# Petition for Writ of Certiorari — Citizens for Clean Government v. Russell > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_1543%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1998 - **Citation:** 525 U.S. 1001 ## Text Cour, U.S. Ri ) 98 807 se 2-mm No. In The OFFICE OF THE CLERK Supreme Court of the Wnited States * October Term, 1997 CITIZENS FOR CLEAN GOVERNMENT, Petitioner, vs. RON RUSSELL, KENT INGRAM, WILLIAM R. AUSTIN, and ASSOCIATED INDUSTRIES OF ARKANSAS POLITICAL ACTION COMMITTEE, -and- TROY BURRIS, in his official capacity as chairperson of the Arkansas Ethics Commission and JACK KEARNEY, TOM ALEXANDER, RITA LOONEY, and BEN ALLEN, in their official Capacities as members of the Arkansas Ethics Commission, Respondents. On Petition for Writ of Certiorari to the United States Court of Appeals for the Eighth Circuit PETITION FOR WRIT OF CERTIORARI SCOTT C. TROTTER BURT NEUBORNE TROTTER & SKELTON Counsel of Record 103 West Capitol Avenue § E. JOSHUA ROSENKRANZ Suite 1205, Boyle Building © NANCY NORTHUP Little Rock, AR 72201 ELIZABETH DANIEL (501) 376-6355 Brennan Center for Justice at New York University School of Law 161 Avenue of the Americas Fifth Floor New York, NY 10013 (212) 998-6730 Attorneys for Petitioners 148343 @J Counsel Press LLC FORMERLY LUTZ APPELLATE SERVICES (800) 274-3321 + (800) 359-6859 i QUESTIONS PRESENTED 1, Whether a state that provides a generous campaign subsidy dramatically increasing a candidate’s capacity to raise campaign funds from the general public by providing each taxpayer with an annual $50 income tax credit ‘for political contributions may, consistent with the First Amendment as construed in Buckley v. Valeo, 424 U.S. 1 (1976), impose ceilings on campaign contributions ranging from $300 to $100 per election, when ihe history and circumstances of the state’s elections indicate that candidates will be able to raise sufficient funds for effective advocacy under such a regime. ~ 2. Whether the state’s interest in combating the “actuality and appearance of corruption,” which, under Buckley v. Valeo, justifies limits on campaign contributions: (a) is confined to a quid pro quo arrangement that resembles bribery or connotes a broader structural evil that includes candidates’ granting of preferred access and paying heightened attention to the concerns of large campaign contributors; and (b) is an adjudicative fact that must be proven with evidence that public officials have actually altered the performance of their public duties in return for campaign contributions or may be established by a showing that the appearance of corruption linked to large contributions is not illusory. 3. Whether a state’s attempt to cap campaign contributions in the interest of preventing the appearance or reality of corruption should be reviewed under a balancing test that weighs the minimal burden on speech and associational interests against the state’s compelling interest in combating the appearance and reality of corruption, especially in a case where the contribution cap is structurally linked to a public subsidy. 4. Whether a state may, consistent with the First Amendment, impose a cap of $200 per year on contributions to political action committees (“PACs”) to prevent contributors from using PACs as a vehicle for evading the legal limits on the amounts they can contribute to candidates and where such limits do not prevent PACs from amassing the resources necessary for effective advocacy. 5. Whether a state may, consistent with the Equal Protection Clause, stimulate broader public participation in the electoral process by permitting PACs that collect a large number of very small contributions to contribute more to candidates than PACs funded by fewer individuals making much larger contributions are allowed to contribute to candidates. TABLE OF CONTENTS Page Questions Presented ........ pik iene Se bweweesicd é i EE SEs S000 biiek65 we betes s evens iti pac ck ei ce hbo hs heeeae none iv RE a 1 Statement of Jurisdiction ..................eeeee- 1 Constitutional and Statutory Provisions Involved .... 1 i ech ese e whe ad ashae rece vs 4 ee 6 ee EE UY. oo. oi bcc wwcnsscenseess 8 EE ere ee eer 8 EE ccc areccvacdeansacenys 10 Reasons for Granting the Writ .................... 12 Introduction: Three Unresolved Issues Posed by EE eo ee 12 I. Unless Reviewed, the Eighth Circuit’s Misreading of Buckley v. Valeo Will Dramatically Inhibit the Capacity of State and Local Governments to Seek Imaginative Solutions to the Most Important Contemporary Challenge Facing American Democracy — Dealing with the Impact of Significant Wealth Disparities on the Democratic I Rae RG 6.50 hn thins ko 444s ese 15 iv Table of Contents - Continued Page II. While Lower Courts Are Hopelessly Divided on the Issue of the Proof Required Under Buckley to Justify Limits on Campaign Contributions, the Eighth Circuit’s Draconian Requirement That the State Prove Actual Corruption Is in Direct Conflict with Buckley and Would Have the Effect of Invalidating All Existing Limits on Campaign COMME. oi 6 Pic iv'g ebb keeer eens 19 Ill. The Circuits Are Split on the Appropriate Standard of Review for Contribution Limits. ......... 24 IV. This Court Should Consider the Small Donor Pac Provision As Another Way That Act I Enhances Political Participation Without Violating the Fourteenth Amendment. ...........cccccee: 28 EE Goh kc eee ecaci se Peek eek ene ance 30 TABLE OF AUTHORITIES Page Cases: Austin v. Michigan Chamber of Commerce, 494 U.S. 652 SE 66:0 kn a tie chgatinde dndtene tn Vien she 4+ 12, 19 Buckley v. Valeo, 424 U.S. 1 (1976) ............... passim Burdick v. Takushi, 504 U.S. 428 (1992) ........... 26 California Medical Ass'n v. FEC, 453 U.S. 182 (1981) Giad Bda < he 486K< § DERE ah wa ES 10, 12, 24, 25, 28, 29 California ProLife Council PAC v. Scully, 989 F. Supp. SP he BOOED nos 05 6a dak Hb GR dvisie bannws 13,23 Carver v. Nixon, 72 F.3d 633 (8th Cir. 1995), cert.denied, oe Ea re 9, 13, 26 Citizens Against Rent Control v. Berkeley, 454 U.S. 290 ee Cl a Sa lean se enea ven anes 12 Colorado Republican Federal Campaign Comm. v. FEC, ee nes 12, 19, 25, 26 CSC v. Letter Carriers, 413 U.S. 548 (1973) ........ 21 Driver v. DiStefano, 914 F. Supp. 797 (D.R.I. 1996) is ai i a ois has ls Rha cbs ek cee aie pan ss 27 FEC v. Massachusetts Citizens for Life, 479 U.S. 238 SR MR Os £6 ct spate ich ie 90% 2 CE dale Hk 0% or '¥ik « 12, 25, 26 vi Table of Authorities Page FEC v. National Conservative Political Action Comm., CHO Th Se ee. 0. ns 6500.5 4404 denne ieee 12, 25 First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765 COPPEE ka skda ids Kaayeden Reed ieenthaies ces 12 Gard v. State Elections Bd., 456 N.W. 2d 809 (Wisc. Meee ee eee PERT ET eee ee OP Ors eee Pe 27 Kentucky Right to Life v. Terry, 108 F.3d 637 (6th Cir.), cert. denied, 118 S. Ct. 162 (1997) .............. 13, 23 National Black Police Ass'n v. District of Columbia Bd. of Elections and Ethics, 924 F. Supp. 270 (D.D.C. 1996), vacated as moot, 108 F.3d 346 (D.C. Cir. 1997) » 0b sae SERRE s CUR RERERT 4 SO UUCKE RATERS ESET LS 23, 27 Pacific Gas & Elec. Co. v. Public Utilities Comm’n of Calernta; 473 U.S. t CPG) oi ese S ev iicsess 24 Republican Nat'l Comm. v. FEC, 487 F. Supp. 280 (S.D.N.Y.), aff'd, 445 U.S. 955 (1980) .......... 17 Russell v. Burris, 978 F. Supp. 1211 (E.D. Ark. 1997) opeeded a eR oes es ORS ECESEOERU MESO ES Rakexs 1,9, 10 Russell v. Burris, 146 F.3d 563 (8th Cir. 1998) ...... oioe 6ObRCRRSRERD ORS 1, 6, 9, 10, 11, 13, 18, 20, 21, 26, 28 Service Employees Int'l Union v. Fair Political Practices Comm'n, 955 F.2d 1312 (9th Cir.), cert. denied, 505 UB. SEO URSONS vi sv Gas vdeces}iasuceiaken 13, 26, 27 ‘“ ~ —_eon ties Gabe: vii Table of Authorities Page Shrink Missouri Gov't PAC v. Adams, No. 98-2351, 1998 WL 413477 (8th Cir. July 23, 1998) ........... 13, 20, 21 Timmons v. Twin Cities Area New Party, 117 S. Ct. 1364 ED cn és Canna set haaweknsnesdiavdd nied baal 11, 26 United States v. National Treasury Employees Union, 513 IS 3.) o.6'a yogi 3a NO 446.00 656 000s 22 Vannatta v. Kiesling, 899 F. Supp. 488 (D. Ore. 1995), aff'd, No. 95-35998, 1998 WL 461920 (9th Cir. Aug. SES Ticats Cw hee 4kk ean oC ANSAS cha Ra ee 27 Vote Choice, Inc. v. DiStefano, 4 F.3d 26, 33 (1st Cir. ES GMa CGE Sed eis yh sens Wea ONck sak 27 Constitutions and Statutes: ee ches c des eeeeriwkvakxen’ passim es as I 85 ras io Wb catbiNS lab Wi OK bu ws 1, 28 SE IIR RE SAA se an ee Cr en | po YE SS Se ee ee ee ee 2 TS) ee a eee a ee 3 Ammmmens COGS STB BOG) .n ccc ccc cccccccenes 4,8 Arkansas Code § 7-6-201(12) ..............-0005- 3 vili Table of Authorities ATM CORD GS FG cite ccciccccccctsiccsiee PR PEED osc cccccccceccscseessees po errr rr rere rr re Other Authorities Cited: Thomas F. Burke, The Concept of Corruption in Campaign Finance Law, 14 Const. Comm. 127 (Spring ROWE ess c VEEULS CE) FPeRd oka veUSSCA sD EC EKER. Eliza Newlin Carney, Opting Out of Politics, Nat’| PE AGE: TF; Pen ee i iad he ck ee eed is Daniel Hays Lowenstein, On Campaign Finance Reform: The Root of Evil is Deeply Rooted, 18 Hofstra L. Rev. PURSUED 05 CEN 005 Cate Wades UL bieeatensss Michael J. Malbin & Thomas L. Gais, The Day After Reform: Sobering Campaign Finance Lessons from the American States 13-20 (1998) .............0005- Sen. John McCain, The Scandal in Our Midst, Newsweek, Ram, Fey Fee te SS vccacivcs ceedbeese Hie: Steven H. Shiffrin, The First Amendment, Democracy and Roun FECT O) FSO. kc a's's o5 080 ae Ha Oe Barbara Vobejda, Just Under Half of the Possible Voters Went to the Polls, Wash. Post, Nov. 7, 1996, at A30 23 15 23 16 15 13 15 APPENDIX Appendix A — Opinion Of The United States Court Of Appeals For The Eighth Circuit Decided June 4, 1998 “eevee eeeeeeeevneeveeeeevreeeeeeeneneeeneeeeeeeeeneenene Appendix B — Order Of The United States District Court For The Eastern District Of Arkansas Dated October Di Pika abies wile iieibh Gerideuaed oh es ese Page la Ll — : 7 ’ 4 “ ¥ a i % % - - ° - ‘ - . * ’ . ‘ - e > a 2 : > —— 7 Pee am tm ARS ny | Pine — “ . . & - . ie | is ec nll ca ia ie ne ae 1 OPINIONS BELOW The opinion of the Court of Appeals for the Eighth Circuit, filed June 4, 1998, is reported at 146 F.3d 563. (Appendix A, 1a- 22a). This opinion affirmed in part and reversed in part an order of the United States District Court for the Eastern District of Arkansas, dated October 3, 1997, granting in part and denying in part the request of plaintiffs Ron Russell, Kent Ingram, William R. Austin, and Associated Industries of Arkansas Political Action Committees (hereinafter collectively described as “Associated Industries”) for a declaratory judgment and permanent injunction. The district court’s opinion is reported at 978 F. Supp. 1211. (Appendix B, 23a-63a). STATEMENT OF JURISDICTION The Eighth Circuit’s opinion was entered on June 4, 1998. This Court has jurisdiction pursuant to 28 U.S.C. § 1254(1). CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED First Amendment to the United States Constitution Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or of the right of the people peaceably to assemble, and to petition the government for a redress of grievances. Fourteenth Amendment to the United States Constitution, Section One All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens 2 of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection the laws. Arkansas Code § 7-6-203 (a)(1) It shall be unlawful fer any candidate for any public office, except the office of Governor, Lieutenant Governor, Secretary of State, Treasurer of State, Auditor of State, Attorney General, and Commission of State Lands, or for any person actiag on the candidate’s behalf, to accept campaign contributions in excess of one hundred dollars ($100) per election from any person. (a)(2) It shall be unlawful for any candidate for the office of Governor, Lieutenant Governor, Secretary of State, Treasurer of State, Auditor of State, Attorney General, and Commission of State Lands, or for any person acting on the candidate’s behalf, to accept campaign contributions in excess of three hundred dollars ($300) per election from any person. (b)(1) It shall be unlawful for any person to make a contribution to a candidate for any public office, except the office of Governor, Lieutenant Governor, Secretary of State, Treasurer of State, Auditor of State, Attorney General, and Commission of State Lands, or to any person acting on the candidate’s behalf, which in the aggregate, exceeds one hundred dollars ($100) per election. (b)(2) It shall be unlawful for any person to make a contribution to a candidate for the office of Governor, Lieutenant Governor, Secretary of State, Treasurer of State, Auditor of State, Attorney General, and Commission of State Lands, or to any person acting on the candidate’s behalf, which in the aggregate, exceeds three hundred dollars ($300) per election. (d) However, an organized political party, defined in Arkansas Code 7-1-101(1) and a small donor political action committee may 3 contribute up to two thousand five hundred dollars ($2500) to each candidate per election. Arkansas Code § 7-6-201(12) A “small donor political action committee” means any person who: (A) Receives contributions from one or more individuals in order to make contributions to candidates; (B) Does not accept any contribution or cumulative contributions in excess of twenty-five dollars ($25) from any individual in any calendar year; and (C) Is registered pursuant to Arkansas Code 7-6-215 prior to making contributions to candidates. “Small donor political action committee” shall not include an organized political party, the candidate’s own committee, or an exploratory committee. Arkansas Code § 7-6-222 (a) Pursuant to regulations to be adopted by the Arkansas Department of Finance and Administration, a single credit against individual Arkansas income taxes shall be allowed for money contributions made by the taxpayer in a taxable year to one or more of the following: (1) A candidate seeking nomination or election to a public office in an election, or to a candidate’s campaign committee; or (2) A small donor political action committee as defined in Arkansas Code 7-6-201; or (3) An approved political action committee as defined in Arkansas Code 7-1-201; or (4) An organized political party as defined in Arkansas Code 7-1-101(1). 4 (b) The credit allowed by subsection (a) of this section shall be the aggregate contributions, not to exceed fifty dollars ($50) on an individual tax return, or the aggregate contributions, not to exceed one hundred dollars ($100) on a joint return. Arkansas Code § 7-6-201(9) “Approved political action committee” means any person who: (A) Receives contributions from one (1) or more persons in order to make contributions to candidates; (B) Does not accept any contribution or cumulative contributions in excess of two hundred dollars ($200) from any person in any calendar year... . STATEMENT OF THE CASE In the two decades since this Court’s landmark decision in Buckley v. Valeo, 424 U.S. 1 (1976), efforts to reform our system of campaign financing have taken one of two traditional paths: (a) the imposition of increasingly stringent limits on the size and source of campaign contributions in an attempt to minimize the potential for electoral corruption, real and apparent; or (b) the provision of public subsidies to candidates in an attempt to enhance political equality without imposing stringent restrictions on campaign contributions. Experience has taught that each post-Buckley path, if taken in isolation, has substantial drawbacks. Stringent limits on political contributions, standing alone, make it more difficult for candidates to raise the funds needed to wage a robust campaign. Moreover, given the First Amendment ban on efforts to limit campaign 5 expenditures recognized in Buckley, an exclusive reliance on limiting campaign contributions necessarily enhances the relative power of extremely wealthy candidates and places enormous pressures on all candidates to cut regulatory corners in an effort to satisfy a virtually unlimited demand for campaign funds. On the other hand, public funding of the campaign process, without meaningful contribution limits, does little to address legitimate concerns about the ability of wealthy contributors to purchase access to candidates and officials. Arkansas, recognizing the pitfalls inherent in the traditional post-Buckley options, has attempted to meld campaign subsidies and contribution limits into an innovative, integrated system of campaign finance regulation that both prevents corruption and enhances political equality, while emphasizing the importance of individual participation. Arkansas provides a generous public campaign subsidy by offering an annual $50 state income tax credit ($100 for joint filers) for political contributions. As a structural quid pro quo for the huge subsidy, Arkansas imposes contribution limits of $300 for most statewide races and $100 for other races. ' By linking a generous campaign subsidy in the form of income tax credits for campaign contributions with restrictions on the size of campaign contributions, Arkansas has avoided the adverse impact on the availability of campaign funds often associated with limits on campaign contributions. In short, the people of Arkansas have found a way to minimize electoral corruption, encourage individual participation, and enhance political equality — without violating the First Amendment ground-rules set forth in Buckley. Unfortunately, in assessing the constitutionality of the Arkansas plan, the Eighth Circuit completely ignored the generous campaign subsidy that is the structural guid pro quo for the contribution limits. The Eighth Circuit believed that this Court’s decision in Buckley left it no choice but to consider the contribution 1. Arkansas imposes no limit on the amounts individuals may spend independently in support of a favored candidate. 6 ceilings in artificial isolation from the integrally related campaign subsidy and to.invalidate the ceilings unless Arkansas produced evidence that campaign contributions marginally larger than the cap had actually caused public officials to alter the performance of their official duties. Russell v. Burris, 146 F.3d 563, 569 (8th Cir. 1998) (App. 12a). The panel of the Eighth Circuit below was profoundly mistaken on two levels. First, the court below erroneously believed that Buckley requires a myopic, artificially isolated review of an innovative effort to link campaign subsidies with contribution ceilings. Unless corrected, the Eighth Circuit’s holding will scuttle important efforts at imaginative campaign finance reform, like the Arkansas plan, that minimize electoral corruption, enhance political equality, respect individual participation, and encourage a generous flow of campaign funds to candidates. Second, the Eighth Circuit imposed an impossibly stringent burden of justification on Arkansas’ decision to adopt a $300 contribution ceiling in most statewide races and a $100 cap in other races. Russell, 146 F.3d at 569 (App. 12a). In effect, the court below required Arkansas to prove that contributions marginally in excess of $300 in statewide races had functioned as bribes, causing public officials to alter their official behavior. But it is precisely because quid pro quo bribery is so difficult to prove that this Court upheld the $1,000 federal contribution limits at issue in Buckley without requiring a showing that individual officials were guilty of criminal acts. A. Initiated Act I of 19967 In 1996, more than two-thirds of the voters in Arkansas adopted Initiated Act I, an innovative and comprehensive campaign financing statute designed to combat the appearance and reality of corruption in Arkansas politics, while also broadening citizen 2. Arkansas Initiated Act I of 1996 is reprinted in its entirety at Appendix C, 64a-72a. 7 participation in the political process and encouraging more candidates to run for office regardless of their financial resources. Act I furthered these goals through the following means: Public Funding: Act 1 established a tax credit of up to $50 per person ($100 for joint filers) for political contributions to candidates, PACs, and political parties. Ark. Code Ann. § 7-6-222. This simple device put directly into the hands of Arkansas voters a huge public subsidy to fund political speech. Suddenly, more than one million taxpayers were empowered to direct a total of at least $50 million into political speech at no cost to themselves. Lower Limits on Contributions to Candidates: Act I lowered the contribution limit from $1,000 per election to $300 per election for candidates running for most statewide offices such as governor and lieutenant governor, and to $100 for most other candidates. Ark. Code Ann. § 7-6-203(a)-(b). These variable limits meant, for example, that a candidate for lieutenant governor who faced a primary, a runoff, and a general election, might collect as much as $900 from any person during an election cycle, and that a candidate for the state house of representatives (where the average race costs less than $15,000) might raise as much as $300 from any one person. TT Gee Ie eee Higher Contribution Limit for Small Donor PACs: In order to encourage maximum democratic participation by large groups of citizens with common interests, Act I also created a new entity, a broad-based collective called “small donor political action committees.” These small donor PACs are prohibited from accepting donations of more than $25 per person per year. In exchange for this limit, these small donor PACS are permitted to give candidates up to $2,500 per election. The candidate contributions of other PACs are subject to the same limits as persons. Ark. Code Ann. § 7-6- 203(d). Act I focused its regulatory scheme on creating mechanisms that would increase political speech, while reducing the potential for actual and apparent corruption. It did not limit candidate campaign expenditures, independent expenditures, or party expenditures.’ Nor did it limit contributions to a political party. Nor is its public subsidy offered in exchange for an agreement to abide by expenditure limits. In short, Act I rejected the option of restricting the financial resources available to campaigns and opted, instead, for an integrated approach that promised to expand the resources available to candidates and other political players, while minimizing corruption and enhancing political equality. While Act I limited the amounts that the wealthiest contributors could contribute directly to. a candidate — and thereby limited the potential for corruption, undue influence, and discriminatory access — it delivered a potentially enormous pool of resources to average citizens, each of whom was granted a costless mechanism for directing public money to the candidates, political parties, and PACs of their choice. B. Proceedings Below 1. District Court The district court held a seven-day trial, during which it heard evidence relating to the campaign for Act I and the contribution patterns that had prompted it. For example, the district court heard testimony about lucrative fund-raising events held for a state representative by lobbyists who did not live in the representative’s district, but who had substantial business before his committee, 3. Act I left intact the $200 limit on contributions to “approved political action committees” enacted in 1990. Ark. Code Ann. § 7-6-201(9). 9 and about evidence of contributions from tobacco interests to the sponsor of a bill that favored those interests. The court also heard evidence predicting that candidates would be able to raise sufficient campaign funds under the new law with its tax credits and lower contribution limits. In assessing the $300 and $100 limits on contributions to candidates, the district court was bound by an earlier ruling of the Eighth Circuit applying strict scrutiny to invalidate Missouri’s $300- to $100-per-election-cycle limits. See Carver v. Nixon, 72 F.3d 633 (8th Cir. 1995), cert. denied, 518 U.S. 1033 (1996). After reviewing the evidence, including the low cost of Arkansas races, the sources of contributions to candidates, and the examples of the appearance of corruption, the district court concluded that, with respect to most races subject to the $100 limit,‘ the limit of $1,000 that preceded Act I was “sufficiently large to support a reasonable perception of undue influence.” Russell v. Burris, 978 F. Supp. 1211, 1221 (E.D. Ark. 1997) (App. 44a). After finding that the government had proven its interest in preventing the appearance of corruption, the court held that the $100 limit was not “different in kind” from the $1,000 limit approved in Buckley because the $100 limit did not “burden the potential for effective political dialogue.” Jd. at 1223 (App. 49a). In support of this holding, the court found it “significant that no officeholder testified that she would be unable to run an effective campaign with the $100 limit.” Jd. at 1224 (App. 50a). The court relied on testimony from experts and officeholders about the low cost of Arkansas elections, showing, for instance, that races for 4. Because of the size of their districts, the court considered the races for Supreme Court and the Court of Appeals different in kind from the other elections subject to the $100 limit and struck the $100 limit as applied to those judicial elections. 978 F. Supp. at 1224. In this petition, except where otherwise indicated, “$100 limit” will be used to refer to all races subject to that limit except for the elections for Supreme Court justice and Court of Appeals judge. 10 the state house averaged only $7,000 to $16,000 an election cycle and for the state senate averaged $23,000 to $39,000. Jd. at 1223 (App. 49a). The court also took note of evidence that during two special elections held under Act I the candidates raised, on average, more money than in the elections prior to Act I. Jd. at 1224 (App. 50a). The court upheld the $100 limit, except as it applied to the races for Supreme Court justice and Court of Appeals judge. Jd. (App. 51a). The district court held, however, that the pre-Act I limit of $1,000 was not large enough to appear corrupting in statewide races. Id. at 1222 (App. 44a). The district court based this finding primarily on the cost of gubernatorial campaigns — approximately $900,000 per candidate — but did not address the relatively low cost of other statewide races. Jd. at 1221 (App. 44a). Having found that the state’s interest in combating the appearance of corruption was not established, the district court did not consider whether the $300 statewide limits might be constitutionally tolerable because the infusion of public funds into the political process from the newly enacted tax credit would provide an effective alternative to the need to raise campaign funds from large donors.° 2. Court of Appeals A panel of the Court of Appeals for the Eighth Circuit concluded that every portion of the integrated plan it reviewed 5. Applying the test of California Medical Ass'n v. FEC, 453 U.S. 182 (1981) [“CalMed’”], the district court upheld the differential treatment between generic PACs and small donor PACs, holding that Act I does not place a greater burden on the First Amendment rights of generic PACs because small donor PACs are subject to more burdensome restrictions on the amount and source of contributions they may accept. Russell, 978 F. Supp. at 1226-27. Also relying on CalMed, the district court upheld the longstanding $200 limit on contributions to PACs as serving to prevent the evasion of the basic contribution limits. Jd. at 1225. The court noted that under the limit PAC contributions to Arkansas candidates had been “robust” and that PACs had not been prevented from “ ‘amassing the resources necessary for effective advocacy.’ ” Jd. (quoting Buckley, 424 U.S. at 21). 11 was unconstitutional, including, most pertinently, Act I’s $300 and $100 limitations on contributions to candidates. Russell v. Burris, 143 F.3d 563 (8th Cir. 1998). The court below reasoned that Buckley required that contribution limits be subjected to strict scrutiny, rejecting the argument that Timmons v. Twin Cities Area New Party, 1178. Ct. 1364, 1370 (1997), requires less exacting scrutiny when, as here, the restrictions on First Amendment expression are not “severe.” Russell, 143 F.3d at 568 (App. 9a). The court of appeals held that in the absence of credible evidence of actual corruption, the government is required to prove its compelling interest in alleviating the “appearance of corruption” with evidence showing that a “reasonable person could perceive ... that such contributions make for undue influence or spawn corruption.” Jd. at 569 (App. 11a). Nevertheless, the court of appeals rejected evidence presented in the district court demonstrating “specific instances in which large contributions had given rise to the appearance of undue influence or corruption” because the state had not proven that any particular recipient of a $1,000 contribution had actually switched a vote or otherwise changed position after receiving the contribution, attempted to hide the contribution from public disclosure, or accepted contributions in excess of the then-legal limit. Jd. at 570 (App. 13a). Indeed, the court held that even evidence of a “uniform public perception” that certain contribution patterns were corrupt was insufficient to establish the state’s interest when, in the court’s view, that “uniform perception” was not objectively reasonable. See id. at 569 (App. 12a). In short, the court below required nothing short of proof of illegal activity as a precondition to upholding the contribution limits. Accordingly, the court below held that the state had failed to prove that there “is real or perceived corruption attributable to large political contributions.” Jd. (App. 10a). In effect, the Eighth Circuit found that two-thirds of Arkansas’ voters were “unreasonable” to conclude that contributions in excess of the limits they enacted seemed corrupting. The court of appeals also held that the contribution limits were “too low to allow meaningful participation in protected speech and 12 association,” and found that Act I’s limits were “different in kind” from the $1,000 limits upheld in Buckley. Id. at 570-71. But the court below simply refused to consider whether the huge public subsidy provided by Arkansas would ameliorate the alleged financial effect of lower contribution limits on both candidates and contributors.° REASONS FOR GRANTING THE WRIT Introduction: Three Unresolved Issues Posed in Buckley Twenty-two years have elapsed since the landmark decision in Buckley v. Valeo, 424 U.S. 1 (1976). While this Court has addressed the constitutional questions posed by campaign finance regulations in candidate elections on six occasions in the interim,’ it has yet to explain three key unresolved issues arising out of Buckley that pose particularly difficult problems for the lower courts and for state and local governments seeking to enact campaign finance legislation in compliance with Buckley. 6. The court of appeals also struck the provision for small donor PACs and the $200 annual limit on contributions to any one PAC. 7. See California Medical Ass'n v. FEC, 453 U.S. 182 (1981) (upholding $5,000 ceiling on contributions to PACs); FEC v. National Conservative Political Action Comm., 470 U.S. 480 (1985) (invalidating ceiling on independent expenditures by PACs); FEC v. Massachusetts Citizens for Life, 479 U.S. 238 (1986) (invalidating ban on independent expenditures on behalf of federal candidates by grassroots, non-profit corporations); Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990) (upholding ban on independent expenditures by corporations in state and local campaigns); Colorado Republican Federal Campaign Comm. v. FEC, 518 U.S. 604 (1996) (invalidating ceiling on independent expenditures by political parties during period prior to selection of candidate). The Court has also addressed campaign finance regulation in referendum campaigns on two occasions. See First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765 (1978) (invalidating ban on independent expenditures by corporations in connection with referendum); Citizens Against Rent Control v. Berkeley, 454 U.S. 290 (1981) (invalidating $250 contribution limit in connection with referendum). a w/c ella 13 First, Buckley ruled that the size and source of campaign contributions may be limited in an effort to prevent electoral corruption, real and apparent. Jd. at 19. But the precise standard of review that governs Challenges to contribution limits remains a matter of dispute. Some courts, including the Eighth Circuit below, apply classic First Amendment “strict scrutiny.” See, e.g., Russell, 146 F.3d at 568; Carver, 72 F.3d at 638. Others recognize Buckley’s holding that limits on campaign contributions only marginally burden First Amendment rights and apply a less exacting standard of review. See, e.g., Service Employees Int'l Union v. Fair Political Practices Comm'n, 955 F.2d 1312, 1322 (9th Cir.), cert. denied, 505 U.S. 1230 (1992). Indeed, the standard of review suggested in Buckley is so unpredictable that it has prompted one academic observer to note that it “varies paragraph to paragraph.” Steven H. Shiffrin, The First Amendment, Democracy and Romance 32 (1990). The disagreement over the appropriate standard of review turns, in part, on a second unresolved issue generated by the Buckley decision — continuing confusion over what the Court meant in Buckley when it recognized that the prevention of electoral “corruption,” real and apparent, is a compelling governmental interest justifying reasonable limits on the size and source of campaign contributions. Buckley, 424 U.S. at 27. Some courts, including the Eighth Circuit below, read the term “corruption” very narrowly to mean quid pro quo arrangements that closely resemble bribery or extortion. See Russell, 146 F.3d at 570; Shrink Missouri Gov’t PAC v. Adams, No. 98-2351, 1998 WL 413477, at *1 (8th Cir. July 23, 1998). Other courts, however, implicitly recognize that “corruption” should be read more broadly to include a kind of preferential treatment such as increased access or heightened concern over issues of interest to large contributors. Cf. Kentucky Right to Life v. Terry, 108 F.3d 637, 648 (6th Cir.) (approving $1,000 limits without reviewing any evidence of corruption), cert. denied, 118 S. Ct. 162 (1997); California ProLife Council PAC v. Scully, 989 F. Supp. 1282, 1294-95 (E.D. Cal. 1998) (noting that the electorate’s concern for corruption need not be accompanied by evidence of bribery). 14 Finally, as the opinions below demonstrate, lower courts need guidance in assessing the constitutionality of state and local efforts to enhance political equality by using subsidies to limit the effect of concentrations of wealth on the democratic process. In Buckley, this Court recognized that the enhancement of political equality was a “legitimate” government interest that justified spending public funds to subsidize the campaign process. 424 U.S. at 93. The Buckley Court considered the relationship between campaign subsidies and expenditure limits, holding that otherwise unconstitutional limits on campaign spending could be required as a quid pro quo for the voluntary acceptance of a campaign subsidy. /d. at 99-100. But, because the issue did not arise in Buckley, the Court has never considered the relationship between campaign subsidies and contribution limits. Lacking explicit guidance from the Buckley opinion, the Eighth Circuit below believed itself obliged to ignore the subsidy provided by Arkansas as the structural quid pro quo for the contribution limits and reviewed the contribution limits as if they existed in a legal and factual vacuum. But such a myopic approach is inconsistent with Buckley itself, which explicitly recognized the constitutional significance of the interplay between subsidy and limitation, and is unnecessarily destructive of the ability of state and local governments to combine subsidies and limitations in an integrated program that limits the corrosive effects of wealth inequality on the democratic process, while assuring that candidates receive the generous flow of funds needed to wage robust campaigns. 15 I. Unless Reviewed, the Eighth Circuit’s Misreading of Buckley v. Valeo Will Dramatically Inhibit the Capacity of State and Local Governments to Seek Imaginative Solutions to the Most Important Contemporary Challenge Facing American Democracy — Dealing with the Impact of Significant Wealth Disparities on the Democratic Process. This case presents the Court with a singular opportunity to resolve the constitutional relationship between the setting of campaign contribution limits and a linked speech-enhancing public subsidy. This Court’s guidance in this area is crucial to ongoing efforts by state and local governments to reform their campaign finance systems. Overwhelming majorities at the state and local levels throughout the United States are struggling to combat the pervasive cynicism engendered by the disproportionate political influence apparently exercised by monied interests in funding our electoral campaigns — a cynicism that some observers believe is at least partially responsible for the alarming decline in electoral participation that resulted, in 1996, in less than half the eligible electorate voting in a presidential election for the first time since 1824.* See, e.g., Eliza Newlin Carney, Opting Out of Politics, Nat’! Journal, Jan. 17, 1998, at 106; Sen. John McCain, The Scandal in Our Midst, Newsweek, Aug. 17, 1998, at 13. Turnouts in state and local races are even lower. Almost invariably, given the options open after Buckley, state and local majorities seeking to build confidence in the electoral process have turned to contribution 8. See Barbara Vobejda, Just Under Half of the Possible Voters Went to the Polls, Wash. Post, Nov. 7, 1996, at A30. Electoral participation fell below 50% of the eligible electorate in the 1924 presidential election, but only because the massive influx of newly eligible women voters had not yet been fully integrated into the democratic process. 16 limits as the primary weapon in the arsenal of reform. By 1997, at least 39 states had imposed limits on individual contributions to candidates. Michael J. Malbin & Thomas L. Gais, The Day After Reform: Sobering Campaign Finance Lessons from the American States 13-20 (1998). While contribution ceilings curb the potential for corruption and enhance the public’s confidence in democracy, these benefits come at a cost. Limiting the ability of candidates to raise funds efficiently through large contributions can diminish candidates’ ability to communicate with voters. Moreover, contribution limits inadvertently enhance the political power of extremely wealthy candidates who are free, under Buckley, to expend unlimited amounts of their personal fortunes on their campaigns. Buckley, 424 US. at 54. In contrast, Arkansas has fashioned an ingenious approach to campaign finance reform) that increases the amount of money available to candidates even as it caps the amount that any one individual can give a candidate. Arkansas’ approach, if constitutionally permissible, may well be the wave of the future. Increasingly, states and localities are melding campaign subsidies with contribution limits in an integrated plan that both minimizes corruption and increases the availability of campaign funds. See Malbin & Gais, The Day After Reform, supra, at 21-23. If the Eighth Circuit’s opinion in this case stands, however, states and localities throughout the United States will abandon the promising approach of linking effective contribution limits with subsidies designed to enhance the availability of funds to candidates. Without further guidance from this Court, innovative reformers, who thus far have been cooking without a constitutional recipe, will be forced to leave the kitchen. While Buckley did not provide clear guidance on how to evaluate an integrated system of campaign finance regulation that couples limits on contributions with extensive subsidies, the Buckley decision strongly suggests that the panel of the Eighth Circuit below was simply wrong in ignoring the subsidy half of 17 the equation when it assessed the constitutionality of the contribution limits. Buckley held that limits on campaign contributions do implicate the First Amendment rights of contributors and candidates. 424 U.S. at 21. Because contributions “fuel” candidate speech and allow supporters to signal their support, Buckley held that it would be impermissible to impose contribution limits that are unreasonably low — at least where the candidate has no other source of funding. Tellingly, however, the Court made clear that campaign contributions were not “direct” speech, since they merely empowered a third person to speak. Jd. Moreover, held the Buckley Court, reasonable contribution limits amount to “marginal restrictions” on a contributor’s First Amendment rights, and are fully justified by the “compelling” government interest in ridding the electoral process of the reality and appearance of corruption. /d. at 21-29. Indeed, despite the First Amendment interests underlying campaign contributions, the Buckley Court held that the government could prohibit a// contributions to a candidate where it couples that ban with public funding. That was exactly the nature of the presidential campaign finance system upheld in Buckley, it prohibited any candidate who accepted public funds from accepting a penny from contributors — notwithstanding a would-be contributor’s ardent desire to express support with a contribution. See Republican Nat’l Comm. v. FEC, 487 F. Supp. 280, 286-87 (S.D.N.Y.) (three-judge panel) (describing and evaluating First Amendment rights of contributors), aff'd, 445 U.S. 955 (1980).° If federal law can bar a supporter entirely from contributing to a candidate, so long as the public funding mechanism provides 9. It is true, of course, that presidential candidates are able to choose whether to accept public funds and the attendant restrictions, but that difference cannot possibly be relevant to the constitutional rights of the contributors. A person who wishes to contribute to a presidential candidate has no say as to whether the candidate will accept public funds, so he cannot in any sense be said to have voluntarily accepted the bar on contributing. 18 sufficient “fuel” for the candidate’s communication, then surely Arkansas may take the less restrictive step of merely limiting contributions under similar circumstances. Where, as here, adequate public funds are provided to “fuel” a candidate’s campaign, and where persons may “signal” support by making substantial contributions directly to the candidate, or unlimited personal expenditures in support of the candidate, a contributor’s legitimate First Amendment interests, as described in Buckley, are fully respected. Yet the Buckley decision provides confusing instruction on whether there are residual First Amendment interests that should be given constitutional weight when these other interests are satisfied. At best, the Buckley decision leaves unaddressed the important questions of whether a public subsidy scheme that neither caps election spending nor hinders fund-raising, but in fact encourages moderate contributions and participation from voters, would counterbalance any restraints on speech caused by contribution limits. The Buckley Court praises public campaign subsidies, when linked with spending and contribution limits, as part of a desirable effort to “use public money to facilitate and enlarge public discussion and participation in the electoral process, goals vital to a self-governing people.” Buckley, 424 U.S. at 92-93. The Court goes on to note that the public subsidy system “furthers, not abridges, First Amendment values.” Jd. The Buckley Court also recognizes that facilitating communication between the candidate and the public is a valid and important government goal of campaign regulation. Jd. Notwithstanding this Court’s history of viewing techniques of enhancing speech through a different lens, the Eighth Circuit declined to consider the public subsidy as it evaluated the contribution limits. Russell, 146 F.3d at 567 (App. 10a). Instead, the court of appeals applied strict scrutiny to find that the $100 and $300 limits were “too low to allow meaningful participation in speech and association,” id. at 570, and were not narrowly tailored to address the reality or perception of corruption in Arkansas. The court of appeals’ refusal to address the speech and 19 debate enhancing elements of the tax credit/subsidy cries out for this Court’s attention. II. While Lower Courts are Hopelessly Divided on the Issue of the Proof Required Under Buckley to Justify Limits on Campaign Contributions, the Eighth Circuit’s Draconian Requirement That the State Prove Actual Corruption is in Direct Conflict with Buckley and Would Have the Effect of Invalidating All Existing Limits on Campaign Contributions. In Buckley, this Court described the threshold for proving the sufficiency of a government’s interest in “the prevention of corruption and the appearance of corruption spawned by the real or imagined coercive influence of large financial contributions.” 424 U.S. at 25. Buckley makes clear that the appearance of corruption can exist, and can erode confidence in representative government, even when the “coercive influence of large financial contributions on candidates’ positions and on their actions if elected to office” has no basis in reality, but is instead “imagined.” Jd. One of the core assumptions underlying Buckley is that the appearance of impropriety is “inherent in a regime of large individual contributions.” Jd. at 27 (emphasis added); see also Colorado Republican Federal Campaign Comm. v. FEC, 518 U.S. 604, 616 (1996) (plurality); Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 660 (1990) (state had sufficiently demonstrated a danger of real or apparent corruption caused by corporate political expenditures because “corporate wealth can unfairly influence elections”) (emphasis added). Indeed, in rejecting an overbreadth challenge to the $1,000 contribution limits for all federal elections, the Court assumed that “most large contributors do not seek improper influence over a candidate’s position or an officeholder’s action.” Buckley, 424 U.S. at 29. Also, the Court did not find it significant that much more than $1,000 would be needed to “enable an unscrupu!ous contributor to exercise improper influence over a candidate or officeholder.” Jd. at 30. 20 The Eighth Circuit’s decision implicitly rejects these basic tenets of the Court’s campaign finance jurisprudence by creating a new and impossibly stringent standard of proof for establishing the requisite appearance of corruption. The court of appeals described this new requirement as “objective reasonableness,” 146 F.3d at 569, but, in application, the court required proof of actual bribery or extortion in order to support any claim of apparent corruption. /d. at 570. In applying this new and unsupported standard, the court of appeals repeatedly complained of the government’s failure to show that any legislator had changed his vote in exchange for campaign contributions, violated the pre-existing contribution limits, or illegally concealed the source of his contributions. See id. at 569- 70. In other words, the court required evidence of unlawful behavior before it would consider the public’s perception of corruption reasonable. Indeed, the court of appeals acknowledged the evidence that “there was a ‘uniform’ public perception of corruption associated” with one bill and that one lawmaker received substantial contributions from lobbyists who had business before his committee, id. at 569, yet found this evidence insufficient to support a public perception of corruption because, in that court’s view, it was unreasonable. The court of appeals created a standard of proof that a perception of corruption is “reasonable” only when it is based on actual quid pro quo exchanges of money or other clearly unlawful conduct. The difference is far from semantic, as the Eighth Circuit confirmed just weeks ago, when it enjoined contribution limits of $1,075 — limits that exceed the limits currently in place under federal law. Shrink Missouri Gov't PAC v. Adams, No. 98-2351, 1998 WL 413477, at *1 (8th Cir. July 23, 1998). Relying heavily on its opinion in this case, the Eighth Circuit concluded that it is likely that the state has failed to show “that a reasonable person could perceive, on the basis of 21 the evidence presented at trial, that such contributions make for undue influence or spawn corruption.” Id. (quoting Russell, 146 F.3d at 568) (emphasis added). As Shrink Missouri demonstrates, under the Eighth Circuit’s logic in this case, it will be virtually impossible to prove an appearance of corruption, which would mean the automatic invalidation not only of virtually every contribution limit adopted in the states, but also of the federal limits approved in Buckley. The Eighth Circuit’s newly minted “objective reasonableness” test not only obliterates the distinction between the reality and the appearance of corruption, it flies in the face of Buckley’s repeated recognition that any showing of perceived corruption that is not merely “illusory” is sufficient. The Buckley Court recognized that “the scope of such pernicious practices [could] never reliably be ascertained,” and concluded that anecdotal evidence was sufficient to show that “the problem [of corruption] is not an illusory one.” Buckley, 424 U.S. at 27 & n.28 (describing the “deeply disturbing” examples of large contributions that surfaced after the 1972 presidential election). The Court, in fact, relied on the public awareness of the “opportunities” for abuse without tying it to a requirement of proving that abuse had actually occurred, or was even likely to occur. Jd. Because such appearances can severely undermine public confidence in representative government, “Congress could legitimately conclude that the avoidance of the appearance of improper influence ‘is also critical.’ ” Jd. (quoting CSC v. Letter Carriers, 413 U.S. 548, 565 n.29 (1973)); see also id. at 30 (“Congress was justified in concluding that the interest in safeguarding against the appearance of impropriety requires that the opportunity for abuse inherent in the process of raising large monetary contributions be eliminated.”’). The Buckley Court recognized that the very possibility of making large contributions triggered an appearance of corruption, 22 stating that in a “system permitting unlimited financial contributions,” the threat to the public’s confidence in the system is self-evident. Jd. at 28. This Court’s recent decision in United States v. National Treasury Employees Union, 513 U.S. 454 (1995) (“NTEU”), illustrates the flaw in the Eighth Circuit’s analysis. In NTEU, this Court addressed whether a ban on honoraria given to lower-level federal employees unconstitutionally restricted the First Amendment rights of those employees. There, the Court required the government to show that the harms allegedly caused by the honoraria were “real, not merely conjectural.” Jd. at 475 (internal quotation omitted). The NTEU Court agreed that “Congress could reasonably assume that payment of honoraria to judges or high- ranking officials in the Executive Branch might generate [an] appearance of improper influence.” Jd. at 473 (emphasis added). But the Court refused to extend that assumption to lower-level employees “with negligible power to confer favors on those who might pay to hear them speak or read their articles” in the absence of some greater showing of need. Jd. Thus, the N7EU Court was prepared to assume that honoraria paid to high-level officials would generate an appearance of improper influence, much like the Buckley Court’s assumption of harm from “large contributions.” Indeed, the dissent in N7TEU would have accorded the government even more deference to find that the ban should continue to apply to all employees. Jd. at 494 (Rehnquist, C.J., dissenting). Surely, the assumption that financial rewards to high-ranking executive officials would generate the appearance of improper influence is applicable, as well, to substantial campaign contributions to legislators, attorneys general, and governors. While no other lower court has approached the Draconian standard applied by the Eighth Circuit, in recent years, lower courts have struggled, without success, to apply uniform standards in cases challenging contribution limits. The Sixth Circuit, in stark contrast with the Eighth, for instance, seems to embrace the Buckley 23 presumption that large contributions are corrupting, and upheld limits on individual and corporate contributions to candidates without an analysis of the evidence of actual or perceived corruption. See Kentucky Right to Life, Inc. v. Terry, 108 F.3d 637, 646-48 (6th Cir. 1997). On the other hand, a federal district court in California recently grumbled that although in 1989 “ ‘the boundaries of the notion of the appearance of corruption ha[d] not been fully developed’ . . . [L]ittle has happened since then to help clarify the notion.” California ProLife Council PAC v. Scully, 989 F. Supp. 1282, 1294-95 (E.D. Cal. 1998) (internal citation omitted). The court also reviewed the evidence to note that several bribery convictions and a government investigation of the state legislature indicate, at the least, that the “problem [of corruption] is not illusory,” and that, thus, the government had proved its “legitimate interest” in limiting contributions. Jd. Another court, reviewing contribution limits for a variety of local offices in the District of Columbia, held that “vague or inapposite evidence” of the government’s interest in preventing corruption or appearance of corruption might not be sufficient to support limits as low as $50 per election cycle. National Police Ass'n v. District of Columbia Bd. of Elections and Ethics, 924 F. Supp. 270, 281 (D.D.C. 1996), vacated as moot, 108 F.3d 346 (D.C. Cir. 1997) (contribution limits increased in interim). The confusion in the lower courts is exacerbated by widespread disagreement over the meaning of “corruption” as the term is used in Buckley. Is it limited to acts that constitute bribery or extortion? Or, does it encompass serious distortions in the democratic process that afford wealthy contributors unfair influence by granting them preferred access and heightened concern? See generally Daniel Hays Lowenstein, On Campaign Finance Reform: The Root of Evil is Deeply Rooted, 18 Hofstra L. Rev. 301 (1989) (reviewing the access and influence of contributors); Thomas F. Burke, The Concept of Corruption in Campaign Finance Law, 14 Const. Comm. 127 (Spring 1997). The deeply unsatisfactory nature of the lower courts’ radically varying approaches to efforts to limit campaign contributions cries out for guidance from this Court. 24 Ill. The Circuits are Split on the Appropriate Standard of Review for Contribution Limits. The Buckley Court’s review of contribution limits begins with the observation that such limits impose “only a marginal restriction upon the contributor’s ability engage in free communication,” Buckley, 424 U.S. at 21, and continues with the holding that the $1,000 limits at issue there “do not undermine to any material degree the potential for robust and effective discussion of candidates and campaign issues,” id. at 29. After discussing the government’s interest in fighting corruption and the limits’ “precise focus” on that interest, however, the Court holds that under the “rigorous standard of review established by our prior decisions, the weighty interests served by restricting the size of financial contributions to political candidates are sufficient to justify the limited effect upon First Amendment freedoms” caused by the contribution limits. Jd. | Then-Justice Rehnquist has since stated that [the] Court in Buckley v. Valeo, never suggested that the interest served by the campaign limitation provision was a “compelling one,” nor examined the provision to determine whether it was sufficiently tailored to the interest to survive “heightened scrutiny.” The Court was Satisfied that the provision had only an indirect and minimal effect on the First Amendment interests, as well as a rational basis. Pacific Gas & Elec. Co. v. Public Utilities Comm'n of California, 475 U.S. 1, 29 n.2 (1985) (Rehnquist, J. dissenting) (emphasis added). In California Medical Ass'n v. FEC, 453 U.S. 182 (1981) 25 [“CalMed”], the Court was conflicted about whether Buckley applied a different — lower — standard of scrutiny to contribution limits than to spending limits. Compare CalMed, 453 U.S. at 196 (plurality) (stating that “speech by proxy,” such as contributions, is not “entitled to full First Amendment protection”) with id., at 202 (Blackmun, J., concurring) (disagreeing with the plurality’s suggestion that contribution limits receive a level of scrutiny less than “rigorous”). Recently, a pluraiity of this Court went so far as to suggest that a weighing test applies even to the evaluation of the more highly protected spending limits, stating that when considering campaign finance regulations, the Court essentially weigh{s] the First Amendment interest in permitting candidates (and their supporters) to spend money to advance their political views against a “compelling” governmental interest in assuring the electoral system’s legitimacy, protecting it from the appearance of corruption. Colorado Republican Federal Campaign Comm. v. FEC, 518 U.S. 604, 609 (1996) (emphasis added) (citing FEC v. Massachusetts Citizens for Life, 479 U.S. 238, 256-63 (1986); FEC v. National Conservative Political Action Comm., 470 U.S. 480, 493-501 (1985); CalMed, 453 U.S. at 193-199; Buckley, 424 U.S. at 14-23). Whether this “weighing test” is only a reformulation of strict scrutiny or is a form of “less exacting scrutiny” that takes into account speech accorded “less than full First Amendment protection” continues to divide this Court and confuse lower courts. Compare Colorado Republican, 518 U.S. at 640 & n.7 (Thomas, J. dissenting), with CalMed, 453 U.S. at 196, and Buckley, 424 U.S. at 27 (expressly rejecting requirement that government must use least restrictive means when regulating contribution limits). 26 The plurality’s view in Colorado Republican is consistent with the standard of review applied by the Court in other areas of First Amendment jurisprudence. In Timmons v. Twin Cities Area New Party, 117S. Ct. 1364, 1370 (1997), the Eighth Circuit applied strict scrutiny to invalidate Minnesota’s ban against a single candidate running for office as the nominee of two different parties. This Court reversed, noting that the ban did not impose a “severe burden” on either voters or political parties because adequate alternative methods of pursuing their respective First Amendment interests existed. /d. at 1372. In the absence of a “severe burden,” the Court subjected the ban to “less exacting review.” Jd.; see also Burdick v. Takushi, 504 U.S. 428, 434 (1992) (applying less exacting review to Hawaii’s ban on write-in votes because the ban did not severely burden First Amendment rights). Despite Timmons, the court below declined even to consider whether the provision of a generous public subsidy provided an adequate alternative means of “fueling” a candidate’s speech, rendering the use of strict scrutiny inappropriate. The court of appeals here insisted that any standard of review more lenient than strict scrutiny was inappropriate in its consideration of the constitutionality of Act I’s contribution limits, and declared that the “weighing” analysis in Colorado Republican was a mere “restatement or reformulation ... of the Court’s familiar strict scrutiny analysis.” Russell, 146 F.3d at 568; see also Carver v. Nixon, 72 F.3d 633, 638 (8th Cir. 1995) (insisting that “strict scrutiny” was the proper standard), cert. denied, 518 U.S. 1033 (1996). Other circuits, even before Colorado Republican, recognized that Buckley hardly restates “the Court’s familiar strict scrutiny analysis.” For instance, the Ninth Circuit held that “a somewhat less stringent test than strict scrutiny [applies] to decide the constitutionality of contribution limitations.” Service Employees Int'l Union v. Fair Political Practices Comm'n, 955 F.2d 1312, 1322 (9th Cir.) (citing Buckley, 424 U.S. at 29; Massachusetts Citizens for Life, 479 U.S. at 259-60), cert. denied, 505 U.S. 1230 27 (1992). Other courts have taken the kind of practical “balancing approach” suggested by the Buckley Court. See National Black Police Ass'n v. District of Columbia Bd. of Elections and Ethics, 924 F. Supp. 270, 274 (D.D.C. 1996) (describing the disagreement over the standard but applying a balancing test even after finding that the contribution limits had a “severe impact” on First Amendment rights), vacated as moot, 108 F.3d 346 (D.C. Cir. 1997). When the lower courts have reviewed other types of restrictions on contributions, they have also reflected this confusion over the standard. One court called on to review contribution limits that were based on whether the candidate agreed to spending limits and accepted a partial subsidy described a kind of weighing test — the more disproportionate the burden, the more likely the statute will be held unconstitutional. Vote Choice, Inc. v. DiStefano, 4 F.3d 26, 33 (1st Cir. 1993); see also Driver v. DiStefano, 914 F. Supp. 797 (D.R.I. 1996) (applying type of weighing test to contribution limits based on the calendar year). Yet, the Wisconsin Supreme Court, purporting to apply Buckley to its analysis of a limit on the aggregate amount a candidate could receive from committees, applied strict scrutiny to find the limits constitutional. Gard v. State Elections Bd., 456 N.W. 2d 809 (Wisc. 1990); see also Vannatta v. Kiesling, 899 F. Supp. 488 (D. Ore. 1995) (applying strict scrutiny to strike law limiting contributions from out of district), aff'd, No. 95-35998, 1998 WL 461920 (9th Cir. Aug. 11,1998) (affirming judgment but applying “rigorous scrutiny”). The circuit courts, state supreme courts, and other lower courts are, therefore, in disagreement and confusion over whether to apply strict scrutiny, some form of intermediate scrutiny, or a weighing test when they review efforts to impose contribution limits. That disagreement and confusion is only intensified when, as here, the contribution limits are bracketed with a public subsidy, which lessens any burden on First Amendment rights by enhancing candidates’ ability to amass resources. Accordingly, this Court 28 should grant certiorari to clarify and enunciate the proper standard of review in connection with efforts to link contribution ceilings and public subsidies in an effort to prevent electoral corruption, enhance political equality, and encourage individual participation in the democratic process. IV. This Court Should Consider the Small Donor PAC Provision as Another Way that Act I Enhances Political Participation Without Violating the Fourteenth Amendment. Along with the tax credit provision, Arkansas’ Act I had another creative means of enhancing the political speech and participation of its citizens — the small donor PAC provision. That new law allowed PACs that only receive contributions no larger than $25 to contribute up to $2,500 per election while regular donor PACs were subject to the standard contribution limit for persons. While this Court’s decision in CalMed, 453 U.S. at 204, makes clear that the state can impose different campaign finance regulations on different types of organizations, it leaves open the question of whether the state is permitted to allow PACs that are subject to much greater regulation to contribute substantially more to individual candidates than the standard, less regulated PACs. Although this is an open question, the court of appeals’ analysis of this issue in striking down the small donor PAC provision is at odds with the analysis in Ca/Med. In evaluating an equal protection challenge to different campaign finance regulations imposed on different types of organizations, CalMed instructed courts to consider whether the regulation in question burdened the First Amendment rights of one group more than it burdened the same rights of the other group and, if so, whether the distinction was justified. The court of appeals here applied strict scrutiny, requiring the differential treatment to be narrowly tailored to serving a compelling state interest. Russell, 146 F.3d at 572 29 (App. 17a). Moreover, the court of appeals declined to consider key justifications for the differential treatment of the two types of PACs — that is, that the small donor PACs are less likely to be used as a means of circumventing individual contribution limits and that they enhance democratic participation by involving more citizens in the electoral process.'® Instead, the court of appeals held that small donor PACs would not combat corruption because they had larger contribution limits than individuals or regular PACs. Arkansas used the small donor PAC as another device — like the tax credit — to insure that candidates could continue to raise sufficient funds for their campaigns under Act I’s lower contribution limits. Additionally, like the tax credit, Arkansas saw the small donor PAC as way to encourage grass roots political involvement. This Court should grant review in order to instruct lower courts on how to evaluate the constitutionality of this innovative campaign financing device. 10. Similarly, the court of appeals’ decision striking down the $200 limit on contributions to the ordinary PACs is intertwined with its decision striking the $100 and $300 limits because the problem that donors might circumvent those limits with PAC contributions recedes when the limit returns to $1,000. Nonetheless, the court of appeals’ construction of CalMed is flawed. As with Act I’s individual contribution limits, the $200 limit on contributions to PACs triggers only minimal First Amendment protection because the donor is free to spend unlimited amounts independently and can continue to give to candidates. 30 CONCLUSION For the foregoing reasons, the petition for writ of certiorari should be granted. Respectfully submitted, BURT NEUBORNE Counsel of Record E. JOSHUA ROSENKRANZ NANCY NORTHUP ELIZABETH DANIEL Brennan Center for Justice at New York University School of Law 161 Avenue of the Americas Fifth Floor New York, NY 10013 (212) 998-6730 SCOTT C. TROTTER TROTTER & SKELTON 103 West Capitol Avenue Suite 1205, Boyle Building Little Rock, AR 72201 (501) 376-6355 Attorneys for Petitionerss APPENDIX la APPENDIX A — OPINION OF THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT DECIDED JUNE 4, 1998 Ron Russell, Kent Ingram, William R. Austin, and Associated Industries of Arkansas Political Action Committee, Appellants, v. Troy Burris, In His Official Capacity as Chairperson of the Arkansas Ethics Commission; Rita Looney, In Her Official Capacity as a Member of the Arkansas Ethics Commission; Tom Alexander, In His Official Capacity as a Member of the Arkansas Ethics Commission; Ben Allen, In His Official Capacity as a Member of the Arkansas Ethics Commission; Jack Kearney, In His Official Capacity as a Member of the Arkansas Ethics Commission: 2nd Citizens for Clean Government, Appellees. American Civil Liberties Union of Arkansas, James Madison Center for Free Speech, Shrink Missouri Government PAC, and Zev David Fredman, Amici Curiae on Behalf of Appellants. Connecticut, Iowa, Kansas, Kentucky, Massachusetts, Minnesota, Missouri, Montana, New Mexico, North Dakota, Utah, and Vermont, Amici Curiae on Behalf of Appellees. Ron Russell, Kent Ingram, William R. Austin, and Associated Industries of Arkansas Political Action Committee, Appellees, PATA EE ER AT ER aah Pee NE Rd) UNC Nai Ore oe > ay fs ee OY se ch ha a es SN DO iN 2a Appendix A Vv. Troy Burris, In His Official Capacity as Chairperson of the Arkansas Ethics Commission; Rita Looney, In Her Official Capacity as a Member of the Arkansas Ethics Commission; Tom Alexander, In His Official Capacity as a Member of the Arkansas Ethics Commission; Ben Allen, In His Official Capacity as a Member of the Arkansas Ethics Commission; and Jack Kearney, In His Official Capacity as a Member of the Arkansas Ethics Commission, Appellants, and Citizens for Clean Government, Intervenor as Defendant. James Madison Center for Free Speech, Shrink Missouri Government PAC, and Zev David Fredman, Amici Curiae on Behalf of Appellees. Connecticut, Iowa, Kansas, Kentucky, Massachusetts, Minnesota, Missouri, Montana, New Mexico, North Dakota, Utah, and Vermont, Amici Curiae on Behalf of Appellants. Ron Russell, Kent Ingram, William R. Austin, and Associated Industries of Arkansas Political Action Committee, Appellees, v. Troy Burris, In His Official Capacity as Chairperson of the Arkansas Ethics Commission; Candi Sue Russell, In Her Official Capacity as a Member of the Arkansas Ethics Commission; Marvin Delph, In His Official 3a Appendix A Capacity as a Member of the Arkansas Ethics Commission; Rita Looney, In Her Official Capacity as a Member of the Arkansas Ethics Commission; and Norton Wilson, In His Official Capacity as a Member of the Arkansas Ethics Commission, Defendants, and Citizens for Clean Government, Appellant. James Madison Center for Free Speech, Shrink Missouri Government PAC, and Zev David Fredman, Amici Curiae on Behalf of Appellees. Nos. 97-3922, 97-4033 and 97-4038 United States Court of Appeals, Eighth Circuit. Submitted: April 13, 1998 Decided June 4, 1998 Before WOLLMAN, BEAM, and MORRIS SHEPPARD ARNOLD, Circuit Judges. MORRIS SHEPPARD ARNOLD, Circuit Judge. In 1996, the people of Arkansas, by voter initiative, approved a campaign finance reform measure entitled Initiated Act I. Prior to Act I, Arkansas law limited individuals and political action committees to contributions of $1,000 per candidate during each election cycle. Act I reduced the contribution limit to $300 for the offices of governor, lieutenant 4a Appendix A governor, secretary of state, treasurer, auditor, attorney general, and commissioner of state lands, see Ark. Code Ann. § 7-6- 203(a), § 7-6-203(b), and to $100 for all other state public offices, see Ark. Code Ann. § 7-6-203(a)(1), § 7-6-203(b)(1). Act I also created a special category of political action committee (PAC), see Ark. Code Ann. § 7-6-201(9), § 7-6- 201(10), known as a small-donor PAC. See Ark. Code Ann. § 7-6-201(12). Under Act I, a small-donor PAC may accept no contribution larger than $25, see Ark. Code Ann. § 7-6- 201(12)(B), and it may contribute no more than $2,500 per election to any candidate, see Ark. Code Ann. § 7-6-203(d). Act I authorized as well the creation of a campaign fund-raising entity known as an independent expenditure committee. See Ark. Code Ann. § 7-6-201(14). An independent expenditure committee may, like any person, make unlimited independent expenditures (that is, ones not coordinated with a candidate) to advocate the election or defeat of a clearly identified candidate for office. See Ark. Code Ann. § 7-6-201(13), § 7-6-201(14). Such a committee, however, may accept no more than $500 from any person annually. See Ark. Code Ann. § 7-6-203(k). Finally, Act I authorized local governments to set reasonable limitations on fund-raising for campaigns for local offices. See Ark. Code Ann. § 7-6-224. Ron Russell, Kent Ingram, William Austin, and the Associated Industries of Arkansas Political Action Committee challenged each of these Act I provisions in the district court, as well as a pre-Act I provision limiting contributions to any one PAC to $200 annually, see Ark. Code Ann. § 7-6-201(9)(B). Following a bench trial, the district court held that the contribution limits of $300 for certain statewide offices and of $100 for state judicial offices were unconstitutional because Sa Appendix A they violated the First Amendment’s prohibition against limitations on the freedom of speech. See Russell v. Burris, 978 F.Supp. 1211, 1222, 1224, 1229 (E.D. Ark. 1997). The trial court, however, upheld the $100 contribution limit as to all other offices and the $200 contribution limit to PACs. Id. at 1223, 1225, 1229. The trial court also held that the differential treatment for ordinary PACs and small-donor PACs did not violate the Fourteenth Amendment’s equal protection clause. Id. at 1227, 1229. The trial court declined to reach the merits on the other two issues, finding that the plaintiffs did not have standing to contest the limit on contributions to independent expenditure committees, id. at 1217, 1229, and that the provision authorizing relevant actions by local governments was not ripe for a constitutional challenge. Id. at 1217-18, 1229. All parties appeal the rulings unfavorable to their litigating positions. We affirm in part and reverse in part. I. Standing is, of course, a threshold issue in every case before a federal court: If a plaintiff lacks standing, he or she cannot invoke the court’s jurisdiction. See Boyle v. Anderson, 68 F.3d 1093, 1100 (8th Cir. 1995), cert. denied, 516 U.S. 1173, 116 S.Ct. 1266, 134 L.Ed.2d 214 (1996). In order to invoke the jurisdiction of a federal court, one must meet three requirements. First, a plaintiff must have suffered an “injury in fact,” and such an injury must be concrete, particularized, and either actual or imminent. Id. at 1100-01. Second, a would-be litigant must make out a causal connection between the alleged injury and the conduct challenged. Id. at 1100. Third, he or she must show that the injury is likely to be redressed by a favorable decision. Id. 6a Appendix A The trial court determined that each of the plaintiffs had Article III standing as to all but one of their challenges, see Russell, 978 F. Supp. at 1217, and the defendants do not contest that determination here. The plaintiffs maintain, however, that the trial court erred in finding that they did not have Article III standing to challenge the provisions of Act I relating to independent expenditure committees. The trial court found that the plaintiffs did not face a credible threat of present or future prosecution with respect to this part of their claim, and thus could show no actual or imminent “injury in fact,” because none of them “could think of an independent expenditure committee to which they had contributed in the past or to which they planned to contribute.” Id. Indeed, one plaintiff testified, “Well, in all honesty, I’d have to tell you it would take a stretch of my imagination to figure out why I’d want to contribute anything to an independent committee.” Another simply testified that he did not know if he would ever contribute to such a committee. We are mindful that where “plaintiffs allege an intention to engage in a course of conduct arguably affected with a constitutional interest which is clearly proscribed by statute, courts have found standing to challenge the statute, even absent a specific threat of enforcement.” United Food & Commercial Workers International Union v. IBP, Inc., 857 F.2d 422, 428 (8th Cir. 1988). But the plaintiffs have not demonstrated any such intention: They have indicated neither that they would contribute to a specific independent expenditure committee nor that, but for the limitations of Act I, they would form an independent expenditure committee. Standing may not be predicated merely upon a conjectural or hypothetical injury or, as one of the plaintiffs here would have it, upon a stretch of the 7a Appendix A imagination. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 564, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). We therefore affirm the trial court’s determination that the plaintiffs lacked standing to challenge the provisions relevant to independent expenditure committees. Il. “Where at all possible, government must curtail speech only to the degree necessary to meet the particular problem at hand, and must avoid infringing on speech that does not pose the danger that has prompted regulation.” Federal Election Commission v. Massachusetts Citizens for Life, 479 U.S. 238, 265, 107 S.Ct. 616, 93 L.Ed.2d 539 (1986). Government attempts to limit campaign contributions, therefore, are “* “subject to the closest scrutiny.” ’” Carver v. Nixon, 72 F.3d 633, 636 (8th Cir. 1995), cert. denied, 518 U.S. 1033, 116 S. Ct. 2579, 135 L.Ed.2d 1094 (1996), quoting Buckley v. Valeo, 424 U.S. 1, 25, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (per curiam), itself quoting NAACP v. Alabama, 357 U.S. 449, 461, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958). Under this standard, a significant interference with protected rights of political association may be sustained only when the state demonstrates a compelling interest and means closely drawn to avoid unnecessary abridgement of associational freedoms. Carver, 72 F.3d at 636. Intervenor (as a defendant) Citizens for Clean Government (CCG) argues that we should apply a more lenient standard of review to the legislation in this case because Act I included not only contribution limits but also a public subsidy scheme. For this proposition, CCG relies upon the Supreme Court’s ruling in Buckley that upheld a ban on general election campaign Appendix A contributions to, and a limitation on general election campaign expenditures by, a presidential candidate who elected to receive a public subsidy. See Buckley, 424 U.S. at 85-109, 96 S.Ct. 612. But the Buckley Court was clear that it was the optional nature of the contribution and expenditure limit scheme, not the subsidy, that rendered the scheme constitutionally permissible: “Just as a candidate may voluntarily limit the size of the contributions he chooses to accept, he may decide to forgo private fundraising and accept public funding.” Id. at 57 n.65, 96 S. Ct. 612. Similarly, we recently upheld a voluntary campaign subsidy and limitation scheme in Minnesota because the scheme “presents candidates with an additional, optional campaign funding choice, the participation in which is voluntary.” Rosenstiel v. Rodriguez, 101 F.3d 1544, 1552 (8th Cir. 1996), cert. denied, U.S. __, 117 S. Ct. 1820, 137 L.Ed.2d 1028 (1997). It is true that Act I provided a subsidy 2ud limitation scheme, but unlike the schemes upheld in Buckley and Rosenstiel, Act I was imposed upon all candidates: Candidates do not have the power to opt out. We therefore decline this invitation to apply a standard of scrutiny to this case that is different from the one that we adopted in Carver. CCG argues for a more lenient standard of review on the basis of two recent Supreme Court decisions as well, but neither of these authorities modifies the standard of review appropriate to this case. In Colorado Republican Federal Campaign Committee v. Federal Election Commission, 518 U.S. 604, 609, 116 S.Ct. 2309, 135 L.Ed.2d 795 (1996) (opinion of Breyer, J.), a case involving the application of federal campaign expenditure limits, three justices resorted to what CCG calls a weighing test, rather than strict scrutiny, to decide the case. 9a Appendix A See id. at 616, 618, 116 S.Ct. 2309. These justices described their approach as consistent with cases in which the Court “essentially weighed the First Amendment interest in permitting candidates (and their supporters) to spend money to advance their political views against a ‘compelling’ governmental interest in assuring the electoral system’s legitimacy, protecting it from the appearance and reality of corruption.” Id. at 609, 116 S.Ct. 2309. This adjudicatory approach appears to us to be a restatement or reformulation, not a modification, of the Court’s familiar strict scrutiny analysis. We are aware that during the last term, in Timmons v. Twin Cities Area New Party, 520 U.S. 351, 117 S. Ct. 1364, 1370, 137 L.Ed.2d 589 (1997), the Supreme Court upheld an election regulation that barred a political party from choosing as its nominee a candidate already appearing on another party’s ballot. The Court held that while regulations “imposing severe burdens on plaintiffs’ rights must be narrowly tailored and [must] advance a compelling state interest,” lesser burdens “trigger [a] less exacting review.” Id. We believe, however, that restrictions on individual contributions to candidates and on candidates’ amassing sufficient resources to run for office are more severe than the restrictions at issue in Timmons. Where the regulations impose severe burdens on First Amendment rights, as here, Timmons reiterates the Court’s position that strict scrutiny applies. We must therefore first determine what interest can be sufficiently compelling to permit the state to restrict First Amendment freedoms. The compelling state interest identified in Buckley was “the prevention of corruption and the appearance of corruption spawned by the real or imagined coercive influence of large financial contributions on 10a Appendix A candidates’ positions and on their actions if elected to office.” - Buckley, 424 U.S. at 25, 96 S.Ct. 612. The Court reiterated this position five years later, holding that “Buckley identified a single narrow exception to the rule that limits on political activity were contrary to the First Amendment. The exception relates to the perception of undue influence of large contributors to a candidate.” Citizens Against Rent Control v. Berkeley, 454 U.S. 290, 296-97, 102 S.Ct. 434, 70 L.Ed.2d 492 (1981) (emphasis omitted). Subsequently, the Court stated flatly that “[p]reventing corruption or the appearance of corruption are the only legitimate and compelling government interests thus far identified for restricting campaign finances.” Federal Election Commission v. National Conservative Political Action Committee, 470 U.S. 480, 496-97, 105 S.Ct. 1459, 84 L.Ed.2d 455 (1985). Only three years ago, we emphasized in Carver, 72 F.3d at 638-39, that the state may abridge political speech in the form of campaign contributions only to address the reality or perception ot undue influence or corruption attributable to large contributions. We turn, then, to a consideration of whether the challenged provisions can pass muster under this standard. Il. We consider first the provisions of Act I that limited direct contributions to candidates to $300 per election for certain statewide offices, see Ark. Code Ann. § 7-6-203(a), § 7-6- 203(b), and to $100 per election for all other state offices, see Ark. Code Ann. § 7-6-203(a)(1), § 7-6-203(b)(1). The defendants must prove first that there is real or perceived undue influence or corruption attributable to large political contributions in Arkansas, and then that these challenged Ie ciacenceeemaceaeamiaiaiaaiiitiaiial lla Appendix A provisions of Act I are narrowly tailored to address that reality or perception. We find that the defendants failed to carry their burden before the trial court. We note that our review of the trial court’s judgment may involve the review of some of the factual determinations that it made. The Supreme Court has instructed that, in cases involving the First Amendment, appellate courts are to make an independent examination of the whole record to ensure that their judgments do not constitute a forbidden intrusion on the right of free expression. See New York Times Co. v. Sullivan, 376 U.S. 254, 285, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). But we are also mindful of Fed. R. Civ. P. 52(a), which provides that a trial court’s factual findings are typically reviewed for clear error. To reconcile these two legal propositions, we held last year that, in cases involving the First Amendment, we would review findings of noncritical facts for clear error, but would conduct an independent review of critical facts. See Families Achieving Independence and Respect v. Nebraska Department of Social Services, 111 F.3d 1408, 1411 (8th Cir. 1997) (en banc). Accordingly, in the discussion that follows, we give due deference to the trial court’s determination of noncritical facts, while we review independently those facts that we believe to be critical. We begin with the observation that no defendant provided any credible evidence to the trial court of actual undue influence or corruption stemming from large contributions. We are left, then, to determine whether the defendants proved that a reasonable person could perceive, on the basis of the evidence presented at trial, that such contributions make for undue influence or spawn corruption. 12a Appendix A CCG presented proof at trial that was intended to demonstrate specific instances in which large contributions had given rise to the appearance of undue influence or corruption. Much of this proof focused on the introduction in the Arkansas legislature of a bill that would have prohibited local governments from regulating tobacco. The bill’s sponsor, State Representative James Dietz, had received as much as $2,700 in contributions the previous year from various sources related to the tobacco industry, such as the Tobacco Institute. Many other supporters of the bill had apparently also received contributions from pro-tobacco sources. An opponent of the bill, State Representative Ted Thomas, testified that there was a “uniform” public perception of corruption associated with the bill’s having been introduced and supported by legislators who had received contributions from tobacco interests. Even assuming that Mr. Thomas was correct that there was a public perception of corruption, we must determine whether that public perception was reasonable, and whether that perception of corruption derived from the magnitude of the contributions to Mr. Dietz and other supporters of the bill. We believe, after an independent review of the facts presented to the trial court, that the defendants did not prove that the perception of corruption to which Mr. Thomas alluded was objectively reasonable. A newspaper article admitted into evidence quoted Mr. Dietz as saying that he supported the preemption measure because he believed that one “ought to have the right to say what goes on inside his building as long as it’s legal.” That Mr. Dietz received political contributions from those whose interests he tended to support hardly indicates, on its own, any corruption. The defendants provided no evidence at trial, for instance, that Mr. Dietz changed his position on the tobacco bill due to i ; 13a Appendix A an intervening contribution. Nor did the defendants provide evidence that Mr. Dietz sought to conceal his contributions from tobacco-related sources. If it were reasonable to presume corruption from the fact that a public official voted in a way that pleased his contributors, legislatures could constitutionally ban all contributions except those from the public official’s opponents, a patent absurdity. That would spell the end to the political right, protected by the First Amendment, to support a candidate of one’s choice. The defendants’ objections to Mr. Dietz’s activities are also, we believe, essentially unrelated to the size of the individual contributions that he received. The defendants did not provide evidence, such as that produced by the government in Buckley, of multi-million-dollar contributions to Mr. Dietz. Indeed, our review of the evidence presented to the trial court indicates that Mr. Dietz reported no individual contribution larger than $1,000 from any source, tobacco-related or otherwise. We believe that $1,000 is simply not a large enough sum of money to yield, of its own accord and without further evidence, a reasonable perception of undue influence or corruption. The defendants essentially criticize Mr. Dietz for offering a bill favorable to interests from whom he had already accepted campaign contributions. The difficulty pointed to, then, seems to be the identity of the contributors and their subsequent interest in legislation rather than the size of their contributions. We note that even if Mr. Dietz had received twenty-seven individual contributions of $100 from various tobacco-related sources instead of a few somewhat larger contributions, the defendants could make the same criticism of his activities as they made here. We therefore conclude that the evidence that l4a Appendix A the defendants presented regarding the tobacco legislation does not permit a finding of a reasonable perception of corruption or undue influence due to large contributions. The defendants also produced proof at trial that was related to contributions by lobbyists to State Representative Ode Maddox. In April, 1996, a group of lobbyists held a fund-raiser for Mr. Maddox at the Arkansas Poultry Federation in Little Rock. According to the trial court, at that event Mr. Maddox raised a total of more than $22,000 from various lobbyists, PACs, and corporations. Our independent review of the record shows that Mr. Maddox received no contribution in excess of $1,000 from any single source. The record does not indicate any change in Mr. Maddox’s political behavior following these donations, nor does it indicate that Mr. Maddox sought to conceal his contributions or their sources. Indeed, the defendants did not even demonstrate that Mr. Maddox voted in any particular fashion with respect to any relevant issues following the receipt of these donations. At bottom, the defendants’ complaint about Mr. Maddox’s contributions is that they came from lobbyists who live outside his district and have business before his committee from time to time. But this complaint is not related to the size of the contributions made to Mr. Maddox, and thus does not satisfy the compelling state interest standard established in Buckley and Carver. We conclude, then, that the evidence that the defendants offered regarding Mr. Maddox’s fund-raising practices does not permit a finding of a reasonable perception of corruption or undue influence stemming from large contributions. The defendants also adduced proof at trial of contributions by “real estate interests” to members of the Little Rock aaah aii 15a Appendix A municipal government. But, again, the defendants’ declared interest in regulating these has to do with the identity of the contributor and that contributor’s interests rather than with the size of individual contributions. According to records provided to the trial court, no member of the Little Rock municipal government received more than $1,000 from any so-called “real estate interest.” The record does not indicate any change in any Official’s behavior following such contributions, nor did the defendants demonstrate that any official attempted to conceal the source of the contributions. The evidence instead shows that the “real estate interests” contributed to candidates who supported initiatives with which the contributors agreed — that is, the “real estate interests” appear to have chosen well which candidates to support. We cannot say that this evidence is sufficient to establish that there could be a reasonable perception of corruption or undue influence due to large contributions. The defendants identify, instead, a concern that “real estate interests” gave money to officials of a municipal government, and that those officials then voted on issues relevant to real estate. This concern, as we have said above, is ne related specifically to the size of the contributions, and thus is outside the scope of the compelling state interest as defined by Buckley and Carver. We also believe that the candidate contribution limits set forth in Act I are too low to allow meaningful participation in protected speech and association. See Carver, 72 F.3d at 641- 42. In Buckley, 424 U.S. at 20-35, 96 S.Ct. 612, the Supreme Court approved a $1,000 contribution limit as a narrowly tailored means to address the problem of large campaign contributions. As we noted in Day v. Holahan, 34 F.3d 1356, 1366 (8th Cir. 1994), cert. denied, 513 U.S. 1127, 115 S.Ct. 16a Appendix A 936, 130 L.Ed.2d 881 (1995), inflation has eroded approximately 60 percent of the value of a dollar since 1976. A $1,000 contribution in 1976 would thus be worth about the same as a $2,500 contribution today. We recognize that the contribution limit upheld in Buckley does not constitute a constitutional minimum and that we may not fine-tune the contribution limits established by Act J. See Carver, 72 F.3d at 641. We must, however, invalidate the contribution limitations if they are different in kind from those that Buckley upheld. See id. The provisions of Aci I challenged here limited contributions to a candidate to only $100 or $300, depending upon the office. See Ark. Code Ann. § 7-6-203(a), § 7-6-203(b). The limits prescribed by Act I, then, are (adjusted for inflation) approximately 4 percent or 12 percent, respectively, of the limit upheld in Buckley. In Day, 34 F.3d at 1366, we concluded that a limitation of $100, or 4 percent of the inflation-adjusted limit upheld in Buckley, constituted a difference in kind from the limit upheld in Buckley. In Carver, 72 F.3d at 641-42, we held that contribution limitations of $100 or $300 per election cycle (2 percent or 6 percent, respectively, of the limit approved in Buckley) were “dramatically lower,” and thus different in kind, from the limit upheld in Buckley. We believe that the limitations in question here are similarly dramatically lower than, and different in kind from, the limits approved in Buckley, and thus are unconstitutionally low. We note, finally, that even if there were a compelling state interest to prevent the perception of corruption or undue influence due to any of the various concerns identified here by the defendants — that is, supporting tobacco legislation, accepting contributions from those appearing before or having 17a Appendix A interests before one’s legislative committee, accepting contributions from supporters outside one’s district, or the like — Act I was not narrowly tailored to address them. As we have already noted, “[w]here at all possible, government must curtail speech only to the degree necessary to meet the particular problem at hand, and must avoid infringing on speech that does not pose the danger that has prompted regulation.” Massachusetts Citizens for Life, 479 U.S. at 265, 107 S.Ct. 616. Act I, however, is at once both overinclusive and underinclusive, by limiting the free speech of al! who would contribute without addressing the specific concerns identified. IV. The plaintiffs challenged two provisions relating to the activities of political action committees. The first of these was a provision, enacted in 1990, that prohibited persons from giving more than $200 each year to any one political action committee. See Ark. Code Ann. § 7-6-201(9)(B). State-enforced limits on contributions to political action committees stifle “not only free political speech, but also free political association,” and are reviewed according to a strict scrutiny standard. Day, 34 F.3d at 1365. We must therefore determine whether the defendants demonstrated that the provision was narrowly tailored to address the compelling state interest in avoiding corruption or the appearance of corruption that stems from large contributions. We hold that this provision, like the provision that we invalidated in Day, is not narrowly tailored to serve a compelling state interest, because the annual limit is so low as to be different in kind from the limit approved in Buckley. See 18a Appendix A id. at 1366. In Day, we noted that a $100 limit (in 1994 dollars) for contributions to political action committees was, adjusted for inflation, equal to approximately 4 percent of the contribution limit upheld in Buckley. Id. Thus, a $200 limit (in 1998 dollars) is equal to no more than 8 percent of the contribution limit approved in Buckley. That limit is also less than 5 percent, even before any adjustment for inflation, of the $5,000 limitation on contributions to PACs approved by the Supreme Court in California Medical Association v. Federal Election Commission, 453 U.S. 182, 195-99, 101 S.Ct. 2712, 69 L.Ed.2d 567 (1981) (plurality opinion). There is also less of a danger of quid pro quo corruption, such as the sort that one might presume from large contributions given directly to candidates, when a contribution is given to a PAC that does not itself wield legislative power. Cf. Day, 34 F.3d at 1365. We believe that a $200 limit (in 1998 dollars) will significantly impair the ability of individuals to exercise their political rights. The limit is simply too low to allow for appropriately robust participation in protected political speech _ and association, and thus violates the protections for free political speech and free association that the First Amendment affords. The plaintiffs also challenged the provision in Act I that permitted small-donor political action committees to give as much as $2,500 to a candidate (in contrast to the lower limits applicable to contributions by ordinary political action committees). See Ark. Code Ann. § 7-6-203{d); see also Ark. Code Ann. § 7-6-201(a), § 7-6-201(b). We believe that such differential treatment must be evaluated according tv a strict scrutiny standard. “Because the right to engage in political expression is fundamental to our constitutional system, statutory © EEN CALS ET Ra 19a Appendix A classifications impinging upon that right must be narrowly tailored to serve a compelling governmental interest.” Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 666, 110 S.Ct. 1391, 108 L.Ed.2d 652 (1990). The defendants argue that the differential treatment of ordinary and small-donor PACs is justified because of the difference in regulations as to their method of raising money. The only compelling government interest that might permit this infringement of First Amendment rights, as we have said, is preventing the reality or perception of undue influence or corruption that might arise from large contributions. As the Supreme Court has held, “To the extent that large contributions are given to secure a political quid pro quo from current and potential office holders, the integrity of our system of representative democracy is undermined.” Buckley, 424 U.S. at 26, 96 S.Ct. 612. Ostensibly to alleviate this potential for corruption, Act I limited individuals and ordinary PACs to giving $300 to certain candidates and $100 to others (although we note that our holding above returns these limits to their pre- Act I limits of $1,000). See Ark. Code Ann. § 7-6-201(a), § 7- 6-201(b). Act I allowed small-donor PACs, however, to give $2,500 to any candidate. See Ark. Code Ann. § 7-6-203(d). This differential treatment is said to be acceptable because small-donor PACs themselves receive that money in contributions of $25 or less, see Ark. Code Ann. § 7-6- 201(12)(B). This explanation, however, is manifestly flawed, because it focuses on the source of the funds given to a PAC rather than on the entity from which the candidate receives the funds. Because a small-donor PAC receives small donations, it is true that it is unlikely that any one contributor to a small-donor —— 20a Appendix A PAC will be able to control that PAC. Act I, however, ignored the possibility that the small-donor PAC itself will seek to control a given candidate. A $2,500 contribution would be even more likely to exacerbate this difficulty than the $1,000 contribution limit applicable to most other contributors. Indeed, if any contribution is likely to give rise to a reasonable perception of undue influence or corruption, it would be one from an entity permitted to contribute two-and-a-half times the amount that most others are allowed to contribute. The small- donor PAC provision is not, then, narrowly tailored to serve the compelling government interest of combating the reality or perception of undue influence or corruption. We reject the defendants’ argument that the plaintiffs (namely, three individuals and a political action committee) may not assert this equal protection argument because they are not burdened to a greater extent by this provision than small- donor PACs are. Ordinary PACs may, it is true, raise more money per contribution than a small-donor PAC, but the issue is their ability to speak freely by contributing money to candidates for office. Insofar as that freedom is at issue, the ordinary PACs are burdened more than the small-donor PACs, because ordinary PACs may donate only the amount that individuals may donate, while small-donor PACs may donate $2,500. We believe, then, that the plaintiffs here meet the requirements set forth in California Medical Association, 453 U.S. at 200, 101 S.Ct. 2712. ¥, The plaintiffs also challenged the constitutionality of Ark. Code Ann. § 7-6-224. This provision states only that local governments “shall have the authority to establish reasonable © 21a Appendix A limitations” on campaign contributions and expenditures, and appears to be simply an allocation by the state of Arkansas of certain of its plenary powers to local governments: It does not set any specific limits on campaign contributions or expenditures, and thus cannot restrict the First Amendment freedoms of any person or entity seeking to contribute to or spend the revenues of a political campaign. Were a local government to exercise the power granted it by § 7-6-224, its action might then be challenged in the same manner as the actions of the defendants were challenged in this suit. But no such action has yet been taken and brought to the attention ofa court. Ark. Code Ann. § 7-6-224 thus does not present a federal constitutional controversy that is ripe for adjudication at this time. VI. Those provisions of the Arkansas statutes in conflict with our analysis above are unconstitutional and unenforceable. We must now determine whether the invalid provisions of Act I may be severed from the remainder of its provisions. Severability is a matter of state law. Leavitt v. Jane L., 518 U.S. 137, 139, 116 S.Ct. 2068, 135 L.Ed.2d 443 (1996) (per curiam). The Supreme Court of Arkansas looks to two considerations to determine severability: “(1) whether a single purpose is meant to be accomplished by the act; and (2) whether the sections of the act are interrelated and dependent upon each other.” U.S. Term Limits, Inc. v. Hill, 316 Ark. 251, 872 S.W.2d 349, 357 (Ark. 1994). The court provided further guidance, moreover, in its observation that “it is important whether the portion of the act remaining is complete in itself and capable of being executed wholly independent of that which was 22a Appendix A rejected.” Id. at 358. A severability clause, such as the one provided in Act I, is relevant but not determinative of whether individual provisions of the act will be considered severable. Id. Applying the principles set forth in U.S. Term Limits, we find no single purpose behind Act I with which our ruling could interfere. Act I provided for a series of campaign finance reforms, including the independent expenditure committee and certain tax provisions, that remain unaffected by the outcome of this case. We can find no reason not to honor the intent of the drafters of Act I that, to the extent possible, its various provisions should stand on their own. VIL. We therefore affirm in part and reverse in part the judgment of the trial court. We remand the case to the district court for the entry of declaratory and injunctive relief consistent with this opinion. Psat aeee te becibiatihd. Bnet Las wide easiest heal 23a APPENDIX B — ORDER OF THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF ARKANSAS DATED OCTOBER 3, 1997 Ron RUSSELL, Kent Ingram, William R. Austin, and Associated Industries of Arkansas Political Action Committee, Plaintiffs, Vv. Troy BURRIS, in his official capacity as chairperson of the Arkansas Ethics Commission, and Candi Sue Russell, Marvin Delph, Rita Looney, and Norton Wilson, in their official capacities as members of the Arkansas Ethics Commission, Defendants, and Citizens for Clean Government, Defendant-Intervenor. No. LR-C-97-0089. United States District Court, E.D. Arkansas. Oct. 3, 1997. * * * MEMORANDUM & ORDER WILSON, District Judge. The plaintiffs seek a declaratory judgment that Arkansas Initiated Act I of 1996 (Act I) violates their First Amendment 24a Appendix B rights to freedom of political speech and association,' and their Fourteenth Amendment right of equal protection of the laws. They seek to enjoin the enforcement of both Act I and Arkansas Code 7-6-201(9)(B), a law that pre-dated Act I. The plaintiffs’ motion is granted in part and denied in part: A. Enforcement of Arkansas Code section 7-6-203(a)(2) and (b)(2), which imposes a $300 per election contribution limit applicable to enumerated statewide offices, is enjoined. B. Arkansas Code section 7-6-203(a)(1) and (b)(1), which imposes a $100 per election contribution limit applicable to all other offices, is upheld, except as to the offices of Supreme Court Justice and Court of Appeals Judge. Application of this section to the offices of Supreme Court Justice and Court of Appeals Judge, is enjoined. C. Arkansas Code section 7-6-201(9)(B), which imposes a $200 per year limit on contributions to approved political action committees, is upheld. D. Arkansas Code sections 7-6-201 and -203(d), pertaining to small donor political action committees, are upheld against the plaintiffs’ challenge on equal protection grounds. E. The plaintiffs lack standing to challenge Arkansas Code sections 7-6-201(13) and (14), and 7-6-203(k), which 1. First Amendment protections are made applicable to the states by the Fourteenth Amendment. See McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 336 n. 1, 115 S.Ct. 1511, 1514 n. 1, 131 L.Ed.2d 426 (1995). 4 ¥ 25a Appendix B address contributions to an independent expenditure committee. F. The plaintiffs’ challenge to Arkansas Code section 7- 6-224, concerning the authority of local jurisdictions to enact more restrictive campaign contribution regulations than state law, is dismissed because it is not ripe. I. Background A. ActI Act I, which amended Arkansas’ existing campaign contribution laws, was approved by voters on November 5, 1996, by a two-to-one margin. Before Act I, a candidate could receive up to $1000 in contributions per election from individuals, corporations, unions, political action committees (PACs) and other groups. Ark.Code Ann. §§ 7-6-201(1), -203(a) (Michie Supp.1995). In addition, a state political party could contribute up to $2500 per election to that party’s candidate. Id. § 7-6-203(d). Since 1990, approved PACs have been limited to contributions of no more than $200 per year from any person. Id. § 7-6-201(9). While not established by Act I, this limitation is attacked by the plaintiffs in this action. Act I made substantial changes to Arkansas’ campaign contribution law. Under the Act I amendments, candidates for the offices of Governor, Lieutenant Governor, Secretary of State, State Treasurer, State Auditor, Attorney General, and Commissioner of State Lands (“statewide candidates”) may not accept campaign contributions exceeding $300 per election from any person.” Candidates for all other offices, including 2. Section 2 of Act I states in part: (Cont’d) 26a Appendix B Arkansas Supreme Court Justices and Court of Appeals Judges, are limited to contributions of no more than $100 per election from any person.’ Although state Supreme Court Justices run (Cont'd) Arkansas Code 7-6-203(a) [and] (b) ... are hereby amended to read as follows: (a)(2) It shall be unlawful for any candidate for the office of Governor, Lieutenant Governor, Secretary of State, Treasurer of State, Auditor of State, Attorney General, and Commissioner of State Lands, or for any person acting on the candidate’s behalf, to accept campaign contributions in excess of three hundred dollars ($300) per election from any person. (b)(2) It shall be unlawful for any person to make a contribution to a candidate for the office of Governor, Lieutenant Governor, Secretary of State, Treasurer of State, Auditor of State, Attorney General, and Commissioner of State Lands, or to any person acting on the candidate’s behalf, which, in the aggregate, exceeds three hundred dollars ($300) per election. 3. Sectior 2 of Act I provides in part: Arkansas Code 7-6-203(a) [and] (b) . . . are hereby amended to read as follows: (a)(1) It shall be unlawful for any candidate for any public office, except the office of Governor, Lieutenant Governor, (Cont’d) LUMA Maat eit, ta STEIN ARE De ET TAR RT MAIN 0 ap e f - 3 B 27a Appendix B statewide, they are not included in the category of “statewide candidates” under the Act I limitations. Arkansas Court of Appeals Judges are elected from districts of approximately 400,000 persons. By way of comparison, Arkansas Senate districts include approximately 68,000 persons; Arkansas House of Representative districts include a population of approximately 24,000. Act I did not disturb the right of political parties to contribute up to $2500 to a candidate per election,‘ and it creates (Cont’d) Secretary of State, Treasurer of State, Auditor of State, Attorney General, and Commissioner of State Lands, or for any person acting on the candidate’s behalf, to accept campaign contributions in excess of one hundred dollars ($100) per election from any person. (b)(1) It shall be unlawful for any person to make a contribution to a candidate for any public office, except the office of Governor, Lieutenant Governor, Secretary of State, Treasurer of State, Auditor of State, Attorney General, and Commissioner of State Lands, or to any person acting on the candidate’s behalf, which, in the aggregate, exceeds one hundred dollars ($100) per election. 4. Section 2 of Act I requires in part: Arkansas Code 7-6-203 . . . {d) [is] hereby amended to read as follows: (Cont’d) 28a Appendix B a small donor PAC subject to the same $2500 limit.* Neither did the Act alter the definition of “persons,” which remains: “any individual, proprietorship, firm, partnership, joint venture, syndicate, labor union, business trust, company, corporation, association, committee, or any other organization or group of persons acting in concert. It shall also include organized political parties. . . .” Id. § 7-6-201(1). Because approved PACs are persons by definition, Act I limits their contributions to statewide candidates to $300 per election and contributions to other candidates to $100 per election. Act I also limits aggregate contributions by any person to independent expenditure (Cont'd) (d) However, an organized political party as defined in Arkansas Code 7- 1-101(1) and a small donor political action committee may contribute up to two thousand five hundred dollars ($2500) to each candidate per election. 5. Section | of Act I requires in part: Arkansas Code 7-6-201 is hereby amended to add the following new subdivision[ ]: 12) A “small donor political action committee” means any person who: (A) Receives contributions from one or more individuals in order to make contributions to candidates; (B) Does not accept any contribution or cumulative contributions in excess of twenty-five dollars ($25) from any individual in any calender year; and (C) Is registered pursuant to Arkansas Code 7-6-215 prior to making contributions to candidates. “Small donor political action committee” shall not include an organized political party, the candidate’s own committee, or an exploratory committee. 29a Appendix B committees® to $500 per calendar year.’ Introducing a public subsidy element, Act I provides for state tax credits for 6. Section I of Act I provides in part: Arkansas Code 7-6-201 is hereby amended to add the following new subdivisions: (13) An independent expenditure is any expenditure which is not a contribution and: (A) expressly advocates the election or defeat of a clearly identified candidate for office; and (B) is made without arrangement, cooperation, or consultation between any candidate, or any authorized committee or agent of such candidate, and the person making the expenditure or any authorized agent of that person; and (C) is not made in concert with, or at the request or suggestion of, any candidate, or any authorized committee or agent of the candidate. (14) “Independent expenditure committee” means any person who receives contributions from one or more persons in order to make an independent expenditure and is registered pursuant to Arkansas Code 7-6-215 prior to making expenditures. 7. Section 3 of Act I declares: Arkansas Code 7-6-203 is hereby amended to add the following new subsection: (k) An Independent expenditure committee may not accept any contribution or cumulative contributions in excess of five hundred dollars ($500) in value from any person in any calendar year. 30a Appendix B campaign contributions of $50 per year on an individual return and $100 on a joint return.* Additionally, Act I allows 8. Section 10 of Act I provides the following: Arkansas Code Title 7, Chapter 6, Subchapter 2 is amended by adding the following new section: 7-6-222. Tax Credits for Certain Individual Political Contributions. (a) Pursuant to regulations to be adopted by the Arkansas Department of Finance and Administration, a single credit against individual Arkansas Income taxes shall be allowed for money contributions made by the taxpayer in a taxable year to one or more of the following: (1) A candidate seeking nomination or election to a public office at an election, or to the candidate’s campaign committee; or (2) A small donor political action committee as defined in Arkansas Code 7-6-201; or (3) An approved political action committee as defined in Arkansas Code 7-6-201; or (4) An organized political party as defined in Arkansas Code 7-1-101(1). (b) The credit allowed by subsection (a) of this section shall be the aggregate contributions, not to exceed fifty dollars ($50) on an individual tax return, or the aggregate contributions, not to exceed one hundred dollars ($100) on a joint return. RED Ms a a a ' 3la Appendix B municipalities, counties and townships to set contribution limits lower than those set by state law.° B. The Parties The plaintiffs are three individuals and a registered Arkansas PAC. Plaintiff Kent Ingram is a businessman, former state senator, and frequent campaign contributor, who had made numerous campaign contributions at levels that would exceed the Act I limits, and who desires to continue to contribute at the higher levels. Plaintiff William R. Austin is a businessman who wishes to contribute in amounts exceeding the Act I limits. Plaintiff Ron Russell is the Executive Vice-President of the Arkansas Chamber of Commerce, a former mayor, and campaign contributor in amounts that would exceed current Act I limits. Mr. Russell also wishes to contribute at the higher levels. Plaintiff Associated Industries of Arkansas Political Action Committee (AIAPAC) is an approved PAC favoring business interests, that asserts the right to contribute $2500 per election to candidates, just as a small donor PAC may do. 9. Section 12 of Act I provides: Arkansas Code Title 7, Chapter 6, Subchapter 2 is amended by adding the following new section: 7-6-224. Authority of Local Jurisdictions Municipalities, counties and townships shall have the authority to establish: reasonable limitations on the time periods candidates for local office shall be allowed to solicit contributions; limits on contributions to local candidates at amounts lower than those set by state law; and voluntary campaign expenditure limits for candidates seeking election to their respective governing bodies. 32a Appendix B Plaintiffs Ingram and Russell are officers of the State Chamber PAC. Plaintiffs Austin and Russell are officers of AIAPAC. - The defendants are the individual members of the Arkansas Ethics Commission, sued in their official capacities. The Commission administers Arkansas campaign finance and disclosure laws and investigates alleged violations of these laws. Defendant-Intervenor Citizens for Clean Government (Citizens), is a coalition of organizations including the Association of Community Organizations for Reform Now (ACORN), Common Cause, the New Party, and a local union. Citizens was the principal proponent of Act I. C. The Issues The plaintiffs claim that the following provisions of Act I violate their rights to freedom of political expression (speech) and association under the First Amendment: (1) the $100 and $300 limits on campaign contributions to candidates; (2) Act I’s authorization for local jurisdictions to set even lower contribution limits; and (3) the $500 limit to annual contributions a person may give to an independent expenditure committee. The plaintiffs challenge, on the same grounds, Arkansas’ $200 per person limit on annual contributions to an approved PAC. As noted earlier, this latter limit was approved by a ballot initiative in 1990, and thus pre-dated Act I. The plaintiffs claim further that in allowing small donor PACs to contribute $2500 per election to a candidate, Arkansas denies equal protection of the laws to approved PACs, which are subject to the $100 and $300 individual contribution limits. The defendants and Citizens argue that plaintiffs lack standing to assert these claims. i ; er) ef ‘a % %, ® wy M 7 * Ye iy » ca A 3 ¥ ; i b *~ > a 3 % i # a oy 2 Aga pega 33a Appendix B II. Discussion A. Standing This Court’s jurisdiction is restricted by the U.S. Constitution, which allows federal courts to hear only “cases” and “controversies.” U.S. Const. art. III, § 2, cl. 1. The Court cannot render advisory opinions. Whether a plaintiff has standing to invoke the jurisdiction of the federal courts is a threshold question in any case. To establish standing a plaintiff must show: (1) that she suffered an injury in fact — “an invasion of a legally protected interest” that is both “concrete and particularized,” and “actual or imminent, not ‘conjectural’ or ‘hypothetical’ ”; (2) a causal connection between the injury and the challenged action; and (3) that a favorable decision is likely to redress her injury. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992) (citations omitted). When a party brings “a pre- enforcement challenge to a statute that both provides for criminal penalties and abridges First Amendment rights, ‘a credible threat of present or future prosecution itself works an injury that is sufficient to confer standing.’” Minnesota Citizens Concerned for Life v. FEC, 113 F.3d 129, 131 (8th Cir.1997) (quoting New Hampshir [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_1543%3A1. Public record. Not legal advice.