Shrink Missouri Government PAC v. Adams, 98-2351

• Decision Date: 30 November 1998
• Docket Number: No. 98-2351,98-2351
• Citation: 161 F.3d 519
• Parties: SHRINK MISSOURI GOVERNMENT PAC, a political action committee; Zev David Fredman, Appellants, v. Richard ADAMS, in his official capacity as a Member of the Missouri Ethics Commission; Patricia Flood, in her official capacity as a Member of the Missouri Ethics Commission; Robert Gardner, in his official capacity as a Member of the Missouri Ethics Commission; Ervin Harder, in his official capacity as a Member of the Missouri Ethics Commission; John Howald, in his official capacity as Chairman of the Missouri Ethics Commission; Elaine Spielbusch, in her official capacity as a Member of the Missouri Ethics Commission; Jeremiah W. Nixon, in his official capacity as Missouri Attorney General; Robert P. McCullough, in his official capacity as St. Louis County Prosecuting Attorney, Appellees, Joan Bray, Intervenor on Appeal, Common Cause, Amicus Curiae.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 519

161 F.3d 519

SHRINK MISSOURI GOVERNMENT PAC, a political action committee; Zev David Fredman, Appellants, v. Richard ADAMS, in his official capacity as a Member of the

Missouri Ethics Commission; Patricia Flood, in her official

capacity as a Member of the Missouri Ethics Commission;

Robert Gardner, in his official capacity as a Member of the

Missouri Ethics Commission; Ervin Harder, in his official

capacity as a Member of the Missouri Ethics Commission;

John Howald, in his official capacity as Chairman of the

Missouri Ethics Commission; Elaine Spielbusch, in her

official capacity as a Member of the Missouri Ethics

Commission; Jeremiah W. Nixon, in his official capacity as

Missouri Attorney General; Robert P. McCullough, in his

official capacity as St. Louis County Prosecuting Attorney, Appellees,

Joan Bray, Intervenor on Appeal,

Common Cause, Amicus Curiae.

No. 98-2351.

United States Court of Appeals,

Eighth Circuit.

Submitted Aug. 21, 1998.

Decided Nov. 30, 1998.

Rehearing and Rehearing En Banc Denied March 25, 1999.

^*

D. Bruce La Pierre, St. Louis, Missouri, argued (Patric Lester, St. Louis, Missouri, on the brief), for Appellants.

James Robert Layton, Jefferson City, Missouri, argued (Jeremiah (Jay) Nixon, Attorney General and Paul R. Maguffee, Jefferson City, Missouri, on the brief), for Appellee.

Deborah Goldberg, New York City, argued (Gerald P. Greiman, St. Louis, Missouri; Nancy Northup and Burt Neuborne, New York City), for Intervenor.

Before BOWMAN, Chief Judge, and ROSS and JOHN R. GIBSON, Circuit Judges.

BOWMAN, Chief Judge.

Shrink Missouri Government PAC and Zev David Fredman (collectively, SMG) appeal from the decision of the District Court granting summary judgment to members of the Missouri Ethics Commission, Missouri Attorney General Jay Nixon, and St. Louis County Prosecuting Attorney Robert P. McCullough ¹ (collectively, the State) on SMG's challenge to certain provisions of Missouri's campaign finance law. We reverse and remand.

I.

In July 1994, the Missouri legislature, by enacting Senate Bill 650 (SB650), adopted certain amendments to the state campaign finance law that, among other things, restrict the amount of campaign contributions that persons can make to candidates for public office. The limits were to become effective on January 1, 1995. In November 1994, the electorate approved Proposition A, a ballot initiative that imposed even more restrictive contribution limits than those contained in SB650. Proposition A became effective immediately upon voter approval. In December 1995, this Court held that the Proposition A limits on campaign contributions violated the First Amendment. See Carver v. Nixon, 72 F.3d 633 (8th Cir.1995), cert. denied, 518 U.S. 1033, 116 S.Ct. 2579, 135 L.Ed.2d 1094 (1996). ² At that time, the limits of SB650 became effective.

Under the provisions of SB650 challenged here, "the amount of contributions made by or accepted from any person other than the candidate in any one election shall not exceed" $1,075 to candidates for governor, lieutenant governor, secretary of state, state treasurer, state auditor, or attorney general, or for any office where the population of the electoral district is 250,000 or more; $525 to candidates for state senator, or for any office where the population of the electoral district is 100,000 or more; and $275 to candidates for state representative, or for any office where the population of the electoral district is less than 100,000. Mo.Rev.Stat. § 130.032.1 (Supp.1997) (as amended early in 1998 by the Missouri Ethics Commission to account for inflation, see Mo.Rev.Stat. § 130.032.2 (Supp.1997)).

SMG, a political action committee organized and doing business in Missouri, and Fredman, a resident of and registered voter in Missouri and an unsuccessful candidate for the Republican party's nomination for state auditor this election cycle, filed suit claiming that the limits violate their First Amendment rights of free speech and association. The parties filed cross motions for summary judgment; the District Court denied SMG's motions for summary judgment and for injunctive relief, and granted the State's summary judgment motion. SMG filed a notice of appeal, and on July 27, 1998, we granted SMG's motion for an injunction against enforcement of the campaign contribution limits of SB650 pending appeal.

II.

We first address a question initially presented in the last few pages of the State's brief. The State claims that SMG and Fredman lack standing to challenge these contribution limits. We take up the question as our first matter of business, because we lack jurisdiction to entertain the appeal if both SMG and Fredman are without standing.

The State asserts that the injuries alleged are "contrived," "conjectural," and "hypothetical." Brief of Appellees at 49, 50. We disagree. The State cannot make a persuasive argument that SMG and Fredman are not and have not been harmed by the limits imposed on campaign contributions by SB650. See Shrink Mo. Gov't PAC v. Adams, No. 98-2351, Order at 3-4 (8th Cir. July 27, 1998) (order granting motion for injunction pending appeal). The only question, as we see it, is whether Fredman continues to have standing despite his loss as a candidate for statewide office in the August primary election. We hold that he does, as the State declined at oral argument to assure the Court that no recourse would be taken against those who, like Fredman, accepted campaign contributions in excess of the SB650 limits after July 27, 1998 (the date we ordered an injunction pending appeal), should the summary judgment be affirmed.

We hold that SMG and Fredman have standing to continue their challenge to the provisions of SB650 here at issue.

III.

We proceed now to the merits, reviewing the decision to grant summary judgment de novo. The question before us is straightforward: do the SB650 limits on political campaign contributions violate SMG's and Fredman's First Amendment rights of free speech and association?

The State insists, as it did in Carver, that campaign contribution limits are subject only to intermediate scrutiny, not the "rigorous standard of review" employed by the Court in Buckley v. Valeo, 424 U.S. 1, 29, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (per curiam). But as we noted in Carver, the Supreme Court "articulated and applied a strict scrutiny standard of review" to the federal contribution limits that were under challenge in Buckley, and "has not ruled that anything other than strict scrutiny applies in cases involving contribution limits." Carver, 72 F.3d at 637; see also Citizens Against Rent Control/Coalition for Fair Housing v. City of Berkeley, Cal., 454 U.S. 290, 294, 102 S.Ct. 434, 70 L.Ed.2d 492 (1981) ("[R]egulation of First Amendment rights is always subject to exacting judicial review."); Russell v. Burris, 146 F.3d 563, 567 (8th Cir.1998), cert. denied, 67 U.S.L.W. 3332, --- U.S. ---, 119 S.Ct. 510, --- L.Ed.2d --- (1998) (Nos. 98-397, 98-399). The State must demonstrate, therefore, that it has a compelling interest and that the contribution limits at issue are narrowly drawn to serve that interest. See Buckley, 424 U.S. at 25, 96 S.Ct. 612; Russell, 146 F.3d at 567; Carver, 72 F.3d at 638.

A.

The State contends that its compelling interest is in avoiding the corruption or the perception of corruption brought about when candidates for elective office accept large campaign contributions. The State further posits, citing Buckley, that corruption and the perception thereof are inherent in political campaigns where large contributions are made, and that it is unnecessary for the State to demonstrate that these are actual problems in Missouri's electoral system. Recent precedent from this Court is to the contrary. In both Carver and Russell, we were not satisfied with the mere contention that the states have an interest (an indisputably compelling interest, see Day v. Holahan, 34 F.3d 1356, 1365 (8th Cir.1994), cert. denied, 513 U.S. 1127, 115 S.Ct. 936, 130 L.Ed.2d 881 (1995)) in maintaining the integrity of their elections. We required some demonstrable evidence that there were genuine problems that resulted from contributions in amounts greater than the limits in place. See Russell, 146 F.3d at 568 ("The defendants must prove first that there is real or perceived undue influence or corruption attributable to large political contributions ....") (emphasis added); id. at 569 (noting that none of the defendants "provided any credible evidence" of actual corruption, nor had they proved a perception of corruption); Carver, 72 F.3d at 638. ³

In reaching its conclusions concerning the constitutionality of federal campaign contribution restrictions, the Buckley Court noted the perfidy that had been uncovered in federal campaign financing in 1972. See 424 U.S. at 27 n. 28, 96 S.Ct. 612. But we are unwilling to extrapolate from those examples that in Missouri at this time there is corruption or a perception of corruption from "large" campaign contributions, without some evidence that such problems really exist. See Russell, 146 F.3d at 569; Carver, 72 F.3d at 638. We will not infer that state candidates for public office are corrupt or that they appear corrupt from the problems that resulted from undeniably large contributions made to federal campaigns over twenty-five years ago. The State therefore must prove that Missouri has a real problem with corruption or a perception thereof as a direct result of large campaign contributions.

For its evidence, the State relies on the affidavit of the state senator who co-chaired the Interim Joint Committee on Campaign Finance Reform when the contribution limits were enacted. That senator pointed to no evidence that "large" campaign contributions were being made in the days before limits were in place, much less that they resulted in real corruption or the perception thereof. See Buckley, 424 U.S. at 28, 96 S.Ct. 612 (noting that "the...