Donald Zimmerman v. City of Austin, Texas

Case: 16-51366 Document: 00514331738 Page: 1 Date Filed: 02/01/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 16-51366 Fifth Circuit
FILED
February 1, 2018
DONALD ZIMMERMAN, Lyle W. Cayce
Clerk
Plaintiff - Appellant Cross-Appellee
v.
CITY OF AUSTIN, TEXAS,
Defendant - Appellee Cross-Appellant
Appeals from the United States District Court
for the Western District of Texas
Before SMITH, BARKSDALE, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:
Donald Zimmerman, a former Austin City Councilmember, challenges
four provisions of Austin’s campaign-finance law: a base limit on contributions
to candidates; an aggregate limit on contributions from persons outside of the
Austin area; a temporal restriction prohibiting all contributions before the six
months leading up to an election; and a disgorgement provision requiring
candidates to distribute excess campaign funds remaining at the end of an
election. Following a bench trial, the district court upheld the base limit,
concluded that Zimmerman lacked standing to challenge the aggregate limit,
and struck down the temporal restriction and the disgorgement provision as
Case: 16-51366 Document: 00514331738 Page: 2 Date Filed: 02/01/2018
No. 16-51366
unconstitutional abridgements of First Amendment rights. For the following
reasons, we affirm.
I.
A.
In 1997, voters in the city of Austin, Texas, approved a ballot initiative
to amend the City Charter and add various restrictions on campaign
contributions and expenditures. The measure passed with 72% of the vote. It
was spearheaded by a group called “Austinites for a Little Less Corruption!
a/k/a/ No More Corruption!” and, according to testimony presented at trial, was
a response to the public perception that large campaign contributions from
land developers and those with associated interests were creating a corrupt,
“pay-to-play” system in Austin politics.
Four of the restrictions are at issue here. First, Article III, § 8(A)(1)—
the base contribution limit—prohibits candidates for mayor or city council from
accepting campaign contributions of more than “$300 per contributor per
election from any person,” with that amount to be adjusted annually for
inflation. Austin, Tex. Code, Art. III, § 8(A)(1). At the time this suit was filed,
the applicable limit was $350. Second, § 8(A)(3)—the aggregate contribution
limit—prohibits candidates from accepting “an aggregate contribution total of
more than $30,000 per election, and $20,000 in the case of a runoff election,
from sources other than natural persons eligible to vote in a postal zip code
completely or partially within the Austin city limits,” (which the parties refer
to as the “zip code envelope”). Id. § 8(A)(3). Those amounts are also subject to
adjustment for inflation, and were $36,000 and $24,000, respectively, at the
time this suit was filed. Third, § 8(F)(2)—the temporal restriction—prohibits
candidates or officeholders from soliciting or accepting political contributions
except for during the 180 days before an election. Id. § 8(F)(2). Finally, §
8(F)(3)—the disgorgement provision—requires candidates to “distribute the
2
Case: 16-51366 Document: 00514331738 Page: 3 Date Filed: 02/01/2018
No. 16-51366
balance of funds received from political contributions in excess of any
remaining expenses” to the candidate’s contributors, a charitable organization,
or the Austin Fair Campaign Fund. Id. § 8(F)(3). Candidates may, however,
retain up to $20,000 “for the purposes of officeholder expenditures.” Id. §
8(F)(6).
As will become relevant, Texas law distinguishes between “campaign
contributions” and “officeholder contributions.” “Campaign contributions” are
contributions “to a candidate or political committee that [are] offered or given
with the intent that [they] be used in connection with a campaign for elective
office or on a measure.” Tex. Elec. Code § 251.001(3). “Officeholder
contributions” are contributions “to an officeholder or political committee that
[are] offered or given with the intent that [they] be used to defray” officeholder
expenses. Id. § 251.001(4). The catchall phrase “political contribution”
includes both campaign contributions and officeholder contributions. Id. §
251.001(5). Section 8(A)(1) of Austin’s Charter refers to either “campaign
contributions,” Austin, Tex. Code, Art. III, § 8(A)(1), or “contribution[s]”
generally, id. § 8(A)(3). Section 8(F), which specifically states that it
incorporates the definitions set forth in the Texas Election Code, id. § 8(F)(1),
refers to “political contributions.” Id. § 8(F)(2)–(6).
B.
Donald Zimmerman ran for the District 6 seat on Austin’s city council in
2014. District 6, located in northwest Austin, had an estimated population of
92,721 in 2014, with 70,808 eligible voters. Six candidates competed for the
District 6 seat. Zimmerman won the general election and the ensuing runoff.
After serving a two-year term, he ran for re-election in 2016 and lost.
Zimmerman initiated this lawsuit in July 2015, alleging that the four
provisions of the Austin City Charter enumerated above are unconstitutional
restrictions on free speech. After a bench trial, the district court held that the
3
Case: 16-51366 Document: 00514331738 Page: 4 Date Filed: 02/01/2018
No. 16-51366
base limit was constitutional in light of the city’s interest in preventing quid
pro quo corruption; that Zimmerman did not have standing to challenge the
aggregate limit because he did not come close to reaching the relevant limits;
that the temporal restriction was an unconstitutional limit on contributions
because the city had failed to show that it was sufficiently tailored to serve an
interest in preventing quid pro quo corruption; and that the disgorgement
provision was an unconstitutional restriction on expenditures because the city
had failed to show that it was the least restrictive means of preventing quid
pro quo corruption. The district court permanently enjoined Austin from
enforcing the temporal restriction and the disgorgement provision. The parties
timely cross-appealed the rulings adverse to them.
C.
“The standard of review for a bench trial is well established: findings of
fact are reviewed for clear error and legal issues are reviewed de novo.”
Guzman v. Hacienda Records & Recording Studio, Inc., 808 F.3d 1031, 1036
(5th Cir. 2015) (quoting One Beacon Ins. Co. v. Crowley Marine Servs., Inc., 648
F.3d 258, 262 (5th Cir. 2011)). “A finding of the trial judge ‘is clearly erroneous
when although there is evidence to support it, the reviewing court on the entire
evidence is left with the definite and firm conviction that a mistake has been
committed.’” Id. (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 573
(1985)). Accordingly, we review the trial judge’s factual findings with great
deference, and cannot reverse them simply because we would reach a different
conclusion. See id. “Where there are two permissible views of the evidence,
the factfinder’s choice between them cannot be clearly erroneous.” Anderson,
470 U.S. at 574.
4
Case: 16-51366 Document: 00514331738 Page: 5 Date Filed: 02/01/2018
No. 16-51366
II.
Zimmerman first challenges the district court’s decision regarding the
$350 base limit on campaign contributions. 1 He contends that the base limit
is subject to strict scrutiny as either a content-based restriction on speech or
an indirect burden on campaign expenditures and that it fails to pass muster
under that stringent standard. Alternatively, he contends that even if strict
scrutiny does not apply, the limit is not justified by a sufficiently important
governmental interest and, even if it were, it is not sufficiently tailored to that
interest. We disagree on all points.
A.
First, the limit is not a content-based restriction on speech. Zimmerman
argues that the base limit applies only to campaign contributions, but not
officeholder contributions, because the language of the base limit refers only to
“campaign contributions,” while other provisions in the Charter refer more
broadly to “political contributions”—which, under the Texas Election Code,
includes both “campaign contributions” and “officeholder contributions.”
According to his argument, that leaves officeholders free to collect unlimited
amounts for the purpose of defraying officeholder expenses, including the
production and dissemination of constituent newsletters, see Austin, Tex. Code
§ 2-2-41 (stating that officeholders may use funds from officeholder accounts
for the purpose of “newsletters”). On that basis, Zimmerman argues that
1 The base limit applies to contributions to candidates for both mayor and city council.
Austin Tex. Code, Art. III, § 8(A)(1). However, we restrict our review to only the limit on
contributions to candidates for city council because Zimmerman has not run for mayor in the
past nor alleged any intent to run for mayor and thus does not have standing to challenge
Austin’s contribution limits as they apply to mayoral candidates. See Daggett v. Comm’n on
Gov’t Ethics & Election Practices, 205 F.3d 445, 462–63 (1st Cir. 2000) (affirming dismissal
of challenge to gubernatorial campaign limits on standing grounds where no plaintiff had run
for governor in the past or claimed that, but for the limit, they would give more than the
challenged limit to a gubernatorial candidate).
5
Case: 16-51366 Document: 00514331738 Page: 6 Date Filed: 02/01/2018
No. 16-51366
because a contributor can give only $350 to fund campaign speech but can give
an unlimited amount to fund a newsletter describing an incumbent’s
achievements, the base limit constitutes a content-based restriction on speech.
Austin responds that the base limit draws no such distinction between
campaign contributions and officeholder contributions. It points first to
subsection (G) of Article III, Section 8 of the Charter, which provides that
“[a]ny incumbent mayor or councilmember is subject to the regulations applied
to candidates for the office he or she holds.” Austin, Tex. Code, Art. III, § 8(G).
It also points to subsection (F), the only subsection of Article III, § 8 that states
that its terms “have the same meaning they have in Title 15 of the Texas
Election Code.” Id. § 8(F). Because the base limit appears in subsection (A),
Austin argues that it does not incorporate the definitions from the Texas
Election Code and that, although subsection (A) refers only to “campaign
contributions,” it is intended to reach any contribution to a candidate or
incumbent officeholder. Finding Austin’s interpretation to be a reasonable
interpretation of the Charter, and one that avoids a possible constitutional
conflict, we defer to it. See Voting for Am., Inc. v. Steen, 732 F.3d 382, 387 (5th
Cir. 2013) (“We defer to [a city’s] interpretation of how the law is to be enforced,
so long as it does not conflict with the statutory text.” (quoting Voting for Am.,
Inc. v. Andrade, 488 F. App’x 890, 895 (5th Cir. 2012))); id. (“Our task as a
federal court is, to the extent possible, to construe the provisions to avoid a
constitutional conflict.” (quoting Voting for Am., Inc., 488 F. App’x at 895)). In
light of that interpretation, the base limit does not constitute a content-based
regulation on speech.
Zimmerman’s second argument for strict scrutiny is more easily disposed
of. He contends that the base limit burdens expenditures and that burdens on
expenditures, even indirect ones, are subject to strict scrutiny. See, e.g., Ariz.
Free Enter. Club’s Freedom Club PAC v. Bennett, 564 U.S. 721, 736–40, 748
6
Case: 16-51366 Document: 00514331738 Page: 7 Date Filed: 02/01/2018
No. 16-51366
(2011) (applying strict scrutiny to law that indirectly burdened expenditures
by penalizing personally financed candidates for spending above a certain
threshold). In some vague sense, of course, contribution limits indirectly
burden expenditures. You have to raise money to spend it, and contribution
limits mean that you cannot raise as much from any one contributor. But the
Supreme Court has been clear that contribution limits are analytically distinct
from expenditure limits, create a far lesser burden on speech, and, for that
reason, are subject to less searching scrutiny. See FEC v. Colo. Republican
Fed. Campaign Comm’n, 533 U.S. 431, 437 (2001) (noting “line between
contributing and spending”); FEC v. Mass. Citizens for Life, Inc., 479 U.S. 238,
259–60 (1986) (“We have consistently held that restrictions on contributions
require less compelling justification than restrictions on independent
spending.”). We decline Zimmerman’s invitation to blur the line that the
Supreme Court has drawn.
B.
As a limit on political contributions, Austin’s base limit is subject to the
closely-drawn test set forth in Buckley v. Valeo, 424 U.S. 1, 25 (1976). In
Buckley, the Supreme Court explained that contribution limits are generally
subject to a lower level of scrutiny than expenditure limits because “a
limitation upon the amount that any one person or group may contribute to a
candidate or political committee entails only a marginal restriction upon the
contributor’s ability to engage in free communication.” Id. at 20. Because “[a]
contribution serves as a general expression of support for the candidate and
his views, but does not communicate the underlying basis for the support,” the
communicative value of a contribution “does not increase perceptibly with the
size of [the] contribution.” Id. at 21. A contribution limit therefore “involves
little direct restraint on [a contributor’s] political communication.” Id.
However, contribution limits do impinge on associational freedoms by limiting
7
Case: 16-51366 Document: 00514331738 Page: 8 Date Filed: 02/01/2018
No. 16-51366
a contributor’s ability to affiliate him or herself with a candidate. Id. at 22.
And, while they do not directly relate to a candidate’s ability to speak,
contribution limits “could have a severe impact on political dialogue if the
limitations prevented candidates and political committees from amassing the
resources necessary for effective advocacy.” Id. at 21. Accordingly, they are
subject to something akin to intermediate scrutiny and “may be sustained if
the [governmental entity] demonstrates a sufficiently important interest and
employs means closely drawn to avoid unnecessary abridgment of
associational freedoms.” Id. at 25.
1.
The only governmental interests yet recognized by the Supreme Court
as sufficient to justify limits on campaign contributions are the prevention of
actual corruption and its appearance. See id. at 26–27 (defining interest in
terms of “limit[ing] the actuality and appearance of corruption resulting from
large individual financial contributions”); McCutcheon v. FEC, 134 S. Ct. 1434,
1450 (2014); Citizens United v. FEC, 558 U.S. 310, 359 (2010). While the
importance of those interests is beyond dispute, their invocation still must be
justified with some evidentiary showing that the state or locality enacting a
contribution limit faces a problem of either actual corruption or its appearance.
Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377, 390–94 (2000). “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 justification raised.” Id. at 391. When following a well-trodden path, the
evidentiary bar is not high, but the existence or perception of corruption must
still be more than “mere conjecture.” Id. at 391–92.
8
Case: 16-51366 Document: 00514331738 Page: 9 Date Filed: 02/01/2018
No. 16-51366
Here, Austin has demonstrated a sufficiently important interest in
preventing either actual corruption or its appearance. 2 Austin presented
evidence—credited by the district court—that there was a perception of
corruption among Austinites before the limit’s enactment in 1997. The
evidence presented, including testimony that large contributions created a
perception that economic interests were “corrupting the system” and turning
the City Council into a “pay-to-play system,” as well as the fact that 72% of
voters voted in favor of the base limit, is exactly the kind of evidence that the
Supreme Court in Shrink Mo. found clearly sufficient. See id. at 393–94
(stating that the case did “not present a close call” regarding the sufficiency of
the state’s justification based on testimony that “large contributions have ‘the
real potential to buy votes,’” “newspaper accounts of large contributions
supporting inferences of impropriety,” and the fact “an overwhelming 74
percent of the voters” approved the limit (alteration omitted)).
In a creative attempt to evade this Supreme Court guidance,
Zimmerman contends that Austin’s base limit cannot be justified by an interest
in preventing corruption because the limit is too low. He reasons that Buckley
defined the interest in preventing corruption in terms of large contributions,
and that Austin’s $350 limit bars contributions that are not large and therefore
do not implicate the interest in preventing actual corruption. But that
conflates Buckley’s government-interest inquiry with its tailoring inquiry.
Buckley sets out a two-part test. First, the need for a contribution limit must
be justified by a sufficiently important interest. See 424 U.S. at 26–28. Second,
the amount of the limit must be sufficiently tailored such that the limit does
2 Zimmerman argues that the legitimacy of Austin’s asserted interest is undermined
by the fact that the limit applies to campaign contributions but not officeholder contributions,
and is therefore underinclusive. However, that argument is of no help because, as we
concluded above, we defer to Austin’s interpretation of its Charter under which there is not
a distinction drawn between campaign contributions and officeholder contributions.
9
Case: 16-51366 Document: 00514331738 Page: 10 Date Filed: 02/01/2018
No. 16-51366
not unnecessarily impinge First Amendment rights. See id. at 28–29; see also
Shrink Mo., 528 U.S. at 395–97 (considering amount of limit in context of
tailoring inquiry, after finding limit justified by government interest in
preventing corruption or its appearance). Austin’s choice to set the
contribution limit at $350 goes to whether the limit is sufficiently tailored, not
whether Austin had a sufficiently important interest to justify setting any
contribution limit at all. Concluding that Austin had such an interest, we turn
to consider whether the limit it established is “closely drawn to avoid
unnecessary abridgment of associational freedoms.” Buckley, 424 U.S. at 25.
2.
There is no constitutional minimum contribution amount below which
legislatures cannot regulate. Shrink Mo., 528 U.S. at 397. Rather, a
contribution limit is unconstitutional if it is “so radical in effect as to render
political association ineffective, drive the sound of a candidate’s voice below the
level of notice, and render contribution pointless.” Id. While courts have “no
scalpel to probe” what limit is low enough to prevent actual corruption or its
appearance but not a dollar lower, Randall v. Sorrell, 548 U.S. 230, 248–49
(2006) (quoting Buckley, 424 U.S. at 30), they nonetheless must “exercise . . .
independent judicial judgment as a statute reaches [the] outer limits” of what
is constitutionally permissible, id. at 249. Accordingly, where there are
“danger signs” that a limit may be so low that it risks “preventing challengers
from mounting effective campaigns,” then “courts, including appellate courts,
must review the record independently and carefully with an eye toward
assessing the statute’s ‘tailoring,’ that is, toward assessing the proportionality
of the restrictions.” Id. at 249.
Here, there are no such “danger signs.” First, unlike in Randall, Austin’s
contribution limit is per election, not per election cycle, meaning that it is reset
between general and runoff elections. Compare id. (finding danger sign
10
Case: 16-51366 Document: 00514331738 Page: 11 Date Filed: 02/01/2018
No. 16-51366
present where limit was per election cycle, including primary and general
elections) with Austin, Tex. Code, Art. III, § 8(A)(1) (establishing contribution
limit “per election”) and id. Art. I, § 2-2-7(A) (“A general election, special
election, and a runoff election each have . . . separate campaign periods for
purposes of City Charter Article III, Section 8 . . . .”). Second, the $350 limit is
on par with limits imposed in other states and localities and upheld by other
courts. See Randall, 548 U.S. at 250 (finding danger sign where limit at issue
was below those imposed by other states and upheld in the past). For example,
in Shrink Mo. the Supreme Court upheld Missouri’s $275 limit—which,
adjusted for inflation, was equivalent to approximately $390 at the time this
appeal was filed—on contributions to candidates for any office representing
fewer than 100,000 people. See 528 U.S. at 383; see also Frank v. City of Akron,
290 F.3d 813, 818 (6th Cir. 2002) (upholding limits of $100 on contributions to
candidates for ward council member and $300 on contributions to candidates
for at-large council member and mayor in city of approximately 217,000).
Austin’s $350 limit on contributions to candidates for city council, who
represent districts of approximately 100,000 people, is not so low by
comparison as to raise suspicion. 3 Furthermore, and unlike the limit at issue
in Randall, Austin’s contribution limit is indexed for inflation. Compare 548
U.S. at 251–52 (finding danger sign where contribution limit was lower than
those upheld in prior cases and not indexed for inflation) with Austin, Tex.
Code, Art. III, § 8(A)(1) (stating that contribution limit shall be adjusted
annually in accordance with the Consumer Price Index).
Ultimately, a contribution limit is closely drawn so long as it does not
“prevent candidates from ‘amassing the resources necessary for effective
3 In 2015, District 6, the district in which Zimmerman ran, had an estimated
population of 95,502. That appears from the record to be slightly higher than the average
district population.
11
Case: 16-51366 Document: 00514331738 Page: 12 Date Filed: 02/01/2018
No. 16-51366
[campaign] advocacy’” or “magnify the advantages of incumbency to the point
where they put challengers to a significant disadvantage.” Randall, 548 U.S.
at 248 (quoting Buckley, 424 U.S. at 21). Here, there was evidence presented,
and credited by the district court, that the contribution limit did not prevent
candidates from running “full-fledged” campaigns. One former council person
testified that the limit did “[n]ot at all” impede her ability to run an effective
campaign and that, in fact, the limit was “good for democracy” because it meant
that she “was out there talking to a heck of a lot more people.” And as to the
advantages of incumbency, Zimmerman himself, an incumbent, was defeated
when he ran for reelection in 2016. Accordingly, because the limit does not
“render political association ineffective, drive the sound of a candidate’s voice
below the level of notice, [or] render contribution pointless,” Shrink Mo., 528
U.S. at 397, we do not disturb Austin’s decision to set the limit at $350. See
McCutcheon, 134 S. Ct. at 1456 (stating that a campaign-finance regulation
need not be “perfect” or “the single best disposition” but “reasonable” and
proportional to the interest served).
III.
Zimmerman next challenges the district court’s determination with
respect to the aggregate limit. The district court held that Zimmerman lacked
standing to challenge the aggregate limit because he had not established a
sufficient injury-in-fact traceable to that limit. We agree.
“The requirement that a litigant have standing derives from Article III
of the Constitution, which confines federal courts to ‘adjudicating actual
“cases” and “controversies.”’” Moore v. Bryant, 853 F.3d 245, 248 (5th Cir.
2017) (quoting Henderson v. Stalder, 287 F.3d 374, 378 (5th Cir. 2002)). “A
plaintiff who challenges a statute must demonstrate a realistic danger of
sustaining a direct injury as a result of the statute’s operation or enforcement.”
Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979).
12
Case: 16-51366 Document: 00514331738 Page: 13 Date Filed: 02/01/2018
No. 16-51366
Standing “requires that the plaintiff demonstrate that he or she ‘has suffered
an “injury in fact,” that the injury is “fairly traceable” to the actions of the
defendant, and that the injury will likely be redressed by a favorable decision.’”
Assoc. of Cmty. Orgs. for Reform Now (ACORN) v. Fowler, 178 F.3d 350, 356
(5th Cir. 1999) (quoting Bennett v. Spear, 520 U.S. 154, 162 (1997)). An “injury
in fact” “must be ‘(a) concrete and particularized and (b) actual or imminent,
not conjectural or hypothetical’ to pass constitutional muster, but it need not
measure more than an ‘identifiable trifle.’” Id. at 358 (internal citation
omitted) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992);
United States v. Students Challenging Regulatory Agency Procedures (SCRAP),
412 U.S. 669, 689 n.14 (1973)). To establish an injury sufficient to raise a First
Amendment facial challenge, “a plaintiff must produce evidence of an intention
to engage in a course of conduct arguably affected with a constitutional
interest, but proscribed by statute.” Nat’l Fed’n of the Blind of Tex. v. Abbott,
647 F.3d 202, 209 (5th Cir. 2011) (quoting Miss. State Democratic Party v.
Barbour, 529 F.3d 538, 545 (5th Cir. 2008)). A plaintiff’s burden to establish
standing changes with the procedural posture of the case. See ACORN, 178
F.3d at 357. This being an appeal from a bench trial, Zimmerman must point
to evidence of actual injury. See Lujan, 504 U.S. at 561.
A.
Zimmerman first contends that the aggregate limit caused an injury in
fact because it caused him to change his campaign strategy and withhold
solicitations he otherwise would have sent to individuals outside of the Austin
area. He stated in a signed declaration that he would like to purchase a list of
conservative donors (costing at least $5,000), but that doing so is “not worth
the time and financial investment when the maximum return [he] can hope for
is artificially limited to $36,000.” However, Zimmerman’s decision to forego
solicitations is not an injury sufficient to confer standing.
13
Case: 16-51366 Document: 00514331738 Page: 14 Date Filed: 02/01/2018
No. 16-51366
First, Zimmerman has failed to establish a serious intention to engage
in conduct proscribed by law. See Miss. State Democratic Party, 529 F.3d at
545–47 (holding that party lacked standing to challenge statute requiring
semi-closed primary elections because it did not take any steps towards holding
a fully closed primary and thus failed to establish a “serious interest” in
violating the statute). The aggregate limit does not preclude solicitations; it
precludes only “accept[ing]” aggregate contributions over the relevant limit
from persons outside of the Austin area. See Austin, Tex. Code, Art. III, §
8(A)(3). Stating his desire to solicit funds thus does not establish an intent to
accept funds above the proscribed limit. And, by choosing to not solicit funds,
Zimmerman did not take steps towards reaching or exceeding the aggregate
limit of the kind that would demonstrate a serious intent to violate the statute.
See Miss. State Democratic Party, 529 F.3d at 546 (“Without concrete plans or
any objective evidence to demonstrate a ‘serious interest’ in [violating a
statute, plaintiff] suffered no threat of imminent injury.”).
Furthermore, his decision cannot be excused on the ground that
soliciting funds from outside of the Austin area would have been futile. The
evidence shows that a list of potential donors from outside of the Austin area
would have cost Zimmerman approximately $5,000. He could have lawfully
accepted up to $36,000 in contributions from such donors. If the investment of
$5,000 would have been futile, it was not so because of the aggregate limit.
Zimmerman’s subjective decision that a potential return of $36,000 was not
worth the $5,000 investment does not excuse him from the Article III
requirement that a plaintiff must face an injury that is actual or imminent and
not conjectural or hypothetical. See id. at 547 (rejecting argument that
standing requirements can be relaxed when taking steps to engage in
prohibited conduct would have been futile, particularly where plaintiff could
have, but did not, take certain lawful steps to protect the right allegedly
14
Case: 16-51366 Document: 00514331738 Page: 15 Date Filed: 02/01/2018
No. 16-51366
injured). Nor can the decision to forego solicitations be excused on the ground
that it alone would have exposed Zimmerman to possible prosecution. Cf.
Babbitt, 442 U.S. at 298 (stating that a plaintiff need not expose himself to
prosecution in order to challenge the law). The aggregate limit prohibits only
“accept[ing]” total contributions of more than $36,000 from persons outside of
the Austin area. Austin, Tex. Code, Art. III, § 8(A)(3). Thus, even if the
solicitations had yielded a flood of out-of-area contributions, Zimmerman could
have demonstrated a serious interest in violating the limit while still
protecting himself from prosecution by not accepting contributions once he
reached (or neared) the limit.
Second, standing cannot be conferred by a self-inflicted injury. See
ACORN, 178 F.3d at 358. While solicitations are a form of protected speech,
see United States v. Kokinda, 497 U.S. 720, 725 (1990), and while government
action that chills protected speech without prohibiting it can give rise to a
constitutionally cognizable injury, see Laird v. Tatum, 408 U.S. 1, 11 (1972), to
confer standing, allegations of chilled speech or “self-censorship must arise
from a fear of prosecution that is not ‘imaginary or wholly speculative.’” Ctr.
for Individual Freedom v. Carmouche, 449 F.3d 655, 660 (5th Cir. 2006)
(quoting Babbitt, 442 U.S. at 302); see also Clapper v. Amnesty Int’l USA, 568
U.S. 398, 416 (2013) (“[R]espondents cannot manufacture standing merely by
inflicting harm on themselves based on their fears of hypothetical future harm
that is not certainly impending.”). Here, the risk that soliciting funds from
persons outside of the Austin area would have resulted in prosecution is
speculative and depends in large part on the actions of third-party donors.
Soliciting funds from persons outside of the Austin area would have resulted
in possible prosecution only if more than 100 such persons contributed the
maximum allowable $350 (and if Zimmerman accepted all such contributions).
There is no evidence in the record of such interested donors. See In re Cao, 619
15
Case: 16-51366 Document: 00514331738 Page: 16 Date Filed: 02/01/2018
No. 16-51366
F.3d 410, 421 (5th Cir. 2010) (holding that political party had standing to
challenge expenditure and contribution limits where evidence showed it had
met the proscribed limits and would have spent more but for the limits).
Finally, while changing one’s campaign plans or strategies in response
to an allegedly injurious law can itself be a sufficient injury to confer standing,
the change in plans must still be in response to a reasonably certain injury
imposed by the challenged law. For example, in Constitutional Party of
Pennsylvania. v. Aichele, 757 F.3d 347 (3d Cir. 2014), and Miller v. Brown, 462
F.3d 312 (4th Cir. 2006), on which Zimmerman relies, the plaintiffs changed
their campaign plans in response to alleged future injuries that were
“inevitable,” see Miller, 462 F.3d at 317, or that had in fact been imposed on
others in the past, see Constitutional Party of Pa., 757 F.3d at 363–64. But
here, prosecution for violating the aggregate limit was far from an inevitable
result of soliciting donations from persons outside of the Austin area.
B.
Zimmerman also contends that his speech has been chilled due to the
threat of an ethics complaint. Relying on Susan B. Anthony List v. Driehaus,
134 S. Ct. 2334 (2014), he contends that Austin permits any person, including
a political opponent, to file an ethics complaint and that Austin’s advice that
liability can be avoided if the violation was not “knowing,” see Austin Tex.
Code, Art. I, § 2-2-5(A) (stating that “a person who knowingly violates this
chapter or a provision of City Charter Article III, Section 8 . . . commits a Class
C misdemeanor”), has been rejected by the Supreme Court. See Susan B.
Anthony List, 134 S. Ct. at 2344 (rejecting argument that because plaintiff had
not stated an intent to make a knowing or reckless false statement, fear of
enforcement of law prohibiting knowing or reckless false statements was
misplaced). While Susan B. Anthony List did reject a similar argument,
Zimmerman misses its broader point. There, relying on Babbitt, the Supreme
16
Case: 16-51366 Document: 00514331738 Page: 17 Date Filed: 02/01/2018
No. 16-51366
Court simply noted that a plaintiff does not have to “confess that he will in fact
violate [a] law” in order to challenge its constitutionality. Id. at 2345; see
Babbitt, 442 U.S. at 301 (holding that plaintiffs had standing to challenge law
prohibiting use of “dishonest, untruthful and deceptive publicity” in consumer
publicity campaigns despite absence of an intent on behalf of plaintiffs to
“propagate untruths” where plaintiffs engaged in publicity campaigns in the
past and stated intent to do so in the future and where “erroneous statement
is inevitable in free debate” (quotation marks omitted)). Nothing in Susan B.
Anthony List, as we read it, changes the core requirement that to bring a
preenforcement challenge, a plaintiff must “produce evidence of an intention
to engage in a course of conduct arguably affected with a constitutional
interest, but proscribed by statute,” Nat’l Fed’n of the Blind of Tex., 647 F.3d
at 209, as well as a “credible threat of prosecution,” Babbitt, 442 U.S. at 298;
accord Susan B. Anthony List, 134 S. Ct. at 2343–44. Zimmerman has failed
to establish such an intention, whether it involves a knowing violation or not.
C.
Finally, Zimmerman contends that he has suffered an injury-in-fact due
to the diversion of resources required to comply with the aggregate limit.
However, there is no evidence that anyone in his campaign actually expended
any additional time or money as a result of the aggregate limit. First, his
campaign manager submitted a declaration stating that “it would take 42
hours of my time to verify [the] voter registration status” of all contributors.
But he does not state that he ever actually spent that time verifying the status
of all contributors. According to his declaration, the only time that he actually
went through the steps necessary to verify voter-registration status was in
order to verify the signatures on Zimmerman’s ballot-access petition. Because
he did not actually expend any additional resources in order to comply with the
aggregate limit, Zimmerman’s injury in this regard is hypothetical.
17
Case: 16-51366 Document: 00514331738 Page: 18 Date Filed: 02/01/2018
No. 16-51366
Second, Zimmerman contends that compliance with the aggregate limit
has caused an injury because it takes time just to keep a “running tally” of
contributions by zip code. However, according to the trial testimony of a
campaign consultant, maintaining a database of contributors by zip code
appears to be a standard campaign practice. Accordingly, the time spent
maintaining a “tally” of contributions by zip code is insufficient to establish
standing. See ACORN, 178 F.3d at 359 (rejecting argument for injury based
on resource expenditure where ACORN “failed to show that any of its
purported injuries relating to monitoring costs were in any way caused by any
action by [the defendant] that ACORN now claims is illegal, as opposed to part
of the normal, day-to-day operations of the group”).
IV.
Austin challenges the district court’s conclusion that the six-month
temporal limit on fundraising is unconstitutional. Finding that Austin had
failed to present evidence “to show how a contribution made seven months
before election day presents a different threat of quid pro quo corruption than
a contribution made three months before election day,” the district court
concluded that Austin had failed to establish that the limit served the interest
of preventing actual corruption or its appearance. Once again, we agree with
the district court.
As with dollar limits, temporal limits on contributions are subject to
Buckley’s “closely-drawn” test. See Catholic Leadership Coal. of Tex. v.
Reisman, 764 F.3d 409, 432 (5th Cir. 2014). Accordingly, Austin must show (1)
that the six-month limit serves the sufficiently important interest of
preventing actual corruption or its appearance and (2) that it employs means
that are closely drawn. See Buckley, 424 U.S. at 25; McCutcheon, 134 S. Ct. at
1450. As before, Austin must justify the limit with some evidence of actual
corruption or its appearance. See Shrink Mo., 528 U.S. at 391–95.
18
Case: 16-51366 Document: 00514331738 Page: 19 Date Filed: 02/01/2018
No. 16-51366
Furthermore, following McCutcheon, an additional limit on contributions
beyond a base contribution limit that is already in place must be justified by
evidence that the additional limit serves a distinct interest in preventing
corruption that is not already served by the base limit. See 134 S. Ct. at 1452
(addressing an aggregate limit on how much money any one donor may
contribute in total to all candidates and stating that “if there is no risk that
additional candidates will be corrupted by donations of up to $5,200”—the
applicable base limit—“then the Government must defend the aggregate limits
by demonstrating that they prevent circumvention of the base limits”); Holmes
v. FEC, 875 F.3d 1153, 1161 (D.C. Cir. 2017) (stating that an “additional
constraint ‘layered on top’ of the base limits” must “separately . . . serve the
interest in preventing the appearance or actuality of corruption” (quoting
McCutcheon, 134 S. Ct. at 1458)). That is to say, Austin needed to establish
that even if a $350 contribution near the time of an election is not likely to lead
to actual corruption or its appearance, the same contribution made at another
time is. Furthermore, while the quantum of evidence needed is not clearly
established, see Shrink Mo., 528 U.S. at 393 (declining to further define the
state’s evidentiary obligation), what is needed to justify a temporal limit is
additional to and distinct from what is needed to justify a dollar limit on
contributions. See id. at 391 (“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 justification raised.”). While
Buckley and the long line of cases following it make clear that the dangers of
large contributions “are neither novel nor implausible,” id., there is not the
same well-trodden path regarding the dangers of contributions made far in
time from an election.
The district court found that Austin failed to produce sufficient evidence
to justify the temporal limit. The only evidence presented on the connection
19
Case: 16-51366 Document: 00514331738 Page: 20 Date Filed: 02/01/2018
No. 16-51366
between the timing of a contribution and corruption was the testimony of a
former councilmember that “if we had money flowing through city hall . . . in a
general way . . . it would really have a detriment [sic] to people’s belief in
council members making appropriate decisions,” and the testimony of the city’s
expert witness, a political scientist with expertise in campaign finance, that,
in his opinion, the temporal limit “directly alleviated concerns of the
appearance of quid pro quo corruption” by “limit[ing] the period of time in
which people could . . . reward candidates, particularly incumbent
officeholders.” He further noted that “before important votes, money flows in.”
However, as the district court noted, there was also testimony that the Austin
City Council is in session and voting year round, such that the risk of money
coming in before votes is no less of a concern in the six-month window before
an election than at any other time. Accordingly, evidence suggesting a
perception of corruption arising from contributions made shortly before votes
does not establish a perception of corruption arising from contributions made
many months before an election. If a contribution of $350 or less immediately
before a vote during the six months before an election will not result in either
actual corruption or its appearance, there is no evidence showing that the same
contribution made before a vote 12 months before an election would.
Accordingly, we agree with the district court that Austin failed to produce
sufficient evidence to justify the temporal limit.
The cases Austin cites to support its position are not persuasive. First,
O’Toole v. O’Connor, 802 F.3d 783 (6th Cir. 2015), considered a temporal limit
on contributions to judicial campaign committees not politicians or political
candidates. Id. at 787–88. “But a State’s interest in preserving public
confidence in the integrity of its judiciary extends beyond its interest in
preventing the appearance of corruption in legislative and executive elections.”
Williams-Yulee v. Fla. Bar, 135 S. Ct. 1656, 1667 (2015). Accordingly, O’Toole’s
20
Case: 16-51366 Document: 00514331738 Page: 21 Date Filed: 02/01/2018
No. 16-51366
reasoning is inapplicable here. Second, N.C. Right to Life, Inc. v. Bartlett, 168
F.3d 705 (4th Cir. 1999), and Thalheimer v. City of San Diego, 645 F.3d 1109
(9th Cir. 2011), which upheld temporal limits on campaign contributions
without any specific evidence that the timing of a contribution creates a risk of
actual corruption or its appearance that is distinct from that created by the
size of a contribution, see Bartlett, 168 F.3d at 715–16; Thalheimer, 645 F.3d
at 1122, each predates McCutcheon, which, as explained above, requires such
evidence. See Holmes, 875 F.3d at 1161 (stating that “additional constraint[s]
‘layered on top’” of base limits must “separately . . . serve the interest in
preventing the appearance or actuality of corruption” (quoting McCutcheon,
134 S. Ct. at 1458)). 4
V.
Austin next contends that the district court erred by holding that
Zimmerman has standing to challenge the disgorgement provision and that
that provision is unconstitutional. It argues that because Zimmerman was not
required to disgorge the funds he had remaining after his campaign, but rather
could retain them for purposes of making officeholder expenditures, he was not
injured and that the provision is constitutional because it does not implicate
any First Amendment rights. We disagree on both points and once again
affirm the district court.
A.
The disgorgement provision, § 8(F)(3) of the Austin City Charter,
requires candidates to “distribute the balance of funds received from political
contributions in excess of any remaining expenses for the election” to the
4 Additionally, the Ninth Circuit in Thalheimer noted that its “own case law
contain[ed] a vivid illustration of corruption in San Diego municipal government,” notably
“involving campaign contributions timed to coincide with the donors’ particular business
before the city council”. 645 F.3d at 1123 n.3.
21
Case: 16-51366 Document: 00514331738 Page: 22 Date Filed: 02/01/2018
No. 16-51366
candidate’s contributors, a charitable organization, or the Austin Fair
Campaign Fund. Austin, Tex. Code, Art. III, § 8(F)(3). Candidates may,
however, retain up to $20,000 “for the purposes of officeholder expenditures.”
Id. § 8(F)(6). Austin argues that because Zimmerman finished his 2014
campaign with only $1,200 remaining, he was not injured by the disgorgement
provision because he could retain that full amount in an officeholder account.
But that misses the nature of the First Amendment right at issue. Zimmerman
has the right to use campaign funds to advocate for his own election. See
Buckley, 424 U.S. at 52–53. That right was impaired by his inability to retain
excess funds from the 2014 election for use in future campaigns. See Shrink
Mo. Gov’t PAC v. Maupin, 71 F.3d 1422, 1427–28 (8th Cir. 1995) (holding that
a similar disgorgement provision burdens First Amendment rights by
requiring candidates to use all campaign funds during the current campaign
and prohibiting them from using those funds in future elections).
Austin also argues—for the first time in its reply brief—that Zimmerman
lacks standing to challenge the disgorgement provision because he could, or
perhaps should, have used his remaining funds to pay off his campaign debt. 5
Zimmerman ended his 2014 campaign with $18,000 in debt, all owed to
himself, and $1,200 remaining in his campaign account after all other expenses
had been paid. Austin argues that because Zimmerman chose to retain the
remaining $1,200 in his officeholder account rather than use it to pay off his
debt, his alleged injury was manufactured to create standing. An injury
sufficient to confer standing “cannot be manufactured for the purpose of
5Ordinarily, we do not consider arguments raised for the first time in a reply brief.
See Jones v. Cain, 600 F.3d 527, 541 (5th Cir. 2010) (“Arguments raised for the first time in
a reply brief are generally waived.”). However, because standing is a jurisdictional
requirement, we consider these arguments. See La. Landmarks Soc’y, Inc. v. City of New
Orleans, 85 F.3d 1119, 1122 n.3 (5th Cir. 1996) (“[S]tanding is jurisdictional and, therefore,
non-waivable.”).
22
Case: 16-51366 Document: 00514331738 Page: 23 Date Filed: 02/01/2018
No. 16-51366
litigation.” Barber v. Bryant, 860 F.3d 345, 354 (5th Cir. 2017), cert. denied,
2018 WL 311355 (Jan. 8, 2018). But here, there is evidence that Zimmerman
had legitimate reasons for choosing to retain the funds in his officeholder
account and did not do so simply to manufacture standing. Cf. id. (stating that,
in religious-display cases, personal confrontation with the offending display
must “occur in the course of a plaintiff’s regular activities; it cannot be
manufactured for the purposes of litigation”). Zimmerman testified that he
retained the $1,200 because he “wanted to have some money in the bank” for
officeholder expenses.
Austin also argues—again for the first time in its reply brief—that
Zimmerman “appears” to have treated his leftover funds inconsistently with a
city ordinance in place at the time. What was then § 2-2-43 of the City Code,
titled “Existence of Campaign Debt,” stated that
[t]he existence and amount of a campaign debt relating to a prior
campaign period shall be determined based on the actual
outstanding obligations of the candidate or campaign committee
as of the date of the election for which the debt is incurred, and all
funds held by the candidate or candidate’s campaign committee in
cash or bank accounts on that date shall be considered an offset to
the campaign debt.
On that basis, Austin argues that Zimmerman’s remaining $1,200 should have
been used to pay off his debt and that he therefore should not have had any
remaining funds at all to which the disgorgement provision could apply. We
disagree with Austin’s reading of the ordinance and, finding the ordinance
unambiguous, do not defer to Austin’s interpretation. See Voting for Am., Inc.,
732 F.3d at 387 (“We defer to [a city’s] interpretation of how the law is to be
enforced, so long as it does not conflict with the statutory text.” (quoting Voting
for Am., Inc., 488 F. App’x at 895)). As the district court concluded, the
ordinance applies to the calculation of campaign debt and does not require
23
Case: 16-51366 Document: 00514331738 Page: 24 Date Filed: 02/01/2018
No. 16-51366
candidates to use remaining funds to pay off debts. It says only that remaining
funds “shall be considered an offset,” but says nothing requiring candidates to
actually use remaining funds to pay off their debts. Rather, candidates and
officeholders with either remaining unpaid expenses or unreimbursed personal
expenditures can continue to solicit and accept contributions after an election
in order to pay off those expenses. See Austin, Tex. Code, Art. III, § 8(F)(4)&(5).
Furthermore, the disgorgement provision by its terms requires only that funds
“in excess of any remaining expenses” be distributed, see id. § 8(F)(3) (emphasis
added), while subsections 4 and 5 refer separately to “unpaid expenses” and
“unreimbursed campaign expenditures from personal funds.” The difference
in drafting suggests that while remaining funds must be used to pay off
expenses—that is, amounts owed to others—they are not required to be used
to reimburse oneself for personal expenditures. See Silva-Trevino v. Holder,
742 F.3d 197, 203–04 (5th Cir. 2014) (stating that courts are to give effect to
legislatures’ use of distinct terms).
B.
With respect to the constitutionality of the disgorgement provision,
Austin argues only that there is no First Amendment right to use funds
remaining after one campaign in a new and different campaign. It contends
that the First Amendment rights associated with campaign contributions exist
only during the election cycle in which a contribution is given, and that the
“First Amendment clock is re-set” if and when a new campaign begins.
We find that argument to be without force or support. Austin again
appears to overlook the nature of the right at issue. While it is true that a
donor’s interest in voicing support for a particular candidate may end with the
passing of one election cycle—for any number of reasons, the donor may no
longer support that same candidate if and when the candidate runs again—
that does not mean that all First Amendment rights associated with that
24
Case: 16-51366 Document: 00514331738 Page: 25 Date Filed: 02/01/2018
No. 16-51366
contribution so too must end. When a contribution is made, it communicates
the donor’s support for a candidate. But, once in the hands of the candidate, it
then “helps the candidate communicate a political message.” Shrink Mo., 528
U.S. at 400 (Breyer, J., concurring). The candidate’s expenditure of that money
to engage in political speech is then afforded its own constitutional protection.
See Cal. Med. Ass’n v. FEC, 453 U.S. 182, 196 (1981) (plurality opinion)
(describing contributions as “speech by proxy” and explaining how entities that
receive contributions then use those contributions to “engage[] in independent
political advocacy”). Accordingly, by prohibiting candidates from spending
money raised in one election cycle on speech in the next, the disgorgement
provision acts as an indirect burden on expenditures and thus implicates First
Amendment rights. See Maupin, 71 F.3d at 1427–28 (holding that
disgorgement provision burdens First Amendment rights by, inter alia,
prohibiting candidates from using funds in future elections); see also Davis v.
FEC, 554 U.S. 724, 740 (2008) (striking down as unconstitutional an indirect
burden on expenditures not justified by the interest in preventing corruption).
As a burden on expenditures, the disgorgement provision is subject to
heightened scrutiny. But, on appeal, Austin does not attempt to justify the
provision as sufficiently tailored to serve its interest in preventing corruption.
Accordingly, we affirm the district court’s conclusion that the disgorgement
provision is an unconstitutional abridgement of First Amendment rights.
VI.
Finally, Austin argues that Zimmerman has waived his right to
attorneys’ fees under 42 U.S.C. § 1988(b) by not moving for fees in the district
court. But that issue is not properly before us now. Precisely because
Zimmerman did not move for fees below, and the district court has therefore
not ruled on the issue, it is not properly presented for our review. See Luv N’
25
Case: 16-51366 Document: 00514331738 Page: 26 Date Filed: 02/01/2018
No. 16-51366
Care, Ltd. v. Groupo Rimar, 844 F.3d 442, 451 n.8 (5th Cir. 2016) (declining to
address issues raised by the parties but not decided by the district court).
For the foregoing reasons, we AFFIRM.
26