Conservative judges slam Ninth Circuit ruling on campaign finance

SAN FRANCISCO -- Five conservative judges on the federal appeals court in San Francisco accused the court Wednesday of flouting U.S. Supreme Court protections for economic free speech by upholding a state's limits on political contributions. The case involved a Montana law, but the judges were inviting a new ruling by the high court that might also apply to campaign finance limits in California.

``Donor contributions are a form of political speech that merit the respect the First Amendment requires,'' Judge Sandra Ikuta wrote in an opinion dissenting from the refusal by a majority of the Ninth U.S. Circuit Court of Appeals to grant a new hearing in the case. She said the Supreme Court has required evidence of ``actual or apparent quid pro quo corruption'' -- trading money for votes -- to justify contribution limits, but the appeals court has concocted its own, more lenient standard.

Judge Raymond Fisher, writing for the court majority, said there was evidence in Montana of ``attempts to exchange campaign dollars for official legislative acts'' that justified the state's contribution limits. He also noted that 40 states, and the federal government, limit the amounts individuals can give to political candidates, restrictions the Supreme Court has left intact while striking down other campaign finance restrictions.

In its 2010 Citizens United ruling and follow-up cases, the high court allowed corporations to give unlimited amounts to independent political committees as an act of free speech, but did not disturb restrictions on donations to individual candidates.

But the Ninth Circuit dissenters --Ikuta and Judges Consuelo Callahan, Carlos Bea, Milan Smith and N. Randy Smith -- invited their fellow conservatives on the Supreme Court to take up the Montana case and rewrite the rules for campaign contributions. The court may be receptive, said Richard Hasen, a UC Irvine law professor and election law commentator.

If the high court looks at this case in the same way it has considered other campaign finance issues, ``it is hard to see how it will conclude many campaign contribution limits will stand'' in any state, Hasen said on his Election Law blog. ``The court may not want to go down that road, given how disruptive and crazy such a ruling would be.''

James Bopp, the lawyer for challengers to the Montana law, said he was encouraged by the dissents and hoped the Supreme Court would use the case to strike down limits in Montana, California and other states.

``Contribution limits in the vast majority of states are way too low'' and ``were passed for illicit reasons ... to stop as much private spending on campaigns as they can,'' said Bopp, general counsel for the James Madison Center for Free Speech. Referring to California's limit of $4,200 for individual contributions to legislative candidates, he said, jokingly, ``You can't even buy a Democrat for $4,200.''

But Los Angeles attorney Robert Stern, former general counsel of the state's Fair Political Practices Commission and coauthor of the 1974 ballot measure that first regulated campaign financing in California, noted that the state's limits are higher than the federal law maximum of $2,700 for individual donations to candidates for Congress, U.S. Senate or president.

``I don't see how this (case) has much effect on California unless the court sways, and it's a possibility, that all contribution limits are unconstitutional,'' Stern said.

In addition to the $4,200 limit on legislative contributions, California allows individuals to give as much as $28,200 to a candidate for governor, and $7,000 to a candidate for another statewide office.

Montana, with a far smaller population and much less expensive campaigns, allows donations of $1,320 to candidates for governor, $660 for other state offices and $340 for legislators.

A federal judge declared the limits unconstitutional, but an appeals court panel led by Fisher reversed that ruling in November, and on Wednesday, the full court said a request for a rehearing had fallen short of a majority.

In a separate opinion Wednesday endorsing that decision, Fisher cited a letter one legislator sent to fellow Republicans, urging them to vote for an insurance bill in order to ``keep the contributions coming our way'' from a lobbying group.

Such evidence showed enough of a ``risk of ... corruption'' to support contribution limits, Fisher said. But Ikuta, in dissent, said it fell far short of showing actual vote-buying.