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' REPLY 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

TABLE OF CONTENTS

TABLE OF CONTENTS i

TABLE OF AUTHORITIES ii

INTRODUCTION 1

ARGUMENT 4

I. Irvine's Reliance on Contribution-to-Candidates Cases Is Misplaced With Respect to the Applicable Standard of Review In This Case Involving Restrictions on Contributions to Independent Expenditure Committees. 4

II. Irvine's "Evidence" of a Constitutionally Valid Purpose Was Disputed Below and Does Not Support Irvine's Asserted Purpose, In Any Event. 10

III. Even If Irvine Had An Anti-Corruption Or An Anti-Evasion Purpose, IMC § 1-2-404(B) Does Not Further Those Purposes. 14

CONCLUSION 19

TABLE OF AUTHORITIES

Cases
Arkansas Right to Life State Political Action Comm. v. Butler,
29 F. Supp. 2d 540 (W.D. Ark. 1998) 9, 12
Berry v. Valence Tech., Inc., 175 F.3d 699
(9th Cir.1999) 11
Buckley v. Valeo, 424 U.S. 1 (1976) passim
California Medical Ass'n v. FEC, 453 U.S. 182 (1981) passim
Citizens Against Rent Control v. City of Berkeley,
454 U.S. 290 (1981) passim
Citizens for Responsible Gov't State PAC v. Buckley,
60 F. Supp. 2d 1066 (D. Colo. 1999), vacated after legislative
action, Citizens for Responsible Gov't State PAC v. Davidson,
236 F.3d 1174 (10th Cir. Dec. 26, 2000) 9, 14
Colorado Republican Federal Campaign Comm. v. FEC,
518 U.S. 604 (1996) 17
Committee of Cent. American Refugees v. I.N.S.,
795 F.2d 1434 (9th Cir. 1986) 8
Commonwealth of Kentucky v. Martin,
2000 WL 1675747 (Ky. App. Nov 09, 2000) 14
Dale M. ex rel. Alice M. v. Board of Educ.,
237 F.3d 813 (7th Cir., Jan 12, 2001) 11
Day v. Holahan, 34 F.3d 1356 (8th Cir. 1994),
cert. denied, 119 S.Ct. 510 (1998) 8
Federal Election Comm. v. National Conservative
Political Action Comm.,
470 U.S. 480 (1985) 10, 15, 17, 20
Florida Right to Life v. Mortham,
1998 WL 1735137 (M.D. Fla., Sept. 29, 1998) 19
Gard v. State Elections Bd., 456 N.W.2d 809 (Wis. 1990) 14
Gregg v. Georgia, 428 U.S. 153 (1976) 18
Guam v. Yang, 850 F.2d 507, 511 (9th Cir. 1988) 7
Harris v. Wright, 93 F.3d 581 (9th Cir. 1996) 19
Kentucky Right to Life, Inc. v. Terry,
108 F.3d 637 (6th Cir.), cert. denied, 522 U.S. 860 (1997) 14, 19, 20
Landell v. Sorrell, 118 F. Supp.2d 459 (D.Vt. 2000) 5
M/V American Queen v. San Diego Marine Constr. Corp.,
708 F.2d 1483, 1491 (9th Cir.1983) 8
Marks v. United States, 430 U.S. 188 (1977) 18, 19
Matter of Vandelinde, 366 S.E.2d 631 (W.Va. 1988) 19
Mintz v. Barthelemy, 722 F.Supp. 273 (E.D. La. 1989),
aff'd, 891 F.2d 520 (5th Cir. 1989) 19
Mott v. FEC, 494 F. Supp. 131 (D.D.C. 1980) 19
Mount Healthy v. Doyle, 429 U.S. 274 (1977) 15
New York Times Co. v. Sullivan, 376 U.S. 254 (1964) 15
North Carolina Right to Life, Inc. v. Bartlett, 168 F.3d 705 (4th Cir. 1999) 5
North Carolina Right to Life, Inc. v. Leake,
108 F. Supp. 2d 498 (E.D.N.C. 2000) 9
Prestin v. Mobil Oil Corp., 741 F.2d 268 (9th Cir. 1984) 8
Righeimer v. City of Huntington Beach,
No. SACV94-676-AHS (C.D. Cal. Oct. 13, 1994) 7, 8, 17
Robi v. Reed, 173 F.3d 736 (9th Cir.1999) 11
Russell v. Burris, 146 F.3d 563 (8th Cir. 1998) 8
San Franciscans for Sensible Gov't v. Renne,
No. 99-02456 (N.D. Cal., Sept. 8, 1999), aff'd,
No. 99-16995 (9th Cir. Oct. 20, 1999) (unpublished) 7, 8, 17, 20
Schenck v. City of Hudson, 208 F.3d 215 (6th Cir. 2000). 4
Service Employees Int'l Union v. FPPC, 955 F.2d 1312 (9th Cir. 1992) 5
State of Alaska v. Alaska Civil Liberties Union,
978 P.2d 597, 625 (Alaska 1999) 14, 19
United States v. Amlani, 111 F.3d 705 (9th Cir. 1997) 8
United States v. Heuer, 916 F.2d 1457 (9th Cir. 1990) 8
United States v. Muckleshoot Indian Tribe, 235 F.3d 429 (9th Cir. 2000) 11
United States v. Virginia, 518 U.S. 515 (1996) 13
Vannatta v. Kiesling, 151 F.3d 1215 (9th Cir. 1998) 5
Washington State Republican Party v. Washington State Pub.
Disclosure Comm'n, 4 P.3d 808 (Wash. 2000) 5
Statutes and Rules
Cal. Govt. Code § 81001 13
Cal. Govt. Code § 82031 15
F.R.A.P. 8(a)(2) 4
Irvine Municipal Code § 1-2-402 12, 16
Irvine Municipal Code § 1-2-403 13
Irvine Municipal Code § 1-2-404(A) 1
Irvine Municipal Code § 1-2-404(B) passim
Ninth Circuit Rule 21(c) 8
Ninth Circuit Rule 36-1 7
Ninth Circuit Rule 36-3 7

INTRODUCTION
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). 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. This, according to Irvine, to prevent quid pro quo corruption of candidates, despite the fact that the Supreme Court has expressly held that unlimited independent expenditures themselves do not implicate such concerns sufficiently to warrant restrictions on this core political speech protected by the First Amendment.
Irvine claims that it enacted the ordinance at issue here in response to citizen concerns about quid pro quo corruption, but the documentary evidence upon which it relies describes such concerns only with respect to direct contributions to candidates, not with respect to contributions to independent expenditure committees, about which Irvine concedes that it has no evidence of any quid pro quo corruption.

The simple fact is that after Irvine imposed restrictions on contributions to candidates, it wanted to level the new playing field it had created by extending those limitations to independent expenditure committees. Contrary to Irvine's assertion, Appellee's Br. at 4 n.1, the documentary evidence clearly demonstrates this impermissible purpose, noting that some members of the Campaign Reform Committee appointed by the City Council objected to IMC § 1-2-404(B) because "it would not level the playing field absolutely." ER 46 (emphasis added, depicting word omitted from Irvine's selective quotation of the document). The proponents of the ordinance concluded: "But for now this ordinance comes as close to leveling the playing field as we can attain within the law." Id. at 47. It is simply disingenuous to claim that the ordinance's purpose was not to level the playing field.

Before responding to Irvine's arguments on the merits, The Lincoln Club needs to address two other erroneous statements in Irvine's Statement of Facts and Statement of the Case that particularly warrant response. First, The Lincoln Club has never "conceded the Ordinance's constitutionality," Appellee's Br. at 6. The Lincoln Club did not participate in Irvine municipal elections in 1996-it does not participate in every municipal election every election cycle. It sought to participate in the 1998 election, but was informed by the City Attorney that IMC § 1-2-404(B) barred it from making independent expenditures once it had accepted contributions in excess of the specified limit. That statement by the City of Irvine, which made clear that the The Lincoln Club as currently constituted could not make any independent expenditures in Irvine municipal elections, is one of the bases for the present action, see Complaint 29, 40-42 (ER 7, 9). This action was filed within the applicable one-year statute of limitations and more than a year before the next election at which The Lincoln Club might have sought to exercise its core First Amendment rights in Irvine elections. The suggestion that The Lincoln Club somehow slept on its rights, therefore, or that the failure of anyone to challenge the ordinance back in 1995 when it was first enacted essentially immunizes it from a constitutional challenge, is simply not accurate.

Second, The Lincoln Club never "conceded" that "the Ordinance in no way restricts the amount Plaintiff may spend as an independent expenditure to support or oppose any candidate for elective office in Irvine," as Irvine asserts. Appellee's Br. at 7. Quite the contrary, The Lincoln Club has consistently maintained that the ordinance prohibits it from making any independent expenditures in Irvine municipal elections, simply by virtue of the fact that its annual dues exceed the contribution limit specified in the ordinance. Nor did The Lincoln Club "admi[t] the feasibility of re-structuring its organization" in order to fall under the contribution cap, as Irvine asserts. Appellee's Br. at 34. Irvine selectively quotes from the record. In response to the Court's question whether there was some impediment to The Lincoln Club simply forming other entities, counsel for The Lincoln Club responded:
Legally, no, you Honor. Practically, there is a very big impediment. And one of reasons the Lincoln Club is established is, they participate in a number of Orange County elections, as they participate in elections elsewhere in the state. And to set up a separate committee for every city, for every election cycle, and then try and go back to the same contributors time and time and time again, and instead of giving us a $2,000 check this year give us $50 check written out to the Irvine Committee and a $50 check written out to the Orange Committee; logistically that's an impossible task.

Appellee's Supplemental Excepts of Record ("SER") at 9-10. Moreover, The Lincoln Club pointed out that even if such a restructuring was logistically possible, the creation of separate corporations would not alter the fact that the speech and association rights of the existing entity were being infringed. Id. at 10.

Finally, Irvine's Statement of the Case, Appellee's Br. at 9, contains an additional error of a more technical nature but one that is nevertheless important, given the weight Irvine erroneously ascribes to an interim order by the motions panel of this Court at a prior stage of this case. The Lincoln Club did not appeal the District Court's denial of its motion for a preliminary injunction pending appeal. Instead, it filed a new motion for preliminary injunction pending appeal in this Court, as it was entitled to do under F.R.A.P. 8(a)(2). The motions panel mistakenly treated the motion is if it were an appeal from the District Court's order, reviewable on an abuse of discretion standard. The Lincoln Club did not move for reconsideration because by that point the November 7, 2000 election was too imminent for The Lincoln Club to have mounted an effective independent expenditures campaign even if the motions panel had granted a preliminary injunction pending appeal upon a motion for reconsideration. This Court has therefore never "expressly rejected Plaintiff's arguments on the merits," as Irvine claims. Appellee's Br. at 10. See Schenck v. City of Hudson, 208 F.3d 215 (6th Cir. 2000).

ARGUMENT

I. Irvine's Reliance on Contribution-to-Candidates Cases Is Misplaced With Respect to the Applicable Standard of Review In This Case Involving Restrictions on Contributions to Independent Expenditure Committees.

Defendant/Appellee City of Irvine begins its plea for a "heightened intermediate" rather than a "strict" level of scrutiny by erroneously asserting that the Supreme Court has "consistently" held that "the constitution treats contributions differently than expenditures." Appellee's Br. 10-11 (emphasis added); see also id. at 14 (describing the precedent as "uniform"). While the Supreme Court has consistently subjected restrictions on contributions to candidates to the slightly lower level of scrutiny, it has subjected restrictions on contributions to independent expenditure committees, such as those at issue here, to strict, "exacting" scrutiny. Citizens Against Rent Control v. City of Berkeley, 454 U.S. 290, 294, 298 (1981). The "bright line" drawn by the Supreme Court, therefore, is not between contributions and expenditures, as Irvine urges, but between restrictions on contributions to candidates and other kinds of campaign finance restrictions.

All but one of the Supreme Court cases relied upon by Irvine involved restrictions on contributions to candidates. The remaining case upon which Irvine relies, California Medical Association v. FEC, 453 U.S. 182, 196-97 (1981) ("CMA"), was only a plurality opinion (a fact that Irvine fails to note). Justice Blackmun, who cast the dispositive fifth vote in the case, expressly rejected the plurality's claim that contributions to non-candidate committees were merely "attenuated speech" entitled to less First Amendment protection.

The only Supreme Court case involving restrictions on contributions to independent expenditure committees is Citizens Against Rent Control, which is why The Lincoln Club referred to the case in its opening brief as the Supreme Court decision most directly on point. Irvine finds that characterization "curious" because the case involved ballot initiatives rather than candidate elections, but Irvine utterly fails to explain why that fact has anything to do with the standard of review. The infringement of associational rights in that case and this is the same; the effect on expenditures is the same; indeed, the entire character of the first amendment interests is the same, which is what determines the applicable standard of review. The fact that Citizens Against Rent Control involved ballot measure elections rather than candidate elections is at most relevant only to whether the government's compelling interest in avoiding quid pro quo corruption of candidates is implicated; it has nothing to do with whether the restriction should be allowed if the government offers only a less compelling justification.

Several lower courts have followed Citizens Against Rent Control and strictly scrutinized restrictions on contributions to committees making independent expenditures in candidate elections despite the fact that Citizens Against Rent Control involved a ballot measure election restriction. In Righeimer v. City of Huntington Beach, the District Court for the Central District of California held that a Huntington Beach ordinance restricting contributions to independent expenditure committees was subject to strict scrutiny, and explicitly cited Citizens Against Rent Control as the basis for its holding. No. SACV94-676-AHS (C.D. Cal. Oct. 13, 1994) (Order Denying Motion to Dismiss, at 2, citing Citizens Against Rent Control, 454 U.S. at 294) (attached to Appellants' Opening Brief as Exhibit B). The District Court for the Northern District of California has gone even further, holding in San Franciscans for Sensible Gov't v. Renne that "making contributions to PACs . . . which make only independent expenditures . . . is highly protected speech and may not be regulated." No. 99-02456 (N.D. Cal., Sept. 8, 1999) (Order Granting Plaintiffs' Motion for a Preliminary Injunction, at 16, attached to Appellants' Opening Brief as Ex. C), aff'd, No. 99-16995 (9th Cir. Oct. 20, 1999) (unpublished).

The Eighth Circuit Court of Appeals has also adopted this position: "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." 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)). And, relying on Justice Blackmun's opinion in CMA, the District Court for the Western District of Arkansas struck down a $500 limit on contributions to independent expenditure committees after subjecting it to strict scrutiny. 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), vacated after legislative action, Citizens for Responsible Gov't State PAC v. Davidson, 236 F.3d 1174 (10th Cir. Dec. 26, 2000).

More fundamentally, the Irvine ordinance prohibits The Lincoln Club from making any independent expenditures, and there is no dispute that the Supreme Court has consistently applied strict scrutiny to expenditure limitations. The parties acknowledged in the Joint Statement of Undisputed Facts that the "text" of the ordinance limited contributions, JS 13 (ER 33), but both parties elsewhere in that same Joint Statement acknowledged that the effect of the ordinance was to prevent The Lincoln Club from making any independent expenditures in Irvine municipal elections. JS 9, 27, 28 (ER 32, 35-36). The Irvine ordinance does not prohibit The Lincoln Club from accepting contributions in excess of the proscribed amount-something The Lincoln Club has done every year since the ordinance was enacted. Rather, the Irvine ordinance prohibits The Lincoln Club from making independent expenditures simply because its annual dues are larger than the ordinance's limit, dues that are collected long before any candidate has announced his candidacy for an Irvine municipal office or before The Lincoln Club has decided to participate in the Irvine election. 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., 470 U.S. 480, 498 (1985) ("NCPAC"); see also Righeimer, Order Denying Motion to Dismiss, at 3 (subjecting similar Huntington Beach ordinance to strict scrutiny because the "effect" of the ordinance was "to restrict the independent expenditures" that Plaintiffs desired to make).

Finally, Irvine simply misreads The Lincoln Club's opening brief when it contends that The Lincoln Club "concedes" that "less than strict scrutiny" is the appropriate standard in this case. The only thing that The Lincoln Club conceded is that Irvine's ordinance fails even under the lesser, though still rigorous, standard of review. As described more fully below, Irvine offered no evidence of a permissible purpose, and even if we can merely assume one of the two purposes Irvine now claims, the restriction on contributions to independent expenditure committees does not further either purpose at all.

II. Irvine's "Evidence" of a Constitutionally Valid Purpose Was Disputed Below and Does Not Support Irvine's Asserted Purpose, In Any Event.

Irvine misunderstands The Lincoln Club's evidentiary argument. The Lincoln Club does not dispute that avoiding corruption and its appearance have been held by the Supreme Court to be sufficiently compelling governmental interests to sustain restrictions on political speech. Rather, The Lincoln Club simply asserts that Irvine had no such purpose when it enacted Section 1-2-404(B), or that at the very least the record evidence demonstrates that there is a material dispute about Irvine's purpose, especially when that evidence is viewed in the light most favorable to The Lincoln Club. United States v. Muckleshoot Indian Tribe, 235 F.3d 429, 432 (9th Cir. 2000) (citing Berry v. Valence Tech., Inc., 175 F.3d 699 (9th Cir.1999)).

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, 424 U.S. 1 (1976), the concern with quid pro quo corruption resulting from contributions to independent expenditure committees that Irvine has asserted in this litigation is but "an illusory one." See Buckley, 424 U.S. at 27; see also Butler, 29 F. Supp. 2d at 546 (requiring "'demonstrable' evidence in the record . . . that large contributions to independent expenditure committees has attributed to actual or perceived corruption").

Moreover, 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"). What is more, 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 the Supreme Court in United States v. Virginia, 518 U.S. 515, 535-536 (1996), soundly rejected governmental attempts to generate post-hoc litigation rationalizations for actions in fact differently grounded.

Irvine also asserts that it had a purpose to prevent the evasion of existing campaign finance laws. Again, neither the codified statutory purpose or anything in the evidentiary record supports such a claim. Moreover, Irvine mischaracterizes the "anti-evasion" purpose that has been recognized by the Supreme Court. The anti-evasion purpose that has been recognized is merely a corollary to the anti-corruption purpose: 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. CMA, 453 U.S. at 199 (holding that a 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)); Kentucky Right to Life, Inc. v. Terry, 108 F.3d 637, 649 (6th Cir.), cert. denied, 522 U.S. 860 (1997) (describing anti-evasion purpose as a concern that "unscrupulous individuals could pass unlimited amounts of cash to permanent committees with the understanding that those funds would be disbursed directly to specific candidates"); State of Alaska v. Alaska Civil Liberties Union, 978 P.2d 597, 625 (Alaska 1999); Gard v. State Elections Bd., 456 N.W.2d 809, 820 (Wis. 1990) (upholding aggregate limit as "necessary to prevent PACs from circumventing the other contribution limits by passing money through party-related committees" to candidates).

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. The "circumvention" concern expressed in Irvine's documents, see ER 41, is therefore not a concern that contributors are finding ways to funnel money to candidates, but that they are finding ways to put more money into an election independent of candidates than the City thinks is appropriate. That is a leveling-the-playing-field purpose, and it is constitutionally impermissible. See Buckley, 424 U.S. at 48-49 (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 266, 269 (1964)). Indeed, under Irvine's broad reading of the anti-evasion rationale, independent expenditures themselves, whether by committees or by individuals, would equally "evade" Irvine's campaign finance laws, yet the Supreme Court has expressly ruled that limits on independent expenditures are unconstitutional. NCPAC, 470 U.S. at 498; Buckley, 424 U.S. at 47.

Irvine's resort to Mount Healthy v. Doyle, 429 U.S. 274 (1977), and its progeny does not alter this conclusion, even assuming that factually distinguishable case applies here. Mount Healthy merely held that the existence of a constitutionally impermissible motive does not automatically doom a governmental action. Because The Lincoln Club offered evidence of an impermissible purpose, see IMC § 1-2-402; see also ER 41-47, Mount Healthy's further holding is relevant: Irvine had to come forward with admissible evidence of a permissible purpose, and it must prove that it would have taken the same action absent the impermissible level-the-playing-field motive. Mount Healthy, 429 U.S. at 286-87. Because the only evidence Irvine offered demonstrates only an impermissible level-the-playing-field purpose, Irvine has not come close to meeting that burden.

III. Even If Irvine Had An Anti-Corruption Or An Anti-Evasion Purpose, IMC § 1-2-404(B) Does Not Further Those Purposes.

Most fundamentally, even if Irvine's ordinance is to be reviewed under the slightly-less-than-strict scrutiny reserved for assessing restrictions on contributions to candidates, and even if Irvine actually had a purpose of avoiding corruption and the appearance of corruption or of preventing evasion of its contribution-to-candidate limits when it enacted its Campaign Financing Law, IMC § 1-2-404(B) still has to further those purposes in order to be valid. Irvine's focus on the "closely drawn" language of the scrutiny test ignores that the test also requires that even a narrow, closely-drawn restriction must "further" the government's sufficiently compelling purposes.

The language from Buckley recited by Irvine makes this point forcefully clear. In Buckley, the Court upheld a restriction on contributions to candidates because the restriction focused on the "narrow aspect of political association where the actuality and potential for corruption have been identified." Appellee's Br. at 31 (quoting Buckley, 424 U.S. at 28) (emphasis added). Here, Irvine has conceded that it was "unaware of any instances of quid pro quo corruption of candidates in Irvine municipal elections caused by contributions to independent expenditure committees, either since adoption of the Ordinance or which served as a basis for the Ordinance." JS 29 (ER 36). Irvine has thus failed to identify any actual or potential corruption that its ordinance was purportedly designed to prevent.

Irvine simply cannot escape the fact that the Supreme Court has held, repeatedly, that independent expenditures themselves do not implicate government's concerns with quid pro quo corruption or the appearance of such corruption. Colorado Republican Federal Campaign Comm. v. FEC, 518 U.S. 604, 616 (1996); NCPAC, 470 U.S. at 498; Buckley, 424 U.S. at 47. Nor can it escape the logical consequence of those holdings: 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, Order Denying Motion to Dismiss, at 3; San Franciscans, Order Granting Plaintiffs' Motion for Preliminary Injunction, at 15.

Irvine's reliance on Colorado Republican and NCPAC as support for its position is disingenuous. Irvine claims, for example, that the Supreme Court in NCPAC acknowledged "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." Appellee's Br. at 35 (quoting NCPAC, 470 U.S. at 498). But Irvine fails to inform the Court that NCPAC specifically rejected that argument as a mere "hypothetical possibility and nothing more." 470 U.S. at 498. And in its quotation from Colorado Republican, Irvine elides over the phrase that undermines its use of the case: "The absence of prearrangement and coordination does not eliminate, but it does help to alleviate, any danger that a candidate will understand the expenditure as an effort to obtain a quid pro quo." 518 U.S. at 616 (emphasis added, depicting Irvine's omission, internal quotation marks omitted, Appellee's Br. 35). In both cases, the Supreme Court invalidated restrictions on independent expenditures, despite the possibility that such expenditures might lead to quid pro quo corruption, because the possibility was too remote-a mere "hypothetical possibility"-to warrant restrictions on political speech. Here, the possibility of corruption is even more remote, because the contributions to the independent expenditure committees are even further removed from the candidate than the independent expenditures themselves.

Justice Blackmun's opinion in CMA is directly on point and, contrary to Irvine's assertion, his opinion is the controlling authority in that case. Justice Blackmun differentiated between contributions to multi-candidate committees that could be funneled to candidates and contributions to independent expenditures, strongly suggesting that restrictions on the latter were unconstitutional. 453 U.S. at 203 (Blackmun, J., concurring in judgment).

Irvine takes issue with The Lincoln Club's statement of the precedential authority of Justice Blackmun's concurring opinion in CMA, but it is black letter law that "[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, 'the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.'" Marks v. United States, 430 U.S. 188, 193 (1977) (quoting Gregg v. Georgia, 428 U.S. 153, 169 n. 15 (1976)). The rule has been recognized and followed in this Court. See, e.g., Harris v. Wright, 93 F.3d 581, 584 (9th Cir. 1996).

Irvine contends, correctly, that Justice Blackmun did not join in the section of Justice Marshall's CMA opinion concerning contribution limits, but that is just the point. Justice Blackmun's refusal to join is what makes the relevant portion of Justice Marshall's opinion merely a plurality opinion, requiring the Marks assessment described above to determine which opinion decided the case on the most narrow grounds. Because Justice Blackmun's opinion is based on narrower grounds than the plurality opinion, it is controlling. The holding of CMA approving limits on contributions to multi-candidate committees that in turn funneled contributions to candidates, therefore, does not extend to limits on contributions to independent expenditure committees.

The District Court for the Northern District of California recently recognized this very point:
In California Medical, although a majority, composed of a plurality and Justice Blackmun concurring, allowed limits on contributions to PACs that make direct contributions to candidates, Justice Blackmun stated that limits on contributions to PACs making only independent expenditures are clearly unconstitutional.

San Franciscans, Order Granting Preliminary Injunction, at 13 n.2 (citing CMA, 453 U.S., at 196-98 (plurality), 202-03 (Blackmun, concurring in judgment)) (emphasis added).

Irvine also denigrates the relevance of Citizens Against Rent Control, the only Supreme Court decision squarely dealing with, and rejecting, limits on contributions to independent expenditure committees. Although Citizens Against Rent Control involved ballot measures, the Supreme Court's holdings in Buckley and NCPAC (invalidating limits on independent expenditures because of the lack of sufficient nexus between such expenditures and any concern with corruption of candidates) makes the holding in Citizens Against Rent Control dispositive here. If the independent expenditures themselves do not raise a concern with corruption of public officials (just as expenditures for ballot measures raised no such concern in Citizens Against Rent Control), then the contributions to independent expenditure committees cannot possibly raise such a concern, whether the committee participates in candidate or ballot measure elections.

Neither does IMC § 1-2-404(B) further an anti-evasion purpose. As described above, the anti-evasion purpose recognized by some courts is a concern that "unscrupulous individuals could pass unlimited amounts of cash to permanent committees with the understanding that those funds would be disbursed directly to specific candidates." Terry, 108 F.3d at 649 (emphasis added). Because IMC § 1-2-404(B) is limited to independent expenditure committees, which by definition do not have any contact with candidates, contributions to such committees cannot be used to evade the limits on contributions to candidates. Irvine's restriction on contributions to independent expenditure committees therefore has no connection whatsoever with any concern about evasion of candidate contribution limits; it certainly is not closely drawn (not to mention narrowly-tailored) to further Irvine's supposed anti-evasion concern.

CONCLUSION
For the reasons stated above and previously in The Lincoln Club's opening brief, 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: February 20, 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.
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