May 11, 2010
Ninth Circuit Weighs In on Citizens United
A three-judge panel of the Ninth Circuit last week issued the second circuit court ruling on campaign expenditures and contributions in the wake of Citizens United v. FEC, the Supreme Court's January 21 ruling striking down limits on independent campaign expenditures.
The case, Long Beach Area Chamber of Commerce v. City of Long Beach, followed last month's D.C. Circuit ruling, SpeechNow.org v. FEC, in result, but not exactly in reasoning.
The Ninth Circuit ruling struck down a portion of the Long Beach Campaign Reform Act, which prohibited any person or organization from making an independent expenditure supporting or opposing any candidate, when that person or organization accepted a contribution in excess of $350 or $650, depending on the office. The Act defies easy classification as a restriction on "contributions" or "expenditures," but the court ruled that it didn't matter: The Act failed the First Amendment test for either.
Under Buckley v. Valeo and subsequent cases, including McConnell v. FEC, limits upon contributions to independent election committees (IECs) are subject to a lower level of scrutiny than limits upon IEC expenditures. (Restrictions on contributions must be closely drawn to serve sufficiently important interests; restrictions on expenditures are subject to strict scrutiny.) The Court in Citizens United expressly addressed expenditures only, applied strict scrutiny, overturned the limitation on expenditures, and in the course narrowed the only recognized compelling government interest, preventing corruption. The Citizens United Court didn't address the test for contributions, although some language in the case may be read to anticipate a heightened test for contributions.
The Ninth Circuit didn't address the appropriate test for contributions. Instead, it ruled that the city's purposes in restricting contributions didn't meet either test. The city's strongest interest, preventing corruption, didn't pass muster, because the Chamber's relationship with candidates was too attenuated to support any claim of corruption.
Thus the Ninth Circuit reached the same result as the D.C. Circuit, but for slightly different reasons. The D.C. Circuit in SpeechNow.org--the first circuit court case applying Citizens United--held that the reasoning of Citizens United applied equally to contributions, and ruled that the government has no anti-corruption interest in limiting contributions to an IEC:
In light of the Court's holding as a matter of law that independent expenditures do not corrupt or create the appearance of quid pro quo corruption, contributions to groups that make only independent expenditures also cannot corrupt or create the appearance of corruption. The Court has effectively held that there is no corrupting "quid" for which a candidate might in exchange offer a corrupt "quo."
Given this analysis from Citizens United, we must conclude that the government has no anti-corruption interest in limiting contributions to an independent expenditure group such as SpeechNow.
SpeechNow.org, at 14. The Ninth Circuit, in contrast, left the door open for a possible anti-corruption purpose justifying contribution limits, even as it required a tight relationship between the IEC and candidates to show corruption.
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