FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LONG BEACH AREA CHAMBER OF 

COMMERCE, a non-profit California

mutual benefit corporation, on

behalf of itself and its members;

LONG BEACH AREA CHAMBER OF

COMMERCE PAC; LONG BEACH

A No. 07-55691 REA CHAMBER OF COMMERCE—

MAYORAL PAC; LONG BEACH AREA  D.C. No.

CHAMBER OF COMMERCE—CITY CV-06-01497-PSG

COUNSEL PAC,

Plaintiffs-Appellees,

v.

CITY OF LONG BEACH,

Defendant-Appellant. 

6401
LONG BEACH AREA CHAMBER OF 

COMMERCE, a non-profit California

mutual benefit corporation, on

behalf of itself and its members;

LONG BEACH AREA CHAMBER OF

COMMERCE PAC; LONG BEACH

AREA CHAMBER OF COMMERCE— No. 07-56081

MAYORAL PAC; LONG BEACH AREA  D.C. No. CHAMBER CV-06-01497-PSG

OF COMMERCE—CITY COUNSEL

PAC,

Plaintiffs-Appellants,

v.

CITY OF LONG BEACH,

Defendant-Appellee. 

6402 LONG BEACH AREA v. CITY OF LONG BEACH
LONG BEACH AREA CHAMBER OF 

COMMERCE, a non-profit California

mutual benefit corporation, on

behalf of itself and its members;

LONG BEACH AREA CHAMBER OF

COMMERCE PAC; LONG BEACH No. 07-56190

AREA CHAMBER OF COMMERCE— D.C. No.

MAYORAL PAC; LONG BEACH AREA  CV-06-01497-PSG

CHAMBER OF COMMERCE—CITY

COUNSEL PAC, OPINION

Plaintiffs-Appellees,

v.

CITY OF LONG BEACH,

Defendant-Appellant. 

Appeal from the United States District Court

for the Central District of California

Philip S. Gutierrez, District Judge, Presiding

Argued and Submitted

October 28, 2009—Los Angeles, California

Filed April 30, 2010

Before: Alex Kozinski, Chief Judge, Dorothy W. Nelson and

Kim McLane Wardlaw, Circuit Judges.

Opinion by Judge Wardlaw

LONG BEACH AREA v. CITY OF LONG BEACH 6403
COUNSEL

Charles H. Bell, Jr. and Jimmie E. Johnson of Bell, McAndrews, & Hiltachk, LLP, Sacramento, California; John C.

Eastman of Chapman University Law School, Orange, California, for the appellees.

Robert E. Shannon and Monte H. Machit of the City Attorney’s Office, Long Beach, California, for the appellant.

Reid Alan Cox and Stephen M. Hoersting of the Center for

Competitive Politics, Alexandria, Virginia, for amicus curiae

Center for Competitive Politics.

Richard Doyle, George Rios and Lisa Herrick of the Office of

the City Attorney, San Jose, California, for amicus curiae

League of California Cities.

OPINION

WARDLAW, Circuit Judge:

“[I]t is our law and our tradition that more speech, not less,

is the governing rule” under the First Amendment. Citizens

United v. FEC, 130 S. Ct. 876, 911 (2010). “More speech”

LONG BEACH AREA v. CITY OF LONG BEACH 6407
often means “more money.” “This is because virtually every

means of communicating ideas in today’s mass society

requires the expenditure of money.” Buckley v. Valeo, 424

U.S. 1, 19 (1976). Therefore, “[a] restriction on the amount of

money a person or group can spend on political communication during a campaign necessarily reduces the quantity of

expression by restricting the number of issues discussed, the

depth of their exploration, and the size of the audience

reached.” Id. That political spending is constitutionally protected “speech” has become a “cardinal tenet” of the Supreme

Court’s campaign finance jurisprudence. Emily’s List v. FEC,

581 F.3d 1, 5 (D.C. Cir. 2009). 

We must decide whether the Long Beach Campaign

Reform Act (“LBCRA”), which prohibits “persons” from

making any independent expenditures if they receive contributions above certain amounts, is constitutional as applied to

the Long Beach Area Chamber of Commerce (“Chamber”)

and its affiliated political action committees (“Chamber

PACs”). Because the Chamber lacks standing, and because

the LBCRA does not withstand scrutiny as applied to the

Chamber PACs, we vacate in part and reverse in part the district court’s judgment that the LBCRA is unconstitutional as

applied to the Chamber but constitutional as applied to the

Chamber PACs. 

BACKGROUND

The City adopted the LBCRA in 1994. It provides 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. Long Beach, Cal., Ordinances

§§ 2.01.310, 2.01.610. “Person” is broadly defined to include

“any individual, organization or political action committee

whose contributions or expenditure activities are financed,

maintained or controlled by any corporation, labor organization, association, political party or any other person or com6408 LONG BEACH AREA v. CITY OF LONG BEACH
mittee.” Id. § 2.01.210(D). “Independent expenditures” are

“expenditure[s] made by any person . . . in connection with

a communication which expressly advocates the election or

defeat of a clearly identified candidate . . . but which is not

made to or at the behest of the affected candidate or committee.” Cal. Gov’t Code § 82031; Long Beach, Cal., Ordinances

§ 2.01.220 (adopting state law definition). An expenditure is

not “independent” if it involves the control, direction, cooperation, consultation, coordination, request, or suggestion of a

candidate. See Cal. Gov’t Code § 82015; Cal. Admin. Code

tit. 2, § 18225.7; see also Long Beach, Cal., Ordinances

§ 2.01.310 (discussing contribution limitations).

The Chamber is a non-profit mutual benefit corporation

consisting of 1,400 dues-paying members, ninety percent of

which are small businesses employing fewer than ten employees. Dues for Chamber members with fewer than ten employees range from $350 to $535, and dues for Chamber members

with between ten and one-hundred employees range from

$560 to $1,330. Some members with greater numbers of

employees pay dues in excess of $10,000. The parties stipulate that the Chamber’s dues constitute “contributions” under

the LBCRA.1 Because some of those dues exceed the

LBCRA’s contribution limitations, the LBCRA prohibits the

Chamber from making any independent expenditures. 

The Chamber’s bylaws, however, do not permit it to make

contributions or independent expenditures. Rather, the Chamber participates in City politics through the Chamber PACs —

the Long Beach Area Chamber of Commerce PAC, the Long

Beach Area Chamber of Commerce Mayoral PAC, and the

Long Beach Area Chamber of Commerce City Council PAC

— which are separate but affiliated organizations that make

independent expenditures in support of select candidates. The

1The district court based its decision on the parties’ joint stipulation of

undisputed facts that accompanied their cross-motions for summary judgment. 

LONG BEACH AREA v. CITY OF LONG BEACH 6409
Chamber PACs receive contributions from Chamber members

who choose to direct a portion of their dues to the Chamber

PACs. Non-Chamber members may also contribute to the

Chamber PACs.

The Chamber and Chamber PACs (“Plaintiffs”) sued to

enjoin enforcement of the LBCRA, arguing that its contribution and expenditure limitations violate their rights of speech

and association. On April 11, 2007, the district court ruled

that the LBCRA is unconstitutional as applied to the Chamber. Relying on our decision in Lincoln Club of Orange

County v. City of Irvine, 292 F.3d 934 (9th Cir. 2002), the district court applied strict scrutiny review because the LBCRA

imposed a severe burden on the Chamber’s freedoms of

speech and association. As the district court explained, following enactment of the LBCRA, “[t]he Chamber is forced to

alter its dues or organizational structure if it wishes to participate in city-wide elections and also wishes to continue to welcome members with more than 10 employees.” That is, absent

a drastic overhaul of its membership composition or its dues

schedule, the Chamber would be precluded from making any

independent expenditures even if its bylaws authorized it to

do so. 

Plaintiffs and the City each provided the district court with

a proposed form of judgment purportedly reciting the district

court’s ruling. The district court rejected the Chamber’s proposed form of judgment, which declared the LBCRA “unconstitutional as applied to Plaintiffs and other persons similarly

situated” (emphasis added). Instead, it chose the City’s proposed form of judgment, declaring the LBCRA “unconstitutional as applied to Plaintiff Long Beach Area Chamber of

Commerce and other persons similarly situated” (emphasis

added). Neither proposed form of judgment expressly

addressed the Chamber PACs.

The judgment, entered on May 4, 2007, was timely

appealed by the City. It then occurred to the parties that the

6410 LONG BEACH AREA v. CITY OF LONG BEACH
district court may not have resolved the question of the

LBCRA’s constitutionality as applied to the Chamber PACs.

Naturally, the parties disagreed on this point. The Plaintiffs

argued that the favorable judgment also embraced the Chamber PACs, as the Plaintiffs had recited in their proposed form

of judgment, and the City contended otherwise. On July 12,

2007, upon motion by the Plaintiffs, the district court clarified

its April 11, 2007, ruling, stating that it had not resolved the

constitutionality of the LBCRA as applied to the Chamber

PACs in the earlier order. It then “explicitly” concluded that

“the Long Beach ordinance is constitutional as applied to the

PACs.” The district court applied the less demanding “closely

drawn” level of scrutiny because it found that the Chamber

PACs, which lack the Chamber’s membership or dues structures, are less burdened by the LBCRA than is the Chamber.

Therefore, the City’s interests in preventing corruption or the

appearance of corruption in its political process sufficiently

justified the LBCRA’s contribution limitations and consequent prohibition on spending as applied to the Chamber

PACs. The Chamber PACs filed their notice of appeal on July

23, 2007. 

JURISDICTION AND STANDARD OF REVIEW

The district court exercised jurisdiction pursuant to 28

U.S.C. § 1331. We have jurisdiction pursuant to 28 U.S.C.

§ 1291. “We review a district court’s grant of summary judgment de novo.” Humphries v. County of Los Angeles, 554

F.3d 1170, 1185 n.10 (9th Cir. 2009). Here, the parties filed

cross-motions for summary judgment and stipulated as to the

relevant facts. We therefore review the district court’s legal

determinations, including constitutional rulings, de novo. See

Bjustrom v. Trust One Mortgage Corp., 322 F.3d 1201, 1205

(9th Cir. 2003) (“The parties agree that the facts are not in

dispute. We review de novo pure questions of law decided on

summary judgment.”). 

LONG BEACH AREA v. CITY OF LONG BEACH 6411
DISCUSSION

I. Jurisdiction

A. Standing

As stated in the parties’ stipulation, the City “no longer

contends that the Plaintiffs lack standing or that the Plaintiffs’

complaint does not present an actual controversy.” That litigating posture, however, is insufficient to establish our jurisdiction. The role of the courts is “neither to issue advisory

opinions nor to declare rights in hypothetical cases, but to

adjudicate live cases or controversies.” Maldonado v. Morales, 556 F.3d 1037, 1044 (9th Cir. 2009) (quoting Thomas v.

Anchorage Equal Rights Comm’n, 220 F.3d 1134, 1138 (9th

Cir. 2000) (en banc)). We therefore assess the parties’ standing before proceeding to the merits of their dispute. See Lujan

v. Defenders of Wildlife, 504 U.S. 555, 560 (1992); D’Lil v.

Best W. Encina Lodge & Suites, 538 F.3d 1031, 1035 (9th Cir.

2008). 

[1] To establish Article III standing, a plaintiff must show

that “it has suffered an ‘injury in fact’ that is (a) concrete and

particularized and (b) actual or imminent, not conjectural or

hypothetical,” that “the injury is fairly traceable to the challenged action of the defendant,” and that “it is likely, as

opposed to merely speculative, that the injury will be

redressed by a favorable decision.” Sacks v. Office of Foreign

Assets Control, 466 F.3d 764, 771 (9th Cir. 2006) (quoting

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC),

Inc., 528 U.S. 167, 180-81 (2000)). Of course, Plaintiffs need

not “await the consummation of threatened injury to obtain

preventive relief.” Blum v. Yaretsky, 457 U.S. 991, 1000

(1982). Instead, where a party seeks prospective relief, “[t]he

question becomes whether any perceived threat to [the plaintiff] is sufficiently real and immediate to show an existing

controversy.” Id.; see also Lujan, 504 U.S. at 564 (examining

imminence of asserted injury); City of Los Angeles v. Lyons,

6412 LONG BEACH AREA v. CITY OF LONG BEACH
461 U.S. 95, 105 (1983) (examining likelihood that plaintiff

would suffer future injury).

[2] We conclude that the Chamber PACs have Article III

standing, while the Chamber itself does not. The Chamber has

failed to demonstrate that it has suffered or faces a real and

immediate threat of suffering an injury that is fairly traceable

to the LBCRA. The Chamber’s own bylaws do not authorize

it to make contributions or independent expenditures, and the

factual record is devoid of any indication that the Chamber

either plans to modify those bylaws or even that it desires to

do so. The Chamber suggests that it may wish to make contributions or independent expenditures in the future, but this

equivocal assertion is hardly sufficient to create a case or controversy. As the Supreme Court has explained, “Such ‘some

day’ intentions — without any description of concrete plans,

or indeed even any specification of when the some day will

be — do not support a finding of the ‘actual or imminent’

injury that our cases require.” Lujan, 504 U.S. at 564 (emphasis omitted). Therefore, the district court did not have jurisdiction over the Chamber’s action.2

[3] Unlike the Chamber, the Chamber PACs do make independent expenditures. Indeed, they were formed for the very

purpose of engaging in political activities that support the

Chamber’s objectives. While the factual record does not detail

the precise nature of the contributions that the Chamber PACs

receive, it is probable that they are, or will be, offered contri2The Chamber’s counsel referred to allegations in the complaint when

we expressed concern as to standing during oral argument. While those

allegations might be sufficient to overcome a motion to dismiss, they are

insufficient to withstand summary judgment, where the factual record is

dispositive. See Gerlinger v. Amazon.com Inc., 526 F.3d 1253, 1255-56

(9th Cir. 2008) (“In response to a summary judgment motion or a trial

court’s post-pleading stage order to establish Article III standing, a plaintiff can no longer rest on ‘mere allegations’ but must set forth by affidavit

or other admissible evidence ‘specific facts’ as delineated in Federal Rule

of Civil Procedure 56(e) as to the existence of such standing.”). 

LONG BEACH AREA v. CITY OF LONG BEACH 6413
butions in excess of the LBCRA’s limitations, given the

Chamber’s dues structure and contribution scheme and the

wide range of entities from which the Chamber PACs receive

contributions. Because the LBCRA poses a “real and immediate” threat to the Chamber PACs’ ability to accept certain

contributions or to make any independent expenditures, they

have standing to sue. See Lyons, 461 U.S. at 101-02.

B. Timeliness 

The City asserts that we lack jurisdiction over the Chamber

PACs’ appeal because their notice of appeal is untimely. A

notice of appeal must be filed within thirty days of entry of

the order or judgment from which the appeal is taken. Fed. R.

App. P. 4(a)(1). With a few exceptions not applicable here, an

appeal may be taken only from a final order or judgment. See

28 U.S.C. § 1291; Richardson-Merrell, Inc. v. Koller, 472

U.S. 424, 430 (1985) (“[T]he final judgment rule promotes

efficient judicial administration while at the same time

emphasizing the deference appellate courts owe to the district

judge’s decisions on the many questions of law and fact that

arise before judgment.”). A judgment is final if it fully adjudicates the issues and clearly evinces the district court’s intention that it be that court’s final act in the matter. Disabled

Rights Action Comm. v. Las Vegas Events, Inc., 375 F.3d 861,

870 (9th Cir. 2004). 

[4] The City contends that the Chamber PACs are appealing the May 4, 2007, judgment of the district court, and that

their July 23, 2007, notice of appeal is more than fifty days

late. However, the May 4, 2007, judgment does not indicate

that the district court ruled on, let alone denied, summary

judgment to the three Chamber PACs.3 That judgment

3

It is apparent that the City itself created any ambiguity that the May 4,

2007, judgment presented. The City drafted the order later adopted by the

district court, which altered the language used by the district court in its

April 11 order from “Plaintiffs” to “Plaintiff Long Beach Area Chamber

of Commerce.” That order also omitted any reference to the Chamber

PACs, unlike Plaintiffs’ proposed form of order which granted judgment

in favor of “Plaintiffs.” 

6414 LONG BEACH AREA v. CITY OF LONG BEACH
addressed the Chamber only. Therefore, as of May 4, 2007,

there was no adverse final judgment from which the Chamber

PACs could appeal. It was not until the court filed its July 12,

2007, order that it expressly and finally adjudicated all of the

issues related to summary judgment as to the Chamber PACs,

effectively denying the Chamber PACs’ constitutional challenge. The Chamber PACs timely filed their notice of appeal

from that order eleven days later. 

The City alternatively argues (for the first time during oral

argument) that its own notice of appeal from the April 11,

2007, order divested the district court of jurisdiction to enter

a subsequent order resolving the Chamber PACs’ motion. See

Fed. R. Civ. P. 60(a) (requiring district court to obtain leave

of appellate court to issue clarification once a notice of appeal

has been filed). However, “where an appeal is taken from a

judgment which does not finally determine the entire action,

the appeal does not prevent the district court from proceeding

with matters not involved in the appeal.” Britton v. Co-op

Banking Group, 916 F.2d 1405, 1411 (9th Cir. 1990) (citation

and internal quotation marks omitted); see also Griggs v.

Provident Consumer Discount Co., 459 U.S. 56, 58 (1982)

(notice of appeal divests the district court of “control over

those aspects of the case involved in the appeal”). The district

court entered judgment granting the motion as to the Chamber

on May 4, 2007, and the City’s notice of appeal was timely

filed, thus vesting our court with jurisdiction over that matter.

Because the district court’s May 4, 2007, judgment did not

deny the motion as to the Chamber PACs, however, the district court retained jurisdiction over that motion and was free

to clarify it or rule on it if the court had not previously done

so. Moreover, if we were to accept the City’s argument that

the May 4, 2007, grant of summary judgment embraced the

Chamber PACs’ claim, there was no adverse judgment from

which the Chamber PACs could appeal. Therefore, the district

court acted wholly within its jurisdictional bounds when it

issued the July 12, 2007, order. The Chamber PACs’ notice

of appeal was timely filed, and we have jurisdiction to review

LONG BEACH AREA v. CITY OF LONG BEACH 6415
it. Although it follows from this conclusion that the City’s

appeal was filed prematurely, we also have jurisdiction over

that appeal because “orders adjudicating only some of the

claims may be treated as final orders if the remaining claims

have subsequently been finalized.” Anderson v. Allstate Ins.

Co., 630 F.2d 677, 680 (9th Cir. 1980).

II. First Amendment Analysis

[5] “In Buckley and subsequent cases, [the Supreme Court

has] subjected restrictions on campaign expenditures to closer

scrutiny than limits on campaign contributions.” McConnell v.

FEC, 540 U.S. 93, 134 (2003); see also Lincoln Club, 292

F.3d at 938 (discussing different levels of scrutiny).

“[C]ontribution limitations are permissible as long as the

Government demonstrates that the limits are ‘closely drawn’

to match a ‘sufficiently important interest.’ ” Randall v. Sorrell, 548 U.S. 230, 247 (2006); see also Davis v. FEC, 128 S.

Ct. 2759, 2770 (2008) (“[S]uch limits . . . cannot stand unless

they are ‘closely drawn’ to serve a ‘sufficiently important interest.’ ”).4

 By contrast, expenditure limitations are subject to

4The Supreme Court has not yet explicitly discarded “closely drawn

scrutiny,” as some Justices have urged. See, e.g., Randall, 548 U.S. at 267

(Thomas, J., concurring in the judgment) (“I would overrule Buckley and

subject both the contribution and expenditure restrictions of Act 64 to

strict scrutiny, which they would fail.”); see also McConnell, 540 U.S. at

137 (“Our application of this less rigorous degree of scrutiny has given

rise to significant criticism in the past from our dissenting colleagues.”).

In Citizens United, the Supreme Court stated: “[P]olitical speech must prevail against laws that would suppress it, whether by design or inadvertence. Laws that burden political speech are ‘subject to strict scrutiny.’ ”

Citizens United, 130 S. Ct. at 898 (quoting FEC v. Wis. Right To Life, Inc.,

551 U.S. 449, 464 (2007)). It is unclear whether this unqualified statement

is the death knell for closely drawn scrutiny or whether it was intended

only to reaffirm the long standing principle that expenditure limitations,

like those at issue in Citizens United, are subject to strict scrutiny. We

need not read tea leaves to decide this appeal, however, because, as shown

below, the LBCRA is unconstitutional as applied to the Chamber PACs

under either “closely drawn” or “strict” scrutiny. 

6416 LONG BEACH AREA v. CITY OF LONG BEACH
strict scrutiny, which requires narrow tailoring to meet a compelling governmental interest. See Citizens United, 130 S. Ct.

at 898; FEC v. Wis. Right To Life, Inc., 551 U.S. 449, 464

(2007). Thus, “the Supreme Court has generally approved

statutory limits on contributions to candidates and political

parties,” but it “has rejected expenditure limits on individuals,

groups, candidates, and parties.” Emily’s List, 581 F.3d at 8

(emphasis omitted). 

Contribution limitations are treated differently from expenditure limitations because they generally “entail[ ] only a marginal restriction upon the contributor’s ability to engage in

free communication.” Buckley, 424 U.S. at 20. They “permit[ ] the symbolic expression of support evidenced by a contribution but do[ ] not in any way infringe the contributor’s

freedom to discuss candidates and issues.” Id. at 21. By contrast, “expenditure ceilings impose significantly more severe

restrictions on protected freedoms of political expression and

association.” Id. at 23. As the Buckley Court explained,

“Being free to engage in unlimited political expression subject

to a ceiling on expenditures is like being free to drive an automobile as far and as often as one desires on a single tank of

gasoline.” Id. at 19 n.18. Expenditure limitations may restrict

the breadth and depth of political dialogue, and they “preclude[ ] most associations from effectively amplifying the

voice of their adherents, the original basis for the recognition

of First Amendment protection of the freedom of association.” Id. at 22; see also Nixon v. Shrink Mo. Gov’t PAC, 528

U.S. 377, 386-88 (2000) (discussing application of

expenditure-contribution distinction to associational rights). 

Since Buckley was decided, governments at all levels have

enacted campaign finance regulations. See, e.g., 2 U.S.C.

§ 431 et seq. (Federal Election Campaign Act); Cal. Gov’t

Code § 81000 et seq. (California Political Reform Act); see

also Citizens United, 130 S. Ct. at 897 (detailing “extensive

regulations” of PACs). But “[p]olitical speech is so ingrained

in our culture that speakers find ways to circumvent [these]

LONG BEACH AREA v. CITY OF LONG BEACH 6417
campaign finance laws.” Citizens United, 130 S. Ct. at 912.

As political strategists have devised novel ways to fund electoral politics, legislative bodies have reacted in kind to the

“hard lesson of circumvention” by enacting ever-more complicated campaign finance regulations that defy easy classification under Buckley’s doctrinal framework. McConnell, 540

U.S. at 165. The LBCRA is one such regulation. It limits the

amount of contributions an entity may receive while simultaneously prohibiting independent expenditures by any entity

that receives contributions exceeding those limitations. As the

district court observed, this form of regulation is not subject

to easy classification as a contribution limitation or an expenditure limitation.

[6] This appeal does not turn on the LBCRA’s technical

classification as an expenditure limitation or a contribution

limitation, however, because the LBCRA does not withstand

scrutiny under the constitutional standards applicable to either

type of campaign finance regulation. Though the City identifies several governmental interests that purportedly are served

by the LBCRA, it has not shown that any is “sufficiently

important” to support the LBCRA’s application to the Chamber PACs in this case.

A. Anti-Distortion Rationale

[7] One of the LBCRA’s stated purposes is to provide the

City’s residents and interest groups with “a fair and equal

opportunity to participate in Municipal elective and governmental processes.” Long Beach, Cal., Ordinances

§ 2.01.130(A); see also id. § 2.01.130(H) (“To reduce the

excessive fund-raising advantage of incumbents and thus

encourage competition for elective office.”). However, “the

concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of

others is wholly foreign to the First Amendment.” Buckley,

424 U.S. at 48-49. Therefore, “the Court has ruled that the

Government cannot limit campaign contributions and expen6418 LONG BEACH AREA v. CITY OF LONG BEACH
ditures to achieve ‘equalization.’ ” Emily’s List, 581 F.3d at

5. In Davis, the Court warned that restricting speech to

“ ‘level electoral opportunities’ has ominous implications

because it would permit Congress to arrogate the voters’

authority to evaluate the strengths of candidates competing for

office.” Davis, 128 S. Ct. at 2773. The Davis Court concluded

that “prior decisions . . . provide no support for the proposition that this is a legitimate government objective.” Id. The

Supreme Court recently reaffirmed these views, stating that it

is “unlawful” for the government “to command where a person may get his or her information or what distrusted source

he or she may not hear.” Citizens United, 130 S. Ct. at 908.

In its briefs and at oral argument, the City argued that these

principles could be set aside under Austin v. Mich. State

Chamber of Commerce, 494 U.S. 652 (1990), in which the

Court upheld restrictions on independent expenditures by corporations, noting that the government had a compelling interest in combating “the corrosive and distorting effects of

immense aggregations of wealth that are accumulated with the

help of the corporate form.” Id. at 660. However, the Supreme

Court has overruled Austin and explicitly rejected the “antidistortion rationale” upon which it rested: “Political speech is

indispensable to decisionmaking in a democracy, and this is

no less true because the speech comes from a corporation

rather than an individual. . . . This protection for speech is

inconsistent with Austin’s anti-distortion rationale.” Citizens

United, 130 S. Ct. at 904 (internal quotation marks omitted);

see also id. at 912-13 (noting that Austin “was not well reasoned,” “is undermined by experience,” and does not implicate any “serious reliance interests”). Therefore, we find

unavailing the City’s anti-distortion rationale for the

LBCRA’s application to the Chamber PACs. 

B. Time Protection Rationale

[8] The City also states that the LBCRA is intended to

“limit overall expenditures in campaigns, thereby reducing the

LONG BEACH AREA v. CITY OF LONG BEACH 6419
pressure on candidates to raise large campaign war chests for

defensive purposes.” Long Beach, Cal., Ordinances

§ 2.01.130(D); see also id. § 2.01.130(I) (“To allow candidates and officeholders to spend a lesser proportion of their

time on fund raising and a greater proportion of their time

dealing with issues of importance to their constituents.”).

However, in Buckley, the Supreme Court explained that “[t]he

First Amendment denies government the power to determine

that spending to promote one’s political views is wasteful,

excessive, or unwise.” Buckley, 424 U.S. at 57. More recently,

the Supreme Court explicitly rejected what it described as the

“time protection rationale” for campaign finance regulations,

finding “unpersuasive” the argument that government may

restrict campaign finance activity “to protect candidates from

spending too much time raising money rather than devoting

that time to campaigning among ordinary voters.” Randall,

548 U.S. at 243-45. Therefore, the City’s interest in reducing

political fundraising efforts cannot support the LBCRA’s

application to the Chamber PACs.

C. Anti-Corruption Rationale

[9] Finally, the City advances an anti-corruption rationale

to support the LBCRA’s application to the Chamber PACs.

One of the LBCRA’s stated purposes is “[t]o reduce 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.” Long

Beach, Cal., Ordinances § 2.01.130(B); see also id.

§ 2.01.130(K) (“To help restore public trust in local governmental and electoral institutions.”). In its brief, the City

asserts that the LBCRA “prevent[s] corruption or the appearance of corruption” and that the large amount of money spent

on City elections “has caused a public perception that votes

are being improperly influenced by monetary contributions.”

6420 LONG BEACH AREA v. CITY OF LONG BEACH
[10] 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.” FEC v. Nat’l Conservative

Political Action Comm., 470 U.S. 480, 496-97 (1985)

(“NCPAC”); see also Davis, 128 S. Ct. at 2773; Randall, 548

U.S. at 268. This interest was sometimes broadly construed in

the expenditures context before the Supreme Court’s recent

decision in Citizens United, in which it stated: “When Buckley

identified a sufficiently important governmental interest in

preventing corruption or the appearance of corruption, that

interest was limited to quid pro quo corruption.” Citizens

United, 130 S. Ct. at 909.5“The fact that speakers may have

influence over or access to elected officials does not mean

that these officials are corrupt,” and “[t]he appearance of

influence or access . . . will not cause the electorate to lose

faith in our democracy.” Id. at 910. 

5We do not fault the City for its failure to narrow its asserted anticorruption interest to quid pro quo corruption only, as opposed to money

spent to obtain “influence over or access to elected officials.” Citizens

United, 130 S. Ct. at 910. The City did not have the benefit of the

Supreme Court’s recent decision in Citizens United when it enacted the

LBCRA or when it defended the LBCRA’s constitutionality before the

district court and on appeal. Before Citizens United was decided, it was

unclear whether expenditures regulations were reviewed in light of the

broader definition of “corruption” reflected in the City’s arguments. See,

e.g., Shrink Mo., 528 U.S. at 389 (“In speaking of ‘improper influence’

and ‘opportunities for abuse’ in addition to ‘quid pro quo arrangements,’

we recognized a concern not confined to bribery of public officials, but

extending to the broader threat from politicians too compliant with the

wishes of large contributors. These were the obvious points behind our

recognition that the Congress could constitutionally address the power of

money ‘to influence governmental action’ in ways less ‘blatant and specific’ than bribery.” (quoting Buckley, 424 U.S. at 28)); McConnell, 540

U.S. at 143 (“Our cases have made clear that the prevention of corruption

or its appearance constitutes a sufficiently important interest to justify

political contribution limits. We have not limited that interest to the elimination of cash-for-votes exchanges.”). 

LONG BEACH AREA v. CITY OF LONG BEACH 6421
Supreme Court precedent forecloses the City’s argument

that independent expenditures by independent expenditure

committees (“IECs”), like the Chamber PACs, raise the specter of corruption or the appearance thereof. Moreover, the

City’s broadly based anti-corruption rationale for restricting

contributions to IECs is lacking in legal and factual support

because the City has not offered sufficient evidence of corruption to support its asserted governmental interest in restricting

contributions to IECs.

1. Expenditure Limitations

[11] “By definition, an independent expenditure is political

speech presented to the electorate that is not coordinated with

a candidate.” Citizens United, 130 S. Ct. at 910. An expenditure that is made with the control, direction, cooperation, consultation, coordination, request, or suggestion of a candidate

is a contribution, not an independent expenditure. Cal. Gov’t

Code § 82015; Cal. Admin. Code tit. 2, § 18225.7. For

instance, the Chamber PACs could be subject to criminal liability if they made payments in coordination with candidates

or their campaigns but failed to disclose the payments as contributions. See Cal. Gov’t Code §§ 84200, 84211, 91000. It is

“ ‘[t]he absence of prearrangement and coordination of an

expenditure with the candidate or his agent [that] alleviates

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

for improper commitments from the candidate.’ ” Citizens

United, 130 S. Ct. at 908 (quoting Buckley, 424 U.S. at 47);

see also FEC v. Colo. Republican Fed. Campaign Comm.,

533 U.S. 431, 452 (2001) (Colorado II) (distinguishing

between “independent” and “coordinated” expenditures). In

short, “independent expenditures . . . do not give rise to corruption or the appearance of corruption.” Citizens United, 130

S. Ct. at 909; see also NCPAC, 470 U.S. at 497 (“[There is]

no tendency in such expenditures, uncoordinated with the

candidate or his campaign, to corrupt or to give the appearance of corruption.”). 

6422 LONG BEACH AREA v. CITY OF LONG BEACH
[12] It necessarily follows that the City may not impose

financial limits on the Chamber PACs’ independent expenditures. This conclusion is compelled by the long and growing

line of Supreme Court cases concluding that limitations on

independent expenditures are unconstitutional. See Buckley,

424 U.S. at 45 (“We find that the governmental interest in

preventing corruption and the appearance of corruption is

inadequate to justify § 608(e)(1)’s ceiling on independent

expenditures.”); Colo. Republican Fed. Campaign Comm. v.

FEC, 518 U.S. 604, 618 (1996) (“Colorado I”) (“We do not

see how a Constitution that grants to individuals, candidates,

and ordinary political committees the right to make unlimited

independent expenditures could deny the same right to political parties.”); Randall, 548 U.S. at 246 (limitations on independent expenditures by candidates violate the First

Amendment); NCPAC, 470 U.S. at 499 (“A tendency to demonstrate distrust of PACs is not sufficient” to sustain a restriction on their expenditures); Citizens United, 130 S. Ct. at 913

(limitations on independent expenditures by corporations violate the First Amendment).

2. Contribution Limitations

[13] Nor has the City shown that contributions to the

Chamber PACs for use as independent expenditures raise the

specter of corruption or the appearance thereof. The Supreme

Court has upheld limitations on contributions to entities

whose relationships with candidates are sufficiently close to

justify concerns about corruption or the appearance thereof.

For example, 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, . . . have made all large soft-money contributions to national parties suspect.” McConnell, 540 U.S. at

154-55. Similarly, in California Medical Association v. FEC,

453 U.S. 182 (1981), the Supreme Court upheld limitations on

contributions to “multicandidate political committees”

LONG BEACH AREA v. CITY OF LONG BEACH 6423
because their close relationship with candidates and officeholders made them “conduits for contributions to candidates,

and as such they pose[d] a perceived threat of actual or potential corruption.” Id. at 203 (Blackmun, J., concurring in part

and concurring in the judgment); see also id. at 197 (maj. op.)

(“[T]he rights of a contributor are . . . not impaired by limits

on the amount he may give to a multicandidate political committee . . . which advocates the views and candidacies of a

number of candidates.”).

However, the need for contribution limitations to combat

corruption or the appearance thereof tends to decrease as the

link between the candidate and the regulated entity becomes

more attenuated. As the Fourth Circuit has aptly explained: 

Unsurprisingly, the strength of the state’s interest in

preventing corruption is highly correlated to the

nature of the contribution’s recipient. Thus, the

state’s interest in the prevention of corruption —

and, therefore, its power to impose contribution limits — is strongest when the state limits contributions

made directly to political candidates . . . . As one

moves away from the case in which a donor gives

money directly to a candidate, however, the state’s

interest in preventing corruption necessarily

decreases.

N.C. Right to Life, Inc. v. Leake, 525 F.3d 274, 291 (4th Cir.

2008). The D.C. Circuit has since endorsed this rationale. See

Emily’s List, 581 F.3d at 11; see also id. at 6 (the anticorruption interest justifies limits on contributions to parties

“[b]ased on the close relationship between candidates and parties”). 

[14] The Chamber PACs are several significant steps

removed from “the case in which a donor gives money

directly to a candidate.” Leake, 525 F.3d at 291. They do not

enjoy a “close connection and alignment,” “close affiliation,”

6424 LONG BEACH AREA v. CITY OF LONG BEACH
and “nexus” with candidates. McConnell, 540 U.S. at 155; see

also Emily’s List, 581 F.3d at 14 (“In sum, it will not work

to simply transport McConnell’s holding from the political

party context to the non-profit setting.”). Nor do the Chamber

PACs operate as middlemen through which funds merely pass

from donors to candidates. See Cal. Med. Ass’n, 453 U.S. at

197. They do not coordinate or prearrange their independent

expenditures with candidates, and they do not take direction

from candidates on how their dollars will be spent.6See Colorado II, 533 U.S. at 457 (discussing “serious threat of abuse”

from coordinated expenditures). The Chamber PACs’ relationship with candidates is, at best, attenuated. See Emily’s

List, 581 F.3d at 14 (“More fundamentally, non-profit groups

do not have the same inherent relationship with federal candidates and officeholders that political parties do.”).

[15] In fact, the record reveals only one interaction

between the Chamber PACs and candidates for City office:

interviews that the Chamber PACs’ ten-member executive

board conducts before deciding which candidates to support.

Among the factors that the board considers is the candidate’s

position on policy questions affecting local businesses’ ability

to operate in the City. This fact alone does not support the

City’s anti-corruption rationale for applying the LBCRA to

the Chamber PACs.7 It comes as no surprise that the Chamber

PACs would take appropriate steps to make informed decisions about how to spend their contributors’ money. See

NCPAC, 470 U.S. at 495 (“[T]he contributors obviously like

6As noted above, if the Chamber PACs did coordinate their expenditures with candidates, those expenditures would lose their “independent”

status and would be subject to regulations governing contributions. 

7The matter before us might be different if there were evidence that

these interviews ended with a “wink and a nod” between the candidate and

the Chamber PACs. For one thing, as noted above, such dealings could be

subject to criminal prosecution to the extent that they actually transformed

“independent expenditures” into “contributions” that were not disclosed as

such. See Cal. Gov’t Code §§ 82015, 91000; Cal. Admin. Code tit. 2

§ 18225.7. 

LONG BEACH AREA v. CITY OF LONG BEACH 6425
the message they are hearing from these organizations and

want to add their voices to that message; otherwise they

would not part with their money.”). Though the City argues

in its brief that “collective experience” indicates that “unrestricted financial contributions to . . . IECs have a corruptive

influence,” the City fails to identify a single fact or event to

support that contention. Thus, “[o]n this record, . . . an

exchange of political favors for uncoordinated expenditures

remains a hypothetical possibility and nothing more.” Id. at

498.

The City has even stipulated that it “is unaware of any

instances of quid pro quo corruption of candidates in Long

Beach municipal elections caused by contributions to independent expenditure committees, either since adoption of the

Ordinance or which served as a basis for the Ordinance.” This

is hardly surprising “[g]iven the remove of independent

expenditure committees from candidates themselves.” Leake,

525 F.3d at 293. Tellingly, the only IEC activity that is even

discussed in the record is a stipulation that, during the 2002

City election cycle, an IEC created and distributed a mailer

supporting a candidate after the IEC had received contributions in excess of the LBCRA’s limits. We are not told

whether the candidate ever had any contact with the IEC,

whether the money received or spent by the IEC had any corrupting influence on City politics, whether the voters suspected the IEC of corrupting the political process, or even

whether the candidate won the race. The City’s inability to

identify a single instance of corruption, quid pro quo or otherwise, involving contributions to IECs for use as independent

expenditures undermines its contention that the LBCRA’s

application to the Chamber PACs furthers its interest in combating corruption or the appearance thereof. See Emily’s List,

581 F.3d at 14 (“Unlike the political parties examined in

McConnell, there is no record evidence that non-profit entities

have sold access to federal candidates and officeholders in

exchange for large contributions.”); cf. SpeechNow.org v.

FEC, ___ F.3d ___, 2010 WL 1133857, at *16 (D.C. Cir.

6426 LONG BEACH AREA v. CITY OF LONG BEACH
2010) (“[B]ecause Citizens United holds that independent

expenditures do not corrupt or give the appearance of corruption as a matter of law, then the government can have no anticorruption interest in limiting contributions to independent

expenditure-only organizations.”). As Justice Blackmun noted

in his concurrence in California Medical Association,

“[C]ontributions to a committee that makes only independent

expenditures pose no such threat [of corruption].” Cal. Med.

Ass’n, 453 U.S. at 203.

Perhaps recognizing the deficiency of the evidentiary

record before the district court, the California League of Cities (“League”), as amicus curiae, attempts to bolster the

City’s appeal, filing the texts of ordinances from other California municipalities as well as two reports documenting the

rise of IECs and IEC spending. The League offers the two

reports as “new and compelling evidence” supporting the

City’s anti-corruption rationale for the LBCRA. However, the

district court was the appropriate forum in which to introduce

this “evidence,” and we refrain from usurping that court’s

function by entertaining new evidentiary submissions on

appeal. See Fed. R. App. P. 10(a)(1) (record on appeal consists of original papers and records filed in the district court);

Barcamerica Int’l USA v. Tyfield Imps., Inc., 289 F.3d 589,

594 (9th Cir. 2002) (papers not filed in district court are not

part of record on appeal). Second, we appreciate the League’s

observation that “[a] significant number of cities, including

many of the largest municipalities, have adopted laws that

limit contributions to independent committees that support or

oppose candidates for local office.” However, we can only

decide the appeal before us, and our holding today extends

only to the LBCRA as applied to the Chamber PACs and similarly situated entities. 

Finally, the City urges that the LBCRA’s enactment

through voter initiative demonstrates a general perception of

corruption in City politics. However, as noted above, the

LBCRA covers “any person,” the definition of which extends

LONG BEACH AREA v. CITY OF LONG BEACH 6427
far beyond IECs. City of Long Beach, Cal., Ordinances

§ 2.01.210(D). The City provides no information about the

basis upon which the voters acted, and it would be purely

speculative to conclude that passage of the LBCRA was a referendum on IECs in particular given the breadth of the

LBRCA’s coverage. Even if the law were a referendum on

IECs, we could infer little from that fact; voters might have

many reasons to want to silence those organizations that have

nothing whatsoever to do with corruption.

[16] In sum, the City offers no basis on which to conclude

that the Chamber PACs have the sort of close relationship

with candidates that supports a plausible threat of corruption

or the appearance thereof. IECs are intended to provide a distinct medium through which citizens may collectively enjoy

and effectuate those expressive freedoms that they are entitled

to exercise individually. Many “individuals contribute to a

political organization in part because they regard such a contribution as a more effective means of advocacy than spending the money under their own personal direction.” FEC v.

Mass. Citizens for Life, Inc., 479 U.S. 238, 261 (1986); see

also Colorado I, 518 U.S. at 637 (1996) (Thomas, J. concurring) (“Political associations allow citizens to pool their

resources and make their advocacy more effective.”). Just as

the soloist’s song becomes more powerful when joined by a

chorus of people singing along, a citizen’s message may

become more widely and effectively disseminated when he

joins an IEC of like-minded citizens. See Cal. Med. Ass’n,

453 U.S. at 203 (“By pooling their resources, adherents of an

association amplify their own voices.”); NCPAC, 470 U.S. at

494 (“NCPAC and FCM are mechanisms by which large

numbers of individuals of modest means can join together in

organizations which serve to ‘amplif[y] the voice of their

adherents.’ ” (quoting Buckley, 424 U.S. at 22)). Other circuits have endorsed this view of IECs. See Emily’s List, 581

F.3d at 4 (The First Amendment “safeguards the right of citizens to band together and pool their resources as an unincorporated group or non-profit organization in order to express

6428 LONG BEACH AREA v. CITY OF LONG BEACH
their views about policy issues and candidates for public

office.”); Leake, 525 F.3d at 295 (“[I]ndependent expenditure

political committees offer an opportunity for ordinary citizens

to band together to speak on the issue or issues most important to them.”). Nothing in the evidentiary record of this case

indicates that the Chamber PACs should be considered differently. Therefore, the City’s anti-corruption rationale does not

support the LBCRA’s limitations on contributions to the

Chamber PACs.

CONCLUSION

[17] We conclude that the Chamber lacks standing to challenge the constitutionality of the LBCRA. Therefore, we

VACATE the district court’s grant of summary judgment in

favor of the Chamber and remand with instructions to dismiss

the Chamber’s claim for want of jurisdiction. We also conclude that the Chamber PACs’ appeal was timely filed.

Because the City has not advanced a governmental interest to

support the LBCRA’s application to the Chamber PACs, we

REVERSE the district court’s grant of summary judgment in

favor of the City and against the Chamber PACs.

VACATED and REMANDED in part; REVERSED in

part.

LONG BEACH AREA v. CITY OF LONG BEACH 6429