Doug Lair v. Jonathan Motl

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

DOUG LAIR; STEVE DOGIAKOS; No. 16-35424
AMERICAN TRADITION
PARTNERSHIP; AMERICAN D.C. No.
TRADITION PARTNERSHIP PAC; 6:12-cv-00012-
MONTANA RIGHT TO LIFE CCL
ASSOCIATION PAC; SWEET GRASS
COUNCIL FOR COMMUNITY
INTEGRITY; LAKE COUNTY OPINION
REPUBLICAN CENTRAL COMMITTEE;
BEAVERHEAD COUNTY REPUBLICAN
CENTRAL COMMITTEE; JAKE OIL,
LLC; JL OIL, LLC; CHAMPION
PAINTING; JOHN MILANOVICH,
Plaintiffs-Appellees,

RICK HILL, Warden,
Intervenor-Plaintiff-Appellee,

v.

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; LEO J.
GALLAGHER, in his official capacity
as Lewis and Clark County Attorney,
Defendants-Appellants.
2 LAIR V. MOTL

Appeal from the United States District Court
for the District of Montana
Charles C. Lovell, Senior District Judge, Presiding

Argued and Submitted March 21, 2017
San Francisco, California

Filed October 23, 2017

Before: Raymond C. Fisher, Carlos T. Bea
and Mary H. Murguia, Circuit Judges.

Opinion by Judge Fisher;
Dissent by Judge Bea
 LAIR V. MOTL 3

SUMMARY*

Civil Rights

The panel reversed the district court’s judgment in an
action challenging Montana’s limits on the amount of money
individuals, political action committees and political parties
may contribute to candidates for state elective office.

The panel held that Montana’s limits, as set forth in
Montana Code Annotated § 13-37-216, were both justified
by and adequately tailored to the state’s interest in combating
quid pro quo corruption or its appearance. The panel held
that Montana had shown the risk of actual or perceived quid
pro quo corruption in Montana politics was more than “mere
conjecture.” The state offered evidence of attempts to
purchase legislative action with campaign contributions. The
panel held that contribution limits served the state’s important
interest in preventing this risk of corruption from becoming
reality.

The panel held that Montana’s limits were also “closely
drawn” to serve the state’s anti-corruption interest. The
limits targeted those contributions most likely to result in
actual or perceived quid pro quo corruption – high-end, direct
contributions with a significant impact on candidate
fundraising. Moreover, the limits were tailored to avoid
favoring incumbents, not to curtail the influence of political
parties, and to permit candidates to raise enough money to
make their voices heard. Although Montana’s limits were

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 LAIR V. MOTL

lower than most other states’ in absolute terms, they were
relatively high when comparing each state’s limits to the cost
of campaigning there. Thus, Montana’s chosen limits fell
within the realm of legislative judgments the courts could not
second guess.

Dissenting, Judge Bea stated that the district court
properly evaluated the evidence submitted by Montana’s
officials and found the officials had not established the only
constitutionally permissible and valid state interest sufficient
to justify Montana’s campaign contribution limits: the
prevention of corruption or its appearance.

COUNSEL

Matthew T. Cochenour (argued), Helena, Montana, for
Defendants-Appellants.

James Bopp (argued), Terre Haute, Indiana, for Plaintiffs-
Appellees.
 LAIR V. MOTL 5

OPINION

FISHER, Circuit Judge:

Montana limits the amount of money individuals, political
action committees and political parties may contribute to
candidates for state elective office. The district court
invalidated these limits as unduly restrictive of political
speech under the First Amendment. Because Montana’s
limits are both justified by and adequately tailored to the
state’s interest in combating quid pro quo corruption or its
appearance, we reverse.

Montana has shown the risk of actual or perceived quid
pro quo corruption in Montana politics is more than “mere
conjecture,” the low bar it must surmount before imposing
contribution limits of any amount. The state has offered
evidence of attempts to purchase legislative action with
campaign contributions. Contribution limits serve the state’s
important interest in preventing this risk of corruption from
becoming reality.

Montana’s limits are also “closely drawn” to serve the
state’s anti-corruption interest. The limits target those
contributions most likely to result in actual or perceived quid
pro quo corruption – high-end, direct contributions with a
significant impact on candidate fundraising. Moreover, the
limits are tailored to avoid favoring incumbents, not to curtail
the influence of political parties, and to permit candidates to
raise enough money to make their voices heard. Although
Montana’s limits are lower than most other states’ in absolute
terms, they are relatively high when comparing each state’s
limits to the cost of campaigning there. Thus, Montana’s
6 LAIR V. MOTL

chosen limits fall within the realm of legislative judgments
we may not second guess.

I. Background

A. Montana’s Contribution Limits

In 1994, Montana voters passed Initiative 118, a
campaign finance reform package that included the
contribution limits at issue here. I-118’s limits replaced a
regime that had been in place since 1975. That regime
permitted individuals and political parties to contribute up to
the following limits:

Table 1: Pre-Initiative 118 Limits

Governor Other Public Legislature City or
Statewide Service County
Election Commission

Individual $1500 $750 $400 $250 $200

Political $8000 $2000 $1000 $250 $200
party

See Mont. Code Ann. § 13-37-216 (1975) (enacted by No. 23-
4795, 1975 Mont. Laws Ch. 481 § 1).

I-118 lowered the cap on individual contributions while
raising the cap on contributions from political parties.1

1
Montana styles its limits on political parties as “aggregate” limits,
meaning that a political party is treated as a single entity for contribution
purposes, even if the party is broken down into a number of different local
committees across the state. See Mont. Code Ann. § 13-37-216(2). These
 LAIR V. MOTL 7

Although the contribution limits at issue here originate from
I-118, the limits have not remained static. Since I-118’s
enactment, the Montana legislature has both amended the
limits and indexed them to inflation. See id. § 13-37-216
(2003) (raising the limits); Act of Apr. 27, 2007, 2007 Mont.
Laws Ch. 328 § 1 (H.B. 706) (indexing the limits to
inflation); Admin. R. Mont. 44.11.227. Moreover, unlike the
pre-1994 limits, I-118’s limits apply per election (rather than
per cycle), so a contributor may give up to the maximum
twice if a candidate faces a contested primary (once for the
primary and once for the general election). See Mont. Code
Ann. § 13-37-216(5); Mont. Comm’r of Political Practices,
Amended Office Mgmt. Policy 2.4 Reinstating Pre-Lair 2016
Campaign Contribution Limits at 2 (May 18, 2016) (“Pre-
1994 Limits Policy”), http://politicalpractices.mt.gov/conte
nt/ContributionLimitPolicy (explaining that the pre-I-118
limits applied per cycle).

Table 2 shows the post I-118 contribution limits in 1994
(when they were enacted), 2011 (when this lawsuit began)
and today. Table 3 compares the pre-I-118 limits to the post
I-118 limits as of 2017.

aggregate limits are different in kind from the ones the Supreme Court
struck down in McCutcheon v. FEC, 134 S. Ct. 1434 (2014). There, the
aggregate limits meant that once an individual’s contributions to all
candidates added up to the aggregate limit, he could no longer give any
money to any candidates. See id. at 1443, 1448. Montana’s aggregation
of political party contributions, by contrast, permits a party to contribute
up to the limit to as many candidates as the party wishes.
 8
Table 2: Post-Initiative 118 Limits2

Governor Other Statewide Public Service State Senate Other Public
Election Commission Office
1994 2011 2017 1994 2011 2017 1994 2011 2017 1994 2011 2017 1994 2011 2017

Individual/ $800 $1000 $1320 $400 $500 $660 $200 $260 $340 $200 $260 $340 $200 $260 $340
PAC

Political $15,000 $36,000 $47,700 $5000 $13,000 $17,200 $2000 $5200 $6900 $800 $2100 $2800 $500 $1300 $1700
party

See Mont. Code Ann. § 13-37-216; Admin. R. Mont. 44.11.227.
LAIR V. MOTL

2
Limits shown are the maximum per cycle assuming a candidate faces a contested primary. Per election limits are one half
of the amount shown.
 Table 3: Pre-Initiative 118 Limits vs. 2017 Limits

PRE-INITIATIVE 118 2017
Per Cycle Per Cycle Per Election

Individuals/PAC
Governor $1500 $1320 $660
Other statewide $750 $660 $330
Public Service $400 $340 $170
Commissioner
State legislature $250 $340 $170
City or county office $200 $340 $170
LAIR V. MOTL

Political Parties
Governor $8000 $47,700 $23,850
Other statewide $2000 $17,200 $8600
Public Service $1000 $6900 $3450
Commissioner
State legislature $250 $2800 $1400
City or county office $200 $1700 $850
9
10 LAIR V. MOTL

B. Eddleman

We first addressed – and upheld – the constitutionality of
Montana’s contribution limits in Montana Right to Life Ass’n
v. Eddleman, 343 F.3d 1085 (9th Cir. 2003). Applying
Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam), and Nixon
v. Shrink Missouri Government PAC, 528 U.S. 377 (2000),
we held

state campaign contribution limits will be
upheld if (1) there is adequate evidence that
the limitation furthers a sufficiently important
state interest, and (2) if the limits are “closely
drawn” – i.e., if they (a) focus narrowly on the
state’s interest, (b) leave the contributor free
to affiliate with a candidate, and (c) allow the
candidate to amass sufficient resources to
wage an effective campaign.

Eddleman, 343 F.3d at 1092.

At step one, we held Montana’s limits furthered the
state’s “interest in preventing corruption or the appearance of
corruption.” Id. In reaching this conclusion, we noted “[t]he
evidence presented by . . . Montana . . . [wa]s sufficient to
justify the contribution limits imposed, and indeed carrie[d]
more weight than that presented in Shrink Missouri.” Id. at
1093. We defined “corruption” or its appearance to include
both “instances of bribery of public officials” and “the
broader threat from politicians too compliant with the wishes
of large contributors.” Id. at 1092 (quoting Shrink, 528 U.S.
at 389).
 LAIR V. MOTL 11

At step two, we held Montana’s limits were “‘closely
drawn’ to avoid unnecessary abridgement of associational
freedoms.” Id. at 1093. The limits were adequately tailored
to the state’s “interest in preventing corruption and the
appearance of corruption” because they “affect[ed] only the
top 10% of contributions, and . . . the percentage affected
include[d] the largest contributions” – those most likely to be
associated with actual or perceived corruption. Id. at 1094.
The limits also allowed candidates to amass sufficient
resources to wage effective campaigns, as shown by
testimony from candidates and statistics demonstrating the
minor effects of the limits on fundraising compared to the
low cost of campaigning in Montana. See id. at 1094–95.
The limits, moreover, had caused no significant difference in
the amount challengers were able to raise compared to
incumbents. See id. at 1095. We therefore upheld Montana’s
limits.

C. Randall

Three years later, the Supreme Court’s decision in
Randall v. Sorrell, 548 U.S. 230 (2006), left Eddleman’s
holding on less stable footing. Randall invalidated
Vermont’s contribution limits, and a three-justice plurality
led by Justice Breyer proposed a new two-part, multi-factor
“closely drawn” test. As we subsequently explained,

[u]nder [the Randall] test, the reviewing court
first should identify if there are any “danger
signs” that the restrictions on contributions
prevent candidates from amassing the
resources necessary to be heard or put
challengers at a disadvantage vis-a-vis
incumbents. [Randall, 548 U.S.] at 249–52.
12 LAIR V. MOTL

The plurality found four “danger signs” in
Vermont’s contribution limits: “(1) The limits
are set per election cycle, rather than divided
between primary and general elections; (2) the
limits apply to contributions from political
parties; (3) the limits are the lowest in the
Nation; and (4) the limits are below those we
have previously upheld.” Id. at 268 (Thomas,
J., concurring) (listing the plurality’s “danger
signs”). The plurality held, if such danger
signs exist, then the court must determine
whether the limits are “closely drawn.”

The plurality looked to “five sets of
considerations” to determine whether the
statute was closely drawn: (1) whether the
“contribution limits will significantly restrict
the amount of funding available for
challengers to run competitive campaigns”;
(2) whether “political parties [must] abide by
exactly the same low contribution limits that
apply to other contributors”; (3) whether
“volunteer services” are considered
contributions that would count toward the
limit; (4) whether the “contribution limits are
. . . adjusted for inflation”; and (5) “any
special justification that might warrant a
contribution limit so low or so restrictive.”
Id. at 253–62.

Lair v. Bullock, 798 F.3d 736, 743 (9th Cir. 2015) (Lair II)
(last two alterations in original) (citations omitted). Although
this test is in many respects similar to the tailoring inquiry at
 LAIR V. MOTL 13

step two of the Eddleman analysis, it does not map perfectly
onto Eddleman.

D. Lair

After Randall, the plaintiffs commenced this action
challenging Montana’s limits a second time. The district
court concluded Randall abrogated Eddleman’s approach to
evaluating contribution limits and held Montana’s limits were
invalid under Randall. See Lair v. Murry, 903 F. Supp. 2d
1077, 1093 (D. Mont. 2012). Montana appealed.

Because the district court’s decision came weeks before
a state election, Montana sought a stay pending appeal, which
a motions panel of this court granted in a published decision.
See Lair v. Bullock, 697 F.3d 1200, 1202 (9th Cir. 2012)
(Lair I). The motions panel held Randall had not abrogated
Eddleman, because no “opinion [in Randall] can be
meaningfully regarded as narrower than another and can
represent a common denominator of the Court’s reasoning.”
Id. at 1205 (quoting United States v. Rodriguez-Preciado,
399 F.3d 1118, 1140 (9th Cir.), amended by 416 F.3d 939
(9th Cir. 2005)). Assuming arguendo Justice Breyer’s
plurality opinion was controlling, Lair I concluded Randall
applied rather than altered Buckley, the primary decision upon
which Eddleman had relied. Id. at 1206–08. Finally, even
applying Randall’s somewhat different “closely drawn”
analysis, Lair I concluded Montana’s limits would likely
survive scrutiny. Id. at 1208–13.

We then heard Montana’s appeal on the merits. See Lair
II, 798 F.3d at 744. In Lair II, we followed the motions
panel’s holding that Randall did not abrogate Eddleman’s
general approach to evaluating contribution limits. Id. at 747.
14 LAIR V. MOTL

We also held, however, that the Supreme Court’s decisions in
Citizens United v. FEC, 558 U.S. 310 (2010), and
McCutcheon v. FEC, 134 S. Ct. 1434 (2014), had limited the
important state interest at Eddleman’s first step to preventing
“quid pro quo corruption, or its appearance.” Lair II,
798 F.3d at 746. McCutcheon defined quid pro quo
corruption as “a direct exchange of an official act for money”
or “dollars for political favors” and the “appearance” of quid
pro quo corruption as “public awareness of the opportunities
for abuse inherent in a regime of large individual financial
contributions to particular candidates.” 134 S. Ct. at 1441,
1450 (internal quotation marks omitted). Because Eddleman
had relied on a broader definition of corruption – embracing
both quid pro quo and a generalized “access and influence”
theory – Citizens United and McCutcheon undermined
Eddleman’s holding that Montana’s limits were justified by
an important state interest. We therefore remanded for the
district court to evaluate Montana’s limits under the
Eddleman framework, but with the important state interest
limited to preventing actual or perceived quid pro quo
corruption.

On remand, the district court held the limits
unconstitutional under both prongs of Eddleman. In the
district court’s view, Montana did not provide adequate
evidence that its contribution limits further the state’s interest
in combating quid pro quo corruption or its appearance. The
court acknowledged evidence of various attempts to obtain
political favors through campaign contributions but
concluded these examples were inadequate because they did
not show the attempted corruption succeeded. “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
 LAIR V. MOTL 15

upon, the individuals toward whom they were directed.” Lair
v. Motl, 189 F. Supp. 3d 1024, 1034 (D. Mont. 2016). Under
Eddleman’s “closely drawn” prong, the district court
concluded the limits both prevented candidates from
campaigning effectively and were not narrowly focused,
“because they were expressly enacted to combat the
impermissible interests of reducing influence and leveling the
playing field.” Id. at 1035. Montana again appealed. We
have jurisdiction under 28 U.S.C. § 1291, and we reverse.

II. Standard of Review

We generally review a district court’s legal conclusions
de novo and its factual findings for clear error. See Lair II,
798 F.3d at 745. In the First Amendment context, however,
“our review [of the district court’s fact finding] is more
rigorous than other cases.” Id. at 748 n.8; see also Randall,
548 U.S. at 249 (plurality opinion) (“[C]ourts, including
appellate courts, must review the record independently and
carefully with an eye toward assessing the statute’s
‘tailoring,’ that is, toward assessing the proportionality of the
restrictions.”). In addition, we “review the application of
[the] law to those facts de novo on free speech issues.” Lair
II, 798 F.3d at 745.

III. Discussion

A. Important State Interest

Under Eddleman, we ask first whether “there is adequate
evidence that [Montana’s] limitation[s] further[] . . . [the]
important state interest” of preventing actual or perceived
quid pro quo corruption. 343 F.3d at 1092. This step of the
inquiry is divorced from the actual amount of the limits – it
16 LAIR V. MOTL

is a threshold question whether any level of limitation is
justified. As we explained in Eddleman:

[The plaintiff] does not dispute that
[Montana’s interest in combating corruption]
is sufficient to justify campaign contribution
limits. Rather, [the plaintiff] argues that the
limits imposed are unnecessarily stringent
....

This, however, is not the appropriate inquiry
[at step one]. The correct focus . . . is whether
the state has presented sufficient evidence of
a valid interest, not whether it has justified a
particular dollar amount. The latter inquiry, if
ever appropriate, occurs in the second part of
our analysis, in examining whether the
restriction is “closely drawn.”

Id.

To satisfy its burden, Montana must show the risk of
actual or perceived quid pro quo corruption is more than
“mere conjecture.” Id. (quoting Shrink, 528 U.S. at 392); see
McCutcheon, 134 S. Ct. at 1452 (reiterating the “mere
conjecture” standard). Montana need not show any instances
of actual quid pro quo corruption. See Thalheimer v. City of
San Diego, 645 F.3d 1109, 1121 (9th Cir. 2011). It must
show “only that the perceived threat [is] not . . . ‘illusory.’”
Eddleman, 343 F.3d at 1092 (quoting Buckley, 424 U.S. at
27).

This evidentiary burden is lowest where, as here, the
state’s purported interest is neither “novel” nor “implausible.”
 LAIR V. MOTL 17

Because the regulations at issue in Shrink
were similar to those in Buckley, the state’s
asserted interest was neither novel nor
implausible. Therefore, the Court declined to
impose, let alone articulate, a stringent
evidentiary burden. Shrink dealt with direct
contributions to candidates, and Buckley
established that a limit on the amount of such
contributions is “only a marginal restriction
upon the contributor’s ability to engage in free
communication” that can be justified by the
government’s interest in preventing “political
quid pro quo from current and potential office
holders.” 424 U.S. at 20–21, 26.

Thalheimer, 645 F.3d at 1122 (citations and internal quotation
marks omitted).3

Here, the important state interest requirement is satisfied.
The plaintiffs do not dispute that Montana’s interest in
combating quid pro quo corruption or its appearance justifies
some level of contribution limit. Indeed, the plaintiffs
conceded at oral argument that they believed Montana’s pre-
1994 limits were constitutional.

Even if the plaintiffs challenged this conclusion they
would not succeed, because Montana’s evidence shows the
threat of actual or perceived quid pro quo corruption in

3
This conclusion is consistent with the Randall plurality’s decision,
which did not suggest Vermont lacked a valid interest in combating quid
pro quo corruption. The plurality’s analysis was focused entirely on the
tailoring of Vermont’s limits. See Randall, 548 U.S. at 248–60 (plurality
opinion).
18 LAIR V. MOTL

Montana politics is not illusory. State Representative Hal
Harper testified groups “funnel[] more money into campaigns
when certain special interests know an issue is coming up,
because it gets results.” State Senator Mike Anderson sent a
“destroy after reading” letter to his party colleagues, urging
them to vote for a bill so a PAC would continue to funnel
contributions to the party:

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.

State Senator Bruce Tutvedt stated in a declaration that
during the 2009 legislative session the National Right to
Work group promised to contribute at least $100,000 to elect
Republican majorities in the next election if he and his
colleagues introduced and voted for a right-to-work bill in the
2011 legislative session. Finally, a state court found two
2010 state legislature candidates violated state election laws
by accepting large contributions from a corporation that
“bragged . . . that those candidates that it supported ‘rode into
office in 100% support of [the corporation’s] . . . agenda.’”
See Comm’r of Political Practices v. Prouse, DDV-2014-250
 LAIR V. MOTL 19

(1st Jud. Dist. Mont. 2016); Comm’r of Political Practices v.
Boniek, XADV-2014-202 (1st Jud. Dist. Mont. 2015).

In concluding this evidence failed to justify contribution
limits, the district court imposed too high an evidentiary
burden on Montana.4 The court held Montana’s evidence was
inadequate because the attempted corruption did not succeed
– the “quids” did not lead to “quos.” See Lair, 189 F. Supp.
3d at 1034. But Montana need not show any completed quid
pro quo transactions to satisfy its burden. It simply must
show the risk of actual or perceived quid pro quo corruption
is not illusory, a bar Montana’s evidence easily clears.
Montana’s contribution limits are of the same kind as in
Shrink and Buckley, and they are supported by at least as
much evidence as was present in those cases. See Shrink,
528 U.S. at 393–94 (noting a statement from a legislator “that
large contributions have ‘the real potential to buy votes’”;
“newspaper accounts of large contributions supporting
inferences of impropriety”; an example of a “state

4
Like the district court, the dissent would hold Montana to a more
stringent evidentiary burden than our cases or the Supreme Court’s permit.
The dissent says Montana must prove the existence of actual or apparent
corruption (Dissent at 37, 38, 41, 42), whereas we – following the
Supreme Court – have repeatedly held that all Montana must do is show
a “threat” or “risk” of actual or apparent corruption. Eddleman, 343 F.3d
at 1092; Farris v. Seabrook, 677 F.3d 858, 865–66 (9th Cir. 2012). The
dissent similarly suggests Montana must show evidence of a completed,
successful exchange of dollars for political favors to meets its evidentiary
burden. Dissent at 37 n.1, 38, 40, 41–42. But Montana need only show
that the threat of actual or apparent corruption is “not . . . illusory” or is
more than “mere conjecture.” Buckley, 424 U.S. at 27; Shrink, 528 U.S.
at 392. For example, even if the “destroy after reading” letter did not
result in the successful purchase of a block of votes in exchange for
contributions, it certainly shows that the threat of such arrangements is
non-illusory.
20 LAIR V. MOTL

representative . . . ‘accused of sponsoring legislation in
exchange for kickbacks’” (but not convicted); and a scandal
in which the former attorney general pled guilty to misusing
state property to benefit campaign contributors); Buckley,
424 U.S. at 27 n.28 (referencing generic “abuses uncovered
after the 1972 elections”). Montana, therefore, has offered
adequate evidence that its limits further the important state
interest of preventing quid pro quo corruption or its
appearance.5

B. “Closely Drawn”

We next address whether “the limits are ‘closely drawn’
– i.e., [whether] they (a) focus narrowly on the state’s
interest, (b) leave the contributor free to affiliate with a
candidate, and (c) allow the candidate to amass sufficient
resources to wage an effective campaign.” Eddleman,
343 F.3d at 1092. This tailoring inquiry “ensures the state’s
contribution limits are not lower than needed to accomplish
the state’s goal of preventing quid pro quo corruption or its
appearance.” Lair II, 798 F.3d at 740 n.4. In conducting this
inquiry, courts owe significant deference to the legislative
process. As Buckley explained, courts have “no scalpel to
probe” these legislative judgments, so “distinctions in degree

5
In reaching the contrary conclusion, the dissent points to no case –
and we are aware of none – where the risk of actual or apparent corruption
was inadequate to justify contribution limits of some level. The plaintiffs
themselves concede Montana’s pre-Initiative 118 limits satisfy the First
Amendment. Under the dissent’s logic, however, Montana’s evidence is
inadequate to justify any contribution limits whatsoever, no matter how
high. See Eddleman, 343 F.3d at 1092 (explaining that the valid interest
analysis is divorced from whether the state has justified the particular
dollar amount of the limits at issue). On this record, that unprecedented
conclusion is simply untenable.
 LAIR V. MOTL 21

become significant only when they . . . amount to differences
in kind.” 424 U.S. at 30 (citation omitted). Thus, “the dollar
amounts employed to prevent corruption should be upheld
unless they are ‘so radical in effect as to render political
association ineffective, drive the sound of a candidate’s voice
[below] the level of notice, and render contributions
pointless.’” Eddleman, 343 F.3d at 1094 (quoting Shrink,
528 U.S. at 397).

1. Narrow Focus

The first part of the closely drawn analysis is whether the
limits are narrowly focused on Montana’s anti-corruption
interest. We assess the “fit between the stated governmental
objective and the means selected to achieve that objective,”
McCutcheon, 134 S. Ct. at 1445, looking at whether the limits
target “the narrow aspect of political association where the
actuality and potential for corruption have been identified,”
Buckley, 424 U.S. at 28.

Here, because Montana’s limits target the kinds of
contributions most likely to be associated with quid pro quo
corruption, they satisfy the narrow focus inquiry. First, I-118
targeted only the top 10% of pre-1994 contributions in
Montana – the high-end contributions most likely to result in
actual or perceived corruption. See Eddleman, 343 F.3d at
1094. We relied on this fact in Eddleman to conclude the
limits were narrowly focused. See id. Because the I-118
limits were not indexed to inflation when Eddleman was
decided, moreover, today’s limits affect an even smaller
percentage of contributions at the top of the range than they
did at that time.
22 LAIR V. MOTL

Second, Montana places the strictest limits on direct
monetary contributions to candidates – the type of largesse
most likely to effect actual or perceived corruption. See
Shrink, 528 U.S. at 393–94 (focusing on direct contributions
in discussing the evidence of corruption justifying Missouri’s
contribution limits). Political party contributions – i.e.,
indirect contributions – are capped tens of thousands of
dollars higher. Cf. Randall, 548 U.S. at 256 (plurality
opinion) (imposing the same limits on individuals and
political parties cuts against upholding the limits). Moreover,
Montana’s “statute in no way prevents [individuals and]
PACs from affiliating with their chosen candidates in ways
other than direct contributions, such as donating money to a
candidate’s political party, volunteering [their] services,
sending direct mail to their supporters, or taking out
independent newspaper, radio, or television ads to convey
their support.” Eddleman, 343 F.3d at 1094. This, too, shows
tailoring for the type of contribution most likely associated
with dollars-for-favors exchanges, without unnecessarily
curtailing other forms of political expression.

The plaintiffs argue Montana could accomplish its goals
with higher limits, but they seek a level of constitutional
precision the Supreme Court has never required – Montana
need not “fine tune” its limits to stay within the First
Amendment’s boundaries. As Buckley explained,

Appellants’ first overbreadth challenge . . .
rests on the proposition that most large
contributors do not seek improper influence
. . . . Although the truth of that proposition
may be assumed, it does not undercut the
validity of the $1,000 contribution limitation.
Not only is it difficult to isolate suspect
 LAIR V. MOTL 23

contributions, but, more importantly,
Congress was justified in concluding that the
interest in safeguarding against the
appearance of impropriety requires that the
opportunity for abuse inherent in the process
of raising large monetary contributions be
eliminated.

A second, related overbreadth claim is that the
$1,000 restriction is unrealistically low
because much more than that amount would
still not be enough to enable an unscrupulous
contributor to exercise improper influence
. . . . While the contribution limitation
provisions might well have been [higher in
some cases], Congress’ failure to engage in
such fine tuning does not invalidate the
legislation.

424 U.S. at 29–30. Here, especially given that the plaintiffs
do not dispute the constitutionality of the pre-1994 limits,
they ask us to police a “distinction[] in degree,” not a
“difference[] in kind.” Id. at 30 (noting the difference
between $1,000 and $2,000 was a distinction in degree). This
is a legislative judgment we decline to second guess.6

6
At oral argument, the plaintiffs contended Montana must justify the
change between the pre-1994 limits and today’s limits. Every
contribution limit case of which we are aware, however, evaluates the
current limits, and the plaintiffs point to no authority suggesting
otherwise. In Randall, for example, the Court evaluated Vermont’s
existing limits without discussing whether the change from Vermont’s
previous regime was justified. See 548 U.S. at 237, 239, 248–63 (plurality
opinion). Even if the change in limits were relevant, for the reasons we
have discussed the difference between the pre-1994 limits and today’s
24 LAIR V. MOTL

We acknowledge Montana’s chosen dollar amounts might
appear low, but they are not constitutionally suspect. First,
Montana’s limits are not an outlier compared to other states’
limits:

Table 4: 2015–2016 Limits on Contributions to
Gubernatorial Candidates7

State Limit
Montana $1320 per cycle
Alaska $1000 per cycle
Colorado $1150 per cycle
Delaware $1200 per cycle
Massachusetts $1000 per calendar year
Rhode Island $1000 per calendar year

Second, even if the limits are low in absolute terms, they
are quite reasonable compared to the low cost of campaigning
in the state. Montana to the present is “one of the least
expensive states in the nation in which to run a political
campaign.” Eddleman, 343 F.3d at 1094. When contribution
limits are viewed in relation to the cost of campaigning for a
state house seat, Montana’s limits are proportionally higher

limits is not constitutionally significant. See Buckley, 424 U.S. at 30.
7
See Nat’l Conf. of State Legs., State Limits on Contributions to
Candidates 2015–2016 Election Cycle (July 31, 2015), www.ncsl.org/r
esearch/elections-and-campaigns/state-limits-on-contributions-to-
candidates.aspx.
 LAIR V. MOTL 25

than both the federal limits and those of 12 other states.8
Table 5 shows contribution limits relative to the cost of
campaigning in the nine states within the Ninth Circuit:

Table 5: Maximum Contributions as a Percentage of

Total Fundraising in 2010 State House Races9

State Avg. Total Limit Ratio
Montana $8,231 $320 3.89%
Alaska $36,870 $1000 2.71%
Arizona $37,411 $410 1.1%
California $355,789 $7800 2.19%
Hawaii $26,956 $2000 7.42%
Idaho $17,245 $2000 11.6%
Nevada $74,634 $10,000 13.4%
Oregon $116,536 none n/a
Washington $85,039 $1600 1.88%

8
For state senate races, Montana’s limits are proportionally higher
than both the federal limits and those of 14 other states.
9
For simplicity’s sake, the term “state house” refers to the lower
chamber of the state legislature, even if a given state calls its lower
chamber something else.
26 LAIR V. MOTL

Montana’s limits are low only if we ignore the low cost of
campaigning in the state. Once that reality is factored in,
Montana’s limits fit well within the mainstream.

Third, Montana’s limits are reasonable compared to the
size of a typical contribution in Montana. In 2010 state house
races, for example, the average individual contributed about
$90, when the per cycle limit was $320. In the 2008 race for
governor, the typical contribution was only $185, when the
per cycle limit was $1200. Thus, in addition to targeting only
the top 10% of contributions, the limits do not come close to
curtailing the average contributor’s participation in
campaigns.

Fourth, Montana’s limits are reasonably keyed to the
actual evidence showing a risk of corruption in Montana. In
his “burn after reading” letter, written shortly before I-118
was passed, Senator Anderson suggested a political action
committee could obtain political favors from an entire block
of legislators through contributions totaling just $8,000. Even
adjusted for inflation, that is only a few hundred dollars per
legislator. If such contributions can corrupt the legislative
process, Montana’s limits are anything but an exaggerated
response to the risk of actual or perceived corruption that
exists in the state.

We should not – and indeed cannot – be in the business of
fine tuning contribution limits for states. These judgments
are for state lawmakers to make (including voters acting
through the initiative process). As judges, our limited role is
to ensure that a state chooses limits that are not “so radical in
effect as to render political association ineffective, drive the
sound of a candidate’s voice below the level of notice, and
render contributions pointless.” Shrink, 528 U.S. at 397.
 LAIR V. MOTL 27

Because Montana’s limits satisfy this standard, we hold they
are narrowly focused.

The district court concluded otherwise because, in the
1994 Voter Information Pamphlet attached to I-118, the
initiative’s sponsors argued “[t]here is just way too much
money in Montana politics” and urged voters to pass I-118 to
prevent “[m]oney from special interests and the wealthy”
from “drowning out the voice of regular people,” reasons
that are inadequate to justify contribution limits under
McCutcheon. The district court thus concluded the Montana
voters who approved I-118 acted with an impermissible
motive, meaning the limits “could never be said to focus
narrowly on a constitutionally-permissible anti-corruption
interest.” Lair, 189 F. Supp. 3d at 1035. We disagree.

The district court incorrectly cast the narrow focus test as
a motive inquiry that looks at the voters’ underlying intent
when they enacted the limits. The narrow focus test,
however, is a tailoring test, not a motive test. It measures
how effectively the limits target corruption compared to how
much they inhibit associational freedoms – i.e., whether the

limitation focuses precisely on the problem of
large campaign contributions – the narrow
aspect of political association where the
actuality and potential for corruption have
been identified – while leaving persons free to
engage in independent political expression, to
associate actively through volunteering their
services, and to assist to a limited but
nonetheless substantial extent in supporting
candidates and committees with financial
resources.
28 LAIR V. MOTL

Buckley, 424 U.S. at 28; see Eddleman, 343 F.3d at 1094
(analyzing fit without reference to underlying voter intent).
We are aware of no case looking to underlying legislative or
voter intent in making this evaluation. Although there is
some logic that the sponsors’ goal behind I-118 reveals
something about the limits’ fit, the actual content and effect
of the limits – which, as discussed, target the contributions
most likely to generate corruption or its appearance – better
show their tailoring. We therefore disapprove the district
court’s reasoning.

2. Contributors’ Ability to Affiliate with Candidates

The closely drawn inquiry next assesses whether the
contribution limits “leave the contributor free to affiliate with
a candidate.” Eddleman, 343 F.3d at 1092. Montana not only
permits such affiliation through direct monetary
contributions, but also “in ways other than direct
contributions, such as donating money to a candidate’s
political party, volunteering . . . , sending direct mail . . . , or
taking out independent newspaper, radio, or television ads to
convey . . . support.” Id. at 1094. The plaintiffs effectively
concede that contributors may associate with candidates,
arguing only that some contributors would like to give more
than the limits allow. Thus, Montana’s limits satisfy prong
two of the closely drawn analysis.

3. Candidates’ Ability to Campaign Effectively

The final part of the closely drawn inquiry asks whether
Montana’s limits prevent candidates from amassing sufficient
resources to campaign effectively. Eddleman held they did
not, see 343 F.3d at 1095, and we see no reason to reach a
different conclusion.
 LAIR V. MOTL 29

To begin with, the evidence from Montana candidates
shows the limits do not prevent effective campaigning.
Montana Secretary of State Mark Cooney testified, “I don’t
feel that the limitations . . . have been harmful to my
candidacy at all.” Representative Harper testified the limits
had “[j]ust negligible effects” on his campaigns. Another
candidate testified he raised more money after the limits were
in place than before. Although one candidate initially
testified the limits made it “more difficult” for him to raise
enough money, he later clarified he “didn’t mean that [his
campaigns] were ineffective.” He explained, “I mean I did
what I had to to win. If my opponents would have been
tougher and I felt that I needed to, I would have raised more
money, gone out and done the work that I needed to to run
that effective campaign.”

One candidate witness (Mike Miller) did suggest the
limits made his campaigns ineffective, but the facts belie his
claim. Between 2008 and 2014, Miller’s campaigns received
maxed-out contributions from only seven of his
approximately 200 contributors, and Miller won all four of
his elections.

Statistical data confirm that the limits do not prevent
effective campaigning. Plaintiffs’ expert Clark Bensen
opined that “a high proportion of maxed-out donors” would
be an indicator that “the limits were too low.” Suppl.
Excerpts R. 109 (“Bensen Report”). In Montana, however,
maximum contributions are relatively rare. In 2010 state
house and senate races, for example, 85% of individual
30 LAIR V. MOTL

contributors gave less than the statutory limit.10 Political
parties contributed below the limit 78% of the time. Numbers
from other years and other races are comparable. This low
proportion of maximum contributions shows the limits do not
unduly inhibit candidate fundraising.

The plaintiffs argue competitive elections provide the
proper context for evaluating contribution limits, and they
point out that the percentage of maximum contributions in
competitive elections is higher, about 29%. The plaintiffs are
correct that the plurality opinion in Randall focused on
competitive races rather than average ones. See 548 U.S. at
255–56. But this focus was based on the potential advantage
contribution limits might grant incumbents in competitive
races. See id. Because these races tend to be more
expensive, challengers may need to rely on large
contributions more than incumbents do, so overly strict limits
could disproportionately affect challengers. See id. at 256.

The plaintiffs, however, have not shown this problem
exists in Montana. Incumbents and challengers in
competitive races have virtually the same percentage of
maxed-out contributors. See Bensen Report at 101 (“There
was very little difference with respect to incumbency [versus
challengers]” as to who relied on maximum or near maximum
contributions in competitive races.); cf. Randall, 548 U.S. at
253–55 (citing to an expert report, also by Clark Bensen,
showing Vermont’s contribution limits significantly reduced
challenger fundraising in competitive races). Indeed, we
noted in Eddleman that “the average gap between the total

10
1,402 maximum donations; 4,469 donations below the maximum
but above the $35 reporting threshold; estimated 3,768 donations below
the $35 threshold, assuming an average contribution of $20.
 LAIR V. MOTL 31

amount of money raised by incumbents and challengers for
all legislative races was only $65.00 per race.” 343 F.3d at
1095.

Three other circumstances underscore the tailoring of
Montana’s limits to avoid unduly favoring incumbents. First,
Montana permits political parties to contribute far more than
individuals and PACs. As the plaintiffs’ own expert testified,
political parties give predominantly to challengers in
Montana, whereas PACs contribute more often to
incumbents. In Randall, by contrast, Vermont imposed
identical limits on parties, individuals and PACs, reflecting
an incumbency bias cutting against the limits’
constitutionality. See 548 U.S. at 256–57 (plurality opinion).
Second, Montana’s limits apply per election, rather than per
cycle, meaning a contributor may give up to the limit twice if
a candidate runs in a contested primary. Because challengers
generally face contested primaries more often than
incumbents, per election limits mitigate the incumbent
fundraising advantage. This, too, distinguishes this case from
Randall, where Vermont’s per cycle limits were a “danger
sign” of the limits’ unconstitutionality. See id. at 249. Third,
by prohibiting “incumbents from using excess funds from one
campaign in future campaigns,” Montana “keeps incumbents
from building campaign war chests and gaining a fundraising
head start over challengers.” Eddleman, 343 F.3d at 1095.
The anti-challenger bias that animated the plurality in
Randall simply is not present here.

In sum, challengers and incumbents alike remain capable
of running effective campaigns in Montana. Even if some
candidates might prefer to seek fewer, larger contributions to
meet their fundraising needs (rather than more numerous,
smaller contributions), when “a candidate is merely required
32 LAIR V. MOTL

‘to raise funds from a greater number of persons and to
compel people who would otherwise contribute amounts
greater than the statutory limits to expend such funds on
direct political expression,’ the candidate’s freedom of speech
is not impugned by limits on contributions.” Id. at 1091
(quoting Buckley, 424 U.S. at 21–22). We hold Montana’s
limits do not prevent candidates from amassing sufficient
resources to campaign effectively.

* * *

Montana’s limits are closely drawn to further the state’s
important interest in preventing actual or perceived quid pro
quo corruption. Montana has shown the risk of quid pro quo
corruption in Montana is not illusory. Its chosen contribution
limits are narrowly focused; they do not prevent contributors
from affiliating with the candidates of their choosing; and
they do not prevent candidates from raising the money
needed for effective campaigning, whether the candidate is an
incumbent or challenger and whether the race is competitive
or average. We hold, therefore, that Montana’s limits survive
First Amendment scrutiny. The district court erred by
holding otherwise.

C. Randall

Even if we were wrong in Lair II to hold Eddleman
controls our evaluation of Montana’s contribution limits, we
would reach the same conclusion under the plurality’s
decision in Randall. The Randall test first looks for “danger
signs” that the limits prevent candidates from raising enough
money to be heard and challengers from raising enough to
compete against incumbents. See 548 U.S. at 249–52
(plurality opinion). The plurality found four such “danger
 LAIR V. MOTL 33

signs” in Vermont’s limits: “(1) The limits are set per
election cycle, rather than divided between primary and
general elections; (2) the limits apply to contributions from
political parties; (3) the limits are the lowest in the Nation;
and (4) the limits are below those we have previously
upheld.” Id. at 268 (Thomas, J., concurring in the judgment)
(listing the plurality’s “danger signs”).

If these “danger signs” exist, a court then assesses

“five sets of considerations” to determine
whether the statute was closely drawn:
(1) whether the “contribution limits will
significantly restrict the amount of funding
available for challengers to run competitive
campaigns”; (2) whether “political parties
[must] abide by exactly the same low
contribution limits that apply to other
contributors”; (3) whether “volunteer
services” are considered contributions that
would count toward the limit; (4) whether the
“contribution limits are . . . adjusted for
inflation”; and (5) “any special justification
that might warrant a contribution limit so low
or so restrictive.” [Randall, 548 U.S.] at
253–62.

Lair II, 798 F.3d at 743 (first alteration in original) (citations
omitted).

The motions panel in Lair I addressed each of these
“danger signs” and “considerations” at length, concluding
that Randall likely “would not have mandated a different
result in Eddleman.” 697 F.3d at 1208; see id. at 1208–13.
34 LAIR V. MOTL

We agree. Montana’s limits apply per election, not per cycle.
The lowest limits do not apply to political parties. The limits
are not the lowest in the nation; they are higher than Alaska’s
($1000 per cycle for governor), Colorado’s ($1150),
Delaware’s ($1200) and arguably Massachusetts’ ($1000 per
calendar year) and Rhode Island’s ($1000 per calendar year).
Although Montana’s limits are lower in absolute terms than
those the Court has previously upheld, they are significantly
higher than those the Court struck down in Randall ($400 per
cycle for governor). They are also higher as a percentage of
the cost of campaigning than the federal limits Buckley
upheld.11 Montana’s limits do not favor incumbents or
prevent challengers from fundraising effectively. Political
parties may contribute far more than individuals and PACs;
they also may provide campaigns with paid staffers, whose
wages are not counted against the party’s contribution limits.
See Mont. Admin. R. 44.11.225(3). Contributors may
volunteer for campaigns and otherwise express their support
in ways beyond direct contributions. Finally, Montana’s

11
As discussed above, Montana’s limits are particularly modest when
the cost of campaigning is taken into account – a useful way to measure
a maximum contribution’s impact on a campaign. A maximum
contribution in Montana accounted for 3.89% of the total amount a 2010
state house candidate raised. This percentage was higher than the
percentage for the federal limits (0.5% across all House of Representatives
races), the dollar amounts of which the Court approved in Buckley.
Montana’s limits are also proportionally higher than those in Alaska
(2.71%), Arizona (1.1%), California (2.19%), Colorado (1.1%),
Connecticut (2.19%), Delaware (1.91%), Florida (0.87%), Massachusetts
(2.14%), Michigan (0.94%), Tennessee (3.78%), Washington (1.88%) and
Wisconsin (2.98%). Thus, although Montana’s limits are on the low side
in absolute terms – but not an outlier – they are relatively high given the
low cost of campaigning in the state.
 LAIR V. MOTL 35

limits are adjusted for inflation. Accordingly, Montana’s
contribution limits would survive scrutiny even if Randall
governed.

IV. Conclusion

Our Constitution permits contribution limits to serve the
narrow but vital purpose of preventing actual or apparent quid
pro quo corruption in politics. Because the limitations
imposed by Montana Code Annotated § 13-37-216 both
further that interest and are adequately tailored to it, they
satisfy the First Amendment.

REVERSED.

BEA, Circuit Judge, dissenting:

Our representative government requires and relies on the
ready flow of ideas between elected legislators and the voters.
Those ideas are mostly transmitted during election campaigns
by advertisements and organized rallies, examples of free
speech, neither of which come free. Contributors to the
campaigns want their ideas made known and accepted by the
campaigning legislators. Restrictions on citizens’ campaign
contributions limit their ability to make their ideas known and
to influence the legislators to accept and further those ideas.
For these reasons, our First Amendment law permits limits on
such contributions only if the restrictions are closely drawn
to a valid, important state interest. Courts must carefully
scrutinize such limitations. See McCutcheon v. FEC, 134 S.
Ct. 1434, 1451 (2014) (“the First Amendment requires us to
err on the side of protecting political speech rather than
36 LAIR V. MOTL

suppressing it” (citation omitted)). Here, the district court
properly evaluated the evidence submitted by Montana’s
officials and found the officials had not established the only
constitutionally permissible and valid state interest sufficient
to justify Montana’s campaign contribution limits: the
prevention of corruption or its appearance. Thus, I
respectfully dissent.

In Montana Right to Life v. Eddleman, 343 F.3d 1085,
1092 (9th Cir. 2003), we upheld Montana’s campaign
contribution limits under a two-part test: 1) the contribution
limits must respond to a valid important state interest and
2) the contribution limits must be closely drawn to that
interest. In that decision, we recognized that discouraging
“undue influence” gained over legislators by contributors
through their contributions could be a valid important state
interest. 343 F.3d at 1096–97. As we recognized in Lair v.
Bullock, 798 F.3d 736, 747 (9th Cir. 2015), the Supreme
Court’s plurality decision in Randall v. Sorrell, 548 U.S. 230
(2006), which held Vermont’s campaign contribution limits
unconstitutional under the First Amendment, did not alter
Eddleman’s framework because no opinion received the
support of a majority of the justices.

If Citizens United had not been decided the way it was,
the Montana officials’ claims here of a valid important state
interest would make this an easy case for reversal. But
Citizens United changed all that because it narrowed what can
constitute a valid important state interest (at Eddleman’s first
step) to only the state’s interest in eliminating or reducing
quid pro quo corruption or its appearance. The Supreme
Court explained in FEC v. National Conservative Political
Action Committee that “[t]he hallmark of corruption is the
financial quid pro quo: dollars for political favors.” 470 U.S.
 LAIR V. MOTL 37

480, 497 (1985). The mere prevention of influence on
legislators by contributors is now not a valid important state
interest that could justify campaign contribution limits.
Citizens United v. FEC, 558 U.S. 310, 359 (2010); see also
McCutcheon, 134 S. Ct. at 1441. As such, only the avoidance
of corruption or the appearance of corruption remain as a
state interest valid and important enough to limit the free
speech rights of contributors exercised through their
contributions to their legislators.

To establish this sole valid important state interest
defendants here must demonstrate that the existence of actual
or apparent quid pro quo corruption is more than “mere
conjecture” and is not “illusory.”1 Eddleman, 343 F.3d at
1092. While an appellate court’s review of a district court’s
factual findings is more rigorous in the First Amendment

1
A common sense understanding of quid pro quo corruption suggests
that it is limited to exchanges in which a politician personally pockets
money in exchange for an official action that violated the politician’s
obligations of office. The notion that contributions to a candidate’s
campaign fund, one of the key mechanisms by which constituents
influence their elected representatives, could ever constitute part of an
improper exchange for an official act seems implausible since the
contribution of funds to a campaign to effect influence is their expected
and proper purpose. Despite this, the Supreme Court has earlier
recognized that quid pro quo corruption includes occasions when
“[e]lected officials are influenced to act contrary to their obligations of
office by the prospect of financial gain to themselves or infusions of
money into their campaigns.” McCutcheon, 134 S. Ct. at 1460–61
(quoting FEC v. Nat’l Conservative Political Action Comm., 470 U.S. at
497 (emphasis added)). As such, under Supreme Court precedent
contributions made for the permissible purpose of influencing legislators
can apparently constitute quid pro quo corruption in certain circumstances.
Such influence is improper corruption when, in fact, the legislator acts
contrary to his legal obligation(s). In our record, there is no evidence of
such an illegal act.
38 LAIR V. MOTL

context, our prior precedent has confirmed that we still
review such factual findings with some deference. See
Newton v. Nat’l Broad. Co., 930 F.2d 662, 670 (9th Cir.
1990) (“[W]e must simultaneously ensure the appropriate
appellate protection of First Amendment values and still defer
to the findings of the trier of fact.”); see also Planned
Parenthood of Columbia/Willamette, Inc. v. Am. Coal. of Life
Activists, 290 F.3d 1058, 1066–70 (9th Cir. 2002). Because
the district court entered judgment on cross motions for
summary judgment, however, a de novo standard of review
as to the existence of a material triable issue of fact properly
applies here.

A close examination of relevant evidence from the record
makes clear that the district court’s finding that defendants
failed to carry their burden to prove the appearance or
existence of quid pro quo corruption at the first step of
Eddleman, as narrowed by Citizens United, was correct even
if reviewed under a de novo standard. That is because the
record here is devoid of any evidence of exchanges of dollars
for political favors – much less for any actions contrary to
legislators’ obligations of office – or any reason to believe the
appearance of such exchanges will develop in the future.

First, consider the letter sent by Senator Mike Anderson
to his party-colleagues, urging them to vote for a bill so that
money from certain political action committees would
continue to flow to the Republican Party’s coffers. None of
the record evidence shows that any legislator accepted the
deal articulated by Senator Anderson and, despite five
separate investigations, Anderson himself was never found to
have engaged in any unlawful practices. Eddleman, 343 F.3d
at 1093. Rather than actual or apparent quid pro quo
corruption, the event shows rejection of temptation. Next,
 LAIR V. MOTL 39

consider the offer to contribute $100,000 to the Republican
Legislative Campaign Committee in exchange for Republican
legislators’ support for a right-to-work bill, as testified to by
Senator Bruce Tutvedt. This offer also did not constitute quid
pro quo corruption because the Republican legislators
rejected it. Further, they likely would have introduced and
supported such a right-to-work bill regardless of this offer, as
it was consistent with their political party’s policy position.
More importantly, even had certain legislators accepted these
offers (as Representative Hal Harper’s generalized testimony
suggests sometimes occurred), such actions would appear to
constitute nothing more than the trading of influence and
access, which are critical mechanisms through which our
political system responds to the needs of constituents. See
Citizens United, 130 S. Ct. at 910 (“that speakers may have
influence over or access to elected officials does not mean
that these officials are corrupt”).

Similarly, the Montana state court decisions referenced by
defendants do not establish actual or apparent quid pro quo
corruption. These include:

• The Montana Supreme Court held in 2013 that a Public
Service Commissioner unlawfully accepted financial gifts
from power companies that “would tend to improperly
influence a reasonable person in [the Commissioner’s]
position,” a number of which payments the Commissioner
returned to the contributor shortly after they were
received. Molnar v. Fox, 301 P.3d 824, 832 (Mont.
2013).

• Two Montana state trial court decisions found that two
2010 legislative primary candidates violated state
campaign finance laws by accepting corporate
40 LAIR V. MOTL

contributions in return for promising 100 percent support
for the corporations’ agenda and without properly
reporting such contributions. Comm’r of Political
Practices v. Boniek, XADV-2014-202 (1st Jud. Dist.
Mont. 2015); Comm’r of Political Practices v. Prouse,
DDV-2014-250 (1st Jud. Dist. Mont. 2016).

None of these cases involved bribery or the improper trading
of official acts by violating a legislator’s legal obligations for
monetary contributions. Two of these cases (Boniek and
Prouse) were default judgments against individuals who
never even made it to a general election (each lost in the
Republican primaries), making quid pro quo corruption in
each circumstance impossible as neither candidate ever held
any office from which to grant official favors. Although the
Montana court that adjudicated Boniek and Prouse labeled the
conduct in both of these cases as “corruption,” the court did
not delineate which official actions taken by defendants in
these cases constituted an illegal official act, define what
“corruption” meant in this context, or explain how this
finding was related to the legal claims against defendants
before that court. Moreover, defendants Boniek and Prouse
already held out-spoken conservative positions on issues like
right-to-work, abortion, guns, and government, meaning that
any official acts they may have taken to further the interests
of conservative contributors had they been elected would
have been consistent with their longstanding policy positions
and not primarily motivated as an exchange of an illegal
official act for campaign contributions.

Finally, the declaration of Montana’s Commissioner of
Political Practices (Jonathan Motl) that numerous cases of
quid pro quo corruption occurred in Montana was rebutted by
sworn declarations from the very politicians and political
 LAIR V. MOTL 41

candidates who, according to Motl, engaged in quid pro quo
corruption. Given defendant Motl’s position as
Commissioner of Political Practices, which gives him broad
authority to investigate political misdeeds, see Montana Code
Annotated § 13-37-111, it is surprising, to say the least, that
the only enforcement actions against purported quid pro quo
corruption in Montana cited by defendants are the above-
referenced, non-starter cases for violations of campaign
finance or ethics rules. One would expect that if quid pro quo
corruption was as widespread as Commissioner Motl asserts,
he could point at least to some actual court convictions for
bribery or other forms of quid pro quo corruption.

Taken together, a detailed examination of the evidence
offered by defendants establishes that the district court
concluded correctly that the record evidence failed to prove
any actual quid pro quo corruption. This still leaves the
possibility that the evidence in the record establishes the
appearance of corruption in Montana. As Buckley v. Valeo
explained, “[o]f almost equal concern as the danger of actual
quid pro quo arrangements is the impact of the appearance of
corruption stemming from public awareness of the
opportunities for abuse inherent in a regime of large
individual financial contributions.” 424 U.S. 1, 27 (1976);
see also McCutcheon, 134 S. Ct. at 1450. In other words, the
appearance of quid pro quo corruption is the “public
awareness of the opportunities for abuse.” For the very
reasons discussed above, however, none of the record
evidence establishes the existence of any opportunity for quid
pro quo corruption or other abuses. Where is the evidence
that a legislator caused the re-routing of a freeway to benefit
a commercial landowner, who had paid the legislator’s
vacation travels? Where is the evidence that an airport
construction contractor was awarded a contract, and had
42 LAIR V. MOTL

remodeled the legislator’s home at little or no cost to the
legislator? Rather, the record makes clear that Montana
politicians often rejected even efforts by certain interests to
influence or access legislators, that even seemingly minor
violations of campaign finance laws by unelected primary
candidates were rigorously punished, and that Montana’s
Commissioner of Political Practices consistently reviewed the
propriety and legality of the actions of politicians, political
candidates, and various interest groups. In other words, the
only reasonable inference that may be drawn from the record
evidence is that there were few opportunities for abuse and,
therefore, scant public awareness of such opportunities. As
such, on this record the existence of actual or apparent quid
pro quo corruption is, at best, “illusory” or “mere conjecture,”
such that defendants have not met their burden to establish a
valid important state interest to justify the contribution limits
at issue in this lawsuit. Eddleman, 343 F.3d at 1092.

While it is admittedly difficult at times to distinguish
between proscribed corruption and acceptable influence,
given the important First Amendment interests at stake when
restricting political speech we are obliged to scrutinize
carefully whether a valid important state interest exists before
upholding the constitutionality of such restrictions. See
McCutcheon, 134 S. Ct. at 1451 (“The line between quid pro
quo corruption and general influence may seem vague at
times, but the distinction must be respected in order to
safeguard basic First Amendment rights.”). Although there
is admittedly some common sense to the notion that limiting
the amount of money citizens may contribute to political
candidates inherently forestalls corruption, because so doing
also restricts speech our federal constitution requires a greater
evidentiary showing than made on this record before a state
may restrict political speech through campaign contribution
 LAIR V. MOTL 43

limits. While the panel majority’s opinion pays lip service to
the changes in the Eddleman framework rendered by Citizens
United, the contents of its analysis at Eddleman’s first step
demonstrate it has failed to account substantively for this
change.

In footnote 5, the majority opinion notes that “[u]nder the
dissent’s logic…Montana’s evidence is inadequate to justify
any contribution limit whatsoever, no matter how high.” This
is quite correct. Absent a showing of the existence or
appearance of quid pro quo corruption based on objective
evidence, the presence of a subjective sense that there is a risk
of such corruption or its appearance does not justify a limit on
campaign contributions. Restrictions on speech must be
based on fact, not conjecture.

Because I do not think defendants established the
existence of a valid important state interest at step one of the
Eddleman framework, I respectfully dissent.