No. 04-56964
David Brodie and Robert J. Walters, Deputy City Attorneys, San Diego, CA, for the appellee.
Appeal from the United States District Court for the Southern District of California; Roger T. Benitez, Magistrate Judge, Presiding. D.C. No. 03CV-1215-BEN.
Before: CYNTHIA HOLCOMB HALL, MICHAEL DALY HAWKINS, and SANDRA S. IKUTA, Circuit Judges.
HALL, Senior Circuit Judge.
The City of San Diego bans contributions exceeding $250 to any committee supporting or opposing a candidate for City Council office. San Diego Municipal Code (SDMC)
In this case, Citizens for Clean Government (“Citizens“) argues that the contribution limit is unconstitutional as applied to the signature-gathering phase of a recall election. San Diego asserts its ordinance is valid under Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976), and the district court agreed. It denied Citizens’ request for preliminary injunctive relief, and this court affirmed. The parties then stipulated to a final judgment against Citizens. We now vacate and remand.
I.
The recall election of a City Councilman in San Diego (“the City“) proceeds in two phases. In the first phasе, recall proponents must gather the signatures of at least 15 percent of the voters in the council district.
Citizens filed this lawsuit for declaratory and injunctive relief on June 20, 2003, the day after it published its noticе of intent to circulate a recall petition. It alleged that the City‘s campaign contribution limit, then codified at
On July 3, 2003, the district court denied Citizens’ request for preliminary injunctive relief. Citizens, it held, had not shown a likelihоod of success on the merits of its claim that the City‘s ordinance was unconstitutional under Buckley, the Supreme Court‘s seminal campaign finance decision. On November 14, 2003, this court affirmed. The parties stipulated to a final judgment against Citizens on October 6, 2004, and Citizens timely filed this appeal on November 5, 2004.
Because the recall camрaign against Scott Peters did not obtain enough signatures to reach the ballot, and Councilman Peters was ultimately re-elected in 2004, we must address the question of whether this case is moot. The Supreme Court has held that the following two factors may preclude a finding of mootness: “(1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there [is] a reasonable expectation that the same complaining party [will] be subjected to the same action again.” First Nat‘l Bank of Boston v. Bellotti, 435 U.S. 765, 774, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978) (quoting Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975) (alteration in original)). In short, the question is whether the alleged injury is “capable of repetition, yet evading review.” S. Pac. Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 55 L.Ed. 310 (1911). We have prеviously noted that election cases tend to fall within this exception. See Alaska Right to Life Comm. v. Miles, 441 F.3d 773, 779 (9th Cir.2006); Cal. Pro-Life Council, Inc. v. Getman, 328 F.3d 1088, 1095 n. 4 (9th Cir.2003).
Indeed, both factors are present here. First, unless a recall campaign succeeds in reaching the ballot, the contribution limitation is relevant for only those 60 days between the publication of a notice of intent and the deadline for collеcting the requisite number of signatures. This amount of time is too short to litigate a challenge to the ordinance to finality in court. Second, if Citizens attempts a recall again, it will be subject to the same contribution limits. See Moore v. Ogilvie, 394 U.S. 814, 816, 89 S.Ct. 1493, 23 L.Ed.2d 1 (1969) (rejecting mootness argument in voting rights case despite occurrence of election). Citizens’ claim, accоrdingly, is not moot.
Because this appeal relates to a permanent injunction, we are not constrained by the more limited standard of review that applied at the preliminary injunction phase of this litigation. See Walczak v. EPL Prolong, 198 F.3d 725, 730 (9th Cir.1999). While we review the district court‘s decision to deny permanent injunctive relief for abuse of discretion, we reviеw de novo any legal conclusions underlying that decision. See Jones v. City of L.A., 444 F.3d 1118, 1125-26 (9th Cir. 2006). Though the district court correctly chose to apply Buckley‘s reduced scrutiny, we hold that it erred by deciding, apparently as a matter of law, that the City had a sufficient interest justifying the application of its contribution limits to the signature-gathering phase of a recall election. We hold that the City must provide evidence demonstrating a sufficiently important government interest, such as the risk of corruption, in this context.
Limits on contributions to political campaigns are permissible under the First Amendment “as long as the Government demonstrates that the limits are ‘closely drawn’ to match a ‘sufficiently important government interest.‘” Randall v. Sorrell, ___ U.S. ___, ___, 126 S.Ct. 2479, 2491, 165 L.Ed.2d 482 (2006) (plurality opinion) (quoting Buckley, 424 U.S. at 25, 96 S.Ct. 612). This standard is sometimes referred to as “less rigorous” scrutiny. McConnell v. FEC, 540 U.S. 93, 136, 124 S.Ct. 619, 157 L.Ed.2d 491 (2003).
Under this test, the Supreme Court and this circuit have tended to uphold limits on contributions to candidate campaigns. See, e.g., id.; Nixon v. Shrink Mo. Gov‘t PAC, 528 U.S. 377, 120 S.Ct. 897, 145 L.Ed.2d 886 (2000); Mont. Right to Life Ass‘n v. Eddleman, 343 F.3d 1085 (9th Cir.2003). But see Randall, 126 S.Ct. at 2494-95 (striking down state contribution caps as too stringent). By contrast, neither the Supreme Court nor this court has found an interest sufficiently important to justify limits on contributions to ballot measure campaigns. See, e.g., Citizens Against Rent Control/Coalition for Fair Housing v. City of Berkeley, 454 U.S. 290, 299, 102 S.Ct. 434, 70 L.Ed.2d 492 (1981); Bellotti, 435 U.S. at 765, 98 S.Ct. 1407.
Citizens, which likens recall рetitions to ballot measure petitions, argues that the Berkeley case implicitly establishes a strict scrutiny standard for contribution limits in ballot measure campaigns. The cases provide no conclusive support for this reading, and we decline to adopt that interpretation here. First, in Berkeley, the Court avoided any direct statement regаrding the standard of review. And, to the extent the standard can be inferred, the Court seemed to apply the level of scrutiny described in Buckley. See Berkeley, 454 U.S. at 299, 102 S.Ct. 434 (“It is clear, therefore, that [the ordinance] does not advance a legitimate governmental interest significant enough to justify its infringement of First Amendment rights.“) (emphasis added). Two concurrences in Berkeley also suggest that Buckley‘s less rigorous scrutiny applies. Id. at 301, 102 S.Ct. 434 (“I must assume that the Court is following our consistent position that this type of governmental action is subjected to less rigorous scrutiny than a direct restriction on expenditures.“) (Marshall, J., concurring); id. at 302, 102 S.Ct. 434 (“Berkeley must demonstrate that its ordinance advances a sufficiently important governmental interest and employs means closely drawn to avoid unnecessary abridgment of First Amendment freedoms.“) (Blackmun, J., and O’ Connor, J., concurring) (quoting Buckley, 424 U.S. at 25, 96 S.Ct. 612) (internal punctuation omitted).
As both the Supreme Court and this court have recently suggested, the act of contribution, rather than the context in which contribution occurs, determines the standard of review. In a case addressing limits on corporate campaign contributions, the Court stated that
the level of scrutiny is based оn the importance of the “political activity at issue” to effective speech or political association. . . . [R]estrictions on political contributions have been treated as merely “marginal” speech restrictions subject to relatively complaisant review under the First Amendment, because contributiоns lie closer to the edges than to the core of political expression.
FEC v. Beaumont, 539 U.S. 146, 161, 123 S.Ct. 2200, 156 L.Ed.2d 179 (2003) (citations omitted). The Court reiterated that lesser scrutiny is appropriate because “the transformation of contributions into political debate involves speech by someone other than the contributor.” Id. at 161-62, 123 S.Ct. 2200 (quoting Buckley, 424 U.S. at 21, 96 S.Ct. 612 (punctuation omitted)).
III.
We find no precedent holding that contributions to ballot measure campaigns convey a different type or degree of speech from contributions to candidates or parties. We therefore hold that the district court‘s preliminary decision to apply Buckley‘s less rigorous scrutiny was correct.
We now turn to the district court‘s holding that the City has a sufficiently important state interest to justify imposing contribution limits during the signature-gathering phase of a recall effort. The paradigmatic sufficient state interest under Buckley is the prevention of corruрtion, or the appearance of corruption, in the political process. Randall, 126 S.Ct. at 2488-90; McConnell, 540 U.S. at 143, 124 S.Ct. 619. Limits on political contributions serve the government‘s interest in preventing corruption because they reduce the risk of quid pro quo arrangements and mitigate “the appearance of corruption spawned by the real or imagined coercive influence of large financial contributions on candidates’ positions and on their actions if elected to office.” Buckley, 424 U.S. at 25, 96 S.Ct. 612.
Corruption, as the Court has defined it more recently, can encompass more than straightforward quid pro quo transactions:
Just as troubling to a functioning democracy as classic quid pro quo corruption is the danger that office-holders will decide issues not on the merits or the desires of their constituencies, but according to the wishes of those who have made large financial contributions valued by the officeholder. Even if it occurs only occasionally, the potential for such undue influence is manifest. And unlike straight cash-for-votes transactions, such corruption is neither easily detected nor practical to criminalize.
McConnell, 540 U.S. at 153, 124 S.Ct. 619. Notably, the Court rejected any narrower conception of corruption as “crabbed” and “ignor[ing] precedent, common sense, and the realities of political fundraising.” Id. at 152, 124 S.Ct. 619.
Though it has defined corruption flexibly, the Court has also rejected the argument that a state may limit contributions simply because they may sway the outcome of an election. See Bellotti, 435 U.S. at 790, 98 S.Ct. 1407 (“[T]he fact that advocacy may persuade the electorate is hardly a reason to suppress it. . . .“). Rather, contribution limits must target some “greater or more imminent danger to the public interest.” Id. at 792, 98 S.Ct. 1407; see also Mont. Chamber of Commerce v. Argenbright, 226 F.3d 1049, 1057-58 (9th Cir.2000) (affirming district court‘s finding that corporate contributions to ballot measure campaigns posed no “imminent threat to the democratic process“).
Between these two poles of clearly valid and clearly invalid anti-corruption interests, legislators are free to craft new arguments about corruption provided they acknowledge that “[t]he quantum of empirical evidence needed to satisfy heightened judicial scrutiny . . . will vary up or down with the novelty and plausibility of the justification raised.” Shrink, 528 U.S. at 391, 120 S.Ct. 897. Because the regulations at issue in Shrink were similar to those in Buckley, the state‘s asserted interest was neither novel nor implausible. Id. at 393, 120 S.Ct. 897. Therefore, the Court declined to impose, let alone articulate, a stringent evidentiary burden. Id. at 393-95, 120 S.Ct. 897.
While the laws at issue in Montana Right to Life and Shrink were more easily analogized to those in Buckley because they limited contributions to candidates, the Supreme Court also emphasized the evidentiary burden when it evaluated “coordinated expenditures” made by political parties by аrrangements with specific candidates. See FEC v. Colo. Republican Fed. Campaign Comm., 533 U.S. 431, 121 S.Ct. 2351, 150 L.Ed.2d 461 (2001). These expenditures are treated as contributions, and, therefore, limits on coordinated expenditures are entitled to Buckley‘s less rigorous scrutiny. See id. at 456, 121 S.Ct. 2351. In Colorado Republican, the Court found that “substantial evidence,” including declarations from party operatives and legislators, demonstrated how candidates, donors and partiеs “test the limits” of the existing law, and why a less deferential standard of review would further undermine Congress‘s anti-corruption efforts. Id. at 457, 121 S.Ct. 2351. Importantly, after the standard of review was settled, the only “bone of contention” in Colorado Republican was whether the government had marshaled adequate evidence of its interest. See id. at 456, 121 S.Ct. 2351.
Because the government has the burden of dеmonstrating its state interest, Shrink, 528 U.S. at 387-88, 120 S.Ct. 897, any empirical evidence it offers must overcome any evidence to the contrary presented by the plaintiff. See id. at 394, 120 S.Ct. 897 (“There might, of course, be need for a more extensive evidentiary documentation if [the plaintiffs] had made any showing of their own....“). In this circuit, we have upheld the district court‘s decision to overturn limits on corporate spending because the government failed to counter the plaintiff‘s evidence that the state‘s electoral process was functioning healthily. See Argenbright, 226 F.3d at 1055, 1057; cf. id. at 1058-59 (McKeown, J., concurring) (citing Shrink‘s discussion of evidence). We specifically remarked upon the excellent briefing and record prepared by both sides in Argenbright, id. at 1055, and, following both Supreme Court and Ninth Circuit precedent, we again emphasize the importance of factual development.
The district court appeared to determine as a matter of law that the City had a sufficiently important interest in limiting contributions to recall petition campaigns. The district court made one referеnce to
We cannot hold that hypotheticals, accompanied by vague allusions to practiсal experience, demonstrate a sufficiently important state interest. And, while relevant to the analysis, the City‘s statement of purpose only vaguely articulates a risk of corruption. In Jacobus v. Alaska, where we upheld a state‘s soft money contribution limits, we relied on legislative findings made on the basis of a state-commissioned report, 338 F.3d at 1099, as well as reasoning from the Supreme Court specifically addressing the possibility of corruption related to party spending in federal elections. Id. at 1113 (citing Colo. Republican, 533 U.S. at 461, 121 S.Ct. 2351). Here, by contrast, the City offers no evidence of deliberation on the issue of campaign finance in recall elections, and it has no recourse to legal authority addressing these exact issues because none exists.
We make no statement about whether the City, on remand, will be able to develop and introduce evidence establishing a sufficiently important interest in limiting contributions to recall campaigns. We hold only that the district court erred by failing to require evidence clarifying the аnalogy between the state interest in Buckley and the one asserted here. We therefore VACATE the denial of a permanent injunction and declaratory relief and REMAND for further evidentiary development in accordance with this opinion.
VACATED AND REMANDED.