UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
____________________

THE LINCOLN CLUB OF ORANGE COUNTY, et al.,

Plaintiffs/Appellants,

v.

CITY OF IRVINE, CALIFORNIA,

Defendant/Appellee
____________________

ON APPEAL FROM THE U. S. DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
_______________________________________________________

APPLICATION OF PROPOSED AMICUS CURIAE
AIRPORT WORKING GROUP POLITICAL ACTION COMMITTEE TO FILE BRIEF IN SUPPORT OF APPELLANT LINCOLN CLUB'S MOTION FOR RECONSIDERATION AND BRIEF AMICUS CURIAE

_______________________________________________________

Charles H. Bell, Jr. (CSB 060553)
Thomas W. Hiltachk (CSB 131215)
BELL, McANDREWS, HILTACHK & DAVIDIAN, LLP
455 Capitol Mall, Suite 801
Sacramento CA 95814
Telephone: (916) 442-7757
Facsimile: (916) 442-7759

Attorneys for Proposed Amicus Curiae
Airport Working Group Political Action Committee

APPLICATION TO FILE BRIEF AMICUS CURIAE

INTERESTS OF AMICUS CURIAE

The Airport Working Group Political Action Committee ("Amicus") is a California-registered recipient campaign committee, formed pursuant to California Government Code section 82013(a), organized to support candidates for state and local offices via contributions and "independent expenditures." Amicus is domiciled in and is active primarily in Orange County. Amicus has a particular interest in the outcome of this litigation, as has in the past received contributions to make independent expenditures, and may in the future consider accept contributions to make independent expenditures not only in the City of Irvine but also in other cities within Orange County that have adopted similar restrictions and prohibitions upon independent expenditure activity. Amicus also is concerned that it has been, and would continue to be, unable to associate with others to make independent expenditures, and the principal rationale for the ordinance (in the guise of "leveling the playing field") seeks to suppress associational and speech rights.
Amicus believes the challenged ordinance is an unconstitutional expenditure limit unjustified by the asserted governmental interest of "preventing corruption or the appearance of corruption."
Application is hereby made to file the attached Amicus Curiae brief in support of the Lincoln Club of Orange County's Motion for Reconsideration.

Dated: January 10, 2002 Respectfully Submitted,
BELL, McANDREWS, HILTACHK & DAVIDIAN, LLP

By:___________________________
Charles H. Bell, Jr.
Attorneys for Proposed Amicus Curiae Airport Working Group Political Action Committee

INTRODUCTION

Amicus believes there is no logical or constitutional distinction to be made between an individual or entity making an independent expenditure and two or more individuals or entities associating to do so. The challenged ordinance here constitutes an impermissible, unconstitutional expenditure limit by substantially impairing the right of association of separate persons to do together what each can do separately.

The United States Supreme Court has held in three cases (Buckley v. Valeo, 424 U.S. 1, 96 S. Ct. 612, 46 L. Ed. 2d 659 (1976) ("Buckley"); Federal Election Comm. v. National Conservative Political Action Comm., 470 U.S. 480, 498 (1985) ("NCPAC"); and Colorado Republican Federal Campaign Committee v. Federal Election Commission 518 U.S. 604, 116 S.Ct. 2309 (1996)("Colorado I") that independent expenditures do not present the problem of corruption or potential corruption in the form of quid pro quo arrangement or coordination of a political benefit with a candidate. The logic of the Court's analyses is unassailable. Irvine and others - including the respondent Federal Election Commission in these three cases - have asserted that the potential for corruption exists where a candidate benefitted by an independent expenditure has knowledge of the identity of the spender. The Supreme Court has rejected that premise for good reason: sunshine disclosure laws have been lauded for serving as disinfectants in the public square, not contaminants.

Irvine's "contamination" theory is bereft of any evidentiary support. Moreover, the record in this case is clear that Irvine's intention in enacting the challenged ordinance was only to limit such activity in order to "level the playing field," an impermissible and non-compelling governmental interest. This interest has not justified governmental suppression of speech for good reason: "leveling the playing field" protects incumbents and stifles discussion of public issues by groups and organizations such as the Amicus.

It is beyond cavil that there is no distinction between public knowledge of the identity of an independent spender and public knowledge of the identities of contributors to an independent expenditure committee that would justify restricting the latter when the former cannot be regulated or restricted.

For these reasons, Lincoln Club's motion for reconsideration of this Court's decision should be granted and the requested revision of the court's opinion should be adopted.

I. The Challenged Ordinance Irrationally Interferes With Associational and Speech Interests of Persons or Entities That Cannot Do Together What Each May Do Separately

As The Lincoln Club has pointed out, in Irvine municipal elections, wealthy candidates may contribute an unlimited amount of money to their own campaigns, and the record evidence below showed that candidates have in the past contributed upwards of $50,000 dollars to their own campaigns. Irvine Municipal Code § 1-2-404(A). Similarly, wealthy individuals may expend an unlimited amount of their own funds in independent expenditures advocating the election or defeat of Irvine municipal candidates. Joint Statement of Uncontroverted Facts ("JS") 14 (ER 33).

Moreover, individuals or entities may make unlimited independent expenditures, a right protected by the Constitution. (Buckley v. Valeo, supra, 424 U.S. 1, 47.) But if two or more people of more modest means decide to pool their resources in order to make independent expenditures in those same elections, Irvine Municipal Code § 1-2-404(B) prohibits them from contributing more than $320 each to that collaborative effort. Similarly, other Orange County cities, such as the City of Orange, prohibit such contributions to committees making independent expenditures in municipal elections in a similar way. (See, e.g., Orange Municipal Code §§2.10.050A, 2.10.050C.)

The Supreme Court in Colorado Republican Federal Campaign Committee v. Federal Election Commission, supra, following both Buckley and NCPAC, noted the "attenuated, at best" connection between contributions to a political party and potential corruption of candidates supported by that political party:

"We recognize that FECA permits individuals to contribute more money ($20,000) to a party than to a candidate ($1,000) or to other political committees ($5,000). 2 U.S.C. § 441a(a). We also recognize that FECA permits unregulated "soft money" contributions to a party for certain activities, such as electing candidates for state office, see § 431(8)(A)(i), or for voter registration and "get out the vote" drives, see § 431(8)(B)(xii). But the opportunity for corruption posed by these greater opportunities for contributions is, at best, attenuated." (518 U.S. at p. 615.)

The Court then discussed at some length the reasons such corruption was so attenuated in such circumstances, concluding:

"But we do not believe that the risk of corruption present here could justify the "markedly greater burden on basic freedoms caused by" the statute's limitations on expenditures. Buckley, 424 U.S., at 44, 96 S.Ct., at 646-647. See also id., at 46-47, 51, 96 S.Ct., at 647-648, 650; NCPAC, supra, at 498, 105 S.Ct., at 1469." (518 U.S. at p. 617.)

The Court then discussed how a person could legally spend more than he or she could contribute to a candidate via independent expenditures, observing that associated contributions to an independent expenditure committee such as a political party might actually lessen or further attenuate the potential corrupting influence of such contributions:

"Contributors seeking to avoid the effect of the $1,000 contribution limit indirectly by donations to the national party could spend that same amount of money (or more) themselves more directly by making their own independent expenditures promoting the candidate. See Buckley, supra, at 44-48, 96 S.Ct., at 646-649 (risk of corruption by individuals' independent expenditures is insufficient to justify limits on such spending). If anything, an independent expenditure made possible by a $20,000 donation, but controlled and directed by a party rather than the donor, would seem less likely to corrupt than the same (or a much larger) independent expenditure made directly by that donor. In any case, the constitutionally significant fact, present equally in both instances, is the lack of coordination between the candidate and the source of the expenditure. See Buckley, supra, at 45-46, 96 S.Ct., at 647-648; NCPAC, supra, at 498, 105 S.Ct., at 1469. This fact prevents us from assuming, absent convincing evidence to the contrary, that a limitation on political parties' independent expenditures is necessary to combat a substantial danger of corruption of the electoral system. (Id., at pp. 618-619.)

In National Conservative Political Action Committee v. Federal Election Commission, supra, striking Federal Election Campaign Act limitations on independent expenditures by political committees, the Court, citing Buckley's language, commented about the corruption rationale:

"It is of course hypothetically possible here, as in the case of the independent expenditures forbidden in Buckley, that candidates may take notice of and reward those responsible for PAC expenditures by giving official favors to the latter in exchange for the supporting messages. But here, as in Buckley, the absence of prearrangement and coordination undermines the value of the expenditure to the candidate, and thereby alleviates the danger that expenditures will be given as a quid pro quo for improper commitments from the candidate. On this record, such an exchange of political favors for uncoordinated expenditures remains a hypothetical possibility and nothing more." (470 U.S. at p. 497.)
Similarly, in this case, nothing in the record supports any contention by Irvine that contributions to independent expenditure committees are corrupting or present the possibility of corruption.

II. Heightened Scrutiny is Appropriate and Justifies the Determination That the Irvine Ordinance Unconstitutionally Interferes With Protected Association and Speech Interests

The ordinance was properly analyzed under a strict scrutiny analysis. (Russell v. Burris, 146 F.3d 563, 571 (8th Cir. 1998) (quoting Day v. Holahan, 34 F.3d 1356, 1365 (8th Cir. 1994)), cert. denied, 119 S.Ct. 510 (1998)). Based upon such scrutiny, the ordinance should be invalidated. (Arkansas Right to Life State Political Action Comm. v. Butler, 29 F. Supp. 2d 540, 544-46 (W.D. Ark. 1998); see also Citizens for Responsible Gov't State PAC v. Buckley, 60 F. Supp. 2d 1066, 1075-76 (D. Colo. 1999) (subjecting restriction on contributions to committees making candidate-related expenditures to strict scrutiny, citing, inter alia, Citizens Against Rent Control v. Berkeley, 454 U.S. 290, 295-296, 102 S.Ct. 434, 436-437, 70 L.Ed.2d 492 (1981; Citizens for Responsible Gov't State PAC v. Davidson, 236 F.3d 1174 (10th Cir. Dec. 26, 2000)[applied less than strict scrutiny].)

As noted above, in the particular facts of this case, the Irvine ordinance prohibits The Lincoln Club from making any independent expenditures. Hence, analysis of the ordinance as an unconstitutional expenditure limitation is appropriate. Thus, the effect of the Irvine ordinance is therefore more than just a restriction on expenditures; it is an outright prohibition, in the circumstances presented here, and as such is subject to strict scrutiny. (See, e.g., Federal Election Comm. v. National Conservative Political Action Comm., supra, 470 U.S. at p. 498.)

Amicus believes that any restriction upon contributions to an independent expenditure committee constitutes an unwarranted expenditure limitation. There is no logical or constitutional distinction to be made between an individual or entity making an independent expenditure and two or more individuals or entities associating to do so. The Supreme Court in Colorado I acknowledged this fact, in commenting that the corruption rationale in the case of contributions to a political party that makes independent expenditures is even more attenuated than in the case of a single, independent spender. (Colorado I, supra, 518 U.S. at p. 616.)

The "contribution" versus "expenditure" analysis and dichotomy is, in Amicus' view, inapplicable to contributions to independent expenditure committees. As articulated above, the notion that "contributions" can limited in the absence of a potentially-corrupting influence on candidates is completely inapplicable in the independent expenditure arena. Unlike California Medical Assn. v. FEC, 453 U.S. 182, 101 S.Ct. 2712, 2722, 69 L.Ed.2d 567 (1981), here the limitation on contributions to a political committee that makes independent expenditures does not prevent "evasion of candidate" contribution limits, for the reasons noted by the Supreme Court in Colorado I, supra, 518 U.S. at p. 616-618, discussed above. The only effect of such contribution limits upon contributions to committees such as The Lincoln Club and Amicus that regularly make independent expenditures serves is to limit or prohibit entirely those expenditures.

Moreover, the "proxy speech" analysis of contributions to political committees, applicable in the case of contributions to candidates (Buckley, supra) and to political committees that make contributions to candidates (California Medical Ass'n, supra), is of limited analytical value when the contributions are made to a political committee whose primary purpose is to make independent expenditures. When the contributor knows that his or her contribution is to be used for an independent expenditure, and associates him or herself to engage in such activity, the speech is, at the least, "proxy plus," since the direct purpose of an independent expenditure is to communicate the viewpoint or viewpoints of the contributors. The contributor's funds are not used for any other purpose.

III. Irvine's "Evidence" of a Constitutionally Valid Purpose Does Not and Cannot Support Irvine's Asserted Purpose

Amicus joins in the The Lincoln Club's argument that Irvine's "evidence" of a constitutionally-valid purpose does not support Irvine's asserted governmental purpose in any event. Irvine had no constitutionally justifiable purpose when it enacted Section 1-2-404(B), or that at the very least the record evidence demonstrates that there is no material dispute about Irvine's purpose, especially when that evidence is viewed in the light most favorable to The Lincoln Club.

The record evidence is that Irvine concedes that it was unaware of any instances of quid pro quo corruption which served as the basis for the Ordinance at issue here. JS 29 (ER 36). Thus, unlike the actual examples of corruption that supported the restrictions on contributions to candidates upheld in Buckley v. Valeo, supra, 424 U.S. 1, the concern with quid pro quo corruption resulting from contributions to independent expenditure committees that Irvine has asserted in this litigation is "an illusory one." See Buckley, 424 U.S. at 27; see also, NCPAC, 470 U.S. at p. 497.

Irvine's own documents demonstrate conclusively that Irvine's purpose was to "level the playing field" in Irvine municipal elections, not to address real or perceived quid pro quo corruption. See ER 47 ("this ordinance comes as close to leveling the field as we can attain"); ER 42 (descrying the ability of independent expenditure committees "to disproportionately influence an election"); id. ("our Ordinance restores the balance of influence"). This leveling-the-playing-field purpose is the only purpose actually codified in Irvine's Campaign Financing Law. See IMC § 1-2-402 (ER 13) (purpose is to "ensure an environment . . . wherein all candidates for elective office are placed on an equal plan (sic) relative to the amount of campaign contributions received by them, and further to ensure that the amount contributed by any person does not materially influence the outcome of any election"). The Supreme Court in Buckley soundly rejected such a purpose as grounds for infringing First Amendment rights. 424 U.S. at 48-49; and Irvine's attempts to generate post-hoc litigation rationalizations for actions in fact differently grounded are inadmissible.

Amicus also agrees with and joins The Lincoln Club's argument that Irvine's claim of a purpose to prevent the evasion of existing campaign finance laws is without foundation. Neither the ordinance's own stated purpose or anything in the evidentiary record supports such a claim. Moreover, Amicus has already adverted to the reasons why the asserted "anti-evasion" purpose is inapplicable in the case of contributions to independent expenditure committees. The anti-evasion purpose that has been recognized is merely a corollary to the anti-corruption purpose: Such restrictions on contributions to committees that in turn contribute to candidates have been upheld in order to prevent contributors from evading the candidate contribution limits by funneling additional funds to the candidates through the intermediary committees. California Medical Ass'n., 453 U.S. at 199 [limitation on contributions to multi-candidate committees was "an appropriate means by which Congress could seek to protect the integrity of the contribution restrictions upheld by [the] Court in Buckley" (emphasis added)]. The Irvine ordinance at issue here restricts only contributions to independent expenditure committees, which by definition do not funnel contributions to candidates. See Cal. Govt. Code § 82031. Limitations on independent expenditures are unconstitutional. NCPAC, supra, 470 U.S. at 498; Buckley, supra, 424 U.S. at 47.

CONCLUSION

For the foregoing reasons, Amicus respectfully urges this court to grant The Lincoln Club's motion for reconsideration and modify its opinion and order accordingly.

Dated: January 10, 2002 Respectfully Submitted,

BELL, McANDREWS, HILTACHK & DAVIDIAN, LLP

By: _____________________________ Charles H. Bell, Jr.
Attorneys for Proposed Amicus Curiae Airport Working Group Political Action Committee