Doug Lair v. Steve Bullock

FILED
FOR PUBLICATION OCT 16 2012

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

DOUG LAIR; STEVE DOGIAKOS; No. 12-35809
AMERICAN TRADITION
PARTNERSHIP; AMERICAN D.C. No. 6:12-cv-00012-CCL
TRADITION PARTNERSHIP PAC;
MONTANA RIGHT TO LIFE
ASSOCIATION PAC; SWEET GRASS OPINION
COUNCIL FOR COMMUNITY
INTEGRITY; LAKE COUNTY
REPUBLICAN CENTRAL
COMMITTEE; BEAVERHEAD
COUNTY REPUBLICAN CENTRAL
COMMITTEE; JAKE OIL, LLC; JL OIL,
LLC; CHAMPION PAINTING; JOHN
MILANOVICH,

Plaintiffs - Appellees,

v.

STEVE BULLOCK, in his official
capacity as Attorney General of the State
of Montana; JAMES MURRY, “Jim”, in
his official capacity as Commissioner of
Political Practices; LEO GALLAGHER, in
his official capacity as Lewis and Clark
County Attorney,

Defendants - Appellants.

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

Submitted to Motions Panel October 15, 2012

Before: GOULD, CLIFTON, and BYBEE, Circuit Judges.

Opinion by Judge Bybee

BYBEE, Circuit Judge:

Since 1994, Montana has regulated the amount that individuals, political

committees, and political parties can contribute to candidates for state office.

Mont. Code Ann. § 13-37-216, as adjusted by Admin. R. Mont. § 44.10.338.1 In

2003, we upheld this provision against a constitutional challenge based on Buckley

v. Valeo, 424 U.S. 1 (1976), and Nixon v. Shrink Missouri Government PAC, 528

U.S. 377 (2000). Mont. Right to Life Ass’n v. Eddleman, 343 F.3d 1085 (9th Cir.

2003), cert. denied, 543 U.S. 812 (2004). Applying the “analytical framework set

forth in Buckley and [Shrink Missouri],” we held that “Montana’s interest in

purging corruption and the appearance of corruption from its electoral system is

sufficiently important to withstand constitutional scrutiny” and that § 13-37-216

was “closely tailored to achieving those ends.” Id. at 1098. We concluded that

§ 13-37-216 was “constitutional and [did] not violate the First Amendment.” Id.

1
We have attached Mont. Code Ann. § 13-37-216 (“Appendix A”) and
Admin. R. Mont. § 44.10.338 (“Appendix B”) as appendices to this opinion.

2
 On October 3, 2012, with less than five weeks before the general election

and after absentee voting in Montana began, the district court concluded that

“Montana’s contribution limits in Montana Code Annotated § 13-37-216 are

unconstitutional under the First Amendment.” Order, Lair v. Murry, No. CV 12-

12-H-CCL, at 4 (D. Mont. Oct. 3, 2012) [hereinafter Order]. The district court

permanently enjoined Montana from enforcing its campaign contribution limits.

Id. at 5. In an opinion and order issued on October 10, 2012, the district court

explained that our decision in Eddleman was “not binding on this Court because

the U.S. Supreme Court’s intervening decision in Randall [v. Sorrell, 548 U.S. 230

(2006),] compels a different outcome.” Opinion and Order, Lair v. Murry, No. CV

12-12-H-CCL, at 24 (D. Mont. Oct. 10, 2012).

The State of Montana has sought a stay of the district court’s order pending

appeal. For the reasons we explain below, we believe that the state is likely to

succeed on appeal. We conclude that the State of Montana has made a strong

showing that a merits panel of this Court will likely conclude that, absent en banc

proceedings or an intervening decision of the Supreme Court, we remain bound by

our decision in Eddleman. See Miller v. Gammie, 335 F.3d 889, 892–93 (9th Cir.

2003) (en banc). We also conclude that a merits panel is likely to hold that the

analytical framework of the Supreme Court’s decision in Randall does not alter the

3
analysis of Buckley or Shrink Missouri in a way that affects our decision in

Eddleman, for three reasons. First, there is no opinion of the Court in Randall.

Thalheimer v. City of San Diego, 645 F.3d 1109, 1127 n.5 (9th Cir. 2011) (“[T]he

plurality opinion [in Randall] [i]s persuasive authority, though not a binding

precedent.” (internal quotation marks omitted)). Second, even if we thought that

Justice Breyer’s plurality opinion represented the narrowest view of a majority of

the Court, it did not depart from the principles of Buckley and Shrink Missouri that

we applied in Eddleman. Randall, 548 U.S. at 242 (opinion of Breyer, J.) (“[T]his

Court has repeatedly adhered to Buckley’s constraints . . . .”). Third, even if we

applied Randall to § 13-37-216, we cannot find, on the basis of the district court’s

findings, reason to disagree with, much less overturn, Eddleman. In light of

Montana’s interest in regulating campaign contributions, the lack of evidence that

other parties will be substantially injured, and the public’s substantial interest in

the stability of its electoral system in the final weeks leading to an election, we will

stay the order pending the state’s appeal. See Nken v. Holder, 556 U.S. 418, 434

(2009).

I. PROCEEDINGS BELOW

The plaintiffs-appellees, various individuals, political action committees,

and other political organizations, brought suit in September 2011 to challenge

4
several provisions of Montana’s finance and election laws. The defendants-

appellants are various officials of the State of Montana. Only one provision, § 13-

37-216 of the Montana Code Annotated, which limits contributions that individuals

and political committees can make to candidates, is at issue in this case. The

district court held a bench trial on September 12-14, 2012. On October 3, 2012,

the district court issued a brief order recounting the procedural history of the suit

and the fact of the bench trial. The court stated that “[h]aving reviewed and

considered the entire record and the parties’ arguments and evidence, the Court

concludes that Montana’s contribution limits in Montana Code Annotated § 13-37-

216 are unconstitutional under the First Amendment.” Order at 4. The court

permanently enjoined the enforcement of § 13-37-216. The district court did not

issue an opinion, but stated that “complete and extensive findings of fact and

conclusions of law that support this order” would be filed separately. Order at 5.

The order was filed before it issued the findings of fact and conclusions of law “so

that th[e] order c[ould] be issued before voting begins in the upcoming election.”

Id.

The following day, October 4, 2012, the state defendants-appellants filed for

a stay pending appeal. We ordered an expedited response from the plaintiffs-

appellees, which they filed on October 9, 2012. That same day, noting that the

5
district court had not issued findings and conclusions, we found that we were

“severely constrained in [our] consideration of the underlying issues raised in the

emergency motion.” Order, Lair v. Murry, No. 12-35809, at 1 (9th Cir. Oct. 9,

2012). We nevertheless ordered that the injunction be “temporarily stayed pending

further order of the court.” Id. at 2.

The district court issued an Opinion and Order containing its findings of fact

and conclusions of law on October 10, 2012. The state filed a reply in support of

its motion for a stay on October 11, 2012.

II. STANDARD OF REVIEW

“A stay is not a matter of right. . . . It is instead ‘an exercise of judicial

discretion’ . . . [that] ‘is dependent upon the circumstances of the particular case.’”

Nken, 556 U.S. at 433 (internal citations omitted) (quoting Virginian Ry. Co. v.

United States, 272 U.S. 658, 672–73 (1926)). Judicial discretion in exercising a

stay is to be guided by the following legal principles, as distilled into a four factor

analysis in Nken: “(1) whether the stay applicant has made a strong showing that he

is likely to succeed on the merits; (2) whether the applicant will be irreparably

injured absent a stay; (3) whether issuance of the stay will substantially injure the

other parties interested in the proceeding; and (4) where the public interest lies.”

6
Id. at 434 (citing Hilton v. Braunskill, 481 U.S. 770, 776 (1987)).2 “The party

requesting a stay bears the burden of showing that the circumstances justify an

exercise of [this Court’s] discretion.” Id. at 433–34.

III. DISCUSSION

As discussed in detail below, we find that the State of Montana has satisfied

this burden. As the Nken factors illustrate, especially in light of the delicate

campaign contribution equilibrium leading up to the imminent election, we should

and will exercise our discretion to stay the district court’s order pending resolution

of the appeal by a merits panel of this court.

A. Strong Showing that Success is Likely on the Merits

The first two Nken factors “are the most critical.” Id. at 434. Regarding the

first factor, Nken held that it is not enough that the likelihood of success on the

merits is “better than negligible” or that there is a “mere possibility of relief.” Id.

(internal quotation marks omitted). Since Nken did not specify “the exact degree

of likely success that stay petitioners must show, . . . courts routinely use different

formulations to describe this [factor].” Leiva-Perez v. Holder, 640 F.3d 962, 966

(9th Cir. 2011) (per curiam). We have concluded that many of these formulations,

2
As Nken recognized, “[t]here is substantial overlap between these and the
factors governing preliminary injunctions.” Nken, 556 U.S. at 434. Compare id.,
with Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).

7
including “reasonable probability,” “fair prospect,” “substantial case on the

merits,” and “serious legal questions . . . raised,” are largely interchangeable. Id. at

967–68. All of these formulations indicate that, “at a minimum,” a petitioner must

show that there is a “substantial case for relief on the merits.” Id. at 968. The

standard does not require the petitioners to show that “it is more likely than not that

they will win on the merits.” Id. at 966.

We find that the State of Montana has met its burden to make a strong

showing that success on the merits is likely. In 2003, we specifically considered

the constitutionality of the Montana statute at question here. Eddleman, 343 F.3d

at 1092–96. Our decision in Eddleman stands as a barrier to be overcome, a barrier

that works significantly to the State of Montana’s advantage. The plaintiffs in this

case do not argue that anything has fundamentally changed in Montana political

campaigns since our decision in Eddleman that would call into question our

conclusions made in 2003. In fact, the evidence presented before the district court

in this case appears quite similar to the evidence that was presented in Eddleman.

The only change in circumstance pointed to by the plaintiffs is the Supreme

Court’s decision in Randall. The presumption is that our holding in Eddleman is

controlling in this case, see Miller, 335 F.3d at 892–93, and we find that Randall

does not overcome this presumption. Randall is not binding authority because

8
there was no opinion of the Court. Further, even if we looked to Justice Breyer’s

plurality opinion in Randall, it is not clearly irreconcilable with the pre-existing

law that we applied in Eddleman. Finally, even if we apply Randall, our limited

review suggests that Randall would not compel a result different from Eddleman.

This is particularly the case given the points of tension and possible errors that we

find on the face of the district court’s Opinion and Order. Therefore, taken as a

whole, and based upon our limited review, necessitated by the imminent election,

we conclude that the State of Montana has made a “substantial case for relief on

the merits.”

1. Whether Randall has a majority opinion

Marks v. United States held that “[w]hen a fragmented Court decides a case

and no single rationale explaining the result enjoys the assent of five Justices, the

holding of the Court may be viewed as that position taken by those Members who

concurred in the judgments on the narrowest grounds.” 430 U.S. 188, 193 (1977)

(internal quotation marks omitted). The Supreme Court has acknowledged that in

some cases “[t]his test is more easily stated than applied,” and that under certain

circumstances it may not be “useful to pursue the Marks inquiry to the utmost

logical possibility.” Nichols v. United States, 511 U.S. 738, 745–46 (1994)

(recognizing that where the application of the Marks test to a prior splintered

9
decision “ha[d] so obviously baffled and divided the lower courts that ha[d]

considered it,” there is reason to reexamine that prior decision).

Likewise, we have also held that the Marks standard is not always helpful,

and should only be applied “where one opinion can be meaningfully regarded as

narrower than another and can represent a common denominator of the Court’s

reasoning.” United States v. Rodriguez-Preciado, 399 F.3d 1118, 1140 (9th Cir.)

(internal quotation marks omitted) (citing other circuits that have held similarly),

amended by 416 F.3d 939 (9th Cir. 2005). This standard requires that the

narrowest opinion is actually the “logical subset of other, broader opinions,” such

that it “embod[ies] a position implicitly approved by at least five Justices who

support the judgment.” Id. (quoting King v. Palmer, 950 F.2d 771, 781 (D.C. Cir.

1991) (en banc)); see also United States v. Williams, 435 F.3d 1148, 1157 (9th Cir.

2006) (explaining that Marks requires us to find a “legal standard which, when

applied, will necessarily produce results with which a majority of the Court from

that case would agree”). If there is no such narrow opinion, “the only binding

aspect of a splintered decision is its specific result.” Rodriguez-Preciado, 399 F.3d

at 1140.

Randall is the epitome of a splintered decision. Although six Justices

ultimately concurred in the judgment, the case generated six opinions, four of

10
which were required for the six Justices to concur in the judgment. Since the

opinions of both Justices Kennedy and Thomas would revisit—or, as preferred by

Justices Thomas and Scalia, overrule—Buckley, Justice Breyer’s plurality decision

offers the narrowest rationale in support of the judgment. See Randall, 548 U.S. at

265 (Kennedy, J., concurring in the judgment) (“Viewed within the legal universe

we have ratified and helped create, the result the plurality reaches is correct; given

my own skepticism regarding that system and its operation, however, it seems to

me appropriate to concur only in the judgment.”); id. at 265–66 (Thomas, J.,

concurring in the judgment) (“Although I agree with the plurality that [the

Vermont contribution limit statute] is unconstitutional, I disagree with its rationale

for striking down that statute. . . . I continue to believe that Buckley provides

insufficient protection to political speech, the core of the First Amendment. . . .

[S]tare decisis should pose no bar to overruling Buckley and replacing it with a

standard faithful to the First Amendment.”).

It cannot be said, however, that Justice Breyer’s plurality opinion represents

a “common denominator of the Court’s reasoning,” enjoying the assent of five

Justices. Justices Thomas and Scalia would “overrule Buckley and subject both the

contribution and expenditure restrictions of [the Vermont statute] to strict scrutiny,

which they would fail.” Id. at 267 (Thomas, J., concurring in the judgment). Thus,

11
further consideration of Justice Kennedy’s position is irrelevant for our purposes,

since at most Justice Breyer’s rationale could only garner the assent of four

Justices. If Justice Kennedy’s position were relevant to this inquiry, however, his

“skepticism regarding that system and its operation,” coupled with his previously

asserted criticism of Buckley, strongly suggests that only three Justices assented to

Justice Breyer’s rationale. Id. at 265 (Kennedy, J., concurring in the judgment);

see also Shrink Missouri, 528 U.S. at 409–10 (Kennedy, J., dissenting) (“I would

overrule Buckley . . . . The First Amendment ought to be allowed to take its own

course without further obstruction from the artificial system we have imposed. It

suffices here to say that the law in question does not come even close to passing

any serious scrutiny.”).

This analysis is consistent with our previous recognition—a holding binding

upon this Court, see Miller, 335 F.3d at 892–93—that no position in

Randall garnered the support of more than three Justices. Thalheimer, 645 F.3d at

1127 & n.5 (explaining that “Justice Breyer’s plurality opinion announced the

judgment of the Court,” so “we follow the plurality opinion as persuasive

authority, though not a binding precedent” since “Justice Breyer’s plurality opinion

was [only] joined by two justices, one in full and one in part” (internal quotation

marks omitted)). The only binding aspect of Randall, then, is its judgment,

12
striking down the Vermont contribution limit statute as unconstitutional. Since

Randall is otherwise only persuasive, in this context it could not have altered the

law as previously dictated by such cases as Buckley and Shrink Missouri, the law

we expressly relied upon in Eddleman.

2. Whether Justice Breyer’s opinion alters Buckley

Even if Justice Breyer’s plurality did represent a majority opinion under

Marks, however, Randall is not irreconcilable with the principles of Buckley and

Shrink Missouri. In Miller v. Gammie, sitting en banc, we considered the question

of “when a three-judge panel may reexamine normally controlling circuit precedent

in the face of an intervening United States Supreme Court decision.” Miller, 335

F.3d at 892. We held that “where the reasoning or theory of our prior circuit

authority is clearly irreconcilable with the reasoning or theory of intervening

higher authority, a three-judge panel should consider itself bound by the later and

controlling authority, and should reject the prior circuit opinion as having been

effectively overruled.” Id. at 893. We further held that “the issues decided by the

higher court need not be identical in order to be controlling.” Id. at 900. We made

it clear that this standard applies not only to three-judge panels but also to district

courts within this circuit. Id. at 899 (describing prior circuit decisions effectively

overruled based on higher intervening authority as “no longer binding on district

13
judges and three-judge panels of this court”); see also Day v. Apoliona, 496 F.3d

1027, 1031 (9th Cir. 2007) (“The Miller standard is thus not met, and we (and the

district court) are bound by our earlier precedent.”).

Since Miller, we have elaborated on this standard. Recently, in In re Flores,

we explained that “we are bound by our prior precedent if it can be reasonably

harmonized with the intervening authority.” In re Flores, 692 F.3d 1021, 1030

(9th Cir. 2012). In that case, we explained that under Miller, we were compelled to

defer to prior circuit precedent because (1) the “overall analytical framework” of

the intervening Supreme Court case was “consistent with our overall analytical

approach” in prior circuit precedent, id. at 1030–31, and (2) the specific application

of that framework in the intervening Supreme Court case did not mandate a result

in the prior case in conflict with the decision rendered by this Court in that case.

Id. at 1030–38. As Flores’ first consideration suggests, “Miller v. Gammie . . .

instructs us to focus on the reasoning and analysis in support of a holding, rather

than the holding alone.” United States v. Lindsey, 634 F.3d 541, 550 (9th Cir.

2011); see also Miller, 335 F.3d at 900 (citing Antonin Scalia, The Rule of Law as

a Law of Rules, 56 U. Chi. L. Rev. 1175, 1177 (1989)) (favorably discussing

Justice Scalia’s assertion in a law review essay that lower courts are bound by

higher courts’ “mode of analysis,” not just their holdings).

14
 Although we should consider the intervening authority’s reasoning and

analysis, as long as we can apply our prior circuit precedent without “running

afoul” of the intervening authority, we must do so. United States v. Orm Hieng,

679 F.3d 1131, 1140 (9th Cir. 2012). It is not enough for there to be “some

tension” between the intervening higher authority and prior circuit precedent, id. at

1140–41, or for the intervening higher authority to “cast doubt” on the prior circuit

precedent, United States v. Delgado-Ramos, 635 F.3d 1237, 1239 (9th Cir. 2011).

The intervening higher precedent must be “clearly inconsistent” with the prior

circuit precedent. Orm Hieng, 679 F.3d at 1141. This is a “high standard.”

Delgado-Ramos, 635 F.3d at 1239.

Applying these principles here, it is obvious that even if Justice Breyer’s

plurality opinion were binding on this court, Randall is not “clearly irreconcilable”

with Eddleman. Miller, 335 F.3d at 893. On its face, Justice Breyer’s plurality

opinion does not purport to change the state of the law but expressly looked to

Buckley and its progeny: “Over the last 30 years, in considering the

constitutionality of a host of different campaign finance statutes, this Court has

repeatedly adhered to Buckley’s constraints . . . .” Randall, 548 U.S. at 242

(opinion of Breyer, J.); see id. at 246 (“[W]e begin with Buckley.”). Indeed, the

Breyer opinion specifically found that “[s]ince Buckley, the Court has consistently

15
upheld contribution limits.” Id. at 247. Although the Court ultimately struck down

Vermont’s contribution limits, it did so consistent with the principles announced in

Buckley.

If anything, Randall’s plurality only clarified and reinforced Buckley and its

progeny. In Randall, Justice Breyer observed that Buckley “general[ly] approv[ed]

of statutes that limit campaign contributions,” as long as the statute could

demonstrate a “sufficiently important interest.” Id. at 246–47. The importance of

Randall, then, was that the plurality affirmed Buckley, while at the same time

showing that Buckley was not a rubberstamp. Other courts and scholars have

concluded that Randall is an application of Buckley, not a repudiation.3

3
See, e.g., McNeilly v. Land, 684 F.3d 611, 617 (6th Cir. 2012) (finding that
Randall “[a]ppl[ied] Buckley” in analyzing Vermont’s contribution limit); N.C.
Right to Life, Inc. v. Leake, 525 F.3d 274, 291 (4th Cir. 2008) (describing Randall
as affirming principles laid out in Buckley in discussing a North Carolina
contribution limit); Allison R. Hayward, The Per Curiam Opinion of Steel:
Buckley v. Valeo as Superprecedent? Clues from Wisconsin and Vermont, 2006
Cato Sup. Ct. Rev. 195, 196 (describing Randall as “declin[ing] to rework Buckley
v. Valeo’s holding”); Jason B. Frasco, Note, Full Public Funding: An Effective and
Legally Viable Model for Campaign Finance Reform in the States, 92 Cornell L.
Rev. 733, 742 (2007) (“[W]ith respect to the contribution limits, the plurality again
found the principles in Buckley to be controlling.”); Aimee Priya Ghosh,
Comment, Disrobing Judicial Campaign Contributions: A Case for Using the
Buckley Framework to Analyze the Constitutionality of Judicial Solicitation Bans,
61 Am. U. L. Rev. 125, 140 (2011) (“[T]he Court recognized that
Buckley established the existence of a ‘lower bound’ under which a regulation
would be so restrictive as to violate the First Amendment.”).

16
 As Justice Breyer wrote, Buckley requires that contribution limits not

“prevent candidates from ‘amassing the resources necessary for effective

[campaign] advocacy.’” Id. at 248 (quoting Buckley, 424 U.S. at 21) (alteration in

Randall). He also emphasized that contribution limits cannot “magnify the

advantages of incumbency to the point where they put challengers to a significant

disadvantage.” Id.; see also Shrink Missouri, 528 U.S. at 403–04 (Breyer, J.,

concurring). But, as Justice Breyer said, “we have ‘no scalpel to probe’ each

possible contribution level,” so the Court “cannot determine with any degree of

exactitude the precise restriction necessary to carry out the statute’s legitimate

objectives.” Randall, 548 U.S. at 248 (opinion of Breyer, J.) (quoting Buckley, 424

U.S. at 30). Accordingly, “the legislature is better equipped to make such

empirical judgments.” Id. Randall reaffirmed Buckley’s recognition that such

deference to the legislature has a limit, that after Buckley there is a “lower bound.”

Id. at 248–49.

Randall’s discussion of “danger signs” and the plurality’s subsequent

analysis of “five sets of considerations” did not present a new test for analyzing

contribution limits; rather, this discussion only explained a mode for determining

whether the limits were “narrowly tailored” under Buckley. Id. at 249–262.

Randall stands as a warning to lower courts that Buckley does not license them to

17
approve any contribution limitation that professes an anti-corruption rationale;

instead, lower courts must carefully analyze statutes to ensure that they are

narrowly tailored. Id. at 249–50.

We took such a careful approach in Eddleman. As such, the “overall

analytical framework” in Eddleman is in harmony with Randall. In Eddleman, we

began with Buckley’s premise that contribution limits are constitutional as long as

they do not prevent candidates from “amassing the resources necessary for

effective advocacy.” Eddleman, 343 F.3d at 1091 (quoting Buckley, 424 U.S. at

21). We noted that such restrictions “are subject to the ‘closest scrutiny’” and must

be “closely drawn.” Id. (quoting Buckley, 424 U.S. at 25). We reviewed the

Court’s post-Buckley opinions and summarized the principles to be derived

therefrom.4

3. Whether Eddleman’s analysis is consistent with Randall’s analysis

4
We wrote:
The bottom line is this: After Buckley and Shrink Missouri,
state campaign contribution limits will be upheld if (1)
there is adequate evidence that the limitation furthers a
sufficiently important state interest, and (2) if the limits are
“closely drawn”—i.e., if they (a) focus narrowly on the
state’s interest, (b) leave the contributor free to affiliate
with a candidate, and (c) allow the candidate to amass
sufficient resources to wage an effective campaign.
Eddleman, 343 F.3d at 1092.

18
 Even if we thought Randall altered Buckley in some way, our decision in

Eddleman considered the same issues that were important in Justice Breyer’s

plurality opinion. The State of Montana has made a strong showing that

Randall would not have mandated a different result in Eddleman.

a. The Four “Danger Signs”

Justice Breyer’s opinion in Randall identified four “danger signs” to look for

in a campaign contribution statute: “(1) The limits are set per election cycle, rather

than divided between primary and general elections; (2) the limits apply to

contributions from political parties; (3) the limits are the lowest in the Nation; and

(4) the limits are below those we have previously upheld.” Id. at 268 (Thomas, J.,

concurring in the judgment) (listing Justice Breyer’s “danger signs”). We

considered, in some form, each of these “danger signs” in Eddleman.

First, we found that the Montana contribution limits “apply to ‘each election

in a campaign,’ [so,] the amount an individual may contribute to a candidate

doubles when the candidate participates in a contested primary.” Eddleman, 343

F.3d at 1088. By comparison, Vermont’s limits applied to a “two-year general

election cycle.” Randall, 548 U.S. at 238.

Second, although Eddleman did not specifically deal with the limit on

campaign contributions by political parties, there was no need to do so, because in

19
Montana the aggregate contribution limits for political parties is much higher than

the individual and political committee contribution limits. See Eddleman, 343 F.3d

at 1094 (“[W]hile decreasing PAC and individual contributions, [Montana’s

contribution limit statute] simultaneously increased the amount of money political

parties may contribute to a candidate, almost doubling the amount that may be

contributed in some races.”); see also Mont. Code Ann. § 13-37-216(3). In this

regard, Montana’s statute stands in stark contrast with Vermont’s, which applied

the same low contribution limit to individuals, PACs, and political parties alike.

Randall, 548 U.S. at 238–39.

Third, we acknowledged that Montana’s limits were “some of the lowest in

the country,” but also observed that this was “unsurprising in light of the fact that

Montana is one of the least expensive states in the nation in which to mount a

political campaign.” Eddleman, 343 F.3d at 1095. As Randall shows, Montana

20
retains some of the lowest contribution limits in the nation, but it is not the lowest,

a distinction that belonged to Vermont. See Randall, 548 U.S. at 250–51.5

Fourth, while Eddleman did not specifically compare Montana’s

contribution limits with other instances where the Court has upheld a contribution

limit as constitutional, we did compare the change in Montana’s total campaign

spending with other instances where the Court had upheld limits that involved

greater decreases in total campaign spending. Eddleman, 434 F.3d at 1094

(“Indeed, the Shrink Missouri Court upheld contributions limits despite a decrease

of more than 50% in total spending in Missouri elections, nearly twice the decrease

present here.”).

We also considered that there are “provision[s] preventing incumbents from

using excess funds from one campaign in future campaigns. Such provision[s]

keep incumbents from building campaign war chests and gaining a fundraising

5
The district court appears to read Randall’s “danger signs” as condemning
Montana’s contribution limits. Opinion and Order at 28 (concluding without
analysis that Montana’s limits violate Randall’s “danger signs” merely because
“the U.S. Supreme Court has previously observed that Montana’s limits, like
Vermont’s former limits, are among the lowest in the country”). This reading of
Randall is flawed. Randall referred to Montana’s contribution limits—along with
those of Arizona, Colorado, Florida, Maine, Massachusetts, and South
Dakota—only as a method for illustrating that Vermont’s limits raised one “danger
sign” and solidifying Vermont’s status as an outlier among other states with
regards to contribution limits. Randall, 548 U.S. at 250–51. Nothing in Randall
even hints that Montana’s limits are unconstitutional.

21
head start over challengers.” Id. at 1095. We stressed that, in the end analysis, it is

not the dollar amount that is critical, it is whether a candidate can amass the

resources necessary to mount an effective campaign, id., a position in harmony

with Randall, see 548 U.S. at 248–49.

Thus, all of Randall’s “danger signs” were considered in one form or

another. Most importantly, and consistent with Randall, our decision in Eddleman

“review[ed] the record independently and carefully with an eye toward assessing

the statute’s ‘tailoring.’” Id. at 249. We think Eddleman took ample account of the

“danger signs” identified in Randall.

b. The “Five Considerations”

Aside from the four “danger signs,” our decision in Eddleman addressed

broadly what Justice Breyer called “five sets of considerations.” Id. at 261. The

five considerations were: (1) Whether the “contribution limits will significantly

restrict the amount of funding available for challengers to run competitive

campaigns”; (2) whether “political parties [must] abide by exactly the same low

contribution limits that apply to other contributors”; (3) how “volunteer services”

are treated; (4) whether “contribution limits are . . . adjusted for inflation”; and (5)

whether there exists “any special justification that might warrant a contribution

22
limit so low or so restrictive.” Id. at 253–61. In Eddleman, we addressed each of

these considerations in some way.

(1). With respect to the first consideration, whether the limits restrict

challengers, the Court in Randall considered statistical analyses relevant to

discerning “the critical question . . . [, i.e., whether] a candidate running against an

incumbent officeholder [can] mount an effective challenge.” Id. at 255. The Court

noted that it emphasized the competitiveness of races because it was a proxy for

the relative ability of a challenger to overcome the advantages of incumbency. Id.

In Eddleman, we recognized the importance of considering “all dollars likely

to be forthcoming in a campaign, rather than the isolated contribution, and . . .

consider[ed] factors such as whether the candidate can look elsewhere for money,

the percentage of contributions that are affected, the total cost of a campaign, and

how much money each candidate would lose.” Eddleman, 343 F.3d at 1094

(internal citations omitted). We repeatedly emphasized that the mere fact that a

candidate could have raised more money without the limits was not the relevant

inquiry; rather, the issue was whether the limit prevented a campaign from being

effective. Id. at 1095 (“[A]part from bald, conclusory allegations that their

campaigns would have been more effective had they been able to raise more

money, none of the witnesses offered any specifics as to why their campaigns were

23
not effective.”) (internal quotation marks omitted). We found that “Montana

candidates remain able to mount effective campaigns.” Id. (describing candidates

who claimed the limits prevented effective campaigns but some of which raised

more money after the limits were in place and another who won with a

large surplus of campaign funds). Additionally, even though the contribution

limits restrict the total amount of funds raised, candidates were still able to raise

funds “well within the range of money needed to run an effective . . . campaign.”

Id. at 1094–95.

Specific to the Court’s concern with challengers to incumbency, we

discussed provisions that increased the ability of challengers to overcome the

effects of incumbency. First, we pointed out that Ҥ 13-37-216 also contains a

provision preventing incumbents from using excess funds from one campaign in

future campaigns.” Id. at 1095. Second, we found that “the average gap between

the total amount of money raised by incumbents and challengers for all legislative

races was only $65.00 per race,” so there was almost no difference between

incumbents and challengers in the amount of money they raised. Id. Third, relying

on Buckley and Shrink Missouri, we suggested that there was no evidence that

Montana’s limitations allowed incumbents to leverage their incumbency unfairly

against their challengers. Id. at 1095–96.

24
 The district court did not look to our opinion in Eddleman. Instead, it

conducted its own inquiry. For example, it compared the Vermont limits for state

senate and house with those of Montana and concluded that Montana’s were lower.

Opinion and Order at 29. We think the district court did not account for one key

difference between Vermont and Montana. While Vermont’s contribution limits

apply to a “two-year general election cycle,” Randall, 548 U.S. at 238–39,

Montana’s limits apply to “each election,” Mont. Code Ann. § 13-37-216(1)(a),

meaning that if there is a contested primary, the district court has understated

Montana’s limits by half. See Eddleman, 343 F.3d at 1088 (“[T]he amount an

individual may contribute to a candidate doubles when the candidate participates in

a contested primary.”). In other words, if there is a primary, Montana’s limit for

the state legislature is $320, which is greater than Vermont’s limit for state senate

($300) and much higher than its limit for state house ($200).

Additionally, we are concerned that the evidence the district court received

and credited—which because of our time constraints, the parties have not briefed

and we have not examined as thoroughly as we ordinarily would like—does not

adequately account for the revenues actually available to candidates. For example,

Montana only requires that the identity of donors contributing $35 or more, and

their aggregate amount of contributions, be disclosed. Mont. Code Ann. § 13-37-

25
229(2)–(3). While a candidate is required to disclose an “itemized account of

proceeds that total less than $35 from a person,” the donor’s identity is not

disclosed and therefore does not count against an individual’s aggregate

contribution limit. Mont. Code Ann. § 13-37-229(8). Thus, it is likely that

Montana’s limits understate the actual contributions made to the candidates. These

are matters that, undoubtedly, would benefit from briefing and oral argument but

raise serious concerns in our minds whether there is sufficient evidence to overrule

Eddleman.6

(2). With respect to the second consideration, the limits on political parties,

the Court was concerned that Vermont’s statute required “that political parties

abide by exactly the same low contribution limits that apply to other contributors.”

Randall, 548 U.S. at 256. The cumulative restrictions imposed by the Vermont

statute “severely inhibit[ed] collective political activity by preventing a political

party from using contributions by small donors to provide meaningful assistance to

any individual candidate,” including a party’s ability to engage in “coordinated

6
Neither the State of Montana, nor the appellees, had access to the district
court’s Opinion and Order when the motion and opposition were filed. The State
of Montana, however, had the benefit of the district court’s Opinion and Order
before filing its reply the next day.

26
spending on advertising, candidate events, voter lists, mass mailings, even yard

signs.” Randall, 548 U.S. at 256–58.

In contrast to Vermont’s statute, we noted, in Eddleman, that in Montana

political parties were not subject to the same low contribution limit as individuals.

Eddleman, 343 F.3d at 1094 (discussing the increase in amount that can be

contributed by political parties, “almost doubling the amount that may be

contributed in some races”).

Despite the obvious differences between Vermont and Montana, the district

court concluded that the Montana statute was inconsistent with this factor because

“political committees [were held] to the same contribution limits as individuals”

and this “inhibit[s] the associational rights of political committees and,

consequently, a full and robust exchange of views.” Opinion and Order at 32

(internal quotation marks omitted). Instead of addressing Randall’s concern with

limits on political parties, the district court focused on limits on political

committees under § 13-37-216. Political committees are not political parties.

Political committees—including PACs and local party affiliates—are subject to the

same limits as individuals. Mont. Code Ann. § 13-37-216(3). “Political party

organizations,” however, are exempted from this restriction under the statute and

subject to a much higher cap. For example, individuals and political committees

27
may not contribute more than $630 to a gubernatorial candidate, but a political

party organization can contribute up to $22,600. Id. § 13-37-216(1)(a), (3)(a), as

adjusted by Admin. R. Mont. § 44.10.338(1)(a), (2)(a).

Furthermore, the district court’s opinion fails to acknowledge that even

political committees remain free to spend as much money as they desire promoting

a candidate. See Citizens United v. Fed. Election Comm’n, 558 U.S. 310 (2010);

see also Am. Tradition P’ship, Inc. v. Bullock, 132 S. Ct. 2490 (2012). As we

pointed out, the PACs have many other ways “to convey their support.”

Eddleman, 343 F.3d at 1094. They just cannot give the money directly to the

candidate. Thus, the district court’s analysis on this point is inapposite; under the

Montana statute political committees remain free to participate in a “full and robust

exchange of views.”

(3). The third consideration is the treatment of volunteer services.

Montana’s scheme, however, is far more permissive than Vermont’s statute. In

Randall, Vermont counted expenses incurred during the provision of volunteer

services as contributions. Randall, 548 U.S. at 259–60. As we explained, “the

[Montana] statute in no way prevents PACs[, and individuals,] from affiliating

with their chosen candidates in ways other than direct contributions, such as

donating money to a candidate’s political party, volunteering individual members’

28
services, sending direct mail to their supporters, or taking out independent

newspaper, radio, or television ads to convey their support.” Eddleman, 343 F.3d

at 1094. Moreover, we noted that nothing prevents “individuals and PACs [from] .

. . engag[ing] in independent political expression, to associate actively through

volunteering their services, and to assist in a limited but nonetheless substantial

extent in supporting the candidates and committees with financial resources.” Id.

at 1096.

The district court concluded that Montana treats volunteer services in the

same manner as Vermont, “not exclud[ing] the expenses . . . volunteers incur, such

as travel expenses, in the course of campaign activities.” Opinion and Order at 34

(internal quotation marks omitted). This conclusion appears to be error.

Testimony provided by the plaintiff’s own witnesses—as well as a stipulation of

the parties—established that expenses incurred by volunteers are not considered

contributions under Montana law. Tr. at 50–54, 74–76, 154–56 (Sept. 12, 2012).

Even more importantly, other testimony established that an individual, political

party, or political committee can actually hire staff for a candidate, and that would

not be considered a contribution. Id.

(4). The fourth consideration is whether the limits are adjusted for inflation.

Vermont’s limits were not. Randall, 548 U.S. at 261. As we noted in Eddleman,

29
the Montana contribution limits are regularly adjusted for inflation. Eddleman,

343 F.3d at 1089.

The district court recognized that Montana adjusts its limits for inflation, but

suggested that the Consumer Price Index (“CPI”) is a flawed method of accounting

for inflation. Opinion and Order at 35–36. The district court made that

determination on the basis of near anecdotal testimony that the cost of pencils, yard

signs, postage, and fuel have increased faster than the CPI. Id. at 13. The district

court also noted that the CPI does not account for certain inputs that an effective

campaign requires. Id. at 35.

This is too thin a reed to cling to in order to overturn our decision in

Eddleman. We do not doubt that the CPI fails to capture all changes in campaign

costs. It is, however, a well-recognized mechanism for adjusting for inflation, and

we have no indication that the Supreme Court intended that states do anything else

to “index limits.” Randall, 548 U.S. at 261. We continue to believe that

Montana’s statute will survive the Court’s analysis in Randall. If we were to

examine the district court’s findings, its methodology would raise a number of

questions. For example, the district court apparently did not consider whether

pencils, yard signs, postage, and fuel fall within the underlying basket of goods

used to calculate the CPI, nor did it question whether other campaign costs—such

30
as office space—may have gone down during the same period. Further, even as we

acknowledge that campaign costs have gone up over time, so have contribution

limits risen since their inception in 1994, yet the district court made no attempt to

compare the overall increase in the contribution limits with the overall increases in

campaign inputs that were the subject of testimony at trial.

(5). The fifth and final consideration is a catchall: Whether there are any

“special justification[s]” for the limits that “bring about . . . serious associational

and expressive problems.” Randall, 548 U.S. at 261. We identified at least one

justification for why Montana’s contribution limits are among the lowest in the

nation: “[T]he State of Montana remains one of the least expensive states in the

nation in which to run a political campaign.” Eddleman, 343 F.3d at 1094. Thus,

unlike Randall, where Vermont’s justification was based solely upon the

prevention of corruption, Montana specifically justified the low limits based on the

relative inexpense of campaigning in Montana, a state where, for many offices,

“campaign[ing] primarily [takes place] door-to-door, and only occasionally

[through] advertis[ing] on radio and television.” Id.

Most importantly, in Eddleman, after considering all of the factors deemed

important by Justice Breyer’s plurality opinion in Randall, we held that the

Montana contribution limit does not prevent candidates from amassing the

31
resources necessary to run an effective, competitive campaign. Id. at 1094–95,

1098. We cannot conclude that Randall is, in any material way, inconsistent with

our analysis in Eddleman. Therefore, under Miller, we remain bound by

Eddleman.7

*****

Given the procedural posture of the state’s motion, we have tried to be

careful not to prejudge whether any of the district court’s findings of fact are

clearly erroneous or its conclusions errors of law. That is the province of a merits

panel of this court, to be decided on consideration of the appeal of the permanent

injunction after full briefing. Based on our emergency review, however, we have

noted that there appear to be sufficient problems with the district court’s findings

of fact and conclusions of law such that the State of Montana has met its burden of

making a substantial case for relief on the merits. This showing is sufficient for us,

under this factor, to exercise our discretion to stay the district court’s permanent

injunction pending appeal. Moreover, given the imminent nature of the election,

we find it important not to disturb long-established expectations that might have

7
We also note that the district court failed to perform a careful severability
analysis. Instead, it relied on the Court’s severability analysis of a quite different
Vermont statute—leveraging what might be the only offensive part of this statute
to strike down the entire statute, the majority of which has not even been
effectively challenged. See Opinion and Order at 36–37.

32
unintended consequences, particularly in light of our previous holding in Eddleman

that this selfsame statute is constitutional, without first allowing a merits panel the

benefit of thoroughly examining the Montana statute in light of Randall.8 See

Purcell v. Gonzalez, 549 U.S. 1, 5–6 (2006) (“Given the imminence of the election

and the inadequate time to resolve the factual disputes, our action today shall of

necessity allow the election to proceed without an injunction . . . .”). We conclude

that the state is likely to succeed in its appeal.

B. Irreparable Injury to the Party Requesting Stay

Nken held that the second stay factor, “whether the applicant will be

irreparably injured absent a stay,” requires more than “some possibility of

irreparable injury.” Nken, 556 U.S. at 434–35 (internal quotation marks omitted).

But, in contrast to the first factor, we have interpreted Nken as requiring the

applicant to show under the second factor that there is a probability of irreparable

injury if the stay is not granted. Leiva-Perez, 640 F.3d at 968 (explaining that

while the first factor asks “whether the stay petitioner has made a strong argument

on which he could win,” the second factor asks us to “anticipate what would

8
See Randall, 548 U.S. at 249 (“[A]ppellate courts . . . must review the
record independently and carefully with an eye toward assessing the statute’s
‘tailoring,’ that is, toward assessing the proportionality of the restrictions.” (citing
Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 499 (1984)).

33
happen as a practical matter following the denial of a stay”). In analyzing whether

there is a probability of irreparable injury, we also focus on the individualized

nature of irreparable harm and not whether it is “categorically irreparable.” Id. at

969 (quoting Nken, 556 U.S. at 435).

The State of Montana has made a showing that there is a probability of

irreparable injury if a stay of the district court’s permanent injunction is not

granted. Since 1994, a clear framework has been in place allowing candidates to

plan for campaigns. In 2003, we held this statute constitutional, in the face of a

virtually indistinguishable attack. This has created a background upon which the

candidates in the current election have formed their campaign strategies and

expectations. Absentee voting has already begun in Montana and the general

election is imminent. Allowing the permanent injunction to remain in place before

a merits panel of this court can ultimately rule on the constitutionality of the

Montana contribution limit statute could throw a previously stable system into

chaos. In a state that has operated with some of the most restrictive campaign

limits in the country, there would suddenly be no limits whatsoever. In fact, there

is some evidence from media reports that before the temporary stay was issued in

this case, individuals had already begun to ask for unlimited donations. In light of

the fact that the State of Montana has made a substantial case for relief on the

34
merits, this calls into question the fairness and integrity of elections in Montana.

Not all candidates might feel comfortable taking unlimited donations in the wake

of conflicting judicial decisions. Furthermore, once the election is over, it cannot

be reversed, and any consequences flowing from the disruption in equilibrium in

the campaign contribution laws would also be irreversible. Regardless, because of

the likely disruption to the election and the untold, irreversible consequences that

might result, the State of Montana has satisfied its burden of showing a probability

that irreparable harm will occur.

C. Substantial Injury to Other Parties Interested in the Proceeding

Finally, Nken explained that the last two factors of the test require us to

weigh the public interest against the harm to the opposing party. Nken, 556 U.S. at

435; see also Leiva-Perez, 640 F.3d at 964–66 (holding that the stay inquiry is

“flexible”and involves an equitable balancing of the stay factors). In doing so, we

again consider “the particulars of each individual case.” Leiva-Perez, 640 F.3d at

970 (citing Nken, 556 U.S. at 436).

We find that the other interested parties are not likely to be harmed. We

well understand that “political speech [is] the core of the First Amendment,”

Randall, 548 U.S. at 266, but for 36 years the Court has held that states may

restrict political contributions as “only a marginal restriction upon the contributor’s

35
ability to engage in free communication.” Buckley, 424 U.S. at 20–21. Montana

largely restricts cash contributions to candidates; it thus leaves interested parties

with a number of other options for engaging in political speech, from

volunteering—or even paying for the provision of volunteer services to

candidates—to engaging in independent activities to support a candidate. See, e.g.,

Bullock, 132 S. Ct. at 2491. Additionally, we have already carefully analyzed the

Montana contribution limit statute and found it to be constitutional. Eddleman,

343 F.3d at 1098. All interested parties, who have operated under Montana’s

contribution limit statute since 1994, had clear notice of its constitutionality since

2003. Any harm that might be felt would, at most, be minimal and vastly

outweighed by the public interest.

D. Public Interest

Finally, we find that the public interest is closely aligned with the irreparable

harm shown by the State of Montana. The people comprising the State of Montana

have a deep interest in fair elections. See United States v. Gradwell, 243 U.S. 476,

480 (1917) (“[T]he people of the United States . . . have an interest in and a right to

honest and fair elections . . . .”). The Montana contribution limit statute has long

stood, not only to prevent corruption, see Eddleman, 343 F.3d at 1092–93, but also

to create an background of fairness to allow candidates to plan their campaigns and

36
implement their strategies upon the foundation of well-laid and understood ground-

rules. Given the deep public interest in honest and fair elections and the numerous

available options for the interested parties to continue to vigorously participate in

the election, the balance of interests falls resoundingly in favor of the public

interest.

IV. CONCLUSION

The State of Montana has satisfied the standards for a stay pending appeal.

Given the formidable obstacle presented by our decision in Eddleman, the fact that

Randall does not compel a different result in Eddleman, and the tensions and

possible errors in the district court’s application of Randall, the State of Montana

has made a strong showing that it is likely to succeed on appeal. Furthermore,

because the fairness of the imminent election would be put in danger by our failure

to stay the permanent injunction, the State of Montana and the public interest

would be irreparably harmed, and that harm vastly outweighs any minimal harm

that might come to the interested parties who have operated under the established

Montana contribution limits for almost two decades. We therefore find it

necessary to exercise our judicial discretion, and we will stay the district court’s

permanent injunction pending resolution of the appeal by a merits panel of this

court. The State of Montana’s motion for stay pending appeal is GRANTED.

37
 COUNSEL

Michael G. Black and Andrew I. Huff, Assistant Attorneys General, Montana
Department of Justice, Helena, Montana, for defendants-appellants.

James Bopp, Jr., Jeffrey Gallant, and Anita Y. Woudenberg, The Bopp Law Firm,
PC, Terre Haute, Indiana, for plaintiffs-appellees.

38
 APPENDIX A

Montana Code Annotated § 13-37-216

13-37-216. Limitations on contributions--adjustment

(1) (a) Subject to adjustment as provided for in subsection (4), aggregate
contributions for each election in a campaign by a political committee or by
an individual, other than the candidate, to a candidate are limited as follows:
(i) for candidates filed jointly for the office of governor and lieutenant
governor, not to exceed $500;
(ii) for a candidate to be elected for state office in a statewide election,
other than the candidates for governor and lieutenant governor, not to
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.

(2) (a) A political committee that is not independent of the candidate is
considered to be organized on the candidate’s behalf. For the purposes of
this section, an independent committee means a committee that is not
specifically organized on behalf of a particular candidate or that is not
controlled either directly or indirectly by a candidate or candidate’s
committee and that does not act jointly with a candidate or candidate’s
committee in conjunction with the making of expenditures or accepting
contributions.
(b) A leadership political committee maintained by a political officeholder is
considered to be organized on the political officeholder’s behalf.

(3) All political committees except those of political party organizations are subject
to the provisions of subsections (1) and (2). For purposes of this subsection,
“political party organization” means any political organization that was represented
on the official ballot at the most recent gubernatorial election. Political party
organizations may form political committees that are subject to the following
aggregate limitations, adjusted as provided for in subsection (4), from all political
party committees:

39
 (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 $2,600;
(d) for a candidate for the state senate, not to exceed $1,050;
(e) for a candidate for any other public office, not to exceed $650.

(4) (a) The commissioner shall adjust the limitations in subsections (1) and (3)
by multiplying each limit by an inflation factor, which is determined by
dividing the consumer price index for June of the year prior to the year in
which a general election is held by the consumer price index for June 2002.
(b) The resulting figure must be rounded up or down to the nearest:
(i) $10 increment for the limits established in subsection (1); and
(ii) $50 increment for the limits established in subsection (3).
(c) The commissioner shall publish the revised limitations as a rule.

(5) A candidate may not accept any contributions, including in-kind contributions,
in excess of the limits in this section.

(6) For purposes of this section, “election” means the general election or a primary
election that involves two or more candidates for the same nomination. If there is
not a contested primary, there is only one election to which the contribution limits
apply. If there is a contested primary, then there are two elections to which the
contribution limits apply.

40
 APPENDIX B

Admin. R. Mont. § 44.10.338

44.10.338 LIMITATIONS ON INDIVIDUAL AND POLITICAL PARTY
CONTRIBUTIONS

(1) Pursuant to the operation specified in 13-37-216, MCA, limits on total
combined contributions from individuals to candidates are as follows:
(a) a candidate for governor may receive no more than $630;
(b) a candidate for other statewide office may receive no more than $310;
(c) a candidate for all other public offices may receive no more than $160.

(2) Pursuant to the operation specified in 13-37-216, MCA, limits on total
combined contributions from political party committees to candidates are as
follows:
(a) a candidate for governor may receive no more than $22,600;
(b) a candidate for other statewide offices may receive no more than $8150;
(c) a candidate for Public Service Commission may receive no more than
$3260;
(d) a candidate for senate may receive no more than $1300;
(e) a candidate for all other public offices may receive no more than $800.

(3) Pursuant to 13-37-218, MCA, in-kind contributions must be included in
computing these limitation totals.

41