On August, 1, 2012, the New Hampshire Attorney General’s office advised the New Hampshire Secretary of State that the state’s $5,000 statutory contribution limit should not be enforced against independent expenditure-only committees “[i]n light of the fact that the circuit courts that have addressed this issue have, to date, all found such laws to be unconstitutional, and no circuit courts have found otherwise.”  A copy of the Attorney General’s letter can be found here.  As I’ve previously noted, this is an accelerating trend in the wake of Citizens United; in fact, New Hampshire is at least the seventh state to exempt Super PACs from statutory contribution limits this year, either in response to a judicial order or on its own accord.  And stay tuned to West Virginia, which may soon join the ranks.

But what explains the flurry in activity, since Citizens United and SpeechNow are 2010 decisions?  Some clues might be found in the New Hampshire Attorney General’s letter.  Most obviously, there has been increased interest in invalidating contribution limits in the run up to the 2012 Presidential Election. But perhaps less apparent is the fact that states may be running out of arguments to defend the application of these laws. Courts have uniformly rejected the assertion that Citizens United, a case about expenditures, does not apply to contributions.  Moreover, the U.S. Supreme Court’s summary reversal of the Montana Supreme Court’s attempt to distinguish Citizens United based on the state’s political history may have shut the door to factual arguments and the notion that Citizens United is purely a federal law decision.  The newly-introduced Restoring Confidence in Our Democracy Act is meant to provide a factual record for challenging Citizens United, but only time will tell how this approach fares.