Thomas D. Carver v. Jeremiah W. Nixon ( 1995 )

___________
No. 95-2608
___________
Thomas D. Carver, *
*
Appellant, *
*
v. * Appeal from the United States
* District Court for the
Jeremiah W. Nixon, Attorney * Western District of Missouri.
General, State of Missouri; *
John Maupin, Chair, Missouri *
Ethics Commission, *
*
Appellees. *
___________
Submitted: September 13, 1995
Filed: December 19, 1995
___________
Before BOWMAN, ROSS and JOHN R. GIBSON, Circuit Judges.
___________
JOHN R. GIBSON, Circuit Judge.
The campaign contribution limits in Proposition A, Mo. Ann. Stat.
§ 130.100 (Vernon Supp. 1995), adopted by initiative, were declared
constitutional by the district court, which refused to enjoin their
implementation. Carver v. Nixon, 882 F. Supp. 901 (W.D. Mo. 1995). Thomas
D. Carver appeals, arguing that the district court erred in ruling that the
Proposition A contribution limits for state and local candidates did not
violate a contributor's freedoms of speech and association under the First
Amendment. We conclude that section 130.100 is unconstitutional and
reverse the judgment of the district court.
In the spring of 1994, the Missouri General Assembly passed Senate
Bill 650, adopting campaign contribution limits to become effective January
1, 1995. See Mo. Rev. Stat. § 130.032 (1994). Voters approved Proposition
A at the November 8, 1994 election. Proposition A adopted lower
contribution limits and became effective immediately.1
1
Proposition A provides:
There shall be the following limitations on campaign
contributions:
(1) No person or committee shall make a contribution to
any one candidate or candidate committee with an
aggregate value in excess of:
(a) $100 per election cycle per candidate in
districts with fewer than 100,000 residents[.]
(2) [sic] $200 per election
cycle per candidate,
other than statewide
candidates, in
districts of 100,000 or
more residents. For
purposes of this
section "statewide
candidates" refers to
those candidates
seeking election to the
office of Governor,
Lieutenant Governor,
Attorney General ,
Auditor, Treasurer and
Secretary of State.
(3) [sic] $300 per election cycle per statewide
candidate.
(2) No person, entity or committee shall make a
contribution to any other persons, entities or
committees for the purpose of contributing to a
specific candidate which when added together with
contributions made directly to the candidate or to
the candidate's committee, will have an aggregate
value in excess of the limits stated in section 1.
(3) No candidate or candidate committee shall solicit
or accept any contribution with an aggregate value
in excess of the limits stated in this section.
(4) For purposes of this section the term "candidate"
shall include the candidate, the candidate's
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treasurer, and the candidate's committee and any
contribution to the candidate's treasurer or
candidate committee shall be deemed a contribution
to the candidate.
Mo. Ann. Stat. § 130.100.
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The Missouri Attorney General issued an opinion stating that,
although both Proposition A and Senate Bill 650 "concern campaign finance,
they are not irreconcilably inconsistent." Missouri Ethics Commission, Op.
Atty. Gen. No. 218-94 (Dec. 6, 1994), at 4. The Attorney General stated
that the two provisions stand together in regulating campaign finance, and
to the extent there is a conflict between specific provisions of the
statutes, the more restrictive provision prevails. Id. Thus, the lower
2
campaign contribution limits of Proposition A control.
The contribution limits in Proposition A are limits "per election
cycle per candidate."3 Mo. Ann. Stat. § 130.100. The statute provides
that no person or committee shall make a contribution to any one candidate
or candidate committee with an aggregate value in excess of: (a) $100 for
candidates in districts with fewer than 100,000 residents; (b) $200 for
other than statewide candidates in districts of 100,000 or more residents;
and (c) $300 for statewide candidates. Mo. Ann. Stat. § 130.100.
Governor, Lieutenant Governor, Attorney General, Auditor, Treasurer, and
Secretary of State are enumerated as statewide candidates for purposes of
the section. Mo. Ann. Stat. § 130.100(2) [sic].
Senate Bill 650 imposed limits for each election. Thus, on an
election cycle basis, the Senate Bill 650 limits are twice the amount
enumerated in the text of Senate Bill 650. See Mo. Rev. Stat. § 130.032.1.
Contributions are limited to $1,000 per
2
Other provisions of Senate Bill 650 and Proposition A were
the subject of litigation in Shrink Missouri Government PAC v.
Maupin, 892 F. Supp. 1246 (E.D. Mo. 1995). We heard the appeal in
that case on the same day as this appeal. See Shrink Mo. Gov't PAC
v. Maupin, No. 95-2857, slip op. (8th Cir. Dec. 19, 1995).
3
An election cycle is "the period of time from general
election for an office until the next general election for the same
office." Mo. Stat. Ann. § 130.011 (Vernon Supp. 1995). Thus, an
election cycle includes the primary and general election.
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election for Governor and other statewide offices, as well as for
candidates in districts with a population of at least 250,000. Mo. Rev.
Stat. §§ 130.032.1(1), (6). There is a $500 per election contribution
limit for candidates for State Senate, and for any office in electoral
districts with a population between 100,000 and 250,000. Mo. Rev. Stat.
§§ 130.032.1(2), (5). Contributions are limited to $250 per election for
candidates for State Representative and for offices in districts of a
population less than 100,000. Mo. Rev. Stat. §§ 130.032.1(3), (4).
Carver brought this action to enjoin enforcement of Proposition A.
He asserted that Proposition A restricted his ability to make contributions
in violation of his rights of free speech and association. He also argued
that the limits are so low as to unconstitutionally interfere with his
ability to support candidates and to communicate with potential supporters
for fundraising purposes. He argued that Proposition A is not narrowly
tailored to meet the State's interests of avoiding corruption or the
appearance of corruption, and will not prevent wealthy special interests
from opposing candidates.
After hearing evidence and receiving briefs, the district court
denied the injunction. Carver, 882 F. Supp. at 902. The court recognized
that Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam), governed the issues.
Carver, 882 F. Supp. at 903. The court read from Buckley that "a major
purpose of the First Amendment is to protect political speech," and that
"[l]imitations on these rights are permissible where a compelling state
interest is served, if the limitations imposed are narrowly tailored to
serve that interest." Carver, 882 F. Supp. at 903-04. The court observed
that the Supreme Court has recognized that governments have a compelling
interest in preventing corruption and the appearance of corruption that may
result from individuals making large contributions to candidates. Id. at
904 (citing Buckley, 424 U.S. at 25-27).
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The district court ruled that the Proposition A limits were not so
low as to be an unconstitutional restriction of First Amendment rights.
Id. at 904-05. The court held that "the law is tailored narrowly enough
to help the state meet its goals of eliminating some of the means of
corruption and of avoiding the appearance of corruption." Id. at 906. The
court observed that Proposition A does not prevent candidates from spending
their own money on their campaigns.4 Id. The court stated that, although
Proposition A does not address all of the problems related to campaign
finance, it is a positive step toward eliminating political corruption,
even if it is not comprehensive. Id. It may not close all of the
loopholes, but that does not make it unconstitutional. Id. Carver
appeals.
I.
Carver argues before us, as he did in the district court, that the
Proposition A contribution limits restrict his First Amendment rights to
political communication and association. He contends that, because the
Proposition A limits burden fundamental First Amendment rights, they are
subject to strict scrutiny and do not serve a compelling state interest.
The State argues that we should apply an intermediate standard of review,
but even if we apply strict scrutiny, the Proposition A limits are narrowly
tailored to address a compelling state interest.
4
This issue was not before the district court. However, the
district court in Shrink Missouri Government PAC, 882 F. Supp. at
1251, addressed the applicability of Proposition A to the
candidate's own contributions. The district court found that when
Proposition A and Mo. Rev. Stat. § 130.011(12)(a) (1994) are read
together, the statute limits a candidate's ability to spend his own
money on his campaign. Id. Finding that Buckley prohibits a limit
on the amount a candidate may contribute to his own campaign, the
district court enjoined the application of section 130.011(12)(a)
to the Proposition A contribution limits. Shrink Mo. Gov't PAC,
882 F. Supp. at 1251. We affirmed this holding in Shrink Missouri
Government PAC v. Maupin, No. 95-2857, slip op. at 3-4.
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The Supreme Court identified the interests implicated by contribution
limits in Buckley, 424 U.S. at 14 (citations omitted):
[C]ontribution and expenditure limitations operate in an area
of the most fundamental First Amendment activities. . . . The
First Amendment affords the broadest protection to such
political expression in order "to assure [the] unfettered
interchange of ideas for the bringing about of political and
social changes desired by the people." . . . "[T]here is
practically universal agreement that a major purpose of that
Amendment was to protect the free discussion of governmental
affairs, . . . of course includ[ing] discussions of
candidates . . . ."
"[C]ontribution and expenditure limitations impose direct quantity
restrictions on political communication and association by persons, groups,
candidates, and political parties . . . ." Id. at 18.
In view of these fundamental interests, the Court has instructed that
campaign contribution limits are "subject to the closest scrutiny." Id.
at 25 (quoting NAACP v. Alabama, 357 U.S. 449, 460-61 (1958)). Under this
standard, "a significant interference with protected rights of political
association may be sustained" only when the State can demonstrate "a
sufficiently important interest and employs means closely drawn to avoid
unnecessary abridgment of associational freedoms." Id. (quotations
omitted) (citing Cousins v. Wigoda, 419 U.S. 477, 488 (1975); NAACP v.
Button, 371 U.S. 415, 438 (1963); Shelton v. Tucker, 364 U.S. 479, 488
(1960)).
After identifying the interests and the applicable level of review,
the Court in Buckley, 424 U.S. at 58-59, upheld the constitutionality of
the $1,000 contribution limit for federal elected offices. The Court
reasoned that the $1,000 contribution limit focused precisely on the
problem of large campaign contributions and, therefore, was narrowly
tailored to the goal of
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limiting corruption and the appearance of corruption. Id. at 26-28. The
Court pointed out that a contribution limit "entails only a marginal
restriction upon the contributor's ability to engage in free communication"
and does not materially undermine "the potential for robust and effective
discussion of candidates and campaign issues . . . ." Id. at 20-21, 29.
The Court characterized a contribution as only "a general expression of
support for the candidate and his views," explaining that "the
transformation of contributions into political debate involves speech by
someone other than the contributor." Id. at 21.
The Court recognized that "contribution restrictions could have a
severe impact on political dialogue if the limitations prevented candidates
and political committees from amassing the resources necessary for
effective advocacy." Id. at 21. The Court found no evidence that the
$1,000 limit prevented candidates and political committees from amassing
the resources necessary for effective advocacy. Id. at 21. The Court
refused to analyze the propriety of the specific dollar amount of the
contribution limits. Id. at 30. The Court cautioned, however, that if the
contribution limits were too low, the limits could be unconstitutional.
Id.
The Court struck down the independent expenditure limitation which
prohibited a candidate from using more than $1,000 of his own money in his
campaign and also limited a candidate's total campaign expenditures. Id.
at 39. The Court distinguished limits on expenditures from limits on
contributions, concluding that the expenditure limits were more restrictive
of speech, as they "necessarily reduce[] the quantity of expression by
restricting the number of issues discussed, the depth of their exploration,
and the size of the audience reached. This is because virtually every
means of communicating in today's mass society requires the expenditure of
money." Id. at 19 (footnote omitted).
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In addition, the Court concluded that the government interest in
preventing corruption or the appearance of corruption could not justify the
ceiling on independent expenditures. Id. at 45, 53-54. The Court found
little relationship between the interest of avoiding corruption and
limiting expenditures to one's own campaign or limiting overall campaign
expenditures, particularly in light of the limit on campaign contributions.
Id. at 55.
The State argues that the Court in Buckley applied strict scrutiny
only to legislation limiting independent expenditures and applied a lower,
intermediate standard of review to contribution limits. Citing the
passages from Buckley referred to above, the State argues that contribution
limits are entitled to an intermediate level of scrutiny because
contributions are only symbolic expression of support, and limiting
contributions does not infringe on the contributor's freedom to discuss
candidates and issues.
We recognize that the Court distinguished restrictions on independent
expenditures from restrictions on contributions. Buckley, 424 U.S. at 20-
21. Since Buckley, members of the Court, in dicta, have indicated that
contribution limits should receive a lower level of scrutiny. See Federal
Election Comm'n v. Massachusetts Citizens for Life, 479 U.S. 238, 259-60
(1986); California Medical Ass'n v. Federal Election Comm'n, 453 U.S. 182,
196 (1981) (Marshall, J., plurality); Citizens Against Rent Control v.
Berkeley, 454 U.S. 290, 301 (1981) (Marshall, J., concurring in judgment).
In contrast, other members of the Court strongly disagree, arguing that
nothing less than strict scrutiny should apply to contribution limits. See
California Medical Ass'n, 453 U.S. at 201-02 (Blackmun, J., concurring in
part and in judgment); Citizens Against Rent Control, 454 U.S. at 302
(Blackmun and O'Connor, JJ., concurring in judgment) ("ordinance cannot
survive constitutional challenge unless it withstands ``exacting
scrutiny'"). The Court has not ruled that anything other than
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strict scrutiny applies in cases involving contribution limits. When the
Court in Buckley analyzed the contribution limits, it articulated and
applied a strict scrutiny standard of review. Id. at 25. Therefore, like
other courts since the Buckley decision, we must apply the "rigorous"
standard of review articulated in Buckley. See, e.g., Harwin v. Goleta
Water Dist., 953 F.2d 488, 491 n.6 (9th Cir. 1991) (recognizing that
contribution limits may be subject to a lower level of scrutiny, but
requiring the government to show "a sufficiently important interest and
employ[] means closely drawn to avoid unnecessary abridgement of
associational freedoms") (quoting Buckley, 424 U.S. at 25).
Moreover, that voters adopted Proposition A by initiative does not
affect the applicable level of scrutiny. We must analyze Proposition A
under the same standard that we apply to the product of a legislature. "It
is irrelevant that the voters rather than a legislative body enacted [a
statute], because the voters may no more violate the Constitution by
enacting a ballot measure than a legislative body may do so by enacting
legislation." Citizens Against Rent Control, 454 U.S. at 295.
Thus, we apply strict scrutiny in this case, and the State must show
that the Proposition A limits are narrowly tailored to meet a compelling
state interest. "When the Government defends a regulation on speech . .
. it must do more than simply ``posit the existence of the disease sought
to be cured.' . . . It must demonstrate that the recited harms are real,
. . . and that the regulation will in fact alleviate these harms in a
direct and material way." United States v. National Treasury Employees
Union, 115 S. Ct. 1003, 1017 (1995) (quoting Turner Broadcasting Sys., Inc.
v. Federal Communications Comm'n, 114 S. Ct. 2445, 2470 (1994) (Kennedy,
J., plurality)).
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II.
In Buckley, 424 U.S. at 25-26, the Court identified the compelling
interest as "the prevention of corruption and 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." Id. at 25 (emphasis added). The Court reiterated this interest
at least seven times. Id. at 25-29. It found it unnecessary to look
beyond this primary interest to the remaining interests offered to justify
contribution limits. Id. at 25-26 (identifying the other interests as
equalizing the relative ability of all citizens to affect the outcome of
an election and slowing the skyrocketing cost of political campaigns). The
Court, in discussing large contributions, specifically referred to
5
disturbing examples surfacing after the 1972 election. Id. at 27.
Examining the 1974 election, the Court found that the $1,000 contribution
limit would not severely impact political dialogue, pointing out that most
contributions (94.9 percent in the 1974 election) came from contributions
of $1,000 or less. Id. at 21 n.23, 26 n.27. The Court decided that in
addition to requiring the disclosure of contributions, Congress was
entitled to conclude that contribution limits were necessary "to deal with
the reality or appearance of
5
In Buckley, 424 U.S. at 27 n.28, the Court cites the court of
appeals discussion of such abuses in Buckley v. Valeo, 519 F.2d
821, 839-40 nn.36-38 (D.C. Cir. 1975) (per curiam). The court of
appeals listed examples of large contributions including: dairy
organizations pledging two million dollars to the Nixon campaign in
an effort to schedule a meeting with White House officials
regarding price supports, id. at 839 n.36; contributions from the
American Dental Association to incumbent California congressmen,
id. at 839 n.37; contributions by H. Ross Perot, whose company
supplied data processing for medicare and medicaid programs, to
members of the House Ways and Means Committee, the Senate Finance
Committee, and the House Appropriations Committee, id.; and large
contributions by those seeking ambassadorial appointments from
President Nixon, id. at 840 n.38.
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corruption inherent in a system permitting unlimited financial
contributions." Id. at 28.
The Supreme Court recently reaffirmed that the compelling interest
identified in Buckley was limiting large contributions to candidates. The
Court stated:
Buckley identified a single narrow exception to the rule
that limits on political activity were contrary to the First
Amendment. The exception relates to the perception of undue
influence of large contributors to a candidate:
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. . . .
. . . 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.
Citizens Against Rent Control, 454 U.S. at 296-97 (citations and quotations
omitted) (emphasis added).
The district court held that "[u]nder Buckley, Missouri clearly has
a compelling state interest in limiting campaign contributions." Carver,
882 F. Supp. at 904. This does not square with the interest of limiting
"large campaign contributions" as defined in Buckley. The district court's
decision substantially broadens the compelling interest identified in
Buckley. The district court erred as a matter of law in extending Buckley
to the infinitely broader interest of limiting all, not just large,
campaign contributions.
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The rationale of the district court's opinion is perhaps explained
by the State's argument before us. The State sets out the compelling state
interest justifying Proposition A in general terms. The State identifies
the compelling interest as that of attacking, "not just the reality, but
even the appearance or perception of corruption that may take the form of
a ``quid pro quo' between a contributor and a candidate."6 The State,
however, fails to refine this general interest consistent with the
compelling interest defined by the Court in Buckley as limiting the reality
or perception of undue influence and corruption from large contributions.
See Citizens Against Rent Control, 454 U.S. at 296-97. We examine the
contribution limits in section 130.100 in light of this compelling
interest.
6
In its amicus brief, The Association of Community
Organizations For Reform Now (ACORN) adds the two interests not
reached in Buckley to justify the contribution limits in
Proposition A. ACORN includes equalizing the relative ability of
all citizens to affect the outcome of elections as additional
justification for the Proposition A limits. This latter interest
is close to running afoul of the Court's statement in Buckley, 424
U.S. at 48-49, that restricting "the speech of some elements of our
society in order to enhance the relative voice of others is wholly
foreign to the First Amendment . . . ." See also Shrink Mo. Gov't
PAC, No. 95-2857, slip op. at 8-9. In addition, ACORN states that
supporters of Proposition A sought to change the nature of local
campaigns away from "hot button sound bites" in thirty-second
television commercials toward a substantive discussion of the
issues. As laudable as this interest may appear, these comments,
on their face, manifest a content based restriction on expression
and association. See Turner Broadcasting Sys., 114 S. Ct. at 2459
(discussing content based restrictions).
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III.
A.
Our review of the district court's factual findings in this First
Amendment case is governed by the Supreme Court's recent decision of Hurley
v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 115 S. Ct.
2338 (1995). The Court instructed that, when considering whether the
petitioners' activity is protected speech, we have "a constitutional duty
to conduct an independent examination of the record as a whole, without
deference to the trial court." Id. at 2344 (quoting Bose Corp. v.
Consumers Union of United States, Inc., 466 U.S. 485, 499 (1984)). The
Court explained:
The requirement of independent appellate review is a rule of
federal constitutional law . . . . [T]he reaches of the First
Amendment are ultimately defined by the facts it is held to
embrace, and we must thus decide for ourselves whether a given
course of conduct falls on the near or far side of the line of
constitutional protection. Even where a speech case has
originally been tried in a federal court, subject to the
provision of Federal Rule of Civil Procedure 52(a) that
findings of fact shall not be set aside unless clearly
erroneous, we are obliged to make a fresh examination of
crucial facts.
Id. (citations and quotations omitted). Hurley requires that we
independently review the facts to decide whether certain conduct is
entitled to First Amendment protection. The factual findings surrounding
the determination of whether the Proposition A limits unconstitutionally
interfere with Carver's free speech and association rights are so
intermingled with the constitutional questions of law that we are obligated
"to make an independent examination of the whole record . . . ." Id.
(quoting New York Times Co. v. Sullivan, 376 U.S. 254, 285 (1964)).
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B.
In considering Carver's argument that "the limits imposed by
Proposition A are so low as to be an unconstitutional restriction of First
Amendment rights of speech and association," the district court
acknowledged that "what determines the constitutionality of the limits is
the dollar amount of the limits." Carver, 882 F. Supp. at 904-05.
Comparing the $1,000 limit on contributions to candidates for federal
offices in Buckley with the Proposition A limits, the court emphasized the
incremental nature of the Proposition A limits, which vary according to
population and the office being sought.7 Id. at 905. The court concluded
that "[t]he stairstepping of the contribution limits demonstrates a more
narrow tailoring of Proposition A to fit the state's goal." Id.
The district court observed that there was no evidence that the
Proposition A limits would dramatically affect campaign funding or
candidates' ability to communicate to the voters. Id. The court relied
on the fact that twenty-seven states and the federal government have
imposed contribution limits, and that an overwhelming seventy-four percent
of Missouri voters "determined that contribution limits are necessary to
combat corruption and the appearance thereof." Id. The court found that
"Proposition A does not favor incumbents and that many challengers welcome
limits on contributions as a way to stop incumbents from accepting large
contributions." Id. Finally, the district court referred to expert
testimony indicating that more people will contribute to campaigns when
contribution limits are in place, because people feel that the candidates
will appreciate and be more responsive to smaller contributors. Id. at
905-06.
7
The Proposition A limits stand alone, as Missouri does not
provide public funds for campaign purposes, unlike the United
States and a number of other states.
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These findings may address the desirability of campaign contribution
limits, but they do not focus on whether the Proposition A limits are
narrowly tailored to address the reality or appearance of corruption
associated with large contributions. While indicating popular sentiment
in favor of campaign finance reform, the fact that seventy-four percent of
the voters approved Proposition A does not assist our analysis, because
voters may not adopt an unconstitutional law any more than the legislature.
Citizens Against Rent Control, 454 U.S. at 295; see also U.S. Term Limits,
Inc. v. Thornton, 115 S. Ct. 1842, 1871 (1995) (holding unconstitutional
congressional term limits adopted by voter initiative).
The district court's discussion shows the district court posed, but
did not answer, the question of whether the contribution limits were too
low. Instead, the court only concluded that the stairstepping of the
limits demonstrated that the limits were narrowly tailored. The fact that
Proposition A sets forth graduated limits has nothing to do with whether
the limits are so low as to be unconstitutional.
C.
Carver argues that the evidence establishes that the limits in
Proposition A violate his right to associate as a contributor. The State
responds that Carver has not proved that Proposition A limits his right to
contribute at a meaningful level. The State contends that the Proposition
A limits do not prevent Carver from effectively speaking on behalf of a
candidate or joining with other individuals to express themselves in
constitutionally protected independent committees, such as those involved
in Day v. Holahan, 34 F.3d 1356 (8th Cir. 1994), cert. denied, 115 S. Ct.
936 (1995). The State argues that there was no proof that contributors
like Carver could not find other outlets for effectively expressing their
message in Missouri elections.
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While the extent of Carver's testimony is at best skeletal, it is
sufficient to demonstrate that Carver has contributed, and intends to
contribute in the future, amounts in excess of the Proposition A limits to
support his interest in "good candidates" and "good government." The
State's argument that Carver could continue to exercise his First Amendment
rights by joining an independent group does not address whether the limits
are so low as to prevent Carver from freely associating with a candidate.
The State points out that Buckley does not require specific proof of
the maximum contribution limit, and that we may not use "a scalpel" to
invalidate Proposition A. It is true that the Court did not analyze the
propriety of the $1,000 limit. Indeed, the Court observed that while
Congress could have structured the limits in a graduated fashion for
congressional and presidential campaigns, its failure to do so did not
invalidate the legislation. Buckley, 424 U.S. at 30. The Court reiterated
the court of appeals' statement that "a court has no scalpel to probe"
whether a different ceiling might not serve as well. Id. Although we
certainly are not free to fine tune the limits established by Proposition
A, and we generally accept the limits established by the legislature,
Buckley instructs that we must invalidate that judgment when the
"distinctions in degree" become "differences in kind." Id.
The Court in Buckley, 424 U.S. at 30, pointed to two decisions,
Kusper v. Pontikes, 414 U.S. 51 (1973), and Rosario v. Rockefeller, 410
U.S. 752 (1973), as illustrating differences in kind. In Rosario, 410 U.S.
at 754, the Court approved a party enrollment provision requiring a voter
to enroll in a party at least thirty days before the general election in
order to vote in the next party primary. The Court held that, although the
cutoff date for enrollment could occur up to eight months before a
presidential primary, and up to eleven months before a nonpresidential
primary, the requirement was not arbitrary and
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unconnected to the important state goal of inhibiting party raiding. Id.
at 760.
The Court, however, struck down a party enrollment requirement in
Kusper, 414 U.S. at 52, which prohibited a voter from voting in the primary
election of a political party if he had voted in the primary of another
party in the preceding twenty-three months. The Court reaffirmed its
decision in Rosario, but held that the enrollment requirement at issue
caused a two-year delay for certain voters, and thus, violated the voter's
right to free political association. Id. at 61. Although the Court
allowed an eight-month delay in Rosario, the almost two-year delay in
Kusper, nearly three times the delay approved in Rosario, crossed the
constitutional line. Thus, the enrollment requirement in Kusper amounted
to a "difference in kind."
Similarly, in Day, 34 F.3d at 1365, we dealt with the issues raised
by very low contribution limits. We considered the constitutionality of
a Minnesota statute imposing a $100 limit on contributions to political
committees. Although Day did not consider contribution limits to
candidates, we compared the $100 limit on contributions to political
committees in Day to the $1,000 limit on contributions to candidates
considered in Buckley. Day, 34 F.3d at 1366. After recognizing that the
$1,000 limit in Buckley was not a "constitutional minimum," we nevertheless
concluded that the $100 limit significantly impaired the ability of
contributors to exercise their First Amendment rights. Id. We held that
the limit was "too low to allow meaningful participation in protected
political speech and association," and we concluded that the law was "not
narrowly tailored to serve the state's legitimate interest in protecting
the integrity of the political system." Id. In reaching this conclusion,
we relied on the fact that about 25 to 33 percent of the contributions to
political committees in the most recent election exceeded the $100 limit,
and that after adjusting for inflation, the limit was about 4 percent
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of the $1,000 limit in Buckley. Id. Our observation in Day about the
effect of inflation applies with equal force in this case.
The district court referred to the fact that twenty-seven states have
contribution limits, but it did not analyze the limits in detail. Any
meaningful comparison of these limits must include consideration of not
only the amount, but also whether the limits are per election cycle or per
election. The Proposition A limits, ranging from $100 to $300 per election
cycle, are dramatically lower than the $2,000 limit per election cycle
approved in Buckley.8 Not only are the Proposition A limits much lower
than the federal limits, they are lower than the limits in any other state.
Two states, Montana and Oregon, have limits for state senate races that
equal those in Proposition A, but their limits for statewide offices and
state representatives are greater than those in Missouri.9
8
Employing our analysis in Day, the amicus brief of the
American Civil Liberties Union points out that after adjusting for
inflation, Proposition A's $300 limit is 6 percent of the limit per
election cycle considered in Buckley, the $200 limit is 4 percent
of the Buckley limit per election cycle, and the $100 limit is only
2 percent of the Buckley limit per election cycle.
9
Montana and Oregon recently adopted these restrictive
contribution limits by initiative. See Mont. Code Ann. § 13-37-216
(Supp. 1995); 1995 Or. Laws 1, 3. The Montana limits are on a per
election basis, but when they are converted to an election cycle
basis, the limits are: (1) $800 to candidates filed jointly for
the office of Governor and Lieutenant Governor, (2) $400 to
candidates in a statewide election other than Governor and
Lieutenant Governor, and (3) $200 to candidates for any other
public office. Mont. Code Ann. § 13-37-216. When similarly
considered, the Oregon limits are: (1) $1,000 to a candidate for
"Governor, Secretary of State, State Treasurer, Superintendent of
Public Instruction, Attorney General, Commissioner of the Bureau of
Labor and Industries or judge of the Supreme Court, Court of
Appeals or Oregon Tax Court" and (2) $200 to a candidate for State
Senator or State Representative. 1995 Or. Laws 3.
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The question thus becomes whether Missouri must adopt the lowest
contribution limits in the nation to remedy the corruption caused by large
campaign contributions. The State presented testimony at trial about a
$420,000 contribution from a Morgan Stanley political action committee to
various races in north Missouri, and about the "Keating Five" scandal.10
None of these examples prove that the Proposition A limits are
narrowly tailored. A $420,000 contribution is a far cry from the limits
in Proposition A, and the other examples involve individual conduct leading
to criminal prosecution. We cannot conclude that the limits in Proposition
A are in any way narrowly tailored or carefully drawn to remedy such
situations. See Massachusetts Citizens for Life, 479 U.S. at 265 (we may
"curtail speech only to the degree necessary to meet the particular problem
at hand"); Day, 34 F.3d at 1366.
In considering whether the Proposition A limits are narrowly
tailored, we must also recognize that the limits were not adopted in a
vacuum. The question is not simply that of some limits or none at all, but
rather Proposition A as compared to those in Senate Bill 650, which was to
become effective January 1, 1995.
10
The ACORN amicus brief also argues that the Proposition A
limits are necessary and narrowly tailored, citing the Dewey Crump
and William Webster scandals. Dewey Crump was a Missouri State
Representative accused of sponsoring legislation in exchange for
kickbacks. William Webster was Missouri's Attorney General who
pleaded guilty to a charge of conspiracy to misuse state property.
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The Proposition A limits are only ten to twenty percent of the higher
limits in Senate Bill 650.11 The State produced no evidence as to why the
Proposition A limits of $100, $200, and $300 were selected. Further, the
State presented no evidence to demonstrate that the limits were narrowly
tailored to combat corruption or the appearance of corruption associated
with large campaign contributions. See Buckley, 424 U.S. at 25. The
record is barren of any evidence of a harm or disease that needed to be
addressed between the limits of Senate Bill 650 and those enacted in
Proposition A. See National Treasury Employees Union, 115 S. Ct. at 1017.
11
On an election cycle basis, the contribution limits contained
in Proposition A and Senate Bill 650 compare as follows:
Percentage
Senate Proposition of Senate
Office Bill 650 A Bill 650
Statewide Races $2,000a $300b 15%
c d
State Senator $1,000 $200 20%
State Representative $500e $100f 20%
Other Races:
Less Than 100,000 Pop. $500g $100h 20%
100,000 to 250,000 Pop. $1,000i $200j 20%
k l
More Than 250,000 Pop. $2,000 $200 10%
a
Mo. Rev. Stat. § 130.032.1(1).
b
Mo. Ann. Stat. § 130.100(3).
c
Mo. Rev. Stat. § 130.032.1(2).
d
Mo. Ann. Stat. § 130.100(2). Missouri State Senate
districts consist of approximately 150,000 people.
1995-96 State of Missouri Official Manual, at 123.
e
Mo. Rev. Stat. § 130.032.1(3).
f
Mo. Ann. Stat. § 130.100(1)(a). Missouri State
Representative districts consist of approximately 30,000-
33,000 people. 1995-96 State of Missouri Official
Manual, at 184-85.
g
Mo. Rev. Stat. § 130.032.1(4).
h
Mo. Ann. Stat. § 130.100(1)(a).
i
Mo. Rev. Stat. § 130.032.1(5).
j
Mo. Ann. Stat. § 130.100(2).
k
Mo. Rev. Stat. § 130.032.1(6).
l
Mo. Ann. Stat. § 130.100(2).
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In ruling that the contribution limits in Buckley were narrowly
tailored, the Supreme Court pointed out that only about five percent of the
contributors in the 1974 election gave more than the $1,000 limit.
Buckley, 424 U.S. at 21 n.23. The State's own evidence shows that a much
higher percentage of contributors will be impacted by the limits in
Proposition A. At trial, the State presented exhibits showing
contributions made in past races for Auditor, State Senate and State
Representative.12 According to the State's exhibits, in the 1994 Auditor's
race, 19.5 percent of the contributors gave more than the $300 Proposition
A limit, but less than the $1,000 Senate Bill 650 limit.13 In the State
Senate race, 21.6 percent of the contributors gave more than the $200
Proposition A limit, but less than the $1,000 Senate Bill 650 limit on an
election cycle basis.14 In the State Representative race, 19.0 percent of
the contributors gave more than the $100
12
The races were (1) the 1994 State Auditor's race, (2) the
1992 Twenty-Seventh District State Senate race, and (3) the 1992
Tenth District Missouri House of Representatives race. The State
selected these sample races because they were among the races with
the highest contributions.
13
19.5 percent is actually too low because the State's exhibit
is based on the $1,000 per election limit in Senate Bill 650, and
not the $2,000 limit per election cycle. The State's exhibit
failed to show the actual number of contributors giving more than
the $300 Proposition A limit but less than the $2,000 election
cycle limit in Senate Bill 650. The State's exhibit showed that
19.5 percent of the contributions were between $301 and $1,000, and
8.0 percent were more than $1,000. The exhibit does not indicate
what percent of the contributions over $1,000 should also be
included as being within the $2,000 Senate Bill 650 election cycle
limit. While the percentage is undoubtedly higher than the 19.5
percent set out above, the precise amount is not shown.
14
This is the only race where the exact percentage of
contributors giving more than the Proposition A limit but less than
the Senate Bill 650 limit on an election cycle basis may be
determined from the data presented by the State.
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Proposition A limit, but less than the $250 Senate Bill 650 limit.15
Further, the State's exhibits show that 27.5 percent of the
contributors in the 1994 Auditor's race gave more than the $300 Proposition
A limits. In the State Senate race, 23.7 percent of the contributors gave
more than the $200 Proposition A limit. Finally, in the State
Representative race, 35.6 percent of the contributors gave more than the
$100 Proposition A limit.
The State made no showing as to why it was necessary to adopt the
lowest contribution limits in the nation and restrict the First Amendment
rights of so many contributors in order to prevent corruption or the
appearance of corruption associated with large campaign contributions.
Proposition A substantially limits Carver's ability to contribute to
candidates and will have a considerable impact on many contributors besides
Carver. The State simply argues that limits which are nearly four times
as restrictive as the limits approved in Buckley are narrowly tailored.
The State argues we may not fine tune the specific dollar amount of the
limits, but fails to demonstrate that the Proposition A limits are not a
"difference in kind." See Kusper, 414 U.S. at 61 (overturning an
enrollment requirement approximately three times longer than that approved
by the Court in Rosario). We hold that the Proposition A limits amount to
a difference in kind from the limits in Buckley. The limits are not
closely drawn to reduce corruption or the appearance of corruption
associated with
15
Again, the State's calculation is based on the $250 per
election limit in Senate Bill 650, and not on the $500 limit per
election cycle. The State's exhibit showed that 19.0 percent of
the contributions were between $101 and $250, 15.7 percent were
between $251 an $1,000, and 0.9% were more than $1,000. We have no
way of knowing what portion of the contributions between $251 and
$1,000 fell below the $500 limit per election cycle. Undoubtedly,
some of these contributions should be included as between the
Proposition A and Senate Bill 650 limits.
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large campaign contributions. Thus, the State has failed to carry its
burden of demonstrating that Proposition A will alleviate the harms in a
direct and material way, Turner Broadcasting System, 114 S. Ct. at 2470,
or is closely drawn to avoid unnecessary abridgement of associational
freedoms, Buckley, 424 U.S. at 25. Accordingly, we conclude that the
Proposition A contribution limits unconstitutionally burden the First
Amendment rights of association and expression.
IV.
The State argues from Turner Broadcasting System, 114 S. Ct. at 2471,
that we "must accord substantial deference to the predictive judgments" of
the legislature. The Court explained the deference accorded to
congressional action is limited to assuring that "in formulating its
judgments, Congress has drawn reasonable inferences based on substantial
evidence." Id. The State argues that we must accord this same deference
to Proposition A adopted through the initiative process by the citizens of
Missouri.
There are two obstacles in the path of the State's argument. First,
as we have observed before, the voters may no more violate the Constitution
than the legislature. Citizens Against Rent Control, 454 U.S. at 295.
Second, the deference to legislative enactments recognized in Turner
Broadcasting System, 114 S. Ct. at 2471, requires that courts ascertain
that the legislative body "has drawn reasonable inferences based on
substantial evidence."
There is simply no evidence in the record identifying the source of
Proposition A, whether it was an individual or group,16
16
Only the amicus briefs identify the sponsors and participants
in the initiative campaign for Proposition A. These include
Missourians for Campaign Finance Reform, a coalition composed of
the Missouri Public Interest Research Group, ACORN, the Missouri
League of Women Voters, and United We Stand - Missouri.
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the process of its development, nor the reasons for the particular dollar
limits.17 Further, there is no evidence of the details of the campaign
waged in support of the initiative. There is, simply put, a failure of
proof as to any of the facts Turner Broadcasting System would require that
we consider to justify according deference.
Whether the deference Turner Broadcasting System requires for acts
of Congress extends to the acts of the state legislative body is an issue
not before us to decide. Legislative bodies consist of elected
representatives sworn to be bound by the United States Constitution, and
their legislative product is subject to veto by the elected executive,
either President or Governor. The process of enactment, while perhaps not
always perfect, includes deliberation and an opportunity for compromise and
amendment,18 and usually committee studies and hearings. These are
substantial reasons for according deference to legislative enactments that
do not exist with respect to proposals adopted by initiative. On the
evidentiary showing before us, there is no justification to accord
Proposition A the deference that Turner Broadcasting System requires for
congressional action. See Yniguez v. Arizonans for Official English, Nos.
92-17087, 93-15061, 93-15719, 1995 WL 583414, at *21 (9th Cir. Oct. 5,
1995) (en banc) (noting ballot initiative lacked legislative findings and
was not subjected to extensive hearings or analysis).
17
Proposition A differs from the initiative procedures in some
states, which either require or permit the ballot materials
describing the proposition to include a statement of the purposes
and reasons for the enactment. There was no such statement with
respect to Proposition A.
18
Indeed the process of enactment of Senate Bill 650
demonstrates the back and forth action of both the House and the
Senate, and considerable effort to achieve a conference substitute
agreeable to both bodies.
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V.
In conclusion, we hold that the campaign contribution limits in
Proposition A, Mo. Ann. Stat. § 130.100, are not narrowly tailored to meet
the compelling state interest of limiting the influence of corruption
associated with large campaign contributions, and is, therefore,
unconstitutional. We reverse the decision of the district court and remand
the case to the district court for the entry of judgment permanently
enjoining the State and the Missouri Ethics Commission from implementing,
enforcing, or acting in reliance upon section 130.100.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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