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Ninth Circuit Issues Lincoln Club Ruling
On Independent Expenditure Contributions

By: John Eastman, Esq.

A 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.

Although 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.

Ignoring 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 City’s contribution cap, was barred from participating in Irvine’s municipal elections at all.

Not 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, Irvine’s 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.

John C. Eastman is a professor of constitutional law at Chapman University School of Law.

  • To read the Ninth Circuit’s decision in Lincoln Club v. Irvine, click here
  • To read the previous update and the Center’s amicus brief, click here

[Posted June 14, 2002]

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