FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CITIZENS FOR CLEAN GOVERNMENT, 

the committee to recall Scott

Peters, an unincorporated

association, No. 04-56964

Plaintiff-Appellant, D.C. No.  v. 03CV-1215-BEN

CITY OF SAN DIEGO, a public OPINION

agency; DOES, 1 through 100,

inclusive.

Defendants-Appellees. 

Appeal from the United States District Court

for the Southern District of California

Roger T. Benitez, Magistrate Judge, Presiding

Argued and Submitted

November 15, 2006—Pasadena, California

Filed January 19, 2007

Before: Cynthia Holcomb Hall, Michael Daly Hawkins, and

Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Hall

843
COUNSEL

Steven W. Haskins and Margaret Pitchkolan, Haskins &

Associates, Bonita, California, for the appellant. 

David Brodie and Robert J. Walters, Deputy City Attorneys,

San Diego, California, for the appellee.

OPINION

HALL, Senior Circuit Judge: 

The City of San Diego bans contributions exceeding $250

to any committee supporting or opposing a candidate for City

Council office. San Diego Municipal Code (SDMC)

§ 27.2935 (2005).1 This limit applies to recall efforts because

the term “candidate” includes a “City officeholder who

becomes the subject of a recall election.” Id. § 27.2903. 

1At the time this suit was filed, this provision was codified at SDMC

§ 27.2941. The subsequent revisions to the statute do not materially

change the ordinance in any relevant manner. 

846 CITIZENS FOR CLEAN GOV’T v. SAN DIEGO
In this case, Citizens for Clean Government (“Citizens”)

argues that the contribution limit is unconstitutional as applied

to the signature-gathering phase of a recall election. San

Diego asserts its ordinance is valid under Buckley v. Valeo,

424 U.S. 1 (1976), and the district court agreed. It denied Citizens’ request for preliminary injunctive relief, and this court

affirmed. The parties then stipulated to a final judgment

against Citizens. We now vacate and remand.

I.

The recall election of a City Councilman in San Diego

(“the City”) proceeds in two phases. In the first phase, recall

proponents must gather the signatures of at least 15 percent of

the voters in the council district. SDMC § 27.2703 (2000).

They may begin collecting signatures 21 days after they publish a notice of intent to circulate a recall petition, id.

§ 27.2708, and must collect the required number of signatures

within 60 days of the notice. Id. § 27.2715. In total, recall proponents have 39 days to collect the signatures required to file

the recall petition. In the second phase of a recall, which

occurs only after the requisite number of signatures has been

collected and each signature verified, the City calls a special

election in which voters choose whether to recall their councilman and select a replacement from a slate of successors. Id.

§§ 27.2722, 27.2725. 

In 2003, Citizens was formed as an unincorporated association to recall Scott Peters, the City Councilman for District 1.

To succeed at obtaining a special election, Citizens had to collect over 12,000 signatures on its recall petition, and it

planned to do so by employing paid petition circulators. Citizens ultimately failed to collect the required number of signatures in time. The following year, Scott Peters was re-elected

in the 2004 city general election. 

Citizens filed this lawsuit for declaratory and injunctive

relief on June 20, 2003, the day after it published its notice of

CITIZENS FOR CLEAN GOV’T v. SAN DIEGO 847
intent to circulate a recall petition. It alleged that the City’s

campaign contribution limit, then codified at SDMC

§ 27.2941, violated its right to freedom of speech and freedom

of association under the First Amendment of the United States

Constitution. 

On July 3, 2003, the district court denied Citizens’ request

for preliminary injunctive relief. Citizens, it held, had not

shown a likelihood of success on the merits of its claim that

the City’s ordinance was unconstitutional under Buckley, the

Supreme Court’s seminal campaign finance decision. On

November 14, 2003, this court affirmed. The parties stipulated to a final judgment against Citizens on October 6, 2004,

and Citizens timely filed this appeal on November 5, 2004. 

[1] Because the recall campaign against Scott Peters did not

obtain enough signatures to reach the ballot, and Councilman

Peters was ultimately re-elected in 2004, we must address the

question of whether this case is moot. The Supreme Court has

held that the following two factors may preclude a finding of

mootness: “(1) the challenged action was in its duration too

short to be fully litigated prior to its cessation or expiration,

and (2) there [is] a reasonable expectation that the same complaining party [will] be subjected to the same action again.”

First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 774

(1978) (quoting Weinstein v. Bradford, 423 U.S. 147, 149

(1975) (alteration in original)). In short, the question is

whether the alleged injury is “capable of repetition, yet evading review.” S. Pac. Terminal Co. v. ICC, 219 U.S. 498, 515

(1911). We have previously noted that election cases tend to

fall within this exception. See Alaska Right to Life Comm. v.

Miles, 441 F.3d 773, 779 (9th Cir. 2006); Cal. Pro-Life Council, Inc. v. Getman, 328 F.3d 1088, 1095 n.4 (9th Cir. 2003).

[2] Indeed, both factors are present here. First, unless a

recall campaign succeeds in reaching the ballot, the contribution limitation is relevant for only those 60 days between the

publication of a notice of intent and the deadline for collecting

848 CITIZENS FOR CLEAN GOV’T v. SAN DIEGO
the requisite number of signatures. This amount of time is too

short to litigate a challenge to the ordinance to finality in

court. Second, if Citizens attempts a recall again, it will be

subject to the same contribution limits. See Moore v. Ogilvie,

394 U.S. 814, 816 (1969) (rejecting mootness argument in

voting rights case despite occurrence of election). Citizens’

claim, accordingly, is not moot. 

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. See Walzac v. EPL Prolong, 198 F.3d 725, 730 (9th Cir.

1999). While we review the district court’s decision to deny

permanent injunctive relief for abuse of discretion, we review

de novo any legal conclusions underlying that decision. See

Jones v. City of L.A., 444 F.3d 1118, 1125-26 (9th Cir. 2006).

Though the district court correctly chose to apply Buckley’s

reduced scrutiny, we hold that it erred by deciding, apparently

as a matter of law, that the City had a sufficient interest justifying the application of its contribution limits to the signaturegathering phase of a recall election. We hold that the City

must provide evidence demonstrating a sufficiently important

government interest, such as the risk of corruption, in this

context. 

II.

[3] Limits on contributions to political campaigns are permissible under the First Amendment “as long as the Government demonstrates that the limits are ‘closely drawn’ to match

a ‘sufficiently important government interest.’ ” Randall v.

Sorrell, 126 S. Ct. 2479, 2491 (2006) (plurality opinion)

(quoting Buckley, 424 U.S. at 25). This standard is sometimes

referred to as “less rigorous” scrutiny. McConnell v. FEC, 540

U.S. 93, 136 (2003). 

[4] Under this test, the Supreme Court and this circuit have

tended to uphold limits on contributions to candidate camCITIZENS FOR CLEAN GOV’T v. SAN DIEGO 849
paigns. See, e.g., id.; Nixon v. Shrink Mo. Gov’t PAC, 528

U.S. 377 (2000); Mont. Right to Life Ass’n v. Eddleman, 343

F.3d 1085 (9th Cir. 2003). But see Randall, 126 S. Ct. at

2494-95 (striking down state contribution caps as too stringent). By contrast, neither the Supreme Court nor this court

has found an interest sufficiently important to justify limits on

contributions to ballot measure campaigns. See, e.g., Citizens

Against Rent Control/Coalition for Fair Housing v. City of

Berkeley, 454 U.S. 290, 299 (1981); Bellotti, 435 U.S. at 765.

Citizens, which likens recall petitions to ballot measure

petitions, argues that the Berkeley case implicitly establishes

a strict scrutiny standard for contribution limits in ballot measure campaigns. The cases provide no conclusive support for

this reading, and we decline to adopt that interpretation here.

First, in Berkeley, the Court avoided any direct statement

regarding the standard of review. And, to the extent the standard can be inferred, the Court seemed to apply the level of

scrutiny described in Buckley. See Berkeley, 454 U.S. at 299

(“It is clear, therefore, that [the ordinance] does not advance

a legitimate governmental interest significant enough to justify its infringement of First Amendment rights.”) (emphasis

added). Two concurrences in Berkeley also suggest that Buckley’s less rigorous scrutiny applies. Id. at 301 (“I must assume

that the Court is following our consistent position that this

type of governmental action is subjected to less rigorous scrutiny than a direct restriction on expenditures.”) (Marshall, J.,

concurring); id. at 302 (“Berkeley must demonstrate that its

ordinance advances a sufficiently important governmental

interest and employs means closely drawn to avoid unnecessary abridgment of First Amendment freedoms.”) (Blackmun,

J., and O’ Connor, J., concurring) (quoting Buckley, 424 U.S.

at 25) (internal punctuation omitted). 

[5] As both the Supreme Court and this court have recently

suggested, the act of contribution, rather than the context in

which contribution occurs, determines the standard of review.

850 CITIZENS FOR CLEAN GOV’T v. SAN DIEGO
In a case addressing limits on corporate campaign contributions, the Court stated that

the level of scrutiny is based on the importance of

the “political activity at issue” to effective speech or

political association. . . . [R]estrictions on political

contributions have been treated as merely “marginal”

speech restrictions subject to relatively complaisant

review under the First Amendment, because contributions lie closer to the edges than to the core of

political expression.

FEC v. Beaumont, 539 U.S. 146, 161 (2003) (citations omitted). The Court reiterated that lesser scrutiny is appropriate

because “the transformation of contributions into political

debate involves speech by someone other than the contributor.” Id. at 161-62 (quoting Buckley, 424 U.S. at 21 (punctuation omitted)). 

[6] Similarly, this court has read Buckley to stand for the

principle that “[c]ontribution limits do not significantly burden speech because the communicative content of the act of

contributing is largely symbolic, and therefore is not diminished by limits on the amount of the contribution.” Jacobus

v. Alaska, 338 F.3d 1095, 1108 (9th Cir. 2003). Because it

restricts only this indirect speech, a contribution limit “does

not in any way infringe the contributor’s freedom to discuss

candidates and issues.” Id. (quoting Buckley, 424 U.S. at 21).

Accordingly, in light of Beaumont and its predecessors, we

have applied Buckley’s less rigorous scrutiny to contribution

caps. See Mont. Right to Life, 343 F.3d at 1092 (limits on contributions made by political action committees to candidates);

Jacobus, 338 F.3d at 1109 (limits on “soft money” contributions to political parties). 

[7] We find no precedent holding that contributions to ballot measure campaigns convey a different type or degree of

speech from contributions to candidates or parties. We thereCITIZENS FOR CLEAN GOV’T v. SAN DIEGO 851
fore hold that the district court’s preliminary decision to apply

Buckley’s less rigorous scrutiny was correct. 

III.

[8] We now turn to the district court’s holding that the City

has a sufficiently important state interest to justify imposing

contribution limits during the signature-gathering phase of a

recall effort. The paradigmatic sufficient state interest under

Buckley is the prevention of corruption, or the appearance of

corruption, in the political process. Randall, 126 S. Ct. at

2488-90; McConnell, 540 U.S. at 143. Limits on political contributions serve the government’s interest in preventing corruption because they reduce the risk of quid pro quo

arrangements and mitigate “the appearance of corruption

spawned by the real or imagined coercive influence of large

financial contributions on candidates’ positions and on their

actions if elected to office.” Buckley, 424 U.S. at 25. 

Corruption, as the Court has defined it more recently, can

encompass more than straightforward quid pro quo transactions:

Just as troubling to a functioning democracy as classic quid pro quo corruption is the danger that officeholders will decide issues not on the merits or the

desires of their constituencies, but according to the

wishes of those who have made large financial contributions valued by the officeholder. Even if it

occurs only occasionally, the potential for such

undue influence is manifest. And unlike straight

cash-for-votes transactions, such corruption is neither easily detected nor practical to criminalize. 

McConnell, 540 U.S. at 153. Notably, the Court rejected any

narrower conception of corruption as “crabbed” and “ignor-

[ing] precedent, common sense, and the realities of political

fundraising.” Id. at 152. 

852 CITIZENS FOR CLEAN GOV’T v. SAN DIEGO
Though it has defined corruption flexibly, the Court has

also rejected the argument that a state may limit contributions

simply because they may sway the outcome of an election.

See Bellotti, 435 U.S. at 790 (“[T]he fact that advocacy may

persuade the electorate is hardly a reason to suppress it. . . .”).

Rather, contribution limits must target some “greater or more

imminent danger to the public interest.” Id. at 792; see also

Mont. Chamber of Commerce v. Argenbright, 226 F.3d 1049,

1057-58 (9th Cir. 1999) (affirming district court’s finding that

corporate contributions to ballot measure campaigns posed no

“imminent threat to the democratic process”). 

Between these two poles of clearly valid and clearly invalid

anti-corruption interests, legislators are free to craft new arguments about corruption provided they acknowledge that “[t]he

quantum of empirical evidence needed to satisfy heightened

judicial scrutiny . . . will vary up or down with the novelty

and plausibility of the justification raised.” Shrink, 528 U.S.

at 391. Because the regulations at issue in Shrink were similar

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

novel nor implausible. Id. at 393. Therefore, the Court

declined to impose, let alone articulate, a stringent evidentiary

burden. Id. at 393-95. 

[9] Despite the flexibility implied by its sliding scale

approach, the Court has “never accepted mere conjecture as

adequate to carry a First Amendment burden.” id. at 392. In

finding a sufficiently important state interest in Shrink, the

Court relied on evidence provided by the state of Missouri

and in the record below, including news accounts and affidavits from the legislative history. Id. at 393-94. By introducing

similar evidence in a case in this circuit, the state of Montana

successfully justified its laws limiting candidate contributions

by individuals and political action committees. See Mont.

Right to Life, 343 F.3d at 1093. 

While the laws at issue in Montana Right to Life and Shrink

were more easily analogized to those in Buckley because they

CITIZENS FOR CLEAN GOV’T v. SAN DIEGO 853
limited contributions to candidates, the Supreme Court also

emphasized the evidentiary burden when it evaluated “coordinated expenditures” made by political parties by arrangements

with specific candidates. See FEC v. Colo. Republican Fed.

Campaign Comm., 533 U.S. 431 (2001). These expenditures

are treated as contributions, and, therefore, limits on coordinated expenditures are entitled to Buckley’s less rigorous scrutiny. See id. at 456. In Colorado Republican, the Court found

that “substantial evidence,” including declarations from party

operatives and legislators, demonstrated how candidates,

donors and parties “test the limits” of the existing law, and

why a less deferential standard of review would further undermine Congress’s anti-corruption efforts. Id. at 457. Importantly, after the standard of review was settled, the only “bone

of contention” in Colorado Republican was whether the government had marshaled adequate evidence of its interest. See

id. at 456. 

[10] Because the government has the burden of demonstrating its state interest, Shrink, 528 U.S. at 387-88, any empirical

evidence it offers must overcome any evidence to the contrary

presented by the plaintiff. See id. at 394 (“There might, of

course, be need for a more extensive evidentiary documentation if [the plaintiffs] had made any showing of their own

. . . .”). In this circuit, we have upheld the district court’s decision to overturn limits on corporate spending because the government failed to counter the plaintiff’s evidence that the

state’s electoral process was functioning healthily. See Argenbright, 226 F.3d at 1055, 1057; cf. id. at 1058-59 (McKeown,

J., concurring) (citing Shrink’s discussion of evidence). We

specifically remarked upon the excellent briefing and record

prepared by both sides in Argenbright, id. at 1055, and, following both Supreme Court and Ninth Circuit precedent, we

again emphasize the importance of factual development. 

[11] The district court appeared to determine as a matter of

law that the City had a sufficiently important interest in limiting contributions to recall petition campaigns. The district

854 CITIZENS FOR CLEAN GOV’T v. SAN DIEGO
court made one reference to Municipal Code section 27.2901,

which states that one purpose of the City’s campaign finance

laws is “to avoid the corruption or the appearance of corruption brought about when candidates for elective City office

accept large campaign contributions.” The district court’s

findings that the City’s ordinance furthered a sufficient government interest, however, rested on hypothetical situations

not derived from any record evidence or governmental findings. At oral argument on appeal, the City also conceded that

there is no evidence in the record of any corruption, or the

potential for corruption in the recall context. It instead pointed

out a recent pattern of corrupt conduct in local politics. Its

brief described several hypothetical types of corruption that

could arise from allowing unlimited recall contributions. 

We cannot hold that hypotheticals, accompanied by vague

allusions to practical experience, demonstrate a sufficiently

important state interest. And, while relevant to the analysis,

the City’s statement of purpose only vaguely articulates a risk

of corruption. In Jacobus v. Alaska, where we upheld a state’s

soft money contribution limits, we relied on legislative findings made on the basis of a state-commissioned report, 338

F.3d at 1099, as well as reasoning from the Supreme Court

specifically addressing the possibility of corruption related to

party spending in federal elections. Id. at 1113 (citing Colo.

Republican, 533 U.S. at 461). Here, by contrast, the City

offers no evidence of deliberation on the issue of campaign

finance in recall elections, and it has no recourse to legal

authority addressing these exact issues because none exists. 

[12] We make no statement about whether the City, on

remand, will be able to develop and introduce evidence establishing a sufficiently important interest in limiting contributions to recall campaigns. We hold 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. We therefore VACATE the denial of a permanent

CITIZENS FOR CLEAN GOV’T v. SAN DIEGO 855
injunction and declaratory relief and REMAND for further

evidentiary development in accordance with this opinion. 

VACATED AND REMANDED. 

856 CITIZENS FOR CLEAN GOV’T v. SAN DIEGO