Kruse v. City of Cincinnati

• Decision Date: 18 June 1998
• Docket Number: 97-3194 and 97-3210,Nos. 97-3193,s. 97-3193
• Citation: 142 F.3d 907
• Parties: John R. KRUSE; Kruse for Council Committee; Thomas E. Brinkman, Jr.; and Mark W. Miller, Plaintiffs-Appellees, v. CITY OF CINCINNATI; Roxanne Qualls, Councilmember and Mayor of the City of Cincinnati; Dwight Tillery, Councilmember; Tyrone Yates, Councilmember; Todd Portune, Councilmember; Bobbie Sterne, Councilmember; Philip M. Heimlich, Councilmember; Minette J. Cooper, Councilmember; Thomas A. Luken, Councilmember; Nicholas J. Vehr, Councilmember; Charles Winburn, Councilmember; and John F. Shirey, City Manager of the City of Cincinnati, Defendants-Appellants (97-3194), Charter Committee of Greater Cincinnati; Hamilton County Democratic Party; and A. Matthew Rosen, Intervenor-Defendants-Appellants (97-3193), African-American Small Business Committee, PAC; and Barbara Milon, Intervenor-Defendants-Appellants (97-3210).
• Court: U.S. Court of Appeals — Sixth Circuit

Page 907

142 F.3d 907

John R. KRUSE; Kruse for Council Committee; Thomas E Brinkman, Jr.; and Mark W. Miller, Plaintiffs-Appellees, v. CITY OF CINCINNATI; Roxanne Qualls, Councilmember and Mayor of the City of Cincinnati; Dwight Tillery, Councilmember Tyrone Yates, Councilmember; Todd Portune, Councilmember Bobbie Sterne, Councilmember; Philip M. Heimlich Councilmember; Minette J. Cooper, Councilmember; Thomas A. Luken, Councilmember; Nicholas J. Vehr, Councilmember; Charles Winburn, Councilmember; and John F. Shirey, City Manager of the City of Cincinnati, Defendants-Appellants (97-3194), Charter Committee of Greater Cincinnati; Hamilton County Democratic Party; and A. Matthew Rosen, Intervenor-Defendants-Appellants (97-3193), African-American Small Business Committee, PAC; and Barbara Milon, Intervenor-Defendants-Appellants (97-3210).

Nos. 97-3193, 97-3194 and 97-3210.

United States Court of Appeals, Sixth Circuit.

Argued March 17, 1998.

Decided April 27, 1998.

Rehearings and Suggestions for Rehearings En Banc Denied June 18, 1998.

Michael A. Carvin (argued), Cooper, Carvin & Rosenthal, Washington, DC, Christopher Paul Finney (briefed), David R. Langdon (briefed), Finney, Bacon & Muehlenkamp, Cincinnati, OH, for Plaintiffs-Appellees.

Karl P. Kadon, III (briefed), City Solicitor's Office for the City of Cincinnati, Cincinnati, OH, Brenda Wright, John C. Bonifaz (argued and briefed), National Voting Rights Institute, Boston, MA, for Defendants-Appellants in No. 97-3194.

Donald J. Mooney, Jr. (argued and briefed), Benesch, Friedlander, Coplan & Aronoff, Cincinnati, OH, for Intervenor-Defendants-Appellants in No. 97-3193

Eric H. Kearney (briefed), Cohen, Todd, Kite & Stanford, Cincinnati, OH, for Intervenor-Defendants-Appellants in No. 97-3210.

Elizabeth M. Osenbaugh (briefed), Department of Justice, Des Moines, IA, for Amicus Curiae State of Arizona.

Burt Neuborne (briefed), Brennan Center for Justice at New York University School of Law, New York City, for Amicus Curiae Brennan Center for Justice.

Before: KENNEDY and SILER, Circuit Judges; COHN, District Judge. ^*

KENNEDY, J., delivered the opinion of the court, in which SILER, J., joined. COHN, D.J. (pp. 919-920), delivered a separate concurring opinion.

OPINION

KENNEDY, Circuit Judge.

Defendants and intervenor-defendants appeal the District Court's judgment striking down City of Cincinnati Ordinance 240-1995 which places a $140,000 limit on city council campaign expenditures because it violates the First Amendment. The parties supporting the Ordinance ¹ argue that the interests furthered by this campaign expenditure limitation are different in kind and degree from the governmental interests the Supreme Court considered and rejected as constitutionally insufficient in Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976), and on that basis urge this Court to distinguish Buckley and uphold the Ordinance. Their characterizations to the contrary notwithstanding, the parties have not presented this Court with governmental interests different than those considered and rejected by the Supreme Court in Buckley and its progeny. We will therefore AFFIRM the decision of the District Court.

I. BACKGROUND

After witnessing a steady rise in the cost of running a successful campaign for city council, ² the Cincinnati City Council passed City Ordinance 240-1995 (the "Ordinance"), which places a cap on campaign expenditures. ³ Under the Ordinance, a city council candidate cannot spend more than three times the annual salary of a Cincinnati councilmember, or, approximately $140,000 at the present time. The Ordinance provides in pertinent part:

WHEREAS, it is the sense of the Council that limitations on campaign expenditures are the most effective means of promoting meaningful campaign reform; now, therefore,

BE IT ORDAINED by the Council of the city of Cincinnati, state of Ohio:

* * *

Sec. 115-3. Expenditure[ ⁴] Limits.

The total amount of expenditures made in the election cycle by a candidate or the campaign committee of a candidate for the council shall not exceed three times the annual compensation provided for the office to which a candidate seeks election.

The City Council passed the Ordinance despite the legal opinion of the City Solicitor that expenditure limits are unconstitutional under Buckley: "As we have previously advised the Council and the Campaign Finance Advisory Board,[ ⁵] the U.S. Supreme Court has found expenditure limits to be unconstitutional in the case of Buckley v. Valeo, [424 U.S. 1, 96 S.Ct. 612 (1976) ]. The holding in this case remains the law on the subject of campaign expenditures and is directly on point as to legislative impositions of such expenditures." A majority of the Campaign Finance Advisory Board also counseled the City against enacting spending limits because of the authority of Buckley. Proponents of spending limits however believed that the City "should challenge" the decision and "take the lead on revisiting the Supreme Court's decision" by enacting spending limits.

In November, 1995, the City Council enacted Ordinance No. 336-1995 which placed limits on campaign contributions in city council elections and imposed disclosure requirements in addition to those imposed by state law. ⁶ The contribution restrictions comprise a $1,000 limit on individuals; a $2,500 limit on political action committees ("PACs") and campaign committees; and a $10,000 limit on political parties. The City placed no limitation on the amount of personal funds a candidate may contribute to the candidate's own campaign and no limits on independent expenditures. ⁷

Plaintiffs John Kruse, a losing candidate in the 1995 city council election who spent more than $140,000 on his campaign; Kruse for Council Committee; Thomas E. Brinkman, a financial contributor to council candidates and potential council candidate; and Mark W. Miller, a financial contributor to council candidates (hereinafter collectively referred to as "Kruse") filed this action challenging the City's spending limit as facially unconstitutional. Kruse sued the City of Cincinnati, the City Manager and members of the City Council in their official capacities (hereinafter collectively referred to as the "City" or "defendants"). The Charter Committee of Greater Cincinnati; ⁸ the Hamilton County Democratic Party; and A. Matthew Rosen, a former and prospective city council candidate (hereinafter collectively referred to as the "Charter Committee"), intervened on behalf of defendants. The African American Small Business Committee, PAC; ⁹ and Barbara Milon, an African American candidate for city council in 1993 (hereinafter collectively referred to as "AASBC-PAC"), also intervened on behalf of defendants.

The parties agreed to a preliminary injunction enjoining enforcement of the Ordinance throughout the litigation. Plaintiffs filed their motion for summary judgment on July 5, 1996. Defendants filed their opposition, which set forth the factual basis for the Council's action. Attachments included the results of a study, commissioned by the City, of the impact of money in Cincinnati city council elections. The study was conducted by the Center of Responsive Politics, a non-partisan, non-profit research organization that tracks campaign contributions in U.S. elections. It concluded that "the rise in the overall cost of city council races has caused a corresponding rise in the influence of wealthy donors in the City's elections, with such donors increasingly dominating the campaign financing process ... and small donors ... becoming marginal players in that process."

Defendants also attached the results of a public opinion survey which gauged the attitude of Cincinnatians on the subject of money in city council elections. The research project, which comprised focus groups and telephone surveys, was conducted by the Deardourff/The Media Company, a planning, consulting, and public opinion research firm. The researchers concluded that an overwhelming majority of residents believe that large contributors wield undue influence on the political system as a whole; that ordinary voters are unable to participate on equal footing in the process; that wealthy candidates unfairly drown out candidates with fewer resources; that the high costs of elections discourage qualified individuals from running for office, which deprives voters of a full choice of candidates; and that overall, money is undermining the fairness and integrity of the political system and causing them to lose faith in the democratic process.

Defendants also attached numerous affidavits from current and former councilmembers concerning the corrupting nature of money in Cincinnati politics and similar statements from groups such as the League of Women Voters and Common Cause. There were also affidavits relating to the ability of candidates to run a meaningful campaign on $140,000.

For purposes of the summary judgment motion, Kruse accepted as true all facts alleged by defendants in their opposition. Kruse argued that under any set of facts proven by defendants, the Ordinance still fails to pass constitutional muster. The District Court agreed and, under the authority of Buckley, held the Ordinance unconstitutional on its face. Defendants and intervenor-defendants filed timely notices of appeal. We have jurisdiction under 28 U.S.C. § 1291. We review a grant of summary judgment de novo. Bush v. Rauch, 38 F.3d 842, 846 (6th Cir.1994).

II. DISCUSSION

A. Buckley

And Its Progeny

"The central holding in Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 ... (1976) (per curiam), is that spending money on one's own speech must be permitted...." Colo. Republican Fed. Campaign Comm. v. Fed. Election Comm'n, 518 U.S. 604, 627, 116 S.Ct. 2309, 2321, 135 L.Ed.2d 795 (1996) (Kennedy, J., joined by Rehnquist, C.J. and Scalia, J., concurring in part and dissenting in part) ("Colo. Republican ") ¹⁰ (citing Buckley, 424...