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April 19, 1996


The opinion of the court was delivered by: HOGAN


 In this action, the plaintiffs challenge the constitutionality of a District of Columbia statute restricting campaign contributions to candidates for local office. Because the contribution limits improperly infringe upon candidates' and voters' First Amendment rights, the Court will enjoin enforcement of the statute.


 A. Initiative 41

 In 1992, District of Columbia voters approved the enactment of Initiative 41, now codified at D.C. Code § 1-1441.1 (a)&(b) (Supp. 1995). Initiative 41 prohibits contributors from giving more than $ 100 per election cycle to candidates for District-wide office or more than $ 50 per cycle to candidates for ward office or political party posts. The law also prohibits any contributor from giving more than $ 600 to all candidates in any election. These new limits replace substantially higher caps, which ranged from $ 200 to $ 2000 per contributor per candidate, depending upon the race. *fn1"

 B. The Plaintiffs' Claims

 The plaintiffs, who play a variety of roles in the District of Columbia's electoral process, challenge the constitutionality of Initiative 41 on several grounds. They argue that the new limits deprive them of their rights of freedom of speech and freedom of association by (1) preventing them from making or receiving contributions in excess of the limits; (2) limiting the amount of information they can receive about candidates; and (3) restricting the rights of political parties to decide what contribution limits should apply to intra-party races.

 The plaintiffs also argue that they are deprived of their First Amendment freedoms without equal protection of the laws because the caps unfairly burden (1) challengers who did not have an opportunity to accept larger contributions before Initiative 41 took effect, (2) minority-party and independent candidates; (3) candidates without personal wealth; (4) candidates who must compete in contested races in both primary and general elections; and (5) challengers in general. *fn2"

 Finally, the plaintiffs restate the above constitutional claims by alleging that the caps violate the District of Columbia Self-Government and Governmental Reorganization Act of 1973 (the "Home Rule Charter"). That provision, set forth at D.C. Code § 1-204 (1981), provides that all District of Columbia statutes must be consistent with the United States Constitution.

 C. The Parties

 There are five individual and four organizational plaintiffs. John Harvey, Ron Magnus, and Vincent Orange are suing as both contributors and candidates for public office. In 1994, Harvey ran for Council Member At-Large and Magnus ran for Ward 5 Council Member. Orange ran for Council Chair in 1990 and 1993 and for Ward 5 Council Member in 1994. Ronald E. Hampton is suing as a contributor and as the Executive Director of the National Black Police Association. Katherine S. Broderick is suing as a contributor and voter. The Libertarian Party and the District of Columbia Chapter of the Republican National African American Council ("DC-RNAC") are both suing as political organizations interested in controlling the terms of party primary elections without the interference of governmentally imposed contribution caps. These two organizations, along with the National Black Police Association and the American Civil Liberties Union of the National Capital Area, are also suing on behalf of their members who vote, run for office, and contribute to political campaigns in the District of Columbia.

 The defendants are the District of Columbia and the District's Board of Elections and Ethics. The latter is responsible for the implementation and enforcement of Initiative 41.

 Three other organizations had moved to intervene as defendants, but the Court denied their motions and allowed them to participate as amici. These are Common Cause, Common Cause/District of Columbia, and the Association of Community Organizations for Reform Now, Inc. ("ACORN").

 D. Procedural History

 After denying the plaintiffs' motion for a temporary restraining order, the Court heard argument on the plaintiffs' motion for preliminary injunctive relief on July 21, 1994. The resulting opinion denying the motion is published at National Black Police Association v. District of Columbia Board of Elections and Ethics, 858 F. Supp. 251 (D.D.C. 1994).

 In that opinion, the Court made an initial assessment of the merits of the plaintiffs' claims and balanced them against the other injunctive factors set forth in WMATA v. Holiday Tours, 182 U.S. App. D.C. 220, 559 F.2d 841, 844 (D.C. Cir. 1977). The Court did not dispose entirely of any of the plaintiffs' claims, but did find that the likelihood of success was not clear enough to warrant preliminary injunctive relief. For example, the Court noted that the caps imposed by Initiative 41 seemed quite restrictive, but decided that it could not determine with certainty whether the caps were so low that they stifled candidates' ability to spend money on their campaigns. 858 F. Supp. at 258. Similarly, the Court stated that it did not have enough information to weigh the governmental interest in limiting contributions or to assess the appropriateness of the caps in serving that interest. 858 F. Supp. at 259. The Court also declined to assess the plaintiff's claims regarding voters' right to receive information and political parties' right to set their own contribution caps for party primaries. Id. Finally, the Court rejected the plaintiff's Equal Protection Arguments, at least "at that stage," because the plaintiffs had shown no invidious discrimination or discriminatory intent. Id. at 261-62 and n. 24.

 In February 1996, the Court heard evidence in a bench trial lasting five days. The parties and amici then submitted further briefs and returned for final argument. The following opinion is based upon the Court's consideration of the evidence presented at trial and the various arguments advanced by the parties and amici in their papers and in court.


 A. Legal Standard

 The Court must evaluate the plaintiffs' First Amendment claims in light of Buckley v. Valeo, 424 U.S. 1, 46 L. Ed. 2d 659, 96 S. Ct. 612 (1976). In that case, the Supreme Court considered the constitutionality of various provisions of the Federal Election Campaign Act of 1971 ("FECA"), including a cap on campaign contributions.

 The Buckley Court decided that contribution caps can burden First Amendment rights, but pointed out that such limits are not as constitutionally suspect as expenditure caps. It explained that the latter


necessarily reduce[] the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached. This is because virtually every means of communicating ideas in today's mass society requires the expenditure of money.

 Id. at 18-19. However, by contrast, the Court noted that contribution limits


entail[] only a marginal restriction upon the contributor's ability to engage in free communication. 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. The quantity of communication by the contributor does not increase perceptibly with the size of his contribution. . . . A limitation on the amount of money a person may give to a candidate or campaign organization thus involves little direct restraint on his political communication.

 Id. at 20-21. See also id. at 23 (concluding that FECA's "expenditure ceilings pose significantly more severe restrictions on protected freedoms of political expression and association than do its limitations on financial contributions.")

 It appears that the Buckley Court concluded no further examination was necessary if a contribution cap involved only the abovementioned "little direct restraint" on First Amendment rights. However, the Court went on to note that "contribution restrictions could have a severe impact on political dialogue if the limitations prevented candidates and political committees from amassing the resources necessary for effective advocacy." Id. at 21. It is unclear what analysis is appropriate if this "severe impact" exists; in Buckley, the Court found that there was no such impact and did not scrutinize FECA's contribution caps further. It conducted no balancing of the governmental interests in imposing such caps against the appropriate breadth of the caps. Id.

 The parties disagree as to whether the Court should apply "strict scrutiny" or some more relaxed test. This dispute has arisen in other cases as well. See, e.g., Carver v. Nixon, 72 F.3d 633, 636-37 (8th Cir. 1995). The conflict arises from the broad range of language used in Buckley. In some places, the Court suggests that all First Amendment activity should be afforded maximum protection, see, e.g., 424 U.S. at 14 (First Amendment "affords the broadest protection to political expression"); id. at 14-15 (First Amendment "has its fullest and most urgent application" to political campaigns). However, these excerpts stand in contrast to the Court's view, discussed above, that contribution caps are a relatively minor threat to First Amendment rights.

 In the end, none of these passages from Buckley resolves the question of exactly how to examine contribution caps once they have been determined to have a severe impact upon free speech rights. For purposes of this case, however, the Court must take the next analytical step and choose the appropriate standard. The best option is the balancing test set forth in Buckley's discussion of freedom of association. There, the Court held that a "significant interference" with association rights could be sustained only if the defendants "demonstrated a sufficiently important interest and employed means closely drawn to avoid unnecessary abridgment of constitutional freedoms." Id. at 25. Because the freedoms of speech and association are closely intertwined in the political setting, it is appropriate to use this test in a freedom of speech analysis. See also Carver v. Nixon, 72 F.3d at 636-38 (reaching same conclusion to apply test articulated in Buckley, but without analytic distinction between freedom of association and freedom of speech).

 B. Discussion

 1. Severe Impact. The caps established by Initiative 41 do have a severe impact on political dialogue because they prevent candidates from amassing the resources necessary for effective advocacy. The exhibits presented by both parties support this conclusion and highlight three principal facts. First, a large percentage of contributors used to give amounts in excess of the limits now imposed by Initiative 41. Second, candidates' total fundraising receipts have declined since the enactment of Initiative 41. Third, and most critically, the lower amounts now raised are insufficient to promulgate candidates' political messages, particularly since some campaign resources are now redirected toward fundraising. These points are discussed in turn.

 First, it is clear that Initiative 41 has changed the pattern of contribution activity in the District of Columbia. Before the caps were in place, many contributors gave more than $ 50 or $ 100 to a candidate. Though the record does not contain a complete listing of all contributions made to all candidates in the 1990 election cycle, there is sufficient evidence to show that contributions in excess of Initiative 41's limits were fairly common.

 Of the nine strongest contenders for Mayor in 1990, *fn3" the record contains contribution listings for seven of those candidates. *fn4" Those listings show that all seven received a large percentage of contributions in excess of the $ 100 cap later set by Initiative 41: Percentage of Contributions Total Contributions Candidate Over $ 100 Contributions Over $ 100 David Clarke 870 2141 41% n5 Sharon Pratt Dixon 3231 5984 54% n6 Walter Fauntroy 452 959 47% n7 Charlene Drew Jarvis 626 1800 35% n8 Brian Moore 5 29 17% n9 John Ray 1451 3274 44% n10 Maurice Turner 696 2486 28% n11


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