Pernicious Footnote in the Ninth Circuit Long Beach Case

It does not surprise me that lower courts are following the deregulatory agenda of the Supreme Court in the campaign finance area. For example, it did not surprise me (though it did disappoint me) that in the new Ninth Circuit Long Beach opinion, the lower court follows Supreme Court dicta in adopting a narrower definition of corruption.

But I found this footnote (footnote 4), discussing the level of scrutiny applicable to campaign contribution limits, especially troubling:

4The 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 prevail against laws that would suppress it, whether by design or inadvertence. 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.

What a pernicious footnote! Note first how the court says that the Supreme Court has not "explicitly" discarded the lower level of scrutiny as to contribution limits, suggesting that the Court has "implicitly" done so. What's then the support for this "implicit" discarding of precedent? A dissenting opinion and a majority reference to a dissenting opinion. That is hardly evidence of implicit discarding of precedent.

The Long Beach court also says that it is "unclear" whether the Supreme Court intended its holding in Citizens United to be the "death knell" for lower scrutiny as to contribution limits, but the Supreme Court in Citizens United made it crystal clear that it did not intend to do so. The Citizens United Court expressly noted that questions about the constitutionality of contribution limits were not before the Court. 130 S.Ct. at 909 (Citizens United "has not suggested that the Court should reconsider whether contribution limits should be subjected to rigorous First Amendment scrutiny."). The Court also said that “contribution limits...have been an accepted means to prevent quid pro quo corruption." Id. Further, at p. 910, the Citizens United Court noted a "cause for concern" if elected officials "succumb to improper influences," and it endorsed the need for judicial "due deference" to legislative remedies--short of an "outright ban" on expenditures--which "attempt to seek to dispel either the appearance or the reality of these influences" consistent with the First Amendment. All of this shows that the Court did not intend to say anything about the lower standard of review applicable to contribution limitations.

The Long Beach footnote then ends by stating that the entire discussion---calling into question hundreds of contribution limitations in the Ninth Circuit---was gratuitous, given its determination that nothing turned on the question.

For this footnote alone, I hope that the City of Long Beach seeks rehearing or rehearing en banc in this case, or that a judge on the Ninth Circuit sua sponte requests it.

[Disclosure: I am representing the City of San Diego in a Ninth Circuit case raising a similar issue.]

Posted by Rick Hasen at May 3, 2010 02:20 PM