United States Court of Appeals
                         FOR THE EIGHTH CIRCUIT
                                 ___________

                               Nos. 00-1773/2686
                                 ___________

Missouri Republican Party, A Political *
Party Committee; Pierce for Auditor,   *
A Candidate Committee; Charles A.      *
Pierce; Marc Ellinger; Citizens for    *
Eric Zahnd, A Candidate Committee;     *
Eric Zahnd; Lee R. Keith; Citizens     *
to Elect Mike Reid, A Candidate        *
Committee; Michael J. Reid; and        *
Elaine Tschee Reid,                    *
                                       *
          Appellees/Cross-Appellants, *
                                       *
       v.                              *   Appeals from the United States
                                       *   District Court for the Eastern
Charles G. Lamb, In His Official       *   District of Missouri.
Capacity as Executive Director of      *
the Missouri Ethics Commission;        *
Robert Gardner, In His Official        *
Capacity as Chair of the Missouri      *
Ethics Commission; Patricia Flood,     *
In Her Official Capacity as Vice-Chair *
of the Missouri Ethics Commission;     *
Richard Adams, Elaine Spielbusch,      *
Donald Gann, and Mike Greenwell, In *
Their Official Capacity as Members     *
of the Missouri Ethics Commission;     *
and Jeremiah W. (Jay) Nixon, In His    *
Official Capacity as Missouri Attorney *
General,                               *
                                       *
          Appellants/Cross-Appellees. *
                                     ___________

                              Submitted: September 10, 2001

                                   Filed: November 2, 2001
                                    ___________

Before BOWMAN, JOHN R. GIBSON, and MORRIS SHEPPARD ARNOLD,
      Circuit Judges.
                         ___________

MORRIS SHEPPARD ARNOLD, Circuit Judge.

       This is a suit to enjoin the enforcement of Mo. Rev. Stat. § 130.032.4 and
§ 130.032.7, which limit the amount of cash and in-kind contributions that political
parties may make to a candidate for public office, and provide penalties for violating
the limitations that those statutes set. The plaintiffs (a political party, candidate
committees, and candidates for public office) asserted that these statutes violated their
rights of free speech under the First Amendment. When the district court refused to
grant the plaintiffs relief, we reversed and remanded with instructions to the district
court to enter an injunction. See Missouri Republican Party v. Lamb, 

(8th Cir. 2000), cert. granted and opinion vacated sub nom. Nixon v. Missouri
Republican Party, 

(2001) (mem.). The state of Missouri then sought
a writ of certiorari from the United States Supreme Court; the Supreme Court granted
the writ, vacated our judgment, and directed us to reconsider the case in light of
Federal Election Comm'n v. Colorado Republican Fed. Campaign Comm., 

(2001) (Colorado II). See 

. Upon further
consideration, we affirm the judgment of the district court.

                                             I.
       In Colorado II, the Court held that political parties' first amendment claims are
entitled to no higher level of scrutiny than claims advanced by individuals or Political


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Action Committees, and that a state may constitutionally limit the amount of money
that a party spends in coordination with its own 

. In
upholding the limitations on party contributions found in 2 U.S.C.A. § 441a(d)(3), the
Supreme Court held that there was sufficient evidence in the record before it to
support a legislative judgment that unregulated party contributions served to
circumvent the contribution limits imposed on individuals set out in 2 U.S.C.
§ 441a(a). "What a realist would expect to occur has occurred," the Court said.
"Donors give to the party with the tacit understanding that the favored candidate will
benefit." 

The Court observed that candidates raise money for parties
with the understanding that the candidates will receive party support in proportion to
the amount that they raise and that candidates use the promise of future party support
as an inducement when soliciting money. 

The Court further held that
2 U.S.C. § 441a(a)(8), which provides that contributions that "are in any way
earmarked or otherwise directed through an intermediary or conduit to [a] candidate"
are treated as contributions to the candidate, was not so effective a means of
preventing circumvention that the First Amendment prevented resort to other means
of prevention. The Court believed that holding otherwise would ignore "the practical
difficulty of identifying and directly combating circumvention under actual political
conditions." 

"The earmarking provision," the Court concluded, "would
reach only the most clumsy attempts to pass contributions through to candidates," and
thus further regulation was constitutionally justifiable. 

of the Supreme Court's ruling in Colorado II effectively
undermines our previous conclusion that Missouri's limitations on parties'
contributions to its candidates were unnecessary and thus unconstitutional because
Missouri already had a law in place that prohibited earmarking agreements. See

. The Missouri Republican Party argues vigorously, however,
that there is no evidence in the present record that parties' contributions are in fact
being used to circumvent Missouri's limitations on contributions by individuals, and
that the state has therefore failed to carry its burden to justify the relevant regulation.

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We believe, however, that it is not necessary for the state to show that circumvention
is actually occurring in Missouri, for the factual record developed in Colorado II
suffices to justify Missouri's conclusion that means other than its earmarking
prohibition are necessary to prevent circumvention.

       In a closely analogous situation, the Court ruled that "[t]he First Amendment
does not require [a legislative body], before enacting ... an ordinance, to conduct new
studies or produce evidence independent of that already generated by other
[legislative bodies], so long as whatever evidence the [legislative body] relies upon
is reasonably believed to be relevant to the problem that the [legislative body]
addresses." City of Renton v. Playtime Theatres, Inc., 

, 51-52 (1986).
While the state of Missouri of course did not rely on the evidence produced in
Colorado II to justify its statute, it makes little constitutional sense to invalidate the
statute when it would have been perfectly constitutional if it could have been shown
that the Missouri legislature (in some collective sense?) had passed the statute with
the proper frame of mind. In other words, we think that a statute is constitutional if
there is objective evidence of facts sufficient to render that statute valid, even if those
facts were not operating subjectively in the minds of the legislators to motivate them
when they enacted that statute. Any other rule would prove unworkable because,
among other things, the minds of legislators are largely unknowable, individual
legislators have various motives for voting the same way on the same bill, and
legislative history is nonexistent in many states.

       In short, we think that the holding in Colorado II establishes as a matter of law
the constitutionality of the Missouri statutes relevant here. We note, too, that the
evidence that the Court relied on in Colorado II to uphold the federal statute was not
in existence when FECA was passed: That evidence was produced by the Federal
Election Commission and was based on its experience under FECA. This serves to
bolster our confidence in the view already expressed that no predicate record-making



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by the state of Missouri is necessary before the validity of its statute can be
established.

       Nor can we say that the limits that Missouri has set on political contributions
by parties, though they are much lower than those upheld in Colorado II, are so low
that they violate the First Amendment. The Supreme Court, in Nixon v. Shrink Mo.
Gov't PAC, 

, 397 (2000), quite emphatically held that the relevant
question in the context is whether contribution limits are "so radical in effect as to
render political association ineffective, drive the sound of a candidate's voice below
the level of notice, and render contributions pointless." Nothing in this record would
indicate to us that these circumstances obtain in the state of Missouri at the present
time.

       We close our consideration of this aspect of the case with the observation that
the Missouri Republican Party, in common with other political parties in Missouri,
continue to have substantial avenues for expressing their support of their candidates
and for maintaining a political and ideological solidarity with them. As the Court
observed in Buckley v. Valeo, 

, 21 (1976) (per curiam), "[a] limitation on
the amount of money a person may give to a candidate ... does not in any way infringe
the contributor's freedom to discuss candidates and issues." The mode of discussion
that the party chooses, moreover, may include advertising campaigns designated to
promote issues and candidates, so long as those campaigns are not coordinated with
those candidates. "The independent expression of a political party's views is 'core'
First Amendment activity no less than is the independent expression of individuals,
candidates, or other political committees," Colorado Republican Fed. Campaign
Comm. v. Federal Election Comm'n, 

, 616 (1996) (opinion of Breyer, J.),
and it is therefore not subject to limitation. The Missouri Republican Party may
"spend money in support of a candidate without legal limit so long as it spends
independently." Colorado 

.



                                         -5-
                                              II.
        The Missouri Republican Party asserts that a remand is necessary because the
district court did not address its claim that its due process rights were violated when
the Missouri Election Commission (MEC) misled the Party into believing that there
were no enforceable limits on party contributions. The Party asserts that the MEC
told it that its contribution limits were ten times the limits on individual contributions,
and, the Party claims, this statement led the Party to believe that there were no limits
on its contributions because at the time that the MEC made the statement the limits
on individual contributions had been enjoined. That, the argument runs, the MEC
was saying that there were no limits on Party contributions because 10 times infinity
is infinity.

       It is true, as the Party says, that the district court did not address this claim, but
we think that that was for a good reason: The Party never made this claim below. Its
claim, instead, was that the MEC violated due process when it calculated the limits
on parties' contributions by multiplying the limits on individuals by ten because, in
Shrink Mo. Gov't PAC v. Adams, 

(8th Cir. 1998), we had enjoined the
enforcement of the statutes that set the limit on individuals. We see no merit in this
argument. We had not enjoined the enforcement of Mo. Rev. Stat. § 130.032.4, the
statute at issue here, and that statute set limits on parties at a figure that was
numerically ten times that of the limits on individuals. The fact that we had declared
these latter limits unconstitutional had no bearing on the efficacy of the limits on
parties and no effect on the MEC's right and duty to enforce those limits. In other
words, the MEC, pursuant to one statute, set numbers that were ten times the numbers
that appeared in another statute; the fact that the enforcement of the latter statute had
been enjoined as unconstitutional cannot furnish the basis for a constitutional claim,
even if the limit chosen was not in conformity with state law.

      The Party argues, finally, that the district court erred in not addressing its
contention that the spending limits were being enforced against it in a discriminatory

                                            -6-
fashion: The Party maintains that the MEC has ignored violations of contribution
limits by the Missouri Democratic Party and seven of that party's candidates. But the
Party never advanced this contention, either as a claim or as a defense, in the court
below. The court was therefore not obligated to deal with it. We express no view on
the ultimate merits of any action that the Party might bring in the future for
discrimination against them in the enforcement of the relevant statutes.

                                        III.
      For the reasons indicated, the judgment of the district court is affirmed.

JOHN R. GIBSON, Circuit Judge, concurring in part and dissenting in part.

       I concur with the court’s decision today, with its application of Federal
Election Commission v. Colorado Republican Federal Campaign Committee, 

(2001) (Colorado II), and with its opinion except for the last sentence of
Part II. But in my view the court does not go quite far enough. Two aspects of the
court’s decision demonstrate a hesitation to give effect to Missouri’s constitutionally
valid campaign finance statutes that I think is no longer appropriate.

       The court should vacate today its injunctive order of July 31, 2000, preventing
Missouri from enforcing Mo. Rev. Stat. §§ 130.032.4 and 130.032.7 (2000), its
statutes regulating party contributions to candidates in state elections. The State has
requested that our injunctive order be vacated now. Yet the court today allows the
order to remain in force despite the destruction of its legal underpinning.1




      1
        This may in some sense be a technical matter. Lifting our injunction would
not have effect until a mandate issues to the district court below. But doing so would
signal more strongly than our present opinion does that there is nothing before us to
suggest that Missouri’s party contribution limits are other than fully enforceable.

                                         -7-
       Our July 31 order, issued over my dissent, was a one-sentence, summary grant
of injunction barring enforcement of the party contribution limits pending this appeal.
This order made no effort to comply with the standards required by the Supreme
Court in Hilton v. Braunskill, 

, 776-77 (1987), and applied in our
decision in Shrink Missouri Government PAC v. Adams, 

, 764 (8th Cir.
1998), and numerous other cases, for determining when an injunction pending appeal
may issue.

       The Supreme Court’s Colorado II decision and its order of June 29, 2001
(which vacated our judgment and opinion of September 11, 2000, instructing the
district court to enter a permanent injunctive order), returned the case to us for
reconsideration. Colorado II drastically altered the legal landscape that confronted
the court when the original injunction pending appeal was issued. The court today
issues an opinion that decides the merits of the case against the Missouri Republican
Party. The injunction should therefore be dissolved. The burden should be on the
Party to demonstrate, inter alia, a likelihood of success on the merits (the “most
important” factor in deciding whether an injunction should issue, 

), should it seek to continue the injunction.

      Finally, the last sentence in Part II of the court’s opinion first speculates on
what action may be taken in the future in this litigation, and then disclaims any
decision on it. This is dictum, and I do not join in it.

      A true copy.

             Attest:

                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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