Montana Chamber of Commerce v. Argenbright

226 F.3d 1049, 2000 Cal. Daily Op. Serv. 7920, 2000 Daily Journal DAR 10517, 2000 U.S. App. LEXIS 23743

Opinions

RYMER, Circuit Judge:

These consolidated appeals involve the initiative process in Montana. Montana state officials and the League of Women Voters appeal the district court’s decision, following a bench trial, that Initiative 125 (1-125), which prohibits direct corporate expenditures in ballot initiative campaigns, violates the First Amendment.² The Montana Mining Association and various organizations subject to 1-125 sought to delay, and then to invalidate, the election in which voters approved Initiative 137 (I-137) (restricting certain types of mining) on the ground that 1-125 unconstitutionally constrained their participation in the election process. They appeal the district court’s refusal to do either.³

We conclude that the constitutionality of 1-125 is controlled by First National Bank of Boston v. Bellotti 435 U.S. 765, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978), and that the district court did not clearly err in its findings that corporate wealth had not distorted the ballot initiative process in Montana, and that in light of those findings, the First Amendment does not permit restricting corporate speech on public issues. Accordingly, we affirm the declaration that 1-125 is unconstitutional.

Whether the court should have considered (and granted) MMA’s request to delay the 1-137 election is moot, and we cannot say that the court erred by later declining to invalidate it. We therefore affirm the judgment in the 1-137 appeal as well.

I

Montana voters approved 1-125 in November 1996. 1-125 amended Montana’s elections law by prohibiting direct corporate spending in connection with ballot issues.⁴ Specifically, the initiative amended the statutory provision concerning “[pjrohibited contributions from corporations.” Mont.Code Ann. § 13-35-227. Under 1-125, corporations (other than nonprofit corporations formed for solely political purposes) are prohibited from making a contribution or an expenditure in connection with a ballot issue. Corporations may establish and administer a separate, segregated fund that is allowed to solicit contributions from shareholders, employees, or members of the corporation, but not from the company itself.

The Chamber brought an action in federal district court seeking a declaratory judgment that the initiative was unconstitutional and an injunction restraining its enforcement. The court held on summary judgment that 1-125 restricted core political speech, but that a trial was necessary to determine whether a compelling state interest justified the restriction.

Meanwhile, in July 1998, 1-137 was certified for the November 1998 ballot. MMA, which opposed 1-137, brought suit in September 1998 requesting a preliminary injunction that would either waive I-125 as applied to it, or delay the vote on I-137 until after the 1-125 case was resolved. The district court consolidated the two actions.

The 1-125 trial focused on the health of the Montana initiative process. 1-125 Proponents presented evidence on the effect of corporate money in four unsuccessful Montana initiatives. Witnesses testified that corporate opponents substantially outspent initiative proponents in these races. Advocates for the initiatives testified that they believed the defeats resulted from large corporate expenditures in opposition. Political scientists testified that large scale spending was very effective in initiative campaigns, especially when used in opposition to a ballot issue, and poll results showed that Montanans believe corporations had too much influence in elections. 1-125 Opponents, on the other hand, produced evidence that a variety of factors influence election results and that the side spending less money prevailed in 50% of initiative elections. Further, they showed that Montana voter turnout was much higher than the national average, ballot drop-off was low, and the number of ballot issues remained constant over the past 20 years. Finally, 1-125 Opponents offered expert testimony that the Montana political system was healthy and free from corruption.

In the 1-137 phase, MMA showed that 1-125 limited mining companies’ ability to oppose 1-137 and that 1-137 was a significant economic threat to these companies. It also adduced expert testimony that a successful challenge to 1-137 was no longer possible, even if the 1-125 restriction were lifted, because the 1-137 election was only two weeks away. Evidence on the other side showed that the mining companies spent approximately the same amount fighting 1-137 as they did in their challenge to the Clean Water Bill, where the 1-125 restrictions did not apply.

The district court found the 1-125 Opponents’ evidence credible and persuasive, accepting their expert’s opinion that there is no corruption or appearance of corruption in Montana ballot issue elections. It held that 1-125, perhaps facially and certainly as applied, infringes upon the First Amendment rights of speech and association of those subject to its prohibitions; that it was not narrowly tailored to address only the campaign contributions and expenditures of large corporations; that requiring corporations to fund ballot issue campaign speech through separate, segregated funds (consisting of voluntary contributions from employees, officers, directors, and shareholders) deprives corporations of their ability to communicate political ideas directly to the electorate, which impermis-sibly chills their speech and association rights and precludes corporations from directly resisting potential laws that could put them out of business; that it prevents the electorate from being exposed to diverse viewpoints on public policy issues; and that the anecdotal evidence presented by 1-125 proponents fails to prove that corporations could overwhelm the political speech of individual citizens in Montana to the detriment of the ballot initiative process. Accordingly, the court held, corporations are entitled to defend their economic interests by using the corporate treasury to fund their participation in ballot initiative campaigns. It therefore declared that 1-125 is unconstitutional.

In this respect the court ruled in favor of MMA in the 1-137 action, but it refused to enjoin the 1-137 election on the ground that the relief sought was premature as of the close of evidence, October 22. On November 3, 1998, Montana voters adopted 1-137 by a 53% to a 47% margin. MMA then moved to enjoin Montana from validating 1-137 by certifying the election results, but the court indicated that it had already ruled and denied the motion.

Both judgments — that 1-125 is unconstitutional and that the election in 1-137 stands — were appealed.

By the time we heard oral argument in these consolidated appeals, the Supreme Court had granted certiorari in a campaign contribution case, Shrink Missouri Gov’t PAC v. Adams, 161 F.3d 519 (8th Cir.1998), cert. granted, 525 U.S. 1121, 119 S.Ct. 901, 142 L.Ed.2d 901 (1999). We thought it prudent to defer our own decision until the Court had rendered its in Shrink. As it turns out, the Court’s opinion, Nixon v. Shrink Missouri Gov’t PAC, 528 U.S. 377, 120 S.Ct. 897, 145 L.Ed.2d 886 (2000), does not affect the disposition in these appeals.

II

We determine the constitutionality of 1-125 de novo. California Democratic Party v. Jones, 169 F.3d 646, 647 (9th Cir.1999), rev’d on other grounds, — U.S. -, 120 S.Ct. 2402, 147 L.Ed.2d 502 (2000). The district court’s findings of fact are reviewed for clear error. Sana v. Hawaiian Cruises, Ltd., 181 F.3d 1041, 1044 (9th Cir.1999). While we have not previously addressed the question, we agree with other circuits that have considered similar issues that review of the district court’s decision not to delay or void the 1-137 election should be for abuse of discretion. Gjersten v. Board of Election Comm’rs, 791 F.2d 472, 479 (7th Cir.1986) (decision to invalidate election is reviewed for an abuse of discretion); Griffin v. Burns, 570 F.2d 1065, 1079 (1st Cir.1978) (same).

III

1-125

Montana and League argue that corporations possess unique characteristics and legal advantages that permit them to maximize the accumulation of capital in the economic marketplace. They indicate that 1-125 was designed to assure that corporate participation in ballot initiative campaigns reflects actual public support for the corporation’s political views, rather than the sheer economic power that a corporation derives from these state-created advantages. To that end, they point out, 1-125 prohibits the use of corporate general treasury funds in ballot issue campaigns, while it permits corporations to participate through the use of segregated funds collected from employees, members and shareholders who wish to support the corporation’s political activities. Further, they submit, 1-125 is carefully tailored to adhere to the Supreme Court’s rulings in Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 110 S.Ct. 1391, 108 L.Ed.2d 652 (1990), and FEC v. Massachusetts Citizens for Life, Inc., 479 U.S. 238, 107 S.Ct. 616, 93 L.Ed.2d 539 (1986) (MCFL). They fault the district court’s decision on a number of fronts: for failing to recognize the compelling state interests supporting 1-125 in that the court believed the only type of corruption that would justify I-125’s limits was quid pro quo corruption, whereas in Austin the Court declined to rely on that limited anti-corruption rationale; for holding that 1-125 could' be justified only by evidence that money was the most important variable controlling election outcome in Montana, instead of deferring to the legislative judgement that the special benefit conferred by the corporate form presents the potential for distorting the political process; and for finding that voter turnout in Montana is higher than the national average, that 1-125 improperly “silences” corporations under Bellotti because they retain the right to speak through segregated funds, and that 1-125 is unconstitutional even under Bellotti

The Chamber counters that 1-125 abridges core First Amendment rights of political speech and association on issues of public policy. This abridgment of political speech in the context of ballot issue campaigns (by contrast with candidate contributions or expenditures) is contrary to Bellotti and unjustified by any compelling state interest. Additionally, the Chamber maintains, there is no evidence of corruption or that corporate contributions or expenditures have reduced voter turnout, caused voter fall-off on the ballot, or been the principal determinant of the outcome of a ballot issue campaign; to the contrary, it submits, the evidence shows that the Montana electoral process is healthy and that the most important factor which influences outcome is the development of a credible, concise and understandable campaign message. Finally, it contends, the use of-the segregated fund permitted by I-125 is neither a constitutionally permissible alternative to direct corporate speech nor an effective means to communicate core political speech on public policy issues.

We do not wish to appear to give either position short shrift, because all parties have researched, briefed and argued the issues with exceptional ability and professionalism. Yet as we see it, the constitutionality of 1-125 comes down to whether restricting corporate expenditures in the ballot issue process is controlled by Bellot-ti, even though 1-125 (unlike the Massachusetts statute at issue in Bellotti) permits corporations to establish segregated funds through which others may contribute. '

Like this case, Bellotti involved a limitation on corporate contributions or expenditures in the ballot issue process (there, in connection with a referendum). A Massachusetts statute prohibited such expenditures “for the purpose of ... influencing or affecting the vote on any question submitted to the voters, other than one materially affecting any of the property, business or assets of the corporation,” and further provided that no issue submitted to the voters which solely concerned individual taxation issues could be deemed to affect a corporation’s property, business or assets. When a graduated income tax proposal was put on the ballot, several corporate entities wanted to spend money to publicize their views in opposition. Applying strict scrutiny and requiring the state to show both a compelling interest in prohibiting the “exposition of ideas” and narrowly chosen means to avoid unnecessary abridgment, the Court held that the statute must be invalidated. In doing so, it clearly distinguished elections involving issues from elections involving candidates. As Montana does here, the state argued in Bellotti that preserving the integrity of the electoral process, preventing corruption, and sustaining the active involvement of citizens in good government were important state interests that were threatened by corporate participation in discussion of a referendum issue. The Court noted that if the state’s

arguments were supported by record or legislative findings that corporate advocacy threatened imminently to undermine democratic processes, thereby denigrating rather than serving First Amendment interests, these arguments would merit our consideration. But there has been no showing that the relative voice of corporations has been overwhelming or even significant in influencing referenda in Massachusetts, or that there has been any threat to the confidence of the citizenry in government.

Bellotti 435 U.S. at 789-90, 98 S.Ct. 1407 (citations omitted). It added:

Nor are [the state’s] arguments inherently persuasive or supported by the precedents of this Court. Referenda are held on issues, not candidates for public office. The risk of corruption perceived in cases involving candidate elections simply is not present in a popular vote on a public issue. To be sure, corporate advertising may influence the outcome of the vote; this would be its purpose. But the fact that advocacy may persuade the electorate is hardly a reason to suppress it: The Constitution “protects expression which is eloquent no less than that which is unconvincing.”

Id. at 790, 98 S.Ct. 1407 (citations omitted).⁵ Concluding that the statute prohibited protected speech in a manner unjustified by a compelling state interest, the Court invalidated it.

In Austin, the Court considered a Michigan statute that prohibited corporations from using corporate treasury funds for independent expenditures in support of, or in opposition to, any candidate in elections for state office, but did not prohibit corporations from making such expenditures from segregated funds used solely for political purposes. The Court acknowledged that requiring corporations to make independent political expenditures only through special segregated funds burdens corporate freedom of expression because “the corporation is not free to use its general funds for campaign advocacy purposes,” Austin, 494 U.S. at 658, 110 S.Ct. 1391 (quoting MCFL, 479 U.S. at 252, 107 S.Ct. 616), but held that the state’s rationale in supporting a regulation aimed at “the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public’s support for the corporation’s political ideas” was compelling. Austin, 494 U.S. at 660, 110 S.Ct. 1391. The Court concluded that “the State’s decision to regulate only corporations [was] precisely tailored to serve the compelling state interest of eliminating ... the corrosive effect of political ‘war chests.’ ” Id. at 666, 110 S.Ct. 1391. It therefore upheld Michigan’s restriction on independent corporate expenditures in connection with candidate elections for state office.

Justice Brennan, who concurred in the majority’s opinion, wrote separately, distinguishing the particular provisions at issue in Austin that prohibit corporations from using treasury funds only for independent expenditures in candidate elections, from the restrictions at issue in Bel-lotti, noting that “[a] corporation remains free, for example, to use general treasury funds to support an initiative proposal in a state referendum.” Id. at 676, 110 S.Ct. 1391 (Brennan, J. concurring). So did Justice Stevens, who observed that, “as we recognized-in First National Bank of Boston v. Bellotti, 435 U.S. 765, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978), there is a vast difference between lobbying and debating public issues on the one hand, and political campaigns for election to public office on the other.” Austin, 494 U.S. at 678, 110 S.Ct. 1391 (Stevens, J., concurring).

Montana and League are correct that I-125 is similar to the statutory scheme approved in Austin to the extent that both statutes allow corporations to set up segregated funds. However, as we read the Court’s opinions, Austin does not turn on this difference from Bellotti so much as it does on the difference between expenditures for candidate elections and ballot issues. As the Court explained, in the context of candidate elections, “[cjorporate wealth can unfairly influence elections when it is deployed in the form of independent expenditures, just as it can when it assumes the guise of political contributions.” Id. at 660, 110 S.Ct. 1391. It is also true that the Court indicated in Bel-lotti that through a record or findings, Congress or a state might be able to demonstrate the danger of real or apparent corruption posed by corporate expenditures, 435 U.S. at 787 n. 26 and 789-90, 98 S.Ct. 1407, whereas in Austin the Court appears to have accepted the state’s articulated interest in avoiding corruption without a record or findings, 494 U.S. at 659-60, 666, 110 S.Ct. 1391. But again, this appears to reflect the difference between restrictions on the corporate voice in public issue elections, and in partisan candidate elections.

Even if Austin may plausibly be read as undermining Bellotti, this is for the Supreme Court, not us, to say. - As the Court has instructed, “ ‘[i]f a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other fine of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.’ ” Agostini v. Felton, 521 U.S. 203, 237, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997) (quoting Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989)). Austin cited Bellotti and did not overrule it. Therefore, we believe that Bellotti is still good law, and controls.

There is no question that a law requiring corporations to make independent expenditures (even for candidates) through a segregated fund burdens corporate expression. Austin and MCFL so recognize. The burden is even greater when the limitation has to do with independent expenditures in the ballot issue process, as speech on such issues is “at the heart of the Eirst Amendment’s protection.” Bellotti, 435 U.S. at 776, 98 S.Ct. 1407.

Because the state’s interest in preventing corporate wealth from distorting the political process is not obvious or compelling in connection with ballot issue elections, Bellotti, 435 U.S. at 789-92, 98 S.Ct. 1407, the district court in this case heard considerable evidence, both empirical and expert. It found that “the state has failed to produce evidence that would support a judicial finding that corporate wealth has dominated citizen voices to the detriment of the ballot initiative process.” As there was evidence pointing in each direction, we cannot say the court clearly erred in finding that there was no imminent threat to the democratic process.

It follows that 1-125 unconstitutionally restricts public discussion in the ballot issue (initiative) process. As the Court concluded in Bellotti with respect to the Massachusetts statute, we conclude here that, “ ‘[a] restriction so destructive of the right of public discussion [as 1-125], without greater or more imminent danger to the public interest than existed in this case, is incompatible with the freedoms secured by the First Amendment.’ ” Id. at 792, 98 5.Ct. 1407 (quoting Thomas v. Collins, 323 U.S. 516, 537, 65 S.Ct. 315, 89 L.Ed. 430 (1945)).⁶ Its enforcement was, therefore, properly enjoined.

IV

1-137

Having determined that 1-125 is unconstitutional, we must decide whether the district court should have delayed or invalidated the 1-137 election. Although we have previously held that challenges to election procedures should be made before the election occurs, see Soules v. Kauaians for Nukolii Campaign Committee, 849 F.2d 1176, 1180-81 (9th Cir.1988) (post-election challenge came too late); Chinese for Affirmative Action v. Leguennec, 580 F.2d 1006, 1008 (9th Cir.1978) (parties must bring complaints forward for preelection adjudication), we have not expressly considered whether it is error for a court to refuse to resolve such challenges on the footing that a pre-election challenge is premature. Nor do we need to do so now, for this issue, together with the question whether MMA’s pre-election request for injunctive relief should have been granted, are moot.

This leaves only the question whether the district court erred in refusing to invalidate the election. A state election violates due process “if it is conducted in a manner that is fundamentally unfair.” Bennett v. Yoshina, 140 F.3d 1218, 1226 (9th Cir.1998). Of course, “the voiding of a state election is a ‘drastic if not staggering’ remedy.” Soules, 849 F.2d at 1180 (quoting Bell v. Southwell, 376 F.2d 659, 662 (5th Cir.1967)). In determining whether to void an election, we balance the constitutional violation against the “countervailing equitable factors” such as “the extremely disruptive effect of election invalidation and the havoc it wreaks upon local political continuity.” Soules, 849 F.2d at 1180.

Here, even though there was evidence that 1-125 had affected MMA’s ability to campaign, there was also evidence that it had no substantial impact. Eleven days remained before the election after the district court lifted the 1-125 restrictions. And the state has a significant interest in avoiding the costs of a special election. In these circumstances, we cannot say that the district court abused its discretion in failing to void the results of the election.

AFFIRMED.

2 . The lead plaintiff in the action seeking to invalidate 1-125 was the Montana Chamber of Commerce (Chamber). We shall refer to Ed Argenbright, the Commissioner of Political Practices, and other state officials against whom the action was brought as "Montana”; and to organizations led by the League of Women Voters of Montana, which were inter-venors in the district court, as "League.” Sometimes we shall refer collectively to all parties who support 1-125 and seek to have the district court's decision overturned as "I-125 Proponents.” Likewise, we shall sometimes refer to those who argue for affirmance as "1-125 Opponents.” The ACLU of Montana filed a brief in support of the judgment of the district court holding 1-125 unconstitutional.

3 . We shall refer to the parties who sought to enjoin the 1-137 election (and who appeal the court's refusal to do so) collectively as “MMA” and to other parties in the same way as in the 1-125 appeal. (MMA also sought to have 1-125 declared unconstitutional, and its arguments in this connection are treated along with those of the "1-125 Opponents” in the 1-125 appeal.) The Montana Environmental Information Center, Montanans for Common Sense Mining Laws-For 1-137, and the Montana Council of Trout Unlimited filed an amicus brief in support of affirmance of the district court's refusal to delay or nullify the results of the 1-137 election.

4 .Section 13-35-227 now reads [1-125 additions underlined]:

(1) (a) Except as provided in subsection (4) a corporation may not make a contribution or an expenditure in connection with a candidate, a ballot issue, or a political committee which supports or opposes a candidate, a ballot issue, or a political party.

(b)For purposes of this section, "corporation" refers to for-profit and nonprofit corporations.

(2) A person, candidate, or political committee may not accept or receive a corporate contribution described in subsection (1).

(3) This section does not prohibit the establishment or administration of a separate, segregated fund to be used for making political contributions or expenditures if the fund consists only of voluntary contributions solicited from an individual who is a shareholder, employee, or member of the corporation.

pi) The provisions of subsection (1) prohibiting corporate contributions to or expenditures in connection with a ballot issue do not apply to a nonprofit corporation formed for the purpose, among others, of promoting political ideas and that:

(a) does not engage in business activities;

(b) has no shareholders or other affiliated persons who have a private claim on the corporation’s assets or earnings;

(c) does not accept foreign or domestic for-profit corporations as members; and

(d) does not accept in the aggregate more than 5% annually of its total revenue from (foreign or domestic for-profit corporations),

(5) A person, who violates this section is subject to the civil penalty provisions of 13-37-128.

5 . The Court analogized corporate speech on ballot issues to lobbying by corporations, which the First Amendment protects, see California Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 510-511, 92 S.Ct. 609, 30 L.Ed.2d 642 (1972); Eastern Railroad Presidents Conf. v. Noerr Motor Freight, Inc., 365 U.S. 127, 137-138, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961), id. at 791 n. 31, 98 S.Ct. 1407, and noted that “the direct participation of the people in a referendum, if anything, increases the need for the widest possible dissemination of information from diverse and antagonistic sources.” Id. at 790, n. 29, 98 S.Ct. 1407 (citations and internal quotes omitted).

6 . Given this conclusion, we need not reach the question of whether 1-125 is "sufficiently tailored” to meet compelling state interests.