Long Beach Area Chamber of Commerce v. City of Long Beach

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

LONG BEACH AREA CHAMBER OF 
COMMERCE, a non-profit California
mutual benefit corporation, on
behalf of itself and its members;
LONG BEACH AREA CHAMBER OF
COMMERCE PAC; LONG BEACH
AREA CHAMBER OF COMMERCE— No. 07-55691
MAYORAL PAC; LONG BEACH AREA  D.C. No.
CHAMBER OF COMMERCE—CITY CV-06-01497-PSG
COUNSEL PAC,
Plaintiffs-Appellees,
v.
CITY OF LONG BEACH,
Defendant-Appellant.


6401
6402 LONG BEACH AREA v. CITY OF LONG BEACH

LONG BEACH AREA CHAMBER OF 
COMMERCE, a non-profit California
mutual benefit corporation, on
behalf of itself and its members;
LONG BEACH AREA CHAMBER OF
COMMERCE PAC; LONG BEACH
AREA CHAMBER OF COMMERCE— No. 07-56081
MAYORAL PAC; LONG BEACH AREA
CHAMBER
 D.C. No.
CV-06-01497-PSG
OF COMMERCE—CITY COUNSEL
PAC,
Plaintiffs-Appellants,
v.
CITY OF LONG BEACH,
Defendant-Appellee.

 LONG BEACH AREA v. CITY OF LONG BEACH 6403

LONG BEACH AREA CHAMBER OF 
COMMERCE, a non-profit California
mutual benefit corporation, on
behalf of itself and its members;
LONG BEACH AREA CHAMBER OF
COMMERCE PAC; LONG BEACH No. 07-56190
AREA CHAMBER OF COMMERCE—
MAYORAL PAC; LONG BEACH AREA  D.C. No.
CV-06-01497-PSG
CHAMBER OF COMMERCE—CITY
COUNSEL PAC, OPINION
Plaintiffs-Appellees,
v.
CITY OF LONG BEACH,
Defendant-Appellant.

Appeal from the United States District Court
for the Central District of California
Philip S. Gutierrez, District Judge, Presiding

Argued and Submitted
October 28, 2009—Los Angeles, California

Filed April 30, 2010

Before: Alex Kozinski, Chief Judge, Dorothy W. Nelson and
Kim McLane Wardlaw, Circuit Judges.

Opinion by Judge Wardlaw
 LONG BEACH AREA v. CITY OF LONG BEACH 6407

COUNSEL

Charles H. Bell, Jr. and Jimmie E. Johnson of Bell, McAn-
drews, & Hiltachk, LLP, Sacramento, California; John C.
Eastman of Chapman University Law School, Orange, Cali-
fornia, for the appellees.

Robert E. Shannon and Monte H. Machit of the City Attor-
ney’s Office, Long Beach, California, for the appellant.

Reid Alan Cox and Stephen M. Hoersting of the Center for
Competitive Politics, Alexandria, Virginia, for amicus curiae
Center for Competitive Politics.

Richard Doyle, George Rios and Lisa Herrick of the Office of
the City Attorney, San Jose, California, for amicus curiae
League of California Cities.

OPINION

WARDLAW, Circuit Judge:

“[I]t is our law and our tradition that more speech, not less,
is the governing rule” under the First Amendment. Citizens
United v. FEC, 130 S. Ct. 876, 911 (2010). “More speech”
6408 LONG BEACH AREA v. CITY OF LONG BEACH
often means “more money.” “This is because virtually every
means of communicating ideas in today’s mass society
requires the expenditure of money.” Buckley v. Valeo, 424
U.S. 1, 19 (1976). Therefore, “[a] restriction on the amount of
money a person or group can spend on political communica-
tion during a campaign necessarily reduces the quantity of
expression by restricting the number of issues discussed, the
depth of their exploration, and the size of the audience
reached.” Id. That political spending is constitutionally pro-
tected “speech” has become a “cardinal tenet” of the Supreme
Court’s campaign finance jurisprudence. Emily’s List v. FEC,
581 F.3d 1, 5 (D.C. Cir. 2009).

We must decide whether the Long Beach Campaign
Reform Act (“LBCRA”), which prohibits “persons” from
making any independent expenditures if they receive contri-
butions above certain amounts, is constitutional as applied to
the Long Beach Area Chamber of Commerce (“Chamber”)
and its affiliated political action committees (“Chamber
PACs”). Because the Chamber lacks standing, and because
the LBCRA does not withstand scrutiny as applied to the
Chamber PACs, we vacate in part and reverse in part the dis-
trict court’s judgment that the LBCRA is unconstitutional as
applied to the Chamber but constitutional as applied to the
Chamber PACs.

BACKGROUND

The City adopted the LBCRA in 1994. It provides that
“[a]ny person who makes independent expenditures support-
ing or opposing a candidate shall not accept any contribution”
in excess of $350 to $650, depending upon the office for
which the candidate is running. Long Beach, Cal., Ordinances
§§ 2.01.310, 2.01.610. “Person” is broadly defined to include
“any individual, organization or political action committee
whose contributions or expenditure activities are financed,
maintained or controlled by any corporation, labor organiza-
tion, association, political party or any other person or com-
 LONG BEACH AREA v. CITY OF LONG BEACH 6409
mittee.” Id. § 2.01.210(D). “Independent expenditures” are
“expenditure[s] made by any person . . . in connection with
a communication which expressly advocates the election or
defeat of a clearly identified candidate . . . but which is not
made to or at the behest of the affected candidate or commit-
tee.” Cal. Gov’t Code § 82031; Long Beach, Cal., Ordinances
§ 2.01.220 (adopting state law definition). An expenditure is
not “independent” if it involves the control, direction, cooper-
ation, consultation, coordination, request, or suggestion of a
candidate. See Cal. Gov’t Code § 82015; Cal. Admin. Code
tit. 2, § 18225.7; see also Long Beach, Cal., Ordinances
§ 2.01.310 (discussing contribution limitations).

The Chamber is a non-profit mutual benefit corporation
consisting of 1,400 dues-paying members, ninety percent of
which are small businesses employing fewer than ten employ-
ees. Dues for Chamber members with fewer than ten employ-
ees range from $350 to $535, and dues for Chamber members
with between ten and one-hundred employees range from
$560 to $1,330. Some members with greater numbers of
employees pay dues in excess of $10,000. The parties stipu-
late that the Chamber’s dues constitute “contributions” under
the LBCRA.1 Because some of those dues exceed the
LBCRA’s contribution limitations, the LBCRA prohibits the
Chamber from making any independent expenditures.

The Chamber’s bylaws, however, do not permit it to make
contributions or independent expenditures. Rather, the Cham-
ber participates in City politics through the Chamber PACs —
the Long Beach Area Chamber of Commerce PAC, the Long
Beach Area Chamber of Commerce Mayoral PAC, and the
Long Beach Area Chamber of Commerce City Council PAC
— which are separate but affiliated organizations that make
independent expenditures in support of select candidates. The
1
The district court based its decision on the parties’ joint stipulation of
undisputed facts that accompanied their cross-motions for summary judg-
ment.
6410 LONG BEACH AREA v. CITY OF LONG BEACH
Chamber PACs receive contributions from Chamber members
who choose to direct a portion of their dues to the Chamber
PACs. Non-Chamber members may also contribute to the
Chamber PACs.

The Chamber and Chamber PACs (“Plaintiffs”) sued to
enjoin enforcement of the LBCRA, arguing that its contribu-
tion and expenditure limitations violate their rights of speech
and association. On April 11, 2007, the district court ruled
that the LBCRA is unconstitutional as applied to the Cham-
ber. Relying on our decision in Lincoln Club of Orange
County v. City of Irvine, 292 F.3d 934 (9th Cir. 2002), the dis-
trict court applied strict scrutiny review because the LBCRA
imposed a severe burden on the Chamber’s freedoms of
speech and association. As the district court explained, fol-
lowing enactment of the LBCRA, “[t]he Chamber is forced to
alter its dues or organizational structure if it wishes to partici-
pate in city-wide elections and also wishes to continue to wel-
come members with more than 10 employees.” That is, absent
a drastic overhaul of its membership composition or its dues
schedule, the Chamber would be precluded from making any
independent expenditures even if its bylaws authorized it to
do so.

Plaintiffs and the City each provided the district court with
a proposed form of judgment purportedly reciting the district
court’s ruling. The district court rejected the Chamber’s pro-
posed form of judgment, which declared the LBCRA “uncon-
stitutional as applied to Plaintiffs and other persons similarly
situated” (emphasis added). Instead, it chose the City’s pro-
posed form of judgment, declaring the LBCRA “unconstitu-
tional as applied to Plaintiff Long Beach Area Chamber of
Commerce and other persons similarly situated” (emphasis
added). Neither proposed form of judgment expressly
addressed the Chamber PACs.

The judgment, entered on May 4, 2007, was timely
appealed by the City. It then occurred to the parties that the
 LONG BEACH AREA v. CITY OF LONG BEACH 6411
district court may not have resolved the question of the
LBCRA’s constitutionality as applied to the Chamber PACs.
Naturally, the parties disagreed on this point. The Plaintiffs
argued that the favorable judgment also embraced the Cham-
ber PACs, as the Plaintiffs had recited in their proposed form
of judgment, and the City contended otherwise. On July 12,
2007, upon motion by the Plaintiffs, the district court clarified
its April 11, 2007, ruling, stating that it had not resolved the
constitutionality of the LBCRA as applied to the Chamber
PACs in the earlier order. It then “explicitly” concluded that
“the Long Beach ordinance is constitutional as applied to the
PACs.” The district court applied the less demanding “closely
drawn” level of scrutiny because it found that the Chamber
PACs, which lack the Chamber’s membership or dues struc-
tures, are less burdened by the LBCRA than is the Chamber.
Therefore, the City’s interests in preventing corruption or the
appearance of corruption in its political process sufficiently
justified the LBCRA’s contribution limitations and conse-
quent prohibition on spending as applied to the Chamber
PACs. The Chamber PACs filed their notice of appeal on July
23, 2007.

JURISDICTION AND STANDARD OF REVIEW

The district court exercised jurisdiction pursuant to 28
U.S.C. § 1331. We have jurisdiction pursuant to 28 U.S.C.
§ 1291. “We review a district court’s grant of summary judg-
ment de novo.” Humphries v. County of Los Angeles, 554
F.3d 1170, 1185 n.10 (9th Cir. 2009). Here, the parties filed
cross-motions for summary judgment and stipulated as to the
relevant facts. We therefore review the district court’s legal
determinations, including constitutional rulings, de novo. See
Bjustrom v. Trust One Mortgage Corp., 322 F.3d 1201, 1205
(9th Cir. 2003) (“The parties agree that the facts are not in
dispute. We review de novo pure questions of law decided on
summary judgment.”).
6412 LONG BEACH AREA v. CITY OF LONG BEACH
DISCUSSION

I. Jurisdiction

A. Standing

As stated in the parties’ stipulation, the City “no longer
contends that the Plaintiffs lack standing or that the Plaintiffs’
complaint does not present an actual controversy.” That liti-
gating posture, however, is insufficient to establish our juris-
diction. The role of the courts is “neither to issue advisory
opinions nor to declare rights in hypothetical cases, but to
adjudicate live cases or controversies.” Maldonado v. Mora-
les, 556 F.3d 1037, 1044 (9th Cir. 2009) (quoting Thomas v.
Anchorage Equal Rights Comm’n, 220 F.3d 1134, 1138 (9th
Cir. 2000) (en banc)). We therefore assess the parties’ stand-
ing before proceeding to the merits of their dispute. See Lujan
v. Defenders of Wildlife, 504 U.S. 555, 560 (1992); D’Lil v.
Best W. Encina Lodge & Suites, 538 F.3d 1031, 1035 (9th Cir.
2008).

[1] To establish Article III standing, a plaintiff must show
that “it has suffered an ‘injury in fact’ that is (a) concrete and
particularized and (b) actual or imminent, not conjectural or
hypothetical,” that “the injury is fairly traceable to the chal-
lenged action of the defendant,” and that “it is likely, as
opposed to merely speculative, that the injury will be
redressed by a favorable decision.” Sacks v. Office of Foreign
Assets Control, 466 F.3d 764, 771 (9th Cir. 2006) (quoting
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC),
Inc., 528 U.S. 167, 180-81 (2000)). Of course, Plaintiffs need
not “await the consummation of threatened injury to obtain
preventive relief.” Blum v. Yaretsky, 457 U.S. 991, 1000
(1982). Instead, where a party seeks prospective relief, “[t]he
question becomes whether any perceived threat to [the plain-
tiff] is sufficiently real and immediate to show an existing
controversy.” Id.; see also Lujan, 504 U.S. at 564 (examining
imminence of asserted injury); City of Los Angeles v. Lyons,
 LONG BEACH AREA v. CITY OF LONG BEACH 6413
461 U.S. 95, 105 (1983) (examining likelihood that plaintiff
would suffer future injury).

[2] We conclude that the Chamber PACs have Article III
standing, while the Chamber itself does not. The Chamber has
failed to demonstrate that it has suffered or faces a real and
immediate threat of suffering an injury that is fairly traceable
to the LBCRA. The Chamber’s own bylaws do not authorize
it to make contributions or independent expenditures, and the
factual record is devoid of any indication that the Chamber
either plans to modify those bylaws or even that it desires to
do so. The Chamber suggests that it may wish to make contri-
butions or independent expenditures in the future, but this
equivocal assertion is hardly sufficient to create a case or con-
troversy. As the Supreme Court has explained, “Such ‘some
day’ intentions — without any description of concrete plans,
or indeed even any specification of when the some day will
be — do not support a finding of the ‘actual or imminent’
injury that our cases require.” Lujan, 504 U.S. at 564 (empha-
sis omitted). Therefore, the district court did not have jurisdic-
tion over the Chamber’s action.2

[3] Unlike the Chamber, the Chamber PACs do make inde-
pendent expenditures. Indeed, they were formed for the very
purpose of engaging in political activities that support the
Chamber’s objectives. While the factual record does not detail
the precise nature of the contributions that the Chamber PACs
receive, it is probable that they are, or will be, offered contri-
2
The Chamber’s counsel referred to allegations in the complaint when
we expressed concern as to standing during oral argument. While those
allegations might be sufficient to overcome a motion to dismiss, they are
insufficient to withstand summary judgment, where the factual record is
dispositive. See Gerlinger v. Amazon.com Inc., 526 F.3d 1253, 1255-56
(9th Cir. 2008) (“In response to a summary judgment motion or a trial
court’s post-pleading stage order to establish Article III standing, a plain-
tiff can no longer rest on ‘mere allegations’ but must set forth by affidavit
or other admissible evidence ‘specific facts’ as delineated in Federal Rule
of Civil Procedure 56(e) as to the existence of such standing.”).
6414 LONG BEACH AREA v. CITY OF LONG BEACH
butions in excess of the LBCRA’s limitations, given the
Chamber’s dues structure and contribution scheme and the
wide range of entities from which the Chamber PACs receive
contributions. Because the LBCRA poses a “real and immedi-
ate” threat to the Chamber PACs’ ability to accept certain
contributions or to make any independent expenditures, they
have standing to sue. See Lyons, 461 U.S. at 101-02.

B. Timeliness

The City asserts that we lack jurisdiction over the Chamber
PACs’ appeal because their notice of appeal is untimely. A
notice of appeal must be filed within thirty days of entry of
the order or judgment from which the appeal is taken. Fed. R.
App. P. 4(a)(1). With a few exceptions not applicable here, an
appeal may be taken only from a final order or judgment. See
28 U.S.C. § 1291; Richardson-Merrell, Inc. v. Koller, 472
U.S. 424, 430 (1985) (“[T]he final judgment rule promotes
efficient judicial administration while at the same time
emphasizing the deference appellate courts owe to the district
judge’s decisions on the many questions of law and fact that
arise before judgment.”). A judgment is final if it fully adjudi-
cates the issues and clearly evinces the district court’s inten-
tion that it be that court’s final act in the matter. Disabled
Rights Action Comm. v. Las Vegas Events, Inc., 375 F.3d 861,
870 (9th Cir. 2004).

[4] The City contends that the Chamber PACs are appeal-
ing the May 4, 2007, judgment of the district court, and that
their July 23, 2007, notice of appeal is more than fifty days
late. However, the May 4, 2007, judgment does not indicate
that the district court ruled on, let alone denied, summary
judgment to the three Chamber PACs.3 That judgment
3
It is apparent that the City itself created any ambiguity that the May 4,
2007, judgment presented. The City drafted the order later adopted by the
district court, which altered the language used by the district court in its
April 11 order from “Plaintiffs” to “Plaintiff Long Beach Area Chamber
of Commerce.” That order also omitted any reference to the Chamber
PACs, unlike Plaintiffs’ proposed form of order which granted judgment
in favor of “Plaintiffs.”
 LONG BEACH AREA v. CITY OF LONG BEACH 6415
addressed the Chamber only. Therefore, as of May 4, 2007,
there was no adverse final judgment from which the Chamber
PACs could appeal. It was not until the court filed its July 12,
2007, order that it expressly and finally adjudicated all of the
issues related to summary judgment as to the Chamber PACs,
effectively denying the Chamber PACs’ constitutional chal-
lenge. The Chamber PACs timely filed their notice of appeal
from that order eleven days later.

The City alternatively argues (for the first time during oral
argument) that its own notice of appeal from the April 11,
2007, order divested the district court of jurisdiction to enter
a subsequent order resolving the Chamber PACs’ motion. See
Fed. R. Civ. P. 60(a) (requiring district court to obtain leave
of appellate court to issue clarification once a notice of appeal
has been filed). However, “where an appeal is taken from a
judgment which does not finally determine the entire action,
the appeal does not prevent the district court from proceeding
with matters not involved in the appeal.” Britton v. Co-op
Banking Group, 916 F.2d 1405, 1411 (9th Cir. 1990) (citation
and internal quotation marks omitted); see also Griggs v.
Provident Consumer Discount Co., 459 U.S. 56, 58 (1982)
(notice of appeal divests the district court of “control over
those aspects of the case involved in the appeal”). The district
court entered judgment granting the motion as to the Chamber
on May 4, 2007, and the City’s notice of appeal was timely
filed, thus vesting our court with jurisdiction over that matter.
Because the district court’s May 4, 2007, judgment did not
deny the motion as to the Chamber PACs, however, the dis-
trict court retained jurisdiction over that motion and was free
to clarify it or rule on it if the court had not previously done
so. Moreover, if we were to accept the City’s argument that
the May 4, 2007, grant of summary judgment embraced the
Chamber PACs’ claim, there was no adverse judgment from
which the Chamber PACs could appeal. Therefore, the district
court acted wholly within its jurisdictional bounds when it
issued the July 12, 2007, order. The Chamber PACs’ notice
of appeal was timely filed, and we have jurisdiction to review
6416 LONG BEACH AREA v. CITY OF LONG BEACH
it. Although it follows from this conclusion that the City’s
appeal was filed prematurely, we also have jurisdiction over
that appeal because “orders adjudicating only some of the
claims may be treated as final orders if the remaining claims
have subsequently been finalized.” Anderson v. Allstate Ins.
Co., 630 F.2d 677, 680 (9th Cir. 1980).

II. First Amendment Analysis

[5] “In Buckley and subsequent cases, [the Supreme Court
has] subjected restrictions on campaign expenditures to closer
scrutiny than limits on campaign contributions.” McConnell v.
FEC, 540 U.S. 93, 134 (2003); see also Lincoln Club, 292
F.3d at 938 (discussing different levels of scrutiny).
“[C]ontribution limitations are permissible as long as the
Government demonstrates that the limits are ‘closely drawn’
to match a ‘sufficiently important interest.’ ” Randall v. Sor-
rell, 548 U.S. 230, 247 (2006); see also Davis v. FEC, 128 S.
Ct. 2759, 2770 (2008) (“[S]uch limits . . . cannot stand unless
they are ‘closely drawn’ to serve a ‘sufficiently important inter-
est.’ ”).4 By contrast, expenditure limitations are subject to
4
The Supreme Court has not yet explicitly discarded “closely drawn
scrutiny,” as some Justices have urged. See, e.g., Randall, 548 U.S. at 267
(Thomas, J., concurring in the judgment) (“I would overrule Buckley and
subject both the contribution and expenditure restrictions of Act 64 to
strict scrutiny, which they would fail.”); see also McConnell, 540 U.S. at
137 (“Our application of this less rigorous degree of scrutiny has given
rise to significant criticism in the past from our dissenting colleagues.”).
In Citizens United, the Supreme Court stated: “[P]olitical speech must pre-
vail against laws that would suppress it, whether by design or inadver-
tence. Laws that burden political speech are ‘subject to strict scrutiny.’ ”
Citizens United, 130 S. Ct. at 898 (quoting FEC v. Wis. Right To Life, Inc.,
551 U.S. 449, 464 (2007)). It is unclear whether this unqualified statement
is the death knell for closely drawn scrutiny or whether it was intended
only to reaffirm the long standing principle that expenditure limitations,
like those at issue in Citizens United, are subject to strict scrutiny. We
need not read tea leaves to decide this appeal, however, because, as shown
below, the LBCRA is unconstitutional as applied to the Chamber PACs
under either “closely drawn” or “strict” scrutiny.
 LONG BEACH AREA v. CITY OF LONG BEACH 6417
strict scrutiny, which requires narrow tailoring to meet a com-
pelling governmental interest. See Citizens United, 130 S. Ct.
at 898; FEC v. Wis. Right To Life, Inc., 551 U.S. 449, 464
(2007). Thus, “the Supreme Court has generally approved
statutory limits on contributions to candidates and political
parties,” but it “has rejected expenditure limits on individuals,
groups, candidates, and parties.” Emily’s List, 581 F.3d at 8
(emphasis omitted).

Contribution limitations are treated differently from expen-
diture limitations because they generally “entail[ ] only a mar-
ginal restriction upon the contributor’s ability to engage in
free communication.” Buckley, 424 U.S. at 20. They “per-
mit[ ] the symbolic expression of support evidenced by a con-
tribution but do[ ] not in any way infringe the contributor’s
freedom to discuss candidates and issues.” Id. at 21. By con-
trast, “expenditure ceilings impose significantly more severe
restrictions on protected freedoms of political expression and
association.” Id. at 23. As the Buckley Court explained,
“Being free to engage in unlimited political expression subject
to a ceiling on expenditures is like being free to drive an auto-
mobile as far and as often as one desires on a single tank of
gasoline.” Id. at 19 n.18. Expenditure limitations may restrict
the breadth and depth of political dialogue, and they “pre-
clude[ ] most associations from effectively amplifying the
voice of their adherents, the original basis for the recognition
of First Amendment protection of the freedom of associa-
tion.” Id. at 22; see also Nixon v. Shrink Mo. Gov’t PAC, 528
U.S. 377, 386-88 (2000) (discussing application of
expenditure-contribution distinction to associational rights).

Since Buckley was decided, governments at all levels have
enacted campaign finance regulations. See, e.g., 2 U.S.C.
§ 431 et seq. (Federal Election Campaign Act); Cal. Gov’t
Code § 81000 et seq. (California Political Reform Act); see
also Citizens United, 130 S. Ct. at 897 (detailing “extensive
regulations” of PACs). But “[p]olitical speech is so ingrained
in our culture that speakers find ways to circumvent [these]
6418 LONG BEACH AREA v. CITY OF LONG BEACH
campaign finance laws.” Citizens United, 130 S. Ct. at 912.
As political strategists have devised novel ways to fund elec-
toral politics, legislative bodies have reacted in kind to the
“hard lesson of circumvention” by enacting ever-more com-
plicated campaign finance regulations that defy easy classifi-
cation under Buckley’s doctrinal framework. McConnell, 540
U.S. at 165. The LBCRA is one such regulation. It limits the
amount of contributions an entity may receive while simulta-
neously prohibiting independent expenditures by any entity
that receives contributions exceeding those limitations. As the
district court observed, this form of regulation is not subject
to easy classification as a contribution limitation or an expen-
diture limitation.

[6] This appeal does not turn on the LBCRA’s technical
classification as an expenditure limitation or a contribution
limitation, however, because the LBCRA does not withstand
scrutiny under the constitutional standards applicable to either
type of campaign finance regulation. Though the City identi-
fies several governmental interests that purportedly are served
by the LBCRA, it has not shown that any is “sufficiently
important” to support the LBCRA’s application to the Cham-
ber PACs in this case.

A. Anti-Distortion Rationale

[7] One of the LBCRA’s stated purposes is to provide the
City’s residents and interest groups with “a fair and equal
opportunity to participate in Municipal elective and govern-
mental processes.” Long Beach, Cal., Ordinances
§ 2.01.130(A); see also id. § 2.01.130(H) (“To reduce the
excessive fund-raising advantage of incumbents and thus
encourage competition for elective office.”). However, “the
concept that government may restrict the speech of some ele-
ments of our society in order to enhance the relative voice of
others is wholly foreign to the First Amendment.” Buckley,
424 U.S. at 48-49. Therefore, “the Court has ruled that the
Government cannot limit campaign contributions and expen-
 LONG BEACH AREA v. CITY OF LONG BEACH 6419
ditures to achieve ‘equalization.’ ” Emily’s List, 581 F.3d at
5. In Davis, the Court warned that restricting speech to
“ ‘level electoral opportunities’ has ominous implications
because it would permit Congress to arrogate the voters’
authority to evaluate the strengths of candidates competing for
office.” Davis, 128 S. Ct. at 2773. The Davis Court concluded
that “prior decisions . . . provide no support for the proposi-
tion that this is a legitimate government objective.” Id. The
Supreme Court recently reaffirmed these views, stating that it
is “unlawful” for the government “to command where a per-
son may get his or her information or what distrusted source
he or she may not hear.” Citizens United, 130 S. Ct. at 908.

In its briefs and at oral argument, the City argued that these
principles could be set aside under Austin v. Mich. State
Chamber of Commerce, 494 U.S. 652 (1990), in which the
Court upheld restrictions on independent expenditures by cor-
porations, noting that the government had a compelling inter-
est in combating “the corrosive and distorting effects of
immense aggregations of wealth that are accumulated with the
help of the corporate form.” Id. at 660. However, the Supreme
Court has overruled Austin and explicitly rejected the “anti-
distortion rationale” upon which it rested: “Political speech is
indispensable to decisionmaking in a democracy, and this is
no less true because the speech comes from a corporation
rather than an individual. . . . This protection for speech is
inconsistent with Austin’s anti-distortion rationale.” Citizens
United, 130 S. Ct. at 904 (internal quotation marks omitted);
see also id. at 912-13 (noting that Austin “was not well rea-
soned,” “is undermined by experience,” and does not impli-
cate any “serious reliance interests”). Therefore, we find
unavailing the City’s anti-distortion rationale for the
LBCRA’s application to the Chamber PACs.

B. Time Protection Rationale

[8] The City also states that the LBCRA is intended to
“limit overall expenditures in campaigns, thereby reducing the
6420 LONG BEACH AREA v. CITY OF LONG BEACH
pressure on candidates to raise large campaign war chests for
defensive purposes.” Long Beach, Cal., Ordinances
§ 2.01.130(D); see also id. § 2.01.130(I) (“To allow candi-
dates and officeholders to spend a lesser proportion of their
time on fund raising and a greater proportion of their time
dealing with issues of importance to their constituents.”).
However, in Buckley, the Supreme Court explained that “[t]he
First Amendment denies government the power to determine
that spending to promote one’s political views is wasteful,
excessive, or unwise.” Buckley, 424 U.S. at 57. More recently,
the Supreme Court explicitly rejected what it described as the
“time protection rationale” for campaign finance regulations,
finding “unpersuasive” the argument that government may
restrict campaign finance activity “to protect candidates from
spending too much time raising money rather than devoting
that time to campaigning among ordinary voters.” Randall,
548 U.S. at 243-45. Therefore, the City’s interest in reducing
political fundraising efforts cannot support the LBCRA’s
application to the Chamber PACs.

C. Anti-Corruption Rationale

[9] Finally, the City advances an anti-corruption rationale
to support the LBCRA’s application to the Chamber PACs.
One of the LBCRA’s stated purposes is “[t]o reduce the influ-
ence of large contributors with a specific financial stake in
matters before the City Council, thus countering the percep-
tion that decisions are influenced more by the size of contri-
butions than the best interests of the people of the City.” Long
Beach, Cal., Ordinances § 2.01.130(B); see also id.
§ 2.01.130(K) (“To help restore public trust in local govern-
mental and electoral institutions.”). In its brief, the City
asserts that the LBCRA “prevent[s] corruption or the appear-
ance of corruption” and that the large amount of money spent
on City elections “has caused a public perception that votes
are being improperly influenced by monetary contributions.”
 LONG BEACH AREA v. CITY OF LONG BEACH 6421
[10] The Supreme Court has concluded that “preventing
corruption or the appearance of corruption are the only legiti-
mate and compelling government interests thus far identified
for restricting campaign finances.” FEC v. Nat’l Conservative
Political Action Comm., 470 U.S. 480, 496-97 (1985)
(“NCPAC”); see also Davis, 128 S. Ct. at 2773; Randall, 548
U.S. at 268. This interest was sometimes broadly construed in
the expenditures context before the Supreme Court’s recent
decision in Citizens United, in which it stated: “When Buckley
identified a sufficiently important governmental interest in
preventing corruption or the appearance of corruption, that
interest was limited to quid pro quo corruption.” Citizens
United, 130 S. Ct. at 909.5 “The fact that speakers may have
influence over or access to elected officials does not mean
that these officials are corrupt,” and “[t]he appearance of
influence or access . . . will not cause the electorate to lose
faith in our democracy.” Id. at 910.
5
We do not fault the City for its failure to narrow its asserted anti-
corruption interest to quid pro quo corruption only, as opposed to money
spent to obtain “influence over or access to elected officials.” Citizens
United, 130 S. Ct. at 910. The City did not have the benefit of the
Supreme Court’s recent decision in Citizens United when it enacted the
LBCRA or when it defended the LBCRA’s constitutionality before the
district court and on appeal. Before Citizens United was decided, it was
unclear whether expenditures regulations were reviewed in light of the
broader definition of “corruption” reflected in the City’s arguments. See,
e.g., Shrink Mo., 528 U.S. at 389 (“In speaking of ‘improper influence’
and ‘opportunities for abuse’ in addition to ‘quid pro quo arrangements,’
we recognized a concern not confined to bribery of public officials, but
extending to the broader threat from politicians too compliant with the
wishes of large contributors. These were the obvious points behind our
recognition that the Congress could constitutionally address the power of
money ‘to influence governmental action’ in ways less ‘blatant and spe-
cific’ than bribery.” (quoting Buckley, 424 U.S. at 28)); McConnell, 540
U.S. at 143 (“Our cases have made clear that the prevention of corruption
or its appearance constitutes a sufficiently important interest to justify
political contribution limits. We have not limited that interest to the elimi-
nation of cash-for-votes exchanges.”).
6422 LONG BEACH AREA v. CITY OF LONG BEACH
Supreme Court precedent forecloses the City’s argument
that independent expenditures by independent expenditure
committees (“IECs”), like the Chamber PACs, raise the spec-
ter of corruption or the appearance thereof. Moreover, the
City’s broadly based anti-corruption rationale for restricting
contributions to IECs is lacking in legal and factual support
because the City has not offered sufficient evidence of corrup-
tion to support its asserted governmental interest in restricting
contributions to IECs.

1. Expenditure Limitations

[11] “By definition, an independent expenditure is political
speech presented to the electorate that is not coordinated with
a candidate.” Citizens United, 130 S. Ct. at 910. An expendi-
ture that is made with the control, direction, cooperation, con-
sultation, coordination, request, or suggestion of a candidate
is a contribution, not an independent expenditure. Cal. Gov’t
Code § 82015; Cal. Admin. Code tit. 2, § 18225.7. For
instance, the Chamber PACs could be subject to criminal lia-
bility if they made payments in coordination with candidates
or their campaigns but failed to disclose the payments as con-
tributions. See Cal. Gov’t Code §§ 84200, 84211, 91000. It is
“ ‘[t]he absence of prearrangement and coordination of an
expenditure with the candidate or his agent [that] alleviates
the danger that expenditures will be given as a quid pro quo
for improper commitments from the candidate.’ ” Citizens
United, 130 S. Ct. at 908 (quoting Buckley, 424 U.S. at 47);
see also FEC v. Colo. Republican Fed. Campaign Comm.,
533 U.S. 431, 452 (2001) (Colorado II) (distinguishing
between “independent” and “coordinated” expenditures). In
short, “independent expenditures . . . do not give rise to cor-
ruption or the appearance of corruption.” Citizens United, 130
S. Ct. at 909; see also NCPAC, 470 U.S. at 497 (“[There is]
no tendency in such expenditures, uncoordinated with the
candidate or his campaign, to corrupt or to give the appear-
ance of corruption.”).
 LONG BEACH AREA v. CITY OF LONG BEACH 6423
[12] It necessarily follows that the City may not impose
financial limits on the Chamber PACs’ independent expendi-
tures. This conclusion is compelled by the long and growing
line of Supreme Court cases concluding that limitations on
independent expenditures are unconstitutional. See Buckley,
424 U.S. at 45 (“We find that the governmental interest in
preventing corruption and the appearance of corruption is
inadequate to justify § 608(e)(1)’s ceiling on independent
expenditures.”); Colo. Republican Fed. Campaign Comm. v.
FEC, 518 U.S. 604, 618 (1996) (“Colorado I”) (“We do not
see how a Constitution that grants to individuals, candidates,
and ordinary political committees the right to make unlimited
independent expenditures could deny the same right to politi-
cal parties.”); Randall, 548 U.S. at 246 (limitations on inde-
pendent expenditures by candidates violate the First
Amendment); NCPAC, 470 U.S. at 499 (“A tendency to dem-
onstrate distrust of PACs is not sufficient” to sustain a restric-
tion on their expenditures); Citizens United, 130 S. Ct. at 913
(limitations on independent expenditures by corporations vio-
late the First Amendment).

2. Contribution Limitations

[13] Nor has the City shown that contributions to the
Chamber PACs for use as independent expenditures raise the
specter of corruption or the appearance thereof. The Supreme
Court has upheld limitations on contributions to entities
whose relationships with candidates are sufficiently close to
justify concerns about corruption or the appearance thereof.
For example, in McConnell, the Supreme Court upheld limita-
tions on contributions to political parties because “the close
relationship between federal officeholders and the national
parties, as well as the means by which parties have traded on
that relationship, . . . have made all large soft-money contribu-
tions to national parties suspect.” McConnell, 540 U.S. at
154-55. Similarly, in California Medical Association v. FEC,
453 U.S. 182 (1981), the Supreme Court upheld limitations on
contributions to “multicandidate political committees”
6424 LONG BEACH AREA v. CITY OF LONG BEACH
because their close relationship with candidates and office-
holders made them “conduits for contributions to candidates,
and as such they pose[d] a perceived threat of actual or poten-
tial corruption.” Id. at 203 (Blackmun, J., concurring in part
and concurring in the judgment); see also id. at 197 (maj. op.)
(“[T]he rights of a contributor are . . . not impaired by limits
on the amount he may give to a multicandidate political com-
mittee . . . which advocates the views and candidacies of a
number of candidates.”).

However, the need for contribution limitations to combat
corruption or the appearance thereof tends to decrease as the
link between the candidate and the regulated entity becomes
more attenuated. As the Fourth Circuit has aptly explained:

Unsurprisingly, the strength of the state’s interest in
preventing corruption is highly correlated to the
nature of the contribution’s recipient. Thus, the
state’s interest in the prevention of corruption —
and, therefore, its power to impose contribution lim-
its — is strongest when the state limits contributions
made directly to political candidates . . . . As one
moves away from the case in which a donor gives
money directly to a candidate, however, the state’s
interest in preventing corruption necessarily
decreases.

N.C. Right to Life, Inc. v. Leake, 525 F.3d 274, 291 (4th Cir.
2008). The D.C. Circuit has since endorsed this rationale. See
Emily’s List, 581 F.3d at 11; see also id. at 6 (the anti-
corruption interest justifies limits on contributions to parties
“[b]ased on the close relationship between candidates and par-
ties”).

[14] The Chamber PACs are several significant steps
removed from “the case in which a donor gives money
directly to a candidate.” Leake, 525 F.3d at 291. They do not
enjoy a “close connection and alignment,” “close affiliation,”
 LONG BEACH AREA v. CITY OF LONG BEACH 6425
and “nexus” with candidates. McConnell, 540 U.S. at 155; see
also Emily’s List, 581 F.3d at 14 (“In sum, it will not work
to simply transport McConnell’s holding from the political
party context to the non-profit setting.”). Nor do the Chamber
PACs operate as middlemen through which funds merely pass
from donors to candidates. See Cal. Med. Ass’n, 453 U.S. at
197. They do not coordinate or prearrange their independent
expenditures with candidates, and they do not take direction
from candidates on how their dollars will be spent.6 See Colo-
rado II, 533 U.S. at 457 (discussing “serious threat of abuse”
from coordinated expenditures). The Chamber PACs’ rela-
tionship with candidates is, at best, attenuated. See Emily’s
List, 581 F.3d at 14 (“More fundamentally, non-profit groups
do not have the same inherent relationship with federal candi-
dates and officeholders that political parties do.”).

[15] In fact, the record reveals only one interaction
between the Chamber PACs and candidates for City office:
interviews that the Chamber PACs’ ten-member executive
board conducts before deciding which candidates to support.
Among the factors that the board considers is the candidate’s
position on policy questions affecting local businesses’ ability
to operate in the City. This fact alone does not support the
City’s anti-corruption rationale for applying the LBCRA to
the Chamber PACs.7 It comes as no surprise that the Chamber
PACs would take appropriate steps to make informed deci-
sions about how to spend their contributors’ money. See
NCPAC, 470 U.S. at 495 (“[T]he contributors obviously like
6
As noted above, if the Chamber PACs did coordinate their expendi-
tures with candidates, those expenditures would lose their “independent”
status and would be subject to regulations governing contributions.
7
The matter before us might be different if there were evidence that
these interviews ended with a “wink and a nod” between the candidate and
the Chamber PACs. For one thing, as noted above, such dealings could be
subject to criminal prosecution to the extent that they actually transformed
“independent expenditures” into “contributions” that were not disclosed as
such. See Cal. Gov’t Code §§ 82015, 91000; Cal. Admin. Code tit. 2
§ 18225.7.
6426 LONG BEACH AREA v. CITY OF LONG BEACH
the message they are hearing from these organizations and
want to add their voices to that message; otherwise they
would not part with their money.”). Though the City argues
in its brief that “collective experience” indicates that “unre-
stricted financial contributions to . . . IECs have a corruptive
influence,” the City fails to identify a single fact or event to
support that contention. Thus, “[o]n this record, . . . an
exchange of political favors for uncoordinated expenditures
remains a hypothetical possibility and nothing more.” Id. at
498.

The City has even stipulated that it “is unaware of any
instances of quid pro quo corruption of candidates in Long
Beach municipal elections caused by contributions to inde-
pendent expenditure committees, either since adoption of the
Ordinance or which served as a basis for the Ordinance.” This
is hardly surprising “[g]iven the remove of independent
expenditure committees from candidates themselves.” Leake,
525 F.3d at 293. Tellingly, the only IEC activity that is even
discussed in the record is a stipulation that, during the 2002
City election cycle, an IEC created and distributed a mailer
supporting a candidate after the IEC had received contribu-
tions in excess of the LBCRA’s limits. We are not told
whether the candidate ever had any contact with the IEC,
whether the money received or spent by the IEC had any cor-
rupting influence on City politics, whether the voters sus-
pected the IEC of corrupting the political process, or even
whether the candidate won the race. The City’s inability to
identify a single instance of corruption, quid pro quo or other-
wise, involving contributions to IECs for use as independent
expenditures undermines its contention that the LBCRA’s
application to the Chamber PACs furthers its interest in com-
bating corruption or the appearance thereof. See Emily’s List,
581 F.3d at 14 (“Unlike the political parties examined in
McConnell, there is no record evidence that non-profit entities
have sold access to federal candidates and officeholders in
exchange for large contributions.”); cf. SpeechNow.org v.
FEC, ___ F.3d ___, 2010 WL 1133857, at *16 (D.C. Cir.
 LONG BEACH AREA v. CITY OF LONG BEACH 6427
2010) (“[B]ecause Citizens United holds that independent
expenditures do not corrupt or give the appearance of corrup-
tion as a matter of law, then the government can have no anti-
corruption interest in limiting contributions to independent
expenditure-only organizations.”). As Justice Blackmun noted
in his concurrence in California Medical Association,
“[C]ontributions to a committee that makes only independent
expenditures pose no such threat [of corruption].” Cal. Med.
Ass’n, 453 U.S. at 203.

Perhaps recognizing the deficiency of the evidentiary
record before the district court, the California League of Cit-
ies (“League”), as amicus curiae, attempts to bolster the
City’s appeal, filing the texts of ordinances from other Cali-
fornia municipalities as well as two reports documenting the
rise of IECs and IEC spending. The League offers the two
reports as “new and compelling evidence” supporting the
City’s anti-corruption rationale for the LBCRA. However, the
district court was the appropriate forum in which to introduce
this “evidence,” and we refrain from usurping that court’s
function by entertaining new evidentiary submissions on
appeal. See Fed. R. App. P. 10(a)(1) (record on appeal con-
sists of original papers and records filed in the district court);
Barcamerica Int’l USA v. Tyfield Imps., Inc., 289 F.3d 589,
594 (9th Cir. 2002) (papers not filed in district court are not
part of record on appeal). Second, we appreciate the League’s
observation that “[a] significant number of cities, including
many of the largest municipalities, have adopted laws that
limit contributions to independent committees that support or
oppose candidates for local office.” However, we can only
decide the appeal before us, and our holding today extends
only to the LBCRA as applied to the Chamber PACs and sim-
ilarly situated entities.

Finally, the City urges that the LBCRA’s enactment
through voter initiative demonstrates a general perception of
corruption in City politics. However, as noted above, the
LBCRA covers “any person,” the definition of which extends
6428 LONG BEACH AREA v. CITY OF LONG BEACH
far beyond IECs. City of Long Beach, Cal., Ordinances
§ 2.01.210(D). The City provides no information about the
basis upon which the voters acted, and it would be purely
speculative to conclude that passage of the LBCRA was a ref-
erendum on IECs in particular given the breadth of the
LBRCA’s coverage. Even if the law were a referendum on
IECs, we could infer little from that fact; voters might have
many reasons to want to silence those organizations that have
nothing whatsoever to do with corruption.

[16] In sum, the City offers no basis on which to conclude
that the Chamber PACs have the sort of close relationship
with candidates that supports a plausible threat of corruption
or the appearance thereof. IECs are intended to provide a dis-
tinct medium through which citizens may collectively enjoy
and effectuate those expressive freedoms that they are entitled
to exercise individually. Many “individuals contribute to a
political organization in part because they regard such a con-
tribution as a more effective means of advocacy than spend-
ing the money under their own personal direction.” FEC v.
Mass. Citizens for Life, Inc., 479 U.S. 238, 261 (1986); see
also Colorado I, 518 U.S. at 637 (1996) (Thomas, J. concur-
ring) (“Political associations allow citizens to pool their
resources and make their advocacy more effective.”). Just as
the soloist’s song becomes more powerful when joined by a
chorus of people singing along, a citizen’s message may
become more widely and effectively disseminated when he
joins an IEC of like-minded citizens. See Cal. Med. Ass’n,
453 U.S. at 203 (“By pooling their resources, adherents of an
association amplify their own voices.”); NCPAC, 470 U.S. at
494 (“NCPAC and FCM are mechanisms by which large
numbers of individuals of modest means can join together in
organizations which serve to ‘amplif[y] the voice of their
adherents.’ ” (quoting Buckley, 424 U.S. at 22)). Other cir-
cuits have endorsed this view of IECs. See Emily’s List, 581
F.3d at 4 (The First Amendment “safeguards the right of citi-
zens to band together and pool their resources as an unincor-
porated group or non-profit organization in order to express
 LONG BEACH AREA v. CITY OF LONG BEACH 6429
their views about policy issues and candidates for public
office.”); Leake, 525 F.3d at 295 (“[I]ndependent expenditure
political committees offer an opportunity for ordinary citizens
to band together to speak on the issue or issues most impor-
tant to them.”). Nothing in the evidentiary record of this case
indicates that the Chamber PACs should be considered differ-
ently. Therefore, the City’s anti-corruption rationale does not
support the LBCRA’s limitations on contributions to the
Chamber PACs.

CONCLUSION

[17] We conclude that the Chamber lacks standing to chal-
lenge the constitutionality of the LBCRA. Therefore, we
VACATE the district court’s grant of summary judgment in
favor of the Chamber and remand with instructions to dismiss
the Chamber’s claim for want of jurisdiction. We also con-
clude that the Chamber PACs’ appeal was timely filed.
Because the City has not advanced a governmental interest to
support the LBCRA’s application to the Chamber PACs, we
REVERSE the district court’s grant of summary judgment in
favor of the City and against the Chamber PACs.

VACATED and REMANDED in part; REVERSED in
part.