On June 9, 2011, the Ninth Circuit Court of Appeals issued a post-Citizens United decision in Thalheimer v. City of San Diego, No. 10-55322(here) affirming the district court’s order enjoining a provision of San Diego’s campaign finance law that restricts both the fundraising and spending of independent political action committees (PACs).
The underlying claims in Thalheimer involved both facial and as- applied First Amendment challenges to five provisions of San Diego’s Municipal Election Campaign Control Ordinance (here ). The plaintiffs -- a former and future city council candidate, two PACs, the local branch of the Republican Party, and an individual campaign contributor – sought an injunction against enforcement of the provisions which restricts fundraising and spending of political committees, imposes a ban on contributions outside of a 12-month pre-election window, prohibits contributions by any non-individual entities, and imposes a $500 limit for contributions to candidates and committees supporting or opposing a candidate.
In affirming the injunction against enforcement of the fundraising/spending provision of the ordinance, the Ninth Circuit relied on the distinction between limitations on campaign spending and campaign contributions made by the United States Supreme Court over three decades ago in Buckley v. Valeo, 424 U.S. 1 (1976) “that expenditure limits represent substantial rather than merely theoretical restraints on the quality and diversity of political speech while contributions limits entail only a marginal restriction upon the contributor’s ability to engage in free communication.” Slip. Op. at p. 3 (internal citation and quotation marks omitted). Under Buckley, strict scrutiny applies to laws limiting campaign expenditures but a lesser standard applies to contributions. Slip. Op. at 14. The Ninth Circuit also dismissed the City’s reliance on anti-corruption interest to support the provision based on the United States Supreme Court’s decision in Citizen’s United v. FEC, 130 S. Ct. 876 (2010) (holding that the anti-distortion rationale was not a valid governmental interest). Slip. Op. at 16-17.
The Thalheimer decision was authored by Judge Wardlaw and is her third opinion in the last 18 months – revealing her as the Ninth Circuit’s ostensible campaign finance law guru.
In Long Beach Area Chamber of Commerce v. City of Long Beach, 603 F.3d 684 (2010) (here), the Ninth Circuit in an opinion by Judge Wardlaw held that the City’s campaign law prohibiting persons from making any independent expenditures if they receive contributions above certain amounts did not withstand First Amendment scrutiny.
In Human Life of Washington, Inc. v. Brumsickle, 624 F.3d 990 (2010) (here), another opinion authored by Judge Wardlaw, the Ninth Circuit concluded that Washington State’s disclosure law enacted as part of its campaign finance regulation did not violated the First Amendment.
The State of Hawaii appealed a recent decision by a federal district court enjoining a Hawaii statute that restricts contributions to organizations engaging only in independent spending in a case that challenged to the constitutionality of several Hawaii campaign spending laws. The appeal was originally scheduled for oral arguments before the Ninth Circuit on June 15, 2011. However, on June 10, 2011 the Ninth Circuit granted the State’s motion to voluntarily dismiss the appeal as discussed by commentators here and here.