التخطي إلى المحتوى الرئيسي

9th Circuit Denies Rehearing En Banc in Montana Contribution Limits Appeal

It’s been six months since a three-judge panel of the Ninth Circuit Court of Appeals, on a 2-1 vote, upheld Montana’s right to limit campaign contributions. After Citizens United, the only governmental interest strong enough to over-ride the First Amendment is quid pro quo corruption or the appearance of corruption, and the government had to show “objective evidence” of that to justify a limit on speech. See McCutcheon v. FEC, 134 S. Ct. 1434, 1441, 1444–45 (2014); Citizens United v. FEC, 558 U.S. 310, 359 (2010).
The question in Lair was what was “objective evidence” of quid pro quo corruption: was evidence about lobbying or campaign contributions enough to show corruption, even though the Supreme Court held in Citizens United and McCutcheon that “ingratiation” or “access” was not corruption or its appearance? For example, Chief Justice Roberts wrote in McCutcheon:
We have said that government regulation may not target the general gratitude a candidate may feel toward those who support him or his allies, or the political access such support may afford. “Ingratiation and access . . . are not corruption.” Citizens United v. Federal Election Comm’n, 558 U. S. 310, 360 (2010). They embody a central feature of democracy—that constituents support candidates who share their beliefs and interests, and candidates who are elected can be expected to be responsive to those concerns.
The original panel decision last October ruled that, to prove “objective evidence” of corruption, Montana only had to show objective evidence of lobbying activity or campaign contributions. Today, the entire Court of Appeals refused to rehear the case en banc.
There was a dissent by five judges, written by Judge Sandra Ikuta and a concurrence with the denial by two. Judge Ikuta’s dissent stressed that the cases on which the original panel majority relied were handed down before recent Supreme Court cases like McCutcheon and Citizens United. The concurrence, written by Judges Raymond Fisher and Mary Murguia, argued that the original panel had respected the newer Supreme Court precedents in its decision.
The denial’s dissent and concurrence have actually set up a set of very timely and important questions for the Supreme Court. Professor Richard Hasen, host of the Election Law Blog, has already posted about the denial of rehearing. Hasen, who has defended contribution limits in the past, believes that the dissents and concurrence have identified an issue that the Supreme Court might likely choose to review:
Judge Ikuta’s dissent hits on an unresolved question. There are a number of campaign contribution cases, such as Shrink Missouri, decided when the Court was much more deferential to campaign finance regulations and much more willing to let states and localities support contribution limits with a little bit of evidence. No doubt these cases are in tension with McCutcheon, but McCutcheon did not overrrule these cases. And so judges like today divide on what to do.
Nevertheless, Hasen posits that a reversal of the Ninth Circuit’s decision “would almost certainly be to call into question all campaign contribution limits (as indicated in the Judge Fisher/Judge Murguia response).” He doesn’t think the Supreme Court would want to do that much and so might be unlikely to grant certiorari. Hasen does not mention that both Citizens United and McCutcheon are controversial cases, but that is likely behind his thinking.
On the other hand, this is a “clean” case, in the sense that there aren’t a lot of extraneous procedural or other issues that prevent a direct Supreme Court review of the critical legal question. The primary method for convincing the Supreme Court to review a decision is a division (“conflict”) among the circuit courts of appeal. The reason for this is to prevent “forum-shopping” between federal courts when litigants see that decisions in one Circuit are favorable and another not so much. Uniformity of the law across the country is primary among the interests of the Supreme Court.
And the Supreme Court has always been fairly protective of its own decisions, and may choose to use this case to educate lower court judges on this fundamental question. McCutcheon is a particularly recent decision, and, in Part V of its opinion, the Court parsed at some length the corruptive effect of campaigns contributions and lobbying:
The Government argued that there is an opportunity for corruption whenever a large check is given to a legislator, even if the check consists of contributions within the base limits to be appropriately divided among numerous candidates and committees. The aggregate limits, the argument goes, ensure that the check amount does not become too large. That new rationale for the aggregate limits—embraced by the dissent, see post, at 15–17—does not wash. It dangerously broadens the circumscribed definition of quid pro quo corruption articulated in our prior cases, and targets as corruption the general, broad-based support of a political party.
But that’s exactly what the Ninth Circuit decision would do. The Fisher/Murguia concurrence, for example, gave two examples of legislators speculating about large contributions to the Republican Party. Slip op. 25. This is a fundamental divide about the corrupting effect of campaign contributions, just four years after the Supreme Court dealt with the same question in McCutcheon. 
This one might be more important than its focus on the quantum of evidence would indicate. And Jim Bopp, the legendary attorney who brought this case, just messaged me to say that he definitely would ask the Supreme Court to grant cert.


المشاركات الشائعة من هذه المدونة

Mona Farouk reveals scenes of "scandalous video"Egyptian actress Mona Farouk appeared on

Mona Farouk reveals scenes of "scandalous video"Egyptian actress Mona Farouk appeared on Monday in a video clip to discuss the details of the case she is currently facing. She recorded the first video and audio statements about the scandalous video that she brings together with Khaled Youssef.Farouk detonated several surprises, on the sidelines of her summons to the Egyptian prosecution, that Khalid Youssef was a friend of her father years ago, when she was a young age, and then collected a love relationship with him when she grew up, and married him in secret with the knowledge of her parents and her father and brother because his social status was not allowed to declare marriage .Muna Farouk revealed that the video was filmed in a drunken state. She and her colleague Shima al-Hajj said that on the same day the video was filmed, she was at odds with Shima, and Khaled Yusuf repaired them and then drank alcohol.She confirmed that Youssef was the one who filmed the clips while…

Trusting Liar (#5) Leave a reply

Trusting Liar (#5)Leave a reply Gertruida is the first to recover. “Klasie…?” “Ag drop the pretence, Gertruida. You all call me ‘Liar’ behind my back, so why stop now? Might as well be on the same page, yes?” Liar’s face is flushed with anger; the muscles in his thin neck prominently bulging. “That diamond belongs to me. Hand it over.” “What are you doing? Put away the gun…” “No! This…,” Liar sweeps his one hand towards the horizon, “…is my place. Mine!  I earned it! And you…you have no right to be here!” “Listen, Liar, we’re not the enemy. Whoever is looking for you with the aeroplane and the chopper….well, it isn’t us. In fact, we were worried about you and that’s why we followed you. We’re here to help, man!” Vetfaan’s voice is pleading as he takes a step closer to the distraught man. “Now, put down the gun and let’s chat about all this.” Liar hesitates, taken aback after clearly being convinced that the group  had hostile intentions. “I…I’m not sure I believe you…” “And we’re neve…

الحلقة 20 هنادي المطلقة والمحلل (ماذا قال كتاب العرب في هنادي)-----------Khalid Babiker

الجنس شعور فوضوي يتحكم في الذات والعقل . وله قوة ذاتية لا تتصالح إلا مع نفسها . هكذا قال أنصار المحلل
الحلقة 20 هنادي المطلقة والمحلل (ماذا قال كتاب العرب في هنادي)
أول طريق عبره الإنسان هو طريق الذكر . بعدها شهق وصرخ . تمرغ في الزيت المقدس . وجرب نشوة الأرغوس . عاجلا أم آجلا سيبحث عن هذا الطريق ( كالأسماك تعود إلى أرض ميلادها لتبيض وتموت ) . وسيعبره . سيعبره بحثا عن الديمومة . وسيشهق وسيضحك . لقد جاء إليه غريبا . سيظل بين جدرانه الدافئة غريبا . وحالما يدفع تلك الكائنات الحية الصغيرة المضطربة في الهاوية الملعونة سيخرج فقيرا مدحورا يشعر بخيانة ما ( ..... ) . لن ينسى الإنسان أبدا طريق الذكر الذي عبره في البدء . سيتذكره ليس بالذاكرة وإنما بالذكر . سيعود إليه بعد البلوغ أكثر شوقا وتولعا . ولن يدخل فيه بجميع بدنه كما فعل في تلك السنوات التي مضت وإنما سيدخل برأسه . بعد ذلك سيندفع غير مبال بالخطر والفضيحة والقانون والدين . الله هناك خلف الأشياء الصغيرة . خلف كل شهقة . كل صرخة مندفعا في الظلام كالثور في قاعة المسلخ . الله لا يوجد في الأشياء الكبيرة . في الشرانق . في المح . ينشق فمه . تنفتح ع…