FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PHIL THALHEIMER; ASSOCIATED 

BUILDERS & CONTRACTORS PAC,

sponsored by Associated Builders

& Contractors, Inc. San Diego

Chapter; LINCOLN CLUB OF SAN No. 10-55322

DIEGO COUNTY; REPUBLICAN D.C. No. PARTY OF SAN DIEGO; JOHN 

3:09-cv-02862-IEG- NIENSTEDT, SR., WMC Plaintiffs-Appellees,

v.

CITY OF SAN DIEGO,

Defendant-Appellant. 

PHIL THALHEIMER; ASSOCIATED 

BUILDERS & CONTRACTORS PAC,

sponsored by Associated Builders

& Contractors, Inc. San Diego

Chapter; LINCOLN CLUB OF SAN No. 10-55324

DIEGO COUNTY; REPUBLICAN D.C. No. PARTY OF SAN DIEGO; JOHN 

3:09-cv-02862-IEG- NIENSTEDT, SR., WMC Plaintiffs-Appellees,

v.

CITY OF SAN DIEGO,

Defendant-Appellant. 

8067
PHIL THALHEIMER; ASSOCIATED 

BUILDERS & CONTRACTORS PAC,

sponsored by Associated Builders

& Contractors, Inc. San Diego No. 10-55434 Chapter; LINCOLN CLUB OF SAN

D D.C. No. IEGO COUNTY; REPUBLICAN

PARTY OF SAN DIEGO; JOHN  3:09-cv-02862-IEGNIENSTEDT, SR., WMC

Plaintiffs-Appellants, OPINION

v.

CITY OF SAN DIEGO,

Defendant-Appellee. 

Appeal from the United States District Court

for the Southern District of California

Irma E. Gonzalez, Chief District Judge, Presiding

Argued and Submitted

October 4, 2010—Pasadena, California

Filed June 9, 2011

Before: Kim McLane Wardlaw and William A. Fletcher,

Circuit Judges, and Robert J. Timlin,

Senior District Judge.*

Opinion by Judge Wardlaw

*The Honorable Robert J. Timlin, Senior United States District Judge

for the Central District of California, sitting by designation. 

8068 THALHEIMER v. SAN DIEGO
COUNSEL

Richard L. Hasen (argued); Dick A. Semerdjian, Schwartz

Semerdjian Haile Ballard & Cauley LLP, San Diego, California, for the defendant-appellant.

James Bopp, Jr. (argued), Anita Y. Woudenberg, and Joseph

E. La Rue, Bopp, Coleson & Bostrom, Terre Haute, Indiana;

Gary D. Leasure, Law Offices of Gary D. Leasure, San

Diego, California, for the plaintiffs-appellees.

J. Gerald Hebert, Tara Malloy, Paul S. Ryan, The Campaign

Legal Center, Washington, DC, for the amici curiae Campaign Legal Center, Center for Governmental Studies, and

Common Cause.

David Blair-Loy, ACLU Foundation of San Diego & Imperial

Counties, San Diego, California, for the amicus curiae American Civil Liberties Union of San Diego & Imperial Counties.

OPINION

WARDLAW, Circuit Judge:

The modern era of campaign finance reform began in 1972,

following the infamous break-in at the Watergate hotel. Congress responded to the ensuing scandal by overhauling the

Federal Election Campaign Act to impose new caps on politi8072 THALHEIMER v. SAN DIEGO
cal spending, as states and cities followed suit with laws of

their own. The City of San Diego (the “City”) enacted its

Municipal Election Campaign Control Ordinance (“ECCO”)

in 1973. See San Diego, Cal., Municipal Code ch. 2, art. 7,

div. 29. Then, in Buckley v. Valeo, 424 U.S. 1, 14 (1976), the

Supreme Court held that campaign finance regulations “operate in an area of the most fundamental First Amendment

activities.” The crucial constitutional distinction, according to

the Buckley Court, was between limitations on campaign

expenditures and campaign contributions. The Court reasoned

that expenditure limits “represent substantial rather than

merely theoretical restraints on the quantity and diversity of

political speech,” while contribution limits “entail[ ] only a

marginal restriction upon the contributor’s ability to engage in

free communication.” Id. at 19-20. Since Buckley, the

Supreme Court has considered numerous laws that regulate

the flow of political money. Some have been upheld, others

struck down. But in each case the Court’s analysis continued

to build upon the familiar Buckley distinction.

Recent Supreme Court decisions, notably Citizens United v.

FEC, 130 S. Ct. 876 (2010), have once again placed the constitutionality of campaign finance reform in flux, inspiring

new challenges to election laws across the country. This is

one such case. Plaintiffs mount a First Amendment challenge

to San Diego’s campaign finance laws. The district court considered the constitutionality of five provisions and generally

upheld the City’s pure contribution limits, but enjoined a provision that restricts both the fundraising and spending of independent political committees. The district court correctly

recognized that even as the campaign finance reform landscape has shifted, nearly four decades after the Watergate

break-in Buckley’s expenditure-contribution distinction continues to frame the constitutional analysis of campaign

finance regulations. Because the district court properly

applied the applicable preliminary injunction standard in the

context of the presently discernible rules governing campaign

finance restrictions, we affirm.

THALHEIMER v. SAN DIEGO 8073
I. FACTUAL AND PROCEDURAL BACKGROUND

ECCO is a comprehensive law governing all aspects of

campaign finance in San Diego city elections. Plaintiffs Phil

Thalheimer, a former and future city council candidate; ABC

PAC, a political action committee for the Associated Builders

and Contractors San Diego chapter; the Lincoln Club, a registered political action committee; the San Diego County

Republican Party, the local branch of the national Party; and

John Nienstedt, a San Diego resident who regularly contributes to local candidates and political committees, sued to

enjoin enforcement of five ECCO provisions they claim violate their respective First Amendment rights, facially and as

applied. Plaintiffs filed a verified complaint seeking a preliminary injunction to block enforcement of the challenged ECCO

provisions before trial, a time period they noted would likely

encompass at least two municipal elections: San Diego’s June

8, 2010 primary, and the November 2, 2010 general election.

Plaintiffs challenged ECCO § 27.2936, which restricts the

fundraising and spending of political committees, § 27.2938,

which imposes a ban on contributions to candidates outside of

a 12-month pre-election window, §§ 27.2950-51, which prohibit contributions by any non-individual entities, and

§ 27.2935, which imposes a $500 limit for contributions to

candidates and committees supporting or opposing a candidate.

ECCO § 27.2936 applies to “general purpose recipient

committees,” defined elsewhere in the ordinance as committees “not controlled by a candidate” that receive $1,000 or

more in annual donations for the purpose of supporting or

opposing candidates or ballot measures. Id. at § 27.2903.

Such committees may not “use a contribution for the purpose

of supporting or opposing a candidate unless the contribution

is attributable to an individual in an amount that does not

exceed $500 per candidate per election.” Id. at § 27.2936(b).

The law applies only to contributions made with the specific

8074 THALHEIMER v. SAN DIEGO
purpose of participation in municipal elections, thus excluding

“dues, donations, fees, or other forms of monetary transactions” from its scope. Id. at § 27.2936(f). The specific dollar

amount of the limits are adjusted every two years based on the

Consumer Price Index. Id. at § 27.2937(a).

The temporal limit, ECCO § 27.2938, makes it unlawful for

any candidate or candidate-controlled political committee “to

solicit or accept contributions prior to the twelve months preceding the primary election for the office sought.” Id. at

§ 27.2938(a). The San Diego Ethics Commission has interpreted this provision as also preventing candidates from

spending their own money on their campaigns outside of the

12-month window.

The organizational contribution limit, ECCO § 27.2950,

prohibits “any person other than an individual” from contributing to a candidate or candidate-controlled committee. Id. at

§ 27.2950(a). The ordinance defines “person” as including

“any individual, proprietorship, firm, partnership, joint venture, syndicate, business trust, company, corporation, association, committee, labor union, or any other organization or

group of persons acting in concert.” Id. at § 27.2903. The

effect of the provision is to bar contributions to candidates

from all organizations and other non-individual entities.

ECCO § 27.2951 underscores the prohibition by making it

unlawful for candidates to accept contributions drawn against

checking or credit card accounts “unless such account belongs

to one or more individuals in their individual capacity.” Id. at

§ 27.2951(a).

1

1Since the district court entered its order, the City enacted a new law

allowing political parties to contribute up to $1,000 per election to candidates in municipal elections. Plaintiffs challenged the new provision in a

separate action and sought a preliminary injunction against enforcement

pending trial, which the district court denied. The constitutionality of this

new provision is not before us. 

THALHEIMER v. SAN DIEGO 8075
On February 16, the district court preliminarily enjoined

enforcement of ECCO § 27.2936, the committee fundraising/spending limit, but held that Plaintiffs were unlikely to

succeed in their First Amendment challenge to the temporal

contribution ban, § 27.2938, except as to the San Diego Ethics

Commission’s enforcement position that the temporal ban

may prohibit candidates’ spending their own money on their

behalf. As to the non-individual contribution limits,

§§ 27.2950 and 27.2951, the district court concluded that

Plaintiffs were unlikely to succeed in their claim that the laws

are unconstitutional as applied generally to corporations and

other organizational entities, but enjoined the provisions as

applied to political parties. The district court also concluded

that Plaintiffs were unlikely to succeed in challenging ECCO

§ 27.2935, the City’s $500 individual contribution limit.

Plaintiffs do not appeal this portion of the ruling.

In a February 22 order, the district court clarified that its

preliminary injunction against enforcement of § 27.2936, the

committee fundraising and spending limit, applied to committees that make only independent expenditures, and covered

contributions made by both individuals and non-individual

entities. The district court also granted in part Plaintiffs’

request for an injunction against § 27.2951, the limit on contributions drawn against non-individual entities’ credit card

and checking accounts, to the extent that it barred contributions drawn against organizational accounts to committees

that make only independent expenditures. These cross-appeals

ensued.

II. JURISDICTION AND STANDARD OF REVIEW

The district court had jurisdiction pursuant to 28 U.S.C.

§ 1331. We have jurisdiction under 28 U.S.C. § 1292(a)(1).

We review a district court’s decision to grant or deny a preliminary injunction for abuse of discretion. See Dominguez v.

Schwarzenegger, 596 F.3d 1087, 1092 (9th Cir. 2010). We

review conclusions of law de novo, and findings of fact for

8076 THALHEIMER v. SAN DIEGO
clear error. Id. “Under this standard, [a]s long as the district

court got the law right, it will not be reversed simply because

the appellate court would have arrived at a different result if

it had applied the law to the facts of the case.” Id. (quotations

omitted). “This review is ‘limited and deferential,’ and it does

not extend to the underlying merits of the case.” Johnson v.

Couturier, 572 F.3d 1067, 1078 (9th Cir. 2009) (quoting Am.

Trucking Ass’ns v. City of Los Angeles, 559 F.3d 1046, 1052

(9th Cir. 2009)).

III. DISCUSSION

“A plaintiff seeking a preliminary injunction must establish

that he is likely to succeed on the merits, that he is likely to

suffer irreparable harm in the absence of preliminary relief,

that the balance of equities tips in his favor, and that an

injunction is in the public interest.” Winter v. NRDC, 555 U.S.

7, 24-25 (2008); see also Stormans, Inc. v. Selecky, 586 F.3d

1109, 1126-27 (9th Cir. 2009). The district court analyzed

whether Plaintiffs were likely to prevail in challenging each

ECCO provision. It properly considered the remaining Winter

elements only as to claims it concluded were meritorious. See

Advertise.com, Inc. v. AOL Advertising, Inc., 616 F.3d 974,

982 (9th Cir. 2010).

Courts asked to issue preliminary injunctions based on First

Amendment grounds face an inherent tension: the moving

party bears the burden of showing likely success on the merits

— a high burden if the injunction changes the status quo

before trial — and yet within that merits determination the

government bears the burden of justifying its speechrestrictive law. Compare Mazurek v. Armstrong, 520 U.S.

968, 972 (1997), with United States v. Playboy Entm’t Group,

529 U.S. 803, 816 (2000). In Gonzales v. O Centro Espirita

Beneficente Uniao do Vegetal, 546 U.S. 418, 423 (2006), the

district court had entered a preliminary injunction to prevent

the government from enforcing the Controlled Substances Act

against a religious sect that used sacramental hallucinogenic

THALHEIMER v. SAN DIEGO 8077
tea. The district court applied the “compelling interest test”

from the Religious Freedom Restoration Act of 1993 (RFRA),

which, like the First Amendment strict scrutiny standard,

places the burden on the government to demonstrate that a

law burdening religious exercise is the least restrictive means

of furthering a compelling state interest. Id. at 424. Finding

that the evidence presented by the parties was “in equipoise,”

the district court concluded that the government failed to

carry its burden and the sect was likely to succeed on the merits, and the Tenth Circuit agreed. Id. at 426-27.

The Supreme Court affirmed, reasoning that the burden of

proof at the preliminary injunction phase tracks the burden of

proof at trial, and therefore “RFRA challenges should be adjudicated in the same manner as constitutionally mandated

applications of the test, including at the preliminary injunction

stage.” Id. at 430. The Court relied on its earlier decision in

Ashcroft v. ACLU, 542 U.S. 656 (2004), in which it affirmed

a preliminary injunction against enforcement of the Child

Online Protection Act (COPA) on First Amendment grounds.

The Ashcroft Court explained the burden of proof at the preliminary injunction stage:

In deciding whether to grant a preliminary injunction, a district court must consider whether the plaintiffs have demonstrated that they are likely to prevail

on the merits . . . . As the Government bears the burden of proof on the ultimate question of COPA’s

constitutionality, respondents must be deemed likely

to prevail unless the Government has shown that

respondents’ proposed less restrictive alternatives

are less effective than COPA.

Id. at 666 (internal citations omitted). 

[1] Therefore, in the First Amendment context, the moving

party bears the initial burden of making a colorable claim that

its First Amendment rights have been infringed, or are threat8078 THALHEIMER v. SAN DIEGO
ened with infringement, at which point the burden shifts to the

government to justify the restriction. See also Klein v. City of

San Clemente, 584 F.3d 1196, 1201 (9th Cir. 2009) (explaining that the party seeking a preliminary injunction “has the

general burden of establishing the elements necessary to

obtain injunctive relief, [and] the city has the burden of justifying the restriction on speech”).

A verified complaint may be treated as an affidavit, and, as

such, it is evidence that may support injunctive relief. See Lew

v. Kona Hosp., 754 F.2d 1420, 1423 (9th Cir. 1985); RossWhitney Corp. v. Smith Kline & French Labs., 207 F.2d 190,

198 (9th Cir. 1953). According to Plaintiffs’ verified complaint, Thalheimer, the former San Diego City Council candidate mulling another run for office, has created a campaign

committee and would begin soliciting and accepting contributions now, but cannot because ECCO § 27.2938 prohibits

such activity before the 12-month window. Thalheimer would

also like to solicit, accept and use donations from organizational entities, but cannot because of ECCO § 27.2950’s prohibition on contributions from non-individuals. He also

intends to solicit contributions from individuals who own

firms as sole proprietors and commingle their personal and

business funds, but he cannot accept money from their business checking accounts or credit cards under ECCO

§ 27.2951.

Plaintiffs also presented evidence that the ABC PAC and

the Lincoln Club, which receive contributions of over $500

from donors, including trusts, corporations and other business

associations, would like to use such funds on independent

expenditures, but are prohibited from doing so by ECCO

§ 27.2936. Similarly, the San Diego County Republican Party

was prohibited from making direct contributions to local candidates by ECCO § 27.2950, which bars organizations from

contributing to candidates’ campaigns. And finally, Plaintiff

Nienstedt declared that he would like to contribute money

now to a candidate in a primary that is more than a year away,

THALHEIMER v. SAN DIEGO 8079
but is prohibited from doing so by ECCO § 27.2938’s temporal limitations. 

The City argues that this evidence is insufficient to make

out a colorable First Amendment claim, relying on Citizens

for Clean Gov’t v. City of San Diego, 474 F.3d 647 (9th Cir.

2007) (“Citizens for Clean Gov’t”), for the general proposition that courts require particularly strong factual showings to

resolve campaign finance disputes. There, Citizens for Clean

Government (Citizens), a political committee, was established

to advocate the recall of a city council member. The group

challenged a provision of San Diego’s campaign finance law

— since repealed — that limited contributions to committees

supporting or opposing candidates to $250. Id. at 649-50. Citizens argued that the law violated the First Amendment as

applied to the signature-gathering phase of an election held to

recall a sitting council member. Id. at 649. The district court

denied Citizens’ request for a preliminary injunction, we

affirmed that decision, and the parties stipulated to a final

judgment in favor of the City. Id. at 650. We then reversed

that judgment, concluding that the City had failed to present

evidence demonstrating that it had a sufficiently important

governmental interest to justify its law in the context of the

signature-gathering phase of a recall election. Id. 

[2] Our conclusion in Citizens for Clean Gov’t that the

City, rather than the Plaintiffs, failed to produce sufficient

evidence, underscores the special constitutional burden placed

on the government to justify a law that restricts political

speech. See id. at 653-54. Moreover, the present appeal

involves a preliminary injunction and therefore we are bound

by the deferential abuse of discretion standard of review. By

contrast, in Citizens for Clean Gov’t we conducted a de novo

review of a final judgment. Id. at 650 (“Because this appeal

relates to a permanent injunction, we are not constrained by

the more limited standard of review that applied at the preliminary injunction phase of this litigation.”). We therefore conclude that the district court applied the correct preliminary

8080 THALHEIMER v. SAN DIEGO
injunction standard, and properly shifted the burden to the

City to justify the ECCO provisions under review.

A. Likelihood of Success on the Merits

1. ECCO § 27.2936: Contribution/Expenditure Limit

for Committees

The Buckley Court established that laws limiting campaign

expenditures are subject to strict scrutiny, but restrictions on

contributions to candidates are judged under a lesser standard.

424 U.S. at 20. The Court reasoned that contribution limitations are less substantial restraints on individuals’ political

communication than expenditure limitations. Id. at 21. The

Buckley Court also found a stronger governmental interest in

regulating contributions than independent spending, because

“the absence of prearrangement and coordination of an expenditure with the candidate or his agent not only undermines the

value of the expenditure to the candidate, but also alleviates

the danger that expenditures will be given as a quid pro quo

for improper commitments from the candidate.” Id. at 47. 

The strict scrutiny standard of review for limitations on

expenditures requires the government to prove that a law is

narrowly tailored to further a compelling governmental interest. See Citizens United, 130 S. Ct. at 898. Contribution limits, on the other hand, need only be “closely drawn” to match

a sufficiently important interest to survive a constitutional

challenge. See Randall v. Sorrell, 548 U.S. 230, 247 (2006)

(plurality opinion). 

ECCO § 27.2936(b) makes it unlawful for a “general purpose recipient committee” — including independent committees that do not coordinate with candidates — “to use a

contribution for the purpose of supporting or opposing a candidate unless the contribution is attributable to an individual

in an amount that does not exceed $500 per candidate per

election.” Therefore, the provision is plausibly read as both a

THALHEIMER v. SAN DIEGO 8081
contribution limit, and an expenditure limit. Although the parties dispute the applicable level of scrutiny, we find it unnecessary to place the provision in one category or the other

because Plaintiffs are likely to succeed in demonstrating the

law to be unconstitutional under either standard. See Long

Beach Area Chamber of Commerce v. City of Long Beach,

603 F.3d 684, 692-93 (9th Cir. 2010) (explaining that while

a similar law was “not subject to easy classification as a contribution limitation or an expenditure limitation,” resolving

the issue was unnecessary because the law “does not withstand scrutiny under the constitutional standards applicable to

either type of campaign finance regulation”). 

[3] “The Supreme Court has concluded that ‘preventing

corruption or the appearance of corruption are the only legitimate and compelling government interests thus far identified

for restricting campaign finances.’ ” Id. at 694 (quoting FEC

v. Nat’l Conservative Political Action Comm., 470 U.S. 480,

496-97 (1985)); see also Davis v. FEC, 554 U.S. 724, 741

(2008).2 Accordingly, the City asserts only an anti-corruption

interest to support ECCO § 27.2936’s limitation on the spending and fundraising of independent committees. However, as

the district court correctly determined, the Supreme Court has

found the anti-corruption interest unavailing in the context of

restrictions on independent expenditures, most recently in Citizens United.

In Citizens United, the Court considered the constitutionality of a federal law restricting corporate and union spending

on “electioneering communications,” defined as broadcasts

aired in the run-up to an election that support or oppose a

2The Supreme Court has recognized that other governmental interests

may legitimately support campaign finance regulations that do not directly

limit contributions or expenditures. See Buckley, 424 U.S. at 66-67 (holding that providing information to the electorate is a sufficiently important

state interest to justify campaign finance disclosure laws); see also Human

Life of Washington Inc. v. Brumsickle, 624 F.3d 990, 1005-06 (9th Cir.

2010).

8082 THALHEIMER v. SAN DIEGO
political candidate. 130 S. Ct. at 886-87. Citizens United, a

nonprofit corporation, challenged the law because it feared

sanctions for broadcasting via video-on-demand services a

documentary critical of then-Senator Hillary Clinton during

the 2008 presidential primary season. Id. at 887-88. The Court

had recently upheld limits on electioneering communications

in McConnell v. FEC, 540 U.S. 93, 203-09 (2003). That decision relied in part on Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 658-59 (1990), in which the Court held

that due to the “unique legal and economic characteristics of

corporations,” the government could restrict corporate political spending in order to prevent the distortion of the political

process.

[4] The Citizens United Court overruled Austin and the relevant portion of McConnell, holding that the anti-distortion

rationale was not a valid governmental interest, and that “the

Government may not suppress political speech on the basis of

the speaker’s corporate identity.” Citizens United, 130 S. Ct.

at 913. The Court also rejected the Government’s argument

that the law limiting spending on electioneering communications could be justified by an anti-corruption interest. It reasoned that the “ ‘absence of prearrangement and coordination

of an expenditure with the candidate or his agent not only

undermines the value of the expenditure to the candidate, but

also alleviates the danger that expenditures will be given as a

quid pro quo for improper commitments from the candidate.’ ” Id. at 908 (quoting Buckley, 424 U.S. at 47). The

Court stated that restricting independent expenditures on

political speech has “a chilling effect extending well beyond

the Government’s interest in preventing quid pro quo corruption. The anti-corruption interest is not sufficient to displace

the speech here in question.” Id. at 908. 

We applied Citizens United to a campaign regulation similar to the City’s in Long Beach. There we considered the constitutionality of the Long Beach Campaign Reform Act

(LBCRA) as applied to political action committees affiliated

THALHEIMER v. SAN DIEGO 8083
with the Long Beach Area Chamber of Commerce. 603 F.3d

at 687. LBCRA stated that “ ‘[a]ny person who makes independent expenditures supporting or opposing a candidate shall

not accept any contribution’ in excess of $350 to $650,

depending upon the office for which the candidate is running.” Id. (quoting Long Beach, Cal., Ordinances §§ 2.01.310,

2.01.610). The term “person” was defined to include political

committees. Id. The city of Long Beach offered an anticorruption rationale to justify the law, which had the stated

purpose of “ ‘reduc[ing] the influence of large contributors

with a specific financial stake in matters before the City

Council, thus countering the perception that decisions are

influenced more by the size of contributions than the best

interests of the people of the City.’ ” Id. at 694 (quoting Long

Beach, Cal., Ordinances § 2.01.130(B)). 

[5] We concluded that the Citizens United decision had

narrowed the scope of the anti-corruption rationale to cover

“quid pro quo corruption only, as opposed to money spent to

obtain ‘influence over or access to elected officials.’ ” Id. at

694 n.5 (quoting Citizens United, 130 S. Ct. at 910). Therefore, we held that the anti-corruption rationale failed to justify

LBCRA’s limitation on the receipt of contributions to support

independent expenditures. Id. at 698-99. Other circuits have

similarly read Citizens United as foreclosing the anticorruption interest in the context of independent expenditures.

See, e.g., SpeechNow.org v. FEC, 599 F.3d 686, 694-95 (D.C.

Cir. 2010) (asserting that Citizens United held “as a matter of

law that independent expenditures do not corrupt or create the

appearance of quid pro quo corruption,” and thus “contributions to groups that make only independent expenditures also

cannot corrupt or create the appearance of corruption”).

The City argues that while Citizens United partially overruled McConnell, the Court left intact a portion of the earlier

decision upholding a limitation on how committees spend certain contributions. McConnell involved a constitutional challenge to the Bipartisan Campaign Reform Act of 2002

8084 THALHEIMER v. SAN DIEGO
(BCRA), which amended the Federal Election Campaign Act

(FECA) to add restrictions on the use of “soft money,” or contributions made “to political parties for activities intended to

influence state or local elections.” 540 U.S. at 123. Congress

sought to limit the parties’ increasing use of soft money on

federal campaigns by “prohibit[ing] national party committees

and their agents from soliciting, receiving, directing, or

spending any soft money,” and preventing state party committees from using soft money on federal election activities. Id.

at 133-34. 

The McConnell Court held that these provisions “simply

limit the source and individual amount of donations. That they

do so by prohibiting the spending of soft money does not render them expenditure limitations.” Id. at 139. In upholding the

provisions, the Court rejected the argument that the anticorruption interest was insufficient because the parties could

use the contributions to make independent expenditures. Id. at

152. Given the “close connection and alignment of interests”

between federal officeholders and candidates and the national

political parties, the Court held that “large soft-money contributions to national parties are likely to create actual or apparent indebtedness on the part of federal officeholders,

regardless of how those funds are ultimately used.” Id. at 155.

Similarly, in California Medical Association v. FEC, 453

U.S. 182, 197-98 (1981) (“CalMed”), the Supreme Court

relied on an anti-corruption interest to uphold limitations on

contributions to “multicandidate political committees.” The

nonprofit California Medical Association (CMA) had formed

the California Medical Political Action Committee (CalPAC),

a registered political committee. Id. at 185. The FEC sanctioned the CMA for making contributions to CalPAC in

excess of statutory limits, prompting the organizations to file

a lawsuit challenging those limitations on First Amendment

grounds. Id. at 186.

The CalMed Court explained that multi-candidate political

committees may be formed independently of officeholders or

THALHEIMER v. SAN DIEGO 8085
candidates, but by definition they contribute directly to five or

more candidates for federal office. Id. at 185 n.1. It concluded

that this direct donor relationship presented a risk of actual or

apparent quid pro quo corruption. Id. at 197. Moreover, the

Court noted that donors could exploit the structure of a multicandidate PAC to evade individual candidate contribution

limits. Id. at 198. Therefore, it upheld the limitation on contributions to these committees — regardless of how the committees ultimately spent the donations — as “an appropriate

means by which Congress could seek to protect the integrity

of the contribution restrictions upheld by this Court in Buckley.” Id.

The City contends that this line of authority remains good

law, and that it establishes that “contributions to independent

groups do have the potential to corrupt.” We rejected a similar

argument in Long Beach. We explained that in McConnell,

the Supreme Court “upheld limitations on contributions to

political parties because ‘the close relationship between federal officeholders and the national parties, as well as the

means by which parties have traded on that relationship’ ”

raised the same concerns about quid pro quo corruption that

exist with candidate contributions but not with independent

expenditures. Long Beach, 603 F.3d at 696 (quoting McConnell, 540 U.S. at 154-55). We likewise distinguished CalMed,

because there the Court concluded that the multi-candidate

political committees had a “close relationship with candidates

and office holders [that] made them ‘conduits for contributions to candidates, and as such they pose[d] a perceived

threat of actual or potential corruption.’ ” Id. (quoting

CalMed, 453 U.S. at 203 (Blackmun, J., concurring in part

and concurring in the judgment)).

We therefore determined in Long Beach that the contribution limits in McConnell and CalMed were justified by an

anti-corruption interest because the regulated entities had

unusually close relationships with the candidates they supported. “[T]he need for contribution limitations to combat

8086 THALHEIMER v. SAN DIEGO
corruption or the appearance thereof tends to decrease as the

link between the candidate and the regulated entity becomes

more attenuated.” Long Beach, 603 F.3d at 696. Like the

Chamber of Commerce PACs in Long Beach, here the ABA

PAC and the Lincoln Club have indirect relationships with

candidates. They lack the direct donor relationship that is the

defining feature of a multi-candidate committee, or the historical interconnection with candidates that distinguishes political parties.

[6] The City’s attempts to distinguish Long Beach are

unpersuasive. It notes that while Long Beach prohibited

groups from making any independent expenditures if their

dues exceeded the contribution limit, San Diego’s law allows

organizations to collect membership fees without counting the

dues as political contributions. This is a legally significant

distinction between the San Diego and Long Beach laws, but

the distinction is relevant only to the level of scrutiny and tailoring analyses. That distinction does not, however, change the

decisive point here, which is that the City lacks a sufficiently

important governmental interest to justify the law. The district

court therefore correctly concluded that Plaintiffs are likely to

succeed in showing that ECCO § 27.2936 violates the First

Amendment. 

2. ECCO § 27.2938: Temporal Ban on Contributions

[7] To support the district court’s conclusion that the

City’s temporal ban is constitutional, the City argues that it

reduces actual and perceived corruption because those contributions made near an election are clearer expressions of political speech, whereas off-year contributions are more likely

linked to business the donor has before the city, thus creating

the appearance of quid pro quo “corruption by the sale of

influence.” Indeed, the special character of early campaign

contributions is so widely recognized that Emily’s List, at one

time the nation’s “most successful PAC,” takes its name from

the familiar political aphorism that “Early Money Is Like

THALHEIMER v. SAN DIEGO 8087
Yeast” because it “makes the dough rise.” Roy A. Schotland,

Campaign Finance in Judicial Elections, 34 Loy. L.A. L.

Rev. 1489, 1497 n.10 (2001); Emily’s List, Frequently Asked

Questions, http://emilyslist.org/who/faq/.

Plaintiffs misread Citizens for Clean Gov’t as holding the

City to a higher evidentiary burden in this context that

requires a specific showing of actual or perceived corruption.

There we held that the district court improperly allowed the

City to demonstrate its sufficiently important state interest

with “hypothetical situations not derived from any record evidence or governmental findings” and “vague allusions to

practical experience.” 474 F.3d at 653-54. In requiring more

detailed evidence, we employed a less deferential standard of

review than we would have employed at the preliminary

injunction phase, and we focused on the unique nature of San

Diego’s restriction “in the recall context.” Id. at 650, 654.

This reflected the Supreme Court’s admonition in Nixon v.

Shrink Missouri Government PAC, 528 U.S. 377, 391 (2000),

that the “quantum of empirical evidence needed to satisfy

heightened judicial scrutiny of legislative judgments will vary

up or down with the novelty and plausibility of the justification raised.”

Because “the regulations at issue in Shrink were similar to

those in Buckley, the state’s asserted interest was neither

novel nor implausible. Therefore, the Court declined to

impose, let alone articulate, a stringent evidentiary burden.”

Citizens for Clean Gov’t, 474 F.3d at 652-53. Shrink dealt

with direct contributions to candidates, 528 U.S. at 381, and

Buckley established that a limit on the amount of such contributions is “only a marginal restriction upon the contributor’s

ability to engage in free communication” that can be justified

by the government’s interest in preventing “political quid pro

quo from current and potential office holders,” 424 U.S. at

20-21, 26. By contrast, Citizens for Clean Gov’t involved limits on contributions to committees working to support or

oppose candidates in recall elections, and “the City offer[ed]

8088 THALHEIMER v. SAN DIEGO
no evidence of deliberation on the issue of campaign finance

in recall elections, and it ha[d] no recourse to legal authority

addressing these exact issues because none exists.” 474 F.3d

at 654. Therefore, we held “only that the district court erred

by failing to require evidence clarifying the analogy between

the state interest in Buckley and the one asserted here.” Id. 

[8] The heightened evidentiary requirement in Citizens for

Clean Gov’t stemmed from the novelty of limiting contributions to recall campaign committees, as opposed to limiting

the sort of direct candidate contributions in normal campaign

cycles addressed in Buckley. There is no such need to clarify

the analogy to Buckley where § 27.2938 operates as a limitation on traditional direct candidate contributions. While Buckley addressed limits on the dollar amount of contributions and

§ 27.2938 restricts their timing, this distinction favors the City

because a temporal ban is an even more “marginal restriction

upon the contributor’s ability to engage in free communication” than a dollar cap. Buckley, 424 U.S. at 20-21. Here the

district court reasonably found that “[w]hile temporal limits

do burden free speech and association, there is no evidence

that the City’s limit is more than a minimal burden.” 

[9] Thalheimer alleges in the verified complaint that his

speech is burdened by the temporal ban because he wants to

solicit and accept contributions now in advance of the 2012

election in order to be competitive against a potential incumbent opponent. However, the district court correctly determined that Buckley undercut the argument that a law that

treats all parties equally can burden First Amendment rights

by favoring incumbents. See Buckley, 424 U.S. at 31 (“Absent

record evidence of invidious discrimination against challengers as a class, a court should generally be hesitant to invalidate legislation which on its face imposes evenhanded

restrictions.”). Nienstedt asserts a burden on his First Amendment rights because he wishes to contribute now to a candidate whose primary is more than a year away. However, the

district court reasonably concluded that it was not a serious

THALHEIMER v. SAN DIEGO 8089
burden for candidates to “merely be ‘forced to rearrange their

fundraising’ by concentrating it in the 12-month window.”

(quoting Gable v. Patton, 142 F.3d 940, 951 (6th Cir. 1998)).

[10] Because this is an open question in our circuit, the

district court’s analysis of the temporal limitation relied

largely on the Sixth Circuit’s opinion in Gable and the Fourth

Circuit’s decision in North Carolina Right to Life, Inc. v.

Bartlett, 168 F.3d 705 (4th Cir. 1999). In Gable, a political

candidate challenged various provisions of Kentucky’s campaign finance law, including a prohibition on gubernatorial

candidates accepting contributions during the 28 days preceding a primary or general election. 142 F.3d at 944. The Sixth

Circuit acknowledged that candidates would “be forced to

rearrange their fundraising by concentrating it in the period

before the 28-Day Window begins,” and that this “is not a

trivial restriction.” Id. at 951. Nonetheless, it concluded that

the temporal limitation was constitutional because the court

“read Buckley to say that such a restriction is justified by Kentucky’s interest in combating corruption.” Id. 

In Bartlett, a political action committee and its president

brought a First Amendment challenge to North Carolina’s

campaign finance law. One provision prevented lobbyists and

political committees that employ lobbyists from contributing

to state legislators and candidates while the legislature is in

session. 168 F.3d at 714-15. The Fourth Circuit concluded

that the provision “serves to prevent corruption and the

appearance of corruption” because “[l]egislative action which

is procured directly through gifts, or even campaign contributions, too often fails to reflect what is in the public interest,

what enjoys public support, or what represents a legislator’s

own conscientious assessment of the merits of a proposal.” Id.

at 715. The court determined that the provision was tailored

to the anti-corruption interest because it applied only to lobbyists and their affiliates, and the temporal limitation did

“nothing more than place a temporary hold on appellees’ ability to contribute . . . leaving them free to contribute during the

8090 THALHEIMER v. SAN DIEGO
rest of the calendar year and to engage in political speech for

the entire calendar year.” Id.

Plaintiffs attempt to distinguish Gable and Patton by

emphasizing that those cases involved shorter temporal limitations. The restriction in Bartlett was narrowed to cover a

particular group of contributors thought to pose an especially

strong threat of quid pro quo corruption, while the restriction

in Gable was designed to bolster Kentucky’s public financing

regime. These distinctions do not make the essential reasoning of Gable and Patton any less persuasive, however; nor do

they demonstrate that the City’s law is not closely drawn to

a sufficiently important state interest. The City has articulated

an anti-corruption interest that is not novel or implausible, so

it is not required to meet a heightened evidentiary burden.3

[11] The differences between the City’s ordinance and the

restrictions upheld in Gable and Bartlett are understandable

given that the laws in those cases addressed partisan state

elections, whereas ECCO regulates the financing of nonpartisan municipal campaigns. Moreover, “[w]e cannot determine

with any degree of exactitude the precise restriction necessary

to carry out the statute’s legitimate objectives,” and “[i]n

practice, the legislature is better equipped to make such

empirical judgments, as legislators have ‘particular expertise’

in matters related to the costs and nature of running for office.

Thus ordinarily we have deferred to the legislature’s determination of such matters.” Randall, 548 U.S. at 248 (citations

3The City apparently made a tactical decision not to introduce specific

evidence to support its anti-corruption interest at this early stage of the litigation so as to emphasize Plaintiffs’ burden as the moving parties seeking

preliminary injunctive relief. We would note, though, that our own case

law contains a vivid illustration of corruption in San Diego municipal government involving campaign contributions timed to coincide with the

donors’ particular business before the city council. See United States v.

Inzunza, ___ F.3d ___, 2011 WL 1365590 (9th Cir. April 12, 2011)

(affirming the conviction of a former San Diego City Council member on

charges stemming from a bribery scandal). 

THALHEIMER v. SAN DIEGO 8091
omitted). Plaintiffs’ scant evidence of harm suffered from the

temporal ban is not sufficient evidence of the sort of “danger

signs” that would compel us to show less deference to the

judgment of San Diego officials. See id. at 249.

3. ECCO §§ 27.2950 and 27.2951: Ban on 

Organizational Contributions

Applying closely drawn scrutiny, the district court correctly

determined that Plaintiffs were unlikely to succeed in their

general challenge to the ECCO provisions making it unlawful

for “non-individuals” to contribute directly to candidates, but

likely to succeed in showing that the law is unconstitutional

as applied to political parties.4

a. Non-Individual Contribution Ban

[12] The City contends that the prohibition on contributions by corporations, unions, committees, and other organizations serves the purpose of preventing the circumvention of

individual contribution limits. The Supreme Court recognized

the anti-circumvention interest in FEC v. Beaumont, 539 U.S.

146 (2003), which concerned a century-old federal statute

barring corporations from contributing directly to candidates

for federal office. North Carolina Right to Life, Inc., several

of its officers, and a North Carolina voter challenged the constitutionality of the law as applied to nonprofit advocacy corporations. Id. at 149. The Court upheld such enforcement of

the law, reasoning that “[n]onprofit advocacy corporations are

. . . no less susceptible than traditional business companies to

4Plaintiffs acknowledge that the closely drawn standard of review is

appropriate for contribution limits, but suggest that contribution bans

should be treated differently. However, the Supreme Court has held that

while it is “not that the difference between a ban and a limit is to be

ignored . . . the time to consider it is when applying scrutiny at the level

selected, not in selecting the standard of review itself.” FEC v. Beaumont,

539 U.S. 146, 162 (2003). 

8092 THALHEIMER v. SAN DIEGO
misuse as conduits for circumventing the contribution limits

imposed on individuals.” Id. at 160.

Plaintiffs argue that Beaumont has been overruled by Citizens United, and that the anti-circumvention interest is no longer valid. They base this contention on the Beaumont Court’s

citations to Austin, which partially relied on an anticircumvention rationale to uphold a limit on corporate political expenditures. See Austin, 494 U.S. at 664. Plaintiffs fail to

recognize, however, that the Citizens United Court rejected

Austin for its reliance on the distinct “anti-distortion” rationale that allowed spending restrictions based on the tendency

of “immense aggregations of wealth” accumulated via the

corporate form to tilt the political playing field. See Citizens

United, 130 S. Ct. at 907. The anti-distortion interest is based

on an equality rationale, see id. at 922 (Roberts, C.J., concurring), whereas the anti-circumvention interest is part of the

familiar anti-corruption rationale, see FEC v. Colo. Republican Fed. Campaign Comm., 533 U.S. 431, 456 (2001)

(“Colorado II”) (“[A]ll Members of the Court agree that circumvention is a valid theory of corruption.”).

[13] Moreover, the Citizens United Court’s disapproval of

Austin came in the context of regulating political expenditures, not contributions. The Court made clear that it was not

revisiting the long line of cases finding anti-corruption rationales sufficient to support such limitations. See Citizens

United, 130 S. Ct. at 909 (“Citizens United has not made

direct contributions to candidates, and it has not suggested

that the Court should reconsider whether contribution limits

should be subjected to rigorous First Amendment scrutiny.”).

Therefore, there is nothing in the explicit holdings or broad

reasoning of Citizens United that invalidates the anticircumvention interest in the context of limitations on direct

candidate contributions. See also Green Party of Conn. v.

Garfield, 616 F.3d 189, 199 (2d Cir. 2010) (“Although the

Court’s campaign-finance jurisprudence may be in a state of

flux (especially with regard to campaign-finance laws regulatTHALHEIMER v. SAN DIEGO 8093
ing corporations), Beaumont and other cases applying the

closely drawn standard to contribution limits remain good

law.”). 

Alternatively, Plaintiffs argue that the City’s ban on contributions by non-individuals is not closely drawn to the anticircumvention interest. They seek to distinguish Beaumont by

noting that even though the Court upheld a total ban on corporate contributions, its tailoring analysis took into account that

corporations retained the option of establishing political

action committees that could make contributions to candidates. See 539 U.S. at 163. By contrast, the relevant ECCO

provisions ban all non-individual contributions, so there is no

PAC alternative. While this is a legitimate distinction, the

Beaumont Court also stated that a “ban on direct corporate

contributions leaves individual members of corporations free

to make their own contributions, and deprives the public of

little or no material information.” Id. at 161 n.8.

More importantly, San Diego’s regulations allow nonindividual entities to make unlimited independent expenditures, and with ECCO § 27.2936 enjoined, they can also make

unlimited contributions to independent committees that can be

used to fund expenditures supporting or opposing candidates.

See Colorado II, 533 U.S. at 455, 464-65 (weighing political

parties’ ability to make unlimited independent expenditures

on behalf of candidates in the analysis of limits on parties’

coordinated spending, which the Court treated the same as

limits on direct contributions). While expenditures and contributions are different modes of political speech, it is the distinct nature of contributions that lessens the First Amendment

rights of donors, and strengthens the government’s regulatory

power. See id. at 440-41 (“Restraints on expenditures generally curb more expressive and associational activity than limits on contributions do. A further reason for the distinction is

that limits on contributions are more clearly justified by a link

to political corruption than limits on other kinds of unlimited

political spending . . .”) (citations omitted). 

8094 THALHEIMER v. SAN DIEGO
In terms of both the fundamental First Amendment interests

at stake and actual influence on the political process, an organization’s ability to directly contribute $500 to a candidate

pales in significance to its ability to make unlimited independent expenditures and unlimited donations to political action

committees, which can in turn spend unlimited amounts supporting or opposing candidates. 

Finally, Plaintiffs argue based on Citizens United that the

City’s contribution limits violate the First Amendment by discriminating against non-human speakers. The Court held in

Citizens United that the “Government may not suppress political speech on the basis of the speaker’s corporate identity.”

130 S. Ct. at 913. While the scope of that holding has yet to

be fully developed, the Citizens United opinion demonstrates

concern about laws that target particular speakers, such as

corporations, based on their status, whereas the City’s law

draws a functional line between individual donors and all

non-individuals. The Citizens United Court struck down a law

that raised the obviously troubling specter of criminal prosecution of certain corporations and individuals for releasing a

politically themed movie, book, or pamphlet too close to an

election, while others remained exempt from punishment. See

id. at 888, 894-95. There is no such danger here, and indeed

the Citizens United Court expressly did not extend its holding

to the contribution context. See also Minn. Citizens Concerned for Life, Inc. v. Swanson, ___ F.3d ___, 2011 WL

1833236, (8th Cir. May 16, 2011) (holding that plaintiffs were

unlikely to prevail in a First Amendment challenge to Minnesota’s ban on direct corporate contributions to candidates

because Citizens United did not overrule Beaumont’s holding

that a state “can generally ban all direct corporate contributions”).

b. Ban on Contributions from Political Parties

Since the district court issued its ruling, the City enacted a

new provision, codified as ECCO § 27.2934, which allows

THALHEIMER v. SAN DIEGO 8095
political parties to make contributions to candidates of up to

$1,000 per election cycle. Plaintiffs initiated separate litigation challenging the constitutionality of the new provision and

requesting a preliminary injunction. The district court denied

the request for injunctive relief, allowing the City to enforce

the new law pending final judgment. That litigation is not currently before us, but we must consider if the new law has rendered this aspect of the appeal moot.

[14] The City acknowledges that it adopted the new provision in direct response to the district court’s earlier issuance

of a preliminary injunction against enforcement of ECCO

§§ 27.2950-51 as applied to political parties. We therefore

conclude that this change does “not deprive the federal courts

of jurisdiction to decide the constitutional question because of

the well-settled principle that a defendant’s voluntary cessation of a challenged practice does not deprive a federal court

of its power to determine the legality of the practice.” Jacobus

v. Alaska, 338 F.3d 1095, 1103 (9th Cir. 2003) (quoting Carreras v. City of Anaheim, 768 F.2d 1039, 1047 (9th Cir.

1985)). “These concerns are of particular force in a case like

the present one, in which the ‘voluntary cessation’ occurred

only in response to the district court’s judgment.” Id.

As for Plaintiffs’ likely success on the merits, the district

court framed the matter as a choice between the Supreme

Court decisions in Colorado II and Randall. Decided in 2001,

Colorado II involved a challenge to the Federal Election

Campaign Act’s limits on political parties’ coordinated

expenditures. FECA capped coordinated spending between

candidates and parties, based on district size and the relative

cost of the media market. For candidates for the U.S. Senate,

this ranged from $67,500 to $1,636,438. For candidates for

the U.S. House of Representatives, it ranged from $33,780 to

$67,560. Parties were also allowed to give up to $5,000 in

direct contributions to candidates. 533 U.S. at 439 n.3, 442

n.7. The Court held that parties’ coordinated expenditures

should be treated the same as contributions, and that they

8096 THALHEIMER v. SAN DIEGO
could be restricted to further the government’s anticircumvention interest. Id. at 456, 465. 

In so ruling, the Court cautioned against treating political

parties differently from other speakers for the purposes of

analyzing contribution limits. See id. at 455-56 (“The Party’s

arguments for being treated differently from other political

actors subject to limitation on political spending under the Act

do not pan out . . . . [w]e accordingly apply to a party’s coordinated spending limitation the same scrutiny we have applied

to the other political actors . . . .”); id. at 454 (stating that a

“party is not, therefore, in a unique position” compared with

other contributors in terms of its coordinated spending); see

also Jacobus, 338 F.3d at 1109 (“In fact, in Colorado Republican II the Court specifically rejected the contention that

party contributions merited a stricter standard of scrutiny

. . . .”).

Five years later, however, the Supreme Court suggested

that political parties do in fact have a special role requiring

unique attention when analyzing contribution limits. In Randall, the Court confronted a challenge to Vermont’s campaign

finance statute, which included contribution limits for state

races of $200 to $400 per candidate, per cycle, depending on

the office, which applied equally to individuals, committees,

and political parties. 548 U.S. at 238. For the first time, the

Court held that a contribution limit violated the First Amendment by failing the closely drawn scrutiny standard of review.

Justice Breyer’s plurality opinion announced the judgment of

the Court.5 Acknowledging that “[s]ince Buckley, the Court

has consistently upheld contribution limits in other statutes,”

5Therefore, we follow the plurality opinion as persuasive authority,

though “not a binding precedent.” Texas v. Brown, 460 U.S. 730, 737

(1983) (noting that a plurality opinion consisting of “the considered opinion of four Members of this Court” was not binding, but “should obviously be the point of reference for further discussion of the issue”). Justice

Breyer’s plurality opinion was joined by two justices, one in full and one

in part. Randall, 548 U.S. at 235. 

THALHEIMER v. SAN DIEGO 8097
the plurality nonetheless concluded that “we must recognize

the existence of some lower bound,” and Vermont’s very low

contribution limits fell below that minimal threshold. Id. at

247-48. 

The Randall plurality opinion directed courts to identify

that threshold by scouring the record to look for “danger

signs” that contribution limits are low enough to threaten

“democratic accountability.” Id. at 248-49. Among the “danger signs” in the Vermont case were the statute’s treatment of

political parties. The plurality noted that Vermont applied “its

$200 to $400 limits—precisely the same limits it applies to an

individual—to virtually all affiliates of a political party taken

together as if they were a single contributor.” Id. at 257. The

limitations covered monetary contributions to candidates and

“expenditures in kind” such as “stamps, stationery, coffee,

doughnuts, gasoline, campaign buttons, and so forth,” thus

“severely limit[ing] the ability of a party to assist its candidates’ campaigns by engaging in coordinated spending on

advertising, candidate events, voter lists, mass mailings, even

yard signs.” Id. 

The plurality also expressed concern that the limits would

discourage voters lacking detailed knowledge of state legislative races from contributing small amounts to parties in the

hope that the parties would then contribute to like-minded

candidates. Id. at 257-58. The Randall plurality did not

address the general statements in Colorado II about the treatment of political parties. However, it explained that the federal limits of at least $67,560 in coordinated spending and

$5,000 in direct cash contributions for U.S. Senate candidates,

and at least $33,780 in coordinated spending and $5,000 in

direct cash contributions for U.S. House candidates, were “far

less problematic” than Vermont’s much lower $200-$400

contribution limits. Id. at 258. The plurality therefore concluded that the limitations at issue “would reduce the voice of

political parties in Vermont to a whisper,” and thus the “special party-related harms” were a factor weighing against the

8098 THALHEIMER v. SAN DIEGO
constitutional validity of Vermont’s contribution limits. Id. at

259.

It remains unclear whether the Randall plurality opinion

actually supersedes Colorado II and holds that political parties must be treated differently than other contributors, or

whether the analysis of “special party-related harms” was

merely one case-specific factor. The Second Circuit recently

concluded that with its focus on the integrity of the electoral

process as a whole, as opposed to the expressive interest of

the individual campaign contributor, the multifactor test in the

Randall plurality opinion only “addressed general contribution limits that applied to all citizens.” Green Party, 616 F.3d

at 201. Accordingly, the Green Party court held that the Randall analysis did not apply to Connecticut’s narrow contribution limits targeting only public contractors, lobbyists, and

affiliated individuals and entities. Id. Here the City’s law prohibits political party contributions as part of a comprehensive

restriction on direct donations by all non-individual organizations, including political parties, corporations, partnerships,

unions, and committees. This places the challenged provision

somewhere between the Vermont statute that regulated the

state’s entire electoral process, and the Connecticut law in

Green Party that targeted a narrow class of political speakers.

[15] The Supreme Court has directed that when a district

court grants a preliminary injunction protecting First Amendment rights, “[i]f the underlying constitutional question is

close . . . we should uphold the injunction and remand for trial

on the merits.” Ashcroft, 542 U.S. at 664-65. Given the close

constitutional question here and the narrow nature of our

inquiry at the preliminary injunction stage, we hold that the

district court did not abuse its discretion in concluding that

Plaintiffs were likely to succeed on the merits of their challenge to the application of these ECCO provisions to political

parties. See also Cal. Prolife Council Political Action Comm.

v. Scully, 164 F.3d 1189, 1190 (9th Cir. 1999). 

THALHEIMER v. SAN DIEGO 8099
B. Likelihood of Irreparable Harm, Hardship, and 

Public Interest

[16] Even where a plaintiff has demonstrated a likelihood

of success on the merits of a First Amendment claim, he

“must also demonstrate that he is likely to suffer irreparable

injury in the absence of a preliminary injunction, and that the

balance of equities and the public interest tip in his favor.”

Klein v. City of San Clemente, 584 F.3d 1196, 1207 (9th Cir.

2009). Here, before granting Plaintiffs’ requests for preliminary injunctions against enforcement of ECCO § 27.2936 and

§§ 27.2950-51 as applied to political parties, the district court

correctly examined each necessary element and did not

assume that they merely “collapse into the merits” of the First

Amendment claim. Cf. Dish Network Corp. v. FCC, 636 F.3d

1139, 1144 (9th Cir. 2011). 

As to irreparable harm, the district court followed a long

line of precedent establishing that “[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Klein, 584 F.3d at 1208

(quoting Elrod v. Burns, 427 U.S. 347, 373 (1976)). “The

harm is particularly irreparable where, as here, a plaintiff

seeks to engage in political speech, as ‘timing is of the

essence in politics’ and ‘[a] delay of even a day or two may

be intolerable.” Id. (quoting Long Beach Area Peace Network

v. City of Long Beach, 522 F.3d 1010, 1020 (9th Cir. 2008)).

The district court separately determined that the public

interest in upholding free speech and association rights outweighed the interest in continued enforcement of these campaign finance provisions. See Sammartano v. First Judicial

District Court, in and for County of Carson City, 303 F.3d

959, 974 (9th Cir. 2002) (“Courts considering requests for

preliminary injunctions have consistently recognized the significant public interest in upholding First Amendment principles.”). It also gave unique attention to the balance of

hardships, concluding that the equities tipped in Plaintiffs’

8100 THALHEIMER v. SAN DIEGO
favor because the burden of the restriction on their speech and

associational rights outweighed the disruption to the City’s

campaign finance system. See Klein, 584 F.3d at 1208; Sammartano, 303 F.3d at 973.

IV. CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s

decision to grant in part and deny in part Plaintiffs’ request

for a preliminary injunction. Each party shall bear its own

costs on appeal.

AFFIRMED.

THALHEIMER v. SAN DIEGO 8101