Zimmerman v. City of Austin

• Decision Date: 18 April 2018
• Docket Number: No. 16-51366,16-51366
• Citation: 888 F.3d 163 (Mem)
• Parties: Donald ZIMMERMAN, Plaintiff–Appellant Cross-Appellee v. CITY OF AUSTIN, TEXAS, Defendant–Appellee Cross-Appellant
• Court: U.S. Court of Appeals — Fifth Circuit

888 F.3d 163 (Mem)

Donald ZIMMERMAN, Plaintiff–Appellant Cross-Appellee

v.CITY OF AUSTIN, TEXAS, Defendant–Appellee Cross-Appellant

No. 16-51366

United States Court of Appeals, Fifth Circuit.

FILED April 18, 2018

Jerad Wayne Najvar, Esq., Andrew Scott Patchan, Najvar Law Firm, P.L.L.C., Houston, TX, for Plaintiff–Appellant Cross–Appellee.

Renea Hicks, Law Office of Renea Hicks, Austin, TX, Anne L. Morgan, City of Austin Law Department, Litigation Division, Meghan Lee Riley, City of Austin Law Department, Houston, TX, for Defendant–Appellee Cross–Appellant.

Mark P. Gaber, Campaign Legal Center, Washington, DC, for Amicus Curiaes.

Before SMITH, BARKSDALE, and HIGGINSON, Circuit Judges.

STEPHEN A. HIGGINSON, Circuit Judge:

The Petition for Rehearing is DENIED and the court having been polled at the request of one of its members, and a majority of the judges who are in regular active service and not disqualified not having voted in favor ( Fed. R. App. P. 35 and 5th Cir. R. 35 ), the Petition for Rehearing En Banc is DENIED.

In the en banc poll, two judges voted in favor of rehearing (Judges Jones and Ho) and twelve judges voted against rehearing (Chief Judge Stewart and Judges Smith, Dennis, Clement, Owen, Elrod, Southwick, Haynes, Graves, Higginson, Costa, and Willett).

JAMES C. HO, Circuit Judge, with whom EDITH H. JONES, Circuit Judge, joins as to Parts I and II, dissenting from denial of rehearing en banc:

The unfortunate trend in modern constitutional law is not only to create rights that appear nowhere in the Constitution, but also to disfavor rights expressly enumerated by our Founders. See , e.g. , Silvester v. Becerra , ––– U.S. ––––, 138 S.Ct. 945, ––– L.Ed.2d –––– (2018) (Thomas, J., dissenting from denial of certiorari). This case reinforces this regrettable pattern.

There is no more quintessentially American principle than the right of the people to participate in their own governance. The First Amendment protects the freedom of speech, and that freedom emphatically includes the right to speak about who our elected leaders should and should not be. This foundational American liberty includes not only the freedom to engage in one's own political speech, but also the freedom to support like-minded candidates for office.

The First Amendment therefore protects campaign contributions. For example, in Randall v. Sorrell , the Supreme Court invalidated various campaign contribution limits imposed by the State of Vermont. 548 U.S. 230, 126 S.Ct. 2479, 165 L.Ed.2d 482 (2006). That included a limit of $300 per election cycle—that is, $150 per election (primary and general), or $215 in 2015 dollars—for state senators representing between 20,000 and 120,000 people. Id. at 236–38, 126 S.Ct. 2479 (plurality); see also Joint App'x at 21–22, Randall , 548 U.S. 230 (Nos. 04-1528, 04-1530, 04-1697), 2005 WL 3477006, at *55–56, 79.

This case involves a similarly low contribution limit of $350 per election, in 2015 dollars, for city council members representing fewer than 100,000 people in Austin, Texas. Zimmerman v. City of Austin , 881 F.3d 378, 387 & n.3 (5th Cir. 2018). For several reasons, we should have granted rehearing en banc and held that the Austin contribution limit violates the First Amendment.

I.

Campaign contributions are not personal gifts—they are donations to support and defray the costs of campaign speech. See , e.g. , FEC v. Mass. Citizens for Life, Inc. , 479 U.S. 238, 261, 107 S.Ct. 616, 93 L.Ed.2d 539 (1986) ("[I]ndividuals contribute to a political organization in part because they regard such a contribution as a more effective means of advocacy than spending the money under their own personal direction."); McCormick v. United States , 500 U.S. 257, 272, 111 S.Ct. 1807, 114 L.Ed.2d 307 (1991) ("[E]lection campaigns are financed by private contributions or expenditures, as they have been from the beginning of the Nation.").

Accordingly, the Supreme Court has carefully delimited the narrow circumstances in which the government may permissibly interfere with campaign contributions. In fact, the only legitimate government interest for limiting campaign contributions is preventing unlawful quid pro quo corruption or the appearance thereof.

McCutcheon v. FEC , ––– U.S. ––––, 134 S.Ct. 1434, 1450, 188 L.Ed.2d 468 (2014) (plurality). And as the Court has made clear, quid pro quo corruption requires "a direct exchange of an official act for money." Id. at 1441.

The Court has also explicitly rejected other purported justifications for restricting campaign contributions. It has held that amorphous concerns about "improper influence" or "access" are too ambiguous and imprecise to warrant interference with First Amendment rights. Compare Nixon v. Shrink Mo. Gov't PAC , 528 U.S. 377, 388–89, 120 S.Ct. 897, 145 L.Ed.2d 886 (2000), with McCutcheon , 134 S.Ct. at 1451 ("The line between quid pro quo corruption and general influence ... must be respected in order to safeguard basic First Amendment rights."), and Citizens United v. FEC , 558 U.S. 310, 360–61, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010) ("Ingratiation and access ... are not corruption."). Nor may government regulate contributions "simply to reduce the amount of money in politics, or to restrict the political participation of some in order to enhance the relative influence of others." McCutcheon , 134 S.Ct. at 1441.

Moreover, the risk of quid pro quo corruption must be established by evidence—courts may not "accept[ ] mere conjecture as adequate to carry a First Amendment burden." Id. at 1452 (emphasis added) (quoting Shrink , 528 U.S. at 392, 120 S.Ct. 897 ).

This standard is fatal to Austin's $350 contribution limit. It is at best "conjectural" that a $351 contribution to help defray the costs of campaign speech would create a genuine risk of an unlawful quid pro quo exchange. Justice Thomas put it well: "I cannot fathom how a $251 contribution could pose a substantial risk of securing a political quid pro quo "—referring to Missouri's $250 contribution limit in elections involving fewer than 100,000 constituents, which adjusted for inflation is $390 in 2015 dollars. Randall , 548 U.S. at 272–73, 126 S.Ct. 2479 (Thomas, J., concurring) (alterations and quotations marks omitted) (quoting Shrink , 528 U.S. at 425, 120 S.Ct. 897 (Thomas, J., dissenting) ). His words are equally applicable here: I too cannot fathom how a $390 contribution could pose a substantial risk of securing a political quid pro quo .

The district court should have heeded Justice Thomas's common-sense observation—particularly because the record is devoid of any evidence to the contrary. The district court merely credited the City's assertion that voters in 1997 had a "perception" of "inordinate influence" based on "large contributions, in the $1000–$2500 range"—which is $1,420–$3,545 in 2015 dollars.

There are numerous problems with the City's defense. It credits voter "perception"—which is perilously close to "mere conjecture." It raises amorphous concerns about "inordinate influence"—not quid pro quo corruption. And even ignoring these defects, this "evidence" would not remotely justify a substantially lower contribution limit of $350—less than 25 percent of the "large contributions" that concerned Austin voters.

Not surprisingly, then, when a respected panel of this Court upheld the district court's judgment, it did not rely on any of the dollar values identified by the district court. Instead, the panel invoked Supreme Court precedent: "[I]n 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." 881 F.3d at 387. In other words, the panel ruled that the difference between the $390 limit in Shrink and the $350 limit challenged here was immaterial for First Amendment purposes. Id . ("Austin's $350 limit ... is not so low by comparison as to raise suspicion.").

But the reliance on Shrink is mistaken for at least two reasons.

To begin with, Austin's $350 limit is more than 10 percent less than the $390 limit at issue in Shrink . As Justice Thomas explained in his concurrence, the Randall plurality treated "the limits in Shrink as a constitutional minimum, or at least as limits below which ‘danger signs’ are present." 548 U.S. at 269, 126 S.Ct. 2479 (Thomas, J., concurring).

But there's an even more basic problem here: The Supreme Court did not pass judgment on the constitutionality of the $390 limit in Shrink . 528 U.S. at 382–83, 120 S.Ct. 897 (describing the inflation-adjusted "$1,075 [limit] for contributions to candidates for statewide office (including state auditor)" as the "particular provision challenged here"); see also Shrink Mo. Gov't PAC v. Adams , 204 F.3d 838, 840 (8th Cir. 2000) (analyzing on remand "the $525 and $275 limits" because the Supreme Court "reviewed only the statewide limit of $1,075") (emphasis added). Rather, as Randall explained, "the lowest limit this Court has previously upheld [is] the limit of $1,075 per election ... for candidates for Missouri state auditor." 548 U.S. at 251, 126 S.Ct. 2479 (plurality) (emphasis added) (citing Shrink , 528 U.S. 377, 120 S.Ct. 897 ).

Thus, in holding the Vermont limit unconstitutional, Randall specifically noted that "Vermont's limit is well below ... $1,075." Id. (emphasis added). So too here: Austin's $350 limit is "well below" $1,075 (or $1,525 in 2015 dollars). Moreover, Randall observed that the "comparable Vermont limit of roughly $200 per election ... is less than one-sixth of Missouri's current inflation-adjusted limit." Id . And again, so too here: Austin's $350 limit is less than one-fourth of the inflation-adjusted $1,525 limit upheld in Shrink .

Because Austin's contribution limit is "substantially lower" than the limits previously upheld by the Supreme Court, there are "danger signs that [Austin's] contribution limit[ ] may fall outside...