upholding restriction that prohibited acceptance of contributions from outside sources during the twenty-eight days preceding an election, and that was part of a scheme for publically financing election campaigns
How later courts described this case
- upholding restriction that prohibited acceptance of contributions from outside sources during the twenty-eight days preceding an election, and that was part of a scheme for publically financing election campaigns
- rejecting First Amendment facial challenge to Kentucky law that “requires that advertisements supporting a particular candidate contain identification of the sponsor” of that advertisement
- treating the limitation on FEC contributions exceeding $100 in a calendar year. internal contributions during the 28-day window as a Buckley, 424 U.S. at 82 .4 By relying on reporting for even limitation on candidate expenditures
- where the statute provided 2-1 public matching funds for candidates who agreed to limit campaign expenditures, upholding a provision that waived the expenditure limit when a non-participating opponent raised funds in excess of that amount
Written by the judges who cited it.
The opinion
CUDAHY, Circuit Judge,
concurring in part and dissenting in part.
I concur in all of the cogent majority opinion except Part V.B., which invalidates the 28-Day Window insofar as it prohibits candidates from contributing to their own campaigns during the final weeks before an election. As the majority explains, Kentucky’s campaign finance system is designed to combat actual and apparent corruption. The 28-Day Window does not merely “indirectly” advance this goal as the majority suggests; *954 instead the Window is crucial to the effectiveness of the entire Kentucky scheme and its invalidation threatens to derail this reform effort. The 28-Day Window is intended to preclude participating and non-participating candidates from infusing last-minute cash into their campaign coffers, too late to be reported and to allow a response by their opponents. The majority has approved this 28-Day Window to the extent that it limits contributions by supporters. But as a result of the majority’s disallowance of the same limitation on self-financing, a candidate using his own funds will now be free to ambush an adversary with a torrent of new cash after the last reporting deadline, when a response is no longer possible. A provision that forbids this unfair practice should not require a defense.
To justify its result, the majority is not, as it claims, merely applying Buckley v. Valeo, 424 U.S. 1 , 96 S.Ct. 612 , 46 L.Ed.2d 659 (1976). Instead, the majority is extending that case in a fashion that Buckley specifically forecloses. As the majority concedes, Buckley authorizes “reasonable time, place, and manner regulations, which do not discriminate among speakers or ideas, in order to further an important governmental interest unrelated to the restriction of communication,” provided that the regulations do not impose “direct quantity restrictions on political communication and association.” 424 U.S. at 18 , 96 S.Ct. at 634 (emphasis added).
Here the purpose and effect of the 28-Day Window is to prohibit contributions at a highly sensitive time — within a few weeks or days of the election and after the last financial report has been made. Since this is the end of the campaign, total contributions might be less than if there were no such restrictions. But the prohibition applies directly and explicitly to when contributions are made; there is no impact on amount unless, without the restriction, a candidate decided on a last-minute contribution. Whether a candidate would make such a contribution is a matter of conjecture. Compare id. at 19 , 96 S.Ct. at 635 (“The expenditure limitations contained in the Act represent substantial rather than merely theoretical restraints on the quantity and diversity of political speech.”). The provision before us therefore does not impose “direct quantity restrictions” and is not a violation of the Buckley principle.
Nor does the 28-Day Window involve the evil at which Buckley was aimed. Buckley was concerned that a candidate not be prohibited from contributing to, and spending money on, her own candidacy. See id. at 52-53 , 96 S.Ct. at 651 . Certainly that freedom is not at stake here. Candidates are free to make contributions, as frequently as they wish and of whatever magnitude they choose, before the advent of the 28-Day Window. The majority makes a number of unconvincing arguments about why this freedom fails to satisfy the requirements of the First Amendment. In particular, the majority has advanced the strawman that a candidate might need to “deposit virtually all of his personal resources” before the 28-day limit in the expectation of trouble to come. The reality would be simply that the candidate would put up something before the 28-Day Window (that she would be required to report) as a hedge against last-minute difficulties. If the difficulties did not materialize, it is likely that regular campaign expenses could absorb the surplus. In any event, if there were no last-minute problems requiring additional cash, the candidate’s campaign no doubt went well, and she would be untroubled by any surplus.
All the 28-Day Window provides is notice that the contribution has been made and an opportunity for the opponent to respond. The provision thereby removes the unfairness of last-minute, unreported contributions. It is true that Buckley prohibits “restricting] the speech of some elements of our society in order to enhance the relative voice of others.” Id. at 48-49 , 96 S.Ct. at 649 . But that does not mean that the First Amendment protects the right to ambush an opponent. Cf. First Nat’l Bank of Boston v. Belloti, 435 U.S. 765, 789 , 98 S.Ct. 1407, 1422-23 , 55 L.Ed.2d 707 (1978) (“If appellee’s arguments were supported by ... findings that ... advocacy threatened imminently to undermine democratic processes, thereby denigrating rather than serving First Amendment interests, these arguments would merit our consideration.”) (citing Red Hon Broad *955 casting Co. v. FCC, 395 U.S. 367 , 89 S.Ct. 1794 , 23 L.Ed.2d 371 (1969)). Nor do I believe that denying such a right would result, as the majority contends, in only a “marginal” increase in the effectiveness of the Trigger. The majority’s logic here is not transparent. It may be saying that, since the application of the 28-Day Window is aimed at wealthy candidates, the effect is only marginal and cannot be a basis for disregarding Buckley’s injunction against attempting to equalize the financial resources of candidates. I am not sure how we can conclude that the effect of a last-minute cash infusion into a campaign that could be won by a single vote is only “marginal.” However, if this is so, by the same token its prohibition cannot be a significant infringement of the First Amendment.
In sum, the majority is troubled that the 28-Day Window is a “burden” on a candidate’s freedom to speak with her own dollars. But the alternative is to construct a special right to speak with unreported dollars at the last minute when no response is possible. I do not believe that the First Amendment requires such a perverse construction, and I therefore respectfully dissent with respect to this issue.