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Zimmerman v. City of Austin

United States Court of Appeals, Fifth Circuit

April 18, 2018

DONALD ZIMMERMAN, Plaintiff - Appellant Cross-Appellee
v.
CITY OF AUSTIN, TEXAS, Defendant-Appellee Cross-Appellant

          Appeals from the United States District Court for the Western District of Texas

         ON PETITION FOR REHEARING AND REHEARING EN BANC (Opinion: February 1, 2018, 881 F.3d 378)

          Before SMITH, BARKSDALE, and HIGGINSON, Circuit Judges.

          STEPHEN A. HIGGINSON UNITED STATES CIRCUIT JUDGE

         The 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 DENIED.

         In the 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 Willett).

          JAMES 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:

         The 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.

         There 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.

         The 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, 79.

         This 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.

         I.

         Campaign 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 Nation.").

         Accordingly, 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 ...


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