Phil Thalheimer v. City of San Diego ( 2011 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PHIL THALHEIMER; ASSOCIATED 
BUILDERS & CONTRACTORS PAC,
sponsored by Associated Builders
& Contractors, Inc. San Diego
Chapter; LINCOLN CLUB OF SAN No. 10-55322
DIEGO COUNTY; REPUBLICAN
PARTY OF SAN DIEGO; JOHN  D.C. No.
3:09-cv-02862-IEG-
NIENSTEDT, SR.,
WMC
Plaintiffs-Appellees,
v.
CITY OF SAN DIEGO,
Defendant-Appellant.

PHIL THALHEIMER; ASSOCIATED 
BUILDERS & CONTRACTORS PAC,
sponsored by Associated Builders
& Contractors, Inc. San Diego
Chapter; LINCOLN CLUB OF SAN No. 10-55324
DIEGO COUNTY; REPUBLICAN
PARTY OF SAN DIEGO; JOHN  D.C. No.
3:09-cv-02862-IEG-
NIENSTEDT, SR.,
WMC
Plaintiffs-Appellees,
v.
CITY OF SAN DIEGO,
Defendant-Appellant.

8067
8068 THALHEIMER v. SAN DIEGO
PHIL THALHEIMER; ASSOCIATED 
BUILDERS & CONTRACTORS PAC,
sponsored by Associated Builders
& Contractors, Inc. San Diego
No. 10-55434
Chapter; LINCOLN CLUB OF SAN
DIEGO COUNTY; REPUBLICAN D.C. No.
PARTY OF SAN DIEGO; JOHN  3:09-cv-02862-IEG-
NIENSTEDT, SR., WMC
Plaintiffs-Appellants, OPINION
v.
CITY OF SAN DIEGO,
Defendant-Appellee.

Appeal from the United States District Court
for the Southern District of California
Irma E. Gonzalez, Chief District Judge, Presiding
Argued and Submitted
October 4, 2010—Pasadena, California
Filed June 9, 2011
Before: Kim McLane Wardlaw and William A. Fletcher,
Circuit Judges, and Robert J. Timlin,
Senior District Judge.*
Opinion by Judge Wardlaw
*The Honorable Robert J. Timlin, Senior United States District Judge
for the Central District of California, sitting by designation.
8072 THALHEIMER v. SAN DIEGO
COUNSEL
Richard L. Hasen (argued); Dick A. Semerdjian, Schwartz
Semerdjian Haile Ballard & Cauley LLP, San Diego, Califor-
nia, for the defendant-appellant.
James Bopp, Jr. (argued), Anita Y. Woudenberg, and Joseph
E. La Rue, Bopp, Coleson & Bostrom, Terre Haute, Indiana;
Gary D. Leasure, Law Offices of Gary D. Leasure, San
Diego, California, for the plaintiffs-appellees.
J. Gerald Hebert, Tara Malloy, Paul S. Ryan, The Campaign
Legal Center, Washington, DC, for the amici curiae Cam-
paign Legal Center, Center for Governmental Studies, and
Common Cause.
David Blair-Loy, ACLU Foundation of San Diego & Imperial
Counties, San Diego, California, for the amicus curiae Ameri-
can Civil Liberties Union of San Diego & Imperial Counties.
OPINION
WARDLAW, Circuit Judge:
The modern era of campaign finance reform began in 1972,
following the infamous break-in at the Watergate hotel. Con-
gress responded to the ensuing scandal by overhauling the
Federal Election Campaign Act to impose new caps on politi-
THALHEIMER v. SAN DIEGO 8073
cal spending, as states and cities followed suit with laws of
their own. The City of San Diego (the “City”) enacted its
Municipal Election Campaign Control Ordinance (“ECCO”)
in 1973. See San Diego, Cal., Municipal Code ch. 2, art. 7,
div. 29. Then, in Buckley v. Valeo, 424 U.S. 1, 14 (1976), the
Supreme Court held that campaign finance regulations “oper-
ate in an area of the most fundamental First Amendment
activities.” The crucial constitutional distinction, according to
the Buckley Court, was between limitations on campaign
expenditures and campaign contributions. The Court reasoned
that expenditure limits “represent substantial rather than
merely theoretical restraints on the quantity and diversity of
political speech,” while contribution limits “entail[ ] only a
marginal restriction upon the contributor’s ability to engage in
free communication.” Id. at 19-20. Since Buckley, the
Supreme Court has considered numerous laws that regulate
the flow of political money. Some have been upheld, others
struck down. But in each case the Court’s analysis continued
to build upon the familiar Buckley distinction.
Recent Supreme Court decisions, notably Citizens United v.
FEC, 130 S. Ct. 876 (2010), have once again placed the con-
stitutionality of campaign finance reform in flux, inspiring
new challenges to election laws across the country. This is
one such case. Plaintiffs mount a First Amendment challenge
to San Diego’s campaign finance laws. The district court con-
sidered the constitutionality of five provisions and generally
upheld the City’s pure contribution limits, but enjoined a pro-
vision that restricts both the fundraising and spending of inde-
pendent political committees. The district court correctly
recognized that even as the campaign finance reform land-
scape has shifted, nearly four decades after the Watergate
break-in Buckley’s expenditure-contribution distinction con-
tinues to frame the constitutional analysis of campaign
finance regulations. Because the district court properly
applied the applicable preliminary injunction standard in the
context of the presently discernible rules governing campaign
finance restrictions, we affirm.
8074 THALHEIMER v. SAN DIEGO
I. FACTUAL AND PROCEDURAL BACKGROUND
ECCO is a comprehensive law governing all aspects of
campaign finance in San Diego city elections. Plaintiffs Phil
Thalheimer, a former and future city council candidate; ABC
PAC, a political action committee for the Associated Builders
and Contractors San Diego chapter; the Lincoln Club, a regis-
tered political action committee; the San Diego County
Republican Party, the local branch of the national Party; and
John Nienstedt, a San Diego resident who regularly contrib-
utes to local candidates and political committees, sued to
enjoin enforcement of five ECCO provisions they claim vio-
late their respective First Amendment rights, facially and as
applied. Plaintiffs filed a verified complaint seeking a prelimi-
nary injunction to block enforcement of the challenged ECCO
provisions before trial, a time period they noted would likely
encompass at least two municipal elections: San Diego’s June
8, 2010 primary, and the November 2, 2010 general election.
Plaintiffs challenged ECCO § 27.2936, which restricts the
fundraising and spending of political committees, § 27.2938,
which imposes a ban on contributions to candidates outside of
a 12-month pre-election window, §§ 27.2950-51, which pro-
hibit contributions by any non-individual entities, and
§ 27.2935, which imposes a $500 limit for contributions to
candidates and committees supporting or opposing a candi-
date.
ECCO § 27.2936 applies to “general purpose recipient
committees,” defined elsewhere in the ordinance as commit-
tees “not controlled by a candidate” that receive $1,000 or
more in annual donations for the purpose of supporting or
opposing candidates or ballot measures. Id. at § 27.2903.
Such committees may not “use a contribution for the purpose
of supporting or opposing a candidate unless the contribution
is attributable to an individual in an amount that does not
exceed $500 per candidate per election.” Id. at § 27.2936(b).
The law applies only to contributions made with the specific
THALHEIMER v. SAN DIEGO 8075
purpose of participation in municipal elections, thus excluding
“dues, donations, fees, or other forms of monetary transac-
tions” from its scope. Id. at § 27.2936(f). The specific dollar
amount of the limits are adjusted every two years based on the
Consumer Price Index. Id. at § 27.2937(a).
The temporal limit, ECCO § 27.2938, makes it unlawful for
any candidate or candidate-controlled political committee “to
solicit or accept contributions prior to the twelve months pre-
ceding the primary election for the office sought.” Id. at
§ 27.2938(a). The San Diego Ethics Commission has inter-
preted this provision as also preventing candidates from
spending their own money on their campaigns outside of the
12-month window.
The organizational contribution limit, ECCO § 27.2950,
prohibits “any person other than an individual” from contrib-
uting to a candidate or candidate-controlled committee. Id. at
§ 27.2950(a). The ordinance defines “person” as including
“any individual, proprietorship, firm, partnership, joint ven-
ture, syndicate, business trust, company, corporation, associa-
tion, committee, labor union, or any other organization or
group of persons acting in concert.” Id. at § 27.2903. The
effect of the provision is to bar contributions to candidates
from all organizations and other non-individual entities.
ECCO § 27.2951 underscores the prohibition by making it
unlawful for candidates to accept contributions drawn against
checking or credit card accounts “unless such account belongs
to one or more individuals in their individual capacity.” Id. at
§ 27.2951(a).1
1
Since the district court entered its order, the City enacted a new law
allowing political parties to contribute up to $1,000 per election to candi-
dates in municipal elections. Plaintiffs challenged the new provision in a
separate action and sought a preliminary injunction against enforcement
pending trial, which the district court denied. The constitutionality of this
new provision is not before us.
8076 THALHEIMER v. SAN DIEGO
On February 16, the district court preliminarily enjoined
enforcement of ECCO § 27.2936, the committee fund-
raising/spending limit, but held that Plaintiffs were unlikely to
succeed in their First Amendment challenge to the temporal
contribution ban, § 27.2938, except as to the San Diego Ethics
Commission’s enforcement position that the temporal ban
may prohibit candidates’ spending their own money on their
behalf. As to the non-individual contribution limits,
§§ 27.2950 and 27.2951, the district court concluded that
Plaintiffs were unlikely to succeed in their claim that the laws
are unconstitutional as applied generally to corporations and
other organizational entities, but enjoined the provisions as
applied to political parties. The district court also concluded
that Plaintiffs were unlikely to succeed in challenging ECCO
§ 27.2935, the City’s $500 individual contribution limit.
Plaintiffs do not appeal this portion of the ruling.
In a February 22 order, the district court clarified that its
preliminary injunction against enforcement of § 27.2936, the
committee fundraising and spending limit, applied to commit-
tees that make only independent expenditures, and covered
contributions made by both individuals and non-individual
entities. The district court also granted in part Plaintiffs’
request for an injunction against § 27.2951, the limit on con-
tributions drawn against non-individual entities’ credit card
and checking accounts, to the extent that it barred contribu-
tions drawn against organizational accounts to committees
that make only independent expenditures. These cross-appeals
ensued.
II. JURISDICTION AND STANDARD OF REVIEW
The district court had jurisdiction pursuant to 28 U.S.C.
§ 1331. We have jurisdiction under 28 U.S.C. § 1292(a)(1).
We review a district court’s decision to grant or deny a pre-
liminary injunction for abuse of discretion. See Dominguez v.
Schwarzenegger, 596 F.3d 1087, 1092 (9th Cir. 2010). We
review conclusions of law de novo, and findings of fact for
THALHEIMER v. SAN DIEGO 8077
clear error. Id. “Under this standard, [a]s long as the district
court got the law right, it will not be reversed simply because
the appellate court would have arrived at a different result if
it had applied the law to the facts of the case.” Id. (quotations
omitted). “This review is ‘limited and deferential,’ and it does
not extend to the underlying merits of the case.” Johnson v.
Couturier, 572 F.3d 1067, 1078 (9th Cir. 2009) (quoting Am.
Trucking Ass’ns v. City of Los Angeles, 559 F.3d 1046, 1052
(9th Cir. 2009)).
III. DISCUSSION
“A plaintiff seeking a preliminary injunction must establish
that he is likely to succeed on the merits, that he is likely to
suffer irreparable harm in the absence of preliminary relief,
that the balance of equities tips in his favor, and that an
injunction is in the public interest.” Winter v. NRDC, 555 U.S.
7, 24-25 (2008); see also Stormans, Inc. v. Selecky, 586 F.3d
1109, 1126-27 (9th Cir. 2009). The district court analyzed
whether Plaintiffs were likely to prevail in challenging each
ECCO provision. It properly considered the remaining Winter
elements only as to claims it concluded were meritorious. See
Advertise.com, Inc. v. AOL Advertising, Inc., 616 F.3d 974,
982 (9th Cir. 2010).
Courts asked to issue preliminary injunctions based on First
Amendment grounds face an inherent tension: the moving
party bears the burden of showing likely success on the merits
— a high burden if the injunction changes the status quo
before trial — and yet within that merits determination the
government bears the burden of justifying its speech-
restrictive law. Compare Mazurek v. Armstrong, 520 U.S.
968, 972 (1997), with United States v. Playboy Entm’t Group,
529 U.S. 803, 816 (2000). In Gonzales v. O Centro Espirita
Beneficente Uniao do Vegetal, 546 U.S. 418, 423 (2006), the
district court had entered a preliminary injunction to prevent
the government from enforcing the Controlled Substances Act
against a religious sect that used sacramental hallucinogenic
8078 THALHEIMER v. SAN DIEGO
tea. The district court applied the “compelling interest test”
from the Religious Freedom Restoration Act of 1993 (RFRA),
which, like the First Amendment strict scrutiny standard,
places the burden on the government to demonstrate that a
law burdening religious exercise is the least restrictive means
of furthering a compelling state interest. Id. at 424. Finding
that the evidence presented by the parties was “in equipoise,”
the district court concluded that the government failed to
carry its burden and the sect was likely to succeed on the mer-
its, and the Tenth Circuit agreed. Id. at 426-27.
The Supreme Court affirmed, reasoning that the burden of
proof at the preliminary injunction phase tracks the burden of
proof at trial, and therefore “RFRA challenges should be adju-
dicated in the same manner as constitutionally mandated
applications of the test, including at the preliminary injunction
stage.” Id. at 430. The Court relied on its earlier decision in
Ashcroft v. ACLU, 542 U.S. 656 (2004), in which it affirmed
a preliminary injunction against enforcement of the Child
Online Protection Act (COPA) on First Amendment grounds.
The Ashcroft Court explained the burden of proof at the pre-
liminary injunction stage:
In deciding whether to grant a preliminary injunc-
tion, a district court must consider whether the plain-
tiffs have demonstrated that they are likely to prevail
on the merits . . . . As the Government bears the bur-
den of proof on the ultimate question of COPA’s
constitutionality, respondents must be deemed likely
to prevail unless the Government has shown that
respondents’ proposed less restrictive alternatives
are less effective than COPA.
Id. at 666 (internal citations omitted).
[1] Therefore, in the First Amendment context, the moving
party bears the initial burden of making a colorable claim that
its First Amendment rights have been infringed, or are threat-
THALHEIMER v. SAN DIEGO 8079
ened with infringement, at which point the burden shifts to the
government to justify the restriction. See also Klein v. City of
San Clemente, 584 F.3d 1196, 1201 (9th Cir. 2009) (explain-
ing that the party seeking a preliminary injunction “has the
general burden of establishing the elements necessary to
obtain injunctive relief, [and] the city has the burden of justi-
fying the restriction on speech”).
A verified complaint may be treated as an affidavit, and, as
such, it is evidence that may support injunctive relief. See Lew
v. Kona Hosp., 754 F.2d 1420, 1423 (9th Cir. 1985); Ross-
Whitney Corp. v. Smith Kline & French Labs., 207 F.2d 190,
198 (9th Cir. 1953). According to Plaintiffs’ verified com-
plaint, Thalheimer, the former San Diego City Council candi-
date mulling another run for office, has created a campaign
committee and would begin soliciting and accepting contribu-
tions now, but cannot because ECCO § 27.2938 prohibits
such activity before the 12-month window. Thalheimer would
also like to solicit, accept and use donations from organiza-
tional entities, but cannot because of ECCO § 27.2950’s pro-
hibition on contributions from non-individuals. He also
intends to solicit contributions from individuals who own
firms as sole proprietors and commingle their personal and
business funds, but he cannot accept money from their busi-
ness checking accounts or credit cards under ECCO
§ 27.2951.
Plaintiffs also presented evidence that the ABC PAC and
the Lincoln Club, which receive contributions of over $500
from donors, including trusts, corporations and other business
associations, would like to use such funds on independent
expenditures, but are prohibited from doing so by ECCO
§ 27.2936. Similarly, the San Diego County Republican Party
was prohibited from making direct contributions to local can-
didates by ECCO § 27.2950, which bars organizations from
contributing to candidates’ campaigns. And finally, Plaintiff
Nienstedt declared that he would like to contribute money
now to a candidate in a primary that is more than a year away,
8080 THALHEIMER v. SAN DIEGO
but is prohibited from doing so by ECCO § 27.2938’s tempo-
ral limitations.
The City argues that this evidence is insufficient to make
out a colorable First Amendment claim, relying on Citizens
for Clean Gov’t v. City of San Diego, 474 F.3d 647 (9th Cir.
2007) (“Citizens for Clean Gov’t”), for the general proposi-
tion that courts require particularly strong factual showings to
resolve campaign finance disputes. There, Citizens for Clean
Government (Citizens), a political committee, was established
to advocate the recall of a city council member. The group
challenged a provision of San Diego’s campaign finance law
— since repealed — that limited contributions to committees
supporting or opposing candidates to $250. Id. at 649-50. Citi-
zens argued that the law violated the First Amendment as
applied to the signature-gathering phase of an election held to
recall a sitting council member. Id. at 649. The district court
denied Citizens’ request for a preliminary injunction, we
affirmed that decision, and the parties stipulated to a final
judgment in favor of the City. Id. at 650. We then reversed
that judgment, concluding that the City had failed to present
evidence demonstrating that it had a sufficiently important
governmental interest to justify its law in the context of the
signature-gathering phase of a recall election. Id.[2] Our conclusion in Citizens for Clean Gov’t that the
City, rather than the Plaintiffs, failed to produce sufficient
evidence, underscores the special constitutional burden placed
on the government to justify a law that restricts political
speech. See id. at 653-54. Moreover, the present appeal
involves a preliminary injunction and therefore we are bound
by the deferential abuse of discretion standard of review. By
contrast, in Citizens for Clean Gov’t we conducted a de novo
review of a final judgment. Id. at 650 (“Because this appeal
relates to a permanent injunction, we are not constrained by
the more limited standard of review that applied at the prelim-
inary injunction phase of this litigation.”). We therefore con-
clude that the district court applied the correct preliminary
THALHEIMER v. SAN DIEGO 8081
injunction standard, and properly shifted the burden to the
City to justify the ECCO provisions under review.
A. Likelihood of Success on the Merits
1. ECCO § 27.2936: Contribution/Expenditure Limit
for Committees
The Buckley Court established that laws limiting campaign
expenditures are subject to strict scrutiny, but restrictions on
contributions to candidates are judged under a lesser standard.
424 U.S. at 20. The Court reasoned that contribution limita-
tions are less substantial restraints on individuals’ political
communication than expenditure limitations. Id. at 21. The
Buckley Court also found a stronger governmental interest in
regulating contributions than independent spending, because
“the absence of prearrangement and coordination of an expen-
diture with the candidate or his agent not only undermines the
value of the expenditure to the candidate, but also alleviates
the danger that expenditures will be given as a quid pro quo
for improper commitments from the candidate.” Id. at 47.
The strict scrutiny standard of review for limitations on
expenditures requires the government to prove that a law is
narrowly tailored to further a compelling governmental inter-
est. See Citizens United, 130 S. Ct. at 898. Contribution lim-
its, on the other hand, need only be “closely drawn” to match
a sufficiently important interest to survive a constitutional
challenge. See Randall v. Sorrell, 548 U.S. 230, 247 (2006)
(plurality opinion).
ECCO § 27.2936(b) makes it unlawful for a “general pur-
pose recipient committee” — including independent commit-
tees that do not coordinate with candidates — “to use a
contribution for the purpose of supporting or opposing a can-
didate unless the contribution is attributable to an individual
in an amount that does not exceed $500 per candidate per
election.” Therefore, the provision is plausibly read as both a
8082 THALHEIMER v. SAN DIEGO
contribution limit, and an expenditure limit. Although the par-
ties dispute the applicable level of scrutiny, we find it unnec-
essary to place the provision in one category or the other
because Plaintiffs are likely to succeed in demonstrating the
law to be unconstitutional under either standard. See Long
Beach Area Chamber of Commerce v. City of Long Beach,
603 F.3d 684, 692-93 (9th Cir. 2010) (explaining that while
a similar law was “not subject to easy classification as a con-
tribution limitation or an expenditure limitation,” resolving
the issue was unnecessary because the law “does not with-
stand scrutiny under the constitutional standards applicable to
either type of campaign finance regulation”).
[3] “The Supreme Court has concluded that ‘preventing
corruption or the appearance of corruption are the only legiti-
mate and compelling government interests thus far identified
for restricting campaign finances.’ ” Id. at 694 (quoting FEC
v. Nat’l Conservative Political Action Comm., 470 U.S. 480,
496-97 (1985)); see also Davis v. FEC, 554 U.S. 724, 741
(2008).2 Accordingly, the City asserts only an anti-corruption
interest to support ECCO § 27.2936’s limitation on the spend-
ing and fundraising of independent committees. However, as
the district court correctly determined, the Supreme Court has
found the anti-corruption interest unavailing in the context of
restrictions on independent expenditures, most recently in Cit-
izens United.
In Citizens United, the Court considered the constitutional-
ity of a federal law restricting corporate and union spending
on “electioneering communications,” defined as broadcasts
aired in the run-up to an election that support or oppose a
2
The Supreme Court has recognized that other governmental interests
may legitimately support campaign finance regulations that do not directly
limit contributions or expenditures. See Buckley, 424 U.S. at 66-67 (hold-
ing that providing information to the electorate is a sufficiently important
state interest to justify campaign finance disclosure laws); see also Human
Life of Washington Inc. v. Brumsickle, 624 F.3d 990, 1005-06 (9th Cir.
2010).
THALHEIMER v. SAN DIEGO 8083
political candidate. 130 S. Ct. at 886-87. Citizens United, a
nonprofit corporation, challenged the law because it feared
sanctions for broadcasting via video-on-demand services a
documentary critical of then-Senator Hillary Clinton during
the 2008 presidential primary season. Id. at 887-88. The Court
had recently upheld limits on electioneering communications
in McConnell v. FEC, 540 U.S. 93, 203-09 (2003). That deci-
sion relied in part on Austin v. Michigan Chamber of Com-
merce, 494 U.S. 652, 658-59 (1990), in which the Court held
that due to the “unique legal and economic characteristics of
corporations,” the government could restrict corporate politi-
cal spending in order to prevent the distortion of the political
process.
[4] The Citizens United Court overruled Austin and the rel-
evant portion of McConnell, holding that the anti-distortion
rationale was not a valid governmental interest, and that “the
Government may not suppress political speech on the basis of
the speaker’s corporate identity.” Citizens United, 130 S. Ct.
at 913. The Court also rejected the Government’s argument
that the law limiting spending on electioneering communica-
tions could be justified by an anti-corruption interest. It rea-
soned that the “ ‘absence of prearrangement and coordination
of an expenditure with the candidate or his agent not only
undermines the value of the expenditure to the candidate, but
also alleviates the danger that expenditures will be given as a
quid pro quo for improper commitments from the candi-
date.’ ” Id. at 908 (quoting Buckley, 424 U.S. at 47). The
Court stated that restricting independent expenditures on
political speech has “a chilling effect extending well beyond
the Government’s interest in preventing quid pro quo corrup-
tion. The anti-corruption interest is not sufficient to displace
the speech here in question.” Id. at 908.
We applied Citizens United to a campaign regulation simi-
lar to the City’s in Long Beach. There we considered the con-
stitutionality of the Long Beach Campaign Reform Act
(LBCRA) as applied to political action committees affiliated
8084 THALHEIMER v. SAN DIEGO
with the Long Beach Area Chamber of Commerce. 603 F.3d
at 687. LBCRA stated that “ ‘[a]ny person who makes inde-
pendent expenditures supporting or opposing a candidate shall
not accept any contribution’ in excess of $350 to $650,
depending upon the office for which the candidate is run-
ning.” Id. (quoting Long Beach, Cal., Ordinances §§ 2.01.310,
2.01.610). The term “person” was defined to include political
committees. Id. The city of Long Beach offered an anti-
corruption rationale to justify the law, which had the stated
purpose of “ ‘reduc[ing] the influence of large contributors
with a specific financial stake in matters before the City
Council, thus countering the perception that decisions are
influenced more by the size of contributions than the best
interests of the people of the City.’ ” Id. at 694 (quoting Long
Beach, Cal., Ordinances § 2.01.130(B)).
[5] We concluded that the Citizens United decision had
narrowed the scope of the anti-corruption rationale to cover
“quid pro quo corruption only, as opposed to money spent to
obtain ‘influence over or access to elected officials.’ ” Id. at
694 n.5 (quoting Citizens United, 130 S. Ct. at 910). There-
fore, we held that the anti-corruption rationale failed to justify
LBCRA’s limitation on the receipt of contributions to support
independent expenditures. Id. at 698-99. Other circuits have
similarly read Citizens United as foreclosing the anti-
corruption interest in the context of independent expenditures.
See, e.g., SpeechNow.org v. FEC, 599 F.3d 686, 694-95 (D.C.
Cir. 2010) (asserting that Citizens United held “as a matter of
law that independent expenditures do not corrupt or create the
appearance of quid pro quo corruption,” and thus “contribu-
tions to groups that make only independent expenditures also
cannot corrupt or create the appearance of corruption”).
The City argues that while Citizens United partially over-
ruled McConnell, the Court left intact a portion of the earlier
decision upholding a limitation on how committees spend cer-
tain contributions. McConnell involved a constitutional chal-
lenge to the Bipartisan Campaign Reform Act of 2002
THALHEIMER v. SAN DIEGO 8085
(BCRA), which amended the Federal Election Campaign Act
(FECA) to add restrictions on the use of “soft money,” or con-
tributions made “to political parties for activities intended to
influence state or local elections.” 540 U.S. at 123. Congress
sought to limit the parties’ increasing use of soft money on
federal campaigns by “prohibit[ing] national party committees
and their agents from soliciting, receiving, directing, or
spending any soft money,” and preventing state party commit-
tees from using soft money on federal election activities. Id.
at 133-34.
The McConnell Court held that these provisions “simply
limit the source and individual amount of donations. That they
do so by prohibiting the spending of soft money does not ren-
der them expenditure limitations.” Id. at 139. In upholding the
provisions, the Court rejected the argument that the anti-
corruption interest was insufficient because the parties could
use the contributions to make independent expenditures. Id. at
152. Given the “close connection and alignment of interests”
between federal officeholders and candidates and the national
political parties, the Court held that “large soft-money contri-
butions to national parties are likely to create actual or appar-
ent indebtedness on the part of federal officeholders,
regardless of how those funds are ultimately used.” Id. at 155.
Similarly, in California Medical Association v. FEC, 453
U.S. 182, 197-98 (1981) (“CalMed”), the Supreme Court
relied on an anti-corruption interest to uphold limitations on
contributions to “multicandidate political committees.” The
nonprofit California Medical Association (CMA) had formed
the California Medical Political Action Committee (CalPAC),
a registered political committee. Id. at 185. The FEC sanc-
tioned the CMA for making contributions to CalPAC in
excess of statutory limits, prompting the organizations to file
a lawsuit challenging those limitations on First Amendment
grounds. Id. at 186.
The CalMed Court explained that multi-candidate political
committees may be formed independently of officeholders or
8086 THALHEIMER v. SAN DIEGO
candidates, but by definition they contribute directly to five or
more candidates for federal office. Id. at 185 n.1. It concluded
that this direct donor relationship presented a risk of actual or
apparent quid pro quo corruption. Id. at 197. Moreover, the
Court noted that donors could exploit the structure of a multi-
candidate PAC to evade individual candidate contribution
limits. Id. at 198. Therefore, it upheld the limitation on contri-
butions to these committees — regardless of how the commit-
tees ultimately spent the donations — as “an appropriate
means by which Congress could seek to protect the integrity
of the contribution restrictions upheld by this Court in Buck-
ley.” Id.The City contends that this line of authority remains good
law, and that it establishes that “contributions to independent
groups do have the potential to corrupt.” We rejected a similar
argument in Long Beach. We explained that in McConnell,
the Supreme Court “upheld limitations on contributions to
political parties because ‘the close relationship between fed-
eral officeholders and the national parties, as well as the
means by which parties have traded on that relationship’ ”
raised the same concerns about quid pro quo corruption that
exist with candidate contributions but not with independent
expenditures. Long Beach, 603 F.3d at 696 (quoting McCon-
nell, 540 U.S. at 154-55). We likewise distinguished CalMed,
because there the Court concluded that the multi-candidate
political committees had a “close relationship with candidates
and office holders [that] made them ‘conduits for contribu-
tions to candidates, and as such they pose[d] a perceived
threat of actual or potential corruption.’ ” Id. (quoting
CalMed, 453 U.S. at 203 (Blackmun, J., concurring in part
and concurring in the judgment)).
We therefore determined in Long Beach that the contribu-
tion limits in McConnell and CalMed were justified by an
anti-corruption interest because the regulated entities had
unusually close relationships with the candidates they sup-
ported. “[T]he need for contribution limitations to combat
THALHEIMER v. SAN DIEGO 8087
corruption or the appearance thereof tends to decrease as the
link between the candidate and the regulated entity becomes
more attenuated.” Long Beach, 603 F.3d at 696. Like the
Chamber of Commerce PACs in Long Beach, here the ABA
PAC and the Lincoln Club have indirect relationships with
candidates. They lack the direct donor relationship that is the
defining feature of a multi-candidate committee, or the histor-
ical interconnection with candidates that distinguishes politi-
cal parties.
[6] The City’s attempts to distinguish Long Beach are
unpersuasive. It notes that while Long Beach prohibited
groups from making any independent expenditures if their
dues exceeded the contribution limit, San Diego’s law allows
organizations to collect membership fees without counting the
dues as political contributions. This is a legally significant
distinction between the San Diego and Long Beach laws, but
the distinction is relevant only to the level of scrutiny and tail-
oring analyses. That distinction does not, however, change the
decisive point here, which is that the City lacks a sufficiently
important governmental interest to justify the law. The district
court therefore correctly concluded that Plaintiffs are likely to
succeed in showing that ECCO § 27.2936 violates the First
Amendment.
2. ECCO § 27.2938: Temporal Ban on Contributions
[7] To support the district court’s conclusion that the
City’s temporal ban is constitutional, the City argues that it
reduces actual and perceived corruption because those contri-
butions made near an election are clearer expressions of polit-
ical speech, whereas off-year contributions are more likely
linked to business the donor has before the city, thus creating
the appearance of quid pro quo “corruption by the sale of
influence.” Indeed, the special character of early campaign
contributions is so widely recognized that Emily’s List, at one
time the nation’s “most successful PAC,” takes its name from
the familiar political aphorism that “Early Money Is Like
8088 THALHEIMER v. SAN DIEGO
Yeast” because it “makes the dough rise.” Roy A. Schotland,
Campaign Finance in Judicial Elections, 34 Loy. L.A. L.
Rev. 1489, 1497 n.10 (2001); Emily’s List, Frequently Asked
Questions, http://emilyslist.org/who/faq/.
Plaintiffs misread Citizens for Clean Gov’t as holding the
City to a higher evidentiary burden in this context that
requires a specific showing of actual or perceived corruption.
There we held that the district court improperly allowed the
City to demonstrate its sufficiently important state interest
with “hypothetical situations not derived from any record evi-
dence or governmental findings” and “vague allusions to
practical experience.” 474 F.3d at 653-54. In requiring more
detailed evidence, we employed a less deferential standard of
review than we would have employed at the preliminary
injunction phase, and we focused on the unique nature of San
Diego’s restriction “in the recall context.” Id. at 650, 654.
This reflected the Supreme Court’s admonition in Nixon v.
Shrink Missouri Government PAC, 528 U.S. 377, 391 (2000),
that the “quantum of empirical evidence needed to satisfy
heightened judicial scrutiny of legislative judgments will vary
up or down with the novelty and plausibility of the justifica-
tion raised.”
Because “the regulations at issue in Shrink were similar to
those in Buckley, the state’s asserted interest was neither
novel nor implausible. Therefore, the Court declined to
impose, let alone articulate, a stringent evidentiary burden.”
Citizens for Clean Gov’t, 474 F.3d at 652-53. Shrink dealt
with direct contributions to candidates, 528 U.S. at 381, and
Buckley established that a limit on the amount of such contri-
butions is “only a marginal restriction upon the contributor’s
ability to engage in free communication” that can be justified
by the government’s interest in preventing “political quid pro
quo from current and potential office holders,” 424 U.S. at
20-21, 26. By contrast, Citizens for Clean Gov’t involved lim-
its on contributions to committees working to support or
oppose candidates in recall elections, and “the City offer[ed]
THALHEIMER v. SAN DIEGO 8089
no evidence of deliberation on the issue of campaign finance
in recall elections, and it ha[d] no recourse to legal authority
addressing these exact issues because none exists.” 474 F.3d
at 654. Therefore, we held “only that the district court erred
by failing to require evidence clarifying the analogy between
the state interest in Buckley and the one asserted here.” Id.[8] The heightened evidentiary requirement in Citizens for
Clean Gov’t stemmed from the novelty of limiting contribu-
tions to recall campaign committees, as opposed to limiting
the sort of direct candidate contributions in normal campaign
cycles addressed in Buckley. There is no such need to clarify
the analogy to Buckley where § 27.2938 operates as a limita-
tion on traditional direct candidate contributions. While Buck-
ley addressed limits on the dollar amount of contributions and
§ 27.2938 restricts their timing, this distinction favors the City
because a temporal ban is an even more “marginal restriction
upon the contributor’s ability to engage in free communica-
tion” than a dollar cap. Buckley, 424 U.S. at 20-21. Here the
district court reasonably found that “[w]hile temporal limits
do burden free speech and association, there is no evidence
that the City’s limit is more than a minimal burden.”
[9] Thalheimer alleges in the verified complaint that his
speech is burdened by the temporal ban because he wants to
solicit and accept contributions now in advance of the 2012
election in order to be competitive against a potential incum-
bent opponent. However, the district court correctly deter-
mined that Buckley undercut the argument that a law that
treats all parties equally can burden First Amendment rights
by favoring incumbents. See Buckley, 424 U.S. at 31 (“Absent
record evidence of invidious discrimination against challeng-
ers as a class, a court should generally be hesitant to invali-
date legislation which on its face imposes evenhanded
restrictions.”). Nienstedt asserts a burden on his First Amend-
ment rights because he wishes to contribute now to a candi-
date whose primary is more than a year away. However, the
district court reasonably concluded that it was not a serious
8090 THALHEIMER v. SAN DIEGO
burden for candidates to “merely be ‘forced to rearrange their
fundraising’ by concentrating it in the 12-month window.”
(quoting Gable v. Patton, 142 F.3d 940, 951 (6th Cir. 1998)).
[10] Because this is an open question in our circuit, the
district court’s analysis of the temporal limitation relied
largely on the Sixth Circuit’s opinion in Gable and the Fourth
Circuit’s decision in North Carolina Right to Life, Inc. v.
Bartlett, 168 F.3d 705 (4th Cir. 1999). In Gable, a political
candidate challenged various provisions of Kentucky’s cam-
paign finance law, including a prohibition on gubernatorial
candidates accepting contributions during the 28 days preced-
ing a primary or general election. 142 F.3d at 944. The Sixth
Circuit acknowledged that candidates would “be forced to
rearrange their fundraising by concentrating it in the period
before the 28-Day Window begins,” and that this “is not a
trivial restriction.” Id. at 951. Nonetheless, it concluded that
the temporal limitation was constitutional because the court
“read Buckley to say that such a restriction is justified by Ken-
tucky’s interest in combating corruption.” Id.In Bartlett, a political action committee and its president
brought a First Amendment challenge to North Carolina’s
campaign finance law. One provision prevented lobbyists and
political committees that employ lobbyists from contributing
to state legislators and candidates while the legislature is in
session. 168 F.3d at 714-15. The Fourth Circuit concluded
that the provision “serves to prevent corruption and the
appearance of corruption” because “[l]egislative action which
is procured directly through gifts, or even campaign contribu-
tions, too often fails to reflect what is in the public interest,
what enjoys public support, or what represents a legislator’s
own conscientious assessment of the merits of a proposal.” Id.
at 715. The court determined that the provision was tailored
to the anti-corruption interest because it applied only to lob-
byists and their affiliates, and the temporal limitation did
“nothing more than place a temporary hold on appellees’ abil-
ity to contribute . . . leaving them free to contribute during the
THALHEIMER v. SAN DIEGO 8091
rest of the calendar year and to engage in political speech for
the entire calendar year.” Id.Plaintiffs attempt to distinguish Gable and Patton by
emphasizing that those cases involved shorter temporal limi-
tations. The restriction in Bartlett was narrowed to cover a
particular group of contributors thought to pose an especially
strong threat of quid pro quo corruption, while the restriction
in Gable was designed to bolster Kentucky’s public financing
regime. These distinctions do not make the essential reason-
ing of Gable and Patton any less persuasive, however; nor do
they demonstrate that the City’s law is not closely drawn to
a sufficiently important state interest. The City has articulated
an anti-corruption interest that is not novel or implausible, so
it is not required to meet a heightened evidentiary burden.3
[11] The differences between the City’s ordinance and the
restrictions upheld in Gable and Bartlett are understandable
given that the laws in those cases addressed partisan state
elections, whereas ECCO regulates the financing of nonparti-
san municipal campaigns. Moreover, “[w]e cannot determine
with any degree of exactitude the precise restriction necessary
to carry out the statute’s legitimate objectives,” and “[i]n
practice, the legislature is better equipped to make such
empirical judgments, as legislators have ‘particular expertise’
in matters related to the costs and nature of running for office.
Thus ordinarily we have deferred to the legislature’s determi-
nation of such matters.” Randall, 548 U.S. at 248 (citations
3
The City apparently made a tactical decision not to introduce specific
evidence to support its anti-corruption interest at this early stage of the liti-
gation so as to emphasize Plaintiffs’ burden as the moving parties seeking
preliminary injunctive relief. We would note, though, that our own case
law contains a vivid illustration of corruption in San Diego municipal gov-
ernment involving campaign contributions timed to coincide with the
donors’ particular business before the city council. See United States v.
Inzunza, ___ F.3d ___, 2011 WL 1365590 (9th Cir. April 12, 2011)
(affirming the conviction of a former San Diego City Council member on
charges stemming from a bribery scandal).
8092 THALHEIMER v. SAN DIEGO
omitted). Plaintiffs’ scant evidence of harm suffered from the
temporal ban is not sufficient evidence of the sort of “danger
signs” that would compel us to show less deference to the
judgment of San Diego officials. See id. at 249.
3. ECCO §§ 27.2950 and 27.2951: Ban on
Organizational Contributions
Applying closely drawn scrutiny, the district court correctly
determined that Plaintiffs were unlikely to succeed in their
general challenge to the ECCO provisions making it unlawful
for “non-individuals” to contribute directly to candidates, but
likely to succeed in showing that the law is unconstitutional
as applied to political parties.4
a. Non-Individual Contribution Ban
[12] The City contends that the prohibition on contribu-
tions by corporations, unions, committees, and other organiza-
tions serves the purpose of preventing the circumvention of
individual contribution limits. The Supreme Court recognized
the anti-circumvention interest in FEC v. Beaumont, 539 U.S.
146 (2003), which concerned a century-old federal statute
barring corporations from contributing directly to candidates
for federal office. North Carolina Right to Life, Inc., several
of its officers, and a North Carolina voter challenged the con-
stitutionality of the law as applied to nonprofit advocacy cor-
porations. Id. at 149. The Court upheld such enforcement of
the law, reasoning that “[n]onprofit advocacy corporations are
. . . no less susceptible than traditional business companies to
4
Plaintiffs acknowledge that the closely drawn standard of review is
appropriate for contribution limits, but suggest that contribution bans
should be treated differently. However, the Supreme Court has held that
while it is “not that the difference between a ban and a limit is to be
ignored . . . the time to consider it is when applying scrutiny at the level
selected, not in selecting the standard of review itself.” FEC v. Beaumont,
539 U.S. 146, 162 (2003).
THALHEIMER v. SAN DIEGO 8093
misuse as conduits for circumventing the contribution limits
imposed on individuals.” Id. at 160.
Plaintiffs argue that Beaumont has been overruled by Citi-
zens United, and that the anti-circumvention interest is no lon-
ger valid. They base this contention on the Beaumont Court’s
citations to Austin, which partially relied on an anti-
circumvention rationale to uphold a limit on corporate politi-
cal expenditures. See Austin, 494 U.S. at 664. Plaintiffs fail to
recognize, however, that the Citizens United Court rejected
Austin for its reliance on the distinct “anti-distortion” ratio-
nale that allowed spending restrictions based on the tendency
of “immense aggregations of wealth” accumulated via the
corporate form to tilt the political playing field. See Citizens
United, 130 S. Ct. at 907. The anti-distortion interest is based
on an equality rationale, see id. at 922 (Roberts, C.J., concur-
ring), whereas the anti-circumvention interest is part of the
familiar anti-corruption rationale, see FEC v. Colo. Republi-
can Fed. Campaign Comm., 533 U.S. 431, 456 (2001)
(“Colorado II”) (“[A]ll Members of the Court agree that cir-
cumvention is a valid theory of corruption.”).
[13] Moreover, the Citizens United Court’s disapproval of
Austin came in the context of regulating political expendi-
tures, not contributions. The Court made clear that it was not
revisiting the long line of cases finding anti-corruption ratio-
nales sufficient to support such limitations. See Citizens
United, 130 S. Ct. at 909 (“Citizens United has not made
direct contributions to candidates, and it has not suggested
that the Court should reconsider whether contribution limits
should be subjected to rigorous First Amendment scrutiny.”).
Therefore, there is nothing in the explicit holdings or broad
reasoning of Citizens United that invalidates the anti-
circumvention interest in the context of limitations on direct
candidate contributions. See also Green Party of Conn. v.
Garfield, 616 F.3d 189, 199 (2d Cir. 2010) (“Although the
Court’s campaign-finance jurisprudence may be in a state of
flux (especially with regard to campaign-finance laws regulat-
8094 THALHEIMER v. SAN DIEGO
ing corporations), Beaumont and other cases applying the
closely drawn standard to contribution limits remain good
law.”).
Alternatively, Plaintiffs argue that the City’s ban on contri-
butions by non-individuals is not closely drawn to the anti-
circumvention interest. They seek to distinguish Beaumont by
noting that even though the Court upheld a total ban on corpo-
rate contributions, its tailoring analysis took into account that
corporations retained the option of establishing political
action committees that could make contributions to candi-
dates. See 539 U.S. at 163. By contrast, the relevant ECCO
provisions ban all non-individual contributions, so there is no
PAC alternative. While this is a legitimate distinction, the
Beaumont Court also stated that a “ban on direct corporate
contributions leaves individual members of corporations free
to make their own contributions, and deprives the public of
little or no material information.” Id. at 161 n.8.
More importantly, San Diego’s regulations allow non-
individual entities to make unlimited independent expendi-
tures, and with ECCO § 27.2936 enjoined, they can also make
unlimited contributions to independent committees that can be
used to fund expenditures supporting or opposing candidates.
See Colorado II, 533 U.S. at 455, 464-65 (weighing political
parties’ ability to make unlimited independent expenditures
on behalf of candidates in the analysis of limits on parties’
coordinated spending, which the Court treated the same as
limits on direct contributions). While expenditures and contri-
butions are different modes of political speech, it is the dis-
tinct nature of contributions that lessens the First Amendment
rights of donors, and strengthens the government’s regulatory
power. See id. at 440-41 (“Restraints on expenditures gener-
ally curb more expressive and associational activity than lim-
its on contributions do. A further reason for the distinction is
that limits on contributions are more clearly justified by a link
to political corruption than limits on other kinds of unlimited
political spending . . .”) (citations omitted).
THALHEIMER v. SAN DIEGO 8095
In terms of both the fundamental First Amendment interests
at stake and actual influence on the political process, an orga-
nization’s ability to directly contribute $500 to a candidate
pales in significance to its ability to make unlimited indepen-
dent expenditures and unlimited donations to political action
committees, which can in turn spend unlimited amounts sup-
porting or opposing candidates.
Finally, Plaintiffs argue based on Citizens United that the
City’s contribution limits violate the First Amendment by dis-
criminating against non-human speakers. The Court held in
Citizens United that the “Government may not suppress politi-
cal speech on the basis of the speaker’s corporate identity.”
130 S. Ct. at 913. While the scope of that holding has yet to
be fully developed, the Citizens United opinion demonstrates
concern about laws that target particular speakers, such as
corporations, based on their status, whereas the City’s law
draws a functional line between individual donors and all
non-individuals. The Citizens United Court struck down a law
that raised the obviously troubling specter of criminal prose-
cution of certain corporations and individuals for releasing a
politically themed movie, book, or pamphlet too close to an
election, while others remained exempt from punishment. See
id. at 888, 894-95. There is no such danger here, and indeed
the Citizens United Court expressly did not extend its holding
to the contribution context. See also Minn. Citizens Con-
cerned for Life, Inc. v. Swanson, ___ F.3d ___, 2011 WL
1833236, (8th Cir. May 16, 2011) (holding that plaintiffs were
unlikely to prevail in a First Amendment challenge to Minne-
sota’s ban on direct corporate contributions to candidates
because Citizens United did not overrule Beaumont’s holding
that a state “can generally ban all direct corporate contribu-
tions”).
b. Ban on Contributions from Political Parties
Since the district court issued its ruling, the City enacted a
new provision, codified as ECCO § 27.2934, which allows
8096 THALHEIMER v. SAN DIEGO
political parties to make contributions to candidates of up to
$1,000 per election cycle. Plaintiffs initiated separate litiga-
tion challenging the constitutionality of the new provision and
requesting a preliminary injunction. The district court denied
the request for injunctive relief, allowing the City to enforce
the new law pending final judgment. That litigation is not cur-
rently before us, but we must consider if the new law has ren-
dered this aspect of the appeal moot.
[14] The City acknowledges that it adopted the new provi-
sion in direct response to the district court’s earlier issuance
of a preliminary injunction against enforcement of ECCO
§§ 27.2950-51 as applied to political parties. We therefore
conclude that this change does “not deprive the federal courts
of jurisdiction to decide the constitutional question because of
the well-settled principle that a defendant’s voluntary cessa-
tion of a challenged practice does not deprive a federal court
of its power to determine the legality of the practice.” Jacobus
v. Alaska, 338 F.3d 1095, 1103 (9th Cir. 2003) (quoting Carr-
eras v. City of Anaheim, 768 F.2d 1039, 1047 (9th Cir.
1985)). “These concerns are of particular force in a case like
the present one, in which the ‘voluntary cessation’ occurred
only in response to the district court’s judgment.” Id.As for Plaintiffs’ likely success on the merits, the district
court framed the matter as a choice between the Supreme
Court decisions in Colorado II and Randall. Decided in 2001,
Colorado II involved a challenge to the Federal Election
Campaign Act’s limits on political parties’ coordinated
expenditures. FECA capped coordinated spending between
candidates and parties, based on district size and the relative
cost of the media market. For candidates for the U.S. Senate,
this ranged from $67,500 to $1,636,438. For candidates for
the U.S. House of Representatives, it ranged from $33,780 to
$67,560. Parties were also allowed to give up to $5,000 in
direct contributions to candidates. 533 U.S. at 439 n.3, 442
n.7. The Court held that parties’ coordinated expenditures
should be treated the same as contributions, and that they
THALHEIMER v. SAN DIEGO 8097
could be restricted to further the government’s anti-
circumvention interest. Id. at 456, 465.
In so ruling, the Court cautioned against treating political
parties differently from other speakers for the purposes of
analyzing contribution limits. See id. at 455-56 (“The Party’s
arguments for being treated differently from other political
actors subject to limitation on political spending under the Act
do not pan out . . . . [w]e accordingly apply to a party’s coor-
dinated spending limitation the same scrutiny we have applied
to the other political actors . . . .”); id. at 454 (stating that a
“party is not, therefore, in a unique position” compared with
other contributors in terms of its coordinated spending); see
also Jacobus, 338 F.3d at 1109 (“In fact, in Colorado Repub-
lican II the Court specifically rejected the contention that
party contributions merited a stricter standard of scrutiny
. . . .”).
Five years later, however, the Supreme Court suggested
that political parties do in fact have a special role requiring
unique attention when analyzing contribution limits. In Ran-
dall, the Court confronted a challenge to Vermont’s campaign
finance statute, which included contribution limits for state
races of $200 to $400 per candidate, per cycle, depending on
the office, which applied equally to individuals, committees,
and political parties. 548 U.S. at 238. For the first time, the
Court held that a contribution limit violated the First Amend-
ment by failing the closely drawn scrutiny standard of review.
Justice Breyer’s plurality opinion announced the judgment of
the Court.5 Acknowledging that “[s]ince Buckley, the Court
has consistently upheld contribution limits in other statutes,”
5
Therefore, we follow the plurality opinion as persuasive authority,
though “not a binding precedent.” Texas v. Brown, 460 U.S. 730, 737
(1983) (noting that a plurality opinion consisting of “the considered opin-
ion of four Members of this Court” was not binding, but “should obvi-
ously be the point of reference for further discussion of the issue”). Justice
Breyer’s plurality opinion was joined by two justices, one in full and one
in part. Randall, 548 U.S. at 235.
8098 THALHEIMER v. SAN DIEGO
the plurality nonetheless concluded that “we must recognize
the existence of some lower bound,” and Vermont’s very low
contribution limits fell below that minimal threshold. Id. at
247-48.
The Randall plurality opinion directed courts to identify
that threshold by scouring the record to look for “danger
signs” that contribution limits are low enough to threaten
“democratic accountability.” Id. at 248-49. Among the “dan-
ger signs” in the Vermont case were the statute’s treatment of
political parties. The plurality noted that Vermont applied “its
$200 to $400 limits—precisely the same limits it applies to an
individual—to virtually all affiliates of a political party taken
together as if they were a single contributor.” Id. at 257. The
limitations covered monetary contributions to candidates and
“expenditures in kind” such as “stamps, stationery, coffee,
doughnuts, gasoline, campaign buttons, and so forth,” thus
“severely limit[ing] the ability of a party to assist its candi-
dates’ campaigns by engaging in coordinated spending on
advertising, candidate events, voter lists, mass mailings, even
yard signs.” Id.The plurality also expressed concern that the limits would
discourage voters lacking detailed knowledge of state legisla-
tive races from contributing small amounts to parties in the
hope that the parties would then contribute to like-minded
candidates. Id. at 257-58. The Randall plurality did not
address the general statements in Colorado II about the treat-
ment of political parties. However, it explained that the fed-
eral limits of at least $67,560 in coordinated spending and
$5,000 in direct cash contributions for U.S. Senate candidates,
and at least $33,780 in coordinated spending and $5,000 in
direct cash contributions for U.S. House candidates, were “far
less problematic” than Vermont’s much lower $200-$400
contribution limits. Id. at 258. The plurality therefore con-
cluded that the limitations at issue “would reduce the voice of
political parties in Vermont to a whisper,” and thus the “spe-
cial party-related harms” were a factor weighing against the
THALHEIMER v. SAN DIEGO 8099
constitutional validity of Vermont’s contribution limits. Id. at
259.
It remains unclear whether the Randall plurality opinion
actually supersedes Colorado II and holds that political par-
ties must be treated differently than other contributors, or
whether the analysis of “special party-related harms” was
merely one case-specific factor. The Second Circuit recently
concluded that with its focus on the integrity of the electoral
process as a whole, as opposed to the expressive interest of
the individual campaign contributor, the multifactor test in the
Randall plurality opinion only “addressed general contribu-
tion limits that applied to all citizens.” Green Party, 616 F.3d
at 201. Accordingly, the Green Party court held that the Ran-
dall analysis did not apply to Connecticut’s narrow contribu-
tion limits targeting only public contractors, lobbyists, and
affiliated individuals and entities. Id. Here the City’s law pro-
hibits political party contributions as part of a comprehensive
restriction on direct donations by all non-individual organiza-
tions, including political parties, corporations, partnerships,
unions, and committees. This places the challenged provision
somewhere between the Vermont statute that regulated the
state’s entire electoral process, and the Connecticut law in
Green Party that targeted a narrow class of political speakers.
[15] The Supreme Court has directed that when a district
court grants a preliminary injunction protecting First Amend-
ment rights, “[i]f the underlying constitutional question is
close . . . we should uphold the injunction and remand for trial
on the merits.” Ashcroft, 542 U.S. at 664-65. Given the close
constitutional question here and the narrow nature of our
inquiry at the preliminary injunction stage, we hold that the
district court did not abuse its discretion in concluding that
Plaintiffs were likely to succeed on the merits of their chal-
lenge to the application of these ECCO provisions to political
parties. See also Cal. Prolife Council Political Action Comm.
v. Scully, 164 F.3d 1189, 1190 (9th Cir. 1999).
8100 THALHEIMER v. SAN DIEGO
B. Likelihood of Irreparable Harm, Hardship, and
Public Interest
[16] Even where a plaintiff has demonstrated a likelihood
of success on the merits of a First Amendment claim, he
“must also demonstrate that he is likely to suffer irreparable
injury in the absence of a preliminary injunction, and that the
balance of equities and the public interest tip in his favor.”
Klein v. City of San Clemente, 584 F.3d 1196, 1207 (9th Cir.
2009). Here, before granting Plaintiffs’ requests for prelimi-
nary injunctions against enforcement of ECCO § 27.2936 and
§§ 27.2950-51 as applied to political parties, the district court
correctly examined each necessary element and did not
assume that they merely “collapse into the merits” of the First
Amendment claim. Cf. Dish Network Corp. v. FCC, 636 F.3d
1139, 1144 (9th Cir. 2011).
As to irreparable harm, the district court followed a long
line of precedent establishing that “[t]he loss of First Amend-
ment freedoms, for even minimal periods of time, unquestion-
ably constitutes irreparable injury.” Klein, 584 F.3d at 1208(quoting Elrod v. Burns, 427 U.S. 347, 373 (1976)). “The
harm is particularly irreparable where, as here, a plaintiff
seeks to engage in political speech, as ‘timing is of the
essence in politics’ and ‘[a] delay of even a day or two may
be intolerable.” Id. (quoting Long Beach Area Peace Network
v. City of Long Beach, 522 F.3d 1010, 1020 (9th Cir. 2008)).
The district court separately determined that the public
interest in upholding free speech and association rights out-
weighed the interest in continued enforcement of these cam-
paign finance provisions. See Sammartano v. First Judicial
District Court, in and for County of Carson City, 303 F.3d
959, 974 (9th Cir. 2002) (“Courts considering requests for
preliminary injunctions have consistently recognized the sig-
nificant public interest in upholding First Amendment princi-
ples.”). It also gave unique attention to the balance of
hardships, concluding that the equities tipped in Plaintiffs’
THALHEIMER v. SAN DIEGO 8101
favor because the burden of the restriction on their speech and
associational rights outweighed the disruption to the City’s
campaign finance system. See Klein, 584 F.3d at 1208; Sam-
martano, 303 F.3d at 973.
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s
decision to grant in part and deny in part Plaintiffs’ request
for a preliminary injunction. Each party shall bear its own
costs on appeal.
AFFIRMED.