The Fund For Louisiana's Future v. Louisiana Board of Ethics et al
Filing
38
ORDER & REASONS granting 3 Motion for Preliminary Injunction. Signed by Judge Martin L.C. Feldman on 5/2/2014. (caa)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
THE FUND FOR LOUISIANA'S FUTURE
CIVIL ACTION
v.
NO. 14-0368
LOUISIANA BOARD OF ETHICS, ET AL.
SECTION "F"
ORDER AND REASONS
Before the Court is the plaintiff's motion for preliminary and
permanent injunction.
For the reasons that follow, the motion is
GRANTED.
Background
This litigation arises out of a constitutional challenge to a
Louisiana campaign finance provision of law that limits the amount
of money that may be contributed to, or accepted by, a political
committee, regardless of the committee's independence.
The Fund for Louisiana's Future is a political organization
registered with the Federal Election Commission as a federal
independent expenditure-only committee, commonly referred to as a
"Super PAC", and also registered with the Louisiana Supervisory
Committee on Campaign Finance Disclosure as a state "political
committee."
to
make
FFLF was established by Charles R. Spies, he submits,
independent
expenditures
in
support
of
conservative
candidates in federal, state, and local elections in Louisiana, in
the form of television, radio, print, internet, and telephone
1
advertisements.
Mr. Spies swears that FFLF does not and will not
make contributions to, or coordinated expenditures on behalf of,
candidates
or
political
party
committees;
that
all
decisions
concerning expenditures of FFLF's funds are made independent of any
candidate, campaign, party committee, or their agents.1 FFLF wants
to
solicit
and
accept
contributions
in
amounts
greater
than
$100,000 per person so that it can make independent expenditures to
support Louisiana state and local candidates; it alleges that it
would do so but for Louisiana's statutory prohibition on (and
penalties for) soliciting and accepting such contributions that
exceed $100,000 every four years.2
FFLF filed a complaint for declaratory and injunctive relief
against the Louisiana Board of Ethics and its members:
it seeks
(a) a declaration that the $100,000 contribution limit contained in
La.R.S. 18:1505.2(K) is unconstitutional as applied to committees
like FFLF that engage only in independent expenditures; and (b)
preliminary and permanent injunctions enjoining the defendants from
enforcing La.R.S. 18:1505.2(K) as applied to contributions to
political committees that make only independent expenditures; and
1
FFLF submits Spies' declaration in support of its
allegation that FFLF is an independent expenditure-only committee.
Defendants question FFLF's independence, but in a perfunctory way.
2
FFLF specifies that, in fact, at least one prospective
donor, Donald T. Bollinger, wants to contribute at least $125,000
right now, but he cannot do so in light of Louisiana's contribution
cap.
2
(c) costs and attorneys' fees pursuant to 42 U.S.C. § 1988.
Campaign finance in Louisiana is governed by the Louisiana
Campaign Finance and Disclosure Act, La.R.S. 18:1481, et seq.
La.R.S. 18:1483(a)(i) defines "political committee" as
two or more persons, other than a husband and wife, and
any corporation organized for the primary purpose of
supporting or opposing one or more candidates,
propositions, recalls of a public officer, or political
parties, which accepts contributions in the name of the
committee, or makes expenditures from committee funds or
in the name of the committee, or makes a transfer of
funds to or receives a transfer of funds from another
committee, or receives or makes loans in an aggregate
amount in excess of five hundred dollars within any
calendar year....
A "contribution" means
a gift, conveyance, payment or deposit of money or
anything of value, or the forgiveness of a loan or of a
debt, made for the purpose of supporting, opposing, or
otherwise influencing the nomination or election of a
person to public office, for the purpose of supporting or
opposing a proposition or question submitted to the
voters, or for the purpose of supporting or opposing the
recall of a public officer, whether made before or after
the election.
La.R.S.
18:1483(6)(a).
With
respect
to
expenditures,
La.R.S.
18:1483(6)(b)(i) provides that "expenditures made by any person in
cooperation, consultation or concert, with, or at the request or
suggestion of, a candidate, his authorized political committees, or
their agents ... shall be considered to be a contribution to such
candidate."
La.R.S. 18:1505.2(K), entitled "Contributions; expenditures;
certain prohibitions and limitations", the target of plaintiff's
3
constitutional challenge, provides:
K. (1) During any four year calendar period commencing
January 1, 1991 and every fourth year thereafter, no
person shall contribute more than one hundred thousand
dollars to any political committee or any subsidiary
committee of such political committee, other than the
principal or any subsidiary committee of a candidate.
Such limitation on a contribution shall not apply to any
contribution from a national political committee to an
affiliated regional or state political committee.
(2) During the time period provided for in Paragraph (1)
of this Subsection, no political committee or subsidiary
of such political committee, other than the principal any
subsidiary committee of a candidate, shall accept more
than one hundred thousand dollars from any person.
A violation of the contribution limits carries with it penalties up
to $1,000 per violation.
La.R.S. 18:1505.5(B)(5).
(The Act does
not define "independent expenditure"; nor does the Act exclude from
its
regulations
political
committees
that
do
not
coordinate
expenditures on behalf of candidates or party committees.
Rather,
the campaign finance laws and regulations apply equally to all
political committees, even committees that make only independent
expenditures.)
The Louisiana Board of Ethics for Elected Officials3 acts as
the Supervisory Committee on Campaign Finance Disclosure; it is the
state agency responsible for administrative and enforcement of the
Louisiana Campaign Finance and Disclosure Act. La.R.S. 18:1511.1
provides:
3
The
Board
is
a
constitutionally
mandated
(La.
Constitution, Article X, Section 21) and statutorily created
administrative agency (La.R.S. 42:1132).
4
A.
The Supervisory Committee on Campaign Finance
Disclosure is established.
The Board of Ethics, as
established in R.S. 42:1132, shall function as the
supervisory committee to administer and enforce the
provisions of this Chapter and the rules, regulations,
and orders issued hereunder. The members of the Board of
Ethics shall constitute the supervisory committee.
...
C. The members of the supervisory committee shall be
immune from any civil liability for any official action
taken in the exercise of their functions pursuant to or
in connection with the provisions of this Chapter, except
any wrongful and malicious act or gross negligence.
To enable it to investigate alleged violations effectively and
enforce compliance with the Code's provisions, the Board has the
authority to "hold hearings, to subpoena witnesses, administer
oaths, compel the production of books, records, and papers, public
and private, require the submission under oath of written reports
or answers to questions." La.R.S. 18:1511.4(C)(1). The Board also
has
the
authority
18:1511.2(B).
information
to
render
advisory
opinions.
La.R.S.
And, the Board has the authority to "forward all
concerning
the
alleged
violation
to
the
district
attorney of the judicial district in which the alleged violation
has occurred who shall review such information and make such
investigation and initiate such prosecution as he shall deem
necessary."
La.R.S. 18:1511.6(A).
Driven by La.R.S. 18:1505.2(K)'s contribution limit, FFLF
sought an advisory opinion from the Board pursuant to La.R.S.
42:1134
to
determine
the
extent
to
which
it
could
raise
contributions and make independent expenditures after the U.S.
5
Supreme Court's decision in Citizens United v. Federal Election
Commission, 558 U.S. 310 (2010) and its progeny.
In addressing
FFLF's request at its January 17, 2014 public meeting, the Board
stated its intention to continue to apply and enforce La.R.S.
18:1505.2(K).
opinion
Thereafter, the Board "decline[d] to render an
regarding
the
constitutionality
of
provisions
of
the
Campaign Finance Disclosure Act."
On February 18, 2014 FFLF filed its complaint for declaratory
and injunctive relief in this Court against the Board and its
members in their official capacities, M. Blake Monrose, in his
official capacity as Chair of the Board; Julie E. Blewer, in her
official capacity as Vice Chair of the Board; Terry Backhaus, in
his official capacity as Board member; Charles Emile Bruneau, Jr.,
in his official capacity as Board member; Jean Ingrassia, in her
official capacity as Board member; William J. Larzelere, Jr., in
his official capacity as Board member; Louis Leggio, in his
official capacity as Board member; Steve Lemke, in his official
capacity as Board member; Bob McAnelly, in his official capacity as
Board member; Ashley Kennedy Shelton, in her official capacity as
Board member; and Grove Stafford, in his official capacity as Board
member. FFLF seeks to enjoin the Board defendants' application and
enforcement of La.R.S. 18:1505.2(K), which caps contributions to
political
committees
at
$100,000
every
four
years
and
correspondingly precludes a political committee's acceptance of an
6
amount exceeding the $100,000 cap.
FFLF urges that, as applied to
it, the Code's contribution limit serves no legitimate governmental
interest and is neither narrowly tailored nor closely drawn to
further such an interest.
For this reason, FFLF submits, La.R.S.
18:1505.2(K) violates FFLF's rights to freedom of speech and
freedom of association under the First and Fourteenth Amendments to
the U.S. Constitution.
Advancing a litany of grounds, the defendants moved to dismiss
the plaintiff's complaint for declaratory and injunctive relief
and, alternatively, requested that the Court abstain from deciding
this matter, or transfer it for improper or inconvenient venue. On
April 16, 2014 the Court denied the defendants' motion.
Claiming
an ongoing infringement on its First Amendment right to engage in
protected political speech, the plaintiff now seeks injunctive
relief,
as
an
independent
expenditure-only
committee.4
The
challenged law, the plaintiff contends, as applied, violates the
First
and
Fourteenth
Amendments
to
the
U.S.
Constitution
by
restricting independent political advocacy that, as a matter of
4
The plaintiff filed its request for preliminary
injunctive relief along with its complaint on February 18, 2014.
Thereafter, the Court issued an order advising that it would
simultaneously take up the plaintiff's request for permanent
injunctive relief.
See Order dated March 18, 2014; see also
Fed.R.Civ.P. 65(a)(2)("Before or after beginning the hearing on a
motion for preliminary injunction, the court may advance the trial
on the merits and consolidate it with the hearing...."). Since
then, both sides have had ample opportunity to submit briefing and
supplemental briefing as directed by the Court.
7
law, poses no risk of corruption.
I.
A.
Rule 65 of the Federal Rules of Civil Procedure sets forth the
general procedure applicable to the pursuit of injunctive relief
and orders enjoining offending conduct.
See Fed.R.Civ.P. 65.
The
substantive prerequisites applicable to proving entitlement to
injunctive relief are well-settled in the case literature:
"[A] plaintiff seeking a permanent injunction must
satisfy a four-factor test before a court may grant such
relief. A plaintiff must demonstrate: (1) that it has
suffered an irreparable injury; (2) that remedies
available at law, such as monetary damages, are
inadequate to compensate for that injury; (3) that,
considering the balance of hardships between the
plaintiff and defendant, a remedy in equity is warranted;
and (4) that the public interest would not be disserved
by a permanent injunction." eBay Inc. v. MercExchange,
L.L. C., 547 U.S. 388, 391, 126 S.Ct. 1837, 164 L.Ed.2d
641 (2006).
Monsanto Co. v. Geerston Seed Farms, 561 U.S. 139, ---, 130 S.Ct.
2743, 2756, 177 L.Ed.2d 461 (2010); Winter v. Natural Resources
Defense
Council,
Inc.,
555
U.S.
7,
32
(2008)(citation
omitted)(observing that the standards applicable to requests for
preliminary and permanent injunctive relief "are essentially the
same
...
with
the
exception
that
the
plaintiff
must
show
a
likelihood of success on the merits rather than actual success"
when seeking a preliminary injunction.); ITT Educational Services,
Inc. v. Arce, 533 F.3d 342, 347 (5th Cir. 2008); Dresser-Rand Co.
v. Virtual Automation Inc., 361 F.3d 831, 847 (5th Cir. 2004)("for
8
a permanent injunction to issue the plaintiff must prevail on the
merits
of
his
claim
and
establish
that
equitable
relief
is
appropriate in all other respects").5
"A permanent injunction is generally only granted where ... a
full trial on the merits has occurred."
ITT Educational Services,
Inc. v. Arce, 533 F.3d 342, 347 (5th Cir. 2008)(citing Univ. of Tex.
v. Caminsch, 451 U.S. 390, 396 (1981)), or where the party seeking
injunctive
judgment
relief
as
a
otherwise
matter
of
has
law.
demonstrated
See,
entitlement
e.g.,
to
Fed.R.Civ.P.
65(a)(2)("Before or after beginning the hearing on a motion for
preliminary injunction, the court may advance the trial on the
merits and consolidate it with the hearing...."); O'Connor v.
Smith, 427 Fed.Appx. 359, 365 (5th Cir. 2011)(citations omitted).
In appropriate circumstances, such as the record before the Court,
the Court may grant summary relief on the merits.
B.
Federal Rule of Civil Procedure 56 instructs that summary
judgment is proper if the record discloses no genuine issue as to
any material fact such that the moving party is entitled to
5
This four-factor test applicable to prove entitlement to
a permanent injunction has been alternatively articulated as
requiring that the plaintiff prove: (1) actual success on the
merits, (2) that the failure to grant injunctive relief will result
in irreparable injury, (3) the injury outweighs any damage that the
injunction will cause the opposing party, and (4) the injunction
will not disserve the public interest. See O'Connor v. Smith, 427
Fed.Appx. 359, 365 (5th Cir. 2011)(citations omitted).
9
judgment as a matter of law.
No genuine issue of fact exists if
the record taken as a whole could not lead a rational trier of fact
to find for the non-moving party.
See Matsushita Elec. Indus. Co.
v. Zenith Radio., 475 U.S. 574, 586 (1986).
A genuine issue of
fact exists only "if the evidence is such that a reasonable jury
could return a verdict for the non-moving party."
Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The Court emphasizes that the mere argued existence of a
factual dispute does not defeat an otherwise properly supported
motion.
See
id.
Therefore,
"[i]f
the
evidence
is
merely
colorable, or is not significantly probative," summary judgment is
appropriate.
Id. at 249-50 (citations omitted).
Summary judgment
is also proper if the party opposing the motion fails to establish
an essential element of his case.
477 U.S. 317, 322-23 (1986).
See Celotex Corp. v. Catrett,
In this regard, the non-moving party
must do more than simply deny the allegations raised by the moving
party.
See Donaghey v. Ocean Drilling & Exploration Co., 974 F.2d
646, 649 (5th Cir. 1992).
Rather, he must come forward with
competent evidence, such as affidavits or depositions, to buttress
his claims.
Id.
Hearsay evidence and unsworn documents that
cannot be presented in a form that would be admissible in evidence
at trial do not qualify as competent opposing evidence.
Martin v.
John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir.
1987); Fed.R.Civ.P. 56(c)(2).
Finally, in evaluating summary
10
judgment, the Court must read the facts in the light most favorable
to the non-moving party.
Anderson, 477 U.S. at 255.
II.
A. Campaign Finance Regulation: General Principles
The First Amendment to the United States Constitution declares
that "Congress shall make no law ... abridging the freedom of
speech."
U.S. CONST. amend. I.
"Speech is an essential mechanism
of democracy," the U.S. Supreme Court has observed, "for it is the
means to hold officials accountable to the people."
United v. FEC, 558 U.S. 310, 339 (2010).
Citizens
Notably, "[t]he First
Amendment 'has its fullest and most urgent application' to speech
uttered during a campaign for political office." See id. at 339-40
(citation and quotation omitted); see also Buckley v. Valeo, 424
U.S. 1, 14 (1976)(per curiam)("Discussion of public issues and
debate on the qualifications of candidates are integral to the
operation
of
Constitution").
the
system
Thus,
in
of
government
the
context
established
of
political
by
our
speech,
statutory "contribution and expenditure limitations operate in an
area of the most fundamental First Amendment activities." Buckley,
424 U.S. at 14, 19 ("A restriction on the amount of money a person
or group can spend on political communication ... 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.").
11
Given its value, "political speech must prevail against laws
that
would
suppress
it,
whether
Citizens United, 558 U.S. at 340.
by
design
or
inadvertence."
Generally, "[l]aws that burden
political speech are 'subject to strict scrutiny,' which requires
the
[g]overnment
to
prove
that
the
restriction
'furthers
a
compelling interest and is narrowly tailored to achieve that
See id. (citation omitted).
interest.'"
State
limits
"the
amount
that
any
By contrast, where a
one
person
or
group
may
contribute [directly] to a candidate or political committee," the
State's burden is slightly lighter: it need only show that the
restriction is "closely drawn" to serve a "sufficiently important
interest." See Buckley, 424 U.S. at 25; see also Arizona Free
Enter. Club's Freedom Club PAC v. Bennett, 546 U.S. ---, 131 S.Ct.
2806, 2817 (2011)(noting that a lower level of scrutiny, requiring
that the restriction at issue be "closely drawn" to serve a
"sufficiently
important
interest",
has
been
applied
in
some
circumstances, including limits on contributions to candidates;
caps on coordinated party expenditures; and requirements that
political funding sources disclose their identities).
The High Court recently has reminded us that the prevention of
quid pro quo corruption is the only relevant governmental interest
that can potentially justify restrictions on political speech.
McCutcheon
v.
(2014)(observing
FEC,
that
572
U.S.
"while
---,
134
preventing
12
S.Ct.
1434,
corruption
or
1450
its
appearance is a legitimate objective, Congress may target only a
specific type of corruption–'quid pro quo' corruption", and noting
that Congress may permissibly limit the appearance of corruption in
the context of contributions to particular candidates); Citizens
United, 558 U.S. at 359 ("When Buckley identified a sufficiently
important governmental interest in preventing corruption or the
appearance of corruption, that interest was limited to quid pro quo
corruption"); Republican Party of New Mexico v. King, 741 F.3d
1089,
1096-97
(10th
Cir.
2013)("Citizens
United
resolved
a
longstanding debate over whether other governmental interests could
support restrictions on campaign financing ... but the Court
repudiated them all").
Significantly, for the purpose of the
present constitutional challenge, "independent expenditures...do
not give rise to corruption or the appearance of corruption."
Citizens United, 558 U.S. at 357. Citizens United defines a matter
of law.
This is so "because spending without 'prearrangement and
coordination'
with
a
candidate
'alleviates
the
danger
that
expenditures will be given a quid pro quo for improper commitments
from the candidate.'"
Texans for Free Enter. v. Texas Ethics
Comm'n, 732 F.3d 535, 537 (5th Cir. 2013)(quoting Citizens United,
558 U.S. at 357 (citing Buckley, 424 U.S. at 47)).
Where a State enforces restrictions in the political speech
context, the critical distinction to be made, then, is whether
money is given to or spent in coordination with candidates, or
13
whether the campaign spending is independent of candidates.
A
State may only restrict contributions to candidates in conformance
with
the
First
contributions
Amendment
will
lead
because
to
quid
of
quo
the
pro
risk
that
corruption.
such
But
independent expenditures present not even a marginal risk of
corruption; by their very nature, in law, they present no hazard of
corruption and, thus, the State's restrictions on uncoordinated,
independent political speech cannot pass constitutional muster. In
Citizens United v. FEC, a corporation challenged a federal election
code ban on independent expenditures (in the form of a publiclydistributed
broadcast
or
satellite
communications)
made
by
corporations when the expenditures advocated for or against a
candidate close in time to an election.
Citizens United had
produced a documentary film highly critical of then-Senator Hillary
Clinton, who was contesting for President during the Democratic
primaries; it challenged the FECA ban. The Supreme Court overruled
Austin v. Mich. Chamber of Commerce, 494 U.S. 652 (1990), in which
a plurality of the Court had found a compelling government interest
in preventing corporations from "unfairly influencing elections";
the High Court struck down the offending provision, and held that
restricting
independent
expenditures
merely
because
of
the
corporate identity of the speaker was incompatible with the First
Amendment.
Id. at 365.
"Limits on independent expenditures ...
have a chilling effect well beyond the [g]overnment's interest in
14
preventing quid pro quo corruption."
Id. at 357.
"[I]ndependent
expenditures...do not give rise to corruption or the appearance of
corruption" because "[b]y definition," independent expenditures are
"political
speech
presented
to
coordinated with a candidate."
the
electorate
that
is
not
Id. at 345, 357, 360 (citation
omitted)(the touchstone is the "absence of prearrangement and
coordination [that] alleviates the danger that expenditures will be
given
as
a
quid
candidate.").
independent
broken,"
In
pro
quo
the
expenditures
thereby
for
real
improper
world
"[t]he
"negat[ing]
of
commitments
campaign
finance,
candidate-funding
the
from
possibility
the
with
circuit
that
is
[the]
expenditures will result in the sort of quid pro quo corruption
with which our case law is concerned."
See Arizona Free Enter.
Club's Freedom Club PAC v. Bennett, 131 S.Ct. 2806, 2826-27
(2011)(citation omitted).
Endorsing the Supreme Court's pronouncement that independent
expenditures, as a matter of law, do not give rise to corruption,
seven U.S. Courts of Appeals, including the Fifth Circuit, and a
number of U.S. District Courts have taken Citizens United one step
further in the face of challenges to the constitutional legitimacy
of
limits
on
contributions
to
independent
expenditure-only
organizations; those courts have universally agreed that such
limits do not withstand First Amendment scrutiny.
See, e.g.,
Republican Party of New Mexico v. King, 741 F.3d 1089, 1096-97 (10th
15
Cir. 2013); New York Progress and Protection PAC v. Walsh, 733 F.3d
483, 487 (2d Cir. 2013); Texans for Free Enterprise v. Texas Ethics
Comm'n, 732 F.3d 535, 537-38 (5th Cir. 2013); Wis. Right to Life
State Political Action Comm. v. Barland, 664 F.3d 139, 154 (7th Cir.
2011); Thalheimer v. Ciity of San Diego, 645 F.3d 1109, 1121 (9th
Cir. 2011); Long Beach Area Chamber of Commerce v. City of Long
Beach, 603 F.3d
392 (2010);
684, 696 (9th Cir. 2010), cert. denied, 131 S.Ct.
SpeechNow.org v. FEC, 599 F.3d 686, 694-96 (D.C. Cir.
2010)(en banc), cert. denied, Keating v. FEC, 131 S.Ct. 553 (2010);
N.C. Right to Life, Inc. v. Leake, 525 F.3d 274, 292-93 (4th Cir.
2008)(pre-Citizens United); New York Progress and Protection PAC v.
Walsh, No. 13-6769, 2014 WL 1541781, at *2-4 (S.D. N.Y. Apr. 24,
2014)(enjoining defendants from applying and enforcing contribution
limits provision of New York election law against the plaintiff
independent committee and its individual donors, and noting that
the Second Circuit in Walsh, 733 F.3d at 487 n.1, in reversing the
court's previous denial of preliminary injunctive relief, "clearly
directed the [c]ourt to strike down the limit on contributions to
independent PACs"); Vt. Right to Life Comm., Inc. v. Sorrell, 875
F. Supp. 2d 376, 403-04 (D. Vt. 2012); Yamanda v. Weaver, 872 F.
Supp. 2d 1023, 1042-43 (D. Haw. 2012); Lair v. Murry, 871 F. Supp.
2d 1058, 1068 (D. Mont. 2012); Personal PAC v. McGuffage, 858 F.
Supp. 2d 963, 968-69 (N.D. Ill. 2012); Stay the Course W.Va. v.
Tennant, No. 12-1658, 2012 WL 3263623, at *6 (S.D. W.Va. Aug. 9,
16
2012).
Citizens United, Texans for Free Enterprise, and these
other, persuasive authorities inform and govern the outcome of this
case.
B.
Mindful of the standards of review and the general principles
just outlined, the Court turns to determine whether FFLF has
carried its burden of showing entitlement to permanent injunctive
relief.
1.
Actual Success on the Merits
Assuming
that
FFLF
is
an
independent
expenditure-only
committee, regardless of which level of scrutiny applies, La.R.S.
18:1505.2(K)'s contribution limit as applied to it violates the
First Amendment.6
Defendants' contrary arguments wholly fail.7
6
As the Court previously observed when
defendants' dispositive motion:
it denied the
Notably, the defendants do not dispute that
truly
independent
expenditure
committees
qualify for a free speech safe harbor such
that, assuming FFLF proves its allegations
that it is an independent expenditure-only
committee, Louisiana's prohibitory limit on
contributions to such independent committees
cannot withstand First Amendment scrutiny.
See, e.g., Citizens United v. FEC, 558 U.S.
310, 357 (2010)("independent expenditures...do
not give rise to corruption or the appearance
of corruption"); Ariz. Free Enter. Club's
Freedom Club PAC v. Bennett, 131 S.Ct. 2806,
2826-27 (2011)(noting that, with independent
expenditures, "[t]he candidate-funding circuit
is
broken,"
thereby
"negat[ing]
the
possibility that [the] expenditures will
result in the sort of quid pro quo corruption
17
with which our case law is concerned"); see
also SpeechNow.org v. FEC, 599 F.3d 686,
(D.C.Cir.
2010)(holding
that
provision
limiting contributions by individuals to
political
committees
that
made
only
independent expenditures violated the First
Amendment).
See Order and Reasons 4/16/14; see also New York Progress and
Protection PAC v. Walsh, No. 13-6769, 2014 WL 1541781, at *3 (S.D.
N.Y. Apr. 24, 2014)("[o]nce it is determined that [plaintiff] is an
independent expenditure-only organization, there is little left for
the [c]ourt to do....").
7
"Few contested legal questions are answered so
consistently by so many courts and judges." New York Progress and
Protection PAC v. Walsh, 733 F.3d 483, 488 (2d Cir. 2013).
Remarking, similarly, "[w]e tread a well-worn path", the Fifth
Circuit observed that:
every federal court that has considered the
implications of Citizens United on independent
groups like [Texans for Free Enterprise] has
been in agreement: There is no difference in
principle–-at least where the only asserted
state interest is in preventing apparent or
actual
corruption–-between
banning
an
organization such as [plaintiff] from engaging
in advocacy and banning it from seeking funds
to engage in that advocacy....
Texans for Free Enterprise v. Texas Ethics Comm'n, 732 F.3d 535,
In Texans for Free Enterprise, the Fifth
537-38 (5th Cir. 2013).
Circuit affirmed the grant of preliminary injunctive relief
enjoining the Texas Ethics Commission from enforcing a Texas
election code provision that banned "unauthorized contributions",
regardless of whether the relevant political committee makes only
direct campaign expenditures (as opposed to making direct
contributions to candidates). In so doing, the Fifth Circuit noted
that the case was "one step removed from Citizens United" in that
"[i]nstead of banning Citizens United from producing its movie, the
Texas code provisions would instead have forbidden Citizens United
from giving money to another political group so that that group
would produce and distribute the film ... and the statute would
have prohibited Citizens United from accepting donations from other
corporations so that Citizens United could produce the film during
18
"By definition," independent expenditures are "political speech
presented
to
the
electorate
that
is
not
coordinated
with
a
candidate" and, therefore, the State lacks any interest (anticorruption
or
otherwise)
independent expenditures.
360.
in
restricting
contributions
for
See Citizens United, 558 U.S. at 357,
Donors have an absolute, unfettered First Amendment interest
in contributing money to be used for independent purposes in
politics, and the State simply has no legitimate interest in
restricting such contributions.
694-95.
In
short,
See SpeechNow.org., 599 F.3d at
independent
expenditure
committees
are
sacrosanct under the First Amendment.
The
State
defends
its
law
as
applied
to
FFLF
on
anti-
circumvention grounds and on the ground that FFLF is a "singlecandidate" committee.
But FFLF's request for injunctive relief
rests
submission
solely
on
expenditure-only
contributions
to
its
committee:
groups
that
FFLF
whose
it
is
concedes
expenditures
an
independent
that
are
limits
on
coordinated,
directly or indirectly with political candidates or their agents
could certainly withstand First Amendment scrutiny.
In support of
its promise that it is an independent political committee, FFLF
submits a sworn, and quite specific, declaration of its founder,
the election season." Id. (emphasis in original). Defendants'
attempts to distinguish the case literature on this point is
impotent at best.
19
Charles Spies; he declares:
...
2. I am the Treasurer of the Fund for Louisiana's
Future ("FFLF").
3.
FFLF is an independent expenditure-only
political action committee that is registered with the
Louisiana Committee on Campaign Finance Disclosure (the
"Supervisory
Committee")
as
a
state
"political
committee."
It discloses its contributions and
expenditures with the Supervisory Committee.
Its
principal place of business is 6048 Marshall Foch Street,
New Orleans, LA 70124.
4.
FFLF was established to make independent
expenditures in support of conservative candidates in
federal, state and local elections in Louisiana,
primarily in the form of television, radio, print,
internet and telephone advertisements. FFLF's only
expenditures to influence elections in Louisiana are and
will be independent of any candidate or candidates.
5. FFLF does not and will not make contributions
to, or coordinated expenditures on behalf of, candidates
or political party committees.
6. FFLF's independent expenditures are not and will
not be made in cooperation, consultation, or concert,
with, or at the request or suggestion of, any candidates,
their authorized political committees, or their agents.
All decisions concerning the expenditure of FFLF's funds
are made independent of any candidate, campaign, party
committee, or their agents.
7. FFLF was established by me. I am an experienced
attorney specializing in political law, I have worked at
the Federal Election Commission, and have over a decade
of experience advising corporations, trade associations,
candidates, campaigns, political parties, and independent
expenditure-only groups, like FFLF. For example, during
the 2012 Presidential election, I was the founder and
treasurer of the largest Super PAC in history, Restore
Our Future, Inc., which supported the candidacy of Mitt
Romney. Restore Our Future, Inc. did not coordinate any
of its expenditures with Mitt Romney or his campaign. As
a result of my experiences, I am acquainted with numerous
individuals and business entities who regularly make
large contributions to support political advocacy.
8. FFLF was not established, financed, maintained,
or controlled by a political committee authorized by any
political candidate for office.
9.
FFLF currently plans to run independent
20
expenditure advertisements, primarily in the form of
television, radio, print, internet and telephone
advertisements, in Louisiana's 2014 and/or 2015 local and
state elections. These expenditures will not be made in
cooperation, consultation, or concert, with, or at the
request or suggestion of, any candidates, their
authorized political committees, or their agents.
10. As Treasurer, I am responsible for decisions
made by FFLF regarding the use of funds for independent
expenditures. In fulfilling my duties as Treasurer of
FFLF, I will not consult or coordinate with any candidate
or campaign regarding FFLF's independent expenditures.
11. FFLF does not, and will not, use any portion of
the funds it raises for either direct contributions to or
direct expenditures on behalf of any political candidate,
campaign, or party, or their agents or authorized
political committees.
12.
FFLF solicits and receives contributions
directly from individuals, corporations and other
organizations.
FFLF collects and maintains its own
accounting
records
reflecting
contributions
and
expenditures, which are independent of any other
organization.
13. FFLF is not, and never has been, an authorized
committee of any political candidate, campaign, or party,
and does not coordinate the development of its
advertisements or otherwise coordinate its spending with
any candidate.
14.
But for La.R.S. 18:1505.2(K), FFLF would
solicit
and
accept
unlimited
contributions
from
individuals.
FFLF has identified individuals who it
believes are willing to contribute more than $100,000 to
FFLF but for La.R.S. 18:1505.2(K).
15.
I corresponded with Donald T. Bollinger on
February 11, 2014. Mr. Bollinger stated that he would
contribute $125,000 to FFLF to make independent
expenditures in support of conservative Louisiana
candidates if La.R.S. 18:1505.2(K) were enjoined.
16. Based on my experience and discussions with
other potential donors, I am confident that, if La.R.S.
18:1505.2(K) were enjoined, FFLF would receive donations
in excess of $100,000 from multiple other donors as well.
17. FFLF is refraining from accepting these and
other contributions because of the civil and criminal
penalties imposed for violations of the Louisiana
election laws.
21
In light of these uncontroverted facts, the "candidate-funding
circuit", FFLF argues, is "broken" twice over: the donor (such as
Mr. Bollinger) gives money to an independent intermediary (here,
FFLF), who then spends the money independently of any candidate.
See Arizona Free Enter. Club's Freedom Club PAC v. Bennett, 131
S.Ct. 2806, 2826-27 (2011).
The Spies affidavit defines the very
essence of the independent expenditure committee.
The defendants ineffectively counter that Spies admitted in an
appearance before the Board that FFLF supports David Vitter and
that the media has reported that FFLF is a Super PAC set up to
support the Senator and his 2015 gubernatorial quest.
defendants
offer
no
competing
evidence
in
support
But the
of
their
contention that FFLF coordinates with Senator Vitter; nor has there
been an effort to discover from FFLF or other sources to advance
the inquiry on this central question.8
8
The defendants appear to suggest that a political
committee cannot be considered independent if it was formed or acts
to advance a particular candidate.
Defendants' logic is
unrealistic. The Second Circuit rejected outright the district
court's observation that "so-called independent expenditure-only
committees that have only one purpose–advancing a single candidacy
at a single point in time–are not truly independent as a matter of
law"; "[n]ot so", the Second Circuit observed, reasoning instead
that it is the "'absence of prearrangement and coordination' with
a candidate [that] are the hallmarks of committee independence."
New York Progress and Protection PAC, 733 F.3d at 488 n.3 (citing
Citizens United and Buckley). Thus, "[a]n independent committee's
choice to advocate on behalf of a single candidate, and its
formation after that candidate is nominated, are irrelevant." Id.
With respect to the Federal Election Campaign Act, the Supreme
Court noted recently:
22
The record does not disclose any coordination with Senator
Vitter or any other specific candidate or campaign.
Thus, the
record discloses no genuine dispute as to the material fact
respecting FFLF's independence and compels the conclusion that
injunctive relief is summarily appropriate. Given the overwhelming
legal authority supporting FFLF's position and the fact that it has
demonstrated that it is indeed an independent Super PAC, FFLF has
shown entitlement to judgment as a matter of law and it, therefore,
has succeeded on the merits of its First Amendment challenge.9
Why
injunctive relief?
A PAC is a business, labor, or interest group
that raises or spends money in connection with
a federal election, in some cases by
contributing to candidates.
A so-called
"Super PAC" is a PAC that makes only
independent expenditures and cannot contribute
to candidates. The base and aggregate limits
govern contributions to traditional PACs, but
not to independent expenditure PACs.
See
SpeechNow.org. v. Fed. Election Comm'n, 599
F.3d 686, 695-96 (D.C. Cir. 2010)(en banc).
The Court
McCutcheon v. FEC, 134 S.Ct. 1434, 1442 n.2 (2014).
hastens to note that something with more gravitas than press
reports might have been of more assistance to the credibility of
defendants' submissions on the matter of independence. Moreover,
whether or not Mr. Spies told the Board he was for Senator Vitter
is not fatal to "independence." Nothing in the statute prohibits
the support of only one candidate.
9
It has been observed in the context of requests for
preliminary injunctive relief that, in the face of a First
Amendment challenge, "the likelihood of success on the merits is
the dominant, if not dispositive factor" driving entitlement to
relief. See New York Progress and Protection PAC, 733 F.3d at 488
(citing Joelner v. Vill. of Wash. Park, 378 F.3d 613, 620 (7th Cir.
2004)).
23
2. Irreparable Injury Absent Injunction
FFLF contends that, absent injunctive relief, FFLF and its
prospective donors face the dilemma of either engaging in political
advocacy to the fullest by accepting donations in excess of the
contribution limit and thereby risking enforcement proceedings and
penalties, or complying with the statutory limit, thus selfcensoring and chilling their own speech for fear of enforcement
proceedings.
With the continuing threat of penalties, FFLF is
denied the ability to solicit and accept funds that it would use
for political speech; as such, the defendants are preventing it
from engaging in political advocacy during the 2014 and 2015 state
and local Louisiana elections.
suffering
irreparable
harm
FFLF has demonstrated that it is
for
which
monetary
damages
are
inadequate.
"Placing
limits
on
contributions
which
in
turn
expenditures plainly impairs freedom of expression."
limit
Citizens
Against Rent Control v. City of Berkeley, 454 U.S. 290, 299 (1981).
It is well-settled that "[t]he loss of First Amendment freedoms,
for
even
minimal
periods
irreparable injury."
of
time,
unquestionably
constitutes
Elrod v. Burns, 427 U.S. 347, 373 (1976).
FFLF's "ability to speak is undoubtedly limited when it cannot
raise money to pay for speech."
F.3d at 539.
See Texans for Free Enter., 732
The relief FFLF seeks would fill the gap that exists
in the state campaign finance law, which pre-dates Citizens United
24
and its progeny and does not define, or exclude from the law's
reach,
independent
expenditure-only
committees.
FFLF
has
established irreparable injury that cannot be compensated with
post-election relief or after-the-fact money damages.
3.
Balance of Hardships
FFLF has demonstrated significant and irreparable injury to
its free speech rights, whereas the defendants have failed to point
to any credible harm they would suffer as a result of the issuance
of an injunction.
Indeed, the balance of harms clearly favors the
plaintiff, whose speech has been and continues to be reduced by
virtue of the threat of enforcement of La.R.S. 18:1505.2(K).
The
State simply "does not have an interest in the enforcement of an
unconstitutional law."
ACLU v. Ashcroft, 322 F.3d 240, 247 (3d
Cir. 2003); New York Progress and Protection PAC, 733 F.3d at 488
(citation omitted).
4.
The Public Interest
"[I]njunctions protecting First Amendment freedoms are always
in the public interest."
Texans for Free Enterprise, 732 F.3d at
539 (citing Christian Legal Soc'y v. Walker, 453 F.3d 853, 859 (7th
Cir. 2006)). The defendants speculate without facts that the State
has an interest in preventing circumvention and corruption.
But
the
the
overwhelming
authority
defendants' arguments.
FFLF
has
carried
already
outlined
condemns
See id.
its
burden
25
to
prove
entitlement
to
a
permanent injunction, as well as entitlement to a declaration that
La.R.S. 18:1505.2(K) is unconstitutional as applied to it, so long
as it engages only in independent expenditures.
The Court hereby
declares that, as applied to FFLF, an independent expenditure-only
committee, the contribution limit contained in La.R.S. 18:1505.2(K)
is
unconstitutional.
Accordingly,
IT
IS
ORDERED:
that
the
plaintiff's request for injunctive relief is GRANTED; Defendants
and their officers, agents, servants, employees, or assigns are
hereby permanently enjoined, or until further order of this Court,
from
enforcing
the
contribution
limit
contained
in
La.
R.S.
18:1505.2(K), as well as any applicable rules and regulations
regarding that provision, against FFLF and its donors, so long as
FFLF is an independent expenditure only committee.
The issue of
costs and fees, if an issue, will be referred to the magistrate
judge for resolution.10
New Orleans, Louisiana, May 2, 2014
______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE
10
Counsel for plaintiff shall submit a form of injunction
and judgment within five working days.
26
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