STEPHEN A. HIGGINSON, Circuit Judge.
Donald Zimmerman, a former Austin City Councilmember, challenges four provisions of Austin's campaign-finance law: a base limit on contributions to candidates; an aggregate limit on contributions from persons outside of the Austin area; a temporal restriction prohibiting all contributions before the six months leading up to an election; and a disgorgement provision requiring candidates to distribute excess campaign funds remaining at the end of an election. Following a bench trial, the district court upheld the base limit, concluded that Zimmerman lacked standing to challenge the aggregate limit, and struck down the temporal restriction and the disgorgement provision as unconstitutional abridgements of First Amendment rights. For the following reasons, we affirm.
In 1997, voters in the city of Austin, Texas, approved a ballot initiative to amend the City Charter and add various restrictions on campaign contributions and expenditures. The measure passed with 72% of the vote. It was spearheaded by a group called "Austinites for a Little Less Corruption! a/k/a/ No More Corruption!" and, according to testimony presented at trial, was a response to the public perception that large campaign contributions from land developers and those with associated interests were creating a corrupt, "pay-to-play" system in Austin politics.
Four of the restrictions are at issue here. First, Article III, § 8(A)(1)—the base contribution limit—prohibits candidates for mayor or city council from accepting campaign contributions of more than "$300 per contributor per election from any person," with that amount to be adjusted annually for inflation. Austin, Tex. Code, Art. III, § 8(A)(1). At the time this suit was filed, the applicable limit was $350. Second, § 8(A)(3)—the aggregate contribution limit—prohibits candidates from accepting "an aggregate contribution total of more than $30,000 per election, and $20,000 in the case of a runoff election, from sources other than natural persons eligible to vote in a postal zip code completely or partially within the Austin city limits," (which the parties refer to as the "zip code envelope"). Id. § 8(A)(3). Those amounts are also subject to adjustment for inflation, and were $36,000 and $24,000, respectively, at the time this suit was filed. Third, § 8(F)(2)—the temporal restriction—prohibits candidates or officeholders from soliciting or accepting political contributions except for during the 180 days before an election. Id. § 8(F)(2). Finally, § 8(F)(3)—the disgorgement provision—requires candidates to "distribute the balance of funds received from political contributions in excess of any remaining expenses" to the candidate's contributors, a charitable organization, or the Austin Fair Campaign Fund. Id. § 8(F)(3). Candidates may, however, retain up to $20,000 "for the purposes of officeholder expenditures." Id. § 8(F)(6).
As will become relevant, Texas law distinguishes between "campaign contributions" and "officeholder contributions." "Campaign contributions" are contributions "to a candidate or political committee
Donald Zimmerman ran for the District 6 seat on Austin's city council in 2014. District 6, located in northwest Austin, had an estimated population of 92,721 in 2014, with 70,808 eligible voters. Six candidates competed for the District 6 seat. Zimmerman won the general election and the ensuing runoff. After serving a two-year term, he ran for re-election in 2016 and lost.
Zimmerman initiated this lawsuit in July 2015, alleging that the four provisions of the Austin City Charter enumerated above are unconstitutional restrictions on free speech. After a bench trial, the district court held that the base limit was constitutional in light of the city's interest in preventing quid pro quo corruption; that Zimmerman did not have standing to challenge the aggregate limit because he did not come close to reaching the relevant limits; that the temporal restriction was an unconstitutional limit on contributions because the city had failed to show that it was sufficiently tailored to serve an interest in preventing quid pro quo corruption; and that the disgorgement provision was an unconstitutional restriction on expenditures because the city had failed to show that it was the least restrictive means of preventing quid pro quo corruption. The district court permanently enjoined Austin from enforcing the temporal restriction and the disgorgement provision. The parties timely cross-appealed the rulings adverse to them.
"The standard of review for a bench trial is well established: findings of fact are reviewed for clear error and legal issues are reviewed de novo." Guzman v. Hacienda Records & Recording Studio, Inc., 808 F.3d 1031, 1036 (5th Cir. 2015) (quoting One Beacon Ins. Co. v. Crowley Marine Servs., Inc., 648 F.3d 258, 262 (5th Cir. 2011)). "A finding of the trial judge `is clearly erroneous when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'" Id. (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985)). Accordingly, we review the trial judge's factual findings with great deference, and cannot reverse them simply because we would reach a different conclusion. See id. "Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous." Anderson, 470 U.S. at 574, 105 S.Ct. 1504.
Zimmerman first challenges the district court's decision regarding the $350 base
First, the limit is not a content-based restriction on speech. Zimmerman argues that the base limit applies only to campaign contributions, but not officeholder contributions, because the language of the base limit refers only to "campaign contributions," while other provisions in the Charter refer more broadly to "political contributions"—which, under the Texas Election Code, includes both "campaign contributions" and "officeholder contributions." According to his argument, that leaves officeholders free to collect unlimited amounts for the purpose of defraying officeholder expenses, including the production and dissemination of constituent newsletters, see Austin, Tex. Code § 2-2-41 (stating that officeholders may use funds from officeholder accounts for the purpose of "newsletters"). On that basis, Zimmerman argues that because a contributor can give only $350 to fund campaign speech but can give an unlimited amount to fund a newsletter describing an incumbent's achievements, the base limit constitutes a content-based restriction on speech.
Austin responds that the base limit draws no such distinction between campaign contributions and officeholder contributions. It points first to subsection (G) of Article III, Section 8 of the Charter, which provides that "[a]ny incumbent mayor or councilmember is subject to the regulations applied to candidates for the office he or she holds." Austin, Tex. Code, Art. III, § 8(G). It also points to subsection (F), the only subsection of Article III, § 8 that states that its terms "have the same meaning they have in Title 15 of the Texas Election Code." Id. § 8(F). Because the base limit appears in subsection (A), Austin argues that it does not incorporate the definitions from the Texas Election Code and that, although subsection (A) refers only to "campaign contributions," it is intended to reach any contribution to a candidate or incumbent officeholder. Finding Austin's interpretation to be a reasonable interpretation of the Charter, and one that avoids a possible constitutional conflict, we defer to it. See Voting for Am., Inc. v. Steen, 732 F.3d 382, 387 (5th Cir. 2013) ("We defer to [a city's] interpretation of how the law is to be enforced, so long as it does not conflict with the statutory text." (quoting Voting for Am., Inc. v. Andrade, 488 Fed.Appx. 890, 895 (5th Cir. 2012))); id. ("Our task as a federal court is, to the extent possible, to construe the provisions to avoid a constitutional conflict." (quoting Voting for Am., Inc., 488 Fed.Appx. at 895)). In light of that interpretation, the
Zimmerman's second argument for strict scrutiny is more easily disposed of. He contends that the base limit burdens expenditures and that burdens on expenditures, even indirect ones, are subject to strict scrutiny. See, e.g., Ariz. Free Enter. Club's Freedom Club PAC v. Bennett, 564 U.S. 721, 736-40, 748, 131 S.Ct. 2806, 180 L.Ed.2d 664 (2011) (applying strict scrutiny to law that indirectly burdened expenditures by penalizing personally financed candidates for spending above a certain threshold). In some vague sense, of course, contribution limits indirectly burden expenditures. You have to raise money to spend it, and contribution limits mean that you cannot raise as much from any one contributor. But the Supreme Court has been clear that contribution limits are analytically distinct from expenditure limits, create a far lesser burden on speech, and, for that reason, are subject to less searching scrutiny. See FEC v. Colo. Republican Fed. Campaign Comm'n, 533 U.S. 431, 437, 121 S.Ct. 2351, 150 L.Ed.2d 461 (2001) (noting "line between contributing and spending"); FEC v. Mass. Citizens for Life, Inc., 479 U.S. 238, 259-60, 107 S.Ct. 616, 93 L.Ed.2d 539 (1986) ("We have consistently held that restrictions on contributions require less compelling justification than restrictions on independent spending."). We decline Zimmerman's invitation to blur the line that the Supreme Court has drawn.
As a limit on political contributions, Austin's base limit is subject to the closely-drawn test set forth in Buckley v. Valeo, 424 U.S. 1, 25, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976). In Buckley, the Supreme Court explained that contribution limits are generally subject to a lower level of scrutiny than expenditure limits because "a limitation upon the amount that any one person or group may contribute to a candidate or political committee entails only a marginal restriction upon the contributor's ability to engage in free communication." Id. at 20, 96 S.Ct. 612. Because "[a] contribution serves as a general expression of support for the candidate and his views, but does not communicate the underlying basis for the support," the communicative value of a contribution "does not increase perceptibly with the size of [the] contribution." Id. at 21, 96 S.Ct. 612. A contribution limit therefore "involves little direct restraint on [a contributor's] political communication." Id. However, contribution limits do impinge on associational freedoms by limiting a contributor's ability to affiliate him or herself with a candidate. Id. at 22, 96 S.Ct. 612. And, while they do not directly relate to a candidate's ability to speak, contribution limits "could have a severe impact on political dialogue if the limitations prevented candidates and political committees from amassing the resources necessary for effective advocacy." Id. at 21, 96 S.Ct. 612. Accordingly, they are subject to something akin to intermediate scrutiny and "may be sustained if the [governmental entity] demonstrates a sufficiently important interest and employs means closely drawn to avoid unnecessary abridgment of associational freedoms." Id. at 25, 96 S.Ct. 612.
The only governmental interests yet recognized by the Supreme Court as sufficient to justify limits on campaign contributions are the prevention of actual corruption and its appearance. See id. at 26-27, 96 S.Ct. 612 (defining interest in terms of "limit[ing] the actuality and appearance of corruption resulting from large individual financial contributions"); McCutcheon v.
Here, Austin has demonstrated a sufficiently important interest in preventing either actual corruption or its appearance.
In a creative attempt to evade this Supreme Court guidance, Zimmerman contends that Austin's base limit cannot be justified by an interest in preventing corruption because the limit is too low. He reasons that Buckley defined the interest in preventing corruption in terms of large contributions, and that Austin's $350 limit bars contributions that are not large and therefore do not implicate the interest in preventing actual corruption. But that conflates Buckley's government-interest inquiry with its tailoring inquiry. Buckley sets out a two-part test. First, the need for a contribution limit must be justified by a sufficiently important interest. See 424 U.S. at 26-28, 96 S.Ct. 612. Second, the amount of the limit must be sufficiently tailored such that the limit does not unnecessarily impinge First Amendment rights. See id. at 28-29, 96 S.Ct. 612; see also Shrink Mo., 528 U.S. at 395-97, 120 S.Ct. 897 (considering amount of limit in context of tailoring inquiry, after finding limit justified by government interest in preventing corruption or its appearance). Austin's choice to set the contribution limit at $350 goes to whether the limit is sufficiently tailored, not whether Austin had a sufficiently important interest to justify setting any contribution limit at all. Concluding that Austin had such an interest, we turn to consider whether the limit it established is "closely drawn to avoid unnecessary
There is no constitutional minimum contribution amount below which legislatures cannot regulate. Shrink Mo., 528 U.S. at 397, 120 S.Ct. 897. Rather, a contribution limit is unconstitutional if it is "so radical in effect as to render political association ineffective, drive the sound of a candidate's voice below the level of notice, and render contribution pointless." Id. While courts have "no scalpel to probe" what limit is low enough to prevent actual corruption or its appearance but not a dollar lower, Randall v. Sorrell, 548 U.S. 230, 248-49, 126 S.Ct. 2479, 165 L.Ed.2d 482 (2006) (quoting Buckley, 424 U.S. at 30, 96 S.Ct. 612), they nonetheless must "exercise . . . independent judicial judgment as a statute reaches [the] outer limits" of what is constitutionally permissible, id. at 249, 126 S.Ct. 2479. Accordingly, where there are "danger signs" that a limit may be so low that it risks "preventing challengers from mounting effective campaigns," then "courts, including appellate courts, must review the record independently and carefully with an eye toward assessing the statute's `tailoring,' that is, toward assessing the proportionality of the restrictions." Id. at 249, 126 S.Ct. 2479.
Here, there are no such "danger signs." First, unlike in Randall, Austin's contribution limit is per election, not per election cycle, meaning that it is reset between general and runoff elections. Compare id. (finding danger sign present where limit was per election cycle, including primary and general elections) with Austin, Tex. Code, Art. III, § 8(A)(1) (establishing contribution limit "per election") and id. Art. I, § 2-2-7(A) ("A general election, special election, and a runoff election each have. . . separate campaign periods for purposes of City Charter Article III, Section 8 . . . ."). Second, the $350 limit is on par with limits imposed in other states and localities and upheld by other courts. See Randall, 548 U.S. at 250, 126 S.Ct. 2479 (finding danger sign where limit at issue was below those imposed by other states and upheld in the past). For example, in Shrink Mo. the Supreme Court upheld Missouri's $275 limit—which, adjusted for inflation, was equivalent to approximately $390 at the time this appeal was filed—on contributions to candidates for any office representing fewer than 100,000 people. See 528 U.S. at 383, 120 S.Ct. 897; see also Frank v. City of Akron, 290 F.3d 813, 818 (6th Cir. 2002) (upholding limits of $100 on contributions to candidates for ward council member and $300 on contributions to candidates for at-large council member and mayor in city of approximately 217,000). Austin's $350 limit on contributions to candidates for city council, who represent districts of approximately 100,000 people, is not so low by comparison as to raise suspicion.
Ultimately, a contribution limit is closely drawn so long as it does not "prevent candidates from `amassing the resources
Zimmerman next challenges the district court's determination with respect to the aggregate limit. The district court held that Zimmerman lacked standing to challenge the aggregate limit because he had not established a sufficient injury-in-fact traceable to that limit. We agree.
"The requirement that a litigant have standing derives from Article III of the Constitution, which confines federal courts to `adjudicating actual "cases" and "controversies."'" Moore v. Bryant, 853 F.3d 245, 248 (5th Cir. 2017) (quoting Henderson v. Stalder, 287 F.3d 374, 378 (5th Cir. 2002)). "A plaintiff who challenges a statute must demonstrate a realistic danger of sustaining a direct injury as a result of the statute's operation or enforcement." Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 298, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979). Standing "requires that the plaintiff demonstrate that he or she `has suffered an "injury in fact," that the injury is "fairly traceable" to the actions of the defendant, and that the injury will likely be redressed by a favorable decision.'" Assoc. of Cmty. Orgs. for Reform Now (ACORN) v. Fowler, 178 F.3d 350, 356 (5th Cir. 1999) (quoting Bennett v. Spear, 520 U.S. 154, 162, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997)). An "injury in fact" "must be `(a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical' to pass constitutional muster, but it need not measure more than an `identifiable trifle.'" Id. at 358 (internal citation omitted) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992); United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 689 n.14, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973)). To establish an injury sufficient to raise a First Amendment facial challenge, "a plaintiff must produce evidence of an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by statute." Nat'l Fed'n of the Blind of Tex. v. Abbott, 647 F.3d 202, 209 (5th Cir. 2011) (quoting Miss. State Democratic Party v. Barbour, 529 F.3d 538, 545 (5th Cir. 2008)). A plaintiff's burden to establish standing changes with the procedural posture of the case. See ACORN, 178 F.3d at 357. This being an appeal from a bench trial, Zimmerman must point to evidence of actual injury. See Lujan, 504 U.S. at 561, 112 S.Ct. 2130.
Zimmerman first contends that the aggregate limit caused an injury in fact because it caused him to change his campaign strategy and withhold solicitations he otherwise would have sent to individuals outside of the Austin area. He stated in a signed declaration that he would like to purchase a list of conservative donors (costing at least $5,000), but that doing so is "not worth the time and financial investment when the maximum return [he] can hope for is artificially limited to $36,000." However, Zimmerman's decision to forego solicitations is not an injury sufficient to confer standing.
First, Zimmerman has failed to establish a serious intention to engage in conduct proscribed by law. See Miss. State Democratic Party, 529 F.3d at 545-47 (holding that party lacked standing to challenge statute requiring semi-closed primary elections because it did not take any steps towards holding a fully closed primary and thus failed to establish a "serious interest" in violating the statute). The aggregate limit does not preclude solicitations; it precludes only "accept[ing]" aggregate contributions over the relevant limit from persons outside of the Austin area. See Austin, Tex. Code, Art. III, § 8(A)(3). Stating his desire to solicit funds thus does not establish an intent to accept funds above the proscribed limit. And, by choosing to not solicit funds, Zimmerman did not take steps towards reaching or exceeding the aggregate limit of the kind that would demonstrate a serious intent to violate the statute. See Miss. State Democratic Party, 529 F.3d at 546 ("Without concrete plans or any objective evidence to demonstrate a `serious interest' in [violating a statute, plaintiff] suffered no threat of imminent injury.").
Furthermore, his decision cannot be excused on the ground that soliciting funds from outside of the Austin area would have been futile. The evidence shows that a list of potential donors from outside of the Austin area would have cost Zimmerman approximately $5,000. He could have lawfully accepted up to $36,000 in contributions from such donors. If the investment of $5,000 would have been futile, it was not so because of the aggregate limit. Zimmerman's subjective decision that a potential return of $36,000 was not worth the $5,000 investment does not excuse him from the Article III requirement that a plaintiff must face an injury that is actual or imminent and not conjectural or hypothetical. See id. at 547 (rejecting argument that standing requirements can be relaxed when taking steps to engage in prohibited conduct would have been futile, particularly where plaintiff could have, but did not, take certain lawful steps to protect the right allegedly injured). Nor can the decision to forego solicitations be excused on the ground that it alone would have exposed Zimmerman to possible prosecution. Cf. Babbitt, 442 U.S. at 298, 99 S.Ct. 2301 (stating that a plaintiff need not expose himself to prosecution in order to challenge the law). The aggregate limit prohibits only "accept[ing]" total contributions of more than $36,000 from persons outside of the Austin area. Austin, Tex. Code, Art. III, § 8(A)(3). Thus, even if the solicitations had yielded a flood of out-of-area contributions, Zimmerman could have demonstrated a serious interest in violating the limit while still protecting himself from prosecution by not accepting contributions once he reached (or neared) the limit.
Second, standing cannot be conferred by a self-inflicted injury. See ACORN, 178 F.3d at 358. While solicitations are a form of protected speech, see United States v. Kokinda, 497 U.S. 720, 725, 110 S.Ct. 3115, 111 L.Ed.2d 571 (1990), and while government
Finally, while changing one's campaign plans or strategies in response to an allegedly injurious law can itself be a sufficient injury to confer standing, the change in plans must still be in response to a reasonably certain injury imposed by the challenged law. For example, in Constitution Party of Pennsylvania. v. Aichele, 757 F.3d 347 (3d Cir. 2014), and Miller v. Brown, 462 F.3d 312 (4th Cir. 2006), on which Zimmerman relies, the plaintiffs changed their campaign plans in response to alleged future injuries that were "inevitable," see Miller, 462 F.3d at 317, or that had in fact been imposed on others in the past, see Constitution Party of Pa., 757 F.3d at 363-64. But here, prosecution for violating the aggregate limit was far from an inevitable result of soliciting donations from persons outside of the Austin area.
Zimmerman also contends that his speech has been chilled due to the threat of an ethics complaint. Relying on Susan B. Anthony List v. Driehaus, ___ U.S. ___, 134 S.Ct. 2334, 189 L.Ed.2d 246 (2014), he contends that Austin permits any person, including a political opponent, to file an ethics complaint and that Austin's advice that liability can be avoided if the violation was not "knowing," see Austin Tex. Code, Art. I, § 2-2-5(A) (stating that "a person who knowingly violates this chapter or a provision of City Charter Article III, Section 8 . . . commits a Class C misdemeanor"), has been rejected by the Supreme Court. See Susan B. Anthony List, 134 S.Ct. at 2344 (rejecting argument that because plaintiff had not stated an intent to make a knowing or reckless false statement, fear of enforcement of law prohibiting knowing or reckless false statements was misplaced). While Susan B. Anthony List did reject a similar argument, Zimmerman misses its broader point. There, relying on Babbitt, the Supreme Court simply noted that a plaintiff does not have to "confess that he will in fact violate [a] law" in order to challenge its constitutionality. Id. at 2345; see Babbitt, 442 U.S. at 301, 99 S.Ct. 2301 (holding that plaintiffs had standing to challenge law prohibiting use of "dishonest, untruthful and deceptive publicity" in consumer publicity campaigns despite absence of an intent on behalf of plaintiffs to "propagate
Finally, Zimmerman contends that he has suffered an injury-in-fact due to the diversion of resources required to comply with the aggregate limit. However, there is no evidence that anyone in his campaign actually expended any additional time or money as a result of the aggregate limit. First, his campaign manager submitted a declaration stating that "it would take 42 hours of my time to verify [the] voter registration status" of all contributors. But he does not state that he ever actually spent that time verifying the status of all contributors. According to his declaration, the only time that he actually went through the steps necessary to verify voter-registration status was in order to verify the signatures on Zimmerman's ballot-access petition. Because he did not actually expend any additional resources in order to comply with the aggregate limit, Zimmerman's injury in this regard is hypothetical.
Second, Zimmerman contends that compliance with the aggregate limit has caused an injury because it takes time just to keep a "running tally" of contributions by zip code. However, according to the trial testimony of a campaign consultant, maintaining a database of contributors by zip code appears to be a standard campaign practice. Accordingly, the time spent maintaining a "tally" of contributions by zip code is insufficient to establish standing. See ACORN, 178 F.3d at 359 (rejecting argument for injury based on resource expenditure where ACORN "failed to show that any of its purported injuries relating to monitoring costs were in any way caused by any action by [the defendant] that ACORN now claims is illegal, as opposed to part of the normal, day-to-day operations of the group").
Austin challenges the district court's conclusion that the six-month temporal limit on fundraising is unconstitutional. Finding that Austin had failed to present evidence "to show how a contribution made seven months before election day presents a different threat of quid pro quo corruption than a contribution made three months before election day," the district court concluded that Austin had failed to establish that the limit served the interest of preventing actual corruption or its appearance. Once again, we agree with the district court.
As with dollar limits, temporal limits on contributions are subject to Buckley's "closely-drawn" test. See Catholic Leadership Coal. of Tex. v. Reisman, 764 F.3d 409, 432 (5th Cir. 2014). Accordingly, Austin must show (1) that the six-month limit serves the sufficiently important interest of preventing actual corruption or its appearance and (2) that it employs means that are closely drawn. See Buckley, 424 U.S. at 25, 96 S.Ct. 612; McCutcheon, 134 S.Ct. at 1450. As before, Austin must justify
The district court found that Austin failed to produce sufficient evidence to justify the temporal limit. The only evidence presented on the connection between the timing of a contribution and corruption was the testimony of a former councilmember that "if we had money flowing through city hall . . . in a general way . . . it would really have a detriment [sic] to people's belief in council members making appropriate decisions," and the testimony of the city's expert witness, a political scientist with expertise in campaign finance, that, in his opinion, the temporal limit "directly alleviated concerns of the appearance of quid pro quo corruption" by "limit[ing] the period of time in which people could . . . reward candidates, particularly incumbent officeholders." He further noted that "before important votes, money flows in." However, as the district court noted, there was also testimony that the Austin City Council is in session and voting year round, such that the risk of money coming in before votes is no less of a concern in the six-month window before an election than at any other time. Accordingly, evidence suggesting a perception of corruption arising from contributions made shortly before votes does not establish a perception of corruption arising from contributions made many months before an election. If a contribution of $350 or less immediately before a vote during the six months before an election will not result in either actual corruption or its appearance, there is no evidence showing that the same contribution made before a vote 12 months before an election would. Accordingly, we agree with the district court that Austin failed to produce sufficient evidence to justify the temporal limit.
Austin next contends that the district court erred by holding that Zimmerman has standing to challenge the disgorgement provision and that that provision is unconstitutional. It argues that because Zimmerman was not required to disgorge the funds he had remaining after his campaign, but rather could retain them for purposes of making officeholder expenditures, he was not injured and that the provision is constitutional because it does not implicate any First Amendment rights. We disagree on both points and once again affirm the district court.
The disgorgement provision, § 8(F)(3) of the Austin City Charter, requires candidates to "distribute the balance of funds received from political contributions in excess of any remaining expenses for the election" to the candidate's contributors, a charitable organization, or the Austin Fair Campaign Fund. Austin, Tex. Code, Art. III, § 8(F)(3). Candidates may, however, retain up to $20,000 "for the purposes of officeholder expenditures." Id. § 8(F)(6). Austin argues that because Zimmerman finished his 2014 campaign with only $1,200 remaining, he was not injured by the disgorgement provision because he could retain that full amount in an officeholder account. But that misses the nature of the First Amendment right at issue. Zimmerman has the right to use campaign funds to advocate for his own election. See Buckley, 424 U.S. at 52-53, 96 S.Ct. 612. That right was impaired by his inability to retain excess funds from the 2014 election for use in future campaigns. See Shrink Mo. Gov't PAC v. Maupin, 71 F.3d 1422, 1427-28 (8th Cir. 1995) (holding that a similar disgorgement provision burdens First Amendment rights by requiring candidates to use all campaign funds during the current campaign and prohibiting
Austin also argues—for the first time in its reply brief—that Zimmerman lacks standing to challenge the disgorgement provision because he could, or perhaps should, have used his remaining funds to pay off his campaign debt.
Austin also argues—again for the first time in its reply brief—that Zimmerman "appears" to have treated his leftover funds inconsistently with a city ordinance in place at the time. What was then § 2-2-43 of the City Code, titled "Existence of Campaign Debt," stated that
On that basis, Austin argues that Zimmerman's remaining $1,200 should have been used to pay off his debt and that he therefore should not have had any remaining funds at all to which the disgorgement provision could apply. We disagree with Austin's reading of the ordinance and, finding the ordinance unambiguous, do not defer to Austin's interpretation. See Voting for Am., Inc., 732 F.3d at 387 ("We defer to [a city's] interpretation of how the law is to be enforced, so long as it does not conflict with the statutory text." (quoting Voting for Am., Inc., 488 Fed.Appx. at 895)). As the district court concluded, the ordinance applies to the calculation of campaign debt and does not require candidates to use remaining funds to pay off debts. It says only that remaining funds "shall be considered an offset," but says nothing requiring candidates to actually use remaining funds to pay off their debts. Rather, candidates and officeholders with either remaining unpaid expenses or unreimbursed personal expenditures can continue to solicit and accept contributions after an election in order to pay off those expenses.
With respect to the constitutionality of the disgorgement provision, Austin argues only that there is no First Amendment right to use funds remaining after one campaign in a new and different campaign. It contends that the First Amendment rights associated with campaign contributions exist only during the election cycle in which a contribution is given, and that the "First Amendment clock is re-set" if and when a new campaign begins.
We find that argument to be without force or support. Austin again appears to overlook the nature of the right at issue. While it is true that a donor's interest in voicing support for a particular candidate may end with the passing of one election cycle—for any number of reasons, the donor may no longer support that same candidate if and when the candidate runs again—that does not mean that all First Amendment rights associated with that contribution so too must end. When a contribution is made, it communicates the donor's support for a candidate. But, once in the hands of the candidate, it then "helps the candidate communicate a political message." Shrink Mo., 528 U.S. at 400, 120 S.Ct. 897 (Breyer, J., concurring). The candidate's expenditure of that money to engage in political speech is then afforded its own constitutional protection. See Cal. Med. Ass'n v. FEC, 453 U.S. 182, 196, 101 S.Ct. 2712, 69 L.Ed.2d 567 (1981) (plurality opinion) (describing contributions as "speech by proxy" and explaining how entities that receive contributions then use those contributions to "engage[] in independent political advocacy"). Accordingly, by prohibiting candidates from spending money raised in one election cycle on speech in the next, the disgorgement provision acts as an indirect burden on expenditures and thus implicates First Amendment rights. See Maupin, 71 F.3d at 1427-28 (holding that disgorgement provision burdens First Amendment rights by, inter alia, prohibiting candidates from using funds in future elections); see also Davis v. FEC, 554 U.S. 724, 740, 128 S.Ct. 2759, 171 L.Ed.2d 737 (2008) (striking down as unconstitutional an indirect burden on expenditures not justified by the interest in preventing corruption).
As a burden on expenditures, the disgorgement provision is subject to heightened scrutiny. But, on appeal, Austin does not attempt to justify the provision as sufficiently tailored to serve its interest in preventing corruption. Accordingly, we affirm the district court's conclusion that the disgorgement provision is an unconstitutional abridgement of First Amendment rights.
Finally, Austin argues that Zimmerman has waived his right to attorneys' fees under 42 U.S.C. § 1988(b) by not moving for fees in the district court. But that issue is not properly before us now. Precisely because Zimmerman did not move for fees
For the foregoing reasons, we AFFIRM.