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BK Blog Post
Posted by Jeffrey Clements.
Jeffrey Clements is a cofounder and general counsel of Free Speech for People, a national, nonpartisan campaign to oppose corporate personhood and pass the People’s Rights Amendment.
On Tuesday, the federal district judge in the Lair v. Motl case struck down Montana’s campaign contribution limits (passed by the voters through a 1994 ballot initiative) as “too low.”
The history of this case is complex (see our blog post from September for a brief explanation) but the question before the judge was not: whether Montana’s campaign contribution limits are “closely drawn” to the state’s interest in preventing “quid pro quo corruption.” This isn’t really the right question—there are other interests at stake, such as protecting a meaningful right to vote, as we explained in a 2014 friend-of-the-court brief in an earlier iteration of this case—but it’s the question that the Court of Appeals instructed the district judge to answer.
Even so, the judge’s analysis was remarkably cramped. The state offered specific evidence, both from the 1990s and more recently, of quid pro quo corruption through campaign contributions, including (among other examples) testimony from a state legislator about a quid pro quo offer from National Right to Work of $100,000 for introducing and bringing a requested bill to a floor vote, and recent state court decisions that found that state legislators had engaged in quid pro quo transactions.
The judge rejected these examples, on the theory that the legislators involved either rejected the quid pro quo offers (who would testify that they agreed to receive a bribe?) or would have voted that way anyway. But just because a legislator rejects a bribery offer doesn’t mean that the state shouldn’t be concerned about the fact that the offer was made. And the fact that those offering the “quid” focused on persuadable legislators simply shows that bribers are not stupid.
The second part of the judge’s analysis addressed whether Montana’s contribution limits were “closely drawn” to preventing quid pro quo corruption. He ruled that they aren’t, for two reasons. First, when Montana’s voters passed these limits by ballot initiative in 1994, the Supreme Court didn’t insist that contribution limits be focused solely on quid pro quo corruption, so the ballot pamphlet from 1994 doesn’t talk in the magic words that the Supreme Court expects after Citizens United. Second, the judge ruled that many campaigns cannot be sufficiently funded without higher contribution limits. But that’s not right either. In 2014, we showed that candidates for state House of Representatives who had just 129 donors (the minimum number of signatures required to get onto the ballot) could raise $6,811 (the average budget for a House campaign) from contributions averaging just $52.80 each—well below the contribution limit of $320. (Senate districts are bigger and campaigns are more expensive, but interestingly enough, the math yields a nearly identical required average contribution: $52.73.) Maybe that’s why a study showed, that after the state’s contribution limits were enacted in 1994, the number of contributors increased by 51%, and the overall average contribution is still less than half the maximum limit.
Stepping back, there’s a larger trend of big money interests suing to overturn contribution limits in rural states, from Vermont to Montana to Alaska. (In the Alaska case, the parties just finished a seven-day trial, and are awaiting for the judge’s decision.) Opponents of campaign finance reform like to piggyback on the unpopularity of the U.S. Congress, or claim that campaign finance reform is incumbents protecting themselves from difficult re-election campaigns. But the big money litigation strategy challenging contribution limits passed directly by Montana’s voters themselves unmasks the game: reform opponents’ real concern is not about mistrusting Congress, and it’s definitely not about incumbent self-protection. It’s about preserving the unequal power of wealthy donors and weakening the principle of “one person, one vote.”
Free Speech For People will continue to monitor this case (and the pending Alaska case) and help as we can. But in the big picture, we can’t keep playing defense under the Supreme Court’s cramped precedents. We need to move from defense to offense and overturn the Court’s toxic anti-democracy decisions, not just Citizens United but also Buckley v. Valeo, and build a new constitutional framework based on political equality. We do that on two fronts: in the courts, with a democracy agenda for a post-Scalia Supreme Court, and in the public arena, with the campaign for constitutional amendment to get big money out of our politics forever.