Shrink Missouri Government PAC v. Maupin, 95-2857

• Decision Date: 19 December 1995
• Docket Number: No. 95-2857,95-2857
• Citation: 71 F.3d 1422
• Parties: SHRINK MISSOURI GOVERNMENT PAC, a political action committee; W. Bevis Schock; Frederick T. Dyer, Appellees, v. John MAUPIN, in his official capacity as Chair of the Missouri Ethics Commission; Jeremiah W. Nixon, in his official capacity as Missouri Attorney General, Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1422

71 F.3d 1422

64 USLW 2408

SHRINK MISSOURI GOVERNMENT PAC, a political action committee; W. Bevis Schock; Frederick T. Dyer, Appellees, v. John MAUPIN, in his official capacity as Chair of the

Missouri Ethics Commission; Jeremiah W. Nixon, in

his official capacity as Missouri

Attorney General, Appellants.

No. 95-2857.

United States Court of Appeals,

Eighth Circuit.

Submitted Sept. 13, 1995.

Decided Dec. 19, 1995.

James Robert Layton, Assistant Attorney General, Jefferson City, Missouri, argued (Cynthia A. Barrett, Stephen R. Martin II, and Amy E. Randles, on the brief), for appellants.

D. Bruce LaPierre, St. Louis, Missouri, argued (Frank Susman, on the brief), for appellees.

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

BOWMAN, Circuit Judge.

Missouri's Campaign Finance Disclosure Law, Mo.Rev.Stat. Ch. 130 (1994), was amended twice in 1994. In July the state legislature adopted a measure commonly known as Senate Bill 650, and in November the citizens of Missouri adopted a ballot initiative commonly known as Proposition A. Both of these measures limit election campaign contributions and expenditures and thus tend to limit the free exercise of political speech that the First Amendment guarantees. W. Bevis Schock and Frederick T. Dyer, prospective candidates for public office, and Shrink Missouri Government PAC, a political action committee (PAC) planning to make campaign contributions in future elections, sought a permanent injunction against the implementation and enforcement of the following provisions of the amended Campaign Finance Disclosure Law: (1) the Proposition A limits on campaign contributions, Mo.Ann.Stat. Sec. 130.100 (Vernon Supp.1995), as applied to contributions by candidates to their own campaigns; (2) the limits on total expenditures by candidates, id. Secs. 130.052, 130.053; (3) the restrictions on carrying over campaign funds from one election to another, id. Sec. 130.130; and (4) the requirement that negative campaign advertisements state that they were approved and authorized by the candidate on whose behalf they were disseminated, id. Sec. 130.031. On cross-motions for summary judgment, the District Court ¹ held that each of these provisions violated the First Amendment rights of candidates and their contributors. The court enjoined the Attorney General of Missouri and the Chair of the Missouri Ethics Commission (referred to herein jointly as "the state") from implementing, enforcing, or acting in reliance on the challenged provisions. Shrink Missouri Government PAC v. Maupin, 892 F.Supp. 1246 (E.D.Mo.1995). The state now timely appeals. ² After a de novo review of the District Court's judgment, see Maitland v. University of Minnesota, 43 F.3d 357, 360 (8th Cir.1994), we conclude that the challenged provisions violate the First Amendment. We therefore affirm the well-reasoned decision of the District Court.

I.

As a preliminary matter, we must address the state's contention that summary judgment should not have been granted because genuine issues of material fact remain in dispute. See Fed.R.Civ.P. 56(c). The state did not make this contention in the District Court. Moreover, as the state notes, both sides agreed that the case could be decided on the cross motions for summary judgment. The state thus has waived the issue. See Empire State Bank v. Citizens State Bank, 932 F.2d 1250, 1253 (8th Cir.1991). In any event, we are satisfied that no genuine issues of material fact remain in dispute.

II.

The State argues that the District Court erred when it (1) addressed the constitutionality of applying the Proposition A contribution limits to the candidates themselves because no Article III case or controversy existed between the parties with respect to that issue; (2) held that the state's "voluntary" expenditure limits scheme is unconstitutional; and (3) held that the restrictions on carrying over campaign funds from one election to another is unconstitutional. We will address each of these arguments in turn.

A.

The District Court held that the Proposition A campaign contribution limits are unconstitutional to the extent that they limit a candidates's ability to use his or her personal funds or property in support of the candidate's own campaign for public office. See Mo.Ann.Stat. Sec. 130.100 (Vernon Supp.1995) (limiting "contributions"); Mo.Rev.Stat. Sec. 130.011(12)(a) (1994) (defining "contributions" to include a "candidate's own money"). The state argues that the District Court was without jurisdiction to consider this question, there being no Article III case or controversy because state officials have not threatened to prosecute candidates for making over-the-limit contributions to their own campaigns. We need not consider the jurisdictional point, however, because in a companion case this Court has held that the Proposition A contribution limits are unconstitutional on their face. Carver v. Nixon, 72 F.3d 633, 645 (8th Cir.1995). Thus those limits necessarily are unconstitutional as applied to candidates as well as to other contributors.

B.

The District Court held that Senate Bill 650's "program of voluntary expenditure ceilings," State's Brief at 13, is coercive, restricts protected speech, and fails to pass constitutional muster under the strict scrutiny test. Shrink Missouri Gov't PAC, 892 F.Supp. at 1252. The state argues that these voluntary spending limits are constitutional under Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (per curiam), in which, inter alia, the Supreme Court struck down spending limits imposed by the Federal Election Campaign Act of 1971 as amended in 1974, 2 U.S.C. Sec. 441a (1976).

The statute at issue in this case requires candidates for elected public office in Missouri to file an affidavit stating whether they will comply with spending limits that vary depending on the office sought. Mo.Ann.Stat. Sec. 130.052.1 (Vernon Supp.1995). The affidavit must be filed with the candidate's declaration of candidacy. Candidates who choose not to comply with the spending limits may accept contributions from individuals only and must refuse contributions from PACs, political parties, labor unions, corporations, etc. Id. Sec. 130.052.3. Non-complying candidates also must submit daily disclosure reports once they exceed the spending limits. See id. Sec. 130.052.3. No such restrictions or requirements are placed on candidates who swear to abide by the limits, though they are penalized if they spend more than the applicable limit, see id. Sec. 130.053.1.

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." Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 657, 110 S.Ct. 1391, 1396, 108 L.Ed.2d 652 (1990) (citing Buckley, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659); see also Day v. Holahan, 34 F.3d 1356, 1361 (8th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 936, 130 L.Ed.2d 881 (1995).

Relying on a footnote in Buckley, the state argues that the expenditure limits are clearly constitutional regardless of the level of scrutiny applied because they are voluntary and merely provide an incentive for compliance. In Buckley, the Supreme Court held that limitations on the total expenditures by a candidate for federal office violated the First Amendment. 424 U.S. at 54-58, 96 S.Ct. at 651-654. The Court nonetheless noted that 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. The spending limits adopted by the Missouri legislature differ substantially from the scenario described in footnote 65 of Buckley, and are thus distinguishable. ³ The Senate Bill 650 limits are not voluntary because they provide only penalties for noncompliance rather than an incentive for voluntary compliance. Therefore the state's reliance on the dicta in footnote 65 of Buckley is misplaced.

In the hypothetical set out in footnote 65, a candidate agreeing to limit his or her expenditures receives the benefit of public funding. Candidates who do not so agree do not receive public funding, but are not penalized for their reliance on private funding. Under Senate Bill 650, however, a candidate agreeing to abide by the spending limits receives no benefit other than the state's blessing to seek the private funding he or she would be free to seek in any event. At the same time, candidates who do not agree to abide by the spending limits are penalized in two ways: (1) the state makes it unlawful to seek important sources of private funding that otherwise they would be free to seek; and (2) the state requires daily reporting of expenditures. These penalties make the limits coercive, not voluntary. The state, however, does not believe that it is withdrawing an otherwise available source of funding; it characterizes the availability of organizational funding as the incentive that it offers to candidates to agree to abide by the spending limits. We disagree with the state's characterization.

From the state's perspective, it is providing complying candidates with a substantial benefit by "allowing" PACs, political parties, labor unions, corporations, and other organizations to make campaign contributions. The state's argument, however, assumes that it properly could ban such organizations from making any contributions to candidates running for state office. This assumption is incorrect. We believe it is clear that a ban on campaign contributions by organizations would not...