this appeal and i'll start with the basic limit and base limits cases can seem complex with talk about numbers and election results and you know campaign spending statistics this one doesn't require any of that it's actually very simple because austin's base limit is uniquely severe and uniquely poorly suited tailored to the threat of corruption and zimmerman raised two fundamental arguments the first one is under inclusiveness that is that the  three hundred fifty dollars base limit is an unnecessary abridgement of first amendment rights to make campaign contributions given the fact that the same contributor at the same time can give an unlimited amount to an incumbent officeholder for office holder expenses that's true you're on a boat but one thing that's permitted for in that i've highlighted in the briefing is for example newsletters they can send newsletters to their constituents highlighting their activities they can include photographs of themselves you know here's what i've been doing for you so so if so and that's permissible under state law taxes administrative code which i've cited in the brief and specifically under the austin code provision governing officeholder accounts and so but and this is important for a later part of the argument but that category of office holder expenditures also so it includes things like newsletters which implicate first and then interests but it also includes things that have nothing to do that are not protected in the first amendment like payments for staff or or travel or you know various categories of things in times  additional computers or things like that or additional office furniture exit artwork for their office or anything like that exactly so that would also be unlimited you'd think the same contributor can give an unlimited amount to pay for staff expenses who was so that the only clues in this argument it's eat this is common in first amendment cases but it's not always raised by plaintiffs and it's sort of you have to sort of get into the details here but their reason and it renders this based limit under inclusive is because you can't because when you have an exception that blows a huge hole in the anti corruption interest of the government which is the only way they can justify any limit on campaign contributions when you're allowed to give unlimited amounts  for things that don't even implicate the first amendment but but the general public is still limited and that same contributor can only give three hundred fifty dollars for a campaign contribution both of those contributions present the threat of corruption that if you read that under inclusiveness analysis it only highlights why this limit is is cannot stand that scrutiny and mind you that that was a case involving intermediate scrutiny of a contribution limit and they still analyze inclusiveness but there's a long section in there number one that ban targeted a federal contractor contributions which the court explained several reasons why there are there are special danger there that was not the same dangerous with federal employees even with your best circuit decision overturning a base limit based on it under exclusivity well there are none because they're in this is my specialization campaign finance i've never run across any base limit case involving an exception for office holder it's contributions it's not just an issue of first impression for this court it's never been raised in any court that i've ever seen and so you and buckley i was going to highlight if you go to page twenty six of buckley w when buckley sets out the government interest that still governs all this case law they said the threat of corruption is presented from the large financial transfers given to current and potential office holders so it's not it can't be cabin to just campaign contributions the same person income a candidate running for office to say that a contributor can give one hundred thousand dollars for their staff but but can still be limited because of the threat of corruption and what they can get for campaign speech it elevates speech that's not even i mean activity staff expenses that's not even protected by the first amendment above and that's and that's potentially more corrupting because officeholder contributions apply only to a category of people who are already in office in other words campaign contributions what you see potentially then then reaching that extra level would have a difficulty under current law right often would have to be able to show that there actually is quid pro quo production in the context you're trying to say we should worry more about well no what i'm saying is that on the program based on page twenty six in buckley this this just comes straight from buckley buckley said the threat of quid pro quo comes from large financial transfers given to current and potential office holders and so it's a common sense thing and  office holder that did present the same threat of corruption and there was another witness who admitted that as well from their side or understand just remind me so if an individual gives the example one hundred thousand dollars for an office holder account is that publicly reported in the same manner that a campaign contribution would be reported it is your own it would show up on the report these definitions come from state law and so there's a schedule of the schedule on the campaign reporters called officeholder account at least sheds the light of day on from the transfer of well it does and of course the same is true of campaign contributions they're reported as well so you get back to the question of any time that the government has these exceptions in a law like this and the first amendment particularly but not even limited to the first amendment i'll get to that in a moment but the government has to offer some justification for why it's ok to limit this and not that and and there's you'll search the record in vain for any attempted explanation the city has raised these standing arguments and saying you know trying to get away from the merits of this argument and they have never offered any justification for these kind of questions you're asking why why does it not present the same thread and back to judge narrowly to one would be constitutional if you reply well no because the second argument is that it's given the framework that exists in austin and it's different in kind than what happened in buckley what was apparent under federal law buckley and so the second argument is that it's still too low and too restrictive in light of the whole framework that's at issue but this is just an additional reason why  even if it were otherwise constitutional you cannot have a strict limit for the entire general public on fundamental campaign contributions protected in the first amendment while you know somebody trying to corrupt an officeholder somebody with business before the city council coming up on an agenda can pay one hundred thousand dollars at the same time to pay for staff expenses or a newsletter if somebody wants to corrupt the office holder the avenue is obvious and so if if candidates most of whom are not even incumbents you know at the time they're taking contributions if challenging candidates can present a threat of corruption as potential office holders then contributions to current office holders will be in government authority just as a matter of common sense and but it derives from that language and buckley as well present the same threat of corruption and again their witnesses admitted that and i highlighted some cases applying this analysis including the green vs for all case a prisoner speech case from this circuit holding that a person couldn't justify a ban on newspapers when there was an exception for magazines i also highlighted some cases there was a van natta case from the ninth circuit a campaign finance case you go to the commercial speech context where this analysis is applied to strike down laws even the central hudson test and then the concurrence and read by justice kagan also points this this issue out where she was saying look you don't have to go to strict scrutiny because we can strike this down for under inclusiveness even under less of scrutiny and so if this basic limit can stand with these exceptions you're effectively elevating prisoner speech and commercial speech above the fundamental rights of political association that are presented here and on that i do believe strict scrutiny must apply its content based on its face under really i want to point out on that point if you you don't have to reach that frankly because you can as i just argued but if you do it's this argument that it's going to up in campaign finance jurisprudence across the country is a red herring because it doesn't mean that that a dollar level in a base limit would be subject to strict scrutiny of the argument is when there's a content based distinction which is presented by you know officeholder newsletters versus versus other types of speech that's a content based distinction that distinction that exception incur strict scrutiny not the level of three hundred fifty dollars so it's not to the distinction turns on the purpose of the association if if i'm giving you money with the intent that you use it for an office holder newsletter or staff that's an office holder contribution if i'm giving you money w i'll reply to their points on the so essentially just to finish the base limits you off well so the other main argument as it is is clearly in the brief and nixon highlight the city relies on nixon versus shrink and nixon highlighted this issue nixon state state interest analysis was abrogated but but nixon highlighted this issue about why the base limit in austin is so fundamentally different nixon said that we're not we're not  a contribution limit in missouri that's different in kind from that in buckley because as buckley showed you have all these other alternative avenues of association you know independent speech pac contributions party support things like that volunteer exception those alternate avenues are the only way that buckley reach that conclusion to say that that the base limit in buckley which by the way was worth six thousand dollars and twenty fifteen dollars is not a significant impairment of first amendment rights in light of all these other alternative avenues of association i've argued all of those are for closed in austin and i can address that in more detail in reply but i want to i want to touch at least briefly on the aggregate limit that's the other part of appeal this standing here is clear that the district court didn't even address the standing arguments that we had in other words the district court just said well you're not close to meeting this aggregate thirty six thousand dollars limit and so and so no clear under scrap and cramer and acorn cases that i cited zimmerman withheld his solicitations that he wanted to send to fundraise throughout the state of texas he changes campaign plans and he suffered these compliance burdens that would be required to determine voter registration status so all of those independently any one of those independently is sufficient for article three standing so i asked the court to reverse that fine zimmerman has standing and remained on that score for a meri determination and i want to point out even if you accept the city's argument about you know they try to claim that you don't have to verify voter registration it remains that's that's not true but it remains true that  still forwent plans that he wanted to engage in for fund raising because of this merely because this limit is on the books and that's sufficient as i've argued in the brief and cited authorities for standing  to the blackout period the main point i'll make now i think i explained this well in the brief about how and it just simply doesn't address corruption basically makes a fundamental point about if you can give up to the baseline that at certain time periods it doesn't make any sense in terms of anticorruption threat to limit contributions to something less than that based on some other temp or a window or so you know address the the principal argument that was addressed in the opening and it's christmas on something that's just completely made out of  unlimited prove these limited contribution allowance for office holders under the city of austin stuart where this idea that there is which is the premise of their need either here or there for purposes of the question and it's even then it's even worse i mean if there were a one thousand dollar limit to officeholder accounts that would be one thing but unlimited or something else it is and that would be  a problem for them too but what my point is section eight jeep of the charter provision says mayor and city council members are subject to the same kinds of rules that candidates are which means they're subject to a three hundred fifty dollars in the in two or three hundred index for inflation which is three hundred fifty right now they're limited to the same that so and this this idea that there's differential treatment came from nothing mr zimmerman testified at trial that he kind of thinks that it may be this way mr zimmerman that is that there may be an unlimited level of contributions you could make to an office holder but not to a candidate that it's capped but that came from nothing no there's no testimony that it's ever happened there's no testimony that the city of austin treats it that way that in council members ever done that mr zimmerman is a software engineer not a lawyer i don't know where this came from but it's just not there so which i don't think so for the reasons judge smith said i don't think it's it's that is it's if it were there it wouldn't be still wouldn't be a it would be subject to strict scrutiny because it's not a content based distinction under read versus town the gilbert and the differential treatment may have differential reasons for it you have to justify each week we would be obligated to justify it if we did it he isn't chap the challenge is not to a limit on contributions to officeholders that's not the challenge so we don't have to defend the limit right here at least the argument isn't it seems to me it's not a frivolous argument that there is an advantage if you run and win because you can use your office holder account for many things that would include his example a news there's that advantage but i don't know that that advantage means anything under the legal structure that's in place for these matters secondly this is all of the piece so there's also a disadvantage if you run a little here and a little they are only either side of the equation of incumbent versus non income versus challenger so i don't think that that that comes out in the wash i guess like when you ultimately analyze this  polls there's a question about the quid pro quo nature of contribution to an officeholder account where you have to publicly report those amounts i'm whole premise of the quid pro quo being the basis for not allowing a limit hold of the different distinction between someone running for office and you as opposed to someone who's in office and getting that trying to get at here assuming there is that difference then there is some i mean there are benefits from being in the office anyway you have a bully pulpit mr zimmerman is a prime example of that use it for issues not related to the city so you have all sorts of advantages but you can't squeeze that out of the system i don't think office holders have to be able to you know go meet with their constituents it's helpful to have instead the city appropriating money if they have an officeholder account they can buy coffee and donuts for people when they come in on a monday night to meet on some issues so i don't see that i just don't see that is an issue in this case but mr zimmerman's argument it seems to me is  that we if we look at the sort of the totality of the circumstances the effect of having a limit on the campaign contribution is to exaggerate the advantage that incumbents have because when they run for reelection they have the advantage not only of being able to accept the three fifty but having the advantage of of an office there's some slight advantage but there's always advantages to incumbency although it wasn't for mr zimmerman this time but there are always some advantages but i come back to the premise the premise is wrong there's not a differential any way  there's nothing in the record to support it other than mr zimmerman speculation that that might be nothing no evidence it's ever been treated that way by anybody i'm going to turn to obvious one it's sheer speculation that he would ever have he didn't even come close to facing as merely a theoretical concern he had his argument that i made a cost benefit determination that if i could only raise thirty six thousand dollars that was a i wouldn't spend any money yet if you do the calculation based on the evidence he would have gotten about a five hundred fifty percent return if he could hit even the limit not go beyond that he in terms of his expenditure versus what he would have gotten back that isn't the consequence of the limit that's a consequence of him deciding how to marshal his resources for how you want to run i don't think that that's a standing issue with respect to receiving contributions that's just how he wants to spend his money and the fact that that on the inside the person contributors that are part of the aggregation the fact that it might be difficult to figure them out briefly say that it even they at is the distance the decision with respect to that is the entire time discovering what to do is everybody has to do things in campaign finance law these days you have to keep track of all sorts of things if this were a problem to have standing you'd have standing if you just fill out a form in campaign finance so i don't think i think clapper says they don't have standing there and he is not going to be repeated because he isn't an office holder anymore not even the candidate right now on the on the blackout it was a one year restriction admittedly this is a six month restriction but the test is the same for how you a value way up the temple ruled by ok it is a ban up until six months before the interest and then you have to closely draw the restriction based on that so the ban is based is the same under the same analysis as the contribution on the six month pre six month ban is an problem here was there wasn't testimony equivalent to butts in lewis speaking to corruption that had occurred in this outer limit time there was that you're saying there was fear there was testimony yet on just money pours in when we're about to vote we've already found proof of corruption but as he did with voting we don't have proof that somebody's got a payoff within that period but you don't have to say it again  justified temporal limb no no no not at all we i'm just saying we separately addressed the temporal limit issue two in the testimony it wasn't how you people are concerned about corruption so anything we do so it wasn't that it was your the limits we set on individual contributions then mr lewis and council member morris and testified about the problems with contributions coming in the last six months as did our expert testified not about the corruption par but about how reasonable that limit is because most contributions come in with in the six month period except for those that have a specialized interest a lot of times they didn't nothing nothing in this is uniform and we and we don't have a bribery claim bribery happening here we talk about the perception of the problem and as i said judge i accepted that testimony and found in siding mr lewis that we had met that part of the test and it was as to the temporal limit it year he implied on that we didn't hold that you know maybe a year would be ok but six months didn't and because we didn't explain why it would be any more worrisome to have something within seven months or three months than six months so we didn't pinpoint where this would happen we don't have to pinpoint that because courts are not supposed to get into the fine tuning aspect of this and we've had testimony to support six months as a reasonable basis and on top of that the six month rule does not which is an important element under buckley versus the late the lay of the six month rule does not impede the ability to have competitive races to have serious campaigns conducted with a lot of participation and involvement of the populace and the candidates communicate with the we had ample evidence there were seventy four people running for city council seats in the twenty fourteen election that's a huge number of people to be running and there was money in the system people campaign that was over two million dollars spent altogether and i believe the cast member races i don't know if i'm including the mayor's race in that or not i just can't remember right now but there was ample money ample participation austin was a wide open city politically so to speak it is a very lively political city and so i don't think there's any testimony to suggest that the six month limit impeded the ability of people to actually get the campaign white south here through the contributions coming in through the last six months there is nothing that i know of that calls that into question mr zimmerman didn't like it and he actually won in the six months limit but he didn't like it because he thought that he had created some problems for himself that some of the community might not like and come down on him on and so he wanted to raise money ahead of time but he had no evidence that he had to have that to have nothing in any of that record that suggests that they're all the expenses from the prior campaign have been paid and under that provision of the charter you are being subject to the rule that ninety day discordant rule until you've paid off all of your campaign expenses so we don't know from what came in yesterday that doesn't establish that he is subject to that rule for that five hundred some odd dollars that he still has  it's the money the only claim they have is a first amendment claim there may be other issues with respect to this takings issues perhaps something like that i'm not agreeing that all but there may be but there's not a first amendment issue because the campaign contribution was for this campaign in bob thinking about it in last friday or thursday the d c circuit on bond decided the holmes case in the it has an issue in there with regard to election  in the air it says i can't remember the page number i have it my desk but somewhere in there it says it's a pretty it may be appropriate perfectly appropriate for congress to assume that there are different associational interest associated with it for instance a primary campaign and on the other hand a general election campaign so that's the reason it's appropriate to have a separate separate election and instead of doing the election cycle that's the same point being made here when you make a contribution you make it for that that campaign for that time this in so mr zimmerman was not given carte blanche here is i'd love you forever more here is money to go spin in campaigns it was a one time deal and his campaign is o every campaign finance case that's ever been litigated is about a plaintiff who says i want to do x with my money and the law says i can't do that and that confer standing on that plane and the fact that they can spend money when expenditures are banned in the fact that they can spend it on issues speech or something else this is mr hicks his argument that well if he would just spend his money to retire his campaign debt or do something else he wouldn't have any left over funds and he can't complain about this discordant provision i mean about the let's go to the discordant provision but it's the same the same argument with respect to standing he has the right to say i have an interest that's arguably if affected with a constitutional interest i want to spend my money in a certain way i want to you know take these contribution solicitations and the government says i can't that is a constitutional injury the fact that he changed his mind and foreign forwent fund raising plans that he would have otherwise undertaken and by the way six sending solicitations is protected speech sending us a little political solicitation and this is in zimmerman's uncontested affidavit submitted with the rule fifty nine the motion after trial where he says yes i still want to do this and what i would do is send out  solicitations explaining my views on issues in austin and why people should give me money to run against you know this these establishment people here in the city he did not send those solicitations because this thirty six thousand dollar limit arbitrarily capped a potential remarkable claim and first of all it's on the narrow issue this issue is controlled by catholic leadership this circuit's opinion catholic leadership and especially page four thirty two and four thirty three of that opinion where they were this court rejects the government's anti circumvent argument because what they say is that first of all they explain as i have in the brief why there's no anti corruption interest here at all but but then they go on to say even if they're talking about the legislative session ban in texas law and then the judicial there's a judicial time period in texas law and they say ok even if you look at this blackout period as i mean this is the sixty day waiting period on g p x even if it had a to either of those laws in other words even if it were tied to you know the legislative session ban let's say or the judicial ban on contributions with the same time period and it and you can see how it tries to prevent circumvention of those the fish circuits still in constitutional because that under the logic of mccutcheon in light of the ability to pass base limits that are more targeted if you have a time period that's more you know  well the take away is that basically base limits are fundamentally different that's how buckley in mccutcheon said you address corruption and mccutchen did involve the temporal aspect because because mccutcheon said the fundamental problem is that once the limit kicks  you can't make a contribution of any amount even though at other times you can make contributions up to the base limit that's the same issue here it's not a hard to period but it's the same principle and they can't distinguish that and i think when you read page one thirty two of catholic leadership that part oh well and actually no i'm glad you brought that up because he did not say that the court if you read the district court opinion he did not go green with the cities that this addressed a government interest i think it's just a matter of reading that language but but i dispute that claim  let's see on the on the base limit first of all this this is not something that's made up of whole cloth all you have to do is read the plain text of the charter were it uses campaign contributions in the base limit and uses political contributions and the just the word contributions and other provisions in the same section of the city charter you have to read that to give effect to those and this court cannot rewrite the statute for the city to avoid this problem and if by the way if somebody did take an unlimited officeholder contribution