Doug Lair v. Jonathan Motl
889 F.3d 571
9th Cir.2018Background
- Challenge to Montana contribution limits; Ninth Circuit panel upheld limits in Lair v. Motl, prompting dissents and request for rehearing en banc.
- Central legal question: what showing must a State make to justify contribution limits under the First Amendment after Citizens United and McCutcheon.
- Dissenting judges (joined by others) argue Supreme Court clarified that only quid pro quo corruption or its appearance can justify limits and that objective evidence of that problem is required.
- Panel majority held Montana met its burden by showing a non-illusory risk of quid pro quo corruption and relied on evidence including legislators’ statements, a promised large PAC contribution tied to legislative action, and state-court findings against candidates.
- Dissent contends the panel applied a too‑lenient Ninth Circuit standard (risk > mere conjecture) and relied on evidence of access/influence rather than evidence of actual or apparent quid pro quo exchanges.
- The disagreement centers on the required evidentiary baseline: whether a State must show actual or apparent quid pro quo arrangements or merely a concrete/non‑illusory risk of them.
Issues
| Issue | Plaintiff's Argument (Lair) | Defendant's Argument (Montana / Panel) | Held |
|---|---|---|---|
| Proper substantive standard after Citizens United and McCutcheon | Contribution limits are justified only by evidence of actual or apparent quid pro quo corruption | Citizens United/McCutcheon permit prophylactic limits; State need only show risk of quid pro quo corruption or its appearance | Panel: State need only show a cognizable, non‑illusory risk of quid pro quo corruption or its appearance; dissent disagrees and would require stronger evidence |
| Evidentiary burden at step one of Buckley test | Must produce objective evidence of actual or apparent quid pro quo (not mere influence/access) | A showing that the risk is more than mere conjecture or illusory suffices; no prior case requires proof of completed quid pro quo | Panel: applied the ‘‘more than mere conjecture / not illusory’’ standard; dissent would require evidentiary showing of corruption or its appearance |
| Whether evidence presented by Montana was sufficient | Montana’s evidence shows only access/influence; insufficient to prove quid pro quo risk | Evidence (letters, testimony, promised $100,000 tied to legislation, state enforcement findings) shows attempts/exchanges and a concrete risk | Panel: evidence sufficient to demonstrate a cognizable risk; dissent: evidence inadequate—shows influence, not quid pro quo |
| Role of indirect/party‑channelled contributions in quid pro quo analysis | Indirect/party contributions dilute risk and are less likely to pose quid pro quo risk | Indirect contributions can still be ‘‘directed in some manner’’ to candidates and may create circumvention risks | Panel: indirect/party contributions here could pose corruption risk; dissent emphasizes McCutcheon’s caution about speculative indirect schemes |
Key Cases Cited
- Citizens United v. FEC, 558 U.S. 310 (2010) (only quid pro quo corruption or its appearance can justify restricting political speech)
- McCutcheon v. FEC, 572 U.S. 185 (2014) (defines quid pro quo corruption as direct exchange of official act for money; requires risk above mere conjecture)
- Buckley v. Valeo, 424 U.S. 1 (1976) (two‑step test: sufficiently important interest and means closely drawn for contribution limits)
- Nixon v. Shrink Missouri Government PAC, 528 U.S. 377 (2000) (quantum of empirical evidence varies; ‘‘mere conjecture’’ standard referenced)
- McConnell v. FEC, 540 U.S. 93 (2003) (discussion of contributions directed to candidates; referenced in defining scope of quid pro quo)
- FEC v. National Conservative Political Action Comm., 470 U.S. 480 (1985) (uses ‘‘dollars for political favors’’ formulation of corruption interest)
- Williams‑Yulee v. Florida Bar, 575 U.S. 433 (2015) (reaffirmed contribution limits advance anti‑corruption interest)