Patrick Rosenstiel Christopher Longley v. Carolyn Rodriguez, in Her Capacity as Chair of the Ethical Practices Board, or Her Successor , 101 F.3d 1544 ( 1996 )

HANSEN, Circuit Judge.

Patrick Rosenstiel and Christopher Long-ley appeal a final judgment of the district court¹ upholding the constitutionality of Minnesota’s campaign finance statutes. Ro-senstiel and Longley seek a declaration that several provisions of the law are unconstitutional because they allegedly coerce a candidate into participating in Minnesota’s public campaign financing program, thereby burdening ' that candidate’s First Amendment rights. They further maintain that the provisions are constitutionally infirm because they do not survive strict scrutiny. Finally, they contend that these provisions impermis-sibly discriminate against challengers. After conducting a careful review, including an amendment to the statute which the Minnesota legislature enacted after we heard oral arguments, we affirm.

I.

The State of Minnesota (State) has enacted a campaign financing system which permits candidates for certain elected state offices to receive a public subsidy in exchange for the candidate’s agreement to adhere to specified limits on campaign expenditures. Minn.Stat-. Ann. §§ 10A.25 (10)(a), 10A.322(l)(a) (West Supp.1997). A candidate must sign an agreement to be bound to the applicable campaign expenditure limits in order to receive the public subsidy. Id. § 10A.322(l)(a). The participating candidate must also independently raise a certain amount ($35,000 for governor down to $1,500 for state representative) in contributions in order to be eligible for the public subsidy. Id. § 10A.323. A Minnesota taxpayer can claim a full refund of up to $50 per year (or $100 for a couple filing jointly) for a campaign, contribution made to a publicly funded candidate; however, no refund is permitted for a campaign contribution made to a candidate who is not publicly funded. Id. § 290.06(23) (hereinafter referred to as “contribution refund”).²

The expenditure limitations for each public office to which the State’s campaign financing scheme applies are delineated in section 10A.25(2)(a), and range from $1,626,691 for a gubernatorial candidate down to $20,335 for a candidate for state representative. The amount of public subsidy available to a candidate who is running for an office to which the State’s financing scheme applies is determined by way of formula. Id. § 10A.31(5).' However, the amount of public subsidy the candidate receives may not exceed 50 percent of the expenditure limits applicable to the office which the candidate seeks. Id. § 10A.31(7). A candidate who has agreed to adhere to the expenditure limits but later accepts campaign contributions or makes campaign expenditures in excess of those limits is subject to a civil fine of up to four times the amount by which the contribution or expenditure exceeded the limit. Id. § 10A.28(1).

Prior to an amendment in April 1996, the above expenditure limits were only applicable to a candidate if the candidate’s major-party opponent likewise agreed to be bound by the expenditure limits. Id. § 10A.25(10) (West Supp.1996) (repealed). Thus, when a publicly financed candidate was opposed by a nonparticipating major party candidate, the publicly financed candidate was no longer required to adhere to the specified expenditure limits for his office but was still eligible to receive the public subsidy. Id. § 10A.25(10)(b)(i)-(ii) (West Supp.1996) (repealed) (hereinafter referred to as “expenditure limitation waiver”).

In 1994, Appellants Rosenstiel and Long-ley (Appellants) were candidates for different seats in the Minnesota House of Representatives. Both enrolled in the State’s public campaign funding program. They later filed this action on August 19, 1994, alleging that the expenditure limitation waiver and the contribution refund violated their First Amendment rights. Both claimed by way of affidavit that they believed they could privately raise campaign funds in excess of the law’s expenditure limits which they had agreed to observe. They subsequently moved for a preliminary injunction, seeking to enjoin the enforcement of these provisions. The district court denied injunctive relief but noted that the Appellants had proffered sufficient evidence to demonstrate that they were likely to prevail on their claim that the contribution refund was unconstitutional.

The Appellants later moved for summary judgment. The district court held that the expenditure limitation waiver and the contribution refund passed constitutional muster, denied Appellants’ motion for summary judgment, and accordingly dismissed their complaint.³ Rosenstiel and Longley appealed.⁴

After this case was submitted to us, an amendment passed by the Minnesota legislature altering the operation of the expenditure limitation waiver became effective. See Act of April 11, 1996, eh. 459 (S.F. 840), amending Minn.Stat.Ann. § 10A.25(10) (West Supp. 1996). Under the amendment, a candidate participating in the State’s public financing of campaigns is not released from the expenditure limitation simply by virtue of being opposed by a nonparticipating, major-party candidate. Rather, when a participating candidate squares off against any nonparticipating candidate, the participant is released from the expenditure limit when the opponent receives contributions or makes expenditures equalling 20 percent of the applicable limit prior to 10 days before the primary election, and contributions or expenditures equalling 50 percent of the applicable limit thereafter. Mmn.Stat.Ann. § 10A.25(10)(a)(l)-(2) (West Supp.1997).

The amendment thus makes several changes to the mechanics of the expenditure limitation waiver. First, the expenditure limitation waiver comes into play when any nonparticipating opponent engages in the triggering event, i.e., receives contributions or makes expenditures in excess of the specified threshold, whereas before, the triggering act had to be done by a nonparticipating major-party opponent. Second, and more importantly, the triggering event itself occurs when any nonparticipating opponent reaches the specified threshold in campaign contributions or expenditures. Previously, the triggering event was simply the major party opponent’s decision not to participate in the State’s public campaign financing. In other words, the amendment eschews an automatic waiver to participating candidates at the moment their major party nonparticipating opponent declines to enroll, in favor of a wait-and-see approach based on actual contributions to or expenditures made by any nonparticipating opponent.

At the direction of .this court, the parties submitted letter briefs concerning the effect, if any, the amendment had on the issues presented in this case, and whether remand to the district court for further proceedings was necessary. Both sides strenuously contend that a remand is unnecessary. Concerning the merits- of the amendment, the Appellants assail its validity primarily on the same grounds they contested the former language, i.e, that it coerces candidates to participate, and it is not narrowly tailored to further a compelling governmental interest. The State, on the other hand, contends that, even assuming the prior expenditure limitation waiver coerced compliance, the amended statute is not coercive because the nonparticipating candidate solely determines whether to trigger the expenditure limitation waiver for the publicly-financed candidate by receiving contributions or making expenditures in excess of the applicable threshold. Alternatively, the State maintains that, like the former language, the amendment is narrowly tailored to serve a compelling governmental interest.

II.

It is clear that we must review the judgment appealed from in the light of the Minnesota statute as it now stands, not as it stood when the judgment below was entered. Fusari v. Steinberg, 419 U.S. 379, 387, 95 S.Ct. 533, 538-39, 42 L.Ed.2d 521 (1975); Diffenderfer v. Central Baptist Church, 404 U.S. 412, 414, 92 S.Ct. 574, 575-76, 30 L.Ed.2d 567 (1972). Whether the amendment so changes the nature of the dispute before us so as to make the appeal moot is a close question.

The Supreme Court has held that where a new statute “is sufficiently similar to the repealed [statute] that it is permissible to say that the challenged conduct continues” the controversy is not mooted by the change, and a federal court continues to have jurisdiction. Northeastern Fla. Chapter v. City of Jacksonville, 508 U.S. 656, 662 n. 3, 113 S.Ct. 2297, 2301 n. 3, 124 L.Ed.2d 586 (1993). Further, if the new statute disadvantages the complainants in the same fundamental way the repealed statute did, the amendment does not divest the court of the power to decide the case. Id. at 662, 113 S.Ct. at 2301. Here, the amendment relates only to one subdivision of the whole larger statutory scheme assailed by the Appellants’ complaint. It repealed only one of the five specific sections plaintiffs attacked and replaced it with language that still permits a waiver of the expenditure limitations while remaining eligible for the public subsidy. Essentially the amendment changes the triggering event necessary to bring the spending limits waiver into play and, accordingly, the point in the campaign when the spending limits are removed from a participating candidate. These changes are not insignificant at least as far as the actual operation of the statute is concerned. On the other hand, with respect to its effect, the amended statute still impairs the Appellants in the very same way that they claimed the prior section did. In the Appellants’ view, the amendment broadens the coverage of the law (by applying it to any opponent of a participating candidate rather than just a major-party opponent) and is more, not less, coercive than the repealed subdivision. (Appellants’ Letter Br. at 2, June 14, 1996.) We believe that the fundamental nature of the challenged statute continues unchanged. The challenged conduct (the waiver of the'spending limits) continues to exist under the new language of § 10A.25(10). The public subsidy and the tax refund provisions are unchanged. We do not believe that the controversy upon which the district court rendered its judgment is substantially different from the one presented to us by the amended statute. Accordingly, we hold the case is not moot.

III.

Because the Appellants’ claims require us to evaluate the constitutionality of the challenged provisions, our review is de novo. Falls v. Nesbitt, 966 F.2d 375, 377 (8th Cir.1992).

A.

The Appellants contend that the expenditure limitation waiver and the contribution refund cause the State’s campaign financing system to infringe upon the First Amendment rights of the candidates for political offices to which the plan applies. “When considering whether a campaign finance law unconstitutionally infringes freedom of speech, this Court’s task is to decide whether the provision in question actually ‘burdens the exercise of political speech and, if it does, whether it is narrowly tailored to serve a compelling state interest.’ ” Shrink Mo. Gov’t PAC v. Maupin, 71 F.3d 1422, 1424 (8th Cir.1995) (quoting Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 657, 110 S.Ct. 1391, 1396, 108 L.Ed.2d 652 (1990)), cert. denied, — U.S. -, 116 S.Ct. 2579, 135 L.Ed.2d 1094 (1996). Our first task, then, is to determine whether the challenged provisions impose any burden at all on the First Amendment rights of candidates.

In Buckley v. Valeo, 424 U.S. 1, 85-109, 96 S.Ct. 612, 666-78, 46 L.Ed.2d 659 (1976), the Supreme Court held that while the imposition of a mandatory limit on campaign expenditures violated a candidate’s First Amendment rights, a voluntary system under which candidates agreed to limit campaign expenditures in exchange for public financing of their campaigns was constitutionally permissible. Specifically with regard to this point the Court stated:

Congress may engage in public financing of election campaigns and may condition acceptance of public funds on an agreement by the candidate to abide by specified expenditure limitations. .Just as a candidate may voluntarily limit the size of the contributions he chooses to accept, he may decide to forgo private fundraising and accept public funding.

Id. at 57 n. 65, 96 S.Ct. at 653 n. 65. See also Colorado Republican Fed. Campaign Comm. v. FEC, — U.S. -, 116 S.Ct. 2309, 135 L.Ed.2d 795 (1996) (plurality opinion) (political party independent expenditure provision inconsistent with First Amendment).

Such a system of public financing of political campaigns was expressly approved in Republican Nat’l Comm. v. FEC, 487 F.Supp. 280, 283-86 (S.D.N.Y.) (three-judge court), aff'd mem., 445 U.S. 955, 100 S.Ct. 1639, 64 L.Ed.2d 231 (1980) (RNC). In RNC, the plaintiffs challenged a federal law which provided $20,000,000 in public funding to presidential candidates who agreed to limit campaign expenditures to that amount. Id. at 283. The court held that this scheme did not burden a candidate’s First ■ Amendment rights because it simply provided an additional option for accumulating campaign fimds. Id. at 285. “Each candidate remains free under the Fund Act, instead of opting for public funding, to attempt through private funding to raise more than the ‘$20,000,-000 plus’ public funding limit and to spend any amount of funds raised by private funding, without any ceiling.” Id. at 283-84. The Court observed that each candidate would presumably select the method for raising campaign funds that he thought to be most advantageous. Id. at 285. Accordingly, the court ruled that this choice-increasing framework imposed no burden on a candidate’s First Amendment rights. Id.

The Appellants contend that the State’s public financing scheme is distinguishable from that referred to in Buckley and expressly approved in RNC. Specifically, the Appellants argue that the expenditure limitation waiver, Minn.Stat.Ann. § 10A.25(10), and the contribution refund, Minn.Stat.Ann. § 290.06(23), are coercive because they create such a large disparity between the benefits provided to publicly financed candidates and the corresponding restrictions imposed on those candidates. Stated otherwise, the Appellants contend that these provisions make the public financing option so attractive that they effectively compel candidates to enroll in the State’s financing plan. This compelled participation, continue the Appellants, is a burden on their First Amendment rights. The State counters by arguing that the expenditure limitation waiver and the contribution refund are simply additional inducements provided to encourage maximum candidate participation in its public financing of political campaigns and that the inclusion of these inducements, gives the campaign financing plan a relative balance in terms of benefits provided to participating candidates and the restrictions imposed on those candidates. Because participation is truly voluntary, the State submits, the Appellants’ argument that their First Amendment rights are burdened is without merit. We agree with the State.

The First Circuit addressed similar arguments concerning a Rhode Island financing scheme in Vote Choice, Inc. v. DiStefano, 4 F.3d 26 (1st Cir.1993). In Vote Choice, in an effort to make its public financing scheme for gubernatorial candidates more attractive, Rhode Island permitted participating candidates, in addition to receiving a public subsidy, to receive campaign contributions from individuals or PACs of up to $2,000 per year, while candidates who eschewed public financing were allowed to receive only $1,000 per year from those donors (what the Vote Choice court referred to as a “cap gap”). Id. at 30.⁵ The Vote Choice plaintiff/candidate claimed that the cap gap caused Rhode Island’s scheme to become coercive, thereby burdening a candidate’s First Amendment rights. Like the Appellants here, the essence of the Vote Choice plaintiff/candidate’s claim was that by providing incentives beyond a cash subsidy to publicly financed candidates, Rhode Island’s scheme was so benefit-laden that gubernatorial candidates were really offered no alternative but to enroll. Id. at 38.

The ■ Vote Choice court disagreed. The court noted that there was nothing inherently penal about the cap gap and accordingly rejected the plaintiff/candidate’s contention that Rhode Island’s scheme was per se coercive because it sought to punish non-participants rather than simply reward participants. Id. The court then ruled that the enactment of the cap gap did not make the incentives in Rhode Island’s scheme so strong that candidates were coerced into participating; the court noted that, with the cap gap, the scheme achieved a relative balance between advantages afforded to, and restrictions placed on, publicly financed candidates. Id. at 38-39. In sum, Rhode Island created a campaign financing option which increased a candidate’s choice concerning methods for raising campaign funds, participation in this program was truly voluntary, and thus the plaintiff-candidate’s claim of coerced participation was without merit. Id. at 39. See also Wilkinson v. Jones, 876 F.Supp. 916, 926-28 (W.D.Ky.1995) (Kentucky scheme permitting publicly financed candidate to disregard expenditure limit and continue receiving state matching funds when privately financed opponent exceeded that amount was not coercive and thus imposed no burden on candidate’s First Amendment rights).

We find the analysis from Vote Choice provides helpful guidance in resolving the Appellant’s claim that Minnesota’s scheme is coercive. Like the Rhode Island public financing scheme challenged in Vote Choice, the State’s scheme in this case provides certain inducements — the expenditure limitation waiver and the contribution refund in addition to a public cash subsidy — in order to encourage maximum candidate participation. These inducements, however, do not per se render the State’s scheme coercive because they are not inherently penal.

Further, the inclusion of these additional inducements in the State’s public financing package does not cause the package to become so benefit-laden as to create such a large disparity between benefits and restrictions that candidates are coerced to publicly finance their campaigns. Rather, by including these additional inducements, the State’s scheme achieves a relative balance between the benefits provided to publicly financed candidates and the restrictions the candidates must accept. The expenditure limitation waiver, which permits a publicly financed candidate to exceed the expenditure limits while retaining the public subsidy when opposed by a nonpartieipating candi-' date who has spent or received contributions beyond the triggering amounts spelled out in the statute is simply an attempt by the State to avert a powerful disincentive for participation in its public financing scheme: namely, a concern of being grossly outspent by a privately financed opponent with no expenditure limit.

We believe the statute is not coercive because it permits the nonpartieipating candidate to raise a certain measure of funds before triggering the expenditure limitation waiver for his participating opponent. Rather than releasing the participating candidate from the expenditure limits at the outset, the statute as it now stands permits the nonparticipating candidate to control whether and when the participating opponent will be freed from the limits. Thus, in a sense, the. amendment works in favor of, rather than to the detriment of, the nonpartieipating candidate. See Wilkinson, 876 F.Supp. at 927 (rejecting claim of coercion to enroll in state public financing scheme because privately-financed candidate completely controlled the triggering event by exceeding the threshold in campaign funds or expenditures).⁶ Similarly, the contribution refund, which permits a Minnesota citizen to obtain a refund of up to a total of $50 per year for contributions made to publicly financed candidates, is simply an additional public subsidy provided to participating candidates. See Buckley, 424 U.S. at 107 n. 146, 96 S.Ct. at 677 n. 146; Regan v. Taxation with Representation of Washington, 461 U.S. 540, 544, 108 S.Ct. 1997, 2000, 76 L.Ed.2d 129 (1988) (tax credits and deductibility for contributions are a form of government subsidy to the entity or activity to which the contributions are made). While the scheme’s benefit-restriction ratio is not, to borrow from the Vote Choice court, in “perfect equipoise,” see 4 F.3d at 39, we are convinced that it achieves the rough proportionality necessary to entice, but not coerce, candidate participation.

The Appellants argue that the legislative history underlying the State’s public financing system and a prior statement of this court illustrate that the scheme was devised to compel candidate participation. Specifically, Senator John Marty of Roseville, Minnesota, a chief proponent of the public financing scheme, stated that it was to operate “as a real heavy club,” ostensibly meaning to force candidate participation. Weber v. Heaney, 995 F.2d 872, 877 n. 7 (8th Cir.1993) (quoting Minnesota Congressional Campaign Reform Act, 1990: Hearing on S. 577 before the Subcommittee on Elections and Ethics, 76th Legis. (Mar. 1,1989) (statement of Senator Marty)). Further, in Weber, after holding that the Minnesota Congressional Campaign Reform Act (MCCRA) was preempted by the Federal Election Campaign Act (FECA), we examined Senator Marty’s statement in a footnote, noting that it was debatable whether participation in the State’s public funding scheme was truly voluntary. 995 F.2d 872, 877 n. 7 (8th Cir.1993). Specifically, we stated:

We also question whether the limitations are truly voluntary. Contributors may receive a refund from the state when they contribute to a candidate who has agreed to limit campaign expenditures, which will enhance that candidate’s fund raising ability. If a candidate agrees to limit expenditures and then does not abide by the limits', the candidate suffers substantial penalties. Additionally, candidates who do not agree to be bound by the spending limits are penalized because their opponents who have agreed to the limits will still receive public financing, but will not be bound by their agreement. The Minnesota law is not a carrot enticing candidates to comply; as a proponent of the bill boasted, it is “a real heavy club.” Minnesota Congressional Campaign Reform Act, 1990: Hearing on S. 577 before the Subcommittee on Elections and Ethics, 76th Legis. (Mar. 1, 1989) (statement of Senator Marty).

Id. The Appellants contend that, based on the above quotation, we are bound by principles of stare decisis to hold that the challenged provisions here are coercive and, in any event, Senator Marty’s statement is definitive proof that the Minnesota legislature sought to compel candidate participation.

We believe that the Appellants lean too hard on Senator Marty’s statement as well as the footnote in Weber. Significantly, it appears that Senator Marty’s statements were made in the 1990 Minnesota legislative session during debate surrounding the MCCRA, not with respect to the provisions at issue in this case; the Appellants have made no showing, other than a bare assertion, that the statements were intended to apply to the provisions they challenge here. Furthermore, an isolated statement by an individual legislator is not a sufficient basis from which to infer the intent of that entire legislative body: in the absence of a showing that a more significant segment of the Minnesota legislature shared Senator Marty’s views, we are not inclined to conclude that his statements accurately reflect the legislative purpose underlying the State’s public financing scheme. See United States v. O’Brien, 391 U.S. 367, 383-84, 88 S.Ct. 1673, 1682-83, 20 L.Ed.2d 672 (1968) (when determining constitutionality of a statute, it would be improper to decide its fate “on the basis of what fewer than a handful of Congressmen said about it.”).

With respect to footnote 7 in Weber, we prefaced our comments with ‘We also question ...,” clearly illustrating that our subsequent statements were little more than observations about the Minnesota scheme. Indeed, earlier in the same footnote we stated, “Whether the expenditure limitations under Minnesota law are voluntary is irrelevant when considering whether the state law is preempted.” Id. Thus, the volun-tariness of the MCCRA was tangential to the central holding of the case: that the MCCRA was preempted by FECA. As such, these statements are obiter dicta. Weber left to another day the detailed analysis of the First Amendment implications of the Minnesota scheme. “The district court held that the First Amendment was not violated by the expenditure limitations in [MCCRA]. That issue is not before us.” Id. at 876 n. 6. Further, in contrast to the statute at issue in Weber, the present statute does not permit participating candidates to toss off the expenditure limits just because their opponent declines to participate. It is the nonpubliely-funded opponent’s conduct in raising money or spending it in excess of the statutory threshold amounts that triggers the limitations waiver for the participating candidate. Weber, therefore, does not dictate a conclusion that the provisions here are coercive and violate the First Amendment.

In sum, the State has created a public financing scheme for certain elected offices which is available to candidates who meet certain threshold qualifications. This scheme presents candidates with' an additional, optional campaign funding choice, the participation in which is voluntary. Under this choice-increasing framework, candidates will presumably select the option that they feel is most advantageous to their candidacy. Given this backdrop, it appears to us that the State’s scheme promotes, rather than detracts from, cherished First Amendment values. See Vote Choice, 4 F.3d at 39; see Wilkinson, 876 F.Supp. at 926-28. See also RNC, 487 F.Supp. at 285. Accordingly, we reject the Appellants’ claim that the challenged provisions create a. coercive public financing scheme that burdens a candidate’s First Amendment rights.⁷

B.

Our conclusion that the challenged provisions do not burden a candidate’s First Amendment rights is a sufficient basis on which to affirm the judgment of the district court. However, even if we assume that the State’s scheme does burden a candidate’s First Amendment rights to some degree, the scheme generally, and the challenged provisions specifically, are still constitutionally permissible because they survive strict scrutiny; that is, they are narrowly drawn to serve a compelling governmental interest.⁸

A campaign finance law which burdens protected speech will be upheld if the governmental entity can show that it furthers a compelling governmental interest and is narrowly drawn to serve that interest. Shrink Mo., 71 F.3d at 1426; see also RNC, 487 F.Supp. at 285 (“Where compelling governmental interests exist, Congress’ power to place reasonable conditions upon expenditures of public funds, even where they affect the exercise of First Amendment rights, has been recognized.”). In this case, the State seeks to promote a reduction in the possibility for corruption that may arise from large campaign contributions and a diminution in the time candidates spend raising campaign contributions, thereby increasing the time available for discussion of the issues and campaigning. It is well settled that these governmental interests are compelling. See Shrink Mo., 71 F.3d at 1426 (“the state’s interest in reducing corruption and its related concerns constitute a compelling state interest”); RNC, 487 F.Supp. at 285 (curbing possibility of corruption from large campaign contributions and reducing candidate time spent raising campaign funds are compelling interests); see also Carver, 72 F.3d at 638 (8th Cir.1995) (noting that Buckley held that limiting the reality or perception of corruption due to large campaign contributions was compelling interest). Indeed, given the importance of these interests, the State has a compelling interest in stimulating candidate participation in its public financing scheme. Vote Choice, 4 F.3d at 39; see also Wilkinson, 876 F.Supp. at 928 (“Kentucky .has a compelling interest in encouraging candidates to accept public financing and its accompanying limitations which are designed to promote political dialogue among the candidates and combat corruption by reducing candidates’ reliance on fundraising efforts.”).

Thus, the constitutional validity of the State’s scheme turns on whether the challenged provisions are narrowly tailored to serve these interests. We believe that each of the challenged provisions satisfies this test. Initially, we observe that the State’s basic public financing program of providing a public subsidy in exchange for the candidate’s agreement to abide by expenditure limits is consistent' with campaign financing plans which courts have long held satisfy strict scrutiny. See RNC, 487 F.Supp. at 285-87; Vote Choice, 4 F.3d at 39-40.

The expenditure limitation waiver also, satisfies strict scrutiny. As we noted above, this provision removes the disincentive a candidate may have to participate in the public financing system because of the candidate’s fear of being grossly outspent by a well-financed, privately funded opponent. Absent such a safeguard, the State could reasonably believe that far fewer candidates would enroll in its campaign financing program, with its binding limitation on campaign expenditures, because of the candidates’ concerns of placing their candidacy at an insurmountable disadvantage.⁹ The State simply sought to alleviate this concern by permitting the candidate who enrolled in public financing to disregard the expenditure limits if his opponent does not limit campaign spending. Finally, by allowing the publicly financed candidate to retain the public subsidy, the State simply seeks to reward those who agreed to limit campaign expenditures and do so until their opponent has received or spent, private money equal to what the maximum direct state subsidy is. Accordingly, we have little difficulty concluding that the expenditure limitations waiver is narrowly tailored to serve the State’s interests. See Wilkinson, 876 F.Supp. at 928 (holding similar provision narrowly tailored to serve compelling governmental interest). See also Vote Choice, 4 F.3d at 39 (holding cap gap, which increased likelihood of participation in public funding scheme, narrowly tailored to serve compelling governmental interest).

We likewise conclude that the contribution refund is narrowly tailored to serve the State’s interests. As we noted above, it is in substance a public subsidy provided to the participating candidate, the amount of which is directly related to the measure of popular support enjoyed by that candidate. Such a system has previously been upheld. See Bang v. Chase, 442 F.Supp. 758, 766 (D.Minn.1977) (three-judge court) (holding valid a Minnesota tax checkoff system for political party which tied amount of subsidy to measure of popular support), aff'd, 436 U.S. 941, 98 S.Ct. 2840, 56 L.Ed.2d 782 (1978). The State reasonably could conclude that this additional form of public subsidy will encourage candidate participation because candidates will believe that they will be able to draw campaign contributions from a broader array of the citizenry when citizens are informed that they may obtain a refund of up to $50 for contributions made to participating candidates. Again', this is especially important in' a financing scheme like the State’s, where the candidates must raise at least 50 percent of their campaign funding from private donors. Thus, even with the direct public subsidy, the participating candidate will have significant fundraising needs.¹⁰

The Appellants contend that the contribution refund is not narrowly tailored because it is not provided on a neutral basis, that is, only contributions made to publicly financed candidates are refundable. The Appellants misapprehend the nature and purpose of a campaign financing scheme. “The state need not be completely neutral on the matter of public financing of elections.” Vote Choice, 4 F.3d at 39. Fundamentally, a public financing scheme is designed to afford a participating candidate certain benefits in exchange for that candidate’s agreement to abide by certain restrictions. That the candidate’s nonparticipating opponent is not afforded the same benefits misses the point: If the benefits, here the contribution refund, were conferred upon all candidates, participating and nonparticipating, there would be no incentive to participate, and the State’s goals of decreasing the chances of corruption and freeing up more of the candidates’ time for campaigning would be frustrated. Thus, any favoritism enjoyed by the publicly financed candidate through the contribution refund subsidy is simply a permissible byproduct of the campaign financing process. See RNC, 487 F.Supp. at 285 (“If a candidate were permitted, in addition to receipt of public funds, to raise and expend unlimited private funds, the purpose of public financing would be defeated.”).¹¹

The Appellants contend that the contribution refund is not necessary to achieve additional candidate participation, citing Day v. Holahan, 34 F.3d 1356 (8th Cir.1994), cert. denied, — U.S. -, 115 S.Ct. 936, 130 L.Ed.2d 881 (1995), where we held that Minnesota’s independent expenditure provision was not narrowly tailored for that very reason.¹² The independent expenditure provision assailed in Day, however, bore a strikingly different pedigree than the contribution refund at issue here. In Day, Minnesota sought to justify the independent expenditure provision on the' basis that it was designed to encourage candidate participation in the public financing scheme. Id. at 1361. We rejected this argument as specious because the purported interest, “no matter how compelling in the abstract, is not legitimate” since candidate participation in' the public financing scheme was approaching 100 percent when the challenged provision was enacted. Id.; see also id. (“One hardly could be faulted for concluding that this.‘compelling’ state interest was contrived for the purposes of this litigation.”).

By contrast, the contribution refund at issue here, or a functional equivalent tax credit, has been part of the State’s public campaign financing plan from almost its inception. The State enacted its present public financing program in 1976 and in 1978 created a tax credit for contributions made to participating candidates. The tax credit became the present tax refund in 1991, and with the exception of a three-year hiatus (1987-1990), the tax credit/refund has been in effect, since 1978. The State submits, and the Appellants have presented no evidence to the contrary, that this concept has played an integral role in attaining the almost 100 percent candidate participation in its program. Thus, the circumstances surrounding the enactment of the contribution refund make Day inapposite.

In sum, we conclude that the expenditure limitation waiver and the contribution refund are each tailored in a sufficiently narrow manner to serve the compelling government interests the State has identified. Therefore, even if the challenged provisions somehow burden the Appellants’ First Amendment rights, the .provisions pass constitutional muster.

IV.

Finally, the Appellants contend that the campaign provisions at issue unfairly discriminate against challengers because, all other things being equal, an incumbent has greater name recognition and fundraising capability than a challenger. Although the constitutional basis upon which Appellants’ rest this contention is not entirely clear, in essence it seems to be that the provisions are biased in favor of an incumbent because they fail to place a challenger on an equal footing with the incumbent and are thereby coercive with respect to challengers.

The Appellants contend that the present statute is designed to make it more difficult for a challenger to mount a credible campaign against an incumbent, thus claiming that the Minnesota legislature intended to discriminate against challengers. As support for this argument, they focus on the change in the statute which permits any nonparticipating opponent to trigger the waiver for a participating candidate, in contrast to the prior expenditure waiver wherein only a major-party candidate could trigger the waiver. The Appellants contend that by eliminating this loophole, the State has eliminated the only realistic method by which a challenger can run a credible campaign: by running as a nonparticipating, privately-financed, independent candidate. Before the statute was amended, an independent challenger, i.e., one not a major-party candidate, could raise an unlimited amount of money and make an unlimited amount of campaign expenditures, and his publicly-financed incumbent opponent would still be bound to the expenditure limits.

The Appellants offer the comments of a long-time incumbent member of the Minnesota House of Representatives as support for their argument that, by enacting the 1996 amendment, the Minnesota legislature sought to discriminate against challengers. This legislator stated her belief that the amendment was necessary to correct a circumstance that she had personally encountered in her previous election campaign: her independent, privately-financed, non-major-party opponent was able to spend an unlimited amount on the campaign while, because of the major-party clause, she was still bound by the expenditure limits applicable to her office as a publicly financed candidate. This legislator went on to state that she was a member of the conference committee that sponsored the previous expenditure limitation waiver and that it was not the intent of the sponsors of the previous bill to create the situation she encountered in her campaign; therefore, she argued that the amendment should be adopted to make the triggering act applicable to all candidates. The Appellants argue that this illustrates the invidious anti-challenger intent behind the enactment of the amendment. There are, however, numerous flaws in the argument.

First, as we noted above, we are not inclined to impute the statements of an individual legislator concerning the purpose underlying a particular piece of legislation to the entire legislative body. Second, even if we were, these statements do not illustrate that the members of the Minnesota legislature sought, by enacting the amendment, to make it difficult for a challenger to mount a credible challenge. The amendment simply eliminated a loophole in the expenditure limitation waiver, the effect of which the prior legislature did not envision. It is, quite simply, nothing more than a curative act. A statute which makes its requirements applicable to all candidates, regardless of party affiliation, can hardly be deemed discriminatory. We cannot identify any discriminatory purpose in this legislator’s statements, or in the Minnesota legislature in general, as the reason for the enactment of the 1996 amendment.

As the RNC court aptly observed, in every race for elected office one candidate possesses certain advantages over his opponent, regardless of whether the campaigns are publicly or privately funded, and that it is inconsistent with the purposes underlying a public campaign financing program to attempt to eliminate this discrepancy. 487 F.Supp. at 285-87. Further, the Appellants have presented no persuasive evidence that the Minnesota legislature was motivated by a discriminatory purpose against challengers when it enacted these provisions, which on their face apply evenhandedly to all candidates for a particular public office. See Buckley, 424 U.S. at 31, 96 S.Ct. at 641 (“Absent record evidence of invidious discrimination against challengers as a class, a court should generally be hesitant to invalidate legislation which on its face imposes evenhanded restrictions.”).

Finally, the Appellants fail to acknowledge the ways that the State’s program actually operates to the benefit of challengers, rather than to their detriment. For instance, in'a situation where the challenger enrolls in the State’s financing system, an incumbent opponent, who the Appellants aver possesses greater name recognition and fundraising ability, is confronted with the choice of whether to enroll in the State’s public financing plan or opt for private funding for the campaign. If the incumbent enrolls in the State’s public financing plan, then he is bound by the State’s expenditure limits and his alleged advantage in fundraising capacity is diminished significantly.¹³ On the other hand, if the incumbent opted in favor of private funding, the publicly financed challenger would be permitted to disregard the expenditure limits and retain the public subsidy once the privately funded incumbent exceeded the triggering levels in either contributions or expenditures. In either situation, significant benefits accrue to the challenger. Moreover, for the challenger who actually possesses no name recognition or fundraising ability, enrollment in the State’s plan can be particularly advantageous: Assuming he meets the threshold’ requirements to be eligible for public funding, the unknown candidate receives a- public subsidy simply for agreeing to limit expenditures. See Buckley, 424 U.S. at 107-08, 96 S.Ct. at 677 (“candidates with lesser fundraising abilities will gain substantial benefits from matching funds. In addition, one eligibility requirement for matching funds is acceptance of an expenditure ceiling, and candidates with little fundraising ability will be able to increase their spending relative to candidates capable of raising large amounts in private funds.”). Finally, the State’s program provides an additional benefit for first-time candidates; such a candidate is permitted to exceed the specified expenditure limits by 10 percent, presumably to permit the candidate to attempt to close any name recognition gap enjoyed by the incumbent. See Minn.Stat. Ann. § 10A.25(2)(e).'

Thus, the State’s plan cannot in any manner be construed to impermissibly discriminate against challengers.¹⁴

■ In sum, we believe that the amended statute does not burden a candidate’s First Amendment rights. Even if it does burden the candidate’s Free Speech rights, it survives strict scrutiny, and it does not imper-missibly discriminate against challengers.

V.

We have examined the remaining issues and subissues raised by the Appellants and have determined that they lack merit. For the reasons enumerated above, we affirm the judgment of the district court.

1 . The Honorable Richard H. Kyle, United States District Judge for the District of Minnesota.

2 . To clarify, however, this is the total dollar amount which may be claimed as a refund in a calendar year for a contribution or contributions made to candidates participating in the State's scheme. In other words, although an individual may have made contributions to participating candidates in a calendar year totaling $500, that individual may only claim a $50 refund for that year.

3 . Additionally, the district court declared unconstitutional an additional provision the Appellants challenged, Minn.Stat. § 10A.25(10)(b)(iii) (West Supp.1996). This provision provided that when a publicly funded candidate faces a major party candidate who does not enroll in the State’s public funding program, the publicly funded candidate also is eligible to receive all or part of the subsidy which was set aside for his opponent. Although the Appellants repeatedly attack the constitutionality of this provision in their brief, the State has not appealed the district court's ruling that this provision is unconstitutional. Accordingly, its validity is not before us, and we decline to discuss it further, except to observe that the Act of April 11, 1996, repealed the provision.

4 . Although neither Appellant was successful in his quest for public office, both claim that they harbor future political aspirations and intend to run for state office. Thus, this case is not moot because it involves issues which are "capable of repetition, yet evading review.” Moore v. Ogilvie, 394 U.S. 814, 816, 89 S.Ct. 1493, 1494, 23 L.Ed.2d 1 (1969) (internal quotations omitted); see also Whitton v. City of Gladstone, 54 F.3d 1400, 1402 n. 5 (8th Cir.1995) (same).

5 . Rhode Island's scheme also possessed several other features which are similar or identical to the State's scheme before us. For candidates that opted for public financing, Rhode Island matched contributions the candidate raised through private means up to a certain specified amount. Id. at 30. Additionally, a publicly financed candidate was permitted to exceed the expenditure limits and retain the public subsidy if opposed by a privately financed candidate who exceeded the expenditure limit in either campaign contributions or expenditures. Id. at 30 n. 5. However, the Vote Choice plaintifficandidate did not challenge either of these aspects of Rhode Island’s scheme and thus the court did not assess their validity.

6 . We point out, only as an illustration of how the statute actually works to the benefit of nonparticipants and thus cannot be construed to "coerce” enrollment, that it is possible that under certain circumstances the amendment could be employed to work to the substantial disadvantage of participants. This disadvantage arises from the temporal impediment a participating candidate faces before he is released from the expenditure limits; that is, he is only released when his opponent triggers the waiver. Specifically, if a nonparticipating candidate waited until the final days before an election to exceed the triggering limits, and then waged an all-out campaign blitz, the publicly-financed candidate, who is not released from the limits until his opponent triggers the waiver, potentially would not have sufficient time to raise enough campaign funds to effectively counter his opponent’s campaign blitz. Obviously, such a sequence of events could be particularly harmful to the publicly-financed candidate’s chances of electoral success. In any event, we simply offer this example to illustrate that because the privately-financed candidate alone determines whether the publicly-financed candidate will be permitted to exceed the limits, it cannot seriously be argued that the State’s scheme coerces candidate participation.

7 . We also disagree with the Appellants' argument that in order to make participation in a public funding scheme truly voluntary, the governmental entity must provide more funding to the publicly funded candidate than the candidate could raise through private means. Aside from the fact that it would be an exercise in pure speculation to determine the amount a given candidate for a particular office could raise in a campaign, the public financing cases have imposed no such requirement. Cf. RNC, 487 F.Supp. at 285 (rejecting argument that public financing scheme was coercive because it offered more public funds than the candidate claimed he could privately raise). This claim is also undermined by evidence in the record illustrating that the average publicly financed campaign for a state senate or house of representatives seat spends only approximately % of the amount permitted by the applicable expenditure limit. Thus, most publicly financed candidates do not make campaign expenditures which even approach the applicable expenditure limits. We accordingly decline to further address this somewhat unorthodox argument.

8 . The State contends that we should apply the intermediate level of scrutiny articulated in United States v. O’Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 1679, 20 L.Ed.2d 672 (1968), rather than strict scrutiny, to the refund provision. Seizing upon an excerpt from Buckley, the State contends that the Supreme Court indicated that a lower level of scrutiny applies in evaluating governmental regulations involving campaign contributions. (See State's Br. at 40.) However, we recently held, after carefully reviewing Buckley, that strict scrutiny is the appropriate standard for analyzing regulations of campaign contributions. Carver v. Nixon, 72 F.3d 633, 637—38 (8th Cir.1995), cert. denied, - U.S. -, 116 S.Ct. 2579, 135 L.Ed.2d 1094 (1996).

9 . This is especially trae in a system like Minnesota’s, in which the publicly financed candidate will receive a public subsidy of no more than 50 percent of the expenditure limits. Thus, the candidates, even if publicly funded, still have certain private fund raising needs.

Indeed, the Appellants seem to have acknowledged as much in their memorandum in support of their motion for summary judgment, where they stated that the expenditure limitation waiver

might be seen as simply an attempt to protect those who agree to limits. If the limits stayed on no matter what level of spending the opponent engaged in, those who agreed to limits would be at a severe competitive disadvantage in those cases. Candidates who agreed to limit spending would soon be eliminated by the equivalent of natural selection. The legislature could reasonably have concluded that both of these features were essential to give the new system of spending - limits a fair chance to succeed.

(Appellants’ Addend, at 32 (quoting Appellants’ mem. in supp. of mot. for summ. j. at 9).)

10 . The district court determined that the contribution refund was constitutionally permissible as applied to candidates as well as contributors. Neither of the Appellants has made any showing or argument that their First Amendment rights as campaign contributors have been adversely impacted because of the refund provision. Accordingly, we confine our analysis to the effect upon the Appellants’ rights as political candidates.

11 . We also reject the Appellants’ claim that the language of the refund receipt form puts the State’s imprimatur on publicly funded candidates. The receipt merely informs the contributor in innocuous language that the candidate has agreed to abide by certain campaign expenditure limits and that the contributor may obtain a refund on any contribution to that candidate.

12 . The independent expenditure provision at issue in Day operated to increase the expenditure limit for a publicly financed candidate in an amount expended by a political committee or political fund either advocating the candidate’s defeat or in support of the candidate's opponent. For example, assuming candidate X is publicly funded and he is opposed by candidate Y, when a political committee or fund expends $1000 in support of Y or in opposition to X, candidate X's expenditure limits increase by $1,000.

13 . The incumbent's alleged advantage would not be reduced to a complete nullity because publicly financed candidates must still raise at least 50 percent of their campaign funding through private means.

14 . We also decline to consider the Appellants’ argument that Service Employees Int'l Union v. Fair Political Practices Comm'n, 955 F.2d 1312 (9th Cir.), cert. denied, 505 U.S. 1230, 112 S.Ct. 3056 & 3057, 120 L.Ed.2d 922 (1992), counsels in favor of a conclusion that the State's scheme favors incumbents. At issue in Service Employees was a California contribution limit that was keyed to fiscal years, rather than an entire election cycle. Id. at 1314-15. The Service Employees court held that such a limitation impermissi-bly favored incumbents because they were able to receive campaign contributions up to the limits each year in the election cycle, whereas challengers, whom the court suggested typically do not decide to run for office until the year of the election, would only be able to collect contributions for one year. Id. at 1316-21. The Appellants point out that the State in this case similarly calculates its contribution limits on a calendar year, rather than election cycle, basis. However, the Appellants have challenged this element of the State’s financing scheme for the first time on appeal. Neither their complaint nor the parties or the district court below mentioned this issue. Thus, this particular argument has been waived. See United States v. One Parcel of Property, 959 F.2d 101, 104 (8th Cir.1992) (argument not raised in the district court is waived).