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No. 00-56444
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
APPELLANTS' OPENING BRIEF
Patrick J. Manshardt, Of Counsel, INDIVIDUAL RIGHTS FOUNDATION
One Bunker Hill Bldg., 8th Floor
601 West Fifth Street
Los Angeles, CA 90071
(213) 688-4045
John C. Eastman
THE CLAREMONT INSTITUTE CENTER
FOR CONSTITUTIONAL JURISPRUDENCE
c/o Chapman Univ. School of Law
One University Drive
Orange, California 92866
(714) 628-2587
Manuel S. Klausner
LAW OFFICES OF MANUEL S. KLAUSNER, P.C.
One Bunker Hill Bldg., 8th Floor
601 West Fifth Street
Los Angeles, CA 90071
(213) 617-0414
CORPORATE DISCLOSURE STATEMENT
Plaintiff The Lincoln Club of Orange County is a non-profit mutual
benefit corporation that does not have a parent corporation and
has never issued shares to the public. Its affiliates, Plaintiff
The Lincoln Club of Orange County State PAC, Plaintiff The Lincoln
Club of Orange County Independent Expenditures PAC and The Lincoln
Club of Orange County Federal PAC, are political action committees,
none of which have a parent corporation or have ever issued shares
to the public.
REQUEST FOR ORAL ARGUMENT
Appellants The Lincoln Club of Orange County, et al., request oral
argument. This case from the Central District of California presents
important free speech and association constitutional issues that
have previously been addressed by this Court only in an unpublished
order affirming a contrary ruling by the Northern District of California
granting a preliminary injunction in a similar case. San Franciscans
for Sensible Government v. Renne, No. C-99-02456 (N.D. Cal. Sept.
8, 1999) (order granting plaintiffs' motion to preliminarily enjoin
enforcement of San Francisco's ordinance restricting contributions
to independent expenditure committees), affirmed, No. 99-16995 (9th
Cir. Oct. 20, 1999). In that order, this Court "expressed no
opinion as to the constitutionality" of San Francisco's similar
statute, but recognized that "[n]either the Supreme Court nor
this court has answered the serious, narrow and close legal question
presented here."
TABLE OF CONTENTS
CORPORATE DISCLOSURE STATEMENT i
REQUEST FOR ORAL ARGUMENT ii
TABLE OF CONTENTS iii
TABLE OF AUTHORITIES iv
STATEMENT OF JURISDICTION 1
ISSUES PRESENTED FOR REVIEW 2
STATEMENT OF THE CASE 3
STATEMENT OF FACTS 4
SUMMARY OF ARGUMENT 6
ARGUMENT 7
I. The District Court Erroneously Applied What Amounts to Rational
Basis Review When Strict, or "Exacting," Scrutiny Was
Required. 7
II. The District Court Erroneously
Granted Summary Judgment for Defendant City of Irvine When Facts
Material to Irvine's Theory of the Case Were In Dispute. 14
III. Because Irvine's Ordinance
is not Narrowly Tailored or Even Closely Drawn To Further Any Purported
Interest In Avoiding The Corruption of Candidates, The District
Court Improperly Denied The Lincoln Club's Motion for Summary Judgment.
18
CONCLUSION 25
TABLE OF AUTHORITIES
Cases
Arkansas Right to Life State Political Action Comm. v. Butler,
29 F. Supp. 2d 540 (W.D. Ark. 1998), cert. denied, 525 U.S. 1145
(1999) 12
Berry v. Valence Tech., Inc., 175 F.3d 699 (9th Cir.1999) 14
California Medical Ass'n v. Federal Election Comm'n,
453 U.S. 182 (1981) passim
Celotex Corp v. Catrett, 477 U.S. 317 (1986). 14
Citizens Against Rent Control v. City of Berkeley, 454 U.S. 290
(1981) passim
Citizens for Responsible Government State PAC v. Buckley,
60 F. Supp. 2d 1066 (D. Colo. 1999), vacated as moot after
legislature repealed statute, No. 99-1414, 2000 WL 19024247
(10th Cir. Dec. 26, 2000) 20
Colorado Republican Federal Campaign Committee v. FEC,
518 U.S. 604 (1996) 16
Day v. Holahan, 34 F.3d 1356 (8th Cir. 1994) 12, 19, 20
Eastern R.R. Presidents Conference. v. Noerr Motor Freight, Inc.,
365 U.S. 127, 139, 81 S. Ct. 523, 5 L. Ed. 2d 464 (1961) 17
Federal Election Commission v. National Conservative Political
Action Committee, 470 U.S. 480 (1985) 8
First Nat. Bank of Boston v. Bellotti, 435 U.S. 765 (1978) 7
Gitlow v. New York, 268 U.S. 652 (1925) 7
Levin v. Knight, 780 F.2d 786 (9th Cir. 1986) 14
Marks v. United States, 430 U.S. 188 (1977) 11, 24
McGowan v. Maryland, 366 U.S. 420, 81 S. Ct. 1101,
6 L. Ed. 2d 393 (1961) 13
McIntyre v. Ohio Elections Com'n, 514 U.S. 334 (1995) 7, 10
Minnesotans for Term Limits v. Hayes, No. 3-93-766 (D. Minn. 1994)
20
Missouri Republican Party v. Lamb, 227 F.3d 1070 (8th Cir. 2000)
16
Mott v. FEC, 494 F. Supp. 131 (D.D.C. 1980) 21
NAACP v. Alabama, 357 U.S. 449 (1958) 7, 10, 11
NAACP v. Button, 371 U.S. 415 (1963) 7
National Black Police Ass'n v. District of Columbia Bd. of
Elections and Ethics, 858 F.Supp. 851 (D.D.C. 1994) 20
New York Times Co. v. Sullivan, 376 U.S. 254 (1964) 17
Nixon v. Shrink Missouri Gov't PAC, 528 U.S. 377,
120 S. Ct. 897, 904, 145 L. Ed. 2d 886 (2000) 12, 13
North Carolina Right to Life, Inc. v. Leake,
108 F. Supp. 2d 498 (E.D.N.C. 2000) 21
Quincy Cable TV, Inc. v. FCC, 768 F.2d 1434 (D.C. Cir. 1985) 18
Righeimer v. City of Huntington Beach, No. SACV94-676-AHS
(C.D. Cal. Oct. 13, 1994) 19
Roberts v. United States Jaycees, 468 U.S. 609 (1984) 9
Robi v. Reed, 173 F.3d 736 (9th Cir.1999) 14
Romano v. Oklahoma, 512 U.S. 1 (1994) 11, 24
Russell v. Burris, 146 F.3d 563 (8th Cir.),
cert. denied, 119 S. Ct. 510 (1998) 11
Russell v. Burris, 978 F. Supp. 1211 (E.D. Ark. 1997), affirmed
in relevant
part, 146 F.3d 563 (8th Cir.), cert. denied, 119 S.Ct. 510 (1998)
20
San Franciscans for Sensible Government v. Renne,
No. C-99-02456 (N.D. Cal. Sept. 8, 1999) 2, 20
Service Employees Int'l Union v. Fair Political Practices Comm'n,
955 F.2d 1312 (9th Cir.), cert. denied, 505 U.S. 1230 (1992) 12
Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622 (1994) 18
U.S. v. Muckleshoot Indian Tribe, 2000 WL 1818337
(9th Cir., Dec. 13, 2000) 14
United States v. Virginia, 518 U.S. 515 (1996) 16
Vannatta v. Keisling, 151 F.3d 1215 (9th Cir. 1998) 12
Statutes
2 U.S.C. § 441a(a)(2)(A) 21
2 U.S.C. § 441a 23
28 U.S.C. § 1291 1
28 U.S.C. § 1331 1
28 U.S.C. § 1343 1
28 U.S.C. § 2201 1
28 U.S.C. § 2202 1
42 U.S.C. § 1983 1, 3
42 U.S.C. § 1988 3
Cal. Gov. Code § 82031 9, 18
F.R.A.P. Rule 4(a) 1
Fed. R. Civ. P. 56(c) 14
Irvine Municipal Code § 1-2-404(B) passim
Irvine Municipal Code § 1-2-405 5
Ninth Circuit Rule 36-3 21
Other Authorities
Zachary Coile, Floodgates opened to campaign spending, S.F. Examiner,
Oct. 21, 1999, at A26 20
STATEMENT OF JURISDICTION
Plaintiffs The Lincoln Club of Orange County, The Lincoln Club of
Orange County State PAC, and The Lincoln Club of Orange County Independent
Expenditures PAC (collectively, "The Lincoln Club") brought
this action under 42 U.S.C. § 1983 to recover nominal damages
from Defendant City of Irvine for its unconstitutional infringement
of Plaintiffs' core First Amenment right to participate in the electoral
process through the making of independent expenditures in the November
1998 Irvine city council elections. This action was also brought
pursuant to 42 U.S.C. § 1983 and 28 U.S.C. §§ 2201
and 2202 to have declared unconstitutional, and to enjoin the enforcement
of, Irvine Municipal Code § 1-2-404(B), which limits the amount
of contributions that may be received by committees making independent
expenditures in Irvine municipal elections and which effectively
bars Plaintiffs from making any independent expenditures in Irvine
Municipal Elections.
Jurisdiction in the district court was based on 28 U.S.C. §§
1331 and 1343. Jurisdiction in this Court is based on 28 U.S.C.
§ 1291, the district court having entered a final judgment
on August 17, 2000, disposing of all parties' claims. On August
28, 2000, Plaintiffs filed a timely notice of appeal pursuant to
Rule 4(a) of the Federal Rules of Appellate Procedure.
ISSUES PRESENTED FOR REVIEW
1. Whether the district court should have assessed Irvine's ordinance
under the strict, or "exacting," scrutiny that the Supreme
Court has applied to restrictions on contributions to independent
expenditure committees as well as to restrictions on independent
expenditures themselves, rather than the "lesser constitutional
scrutiny" that the Supreme Court has applied when assessing
restrictions on contributions to candidates?
2. Whether the District Court improperly entered Summary Judgment
for Defendant City of Irvine in the face of evidence demonstrating
that the City had an unconstitutional purpose when enacting its
ordinance restricting contributions to independent expenditure committees?
3. Whether a municipal restriction on contributions to independent
expenditure committees that effectively bars Plaintiffs from making
any independent expenditures is narrowly tailored (or even closely
drawn) to further the City's asserted anti-corruption interest when
the Supreme Court has clearly held that independent expenditures
themselves do not sufficiently further an anti-corruption interest
to warrant infringement of core First Amendment speech and association
rights?
STATEMENT OF THE CASE
This case involves a challenge to a provision of the City of Irvine's
Campaign Financing Law, Irvine Municipal Code ("IMC")
§ 1-2-404(B), that limits contributions to independent expenditure
committees and that bars such committees from making any independent
expenditures once they have accepted contributions in excess of
the prescribed limits. Joint Statement of Uncontroverted Facts ("JS")
24-27 (ER 35-36). Claiming that the Irvine ordinance prevented them
from participating in the November 1998 municipal election in violation
of their First Amendment rights of speech and association, plaintiffs/appellants
The Lincoln Club of Orange County and its affiliated political action
committees brought suit under 42 U.S.C. § 1983 against defendant/appellee
the City of Irvine, seeking nominal damages (together with costs
and attorneys fees pursuant to 42 U.S.C. § 1988). Complaint
10-13 (ER 3). Plaintiffs also sought a declaration that the Irvine
ordinance was unconstitutional both as applied and on its face,
and sought in addition an order permanently enjoining Irvine from
enforcing its ordinance. Id. 14 (ER 4).
After the district court denied Irvine's Motion for Judgment on
the Pleadings, the parties executed an extensive Joint Statement
of Undisputed Facts (ER 30-37) and subsequently filed cross motions
for summary judgment (ER 38-40, 48-51). Because the November 2000
election was fast approaching, Plaintiffs alternatively requested
a preliminary injunction barring the City of Irvine from enforcing
its ordinance and thereby preventing Plaintiffs from exercising
their core First Amendment political speech and association rights
in the November 2000 Irvine municipal elections. (ER 50-51).
The district court, Judge Alicemarie H. Stotler, held a hearing
on August 16, 2000 on the parties' cross motions. Later that same
day, the court issued a minute ruling granting the City's motion
for summary judgment, holding that although "reasonable minds
will differ," the City "has serpentined its way through
the applicable cases and drafted an ordinance that escapes unconstitutionality."
(ER 55-57). The district court then entered final judgment for the
City of Irvine. (ER 62-63). Plaintiffs' motion for a preliminary
injunction pending appeal was subsequently denied by the district
court on September 18, 2000, and by this Court on October 19, 2000.
STATEMENT OF FACTS
Seeking to "level the playing field" in Irvine Municipal
elections, the Irvine City Council in 1995 enacted an ordinance
limiting the amount of contributions that could be made to committees
making independent expenditures in Irvine Municipal elections. IMC
§ 1-2-404(B) (ER 13).
Plaintiff The Lincoln Club of Orange County is a non-profit mutual
benefit corporation that participates in the electoral process through
its affiliated political action committees, including Plaintiffs
The Lincoln Club of Orange County State PAC and The Lincoln Club
of Orange County Independent Expenditures PAC. JS 1, 4 (ER 31).
The State PAC makes both independent expenditures and direct contributions
in support of or in opposition to political candidates (as well
as ballot initiatives). JS 5 (ER 31-32). The Independent Expenditures
PAC was organized for the purpose of making only independent expenditures,
and it has never made a contribution to a candidate. JS 6 (ER 32).
The Lincoln Club and its affiliated PACS derive their resources
from annual membership dues, currently $2,000 per member. JS 2-4
(ER 31). Because membership dues are paid to political committees
that make contributions to candidates and/or independent expenditures
in political elections, those dues are deemed to be contributions
for purposes of the Irvine Campaign Finance Law. JS 7 (ER 32). Subsection
B of that law limits contributions to independent expenditure committees,
such as Plaintiffs, that make independent expenditures during an
election cycle in support of or in opposition to any City of Irvine
candidate. IMC § 1-2-404(B); JS 9 (ER 32). The contribution
limit in place for the two-year election cycle ending with the November
2000 election was $320. IMC § 1-2-405; JS 12 (ER 33). Because
The Lincoln Club's annual dues exceed the contribution limits established
by the Irvine ordinance, The Lincoln Club was barred from making
any independent expenditures in support of or in opposition to candidates
in the November 2000 Irvine municipal elections, and it was previously
barred from making any independent expenditures in support of or
in opposition to candidates in the November 1998 Irvine municipal
elections. JS 24-27 (ER 35-36). Indeed, The Lincoln Club would be
subject to civil and criminal prosecution if it makes independent
expenditures in Irvine municipal elections, having received dues
in excess of the contribution limits imposed by IMC § 1-2-404(B).
JS 28 (ER 36).
SUMMARY OF ARGUMENT
The Irvine Ordinance at issue in this case, IMC § 1-2-404(B),
restricts contributions to committees making independent expenditures
in Irvine municipal elections. But for organizations such as Plaintiffs
whose annual dues are in excess of the contribution limits set by
the ordinance, the ordinance operates as an absolute ban on expenditures,
preventing Plaintiffs from exercising their core First Amendment
rights of speech and association. Such a restriction is subject
to strict scrutiny, but the district court below applied a lower
level of scrutiny, perhaps even rational basis review, in upholding
Irvine's ordinance.
The district court also resolved a disputed issue of fact - material
to Irvine's case - in Irvine's favor, contrary to the well-established
rule that the factual record is to be viewed in the light most favorable
to the party opposing summary judgment. That factual dispute involves
whether Irvine had a constitutionally impermissible "level
the playing field" purpose when it enacted IMC § 1-2-404(B),
as its own documents and codified statutory purpose demonstrate,
or whether the purpose of the ordinance was to avoid quid pro quo
corruption of candidates despite Irvine's own admission that it
was aware of no instance of quid pro quo corruption that had resulted
from contributions to independent expenditure committees. The district
court therefore erred in granting Irvine's motion for summary judgment.
Finally, even if Irvine had a constitutionally permissible purpose
of avoiding quid pro quo corruption of candidates or its appearance,
the restrictions Irvine imposed on contributions to independent
expenditure committees are not closely related to that purpose (much
less narrowly tailored to further the purpose). The Supreme Court
has repeatedly ruled that independent expenditures themselves do
not sufficiently further an anti-corruption purpose because, by
definition, there can be no coordination with a candidate and the
person or committee making the independent expenditures. A fortiori,
contributions to independent expenditure committees, which are even
further removed from the concern with candidate corruption, are
not closely enough drawn to sustain the significant infringement
of First Amendment rights at issue here. The Lincoln Club was therefore
entitled to judgment as a matter of law, and the district court
erred in denying its motion.
ARGUMENT
I. The District Court Erroneously Applied What
Amounts to Rational Basis Review When Strict, or "Exacting,"
Scrutiny Was Required.
The Irvine ordinance challenged here imposes limits on the amount
individuals may contribute to political committees, such as Plaintiffs,
that make independent expenditure supporting or opposing candidates
for local office, and it therefore prohibits expenditures by such
committees that have accepted contributions in excess of the proscribed
limits. JS 9, 16, 17, 27, 28 (ER 32-36). The ordinance thus restricts
political speech, the core speech protected by the First Amendment,
which is made applicable to the States by the Fourteenth Amendment,
see, e.g., Gitlow v. New York, 268 U.S. 652, 666 (1925). As such,
the district court should have subjected Irvine's restriction to
strict scrutiny, upholding it only if it was narrowly tailored to
serve a compelling governmental interest. See, e.g., McIntyre v.
Ohio Elections Comm'n, 514 U.S. 334, 347 (1995) (a restriction on
political speech can be upheld "only if it is narrowly tailored
to serve an overriding state interest"); First Nat'l Bank of
Boston v. Bellotti, 435 U.S. 765, 786 (1978) (requiring a "compelling
interest" and the employment of means "closely drawn to
avoid unnecessary abridgement" of First Amendment rights);
NAACP v. Button, 371 U.S. 415, 438 (1963) ("only a compelling
state interest … can justify limiting First Amendment freedoms");
Buckley v. Valeo, 424 U.S. 1, 44 (1976); Federal Election Comm'n
v. National Conservative Political Action Comm., 470 U.S. 480, 496
(1985) ("NCPAC").
The district court rejected The Lincoln Club's contention that the
Irvine ordinance should be subject to strict scrutiny because it
barred The Lincoln Club from making expenditures, holding that "[t]he
Ordinance places a facial restriction on 'contribution(s)' in excess
of the predetermined amount, not 'independent expenditures.'"
Minute Ruling at 2 (ER 56) (emphasis in original). But the fact
that Irvine's ordinance facially restricts only contributions to
independent expenditure committees and not the independent expenditures
themselves, see JS 13 (ER 33), does not mean that it is subject
to less exacting scrutiny. In Buckley, the Supreme Court applied
a lower level of scrutiny when assessing restrictions on contributions
than the strict scrutiny it applied when assessing restrictions
on expenditures, 424 U.S. at 23, but that case involved restrictions
on contributions to candidates, not restrictions on contributions
to independent expenditure committees such as are at issue here.
Admittedly, this case falls somewhere between the two Buckley poles,
but the Irvine ordinance at issue here should be subject to strict
scrutiny rather than Buckley's slightly less than strict scrutiny
for two reasons. First, as noted above, the ordinance operates to
bar expenditures by independent expenditure committees such as The
Lincoln Club whose dues exceed the contribution limits. JS 27 (ER
35-36). Limits on expenditures are clearly subject to strict scrutiny.
Buckley, 424 U.S. at 44; NCPAC, 470 U.S. at 496.
Second, the fact that the Irvine ordinance at issue here is a limitation
not on contributions to candidates such as was at issue in Buckley
but on contributions to independent expenditure committees is an
important distinction. By definition, independent expenditure committees
can have no connection whatsoever with candidates. See Cal. Gov.
Code § 82031. Buckley's motivation for the lower level of scrutiny
- that contributions to candidates are merely speech by proxy of
the candidate himself, and a concern with the quid pro quo corruption
of candidates - are not present in the case of contributions to
independent expenditure committees.
Twice since Buckley, the Supreme Court has addressed limitations
on contributions to non-candidate committees, and in both cases,
the governing opinion applied strict scrutiny. In Citizens Against
Rent Control v. City of Berkeley - the Supreme Court case most directly
on point - the Supreme Court applied "exacting" scrutiny
to assess a limitation on contributions to independent expenditure
committees, because such limitations were "clearly a restraint
on the right of association" protected by the First Amendment.
454 U.S. 290, 294, 296 (1981). A limit on contributions to independent
expenditure committees "automatically affects expenditures,"
held the Court, and therefore "plainly contravenes both the
right of association and the speech guarantees of the First Amendment."
Id. at 299, 300.
California Medical Ass'n v. Federal Election Comm'n, 453 U.S. 182
(1981), is similarly instructive. Although Justice Marshall, writing
for a plurality, stated that contributions to multicandidate committees,
like the contributions to candidates at issue in Buckley, were merely
"speech by proxy" and therefore not entitled to full First
Amendment protection, Justice Blackmun - who provided the dispositive
fifth vote - expressly rejected that position. 453 U.S. at 196 (Marshall,
J., plurality opinion); id. at 202 (Blackmun, J., concurring in
the judgment). Justice Blackmun noted that "governmental 'action
which may have the effect of curtailing the freedom to associate
is subject to the closest scrutiny.'" Id. at 202 (quoting Buckley,
424 U.S. at 25 (quoting NAACP v. Alabama, 357 U.S. 449, 460-61 (1958))).
Justice Blackmun then applied a "rigorous standard of review,"
permitting such contribution limitations only "if the State
demonstrates a sufficiently important interest and employs means
closely drawn to avoid unnecessary abridgement of associational
freedoms." Id. (quoting Buckley, 424 U.S. at 25, 29). Because
Justice Blackmun's more narrow opinion was necessary to the disposition
of the case, it is controlling. See, e.g., Romano v. Oklahoma, 512
U.S. 1, 8 (1994); Marks v. United States, 430 U.S. 188, 193 (1977).
If there had been any doubt that the Court has rejected Buckley's
"speech by proxy" rationale when assessing restrictions
on contributions to independent expenditure committees, all doubt
was removed in NCPAC. In that case, the Court expressly rejected
the government's contention that contributions to independent expenditure
committees were merely "speech by proxy" entitled, under
Buckley, to less First Amendment protection than other speech. The
Court found that the "First Amendment freedom of association
[was] squarely implicated" and that contributions to independent
expenditure committees "are mechanisms by which large numbers
of individuals of modest means can join together in organizations
which serve to 'amplif[y] the voice of their adherents.'" Id.
at 494 (citing Buckley, 424 U.S. at 22; NAACP v. Alabama, 357 U.S.
449, 460 (1958); Citizens Against Rent Control, 454 U.S. at 295-96).
"[T]he 'proxy speech' approach is not useful in this case,"
noted the Court, because "contributors obviously like the message
they are hearing from these organizations and want to add their
voices to that message." Id. at 495. As a result, the Court
held that "their collective action in pooling their resources
to amplify their voices" was "entitled to full First Amendment
protection." Id. at 495, 496. The Court then applied strict
scrutiny to invalidate the independent expenditure restrictions
at issue in the case. Id. See also Russell v. Burris, 146 F.3d 563,
571 (8th Cir.), cert. denied, 119 S. Ct. 510 (1998) ("State-enforced
limits on contributions to political action committees stifle 'not
only free political speech, but also free political association,'
and are reviewed according to a strict scrutiny standard")
(quoting Day v. Holahan, 34 F.3d 1356, 1365 (8th Cir. 1994)); Arkansas
Right to Life State Political Action Committee v. Butler, 29 F.
Supp. 2d 540, 544 (W.D. Ark. 1998) (subjecting limit on contributions
to independent expenditure committees to strict scrutiny), cert.
denied, 525 U.S. 1145 (1999).
Moreover, even if the standard of review applied in Buckley for
contributions to candidates was applicable here, what Buckley actually
held was that such restrictions on associational activity are "subject
to the closest scrutiny." 424 U.S. at 25. This Court has interpreted
Buckley as analyzing restrictions on contributions to candidates
under a "somewhat less stringent test than strict scrutiny."
Service Employees Int'l Union v. Fair Political Practices Comm'n,
955 F.2d 1312, 1322 (9th Cir.), cert. denied, 505 U.S. 1230 (1992).
But the test "is still a rigorous one," and the government
still must demonstrate a sufficiently important interest and employ
means closely drawn to avoid unnecessary abridgement of associational
freedoms. Vannatta v. Keisling, 151 F.3d 1215, 1220 (9th Cir. 1998)
(quoting Service Employees, 955 F.2d at 1322). As the Supreme Court
itself noted in its most recent case addressing restriction on contributions
to candidates, "a contribution limit involving 'significant
interference' with associational rights could survive only if the
Government demonstrated that the contribution regulation was 'closely
drawn' to match a 'sufficiently important interest' . . . ."
Nixon v. Shrink Missouri Gov't PAC, 528 U.S. 377, 120 S. Ct. 897,
904, 145 L. Ed. 2d 886 (2000) (quoting Buckley).
Irvine's ordinance is clearly a significant restriction on associational
activity. Because the Irvine ordinance "does not restrict individuals
from independently making independent expenditures of any amount
in support of or in opposition to any Irvine candidate," JS
14 (ER 33), the only effect of the Irvine ordinance is to limit
individuals who wish to associate together for their political advocacy.
As such, the Irvine ordinance must at least be "'closely drawn'
to match a 'sufficiently important interest.'" Nixon, 120 S.
Ct. at 904.
The district court facially applied this "lesser" though
still rigorous level of scrutiny. Order at 1 (ER 59); Minute Ruling
at 2 (ER 56). But in doing so, it relied on the existence of an
anti-corruption governmental purpose about which there was a factual
dispute. Instead of viewing that factual dispute in the light most
favorable to The Lincoln Club - which would have required treating
Irvine as having the constitutionally impermissible purpose of seeking
to level the playing field in its municipal elections, see infra
at 13-14?? - the district court held that Irvine's restriction on
contributions to independent expenditure committees "can be
said to be a constitutionally valid means" of furthering Irvine's
asserted anti-corruption purpose. Minute Ruling at 2 (ER 56) (emphasis
added). The emphasized language strongly suggests that the district
court applied something akin to rational basis review - the least
restrictive level of constitutional scrutiny - upholding the ordinance
whether or not Irvine actually had an anti-corruption purpose merely
because the court could conceive of a legitimate purpose that in
its view would be furthered by the restrictions. Cf. McGowan v.
Maryland, 366 U.S. 420, 426, 81 S. Ct. 1101, 1105, 6 L. Ed. 2d 393
(1961) (upholding a statutory classification under equal protection
rational basis review "if any state of facts reasonably may
be conceived to justify it").
In short, the district court erred by failing to subject Irvine's
ordinance to "exacting," or strict scrutiny, and even
if this court agrees that the important First Amendment rights at
issue here are entitled to lesser constitutional protection, the
district court's apparent move to a kind of rational basis review
makes its decision incorrect even under that lesser level of constitutional
scrutiny. See, e.g., Nixon, 120 S. Ct. at 903-04 (describing the
lesser standard of review as more rigorous than the intermediate
level of scrutiny the Court applies to time, place and manner restrictions).
II. The District Court Erroneously Granted
Summary Judgment for Defendant City of Irvine When Facts Material
to Irvine's Theory of the Case Were In Dispute.
A district court may render summary judgment only if "the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled
to judgment as a matter of law." Levin v. Knight, 780 F.2d
786, 787 (9th Cir. 1986) (quoting Fed. R. Civ. P. 56(c)); see also
Celotex Corp v. Catrett, 477 U.S. 317, 322 (1986).
This Court reviews a grant of summary judgment de novo. U.S. v.
Muckleshoot Indian Tribe, 2000 WL 1818337, *2 (9th Cir. Dec. 13,
2000) (citing Robi v. Reed, 173 F.3d 736, 739 (9th Cir. 1999)).
Under the de novo standard of review, this court "must determine,
viewing the evidence in the light most favorable to the appellants,
whether there are any genuine issues of material fact and whether
the district court correctly applied the substantive law."
Id. (emphasis added) (citing Berry v. Valence Tech., Inc., 175 F.3d
699 (9th Cir.1999)).
Although the parties here entered into an extensive joint stipulation
of undisputed facts, Defendant City of Irvine's motion for summary
judgment relied upon factual assertions about the governmental purpose
of its challenged ordinance that were not part of the joint stipulation
and that were, in fact, disputed by Plaintiffs. In their Statement
of Genuine Issues, Plaintiffs relied upon the very documents proffered
by Irvine as exhibits attached to its motion for summary judgment.
(ER 41-47, 52-54). Those documents, viewed in the light most favorable
to the Lincoln Club, demonstrate that Irvine had an unconstitutional
purpose to level the playing field when it enacted Irvine Municipal
Code § 1-2-404(B), not a purpose to avoid quid pro quo corruption
of candidates, as Irvine asserted. (ER 46-47).
The factual dispute is material to Irvine's case because the only
purpose that the Supreme Court has recognized as sufficiently compelling
to warrant restrictions on First Amendment rights is the avoidance
of quid pro quo corruption of candidates or the appearance of such
corruption. See, e.g., NCPAC, 470 U.S. at 496-97 (citing Buckley).
Moreover, the improper, level-the-playing-field purpose demonstrated
by Irvine's documentary evidence is confirmed by another provision
of Irvine's own ordinance. The codified purpose of the Irvine Campaign
Financing Law "is to ensure an environment in the City of Irvine
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."
IMC § 1-2-402; JS 10 (ER 32-33). Nowhere in this statutory
purpose is mention made of any concern with quid pro quo corruption.
Indeed, Irvine conceded that it was unaware of any instances of
quid pro quo corruption in Irvine municipal elections, and that
instances of quid pro quo corruption did not serve as a basis for
the Campaign Finance Ordinance. JS 29 (ER 36).
Irvine's concession is alone enough to render the district court's
grant of summary judgment incorrect. The Supreme Court has intimated
that there must be record evidence or legislative findings suggesting
a special corruption problem posed by the specific First Amendment
activity sought to be regulated before it will allow a restriction
of First Amendment rights, at least outside the context of direct
contributions to candidates where the potential for quid pro quo
corruption is manifestly clear. See Colorado Republican Federal
Campaign Committee v. FEC, 518 U.S. 604, 618 (1996) (Breyer, J.,
plurality opinion); see also NCPAC, 470 U.S. at 498 (rejecting mere
hypothetical possibility as ground for restriction on speech); Missouri
Republican Party v. Lamb, 227 F.3d 1070, 1073 (8th Cir. 2000) (reversing
district court's grant of summary judgment where the evidentiary
record was "wholly devoid of any evidence that limiting parties'
campaign contributions will either reduce corruption or measureably
decrease the number of occasions on which limitations on individuals'
campaign contributions are circumvented"); cf. United States
v. Virginia, 518 U.S. 515, 531 (1996) ("VMI") ("The
[government's] justification must be genuine, not hypothesized or
invented post hoc in response to litigation. And it must not rely
on overbroad generalizations"). Here, as in Colorado Republican,
the constitutionally significant fact that there is a "lack
of coordination between the candidate and the source of the expenditure"
(i.e. a contributor to an independent expenditure committee) bars
the court "from assuming, absent convincing evidence to the
contrary, that a [restriction on party expenditures] is necessary
to combat a substantial danger of corruption of the electoral system."
Colorado Republican, 518 U.S. at 617 (Breyer, J., plurality opinion).
Instead of offering convincing evidence - indeed any evidence -
of a corruption problem, Irvine manifests through its codified purpose
an intent to "level the playing field" in Irvine municipal
elections, a governmental interest that has been squarely rejected
by the Supreme Court as a basis for infringing First Amendment rights:
The concept that government may restrict the speech of some elements
of our society in order to enhance the relative voice of others
is wholly foreign to the First Amendment, which was designed to
secure the widest possible dissemination of information from diverse
and antagonistic sources, and to assure unfettered interchange of
ideas for the bringing about of political and social changes desired
by the people.
Buckley, 424 U.S. at 48-49 (quoting New York Times Co. v. Sullivan,
376 U.S. 254, 266, 269 (1964)) (internal quotation marks omitted).
"The First Amendment's protection against governmental abridgment
of free expression cannot properly be made to depend on a person's
financial ability to engage in public discussion." Id. at 49
(citing Eastern R.R. Presidents Conference. v. Noerr Motor Freight,
Inc., 365 U.S. 127, 139, 81 S. Ct. 523, 5 L. Ed. 2d 464 (1961)).
In short, Irvine's codified purpose - the only interest upon which
the campaign finance ordinance statutorily rests - is insufficient
as a matter of law to sustain the Irvine ordinance. At the very
least, The Lincoln Club pointed to evidence raising a genuine dispute
about whether Irvine actually had a constitutionally permissible
purpose. In light of that factual dispute, the grant of summary
judgment for Irvine was improper.
III. Because Irvine's Ordinance is not Narrowly
Tailored or Even Closely Drawn To Further Any Purported Interest
In Avoiding The Corruption of Candidates, The District Court Improperly
Denied The Lincoln Club's Motion for Summary Judgment.
Even assuming that Irvine can look beyond its codified purpose to
support a claim that its real purpose in enacting the Campaign Finance
Ordinance was to avoid quid pro quo corruption of candidates or
the appearance of such corruption, Irvine's ordinance cannot be
sustained. Whether or not Irvine actually had such a purpose is
therefore not a material disputed fact that would preclude the entry
of summary judgment for Plaintiffs.
Unlike the restrictions on contributions to candidates at issue
in Buckley, Irvine's ordinance imposes restrictions on contributions
to independent expenditure committees, which by definition have
no connection with candidates. Cal. Govt. Code § 82031. Irvine's
ordinance is therefore not "closely drawn" (and certainly
not "narrowly tailored") to further its interest in avoiding
quid pro quo corruption of candidates or the appearance of such
corruption. In fact, as more fully described below, it does not
further that interest at all. "When the Government defends
a regulation on speech as a means to redress past harms or prevent
anticipated harms, it must do more than simply 'posit the existence
of the disease sought to be cured.'" Turner Broadcasting System,
Inc. v. FCC, 512 U.S. 622, 664 (1994) (quoting Quincy Cable TV,
Inc. v. FCC, 768 F.2d 1434, 1455 (D.C. Cir. 1985)). "It must
demonstrate that the recited harms are real, not merely conjectural,
and that the regulation will in fact alleviate these harms in a
direct and matieral way." Id. (emphasis added).
In Buckley v. Valeo, the Supreme Court upheld restrictions imposed
by the Federal Election Campaign Act ("FECA") on contributions
to candidates because the infringement on the First Amendment rights
to speech and association imposed by the restrictions was closely
drawn to further the government's significant interest in preventing
quid pro quo corruption of candidates or the appearance of such
corruption. 424 U.S. at 29. But Buckley struck down FECA's limitations
on independent expenditures by individuals because "[t]he absence
of prearrangement and coordination of an expenditure with the candidate
or his agent . . . alleviates the danger that expenditures will
be given as a quid pro quo for improper commitments from the candidate."
Id. at 47. The Court extended that ruling in NCPAC, when it invalidated
restrictions on expenditures made by independent expenditure committees,
noting:
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.
NCPAC, 470 U.S. at 498.
By definition, as the district court had previously held in a similar
case, contributions to independent expenditure committees "are
even more remotely connected to the dangers of corruption of candidates
than are the independent expenditures themselves, so likewise are
not justified by any sufficiently compelling interest." Righeimer
v. City of Huntington Beach, No. SACV94-676-AHS (C.D. Cal. Oct.
13, 1994) (order denying motion to dismiss, at 3) (Attached hereto
as Exhibit B). "[T]he concern of a political quid pro quo for
large contributions, which becomes a possibility when the contribution
is to an individual candidate, . . . is not present when the contribution
is given to a political committee or fund that by itself does not
have legislative power." Day v. Holahan, 34 F.3d 1356, 1365
(8th Cir. 1994) (citing Buckley, 424 U.S. at 26, 27); see also National
Black Police Ass'n v. District of Columbia Bd. Of Elections and
Ethics, 858 F.Supp. 851, 856-57 (D.D.C. 1994) (distinguishing between
limits on contributions to candidates and limits on contributions
to independent expenditures (citing, e.g., Minnesotans for Term
Limits v. Hayes, No. 3-93-766 (D. Minn. 1994)); Russell v. Burris,
978 F. Supp. 1211, 1216-17 (E.D. Ark. 1997) (separately addressing
limits on contributions to candidates and contributions to independent
expenditure committees, although not reaching the latter because
of plaintiffs' lack of standing), affirmed in relevant part, 146
F.3d 563, 566-67 (8th Cir.), cert. denied, 119 S.Ct. 510 (1998);
Citizens for Responsible Government State PAC v. Buckley, 60 F.
Supp. 2d 1066, 1089 (D. Colo. 1999) (invalidating Colorado's $250
limit on contributions to independent political committees as not
"narrowly tailored to address the appearance of corruption
caused by large campaign contributions"), vacated as moot after
legislature repealed statute, No. 99-1414, 2000 WL 19024247 (10th
Cir. Dec. 26, 2000); San Franciscans for Sensible Government v.
Renne, No. C-99-02456 (N.D. Cal. Sept. 8, 1999) (order granting
plaintiffs' motion to preliminarily enjoin enforcement of San Francisco's
ordinance restricting contributions to independent expenditure committees,
because Plaintiffs had demonstrated a "likelihood of success"
on the merits of their constitutional claim) (Ex. C, at 15), affirmed,
No. 99-16995 (9th Cir. Oct. 20, 1999); but see North Carolina Right
to Life, Inc. v. Leake, 108 F. Supp. 2d 498, 518 n.19 (E.D.N.C.
2000) (rejecting the reasoning of the Northern District of California
in San Franciscans); Mott v. FEC, 494 F. Supp. 131, 136-37 (D.D.C.
1980).
Quite simply, Defendant's limitation on contributions to independent
expenditure committees lacks the necessary causal link to any purported
interest in avoiding quid pro quo corruption of candidates or the
appearance of such corruption. The Buckley umbrella is thus not
broad enough to sustain this ordinance.
The same distinction between direct contributions to candidates
and contributions to independent expenditure committees underlay
the decision in Citizens Against Rent Control, in which the Supreme
Court invalidated a Berkeley ordinance that limited contributions
to independent political committees.
Although the committee challenging the Berkeley ordinance was formed
to oppose a ballot measure rather than a candidate, the main thrust
of the Court's opinion was that the limitation on contributions
to the committee was an unconstitutional infringement of the freedom
of expressive association protected by the First Amendment. The
Court's description bears repeating: "To place a Spartan limit-or
indeed any limit-on individuals wishing to band together to advance
their views on ballot measures, while placing none on individuals
acting alone, is clearly a restraint on the right of association."
454 U.S. at 296.
The Court also held in Citizens Against Rent Control that the Berkeley
ordinance impermissibly restrained the freedom of expression of
groups and individuals who wished to express their views through
committees. Because, under Buckley, the city could not constitutionally
limit independent expenditures by individuals, neither could it
limit contributions by individuals to committees making independent
expenditures. Such a limit on contributions to committees "automatically
affects expenditures, and limits on expenditures operate as a direct
restraint on freedom of expression of a group or committee . . .
." Id. at 299.
Irvine does not, and could not, restrict individuals from making
independent expenditures. JS 14 (ER 33). Thus, as in Citizens Against
Rent Control, the only effect of the Irvine ordinance under consideration
here is to prevent individuals from joining together to make the
same independent expenditures that they are constitutionally permitted
to make alone. Under the rationale of Citizens Against Rent Control,
therefore, Irvine's section 1-2-404(B) is also constitutionally
infirm because it accomplishes nothing but a restriction on the
freedom of association.
The district court erroneously rejected the reasoning of Citizens
Against Rent Control, distinguishing it as a ballot measure case
and instead relying on the plurality opinion in California Medical
Ass'n v. Federal Election Comm'n, 453 U.S. 182 (1981) ("CMA").
In CMA, the Supreme Court upheld a $5,000 contribution cap, but
because that case involved limits on contributions to multicandidate
committees rather than independent expenditure committees such as
are at issue here, the case is easily, and properly, distinguished.
Indeed, the controlling opinion in the case strongly supports The
Lincoln Club's position.
Under Federal election law, individuals can contribute a maximum
of $1,000 per election to any candidate and cumulatively can contribute
up to $25,000 to federal candidates in any given year. CMA, 453
U.S. at 198 (plurality opinion) (citing 2 U.S.C. §§ 441a(a)(1)(A),
(a)(3)). Political committees that qualify as "multicandidate"
committees, on the other hand, may contribute $5,000 to candidates.
Id. (citing 2 U.S.C. § 441a(a)(2)(A)). The Court recognized
that this statutory disparity provided an opportunity for individuals
to "evade" both the $1,000 limit and the $25,000 aggregate
limit "by channeling funds through a multicandidate political
committee." Id. at 198 (plurality opinion); id. at 203 (Blackmun,
J., concurring in judgment). Accordingly, the Court upheld the limitation
as "an appropriate means by which Congress could seek to protect
the integrity of the contribution restrictions upheld . . . in Buckley."
Id. at 199 (plurality opinion); id. at 203 (Blackmun, J., concurring
in judgment).
No such concern is present here. The Irvine ordinance challenged
here applies only to independent expenditure committees, which by
definition cannot serve as a conduit of funds to candidates. Indeed,
Justice Blackmun stressed that his analysis in CMA "suggests
that a different result would follow if [the limits] were applied
to contributions to a political committee established for the purpose
of making independent expenditures, rather than contributions to
candidates." Id. at 203. "Multicandidate political committees
are . . . essentially conduits for contributions to candidates,
and as such they pose a perceived threat of actual or potential
corruption. In contrast, contributions to a committee that makes
only independent expenditures pose no such threat." Id. Because
Justice Blackmun's more narrow opinion was necessary to the disposition
of the case, it is controlling. See, e.g., Romano v. Oklahoma, 512
U.S. 1, 8 (1994); Marks v. United States, 430 U.S. 188, 193 (1977).
The district court incorrectly distinguished Citizens Against Rent
Control and improperly rejected the controlling opinion in CMA.
Giving those cases their proper due, The Lincoln Club was entitled
to judgment as a matter of law. Accordingly, the district court's
judgment to the contrary cannot stand.
CONCLUSION
For the foregoing reasons, the district court's grant of summary
judgment for the City of Irvine must be reversed, and summary judgment
should instead be entered for The Lincoln Club.
Dated: January 10, 2001
Respectfully submitted,
John C. Eastman
THE CLAREMONT INSTITUTE CENTER FOR
CONSTITUTIONAL JURISPRUDENCE
c/o Chapman Univ. School of Law
One University Drive
Orange, California 91711
(714) 628-2587
Manuel S. Klausner
LAW OFFICES OF MANUEL S. KLAUSNER, P.C.
Of Counsel, INDIVIDUAL RIGHTS FOUNDATION
One Bunker Hill Building, Eighth Floor
601 West Fifth Street
Los Angeles, CA 90071
(213) 617-0414
Patrick J. Manshardt (Cal. Bar No. 178085)
Of Counsel, INDIVIDUAL RIGHTS FOUNDATION
One Bunker Hill Building, Eighth Floor
601 West Fifth Street
Los Angeles, CA 90071
(213) 688-4045
Attorneys for Plaintiffs/Appellants
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