Appeals from the United States District Court for the Western
District of Texas
PETITION FOR REHEARING AND REHEARING EN BANC (Opinion:
February 1, 2018, 881 F.3d 378)
SMITH, BARKSDALE, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON UNITED STATES CIRCUIT JUDGE
Petition for Rehearing is DENIED and the court having been
polled at the request of one of its members, and a majority
of the judges who are in regular active service and not
disqualified not having voted in favor (Fed. R. App. P. 35
and 5th Cir. R. 35), the Petition for Rehearing En Banc is
en banc poll, two judges voted in favor of rehearing (Judges
Jones and Ho) and twelve judges voted against rehearing
(Chief Judge Stewart and Judges Smith, Dennis, Clement, Owen,
Elrod, Southwick, Haynes, Graves, Higginson, Costa, and
C. HO, Circuit Judge, with whom EDITH H. JONES, Circuit
Judge, joins as to Parts I and II, dissenting from denial of
rehearing en banc:
unfortunate trend in modern constitutional law is not only to
create rights that appear nowhere in the Constitution, but
also to disfavor rights expressly enumerated by our Founders.
See, e.g., Silvester v. Becerra,
138 S.Ct. 945 (2018) (Thomas, J., dissenting from denial of
certiorari). This case reinforces this regrettable pattern.
is no more quintessentially American principle than the right
of the people to participate in their own governance. The
First Amendment protects the freedom of speech, and that
freedom emphatically includes the right to speak about who
our elected leaders should and should not be. This
foundational American liberty includes not only the freedom
to engage in one's own political speech, but also the
freedom to support like-minded candidates for office.
First Amendment therefore protects campaign contributions.
For example, in Randall v. Sorrell, the Supreme
Court invalidated various campaign contribution limits
imposed by the State of Vermont. 548 U.S. 230 (2006). That
included a limit of $300 per election cycle-that is, $150 per
election (primary and general), or $215 in 2015 dollars-for
state senators representing between 20, 000 and 120, 000
people. Id. at 236-38 (plurality); see also
Joint App'x at 21-22, Randall, 548 U.S. 230
(Nos. 04-1528, 04-1530, 04-1697), 2005 WL 3477006, at *55-56,
case involves a similarly low contribution limit of $350 per
election, in 2015 dollars, for city council members
representing fewer than 100, 000 people in Austin, Texas.
Zimmerman v. City of Austin, 881 F.3d 378, 387 &
n.3 (5th Cir. 2018). For several reasons, we should have
granted rehearing en banc and held that the Austin
contribution limit violates the First Amendment.
contributions are not personal gifts-they are donations to
support and defray the costs of campaign speech.
See, e.g., FEC v. Mass. Citizens for
Life, Inc., 479 U.S. 238, 261 (1986)
("[I]ndividuals contribute to a political organization
in part because they regard such a contribution as a more
effective means of advocacy than spending the money under
their own personal direction."); McCormick v. United
States, 500 U.S. 257, 272 (1991) ("[E]lection
campaigns are financed by private contributions or
expenditures, as they have been from the beginning of the
the Supreme Court has carefully delimited the narrow
circumstances in which the government may permissibly
interfere with campaign contributions. In fact, the only
legitimate government interest for limiting campaign
contributions is preventing unlawful quid pro quo
corruption or the appearance thereof. McCutcheon v.
FEC, 134 S.Ct. 1434, 1450 (2014) (plurality). And as the
Court has made ...