Amicus Curiae Brief — Doug Lair, et al., Petitioners v. Jeff Mangan, in His Official Capacity as Commissioner of Political Practices, et al.

Supreme Court briefSep 4, 2018

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No. 18-149

In The

Supreme Court of the United States

DOUG LAIR, et al.,

Petitioners,

JEFF MANGAN, in his official capacity

as the Montana Commissioner

of Political Practices, et al.,

Respondents.

On Appeal from the United States District Court

for the Western District of Wisconsin

BRIEF OF AMICUS CURIAE

THE LEGACY FOUNDATION

IN SUPPORT OF PETITIONERS

Jason Torchinsky

Counsel of Record

Shawn Toomey Sheehy

Dennis W. Polio

Holtzman Vogel Josefiak Torchinsky PLLC

45 North Hill Drive

Suite 100

Warrenton, VA 20186

(540) 341-8808

(540) 341-8809

Jtorchinsky@hvjt.law

Counsel for Amicus Curiae

September 4, 2018

LANTAGNE LEGAL PRINTING

801 East Main Street Suite 100 Richmond, Virginia 23219 (800) 847-0477

TABLE OF CONTENTS

TABLE OF AUTHORITIES ...................................... iii

STATEMENT OF INTEREST OF AMICUS

CURIAE .............................................................. 1

SUMMARY OF THE ARGUMENT ............................ 2

ARGUMENT ............................................................... 3

THIS COURT’S PRECEDENT

DEMONSTRATES THAT RECORD

EVIDENCE IS REQUIRED TO

SUPPORT CONTRIBUTION

LIMITS. ........................................................ 3

II.

THERE IS TENSION IN THE

CIRCUITS CONCERNING

WHETHER EVIDENCE IS

NEEDED. ..................................................... 9

III. THE PROPER APPLICATION OF

EXACTING SCRUTINY REQUIRES

STATES TO ADDUCE EVIDENCE.......... 15

Montana Must Adduce

Evidence To Demonstrate Its

Contribution Limits Are

Necessary To Prevent

Corruption Or The Appearance

Thereof. .............................................. 17

Montana Must Have Adduced

Evidence To Demonstrate That

Its Contribution Limits Are

Closely Drawn.................................... 19

CONCLUSION .......................................................... 21

iii

TABLE OF AUTHORITIES

CASES

281 Care Comm. v. Arneson, 766 F.3d 774

(8th Cir. 2014) ............................................. 11, 12

Bethune-Hill v. Va. State Bd. of Elections, 137

S. Ct. 788 (2017) ................................................. 1

Buckley v. Valeo, 424 U.S. 1 (1976) .................. passim

Citizens United v. FEC, 558 U.S. 310 (2010) ... passim

Colo. Republican Fed. Campaign Comm. v.

FEC, 518 U.S. 604 (1996) ....................... 7, 14, 17

First Nat'l Bank v. Bellotti, 435 U.S. 765

(1978) ................................................................ 15

Fletcher v. Lamone, 831 F. Supp. 2d 887 (D.

Md. 2011) ............................................................ 1

Green Party of Conn. v. Garfield, 616 F.3d 189

(2d Cir. 2010) .................................................... 14

Horina v. City of Granite City, 538 F.3d 624

(7th Cir. 2008) ................................................... 11

Lair v. Motl, 889 F.3d 571 (9th Cir. 2018) ..... 9, 10, 13

Lavin v. Husted, 689 F.3d 543 (6th Cir. 2012) ... 11, 18

Lorillard Tobacco Co. v. Reilly, 533 U.S. 525

(2001) ............................................................ 8, 18

McConnell v. FEC, 251 F. Supp. 2d 176

(D.D.C. 2003) ...................................................... 8

McConnell v. FEC, 540 U.S. 93 (2003) ....................... 8

McCutcheon v. FEC, 572 U.S. 185 (2014) ........ passim

Mont. Right to Life v. Eddleman, 2000 U.S.

Dist. LEXIS 23161 (2000) .............................. 5, 6

Mont. Right to Life Ass’n v. Eddleman, 343

F.3d 1085 (9th Cir. 2003) ................................... 5

N.C. Right to Life, Inc. v. Leake, 525 F.3d 274

(4th Cir. 2008) ................................................... 10

Nixon v. Shrink Mo. Gov't Pac, 528 U.S. 377

(2000) .................................................. 6, 7, 10, 14

Ognibene v. Parkes, 671 F.3d 174 (2d Cir.

2011) ............................................................ 13, 14

Packingham v. North Carolina, 137 S. Ct.

1730 (2017)........................................................ 21

Preston v. Leake, 660 F.3d 726 (4th Cir. 2011) ........ 20

Towbin v. Antonacci, 885 F. Supp. 2d 1274

(S.D. Fla. 2012) ............................................. 7, 12

Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622

(1994) ...................................................... 8, 13, 14

United States v. Playboy Entm’t Grp., Inc.,

529 U.S. 803 (2000) .......................................... 16

Upstate Jobs Party v. Kosinski, 2018 U.S.

App. LEXIS 20197 (2nd Cir. 2018) .................. 18

Zimmerman v. City of Austin, 881 F.3d 378

(5th Cir. 2018) ............................................. 10, 11

STATUTES

18 U.S.C. §§ 1346 et seq. ............................................. 5

Mont. Code Ann. §§ 45-7-101 et seq. ........................... 5

OTHER AUTHORITIES

Military Voter Protection Project,

http://mvpproject.org/ (last visited July

31, 2018) .............................................................. 2

STATEMENT OF INTEREST OF AMICUS

CURIAE

Amicus curiae The Legacy Foundation is a

non-profit corporation incorporated in Iowa and

organized under Internal Revenue Code 501(c)(3). 1

The Legacy Foundation is a non-partisan

organization that engages in independent research

concerning, inter alia, civil rights policy and voting.

The Legacy Foundation is also dedicated to

promoting a limited and accountable government.

These efforts include supporting redistricting

litigation involving partisan gerrymandering claims.

See, e.g., Fletcher v. Lamone, 831 F. Supp. 2d 887 (D.

Md. 2011), sum. aff’d, 567 U.S. 930 (2012). More

recently, The Legacy Foundation provided funding

for an amicus brief submitted by the National Black

Chamber of Commerce and the Hispanic Leadership

Fund. See Bethune-Hill v. Virginia State Board of

Elections, No. 15-680, br. of amici curiae National

Black Chamber of Commerce, et al. (filed Oct. 24,

2016).2

1 No

party’s counsel authored any part of this brief. No

person other than the amicus curiae made a monetary

contribution intended to fund the preparation or

submission of this brief. On August 21, undersigned

counsel notified Petitioners’ counsel and Respondent’s

counsel of The Legacy Foundation’s intent to file an

amicus brief. On that same day, Petitioners’ counsel

consented to the filing of this brief. Six days later, on

August 27, counsel for Respondent consented to the filing

of this brief.

2 The decision in Bethune-Hill is reported at Bethune-Hill

v. Va. State Bd. of Elections, 137 S. Ct. 788 (2017).

Furthermore, one of The Legacy Foundation’s

programs is the Military Voter Protection Project.

This program “is dedicated to promoting and

protecting our military members’ right to vote and

ensuring that their votes are counted on Election

Day.”3

Finally, The Legacy Foundation has sponsored

educational communications around the country for

several years. These advertisements focus on issues

important to The Legacy Foundation.

SUMMARY OF THE ARGUMENT

In addition to the questions presented in the

Petition, this case asks whether the government

must present sufficient evidence that contribution

limits it establishes are first necessary to prevent

corruption or the appearance thereof, and second,

the contribution limits actually address the

corruption it seeks to prevent. The precedent from

this Court answers that question in the affirmative,

however, the Ninth Circuit below was divided on the

question and erroneously upheld Montana’s

contribution limits without such evidence. Other

Circuits that have touched on this question are

similarly split.

Accordingly, amicus curiae respectfully

requests that this Court grant the Petition to assist

state governments and federal courts in resolving

See

Military

Voter

Protection

Project,

http://mvpproject.org/ (last visited July 31, 2018).

these questions and ease the confusion and resulting

infringement on political speech.

ARGUMENT

THIS

COURT’S

PRECEDENT

DEMONSTRATES THAT RECORD

EVIDENCE

REQUIRED

SUPPORT CONTRIBUTION LIMITS.

This Court has repeatedly made clear that the

government, in meeting its burdens under the First

Amendment, must support the operation of

contribution limits with evidence in the record that

the enacted campaign finance limitations actually

address quid pro quo corruption. This Court first

demonstrated this in Buckley v. Valeo when it cited

actual evidence of quid pro quo corruption and its

appearance in upholding the Federal Election

Campaign Act of 1971’s (“FECA”) contribution

limits. 424 U.S. 1, 26-27.

It is unnecessary to look beyond [FECA’s]

primary purpose . . . in order to find a

constitutionally sufficient justification for the

$ 1,000 contribution limitation. . . . The

increasing importance of the communications

media and sophisticated mass-mailing and

polling operations to effective campaigning

make the raising of large sums of money an

ever more essential ingredient of an effective

candidacy. To the extent that large

contributions are given to secure political quid

pro quo's from current and potential office

holders, the integrity of our system of

representative democracy is undermined.

Although the scope of such pernicious

practices can never be reliably ascertained,

the deeply disturbing examples surfacing after

the 1972 election demonstrate that the

problem is not an illusory one.

Id. See also id. at n. 28. This Court has continued to

require an evidentiary record demonstrating quid

pro quo corruption, or its appearance, as requisite to

maintenance of contribution limits as recently as

McCutcheon v. FEC, 572 U.S. 185, 210-21, 224-27

(2014).

In light of the various statutes and

regulations currently in effect, Buckley’s fear

that an individual might contribute massive

amounts of money to a particular candidate

through the use of unearmarked contributions

to entities likely to support the candidate is

far too speculative. And—importantly—we

have never accepted mere conjecture as

adequate to carry a First Amendment burden.

McCutcheon, 572 U.S. at 210 (internal citations and

quotation marks omitted)

In the present case, the District Court

correctly determined that evidence of corruption or

the appearance thereof sufficient to overcome the

First Amendment burdens included only “those

actual or apparent arrangements which pose a real

harm to the election process or to the public’s

interest in the election process.” App. 56a-57a.

Nonetheless, Montana introduced no specific

examples of corruption or its appearance, but rather

only that of opinion and instances of attempted acts.4

App. 59a-62a. First, Montana introduced portions of

the record from Montana Right to Life Association v.

Eddleman, 343 F.3d 1085 (9th Cir. 2003) that

included testimony from a state representative

explaining what he thought influenced elected

officials, along with evidence of a letter sent to

Republican senators in the early 1980’s purportedly

containing an implicit offer to exchange votes for

campaign contributions. App. 59a-60a. There was no

evidence that the representative’s opinion was

correct or that the decades old letter was at all

successful. Montana also presented a declaration of a

state senator who claimed to have been offered

$100,000 by a group in exchange for introducing and

voting on a bill. App. 60a. The state senator

expressly rejected the offer. Id.

Second, Montana cited the Commissioner of

Political Practices’5 opinion that several candidates

engaged in quid pro quo corruption by pledging

“100% support” for particular groups’ legislative

agenda in exchange for the groups orchestrating a

4 Many of the attempted acts described before the district

court might have already been prohibited under existing

state or federal bribery laws. See App. 40a-41a; Mont.

Code Ann. §§ 45-7-101 et seq.; 18 U.S.C. §§ 1346 et seq.

5 Then Commissioner of Political Practices John Motl is a

longtime “attorney and campaign reform activist” as

described by the District Court in Montana Right to Life

v. Eddleman, 2000 U.S. Dist. LEXIS 23161 (2000). His

opinion must be understood as tainted by his decades of

activism.

large-scale campaign plan on behalf of those that

made the pledge. Id. The court found that these

candidates were likely to have supported the groups’

agenda regardless, since the groups identified

candidates friendly to their cause through surveys

prior to making any kind offer.

Because Montana only introduced evidence of

the “quids” without the requisite “pro quos,” the

district court correctly found that the evidence was

unhelpful to its First Amendment analysis. Id.

It cannot be said that what is essentially dicta

from Nixon v. Shrink Mo. Gov’t Pac, 528 U.S. 377,

391-92 (2000) supports a contrary conclusion.

Specifically, the Court in that case stated

“respondents are wrong in arguing that in the years

since Buckley came down we have supplemented its

holding with a new requirement that governments

enacting contribution limits must demonstrate that

the recited harms are real, not merely conjectural”

id. (internal quotation marks and citations omitted),

while simultaneously stating “[the Court] has never

accepted mere conjecture as adequate to carry a

First Amendment burden.” Id. at 392. Nonetheless,

the record was replete with evidence of corruption or

the appearance of corruption—so much so, in fact,

that the Court stated that, regardless of the level of

the State’s evidentiary obligation, the case did not

even “present a close call”—and the Court cited that

evidence in upholding the law. Id. at 393-94.

Accordingly, the Court ultimately accepted the

sufficiency of the state's evidence but did not set out

any particularized standard. Id. at 391-92. See also

Towbin v. Antonacci, 885 F. Supp. 2d 1274, 1287

(S.D. Fla. 2012). In the end, Nixon did not settle

what the government’s evidentiary burden should be

in defending contribution limits, it merely decided

that there was sufficient evidence before the Court

in that case to uphold the limitations enacted there.

Colo. Republican Fed. Campaign Comm. v.

FEC, 518 U.S. 604 (1996) presents a scenario much

more akin to the issue in this case. While that case

did not concern governments’ burden to justify

contribution limits, it did concern a related First

Amendment issue—governments’ burden to justify

limits on independent expenditures by political

parties. In that case, just as in this case, “[t]he

Government [did] not point to record evidence or

legislative findings suggesting any special corruption

problem in respect to [the regulated conduct.]” Id. at

618. Accordingly, the Court held that the First

Amendment prohibited the application of FECA’s

campaign contribution limitation provisions to party

independent expenditures. While Colo. Republican

Fed. Campaign Comm. unquestionably involved the

regulation of different conduct from the present case,

which may have been less directly related to

preventing corruption than direct contributions are,

see id. at 615; Shrink Mo. Gov’t Pac, 518 U.S. at 392,

it is applicable here because in both cases the

government offered no credible evidence whatsoever

in the record of corruption or the appearance thereof

when that evidence was necessary to, or justified,

upholding limits under the First Amendment.

In this way, Citizens United v. FEC, 558 U.S.

310 (2010) echoes identical concerns. In that case,

the Court declared independent expenditure limits

unconstitutional because there was no evidence in

the record of corruption with the making of

independent

expenditures.

Id.

360-61.

Specifically, the Court noted that the record in

McConnell, a previous challenge to the Bipartisan

Campaign Reform Act of 2002 (“BCRA”), yielded

absolutely no direct examples of corruption relating

to independent expenditures despite a record of over

100,000 pages. Id. at 360. Cf. McConnell v. FEC, 540

U.S. 93, 125, 130-131, 146-152 (2003) (upholding

restriction of “soft money” donations to political

parties because there was ample record evidence of

corruption or the appearance thereof); McConnell v.

FEC, 251 F. Supp. 2d 176, 471-481, 491-506 (D.D.C.

2003) (opinion of Kollar-Kotelly, J.); id. at 842-843,

858-859 (opinion of Leon, J.) (same).

In fact, amicus curiae is unable to locate any

recent case from this Court upholding contribution

limits without credible evidence in the record that

the regulation will address the complained of “evils,”

as in this case.

In Lorillard Tobacco Co. v. Reilly, 533 U.S.

525 (2001), this Court invalidated a number of

restrictions on tobacco advertising as violating the

First Amendment. The Court did so, at least in part,

because the government failed to adduce evidence

that those regulations actually furthered its stated

interest—namely preventing underage tobacco use.

See also Turner Broad. Sys., Inc. v. FCC, 512 U.S.

622, 664 (1994):

When the Government defends a regulation

on speech as a means to redress past harms or

prevent anticipated harms, it must do more

than simply posit the existence of the disease

sought to be cured. It must demonstrate that

the recited harms are real, not merely

conjectural, and that the regulation will in

fact alleviate these harms in a direct and

material way.

(internal citations and quotation marks omitted).

If the government must adduce evidence that

a restriction of speech actually furthers a

government interest in the commercial speech

setting, surely the government must do so in political

speech settings, where the First Amendment is at

“its fullest and most urgent application . . . .”

Citizens United, 558 U.S. at 339-40.

II.

THERE

TENSION

THE

CIRCUITS CONCERNING WHETHER

EVIDENCE IS NEEDED.

Various courts have misinterpreted Buckley’s

language to signify that evidence of actual

corruption or its appearance is not required to

uphold contribution limits so long as the threat of

corruption is not merely illusory. Other courts,

however, have interpreted Buckley and McCutcheon

as requiring evidence of corruption or its appearance

in other to uphold those same limits.

In Lair v. Motl, 889 F.3d 571 (9th Cir. 2018),

the Ninth Circuit denied a petition for rehearing en

banc, after it upheld Montana’s contribution limits.

In a dissent from that denial, a portion of the court

noted that the majority upheld those contribution

limits without any evidence of actual or apparent

quid pro quo corruption and therefore was

inconsistent with this Court’s decision in

McCutcheon and Citizens United. Id. at 572. Judges

Fisher and Murguia, members of the majority

responding to that dissent, stated that the

government may meet its burden by merely

“showing a risk of quid pro quo corruption or its

appearance that is neither conjectural nor illusory.”

Id. at 579. In doing so, this response demonstrates

that the majority misinterpreted Buckley’s “illusory”

comment, relied on dicta from Shrink PAC, and

misinterpreted McCutcheon, Citizens United, and

other precedent from this Court.

In N.C. Right to Life, Inc. v. Leake, 525 F.3d

274 (4th Cir. 2008), the Fourth Circuit invalidated

contribution limits to independent expenditure

political committees. That court held that the state

failed to proffer sufficient evidence demonstrating

the danger of corruption due to the regulated

contributions. Id. at 293.

In Zimmerman v. City of Austin, 881 F.3d 378

(5th Cir. 2018), the Fifth Circuit required the City of

Austin, Texas to justify their contribution limits

with “some evidence showing that [it] face[d] a

problem of either actual corruption or its

appearance. Id. at 386. Austin met this burden and

the Fifth Circuit upheld its contributions limits. The

plaintiff in that case has petitioned this Court for a

writ of certiorari and the Court has requested a

response from the Respondent due September 13,

2018. Zimmerman, 881 F.3d 378, petition for cert.

filed, (U.S. Jul. 17, 2018) (No. 18-93).

In Lavin v. Husted, 689 F.3d 543 (6th Cir.

2012), the Sixth Circuit declared unconstitutional a

statute that makes it a crime for candidates for

certain state offices to accept campaign contributions

from Medicaid providers or any person with an

ownership interest in a Medicaid provider. In doing

so, the court required the state to actually

demonstrate how the contribution restriction

furthers the state’s interest in preventing corruption,

rather than merely recite its general interest in

preventing corruption. Id. at 547-48.

In Horina v. City of Granite City, 538 F.3d

624, 633-634 (7th Cir. 2008), the Seventh Circuit

affirmed the district court’s judgment invalidating a

city ordinance that prohibited indiscriminate

handbilling because it was unconstitutional under

the First Amendment. In affirming that decision, the

Seventh Circuit held that the city’s failure to proffer

any evidence outside of its pleadings showing that

handbilling caused any of the evils the city had a

sufficient interest in preventing with the ordinance,

was fatal to the ordinance’s survival under

constitutional scrutiny. Id. at 633-37.

In 281 Care Comm. v. Arneson, 766 F.3d 774

(8th Cir. 2014), the Eighth Circuit reversed the

district court’s grant of summary judgment

dismissing a challenge to a law prohibiting false

political speech regarding ballot initiatives. The

government argued that this law was actually

necessary to preserve fair and honest elections, but

did not confirm by any kind of empirical evidence

that there was “an actual, serious threat of

individuals

disseminating

knowingly

false

statements concerning ballot initiatives” or “that the

use

false

statements

impacts

voters’

understanding, influences votes and ultimately

changes elections . . . .” Id. at 787, 790. Requiring the

government to justify its regulation of political

speech with empirical evidence to “establish a direct

causal link between [the law] and an interest in

preserving fair and honest elections,” the Eighth

Circuit found that merely relying on “common sense”

is not enough. Id. at 790-91 (emphasis added).

In Towbin, 885 F. Supp. 2d 1274, the United

States District Court for the Southern District of

Florida enjoined a statute limiting direct campaign

contributions by minors. The government contended

that the legislature enacted the law because it felt

that corruption was a threat, without citing any

legislative history, and relied upon a state grand

jury report finding that Florida had the most

corruption convictions of public officials in the

country including violations of campaign finance

limitations. Id. at 1278. The grand jury report, like

the other evidence cited by the government, only

spoke of corruption generally and anecdotally and

did not comment on the harms posed by

contributions by minors. Id. The court therefore held

that the government failed to meet its evidentiary

burden under the First Amendment. Id. at 1285-89.

So differing are courts’ treatment of this issue

that the tension occurs not only between the courts

but within them. This has occurred not only between

the majority and dissenting members of Lair v.

Motl’s Ninth Circuit panel and the Ninth Circuit

Panel in the present case, but also in the Second

Circuit. In Ognibene v. Parkes, 671 F.3d 174, 183 (2d

Cir. 2011), the Second Circuit upheld restrictions on

campaign contributions under First Amendment

scrutiny. That court held that it is “not necessary to

produce evidence of actual corruption to demonstrate

the sufficiently important interest in preventing the

appearance of corruption” so long as the evidence is

not “mere conjecture.” Id. Just as occurred in Lair v.

Motl, a member of the panel broke with the majority

to point out the lack of evidence in the record

pertaining to quid pro quo corruption. “[T]here is

little record evidence of any quid pro quo corruption

involving a New York City official since the

enactment of the generally applicable limits over 20

years ago.” Id. at 207 (Livingston, J., concurring).

The majority relies in part on the “objective[]

reasonable [ness]” of “the connection between

money and municipal action” to uphold the

strict limits New York City's law places upon

the free speech and associational rights of

those “doing business.” Maj. Op. at 31. The

Supreme Court has stated, however, that

“[w]hen the Government defends a regulation

on speech as a means to redress past harms or

prevent anticipated harms, it must do more

than simply posit the existence of the disease

sought to be cured. It must demonstrate that

the recited harms are real, not merely

conjectural.” Turner Broad. Sys., Inc. v. FCC,

512 U.S. 622, 664, 114 S. Ct. 2445, 129 L. Ed.

2d 497 (1994) (plurality opinion) (citation

omitted)

(internal

quotation

marks

omitted); see also Colo. Republican Fed.

Campaign Comm. v. FEC, 518 U.S. 604, 618,

116 S. Ct. 2309, 135 L. Ed. 2d 795

(1996) (opinion

Breyer,

J.)

(applying Turner in the campaign finance

context); Shrink Mo., 528 U.S. at 392 (“We

have never accepted mere conjecture as

adequate to carry a First Amendment burden.

. . .”). Requiring the City to point to evidence

demonstrating its anticorruption concern,

moreover, does not amount to “giving every

corruptor at least one chance to corrupt.” Maj.

Op. at 27. Reports of recent scandals are one

form of evidence that tends to show corruption

or its appearance, see, e.g., Green Party, 616

F.3d at 200, but so do other forms of evidence,

including, inter alia, testimony by those

familiar with the political life of the

community, see Shrink Mo., 528 U.S. at 393,

and surveys of the populace, see id. at 394.

Ognibene, 671

concurring).

F.3d

207

(Livingston,

J.,

However, unlike the majority in Ognibene v.

Parkes, the court in Green Party of Conn. v. Garfield,

616 F.3d 189 (2d Cir. 2010), invalidated a restriction

on lobbyist contributions because the government

failed to provide evidence that such contributions

result in actual corruption or its appearance. Id. at

206-07. This represents yet another intra-circuit

split concerning the necessary evidentiary burdens

when examining corruption or its appearance.

So, in keeping score, the Ninth Circuit—

depending on the makeup of the panel—generally

holds evidence of corruption or its appearance is not

required to uphold contribution limits so long as the

threat of corruption is not merely illusory, which

misinterprets the precedent from this Court, the

Second Circuit is split on the matter, while the

Fourth, Fifth, Sixth, Seventh, and Eighth Circuits,

along with the Southern District of Florida, correctly

hold that evidence that the regulation will address

actual corruption or its appearance is required to

justify campaign finance restrictions. This chaos

cannot last. Accordingly, this Court should grant

petitioners petition for certiorari and settle the

tension plaguing the circuits.

III.

THE PROPER APPLICATION OF

EXACTING SCRUTINY REQUIRES

STATES TO ADDUCE EVIDENCE.

“Premised on mistrust of governmental

power” the First Amendment is at “its fullest and

most urgent application to speech uttered during a

campaign for political office.” Citizens United, 558

U.S. at 339-40 (2010). Speech concerning salient

political issues is especially protected under our

Constitution because it is “the type of speech [that

is] indispensable to decision making in a

democracy[.]” First Nat’l Bank v. Bellotti, 435 U.S.

765, 776-77 (1978).

Included within the First Amendment’s free

speech and associational rights is the making and

receiving

campaign

contributions.

See

McCutcheon, 134 S. Ct. at 1440-41. Although not

absolute, Montana may limit campaign contributions

only to prevent corruption or the appearance thereof.

Id. at 1441. Montana cannot “regulate contributions

simply to reduce the amount of money in politics, or

to restrict the political participation of some in order

to enhance the relative influence of others.” Id.

Contribution limits impose “significant First

Amendment costs” on individual citizens, and

accordingly, the only governmental interest that this

Court has recognized as sufficiently important to

justify them is the prevention of corruption or the

appearance thereof. McCutcheon, 134 S. Ct. at 1450.

Accordingly, Montana must adduce sufficient

evidence that its severely low contribution limits are

intended to prevent corruption or the appearance

thereof. Id. at 1452 (citing United States v. Playboy

Entm’t Grp., Inc., 529 U.S. at 816). The limits at

issue are so low, in fact, that they constitute the

lowest limits in the nation, nearly constituting an

outright ban. App. i, 12.

Even so, this zone of regulation is narrow.

Montana can target only quid pro quo corruption—

the “direct exchange of an official act for money.” Id.

at 1441; see also id. at 1450. Montana may also

target the appearance of corruption “stemming from

public awareness of the opportunities for abuse

inherent in a regime of large individual financial

contributions to particular candidates.” Id. Access

and ingratiation cannot constitute corruption and

Montana may not impose contribution limits to

prevent or limit those incidents. See id. at 1442.

Montana is prohibited from enacting campaign

contribution limits for any other reason other than

corruption prevention because to do so would

“impermissibly inject” the legislature “into the

debate over who should govern.” Id. at 1441. “And

those who govern should be the last people to help

decide who should govern.” Id. at 1441-42 (emphasis

in the original).

A. Montana Must Adduce Evidence To

Demonstrate

Its

Contribution

Limits Are Necessary To Prevent

Corruption Or The Appearance

Thereof.

In this case, Montana was required to adduce

sufficient evidence that punitively low contribution

limits are necessary to address an actual problem of

corruption or its appearance, particularly corruption

or the appearance thereof related to direct

contributions from individuals, committees, and

parties to candidates for Montana state elective

office. See Colo. Republican Fed. Campaign Comm.

v. FEC, 518 U.S. 604, 618 (1996) (requiring that the

FEC must “point to record evidence or legislative

findings

suggesting

any

special

corruption

problem.”); McCutcheon, 134 S. Ct. at 1450, 1452

(requiring that the Government justify its actions

and present evidence that large campaign

contributions were made “to control the exercise of

an officeholder’s official duties.”).

Contrary to the position of the Ninth Circuit

below, App. 4a, it is necessary for the government to

adduce credible evidence of the problem it seeks to

address through the challenged restrictions. See

Buckley, 424 U.S. at 27. If evidence of the problem

the state seeks to address must be “real” in the

context of commercial speech restrictions, Lorillard

Tobacco Co., 533 U.S. at 555, certainly the same

must be so in the political speech arena, where the

First Amendment is at “its fullest and most urgent

application . . . .” Citizens United, 558 U.S. at 339-40.

Accordingly, this Court must require that Montana

provide evidence that there is an actual or apparent

problem of corruption with contributions to Montana

candidates, something the State failed to do in this

case. See McCutcheon, 134 S. Ct. at 1450.

In Lavin, 689 F.3d 543, the Sixth Circuit

declared unconstitutional a contribution restriction,

in part, because it determined that it was not closely

drawn to the asserted government interest.

Specifically, the contribution restrictions affected all

93,000 persons, only 0.003% of who were at all

implicated in Medicaid fraud. Id. at 548. See also

Upstate Jobs Party v. Kosinski, 2018 U.S. App.

LEXIS 20197, *4 (2nd Cir. 2018) (noting that the

existing record raises questions as to whether the

challenged statutes related to financing of minor

party committees employ means closely drawn to

avoid unnecessary abridgment of associational

freedoms.) (quoting McCutcheon, 134 S. Ct. at 1444)

(alterations and quotation marks omitted).

Here, Montana simply failed to show by any

credible evidence that the contribution limits at

issue address corruption or the appearance thereof,

while simultaneously affecting all citizens of

Montana including every candidate and political

organization therein. App. 59a-63a.

Viewing these circumstances, the public would

more reasonably conclude that corruption is

nearly absent from Montana’s electoral

system—the evidence shows that despite a

hand-full of opportunities, legislators chose to

keep their noses clean. In short, none of

Defendants’ examples demonstrate a real

harm to the election process or to the public’s

interest in that process, as is required by the

Ninth Circuit.

Id. at 63a. See also id. (“the Court finds that

Defendants have failed to prove that Montana’s

campaign contribution limits further the important

state interest of combating quid pro quo corruption

or its appearance”) (emphasis added). The Ninth

Circuit improperly reversed the District Court,

despite the District Court’s clear, correct, and

controlling findings of fact that there was

insufficient evidence that the contribution limits

were essential to prevent quid pro quo corruption or

the appearance thereof. App. 35a-43a (Bea J.,

dissenting).

B. Montana Must Have Adduced

Evidence To Demonstrate That Its

Contribution Limits Are Closely

Drawn.

Even if the contribution limits at issue were

established to prevent corruption or the appearance

thereof (they were not), they must be closely drawn

in order to avoid unnecessary infringement on First

Amendment rights. McCutcheon, 134 S. Ct. at 1446.

The fit between the interest asserted and the means

used to achieve that interest do not need to be

perfect but must be “in proportion to the interest

served.” Id. at 1456. In short, the means Montana

uses to achieve its interest in preventing corruption

or its appearance must be “narrowly tailored to

achieve the desired objective.” Id. at 1457.

Accordingly,

intermediate

scrutiny

campaign finance provisions is “rigorous” requiring

courts to be “particularly diligent in scrutinizing the

law’s fit.” Id. at 1446-58. Although this fit between

preventing corruption and the appearance thereof

need not be perfect, the limitation cannot survive if

the contribution limitation unnecessarily abridges

First Amendment rights. Id. at 1446. Cf. Preston v.

Leake, 660 F.3d 726 (4th Cir. 2011) (upholding

lobbyist contribution ban because it was supported

by evidence that it prevented corruption or the

appearance thereof and was closely drawn to

accomplish that purpose.).

Here, Montana did not provide sufficient

evidence to prove that its especially onerous

campaign finance regime is justified. See App. 63a64a. This regime imposes the most severe and the

lowest contribution limits in the nation. Even if

these limits were in some way justified, there is no

evidence that the means used to achieve Montana’s

asserted interest do not unnecessarily infringe on

constitutional rights or permit candidates to amass

sufficient resources to wage effective campaigns. See

App. 64a-68a.

Similarly, this Court has recently determined

that restrictions of First Amendment rights in grave

criminal contexts must be narrowly tailored as well,

even where the government’s asserted interest is

much higher than in the present case. See

Packingham v. North Carolina, 137 S. Ct. 1730

(2017) (prohibition against criminally convicted sex

offenders from using social media was not narrowly

tailored). If those laws were found to be too broad

given the gravity of the state interests involved,

certainly, restricting political speech in the context

of this case is also too broad.

Accordingly, this Court should grant

petitioners petition for certiorari so it can correct the

erroneous decision of the Ninth Circuit and

determine that Appellants are likely to succeed on

the merits of their claim.

CONCLUSION

For the foregoing reasons, Amicus Curiae

Legacy Foundation respectfully requests that this

Court grant the Petition.

Respectfully submitted,