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Thalheimer v. City of San Diego

February 16, 2010

PHIL THALHEIMER; ASSOCIATED BUILDERS & CONTRACTORS PAC SPONSORED BY ASSOCIATED BUILDERS & CONTRACTORS, INC. SAN DIEGO CHAPTER; LINCOLN CLUB OF SAN DIEGO; REPUBLICAN PARTY OF SAN DIEGO; AND JOHN NIENSTEDT, PLAINTIFFS,
v.
CITY OF SAN DIEGO; CITY OF SAN DIEGO ETHICS COMMISSIONERS RICHARD M. VALDEZ, CHAIR, W. LEE BIDDLE, GUILLERMO ("GIL") CABRERA, CLYDE FULLER, DOROTHY LEONARD, AND LARRY S. WESTFALL, ALL SUED IN THEIR OFFICIAL CAPACITY; THE HONORABLE JERRY SANDERS, MAYOR OF SAN DIEGO, SUED IN HIS OFFICIAL CAPACITY; JAN GOLDSMITH, CITY ATTORNEY FOR THE CITY OF SAN DIEGO, SUED IN HIS OFFICIAL CAPACITY; AND ELIZABETH MALAND, CITY CLERK OF SAN DIEGO, SUED IN HER OFFICIAL CAPACITY, DEFENDANTS.



The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION [Doc. No. 3.]

Presently before the Court is Plaintiffs' Motion for Preliminary Injunction. Defendant City of San Diego has filed an opposition, and Plaintiffs have filed a reply. The Court heard oral argument on January 25, 2010. For the reasons stated herein, the Court grants in part and denies in part Plaintiffs' motion.

FACTUAL BACKGROUND

The following facts are drawn from Plaintiffs' Verified Complaint. The Court sets out only those facts necessary for resolving the requested injunction. Plaintiffs Phil Thalheimer, Associated Builders & Contractors, Inc. San Diego Chapter, Lincoln Club of San Diego County, San Diego County Republican Party, and John Nienstedt ("Plaintiffs") bring this action challenging the constitutionality of San Diego's campaign finance laws on First Amendment grounds. Plaintiffs seek to enjoin enforcement of these laws. Plaintiffs' complaint names as defendants the City of San Diego ("the City") and several government officials in their official capacity.*fn1

Plaintiffs challenge five provisions of the San Diego Municipal Election Campaign Control Ordinance ("ECCO"), arguing they are unconstitutional, both facially and as applied to Plaintiffs:

(1) § 27.2935: $500 limit for contributions by individuals to candidates and committees supporting or opposing a candidate.

(2) § 27.2936: Requirement that money spent by committees to support or oppose a candidate must be attributable to contributions from individuals (not over the $500 limit).

(3) § 27.2938: Prohibition on soliciting or accepting contributions prior to 12 months before the primary election, also interpreted to extend to candidates spending their own money in support of their candidacy prior to 12 months before the primary election.

(4) § 27.2950: Prohibition on contributions to candidates from non-individuals, including political parties and corporations.

(5) § 27.2951: Prohibition on accepting contributions that are drawn against a checking account or credit card belonging to a non-individual.

Plaintiff Phil Thalheimer is a resident of San Diego considering running for a City Council seat in San Diego in 2012. He is preparing for a possible run in District 1 or in a new ninth district, if San Diego's voters vote to create it next June and he lives within its boundaries. District 1 is served by incumbent Sherry Lightner, and Plaintiff Thalheimer believes that under the current laws he may not be able to raise the funds necessary to run against an incumbent. He would use his own money to advertise his potential candidacy now and begin soliciting contributions now, but for the law prohibiting acceptance of contributions prior to the twelve months preceding the primary election. Plaintiff Thalheimer would also solicit contributions from political action committees and other organizational entities, but for the law prohibiting contributions from non-individuals.

Plaintiff Associated Builders & Contractors, Inc. ("ABC PAC") is a committee formed by the Associated Builders & Contractors, Inc., San Diego Chapter, registered in California as a political action committee. Plaintiff ABC PAC receives most of its contributions from business entities. Plaintiff ABC PAC would make independent expenditures, but for the law providing that independent expenditures to support or oppose a candidate must be funded by contributions from individuals (up to $500 per individual).

Plaintiff Lincoln Club is an organization of politically like-minded business and civic leaders in San Diego County, registered as a political action committee. Plaintiff Lincoln Club would make independent expenditures in amounts greater than can be attributable to contributions from individuals in amounts no greater than $500. Plaintiff Lincoln Club also wants to be able to use contributions from business entities to make independent expenditures.

Plaintiff San Diego County Republican Party is San Diego's local organization for the Republican Party. The party would make coordinated expenditures with Republican candidates, but for the law banning contributions from non-individuals to candidates.

Plaintiff John Nienstedt is a resident of California who intends to contribute the full amount allowed by law to a candidate in the San Diego City Council and/or citywide elections. Plaintiff Nienstedt would contribute money to this candidate now, but for the law prohibiting acceptance of contributions prior to the twelve months preceding the primary election.

PROCEDURAL HISTORY

On December 21, 2009, Plaintiffs filed a Verified Complaint and the motion for a preliminary injunction. (Doc. Nos. 1 & 3.)

On January 13, 2010, the City filed a motion to dismiss and a motion to strike. (Doc. Nos. 11 & 12.) Hearing on those motions is set for February 22, 2010.

On January 19, 2010, the Court granted the American Civil Liberties Union of San Diego and Imperial County's ("ACLU") motion for leave to file a brief as amicus curiae in support of Plaintiffs' motion. (Doc. No. 16.) The City filed a reply to the ACLU's amicus brief. (Doc. No. 19.) On January 27, 2010, the Court also granted Common Cause leave to file an amicus brief in support of the City's opposition. (Doc. No. 23.)

DISCUSSION

LEGAL STANDARD Injunctive relief is "an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief." Winter v. Nat. Res. Def. Council, Inc., - U.S. -, 129 S.Ct. 365, 375-76 (2008). A party seeking a preliminary injunction must demonstrate: (1) the likelihood of success on the merits; (2) the likelihood of irreparable harm in the absence of preliminary relief; (3) that the balance of equities tips in his favor; and (4) that an injunction is in the public interest. Id. at 374.

ANALYSIS

Likelihood of Success on the Merits

1. Campaign Finance Laws and Levels of Scrutiny

The United States Supreme Court has held that campaign contribution and expenditure limitations "operate in an area of the most fundamental First Amendment activities." Buckley v. , 424 U.S. 1, 15 (1976). "A restriction on the amount of money a person or group can spend on political communication during a campaign necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached." Id. at 19. "This is because virtually every means of communicating ideas in today's mass society requires the expenditure of money." Id.

The Court has drawn a clear line between limits on contributions and limits on independent expenditures. Contribution limits are "only a marginal restriction upon the contributor's ability to engage in free communication." Id. at 20. "A contribution serves as a general expression of support for the candidate and his views, but does not communicate the underlying basis for the support." Id. at 21. "The quantity of communication by the contributor does not increase perceptibly with the size of his contribution, since the expression rests solely on the undifferentiated, symbolic act of contributing." Id. By contrast, expenditure limits impose "significantly more severe restrictions on protected freedoms of political expression and association." Id. at 23. Unlike large campaign contributions, expenditures do "not presently appear to pose dangers of real or apparent corruption."

at 46; see also Citizens United v. Fed. Election Comm'n, No. 08-205, --- S.Ct. ----, 2010 WL 183856 (Jan. 21, 2010) (concluding that "independent expenditures . . . do not give rise to corruption or the appearance of corruption"). "The absence of prearrangement and coordination of an expenditure with the candidate or his agent not only undermines the value of the expenditure to the candidate, but also alleviates the danger that expenditures will be given as a quid pro quo for improper commitments from the candidate." 424 U.S. at 47.

As such, expenditure limitations are subject to strict scrutiny -- they must "satisfy the exacting scrutiny applicable to limitations on core First Amendment rights of political expression." Id. at 44-45. The Supreme Court has "repeatedly adhered to Buckley's constraints . . . on expenditure limits." Randall v. Sorrell, 548 U.S. 230, 236 (2006) (citing cases). Contribution limitations, on the other hand, are subject to a less rigorous standard of review -- they must be "closely drawn" to match a "sufficiently important interest."*fn2 Buckley, 424 U.S. at 25. The Court has routinely upheld contribution limits. Randall, 548 U.S. at 247 (citing cases).

So far, the only constitutionally sufficient justification for campaign finance laws that the Court has recognized is limiting "the actuality and appearance of corruption resulting from large individual financial contributions." See Buckley, 424 U.S. at 25-26; see also Davis v. Fed. Election Comm'n, ---U.S. ----, 128 S.Ct. 2759, 2773 (2008). The Court in Buckley was concerned with the danger of "large contributions . . . given to secure a political quid pro quo from current and potential office holders." Buckley, 424 U.S. at 26-27. The Court acknowledges that "restrictions on direct contributions are preventative, because few if any contributions to candidates will involve quid pro quo arrangements."

Citizens United, No. 08-205 at 31 (citing Fed. Election Comm'n v. Mass. Citizens for Life, Inc., 479 U.S. 238, 260 (1986); Fed. Election Comm'n v. Nat'l Conservative Political Action Comm., 470 U.S. 480, 500 (1985); Fed. Election Comm'n v. Nat'l Right to Work Comm., 459 U.S. 197, 210 (1982)). The Court has also recognized that the government has a valid anticorruption interest in preventing circumvention of contribution limits. Fed. Election Comm'n v. Colorado Republican Fed. Campaign Comm., 533 U.S. 431, 456 (2001) (Colorado II) ("[A]ll Members of the Court agree that circumvention is a valid theory of corruption.").

The Court previously stated that the anticorruption interest "extends beyond preventing simple cash-for-votes corruption to curbing 'undue influence on an officeholder's judgment, and the appearance of such influence.'" McConnell v. Fed. Election Comm'n, 540 U.S. 93, 150 (2003) (quoting Colorado II, 533 U.S. at 456)). The Court has since clarified in its most recent campaign finance case, Citizens United, that "[t]he fact that speakers may have influence over or access to elected officials does not mean that these officials are corrupt." No. 08-205, at 32. "Reliance on a 'generic favoritism or influence theory . . . is at odds with standard First Amendment analyses because it is unbounded and susceptible to no limiting principle.'" Id. (quoting McConnell, 540 U.S. at 296 (Kennedy, ...


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