Case 1:15-cv-00628-LY Document 67 Filed 07/20/16 Page 1 of 18

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

DONALD ZIMMERMAN,
PLAINTIFF,

§
§
§

V.

§

CAUSE NO. 1:15-CV-628-LY

§

CITY OF AUSTIN,

§

DEFENDANT.

§

FINDINGS OF FACT AND CONCLUSIONS OF LAW
On December 14, 2015, the court called the above styled and numbered cause for

bench trial. Plaintiff Donald Zimmerman appeared in person and through counsel. The City

of Austin appeared through counsel. The parties concluded their presentations of evidence on
December 15, 2015, and subsequently submitted po st-trial briefs. Having carefully considered
the pleadings, exhibits, trial testimony, arguments of counsel, and the applicable law, the court
makes the following findings of fact and conclusions of law.1
The court has jurisdiction over this case pursuant to Title 28 of the United States Code,
Sections 1331 and 1343. This civil action arises under the First and Fourteenth Amendments

of the United States Constitution and Title 42 of the United States Code, Section 1983.
I. BACKGROUND
In 1997, the citizens of the City of Austin (the "City") voted with a 72% majority to
add to the Austin City Charter Article III, Section 8, governing financing of Austin City

Council campaigns. In 2006, 68% of Austin voters voted to revise Article III, Section
inter alia:

8

to,

raise the individual contribution limit to $300, indexed for inflation; raise the

All fmdings of fact contained herein that are more appropriately considered
conclusions of law are to be so deemed. Likewise, any conclusion of law more appropriately
considered a finding of fact shall be so deemed.

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aggregate limit on contributions from groups and individuals outside the City to $30,000 in a
general election and $20,000 in a runoff election, each indexed for inflation; and modify the

requirements for the disbursement of campaign funds after an election. The provisions remain
in effect today.

By this suit, Zimmerman challenges these provisions of the 2006 version of Article III,
Section

8

of the Austin City Charter. Zimmerman was elected to serve on the Austin City

Council in 2014, and is a candidate for re-election in the City's general election to be held

November 8, 2016.

The challenged provisions are applicable to Zimmerman's re-election

campaign. Each challenged provision is discussed individually below. Zimmerman seeks a

declaratory judgment that the challenged provisions are unconstitutional and a permanent
injunction enjoining the City from enforcing the provisions.

II. ANALYSIS
"Discussion of public issues and debate on the qualifications of candidates are integral
to the operation

of the system of government established by our Constitution." Buckley

v.

Valeo, 424 U.S. 1, 14 (1976). The First Amendment affords the broadest protection to such

political expression in order to assure the "unfettered interchange of ideas for the bringing
about of political and social changes desired by the people." Roth

v.

United States, 354 U.S.

476, 484 (1957); see also Buckley, 424 U.S. at 14. "[T]here is practically universal agreement

that a major purpose of [the First] Amendment was to protect the free discussion of

governmental affairs." Mills

v.

Alabama, 384 U.S. 214, 218 (1966). "This of course includes

discussions of candidates. . . and all such matters relating to political processes." Id. at 218-19.
The United States has a "profound national commitment to the principle that debate on public

issues should be uninhibited, robust, and wide-open." New York Times Co.
2

v.

Sullivan, 376

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U.S. 254, 270 (1964).

"In a republic where the people are sovereign, the ability of the

citizenry to make informed choices among candidates for office is essential, for the identities

of those who are elected will inevitably shape the course that we follow as a nation." Buckley,
424 U.S. at 14-15. "[I]t can hardly be doubted that the constitutional guarantee [of the First

Amendment] has its fullest and most urgent application precisely to the conduct of campaigns
for political office." Monitor Patriot Co.

v.

Roy, 401 U.S. 265, 272 (1971).

To this end, the First Amendment protects political association as well as political

expression. Buckley, 424 U.S. at 15. Buckley and its progeny instruct that we should give

varying levels of constructional scrutiny to campaign-finance regulations depending on the
type of regulation at issue in order to "draw the constitutional line between the permissible

goal of avoiding corruption in the political process and the impermissible desire simply to limit

political speech." McCutcheon v. Fed. Election Comm 'n, 134 5. Ct. 1434, 1441 (2014).
"[E]xpenditure limitations. . .represent substantial rather than merely theoretical

restraints on the quantity and diversity of political speech." Buckley, 424 U.S. at 21. These
restrictions "limit political expression 'at the core of our electoral process and of the First

Amendment freedoms." Id. at 39 (citing Williams

v.

Rhodes, 393 U.S. 23, 32 (1968)). "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."
Buckley, 424 U.S. at 19. Expenditure limitations therefore are subject to strict scrutiny, "the

exacting scrutiny applicable to limitations on core First Amendment rights of political

expression." Id. at 44-45. A regulation limiting expenditures may only be upheld if the

regulation "promotes a compelling interest and is the least restrictive means to further the

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articulated interest." McCutcheon, 134 S. Ct. at 1444. "Precision of regulation must be the
touchstone in an area so closely touching our most precious freedoms." NAACP

v.

Button, 371

U.S. 415, 438 (1963).

"The right to participate in democracy through political contributions is protected by
the First Amendment, but that right is not absolute." McCutcheon, 134 S. Ct. at 1441. "By

contrast with a limitation upon expenditures for political expression, a limitation upon the
amount that any one person or group may contribute to a candidate or political committee

entails only a marginal restriction upon the contributor's ability to engage in free
communication" and therefore receives a lessened, but nonetheless rigorous, level of scrutiny.
Buckley, 424 U.S. at 20.

Contribution limitations may be upheld if the regulating

governmental unit "demonstrates a sufficiently important interest and employs means closely
drawn to avoid unnecessary abridgment of associational freedoms." Id. at 25.

A closely

drawn limitation on campaign contributions "leav[es] persons free to engage in independent
political expression, to associate actively through volunteering their services, and to assist to a
limited but nonetheless substantial extent in supporting candidates and committees with

financial resources" and "do [es] not undermine to any material degree the potential for robust
and effective discussion

of candidates and campaign issues by individual citizens, associations,

the institutional press, candidates, and political parties." Id. at 28-29.

Under each of the tests, the governmenthere the

Cityhas

the burden of

demonstrating the constitutionality of the regulations. McCutcheon, 134 S. Ct. at 1452. With
regard to both expenditure and contribution limitations, the Supreme Court has identified only
one legitimate governmental interest: preventing quid pro quo corruption or its appearance. Id.
at 1450-5 1. "That Latin phrase captures the notion

of a direct exchange of an official act for

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money." Id. at 1441; see also McCormick
McDonnell

v.

v.

United States, 500 U.S. 257, 266 (1991);

United States, 579 U.S. ____, Case No. 15-474, slip op. at 22 (2016) (defining

quid pro quo corruption as "the exchange of a thing of value for an official act").
Governmental entities "may not regulate contributions simply to reduce the amount of money
in politics, or to restrict the political participation

of some in order to enhance the relative

influence of others. McCutcheon, 134 5. Ct. at 1441. "[Gjovernment regulation may not

target the general gratitude a candidate may feel toward those who support him or his allies, or
the political access such support may afford."

Id.

"Spending large sums of money in

connection with elections, but not in connection with an effort to control the exercise of an

officeholder's official duties, does not give rise to...quid pro quo corruption." Id. at 1450. In
determining whether the City has demonstrated a legitimate interest in preventing quid pro quo
corruption or its appearance, the court cannot "accept[] mere conjecture as adequate to carry a
First Amendment burden." Id. at 1452.

A. Base Limit

Zimmerman first challenges the provision of the Austin City Charter that prohibits a
candidate for Mayor of Austin or the Austin City Council from accepting more than $3002
from any one person per election. Austin City Charter, Art. III,

§

8(A)(1) (the "Base Limit").

Zimmerman argues the Base Limit is a content-based restriction and therefore subject
to strict scrutiny because it does not apply to contributions to incumbent candidates for

officeholder expenses. See Reed

v.

Town

of Gilbert, Ariz.,

135 5. Ct. 2218, 2231 (2015).

Regulation of speech is content-based if it applies to particular speech because of the topic
discussed or the idea or message expressed.
2

Id. at 2227.

Indexed for inflation. See Austin City Charter, Art. III,

§

In Reed, the Supreme Court

8(A)(1).

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concluded that restrictions on different categories of signs, such as "ideological signs," versus

"political signs," were content-based regulations and therefore subject to strict scrutiny. Id.
The Base Limit at issue in this case is dissimilar from the regulations in Reed. The
Base Limit applies to all campaign contributions and does not distinguish between types of

speech or ideas conveyed. The Base Limit does not address the content of the regulated

speech in any manner.

The court concludes that the Base Limit is not a content-based

restriction.
The Base Limit is properly construed as a restriction on campaign contributions and is

therefore subject to the "closely-drawn" test. See McCutcheon, 134 S. Ct. at 1445. The City
has the burden of demonstrating that the Base Limit serves "a sufficiently important interest
and employs means closely drawn to avoid unnecessary abridgement of associational

freedoms." See Buckley, 424 U.S. at 25. In Buckley, the Supreme Court upheld a $1000 limit
on contributions to candidates for federal office. Id. at 143. The Court found that "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 $1000
contribution ceiling." Id. at 29. The Court reasoned that "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." Id. at 26-27. Further,
"[o] f almost equal concern as the danger

of actual quid pro quo arrangements is the impact of

the appearance of corruption stemming from public awareness of the opportunities for abuse
inherent in a regime of large individual fmancial contributions." Id. at 27. The Supreme Court

later stated in Nixon

v.

Shrink Missouri Government PAC that "there is little reason to doubt

that sometimes large contributions will work actual corruption of our political system, and no

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reason to question the existence of a corresponding suspicion among voters." 528 U.S. 377,
395 (2000).

The City presented evidence at trial that there was a perception of corruption in Austin

before the City adopted a limit on campaign contributions in 1997. David Butts, a campaign

consultant involved in Austin city elections since 1977, testified that large contributions, in the
$1 000-$2500

range, sometimes as high as $10,000, from developers, engineering firms,

banking institutions, architects, and law firms created a widespread perception in the
community that economic interests, such as those in the land development arena, had

"inordinate influence" over the Austin City Council and were "corrupting the system." Fred
Lewis, who worked on campaigns for the Austin City Council and Mayor in the early 1 990s,

testified that the City Council was seen as a "pay-to-play system," where a contributor "paid in
contributions and in exchange. . . got development rights." Lewis also testified that he was

involved when the City Council proposed increasing the Base Limit in 2006, and that the City

Council's goal in raising the limit was to balance between "allow[ing] candidates to raise more
funds to get their message out with the need to prevent the appearance of

quid pro quo

corruption." Furthermore, the fact that 72% of Austin voters voted in favor of the Base Limit
in 1997 suggests that at least the perception

existed in Austin at that time.

See Nixon,

of corruption as a result of large contributions

528 U.S. at 394 ("And although majority votes do

not, as such, defeat First Amendment protections, the statewide vote on [contribution limits]

certainly attested to the perception relied upon here: An overwhelming 74 percent of the voters

of Missouri determined that contribution limits are necessary to combat corruption and the
appearance thereof.") (internal citations omitted). The court concludes the Base Limit serves

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the City's sufficiently important interest of addressing quid pro quo corruption and its
appearance.
Zimmerman further argues that the Base Limit is not closely drawn as a means of

addressing the appearance of quid pro quo corruption. The Supreme Court stated in Buckley
that "a limitation upon the amount that any one person or group may contribute to a candidate
or political committee entails only a marginal restriction upon the contributor's ability to
engage in free communication."

424 U.S. at 20.

"Even a significant interference with

protected rights of political association may be sustained if the State demonstrates a
sufficiently important interest and employs means closely drawn to avoid unnecessary

abridgment of associational freedoms."

Id. at 25 (internal citations omitted).

The Court

specifically rejected the contention that $1000 or any other amount was a constitutional
minimum below which legislatures could not regulate. Id.; see also Nixon, 528 U.S. at 397.
The Court instead asked whether there was any showing that the limits were so low as to

impede the ability of candidates to amass the resources necessary for effective advocacy.
Buckley, 424 U.S. at 21.

Expounding on Buckley, the Supreme Court in Nixon reversed the Eighth Circuit's

holding that a $275 limit on contributions to candidates for state representative was
unconstitutional. 528 U.S. at 397. The Court explained the appropriate inquiry is "whether the
contribution limitation [is] so radical in effect as to render political association ineffective,
drive the sound of a candidate's voice below the level of notice, and render contributions

pointless." Id.
The Supreme Court later stated in Randall v. Sorrell, "[w]e cannot determine with any

degree of exactitude the precise restriction necessary to carry out [a contribution limit's]

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legitimate objectives."

548 U.S. 230, 248 (2006).

"In practice, the legislature is better

equipped to make such empirical judgments, as legislators have particular expertise in matters

related to the costs and nature of running for office." Id. (internal citations omitted) (holding
unconstitutional statutes limiting contributions to $200 in gubernatorial race and significantly

lower amounts in state Senate and House of Representatives races).
This court recognizes the tautology that the more money a candidate has, the more he

or she will be able to communicate with the public. However, Zimmerman's evidence does
not reveal that the Base Limit renders political association ineffective or drives candidates'

voices below the level of notice. Zimmerman called several political consultants as witnesses
to show that there are many expensive elements of campaigns, from lists

of email addresses of

potential donors to the fees of political consultants themselves. Zimmerman also called Marco
Mancillas, an unsuccessful candidate for Austin City Council in the 2014 election. Mancillas

testified that there were people that would have donated more than the amount permitted by
the Base Limit to his campaign. He posited that would have allowed him to send out more
direct mail, make more phone calls, and have more people canvassing. However, Mancillas
also testified that he spent about $24,000 on his 2014 campaign, roughly $300 less than

Zimmerman, who won in a different district. Further, Mancillas confirmed that he received
only 77 votes, and a candidate that spent under $600 received 224 votes, almost three times as

many as Mancillas, suggesting that inability to raise more money from individual donors might
not have been the source of Mancillas ' s difficulty.
Moreover, the City presented testimony from former Austin City Councilmember

Laura Morrison that the Base Limit was not an impediment to running a full-fledged campaign
for Austin City Council in 2008. Morrison testified that being constrained by the Base Limit

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meant that she was "out there talking to a heck of a lot more people than just, say, one person
who gave me $100,000; that's good for democracy."

The court concludes that the City's interest in preventing quid pro quo corruption and
its appearance justifies the limited effect upon First Amendment freedoms caused by the Base

Limit. With regard to the specific amount of the Base Limit, the court gives deference to the

legislative branch of government, here the City, which is "better equipped to make.. .empirical

judgments.. .related to the costs and nature of running for office." See Randall, 548 U.S. at
248 (2006).

Zimmerman has not shown that the Base Limit of $300, indexed for inflation, is so low
as to impede the ability

of candidates to amass the resources necessary for effective advocacy.

See Buckley, 424 U.S. at 21.

The court concludes that the Base Limit, like the restriction in Buckley, has only a

limited effect on Zimmerman's First Amendment freedom, that the City's legitimate interests
are served by the limit, and the limit therefore passes constitutional muster.
B. Blackout period

Zimmerman next challenges the provision of the Austin City Charter that prohibits
candidates for Mayor of Austin or the Austin City Council from soliciting or receiving

contributions until 180 days before Election Day. Austin City Charter, Art. III,

§

8(F)(2) (the

"Blackout Period")
Temporal bans on contributions are subject to the "closely-drawn" test. See Catholic

Leadership Coal.

of Tex. v.

Reisman, 764 F.3d 409, 432 (5th Cir. 2014). The City must show

that the Blackout Period serves a sufficiently important interest and employs closely drawn

means to do so. Id. ("Even though the aggregate limit at issue here is only temporary, and,
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after the 60-day window passes, the general-purpose committee is largely free to spend as it
pleases, Texas must still show that the 60-day, 500dollar limit employs means closely

drawn."); see also McCutcheon, 134 S. Ct. at 1452 (holding aggregate limits on total
contributions to all candidates in election are not closely drawn to avoid unnecessary
abridgment of associational freedoms, reasoning that "once the aggregate limits kick in, they

ban all contributions of any amount"); Gordon
689 (S.D. Tex. 2015).

v.

City of Houston, Tex., 79 F. Supp. 3d 676,

In Catholic Leadership, the Fifth Circuit held unconstitutional a

provision of the Texas Election Code that prohibited a general-purpose committee from
engaging in more than $500 of political contributions during a 60-day window. 764 F.3d at
445. The court reasoned that a temporal restriction on contributions that "kicks in regardless

of the proximity.. .to a legislative session or a judicial election is vastly overbroad." Id. at 433.
In Thaiheimer, the Ninth Circuit upheld a ban on contributions to candidates outside of
a 12-month pre-election window. 645 F.3d at 1122. The court relied on the lower court's

reasoning that "contributions made near an election are clearer expressions of political speech,
whereas 'off-year contributions' are more likely linked to business the donor has before the
city, thus creating the appearance of quid pro quo 'corruption by the sale
1121; see also North Carolina Right to Life, Inc.

v.

of influence." Id.

at

Bartlett, 168 F.3d 705 (4th Cir. 1999)

(upholding statute placing hold on lobbyists' ability to contribute while legislature is in session
because hold prevents corruption and the appearance of corruption).
In Gordon, the United States District Court for the Southern District of Texas granted a

preliminary injunction enjoining enforcement of a temporal ban on candidates for city offices
soliciting or receiving contributions at all times except for nine months before an election and
four months after. 79 F. Supp. 3d at 690-91. The court concluded that the City of Houston

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failed to establish that the temporal ban advances the prevention of quid pro quo corruption or
its appearance because the city did not cite any evidence "showing how contributions given

before February 1st of an election year present a different threat of quid pro quo corruption or
its appearance from those given after February 1st." Id. at 691. This court finds the logic

of

Gordon persuasive.
Here, the City presented ample evidence that the Blackout Period is not a significant

burden on candidates' fundraising, including testimony from Lewis that the "vast majority" of
funds is raised within the three months immediately preceding an election, and testimony from

Morrison that she worked on matters other than fundraising to lay the groundwork for her

campaign until the Blackout Period was over. The City also presented testimony from Dr.

Jonathan Krasno, an Associate Professor of Political Science at Binghamton University, that
money flowing in before important votes is a "fairly standard concern."
The City, however, did not present evidence or argument to show how a contribution

made seven months before election day presents a different threat of quid pro quo corruption
than a contribution made three months before election day. See Gordon, 79 F. Supp. 3d at 691.
As Lewis testified, the Austin City Council is in session and voting on matters year-round, so

the danger that contributions would influence votes is no less a concern in the six-month

window in which fundraising is allowed than during any other time of the election cycle.
Further, the six-month window at issue here is more restrictive than the twelve-month window

addressed in Thaiheimer. See 645 F.3d at 1122. A contribution seven months before an
election is more likely to be intended for use in a candidate's campaign than an "off-year"

contribution more than twelve months before an election.

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Finally, the Base Limit is a more closely-drawn measure in place to limit contributions
to an amount that does not incentivize candidates to engage in quid pro quo corruption

regardless of when a contribution is made. See Catholic Leadership, 764 F.3d at 436 ("[The
state] advances no reason why more narrowly tailored base contribution limits.. .would not

similarly serve its interests."). The City has demonstrated neither that the Blackout Period
serves the City's sufficiently important interest of preventing quid pro quo corruption, nor that

the Blackout Period is closely drawn to avoid unnecessary abridgment of associational
freedoms. See Buckley, 424 U.S. at 25.
The court concludes that the City has not tied the Blackout Period to any sufficiently

important City interest, resulting in the ordinance being an infringement of Zimmerman's First
Amendment freedom of association.

C.

Aggregate Limit

Zimmerman also challenges the provision of the Austin City Charter that prohibits a
candidate for Mayor of Austin or Austin City Council from accepting more than
general election and

$2O,OOO

$3O,OOO

in a

in a runoff election from sources other than natural persons

eligible to vote in a zip code completely or partially within city limits of the City of Austin.

Austin City Charter, Art. III,

§

8(A)(3) (the "Aggregate Limit")

Both contributing persons and contributed-to candidates can have sufficient injuries-infact to challenge campaign-finance restrictions. Catholic Leadership, 764 F.3d at 423. To

establish standing, Zimmerman must show that: (1) he has suffered, or imminently will suffer,
a concrete and particularized injury-in-fact; (2) the injury-in-fact is fairly traceable to the

Indexed for inflation. See Austin City Charter, Art. III,

§

8(A)(3).

Indexed for inflation. See Austin City Charter, Art. III,

§

8(A)(3).

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defendant's conduct; and (3) a favorable judgment is likely to redress the injury-in-fact. Lujan
v.

Defs.

of Wild4fe, 504 U.S. 555, 560-61 (1992); Justice v. Hosemann,

771 F.3d 285, 291 (5th

Cir. 2014). The basic inquiry is whether the "conflicting contentions of the parties.. .present a

real, substantial controversy between parties having adverse legal interests, a dispute definite
and concrete, not hypothetical or abstract." Babbitt v. United Farm Workers Nat'! Union, 442

U.S. 289, 298 (1979). "To prove an injury in fact sufficient to raise a First Amendment facial

challenge.. .a plaintiff must produce evidence of an intention to engage in a course of conduct

arguably affected with a constitutional interest, but proscribed by statute." Nat'l Fed'n of the

Blind of Tex., Inc.

v.

Abbott, 647 F.3d 202, 209 (5th Cir. 2011). When a plaintiff has alleged

an intention to engage in a course

of conduct proscribed by statute that is arguably affected

with a constitutional interest, and there exists a credible threat of prosecution thereunder, he
should not be required to await and undergo prosecution as the sole means of seeking relief.

Id.

But "persons having no fears of state prosecution except those that are imaginary or

speculative, are not to be accepted as appropriate plaintiffs." Younger
42 (1971).

v.

Harris, 401 U.S. 37,

When plaintiffs "do not claim that they have ever been threatened with

prosecution, that a prosecution is likely, or even that a prosecution is remotely possible," they
do not allege a dispute susceptible to resolution by a federal court. Babbitt, 442 U.S. at 299.

In the 2014 City

of Austin election, the Aggregate Limit indexed for inflation was

$36,000 in the general election and $24,000 in the runoff Zimmerman received less than
$3,000 in the general election and less than $5,000 in the runoff election from sources other

than natural persons eligible to vote in a zip code completely or partially within Austin city
limits. In fact, only two of the more than 70 candidates in the general election received half or

more of the $36,000 limit, and only one candidate in the runoff election received half or more

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of the $24,000 limit. Zimmerman did not present evidence at trial demonstrating a likelihood
or a potential that he would come closer to reaching or exceeding the Aggregate Limit in a
subsequent election.
The court concludes that Zimmerman has not shown that he has or imminently will
suffer a concrete and particularized injury-in-fact fairly traceable to the Aggregate Limit.

Zimmerman therefore does not have standing to challenge the Aggregate Limit.
D. Dissolution Requirement

Finally, Zimmerman challenges the provision

of the Austin City Charter that requires

a

candidate for Mayor of Austin or the Austin City Council to distribute the balance of funds

received from political contributions in excess of any remaining expenses for the election no
more than 90 days after an election to (1) the candidate's contributors, (2) a charitable
organization, or (3) the Austin Fair Campaign Fund; except that a successful candidate (an
officeholder) may retain up to $20,000 for officeholder expenditures. Austin City Charter, Art.
III,

§

8(F)(3) (the "Dissolution Requirement")
The Eighth Circuit analyzed a similar provision in Shrink Missouri Government PAC v.

Maupin and determined the provision should be subject to strict scrutiny. 71 F.3d 1422, 1428
(8th Cir. 1995). The court reasoned that the dissolution provision could be interpreted as a
requirement to speak in the current election or as a restriction on expenditures in potential

future elections, and is subject to strict scrutiny in either case.

Id.; see also Wooley

v.

Maynard, 430 U.s. 705, 714 (1977) ("[T]he right of freedom of thought protected by the First
Amendment against state action includes both the right to speak freely and the right to refrain

from speaking at all."); McCutcheon, 134 S. Ct. at 1444 ("[E]xpenditure limits.. .may regulate
protected speech only if such regulation promotes a compelling interest and is the least
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restrictive means to further the articulated interest."). This court agrees that the Dissolution
Requirement is subject to strict scrutiny.
The Eighth Circuit struck down the dissolution provision at issue in Maupin because it

was not narrowly tailored to serve a compelling government interest. 71 F.3d at 1428. The
court rejected the state's argument that the dissolution requirement "ensur[es] the opportunity

of all citizens, not just those who have amassed large war chests in noncompetitive races, to
participate in the political process as candidates" and reasoned that "the contributor's political
free speech interests are not well served if a candidate is compelled (1) to waste campaign

contributions on unnecessary speech (in order to spend down the campaign's accumulated
assets) or (2) to turn over those contributions to the Missouri Ethics Commission or return

them to contributors." Id.
The City first argues Zimmerman does not have standing to challenge the dissolution

requirement because the amount of his outstanding debt exceeded the balance of his funds
remaining after the 2014 election. Zimmerman finished the 2014 race with approximately
$1,200 remaining, which required disposal in compliance with the Dissolution Requirement.
The City refers to Section 2-2-43 of the Austin City Charter to assert that a candidate must use

excess funds to pay down campaign debt. The provision reads:
The existence and amount of a campaign debt relating to a prior
campaign period shall be determined based on the actual outstanding
obligations of the candidate or campaign committee as of the date of the
election for which the debt is incurred, and all funds held by the candidate or
candidate's campaign committee in cash or bank accounts on that date shall be
considered an offset to the campaign debt.

Austin City Charter

§

2-2-43. This provision deals with calculation of campaign debt and does

not require that a candidate use excess campaign funds from the candidate's election to pay off

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debts. The fact that the amount Zimmerman's of outstanding debt exceeded the balance of his

remaining funds does not negate his standing to challenge the Dissolution Requirement.
The City also argues that the Dissolution Requirement serves the purpose of reducing

quid pro quo corruption or its appearance by preventing candidates from creating "war chests"
for later campaigns and discouraging people from coming in at the last minute and giving

money to the likely winner of the election. However, the City does not explain or present
evidence to show how a "war chest" or these last minute contributions implicate quid pro quo

corruption or its appearance.
In its brief, the City asserts that once it became clear that Morrison would win in the
2008 runoff election, she returned to her campaign office and found "envelopes full

of

contributions that came from erstwhile opponents," which "may have been legal,
but. . . certainly have a certain aroma to them, an aroma that could only be worse, in corruption
terms, without the individual limits." This is the type of "mere conjecture" the Supreme Court

has stated is not "adequate to carry the government's First Amendment burden." McCutcheon,
134 5. Ct. at 1452. "Spending large sums

of money in connection with elections, but not in

connection with an effort to control the exercise of an officeholder's official duties, does not
give rise to...quid pro quo corruption." Id. at 1450. "[G]overnment regulation may not target
the general gratitude a candidate may feel toward those who support him or his allies, or the

political access such support may afford." Id. at 1441.
And finally, the Base Limit is a more narrowly tailored measure that, as the City points
out, provides a protection from these last minute contributions being accepted by a candidate
as quid pro quo. See Catholic Leadership, 764 F.3d at 436 ("[The state] advances no reason

why more narrowly tailored base contribution limits. . .would not similarly serve its interests.")

17

 Case 1:15-cv-00628-LY Document 67 Filed 07/20/16 Page 18 of 18

The City has demonstrated neither that the Dissolution Requirement "promotes a compelling

interest," nor that it is the "least restrictive means to further the articulated interest."
McCutcheon, 134 S. Ct. at 1444.

The court concludes that the Dissolution Requirement is unconstitutional as an undue

restriction on Zimmerman's protected speech under the First Amendment.
E. Conclusion
The court finds and concludes that (1) the Base Limit is a constitutional regulation of

protected First Amendment activity, (2) the Blackout Period is unconstitutional under the First
Amendment, (3) Zimmerman does not have standing to challenge the Aggregate Limit, and
(4) Dissolution Requirement is unconstitutional under the First Amendment. The court will

render separately a final judgment enjoining the City from enforcing the Blackout Period and

the Dissolution Requirement.
SIGNED this

day of July, 2016.

LEE EAKEL
UN ED STATE DIST

II;1

CTJU GE