Circuit Issues Lincoln Club Ruling
On Independent Expenditure Contributions
John Eastman, Esq.
quarter century ago, the Supreme Court in Buckley v. Valeo
held that restrictions on contributions to candidates were subject
to lower scrutiny than restrictions on expenditures themselves because
such contributions were only "speech by proxy," enabling
someone else other than the contributor to speak.
the courts have subsequently held that the new level of scrutiny
was still more strict than the intermediate scrutiny typically applied
to time, place and manner restrictions on speech, in practice this
slightly-less-than-strict scrutiny has given federal, state, and
local governments carte blanche to regulate campaign speech, as
long as the restrictions were facially tailored to restrict contributions
and not expenditures. Indeed, in practice, the courts have often
applied something much closer to traditional rational basis review
when assessing restrictions on contributions, deferring to governmental
assertions of speculative harms resulting from the "appearance"
of corruption, and refusing to probe the nexus between the alleged
harms and the restriction on speech.
that the distinction between contributions and expenditures drawn
by the Court in Buckley was based on the fact that contributions
to candidates implicated legitimate government concern with quid
pro quo corruption, for example, the City of Irvine, California,
like many other California cities, decided to restrict contributions
to independent expenditure committees which, like the expenditures
of those committees themselves, could not by law have any connection
to a candidate. This, even though the Supreme Court has repeatedly
held that restrictions on independent expenditures were unconstitutional.
The district court granted summary judgment for the City, applying
the lower level of scrutiny reserved for contributions to candidates
in Buckley. As a result, the Lincoln Club, with annual membership
dues that exceeded the Citys contribution cap, was barred
from participating in Irvines municipal elections at all.
so fast, held the Ninth Circuit Court of Appeals on June 5. Because
the contribution restriction also barred The Lincoln Club from making
any expenditures unless it radically altered its associational structure,
Irvines independent expenditure contribution limitation interfered
with core political speech (expenditures) and associational rights,
and was thus subject to strict scrutiny. Reversed and remanded for
further proceedings in light of the strict scrutiny standard, this
case now has the potential to restore political speech to its rightful
place at the core of the First Amendment.
C. Eastman is a professor of constitutional law at Chapman University
School of Law.
- To read the
Ninth Circuits decision in Lincoln Club v. Irvine,
- To read the
previous update and the Centers amicus brief, click here
June 14, 2002]
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