Republican Party of New Mexico et al v. King et al
Filing
232
MEMORANDUM OPINION AND ORDER by Chief District Judge William P. Johnson DENYING 223 MOTION to Exclude Opinions of Plaintiffs' Expert, Jeffrey Milyo, Ph.D.. (cmm)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
____________________
REPUBLICAN PARTY OF NEW MEXICO, et al.,
Plaintiffs,
vs.
No. 11-cv-900-WJ-KBM
HECTOR BALDERAS, in his official capacity, New
Mexico Attorney General; MAGGIE TOULOUSE
OLVER, in her official capacity, New Mexico
Secretary of State; and District Attorneys RAUL
TORREZ, GERALD BYERS, and DIANNA LUCE,
in their official capacities,
Defendants.
MEMORANDUM OPINION AND ORDER
DENYING DEFENDANTS’ MOTION TO EXCLUDE OPINIONS OF
PLAINTIFFS’ EXPERT JEFFREY MILYO, PH.D
THIS MATTER comes before the Court following Defendants’ Motion to Exclude
Opinions of Plaintiffs’ Expert Jeffrey Milyo, Ph.D, filed July 19, 2021 (Doc. 223). Dr. Milyo is a
renowned political economist and campaign finance academic, and Plaintiffs seek to have Dr.
Milyo testify on the question of whether New Mexico campaign finance laws “reduce quid pro
quo corruption or the appearance thereof.” Having considered the parties pleadings1 and the
applicable law, the Court finds that the motion is not well taken and is, therefore, DENIED.
BACKGROUND
In the wake of the Supreme Court’s decision in Citizens United, Plaintiffs brought the
instant action challenging portions of New Mexico’s Campaign Reporting Act under the First and
1
Plaintiffs’ Response (Doc. 226, 9/30/2021); Defendants’ Reply (Doc. 229, 10/28/2021).
1
Fourteenth Amendments, the Supremacy Clause, and 42 U.S.C. § 1983. See Citizens United v.
FEC, 558 U.S. 310 (2010); NMSA 1978, §§ 1–19–25 to 1-19-36. Relevant New Mexico law has
since changed, and Plaintiffs have accordingly filed their Third Amended Verified Complaint
challenging New Mexico’s contribution limits as applied to:
•
contributions made to a political party;
•
contributions made by a national political party to a state party;
•
contributions made by a state party to county parties;
•
contributions a political party makes to its candidates or candidates’ political committees;
and
•
contributions a political party makes to its governor candidates’ political committees.
To survive constitutional scrutiny, New Mexico’s contribution limits must further a sufficiently
important governmental interest, proven by establishing that they prevent “quid-pro-quo
corruption or its appearance.” Id. This is an important factual question to be answered at trial.
As such, Plaintiffs have proffered Dr. Jeffrey Milyo as an expert witness to opine that New
Mexico’s contribution limits do not prevent quid-pro-quo corruption or its appearance as perceived
by residents. With thirty years of experience in American political economy, Dr. Milyo is Google
Scholar’s most-cited author in the fields of campaign finance and political corruption. He currently
serves as Department of Economics chairman and professor at the University of Missouri and has
held a variety of appointments, fellowships, and expert roles related to election reform and
campaign finance.
For the litigation at bar, Dr. Milyo has prepared an expert report (the “Milyo Report”)
detailing his opinions on the effects of New Mexico laws. In arriving at his conclusions, he relies
primarily on his extensive academic experience, studies, surveys, peer-reviewed literature, and
data. Importantly, the overwhelming majority of studies on which he relies derive data from states
2
around the country—and are not specifically tailored to New Mexico. In response, Defendants
have filed a motion to exclude his report, citing its lack of relevance and reliability. The Court now
assesses its admissibility.
DISCUSSION
Federal Rule of Evidence 702 controls the admission of expert witness testimony. It
provides:
A witness who is qualified as an expert by knowledge, skill, experience,
training, or education may testify in the form of an opinion or otherwise if:
(a) The expert’s scientific, technical, or other specialized knowledge will
help the trier of fact to understand the evidence or to determine a fact in
issue;
(b) The testimony is based on sufficient facts or data;
(c) The testimony is the product of reliable principles and methods; and
(d) The expert has reliably applied the principles and methods to the facts
of the case.
Fed. R. Evid. 702. This rule “imposes on a district court a gatekeeper obligation to ‘ensure that
any and all scientific testimony or evidence admitted is not only relevant, but reliable.’” Dodge v.
Cotter Corp., 328 F.3d 1212, 1221 (10th Cir. 2003) (quoting Daubert v. Merrell Dow. Pharm.,
Inc., 509 U.S. 579, 589 (1993)). The purpose of such inquiry is to “make certain that an expert,
whether basing testimony upon professional studies or personal experience, employs in the
courtroom the same level intellectual rigor that characterizes the practice of an expert in the
relevant field.” Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152 (1999). Overall, the Court
has broad discretion in determining whether to exclude an expert’s proposed testimony. See United
States v. McSwain, 197 F.3d 472, 482 (10th Cir. 1999).
3
To perform its gatekeeping function, the Court generally takes two steps. First, it
determines whether the expert is qualified by “knowledge, skill, experience, training, or education”
to render an opinion. See Fed. R. Evid. 702. The parties do not dispute Dr. Milyo’s qualifications,
so the Court turns its focus to the second step which is to decide whether his opinions are
sufficiently “reliable.” See United States v. Nacchio, 555 F.3d 1234, 1241 (10th Cir. 2009) (en
banc). As opposed to a traditional analysis employing the Daubert factors, the parties have
conformed their arguments to Rule 702’s four elements. Therefore, the Court addresses each in
turn, recognizing that the second, third, and fourth elements encompass the Court’s duty to
determine whether Dr. Milyo’s testimony is sufficiently reliable.
I.
Dr. Milyo’s testimony would assist the trier of fact to determine a fact in issue.
First, the expert testimony must help the trier of fact to understand the evidence or to
determine a fact in issue, which goes primarily to relevance. Fed. R. Evid. 702(a); Daubert v.
Merrell Dow Pharms., Inc., 509 U.S. 579, 591 (1993). To assist the trier of fact, expert testimony
“must logically advance a material aspect of the case and be sufficiently tied to the facts of the
case that it will aid the jury in resolving a factual dispute.” United States v. Garcia, 635 F.3d 472,
476 (10th Cir. 2011). “Expert testimony which does not relate to any issue in the case is not
relevant and, ergo, non-helpful.” Daubert, 509 U.S. at 591.
Defendants focus the Court’s attention on a certain aspect of relevancy: the existence of a
“valid scientific connection” between the testimony and the pertinent inquiry. In explaining this
phrase, the Supreme Court opined in Daubert:
The consideration has been aptly described by Judge Becker as one of “fit.” Ibid.
“Fit” is not always obvious, and scientific validity for one purpose is not necessarily
scientific validity for other, unrelated purposes. See Starrs, Frye v. United States
Restructured and Revitalized: A Proposal to Amend Federal Evidence Rule 702, 26
Jurimetrics J. 249, 258 (1986). The study of the phases of the moon, for example,
may provide valid scientific “knowledge” about whether a certain night was dark,
4
and if darkness is a fact in issue, the knowledge will assist the trier of fact. However
(absent creditable grounds supporting such a link), evidence that the moon was full
on a certain night will not assist the trier of fact in determining whether an
individual was unusually likely to have behaved irrationally on that night. Rule
702's “helpfulness” standard requires a valid scientific connection to the pertinent
inquiry as a precondition to admissibility.
Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 591–92 (1993) (emphasis added). Like the
phases of the moon to one’s tendency to behave irrationally, Defendants assert that there exists
“simply too great an analytical gap” between Dr. Milyo’s testimony and the factual question at
hand. Conflating relevancy with reliability, Defendants attack the way by which Dr. Milyo reaches
his conclusions in the Milyo Report to suggest that it is highly unreliable and thus, not helpful to
the trier of fact.2
The Court finds Defendants’ argument misplaced. The Milyo Report is based on relevant
facts, peer-reviewed studies, and data in the case—all dealing with the likely effects of the New
Mexico laws in question. While many of the citations underlying Dr. Milyo’s opinions are his own
scholarship, one might expect as much from a pre-eminent scholar on money in politics. As
explained below, his reliance on a certain type of data—multi-state, multi-year studies—does not
lead to a lack of a scientifically valid connection. See Matrixx Initiatives, Inc. v. Siracusano, 563
U.S. 27, 40–41 (2011). Money in politics is a highly subjective area of study, of which most people
likely have minimal familiarity, and having Google Scholar’s most-cited academic in the field of
money in politics to explain the purported effects of campaign finance laws should certainly shed
light on whether they affect quid-pro-quo corruption or the appearance thereof.
Therefore, the Court finds that Dr. Milyo’s testimony would assist the trier of fact to
determine the primary fact in question.
II.
Dr. Milyo’s proposed testimony is reliable.
2
While reliability of testimony undoubtedly affects its helpfulness, this argument is better suited for elements (b), (c),
and (d), where the Court assesses the reliability of Dr. Milyo’s opinions. See Fed. R. Evid. 702(b)–(d).
5
The Court’s second gatekeeping function is to evaluate the reliability of the expert’s
proposed testimony. See United States v. Nacchio, 555 F.3d 1234, 1241 (10th Cir. 2009) (en banc).
In evaluating reliability, the Court may consider the Daubert factors (to which the parties do not
refer), but ultimately “the law grants a district court the same broad latitude when it decides how
to determine reliability as it enjoys in respect to its ultimate reliability determination.” Kumho Tire
Co., Ltd. v. Carmichael, 526 U.S. 137, 142 (1999) (citing General Electric Co. v. Joiner, 522 U.S.
136, 143 (1997)). Accordingly, the Court assesses the Milyo Report and Dr. Milyo’s underlying
facts and data, the reliability of his methodology, and whether he reliably applied this methodology
to the facts at bar. Fed. R. Evid. 702(b)–(d).
A. Dr. Milyo’s opinions are based on sufficient facts or data.
Under the Federal Rules of Evidence, the expert’s proposed testimony must be based on
sufficient facts or data. Fed. R. Evid. 702(b). For guidance on this element, both parties cite to
Wright and Miller’s Federal Practice and Procedure:
An expert must base her opinion on at least the amount of data that a reliable
methodology demands . . . The expert may properly base her opinion on something
less than all the pertinent facts or data. Thus . . . sufficiency is a function of the
nature and scope of the opinion offered, the quantity of data both available and
pertinent to the issue at hand, and what is deemed sufficient by experts in the
pertinent field when working outside the courtroom.
29 Fed. Prac. & Proc. Evid. § 6268.3 In other words, an expert cannot “cherry pick[]’ favorable
data . . . but ignore[] a significant quantity of other important facts.” Id; see Smith v. Illinois
Department of Transportation, 936 F.3d 554 (7th Cir. 2019).
3
See also Advisory Committee’s Note, 2000 Amendment to Fed. R. Evid. 702 (“When facts are in dispute, experts
sometimes reach different conclusions based on competing versions of the facts. The emphasis in the amendment on
‘sufficient facts or data’ is not intended to authorize a trial court to exclude an expert’s testimony on the ground that
the court believes one version of the facts and not the other.”)
6
Defendants’ argument boils down to three separate issues. First, whether reliance on
national data—rather than New Mexico-specific data—is enough to support Dr. Milyo’s
conclusions about the effects of New Mexico laws. Second, whether this case is sufficiently similar
to the federal district court case of Many Cultures, One Message v. Clements as precedent to
exclude Dr. Milyo’s testimony. 830 F. Supp. 2d 1111, 1141 (W.D. Wash. 2011). Third, whether
Dr. Milyo’s citations and portions of his testimony are too dissimilar from the underlying factual
inquiry.
i.
National social science studies are enough to support Dr. Milyo’s conclusions.
Under this element, Defendants’ most important contention is that Dr. Milyo “relies on
very little data specific to New Mexico or the particular laws challenged in this lawsuit.” Doc. 223
at 8. Defendants argue that the “mélange of laws assessed from around the country is not sufficient
data, relevant to this case, to ground an admissible expert opinion.” Doc. 223 at 9. In his report,
the only New Mexico data Dr. Milyo cites is the criminal conviction of three state legislators,
which Dr. Milyo even states was not intended as a “formal analysis,” but rather as an “illustrative
example.” At his deposition, Dr. Milyo admitted that he did not recall any specific conversations
to gather information specific to New Mexico, pointing instead to the totality of his citations to
buttress his opinions.
Drawing from multi-year studies examining empirical data from all states, Dr. Milyo
alleges that “the relevant social science literature provides no support for the contention that state
campaign finance laws meaningfully reduce quid pro quo corruption or the appearance of
corruption” and that “[t]here is absolutely no reason to think that the lessons from this research do
not apply to New Mexico.” Milyo Report, Ex. 31 at 6–7, 11. Dr. Milyo further explains how he
arrives at his conclusions:
7
[C]ontributors have an indirect relationship with candidates. If limits on direct
contributions to candidates are ineffective, then it follows that limits that are at best
tenuously related to potential quid pro quo relations will likewise be ineffective . .
. . [P]olitics in New Mexico is not so uniquely corrupt that the general lessons from
the social science research do not apply, or that the contribution limits to and from
parties . . . have a dramatic effect that is not manifest by any other state campaign
finance regulations in other states.
Id. While New Mexico-specific data would certainly bolster Dr. Milyo’s analysis, primary reliance
on such data seems infeasible here. With approximately 2.1 million people, New Mexico has a
relatively small population—compared to, say, California with 39.5 million. See UNITED STATES
CENSUS
BUREAU,
2020
Census
Apportionment
Results
(April
26,
2021),
https://www.census.gov/data/tables/2020/dec/2020-apportionment-data.html. This implies a
much narrower state-level data set from which Dr. Milyo could deductively analyze the effects of
the laws at issue here, thereby necessitating national data to fill the void. Political economists—
particularly ones with three decades of experience in the field—would have reasonably relied on
this type of data in reaching such an inference. See Matrixx Initiatives, Inc. v. Siracusano, 563 U.S.
27, 40–41 (2011); Fed. R. Evid. 703.4 Had Defendants offered peculiarities distinguishing New
Mexico politics from other states, the Court would have more serious doubts applying multi-state
studies to the effects of New Mexico laws. In short, this lack of specific data goes more to the
weight rather than the admissibility of Dr. Milyo’s testimony.
ii.
Many Cultures, One Message is distinguishable from the facts at hand.
The parties vigorously debate the relevance and applicability of Many Cultures, One
Message v. Clements—a case in which the United States District Court for the District of
4
See also Ferebee v. Chevron Chemical Co., 736 F.2d 1529, 1535 (D.C. Cir. 1984) (“[A] cause-effect relationship
need not be clearly established by [additional] studies before a[n expert] can testify that, in his opinion, such a
relationship exists. As long as the basic methodology employed to reach such a conclusion is sound . . . law does not
preclude recovery until . . . science has had the time and resources to complete sophisticated . . . studies of the [laws
at issue].”).
8
Washington excluded Dr. Milyo’s testimony under Daubert. 830 F.F. Supp. 2d 1111, 1141 (W.D.
Wash. 2011), aff’d in part & vacated in part on other grounds, 520 F. App’x 517 (9th Cir. 2013).
In that case, the plaintiffs challenged laws in the State of Washington requiring disclosure of
grassroots lobbying contributions and sought Dr. Milyo to testify at trial. Several key
considerations here distinguish Many Cultures, One Message from the case at bar.
First, the District of Washington Court found pertinent to its analysis that “grassroots
lobbying and the impact of public disclosure thereon—even in a general sense—was not a subject
of Dr. Milyo’s research.” Id. That isn’t the case here. As reflected by his report and resume, Dr.
Milyo over the course of his career has specialized in campaign finance and money in politics
more generally. Thus, in contrast to Many Cultures, One Message, Dr. Milyo’s testimony would
be relevant to whether New Mexico laws affect quid-pro-quo corruption, or the appearance thereof.
Similarly, important to the District of Washington Court’s Daubert evaluation was a lack
of commonality between Dr. Milyo’s research on other states’ registration, itemization, and
expenditure reporting requirements versus the Washington grassroots lobbying laws at issue. Id.
(“Dr. Milyo utterly fails to show that the laws in the other states he researched are the same as the
disclosure laws at issue here, let alone that they have been implemented and enforced in the same
way . . .”). However, the link here is not nearly as attenuated. Dr. Milyo has evidenced direct
research on the effects of campaign contribution limit laws, which are sufficiently comparable to
New Mexico’s laws.
The last relevant factors were that Dr. Milyo had prepared his research in a “strategic
nature” and had also encroached on the province of the District of Washington Court by concluding
Washington’s laws were vague and overbroad, thus chilling protected First Amendment speech.
Id. at 1143. In contrast to the tailored research and analysis Dr. Milyo did in Many Cultures, One
9
Message, he did not conduct thirty plus years of research on the relevant topic to specifically assist
this litigation. Nor have Defendants argued that Dr. Milyo’s testimony would encroach on the
province of the Court by reaching any legal conclusions.
For these reasons, the Court finds that Many Cultures, One Message is distinguishable from
the legal and factual issues in the case at bar and thus, is not persuasive precedent for excluding
the expert opinions of Dr. Milyo.
iii.
The underlying citations are relevant to Dr. Milyo’s opinions.5
Defendants argue that several articles cited in the Milyo Report are too dissimilar from the
factual inquiry at hand. For example, Dr. Milyo’s 2016 article measures corruption convictions
across states, and his 2006 article deals with general public attitudes toward government. Similarly,
Defendants further contend that Dr. Milyo’s testimony on public opinion surveys consists of his
opinions regarding general trust in government, rather than the specific inquiry regarding the
appearance of corruption. These dissimilarities, Defendants suggest, reflect the overall
insufficiency of Dr. Milyo’s underlying data.
The Court disagrees. Whether New Mexico laws affect “quid-pro-quo corruption, or the
appearance thereof” is a multi-faceted question. Answering this question will require the factfinder
to consider wide-ranging information, and the articles to which Defendants point do not fall outside
of this permissible range. Specifically, inquiring into the “appearance of corruption” requires the
parties to consider the process by which people form opinions, which encompasses general public
attitudes toward, and general trust in, government. Surely, the level of specificity and relevance
5
This discussion echoes the Court’s relevance analysis in Section I. However, in contrast to whether Dr. Milyo’s
opinions are relevant to the overall factual inquiry, this Section deals with whether his underlying citations are
sufficiently relevant to his opinions to constitute a reliable methodology.
10
will differ from article to article, but overall a political economist would likely reasonably rely on
this information to form such an opinion, as Dr. Milyo did here. See Fed. R. Evid. 703.
Considering Dr. Milyo’s three decades of relevant experience and his numerous relevant
citations, the Court finds that Dr. Milyo’s opinions are based on sufficient facts or data. See Fed.
R. Evid. 702(b).
B. Dr. Milyo’s testimony is the product of a reliable methodology.
Expert testimony must be the product of reliable principles and methods. Fed. R. Evid.
702(c). In addition to his thirty plus years of experience in the field, Dr. Milyo relies on numerous
studies—much of his own scholarship—analyzing similar laws in other states. From his extensive
experience and research, Dr. Milyo deduces that the laws at issue in this case will not reduce
corruption or the appearance thereof. In relevant part, his report provides:
[M]ost of the scholarly attention to state campaign finance laws focuses on
contribution limits to candidates from individuals or non-party organizations,
independent expenditures, and public financing . . . the hypothesis that limits on
contributions to and from political parties has any causal impact on quid pro quo
corruption or the appearance of corruption is strictly speaking, untested . . .
Nevertheless, based on the consistent and repeated findings of the existing research,
it is my opinion that New Mexico’s limits on contributions to and from political
parties do not substantively reduce either quid pro quo corruption . . . or the
appearance of corruption perceived by residents.
Milyo Report, Doc. 226, Ex. 31, at 11. Defendants argue that the combination of Dr. Milyo’s
experience and unexplained selection of articles does not constitute a reliable methodology. His
testimony, thus, is not based on “scientific knowledge, which ‘implies a grounding in the methods
and procedures of science’ based on actual knowledge, not ‘subjective belief or unsupported
speculation.’” Dodge v. Cotter Corp., 328 F.3d 1212, 1222 (10th Cir. 2003) (quoting Daubert, 509
U.S. at 590).6
6
Throughout their briefing, Defendants repeatedly refer to Dr. Milyo’s testimony as “unscientific” in an effort to
demonstrate its unreliability. The Supreme Court, however, has held: “We conclude that Daubert’s general holding—
11
The Court finds that Dr. Milyo’s methodology is reliable. Contrary to Defendants’
admonition, the Court notes Dr. Milyo’s three decades of experience specializing in money in
American politics is highly suggestive of his reliability. See Kumho Tire Co., 526 U.S. at 150
(“[T]he relevant reliability concerns may focus upon personal knowledge or experience.”).
Furthermore, to arrive at such conclusions, experts tend to employ similar deductive reasoning,
which is expressly permitted by the Tenth Circuit. See Bitler v. A.O. Smith Corp., 391 F.3d 1114
(10th Cir. 2004) (finding “scientifically valid” methodology when fire investigator used his
personal experience, training, method of observation, and deductive reasoning to reach opinion),
order clarified on other grounds on reh’g, 400 F.3d 1227 (10th Cir. 2005); Daubert, 509 U.S. at
592 (“[A]n expert is permitted wide latitude to offer opinions, including those that are not based
on firsthand knowledge or observation.”).
In sum, the combination of Dr. Milyo’s extensive experience, relevant academic expertise
and research, and deductive reasoning constitutes a reliable methodology.
C. The proposed testimony reliably applies the methodology to the facts of the case.
Finally, the expert must reliably apply the principles and methods to the facts at hand. See
Fed. R. Evid. 702(d). Citing Many Cultures, One Message, Defendants argue that the studies and
articles on which Dr. Milyo relies are not specific to New Mexico, the types of laws challenged in
this case, or the corruption or appearance of corruption assessed by the Court. 830 F. Supp. 2d
1111, 1141–42 (W.D. Wash. 2021). As squarely addressed above in Section II.A, the Court finds
that omission of this one type of data is not detrimental to Dr. Milyo’s opinions. Instead, Dr.
Milyo’s extensive experience and research form a sufficient basis from which he deductively
setting forth the trial judge’s general ‘gatekeeping’ obligation—applies not only to testimony based on ‘scientific’
knowledge, but also to testimony based on ‘technical and ‘other specialized’ knowledge.” Kumho Tire Co., Ltd. v.
Carmichael, 526 U.S. 137, 141 (1999).
12
reasons to the facts at bar. Therefore, the Court concludes that Dr. Milyo has reliably applied his
methodology to the facts of this case.
In sum, because Plaintiffs have satisfied Rule 702 elements (b)–(d), the Court finds that
Dr. Milyo’s proposed testimony is sufficiently reliable. See Fed. R. Evid. 702(b)–(d).
CONCLUSION
IT IS THEREFORE ORDERED that Defendants’ Motion to Exclude Expert Testimony,
Doc. 223, is DENIED for the reasons discussed in this Memorandum Opinion and Order.
________________________________
WILLIAM P. JOHNSON
CHIEF UNITED STATES DISTRICT JUDGE
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