Lair et al v. Motl et al

Filing 278

ORDERED: 1. granting 236 Plaintiffs' Motion for Summary Judgment; 2. denying 240 Defendants' Motion for Summary Judgment; 3. finding as moot 212 Plaintiff-Intervenor's Motion for Leave to File supplemental complaint; 4. contrib ution limits codified at MCA 13-37-216(1),(3), and (5)(2011) are hereby declared unconstitutional. Defendants are PERMANENTLY ENJOINED from enforcing these limits; and 5. Clerk of Court to enter judgment in favor of Plaintiffs. Signed by Judge Charles C. Lovell on 5/17/2016. (DED, )

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
HELENA DIVISION

FILED
MAY 17 2016
Clerk, U.S. District Court
District Of Montana
Helena

DOUG LAIR, STEVE DOGIAKOS,
AMERICAN TRADITION
PARTNERSHIP, AMERICAN
TRADITION PARTNERSHIP PAC,
MONTANA RIGHT TO LIFE
ASSOCIATION PAC, SWEETGRASS
COUNCIL FOR COMMUNITY
INTEGRITY, LAKE COUNTY
REPUBLICAN CENTRAL
COMMITTEE, BEAVERHEAD
COUNTY REPUBLICAN CENTRAL
COMMITTEE, JAKE OIL LLC, JL
OIL LLC, CHAMPION PAINTING
INC, and JOHN MILANOVICH,
Plaintiffs,
and
RICK HILL,
Plaintiff-Intervenor,
vs.

JONATHAN MOTL, in his official
capacity as Commissioner of Political
Practices; TIM FOX, in his official
capacity as Attorney General of the
State of Montana; and LEO
GALLAGHER, in his official capacity
as Lewis and Clark County Attorney,
Defendants.
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CV 12-12-H-CCL

ORDER

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Before the Court are cross-motions for summary judgment in this case
involving Montana's 2011 political campaign contribution limits, codified at
Montana Code Annotated§ 13-37-216(1), (3), and (5). 1 For the reasons explained
below, the Court grants Plaintiffs' motion for summary judgment, denies
Defendants' motion for summary judgment, and again declares unconstitutional
these three statutory subsections.
BACKGROUND

Plaintiffs filed this lawsuit in the Billings Division for the District of
Montana on September 6, 2011, alleging that the following Montana state statutes
violate the First Amendment and are facially unconstitutional:
Montana Code Annotated§ 13-35-225(3)(a), which requires authors
of political election materials to disclose another candidate's voting
record;
Montana Code Annotated§ 13-37-131, which makes it unlawful for
a person to misrepresent a candidate's public voting record or any
other matter relevant to the issues of the campaign with knowledge
that the assertion is false or with a reckless disregard of whether it is
false;
Montana Code Annotated§ 13-37-216(1), (5), which limits
contributions that individuals and political committees may make to
candidates;
Montana Code Annotated§ 13-37-216(3), (5), which imposes an

1. The challenged provisions are currently found at Montana Code Annotated§ 13-37216(1), (2), and (4). In this order, all references to the campaign contribution limits are to the
2011 version of the statute.
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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.
Plaintiffs moved for a preliminary injunction on September 7, 2011, seeking
to enjoin enforcement of these statutes. However, before any action was taken on
the motion, Defendants moved to change venue and the case was transferred 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, Montana Code Annotated
§§ 13-35-225(3)(a), 13-37-131. The Court denied the motion as to the
remaining statutes.
The Court issued its first 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.
The parties then 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. The Court permanently enjoined Montana's vote-reporting
requirement, political-civil libel statute, and ban on corporate contributions to
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political committees used by those committees for independent expenditures. See
Mont. Code Ann.§§ 13-35-225(3)(a), 13-37-131, 13-35-227. However, the
Court concluded that Montana's ban on direct and indirect corporate contributions
to candidates and political parties was constitutional. Id. at§ 13-35-227. The
parties cross-appealed that order but then voluntarily dismissed the appeals on July
23, 2012.
The Court held a bench trial from September 12, 2012, to September 14,
2012, in order to resolve Plaintiffs' claims related to Montana's campaign
contribution limits in Montana Code Annotated§ 13-37-216(1), (3), and (5). On
October 3, 2012, less than three weeks after the close of evidence, the Court issued
an order declaring the contribution limits unconstitutional and permanently
enjoining their enforcement. The order indicated that complete findings of fact
and conclusions of law would follow, but that the Court wished to make its
ultimate ruling known as far in advance of the pending November election as
possible. That same day, Defendants filed a motion to stay the Court's ruling
pending appeal to the Ninth Circuit Court of Appeals. The Court did not rule on
the motion immediately, instead giving Plaintiffs five days to respond. The Court
ultimately denied Defendants' motion to stay.
On October 4, 2012, Defendants filed a notice of appeal of the Court's
October 3rd order and judgment. On October 10, 2012, the Ninth Circuit motions
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panel assigned to the case temporarily stayed the Court's order and judgment
pending appeal, citing the fact that the Court had yet to issue its findings of fact
and conclusions of law. That same afternoon, this Court issued its findings and
conclusions, relying primarily on the United States Supreme Court's plurality
opinion in Randall v. Sorrell, 548 U.S. 230 (2006), to find that Montana's
campaign contribution limits do not pass constitutional muster.
On October 16, 2012, the Ninth Circuit motions panel issued its full opinion
granting Defendants' motion to stay for the duration of the appeal. In essence, the
motions panel concluded that Defendants were likely to succeed on appeal
because the Ninth Circuit's decision in Montana Right to Life Association v.

Eddleman, 343 F.3d 1085 (9th Cir. 2003) [hereinafter, Eddleman], likely remained
good law despite Randall. See Lair v. Bullock, 697 F.3d 1200, 1202 (9th Cir.
2012) [hereinafter, Lair I].
On May 26, 2015, the Ninth Circuit merits panel assigned to the case issued
its opinion, which was subsequently amended and re-issued on September 1, 2015.

See Lair v. Bullock, 798 F.3d 736 (9th Cir. 2015) [hereinafter, Lair II]. The Lair II
court reversed and remanded, directing this Court to apply the following test from

Eddleman to the case at bar: "state campaign contribution limits will be upheld if
(1) there is adequate evidence that the limitation furthers a sufficiently important
state interest, and (2) ifthe limits are 'closely drawn'-i.e., if they (a) focus
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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." 798 F.3d at 748. The Lair II court expressly held that
Randall did not overrule the Eddleman closely-drawn analysis "because there
simply was no binding ... decision on that point." Id. at 747. However, the Lair
II court did hold that the Supreme Court's decision in Citizens United v. Federal
Election Commission, 558 U.S. 310 (2010), abrogated Eddleman to the extent the
latter relied upon an impermissible notion of what constitutes an "important state
interest" vis-a-vis contribution limits. Id. at 745-746. Thus, the litmus test for
state campaign contribution limits in the Ninth Circuit-which is to be applied
here on remand-is that articulated in Eddleman, except that the only state interest
which contribution limits may permissibly combat is quid pro quo corruption or its
appearance.
The Lair II court provided instructions to this Court on remand. First,
having interpreted the Court's October 10, 2012 findings and conclusions as silent
on the issue of whether Defendants established an important state interest
underlying the statutes at issue, the Lair II court directed the Court "either (1) to
decide whether Montana has carried its burden in showing the contribution limits
further a valid 'important state interest' or, ifthe [Court] again assumes the state
has carried its burden, (2) to identify expressly what interest the [Court] assumes
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exists." 2 Id. at 748. Furthermore, ifthe Court either expressly finds or assumes
that the contribution limits further a sufficiently important state interest, the Lair II
court directed this Court to apply the three-part closely-drawn test from Eddleman.
Id.

Following the Lair II court's remand, I ordered the parties to file status
reports addressing the posture of the case, and set a status conference for October
20, 2015. The Court ultimately held the status conference on November 10, 2016,
whereat the parties discussed: (a) the appropriate test to be applied to the
contribution limits at issue, (b) the scope of discovery, if any, necessary to address
the appropriate test, and ( c) the scope and necessity of proceedings going forward.
Relying on footnote 8 of the Lair II court's decision, at the status conference, the
parties agreed to several additional months of discovery in the case. Plaintiffs
stipulated to Defendants' requests to introduce portions of the district court record
from Eddleman and "to supplement the existing record with witness testimony and
documentary evidence such as court decisions, campaign finance decisions, and
public campaign finance records." (Doc. 204 at 4.) The Court reluctantly agreed

2. The Lair II court noted that this Court "assumed Montana had shown an 'important
state interest' but did not identify what that interest was." 798 F.3d at 748. In the October 10,
2012 findings and conclusions, this Court stated that "[ejven assuming that the State of Montana
has a 'sufficiently important interest' in setting contribution limits, the limits ... are not 'closely
drawn' to match that interest." (Doc. 168 at 27.) Thus, only in order to reach its analysis under
the "closely drawn" prong did the Court assume an interest. And that limited assumption was
based on this Court's misplaced confidence that Randall controlled even notwithstanding the
admission.

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to the proposed additional discovery. The parties further represented at the status
conference that the case could likely be resolved on motions for summary
judgment. Thereafter, the Court issued a scheduling order setting a discovery
deadline of February 5, 2016, a motions deadline of March 4, 2016, a hearing on
the motions for April 18, 2016, and a bench trial-to the extent necessary--on
May 23, 2016.
The parties filed cross-motions for summary judgment on March 4, 2016,
and included with their opening and subsequent briefs numerous exhibits and
affidavits. The Court heard oral argument on the cross-motions on April 18, 2016,
and the parties and Court generally agreed that this matter can be resolved at
summary judgment. Accordingly, the Court vacated all pending deadlines, with
the exception of the bench trial date.
LEGAL STANDARD

A party is entitled to summary judgment if it can demonstrate that "there is
no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law." Fed. R. Civ. P. 56(a). Summary judgment is warranted where
the documentary evidence produced by the parties permits only one conclusion.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986). Only disputes over

facts that might affect the outcome of the lawsuit will preclude entry of summary
judgment; factual disputes that are irrelevant or unnecessary to the outcome are
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not considered. Id. at 248. In ruling on a motion for summary judgment, a court
must view the evidence "in the light most favorable to the opposing party." Tolan
v. Cotton, 134 S. Ct. 1861, 1866 (2014) (quoting Adickes v. S.H. Kress & Co., 398
U.S. 144, 157 (1970)). "[T]he evidence of the nonmovant is to be believed, and
all justifiable inferences are to be drawn in his favor." Id. at 1863 (quoting
Anderson, 477 U.S. at 255).
ANALYSIS

I.

Montana's campaign contribution limits
Montana Code Annotated§ 13-37-216(1), (3), (5) provides:
(l)(a) Subject to adjustment as provided for in subsection (4),C31
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;

3. Subsection 4 provides:
(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) $I 0 increment for the limits established in subsection (I); and
(ii) $50 increment for the limits established in subsection (3).
(c) The commissioner shall publish the revised limitations as a rule.
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(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 $130.
(b) A contribution to a candidate includes contributions made to the
candidate's committee and to any political committee organized on
the candidate'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 party committees:
(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;
(c) for a candidate for public service commissioner, not
to exceed $2,000;
(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
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contributions, in excess of the limits in this section.
After adjusting the limits above for inflation, see Mont. Code Ann. §
13-37-216(4), Montana's current contribution limits are:

Contribution limits for individuals and political committees
(Admin. R. Mont. 44.10.338(1))
Governor

$650

Other statewide offices

$320

All other public offices

$170

Aggregate contribution limits for political parties
(Admin. R. Mont. 44.10.338(2))
Governor
Other statewide offices

$8,450

Public Service Commission

$3,350

State Senate

$1,350

All other public offices

II.

$23,350

$850

Governing law
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. 2011) (citing Buckley v. Valeo, 424
U.S. I, 20 (1976)). "Contribution limits need only be 'closely drawn' to match a
sufficiently important interest to survive a constitutional challenge." Id. Under
this standard, a contribution limit is constitutional as long as the limit is "closely
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drawn" to match "a sufficiently important interest." See id.; Nixon v. Shrink Mo.
Gov't PAC, 528 U.S. 377, 387-388 (2000); Buckley, 424 U.S. at 25. However,
while the government enjoys a lower evidentiary threshold in contribution limits
cases, the Ninth Circuit has "never accepted mere conjecture as adequate to carry a
[state's] First Amendment burden." Citizens for Clean Gov 't v. City ofSan Diego,
474 F.3d 647, 653 (9th Cir. 2007). Nor has the Ninth Circuit credited ''the
argument that a state may limit contributions simply because they may sway the
outcome of an election," instead requiring that "contribution limits ... target some
'greater or more imminent danger to the public interest."' Id. at 652 (citing Mont.
Chamber of Commerce v. Argenbright, 226 F.3d 1049, 1057-1058 (9th Cir.
2000)).
As mentioned above, the Lair II court determined that while Citizens United
provides the standard for what constitutes an important state interest in this field
oflaw, Eddleman nevertheless provides the overall analytical framework. Thus,
the Court should uphold Montana's campaign contribution limits if: (1) there is
adequate evidence that the limits further the sufficiently important state interest of
combating quid pro quo corruption or its appearance, and (2) ifthe limits are
closely drawn, meaning they (a) focus narrowly on the above 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. Lair II, 798 F.3d at 748.
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III.

Montana Chamber of Commerce v. Argenbright, 28 F. Supp. 2d 593 (D.
Mont. 1998), afj'd, 226 F.3d 1049 (9th Cir. 2000)

This Court has once before grappled with the issue of what constitutes quid
pro quo corruption or its appearance in the election law context. In 1996, the
people of the State of Montana passed Initiative 125, which banned direct and
indirect corporate contributions and expenditures related to ballot issues.
Argenbright, 28 F. Supp. 2d at 595. The Montana Chamber of Commerce and

several other plaintiffs challenged the initiative as an abridgement of their First
Amendment rights to free speech and association, with the undersigned presiding.
Id. In declaring Initiative 125 unconstitutional, this Court held that the State of

Montana failed to "demonstrate the existence or appearance of corruption, which
the [C]ourt define[d] as real harm to the integrity of Montana's ballot initiative
process." Id. at 600. The Ninth Circuit affirmed the Court's order, concluding
that "a restriction so destructive of the right of public discussion as [Initiative]
125, without greater or more imminent danger to the public interest than existed
in this case, is incompatible with the freedoms secured by the First Amendment."
Mont. Chamber of Commerce v. Argenbright, 226 F.3d 1049, 1058 (9th Cir. 2000)

(citations omitted) (emphasis added).
The Court therefore considers quid pro quo corruption or its appearance as
those actual or apparent arrangements which pose a real harm to the election
process or to the public's interest in the election process. See James J. Lopach,
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Montana's Role in the Free Speech vs. Equal Speech Debate, 60 Mont. L. Rev.
475, 497 (1999) (providing excellent analysis of Argenbright, and positing that
"[t]he critical issue at trial [in the case] was not unequal voices but degradation of .
. . elections"). There is some distinction in the cases between ballot elections and
candidate elections, the discussion of both of which seems useful in determining
how the courts regard or define quid pro quo corruption or its appearance.
IV.

The constitutionality of Montana's campaign contribution limits
A.

Sufficiently important state interest

The parties devote the majority of their briefing and argument to the first
question in the modified Eddleman test-whether Defendants have presented
adequate evidence that Montana's campaign contribution limits further the
sufficiently important state interest of combating quid pro quo corruption or its
appearance.
Plaintiffs urge the Court to employ what they contend is the Supreme
Court's established definition of quid pro quo corruption. Citing various
cases-some construing criminal bribery statutes, some more germane to the
issues at hand-Plaintiffs assert that quid pro quo corruption only occurs when
there is "1) an explicit arrangement 2) for the direct exchange of something of
value for 3) a public official's improper promise or commitment that is 4) contrary
to the obligations of his or her office 5) in an effort to control a specific official,
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sovereign act." (Doc. 237 at 9.) Moreover, as Defendants are quick to point out,
Plaintiffs pay little attention to the disjunctive form corruption may take in the

Eddleman test, i.e. quid pro quo corruption or its appearance.
Defendants, on the other hand, argue that the Supreme Court has never so
formulaically mandated what is and is not quid pro quo corruption, instead
contending that its presence, absence, or appearance is a sort of"know it when you
see it" question of fact. Defendants cite to McCutcheon v. Federal Election

Commission, 134 S. Ct. 1434, 1450-1451 (2014), wherein the Supreme Court
affirmed its reliance on Buckley in stating that the First Amendment does not
permit governmental regulation of the electoral process in order to level the
playing field, level electoral opportunities, equalize the financial resources of
candidates, or limit "the possibility that an individual who spends large sums may
garner influence over or access to elected officials or political parties." While
these examples leave lower courts and litigants knowing what is not quid pro quo
corruption or its appearance, rather than knowing what is, Defendants argue that
the inclusion of both actual and apparent corruption in the definition necessarily
means that a sufficiently important state interest can be found with proof short of
Plaintiffs' proposed evidentiary floor. Indeed, the McCutcheon court applied a
"definition of corruption ... [with] firm roots in Buckley"-"[t]he Court in that
case upheld base contribution limits because they targeted 'the danger of actual
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quid pro quo arrangements' and 'the impact of the appearance of corruption
stemming from public awareness' of such a system of unchecked direct
contributions[, and] simultaneously rejected limits on spending that was less likely
to 'be given as a quid pro quo for improper commitments from the candidate."'
134 S. Ct. at 1451 (citing Buckley, 424 U.S. at 27, 47). Citing Citizens for Clean
Government, Defendants contend that, because contribution limits of the sort at

issue in this case are common and most often enacted to combat a "neither novel
nor implausible" avenue for corruption, their evidentiary burden is relatively low.
474 F.3d at 652-653.
Nevertheless, Defendants rely on a host of examples of purported actual and
apparent quid pro quo corruption as justification for the contribution limits. First,
they point to portions of the Eddleman district court record, including testimony
from Representative Hal Harper and evidence of a letter sent to Republican
senators in the early 1980's. Harper, when asked about forces which influence
state legislators' behavior, testified that over the years he had "seen efforts put into
hiring more lobbyists and funneling more money into campaigns when certain
special interests [knew] an issue [was] coming up, because it gets results." (Doc.
243-1 at 29). He further testified as to his opinion that "the people that lobby the
Legislature and ... make substantial donations to campaigns ... know ... that
there's a connection between support and between outcome and bills." (Id.) The
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letter referenced in Eddleman, sent by a Republican senator to other senators of
the same party in advance of a bill affecting life insurance underwriters, stated the
following:
Dear Fellow Republicans. Please destroy this after reading. Why?
Because the Life Underwriters Association in Montana is one of the
larger Political Action Committees in the state, and I don't want the
Demo's to know about it! In the last election they gave $8,000 to
state candidates .... Of this $8,000-Republicans got $7,000-you
probably got something from them. This bill is important to the
underwriters and I have been able to keep the contributions coming
our way. In 1983, the PAC will be $15,000. Let's keep it in our
camp.
(Doc. 241 at 17.) At the bench trial in March 2000, the Eddleman defendants
presented the testimony of another senator who rejected the implicit offer
contained in the letter, referring to it as "unconscionable" and "not the way to pass
bills." (Doc. 243-1 at 58.)
Defendants also cite more recent examples of what they deem actual or
apparent quid pro quo corruption. First, they reference the declaration of Senator
Bruce Tutvedt, who claims to have been among a group of Republican state
legislators offered $100,000 by National Right to Work in exchange for
introducing and bringing to a "vote of record" a right-to-work bill. (Doc. 244 at
2.) Tutvedt expressly declares that "[a]fter a brief discussion, the offer was
rejected." (Id.)
Second, Defendants cite Commissioner of Political Practices Jonathan
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Motl's ("Motl") opinion "that several 2010 candidates engaged in quid pro quo
arrangements by pledging '100% support' for particular corporate groups'
legislative agendas in exchange for the corporate groups orchestrating a large
scale campaign plan on" behalf of those that made pledge. (Doc. 241 at 18.) This
opinion is similar to the circumstances underlying three other pieces of evidence
upon which Defendants rely-two state district court decisions wherein candidates
were "found" to have engaged in quid pro quo corruption, and a third wherein a
candidate was found to have accepted an illegal campaign contribution allegedly
as part of a quid pro quo. 4 (Id. at 19; Doc. 263 at 8.) In each of these instances,
the individuals either found to or alleged to have engaged in quid pro quo
corruption were identified by National Right to Work through surveys prior to
receiving any of the alleged illegal contributions. (See e.g. Doc. 267-7 at 122-

4. Though the Court does not judge the weight of this evidence, the Court nevertheless
notes the nature of the disposition of these cases. In the first two cases, Republican state
legislators Wesley Prouse and Joel Boniek were found to have engaged in improper quid pro quo
arrangements. In both cases, following complaints filed in early 2014 in state district court by
Motl in his capacity as Commissioner of Political Practice, the defendants had defaults entered
against them after failing to appear and answer the complaints. (See Docs. 243-6 at 2; 243-7 at
2.) In the third case, Republican state legislator Art Wittich was found to have accepted an
illegal campaign contribution, and the issue of whether the contribution was part of a quid pro
quo arrangement has yet to be tried. In all three cases, the allegations that the contributions at
issue were in exchange for one or more official acts were not levied in the initial complaints-in
Boniek' s and Prouse' s cases, the allegations surfaced at the default judgment hearings in the
form ofMotl's own testimony (see Docs. 243-6, passim; 243-7, passim), and in Wittich's case,
the allegation was stricken from the court's final pretrial order and ordered to be tried before the
court in a separate proceeding because it was not raised in the complaint (see Doc. 267-4 at 10,
14, 17.) (See also Doc. 267-7 at 170-171 (acknowledging that the complaints did not contain
quid pro quo allegations).)
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123.) Only after National Right to Work identified the candidates' positions on
various points of its own agenda did the group offer the alleged illegal support.
While the Court is not prepared to adopt verbatim Plaintiffs' definition of
quid pro quo corruption, neither is the Court satisfied that the evidence presented
by Defendants proves the existence of an important state interest here. The
sticking point with respect to the evidence Defendants rely upon is that the quids
in each one of the cited instances were either rejected by, or were unlikely to have
any behavioral effect upon, the individuals toward whom they were directed.
Certainly, that the offers were never accepted in exchange for certain acts means
Defendants' evidence does not exemplify actual corruption. But, perhaps more
importantly, Defendants' evidence cannot reasonably exemplify appearances of
corruption because, if anything, the evidence shows that Montana politicians are
relatively incorruptible. Legislators denounced the life insurance underwriters'
offer in the 1980's, and Senator Tutvedt confirmed that National Right to Work's
offer-to the extent it even represented a "favors-for-dollars" arrangement-was
rejected. Moreover, each of the legislators whom Motl alleges accepted campaign
services in exchange for allegiance to National Right to Work's agenda were
highly likely to vote parallel to that agenda notwithstanding those services.
National Right to Work promotes what are hot-button core issues for the majority
of conservative legislators, including stances against abortion, in favor of
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individual rights under the Second Amendment, and against forced unionism.
These legislators are dyed-in-the-wool when it comes to these issues, and their
positions are not, nor seemingly ever will be, for sale. Thus, the Court is simply
unable to conclude that receiving National Right to Work's assistance in any way
affected the candidates' voting. Viewing these circumstances, the public would
more reasonably conclude that corruption is nearly absent from Montana's
electoral system-the evidence shows that despite a hand-full of opportunities,
legislators chose to keep their noses clean. In short, none of Defendants'
examples demonstrate a real harm to the election process or to the public's interest
in that process, as is required by the Ninth Circuit.
Based on the foregoing, the Court finds that Defendants have failed to prove
that Montana's campaign contribution limits further the important state interest of
combating quid pro quo corruption or its appearance. On these grounds alone,
Montana Code Annotated§ 13-137-216(1), (3), and (5) (2011) are in violation of
the First Amendment of the United States Constitution.

B.

Closely drawn

Assuming for arguments sake that a sufficiently important anti-corruption
interest supports the contribution limits at issue here, those limits would
nevertheless fail to clear the "closely-drawn" hurdle of the modified Eddleman
test. The Court agrees with Defendants that the contribution limits "leave the
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contributor free to affiliate with a candidate" in other ways, Lair II, 798 F.3d at
748, including through volunteering, knocking on doors, writing letters,
maintaining a blog, putting up signs and bumper stickers, holding fundraisers, and
placing ads in newspapers. (Doc. 241 at 23-24.) However, the Court concludes
that the limits neither "focus narrowly on [Montana's] interest," nor "allow [a]
candidate to amass sufficient resources to wage an effective campaign." Lair JI,
798 F.3d at 748.
1.

Narrow focus

Simply put, the contribution limits at issue here could never be said to focus
narrowly on a constitutionally-permissible anti-corruption interest because they
were expressly enacted to combat the impermissible interests of reducing influence
and leveling the playing field. See McCutcheon, 134 S. Ct. at 1450-1451. The
Court need look no further than the Montana Secretary of State's voter
information pamphlet describing Initiative 118, the successful ballot measure
which resulted in the reduced contribution limits at issue. In their argument for
the initiative, proponents of the measure-including Motl-stated the following:
There is just way too much money in Montana politics. Passage of
Initiative 188 works to solve this problem by: limiting campaign
contributions from special interests and the wealthy; stopping
incumbent politicians from building up carry-over campaign war
chests; preventing special interests from evading current limits; and
forbidding politicians from making personal use of campaign funds.
Money from special interests and the wealthy is drowning out the
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voice of regular people in Montana politics. The legislature has been
asked over the years to address these many problems but the very
interests that dominate the process have prevented any solutions. The
political system is a mess and needs to be rebuilt.
The growth of money in Montana politics is unprecedented. In 1992
candidates for governor raised $2.16 million; a 500o/o increase from
1976 when $437,000 was spent. Likewise in 1992, candidates for the
Montana legislature raised $1.1 million; a four fold increase since
1976.
Much of that increase comes from special interests (PACs) and the
wealthy. 1-118 changes Montana's laws to lower and standardize the
maximum contribution that special interests and the wealthy can
make to a candidate in any one election.

The opponents argument against [1-118] are flawed because they are
part of the problem. They represent the very interests whose money
and influence have drowned out citizen voices, caused government
gridlock and blocked political reform.
(Doc. 237-11 at 3, 5 (emphasis added).) The reductions to contribution limits
embodied in this measure run contrary to the First Amendment and McCutcheon.
State governments may not restrict the political speech of one group in order to
elevate that of another group. Thus, even were we to assume a valid anticorruption interest at the first step in the modified Eddleman test, the contribution
limits at issue would have failed this conjunctive factor of the closely-drawn
analysis.

2.

Amassing sufficient resources to effectively campaign

Though in the context of its significant-restriction-of-funds analysis under
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Randall, this Court addressed the spirit of this Eddleman closely-drawn factor in
its October 2012 findings of fact and conclusions of law. For the same reasons
explained in that order, and repeated below, the Court finds that Montana's
campaign contribution limits prevent candidates from amassing sufficient
resources to wage effective campaigns.
Generally speaking, candidates in Montana spend more money on their
campaigns than they raise. According to Clark Bensen, who testified at the
September 2012 bench trial as an expert witness on Plaintiffs' behalf, the average
competitive campaign spends 7% more money than it raises. This suggests that
most competitive campaigns are not adequately funded. The record shows,
though, that more funding would be available to candidates if Montana's
contribution limits were raised. Bensen testified that, on average, 29% of the
contributors in the competitive campaigns that he analyzed had donated at the
maximum level permitted by Montana law. The contributions that candidates
receive from maxed-out contributors are substantial, constituting approximately

44% of the funds raised through itemized contributions.
The analysis from Edwin Bender, Defendants' expert witness at trial, was
largely consistent with these statistics. Bender additionally determined that across
all Montana races (excluding the gubernatorial races) between 45o/o and 58o/o of
contributing political committees make the maximum contribution permitted by
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Montana law. But only 9% to 11 % of legislative candidates' funds come from
political committees, and only 0% to 3% of statewide candidates' funds come
from political committees.
Consistent with the testimony of Plaintiffs Doug Lair and Steve Dogiakos,
many, if not most, of these maxed out contributors might have donated beyond the
contribution limit if Montana law had permitted them to do so. Moreover, Bender
determined that between 22% and 32% of all Montana candidates accepted the
maximum aggregate contribution from their political party. According to Bensen,
this percentage is higher-at 40o/o-for candidates in competitive campaigns.
The number of contributors making contributions at the maximum level is
significant, and significantly greater funds would be available to candidates ifthe
contribution limits are raised. Defendants do not dispute these propositions,
instead arguing that "candidates may have to raise money from more sources than
if no limits existed[,] but that candidates can nonetheless run effective
campaigns." (Doc. 241 at 25.) The Court disagrees, and finds that the record
shows that those additional funds are needed because most campaigns are
insufficiently funded. Of primary concern with regard to the adequacy of funding
is the threat that "too low a limit [may] magnify the reputation-related or
media-related advantages of incumbency and thereby insulate legislators from
effective electoral challenge." Randall, 548 U.S. at 248 (citations and internal
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quotation marks omitted). The "free discussion of governmental affairs" requires
that the voices of all those who would represent the public as legislators are heard
by voters. Mills v. Ala., 384 U.S. 214, 218 (1966); see also Ariz. Right to Life
PAC v. Bayless, 320 F.3d 1002, (9th Cir. 2007) ("political speech ... operates at

the core of the First Amendment," and "[t]he First Amendment reflects a profound
national commitment to the principle that debate on public issues should be
uninhibited, robust, and wide-open") (citations omitted).
Based on the foregoing, even if Defendants had adequately proven the
existence of an anti-corruption interest underlying the limits, the limits would have
failed this conjunctive factor of the Eddleman closely-drawn analysis.

V.

Motl's expert witness testimony
The Court is called upon to determine whether Commissioner Motl's

testimony as an expert witness should be considered in this case. As mentioned
above, Motl was the driving force behind the initiative which resulted in the
current unconstitutional contribution limits. Before his appointment as
Commissioner, he shepherded several other initiatives through the validation and
ballot election process, including the measures found unconstitutional in
Argenbright and, more recently, an initiative directing Montana's state and federal

legislators to further a policy declaring that corporations do not have constitutional
rights. He attempted unsuccessfully to overturn the circuit opinion in Argenbright
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by initiative. Motl has also called for a national constitutional convention to
change the First Amendment of the Bill of Rights. Plaintiffs object to Motl's lack
of impartiality to testify as an expert witness. There is no question that he has
strong views as to what the law is and what it should be.
As Commissioner of Political Practices, Motl possesses broad
investigational powers, see Mont. Code Ann.§§ 13-37-111(2), 13-37-116, and is
charged with promulgating the very rules he is to enforce, Id.,§ 13-37-114. He is
granted the power to initiate civil or criminal actions, at his discretion, for
violation of state campaign finance law, as well as the power to prosecute those
same actions in the venue of his choosing. Id.,§§ 13-37-124, 13-37-128.
Finally, as is the case here, Motl often serves as a dual-role witness in the cases
which he initiates, testifying to both facts and opinions.
In declaring the contribution limits at issue in this case unconstitutional, the
Court has considered Motl's testimony for what it is worth.

VI.

Randall v. Sorrell, 548 U.S. 230 (2006)
Although the Randall decision is not binding on this Court, it is persuasive

in a number of respects. It identifies Montana as one of a number of states with
low contribution limits-lower than those found to be too low. It alerts Montana
to a potential problem and motivates the analysis which resulted in this case. Of
course Montana presents a unique and different situation from Vermont by virtue
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of its huge size and sparse population. Campaigning for statewide office is
obviously more costly in both time and money when it takes a full day to drive
across our state. Low contribution limits unduly empower incumbency. Limits
that are too low violate the First Amendment. Randall is useful in this analysis.
CONCLUSION

Defendants have not proven that the campaign contribution limits codified
at Montana Code Annotated§ 13-37-216(1), (3), and (5) (2011) further the
important state interest of combating quid pro quo corruption or its appearance.
Regardless, had they met their burden, the limits are neither narrowly focused on
an anti-corruption interest, nor do they allow candidates in Montana to amass
sufficient resources to wage effective political campaigns. Therefore, according to
McCutcheon and other controlling Supreme Court and Ninth Circuit law, they are

unconstitutional and must be enjoined.
Defendants have suggested that the contribution limits pre-dating Initiative
118-which the Court notes were significantly higher for individuals and political
committees, but quite a bit lower for political parties-should spring into effect in
the event the Court declares the 2011 contribution limits unconstitutional. The
Court expresses no opinion on this point, as it was neither a subject at trial nor in
the briefing submitted on summary judgment. The Court leaves this question for
the Montana Attorney General to consider.
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Now, this decision directly disposes of this case with respect to all but
Plaintiff-Intervenor Rick Hill ("Hill"). Hill accepted a $500,000 donation from
the Montana Republican Party two days after this Court originally declared the
statutes at issue here unconstitutional in October 2012, an act for which
Commissioner Motl has threatened but not yet filed an enforcement action against
Hill seeking treble damages. The Ninth Circuit granted Hill intervenor status in
this case. This Court, however, has held Hill's motion to file a supplemental
complaint in abeyance pending the outcome of the instant motions for summary
judgment. By his proposed complaint, Hill seeks a declaration that the
enforcement action-which is predicated on Montana Code Annotated §
13-37-216-violates his constitutional rights, and he seeks restraint of that
enforcement action.
The Court remains at a loss as to how Commissioner Motl will prove that
Hill could be liable for accepting the alleged illegal contribution after the duly
appointed and acting United States District Court, with unchallenged jurisdiction
in the case, declared the contribution limits unconstitutional and unenforceable
before the Ninth Circuit motions panel stayed this Court's order. In that short

window in early October 2012, seemingly there were no campaign contribution
limits in effect for Hill to violate. The Commissioner's prosecutorial grounds in
that matter appear shaky at best, and, more likely, non-existent.
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Both publicly 5 and before this Court at the November 2015 status
conference (see Doc. 226 at 12-14), Defendants have represented that the
Commissioner will defer to the Court's ruling in this case, a stance which can only
be interpreted to mean that Montana will relent against Hill in the event the
contribution limits are declared unconstitutional. Though Hill apparently remains
on alert that the enforcement action against him will be resuscitated, in reality that
has not occurred and, apparently, will not occur. On that premise, Hill's motion
for leave to file a supplemental complaint should now be denied as moot.
As was the case in 2012, the Montana Legislature convenes next year and
will have the opportunity to revisit campaign contribution limits once again, in a
manner which comports with the protections afforded by the First Amendment.
As the limits currently stand, those protections are not honored.
Accordingly, IT IS ORDERED that:
(1)

Plaintiffs' motion for summary judgment (Doc. 236) is GRANTED.

(2)

Defendants' motion for summary judgment (Doc. 240) is DENIED.

(3)

Plaintiff-Intervenor's motion for leave to file a supplemental
complaint (Doc. 212) is DENIED AS MOOT.

5. The Commissioner's official website indicates that "[w]hatever action that is taken [on
the Hill complaint] will defer to the eventual Federal Court Decision on the constitutionality of
Montana's 2012 contribution limits." See http://politicalpractices.mt.gov/2recentdecisions/
docket.mcpx.
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(4)

The contribution limits codified at Montana Code Annotated
§ 13-37-216(1), (3), and (5) (2011) are hereby declared
unconstitutional. Defendants are PERMANENTLY ENJOINED from
enforcing these limits.

(5)

The Clerk of Court is directed to enter judgment in favor of Plaintiffs

and against Defendants .
.f)
DATED this
clay of May, 2016.

4

"ct Judge

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