VanNatta v. Keisling, s. 95-35998

• Decision Date: 11 August 1998
• Docket Number: 95-35999,Nos. 95-35998,s. 95-35998
• Citation: 151 F.3d 1215
• Parties: 98 Daily Journal D.A.R. 8666 Fred VANNATTA; George Boehnke; Center to Protect Free Speech, Inc., Plaintiffs-Appellees, v. Phil KEISLING, in his capacity as Secretary of the State of Oregon; Ted Kulongoski, in his capacity as Attorney General of the State of Oregon, Defendants, and Gordon Miller, Defendant-intervenor-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1215

151 F.3d 1215

98 Daily Journal D.A.R. 8666

Fred VANNATTA; George Boehnke; Center to Protect Free Speech, Inc., Plaintiffs-Appellees, v. Phil KEISLING, in his capacity as Secretary of the State of Oregon; Ted Kulongoski, in his capacity as Attorney General of the State of Oregon Defendants and Gordon Miller, Defendant-intervenor-Appellant.

Nos. 95-35998, 95-35999.

United States Court of Appeals Ninth Circuit.

Argued and Submitted July 11, 1996.

Decided Aug. 11, 1998.

John R. Faust, Jr., Schwabe, Williamson & Wyatt, Portland, Oregon; John A. DiLorenzo, Jr., Hagen, Dye, Hirschy & DiLorenzo, Portland, Oregon, for plaintiffs-appellees VanNatta, et al.

Rives Kistler, Deputy United States Attorney, Salem, Oregon, for defendants-appellants Keisling, et al.

Donald Craig Mitchell, Anchorage, Alaska, for appellant Gordon Miller.

Jamin B. Raskin, Washington, D.C.; Abigail Turner, and John C. Bonifaz, Boston, Massachusetts, for the amicus.

Appeal from the United States District Court for the District of Oregon; Robert E. Jones, District Judge, Presiding. D.C. No. CV-94-01541-JO.

Before: FERGUSON and BRUNETTI, Circuit Judges, and KING, ^* District Judge.

Opinion by Judge FERGUSON; Partial Concurrence and Partial Dissent by Judge BRUNETTI.

FERGUSON, Circuit Judge:

I.

We adopt as the unanimous opinion of this panel all of Judge Brunetti's concurring opinion set forth in parts I, II, and III. We also adopt Part IV(A), which declares that Measure 6 is not closely drawn to advance the goal of preventing corruption and fails to pass muster under the First Amendment.

II.

We reject Judge Brunetti's argument in dissent, Parts IV(B) and V, that Measure 6 is valid because it prevents a distortion of the republican form of government in the State of Oregon. It could be argued that the initiative process itself distorts the republican form of government.

III.

Measure 6 was on the Oregon Ballot with Measure 9. That Measure was a set of statutes also adopted by the initiative process. The Oregon Supreme Court in Vannatta v. Keisling, 324 Or. 514, 931 P.2d 770 (1997) held that the statutes in Measure 9 which like Measure 6, limited or banned campaign contributions, violated the Free Speech provisions of the State Constitution. One matter that is common in both Measures is the limitation upon candidates using campaign contributions from individuals who reside outside the candidate's voting district. In both Measures, the meaning of "individuals", is at issue. The Oregon Supreme Court declared that on its face it is unclear whether the word "individuals," as used in Measure 6, applies to the use of contributions from corporations, businesses, labor unions or PAC's, and therefore was over inclusive and must fail under the Oregon Constitution. In accordance with OR. REV. STAT. § 28.200 (1995), the panel certified to the Oregon Supreme Court three questions:

(1) Is Measure 6 valid under the Constitution of Oregon?

(2) How is Article II, section 22 to be interpreted in light of competing provisions of the Oregon Constitution, including Article I, section 8?

(3) Does the word "individuals" as used in section 1 of Measure 6 include corporations, PACs and unions?

The Oregon Supreme Court has rejected the certification.

IV.

The issue, which appellants describe in several different ways, involves protecting the integrity of republican government by assuring that representatives are truly selected by their own constituents.

Appellants argue that the state interest in a republican form of government supports Measure 6. They contend that Measure 6 advances that interest by preventing those who are ineligible to vote from influencing the outcome of elections. The right to a republican form of government has never before been recognized as a sufficiently important state interest. In Whitmore v. Federal Election Comm'n, 68 F.3d 1212 (9th Cir.1995), a candidate and a voter sought an injunction to prohibit candidates from accepting out-of-state campaign contributions. The plaintiffs asserted that such contributions violated, inter alia, their right to a republican form of government. This Court stated:

Plaintiffs argue that the Constitution entitles them to representation by someone not beholden to any citizen of another state. They present a historian's affidavit that the Founding Fathers would have been "shocked" at out-of-state contributions to a congressional candidate ... Neither the Constitution nor the United States Code affords plaintiffs any support for their political theory.

This Court held plaintiffs' claim to be unsupported by precedent and dismissed it as frivolous. Whitmore, 68 F.3d at 1216. Although Whitmore addresses out-of-state rather than out-of-district contributions, its holding underscores the lack of support for any claim based on the right to a republican form of government.

Appellants nonetheless present several cases which, they argue, may be taken together to expand the "narrow exception to the rule that limits on political activity [are] contrary to the First Amendment." Citizens Against Rent Control v. City of Berkeley, 454 U.S. 290, 296-97, 102 S.Ct. 434, 70 L.Ed.2d 492 (1981). We now distinguish each case in turn.

In Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 110 S.Ct. 1391, 108 L.Ed.2d 652 (1990), the Court upheld a Michigan law preventing corporations from using general treasury funds to support or oppose candidates for state office. The Court reasoned that corporations use state-created advantages to dominate both the economic and the political arena. Austin, 494 U.S. at 659, 110 S.Ct. 1391 (citing Federal Election Comm'n v. Massachusetts Citizens for Life, 479 U.S. 238, 257, 107 S.Ct. 616, 93 L.Ed.2d 539 (1986)). The Court held that the statute "ensures that expenditures reflect actual public support for the political ideas espoused by corporations ... corporate wealth can unfairly influence elections when it is deployed in the form of independent expenditures, just as it can when it assumes the guise of political contributions." Id. at 660, 110 S.Ct. 1391.

The Court did not define "actual public support," but appellants would like us to read it as support for Oregon's limitation of out-of- district contributions. The holding in Austin, however, addresses the "unique state-conferred corporate structure that facilitates the amassing of large corporate treasuries" and the attendant risk of unfair corporate influence in the electoral process. Id. The Court did not concern itself with a distinction between in-district and out-of-district corporations. Therefore, we conclude that the state interest defined in Austin does not support Measure 6.

In Holt Civic Club v. City of Tuscaloosa, 439 U.S. 60, 99 S.Ct. 383, 58 L.Ed.2d 292 (1978), the Supreme Court upheld Alabama legislation that extended police and other city powers over non-residents living within three miles of city borders. The Court concluded that the state did not have to provide those non-residents with the right to vote in city elections. Id. at 69, 99 S.Ct. 383.

The Holt Court emphasized that it was not enough for the non-residents to show that they were affected by the city's policies because many non-residents are affected by many cities' decisions. Id. Regardless of those extraterritorial effects, non-residents do not have a right to "participate in the political processes bringing it about." Id. "[O]ur cases have uniformly recognized that a government unit may legitimately restrict the right to participate in its political processes to those who reside within its borders." Id. at 68-69, 99 S.Ct. 383. It is true that states have wide latitude in determining requirements for voting. However, the political process at issue in Holt was the right to vote and not the right to First Amendment speech. Therefore, Holt does not support the republican form of government argument made here.

The Supreme Court has suggested that states have a strong interest in ensuring that elected officials represent those who elect them. See, e.g., Shaw v. Reno, 509 U.S. 630, 650, 113 S.Ct. 2816, 125 L.Ed.2d 511 (1993) (elected officials representing one interest group rather than their entire constituency is a cognizable harm under the Fourteenth Amendment). However, in Shaw, the Court was addressing the inverse situation: representatives ignoring much of their constituency in favor of one group of constituents, rather than out-of-district concerns. Id. Appellants read Holt and Shaw out of context and they do not provide authority for this Court to uphold Measure 6.

V. Conclusion

Measure 6 does not survive scrutiny under the First Amendment and is not saved by the argument that it protects the republican form of government.

The District Court's Opinion and Order and its Declaratory Judgment and Mandatory Injunction are AFFIRMED.

BRUNETTI, Circuit Judge, concurring in part and dissenting:

The state of Oregon amended its constitution to prohibit state candidates from using or directing any contributions from out-of-district residents and to penalize candidates when more than 10% of their total "funding" comes from such individuals. The amendment was challenged under several provisions of the constitution and was struck down, in a summary judgment order, by the district court under the First Amendment. Viewing the evidence in a light most favorable to appellants, we review the award of summary judgment de novo, Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir.1995).

I.

In November of 1994, the voters of Oregon amended their constitution by passing Ballot Measure 6 ("Measure 6"). Measure 6 provided:

Be it enacted by the People of Oregon:

SECTION 1. For purposes of campaigning for an elected public office, a candidate may use or direct only contributions which originate from individuals who at the time of their donations were residents of the electoral district of the public office sought by the candidate, unless the...