Restrictions on the timing of campaign finance activity have met with mixed results in the courts. The injunction just issued in Houston blocks a ban on candidate fundraising in municipal elections to have taken effect except for the period beginning February of each election year through early the following year. Gordon v. City of Houston, No. 14-CV-3146 (S.D. Tex. Jan. 9, 2015). Other, but not all, cases have turned out badly for bans on contributions during legislative sessions.
The various “temporal” bans may be different in one particular or the other, but all impose an absolute ban on activity for a defined period of time. This is probably the decisive point, putting aside all the more sophisticated features of constitutional argument: political activity that is constitutionally protected most of the time is, at other times, prohibited altogether. The state must show that it is accomplishing something with means well-tailored, no more restrictive than necessary, to the regulatory purpose of preventing corruption or its appearance. And this is hard to do when it is justifying an “absolute” ban over a sustained period of time on otherwise constitutional activity.
So cases striking down these prohibitions have relied heavily on on their absolute character. See, e.g. Shrink Missouri Government PAC v. Maupin, 922 F. Supp. 1413, 1419 (E.D. Mo. 1996) (“candidate is completely cut off” from raising funds for over a third of each year); State of Florida v. Dodd, 561 So.2d 263 (1990)(the statute “halts all sources of financing” for two-month period).
Reports on the Houston case have noted that the Thalheimer case in the Ninth Circuit came out differently. Thalheimer v. City of San Diego, 645 F.3d 1109 (9th Cir. 2011). But Thalheimer may not have the makings of a trend-setter. The Court has little say about what counts as evidence to support the need for a temporal ban, but it does indicate that the evidentiary barrier is not high, in part on the ground that a temporal ban—an absolute prohibition on giving for some period—is a more “marginal” restriction on contributions than dollar limits. Id. at 1123. This is not necessarily a line of argument that other courts will be inclined to follow.
Moreover, the Thalheimer Court offers confusing ruminations on the “special character of early campaign contributions.” Id. at 1121. It seems to accept the City’s contention that “contributions made near an election are clear expressions of political speech” compared to those made in the off year that “are more likely linked” to donor business with the city. Id. This is a loosely constructed proposition; it appeals to intuitions about what contributors in off-years may be up to, and it supposes that the “clarity” of a political message can be cleanly judged by when it is made. The Court also works in a reference to Emily’s List—the PAC, and not any case by the name—noting without more that the organization “takes its name from the familiar political aphorism that ‘Early Money is Like Yeast’ because it ‘makes the dough rise’”. 645 F. 3d at 1121 [citation omitted]. And this is where it leaves things.
Similarly cursory in its reasoning is Gable v. Patton, a Sixth Circuit decision upholding a 28 day pre-election window for contributions to gubernatorial candidates. Gable v. Patton, 142 F.3d 940 (6th Cir. 1998). Its holding rests mysteriously on one sentence in Buckley. The Gable Court says this:
The effect of the 28–Day Window with respect to external contributions is similar. Candidates will be forced to rearrange their fundraising by concentrating it in the period before the 28–Day Window begins. That is not a trivial restriction, but we read Buckley to say that such a restriction is justified by Kentucky’s interest in combating corruption.
142 F.3d at 951. That’s it.
Time will tell whether it will be a case like Gordon, just decided in Houston, or decisions like Thalheimer and Gable, that prove most persuasive in the constitutional review of temporal bans on contributions—when political giving for a defined period of time is “completely cut off.”