Richard Scott, et al v. Dawn Robert


Opinion issued by court as to Appellant Richard L. Scott. Decision: Reversed and Preliminary Injunction Entered. Opinion type: Published. Opinion method: Signed.

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Richard Scott, et al v. Dawn Robert Doc. 0 Att. 1 Case: 10-13211 Date Filed: 07/30/2010 Page: 1 of 44 [P U B L IS H ] IN THE UNITED STATES COURT OF APPEALS F O R THE ELEVENTH CIRCUIT FILED _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ U.S. COURT OF APPEALS N o . 10-13211 ________________________ ELEVENTH CIRCUIT JULY 30, 2010 JOHN LEY CLERK D . C. Docket No. 4:10-cv-00283-RH-WCS R IC H A R D L. SCOTT, Plaintiff-Appellant, versus DAWN K. ROBERTS, In Her Official Capacity as Interim Secretary of State of the State of Florida, Defendant-Appellee, IRA WILLIAM McCOLLUM, JR., Intervenor-Defendant-Appellee. ________________________ A p p eal from the United States District Court fo r the Northern District of Florida _________________________ (Ju ly 30, 2010) B efo re DUBINA, Chief Judge, PRYOR and MARTIN, Circuit Judges. Case: 10-13211 Date Filed: 07/30/2010 Page: 2 of 44 PRYOR, Circuit Judge: In this emergency appeal from the denial of a motion for a preliminary in ju n ctio n , Richard Scott, who is a candidate for the Republican Party for G o v ern o r of the State of Florida, asks that we preliminarily enjoin the enforcement o f a provision of the Florida Election Campaign Financing Act that he contends v io lates his rights, under the First and Fourteenth Amendments, to spend unlimited su m s of his personal funds and private donations to his campaign in furtherance of h is candidacy. To date, Scott, who has never run for public office and is largely self-fu n d in g his campaign, has spent more than $21 million in the Republican p rim ary to defeat his main opponent, Bill McCollum, the current Attorney General o f Florida, who is participating in the public campaign financing system of Florida, w h ich provides participating candidates with matching public funds to spend on th eir campaigns. That system also provides participating candidates like M cC o llu m with a subsidy when a nonparticipating opponent spends in excess of $ 2 for each registered Florida voter, which for this election means almost $25 m illio n . Fla. Stat. 106.34, 106.355. On July 7, as his campaign expenditures were rapidly approaching the $25 m illio n threshold, Scott filed a complaint in the district court and asked the court to en jo in preliminarily the operation of the excess spending subsidy. Scott argued 2 Case: 10-13211 Date Filed: 07/30/2010 Page: 3 of 44 that, under Davis v. Federal Election Commission, 554 U.S. - - , 128 S. Ct. 2759 (2 0 0 8 ), the excess spending subsidy severely burdened his First Amendment rights an d was not justified by a compelling state interest. The Interim Secretary of State, as the defendant in her official capacity, and McCollum, as an intervenor in his in d iv id u al capacity, defended the excess spending subsidy. The district court promptly convened a hearing for Scott's motion, carefu lly weighed the competing arguments, and agreed with the first part of S co tt's complaint, but the district court concluded that the excess spending subsidy in d irectly furthered the interest of Florida in preventing actual or apparent co rru p tio n by encouraging participation in the Florida public campaign financing system and was narrowly tailored to serve that end. We agree with the district co u rt that Davis requires Florida to justify its excess spending subsidy by reference to the anticorruption interest, but conclude that Florida cannot satisfy its burden of estab lish in g that its subsidy furthers that interest in the least restrictive manner p o ssib le. We reverse the judgment of the district court and preliminarily enjoin the S ecretary of State of Florida from releasing funds to McCollum under the excess sp en d in g provision. I. BACKGROUND T o explain the background of this appeal, we first address the campaign for 3 Case: 10-13211 Date Filed: 07/30/2010 Page: 4 of 44 the Republican nomination for governor of Florida. We then discuss the Florida cam p aig n finance laws. Finally, we discuss the procedural history of this appeal. A. The 2010 Campaign for the Republican Nomination for Governor of Florida R ich ard Scott is a candidate for Governor of the State of Florida and is cu rren tly seeking the nomination of the Republican Party for that office. Despite h av in g never held or campaigned for public office, Scott announced his candidacy fo r governor in April 2010. Scott is wealthy and describes himself as a former "h ealth care executive and businessman." Last year, he founded an organization, C o n serv ativ es for Patients' Rights, to "promote free market principles in health care reform." Regarding his candidacy, Scott states that he is "running as a co n serv ativ e outsider who is a successful businessman with the experience to create jobs, hold government accountable, and turn the state around." Scott's main opponent in the Republican primary is Ira William ("Bill") M cC o llu m Jr., the current Attorney General of Florida. Mike McCalister is the o th er candidate for the Republican nomination, is not a party to this appeal, and is d escrib ed in the record as a nominal candidate. Unlike Scott, McCollum has a long h isto ry in Florida politics. Before the voters of Florida elected McCollum attorney g en eral in 2006, McCollum had served for nearly 20 years as a Member of C o n g ress from Florida. McCollum had also twice campaigned unsuccessfully as a 4 Case: 10-13211 Date Filed: 07/30/2010 Page: 5 of 44 candidate for United States Senator from Florida. By his own admission, M cC o llu m has substantial "experience running a campaign for statewide office in F lo rid a." Consequently, he also has "substantial experience in raising the funds n ecessary to finance . . . a political campaign in a state such as Florida in which the electio n law limits the amount that individuals can contribute to a candidate." McCollum is also familiar with the Florida Election Campaign Financing Act, and h e "consider[ed] the benefits of the Act, as well as the restrictions placed on a can d id ate by the Act," when he decided to participate in the Florida public cam p aig n financing system. McCollum elected to participate in the Florida system of public campaign fin an cin g , but Scott did not. Scott contends that he "believe[s] it is unfair to ask th e taxpayers of Florida to subsidize the campaigns of politicians, especially in th ese difficult economic times." Rather than rely on public financing, Scott has d ecid ed to fund his campaign "substantially" with his own money. Scott has funded a substantial campaign. According to Scott, he has co m p en sated for his "relatively late entry into the race" and the fact that his p rin cip al opponent is "a politician who has been a fixture in Florida politics since 1 9 8 0 " by spending, between April 9 and July 7 of this year, approximately $21 m illio n in support of his candidacy. Scott maintains that he has spent this money 5 Case: 10-13211 Date Filed: 07/30/2010 Page: 6 of 44 on televison, radio, and mail advertising; travel; and "other voter education effo rts." He explains that these expenditures have permitted him to "introduce [h im ]self to Florida voters, convey [his] political positions, and articulate [his] p o licy differences with Mr. McCollum and other gubernatorial candidates in a relativ ely short period of time." Not surprisingly, these large expenditures, in Scott's words, "have proven to b e extremely successful" in assisting his candidacy. According to a poll of likely v o ters in the Republican primary conducted by Quinnipiac University, on June 10, 2 0 1 0 , Scott led McCollum 44 percent to 31 percent. But opinion polls of random selectio n s of voters are snapshots with margins of error, and campaigns are, to say th e least, dynamic projects. After McCollum's campaign manager, Jack Williams, "observed Mr. Scott's ex ten siv e radio and television campaign advertising throughout Florida," the M cC o llu m campaign responded to Scott's expenditures by altering its advertising strateg y. The McCollum campaign purchased advertising "many weeks before o rig in ally planned." According to Williams, McCollum spent $1 million on radio an d television advertising through May 2010 and another $2.2 million through July 1 0 , 2010. As of July 10, McCollum had $800,000 left to spend on his campaign, b u t McCollum is still scheduled to receive (if he has not already received) upwards 6 Case: 10-13211 Date Filed: 07/30/2010 Page: 7 of 44 of $2 million in public funds to match private qualified contributions he has raised. N o tw ith stan d in g the apparent success of his expenditures, Scott alleges he h as recently curtailed his campaign spending to avoid triggering a public subsidy affo rd ed to his opponent under the public financing system. The Florida public fin an cin g system provides a subsidy to a participating candidate when an opposing can d id ate who has chosen not to participate in public financing exceeds the statu to ry expenditure limit, which for this election is $24,901,170, or $2 for each reg istered voter. Fla. Stat. 106.34, 106.355. Under the public financing system, if Scott spends over this amount, any participating opponent in the Republican p rim ary for the nomination of governor is entitled to one public dollar for every d o llar Scott spends over the limit. Id. 106.355. In his declaration, Scott alleged that, as he has approached this limit, he has red u ced his campaign spending "in a drastic manner" to ensure that he is enabling M cC o llu m 's campaign for as few days as possible. He stated that from June 25 to Ju ly 2, he "cut by roughly half" the total amount of television time purchased for certain advertisements and limited the markets in which he ran those ads. Scott alleg ed that he halted all television and radio advertisements from July 3 to July 6. Scott asserted that he also cut by 40 percent the total amount of television time that h e purchased for certain advertisements from July 7 to July 13. Scott stated that he 7 Case: 10-13211 Date Filed: 07/30/2010 Page: 8 of 44 relied more on advertising purchased by a section 527 organization that he controls b ecau se the spending of that section 527 organization does not count as a campaign ex p en d itu re. The advertising purchased by the section 527 organization could not b y law directly advocate Scott's election and was more expensive than ad v ertisem en ts that Scott could have purchased through his campaign because cam p aig n s receive a discount under Florida law. Scott also alleged that he had red u ced campaign travel for the two weeks preceding July 7. Scott also stated that h e reduced spending on his absentee ballot program from approximately $1 million to $500,000. Scott asserted that he reduced voter-contact mail; limited staff hiring; red u ced the use of paid callers to contact potential voters; and curtailed fundraising e f f o r ts . Despite these reductions, Scott estimates that he will exceed the expenditure th resh o ld "well before" the Republican primary on August 24. Scott does not ex p ect that his reluctance to spend money on his campaign will abate when he ex ceed s that threshold. After he exceeds the threshold, Scott will "engage in less cam p aig n speech than would be the case if [his] opponents were not eligible to receiv e subsidies under section 106.355." Scott explains that he has a co n stitu tio n al right to avoid providing his opponents "with a competitive ad v an tag e and in turn permitting them to counteract and diminish [his] campaign 8 Case: 10-13211 Date Filed: 07/30/2010 Page: 9 of 44 speech." B . The Florida Laws Regarding the Financing of Election Campaigns Florida laws regulate campaign financing for all candidates, political co m m ittees, committees of continuous existence, electioneering communication o rg an izatio n s, and political parties. Id. 106.011106.36. A candidate may not accep t a contribution in excess of $500 from any person, political committee, or co m m ittee of continuous existence during an election. Id. 106.08(1)(a). The statu te defines a "person" as "an individual or a corporation, association, firm, p artn ersh ip , joint venture, joint stock company, club, organization, estate, trust, b u sin ess trust, syndicate, or other combination of individuals having collective cap acity." Id. 106.011(8). For the purpose of contribution limits, the statute co n sid ers primary and general elections separate elections for all opposed can d id ates. Id. 106.08(1)(c). By law, a candidate for statewide office may not accep t contributions that exceed $250,000 in the aggregate from national, state, or co u n ty executive committees of a political party. Id. 106.08(2)(b). Florida law d o es not limit the amount that a candidate may contribute personally to his cam p aig n . Id. 106.08(1)(b)(1). All candidates must file regular reports of all co n trib u tio n s received and all expenditures made by or on behalf of such candidate w ith the Division of Elections. Id. 106.07, 106.075. 9 Case: 10-13211 Date Filed: 07/30/2010 Page: 10 of 44 Florida law does not consider "an expenditure made for, or in furtherance of, an electioneering communication . . . a contribution to or on behalf of any can d id ate." Id. 106.011(18)(c). An electioneering communication is defined as an y communication that is publically distributed by television, radio, satellite, n ew sp ap er, magazine, direct mail, or telephone, and that "clearly identifie[s] [a] can d id ate for office without expressly advocating the election or defeat of a can d id ate." Id. 106.011(18)(a). The parties understand Florida law to permit a can d id ate to further his campaign by coordinating electioneering expenditures with o rg an izatio n s commonly known as section 527 organizations, which draw their n am e from the Internal Revenue Code that grants them tax-exempt status. See I.R .C . 527. Section 527 of the Internal Revenue Code provides that an o rg an izatio n "operated primarily for the purpose of directly or indirectly accepting co n trib u tio n s or making expenditures" need not declare contributions, dues or fu n d raisin g proceeds as income if the money is used for "the function of in flu en cin g or attempting to influence the selection, nomination, election, or ap p o in tm en t of any individual to any Federal, State, or local public office." Id. 527(c), (e). Unlike political action committees that directly advocate for the electio n or defeat of a candidate, most section 527 organizations indirectly support a candidate by electioneering communications and thus avoid regular disclosure of 10 Case: 10-13211 Date Filed: 07/30/2010 Page: 11 of 44 expenditures and contributions to the Federal Elections Commission. See id. 527(j). In 2005, the Florida Division of Elections interpreted Florida law to mean th at expenditures of section 527 organizations that were coordinated with can d id ates did not constitute contributions to those candidates. Electioneering C o m m u n icatio n s, DE 05-04 (Fla. Div. of Elections June 28, 2005). The Secretary in fo rm ed the district court that electioneering expenditures also do not constitute can d id ate expenditures. A recent federal court decision that invalidated the p ro v isio n of Florida election law upon which that interpretation is based calls into q u estio n whether this coordination remains legal. See Broward Coal. of Condo., H o m eo w n ers Ass'n & Cmty. Orgs. Inc. v. Browning, No.4:08-cv-445-SMP (N.D. F la May 22, 2009). Regardless, the parties agree that candidates continue to co o rd in ate with section 527 organizations. In 1986, the Florida Legislature passed the Florida Election Campaign F in an cin g Act, 1986 Fla. Sess. Law Serv. ch. 86-276 (codified at Fla. Stat. 106.30106.36). The Act establishes a system that provides matching public fu n d s to candidates for state political offices who agree to certain conditions. To b e eligible to participate in the system, a gubernatorial candidate must submit an ap p licatio n for matching funds, Fla. Admin. Code Ann. r. 1S-2.047(1); be an 11 Case: 10-13211 Date Filed: 07/30/2010 Page: 12 of 44 opposed candidate, Fla. Stat. 106.33; agree to abide by an expenditure limit, w h ich for the 2010 election is $24,901,170, id. 106.34; raise an initial $150,000 in qualified contributions from Florida residents before receiving any public funds, id . 106.33(2)(a)(1); agree to limit loans or contributions from his personal funds to $25,000, id. 106.33(3); limit contributions from national, state, and county ex ecu tiv e committees of a political party to $250,000 in the aggregate (this limit ap p lies to all candidates participating or not), id.; submit disclosure and reporting statem en ts of each qualified contribution, id. 106.35(3)(a); and submit a postelectio n audit of the campaign account, id. 106.33(4). The Secretary represented to the district court that a participating candidate, like a nonparticipating candidate, rem ain s free to coordinate electioneering expenditures with section 527 o rg an izatio n s, and these expenditures do not count toward the participating can d id ate's expenditure limit. See id. 106.011(18)(c). After the Division of Elections for the State of Florida certifies a candidate as eligible to participate in the system, the candidate is entitled to receive matching fu n d s for certain qualifying contributions. Id. 106.35. Participating candidates rem ain subject to the $500 cap on campaign contributions from persons or co m m ittees, id. 106.08(1)(a), but become eligible as participants in the public fin an cin g system to receive matching state funds, up to $250, for each contribution 12 Case: 10-13211 Date Filed: 07/30/2010 Page: 13 of 44 made by a Florida resident after September 1 of the calendar year before the electio n , id. 106.35(2)(b). The state matches only $250 for aggregate co n trib u tio n s from an individual that exceed $250. For each dollar of a qualifying co n trib u tio n that makes up all or part of the initial $150,000 in contributions a g u b ern ato rial candidate must initially raise, the state provides the participating can d id ate $2 in public funds. Id. 106.35(2)(a)(1). After the participating can d id ate raises the initial $150,000 in contributions, the state matches qualifying co n trib u tio n s dollar for dollar. Id. 106.35(2)(a)(2). In 1991, the Florida Legislature adopted section 106.355, which includes the ex cess spending subsidy that is the focus of this appeal. Section 106.355 provides a subsidy to a participating candidate when an opposing candidate who does not p articip ate in public financing exceeds the statutory expenditure limit, which for th is election is $24,901,170. 1991 Fla. Sess. Law Serv. ch. 91-107 24 (codified at Fla. Stat. 106.355). Unlike the public funds that a participating candidate receiv es from the state that match private contributions to that candidate, the ex cess spending subsidy is tied to the spending of the participating candidate's o p p o n en t; Florida provides the participating candidate a dollar for every dollar his n o n p articip atin g opponent expends above the statutory expenditure limit. Fla. Stat. 106.355. This dollar-for-dollar subsidy is not a matching fund because the 13 Case: 10-13211 Date Filed: 07/30/2010 Page: 14 of 44 participating candidate receives the subsidy regardless of any effort that he makes to raise funds for his campaign. See id. ("[These] funds shall not be considered m atch in g funds."). This section also provides that a participating candidate is released from the expenditure limit to the extent that his nonparticipating opponent ex ceed s the limit. Id. Participating candidates remain eligible for matching funds u p to the statutory expenditure limit for qualified private contributions and are released from a penalty that would require reimbursement of funds for co n trib u tio n s that exceed the expenditure limit. Id. Additionally, in enacting this su b sid y, the legislature declared that "[i]f any provision of the [1991 A]ct, or the ap p licatio n thereof . . . is held invalid, the invalidity shall not affect other p ro v isio n s . . . of the [A]ct which can be given effect without the invalid p ro v isio n ." 1991 Fla. Sess. Law Serv. ch. 91-107 36. The Florida Legislature declared that it created the public financing system o u t of concern that the cost of running "an effective campaign for statewide office . . . discourage[s] persons from becoming candidates" and "limit[s] the persons w h o run for such office to those who are independently wealthy," or those who are su p p o rted by political committees or special interest groups that are capable of g en eratin g substantial contributions. Fla. Stat. 106.31. According to the en ab lin g statute, "the purpose of public campaign financing is to make candidates 14 Case: 10-13211 Date Filed: 07/30/2010 Page: 15 of 44 more responsive to the voters of the State of Florida and as insulated as possible fro m special interest groups," and to dispel "the misperception [that] government o fficials [are] unduly influenced by those special interests to the detriment of the p u b lic interest." Id. That statute also provides that the public campaign financing system is intended to "encourage qualified persons to seek statewide elective office w h o would not, or could not otherwise do so and to protect the effective co m p etitio n by a candidate who uses public funding." Id. The legislature declared its "interest in strengthening the integrity of, and public confidence in, the electoral p ro cess." 1991 Fla. Sess. Law Serv. ch. 91-107, pmbl. C. Procedural History O n July 7, after Scott decided that his expenditures would trigger the public su b sid y, Scott filed a complaint against Dawn Roberts, the Interim Secretary of S tate of Florida. Scott asked the district court to declare unconstitutional the p ro v isio n of section 106.355 that creates the excess spending subsidy and to enjoin th e Secretary from enforcing it. Scott's complaint asserted two counts: count one alleg ed that the excess spending subsidy "chills free speech by imposing a su b stan tial burden on Mr. Scott's well-established right to spend his own funds in su p p o rt of his own candidacy" in violation of the First and Fourteenth A m en d m en ts; and count two alleged that the excess spending subsidy "treats 15 Case: 10-13211 Date Filed: 07/30/2010 Page: 16 of 44 candidates differently with respect to campaign expenditures based solely on w h eth er the candidate has elected to participate in the public financing system." According to count two of the complaint, the excess spending subsidy requires F lo rid a to subsidize the campaign of a participant, but not of a nonparticipant, after a nonparticipant exceeds the expenditure threshold, in violation of the Equal P ro tectio n Clause of the Fourteenth Amendment. Scott did not pursue count two in the district court and has not pursued it in this appeal. Also on July 7, Scott moved the district court for a preliminary injunction an d requested a hearing on his motion by July 16. In a memorandum of law that he filed with his motion, Scott argued that the decision of the Supreme Court of the U n ited States on June 8, 2010, to stay the mandate in an appeal from the United S tates Court of Appeals for the Ninth Circuit, which involved a materially similar su b sid y provision, and to lift the stay that the district court had entered after en jo in in g the provision, suggested that he was likely entitled to preliminary relief. See McComish v. Bennett, - - S. Ct. - -, No. 09A1163 (June 8, 2010); see also M cC o m ish v. Bennett, - - F.3d - - , Nos. 10-15165, 10-15166, slip op. 9139 (9th C ir. June 23, 2010); McComish v. Brewer, No. CV-08-1550-PHX-ROS (D. Ariz. Jan . 20, 2010). Scott also argued that the harm caused by the excess spending su b sid y to his constitutional rights had become "ongoing and irreparable." 16 Case: 10-13211 Date Filed: 07/30/2010 Page: 17 of 44 On July 14, the district court held a hearing about Scott's motion for a p relim in ary injunction. Scott, the Secretary, and McCollum, whom the district co u rt permitted to intervene under Federal Rule of Civil Procedure 24(b), p articip ated in the hearing, and the district court permitted each side about one h o u r to make arguments. The record before the district court consisted of five affidavits and the p arties' briefs. Scott and McCollum submitted affidavits consistent with the facts ab o v e. Jack Williams, McCollum's campaign manager, submitted an affidavit o p p o sin g the motion for a preliminary injunction that is consistent with the facts ab o v e. Stephen Hazelton, the president and director of a media placement co m p an y, submitted an affidavit on behalf of McCollum's memorandum in o p p o sitio n that explains, in his opinion, the costs associated with television ad v ertisem en ts in Florida and the importance of establishing a strategic media plan early in a campaign. Sarah Bradshaw, the Assistant Director of the Florida D iv isio n of Elections, who is responsible for overseeing the Florida public fin an cin g system, submitted an affidavit that explains the system and verifies the ap p licab le expenditure limit. B efo re the district court, Scott argued that the First and Fourteenth A m en d m en ts guarantee him the right to "spend unlimited amounts" of his personal 17 Case: 10-13211 Date Filed: 07/30/2010 Page: 18 of 44 funds to support his campaign and guarantee his campaign the right to spend an u n lim ited amount to secure his election. See Buckley v. Valeo, 424 U.S. 1, 5559, 9 6 S. Ct. 612, 65254 (1976). He argued, based on Davis v. Federal Election C o m m issio n , 128 S. Ct. 2759, that the excess spending subsidy severely burdened h is exercise of that First Amendment right and was thus subject to strict scrutiny, w h ich it could not survive. Scott did not contest that Florida could release M cC o llu m from the expenditure limit affecting participating candidates after Scott ex ceed ed that spending limit. Scott urged the district court to grant a preliminary in ju n ctio n because he was likely to prevail later on the merits, the injury he was ex p erien cin g and would be experiencing is irreparable, and the equities and public in terest do not counsel against relief. The Secretary and McCollum responded that Scott's claims were unlikely to su cceed on the merits because the subsidy did not burden Scott's speech rights. They argued that the subsidy only permitted Scott's opponents to speak. They asserted that any burden was justified by the interest of the state in "preventing co rru p tio n and the appearance of corruption as well as encouraging participation in th e public campaign financing system as a means of preventing corruption." They arg u ed that Davis is inapposite because the Florida system for public financing of cam p aig n s does not at any point impose asymmetrical contribution limits on 18 Case: 10-13211 Date Filed: 07/30/2010 Page: 19 of 44 participating and nonparticipating candidates. Finally, they urged the district court n o t to grant preliminary relief because Scott was unlikely to prevail later on the m erits and had unnecessarily delayed filing suit. Moreover, they argued that it w o u ld be inequitable to force McCollum to rearrange his campaign strategy, which an ticip ated the subsidy, and deprive the public of two powerful and competing v o ices during the final weeks of the campaign. After hearing from the parties, the district court stated, on the record, its th o ro u g h findings of "the facts that deal with these candidates and this election." The district court found that McCollum had opted to participate in the public fin an cin g system, would receive public funds based upon his qualifying co n trib u tio n s, and was not going to exceed the expenditure cap governing p articip atin g candidates. The district court also found that Scott had opted not to p articip ate and that he would exceed the expenditure threshold and entitle M cC o llu m to receive excess spending subsidies. The district court also found that M cC o llu m would have participated in the public funding system and raised as m u ch money as he had even if there had been no provision for an excess spending su b sid y. It found that McCollum "probably would have spent the same amount he h as spent, or very nearly the same amount that he has spent, with or without" a p ro v isio n for an excess spending subsidy. McCollum "probably spent mostly in 19 Case: 10-13211 Date Filed: 07/30/2010 Page: 20 of 44 response to Mr. Scott's expenditures, and not so much in reliance on the av ailab ility of [a subsidy] later on." The district court also found that McCollum co u ld not reasonably have planned his campaign in reliance on the subsidy because th e issue of its legality "was out there, and it has been out there . . . and will be after today." T h e district court found that Scott would have "done just as he has done with o r without" the excess spending subsidy. The district court explained that there is "n o reason to conclude that [Scott] has changed his behavior up to this point for fear that the [subsidy] would be triggered," but the district court found that the ex cess spending subsidy "will make a substantial difference going forward. If [the ex cess spending subsidy] remains in place, Mr. Scott probably will reduce his d irect spending, either because he does not want to make funds available to Mr. M cC o llu m , or because Mr. Scott will be able to get his message out through 527s, o r in some indirect way." The district court stated that, if "that happens, voters will h ear only indirectly rather than directly from Mr. Scott, which, of course, is a First A m en d m en t issue." The district court denied Scott's motion for a preliminary injunction. The d istrict court concluded that Scott had established irreparable harm and that the eq u ities and the public interest did not clearly favor one side over the other. For 20 Case: 10-13211 Date Filed: 07/30/2010 Page: 21 of 44 this reason, the district court stated that, if Scott were likely to prevail on the m erits, it would grant preliminary relief. With regard to the merits, the district co u rt concluded that the subsidy provision was probably constitutional. The d istrict court agreed with Scott that, under Davis, the subsidy provision imposed a su b stan tial burden on Scott's right to free speech and could be justified only by a co m p ellin g government interest. According to the district court, "The provision at issu e [in Davis] raised the cap for the opponent, so that the opponent could go out an d raise money and possibly spend it against the candidate. Here, it's not just a p o ten tial dollar. It's a certain dollar." The district court recognized that whether th e excess spending subsidy was narrowly tailored to the anticorruption interest w as a "very close issue" and it offered, under considerable time pressures, its "best an alysis of the law as it stands." The district court concluded that Florida had a compelling interest in p rev en tin g actual and apparent corruption that justified the excess spending su b sid y. It adopted a theory that neither party had suggested and that the district co u rt conceded had no basis in the statutory language or the legislative history. According to the district court, the legislature adopted a $500 contribution limit ap p licab le to all candidates to combat corruption or the appearance of corruption. "But the legislature may not have wanted to hamstring a candidate." The district 21 Case: 10-13211 Date Filed: 07/30/2010 Page: 22 of 44 court posited that the legislature could have addressed that concern by raising "the lim it when a nonparticipant went over the cap." The court stated that such a so lu tio n would be permissible under Davis because "Davis expressly said that, if th e provision raised the contribution limit for both candidates, for all candidates, it w o u ld be constitutional." The district court, however, explained that the legislature m ay not have wanted to adopt that solution because "keeping the $500 limit fights co rru p tio n better." Additionally, "raising the limit late in the game isn't very w o rk ab le" because it would be difficult for "candidates [to] go back to his or her co n trib u to rs and seek more money." The district court concluded that the leg islatu re "could reasonably decide, I'm not going to raise the limit; I don't want to hamstring the candidate who has opted in; and, thus, promoting the an tico rru p tio n goal." "And so the legislator can reasonably say, what I'm going to d o is match the expenditures by the candidate that goes over. That way, I have o ffset the effect of the $500 cap on contributions." The district court conceded that it could find "no legislative history that sets it out quite like that," but stated that it fo u n d "it telling that the $500 cap came in at the same time as public financing, an d that the [excess spending subsidy] came in as part of it." II. STANDARD OF REVIEW W e review the decision to deny a preliminary injunction for abuse of 22 Case: 10-13211 Date Filed: 07/30/2010 Page: 23 of 44 discretion. Solantic, LLC v. City of Neptune Beach, 410 F.3d 1250, 125354 (1 1 th Cir. 2005). In so doing, we review the findings of fact of the district court fo r clear error and legal conclusions de novo. This That & the Other Gift & T o b acco , Inc. v. Cobb Cnty., Ga., 285 F.3d 1319, 1321 (11th Cir. 2002). A party seeking a preliminary injunction bears the burden of establishing its en titlem en t to relief. Citizens for Police Accountability Political Comm. v. B ro w n in g , 572 F.3d 1213, 1217 (11th Cir. 2009). In considering the propriety of p relim in ary relief, we consider four factors: (1) whether there is a substantial lik elih o o d that the party applying for preliminary relief will succeed later on the m erits; (2) whether the applicant will suffer an irreparable injury absent p relim in ary relief; (3) whether the harm that the applicant will likely suffer o u tw eig h s any harm that its opponent will suffer as a result of an injunction; and (4 ) whether preliminary relief would disserve the public interest. E.g., Burk v. A u g u sta-R ich m o n d Cnty., 365 F.3d 1247, 126263 (11th Cir. 2004). When the state is a party, the third and fourth considerations are largely the same. GarciaM ir v. Meese, 781 F.2d 1450, 1455 (11th Cir. 1986). III. DISCUSSION S co tt contends that he is entitled to a preliminary injunction because his co m p lain t under the First and Fourteenth Amendments is likely to succeed, the 23 Case: 10-13211 Date Filed: 07/30/2010 Page: 24 of 44 burden on his right to free speech is irreparable, and, as the district concluded, the b alan ce of the harms and the public interest do not counsel against an injunction. The Secretary and McCollum disagree with all of those statements. We agree with S c o tt. W e address the propriety of preliminary relief in four parts. First, we ex p lain that Scott is highly likely to succeed on his claim that the excess spending su b sid y severely burdens his constitutional rights. Second, we explain why Scott's in ju ry is irreparable. Third, we explain that the balance of the harms and co n sid eratio n s of the public interest do not counsel against relief. Fourth, we co n clu d e by addressing the propriety of preliminary relief in the light of our an alysis in the first three sections. A. Scott's First Amendment Claim Is Likely to Succeed on the Merits. S co tt argues that the excess spending subsidy is unconstitutional because it sev erely burdens his right to spend in support of his candidacy and is thus subject to strict scrutiny, which it cannot survive. He argues that Davis compels this co n clu sio n . The Secretary and McCollum respond that the subsidy does not su b stan tially burden Scott's right to spend in support of his candidacy and is not su b ject to strict scrutiny. They argue that Davis is inapposite, but even if it applies, th ey argue that the subsidy survives strict scrutiny because it furthers the legitimate 24 Case: 10-13211 Date Filed: 07/30/2010 Page: 25 of 44 interest of Florida in preventing corruption and the appearance of corruption in p o litics. They contend that the subsidy encourages participation in the public cam p aig n financing system and the public financing system prevents corruption an d the appearance of corruption. W e agree with Scott that Davis requires us to subject the excess spending su b sid y to strict scrutiny. We conclude that, even if the subsidy encourages p articip atio n in the public financing system and indirectly prevents corruption or th e appearance of corruption, the excess spending subsidy is not the least restrictiv e means of doing so. Like the district court, we think it is obvious that the subsidy imposes a b u rd en on nonparticipating candidates, like Scott, who spend large sums of money in support of their candidacies. When a nonparticipant vying for public office in F lo rid a spends more than $2 for each registered voter in support of his candidacy, F lo rid a provides direct financial support to his opponents. These participating o p p o n en ts use this money to further their own candidacies and attempt to defeat th e candidacy of the nonparticipant. When the participating candidates speak in su p p o rt of their own candidacies, they raise the cost of their nonparticipating o p p o n en t's speech in support of his candidacy. Neither McCollum nor Scott d isag rees with this fact. Indeed, that is why Scott is seeking to invalidate the 25 Case: 10-13211 Date Filed: 07/30/2010 Page: 26 of 44 subsidy and McCollum is defending it. Moreover, we know of no court that d o u b ts that a subsidy like the one at issue here burdens nonparticipants, apart from w h eth er it is a substantial burden under the First Amendment. See Green Party of C o n n . v. Garfield, - - F.3d - - , Nos. 09-3760-cv(L), 09-3941-cv(CON), slip op. 1, at 49 (2d Cir. July 13, 2010); McComish, slip op. at 9164 (acknowledging but not fin d in g constitutionally significant the loss of "competitive advantage in electio n s"); N.C. Right to Life Comm. Fund for Indep. Political Expenditures v. L eak e, 524 F.3d 427, 437 (4th Cir. 2008) (same); Daggett v. Comm'n on G o v ern m en tal Ethics & Election Practices, 205 F.3d 445, 46465 (1st Cir. 2000) (sam e). We agree with Scott and the district court that, under Davis, the burden of S co tt's right of free speech is substantial. Davis, a candidate for the United States H o u se of Representatives, sued to enjoin enforcement of section 319(a) of the B ip artisan Campaign Reform Act of 2002, otherwise known as the "Millionaire's A m en d m en t." 128 S. Ct. at 276667. Section 319(a) provided that, if Davis spent en o u g h of his own personal funds in support of his candidacy so that he could be d escrib ed as self-financing, his opponent could accept campaign contributions of u p to $6,900. Id. at 2766 & n.5. Davis would still have been limited to accepting cam p aig n contributions of $2,300 or less. Id. at 2766. Davis alleged that the 26 Case: 10-13211 Date Filed: 07/30/2010 Page: 27 of 44 asymmetrical contribution limits that applied when he self-funded his campaign u n co n stitu tio n ally burdened his right to make unlimited expenditures in support of h is campaign "because making expenditures that create the imbalance has the effect of enabling his opponent to raise more money and to use that money to fin an ce speech that counteracts and thus diminishes the effectiveness of" his own sp eech . Id. at 2770. The Supreme Court agreed with this argument and in v alid ated the Millionaire's Amendment because it did not satisfy a compelling g o v ern m en t interest. Id. at 277274. Davis described as an "unprecedented p en alty," a "special and potentially significant burden," a "drag," an "abridgment," an d a "substantial burden" the grant of the right to an opponent to raise funds under a relaxed contribution cap. Id. at 277172. That is, a candidate exercising his right to spend without restriction his personal funds on his campaign is burdened su b stan tially when his opponent is permitted the opportunity to raise more money th an he otherwise would have been permitted to raise. Like both the district court and the Second Circuit, we conclude that the b u rd en that an excess spending subsidy imposes on nonparticipating candidates "is h arsh er than the penalty in Davis, as it leaves no doubt" that the nonparticipants' o p p o n en ts "will receive additional money." Green Party, slip op. at 49 (emphasis o m itted ). Although Davis concerned a discriminatory contribution system that 27 Case: 10-13211 Date Filed: 07/30/2010 Page: 28 of 44 burdened a self-funding candidate, what triggered strict scrutiny was the grant of a co m p etitiv e advantage--an increase in the ability of Davis's opponent to speak. 128 S. Ct. at 2772 ("[T]he vigorous exercise of the right to use personal funds to fin an ce campaign speech produces fundraising advantages for opponents in the co m p etitiv e context of electoral politics."). Davis also cited Day v. Holahan, 34 F .3 d 1356, 135960 (8th Cir. 1994), which involved a subsidy to publicly financed can d id ates that was tied to independent expenditures against those candidates, for th e proposition that the Millionaire's Amendment imposed a "special and p o ten tially significant burden." 128 S. Ct. at 2772. That is, the Supreme Court eq u ated the Millionaire's Amendment with a statute that enabled the opponent of a co m p lain in g candidate. Moreover, we doubt that the Court would describe as such a significant burden the relaxation of a contribution limit that only ever applies to can d id ates who, by definition, are mostly not relying on contributions. Finally, the m ajo rity opinion in Davis, after establishing that the Millionaire's Amendment w arran ted strict scrutiny, all but stated that it was not thinking about the law in term s of contribution limits. See id. at 2772 n.7 ("Even if 319(a) were ch aracterized as a limit on contributions rather than expenditures, it is doubtful w h eth er it would survive."). Although under Davis the subsidy must be "justified by a compelling state 28 Case: 10-13211 Date Filed: 07/30/2010 Page: 29 of 44 interest," id. at 2772 (internal quotation marks omitted), the Secretary and M cC o llu m insist that the subsidy satisfies that test. They argue that the excess sp en d in g subsidy furthers the interest of the state in fighting corruption and the ap p earan ce of corruption, which the Supreme Court has suggested is probably the o n ly compelling interest that can justify a substantial burden on expenditures. See id . at 2773 (citing Nixon v. Shrink Mo. Gov't PAC, 528 U.S. 377, 428, 120 S. Ct. 8 9 7 , 926 (2000) (Thomas, J., dissenting) ("[P]reventing corruption or the ap p earan ce of corruption are the only legitimate and compelling government in terests thus far identified for restricting campaign finances." (internal quotation m ark s omitted))). The Secretary and McCollum contend that the subsidy furthers th e anticorruption interest by encouraging participation in the public campaign fin an cin g system of Florida, which in turn prevents corruption or the appearance of co rru p tio n . This argument is not novel. See Gable v. Patton, 142 F.3d 940, 947 (6 th Cir. 1998); cf. Fed. Election Comm'n v. Nat'l Conservative Political Action C o m m ., 470 U.S. 480, 51418, 105 S. Ct. 1459, 147779 (1985) (White, J., d issen tin g ). We are willing to assume, for the sake of argument, that the subsidy en co u rag es participation in the public financing system of Florida. See Gable, 142 F .3 d at 950. The parties have not sufficiently explained how the Florida public financing 29 Case: 10-13211 Date Filed: 07/30/2010 Page: 30 of 44 system furthers the anticorruption interest. As we understand the system, it enables can d id ates who are willing to accept limits on personal expenditures and campaign ex p en d itu res, and it grants participating candidates public money. In all other resp ects, the system enables candidates who run campaigns that are in d istin g u ish ab le from the campaigns of nonparticipants like Scott. At this early stag e, we outline our concerns as follows. T h e limit that the public campaign financing system imposes on the personal ex p en d itu res of participating candidates does not appear to reduce corruption or the ap p earan ce of corruption. The Supreme Court has explained that "the use of p erso n al funds reduces the candidate's dependence on outside contributions and th ereb y counteracts the coercive pressures and attendant risks of abuse" of cam p aig n contributions. Buckley, 424 U.S. at 53, 96 S. Ct. at 651. The Supreme C o u rt reaffirmed this principle in Davis when it held that discouraging the use of p erso n al funds by wealthy candidates for federal office "disserves the an tico rru p tio n interest." 128 S. Ct. at 2773. Thus, by encouraging individuals to accep t a limit on personal expenditures, the subsidy does not appear to reduce c o r ru p tio n . T h e limit on general campaign expenditures also does not appear to enable can d id ates who are, or may be perceived as being, less corrupt than their 30 Case: 10-13211 Date Filed: 07/30/2010 Page: 31 of 44 nonparticipating peers. As we have explained, in Florida, every candidate for p u b lic office, whether participating or not, is subject to a $500 limit on campaign co n trib u tio n s. Fla. Stat. 106.08(1)(a). And when contributions are so limited, th e Supreme Court has told us that a limit on general campaign expenditures does n o t serve the anticorruption interest. "The major evil associated with rapidly in creasin g campaign expenditures is the danger of candidate dependence on large co n trib u tio n s." Buckley, 424 U.S. at 55, 96 S. Ct. at 652. And "[t]he interest in allev iatin g the corrupting influence of large contributions is served by . . . co n trib u tio n limitations." Id. Indeed, in a state like Florida that aggressively limits cam p aig n contributions, general campaign expenditures, excepting those of selffu n d in g candidates, reflect "the size and intensity of the candidate's support." Id. at 56, 96 S. Ct. at 652. At bottom, the Florida public campaign financing system appears primarily to advantage candidates with little money or who exercise restraint in fundraising. That is, the system levels the electoral playing field, and that purpose is co n stitu tio n ally problematic. Id. at 5657, 96 S. Ct. at 65253. The Supreme C o u rt explained in Davis, "[d]ifferent candidates have different strengths" and "[l]ev elin g electoral opportunities means making and implementing judgments ab o u t which strengths should be permitted to contribute to the outcome of an 31 Case: 10-13211 Date Filed: 07/30/2010 Page: 32 of 44 election." 128 S. Ct. at 277374; see also Buckley, 424 U.S. at 5657, 96 S. Ct. at 6 5 3 ("[T]he equalization of permissible campaign expenditures might serve not to eq u alize the opportunities of all candidates, but to handicap a candidate who lacked su b stan tial name recognition or exposure of his views before the start of the cam p aig n ."). The Supreme Court has explained that a state cannot burden a can d id ate's First Amendment rights for the reason that, in Scott's words, "he is a n ew co m er to the political scene who has the financial resources to mount a cred ib le challenge to entrenched career politicians." None of this is to say that the public financing system of Florida does not b en efit the people of Florida or that public financing generally is not a system w o rth y of public resources. Buckley, 424 U.S. at 9293, 96 S. Ct. at 670 (ex p lain in g that a federal system of public financing of election campaigns rep resen ts a legislative effort "not to abridge, restrict, or censor speech, but rather to use public money to facilitate and enlarge public discussion and participation in th e electoral process, goals vital to a self-governing people" and thereby "furthers . . . pertinent First Amendment values"). In some circumstances, public financing m ay serve an anticorruption interest by "eliminating the improper influence of larg e private contributions." Id. at 96, 96 S. Ct. at 671. It is only to say that F lo rid a, in the light of the election laws it has adopted, cannot impose a "special 32 Case: 10-13211 Date Filed: 07/30/2010 Page: 33 of 44 and potentially significant burden," Davis, 128 S. Ct. at 2772, on the First A m en d m en t rights of nonparticipating candidates who do not wish, for whatever reaso n , to accept public money and its attendant limitations on the theory that its p u b lic financing system reduces actual or apparent corruption. Perhaps the parties, u n d er the supervision of the district court, may want to develop the record more ab o u t this matter. E v en if we were certain that the public financing system of Florida furthers an anticorruption interest, we agree that Scott has proved a likelihood that the ex cess spending subsidy is not the least restrictive means of encouraging that p articip atio n . Scott argues that Florida can effectively encourage participation in "in n u m erab le ways." Scott contends that Florida could provide a larger initial g ran t of public funds to participating candidates, increase the amount of its m atch in g contributions on qualifying fundraising, or institute progressively higher m atch in g ratios for participating candidates who prove able to raise money from co n trib u to rs. Scott also does not object to the provision that releases McCollum fro m the expenditure ceiling that applies to publicly funded candidates after Scott ex ceed s that same ceiling. Although at some point even enticements not tied to p ro tected speech might render a "voluntary" public financing system that includes ex p en d itu re limits compulsory in violation of the First Amendment, e.g., N.C. 33 Case: 10-13211 Date Filed: 07/30/2010 Page: 34 of 44 Right to Life Comm., 524 F.3d at 436, we accept for purposes of this appeal S co tt's concession that Florida could implement these rules. W e agree with Scott that Florida could encourage participation to virtually th e same degree that it maintains it currently does by doing no more than releasing p articip atin g candidates from the expenditure ceiling. This release would place p articip atin g and nonparticipating candidates on equal footing, except that p articip atin g candidates could not spend as much of their own personal resources in support of their campaigns. So the only prospective candidates who would resist participating under this system would be the wealthy, who already have less in cen tiv e to join. Consequently, this system would be no less effective than the system currently in place, but would burden nonparticipating candidates to a lesser d eg ree. Florida has given us no reason to think that this system would be less effectiv e, which is its burden when one of its laws is subject to strict scrutiny under th e First Amendment. E.g., United States v. Playboy Entm't Grp., Inc., 529 U.S. 8 0 3 , 81617, 120 S. Ct. 1878, 188788 (2000). In sum, Davis requires that Florida justify the excess spending subsidy by estab lish in g that it furthers a compelling state interest. Florida has stated that the ex cess spending subsidy furthers its anticorruption interest by encouraging p articip atio n in its public financing system. Florida has not, however, proved that 34 Case: 10-13211 Date Filed: 07/30/2010 Page: 35 of 44 the excess spending subsidy furthers the anticorruption interest in the least restrictiv e manner. Scott is likely to prevail on the merits of his claim. B. Scott's Injury Is Irreparable. S co tt argues that the harm he stands to suffer if we do not grant preliminary relief is "irreparable." Scott contends that when he triggers the excess spending su b sid y, he will speak less than he wants. Moreover, he states that he will direct m o re of his speech through section 527 organizations, which cannot speak u n fettered in favor of his candidacy. The district court credited these claims. Neither the Secretary nor McCollum denies that these harms will accrue if we do n o t enjoin enforcement of the excess spending subsidy. Instead, they argue that S co tt has no right, under the First Amendment, to avoid those harms, but that arg u m en t is about whether Scott is likely to succeed later on the merits. Scott's alleged injury is obviously irreparable. An injury is irreparable "if it can n o t be undone through monetary remedies." Cunningham v. Adams, 808 F.2d 8 1 5 , 821 (11th Cir. 1987). Even when a later money judgment might undue an alleg ed injury, the alleged injury is irreparable if damages would be "difficult or im p o ssib le to calculate." Fla. Businessmen for Free Enter. v. City of Hollywood, 6 4 8 F.2d 956, 958 n.2 (5th Cir. Unit B June 1981). We have repeatedly held that h arm s to speech rights "`for even minimal periods of time, unquestionably 35 Case: 10-13211 Date Filed: 07/30/2010 Page: 36 of 44 constitute[] irreparable injury'" supporting preliminary relief. Id. at 958 (quoting E lro d v. Burns, 427 U.S. 347, 373, 96 S. Ct. 2673, 2690 (1976)); see also KH O u td o o r, LLC v. City of Trussville, 458 F.3d 1261, 127172 (11th Cir. 2006); L et's Help Fla. v. McCrary, 621 F.2d 195, 199 (5th Cir. 1980). "The rationale b eh in d these decisions [is] that chilled free speech . . . , because of [its] intangible n atu re, could not be compensated for by monetary damages; in other words, p lain tiffs could not be made whole." Ne. Fla. Chapter of the Ass'n of Gen. C o n tracto rs of Am. v. City of Jacksonville, Fla., 896 F.2d 1283, 1285 (11th Cir. 1 9 9 0 ). Scott has established irreparable injury. C . Each Candidate Will Suffer if He Loses This Appeal, and a Preliminary In ju n ctio n Would Not Be Adverse to the Public Interest. T h e parties have opposite views of the relative magnitude of the harms lik ely to befall them if we grant or deny preliminary relief. Scott argues that the h arm so far inflicted upon his ability to speak in support of his campaign is "sig n ifican t" and "will only deepen" if we do not enjoin operation of the excess sp en d in g subsidy. Scott argues that the Secretary has no interest in enforcing the su b sid y and that McCollum would not be harmed by an injunction because he w o u ld remain free to fundraise and spend money in support of his candidacy free o f the expenditure cap under which he is currently operating. McCollum responds th at he would be seriously harmed by an injunction because it would "leave him at 36 Case: 10-13211 Date Filed: 07/30/2010 Page: 37 of 44 a severe disadvantage for the crucial homestretch of the campaign and would im p ed e his ability to convey his message to the electorate." The Secretary, for her p art, contends that an injunction would generate chaos in the final weeks of the cam p aig n and disserve the anticorruption interest of the state. McCollum echoes th e concern that an injunction would "thwart the State from running a fair and o rd erly gubernatorial election." The Secretary and McCollum also maintain that w e should consider that Scott could have filed suit to enjoin the excess spending su b sid y at least three months ago and that participating candidates like McCollum h av e developed campaign strategies in reliance on the subsidy, but we doubt that an earlier complaint would have been ripe so as to satisfy the constitutional req u irem en ts of a justiciable controversy. Texas v. United States, 523 U.S. 296, 3 0 0 , 118 S. Ct. 1257, 125960 (1998). Scott replies that his opponents could not reaso n ab ly have relied on the subsidy in the light of the legal cloud that has long su rro u n d ed such laws. No party to this appeal is obviously worse served by a preliminary in ju n ctio n . On this record, we think that each candidate will speak less if he loses th is appeal. Scott will avoid aiding his opponent and McCollum will have less m o n ey to support his campaign. We cannot say that the public has an interest in h earin g more or less from either party. 37 Case: 10-13211 Date Filed: 07/30/2010 Page: 38 of 44 We also cannot say that enjoining the subsidy will disrupt the looming electio n . An injunction would require the Secretary to do nothing and permit Scott an d McCollum to carry on campaigning as they have for the last several months. This appeal is not a case in which preliminary relief would require the state to can cel or reschedule an election, discard ballots already cast, or prepare new b allo ts or other election materials. Cf. Nader v. Keith, 385 F.3d 729 (7th Cir. 2 0 0 4 ); Sw. Voter Registration Educ. Project v. Shelley, 344 F.3d 914 (9th Cir. 2 0 0 3 ) (en banc). The equities similarly do not clearly counsel against or in favor of p relim in ary relief. The district court found that McCollum has not planned his cam p aig n spending in reliance on the subsidy, but has instead spent what he has to av o id falling even farther behind his main opponent. McCollum contends that his affid av it, and the affidavit of his campaign manager, directly contradict that fin d in g . Whether or not this finding is clearly erroneous, it is not inequitable to u p set this reliance. McCollum should have known that the excess spending subsidy was v u ln erab le to legal challenge. On the day that the Supreme Court decided Davis, a lead in g scholar of election law wrote that the decision "calls all [asymmetrical] p ro v isio n s in public financing systems into question." Rick Hasen, Initial 38 Case: 10-13211 Date Filed: 07/30/2010 Page: 39 of 44 Thoughts on FEC v. Davis: The Court Primes the Pump for Striking Down C o rp o rate and Union Campaign Spending Limits and Blows a Hole in Effective P u b lic Financing Plans, Election Law Blog (June 26, 2008, 7:55 AM), h ttp ://electio n law b lo g .o rg /arch iv es/0 1 1 0 9 5 .h tm l (all Internet materials as visited Ju ly 30, 2010, and available in the Clerk of the Court's case file). After Davis and b efo re Scott entered the Florida Republican primary, two federal district courts had d eclared similar state laws unconstitutional. See McComish, slip op. 9139; Green P arty of Conn. v. Garfield, 648 F. Supp. 2d 298 (D. Conn. 2009). We agree with th e district court that if McCollum did not know that he could not comfortably rely o n a subsidy under section 106.355 in the event that an opponent ran an expensive cam p aig n it cannot be said that his reliance was reasonable. M o reo v er, the finding of the district court that Scott did not purposefully d elay filing suit is not clearly erroneous. For the reasons that McCollum should h av e known that the excess spending subsidy was possibly illegal, so should have S co tt. But the record supports a finding that Scott, who had never run a campaign o f any sort in Florida, may not have understood until he began campaigning just h o w expensive the campaign he hoped to run would prove. That Scott also ap p aren tly stated publicly that he would not exceed the Florida expenditure limit is p ro b ab ly a reflection of that inexperience, instead of the result of calculated 39 Case: 10-13211 Date Filed: 07/30/2010 Page: 40 of 44 misdirection. In sum, each candidate stands to suffer if he loses this appeal and it is not o b v io u s who stands to suffer more. The public is similarly harmed to a small d eg ree no matter the outcome, as it is likely to hear less from one or the other can d id ate, but there is no danger of disrupting the looming election. We cannot say that granting preliminary relief would be unfair to McCollum. D . Scott Is Entitled to a Preliminary Injunction. S co tt has persuaded us that he is entitled to preliminary relief. For the reaso n s we have stated, Scott is exceedingly likely to prevail on the merits of his claim that the excess spending subsidy violates the First Amendment. Davis co m p els this conclusion. Moreover, as we have explained, preliminary relief w o u ld not be adverse to the public interest. On this record, because Scott is highly likely to prevail after a full trial on th e merits, we must enjoin the operation of the excess spending subsidy. Courts h av e often treated the likelihood of success on the merits as dispositive where, as h ere, difficult to quantify and apparently similar harms are at issue. 11A Charles A lan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure 2948.3 (2d ed. 1995). "[T]he less certain the district court is of the likelihood of su ccess on the merits, the more plaintiffs must convince the district court that the 40 Case: 10-13211 Date Filed: 07/30/2010 Page: 41 of 44 public interest and balance of hardships tip in their favor." Sw. Voter Registration E d u c. Project, 344 F.3d at 918. We have even treated the merits as influencing our v iew of the relative severity of the harms. Most relevant here, when assessing the sev erity of burdens on speech, we have held that "even a temporary infringement o f First Amendment rights constitutes a serious and substantial injury." KH O u td o o r, 458 F.3d at 1272. Similarly, we have held that the public, when the state is a party asserting harm, has no interest in enforcing an unconstitutional law. See id . ("[T]he city has no legitimate interest in enforcing an unconstitutional o rd in an ce."); Fla. Businessmen for Free Enter., 648 F.2d at 959 ("Given ap p ellan ts' substantial likelihood of success on the merits, however, the harm to th e city from delaying enforcement is slight."). So we are in complete agreement w ith the view of the district court that Scott is entitled to relief if his claim is likely to succeed. Although we appreciate the careful consideration the district court acco rd ed these difficult issues, we disagree with the final step of its reasoning. O n e final point about severance, because the district court raised the issue. The district court suggested that, in the light of its view of the manner in which the ex cess spending subsidy encouraged participation in the public financing system, in v alid atin g the subsidy might also require invalidating the $500 contribution limit. It is not clear whether the district court thought that it might have to strike the 41 Case: 10-13211 Date Filed: 07/30/2010 Page: 42 of 44 contribution limit as it applied to all candidates or only participating candidates. No party, however, suggests that we cannot preliminarily enjoin enforcement of th e excess spending subsidy without also preliminarily enjoining enforcement of o th er provisions of the Act, and Scott argues that consideration of the severance issu e is premature anyway. Consideration of the issue of severance might be premature because we will n o t invalidate--only preliminarily enjoin--the excess subsidy provision, but we h av e no problem concluding that the excess spending subsidy is severable. Florida "clearly favors (where possible) severance of the invalid portions of a law from the v alid ones." Solantic, 410 F.3d at 1269 n.16 (internal quotation marks omitted). Florida employs a well-established four-part test to determine whether severance is ap p ro p riate: (1) the unconstitutional provision can be separated from the remaining v alid provisions; (2) the legislative purpose of the act can be achieved without the in v alid provision; (3) the valid and invalid features are not so inseparable that the leg islatu re could only have wanted them to exist together; and (4) a complete act rem ain s after severance. Women's Emergency Network v. Bush, 323 F.3d 937, 9 4 8 4 9 (11th Cir. 2003). Here, as is "in almost any case," we can easily separate th e excess spending subsidy from the remainder of the Act and the Act remains co m p lete even after severance. Id. at 949. We disagree with the district court that, 42 Case: 10-13211 Date Filed: 07/30/2010 Page: 43 of 44 because the legislature adopted a $500 limit on private contributions when it created the excess spending subsidy, the two provisions are tied so that we could n o t enjoin the operation of only the subsidy. The $500 limit on private co n trib u tio n s is generally applicable so that it burdens all candidates even when n o n e accept public funds. Moreover, we have little trouble concluding that the F lo rid a Legislature would want to sever the subsidy because the Act contains a sev erab ility provision that applies to "any provision of [the] act," 1991 Fla. Sess. L aw Serv. ch. 91-107 36. See Smith v. Dep't of Ins., 507 So. 2d 1080, 1090 (F la. 1987). For the reasons that we concluded that the subsidy was not narrowly tail

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