Jesus ESCOBAR-GRIJALVA, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
No. 98-71469.
United States Court of Appeals, Ninth Circuit.
June 20, 2000.
Before: PREGERSON, NOONAN, and O‘SCANNLAIN, Circuit Judges.
Unlike non-stop turn signals in Texas, overly-tinted windows in California are illegal. And as the undisputed facts demonstrate, Officer Leiber had objective, probable cause to believe that Wallace‘s windows did not pass muster. The traffic stop, therefore, was not unlawful, and neither was the subsequent search and seizure. The motion to suppress should have been denied.
REVERSED AND REMANDED.
ORDER
The opinion filed on March 24, 2000 is amended as follows:
Slip opinion, p. 3469, sec. [4]. After ¶ 1 [206 F.3d at 1335, following the fifth paragraph], add:
The INS contends that Escobar did not raise the denial of her statutory right to counsel in a timely fashion. But her claim of counsel so ineffective in assisting her that it deprived the administrative proceeding of due process encompassed the denial of the statutory right; the latter denial was the foundation of what followed. We decide the appeal on this narrower, statutory basis. See Rios-Berrios v. INS, 776 F.2d 859, 862 (9th Cir.1985).
FEDERAL ELECTION COMMISSION, Plaintiff-Counter-Defendant-Appellant, v. COLORADO REPUBLICAN FEDERAL CAMPAIGN COMMITTEE, Defendant-Counter-Plaintiff-Appellee. Democratic Senatorial Campaign Committee; Democratic Congressional Campaign Committee; Common Cause; Democracy 21; The Brennan Center for Justice at New York University School of Law, Amici Curiae.
No. 99-1211.
United States Court of Appeals, Tenth Circuit.
May 5, 2000.
Jan Witold Baran (Thomas W. Kirby, Carol A. Laham, and Kirk L. Jowers, with him on the brief), Wiley, Rein & Fielding, Washington, DC, appearing for Appellee.
Robert F. Bauer and Marc E. Elias, Perkins Coie, LLP, Washington, DC, filed an amicus curiae brief for Democratic Senatorial Campaign Committee and Democratic Congressional Campaign Committee on behalf of Appellant.
Nancy Northup and Elizabeth Daniel, Brennan Center for Justice at New York University School of Law, New York, New York, filed an amicus curiae brief on behalf of Appellant.
Before SEYMOUR, Chief Judge, TACHA, and KELLY, Circuit Judges.
TACHA, Circuit Judge.
Section 441a(d)(3) of the Federal Election Campaign Act,
I.
We analyze § 441a(d)(3) within its statutory context. The Federal Election Campaign Act (FECA or “Act“), as amended in 1974, limited the amount of money that individuals, corporations, banks, labor organizations, political committees, (e.g., political action committees, or PACs), and political parties could contribute to candidates for federal office. See
Shortly after Congress amended FECA, the Supreme Court struck down many of the Act‘s expenditure limits as unconstitutional under the First Amendment‘s free speеch and association guarantees. Buckley v. Valeo, 424 U.S. 1, 39-59, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (per curiam) (invalidating FECA provisions limiting (1) individual expenditures independent of a candidate‘s campaign, (2) a candidate‘s expenditure of personal funds, and (3) overall campaign expenditures); see also Federal Election Comm‘n v. National Conservative Political Action Comm., 470 U.S. 480, 497, 105 S.Ct. 1459, 84 L.Ed.2d 455 (1985) (NCPAC) (invalidating FECA provision limiting independent expenditures by political committees).
However, the Court generally has upheld FECA‘s contribution limits. Buckley, 424 U.S. at 28, 29, 35-36 (finding constitutional the Act‘s limits on the amount individuals and political committees can contribute to a candidate for federal office); California Med. Ass‘n v. Federal Election Comm‘n, 453 U.S. 182, 193-99, 101 S.Ct. 2712, 69 L.Ed.2d 567 (1981) (upholding limits on the amount individuals may contribute to political committees). Furthermore, the Supreme Court has recognized that “coordinated expenditures” qualify as contributions under FECA and, therefore, are subject to FECA‘s contribution limits. Buckley, 424 U.S. at 46-47; NCPAC, 470 U.S. at 492. Thus, FECA‘s contribution limits apply not only when an individual or group contributes money directly to a campaign, but also when an individual or group contributes money indirectly by making expenditures coordinated with the campaign. See
As presently codified, the Act sets the following contribution limits: A “person” is entitled to contribute $1000 to a candidate “with respect to any election for Federal office;” $5000 in any calendar year to a political committee that is not established and maintained by a national political party; and $20,000 in any calendar year to the political committees of a national political
National and state political parties meet FECA‘s definition of “multicandidate political committees.” See
II.
The prior proceedings in this case have narrowed the issues we must decide. In January 1986, Timothy Wirth, then a Democratic Congressman from Colorado, announced that he would seek Colorado‘s open Senate seat in November. Several months later, before the Democratic primary or the Republican convention, the Colorado Republican Federal Campaign Committee (“Colorado Party” or “Party“) developed and aired a radio advertisement criticizing Wirth‘s voting record. In its quarterly report to the FEC, the Party classified the advertisement outlay as an operating expense instead of a § 441a(d)(3) expenditure. The Colorado Democratic Party filed an administrative complaint with the FEC, alleging that the Party‘s purchase of radio time was an expenditure in connection with the Senate campaign and exceeded § 441a(d)(3)‘s spending limit. The FEC agreed with the Democratic Party and filed suit in district court against the Colorado Party.
On motion for summary judgment, the Party argued that the outlay did not fall within the Party Expenditure Provision because the Colorado Party did not develop the advertisement “in connection with” the campaign of any federal candidate. The Party also asserted a counterclaim, alleging that the Party Expenditure Provision violated its First Amendment rights of free speech and association. The district court narrowly interpreted § 441a(d)(3) as limiting only those expenditures that use “‘express words of advocacy of election or defeat.‘” Federal Election Comm‘n v. Colorado Republican Fed. Campaign Comm., 839 F.Supp. 1448, 1455 (D.Colo.1993) (quoting Buckley, 424 U.S. at 44 n. 52). Under this statutory construction, the district court found that the provision did not cover the Wirth advertisement and entered summary judgement in favor of the Party. Id. at 1456-57. Because the court resolved the dispute on statutory grounds, it did not reach the Party‘s constitutional challenge. Id. at 1457.
On appeal, the FEC argued for a broader interpretation of the provision as limiting “expenditures depicting a clearly identified candidate and conveying an electioneering message.” Federal Election Comm‘n v. Colorado Republican Fed. Campaign Comm., 59 F.3d 1015, 1022 (10th Cir.1995). We agreed with the FEC
The Supreme Court granted certiorari “primarily to consider the Colorado Party‘s argument that the Party Expenditure Provision violates the First Amendment either facially or as applied.” Colorado Republican Fed. Campaign Comm. v. Federal Election Comm‘n, 518 U.S. 604, 613, 116 S.Ct. 2309, 135 L.Ed.2d 795 (1996) (internal quotation marks and citation omitted) (“Colorado I“). Three members of the Court found the provision unconstitutional as applied to the expenditure at issue, and four other Justices joined in this judgment. Id. at 608.2
Based on the summary judgment record before it, the plurality noted that the Colorado Party had developed and approved the advertisement script independent of any candidate for Federal office. Id. at 613-14. In fact, at the time the advertisement was placed, the Party had not yet selected a senatorial nominee. Id. Thus, the plurality concluded that the advertisement in question was an “independent expenditure,” not a “coordinated expenditure” subject to the limits of § 441a(d)(3). Id. at 613. As such, the expenditure was entitled to full First Amendment protection under controlling precedent. Id. at 614-15 (citing NCPAC, 470 U.S. at 497; Buckley, 424 U.S. at 19-21).
Having found the provision unconstitutional as applied to this particular independent expenditure, the plurality declined to reach the broader question of whether the First Amendment forbids limits on coordinated expenditures by political parties. Id. at 623. Instead, the Court remanded the case to the district court for further proceedings, noting that “to our knowledge, this is the first case in the 20-year history of the Party Expenditure Provision to suggest that in-fact coordinated expenditures by political parties are protected from congressional regulation by the First Amendment.” Id. at 624.
On remand, the parties compiled an extensive record, focusing exclusively on the novel constitutional question highlighted in Colorado I. On cross motions for summary judgment, the district court concluded that the FEC had “failed to offer evidence which demonstrates the compelling need for limits on political party coordinated expenditures.” Federal Election Comm‘n v. Colorado Republican Fed. Campaign Comm., 41 F.Supp.2d 1197, 1213 (D.Colo.1999).3 The court therefore declared the Party Expenditure Provision unconstitutional and entered summary judgment in
III.
We review a decision granting summary judgment de novo, applying the same legal standard used by the district court. Mesa v. White, 197 F.3d 1041, 1043 (10th Cir.1999). In First Amendment cases, “the de novo standard is appropriate ... for the further reason that ... an appellate court has an obligation to make an independent examination of the whole record in order to make sure that the judgment does not constitute a forbidden intrusion on the field of free expression.” Id. (internal quotation marks and citation omitted). Summary judgment is appropriate “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 a judgment as a matter of law.”
Determining the standard of scrutiny appropriate for the constitutional analysis is more complicated than determining our standard of review. In Buckley, the Supreme Court referred generally to “the exacting scrutiny required by the First Amendment,” 424 U.S. at 16, and added specifically “that the constitutional guarantee has its fullest and most urgent application precisely to the conduct of campaigns for political office,” id. at 15 (internal quotation marks and citation omitted). In Colorado I, the plurality concluded that the government must demonstrate a “compelling” interest to restrict the First Amendment freedoms of candidates and their supporters. 518 U.S. at 609. Such language suggests “strict scrutiny” of campaign finance regulation in general.
However, the Supreme Court most recently revisited the standard of scrutiny as to campaign contribution limits in particular. See Nixon v. Shrink Mo. Gov‘t PAC, 528 U.S. 377, 120 S.Ct. 897, 145 L.Ed.2d 886 (2000). In Shrink Missouri, the Court construed a state statute that limited each person to a contribution of $1000, adjusted for inflation, in support of candidates for various statewide offices. Id. at 901-02. The Court upheld the statute against a First Amendment challenge. In doing so, the Court recognized that the Buckley distinction between (permissible) restrictions on contributions and (impermissible) restrictions on expenditures implies that different types of FECA limits require different levels of justification. Id. at 903-04. Prior to Shrink Missouri, the Court had made this implied distinction explicit in Federal Election Comm‘n v. Massachusetts Citizens for Life, Inc., 479 U.S. 238, 259-60, 107 S.Ct. 616, 93 L.Ed.2d 539 (1986) (“We have consistently held that restrictions on contributions require less compelling justification than restrictions on independent spending.“). The Shrink Missouri court thus restated the standard of scrutiny for contribution limits as follows:
[U]nder Buckley‘s standard of scrutiny, a contribution limit involving “significant interference” with associational rights could survive if the Government demonstrated that contribution regulation was “closely drawn” to match a “sufficiently important interest,” though the dollar amount of the limit need not be “fine tun[ed].”
120 S.Ct. at 904 (quoting Buckley, 424 U.S. at 25, 30).4
In this case, we must determine whether the FEC can justify § 441a(d)(3)‘s limit on coordinated expenditures by political parties. Since FECA treats coordinated expenditures as “contributions,”
However, we admit some difficulty in applying this standard to this particular contribution limit. As noted in Shrink Missouri, the Supreme Court has found in general that contribution limits bear “more heavily on the associational right than on freedom to speak.” Shrink Mo., 120 S.Ct. at 904. This finding rested in part upon the recognition that contribution limits ordinarily “entail[] only a marginal restriction upon the contributor‘s ability to engage in free communication.” Buckley, 424 U.S. at 20. In the case of political parties, though, a limit upon the amount a party can spend in coordination with its candidates certainly entails more than a “marginal restriction” upon the party‘s free speech. Indeed, in the context of an election, a party speaks in large part through its identified candidates; candidates, in significant measure, speak for their political parties.5 We therefore question whether the contribution/expenditure dichotomy which underlies the Shrink Missouri standard applies with equal force in this case. However, we need not resolve this question definitively because the Party Expenditure Provision fails even under the more deferential standard reformulated in Shrink Missouri.
IV.
The Buckley court recognized the “prevention of corruption and the appearance of corruption” as “constitutionally sufficient justification[s]” for the regulation of campaign contributions. 424 U.S. at 25, 26. “[I]mproper influence” and “opportunities for abuse” go beyond bribery and “extend[] to the broader threat from politicians too compliant with the wishes of large contributors.” Shrink Mo., 120 S.Ct. at 905.
To the extent that large contributions are given to secure a political quid pro quo from current and potential office holders, the integrity of our system of representative democracy is undermined.... Of almost equal concern as the danger of actual quid pro quo arrangements is the impact of the appearance of corruption stemming from public аwareness of the opportunities for abuse inherent in a regime of large individual financial contributions.... [In enacting contribution limits] Congress could legitimately conclude that the avoidance of the appearance of improper influence “is also critical ... if confidence in the system of representative Government is not to be eroded to a disastrous extent.”
Id. at 26-27 (quoting United States Civil Serv. Comm‘n v. National Ass‘n of Letter Carriers, 413 U.S. 548, 565, 93 S.Ct. 2880, 37 L.Ed.2d 796 (1973)).
Since Buckley, the Court has stated that “preventing corruption or the appearance of corruption are the only legitimate and compelling government interests thus far identified for restricting campaign finances.” NCPAC, 470 U.S. at 496-97. While corruption or the appearance thereof are constitutionally sufficient justifications, the FEC in this case must show that political parties through their spending authority corrupt or appear to corrupt the electoral process. The opportunity for corruption or its appearance is greatest when the political spending is motivated by economic gain. As discussed below, political parties are diverse entities, one step removed from the candidate, and they exist for noneconomic reasons. Much like an advocacy group, a party functions “to disseminate political ideas, not to amass capital. The resources it has available are not a function of its success in the
[A]stute observers[] all agree that the political party is—or should be—central to the American political system. Parties are—or should be—integral parts of all political life, from structuring the reasoning and choice of the electorate, through all facets of campaigns and seemingly all facets of the government, to the very possibility of effective governance in a democracy.
John H. Aldrich, Why Parties: The Origin and Transformation of Political Parties in America 18 (1995). From the birth of this republic into the 21st century, political parties have provided the principal forum for political speech and the principal means of political association. See, e.g., Clinton Rossiter, Parties and Politics in America 1 (1960) (declaring that there is “[n]o America without democracy, no democracy without politics, and no politics without parties....“). Political speech and association, unfettered by unnecessary government interference, are the lifeblood of a free and independent republic. We need only look to the struggling new republics of our time to confirm this principle.
In its FECA enactments, Congress certainly recognized the importance of parties. See H.R. Conf. Rep. No. 94-1057, at 58 (1976), 1976 U.S.C.C.A.N. 946, at 973 (acknowledging that political parties fulfill a “unique role in the political process“), S Rep. No. 93-689, at 3,7 (1974), 1974 U.S.C.C.A.N. 5587, at 5589, 5593 (declaring that political parties “serve as a legitimate pooling mechanism for private contributions to candidates in general elections” and concluding that “a vigorous party system is vital to American politics“).
The Supreme Court likewise has acknowledged the role of the party. See, e.g., Eu v. San Francisco County Democratic Cent. Comm., 489 U.S. 214, 222-25, 109 S.Ct. 1013, 103 L.Ed.2d 271 (1989), Tashjian v. Republican Party of Conn., 479 U.S. 208, 214-15, 107 S.Ct. 544, 93 L.Ed.2d 514 (1986); see also Davis v. Bandemer, 478 U.S. 109, 144-45, 106 S.Ct. 2797, 92 L.Ed.2d 85 (1986) (O‘Connor, J., concurring in the judgment) (“There can be little doubt that the emergence of a strong and stable two-party system in this country has contributed enormously to sound and effective government. The prеservation and health of our political institutions, state and federal, depends to no small extent on the continued vitality of our two-party system, which permits both stability and measured change.“). Indeed, all three branches of government, to an important extent, rely on the speech and associational functions of parties to assure the orderly conduct of elections, appointments and governance in general.
In Colorado I, the plurality acknowledged that they “are not aware of any special dangers of corruption associated with political parties” in the context of independent spending. 518 U.S. at 616. Remand has only confirmed that conclusion for this court in the context of coordinated spending. We are convinced that Shrink Missouri, decided during the pendency of this appeal, does not alter this conclusion. As we discuss later, infra note 9, Shrink Missouri involved a straightforward application of Buckley to uphold counterpart state contribution limits. The Court did not confront the more difficult issue of whether limits on coordinated spending by political parties are consistent with the First Amendment.
The FEC submits essentially three theories on how coordinated spending by political parties corrupts, or creates the appearance of corrupting, our electoral system. Were any of these theories valid, one would have to question why Congress permits any coordinated expenditures by political parties, let alone removes them from the Act‘s more restrictive limits. At a minimum, Congress has signaled that po-
A.
The FEC first argues that contributors to a political party—individuals or PACs—can corrupt (or appear to corrupt) the political process through their influence over a party. Under this theory, a contributor gives so much money to a party that the party grows beholden to the donor. The party then exercises its coordinated expenditure authority to either support or neglect those candidates who endorse or eschew the interests of the large contributor. By limiting the spending authority of a political party, the Party Expenditure Provision limits the financial leverage a party can exert on behalf of a generous donor.
To support this theory, the FEC submitted the declaration of former Senator Paul Simon and other evidence concerning meetings between party donors and federal officeholders. In his declaration, Simon describes a meeting of the Democratic Caucus where members discussed an amendment to a bill that was already before the House-Senate Conference Committee. Simon opposed the amendment because it had not passed through the typical committee hearing process. The amendment clearly benefitted one particular corporation, and Simon referenced published reports that this corporation had contributed $1.4 million in the last election cycle to incumbent members of Congress. One of Simon‘s senior colleagues spoke out in favor of the amendment, saying: “I‘m tired of Paul always talking about special interests; we‘ve got to pay attention to who is buttering our bread.” R. at 466.
This anecdote, along with the FEC‘s other evidence, might say something about corporate influence over the legislative process. But this evidence does not demonstrate that parties undermine the integrity of the electoral process. Corporate giving may indeed influence legislators, and Congress recognized this danger in enacting FECA. See, e.g., Federal Election Comm‘n v. National Right to Work Comm., 459 U.S. 197, 209-10, 103 S.Ct. 552, 74 L.Ed.2d 364 (1982) (“[FECA] reflects a legislative judgment that the special characteristics of the corporate structure require particularly careful regulation.“). Consequently, corporations may not make contributions or expenditures in connection with any federal election,
The FEC may find these limits inadequate to eliminate all corporate sway over members of Congress. If so, this argument should be addressed to Congress, not to this court in this case. We will not validate limits on the protected speech of a political party as a back-door means of stemming corporate involvement in the legislative process. See Massachusetts Citizens for Life, 479 U.S. at 265 (“Where at all possible, government must curtail speech only to the degree necessary to meet the particular problem at hand, and must avoid infringing on speech that does not pose the danger that has prompted regulation.“).
To overcome a constitutional challenge, the FEC must demonstrate that a restriction on coordinated expenditures by political parties is “closely drawn” to match important government interests. Shrink Mo., 120 S.Ct. at 904 (internal quotation marks and citation omitted). However, many of the interests identified by the FEC are hardly vindicated by this restriction. For example, the party may become an independent power source, seek contributions from interest groups and attempt to influence members’ votes regardless of any limitation on coordinated expenditures. After all, Colorado I confirms that a party may make unlimited expenditures independent of its candidates. Moreovеr, as the district court observed, many of the activities the FEC wishes to curtail are consistent with our model of representative democracy. Colorado Republican Fed. Campaign Comm., 41 F.Supp.2d at 1210-13.
FECA does not regulate so-called “soft money” contributions. An individual or group may contribute unlimited amounts of soft money to a political party. However, the party may use soft money only for limited activities, such as electing candidates for state office, see
The FEC contends that large soft money donors purchase influence over a political party, and the Party Expenditure Provision must be maintained to ensure that a party does not pressure its candidates to heed this influence. We appreciate the FEC‘s concern over soft money, but this proceeding does not present the opportunity for soft money reform. In this case, we аddress only the constitutionality of § 441a(d)(3)‘s limit on hard money coordinated expenditures. The FEC has presented no evidence to suggest that parties have illegally utilized soft money for hard money spending. Absent such a showing, we will not allow the appearance of soft money excess to justify a limit on hard money expenditures.6
B.
The FEC next contends that unscrupulous party officials can utilize the party‘s coordinated spending authority to further their personal interests or those of an unrepresentative party faction. Under this theory, the cap on coordinated expenditures limits the party elite from corrupting (or appearing to corrupt) the electoral process through improper pressure upon its own candidates. The FEC submits evidence that a small group of incumbent officeholders controls coordinated spending decisions, and certain incumbents have utilized this power to support candidates in their home states.
This theory, unlike the first, has the appeal of directly targeting the source of alleged corruption. If party elites corrupt the electoral process, then a limit on coordinated spending directly curtails one means of this alleged corruption. However, the premise of this theory, namely that
To state the matter with utmost simplicity: political parties, with all their well-known human and structural shortcomings, are the only devices thus far invented by the wit of Western man which with some effectiveness can generate countervailing collective power on behаlf of the many individually powerless against the relatively few who are individually—or organizationally—powerful. Walter Dean Burnham, Critical Elections and the Mainsprings of American Politics 133 (1970). Political parties today represent a broad-based coalition of interests, and there is nothing pernicious about this coalition shaping the views of its candidates. Parties are simply too large and too diverse to be corrupted by any one faction. Evidence in the record demonstrates that the parties’ hard money comes from individual donors who give, on average, less than $40. As amici recognized in Colorado I, the old rule of sanitary engineers applies here: the solution to pollution is dilution. Amicus Curiae Br. of the Committee for Party Renewal, Colorado I, 518 U.S. 604 (No. 95-489).
Even if, as the FEC contends, party leaders subvert the greater will of the rank-and-file membership, we trust the members to replace their leaders. It is true that political parties have been involved in wrongdoing, dating back to the Tammany Hall machine. However, the electoral and litigation processes have always managed to right these wrongs. Given the importance of political parties to the survival of this democracy, we reject the notion that a party‘s influence over the positions of its candidates constitutes “a subversion of the political process.” NCPAC, 470 U.S. at 497.
C.
Finally, the FEC contends that the Party Expenditure Provision must be upheld to prevent evasion of the Act‘s other contribution limits. For example, an individual may contribute only $1000 directly to a candidate for federal office,
Under this provision and its expansive agency interpretation, the FEC certainly has the authority to ensure that individuals do not use political parties to circumvent the Act‘s other contribution limits. Vigilant enforcement of
V.
We recognize that the Supreme Court typically has upheld limits upon political contributions and that FECA treats coordinated expenditures by a political party as contributions. However, in this case, a simple cubbyholing of constitutional values under the labels “contribution” and “expenditure” cheapens the currency. See, e.g., National Ass‘n for the Advancement of Colored People v. Button, 371 U.S. 415, 429, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963) (stating that the government “cannot foreclose the existence of constitutional rights by mere labels“). We also recognize that the Buckley court was concerned about the “real or imagined coercive influence of large financial contributions on candidates’ positions.” 424 U.S. at 25. But the Buckley court so defined corruption for the purpose of reviewing limits upon giving and spending by individuals, PACs and candidates. Because the Buckley litigants did not challenge the Party Expenditure Provision on First Amendment grounds, the Court said nothing about the First Amendment implications of restricting party speech on behalf of its candidates. Id. at 58 n. 66. To encompass political parties within the Buckley language on corruption would require a real extension of this precedent. Such an extension is not warranted by the Court‘s post-Buckley FECA jurisprudence and would betray the historic importance of political parties. See Colorado I, 518 U.S. at 629 (Kennedy, J., concurring in the judgment and dissenting in part) (“In my view, we should not transplant the reasoning of cases upholding ordinary contribution limitations to a case involving FECA‘s restrictions on political party spending.“).
In sum, we conclude that the Party Expenditure Provision constitutes a “significant interference” with the First Amendment rights of political parties. Buckley, 424 U.S. at 25 (internal quotation marks and citation omitted). This interference effects more than a “marginal restriction upon the [parties‘] ability to engage in free communication.”
AFFIRMED.
SEYMOUR, Chief Judge, dissenting.
The majority opinion is fundamentally flawed in several aspects. First, the discussion and analysis are permeated with and skewed by the majority‘s determination to substitute its judgment for that of Congress on quintessentially political matters the Supreme Court has cautioned courts to leave to the legislative process. In so doing, the majority creates a special category for political parties based on its view of their place in American politics, a view at odds with history and with legislation drafted by politicians. The majority supports its decision to accord political parties an exemption from contribution limits Congress believed necessary to protect the integrity of the democratic political process by discounting the type of evidence the Supreme Court has recently held sufficient to substantiate congressional concerns, and by relying instead on evidence the Court has expressly discounted. Accordingly, I respectfully dissent.
I
As originally enacted, the Federal Election Campaign Act (FECA or the Act),
The Court reached a different result with respect to limits on expenditures and held unconstitutional the $1000 limit on independent expenditures for communications advocating the election or defeat of an identified candidate. Id. at 39-51. The Court also struck down the ceiling on a candidate‘s personal expenditures as unsupported by the governmental interest in preventing actual and apparent corruption, id. at 51-54, and invalidated that section of the Act limiting overall campaign expenditures by candidates for federal office, id. at 54-58.
As indicated by Buckley, FECA regulates two types of expenditures: those that are coordinated with a candidate and those that are made independently. Coordinated expenditures are considered contributions under section
The instant appeal concerns section
On appeal, this court disagreed and held that section
In a fractured opinion, the Supreme Court vacated and remanded. See Colorado Republican Fed. Campaign Comm. v. Federal Election Comm‘n, 518 U.S. 604, 116 S.Ct. 2309, 135 L.Ed.2d 795 (1996). The plurality opinion of Justice Breyer, joined by Justices O‘Connor and Souter, rejected the FEC‘s argument that all expenditures by political parties must be deemed coordinated, and held that the expenditure here was in fact independent and that a limit on independent expenditures by political parties was unconstitutional under Buckley. In so doing, the plurality emphasized “the fundamental constitutional difference” between independent expenditures and contributions to a candidate to be spent on his campaign. Id. at 614-15. The plurality held that the government‘s interest in preventing corruption and the appearance of corruption was not sufficient to justify the restriction on independent spending, observing that while the danger of a political quid pro quo was not eliminated, that danger was alleviated by the absence of prearrangement and coordination. The plurality did not reach the issue of whether FECA‘s limit on coordinated expenditures by political parties is facially invalid under the First Amendment, pointing out that the issue had not been adequately developed in the lower courts.
Justices Kennedy, Rehnquist, Scalia, and Thomas agreed with the plurality but would have gone further to hold the spending limit invalid as applied to all expenditures, independent and coordinated. Justice Thomas, standing alone, also advocated the abandonment of the analysis in Buckley altogether. Justices Stevens and Ginsburg dissented on the ground that all money spent by a political party should be deemed a contribution to the campaign and that FECA‘s limits on spending by political parties are constitutional.
On remand, this court determined that factual evidence might be relevant to the issues yet to be determined and sent the case back to the district court for further proceedings. See Federal Election Comm‘n v. Colorado Republican Fed. Campaign Comm., 96 F.3d 471 (10th Cir.1996). The district court held the Act‘s limits on all spending by political parties facially invalid. See Federal Election Comm‘n v. Colorado Republican Fed. Campaign Comm., 41 F.Supp.2d 1197 (D.Colo.1999). In so doing, the court referred to the material supplied by the FEC in support of the constitutionality of section
II
While the appeal of this district court ruling was pending, the Supreme Court decided a case addressing contribution limits at the state level that were based on the “proposition that large contributions
In Shrink Missouri the Court addressed the standard applicable to a claim that a contribution limit violates the First Amendment and reiterated the line it had drawn in Buckley between limits on expenditures and limits on contributions as they impact speech rights. Shrink Missouri, 120 S.Ct. at 903. Significantly, as the majority grudgingly acknowledges, the Court reaffirmed and expanded on Buckley‘s distinction
between expenditure and contribution limitations in their impacts on the association right. While an expenditure limit “precludes most associations from effectively amplifying the voice of their adherents,” (thus interfering with the freedom of the adherents as well as the association) the contribution limits “leave the contributor free to become a member of any political association and to assist personally in the association‘s efforts оn behalf of candidates.”
Id. at 903-04 (citations omitted) (emphasis added). The Court reiterated and expressly applied to associational rights its holdings that “restrictions on contributions require less compelling justification than restrictions on independent spending,” id. at 904, and that “a contribution limit involving ‘significant interference’ with associational rights could survive if the Government demonstrated that contribution regulation was ‘closely drawn’ to match a ‘sufficiently important interest,’ ” id. (citations omitted).
The Court in Shrink Missouri also addressed the governmental interest furthered by contribution limits. The Court reiterated its prior cases holding that preventing corruption and the appearance of corruption are constitutionally sufficient to justify the abridgement of the associational right, pointing out that “[c]orruption is a subversion of the political process. Elected officials are influenced to act contrary to their obligations of office by the prospect of financial gain to themselves or infusions of money into their campaigns.” Shrink Missouri, 120 S.Ct. at 905 (quoting Federal Election Comm‘n v. National Right to Work Comm., 459 U.S. 197, 208, 103 S.Ct. 552, 74 L.Ed.2d 364 (1982)) (emphasis added).
In speaking of “improper influence” and “opportunities for abuse” in addition to “quid pro quo arrangements,” we recognized a concern not confined to bribery of public officials, but extending to the broader threat from politicians too compliant with the wishes of large contributors. These were the obvious points behind our recognition that the Congress could constitutionally address the power of money to “influence government action” in ways less “blatant and specific” than bribery.
Id. (quoting Buckley, 424 U.S. at 28). The Court observed that there is “no serious question” about the legitimacy of the governmental interest in preventing corruption and its appearance. Id.
The Court then addressed and rejected the lower court‘s conclusion that the state had “fail[ed]” to justify the invocation of those interests with empirical evidence of actually corrupt practices or of a perception among Missouri voters that unrestricted contributions must have been exerting a covertly corrosive influence.” Id. at 906. The Court‘s discussion of the requisite evidentiary showing is directly relevant here in view of the majority‘s conclusion that the FEC has failed to meet its burden with respect to the contribution limit before us. The Court began its analysis by pointing out:
Id. (quoting Buckley, 424 U.S. at 27 & n. 28). The Court also rejected the argument that the evidentiary showing held sufficient in Buckley had subsequently been supplemented by a new requirement that the government “demonstrate that the recited harms are real, not merely conjectural.” Id. at 907. In so doing, the Court distinguished between independent expenditure limits and contribution limits, implying that because limits on contributions are directly related to preventing corruption they may be assumed to be necessary absent convincing evidence to the contrary. Id.
The Court then set out the evidence supporting the contribution limit in that case, which did “not present a close call” requiring further definition of the state‘s evidentiary obligation. Id. This evidence consisted of an affidavit from a state lawmaker stating that “large contributions have the real potential to buy votes,” id. (internal quotation omitted), newspaper reports of large contributions, and anecdotal evidence, as well as a statewide vote indicating a public perception that limits were necessary. Id. at 907-08. The Court acknowledged that more extensive documentation might be needed if the state had made a showing
to cast doubt on the apparent implications of Buckley‘s evidence and the record here, but the closest respondents come to challenging these conclusions is their invocation of academic studies said to indicate that large contributions to public officials or candidates do not actually result in changes in candidates’ positions.... Given the conflict among these publications, and the absence of any reason to think that public perception has been influenced by the studies cited by respondents, there is little reason to doubt that sometimes large contributions will work actual corruption of our political system, and no reason to question the existence of a corresponding suspicion among voters.
III
An evaluation of the majority‘s analysis in light of Shrink Missouri reveals that the majority opinion is replete with instances in which Congressional assessments and priorities are criticized and disregarded based on the majority‘s view of the role political parties should play in the American political process and how best to promote that role. The majority accepts, as it must, that the prevention of both corruption and the appearance of corruption is a legitimate justification for impinging on First Amendment rights. Nonetheless the majority essentially eviscerates that interest by reweighing the balance struck by Congress in order to elevate what the majority believes to be the paramount interest political parties have in making unlimited coordinated contributions.
In my judgment, the majority has crossed the line between assessing the legal merits of a First Amendment challenge and imposing its own political judgments. A court owes “deference to a congressional determination of the need for a prophylactic rule where the evil of potential corruption had long been recognized.” Shrink Missouri, 120 S.Ct. at 906 n. 5. “Where a legislature has significantly greater institutional expertise, as, for example, in the field of election regulation, the Court in practice defers to empirical legislative judgments....” Id. at 912 (Breyer, J., concurring). “[T]he legislature understands the problem—the threat to elector-
Rather than deferring, the majority substitutes its view for that of Congress and levels a broad-based attack on the contribution limit at issue. It concludes that the FEC has failed to provide adequate evidentiary support for the limit, that in imposing the limit Congress “gravely misunderst[ood] the role of political parties in our democracy,” maj. op. at 1231, that the provision cannot be supported as a necessary component in the overall regulatory scheme, and that the same result can be obtained by the less intrusive reporting requirements of section
The premise for the majority‘s result is its view of the “vital role” that political parties have played in the American system of government. Maj. op. at 1227-28. While there is no doubt that parties play an important role in American politics, there is also ample support for the legislative determination that if left unchecked, parties can exert a corrupting influence on democratic processes or, equally importantly, appear to do so.2
In formulating contribution limits, Congress did in fact recognize the role political parties play in American politics and accorded them special treatment by permitting them to make coordinated expenditures on behalf of their federal candidates far in excess of the limits imposed on others, see
Significantly, these Congressional remarks appear in a discussion of legislation intended to strengthen political parties by promoting the pooling of resources from many small contributors, building coalitions of voters, keeping candidates responsible to the electorate, and increasing party resources for important party operations between elections. See id. at 5593-94. Indeed, Amici Democratic Senatorial Campaign Committee and Democratic Congressional Campaign Committee argue persuasively that during the past twenty years political parties have recovered dramatically from a prolonged period of decline due in large part to the FECA
The majority prefaces its analysis with a discussion voicing reservations on whether the standard set out in Shrink Missouri for assessing contribution limits should apply to political parties. See maj. op. at 1226-27. Under that test, a contribution limit survives a First Amendment challenge if thе Government demonstrates that it was closely drawn to match a sufficiently important interest. Shrink Missouri, 120 S.Ct. at 904. As an initial matter, the majority is simply mistaken in asserting that the Court in either Buckley or Shrink Missouri analyzed contribution limits more closely when they affected associational rights than when they affected speech rights. To the contrary, as discussed above, after setting out the Buckley analysis in the context of restraints on speech, the Court in Shrink Missouri expressly stated that it had “flagged a similar difference between expenditure and contribution limitations in their impacts on the association right.” Id. While recognizing that contribution limits have a greater impact on associational rights than on speech rights, the Court nonetheless reiterated its past holdings that expenditure and contribution limits are governed by differing standards even when they affect associational rights. Id. It is beyond quibble that the Court has drawn a distinction for purposes of First Amendment scrutiny between expenditures and contributions, rather than between associational and speech rights.
Moreover, there is no support in the Constitution, this legislation, or Supreme Court authority for the majority‘s notion that political parties are entitled to favored treatment when assessing a contribution limit that impacts their associational rights. The majority supports its position by stating that “a party speaks in large part through its identified candidates.”3 Maj. op. at 1227. The same can be said, however, of any entity seeking to associate itself with a political candidate. That fact therefore does not serve to set political parties apart from others subject to contribution limits. More importantly, the Supreme Court has expressly rejected the argument that a party and its candidate are identiсal: “We cannot assume ... that this is so. Congress chose to treat candidates and their parties quite differently under the Act, for example, by regulating contributions from one to the other.” Colorado Republican Comm., 518 U.S. at 623-24, 116 S.Ct. 2309 (citation omitted). The Supreme Court and Congress have thus foreclosed the very assumption made by the majority here.
In holding the contribution limit at issue unconstitutional, the majority requires the FEC to provide evidence in support of Congress’ determination that political parties corrupt or appear to corrupt the political process through unlimited contributions.4 The Supreme Court addressed the quantum of evidence required to support this interest in Shrink Missouri, and its discussion there cannot be squared with the majority‘s treatment of the matter
In Shrink Missouri, the lower court accepted the argument that the State had not justified the invocation of this interest with empirical evidence of actually corrupt practices or the public perception of a corrupting influence. The Supreme Court disagreed and expanded on the dangers flowing from large contributions generally.
In speaking of “improper influence” and “opportunities for abuse” in addition to “quid pro quo arrangements,” we recognized a concern not confined to bribery of public officials, but extending to the broader threat from politicians too compliant with the wishes of large contributors. These were the obvious points behind our recognition that the Congress could constitutionally address the power of money to “influence government action” in ways less “blatant and specific” than bribery.
Shrink Missouri, 120 S.Ct. at 905 (quoting Buckley, 424 U.S. at 28). The Court pointed out:
Even without the authority of Buckley, there would be no serious question about the legitimacy of the interests claimed, which, after all, underlie bribery and anti-gratuity statutes. While neither law nor morals equate all political contributions, without more, with bribes, we spoke in Buckley of the perception of corruption “inherent in a regime of large individual financial contributions” to candidates for public office, as a source of concern “almost equal” to quid pro quo improbity. The public interest in countering that perception was, indeed, the entire answer to the overbreadth claim raised in the Buckley case. This made perfect sense. Leave the perception of impropriety unanswered, and the cynical assumption that large donors call the tune could jeopardize the willingness of voters to take part in democratic governance. Democracy works “only if the people have faith in those who govern, and that faith is bound to be shattered when high officials and their appointees engage in activities which arouse suspicions of malfeasance and corruption.”
Id. at 905-06 (citations omitted).
The FEC contends that these concerns apply equally to large contributions from political parties, arguing that parties can use their ability to funnel large amounts into the campaigns of particular candidates in response to large donations by outside interests, to assist in the evasion of contribution limits placed on individual and political committee contributions, and to promote the personal interests of party leaders, their friends, and party factions. The FEC‘s position voices long-standing Congressional concerns that have animated the history of efforts to reform federal election financing, many of which were addressed to the evils arising from large contributions to political parties that put the parties in political debt to the donors, debts which were often paid by the parties’ candidates. In United States v. International Union UAW-CIO, 352 U.S. 567, 77 S.Ct. 529, 1 L.Ed.2d 563 (1957), for example, the Supreme Court addressed the circumstances giving rise to the Corrupt Practices Act,
We all know ... that one of the great political evils of the time is the apparent hold on political parties which business interests and certain organizations seek and sometimes obtain by reason of liberal campaign contributions. Many believe that when an individual or association of individuals makes large contributions for the purpose of aiding candidates of political parties in winning the elections, they expect, and sometimes demand, and occasionally, at least, receive, consideration by the beneficiaries of their contributions which not infrequently is harmful to the general public interest. It is unquestionably an evil which ought to be dealt with, and dealt with intelligently and effectively.
Id. at 576-77 (quoting remarks by “Senator Robinson, one of the leaders of the Senate“). “We all know that money is the chief source of corruption. We all know that large contributions to political campaigns ... put the political party under obligation to the large contributors, who demand pay in the way of legislation....” Id. at 577-78 (quoting Senator Bankhead offering 1940 amendments to the Hatch Act restricting contributions to federal elections).
One of the matters upon which I sensed that the public was taking a stand opposite to that of labor leaders was the question of the handling of funds of labor organizations. The public was aroused by many rumors of ... political contributions to parties and candidates which later were held as clubs over the head of high Federal officials.
Id. at 579 (quoting Congressman Landis, author of 1943 measure extending sections of Corrupt Practices Act to labor unions). These remarks, all of which were made by federal legislators during the efforts to pass earlier campaign finance reform, establish that the dangers from large contributions by political parties are no more novel or implausible than those from large contributions generally.
The Court‘s analysis of the quantum of evidence presented in Shrink Missouri governs the inquiry here. In concluding that the evidentiary showing in that case was sufficient to justify the contribution limits challenged there, the Court cited an affidavit from a state legislator stating generally that large contributions have the potential to buy votes, and “newspaper accounts of large contributions supporting inferences of impropriety.” Shrink Missouri, 120 S.Ct. at 907. Although the majority largely ignores the record before us, it likewise contains affidavits and depositions from those who have been active in federal fund raising activities, both as candidates and as party activists. These materials state that large donors to political parties give with an eye toward obtaining favorable consideration of legislation they deem important or obtaining access to a legislator in order to urge favorable action. See, e.g., Decl. of Robert Hickmott (DNC fundraiser), jt. app. at 452-53; Aff. of Robert Razen (staff person for Senator George Mitchell), id. at 462; Aff. of Former Senator Paul Simon, id. at 466; Decl. of Former Senator Timothy Wirth, id. at 545-46; Dep. of Paul Simon, id. at 636; Dep. of Timothy Wirth, id. at 649, 661. See also Fax from National Republican Senatorial Comm., id. at 626. The record also reveals that although earmarking funds for a particular candidate is illegal, this prohibition is circumvented through “understandings” regarding what donors give what amounts to the party, which candidates are to receive what funds from the party, and what interests particular donors are seeking to promote. See, e.g., Decl. of Leon G. Billings (former Exec. Dir. of Dem. Sen. Campaign Comm.), id. at 382; Decl. of Robert Hickmott (DNC fundraiser), id. at 446-48; Aff. of Paul Simon, id. at 465; Decl. of Timothy Wirth, id. at 543; Dep. of Timothy Wirth, id. at 644-45.
Senators are expected to encourage their major donors, who have maximized their contribution to the candidate, to make contributions to the state or national party, which in turn gives the candidates
In addition, the record contains numerous media articles and interviews reporting on еpisodes in which the inference can be drawn that donations to a party brought about access to that party‘s candidates and legislators, which in turn furthered the donor‘s business interests.5 See generally id. at 250-89. Given the Supreme Court‘s reliance on this very type of evidence in Shrink Missouri, I believe that we are required to credit it here and to hold that the FEC has indeed carried its evidentiary burden to support the legis-
lative judgment that party contribution limits are necessary to prevent corruption and the appearance of corruption.
The majority opinion‘s several responses to the evidence offered by the FEC all run afoul of Supreme Court authority. First, the majority begins on the wrong foot in relying on a statement by the plurality opinion in Colorado Republican Fed. Campaign Comm. that it was “not aware of any special dangers of corruption associated with political parties.” Maj. op. at 1228 (quoting 518 U.S. at 616). This remark was not directed to contribution limits on party donations. Rather, it referred to limits on a party‘s independent expenditures which, unlike contributions, are not deemed to be coordinated and therefore pass constitutional muster due to the absence of prearrangement and coordination. Id. This statement is simply inapposite to coordinated party contributions. Cf., Shrink Missouri, 120 S.Ct. at 907 (making same point about Colorado Republican Fed. Campaign Comm. with respect to government‘s evidentiary burden).
Next the majority takes issue with Congress’ decision to limit party contributions
[T]he constitutionally significant fact ... is the lack of coordination between the candidate and the source of the expenditure. 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.
Colorado Republican Campaign Comm., 518 U.S. at 617-18 (citing Buckley, 424 U.S. at 45-46; Federal Elеction Comm‘n v. National Conservative Political Action Comm., 470 U.S. 480, 498, 105 S.Ct. 1459, 84 L.Ed.2d 455 (1985)). When, as here, this constitutionally significant fact is missing and the expenditure is instead coordinated, the Court has clearly indicated that a substantial danger of corruption may be assumed absent convincing evidence to the contrary. The majority thus errs in placing the burden on the FEC rather than on the Colorado Republican Party, which certainly has not shouldered that burden in this case.
The majority also rejects the FEC‘s argument that limits on party contributions are necessary to prevent unscrupulous party officials from furthering their pet interests, thereby corrupting or appearing to corrupt the legislative process. The majority рosits that in adopting this theory, Congress “gravely misunderstands the role of political parties in our democracy.” Maj. op. at 1231. As a matter of common sense, it is difficult to credit the bald assertion that politicians do not understand the role political parties play in American politics.6 Moreover, the majority is not at liberty to substitute its judgment for that of Congress on how best to balance the need to promote the role of political parties and to combat its potential for corruption. The majority also views the electoral and litigation processes as the proper means for righting the wrongs perpetrated by corrupt party leaders, again displacing the judgment of Congress on matters uniquely within its province.
Finally, the majority rejects the argument that limits on party expenditures are necessary to prevent evasion of the Act‘s other contribution limits. The majority believes that enforcement of the disclosure requirements in section
We specifically rejected this notion in Buckley, where we said ... that “Congress was surely entitled to conclude that disclosure was only a partial measure, and that contribution ceilings were a necessary legislative concomitant to deal with the reality or appearance of corruption inherent in a system permitting unlimited financial contributions, even when the identities of the contributors and the amounts of their contributions are fully disclosed.” We understood contribution limits, on the other hand, to “focu[s] precisely on the problem of large campaign contributions—the narrоw aspect of political association where the actuality and potential for corruption have been identified—while leaving persons free to engage in inde-
Shrink Missouri, 120 S.Ct. at 908 n. 7.
In sum, the majority has substituted a paean to its view of the role of political parties for a properly deferential assessment of the constitutionality of limits on coordinated party contributions under applicable Supreme Court authority. The result the majority reaches simply cannot be reconciled with that authority.
In my view, section
I see no merit to the assertion that the political atmosphere has changed to the extent that the limits at issue are no longer needed. This evaluation, like so many of the others made by the majority in this case, is to be made by Congress through the legislative process and not by us through judicial fiat. Neither the majority nor the Committee has made a persuasive argument that human nature has changed in the twenty years that have passed since FECA was enacted. To the extent that the political process has in fact improved, FECA has played a major role in the curtailment of abuses. Eliminating an integral part of the Act would allow those abuses to flourish once again. The fact that FECA has accomplished what it was meant to do is hardly a justification for doing away with it. In holding to the contrary, the majority makes a grave error by turning a deaf ear to the voices of history that advise us to learn from our mistakes lest we repeat them.
Accordingly, I dissent.
Richard J. MILLER, Plaintiff-Appellant, v. John MENGHINI, President, Impact Design, Inc.; Joseph Menghini, General Manager, Impact Design, Inc.; David Menghini, Supervisor, Impact Design, Inc.; Impact Design, Inc.; Leonard L. Elwell, Director of Administration, Kansas Correctional Industries; David R. McKune, Warden, Lansing Correctional Facility; Charles E. Simmons, Secretary, Department of Corrections; Kansas Department of Corrections, Landon Statе Office Building, A. Doe, Assistant Warden of Operations, Lansing.
Notes
(3) The national committee of a political party, or a State committee of a political party, including any subordinate committee of a State committee, may not make any expenditure in connection with the general elеction campaign of a candidate for Federal office in a State who is affiliated with such party which exceeds--
(A) in the case of a candidate for election to the office of Senator or of Representative from a State which is entitled to only one Representative, the greater of--
(i) 2 cents multiplied by the voting age population of the State (as certified under subsection (e) of this section); or
(ii) $20,000; and
(B) in the case of a candidate for election to the office of Representative, Delegate, or Resident Commissioner in any other State, $10,000.