Greg McNeilly v. Terri Land

Filing

OPINION and JUDGMENT filed: The judgment of the district court is AFFIRMED. Decision for publication pursuant to local rule 206. Boyce F. Martin , Jr. and Julia Smith Gibbons, Circuit Judges; George C. Steeh (AUTHORING), U.S. District Judge for the Eastern District of Michigan, sitting by designation.

Case: 10-2244

Document: 006111357070

Filed: 07/03/2012

Page: 1

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 12a0205p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
No. 10-2244
v.
>
,
TERRI LYNN LAND,
Defendant-Appellee. N
Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
No. 10-00612—Janet T. Neff, District Judge.

GREG MCNEILLY,

Plaintiff-Appellant,

Argued: November 15, 2011
Decided and Filed: July 3, 2012
Before: MARTIN and GIBBONS, Circuit Judges; STEEH, District Judge.*
_________________
COUNSEL
ARGUED: Matthew G. Davis, WITTE LAW OFFICES, Lansing, Michigan, for
Appellant. Ann M. Sherman, OFFICE OF THE MICHIGAN ATTORNEY GENERAL,
Lansing, Michigan, for Appellee. ON BRIEF: Matthew G. Davis, WITTE LAW
OFFICES, Lansing, Michigan, for Appellant. Ann M. Sherman, OFFICE OF THE
MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellee.
_________________
OPINION
_________________
STEEH, District Judge. Plaintiff-Appellee Greg McNeilly appeals the district
court’s denial of his request for a preliminary injunction enjoining Defendant-Appellant
Terri Lynn Land, in her official capacity as Michigan Secretary of State, from enforcing

*

The Honorable George Caram Steeh, United States District Judge for the Eastern District of
Michigan, sitting by designation.

1

Case: 10-2244

No. 10-2244

Document: 006111357070

Filed: 07/03/2012

Page: 2

McNeilly v. Land

Page 2

the individual contribution limits for contributions to state House and Senate candidates
as set forth in Michigan Compiled Laws (MCL) § 169.252(1). Because the district court
accurately found that the established factors in this case mitigate against a preliminary
injunction, its decision is AFFIRMED.
I.
On June 28, 2010, McNeilly filed an action in the U.S. District Court for the
Western District of Michigan challenging the constitutionality of MCL § 169.252(1),
which sets limits on individual campaign contributions. MCL § 169.252(1) provides:
Except as provided in subsection (5) or (11) and subject to subsection
(8), a person other than an independent committee or a political party
committee shall not make contributions to a candidate committee of a
candidate for elective office that, with respect to an election cycle, are
more than the following:
***
(b) $1,000.00 for a candidate for state senator, or for a candidate for local
elective office if the district from which he or she is seeking office has
a population of more than 85,000 but 250,000 or less.
(c) $500.00 for a candidate for state representative, or for a candidate for
local elective office if the district from which he or she is seeking office
has a population of 85,000 or less.
The original act, 1976 PA 388, imposed limits of $250 per state House primary election,
$250 per state House election, $450 per state Senate primary election, and $450 per state
Senate general election. The current statute regulates contributions per “election cycle,”
rather than election.

MCL § 169.211(2) provides: “‘Person’ means a business,

individual, proprietorship, firm, partnership, joint venture, syndicate, business trust,
labor organization, company, corporation, association, committee, or any other
organization or group of persons acting jointly.” MCL § 169.252(9) provides criminal
penalties of $1,000 and up to 90 days in jail for violations of the statute by an individual.
MCL § 169.209(2) defines “[i]ndependent expenditure” as “an expenditure by a person
if the expenditure is not made at the direction of, or under the control of, another person
and if the expenditure is not a contribution to a committee.”

Case: 10-2244

No. 10-2244

Document: 006111357070

Filed: 07/03/2012

McNeilly v. Land

Page: 3

Page 3

McNeilly attests that he wished to make contributions to the candidate
committees of individuals running for state House and state Senate in Michigan in 2010
in excess of the limits imposed by MCL § 169.252(1) for an individual. He attests that
he wished to make such contributions for the purpose of helping candidates amass the
resources necessary to mount effective challenges in their respective campaigns. He also
attests that he feared prosecution for making contributions in excess of the limits in
place.
In his action, McNeilly claims the contribution limits violate his rights of
political association and political expression under the First Amendment to the United
States Constitution. He requests preliminary and permanent injunctive relief and a
declaratory judgment.

His injunctive relief claim seeks an injunction enjoining

Michigan Secretary of State Terri Lynn Land from enforcing MCL § 169.252(1).
On the same day he filed the action, McNeilly filed a motion for preliminary
injunction and sought expedited consideration. In his motion, McNeilly requested a
preliminary injunction preventing Land from enforcing the contribution limits imposed
by MCL § 169.252(1), under which individuals seeking to contribute to political
campaigns are limited to $500 per state House candidate committee and $1,000 per state
Senate candidate committee. The motion was fully briefed. The district court denied
McNeilly’s request for expedited consideration and set a hearing date. In the days
before the hearing, both sides filed supplemental documents.
On August 30, 2010, the district court held a hearing on McNeilly’s motion for
preliminary injunction. At the hearing, McNeilly argued Michigan’s contribution limits
are unconstitutional under the framework established in Randall v. Sorrell, 548 U.S. 230
(2006) (plurality). McNeilly acknowledged a state interest in preventing genuine quid
pro quo corruption but argued the limits are unconstitutional because: (1) they are not
indexed to inflation; (2) they “fall below the Vermont limits, when looked at especially
in terms of real dollars”; (3) “the volunteer services are also a drag on the ability of one
to associate with a candidate of his choice” (which appears to be a reference to limits on
money spent in connection with volunteer activities); and (4) “these factors combined

Case: 10-2244

No. 10-2244

Document: 006111357070

McNeilly v. Land

Filed: 07/03/2012

Page: 4

Page 4

to prohibit challengers from making viable challenges to incumbents.” With respect to
irreparable harm, McNeilly argued that, although the August 3, 2010 primary had
passed, even a momentary deprivation of a First Amendment right constitutes irreparable
harm. With respect to the balancing of the harms, McNeilly acknowledged that if a
preliminary injunction issued there would be a “gap” of time in which no contribution
limits were in place. McNeilly argued it was “possible” the legislature would enact new
limits before the November 2010 election.
At the hearing, Land argued a preliminary injunction would harm the public
because it was still election season. Land noted the statute and its limits “have been in
place for decades” yet McNeilly waited until “four and a half weeks from the May date
for filing for candidacy” to file the action. Land emphasized the “balancing of harms”
and pointed out the requested preliminary injunction would “leave the state with no
limits whatsoever within just months of the general election.” Land argued contribution
limits are important to avoid not only corruption but the appearance of corruption. Land
also argued the public would “suffer both in terms of their turnout at the polls and in
terms of an orderly administration of the election season here.” Land noted McNeilly
had not shown that “any contribution has yet been made in any amount to a state
representative or a senate candidate.” Land also argued the Michigan contribution limits
are not unreasonably low, noting the limits in Randall were $200 and $300, respectively.
Land argued the statute must be read as a whole and the court should consider the fact
that individuals may make unlimited “coordinated independent expenditures” in favor
of a candidate. The statute also allows for larger contributions from the parties than the
statute at issue in Randall.
In rebuttal argument at the hearing, McNeilly disputed Land’s interpretation of
“coordinated independent expenditures” and argued that the statute is void for vagueness
or the functional equivalent of prior restraint.
After argument from both sides, the court denied the motion on the record and
entered an order reflecting its decision. The court noted that granting “preliminary
injunctive relief is extraordinary” and analyzed the four factors considered in a

Case: 10-2244

No. 10-2244

Document: 006111357070

McNeilly v. Land

Filed: 07/03/2012

Page: 5

Page 5

preliminary injunction request. In weighing three of the preliminary injunction factors,
the court recognized that there was no showing of irreparable harm to McNeilly while
there would be significant harm to defendant and the public if a preliminary injunction
issued. As to the final factor, likelihood of success, the court found the factor did not
favor either side. The court noted it was a “very complex issue” and found Randall
distinguishable for a number of reasons. The court stated “the only hard evidence in this
case thus far is that the statutory limits are not indexed to inflation.” The court found
this small showing did not lead to the conclusion that McNeilly has a strong likelihood
of success on the merits. The court noted the absence of empirical evidence to determine
the effect of Michigan’s individual contribution limits on the power to mount a
campaign. Thus, the court concluded that the factors weighed in defendant’s favor and
denied McNeilly’s request for a preliminary injunction.
II.
A district court’s denial of a request for preliminary injunction is reviewed for
an abuse of discretion. Jones v. City of Monroe, 341 F.3d 474, 476 (6th Cir. 2003).
“The district court's determination will be disturbed only if the district court relied upon
clearly erroneous findings of fact, improperly applied the governing law, or used an
erroneous legal standard...Under this standard, we must review the district court’s legal
conclusions de novo and its factual findings for clear error.” Id. (internal citations
omitted). “Moreover, the standard of review that this court must apply to the district
court’s findings on a preliminary injunction motion is highly deferential.” Leary v.
Daeschner, 228 F.3d 729, 739 (6th Cir. 2000).
III.
In evaluating a request for a preliminary injunction, a district court should
consider: (1) the movant’s likelihood of success on the merits; (2) whether the movant
will suffer irreparable injury without a preliminary injunction; (3) whether issuance of
a preliminary injunction would cause substantial harm to others; and (4) whether the
public interest would be served by issuance of a preliminary injunction.
American Imaging Services, Inc. v. Eagle-Picher Indus., Inc. (In re Eagle-Picher Indus.,

Case: 10-2244

No. 10-2244

Document: 006111357070

McNeilly v. Land

Filed: 07/03/2012

Page: 6

Page 6

Inc.), 963 F.2d 855, 858 (6th Cir. 1992). “[T]he four considerations applicable to
preliminary injunctions are factors to be balanced and not prerequisites that must be
satisfied.” Id. at 859. “These factors simply guide the discretion of the court; they are
not meant to be rigid and unbending requirements.” Id. “[T]he proof required for the
plaintiff to obtain a preliminary injunction is much more stringent than the proof
required to survive a summary judgment motion” because a preliminary injunction is an
extraordinary remedy. Leary, 228 F.3d at 739. The party seeking the preliminary
injunction bears the burden of justifying such relief, including showing irreparable harm
and likelihood of success. Granny Goose Foods, Inc. v. Teamsters, 415 U.S. 423, 441
(1974).
McNeilly makes four arguments: (1) that the district court abused its discretion
when it failed to place the burden on the state to show the contribution limits are
constitutional and thus erred in its consideration of likelihood of success on the merits;
(2) that the district court committed error by failing to apply the principle that even a
temporary deprivation of a protected right constitutes irreparable harm and by placing
the burden on plaintiff to show irreparable harm; (3) that the balance of interests favors
granting the preliminary injunction because there are no concerns of genuine quid pro
quo corruption; and (4) that the public’s interest will be served if the court grants a
preliminary injunction, because it will allow a greater amount of debate on public policy
issues in the upcoming primary. While McNeilly makes all of these arguments, the bulk
of his argument is centered on likelihood of success.
A.
Likelihood of Success
In Buckley v. Valeo, 424 U.S. 1 (1976), the Supreme Court considered the
constitutionality of a number of provisions contained in the Federal Election Campaign
Act of 1971. The Court noted that “[t]he Act’s contribution and expenditure limitations
operate in an area of the most fundamental First Amendment activities,” involving rights
of political association and political expression. Id. at 14. The Court found in “contrast

Case: 10-2244

No. 10-2244

Document: 006111357070

Filed: 07/03/2012

McNeilly v. Land

Page: 7

Page 7

with a limitation upon expenditures for political expression, a limitation upon the
amount that any one person or group may contribute to a candidate or political
committee entails only a marginal restriction upon the contributor’s ability to engage in
free communication.” Id. at 20. This is so because a “limitation on the amount of
money a person may give to a candidate or campaign organization . . . permits the
symbolic expression of support evidenced by a contribution but does not in any way
infringe the contributor’s freedom to discuss candidates and issues.”

Id. at 21.

However, “[g]iven the important role of contributions in financing political campaigns,
contribution restrictions could have a severe impact on political dialogue if the
limitations prevented candidates and political committees from amassing the resources
necessary for effective advocacy.” Id. at 21. Contribution limits also implicate
associational freedoms because “[m]aking a contribution, like joining a political party,
serves to affiliate a person with a candidate.” Id. at 22.
Under Buckley, with regard to contribution limits, “[e]ven a significant
interference with protected rights of political association may be sustained if the State
demonstrates a sufficiently important interest and employs means closely drawn to avoid
unnecessary abridgment of associational freedoms.” Id. at 25 (internal quotations
omitted). In Buckley, the Supreme Court found it unnecessary to look beyond the
government’s purpose of limiting “the actuality and appearance of corruption resulting
from large individual financial contributions in order to find a constitutionally sufficient
justification for the $1,000 contribution limitation.” Id. at 26. “To the extent that large
contributions are given to secure a political quid pro quo from current and potential
office holders, the integrity of our system of representative democracy is undermined.”
Id. at 26-27.

“Of almost equal concern as the danger of actual quid pro quo

arrangements is the impact of the appearance of corruption stemming from public
awareness of the opportunities for abuse inherent in a regime of large individual
financial contributions.” Id. at 27. The Court therefore found that the interests served
by the individual contribution limit were sufficient to justify the effect on First
Amendment rights. Id. at 29. The Court upheld the individual contribution limit as
constitutional.

Case: 10-2244

No. 10-2244

Document: 006111357070

Filed: 07/03/2012

Page: 8

McNeilly v. Land

Page 8

With regard to expenditure limits, the Court in Buckley noted that 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. at 19. Thus, limits on independent expenditures “impose far greater restraints on the
freedom of speech and association than” contribution limits. Id. at 44. As a result, limits
on personal expenditures are subjected to strict scrutiny. Id. at 44-45. The Court found
that “independent advocacy . . . does not presently appear to pose dangers of real or
apparent corruption comparable to those identified with large campaign contributions.”
Id. at 46. The Court explained:
Unlike contributions, such independent expenditures may well provide
little assistance to the candidate’s campaign and indeed may prove
counterproductive. The absence of prearrangement and coordination of
an expenditure with the candidate or his agent not only undermines the
value of the expenditure to the candidate, but also alleviates the danger
that expenditures will be given as a quid pro quo for improper
commitments from the candidate.
Id. at 47. The Court thus concluded the limit on independent expenditures “fails to serve
any substantial government interest in stemming the reality or appearance of corruption
in the electoral process” and “heavily burdens core First Amendment expression.”
Id. at 47-48.
In his briefs, McNeilly refers to the standards for both contribution limits and for
independent expenditures. However, Land asserts the issue of expenditures is not
properly raised in this appeal. Following Land’s argument that the issue is not properly
before this court, it appears McNeilly dropped his argument that the definition of
independent expenditure is unclear and therefore Michigan’s statutory scheme is void
for vagueness or a prior restraint on speech. The claim before the district court at the
time of the preliminary injunction hearing was McNeilly’s claim that Michigan’s
individual contribution limits violate his rights of political association and political
expression under the First Amendment. It was only after the district court’s denial of
McNeilly’s motion for a preliminary injunction that McNeilly filed a First Amended

Case: 10-2244

No. 10-2244

Document: 006111357070

McNeilly v. Land

Filed: 07/03/2012

Page: 9

Page 9

Complaint adding two claims challenging Michigan’s provisions regarding independent
expenditures. McNeilly’s arguments concerning independent expenditures thus will not
be considered here.
On the issue of Michigan’s individual contribution limits, McNeilly argues the
contribution limits are not closely drawn to achieve a sufficiently important state
interest. In Randall, the Supreme Court examined the constitutionality of Vermont’s
limits on individual contributions. Applying Buckley, a plurality of the Court stated it
must determine whether Vermont’s limits “prevent candidates from ‘amassing the
resources necessary for effective [campaign] advocacy.’” Randall, 548 U.S. at 248
(quoting Buckley, 424 U.S. at 21). The plurality stated: “We cannot determine with any
degree of exactitude the precise restriction necessary to carry out the statute’s legitimate
objectives. In practice, the legislature is better equipped to make such empirical
judgments, as legislators have ‘particular expertise’ in matters related to the costs and
nature of running for office.” Id. (citing McConnell v. FEC, 540 U.S. 93, 137 (2003),
overruled in part on other grounds in Citizens United v. FEC, __ U.S. __, 130 S. Ct.
876, 913 (2010)). Yet, the plurality recognized “the existence of some lower bound.”
Id.
In Randall, the individual contribution limits at issue were $200 for a candidate
for state representative and $300 for a candidate for state senate per election cycle.
Id. at 238. The same limits applied to a political committee and to a political party. Id.
A plurality of the Court found these limits “sufficiently low as to generate suspicion that
they are not closely drawn.” Id. at 249. The plurality noted that, “considered as a whole,
Vermont’s contribution limits are the lowest in the Nation.” Id. at 250. Because the
limits were “substantially lower than both the limits we have previously upheld and
comparable limits in other States,” the plurality determined it “must examine the record
independently and carefully to determine whether [the statute’s] contribution limits are
‘closely drawn’ to match the State’s interests.” Id. at 253. The plurality considered the
following five factors in determining the statute was not closely drawn: (1) whether the
“contribution limits will significantly restrict the amount of funding available for

Case: 10-2244

No. 10-2244

Document: 006111357070

McNeilly v. Land

Filed: 07/03/2012

Page: 10

Page 10

challengers to run competitive campaigns”; (2) whether there is a statutory requirement
“that political parties abide by exactly the same low contribution limits that apply to
other contributors”; (3) whether expenses incurred volunteering are included in
contribution limit amounts; (4) whether the contribution limits were adjusted for
inflation; and (5) whether the state has a special justification for low and restrictive
limits (such as corruption). Id. at 253-261.
On the first Randall factor, McNeilly argues the limits are preventing challengers
from running effective campaigns. McNeilly cites an article entitled “No Contest in
Michigan, How Money and Incumbency Reduced Competitiveness in 2004," which was
published April 26, 2006, in support of his argument. The article states “due to the
state’s contribution limits, no single donor had a major impact on any given race.”
However, in discussing the top 10 business and special interest donors, the article also
states “although no committee alone could give enough to influence the outcome of any
given race, together the top donors packed quite a punch.” The article also found that
the House Republican Campaign Committee and the Michigan House Democratic Fund
were the two largest contributors to legislative campaigns and that the money from these
parties “had a direct impact on the outcome of several races.” McNeilly notes that “the
Court in Randall determined that the plaintiffs in that case did not need to conclusively
prove that Vermont’s contribution limits restricted challengers – only that the record
suggest as much.” In Randall, the Court stated “the record suggests, though it does not
conclusively prove, that Act 64’s contribution limits will significantly restrict the amount
of funding available for challengers to run competitive campaigns.” 548 U.S. at 253.
The plurality found the evidence presented by the plaintiff raised an inference that the
contribution limits were so low as to pose an obstacle to candidates in competitive
campaigns, and that this evidence was unrebutted. Id. at 256. In Randall, the parties
introduced expert testimony on contributions and specifically on the way contributions
from political parties influence competitive races. Id. at 254. The same quality or
quantity of evidence is not present in this case. In addition, Michigan does not have the
same limitations on political party contributions that were discussed by the experts in
Randall. Land cites a more general but recent study suggesting low contribution limits

Case: 10-2244

No. 10-2244

Document: 006111357070

Filed: 07/03/2012

McNeilly v. Land

Page: 11

Page 11

actually enhance competitiveness in elections. Land also argues that the 1989 revision
to Michigan’s statute, which changed limits from election to election cycle, allows more
flexibility for the contributor and candidate to decide at what time, and in which election,
the money is best spent strategically. The record before this panel does not suggest that
Michigan’s contribution limits significantly restrict the funding for challengers to run
competitive campaigns.
On the second Randall factor, McNeilly admits Michigan’s statute does not
provide that political parties abide by the exact same contribution limits that apply to
individual contributors. At the hearing on the motion for preliminary injunction,
McNeilly admitted “one particular facet here that is not at issue is the contribution limits
imposed in Randall in Vermont on political parties. And in Michigan, political parties
are able to give I’m almost sure it’s 20 times the contribution limit of a person.” This
factor thus does not suggest that Michigan’s contribution limits are unconstitutional.
On the third Randall factor, the statute’s treatment of volunteer services,
McNeilly argues Michigan’s limits on volunteer contributions are nearly identical to the
limits imposed by Vermont in Randall. However, MCL § 169.204(C)(3) excludes, from
the definition of contribution, up to $500 in travel expenses incurred volunteering and
$100 in food and beverage donations. These exclusions were not present in Randall, and
the importance of such exclusions was emphasized in Randall:
But the Act does not exclude the expenses those volunteers incur, such
as travel expenses, in the course of campaign activities . . . unlike the
Federal Government’s treatment of comparable requirements, the State
has not (insofar as we are aware) created an exception excluding such
expenses . . . . The absence of some such exception may matter in the
present context, where contribution limits are very low.
548 U.S. at 259-60. Given the statute’s exception for a certain amount of volunteerrelated expenses, this factor does not suggest Michigan’s contribution limits are
unconstitutional.
On the fourth Randall factor, McNeilly states Michigan’s contribution limits are
not indexed to inflation. McNeilly appears most focused on this factor, arguing that the

Case: 10-2244

No. 10-2244

Document: 006111357070

McNeilly v. Land

Filed: 07/03/2012

Page: 12

Page 12

“real dollar amounts” of the contribution limits have declined by almost 75 percent over
time as the limits “haven’t been substantially adjusted for more than 34 years.”
In Randall, the Supreme Court stated “[a] failure to index limits means that limits which
are already suspiciously low . . . will almost inevitably become too low over time.”
548 U.S. at 261. McNeilly disagrees with Land’s statement that “the limits should be
evaluated on their face, not in relation to their value in 1976”, arguing such a position
ignores Randall. However, McNeilly ignores a significant phrase in Randall – the
failure to index becomes particularly significant for contribution limits “which are
already suspiciously low.” Id. at 261 (emphasis added). Thus, Land’s argument about
the present amount of contribution limits, without reference to whether they have been
indexed, is relevant. Land cites a 2010 state limits survey showing that Michigan’s
contribution levels are not the lowest in the nation. The survey shows that, as of January
20, 2010, Arizona allows $410 per election cycle for legislative candidates, Delaware
allows $600 per election cycle for legislative candidates, Colorado allows $200 per
legislative candidate per election, and Maine allows $250 per senate candidate per
election. After the survey was published, Montana raised its limit to $250 per legislative
candidate per election. Land also notes that Michigan’s limit for House races is more
than double the limit in Randall and for Senate races is more than triple the limit in
Randall. Michigan’s contribution limits rank lower than average overall, and this factor,
at best, may weigh slightly in favor of McNeilly.
On the fifth Randall factor, McNeilly argues “individual donors to state
legislative races raise no concern about genuine quid pro quo corruption because the
state does not create laws to inure to the benefit of just one person.” McNeilly argues
“[b]ecause Defendant cannot demonstrate that any Michigan statute exists as a result of
contributions for votes, this Court should determine that Plaintiff has a substantial
likelihood of prevailing on the merits.” McNeilly cites a Detroit Free Press article
suggesting Manuel Moroun’s political contributions did not ensure his business interests
as owner of the Ambassador Bridge to Canada were protected by those politicians. Land
notes the article is not conclusive as: a) Moroun may not be representative of Michigan
contributors since he gave to both Republicans and Democrats; b) the bridge project is

Case: 10-2244

No. 10-2244

Document: 006111357070

McNeilly v. Land

Filed: 07/03/2012

Page: 13

Page 13

not necessarily representative of a contributor’s ability to sway politicians on other
issues; and c) the size of Moroun’s individual contributions have thus far been limited
by Michigan’s statute, the very limits at issue in this case. Moreover, Land notes the
Supreme Court’s decisions articulating the importance of contribution limits in
preventing quid pro quo corruption and the appearance of quid pro quo corruption. In
Buckley, the Court found sufficient justification for contribution limits having the
“purpose to limit the actuality and appearance of corruption resulting from large
individual financial contributions.” 424 U.S. at 26. In Nixon v. Shrink Missouri
Government PAC, 528 U.S. 377, 389 (2000), the Supreme Court interpreted Buckley as
recognizing “the broader threat from politicians too compliant with the wishes of large
contributors.” Thus, Land argues, Michigan need not demonstrate a history of actual
corruption to have an interest in preventing the appearance of quid pro quo corruption.
McNeilly argues Citizens United, 130 S. Ct. at 910, changed the way potential
corruption is considered in determining that “[i]ngratiation and access . . . are not
corruption.” However, while the Supreme Court in Citizens United held that the
government has no anti-corruption interest in limiting independent expenditures, it left
intact the government’s interest in limiting individual contributions in order to prevent
quid pro quo corruption or the appearance of such corruption. Id. at 909. This factor
therefore does not suggest Michigan’s contribution limits are unconstitutional.
In evaluating the five factors set forth in Randall, McNeilly has not shown a
likelihood of success on the merits of his claim that Michigan’s individual contribution
limits are unconstitutional. The district court found:
[T]he Randall opinion is distinguishable for a number of reasons, and I
think that if you look at prior case law which almost uniformly upholds
individual contribution limits, and then you have Randall which is kind
of a mixed bag, I don’t think you can take anything from Randall that
gives the plaintiff a strong argument that it has a significant, that he has
a significant likelihood of success on the merits.
The district court decided that, while McNeilly may ultimately prevail on the merits,
sufficient evidence was not presented regarding the contribution limits to show a
likelihood of success on the merits under controlling precedent. The district court

Case: 10-2244

No. 10-2244

Document: 006111357070

Filed: 07/03/2012

McNeilly v. Land

Page: 14

Page 14

emphasized the importance of showing the effect of contribution limits on the power to
mount an effective campaign and noted the lack of evidence on such point, as the “only
hard evidence” presented by McNeilly at this early point in the case was the lack of
indexing of the contribution limits. The district court carefully considered the proper
factors and found that the lack of indexing over time, by itself, did not get McNeilly to
a likelihood of success on the merits. The district court did not err in its consideration
of McNeilly’s likelihood of success.
B.
Irreparable Harm to Movant
Second, McNeilly argues the district court committed error by failing to apply
the principle that even a temporary deprivation of a protected right constitutes
irreparable harm and by placing the burden on plaintiff to show irreparable harm. In
Elrod v. Burns, 427 U.S. 347, 373-74 (1976), the case relied upon by
McNeilly,“respondents sufficiently demonstrated a probability of success on the merits”
and “injury was both threatened and occurring at the time of respondents’ motion”; it
was “clear therefore that First Amendment interests were either threatened or in fact
being impaired at the time relief was sought.” Once a probability of success on the
merits was shown, irreparable harm followed. The Elrod Court found that “[t]he loss
of First Amendment freedoms, for even minimal periods of time, unquestionably
constitutes irreparable injury.” Id. at 373. McNeilly argues the district court erred by
not applying this principle. However, it is clear from the hearing transcript that the
district court did not find irreparable harm because it did not find a probability of success
on the First Amendment claim. The district court found: “I do not believe that the
plaintiff has shown that he will suffer irreparable harm to important rights. I think
there’s been no showing that his First Amendment rights have been or will be abridged
beyond constitutional limits.” Because McNeilly does not have a likelihood of success
on the merits, as discussed above, his argument that he is irreparably harmed by the
deprivation of his First Amendment rights also fails.

Case: 10-2244

No. 10-2244

Document: 006111357070

Filed: 07/03/2012

McNeilly v. Land

Page: 15

Page 15

C.
Substantial Harm to Others
Third, McNeilly argues the balance of interests favors granting the preliminary
injunction because there are no concerns of genuine quid pro quo corruption. McNeilly
argues “there is no empirical data to show that the existing limits are preventing any
corruption” and that “the current levels have become arbitrary with the passage of time.”
McNeilly argues that he is currently prohibited from making the contributions he wishes
to make and that an injunction allowing those contributions would not cause Michigan
to be suddenly overwhelmed by corruption. The balancing of the harms, he argues,
therefore favors an injunction. However, the balancing of harms is squarely within the
discretion of the district court. As noted by the district court, a preliminary injunction
enjoining enforcement of the statute would leave Michigan without limits on individual
contributions:
I think everybody agrees that if preliminary injunction issued in this case,
there would essentially be no limits on individual contributions. I do not
think that I have as much discretion – as a United States District Judge,
I don’t think I have the discretion to set substitute limits, and, in fact, the
plaintiff hasn’t suggested any basis for or any amounts for substitute
limits to what are expressed in the statute.
Land argues that enjoining the enforcement of contribution limits would invite the very
corruption that contribution limits are designed to prevent; also such an injunction would
interfere with Land’s ability to run an orderly election. In light of these considerations,
and less than three months before Michigan’s November general elections, the district
court did not err in concluding “there will be significant harm to the defendant upon the
issuance of a preliminary injunction.”
D.
Public Interest
Fourth, McNeilly argues the public’s interest will be served if the court grants
a preliminary injunction, because it will allow a greater amount of debate on public

Case: 10-2244

No. 10-2244

Document: 006111357070

Filed: 07/03/2012

McNeilly v. Land

Page: 16

Page 16

policy issues in the upcoming primary. McNeilly argues “[a]llowing more money to
flow from individual donors to candidate committees will naturally entail the type of
speech our courts recognize as the ‘precondition to enlightened self-government.’”
However, Land argues the lack of limits would open the door to quid pro quo corruption
or the appearance of it, which could discourage voters from participating in the elections.
Land argues that without a finding that the statutory provision at issue is
unconstitutional, the public interest cannot be served by an injunction leaving no
individual contribution limits in place. Given the failure to show a substantial likelihood
of success on the merits of McNeilly’s claim that the contribution limits are
unconstitutional, the district court’s conclusion that “the [adverse] effect on the public
and the public interest” from enjoining the enforcement of the statute less than three
months before the general election “would be very significant” is also proper.
IV.
In conclusion, the district court did not abuse its discretion in denying
McNeilly’s motion for preliminary injunction. The district court carefully considered
all of the preliminary injunction factors and concluded the factors weighed in Land’s
favor because McNeilly did not demonstrate the need for such extraordinary relief.
McNeilly does not have a substantial likelihood of success on the merits and thus failed
to show irreparable harm while Land showed significant harm to the public from the
issuance of a preliminary injunction. For these reasons, the decision of the district court
is AFFIRMED.