Even The Author Of The Torture Memos Thinks Republican Attacks On Campaign Contribution Limits Go Too Far

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"Even The Author Of The Torture Memos Thinks Republican Attacks On Campaign Contribution Limits Go Too Far"

Earlier this month, in a case brought by several conservative groups and Republican Party committees, a federal judge in Montana struck down Montana’s limits on contributions candidates for state offices, claiming that they were unconstitutionally low. As ThinkProgress explained at the time, this decision was unfortunate, but it may be understandable given the Supreme Court’s decision to strike down a somewhat similar Vermont law in Randall v. Sorrell. Randall presented a plausible, if not necessarily convincing, case that the justices’ hostility towards campaign finance regulation dooms the Montana law.

Nevertheless, on Tuesday a conservative panel of the United States Court of Appeals for the Ninth Circuit granted a stay of the lower court’s decision. The Ninth Circuit’s opinion was written by a particularly notorious conservative, Judge Jay Bybee, who is best known as the author of legal memos authorizing torture during the Bush Administration.

Judge Bybee’s opinion is labyrinthian in its complexity, and this isn’t exactly his fault. The Supreme Court’s decision in Randall resulted in a plurality opinion that only two justices joined in full, and three separate concurring opinions from three different justices. Worse, the plurality opinion points to four “danger signs” and five separate “considerations” in determining whether to strike down the Vermont law. It is the kind of precedent that law professors include in their final exams to torment their students. Judge Bybee is not normally someone who evokes sympathy, but he deserves some condolences for having to unwind this Gordian Knot of a decision. If any of our readers are masochistic enough that they insist upon reading Bybee’s opinion, they may do so here.

In other words, Bybee waded into an area of the law where there is almost maximal ambiguity, and thus maximal ability for a conservative judge to resolve all ties in favor of the Republicans. And yet he went the other direction. This is not a sure sign that the Montana law will ultimately survive, but it is a hopeful one.

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