Doug Lair v. Steve Bullock ( 2012 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DOUG LAIR; STEVE DOGIAKOS; 
AMERICAN TRADITION PARTNERSHIP;
AMERICAN TRADITION PARTNERSHIP
PAC; MONTANA RIGHT TO LIFE
ASSOCIATION PAC; SWEET GRASS
COUNCIL FOR COMMUNITY
INTEGRITY; LAKE COUNTY
REPUBLICAN CENTRAL COMMITTEE;
BEAVERHEAD COUNTY REPUBLICAN
CENTRAL COMMITTEE; JAKE OIL,
LLC; JL OIL, LLC; CHAMPION No. 12-35809
PAINTING; JOHN MILANOVICH,
Plaintiffs-Appellees,  D.C. No.
6:12-cv-00012-CCL
v. OPINION
STEVE BULLOCK, in his official
capacity as Attorney General of
the State of Montana; JAMES
MURRY, “Jim”, in his official
capacity as Commissioner of
Political Practices; LEO
GALLAGHER, in his official capacity
as Lewis and Clark County
Attorney,
Defendants-Appellants.

Appeal from the United States District Court
for the District of Montana
Charles C. Lovell, Senior District Judge, Presiding
Submitted to Motions Panel October 15, 2012*
*The panel unanimously finds this case suitable for decision without
oral argument. Fed. R. App. P. 34(a)(2).
12671
12672 LAIR v. BULLOCK
Filed October 16, 2012
Before: Ronald M. Gould, Richard R. Clifton, and
Jay S. Bybee, Circuit Judges.
Opinion by Judge Bybee
12674 LAIR v. BULLOCK
COUNSEL
Michael G. Black and Andrew I. Huff, Assistant Attorneys
General, Montana Department of Justice, Helena, Montana,
for the defendants-appellants.
James Bopp, Jr., Jeffrey Gallant, and Anita Y. Woudenberg,
The Bopp Law Firm, PC, Terre Haute, Indiana, for the
plaintiffs-appellees.
OPINION
BYBEE, Circuit Judge:
Since 1994, Montana has regulated the amount that individ-
uals, political committees, and political parties can contribute
to candidates for state office. Mont. Code Ann. § 13-37-216,
LAIR v. BULLOCK 12675
as adjusted by Admin. R. Mont. § 44.10.338.1 In 2003, we
upheld this provision against a constitutional challenge based
on Buckley v. Valeo, 424 U.S. 1 (1976), and Nixon v. Shrink
Missouri Government PAC, 528 U.S. 377 (2000). Mont. Right
to Life Ass’n v. Eddleman, 343 F.3d 1085 (9th Cir. 2003),
cert. denied, 543 U.S. 812 (2004). Applying the “analytical
framework set forth in Buckley and [Shrink Missouri],” we
held that “Montana’s interest in purging corruption and the
appearance of corruption from its electoral system is suffi-
ciently important to withstand constitutional scrutiny” and
that § 13-37-216 was “closely tailored to achieving those
ends.” Id. at 1098. We concluded that § 13-37-216 was “con-
stitutional and [did] not violate the First Amendment.” Id.
On October 3, 2012, with less than five weeks before the
general election and after absentee voting in Montana began,
the district court concluded that “Montana’s contribution lim-
its in Montana Code Annotated § 13-37-216 are unconstitu-
tional under the First Amendment.” Order, Lair v. Murry, No.
CV 12-12-H-CCL, at 4 (D. Mont. Oct. 3, 2012) [hereinafter
Order]. The district court permanently enjoined Montana from
enforcing its campaign contribution limits. Id. at 5. In an
opinion and order issued on October 10, 2012, the district
court explained that our decision in Eddleman was “not bind-
ing on this Court because the U.S. Supreme Court’s interven-
ing decision in Randall [v. Sorrell, 548 U.S. 230 (2006),]
compels a different outcome.” Opinion and Order, Lair v.
Murry, No. CV 12-12-H-CCL, at 24 (D. Mont. Oct. 10,
2012).
The State of Montana has sought a stay of the district
court’s order pending appeal. For the reasons we explain
below, we believe that the state is likely to succeed on appeal.
We conclude that the State of Montana has made a strong
1
We have attached Mont. Code Ann. § 13-37-216 (“Appendix A”) and
Admin. R. Mont. § 44.10.338 (“Appendix B”) as appendices to this opin-
ion.
12676 LAIR v. BULLOCK
showing that a merits panel of this Court will likely conclude
that, absent en banc proceedings or an intervening decision of
the Supreme Court, we remain bound by our decision in
Eddleman. See Miller v. Gammie, 335 F.3d 889, 892-93 (9th
Cir. 2003) (en banc). We also conclude that a merits panel is
likely to hold that the analytical framework of the Supreme
Court’s decision in Randall does not alter the analysis of
Buckley or Shrink Missouri in a way that affects our decision
in Eddleman, for three reasons. First, there is no opinion of
the Court in Randall. Thalheimer v. City of San Diego, 645
F.3d 1109, 1127 n.5 (9th Cir. 2011) (“[T]he plurality opinion
[in Randall] [i]s persuasive authority, though not a binding
precedent.” (internal quotation marks omitted)). Second, even
if we thought that Justice Breyer’s plurality opinion repre-
sented the narrowest view of a majority of the Court, it did
not depart from the principles of Buckley and Shrink Missouri
that we applied in Eddleman. Randall, 548 U.S. at 242 (opin-
ion of Breyer, J.) (“[T]his Court has repeatedly adhered to
Buckley’s constraints . . . .”). Third, even if we applied Ran-
dall to § 13-37-216, we cannot find, on the basis of the district
court’s findings, reason to disagree with, much less overturn,
Eddleman. In light of Montana’s interest in regulating cam-
paign contributions, the lack of evidence that other parties
will be substantially injured, and the public’s substantial inter-
est in the stability of its electoral system in the final weeks
leading to an election, we will stay the order pending the
state’s appeal. See Nken v. Holder, 556 U.S. 418, 434 (2009).
I. PROCEEDINGS BELOW
The plaintiffs-appellees, various individuals, political
action committees, and other political organizations, brought
suit in September 2011 to challenge several provisions of
Montana’s finance and election laws. The defendants-
appellants are various officials of the State of Montana. Only
one provision, § 13-37-216 of the Montana Code Annotated,
which limits contributions that individuals and political com-
mittees can make to candidates, is at issue in this case. The
LAIR v. BULLOCK 12677
district court held a bench trial on September 12-14, 2012. On
October 3, 2012, the district court issued a brief order
recounting the procedural history of the suit and the fact of
the bench trial. The court stated that “[h]aving reviewed and
considered the entire record and the parties’ arguments and
evidence, the Court concludes that Montana’s contribution
limits in Montana Code Annotated § 13-37-216 are unconsti-
tutional under the First Amendment.” Order at 4. The court
permanently enjoined the enforcement of § 13-37-216. The
district court did not issue an opinion, but stated that “com-
plete and extensive findings of fact and conclusions of law
that support this order” would be filed separately. Order at 5.
The order was filed before it issued the findings of fact and
conclusions of law “so that th[e] order c[ould] be issued
before voting begins in the upcoming election.” Id.
The following day, October 4, 2012, the state defendants-
appellants filed for a stay pending appeal. We ordered an
expedited response from the plaintiffs-appellees, which they
filed on October 9, 2012. That same day, noting that the dis-
trict court had not issued findings and conclusions, we found
that we were “severely constrained in [our] consideration of
the underlying issues raised in the emergency motion.” Order,
Lair v. Murry, No. 12-35809, at 1 (9th Cir. Oct. 9, 2012). We
nevertheless ordered that the injunction be “temporarily
stayed pending further order of the court.” Id. at 2.
The district court issued an Opinion and Order containing
its findings of fact and conclusions of law on October 10,
2012. The state filed a reply in support of its motion for a stay
on October 11, 2012.
II. STANDARD OF REVIEW
[1] “A stay is not a matter of right. . . . It is instead ‘an
exercise of judicial discretion’ . . . [that] ‘is dependent upon
the circumstances of the particular case.’ ” Nken, 556 U.S. at
433 (internal citations omitted) (quoting Virginian Ry. Co. v.
12678 LAIR v. BULLOCK
United States, 272 U.S. 658, 672-73 (1926)). Judicial discre-
tion in exercising a stay is to be guided by the following legal
principles, as distilled into a four factor analysis in Nken: “(1)
whether the stay applicant has made a strong showing that he
is likely to succeed on the merits; (2) whether the applicant
will be irreparably injured absent a stay; (3) whether issuance
of the stay will substantially injure the other parties interested
in the proceeding; and (4) where the public interest lies.” Id.at 434 (citing Hilton v. Braunskill, 481 U.S. 770, 776 (1987)).2
“The party requesting a stay bears the burden of showing that
the circumstances justify an exercise of [this Court’s] discre-
tion.” Id. at 433-34.
III. DISCUSSION
As discussed in detail below, we find that the State of Mon-
tana has satisfied this burden. As the Nken factors illustrate,
especially in light of the delicate campaign contribution equi-
librium leading up to the imminent election, we should and
will exercise our discretion to stay the district court’s order
pending resolution of the appeal by a merits panel of this
court.
A. Strong Showing that Success is Likely on the Merits
The first two Nken factors “are the most critical.” Id. at
434. Regarding the first factor, Nken held that it is not enough
that the likelihood of success on the merits is “better than neg-
ligible” or that there is a “mere possibility of relief.” Id.
(internal quotation marks omitted). Since Nken did not specify
“the exact degree of likely success that stay petitioners must
show, . . . courts routinely use different formulations to
describe this [factor].” Leiva-Perez v. Holder, 640 F.3d 962,
2
As Nken recognized, “[t]here is substantial overlap between these and
the factors governing preliminary injunctions.” Nken, 556 U.S. at 434.
Compare id., with Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7,
20 (2008).
LAIR v. BULLOCK 12679
966 (9th Cir. 2011) (per curiam). We have concluded that
many of these formulations, including “reasonable probabili-
ty,” “fair prospect,” “substantial case on the merits,” and “se-
rious legal questions . . . raised,” are largely interchangeable.
Id. at 967-68. All of these formulations indicate that, “at a
minimum,” a petitioner must show that there is a “substantial
case for relief on the merits.” Id. at 968. The standard does
not require the petitioners to show that “it is more likely than
not that they will win on the merits.” Id. at 966.
[2] We find that the State of Montana has met its burden
to make a strong showing that success on the merits is likely.
In 2003, we specifically considered the constitutionality of the
Montana statute at question here. Eddleman, 343 F.3d at
1092-96. Our decision in Eddleman stands as a barrier to be
overcome, a barrier that works significantly to the State of
Montana’s advantage. The plaintiffs in this case do not argue
that anything has fundamentally changed in Montana political
campaigns since our decision in Eddleman that would call
into question our conclusions made in 2003. In fact, the evi-
dence presented before the district court in this case appears
quite similar to the evidence that was presented in Eddleman.
The only change in circumstance pointed to by the plaintiffs
is the Supreme Court’s decision in Randall. The presumption
is that our holding in Eddleman is controlling in this case, see
Miller, 335 F.3d at 892-93, and we find that Randall does not
overcome this presumption. Randall is not binding authority
because there was no opinion of the Court. Further, even if we
looked to Justice Breyer’s plurality opinion in Randall, it is
not clearly irreconcilable with the pre-existing law that we
applied in Eddleman. Finally, even if we apply Randall, our
limited review suggests that Randall would not compel a
result different from Eddleman. This is particularly the case
given the points of tension and possible errors that we find on
the face of the district court’s Opinion and Order. Therefore,
taken as a whole, and based upon our limited review, necessi-
tated by the imminent election, we conclude that the State of
12680 LAIR v. BULLOCK
Montana has made a “substantial case for relief on the mer-
its.”
1. Whether Randall has a majority opinion
Marks v. United States held that “[w]hen a fragmented
Court decides a case and no single rationale explaining the
result enjoys the assent of five Justices, the holding of the
Court may be viewed as that position taken by those Members
who concurred in the judgments on the narrowest grounds.”
430 U.S. 188, 193 (1977) (internal quotation marks omitted).
The Supreme Court has acknowledged that in some cases
“[t]his test is more easily stated than applied,” and that under
certain circumstances it may not be “useful to pursue the
Marks inquiry to the utmost logical possibility.” Nichols v.
United States, 511 U.S. 738, 745-46 (1994) (recognizing that
where the application of the Marks test to a prior splintered
decision “ha[d] so obviously baffled and divided the lower
courts that ha[d] considered it,” there is reason to reexamine
that prior decision).
Likewise, we have also held that the Marks standard is not
always helpful, and should only be applied “where one opin-
ion can be meaningfully regarded as narrower than another
and can represent a common denominator of the Court’s rea-
soning.” United States v. Rodriguez-Preciado, 399 F.3d 1118,
1140 (9th Cir.) (internal quotation marks omitted) (citing
other circuits that have held similarly), amended by 416 F.3d
939 (9th Cir. 2005). This standard requires that the narrowest
opinion is actually the “logical subset of other, broader opin-
ions,” such that it “embod[ies] a position implicitly approved
by at least five Justices who support the judgment.” Id. (quot-
ing King v. Palmer, 950 F.2d 771, 781 (D.C. Cir. 1991) (en
banc)); see also United States v. Williams, 435 F.3d 1148,
1157 (9th Cir. 2006) (explaining that Marks requires us to
find a “legal standard which, when applied, will necessarily
produce results with which a majority of the Court from that
case would agree”). If there is no such narrow opinion, “the
LAIR v. BULLOCK 12681
only binding aspect of a splintered decision is its specific
result.” Rodriguez-Preciado, 399 F.3d at 1140.
Randall is the epitome of a splintered decision. Although
six Justices ultimately concurred in the judgment, the case
generated six opinions, four of which were required for the
six Justices to concur in the judgment. Since the opinions of
both Justices Kennedy and Thomas would revisit—or, as pre-
ferred by Justices Thomas and Scalia, overrule Buckley, Jus-
tice Breyer’s plurality decision offers the narrowest rationale
in support of the judgment. See Randall, 548 U.S. at 265(Kennedy, J., concurring in the judgment) (“Viewed within
the legal universe we have ratified and helped create, the
result the plurality reaches is correct; given my own skepti-
cism regarding that system and its operation, however, it
seems to me appropriate to concur only in the judgment.”); id.
at 265-66 (Thomas, J., concurring in the judgment)
(“Although I agree with the plurality that [the Vermont contri-
bution limit statute] is unconstitutional, I disagree with its
rationale for striking down that statute. . . . I continue to
believe that Buckley provides insufficient protection to politi-
cal speech, the core of the First Amendment. . . . [S]tare deci-
sis should pose no bar to overruling Buckley and replacing it
with a standard faithful to the First Amendment.”).
It cannot be said, however, that Justice Breyer’s plurality
opinion represents a “common denominator of the Court’s
reasoning,” enjoying the assent of five Justices. Justices
Thomas and Scalia would “overrule Buckley and subject both
the contribution and expenditure restrictions of [the Vermont
statute] to strict scrutiny, which they would fail.” Id. at 267(Thomas, J., concurring in the judgment). Thus, further con-
sideration of Justice Kennedy’s position is irrelevant for our
purposes, since at most Justice Breyer’s rationale could only
garner the assent of four Justices. If Justice Kennedy’s posi-
tion were relevant to this inquiry, however, his “skepticism
regarding that system and its operation,” coupled with his pre-
viously asserted criticism of Buckley, strongly suggests that
12682 LAIR v. BULLOCK
only three Justices assented to Justice Breyer’s rationale. Id.
at 265 (Kennedy, J., concurring in the judgment); see also
Shrink Missouri, 528 U.S. at 409-10 (Kennedy, J., dissenting)
(“I would overrule Buckley . . . . The First Amendment ought
to be allowed to take its own course without further obstruc-
tion from the artificial system we have imposed. It suffices
here to say that the law in question does not come even close
to passing any serious scrutiny.”).
This analysis is consistent with our previous recognition—
a holding binding upon this Court, see Miller, 335 F.3d at892-93—that no position in Randall garnered the support of
more than three Justices. Thalheimer, 645 F.3d at 1127 & n.5
(explaining that “Justice Breyer’s plurality opinion announced
the judgment of the Court,” so “we follow the plurality opin-
ion as persuasive authority, though not a binding precedent”
since “Justice Breyer’s plurality opinion was [only] joined by
two justices, one in full and one in part” (internal quotation
marks omitted)). The only binding aspect of Randall, then, is
its judgment, striking down the Vermont contribution limit
statute as unconstitutional. Since Randall is otherwise only
persuasive, in this context it could not have altered the law as
previously dictated by such cases as Buckley and Shrink Mis-
souri, the law we expressly relied upon in Eddleman.
2. Whether Justice Breyer’s opinion alters Buckley
Even if Justice Breyer’s plurality did represent a majority
opinion under Marks, however, Randall is not irreconcilable
with the principles of Buckley and Shrink Missouri. In Miller
v. Gammie, sitting en banc, we considered the question of
“when a three-judge panel may reexamine normally control-
ling circuit precedent in the face of an intervening United
States Supreme Court decision.” Miller, 335 F.3d at 892. We
held that “where the reasoning or theory of our prior circuit
authority is clearly irreconcilable with the reasoning or theory
of intervening higher authority, a three-judge panel should
consider itself bound by the later and controlling authority,
LAIR v. BULLOCK 12683
and should reject the prior circuit opinion as having been
effectively overruled.” Id. at 893. We further held that “the
issues decided by the higher court need not be identical in
order to be controlling.” Id. at 900. We made it clear that this
standard applies not only to three-judge panels but also to dis-
trict courts within this circuit. Id. at 899 (describing prior cir-
cuit decisions effectively overruled based on higher
intervening authority as “no longer binding on district judges
and three-judge panels of this court”); see also Day v. Apo-
liona, 496 F.3d 1027, 1031 (9th Cir. 2007) (“The Miller stan-
dard is thus not met, and we (and the district court) are bound
by our earlier precedent.”).
Since Miller, we have elaborated on this standard.
Recently, in In re Flores, we explained that “we are bound by
our prior precedent if it can be reasonably harmonized with
the intervening authority.” In re Flores, 692 F.3d 1021, 1030
(9th Cir. 2012). In that case, we explained that under Miller,
we were compelled to defer to prior circuit precedent because
(1) the “overall analytical framework” of the intervening
Supreme Court case was “consistent with our overall analyti-
cal approach” in prior circuit precedent, id. at 1030-31, and
(2) the specific application of that framework in the interven-
ing Supreme Court case did not mandate a result in the prior
case in conflict with the decision rendered by this Court in
that case. Id. at 1030-38. As Flores’ first consideration sug-
gests, “Miller v. Gammie . . . instructs us to focus on the rea-
soning and analysis in support of a holding, rather than the
holding alone.” United States v. Lindsey, 634 F.3d 541, 550
(9th Cir. 2011); see also Miller, 335 F.3d at 900 (citing
Antonin Scalia, The Rule of Law as a Law of Rules, 56 U.
Chi. L. Rev. 1175, 1177 (1989)) (favorably discussing Justice
Scalia’s assertion in a law review essay that lower courts are
bound by higher courts’ “mode of analysis,” not just their
holdings).
Although we should consider the intervening authority’s
reasoning and analysis, as long as we can apply our prior cir-
12684 LAIR v. BULLOCK
cuit precedent without “running afoul” of the intervening
authority, we must do so. United States v. Orm Hieng, 679
F.3d 1131, 1140 (9th Cir. 2012). It is not enough for there to
be “some tension” between the intervening higher authority
and prior circuit precedent, id. at 1140-41, or for the interven-
ing higher authority to “cast doubt” on the prior circuit prece-
dent, United States v. Delgado-Ramos, 635 F.3d 1237, 1239
(9th Cir. 2011). The intervening higher precedent must be
“clearly inconsistent” with the prior circuit precedent. Orm
Hieng, 679 F.3d at 1141. This is a “high standard.” Delgado-
Ramos, 635 F.3d at 1239.
[3] Applying these principles here, it is obvious that even
if Justice Breyer’s plurality opinion were binding on this
court, Randall is not “clearly irreconcilable” with Eddleman.
Miller, 335 F.3d at 893. On its face, Justice Breyer’s plurality
opinion does not purport to change the state of the law but
expressly looked to Buckley and its progeny: “Over the last 30
years, in considering the constitutionality of a host of different
campaign finance statutes, this Court has repeatedly adhered
to Buckley’s constraints . . . .” Randall, 548 U.S. at 242 (opin-
ion of Breyer, J.); see id. at 246 (“[W]e begin with Buckley.”).
Indeed, the Breyer opinion specifically found that “[s]ince
Buckley, the Court has consistently upheld contribution lim-
its.” Id. at 247. Although the Court ultimately struck down
Vermont’s contribution limits, it did so consistent with the
principles announced in Buckley.
If anything, Randall’s plurality only clarified and rein-
forced Buckley and its progeny. In Randall, Justice Breyer
observed that Buckley “general[ly] approv[ed] of statutes that
limit campaign contributions,” as long as the statute could
demonstrate a “sufficiently important interest.” Id. at 246-47.
The importance of Randall, then, was that the plurality
affirmed Buckley, while at the same time showing that Buck-
ley was not a rubberstamp. Other courts and scholars have
LAIR v. BULLOCK 12685
concluded that Randall is an application of Buckley, not a repudi-
ation.3
As Justice Breyer wrote, Buckley requires that contribution
limits not “prevent candidates from ‘amassing the resources
necessary for effective [campaign] advocacy.’ ” Id. at 248(quoting Buckley, 424 U.S. at 21) (alteration in Randall). He
also emphasized that contribution limits cannot “magnify the
advantages of incumbency to the point where they put chal-
lengers to a significant disadvantage.” Id.; see also Shrink
Missouri, 528 U.S. at 403-04 (Breyer, J., concurring). But, as
Justice Breyer said, “we have ‘no scalpel to probe’ each pos-
sible contribution level,” so the Court “cannot determine with
any degree of exactitude the precise restriction necessary to
carry out the statute’s legitimate objectives.” Randall, 548
U.S. at 248 (opinion of Breyer, J.) (quoting Buckley, 424 U.S.
at 30). Accordingly, “the legislature is better equipped to
make such empirical judgments.” Id. Randall reaffirmed
Buckley’s recognition that such deference to the legislature
has a limit, that after Buckley there is a “lower bound.” Id. at
248-49.
3
See, e.g., McNeilly v. Land, 684 F.3d 611, 617 (6th Cir. 2012) (finding
that Randall “[a]ppl[ied] Buckley” in analyzing Vermont’s contribution
limit); N.C. Right to Life, Inc. v. Leake, 525 F.3d 274, 291 (4th Cir. 2008)
(describing Randall as affirming principles laid out in Buckley in discuss-
ing a North Carolina contribution limit); Allison R. Hayward, The Per
Curiam Opinion of Steel: Buckley v. Valeo as Superprecedent? Clues
from Wisconsin and Vermont, 2006 Cato Sup. Ct. Rev. 195, 196 (describ-
ing Randall as “declin[ing] to rework Buckley v. Valeo’s holding”); Jason
B. Frasco, Note, Full Public Funding: An Effective and Legally Viable
Model for Campaign Finance Reform in the States, 92 Cornell L. Rev.
733, 742 (2007) (“[W]ith respect to the contribution limits, the plurality
again found the principles in Buckley to be controlling.”); Aimee Priya
Ghosh, Comment, Disrobing Judicial Campaign Contributions: A Case
for Using the Buckley Framework to Analyze the Constitutionality of Judi-
cial Solicitation Bans, 61 Am. U. L. Rev. 125, 140 (2011) (“[T]he Court
recognized that Buckley established the existence of a ‘lower bound’
under which a regulation would be so restrictive as to violate the First
Amendment.”).
12686 LAIR v. BULLOCK
Randall’s discussion of “danger signs” and the plurality’s
subsequent analysis of “five sets of considerations” did not
present a new test for analyzing contribution limits; rather,
this discussion only explained a mode for determining
whether the limits were “narrowly tailored” under Buckley. Id.
at 249-262. Randall stands as a warning to lower courts that
Buckley does not license them to approve any contribution
limitation that professes an anti-corruption rationale; instead,
lower courts must carefully analyze statutes to ensure that
they are narrowly tailored. Id. at 249-50.
We took such a careful approach in Eddleman. As such, the
“overall analytical framework” in Eddleman is in harmony
with Randall. In Eddleman, we began with Buckley’s premise
that contribution limits are constitutional as long as they do
not prevent candidates from “amassing the resources neces-
sary for effective advocacy.” Eddleman, 343 F.3d at 1091(quoting Buckley, 424 U.S. at 21). We noted that such restric-
tions “are subject to the ‘closest scrutiny’ ” and must be
“closely drawn.” Id. (quoting Buckley, 424 U.S. at 25). We
reviewed the Court’s post-Buckley opinions and summarized
the principles to be derived therefrom.4
3. Whether Eddleman’s analysis is consistent with
Randall’s analysis
Even if we thought Randall altered Buckley in some way,
our decision in Eddleman considered the same issues that
4
We wrote:
The bottom line is this: After Buckley and Shrink Missouri, state
campaign contribution limits will be upheld if (1) there is ade-
quate evidence that the limitation furthers a sufficiently important
state interest, and (2) if the limits are “closely drawn”—i.e., if
they (a) focus narrowly on the state’s interest, (b) leave the con-
tributor free to affiliate with a candidate, and (c) allow the candi-
date to amass sufficient resources to wage an effective campaign.
Eddleman, 343 F.3d at 1092.
LAIR v. BULLOCK 12687
were important in Justice Breyer’s plurality opinion. The
State of Montana has made a strong showing that Randall
would not have mandated a different result in Eddleman.
a. The Four “Danger Signs”
Justice Breyer’s opinion in Randall identified four “danger
signs” to look for in a campaign contribution statute: “(1) The
limits are set per election cycle, rather than divided between
primary and general elections; (2) the limits apply to contribu-
tions from political parties; (3) the limits are the lowest in the
Nation; and (4) the limits are below those we have previously
upheld.” Id. at 268 (Thomas, J., concurring in the judgment)
(listing Justice Breyer’s “danger signs”). We considered, in
some form, each of these “danger signs” in Eddleman.
First, we found that the Montana contribution limits “apply
to ‘each election in a campaign,’ [so,] the amount an individ-
ual may contribute to a candidate doubles when the candidate
participates in a contested primary.” Eddleman, 343 F.3d at
1088. By comparison, Vermont’s limits applied to a “two-
year general election cycle.” Randall, 548 U.S. at 238.
Second, although Eddleman did not specifically deal with
the limit on campaign contributions by political parties, there
was no need to do so, because in Montana the aggregate con-
tribution limits for political parties is much higher than the
individual and political committee contribution limits. See
Eddleman, 343 F.3d at 1094 (“[W]hile decreasing PAC and
individual contributions, [Montana’s contribution limit stat-
ute] simultaneously increased the amount of money political
parties may contribute to a candidate, almost doubling the
amount that may be contributed in some races.”); see also
Mont. Code Ann. § 13-37-216(3). In this regard, Montana’s
statute stands in stark contrast with Vermont’s, which applied
the same low contribution limit to individuals, PACs, and
political parties alike. Randall, 548 U.S. at 238-39.
12688 LAIR v. BULLOCK
Third, we acknowledged that Montana’s limits were “some
of the lowest in the country,” but also observed that this was
“unsurprising in light of the fact that Montana is one of the
least expensive states in the nation in which to mount a politi-
cal campaign.” Eddleman, 343 F.3d at 1095. As Randall
shows, Montana retains some of the lowest contribution limits
in the nation, but it is not the lowest, a distinction that
belonged to Vermont. See Randall, 548 U.S. at 250-51.5
Fourth, while Eddleman did not specifically compare Mon-
tana’s contribution limits with other instances where the Court
has upheld a contribution limit as constitutional, we did com-
pare the change in Montana’s total campaign spending with
other instances where the Court had upheld limits that
involved greater decreases in total campaign spending. Eddle-
man, 434 F.3d at 1094 (“Indeed, the Shrink Missouri Court
upheld contributions limits despite a decrease of more than
50% in total spending in Missouri elections, nearly twice the
decrease present here.”).
We also considered that there are “provision[s] preventing
incumbents from using excess funds from one campaign in
future campaigns. Such provision[s] keep incumbents from
building campaign war chests and gaining a fundraising head
start over challengers.” Id. at 1095. We stressed that, in the
end analysis, it is not the dollar amount that is critical, it is
5
The district court appears to read Randall’s “danger signs” as con-
demning Montana’s contribution limits. Opinion and Order at 28 (con-
cluding without analysis that Montana’s limits violate Randall’s “danger
signs” merely because “the U.S. Supreme Court has previously observed
that Montana’s limits, like Vermont’s former limits, are among the lowest
in the country”). This reading of Randall is flawed. Randall referred to
Montana’s contribution limits—along with those of Arizona, Colorado,
Florida, Maine, Massachusetts, and South Dakota—only as a method for
illustrating that Vermont’s limits raised one “danger sign” and solidifying
Vermont’s status as an outlier among other states with regards to contribu-
tion limits. Randall, 548 U.S. at 250-51. Nothing in Randall even hints
that Montana’s limits are unconstitutional.
LAIR v. BULLOCK 12689
whether a candidate can amass the resources necessary to
mount an effective campaign, id., a position in harmony with
Randall, see 548 U.S. at 248-49.
Thus, all of Randall’s “danger signs” were considered in
one form or another. Most importantly, and consistent with
Randall, our decision in Eddleman “review[ed] the record
independently and carefully with an eye toward assessing the
statute’s ‘tailoring.’ ” Id. at 249. We think Eddleman took
ample account of the “danger signs” identified in Randall.
b. The “Five Considerations”
Aside from the four “danger signs,” our decision in Eddle-
man addressed broadly what Justice Breyer called “five sets
of considerations.” Id. at 261. The five considerations were:
(1) Whether the “contribution limits will significantly restrict
the amount of funding available for challengers to run com-
petitive campaigns”; (2) whether “political parties [must]
abide by exactly the same low contribution limits that apply
to other contributors”; (3) how “volunteer services” are
treated; (4) whether “contribution limits are . . . adjusted for
inflation”; and (5) whether there exists “any special justifica-
tion that might warrant a contribution limit so low or so
restrictive.” Id. at 253-61. In Eddleman, we addressed each of
these considerations in some way.
(1). With respect to the first consideration, whether the lim-
its restrict challengers, the Court in Randall considered statis-
tical analyses relevant to discerning “the critical question . . .
[, i.e., whether] a candidate running against an incumbent
officeholder [can] mount an effective challenge.” Id. at 255.
The Court noted that it emphasized the competitiveness of
races because it was a proxy for the relative ability of a chal-
lenger to overcome the advantages of incumbency. Id.In Eddleman, we recognized the importance of considering
“all dollars likely to be forthcoming in a campaign, rather
12690 LAIR v. BULLOCK
than the isolated contribution, and . . . consider[ed] factors
such as whether the candidate can look elsewhere for money,
the percentage of contributions that are affected, the total cost
of a campaign, and how much money each candidate would
lose.” Eddleman, 343 F.3d at 1094 (internal citations omit-
ted). We repeatedly emphasized that the mere fact that a can-
didate could have raised more money without the limits was
not the relevant inquiry; rather, the issue was whether the
limit prevented a campaign from being effective. Id. at 1095(“[A]part from bald, conclusory allegations that their cam-
paigns would have been more effective had they been able to
raise more money, none of the witnesses offered any specifics
as to why their campaigns were not effective.”) (internal quo-
tation marks omitted). We found that “Montana candidates
remain able to mount effective campaigns.” Id. (describing
candidates who claimed the limits prevented effective cam-
paigns but some of which raised more money after the limits
were in place and another who won with a large surplus of
campaign funds). Additionally, even though the contribution
limits restrict the total amount of funds raised, candidates
were still able to raise funds “well within the range of money
needed to run an effective . . . campaign.” Id. at 1094-95.
Specific to the Court’s concern with challengers to incum-
bency, we discussed provisions that increased the ability of
challengers to overcome the effects of incumbency. First, we
pointed out that Ҥ 13-37-216 also contains a provision pre-
venting incumbents from using excess funds from one cam-
paign in future campaigns.” Id. at 1095. Second, we found
that “the average gap between the total amount of money
raised by incumbents and challengers for all legislative races
was only $65.00 per race,” so there was almost no difference
between incumbents and challengers in the amount of money
they raised. Id. Third, relying on Buckley and Shrink Mis-
souri, we suggested that there was no evidence that Mon-
tana’s limitations allowed incumbents to leverage their
incumbency unfairly against their challengers. Id. at 1095-96.
LAIR v. BULLOCK 12691
The district court did not look to our opinion in Eddleman.
Instead, it conducted its own inquiry. For example, it com-
pared the Vermont limits for state senate and house with those
of Montana and concluded that Montana’s were lower. Opin-
ion and Order at 29. We think the district court did not
account for one key difference between Vermont and Mon-
tana. While Vermont’s contribution limits apply to a “two-
year general election cycle,” Randall, 548 U.S. at 238-39,
Montana’s limits apply to “each election,” Mont. Code Ann.
§ 13-37-216(1)(a), meaning that if there is a contested pri-
mary, the district court has understated Montana’s limits by
half. See Eddleman, 343 F.3d at 1088 (“[T]he amount an indi-
vidual may contribute to a candidate doubles when the candi-
date participates in a contested primary.”). In other words, if
there is a primary, Montana’s limit for the state legislature is
$320, which is greater than Vermont’s limit for state senate
($300) and much higher than its limit for state house ($200).
Additionally, we are concerned that the evidence the dis-
trict court received and credited—which because of our time
constraints, the parties have not briefed and we have not
examined as thoroughly as we ordinarily would like—does
not adequately account for the revenues actually available to
candidates. For example, Montana only requires that the iden-
tity of donors contributing $35 or more, and their aggregate
amount of contributions, be disclosed. Mont. Code Ann. § 13-
37-229(2)-(3). While a candidate is required to disclose an
“itemized account of proceeds that total less than $35 from a
person,” the donor’s identity is not disclosed and therefore
does not count against an individual’s aggregate contribution
limit. Mont. Code Ann. § 13-37-229(8). Thus, it is likely that
Montana’s limits understate the actual contributions made to
the candidates. These are matters that, undoubtedly, would
benefit from briefing and oral argument but raise serious con-
cerns in our minds whether there is sufficient evidence to
overrule Eddleman.6
6
Neither the State of Montana, nor the appellees, had access to the dis-
trict court’s Opinion and Order when the motion and opposition were
filed. The State of Montana, however, had the benefit of the district
court’s Opinion and Order before filing its reply the next day.
12692 LAIR v. BULLOCK
(2). With respect to the second consideration, the limits on
political parties, the Court was concerned that Vermont’s stat-
ute required “that political parties abide by exactly the same
low contribution limits that apply to other contributors.” Ran-
dall, 548 U.S. at 256. The cumulative restrictions imposed by
the Vermont statute “severely inhibit[ed] collective political
activity by preventing a political party from using contribu-
tions by small donors to provide meaningful assistance to any
individual candidate,” including a party’s ability to engage in
“coordinated spending on advertising, candidate events, voter
lists, mass mailings, even yard signs.” Randall, 548 U.S. at
256-58.
In contrast to Vermont’s statute, we noted, in Eddleman,
that in Montana political parties were not subject to the same
low contribution limit as individuals. Eddleman, 343 F.3d at
1094 (discussing the increase in amount that can be contrib-
uted by political parties, “almost doubling the amount that
may be contributed in some races”).
Despite the obvious differences between Vermont and
Montana, the district court concluded that the Montana statute
was inconsistent with this factor because “political commit-
tees [were held] to the same contribution limits as individu-
als” and this “inhibit[s] the associational rights of political
committees and, consequently, a full and robust exchange of
views.” Opinion and Order at 32 (internal quotation marks
omitted). Instead of addressing Randall’s concern with limits
on political parties, the district court focused on limits on
political committees under § 13-37-216. Political committees
are not political parties. Political committees—including
PACs and local party affiliates—are subject to the same limits
as individuals. Mont. Code Ann. § 13-37-216(3). “Political
party organizations,” however, are exempted from this restric-
tion under the statute and subject to a much higher cap. For
example, individuals and political committees may not con-
tribute more than $630 to a gubernatorial candidate, but a
political party organization can contribute up to $22,600. Id.LAIR v. BULLOCK 12693
§ 13-37-216(1)(a), (3)(a), as adjusted by Admin. R. Mont.
§ 44.10.338(1)(a), (2)(a).
Furthermore, the district court’s opinion fails to acknowl-
edge that even political committees remain free to spend as
much money as they desire promoting a candidate. See Citi-
zens United v. Fed. Election Comm’n, 558 U.S. 310 (2010);
see also Am. Tradition P’ship, Inc. v. Bullock, 132 S. Ct. 2490(2012). As we pointed out, the PACs have many other ways
“to convey their support.” Eddleman, 343 F.3d at 1094. They
just cannot give the money directly to the candidate. Thus, the
district court’s analysis on this point is inapposite; under the
Montana statute political committees remain free to partici-
pate in a “full and robust exchange of views.”
(3). The third consideration is the treatment of volunteer
services. Montana’s scheme, however, is far more permissive
than Vermont’s statute. In Randall, Vermont counted
expenses incurred during the provision of volunteer services
as contributions. Randall, 548 U.S. at 259-60. As we
explained, “the [Montana] statute in no way prevents PACs[,
and individuals,] from affiliating with their chosen candidates
in ways other than direct contributions, such as donating
money to a candidate’s political party, volunteering individual
members’ services, sending direct mail to their supporters, or
taking out independent newspaper, radio, or television ads to
convey their support.” Eddleman, 343 F.3d at 1094. More-
over, we noted that nothing prevents “individuals and PACs
[from] . . . engag[ing] in independent political expression, to
associate actively through volunteering their services, and to
assist in a limited but nonetheless substantial extent in sup-
porting the candidates and committees with financial
resources.” Id. at 1096.
The district court concluded that Montana treats volunteer
services in the same manner as Vermont, “not exclud[ing] the
expenses . . . volunteers incur, such as travel expenses, in the
course of campaign activities.” Opinion and Order at 34
12694 LAIR v. BULLOCK
(internal quotation marks omitted). This conclusion appears to
be error. Testimony provided by the plaintiff ’s own witnesses
—as well as a stipulation of the parties—established that
expenses incurred by volunteers are not considered contribu-
tions under Montana law. Tr. at 50-54, 74-76, 154-56 (Sept.
12, 2012). Even more importantly, other testimony estab-
lished that an individual, political party, or political commit-
tee can actually hire staff for a candidate, and that would not
be considered a contribution. Id.(4). The fourth consideration is whether the limits are
adjusted for inflation. Vermont’s limits were not. Randall,
548 U.S. at 261. As we noted in Eddleman, the Montana con-
tribution limits are regularly adjusted for inflation. Eddleman,
343 F.3d at 1089.
The district court recognized that Montana adjusts its limits
for inflation, but suggested that the Consumer Price Index
(“CPI”) is a flawed method of accounting for inflation. Opin-
ion and Order at 35-36. The district court made that determi-
nation on the basis of near anecdotal testimony that the cost
of pencils, yard signs, postage, and fuel have increased faster
than the CPI. Id. at 13. The district court also noted that the
CPI does not account for certain inputs that an effective cam-
paign requires. Id. at 35.
This is too thin a reed to cling to in order to overturn our
decision in Eddleman. We do not doubt that the CPI fails to
capture all changes in campaign costs. It is, however, a well-
recognized mechanism for adjusting for inflation, and we
have no indication that the Supreme Court intended that states
do anything else to “index limits.” Randall, 548 U.S. at 261.
We continue to believe that Montana’s statute will survive the
Court’s analysis in Randall. If we were to examine the district
court’s findings, its methodology would raise a number of
questions. For example, the district court apparently did not
consider whether pencils, yard signs, postage, and fuel fall
within the underlying basket of goods used to calculate the
LAIR v. BULLOCK 12695
CPI, nor did it question whether other campaign costs—such
as office space—may have gone down during the same
period. Further, even as we acknowledge that campaign costs
have gone up over time, so have contribution limits risen
since their inception in 1994, yet the district court made no
attempt to compare the overall increase in the contribution
limits with the overall increases in campaign inputs that were
the subject of testimony at trial.
(5). The fifth and final consideration is a catchall: Whether
there are any “special justification[s]” for the limits that
“bring about . . . serious associational and expressive prob-
lems.” Randall, 548 U.S. at 261. We identified at least one
justification for why Montana’s contribution limits are among
the lowest in the nation: “[T]he State of Montana remains one
of the least expensive states in the nation in which to run a
political campaign.” Eddleman, 343 F.3d at 1094. Thus,
unlike Randall, where Vermont’s justification was based
solely upon the prevention of corruption, Montana specifi-
cally justified the low limits based on the relative inexpense
of campaigning in Montana, a state where, for many offices,
“campaign[ing] primarily [takes place] door-to-door, and only
occasionally [through] advertis[ing] on radio and television.”
Id.[4] Most importantly, in Eddleman, after considering all of
the factors deemed important by Justice Breyer’s plurality
opinion in Randall, we held that the Montana contribution
limit does not prevent candidates from amassing the resources
necessary to run an effective, competitive campaign. Id. at
1094-95, 1098. We cannot conclude that Randall is, in any
material way, inconsistent with our analysis in Eddleman.
Therefore, under Miller, we remain bound by Eddleman.7
7
We also note that the district court failed to perform a careful sever-
ability analysis. Instead, it relied on the Court’s severability analysis of a
quite different Vermont statute—leveraging what might be the only offen-
sive part of this statute to strike down the entire statute, the majority of
which has not even been effectively challenged. See Opinion and Order at
36-37.
12696 LAIR v. BULLOCK
*****
[5] Given the procedural posture of the state’s motion, we
have tried to be careful not to prejudge whether any of the dis-
trict court’s findings of fact are clearly erroneous or its con-
clusions errors of law. That is the province of a merits panel
of this court, to be decided on consideration of the appeal of
the permanent injunction after full briefing. Based on our
emergency review, however, we have noted that there appear
to be sufficient problems with the district court’s findings of
fact and conclusions of law such that the State of Montana has
met its burden of making a substantial case for relief on the
merits. This showing is sufficient for us, under this factor, to
exercise our discretion to stay the district court’s permanent
injunction pending appeal. Moreover, given the imminent
nature of the election, we find it important not to disturb long-
established expectations that might have unintended conse-
quences, particularly in light of our previous holding in
Eddleman that this selfsame statute is constitutional, without
first allowing a merits panel the benefit of thoroughly examin-
ing the Montana statute in light of Randall.8 See Purcell v.
Gonzalez, 549 U.S. 1, 5-6 (2006) (“Given the imminence of
the election and the inadequate time to resolve the factual dis-
putes, our action today shall of necessity allow the election to
proceed without an injunction . . . .”). We conclude that the
state is likely to succeed in its appeal.
B. Irreparable Injury to the Party Requesting Stay
Nken held that the second stay factor, “whether the appli-
cant will be irreparably injured absent a stay,” requires more
than “some possibility of irreparable injury.” Nken, 556 U.S.
8See Randall, 548 U.S. at 249 (“[A]ppellate courts . . . must review the
record independently and carefully with an eye toward assessing the stat-
ute’s ‘tailoring,’ that is, toward assessing the proportionality of the restric-
tions.” (citing Bose Corp. v. Consumers Union of United States, Inc., 466
U.S. 485, 499 (1984)).
LAIR v. BULLOCK 12697
at 434-35 (internal quotation marks omitted). But, in contrast
to the first factor, we have interpreted Nken as requiring the
applicant to show under the second factor that there is a prob-
ability of irreparable injury if the stay is not granted. Leiva-
Perez, 640 F.3d at 968 (explaining that while the first factor
asks “whether the stay petitioner has made a strong argument
on which he could win,” the second factor asks us to “antici-
pate what would happen as a practical matter following the
denial of a stay”). In analyzing whether there is a probability
of irreparable injury, we also focus on the individualized
nature of irreparable harm and not whether it is “categorically
irreparable.” Id. at 969 (quoting Nken, 556 U.S. at 435).
[6] The State of Montana has made a showing that there is
a probability of irreparable injury if a stay of the district
court’s permanent injunction is not granted. Since 1994, a
clear framework has been in place allowing candidates to plan
for campaigns. In 2003, we held this statute constitutional, in
the face of a virtually indistinguishable attack. This has cre-
ated a background upon which the candidates in the current
election have formed their campaign strategies and expecta-
tions. Absentee voting has already begun in Montana and the
general election is imminent. Allowing the permanent injunc-
tion to remain in place before a merits panel of this court can
ultimately rule on the constitutionality of the Montana contri-
bution limit statute could throw a previously stable system
into chaos. In a state that has operated with some of the most
restrictive campaign limits in the country, there would sud-
denly be no limits whatsoever. In fact, there is some evidence
from media reports that before the temporary stay was issued
in this case, individuals had already begun to ask for unlim-
ited donations. In light of the fact that the State of Montana
has made a substantial case for relief on the merits, this calls
into question the fairness and integrity of elections in Mon-
tana. Not all candidates might feel comfortable taking unlim-
ited donations in the wake of conflicting judicial decisions.
Furthermore, once the election is over, it cannot be reversed,
and any consequences flowing from the disruption in equilib-
12698 LAIR v. BULLOCK
rium in the campaign contribution laws would also be irre-
versible. Regardless, because of the likely disruption to the
election and the untold, irreversible consequences that might
result, the State of Montana has satisfied its burden of show-
ing a probability that irreparable harm will occur.
C. Substantial Injury to Other Parties Interested in the
Proceeding
Finally, Nken explained that the last two factors of the test
require us to weigh the public interest against the harm to the
opposing party. Nken, 556 U.S. at 435; see also Leiva-Perez,
640 F.3d at 964-66 (holding that the stay inquiry is “flexible”
and involves an equitable balancing of the stay factors). In
doing so, we again consider “the particulars of each individual
case.” Leiva-Perez, 640 F.3d at 970 (citing Nken, 556 U.S. at
436).
[7] We find that the other interested parties are not likely
to be harmed. We well understand that “political speech [is]
the core of the First Amendment,” Randall, 548 U.S. at 266,
but for 36 years the Court has held that states may restrict
political contributions as “only a marginal restriction upon the
contributor’s ability to engage in free communication.” Buck-
ley, 424 U.S. at 20-21. Montana largely restricts cash contri-
butions to candidates; it thus leaves interested parties with a
number of other options for engaging in political speech, from
volunteering—or even paying for the provision of volunteer
services to candidates—to engaging in independent activities
to support a candidate. See, e.g., Bullock, 132 S. Ct. at 2491.
Additionally, we have already carefully analyzed the Montana
contribution limit statute and found it to be constitutional.
Eddleman, 343 F.3d at 1098. All interested parties, who have
operated under Montana’s contribution limit statute since
1994, had clear notice of its constitutionality since 2003. Any
harm that might be felt would, at most, be minimal and vastly
outweighed by the public interest.
LAIR v. BULLOCK 12699
D. Public Interest
[8] Finally, we find that the public interest is closely
aligned with the irreparable harm shown by the State of Mon-
tana. The people comprising the State of Montana have a deep
interest in fair elections. See United States v. Gradwell, 243
U.S. 476, 480 (1917) (“[T]he people of the United States . . .
have an interest in and a right to honest and fair elections
. . . .”). The Montana contribution limit statute has long stood,
not only to prevent corruption, see Eddleman, 343 F.3d at
1092-93, but also to create a background of fairness to allow
candidates to plan their campaigns and implement their strate-
gies upon the foundation of well-laid and understood ground-
rules. Given the deep public interest in honest and fair elec-
tions and the numerous available options for the interested
parties to continue to vigorously participate in the election,
the balance of interests falls resoundingly in favor of the pub-
lic interest.
IV. CONCLUSION
[9] The State of Montana has satisfied the standards for a
stay pending appeal. Given the formidable obstacle presented
by our decision in Eddleman, the fact that Randall does not
compel a different result in Eddleman, and the tensions and
possible errors in the district court’s application of Randall,
the State of Montana has made a strong showing that it is
likely to succeed on appeal. Furthermore, because the fairness
of the imminent election would be put in danger by our failure
to stay the permanent injunction, the State of Montana and the
public interest would be irreparably harmed, and that harm
vastly outweighs any minimal harm that might come to the
interested parties who have operated under the established
Montana contribution limits for almost two decades. We
therefore find it necessary to exercise our judicial discretion,
and we will stay the district court’s permanent injunction
pending resolution of the appeal by a merits panel of this
12700 LAIR v. BULLOCK
court. The State of Montana’s motion for stay pending appeal
is GRANTED.
LAIR v. BULLOCK 12701
APPENDIX A
Montana Code Annotated § 13-37-216
13-37-216. Limitations on contributions—adjustment
(1) (a) Subject to adjustment as provided for in subsection
(4), aggregate contributions for each election in a cam-
paign by a political committee or by an individual, other
than the candidate, to a candidate are limited as follows:
(i) for candidates filed jointly for the office of gover-
nor and lieutenant governor, not to exceed $500;
(ii) for a candidate to be elected for state office in a
statewide election, other than the candidates for gov-
ernor and lieutenant governor, not to exceed $250;
(iii) for a candidate for any other public office, not
to exceed $130.
(b) A contribution to a candidate includes contributions
made to the candidate’s committee and to any political
committee organized on the candidate’s behalf.
(2) (a) A political committee that is not independent of the
candidate is considered to be organized on the candi-
date’s behalf. For the purposes of this section, an inde-
pendent committee means a committee that is not
specifically organized on behalf of a particular candidate
or that is not controlled either directly or indirectly by a
candidate or candidate’s committee and that does not act
jointly with a candidate or candidate’s committee in con-
junction with the making of expenditures or accepting
contributions.
(b) A leadership political committee maintained by a
political officeholder is considered to be organized on
the political officeholder’s behalf.
12702 LAIR v. BULLOCK
(3) All political committees except those of political party
organizations are subject to the provisions of subsections (1)
and (2). For purposes of this subsection, “political party orga-
nization” means any political organization that was repre-
sented on the official ballot at the most recent gubernatorial
election. Political party organizations may form political com-
mittees that are subject to the following aggregate limitations,
adjusted as provided for in subsection (4), from all political
party committees:
(a) for candidates filed jointly for the offices of gov-
ernor and lieutenant governor, not to exceed
$18,000;
(b) for a candidate to be elected for state office in a
statewide election, other than the candidates for gov-
ernor and lieutenant governor, not to exceed $6,500;
(c) for a candidate for public service commissioner,
not to exceed $2,600;
(d) for a candidate for the state senate, not to exceed
$1,050;
(e) for a candidate for any other public office, not to
exceed $650.
(4) (a) The commissioner shall adjust the limitations in sub-
sections (1) and (3) by multiplying each limit by an
inflation factor, which is determined by dividing the
consumer price index for June of the year prior to the
year in which a general election is held by the consumer
price index for June 2002.
(b) The resulting figure must be rounded up or down to
the nearest:
(i) $10 increment for the limits established in subsec-
tion (1); and
LAIR v. BULLOCK 12703
(ii) $50 increment for the limits established in sub-
section (3).
(c) The commissioner shall publish the revised limita-
tions as a rule.
(5) A candidate may not accept any contributions, including
in-kind contributions, in excess of the limits in this section.
(6) For purposes of this section, “election” means the general
election or a primary election that involves two or more can-
didates for the same nomination. If there is not a contested
primary, there is only one election to which the contribution
limits apply. If there is a contested primary, then there are two
elections to which the contribution limits apply.
12704 LAIR v. BULLOCK
APPENDIX B
Admin. R. Mont. § 44.10.338
44.10.338 LIMITATIONS ON INDIVIDUAL AND POLITI-
CAL PARTY CONTRIBUTIONS
(1) Pursuant to the operation specified in 13-37-216, MCA,
limits on total combined contributions from individuals to
candidates are as follows:
(a) a candidate for governor may receive no more
than $630;
(b) a candidate for other statewide office may
receive no more than $310;
(c) a candidate for all other public offices may
receive no more than $160.
(2) Pursuant to the operation specified in 13-37-216, MCA,
limits on total combined contributions from political party
committees to candidates are as follows:
(a) a candidate for governor may receive no more
than $22,600;
(b) a candidate for other statewide offices may
receive no more than $8150;
(c) a candidate for Public Service Commission may
receive no more than $3260;
(d) a candidate for senate may receive no more than
$1300;
(e) a candidate for all other public offices may
receive no more than $800.
LAIR v. BULLOCK 12705
(3) Pursuant to 13-37-218, MCA, in-kind contributions must
be included in computing these limitation totals.