes he could raise the necessary funds to run an
Defendants' expert witness: Edwin Bender
The defendants presented an expert, Edwin Bender, who analyzed the
effects of Montana's contribution limits. Bender's analysis, unlike Bensen's, is
based on all campaigns, not just "competitive" campaigns. And, unlike Bensen, he
analyzed campaigns for all statewide races, legislative races, and the gubernatorial
Bender's analysis shows that, between 2004 and 2010, legislative
candidates raised between 56% and 70% of their itemized campaign funds from
individuals, between 9% and 11 % from political committees, between 3% and 4%
from political parties, and between 7% and 11 % from unitemized contributions
(contributions less than $35), Between 11 % and 18% of the contributions were
self-financed contributions. For statewide campaigns, those statistics are: between
52% and 71 % from individual contributors, between 0% and 3% from political
committees, between 2% and 4% from political parties, and between 7% and 9%
from un itemized contributions. Between 17% and 38% of the contributions were
self-financed contributions. For the 2004 and 2008 gubernatorial campaigns, those
statistics are: between 89% and 96% from individuals, 0% from political
committees, between 0% and 2% from political parties, and 1% from unitemized
contributions. Between 1% and 10% ofthe contributions were self-financed
Bender also analyzed the number of individuals and political committees
that donated at the maximum levels for the 2004 to 2010 elections. In State House
races where the primary was not contested, between 15% and 29% of individual
contributors donated at the maximum level. Between 45% and 49% of the political
committees donated at the maximum level. In State Senate races, where the
primary was not contested, Bender found that between 18% and 33% of individual
contributors donated at the maximum level. Between 48% and 64% of the political
committees donated at the maximum level. In statewide office races, where the
primary was not contested, Bender found that between 0% and 19% of individual
contributors donated at the maximum level. Between 0% and 58% of the political
committees donated at the maximum level. In the 2004 and 2008 gubernatorial
races, 2% of the individual contributors donated at the maximum level. Virtually
none ofthe political committees made maximum contributions. For each of these
campaigns, when the primary was contested, a much smaller percentage of
individuals and political committees made maximum contributions during both the
primary and general elections.
From 2000 to 2010, Montana candidates received an average of3.8% of
their contributions from political parties. Challengers generally received more
money from political parties than incumbents. In legislative races between 2004
and 20 I 0, where the primary was not contested, Bender found that between 22%
and 32% ofthe candidates accepted the maximum aggregate contribution from
political parties. In statewide races between 2004 and 2010, where the primary
was not contested, between 0% and 18% of the candidates accepted the maximum
aggregate contribution from political parties. In the 2004 and 2008 gubernatorial
races, none of the candidates received the maximum aggregate contribution from
political parties. Again, for each of these campaigns, when the primary was
contested, a much smaller percentage of individuals and political committees made
maximum contributions during both the primary and general elections
Testimony from other witnesses for the defendants
Defendant Jim Murry is the Commissioner ofPolitical Practices.
Commissioner Murry testified that "effective" campaigns require more than
monetary contributions. They require volunteers to help deliver a candidate's
message to the voters.
On May 15,2012, the Deputy Commissioner of Political Practices, Jay
Dufrechou, issued a Commissioner's Opinion stating that services provided to a
campaign by volunteers do not constitute contributions. See In re Bullock,
(Commr. of Po litcal Pracs. May 15,2012) (Ex. 8). Political parties and political
action committees, therefore, may provide unlimited volunteer services to
Mary Ellen Baker is the Program Supervisor for the Office of Political
Practices. She has a number of responsibilities with the Office, including ensuring
that candidates comply with Montana's laws and regulations. According to Baker,
many candidates utilize volunteer services that are provided by political parties.
Baker testified that there are 141 or 142 current and active political
committees registered in the State of Montana. There are approximately 123
political party committees in the State, approximately 50 of which are Republican
party committees. Baker testified that she believed a contribution of up to $1,000
would not have a corruptive effect.
Montana's contribution limits
Montana Code Annotated § 13-37-216(1), (3), (5) provides:
(l)(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:
Subsection 4 provides:
(a) The commissioner shall adjust the limitations in subsections (\) and (3) hy
multiplying each limit by an inflation factor, which is determined by dividing the
consumer price index for June ofthe 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 (l); and
(ii) $50 increment for the limits established in subsection (3).
(c) The commissioner shall publish the revised limitations as a rule.
(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 exceed $250;
(iii) for a candidate for any other public office, not to exceed
(b) A contribution to a candidate includes contributions made to the
candidate's committee and to any political committee organized on the
(3) All political committees except those ofpolitical 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 party
(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 $6,500;
© for a candidate for public service commissioner, not to
(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.
(5) A candidate may not accept any contributions, including in-kind
contributions, in excess of the limits in this section.
Montana law also limits the total aggregate contributions that state
legislative candidates may receive from political committees:
A candidate for the state senate may receive no more than $2,150 in total
combined monetary contributions from all political committees
contributing to the candidate's campaign, and a candidate for the state
house of representatives may receive no more than $1,300 in total
combined monetary contributions from all political committees
contributing to the candidate's campaign. The limitations in this section
must be multiplied 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
2003. The resulting figure must be rounded up or down to the nearest
$50 increment. The commissioner shall publish the revised limitations
as a rule. In-kind contributions must be included in computing these
limitation totals. The limitation provided in this section does not apply
to contributions made by a political party eligible for a primary election
under 13-10-60 L
Mont. Code Ann. § 13-37-218.
The aggregate limit in Montana Code Annotated § 13-37-218 applies only
to state legislative campaigns. Id. The limits do not apply to other offices. So, for
example, candidates in the governor election may accept unlimited total
contributions from political committees, but those committees are limited to
contributing $500 apiece (adjusted for inflation). See Mont. Code Ann §
13-37-216(1)(a)(i). The plaintiffs do not challenge the constitutionality of
Montana Code Annotated § 13-37-218. The Court, therefore, makes no
determination as to the constitutionality of this statute, and this decision does not
impact the defendants' ability to enforce Montana Code Annotated § 13-37-218.
After adjusting the limits above for inflation, see Mont. Code Ann. §§
13-37-216(5),13-37-218, Montana's contribution limits are:
Contribution limits for individuals and political committees
(Admin. R. Mont. 44.10.338(1))
Other statewide offices
All other public offices
Aggregate contribution limits for political pa rties
(Admin. R. Mont. 44.10.338(2))
Other statewide offices
Public Service Commission
All other public offices
Aggregate contribution limits for political committees
(Admin. R. Mont. 44.10.331(1))
Standard of review
While laws limiting campaign expenditures are subject to strict scrutiny,
restrictions on contributions are subject to a "lesser standard." Thalheimer v. City
ofSan Diego, 645 F.3d 1109, 1117 (9th Cir. 20 II) (citing Buckley v. Valeo, 424
U.S. 1,20 (1976)). "Contribution limits need only be 'closely drawn' to match a
sufficiently important interest to survive a constitutional challenge." Id. (quoting
Randall v. Sorrell, 548 U.S. 230, 247 (2006) (plurality opinion)). Under this
standard, a contribution limit is constitutional as long as the limit is "closely
drawn" to match "a sufficiently important interest." See id.; Nixon v. Shrink Mo.
Govt. PAC, 528 U.S. 377, 387-88 (2000); Buckley, 424 U.S. at 25.
The Ninth Circuit held that, 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., ifthey (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).
Similarly, the U.S. Supreme Court later explained in Randall:
Following Buckley, we must determine whether ... contribution limits
prevent candidates from "amassing the resources necessary for effective
[campaign] advocacy"; whether they magnify the advantages of
incumbency to the point where they put challengers to a significant
disadvantage; in a word, whether they are too low and too strict to
survive First Amendment scrutiny.
548 U.S. at 248. (quoting Buckley, 424 U.S. at 21).
As the Randall plurality noted, courts have "no scalpel to probe" each
possible contribution level. 548 U.S. at 249. Courts cannot "determine with any
degree of exactitude the precise restriction necessary to carry out [a] statute's
legitimate objectives." fd. That task is better left to state legislatures. fd. That
being said, there are lower bounds to contribution limits. fd. at 248.
The Randall plurality articulated a two-step framework for analyzing the
question of whether a contribution limit is "closely drawn." First, a court must
look for "danger signs" as to whether the contribution limit at issue is too low. 548
U.S. at 249-53. A court, for instance, should compare the limit at issue with limits
that have been previously upheld or declared constitutional and compare the limit
to other limits across the country. fd. If "danger signs" are present, then a court
must move to the second step--"examin[ing] the record independently and
carefully ... detennin[ing] whether [the] contribution limits are 'closely drawn' to
match the State's interest." Jd at 253.
In Randall, the plurality discussed five factors when it examined the record
to detennine whether the contribution limit in that case was closely drawn:
whether the record suggests that the contribution limit "will
significantly restrict the amount of funding available for
challengers to run competitive campaigns," id at 253-56;
whether political parties must abide by the same limits that apply
to other contributors, id. at 256-59;
whether volunteer services are treated as contributions for
purposes of the contribution limit, id at 259-60;
whether the contribution limit is adjusted for inflation, id at 260;
ifthe contribution limit is "so low or so restrictive to bring about
... serious associational and expressive problems," whether there
is "any special justification" that warrants such a limit, id. at
Nothing in the Randall opinion suggests that this list of five factors is exhaustive
or that each factor must weigh against a limit in order for it to be unconstitutional.
III. Montana Right to Life Association v. Eddleman, 343 F.3d 108S (9th Cir.
This case is not the first time that a court has examined Montana's
contribution limits. In 2000, the Billings Division for the District of Montana held
a four-day bench trial to detennine the constitutionality of the same statutes. See
Mont. Right to Life Assn. v. Eddleman, CV 96-165-BLG-JDS (D. Mont. Sept. 19,
2000) (Ex. 11). The Court upheld the limits, and the Ninth Circuit affirmed that
decision in 2003. See Mont. Right to Life Assn., 343 F. 3d 1085.
In affirming the district court, the Ninth Circuit relied on both Buckley and
Shrink Missouri and concluded that the contribution limits are closely drawn.
Mont. Right to Life Assn., 343 F.3d at 1094. It held that the evidence showed that
the limits do not prevent candidates in Montana from raising the funds necessary
to mount effective campaigns. Id. at 1094-95. That decision is not binding on this
Court because the U.S. Supreme Court's intervening decision in Randall compels
a different outcome. See Kilgore v. KeyBank. Nat. Assn., 673 F.3d 947, 959 (9th
Randall II. Sorrell, 548 U.S. 230 (2006)
In Randall, which was decided after the Ninth Circuit's decision in
Montana Right to Life Assn., the U.S. Supreme Court examined Vermont's
contribution limits and held, for the first time, that a contribution limit violated the
First Amendment by failing the closely-drawn scrutiny standard ofreview. 548
U.S. 230; see Thalheimer, 343 F.3d at 1127 (discussing Randall, 548 U.S. 230).
Prior to Randall, Vermont limited single, individual contributions to a
campaign during a two-year general election cycle as follows: governor, lieutenant
governor, and other statewide offices, $400; state senator, $300; and state
representative, $200. Randall, 548 U.S. at 239. Political committees and political
parties were subject to the same limits. Id. "Volunteer services" did not qualify as
contributions under Vermont's law prior to Randall. Id.
When it analyzed the constitutionality of Vermont's contribution limits, the
Randall Court applied the familiar Buckley and Shrink Missouri test described
above-i.e., contribution limits are unconstitutional under the First Amendment if
they "prevent candidates from 'amassing the resources necessary for effective
[campaign] advocacy.'" Randall, 548 U.S. at 248 (quoting Buckley, 424 U.S. at
A majority ofjustices in Randall concluded that Vermont's contribution
limits were unconstitutional. Three justices-Justices Kennedy, Thomas, and
Scalia--opposed contribution limits as a matter of principle and concluded that
they violate the First Amendment. 548 U.S. at 264-73. Three other
justices-Justices Breyer and Alito and Chief Justice Roberts--opposed the
Vermont contribution limits based on the five factors discussed in Justice Breyer's
plurality opinion. Id. at 253--M. These six justices are a strong majority of the
Court, and their judgment is binding on this Court, even if Justice Breyer's
plurality opinion is only persuasive. See Thalheimer, 645 F.3d at 1127 n.5.
The Randall plurality first observed that Vermont's contribution limits
showed "danger signs" by comparing those limits to the much higher limits that
the Court had previously upheld. 548 U.S. at 249-53. Prior to Randall, the lowest
limit the Court had upheld was Missouri's limit of $1,075 per election (adjusted
for inflation) to candidates for Missouri state auditor. Id at 251 (citing Shrink Mo.,
528 U.S. 377). Of particular importance here, the Randall plurality also observed
that Vermont's contribution limits-along with Montana's limits and the limits of
six other states-were among the lowest in the country. Id 548 U.S. at 251.
After discussing these "danger signs," the Randall plurality examined the
record independently and carefully to determine whether Vermont's contribution
limits were "closely drawn" to match Vermont's interests. Id at 253. In doing so,
the plurality pointed to five specific factors that led it to conclude that Vermont's
contribution limits were unconstitutionally low:
the record suggested that Vermont's contribution limits
significantly restricted the amount of funding available for
challengers to run competitive campaigns, id at 253-56;
Vermont's insistence that political parties abide by exactly the
same contribution limits that applied to other contributors
threatened the political parties' associational rights, id at
while Vermont's law did not count "volunteer services" as
contributions, the law appeared to count the expenses of
volunteers (e.g., the volunteers' travel expenses) as
contributions, id at 259-60;
Vermont's contribution limits were not adjusted for inflation,
id at 260; and
there was no special justification that supported the
contribution limits, fd. at 261-
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