Appeal from the United States District Courtfor the District of OregonRobert E. Jones, District Judge, PresidingArgued and SubmittedJuly 11, 1996--Portland, OregonFiled August 11, 1998Before: Warren J. Ferguson and Melvin Brunetti,Circuit Judges, and Samuel P. King,* District Judge.Opinion by Judge Ferguson; Partial Concurrence andPartial Dissent by Judge Brunetti
_____________________________COUNSEL John R. Faust, Jr., Schwabe, Williamson & Wyatt, Portland,Oregon; John A. DiLorenzo, Jr., Hagen, Dye, Hirschy & Di-Lorenzo, Portland, Oregon, for plaintiffs-appellees VanNatta,et al.Rives Kistler, Deputy United States Attorney, Salem, Oregon,for defendants-appellants Keisling, et al.Donald Craig Mitchell, Anchorage, Alaska, for appellant Gor-don Miller.Jamin B. Raskin, Washington, D.C.; Abigail Turner, and JohnC. Bonifaz, Boston, Massachusetts, for the amicus.
_____________________________OPINION FERGUSON, Circuit Judge:I.We adopt as the unanimous opinion of this panel all ofJudge Brunetti's concurring opinion set forth in parts I, II, andIII. We also adopt Part IV(A), which declares that Measure 6is not closely drawn to advance the goal of preventing corrup-tion and fails to pass muster under the First Amendment.II.We reject Judge Brunetti's argument in dissent, Parts IV(B)and V, that Measure 6 is valid because it prevents a distortionof the republican form of government in the State of Oregon.It could be argued that the initiative process itself distorts therepublican form of government.III.Measure 6 was on the Oregon Ballot with Measure 9. ThatMeasure was a set of statutes also adopted by the initiativeprocess. The Oregon Supreme Court in VanNatta v. Keisling,931 P.2d 770 (Or. 1997) held that the statutes in Measure 9which, like Measure 6, limited or banned campaign contribu-tions, violated the Free Speech provisions of the State Consti-tution. One matter that is common in both Measures is thelimitation upon candidates using campaign contributions fromindividuals who reside outside the candidate's voting district.In both Measures, the meaning of "individuals", is at issue.The Oregon Supreme Court declared that on its face it isunclear whether the word "individuals," as used in Measure6, applies to the use of contributions from corporations, busi-nesses, labor unions or PAC's, and therefore was over inclu-sive and must fail under the Oregon Constitution. Inaccordance with OR. REV. STAT. S 28.200 (1995), the panelcertified to the Oregon Supreme Court three questions: (1) Is Measure 6 valid under the Constitution of Oregon? (2) How is Article II, section 22 to be interpreted in light of competing provisions of the Oregon Constitution, including Article I, section 8? (3) Does the word "individuals" as used in section 1 of Measure 6 include corporations, PACs and unions?The Oregon Supreme Court has rejected the certification.IV.The issue, which appellants describe in several differentways, involves protecting the integrity of republican govern-ment by assuring that representatives are truly selected bytheir own constituents.Appellants argue that the state interest in a republican formof government supports Measure 6. They contend that Mea-sure 6 advances that interest by preventing those who are inel-igible to vote from influencing the outcome of elections. Theright to a republican form of government has never beforebeen recognized as a sufficiently important state interest. InWhitmore v. Federal Election Comm'n, 68 F.3d 1212 (9thCir. 1995), a candidate and a voter sought an injunction toprohibit candidates from accepting out-of-state campaign con-tributions. The plaintiffs asserted that such contributions vio-lated, inter alia, their right to a republican form ofgovernment. This Court stated: Plaintiffs argue that the Constitution entitles them to representation by someone not beholden to any citi- zen of another state. They present a historian's affi- davit that the Founding Fathers would have been "shocked" at out-of-state contributions to a congres- sional candidate . . . Neither the Constitution nor the United States Code affords plaintiffs any support for their political theory.This Court held plaintiffs' claim to be unsupported by prece-dent and dismissed it as frivolous. Whitmore, 68 F.3d at 1216.Although Whitmore addresses out-of-state rather than out-of-district contributions, its holding underscores the lack of sup-port for any claim based on the right to a republican form ofgovernment.Appellants nonetheless present several cases which, theyargue, may be taken together to expand the "narrow exceptionto the rule that limits on political activity [are] contrary to theFirst Amendment." Citizens Against Rent Control v. City ofBerkeley,
454 U.S. 290, 296
-97 (1981). We now distinguisheach case in turn.In Austin v. Michigan Chamber of Commerce, 494 U.S.652 (1990), the Court upheld a Michigan law preventing cor-porations from using general treasury funds to support oroppose candidates for state office. The Court reasoned thatcorporations use state-created advantages to dominate boththe economic and the political arena. Austin,
494 U.S. at 659
(citing Federal Election Comm'n v. Massachusetts Citizensfor Life,
479 U.S. 238, 257
(1986)). The Court held that thestatute "ensures that expenditures reflect actual public supportfor the political ideas espoused by corporations . .. corporatewealth can unfairly influence elections when it is deployed inthe form of independent expenditures, just as it can when itassumes the guise of political contributions." Id. at 660.The Court did not define "actual public support, " but appel-lants would like us to read it as support for Oregon's limita-tion of out-of-district contributions. The holding in Austin,however, addresses the "unique state-conferred corporatestructure that facilitates the amassing of large corporatetreasuries" and the attendant risk of unfair corporate influencein the electoral process. Id. The Court did not concern itselfwith a distinction between in-district and out-of-district cor-porations. Therefore, we conclude that the state interestdefined in Austin does not support Measure 6.In Holt Civic Club v. City of Tuscaloosa,
439 U.S. 60
(1978), the Supreme Court upheld Alabama legislation thatextended police and other city powers over non-residents liv-ing within three miles of city borders. The Court concludedthat the state did not have to provide those non-residents withthe right to vote in city elections. Id. at 69.The Holt Court emphasized that it was not enough for thenon-residents to show that they were affected by the city'spolicies because many non-residents are affected by many cit-ies' decisions. Id. Regardless of those extraterritorial effects,non-residents do not have a right to "participate in the politi-cal processes bringing it about." Id. "[O]ur cases have uni-formly recognized that a government unit may legitimatelyrestrict the right to participate in its political processes tothose who reside within its borders." Id. at 68-69. It is truethat states have wide latitude in determining requirements forvoting. However, the political process at issue in Holt was theright to vote and not the right to First Amendment speech.Therefore, Holt does not support the republican form of gov-ernment argument made here.The Supreme Court has suggested that states have a stronginterest in ensuring that elected officials represent those whoelect them. See, e.g., Shaw v. Reno,
509 U.S. 630, 650
(1993)(elected officials representing one interest group rather thantheir entire constituency is a cognizable harm under the Four-teenth Amendment). However, in Shaw, the Court wasaddressing the inverse situation: representatives ignoringmuch of their constituency in favor of one group of constitu-ents, rather than out-of-district concerns. Id. Appellants readHolt and Shaw out of context and they do not provide author-ity for this Court to uphold Measure 6.V. ConclusionMeasure 6 does not survive scrutiny under the FirstAmendment and is not saved by the argument that it protectsthe republican form of government.The District Court's Opinion and Order and its DeclaratoryJudgment and Mandatory Injunction are AFFIRMED.
_____________________________BRUNETTI, Circuit Judge, concurring in part and dissenting:The state of Oregon amended its constitution to prohibitstate candidates from using or directing any contributionsfrom out-of-district residents and to penalize candidates whenmore than 10% of their total "funding" comes from such indi-viduals. The amendment was challenged under several provi-sions of the constitution and was struck down, in a summaryjudgment order, by the district court under the First Amend-ment. Viewing the evidence in a light most favorable toappellants, we review the award of summary judgment denovo, Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir.1995).I.In November of 1994, the voters of Oregon amended theirconstitution by passing Ballot Measure 6 ("Measure 6"). Mea-sure 6 provided: Be it enacted by the People of Oregon: SECTION 1. For purposes of campaigning for an elected public office, a candidate may use or direct only contributions which originate from indi- viduals who at the time of their donations were resi- dents of the electoral district of the public office sought by the candidate, unless the contribution con- sists of volunteer time, information provided to the candidate, or funding provided by the federal, state, or local government for purposes of campaigning for an elected public office. SECTION 2. Where more than ten percent (10%) of a candidate's total campaign funding is in violation of Section (1), and the candidate is subse- quently elected, the elected official shall forfeit the office and shall not hold a subsequent elected public office for a period equal to twice the tenure of the office sought. Where more than ten percent (10%) of a candidate's total campaign funding is in violation of Section (1) and the candidate is not elected, the unelected candidate shall not hold a subsequent elected public office for a period equal to twice the tenure of the office sought. SECTION 3. A qualified donor (an individual who is a resident within the electoral district of the office sought by the candidate) shall not contribute to a candidate's campaign any restricted contribu- tions of Section (1) received from an unqualified donor for the purpose of contributing to a candi- date's campaign for public office. An unqualified donor (an entity which is not an individual and who is not a resident of the electoral district of the office sought by the candidate) shall not give any restricted contributions of Section (1) to a qualified donor for the purpose of contributing to a candidate's cam- paign for elected office. SECTION 4. A violation of Section (3) shall be an unclassified felony.Although Measure 6 does not expressly limit its applicationto state races, it amends Article II of the state constitutionwhich governs state elections. The parties do not argue Mea-sure 6 applies to federal elections and to the extent itattempted to do so, it would be preempted by the FederalElection Campaign Act.Plaintiffs sought a declaratory judgment that Measure 6 isfacially unconstitutional. Plaintiffs VanNatta, Gill, and theCenter To Protect Free Speech ("Center") claimed that theywished to contribute to out-of-district candidates, PlaintiffBoehnke claimed that he wished to accept donations fromnon-residents of his district, Plaintiff Smith claimed that herefused donations from plaintiffs Gill and VanNatta becauseof Measure 6. Several parties intervened including GordonMiller, the sponsor of Measure 6, who was allowed to inter-vene for the purpose of appealing the district court's judg-ment.Defendants presented considerable evidence demonstratingthe prevalence of political action committee money in Oregonstate races. As of 1992, candidates spent an average of$38,000 on state house races and $49,000 on state senateraces. House candidates received 81% of their money fromPACs and corporations, senate candidates received 75% fromthose sources. Individual contributors accounted for 13% ofcontributions in house races and 15% in senate races in 1992.Defendants also presented statistical and anecdotal evidencesuggesting a strong correlation in Oregon between receivingfunds and winning elections.The district court granted summary judgment for the plain-tiffs. Applying strict scrutiny, the court rejected the measureas not narrowly tailored to prevent corruption because it pre-vented non-corrupt out-of-district contributions, failed tothwart in-district corruption, and failed to prevent large out-of-district contributions so long as they do not exceed 10% ofthe total. Defendants appealed.II. Applicability of the First Amendment[1] Contributions to political campaigns are protectedspeech under the First Amendment. Austin v. MichiganChamber of Commerce,
494 U.S. 652, 657
(1990). Appel-lants, however, argue that Measure 6 does not burden therights of contributors VanNatta, Gill, and the Center becauseit does not prevent the acceptance of contributions, but ratherthe use of certain contributions by the candidate. Under Mea-sure 6, candidates could accept unlimited donations from out-of-district residents so long as they do not "use or direct"them. While Measure 6's sanctions only apply if 10% of acandidates' "total campaign funding" is in violation, it prohib-its the use or direction of any non-conforming contributions.Appellants' argument that contributors are not burdenedrelies on Buckley v. Valeo,
424 U.S. 1, 21
(1976), in which theSupreme Court upheld limits on contributions, reasoning thatthe free speech value of contributing lay in the "symbolicexpression of support" not the total amount. Based on thatrationale, they argue that Measure 6 in no way detracts fromthe symbolic act of contributing because it does not preventcontributions, but only the use of contributed money.[2] Appellants' argument only makes sense in the abstract.In reality campaigns will have no incentive to accept moneywhich they cannot legally spend. To do so would invite viola-tions of Measure 6 and a host of potential ethical landmines.In fact, appellees attested that an out-of-district candidaterefused to accept their donations because of Measure 6. Asthe statute has caused campaigns to refuse to accept theseunusable contributions, the First Amendment rights of con-tributors are implicated. See Service Employees Int'l Union,AFL-CIO, CLC v. Fair Political Practices Comm'n, 955 F.2d1312, 1321 (1992). In Service Employees, this court con-cluded that time limitations on the amount of contributions acandidate could receive impermissibly discriminated againstchallengers. Id. It held that contributors had standing to chal-lenge the measure as violating their own First Amendmentrights. Id. at 1316. "If Proposition 73 discriminates againstchallengers by limiting their opportunities to accept contribu-tions, then it necessarily discriminates against contributorswho wish to associate themselves with challengers. " Id. Cf.Renne v. Geary,
501 U.S. 312, 320
(1991) ("respondents ofcourse have standing to claim that S 6(b) has been applied inan unconstitutional manner to bar their own speech"). There-fore, Measure 6 does implicate the contributing appellees'First Amendment rights because it limits the ability of candi-dates to accept their donations. See Service Employees, 955F.2d at 1321.III. Level of Scrutiny[3] Restrictions on contributions to campaigns are sub-jected to less exacting scrutiny than restrictions on indepen-dent expenditures in support of a campaign. Federal ElectionCommission v. Massachusetts Citizens for Life, Inc., 479 U.S.238, 259-60 (1986) ("we have consistently held that restric-tions on contributions require less compelling justificationthan restrictions on independent expenditures"); ServiceEmployees, 955 F.2d at 1322. Thus while contribution limita-tions are reviewed under a "rigorous" level of scrutiny, theyare not reviewed under strict scrutiny. Id. Restrictions on con-tributions are upheld when the "state demonstrates a suffi-ciently important interest and employs means closely drawnto avoid unnecessary abridgment of associational freedoms."Service Employees, 955 F.2d at 1322 (quoting freedom ofassociation analysis in Buckley v. Valeo,
424 U.S. 1
, 25(1976)). While the test is less stringent than strict scrutiny,"the test is still a rigorous one." Id. Appellees argue that the level of scrutiny should be strictbecause Measure 6 does more than restrict the amount non-residents can contribute in that it flatly prohibits suchcontributions.1 Their argument finds support in Buckley inwhich the Supreme Court reasoned that the Federal ElectionCampaign Act's restrictions on contributions were less drasticbecause they only limited the amount, thereby permitting thesymbolic act of contributing to a worthy candidate. 424 U.S.at 21. The Court, however, also noted that contribution limitsdid not prevent contributors from independently discussingcandidates and issues. Id. [4] In any event, this court has applied less-than-strict, rig-orous scrutiny to total restrictions on contributions. ServiceEmployees, 955 F.2d at 1322. In Service Employees, wereviewed a California Initiative which banned campaignsfrom contributing to another campaign. Id. at 1315. We struckdown the provision under the rigorous scrutiny derived fromBuckley. Thus, under the law of this circuit, we apply rigor-ous, rather than strict, scrutiny to Measure 6. See id. Measure6 can survive rigorous scrutiny only if it is closely drawn toadvance a sufficiently important interest. Id. The National Voting Rights Institute ("Institute") argues inits amicus brief that the statute should be reviewed under thebalancing test laid out in Anderson v. Celebrezze, 460 U.S.780, 789 (1983). In Anderson, the Court considered chal-lenges to candidate filing deadlines. The Court noted thatwhile voters' free speech rights are affected by restrictions oncandidates, the process of managing elections necessarilyinvolves extensive state regulation.
460 U.S. at 788
. TheCourt articulated a framework for weighing the competinginterests affected by election laws. Id. at 789. The SupremeCourt has not applied this test to campaign contributionrestrictions which more directly infringe on speech rights andwhich are not necessarily an integral aspect of a state's man-agement of elections. Thus the rigorous test outlined inService Employees is the appropriate level of scrutiny.IV. Measure 6Sufficiently Important State InterestThere are essentially two purported interests advanced byMeasure 6. One is corruption. As the district court concluded,Measure 6 is both under-inclusive and over-inclusive withrespect to curbing corruption and thus corruption is an insuffi-cient state interest to sustain the measure. A second interest,which appellants describe in several different ways, involvesprotecting the integrity of republican government by assuringthat constituents are truly selecting their representatives.A. Curbing CorruptionThe district court defined the state's interest in Measure 6as preventing political corruption. The court then rejected themeasure as not being narrowly tailored to prevent corruptionbecause it prevented non-corrupt out-of-district contributions,failed to thwart in-district corruption, and failed to preventlarge out-of-district contributions so long as they do notexceed 10% of the total.[5] Even applying the less stringent rigorous test, to theextent one views the state's interest as preventing corruption,Measure 6 still fails to pass scrutiny for the reasons stated bythe district court. See Service Employees, 955 F.2d at 1312.The Supreme Court has defined corruption associated withcampaign contributions as "financial quid pro quo: dollars forpolitical favors. FEC v. National Conservative PAC, 470 U.S.480, 497 (1985). In Service Employees, this court rejectedCalifornia's asserted interest in preventing corruption as a jus-tification for banning intra-campaign donations. Id. CitingBuckley, the court reasoned that corruption stems from largecampaign donations and not small ones. Id. As the Californiainitiative did not distinguish on the basis of size of donation,this court concluded that the measure was not closely drawn.Id.[6] The Service Employees rationale is equally applicablehere. Measure 6 bans all out-of-district donations, regardlessof size or any other factor that would tend to indicate corrup-tion. Appellants are unable to point to any evidence whichdemonstrates that all out-of-district contributions lead to thesort of corruption discussed in Buckley. See Harwin v. GoletaWater Dist., 953 F.2d 488, 490 (9th Cir. 1991) (governmentdid not show that ordinance's distinction between contribu-tions from applicants and opponents served to prevent eithercorruption or the appearance of corruption). Carver v. Nixon,72 F.3d 633, 644 (8th Cir. 1995) (holding limits on the sizeof contributions were not closely drawn to reducing corrup-tion as state made no showing that small contribution limitswere necessary to curb corruption). Measure 6 is not closelydrawn to advance the goal of preventing corruption and underthis analysis fails to pass muster under the First Amendment.Judge Ferguson and Judge King adopt this conclusion. Tothis point, the panel is unanimous.B. Republican Form of GovernmentJudge Brunetti, dissenting:At this point I must part with Judge Ferguson and JudgeKing with regard to the appellant's portrayal of the state'sinterest not so much as preventing corruption but as present-ing a distortion of the state's republican form of government.The majority opinion rejects this argument, however, I con-clude that Oregon has a sufficiently important interest in pro-tecting its republican form of government and I dissent fromthe affirmance of the district court.Appellant argues that Measure 6 advances this interest bypreventing those who are ineligible to vote from influencingthe outcome of elections. We can consider any interest whichMeasure 6 serves in assessing the constitutionality of the pro-vision. Bolger v. Youngs Drug Products Corp.,
463 U.S. 60
,71 (1983).In several cases the Supreme Court has emphasized theright of states and cities to reserve their political processesand resources for their own residents. In Holt Civic Club v.City of Tuscaloosa,
439 U.S. 60, 70
(1978), the Court upheldAlabama legislation that extended police and other city pow-ers over non-residents living within three miles of city bor-ders. The Court concluded that the state did not have toprovide those non-residents with the right to vote in city elec-tions. Id. at 70.The Holt Court emphasized that it was not enough for thenon-residents to show that they were affected by the city'spolicies because many non-residents are affected by many cit-ies' decisions. Id. at 69. Regardless of those extraterritorialeffects, non-residents do not have a right to "participate in thepolitical processes bringing it about." Id. "[O]ur cases haveuniformly recognized that a government unit may legitimatelyrestrict the right to participate in its political processes tothose who reside within its borders." Id. at 68.Similarly, in Martinez v. Bynum, the Court upheld a Texasprovision that allowed public schools to deny access to chil-dren who live apart from their parents if the child's presencein the district is "for the primary purpose of attending freepublic schools."
461 U.S. 321
, 323 n.1 (1983). The Court rea-soned that the measure furthered "the substantial state interestin assuring that services provided for its residents are enjoyedonly by residents." Id. at 328.In other contexts the Supreme Court has suggested, some-times strongly, that states have a strong interest in ensuringthat elected officials represent those who elect them. See, e.g.,Shaw v. Reno, 113 S. Ct. 2816, 2828 (1993) (elected officialsrepresenting one interest group rather than their entire constit-uency is a cognizable harm under the fourteenth amendment).In Shaw, the Court was addressing the inverse situation: rep-resentatives ignoring much of their constituency in favor ofone group of constituents, rather than out-of-district concerns.Id. The analysis, however, underscores the importance of pre-serving the ties between elected officials and those who electthem. See id.In Austin v. Michigan Chamber of Commerce, the Courtupheld a statute which prohibited all corporations, not justout-of-district, from spending money from their general fundson elections.
494 U.S. 652, 668
(1990). "The Act does notattempt to equalize the relative influence of speakers on elec-tions, rather it ensures that expenditures reflect actual publicsupport for the political ideas espoused by corporations. . .cor-porate wealth can unfairly influence elections when it isdeployed in the form of independent expenditures, just as itcan when it assumes the guise of political contributions"). Id.at 660. While the Court did not discuss what is meant by"actual public support," in the context of protecting electionsfrom unfair influences, the concept is by definition limited tothose who are eligible to vote, i.e. district residents. See id.In voting cases, the Court has emphasized both the need forequal representation as well as the latitude states have indetermining requirements for voting. Board of Estimate ofCity of New York v. Morris,
489 U.S. 688, 694
(1989);Carrington v. Rash,
380 U.S. 89, 91
(1965) ("states have longbeen held to have broad powers to determine the conditionsunder which the right of suffrage may be exercised"). InMorris, the Court struck down a New City municipal boardwhich afforded each borough of the city equal representationdespite substantial differences in population. In doing so, theCourt emphasized that equal representation was crucial toassuring that each citizen equally participates in governmentbecause voting is the only way in which most residents partic-ipate in the political process. Morris,
489 U.S. at 693
. InCarrington, the Court struck down a Texas statute which pre-vented service personnel from voting so long as theyremained active members in the military.
380 U.S. at 97
. TheCourt, however, reaffirmed the wide latitude enjoyed by statesin establishing residency requirements, as long as the states donot violate the fourteenth amendment. Id. at 91.While none of the cases discussed above are directly onpoint, taken together they suggest that a state has a suffi-ciently strong interest in protecting the integrity of electoraldistrict lines. If states have flexibility in determining who isa resident for voting purposes and in taking steps to make surenon-residents do not have access to some state services, it fol-lows that states also have a strong interest in making sure thatelections are decided by those who vote. The Supreme Courthas come very close to saying as much in Shaw, Holt, andAustin. With the increasing importance of fundraising in elec-tions generally, Buckley,
424 U.S. at 19
, 22, and in Oregon inparticular, elections are for all intents and purposes are oftendecided well before any resident steps into a voting booth.Thus the Supreme Court's traditional emphasis of states'interest in managing elections, assuring that only residentsvote, and safeguarding resources for bona fide residents sup-ports Measure 6 because appellants have presented consider-able evidence that campaign financing strongly influencesOregon elections. As this was a grant of summary judgmentfor appellees, that evidence must be viewed in the light mostfavorable to appellants. Warren, 58 F.3d at 441. Furthermore,under rigorous scrutiny the state need only demonstrate a suf-ficiently important interest. Service Employees, 955 F.2d at1322. I conclude that Oregon has a sufficiently importantinterest in protecting republican government by ensuring thatelections are truly a measure of the preferences of those eligi-ble to vote.The inquiry thus turns to whether Measure 6 is closelydrawn to serve this interest. Id. Legislation is closely drawnwhen it is not over or under inclusive. See id. Appellees pri-marily contend that protecting representative government isnot a compelling interest. They also maintain, however, thatMeasure 6 is underinclusive because it permits in-districtdonations that "far exceed the candidate's `actual supportwithin the district' " and overinclusive because it preventssmall out-of-district contributions "that could not possiblyerode or even appear to erode anyone's vote."The underinclusive argument misses the mark. The fact thatsome in-district residents will donate more than others doesnot detract from the state's interest in ensuring that electionsare truly a forum for constituents to select a representative.The Supreme Court has cautioned against trying to equalizevoices based on wealth. Buckley,
424 U.S. at 48
-49. Even ifa small group of in-district residents who hold a minorityviewpoint contribute a majority of a candidates' donations,the decision-making process has remained entirely within thedistrict.The overinclusive argument is stronger. Appellees fre-quently refer to the hypothetical candidate's out-of-districtmother who wants to donate a dollar to her child's campaign.To the extent that one views the state's interest as preventingnon-residents from unduly influencing the outcome of anelection, Measure 6 is over-inclusive in that it prohibits dona-tions which will have no influence.The state's interest, however, is more appropriately charac-terized as ensuring that only those who are constituents partic-ipate in the electoral process. Toward that end, Measure 6 isnot over-inclusive in that it prohibits every non-district resi-dent, but no residents, from participating in the electoral pro-cess. See Harwin, 953 F.2d at 490. Unlike the Goleta WaterDistrict in Harwin, appellants have presented considerableevidence indicating that out-of-district contributions deter-mine in-district elections and thus have shown that the dis-tinction serves the government's interest. See id. Moreover in Austin, the Court rejected an overinclusivenessargument that not all corporations have vast resources. 494U.S. at 661. "We accept Congress' judgment that is it thepotential for such influence that demands regulation." Id.Measure 6 is a manifestation of the state of Oregon's judg-ment that out-of-district donations have the potential forundue influence. Under Austin, there is precedent for accord-ing that judgment considerable deference. As the rigorous testrequires only that the measure be closely drawn to advancethe interest, rather than narrowly tailored, Measure 6 is suffi-ciently closely drawn to survive rigorous scrutiny.Appellees argue that the measure denies out-of-district resi-dents and out-of-state residents any voice in matters whichmay strongly affect their interests. In Buckley, however, theSupreme Court emphasized the more limited speech valueassociated with contributions as opposed to direct expendi-tures: 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 mar- ginal restriction upon the contributor's ability to engage in free communication. . .While contribu- tions may result in political expression if spent by a candidate or an association to present views to the voters, the transformation of contributions into polit- ical debate involves speech by someone other than the contributor.
424 U.S. at 20
-21. Part of the Buckley court's analysis empha-sized that in only limiting the amount of contributions the Actstill allowed the symbolic gesture of contributing. Id. In strik-ing down expenditure limitations, however, the Court com-mented that they "limit political expression at the core of ourelectoral process and of the First Amendment freedoms." Id.at 39. See also Massachusetts Citizens,
479 U.S. at 259
-60("we have consistently held that restrictions on contributionsrequire less compelling justification than restrictions on inde-pendent expenditures").Nothing in Measure 6 prevents out-of-district and out-of-state residents from making independent expenditures onbehalf of candidates and issues. Appellee discusses stockhold-ers and state employees as two groups that will be denied"any voice" in state elections under Measure 6. That argumentis plainly false because these groups will be allowed to makeindependent expenditures in an effort to persuade the votersof Oregon that a particular candidate should be elected or aparticular issue warrants closer attention. See Austin, 494 U.S.at 660 (the act was not an absolute ban because it permittedindependent expenditures from segregated funds). Thus whileit could be argued that cases like Holt, which allows cities toexercise jurisdiction over non-residents, heighten the need fornon-resident participation in elections through contributions,non-residents can always resort to independent expenditures.Appellees also rely heavily on Whitmore v. Federal Elec-tion Commission, 68 F.3d 1212, 1216 (9th Cir. 1996). InWhitmore, a third party candidate sought an injunction order-ing candidates not to accept out-of-state contributions becausesuch contributions violate their right to republican govern-ment. Id. The court held that the claim was frivolous notingthat neither the constitution nor the federal statutes provideany support. Id. The court went on to note that the districtcourt could not have granted the injunction in view of contrib-utor's First Amendment rights. The amended opinion con-cluded that "such management of the system of politicalexpression may violate the rights of out-of-statecontributors." Id. (emphasis added).The use of the word "may" indicates that the Whitmorecourt did not intend to resolve the First Amendment rights ofthe contributors. It was sufficient for them to hold that federallaw did not prohibit out-of-state contributions. That holdinghas no bearing on this case because Measure 6 does prohibitout-of-state contributions and thus, unlike in Whitmore, thequestion of whether such a prohibition is in violation of theFirst Amendment is squarely before this court.The Whitmore court was apparently concerned about theSupreme Court's admonition in Buckley against states favor-ing the speech of certain segments of the population. 68 F.3dat 1216. "[T]he concept that government may restrict thespeech of some elements of our society in order to enhancethe relative voice of others is wholly foreign to the FirstAmendment." Buckley,
424 U.S. at 48
-49.Measure 6 clearly favors the voices of in-district residentsover those of out-of-district residents but no more so than res-idency requirements for voting. In Buckley, however, theCourt was considering a proposal that attempted to limit theability of the wealthy to drown out the voices of those withfewer resources.
424 U.S. at 48
. Measure 6 discriminates onlyon the basis of in-district residency and only affects contribu-tions, not independent expenditures.Finally, it is important to note that Measure 6 does not pre-vent the hypothetical candidate from donating to her child'scampaign. Measure 6 does prohibit her child from using thefunds but only penalizes a candidate when more than 10% ofhis "total campaign funding" is in violation of the provision.Thus while the statute inhibits out-of-district donations suchthat it implicates the First Amendment, it does not require ourhypothetical candidate to return his mother's donation. The10% floor thus essentially functions as a savings clause.V.States cannot pick and choose among voices in an effort tocreate an even playing field but they may take steps to ensurethe integrity of political structures and processes. While Mea-sure 6 affects protected speech, it more closely resembles thelatter category of state actions and therefore survives rigorousscrutiny under the First Amendment, and I would reverse theDistrict Court's Opinion and Order and vacate its DeclaratoryJudgment and Mandatory Injunction. the end
___________________________FOOTNOTES *Samuel P. King, Senior United States District Judge for the District ofHawaii, sitting by designation.1 Appellants are in disagreement over the level of scrutiny. The stateargues that less than strict scrutiny should be applied. Appellant Miller,however, concedes that strict scrutiny is applicable because he understandsMeasure 6 to be a contribution limit on candidates. Miller relied on thediscussion in Buckley of limits on personal expenditures by candidates.However, nothing in Measure 6 prevents candidates from spending theirown money or unlimited amounts of money contributed by in-district resi-dents. Cf. Opinion of the Justices to the House of Representatives, 637N.E.2d 213, 216 (Mass. 1994) (advisory opinion) (concluding that aggre-gate limit on total contributions was an expenditure limit). Thus Measure6 is a restriction on contributions and should be evaluated as such.