[00:00:14] Speaker 08:
Good afternoon.

[00:00:16] Speaker 08:
Welcome to the Browning Courthouse here in San Francisco.

[00:00:19] Speaker 08:
It's a pleasure to have you here.

[00:00:22] Speaker 08:
This is the time set for moving Oxnard forward versus Lord Lopez.

[00:00:29] Speaker 08:
If the parties are ready to proceed, you may come forward.

[00:00:39] Speaker 05:
Good afternoon, Honors.

[00:00:40] Speaker 05:
And if it may please the Court, my name is Chad Morgan.

[00:00:43] Speaker 05:
I represent

[00:00:44] Speaker 05:
plaintiff and appellant moving Oxnard forward.

[00:00:47] Speaker 05:
If I may, I would like to reserve five minutes for rebuttal.

[00:00:51] Speaker 05:
To be valid, a limit on the amount an individual can contribute to a political campaign must be carefully drawn to a sufficiently important governmental interest.

[00:01:04] Speaker 05:
The tailoring and the sufficiency analysis are two separate questions, where the only interest sufficient enough

[00:01:14] Speaker 05:
to justify limits on a campaign contribution is the prevention of quid pro quo corruption or its appearance.

[00:01:24] Speaker 05:
Based on the petition for rehearing on Banque and our supplemental briefing, I suspect that the bulk of our attention today will be given to the first prong in the sufficiency of the government's interest.

[00:01:37] Speaker 05:
But I do intend to address both prongs, although as

[00:01:44] Speaker 05:
the sufficiency of the government's interest in preventing quid pro quo corruption decreases, the two prongs tend to converge where it's hard to tell one from the other because... Council, can I just take a step back?

[00:01:59] Speaker 02:
The limits that were imposed here are fully consistent with limits that many localities, even statewide elections have applied across the country.

[00:02:09] Speaker 02:
Is that correct?

[00:02:10] Speaker 05:
That's not correct.

[00:02:12] Speaker 05:
The limits at issue here are among the lowest out of similarly sized cities.

[00:02:20] Speaker 05:
And is that how you're supposed to look at it?

[00:02:22] Speaker 02:
It's per capita calculation?

[00:02:26] Speaker 02:
Is that what the Supreme Court said we're supposed to do?

[00:02:29] Speaker 05:
It's not.

[00:02:31] Speaker 05:
But in terms of how these limits relate to what is common throughout other jurisdictions, they're substantially lower.

[00:02:41] Speaker 05:
And the city says otherwise, but their report when they analyzed the limits across similarly sized cities excluded from its analysis the cities that had no limit whatsoever.

[00:02:54] Speaker 05:
And that significantly skewed the results of their analysis such that it looked like they were somewhere around the median when in fact they were far from it.

[00:03:04] Speaker 05:
And as a side note, the state legislature has now implemented statewide limits which

[00:03:10] Speaker 05:
would apply to those cities that had not otherwise enacted.

[00:03:14] Speaker 06:
But what authority says you're comparing it to limits that are zero that don't have any limits?

[00:03:20] Speaker 05:
That looks ahead to the second prong analysis and the danger signs where one of the danger signs that Randall identified was that the limits were among the lowest of comparable jurisdictions and

[00:03:37] Speaker 02:
And had any of those others been challenged?

[00:03:41] Speaker 02:
I mean, what is the lowest limit that's been challenged successfully?

[00:03:47] Speaker 05:
I would say it would be the $500 limit in Thompson v. Hebden.

[00:03:52] Speaker 07:
So if we, you agree this is a contribution as opposed to an expenditure, are we in agreement there?

[00:04:00] Speaker 05:
We are not.

[00:04:03] Speaker 05:
I think when we look at the first prong of the analysis and the government's interest, the city's interest in the limits it enacted is so low that it looks, it's more of an expenditure limit masquerading as a contribution limit.

[00:04:19] Speaker 07:
Well, so if to, for your client to prevail, accepting that measure B has some impact on Mr. Starr, why does the impact amount to invidious discrimination?

[00:04:33] Speaker 07:
And how does the measure harm a suspect group, a minority party, or an independent candidacy?

[00:04:41] Speaker 07:
Do you have a case where a contribution limit was voided as being invidiously discriminating?

[00:04:49] Speaker 05:
I do not have a case on that point, Judge Callahan, but the invidious discrimination is there in the way that the city tailored this message or tailored this limit in response to Mr. Starr's political activities.

[00:05:05] Speaker 07:
But then didn't it go to the people and then 82% of the people voted for it?

[00:05:12] Speaker 07:
And so do you have to show that those 82% were invidiously discriminating too?

[00:05:18] Speaker 05:
There's no evidence in the record that the 82% of the people who voted for the measure voted for it because of the contribution limit.

[00:05:25] Speaker 05:
Measure B was a wide-encompassing measure that enacted term limits, it enacted regulations on gift bands.

[00:05:36] Speaker 05:
Any one of those reasons.

[00:05:38] Speaker 02:
So why does that matter?

[00:05:40] Speaker 05:
It matters because we can't look to that and say specifically that

[00:05:45] Speaker 05:
the voters wanted to enact contribution limits.

[00:05:49] Speaker 05:
Maybe they wanted to enact term limits, and they enacted contribution limits irrespective of that.

[00:05:54] Speaker 02:
I don't understand how that matters in our legal analysis.

[00:05:57] Speaker 02:
I mean, at the end of the day, they send it to the voters.

[00:05:59] Speaker 02:
Aren't you asking us to find that the voters were discriminatory in their intent?

[00:06:05] Speaker 02:
You have to find that.

[00:06:06] Speaker 05:
You don't have to find that.

[00:06:08] Speaker 05:
And looking more broadly, it's not relevant.

[00:06:12] Speaker 05:
In Shrink, Missouri,

[00:06:15] Speaker 05:
In the city's defense of the contribution limits, they point to some of the considerations that Shrink Missouri made.

[00:06:21] Speaker 05:
And Shrink Missouri considered the fact that the voters approved it.

[00:06:25] Speaker 05:
But it was an aside where language was used to the effect of not that it matters, but also the voters did happen to approve that.

[00:06:34] Speaker 05:
It so happens that the government interest in Shrink Missouri arose out of there was a bank that contributed

[00:06:44] Speaker 05:
I think $20,000 to a statewide campaign and then got the state's banking business.

[00:06:49] Speaker 05:
There was a 420 some thousand dollar contributions.

[00:06:53] Speaker 05:
There were allegations of specific instances of trading votes in the legislature for money that are not existent here.

[00:07:04] Speaker 02:
Looking back to the support for the measure we have I don't read the Supreme Court to be saying you have to come up with some example of prior Corruption in order to put a contribution limit on I mean I assume if that were the requirement Half the contribution limits out there wouldn't I mean the idea of a contribution limit is to get ahead of that

[00:07:27] Speaker 02:
And here there was, I mean, I give you that it wasn't exactly analogous, but there was at least some concern about, should we say, you know, government accountability.

[00:07:43] Speaker 05:
I think it's hard to say that there was some concern, but yes, there was the district attorney's report that looked primarily at staff, primarily at gifts,

[00:07:52] Speaker 05:
But it is correct.

[00:07:53] Speaker 05:
The Supreme Court has not said here is the line.

[00:07:57] Speaker 05:
In Shrink, Missouri, it was the evidence here is substantial.

[00:08:02] Speaker 05:
It's not mere conjecture.

[00:08:04] Speaker 05:
In Buckley, there's a footnote in Buckley that refers to the district court of opinion, the district court opinion, or the circuit court opinion, I'm sorry, that outlined

[00:08:16] Speaker 05:
a substantial amount of concerns about corruption, all arising out of the Watergate scandals at a really tumultuous time.

[00:08:25] Speaker 05:
And that evidence, those concerns were not illusory.

[00:08:32] Speaker 05:
But relating to this court's Lair and Edelman tests... Well, what do we do with Lair and Edelman?

[00:08:37] Speaker 05:
Are they okay?

[00:08:40] Speaker 05:
I see two ways of looking at this.

[00:08:42] Speaker 05:
The first is neither Laird nor Edelman really considered this issue because the plaintiffs in those cases essentially conceded the issue and the focus was on the tailoring.

[00:08:54] Speaker 05:
To that extent, I think Laird is dicta.

[00:08:58] Speaker 05:
That said, this court's dicta is binding on future panels, and to the extent that is true,

[00:09:05] Speaker 05:
then I think Lehrer and Edelman need to be overruled as inconsistent with Supreme Court precedent, which has never said the minimum threshold is not illusory or not mere conjecture.

[00:09:23] Speaker 05:
It just happens in those cases that the quantum of evidence presented was above that threshold.

[00:09:30] Speaker 05:
That's not the minimum threshold.

[00:09:32] Speaker 05:
I think the test needs to be something based on the totality of the circumstances.

[00:09:37] Speaker 11:
Did you raise that argument before your supplemental brief?

[00:09:41] Speaker 11:
I know that is the argument that is advanced in your supplemental brief, but did you advance it at some earlier stage in this case?

[00:09:49] Speaker 05:
I think we may have mentioned that neither Laird nor Edelman specifically addressed the issue.

[00:09:54] Speaker 05:
I don't know that we expressly said that they need to be overruled.

[00:09:59] Speaker 05:
I don't know that

[00:10:02] Speaker 05:
A conclusion in my client's favor depends on overruling Lara and Edelman.

[00:10:08] Speaker 05:
But as the case develops, yeah, I think Lara and Edelman are inconsistent with that rule.

[00:10:18] Speaker 05:
They're inconsistent with sister circuits except for the first.

[00:10:29] Speaker 05:
Yeah, getting back to the totality of the circumstances,

[00:10:32] Speaker 05:
We have the only real pieces of evidence that the city refers to to support the limits is an outdated district attorney's report that

[00:10:42] Speaker 02:
took 10 years prior to the... But I guess that's my question, is do you even need that?

[00:10:48] Speaker 02:
I mean, because I agree, I sort of agree with that argument that if you need to show that you're responding to some corruption, the evidence here isn't exactly strong.

[00:11:00] Speaker 02:
So where does the evidence that you, where does the requirement come in that

[00:11:05] Speaker 02:
you have to actually be responding to, you have to allow corruption or some threshold of corruption to creep up before you can put in a contribution limit.

[00:11:15] Speaker 05:
I do think it'll be hard to identify a bright line rule, but.

[00:11:20] Speaker 02:
Well, I just want to know where the case is that says that or suggests it.

[00:11:24] Speaker 05:
I would say that it's Shrink, Missouri, it's McCutcheon, it's Buckley, it's Randall's actually kind of silent on the first problem.

[00:11:32] Speaker 02:
Those were enacted in response to

[00:11:35] Speaker 02:
The term limits there or the contribution limits there were enacted in response to perceptions.

[00:11:43] Speaker 05:
Correct.

[00:11:44] Speaker 05:
And I think Buckley and Shrink Missouri both kind of tell us this is some quantum of evidence that is enough.

[00:11:52] Speaker 05:
McCutcheon tells us some quantum of evidence that is not enough.

[00:11:57] Speaker 05:
And that's not perfectly analogous because it was the aggregate limit.

[00:12:01] Speaker 05:
But an important part of the McCutcheon reasoning was

[00:12:05] Speaker 05:
Once a donor hits that aggregate, how is it potentially corrupting influence by giving just one additional dollar to some other candidate?

[00:12:16] Speaker 05:
And that becomes analogous here, because the $500 limit is so low.

[00:12:23] Speaker 05:
It's almost kind of insulting to most of the hardworking, honest politicians who are out there trying to do- Want to take a lot more money.

[00:12:34] Speaker 05:
I think the vast majority are trying to do good work.

[00:12:40] Speaker 05:
There are some outliers that is inherent in the process, and that will always be true no matter what the limits are.

[00:12:48] Speaker 02:
Can you walk through the evidence that this was discriminatory and it was targeted?

[00:12:54] Speaker 02:
I mean, there's certainly some good inferences from it.

[00:12:58] Speaker 02:
I think there were some PowerPoints that suggested at least that the city manager

[00:13:04] Speaker 02:
walk through that and tie it a little more clearly so that we have an understanding of what that evidence is and how it related to the initiative.

[00:13:15] Speaker 05:
Absolutely.

[00:13:16] Speaker 05:
The PowerPoint that was attached to the panel opinion was part of the city manager's presentation when they go out and inform the community about the initiative.

[00:13:27] Speaker 05:
We look at the statement of purpose in the measure itself, which had

[00:13:32] Speaker 05:
a kind of a laundry list of three or four different things, several of which the Supreme Court has already said are not valid reasons to enact the contribution limit.

[00:13:44] Speaker 05:
And that's in the measure itself.

[00:13:46] Speaker 05:
There was similar language in the resolution to put the measure on the ballot.

[00:13:51] Speaker 02:
And so you take...

[00:13:54] Speaker 02:
Can you remind me what the specific I'm interested more in what was in the resolution?

[00:14:00] Speaker 02:
I mean the problem with the PowerPoint is It's not entirely clear Who that you know what that reflected and did that actually reflect any of the City Council members impressions or not the But what was the language and what they voted on and

[00:14:25] Speaker 05:
It's in the opening brief, the general crux of it was that they want to eliminate the perception of quid pro quo corruption caused by the coercive influence, something that, and I believe it was McCutcheon said that that's not, that the coercive influence in

[00:14:50] Speaker 05:
ingratiation to donors is not quid pro quo corruption.

[00:14:56] Speaker 05:
There was language analogous to wanting to level the playing field and equalizing the ability for other people to participate in politics.

[00:15:09] Speaker 11:
And why is any of that relevant?

[00:15:11] Speaker 11:
I mean, because I think in answer to Judge Nelson's earlier question, I think you said that when the voters voted to approve this measure, like, we don't even know that they were particularly focused on contribution moments as opposed to other things that the measure was doing.

[00:15:28] Speaker 11:
So why do we think that they were motivated by the passages you just read or the PowerPoint or anything else?

[00:15:39] Speaker 05:
I think that underscores why Shrink Missouri treated it somewhat as an aside.

[00:15:49] Speaker 05:
Let's just say that it was popular and let's say that the voter, just because it's popular doesn't mean

[00:15:56] Speaker 05:
It's a sufficient basis to infringe on First Amendment rights, if it so does.

[00:16:01] Speaker 11:
Well, no, that's right.

[00:16:02] Speaker 11:
I guess I was, insofar as you were trying to suggest that this was motivated, and I think the panel thought that this was motivated by some sort of, you know, invidious discriminatory motive.

[00:16:16] Speaker 11:
You know, even if the PowerPoint or other things support that, I don't see how we can infer that the people who voted for it were motivated by that.

[00:16:25] Speaker 05:
It's a piece of the totality of the circumstances analysis where you've got the statement of purpose that does not relate to the only legitimate purpose in a contribution limit.

[00:16:39] Speaker 05:
You have the instances of discrimination.

[00:16:41] Speaker 07:
Well, let's assume that if we read Randall as directing our attention solely to Measure B's effects, which Randall's danger signs does it light up?

[00:16:57] Speaker 05:
On the risk of conflating the Randall danger signs with its tailoring analysis, it's that there's no special justification for a limit so low that it is lower, like I said, than most limits in other cities.

[00:17:18] Speaker 05:
And the only support for it is the district attorney's report and the fact that voters

[00:17:26] Speaker 08:
I'm sorry, but it's not lower than most limits in most cities, is it?

[00:17:30] Speaker 08:
I mean, are you still saying that it is?

[00:17:34] Speaker 05:
If we exclude from the analysis cities that have not enacted a limit, then yes.

[00:17:39] Speaker 08:
What authority do you have that says we should exclude those?

[00:17:47] Speaker 05:
I think that's common sense.

[00:17:51] Speaker 05:
If you're going to say it is in the middle of similarly sized cities it needs to be in the middle of similarly sized cities and that it's intellectually dishonest to exclude from your analysis Half of the cities or whatever that number might be that I don't understand what you're talking about because the question is whether other Jurisdictions have done this not that you have to fit within some range.

[00:18:16] Speaker 02:
It's not like the bottom 25 percent or presumptively

[00:18:21] Speaker 02:
you know, illegal.

[00:18:22] Speaker 02:
At least I haven't seen that from the Supreme Court.

[00:18:25] Speaker 05:
It's one of the danger signs.

[00:18:29] Speaker 05:
And we take all of this together and there's nothing really that weighs in favor of its validity other than

[00:18:44] Speaker 05:
There's an omnipresent, non-illusory threat in preventing quid pro quo corruption that exists at all times.

[00:18:52] Speaker 08:
Do you have any evidence of other candidates, besides Mr. Starr, who are being unable to run effective campaigns in Oxnard in light of this Measure B?

[00:19:07] Speaker 05:
The focus was on Mr. Starr at the time.

[00:19:14] Speaker 05:
There is nothing so low that has ever been upheld by the Supreme Court.

[00:19:21] Speaker 05:
Let's bring it back to how is $500 going to be a corrupting influence?

[00:19:29] Speaker 08:
Bring it back to that.

[00:19:30] Speaker 08:
But what's the answer to my question?

[00:19:33] Speaker 08:
Do you have any evidence of other candidates, besides Mr. Starr, being unable to run an effective campaign in light of Measure B?

[00:19:43] Speaker 05:
Not on the district court record.

[00:19:46] Speaker 05:
Okay.

[00:19:48] Speaker 06:
Can I ask, on your first cause of action, it says the per candidate contribution limits violate free speech and association.

[00:19:55] Speaker 06:
You agree that you didn't raise an equal protection claim in that first cause of action, correct?

[00:20:00] Speaker 06:
Correct.

[00:20:01] Speaker 06:
Okay.

[00:20:01] Speaker 06:
But the language that the majority opinion and you're relying on about, about invidious discrimination, that is all in the discussion of Buckley that deals with an equal protection claim and not a First Amendment claim.

[00:20:14] Speaker 06:
So why should we import that equal protection language into a First Amendment analysis?

[00:20:22] Speaker 05:
Because it weighs on the substantial, the government's interest in preventing quid pro quo corruption and the quantum of evidence necessary to demonstrate that.

[00:20:37] Speaker 06:
But that's not a reason to import the invidious discrimination language in Buckley for equal protection into First Amendment.

[00:20:47] Speaker 06:
I'm not hearing that reason.

[00:20:52] Speaker 06:
Well, let me ask you another question.

[00:20:53] Speaker 06:
You do not argue that Measure B is somehow facially discriminatory, right?

[00:21:00] Speaker 06:
You would agree that Measure B's language is facially neutral.

[00:21:07] Speaker 05:
unconstitutional on the face from our perspective because they are so low.

[00:21:15] Speaker 05:
We have Davis versus FEC that described Randall as recognizing that contribution limits that are too low cannot stand.

[00:21:24] Speaker 06:
So you're not basing it on invidious discrimination, is that right?

[00:21:28] Speaker 05:
That is one of the factors that go into the totality of the circumstances that negate the government's interest in this case.

[00:21:38] Speaker 07:
The city describes this as testing the so I did you say it's facially neutral or not?

[00:21:44] Speaker 07:
Are you agreeing with that?

[00:21:45] Speaker 07:
It was my understanding that you did agree that it was facially neutral It's facially neutral, but still unconstitutionally low and So okay, if it's facially neutral do you contend that measure B is not evenly applied and

[00:22:06] Speaker 07:
I think Judge Coe was directing to that you're somehow importing an equal protection argument into something that's facially neutral.

[00:22:18] Speaker 05:
It's evidence of the government's interest where the city has described this as improperly looking at motive, which looks at the subjective intent.

[00:22:30] Speaker 05:
But when we look at the government's interest objectively,

[00:22:34] Speaker 05:
the totality of the circumstances, the focus on improper rationale to level the playing field and do the- Okay, I guess so.

[00:22:43] Speaker 07:
What's your best authority allowing us to consider the intent behind a measure that is facially neutral and evenly applied?

[00:22:53] Speaker 07:
Is that common sense?

[00:22:54] Speaker 07:
Is that your best authority?

[00:22:56] Speaker 05:
The authority is that it's not being used to evaluate the subjective intent and that it is evidence of the objective

[00:23:04] Speaker 05:
interest that the measure seeks to serve.

[00:23:09] Speaker 05:
It's part of the totality of the circumstances analysis.

[00:23:11] Speaker 05:
We add all of this together.

[00:23:13] Speaker 07:
Well, you're kind of losing me with subjective and objective and facial.

[00:23:18] Speaker 07:
I guess we're talking past each other.

[00:23:23] Speaker 07:
So where are you?

[00:23:26] Speaker 07:
Where's your authority for these intent that you're arguing?

[00:23:33] Speaker 05:
The authority is everything goes back to Randall and McCutcheon.

[00:23:39] Speaker 05:
And the quantum of evidence necessary to substantiate the government's interest varies up and down depending on the plausibility of that interest.

[00:23:52] Speaker 05:
And if all of the evidence points to this invidious discriminatory purpose plus the other considerations I've talked about,

[00:24:03] Speaker 05:
that reduces the plausibility that the city is actually interested in preventing quid pro quo corruption, which increases the amount of evidence they need to substantiate their interest.

[00:24:15] Speaker 05:
And the amount of evidence that they have provided in this case does not rise to the level necessary to substantiate that.

[00:24:22] Speaker 07:
Okay, hypothetically.

[00:24:24] Speaker 07:
Hypothetically.

[00:24:25] Speaker 07:
So if we were, and I don't know how people think, but hypothetically, if we were to disagree

[00:24:32] Speaker 07:
that the evidence of the voters' invidious discrimination, if we said it's not there, do you lose?

[00:24:39] Speaker 05:
No.

[00:24:40] Speaker 05:
Because when we get to the second prong and the tailoring analysis, the $500 limit is not closely drawn to that interest if that interest exists.

[00:24:53] Speaker 05:
Because it is so low, because it reduces the ability of

[00:24:58] Speaker 05:
candidates to raise money and wage a competitive campaign.

[00:25:02] Speaker 04:
Okay, Council, is there anything in the record that shows how much a race for a council position costs in Oxnard?

[00:25:12] Speaker 05:
There's some reports in there.

[00:25:14] Speaker 04:
What are we talking about?

[00:25:16] Speaker 04:
That it's so low that it effectively keeps someone from successfully running for City Council.

[00:25:22] Speaker 04:
Didn't your client, Mr. Starr, actually successfully run for City Council after the limits were enacted?

[00:25:28] Speaker 05:
He had to self-fund his campaign and focus his effort on walking door-to-door rather than raising money and Might have altered some of what he would ordinarily do to run an effective campaign, but it was effective nonetheless But it makes it hard.

[00:25:42] Speaker 05:
It makes it harder for people who are not in a position to self-fund And a lot of this happened after the fact after the district court decision, but none of them were challenged

[00:25:51] Speaker 05:
There's been a lot that's happened since the district court opinion.

[00:25:56] Speaker 02:
Or are you, I mean, are you challenging on behalf of others?

[00:25:59] Speaker 05:
I guess I'm sort of tying your... I think Oxnard Forward has a sort of membership standing on behalf of its members and others similarly situated, so yes.

[00:26:10] Speaker 02:
But back to Judge Wardlaw's question, we're talking about like $8,000, right?

[00:26:16] Speaker 02:
Or $10,000, that was my recollection of what it cost to run this.

[00:26:21] Speaker 05:
Quite low.

[00:26:23] Speaker 04:
What media market is Oxnard in?

[00:26:26] Speaker 04:
I'm sorry, I didn't get the question.

[00:26:28] Speaker 04:
What media market is Oxnard in?

[00:26:30] Speaker 05:
Los Angeles.

[00:26:31] Speaker 04:
Los Angeles County?

[00:26:34] Speaker 05:
Yeah.

[00:26:34] Speaker 04:
There's not a separate media market for Ventura?

[00:26:36] Speaker 05:
I don't believe so.

[00:26:38] Speaker 04:
I would imagine.

[00:26:39] Speaker 04:
OK, never mind.

[00:26:40] Speaker 05:
Any event, I've got minutes left.

[00:26:42] Speaker 05:
I'd like to reserve the balance of my time for about a minute.

[00:26:44] Speaker 08:
All right, thank you.

[00:27:11] Speaker 09:
Good afternoon, Holly Watley on behalf of the city clerk for the city of Oxnard.

[00:27:18] Speaker 09:
May it please the court.

[00:27:20] Speaker 09:
The trial court got it right.

[00:27:24] Speaker 09:
First, it properly applied the standard articulated in Edelman and Lair to conclude the city met its threshold burden to establish its interest in preventing quid pro quo corruption.

[00:27:37] Speaker 10:
How did you establish that burden?

[00:27:38] Speaker 10:
What evidence did you present to establish that?

[00:27:41] Speaker 09:
The evidence included the 2012 district attorney report of the corruption investigation involving the mayor, a city council member.

[00:27:53] Speaker 10:
Did any of that have to do with what we would call quid pro quo corruption?

[00:27:58] Speaker 09:
Yes, it did.

[00:28:00] Speaker 09:
It involved exchange of gifts for political favors.

[00:28:04] Speaker 07:
But it was a long time ago from when Measure B was happening, so I

[00:28:10] Speaker 07:
I have to say that it probably, well it does have, it's got some relevance.

[00:28:18] Speaker 07:
Was it the strongest case of corruption from, I mean how long ago, if you go back to corruption in 1850 and you put that on the

[00:28:26] Speaker 07:
Is that good enough?

[00:28:29] Speaker 07:
Does it matter?

[00:28:30] Speaker 09:
It is contextual.

[00:28:31] Speaker 02:
I can give you examples where there were larger gaps than the seven years from the DA report to the adoption of Measure B. But even setting aside, I mean, your point is any quid pro quo, whether it's a contribution or just a gift, fits within that standard.

[00:28:51] Speaker 02:
That is evidence.

[00:28:52] Speaker 02:
You don't have to look at someone

[00:28:54] Speaker 02:
you know, making high contributions in order to influence them.

[00:29:00] Speaker 09:
That is correct.

[00:29:01] Speaker 09:
Because if we look at Citizens United, which talked about the quid pro quo corruption, and they defined it as activity that would, if proven, prove bribery.

[00:29:14] Speaker 09:
And bribery is an exchange of value for political favors.

[00:29:17] Speaker 02:
I wanted to ask you about Citizens United.

[00:29:19] Speaker 02:
To what degree does that undermine our prior case law like Randall,

[00:29:24] Speaker 02:
I mean, it does suggest that the Supreme Court might be going in a different direction here or sticking out something new.

[00:29:32] Speaker 02:
I mean, does that counsel us to be a little more cautious in what sort of limits we are approving?

[00:29:42] Speaker 09:
It counsels it only as to the interest at issue, and it limits it to quid pro quo corruption or its appearance.

[00:29:50] Speaker 09:
Citizens United was silenced as to the quantum of interest involved.

[00:29:55] Speaker 09:
So was McCutcheon.

[00:29:56] Speaker 09:
McCutcheon found that the limits foundered on tailoring, not on the quantum of evidence.

[00:30:03] Speaker 09:
So the change that those two brought was not as to the threshold quantum of evidence, it was as to what the evidence related to.

[00:30:14] Speaker 09:
And that is limited to quid pro quo corruption.

[00:30:17] Speaker 06:
In Thompson, the Supreme Court found that the $500 contribution limit had some of the Randall danger signs because it was substantially lower than, you know, limits previously upheld.

[00:30:31] Speaker 06:
Does that mean that we should find the $500 limit here to be invalid?

[00:30:40] Speaker 06:
No.

[00:30:41] Speaker 06:
Why not?

[00:30:42] Speaker 06:
No.

[00:30:42] Speaker 09:
The $500 in Thompson was a statewide limit.

[00:30:48] Speaker 09:
Here we have examples where here we're talking about a district elections and then one and then a few citywide offices for the city of Oxnard which has a population of about 200,000.

[00:31:02] Speaker 07:
So it makes a difference what type of election it is.

[00:31:06] Speaker 07:
If this were a bigger election that had maybe a primary and

[00:31:11] Speaker 09:
for senator something like that that makes a difference it absolutely makes a difference because if we step back and remember interest overall that we're looking to protect is the interest

[00:31:23] Speaker 09:
of challengers and others to mount effective campaigns.

[00:31:28] Speaker 09:
And that amount is going to vary depending on the size of the jurisdiction where the campaign is taking place.

[00:31:37] Speaker 02:
What does the campaign cost here?

[00:31:38] Speaker 02:
I had this idea of $10,000 in my mind.

[00:31:41] Speaker 02:
Maybe he says that's low.

[00:31:43] Speaker 02:
And it is in the LA media market.

[00:31:49] Speaker 09:
I cannot answer the question of what a campaign does cost.

[00:31:54] Speaker 02:
I can point you to... Aren't there disclosure statements?

[00:31:57] Speaker 09:
There are disclosure statements, and I can point you to Table 3 in Dr. Couser's report at ER 428, which has the chart of the total amount raised by candidates in the 2018 election, which was the last regular election held before Measure B took effect.

[00:32:16] Speaker 06:
Can we go back to Thompson?

[00:32:17] Speaker 06:
There wasn't any language in Thompson limiting it.

[00:32:21] Speaker 06:
The Randall danger sign, you know, tentative holding to statewide elections, is there?

[00:32:30] Speaker 09:
I don't know for sure, I can't say.

[00:32:34] Speaker 09:
But I do think that it does make a difference if we're looking at what Buckley talked about in Shrink, Missouri, where we're looking at, or actually Randall's focus was, here are the tests to examine whether the limits are so low that they prevent

[00:32:53] Speaker 09:
challenges and candidates from mounting effective campaigns.

[00:32:58] Speaker 09:
So against that backdrop of that purpose, it does make sense to look and adjust those limits depending on the jurisdiction involved.

[00:33:08] Speaker 09:
There are examples at the district court decision in Thalheimer

[00:33:12] Speaker 09:
found that the $500 limit for the city of San Diego was adequate.

[00:33:17] Speaker 09:
And San Diego is far bigger than the city of Oxnard.

[00:33:22] Speaker 07:
Can you explain to me, and I've read a lot about this, but the difference between expenditures and contributions and why that's important in terms of making that.

[00:33:33] Speaker 07:
I thought we agreed we were in contribution land here.

[00:33:36] Speaker 07:
But your friend on the other side said, well, maybe not.

[00:33:42] Speaker 07:
So explain to me that in terms of why that makes a difference and where you see a we are and why it may offer an opportunity to conflate analyzing something from a straight First Amendment prism as opposed to

[00:34:07] Speaker 07:
whether it's content neutral, whether it's looking at the content and what the standard of review is.

[00:34:15] Speaker 07:
Can you explain expenditures and contributions to me in that context?

[00:34:20] Speaker 09:
I can.

[00:34:21] Speaker 09:
Measure B is squarely a contribution limit.

[00:34:24] Speaker 09:
It's not an expenditure limit.

[00:34:28] Speaker 09:
So committees or organizations that spend money, that expend money,

[00:34:34] Speaker 09:
not coordinated with a candidate that expend money to advance ideas, not coordinated with a candidate under Citizens United, we know that that is entitled to a heightened, that is classic First Amendment activity entitled to a heightened strict scrutiny review.

[00:34:54] Speaker 09:
Campaign contributions, on the other hand, are not.

[00:34:57] Speaker 09:
These are contributions made by a person to a candidate, but Buckley found that they were entitled to a lower standard of review, the closely drawn... Well, it's sort of like, would you contribute to someone that you didn't agree with?

[00:35:13] Speaker 07:
It sort of seems like you are speaking.

[00:35:14] Speaker 07:
If money is speech, it seems like you're speaking.

[00:35:17] Speaker 09:
There is some measure of speech, but there are other ways you can associate and identify with a candidate that Buckley recognized and that are captured in the Randall factors.

[00:35:29] Speaker 09:
One of them is volunteering.

[00:35:31] Speaker 09:
You can still volunteer and associate yourself and support a candidate.

[00:35:36] Speaker 09:
What the corruption issue presents that is different between contributions and expenditures is that the opportunity

[00:35:47] Speaker 09:
for quid pro quo corruption is right there in giving money directly to a candidate, not in giving it to an organization that spends money to support the candidate's ideas.

[00:35:59] Speaker 10:
But if you had the kind of threshold burden that you would have in intermediate scrutiny, say for example, to show that there is a real problem and

[00:36:10] Speaker 10:
that you're trying to address it and that this would actually respond to that.

[00:36:15] Speaker 10:
Did you present enough evidence by presenting 10-year-old evidence of people receiving unreported gifts that that really shows that there's an interest in quid pro quo corruption fighting at the time that this was proposed?

[00:36:30] Speaker 09:
Yes.

[00:36:31] Speaker 09:
And that is because although there's some question about whether the seven-year gap is too old, there are many examples where an even greater gap existed where the interest was nevertheless upheld.

[00:36:45] Speaker 10:
Do you think it's constitutionally irrelevant if the city council's posed that it was just flagrantly conceded that the city council put this on the ballot because they wanted to kneecap Aaron Starr?

[00:36:59] Speaker 10:
Is that constitutionally irrelevant in your view?

[00:37:01] Speaker 10:
Would you set that aside?

[00:37:03] Speaker 10:
Because there isn't a Randall Danger sign.

[00:37:05] Speaker 10:
That's not on the list.

[00:37:07] Speaker 09:
In a facial challenge, motive is irrelevant, and it would be irrelevant.

[00:37:12] Speaker 10:
Why is motive irrelevant in the context of a regulation of speech?

[00:37:16] Speaker 10:
What case says motive is relevant to regulation of speech?

[00:37:21] Speaker 09:
Well, the United States versus O'Brien case... O'Brien is about conduct.

[00:37:26] Speaker 10:
In the context of conduct, that's true, but if you're regulating speeches, for example, in time, place, and manner, or intermediate scrutiny, motive is not irrelevant.

[00:37:36] Speaker 09:
I continue to believe that on a facial challenge to a facially neutral law, that motive

[00:37:45] Speaker 09:
When there is no equal protection.

[00:37:47] Speaker 10:
But what about the objective risk?

[00:37:49] Speaker 10:
I mean, this record creates an objective risk that this was proposed by the city council because this guy was a pain in the neck and they wanted to stop him.

[00:37:58] Speaker 10:
There's objective suspicion of that.

[00:38:01] Speaker 10:
And everything seems very well tailored with that objective and not so well tailored to a 10-year-old GIF report where there were no prosecutions and no actual evidence of quid pro quo corruption.

[00:38:14] Speaker 09:
Well, when we look at the tailoring argument, the test must be based on objective risks to challengers, not on a subjective motive as to one candidate.

[00:38:26] Speaker 09:
And as to the evidence, concerns you've raised.

[00:38:29] Speaker 02:
It is hard to swallow the argument that you're putting forward.

[00:38:33] Speaker 02:
I mean, that might be the legal test.

[00:38:35] Speaker 02:
But you're basically taking the position that if you have one

[00:38:39] Speaker 02:
potentially success, it's fine to have a bunch of challengers who will never get, you know, get a serious candidacy going.

[00:38:47] Speaker 02:
But if you have one serious challenger and you don't want them in there, you can target them.

[00:38:52] Speaker 02:
It doesn't seem consistent with the democratic process.

[00:38:55] Speaker 09:
I think you're, I want to step back and make some points about the evidence that we're talking about that is raising some concerns.

[00:39:02] Speaker 09:
So the council placed measure B on the ballot on October 15th, 2019.

[00:39:10] Speaker 09:
The PowerPoint presentation that's mentioned was not presented until three and a half months later.

[00:39:16] Speaker 09:
And even then, it was not presented to council.

[00:39:19] Speaker 09:
And even then, it was something prepared by the city manager.

[00:39:27] Speaker 02:
Do you want us to believe that this was not targeting Mr. Starr?

[00:39:33] Speaker 09:
I do.

[00:39:34] Speaker 09:
The evidence does not support

[00:39:36] Speaker 09:
that it targeted Mr. Starr.

[00:39:38] Speaker 09:
The court sustained the objections regarding the alleged motivation, and that's in the record at ER 28 to 30.

[00:39:45] Speaker 02:
Your argument seems to be even if we thought it targeted Mr. Starr, it doesn't matter.

[00:39:52] Speaker 09:
Correct.

[00:39:52] Speaker 09:
For a facial challenge, what is absent here and where maybe motive becomes an issue is if there is an equal protection challenge based on a discrimination against challengers as a class.

[00:40:06] Speaker 09:
Even Shrink Missouri states that if a campaign limit particularly limits only one candidate, even that, even on those facts, that is not enough to find it unconstitutional.

[00:40:21] Speaker 07:
Does it matter that the people voted on Measure B?

[00:40:29] Speaker 07:
And is that where you would have to find the invidious discrimination?

[00:40:34] Speaker 07:
Does it matter that that

[00:40:35] Speaker 09:
That that's part that that that fact happened It is relevant and that is because the voters approved it So we've got to look at the voters motive right as you would one would have to look at that Why was it submitted to the voters because the City Council could have enacted this directly?

[00:40:54] Speaker 10:
Why was it submitted to the voters?

[00:40:56] Speaker 09:
Their statement was to put it to the voters so the voters could decide

[00:41:00] Speaker 09:
That was to put it to the voters.

[00:41:02] Speaker 09:
That was the choice.

[00:41:03] Speaker 10:
Was there a component of this package that had to go to the voters?

[00:41:08] Speaker 10:
Because you had gifts, you had term limits, and then you had the contribution limits.

[00:41:14] Speaker 10:
Was there one component that required a ballot initiative?

[00:41:22] Speaker 09:
I can't recall for sure it may be that the term limits did require one, but I can't know for sure.

[00:41:27] Speaker 10:
Okay, so it had to go to the voters for the term limits and these were piggybacked off?

[00:41:30] Speaker 09:
I'm not sure about the term limits.

[00:41:33] Speaker 11:
A moment ago you said that an equal protection claim here would have to be based on discrimination against challengers as a class.

[00:41:40] Speaker 11:
Did I understand that correctly?

[00:41:42] Speaker 11:
Yes.

[00:41:43] Speaker 11:
So why couldn't you have a claim?

[00:41:47] Speaker 11:
Village of Willowbrooks says you can have equal protection claims based on discrimination against a class of one.

[00:41:52] Speaker 11:
So in a case where the council said, we have no problem with challengers in general.

[00:41:58] Speaker 11:
We just don't like this person.

[00:42:02] Speaker 11:
You don't think you could have an equal protection claim based on that?

[00:42:05] Speaker 09:
Well, importantly, one was not pled or alleged here.

[00:42:09] Speaker 11:
It was not the subject of the motion.

[00:42:11] Speaker 11:
Fair enough.

[00:42:11] Speaker 11:
But just as a matter of equal protection law,

[00:42:16] Speaker 11:
Would that be a viable claim?

[00:42:18] Speaker 11:
Or could it be?

[00:42:19] Speaker 09:
Theoretically, I am aware of the law that says there can be a class of one.

[00:42:25] Speaker 09:
Here, equal protection was not alleged as a basis.

[00:42:30] Speaker 10:
I don't see why that matters, because if the First Amendment

[00:42:34] Speaker 10:
protects against targeting speakers and content, and that overlaps with equal protection, why does it matter whether equal protection wasn't alleged?

[00:42:43] Speaker 10:
If First Amendment was alleged and the First Amendment has a concern about targeting speakers and targeting content, then an objective risk of that, then why isn't there an inquiry into that?

[00:42:56] Speaker 10:
I don't understand why that's not on the table.

[00:42:58] Speaker 09:
Well, I think that Buckley, when it talked about invidious discrimination, it was in the context of the First Amendment challenge there.

[00:43:07] Speaker 09:
And it said there was no grounds for it there.

[00:43:10] Speaker 10:
Are you saying that cities can adopt contribution limits for the purpose of targeting specific candidates or under circumstances that create an objective risk that they may be, in fact, trying to target particular candidates?

[00:43:25] Speaker 10:
Are you saying the First Amendment doesn't care about that?

[00:43:29] Speaker 09:
When there is not a claim of equal protection.

[00:43:32] Speaker 10:
Take the answers, yes, then.

[00:43:35] Speaker 01:
Was there a viewpoint discrimination claim pled here?

[00:43:39] Speaker 08:
No.

[00:43:40] Speaker 08:
Was there a retaliation claim made?

[00:43:42] Speaker 08:
No.

[00:43:47] Speaker 00:
Well, counsel, let me ask you this.

[00:43:48] Speaker 00:
Outside of the equal protection context, I think it's always

[00:43:53] Speaker 00:
pretty heavily disfavored to start looking at different legislator intent because one legislator may think X and another one may think Y. But even assuming that that legislative intent or motive is somehow considered, how does that weigh into the fact that it overwhelmingly passed?

[00:44:11] Speaker 00:
Where does the voter intent versus legislative intent, how does that interplay work?

[00:44:17] Speaker 09:
Well, in the Lair case, one of the arguments was made that in the voter pamphlet, there was language in it that suggested there was an impermissible motive for the limit issue there.

[00:44:33] Speaker 09:
And this circuit counseled that we're not going to look at motive.

[00:44:38] Speaker 09:
What we're going to do is we're going to look at tailoring.

[00:44:40] Speaker 09:
This is not a motive inquiry.

[00:44:42] Speaker 09:
This is a tailoring inquiry.

[00:44:44] Speaker 09:
So you look at the tailoring factors, the later factors in Randall, to evaluate whether the limit creates the alleged problems.

[00:44:57] Speaker 09:
And here, the trial court didn't reach the later Randall tailoring factors because it determined there was an absence of any danger signs in the first instance.

[00:45:10] Speaker 09:
But when you look at this court can nevertheless still affirm because it has a record before it and can determine that here those factors don't counsel against finding them.

[00:45:23] Speaker 07:
Do Laren Edelman need to go?

[00:45:25] Speaker 07:
And if they go, does that make any difference to the outcome for you?

[00:45:31] Speaker 09:
They do not need to go.

[00:45:32] Speaker 09:
They are consistent with Supreme Court authority, even that that post-dated it.

[00:45:38] Speaker 09:
They remain a good law and a statement as to what the quantum of evidence is.

[00:45:43] Speaker 11:
Do you think a claim for the overruling of Lara Nettelman has been properly presented here?

[00:45:50] Speaker 09:
Well, it wasn't raised in the lower court, in the trial court, and it wasn't addressed at the court of appeal at the initial three-judge panel stage.

[00:46:04] Speaker 09:
So... So it's forfeited?

[00:46:08] Speaker 09:
I would argue it is forfeited.

[00:46:11] Speaker 10:
Well, but it was binding precedent at both the district court and the three-judge panel level, correct?

[00:46:17] Speaker 10:
It was.

[00:46:17] Speaker 10:
Right.

[00:46:18] Speaker 10:
So you have to ask in a footnote in your merits brief for overruling en banc, do we ask for briefs to be cluttered that way before people can raise issues before the en banc court?

[00:46:32] Speaker 09:
Well, I do think there needs to be some fair notice of the claims made by one side so the other can prepare to meet them.

[00:46:42] Speaker 09:
Certainly, we took the request for supplemental briefing as the opportunity to prepare to meet that issue, but that was not first raised at the trial court or at the lower court.

[00:46:53] Speaker 09:
I mean, I'm sorry, at the panel decision stage.

[00:46:57] Speaker 10:
But do you agree that you would lose under the standard that Judge Okuda advocated in her dissent from denial of a hearing in Lair, that it should be the same threshold test as it for intermediate scrutiny, or do you think you would win under that test?

[00:47:18] Speaker 09:
I think we would win.

[00:47:20] Speaker 09:
And that is because of the evidence that we provided of, as a reminder, we're talking about gifts that were made to elected officials who then participated in decisions to, for example, give a multimillion, recommend a multimillion-dollar contract for one of the jet owners.

[00:47:44] Speaker 09:
So the private jet trips to Cabo and to Napa

[00:47:49] Speaker 09:
Companies associated with that business owner got favorable deals with the city.

[00:47:56] Speaker 09:
The same private jet flew a different council member to Cabo, and the day after the return, voted on selling valuable property to that person.

[00:48:10] Speaker 09:
So these are actual, genuine evidence of exchanges of money

[00:48:19] Speaker 09:
for political favors.

[00:48:20] Speaker 09:
And as to the critique, as to the time gap, I want to address that the dissent in Edelman and the dissent in Lair critiqued the evidence there.

[00:48:36] Speaker 09:
And recall that among the evidence there was the 1981 burn this letter after receipt or something like that, and then 1982

[00:48:48] Speaker 09:
voter survey or public survey.

[00:48:53] Speaker 09:
The limits that were adopted there were adopted in 94.

[00:48:58] Speaker 09:
And the dissent in critiquing that evidence, nowhere, nowhere talks about the time gap.

[00:49:06] Speaker 09:
We also have the second decision, the second circuit decision in Onyebene,

[00:49:13] Speaker 09:
where there was a gap of 19 years from the original contribution to the ultimately upheld limits there.

[00:49:23] Speaker 09:
So the gap, the critique that came in Edelman and Lair was that the evidence there, regardless of the timing, showed influence, not quid pro quo corruption.

[00:49:37] Speaker 09:
And when in Lair, the dissent

[00:49:44] Speaker 09:
made that critique, it asked, where is the evidence that a legislature caused the rerouting of a freeway to benefit a commercial owner who paid the legislator's vacation travels?

[00:50:00] Speaker 09:
We have that evidence.

[00:50:03] Speaker 09:
It would meet even intermediate scrutiny.

[00:50:07] Speaker 03:
So I take it, given your argument about

[00:50:10] Speaker 03:
Subjective intent evidence that you don't you don't consider this to be You're not presenting this as like this is this the voters must have been thinking about this when they voted for the council People must have been thinking about this right your this is in your view some sort of objective evidence that would support these It's old, but it's it's objective evidence It has to be or are you thinking this is subject is no it is objective evidence that supports the interest right so I so I

[00:50:39] Speaker 03:
Hope you guys see where I'm going with this does it it just seems like it's that the game board has been set up a little bit unfairly because when it comes to evidence of the possibility of corruption everything counts and it's real things that happen and it doesn't have to know that anybody's Actually acted on that in fact we know that the person had power to do it the da didn't right you know

[00:51:06] Speaker 03:
But on the other hand, if you look at anything other than that, which would be trying to go after one person, that gets characterized as impermissible subjective evidence.

[00:51:16] Speaker 03:
And so it just seems like it's very difficult for anybody to ever meet their burdens in these cases because the objective evidence is the quid pro corruption, any evidence of that is always going to be available because we live in a fallen world where somebody is going to do something bad.

[00:51:33] Speaker 03:
At some point, if it's not seven years, 14 is probably close enough, 21, I don't know about 1850, but somewhere in between there.

[00:51:41] Speaker 03:
But on the other hand, everything else is always going to be, well, that's subjective evidence.

[00:51:45] Speaker 03:
Like how could you ever win under the standard that the way you're articulating and I think maybe the way our courts, how could a person ever win?

[00:51:54] Speaker 03:
That's what I'm struggling with.

[00:51:55] Speaker 03:
You see the challenge I'm having is it seems like the whole thing is set up to make it so the quid pro quo always comes in.

[00:52:02] Speaker 03:
the appearance, it's almost always the appearance, and then, but everything else does not come in because that's motive evidence.

[00:52:12] Speaker 09:
Well, in this case, even if we look at the motive evidence, at least as to when the council placed... We say motive evidence, even if we look at the evidence that there was a person who was running that

[00:52:27] Speaker 03:
And so we ignore what any anybody thought about it, but we just this that we could look and say objectively this person might be affected worse off by these

[00:52:37] Speaker 03:
Is that what you mean by motive or what do you mean?

[00:52:41] Speaker 09:
Well, I'm talking about the motive allegations.

[00:52:44] Speaker 09:
The evidence is the PowerPoint, which again, the objective evidence is that the council voted to place it on the ballot three and a half months before that PowerPoint ever appeared.

[00:52:58] Speaker 03:
But the quid pro quo wouldn't be objective evidence under that unit.

[00:53:03] Speaker 03:
Why does quid pro quo come in, but possible concerns about trying to keep a particular person out does not come in?

[00:53:13] Speaker 03:
You see the challenge there?

[00:53:16] Speaker 09:
Well, we're talking about two separate steps.

[00:53:22] Speaker 03:
Well, that's the thing.

[00:53:24] Speaker 03:
It's two separate steps because we've set it up that way.

[00:53:27] Speaker 03:
I mean, because we've set it up that way.

[00:53:31] Speaker 03:
And especially when you take the Edelman layer gloss on it.

[00:53:34] Speaker 03:
And so what did my, you know, when I try to zoom out and look at this from further away, the first step when you say is there any chance of quid pro quo, I mean, as they said in their supplemental brief, it's always going to be met.

[00:53:50] Speaker 03:
So that step, it's always going to be met.

[00:53:54] Speaker 03:
And then what we call narrow tailoring, we basically have a paragraph when we say,

[00:54:00] Speaker 03:
you know, it's like Second Amendment cases.

[00:54:02] Speaker 03:
We quote the language from the Supreme Court and then we explain for the rest of the opinion about how it's not narrow at all and it's really deferential from us and all that.

[00:54:08] Speaker 03:
And so it just doesn't feel like it's standard that anybody could ever win.

[00:54:12] Speaker 03:
I don't, I mean, how could, what would count as winning?

[00:54:18] Speaker 03:
What would let somebody like them win a case like this?

[00:54:23] Speaker 09:
Well, I don't think they could win this case.

[00:54:26] Speaker 03:
I think if we had signed affidavits from everybody that voted for it, that they voted for it to go after.

[00:54:35] Speaker 03:
one individual person.

[00:54:37] Speaker 03:
It doesn't sound like that would win because it's subjective, and that's fine.

[00:54:41] Speaker 03:
So what could somebody, and the dollar amounts from the Supreme Court cases are enough because this is a city, even though it's a city that's a lot closer to the size of, I mean it's a county, it's a lot closer to the size of Montana than it is to the size of California, right?

[00:54:57] Speaker 03:
So I'm just trying to figure out how anybody could ever win on one of these cases.

[00:55:04] Speaker 09:
They can't win on this case.

[00:55:05] Speaker 09:
That much I know on this record and on this case.

[00:55:09] Speaker 07:
But give us some facts where someone would win.

[00:55:12] Speaker 07:
Let's say you didn't put that paragraph in.

[00:55:14] Speaker 07:
You put nothing in about a past problem.

[00:55:18] Speaker 07:
Would they win?

[00:55:19] Speaker 09:
If they had pled a, you know, that since this was a facial challenge, if they had pled an equal protection claim

[00:55:30] Speaker 09:
based on disparate impact, and they had evidence to show that it affected challengers as a class, Buckley suggests that could be an issue.

[00:55:44] Speaker 09:
And none of that was present here.

[00:55:47] Speaker 03:
So it sounds like your argument is really important, because some of your arguments, well, they just pled this wrong.

[00:55:54] Speaker 03:
But it doesn't seem crazy to me to think that when you're talking about a speech case, if

[00:56:00] Speaker 03:
If you're trying to, you know, you could plead it as a equal protection class of one type case, but couldn't you also plead it as a targeting type case?

[00:56:10] Speaker 03:
If you're targeting, it just says to me, like, why couldn't you target it?

[00:56:13] Speaker 03:
Why couldn't you plead it that way?

[00:56:15] Speaker 09:
Well, again, this was not pled as a First Amendment retaliation or a First Amendment targeting claim.

[00:56:21] Speaker 09:
This was a straight up on its face.

[00:56:25] Speaker 02:
Hold on.

[00:56:26] Speaker 02:
It was a First Amendment targeting claim, wasn't it?

[00:56:28] Speaker 02:
I mean, he claims that you adopted these rules to target him and put him at a disadvantage.

[00:56:38] Speaker 02:
I mean, he doesn't bring an Equal Protection Clause claim, but he does bring it as a First Amendment targeting claim.

[00:56:45] Speaker 09:
He moved for summary judgment on his spatial claim and didn't pursue the as applied.

[00:56:56] Speaker 06:
So if I look at the complaint, let me look at the First Amendment complaint.

[00:56:59] Speaker 06:
I actually don't see anything.

[00:57:01] Speaker 06:
I'm looking at ER 521 through ER 524, which is the first cause of action, which is the only one that's at issue here.

[00:57:10] Speaker 06:
I don't actually see anything here about retaliation against Mr. Starr.

[00:57:14] Speaker 06:
Correct.

[00:57:16] Speaker 06:
I'll just go through.

[00:57:17] Speaker 06:
It says it's challenging whether they're closely drawn because it would take significantly more than a $500 and $750 contribution to create even the appearance of quid pro quo corruption, let alone its reality.

[00:57:30] Speaker 06:
They're insufficient to allow candidates to amass sufficient resources to wage an effective campaign.

[00:57:35] Speaker 06:
Treating candidate campaign committees differently from other committees controlled by a candidate further restricts individual rights of speech and association.

[00:57:42] Speaker 06:
I don't actually see any allegations in this first cause of action that have anything to do specifically with Mr. Starr.

[00:57:50] Speaker 06:
He's not mentioned here at all.

[00:57:51] Speaker 06:
I don't see his name.

[00:57:53] Speaker 06:
I don't see any of this retaliation in here.

[00:57:56] Speaker 06:
Correct.

[00:57:58] Speaker 10:
At the summary judgment, there was such evidence, and indeed, you indicated the district court declined to consider any evidence of targeting, correct?

[00:58:08] Speaker 09:
That's correct.

[00:58:09] Speaker 09:
The district court sustained our objections to that evidence, and the plaintiff did not appeal that evidentiary ruling.

[00:58:18] Speaker 08:
I guess a lot of questions being presented to you, but I guess let me ask you.

[00:58:25] Speaker 08:
The burden to overturn these democratically passed laws, shouldn't they be relatively high?

[00:58:37] Speaker 09:
They should be.

[00:58:37] Speaker 09:
And that does relate to the fact that to the extent

[00:58:44] Speaker 09:
that the rationale for overturning it is based on a motive concern.

[00:58:50] Speaker 09:
As Justice Scalia said in Lakumi, it's impossible to determine the motive of a collective legislative body.

[00:58:59] Speaker 09:
It's even more attenuated and impossible when that legislation was approved by voters.

[00:59:09] Speaker 08:
Thank you.

[00:59:12] Speaker 09:
In my few minutes left.

[00:59:14] Speaker 09:
Oh, you're over to your over time.

[00:59:16] Speaker 09:
Oh, I'm sorry Thank you.

[00:59:18] Speaker 05:
Thank you so much Irrespective of the

[00:59:41] Speaker 05:
sufficiency analysis to determine the sufficiency of funds for challengers to mount an effective campaign.

[00:59:49] Speaker 05:
Before we get there, there needs to be a nexus between the contribution limit and the corrupting influence on that limit.

[00:59:58] Speaker 05:
And $500, there's no evidence in the record.

[01:00:04] Speaker 05:
There's no even real logic that says $500 is going to be corrupting.

[01:00:09] Speaker 10:
Do you agree that the DA report shows evidence of quid pro quo corruption?

[01:00:18] Speaker 05:
No, especially to the extent that it focuses on gifts as opposed to campaign contributions.

[01:00:25] Speaker 05:
But where this goes is... Does that matter?

[01:00:28] Speaker 02:
I'm just wondering, under Randall, does that matter?

[01:00:32] Speaker 02:
I mean, it has to be quid pro quo, but does Randall also say that it has to

[01:00:40] Speaker 02:
contributions as opposed to gifts.

[01:00:41] Speaker 02:
I mean, it seems like both could be used.

[01:00:44] Speaker 05:
It doesn't matter because there's no First Amendment right to receive a gift.

[01:00:49] Speaker 05:
But there is a First Amendment right to campaign for public office.

[01:00:54] Speaker 05:
And that gets to another issue that was briefed before and was mentioned in the lower court, the prior appellate briefing here.

[01:01:03] Speaker 05:
And that's the candidate's right

[01:01:06] Speaker 05:
under the First Amendment to raise money for their campaigns as distinct from the donor's right to give to the campaign.

[01:01:14] Speaker 05:
And that's where it becomes an expenditure limit.

[01:01:18] Speaker 05:
Because as the limit shrinks and approaches zero, there might very well be voter support to end political speech altogether.

[01:01:32] Speaker 05:
And political contributions are

[01:01:35] Speaker 05:
Illegal, we don't want anybody making contributions.

[01:01:37] Speaker 05:
And that would be a patent First Amendment violation.

[01:01:41] Speaker 05:
But as our limits approach zero, that's more or less where we're going.

[01:01:47] Speaker 05:
And it limits the amount of speech the candidate can engage in and puts it into outside entities, taking it away from the candidates to speak on their own behalf.

[01:01:58] Speaker 05:
And having super PACs and different kinds of third parties who are speaking for them without their coordination or maybe with it, we don't know.

[01:02:07] Speaker 05:
And that is a much bigger problem here and that's the biggest issue as these limits approach zero and why the court needs to look very carefully at the $500 limit and whether there is any interest in limits so low.

[01:02:24] Speaker 05:
as those eventually kind of transpose on top of the Randall analysis where the most important consideration here is that the limits are just really low, unreasonably, unrealistically, unconstitutionally low.

[01:02:45] Speaker 04:
I don't know what the upper limit so what do you make of the expert opinion table three that shows that of cities between similar populations This these limits fall right in the middle As I said before I think his analysis is intellectually dishonest because because he excluded those cities that have no limits at all Is there I guess some people have asked this but I still where would that requirement come from that?

[01:03:15] Speaker 04:
the comparison would be, because it seems like the case law talks about the comparators are other places with low limits.

[01:03:28] Speaker 05:
The basis for comparison is other jurisdictions.

[01:03:31] Speaker 01:
I don't think.

[01:03:32] Speaker 01:
But counsel, under the standard, not every government, local, state, federal entity can pass contribution limits, because they have to have more than a hypothetical interest.

[01:03:44] Speaker 01:
So by definition, there will be only some with contribution limits.

[01:03:52] Speaker 01:
So why would the correct comparator be ones who have none?

[01:03:56] Speaker 05:
And that relates also to the government interest.

[01:03:59] Speaker 05:
If they don't have an interest in implementing contribution limits, then the problem might not be as pervasive as some perceive it to be.

[01:04:13] Speaker 05:
Out of time, final thought here is on the ultimate issue here is the summary judgment motions.

[01:04:23] Speaker 05:
The city's summary judgment motion is unsupported.

[01:04:29] Speaker 05:
During the argument, it was mentioned that plaintiffs move for summary judgment on this one issue, and that one issue is the $500 limit.

[01:04:41] Speaker 05:
If the court were to not find that that $500 limit is potentially, there's no basis there to force the district court to grant our summary judgment motion, and the record is incomplete on some of the other issues, the appropriate solution there would be to remand to build the other claims that have been described as not sufficiently pled and supported.

[01:05:08] Speaker 05:
But on the record we have here, $500 is too low.

[01:05:11] Speaker 08:
Thank you.

[01:05:13] Speaker 08:
The case of moving Oxford versus Lourdes-Lobos is now submitted.

[01:05:19] Speaker 08:
Mr. Morgan, Ms.

[01:05:20] Speaker 08:
Watley, thank you very much for your argument presentation.

[01:05:23] Speaker 08:
We are adjourned.