Frank v. City of Akron

GILMAN, Circuit Judge,

concurring in part and dissenting in part.

I agree with the majority that § 5(C) of the Akron Campaign Finance Charter Amendment, which sets a cash contribution limit of $25, is constitutional, and that the district court’s judgment should be reversed and remanded on that ground. The majority and I also agree that the district court correctly concluded that § 5(G)(2), which requires public disclosure of the primary employer of individuals who contribute $50 or more, is constitutional. I *820disagree, however, with the majority’s conclusion that § 5(D), which limits the amount that an individual can contribute to candidates for mayor and city council, and § 5(G)(1), which requires public disclosure of the home address of all individuals who make political contributions, are constitutional. Because I believe that these two sections of Akron’s charter amendment violate the First Amendment, I would affirm the district court’s conclusion that they are unconstitutional as a matter of law.

I. Noncash contribution limits

As explained by the majority opinion, § 5(D) prohibits individuals from contributing (1) more than $300 to a mayoral or a city council at-large candidate, or (2) more than $100 to a city council ward candidate.

Campaign-contribution limits implicate the freedom of. political association. Buckley v. Valeo, 424 U.S. 1, 22, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (per curiam). Although freedom of political association is a “basic constitutional freedom,” id. at 25, 96 S.Ct. 612 (internal quotation marks omitted), a contribution limit can be constitutional if it is “ ‘closely drawn’ to match a ‘sufficiently important interest....’” Nixon v. Shrink Missouri Gov’t PAC, 528 U.S. 377, 387-88, 120 S.Ct. 897, 145 L.Ed.2d 886 (2000) (quoting Buckley, 424 U.S. at 30, 96 S.Ct. 612). In this case, the intervening defendants assert that the contribution limit was imposed to prevent both corruption and the appearance of corruption. The Supreme Court has held that the prevention of corruption of elected officials or the appearance of such corruption is a “constitutionally sufficient justification.” Buckley, 424 U.S. at 26, 96 S.Ct. 612. Thus the only question presented by the plaintiffs’ challenge to this section of the charter amendment is whether the restriction is “closely drawn” to match this “sufficiently important interest.”

In holding that the noncash contribution limits are unconstitutional as a matter of law, the district court emphasized that Akron is a city of over 200,000 people, and that such low contribution limits have never been upheld by a federal court, even in smaller jurisdictions. It thus concluded that the charter amendment is not “closely drawn” to accomplish the valid goal of preventing corruption or the appearance of corruption. The district court reached this conclusion before Nixon was decided, but its analysis is consistent with the clarification of Buckley provided by the Supreme Court in the Nixon case.

Although the majority correctly states the standard announced by the Supreme Court in Buckley and clarified by Nixon, it fails to apply the standard. Instead, after quoting the relevant passage from Nixon, the majority goes on to espouse its theory on the proper role of courts in our society and to indict Lochner-era jurisprudence. Majority Op. 5 (“It is not the function of the courts to take sides in partisan politics or partisan arguments about campaign finance reforms. It is the court’s function to interpret the Constitution which contains no explicit provisions concerning campaign finance or insuring that a particular group may dominate democratic government because of its wealth.”); Majority Op. 6 (“Money buys many of the good things in life, but no one has cited any constitutional history suggesting that money is supposed to be the milk of politics or that large political contributions are a necessary ingredient of representative government protected by the Constitution. Constitutional history does not support the idea that laissez faire economics is embodied in the First Amendment to assure the right to make large campaign contributions.”). Such grandiose statements and general philosophizing are irrelevant to the analytical framework that we are charged *821with applying pursuant to binding Supreme Court precedent.

One serious problem with the majority’s broad generalizations is that they give no indication of any limiting principle. Under the majority’s rationale, there apparently would be no constitutionally significant difference between a law imposing a $1,000 contribution limit and one imposing a $1 contribution limit. Surely that is not what the Supreme Court meant to imply when it stated that “the dollar amount of the limit need not be “fine tun[ed]”.” Nixon, 528 U.S. at 388, 120 S.Ct. 897.

The district court’s conclusion that the contribution limits are unconstitutional was based upon a careful examination of the available federal-court precedents. By analyzing these cases, the district court was able to determine the general parameters of what contribution limits have been upheld as being “closely drawn” to accomplish the valid goal of preventing corruption or the appearance of corruption. After finding that no federal court had ever upheld the drastically low contribution limitations presented in the case before us, even in jurisdictions with populations smaller than Akron’s, the district court concluded that the charter amendment contribution limitations were not “closely drawn.” Frank v. Akron, 95 F.Supp.2d 706, 714-16 & n. 14 (N.D.Ohio 1999) (citing Russell v. Burris, 146 F.3d 563, 568 (8th Cir.1998) (overturning contribution limits of $100 and $300 for candidates for statewide offices); Carver v. Nixon, 72 F.3d 633, 644 (8th Cir.1995) (striking down contribution limits of $100 in districts with fewer than 100,000 residents, $200 in districts with 100,000 or more residents, and $300 for candidates for statewide offices); SEIU v. Fair Political Practices Comm., 955 F.2d 1312, 1321 (9th Cir.1992) (overturning a contribution limit of $1,000 per year for candidates for state and local offices); California Prolife Council PAC v. Scully, 989 F.Supp. 1282, 1299 (E.D.Cal.1998) (voiding contribution limits of $100 in districts with fewer than 100,000 residents, $250 in districts with 100,000 or more residents, and $500 for candidates for statewide offices); Nat'l Black Police Ass’nv. Dist. of Columbia Bd. of Elections and Ethics, 924 F.Supp. 270, 282 (D.D.C.1996) (striking down a Washington, D.C. contribution limit of $100 for candidates for mayor and other district-wide offices), vacated as moot sub nom., Nat'l Black Police Ass’n v. Dist. of Columbia, 108 F.3d 346, 354 (D.C.Cir.1997)). The majority opinion fails to address any of these precedents. Because the relevant case law indicates that the Akron contribution limits are not “closely drawn,” I would affirm the district court’s conclusion that § 5(D) is unconstitutional.

II. Home-address disclosure requirement

Section 5(G)(1) of the charter amendment provides that: “All persons who make any financial contributions or loan to any campaign for municipal office shall be listed by home address on the candidate’s Financial Report filed with the Summit County Board of Elections.”

The Supreme Court has “repeatedly found that compelled disclosure, in itself, can seriously infringe on privacy of association and belief guaranteed by the First Amendment.” Buckley, 424 U.S. at 64, 96 S.Ct. 612. As a result, “the subordinating interests of the State must survive exacting scrutiny,” and there must “be a ‘relevant correlation’ or ‘substantial relation’ between the governmental interest and the information required to be disclosed.” Id. (footnote omitted). The intervening defendants contend that the disclosure requirement is “designed to help citizens understand who is potentially influencing local politicians and why they are trying to do *822so.” They also point out that similar disclosures are required pursuant to both Ohio and federal law.

In holding the home-address disclosure requirement unconstitutional as a matter of law, the district court found that the comparable state law does not require disclosure of the contributor’s home address. Frank, 95 F.Supp.2d at 718 (citing Ohio Rev.Code § 3617.10(B)(4)(b)(l) and (F)(1)). As a result, the district court concluded that Akron’s home-address disclosure requirement is not “closely drawn” to accomplish its valid goal of preventing corruption or the appearance of corruption. In reaching this conclusion, the district court emphasized that mandatory disclosure of a home address “would seriously impinge the First Amendment rights of anyone who may be reluctant, for security reasons, to reveal his or her home address.” Id.

The majority opinion, which devotes only one paragraph to this issue of considerable importance, reverses the district court’s decision after concluding that “[tjhere is no meaningful distinction between requiring a donor to list a ‘mailing’ address and requiring a donor to list his ‘home’ address.” Majority Op. 819. One of the majority opinion’s key arguments is that “[m]ost individuals’ addresses are listed in the local phone book and are readily available on the Internet.” Id.

But requiring all contributors to disclose their home addresses is unnecessarily invasive. Federal law, for example, accomplishes the same asserted state interest by requiring contributors to disclose only a “mailing address.” 2 U.S.C. § 431(13)(A); 11 C.F.R. § 100.12. The intervening defendants have also failed to establish that, at least with regard to small contributions, there is “a ‘relevant correlation’ or ‘substantial relation’ between the governmental interest and the information required to be disclosed.” Buckley, 424 U.S. at 64, 96 S.Ct. 612. I would therefore affirm the district court’s conclusion that the home-address disclosure requirement is unconstitutional.

For all of the reasons set forth above, I respectfully dissent from those portions of the majority’s opinion that uphold §§ 5(D) and 5(G)(1) of the Akron Campaign Finance Charter Amendment.