from the United States District Court for the Western
District of Texas
SMITH, BARKSDALE, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, CIRCUIT JUDGE.
Zimmerman, a former Austin City Councilmember, challenges
four provisions of Austin's campaign-finance law: a base
limit on contributions to candidates; an aggregate limit on
contributions from persons outside of the Austin area; a
temporal restriction prohibiting all contributions before the
six months leading up to an election; and a disgorgement
provision requiring candidates to distribute excess campaign
funds remaining at the end of an election. Following a bench
trial, the district court upheld the base limit, concluded
that Zimmerman lacked standing to challenge the aggregate
limit, and struck down the temporal restriction and the
disgorgement provision as unconstitutional abridgements of
First Amendment rights. For the following reasons, we affirm.
1997, voters in the city of Austin, Texas, approved a ballot
initiative to amend the City Charter and add various
restrictions on campaign contributions and expenditures. The
measure passed with 72% of the vote. It was spearheaded by a
group called "Austinites for a Little Less Corruption!
a/k/a/ No More Corruption!" and, according to testimony
presented at trial, was a response to the public perception
that large campaign contributions from land developers and
those with associated interests were creating a corrupt,
"pay-to-play" system in Austin politics.
the restrictions are at issue here. First, Article III,
§ 8(A)(1)- the base contribution limit-prohibits
candidates for mayor or city council from accepting campaign
contributions of more than "$300 per contributor per
election from any person, " with that amount to be
adjusted annually for inflation. Austin, Tex. Code, Art. III,
§ 8(A)(1). At the time this suit was filed, the
applicable limit was $350. Second, § 8(A)(3)-the
aggregate contribution limit-prohibits candidates from
accepting "an aggregate contribution total of more than
$30, 000 per election, and $20, 000 in the case of a runoff
election, from sources other than natural persons eligible to
vote in a postal zip code completely or partially within the
Austin city limits, " (which the parties refer to as the
"zip code envelope"). Id. § 8(A)(3).
Those amounts are also subject to adjustment for inflation,
and were $36, 000 and $24, 000, respectively, at the time
this suit was filed. Third, § 8(F)(2)-the temporal
restriction-prohibits candidates or officeholders from
soliciting or accepting political contributions except for
during the 180 days before an election. Id. §
8(F)(2). Finally, § 8(F)(3)-the disgorgement
provision-requires candidates to "distribute the balance
of funds received from political contributions in excess of
any remaining expenses" to the candidate's
contributors, a charitable organization, or the Austin Fair
Campaign Fund. Id. § 8(F)(3). Candidates may,
however, retain up to $20, 000 "for the purposes of
officeholder expenditures." Id. § 8(F)(6).
become relevant, Texas law distinguishes between
"campaign contributions" and "officeholder
contributions." "Campaign contributions" are
contributions "to a candidate or political committee
that [are] offered or given with the intent that [they] be
used in connection with a campaign for elective office or on
a measure." Tex. Elec. Code § 251.001(3).
"Officeholder contributions" are contributions
"to an officeholder or political committee that [are]
offered or given with the intent that [they] be used to
defray" officeholder expenses. Id. §
251.001(4). The catchall phrase "political
contribution" includes both campaign contributions and
officeholder contributions. Id. § 251.001(5).
Section 8(A)(1) of Austin's Charter refers to either
"campaign contributions, " Austin, Tex. Code, Art.
III, § 8(A)(1), or "contribution[s]"
generally, id. § 8(A)(3). Section 8(F), which
specifically states that it incorporates the definitions set
forth in the Texas Election Code, id. §
8(F)(1), refers to "political contributions."
Id. § 8(F)(2)-(6).
Zimmerman ran for the District 6 seat on Austin's city
council in 2014. District 6, located in northwest Austin, had
an estimated population of 92, 721 in 2014, with 70, 808
eligible voters. Six candidates competed for the District 6
seat. Zimmerman won the general election and the ensuing
runoff. After serving a two-year term, he ran for re-election
in 2016 and lost.
initiated this lawsuit in July 2015, alleging that the four
provisions of the Austin City Charter enumerated above are
unconstitutional restrictions on free speech. After a bench
trial, the district court held that the base limit was
constitutional in light of the city's interest in
preventing quid pro quo corruption; that Zimmerman
did not have standing to challenge the aggregate limit
because he did not come close to reaching the relevant
limits; that the temporal restriction was an unconstitutional
limit on contributions because the city had failed to show
that it was sufficiently tailored to serve an interest in
preventing quid pro quo corruption; and that the
disgorgement provision was an unconstitutional restriction on
expenditures because the city had failed to show that it was
the least restrictive means of preventing quid pro
quo corruption. The district court permanently enjoined
Austin from enforcing the temporal restriction and the
disgorgement provision. The parties timely cross-appealed the
rulings adverse to them.
standard of review for a bench trial is well established:
findings of fact are reviewed for clear error and legal
issues are reviewed de novo." Guzman v.
Hacienda Records & Recording Studio, Inc., 808 F.3d
1031, 1036 (5th Cir. 2015) (quoting One Beacon Ins. Co.
v. Crowley Marine Servs., Inc., 648 F.3d 258, 262 (5th
Cir. 2011)). "A finding of the trial judge 'is
clearly erroneous when although there is evidence to support
it, the reviewing court on the entire evidence is left with
the definite and firm conviction that a mistake has been
committed.'" Id. (quoting Anderson v.
City of Bessemer City, 470 U.S. 564, 573 (1985)).
Accordingly, we review the trial judge's factual findings
with great deference, and cannot reverse them simply because
we would reach a different conclusion. See id.
"Where there are two permissible views of the evidence,
the factfinder's choice between them cannot be clearly
erroneous." Anderson, 470 U.S. at 574.
first challenges the district court's decision regarding
the $350 base limit on campaign contributions. He contends that
the base limit is subject to strict scrutiny as either a
content-based restriction on speech or an indirect burden on
campaign expenditures and that it fails to pass muster under
that stringent standard. Alternatively, he contends that even
if strict scrutiny does not apply, the limit is not justified
by a sufficiently important governmental interest and, even
if it were, it is not sufficiently tailored to that interest.
We disagree on all points.
the limit is not a content-based restriction on speech.
Zimmerman argues that the base limit applies only to campaign
contributions, but not officeholder contributions, because
the language of the base limit refers only to "campaign
contributions, " while other provisions in the Charter
refer more broadly to "political
contributions"-which, under the Texas Election Code,
includes both "campaign contributions" and
"officeholder contributions." According to his
argument, that leaves officeholders free to collect unlimited
amounts for the purpose of defraying officeholder expenses,
including the production and dissemination of constituent
newsletters, see Austin, Tex. Code § 2-2-41
(stating that officeholders may use funds from officeholder
accounts for the purpose of "newsletters"). On that
basis, Zimmerman argues that because a contributor can give
only $350 to fund campaign speech but can give an unlimited
amount to fund a newsletter describing an incumbent's
achievements, the base limit constitutes a content-based
restriction on speech.
responds that the base limit draws no such distinction
between campaign contributions and officeholder
contributions. It points first to subsection (G) of Article
III, Section 8 of the Charter, which provides that
"[a]ny incumbent mayor or councilmember is subject to
the regulations applied to candidates for the office he or
she holds." Austin, Tex. Code, Art. III, § 8(G). It
also points to subsection (F), the only subsection of Article
III, § 8 that states that its terms "have the same
meaning they have in Title 15 of the Texas Election
Code." Id. § 8(F). Because the base limit
appears in subsection (A), Austin argues that it does not
incorporate the definitions from the Texas Election Code and
that, although subsection (A) refers only to "campaign
contributions, " it is intended to reach any
contribution to a candidate or incumbent officeholder.
Finding Austin's interpretation to be a reasonable
interpretation of the Charter, and one that avoids a possible
constitutional conflict, we defer to it. See Voting for
Am., Inc. v. Steen, 732 F.3d 382, 387 (5th Cir. 2013)
("We defer to [a city's] interpretation of how the
law is to be enforced, so long as it does not conflict with
the statutory text." (quoting Voting for Am., Inc.
v. Andrade, 488 Fed.Appx. 890, 895 (5th Cir. 2012)));
id. ("Our task as a federal court is, to the
extent possible, to construe the provisions to avoid a
constitutional conflict." (quoting Voting for Am.,
Inc., 488 Fed.Appx. at 895)). In light of that
interpretation, the base limit does not constitute a
content-based regulation on speech.
second argument for strict scrutiny is more easily disposed
of. He contends that the base limit burdens expenditures and
that burdens on expenditures, even indirect ones, are subject
to strict scrutiny. See, e.g., Ariz. Free Enter.
Club's Freedom Club PAC v. Bennett, 564 U.S. 721,
736-40, 748 (2011) (applying strict scrutiny to law that
indirectly burdened expenditures by penalizing personally
financed candidates for spending above a certain threshold).
In some vague sense, of course, contribution limits
indirectly burden expenditures. You have to raise money to
spend it, and contribution limits mean that you cannot raise
as much from any one contributor. But the Supreme Court has
been clear that contribution limits are analytically distinct
from expenditure limits, create a far lesser burden on
speech, and, for that reason, are subject to less searching
scrutiny. See FEC v. Colo. Republican Fed. Campaign
Comm'n, 533 U.S. 431, 437 (2001) (noting "line
between contributing and spending"); FEC v. Mass.
Citizens for Life, Inc., 479 ...