Back in January, the Ninth Circuit Court of Appeals upheld a preliminary injunction against enforcement of Washington’s $800 limit on contributions to political committees supporting the recall of a state or county official.
Today, the Ninth Circuit issued an amended opinion in Farris v. Seabrook, along with an order denying the petition for panel rehearing or rehearing en banc.
I’m not going to take the time to analyze the first opinion (I assume folks have already done that), but I did take the time to see what it was that the Judges of the Ninth Circuit took the time to amend in response to the petition for rehearing.
As best as I can tell (based on a copy and paste job and a Microsoft Word “compare docs” review), the Ninth Circuit added two footnotes. Footnote 9:
In a petition for rehearing, the State argues that allowing it to limit contributions to incumbent political officials opposing a recall, but prohibiting it from enforcing contribution limits against recall committees supporting the recall would lead to disproportionate influence by recall committees. The possibility that independent committees will make expenditures disproportionate to political candidates or incumbents, however, is simply a consequence of Citizens United that is now a feature of all political campaigns. See Citizens United, 130 S. Ct. at 910 (“Reliance on a ‘generic favoritism or influence theory . . . is at odds with standard First Amendment analyses because it is unbounded and susceptible to no limiting principle.’” (quoting McConnell, 540 U.S. at 296)). The State has not provided any evidence that Washington’s recall elections present a special circumstance in which “[t]he appearance of influence or access” would “cause the electorate to lose faith in our democracy.” Id.
And Footnote 10:
We note that the district court issued a narrow injunction, which prohibits the enforcement of Wash. Rev. Code § 42.17A.405(3) only as to the plaintiffs in this proceeding. Nothing in our opinion should be construed as expanding the scope of that injunction.
So there you have it.