Stay the Course West Virginia, et al v. Tennant, et al
Filing
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MEMORANDUM OPINION AND ORDER granting the Plaintiffs' 15 MOTION for Preliminary Injunction. A separate Preliminary Injunction Order will enter this day implementing the ruling contained in this opinion. Signed by Judge Thomas E. Johnston on 8/9/2012. (cc: attys; any unrepresented party) (arb)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
BLUEFILED DIVISION
STAY THE COURSE
WEST VIRGINIA, et al.,
Plaintiffs,
v.
CIVIL ACTION NO. 1:12-cv-01658
NATALIE E. TENNANT, et al.
Defendants.
MEMORANDUM OPINION AND ORDER
Pending before the Court are the following motions filed by Plaintiffs Stay the Course
West Virginia, Pineville Lumber, Inc., David Bailey, and Thomas Stephen Bailey (“Plaintiffs”):
(1) Motion for Class Certification [Docket 3]; (2) Motion for Preliminary Injunction [Docket 15];
and (3) Motion for Expedited Consideration of Class Certification Motion [Docket 18]. For the
reasons stated below, the Motion for Preliminary Injunction [Docket 15] is GRANTED. The
Court finds it unnecessary to rule on the motion for class certification at this time, finding that
injunctive relief will adequately protect the interests of the plaintiffs at this juncture of the case.
I. FACTUAL BACKGROUND & PROCEDURAL HISTORY
Plaintiffs in this case are: (1) Stay the Course West Virginia (“STCWV”), an independent
expenditure political action committee (“PAC”) that is not affiliated with any candidate for office
or political party; (2) David Bailey, the chairman and treasurer of STCWV; (3) Pineville Lumber,
Inc., a West Virginia corporation seeking to contribute money to STCWV; and (4) Thomas
Stephen Bailey, an individual seeking to contribute money to STCWV. (Docket 1 at 3-4.)
Defendants are West Virginia Secretary of State Natalie Tennant and Mercer County Prosecuting
Attorney Scott Ash, named “as a representative of the class of all West Virginia Prosecuting
Attorneys.” (Id. at 1, 4.) Plaintiffs have requested that the prosecuting attorneys for West
Virginia be certified as a defendant class pursuant to Rule 23 of the Federal Rules of Civil
Procedure.
(Docket 3.)
The Court finds it unnecessary to rule on the motion for class
certification at this time, finding that injunctive relief directed to the named Defendants will
adequately protect the interests of Plaintiffs at this juncture of the case. See West Virginians for
Life, Inc. v. Smith, 919 F. Supp. 954, 955-56 (S.D. W. Va. 1996) (reaching same conclusion).
STCWV was organized with the sole purpose of soliciting and receiving contributions to
make independent expenditures with respect to the 2012 general election cycle. (Docket 1 at 4.)
Under West Virginia’s election code, an “independent expenditure” is any expenditure
“[e]xpressly advocating the election or defeat of a clearly identified candidate . . . not made in
concert or cooperation with or at the request or suggestion of such candidate, his or her agents, the
candidates authorized political committee or a political party committee or its agents.” W. Va.
Code § 3-8-1a(15). STCWV has as its goal to support business-friendly incumbent candidates for
statewide office and to oppose challenger-candidates. (Docket 1 at 4; Docket 1-2 at 8.) STCWV
is not affiliated with any candidate, political party, or candidate or party committee; it is an
independent PAC seeking to promote its own agenda. Pineville Lumber is a West Virginia
corporation seeking to contribute $5,000 to STCWV. (Docket 1 at 3.) Thomas Bailey is a West
Virginia resident seeking to contribute $1,200 to STCWV. (Id.) David Bailey is the chairman of
STCWV, and he wishes to solicit contributions in excess of $1,000. (Id.) The President of
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Pineville Lumber and both Baileys have submitted affidavits indicating their desire to engage in
this activity but expressing their concern that such actions would subject them to criminal penalties
under West Virginia law. (Docket 1-2 at 7-14.) Currently, the election code imposes criminal
penalties for either: (1) making a contribution in excess of $1,000 “in connection with or on behalf
of any person engaged in furthering, advancing, supporting or aiding the nomination or election of
any candidate for any of the offices,” W. Va. Code § 3-8-12(f); or (2) accepting, as a PAC,
“contributions totaling more than $1,000 from any one person prior to the primary election and
contributions totaling more than $1,000 from any one person after the primary and before the
general election,” § 3-8-12(g).
According to Plaintiffs, in the wake of Citizens United v. FEC, 599 U.S. ___, 130 S. Ct.
876 (2010), West Virginia’s $1,000 contribution limit is unconstitutional as applied to
independent expenditure PACs, such as STCWV. (Docket 16 at 6-8.) Their rationale is that
Citizens United held that no government interest sufficiently justifies limitations on corporate or
PAC independent expenditures, so there can be no government interest sufficient to limit
contributions to independent expenditure PACs, either. (Id.) Secretary Tennant responds that
there is indeed an anti-corruption interest at play in West Virginia’s election code, and she argues
that such interest is sufficient to uphold the contribution limit as applied to independent
expenditure PACs such as STCWV. (Docket 21 at 5-7.) Notably, Secretary Tennant dedicates a
large portion of her response brief to a recitation of the circumstances under which the Supreme
Court heard and decided Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009).
In the complaint, Plaintiffs challenge several provisions of West Virginia law, making
three overall arguments.
First, Plaintiffs challenge West Virginia Code of State Rules §§
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146-1-3.1, 146-1-3.2, and 146-1-6.2 as in conflict with West Virginia Code § 3-8-8(a) & (b). The
statute prohibits corporate contributions to “any candidate or candidate’s campaign,” but the
regulations purport to prohibit corporations from making “a[ny] contribution or expenditure . . .
whatsoever in connection with” a campaign. Obviously, the regulations reach a broader swath of
political speech, and Plaintiffs challenge them as inconsistent with statute and constitutional law.
In her answer, Secretary Tennant admits that to the extent the regulations conflict with Code §
3-8-8, the statute controls and the regulations are unenforceable. (Docket 11 at 6.) The first
challenge is therefore moot.
Second, Plaintiffs challenge a manual issued by Secretary Tennant, entitled “2012 Running
for Office in West Virginia,” as violating West Virginia Code § 3-8-2(b). The statute permits
independent expenditures by corporations for the purpose of expressly advocating the election or
defeat of a candidate for political office. However, the manual is at odds with the statute, stating
that corporations may not make direct expenditures to support or oppose candidates for statewide
office. In her answer to Plaintiffs’ complaint, Secretary Tennant states that the manual is
“provided as information for the public and not intended as [a] statement[ ] of policy.” (Docket
11 at 4.) The second challenge is therefore moot.
Finally, Plaintiffs challenge several subsections of West Virginia Code § 3-8-12, as well as
§ 146-3-5.2 of the Code of State Rules, all of which prohibit individuals (and corporations by
virtue of the election code’s definitions) from contributing more than $1,000 to PACs and PACs
from accepting such contributions in excess of $1,000. Specifically, the challenged statute
provides as follows:
(f) Except as provided in section eight of this article, a person may not, directly or
indirectly, make any contribution in excess of the value of $1,000 in connection
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with any campaign for nomination or election to or on behalf of any statewide
office, in connection with any other campaign for nomination or election to or on
behalf of any other elective office in the state or any of its subdivisions, or in
connection with or on behalf of any person engaged in furthering, advancing,
supporting or aiding the nomination or election of any candidate for any of the
offices.
(g) A political organization (as defined in Section 527(e)(1) of the Internal
Revenue Code of 1986) [PAC] may not solicit or accept contributions until it has
notified the Secretary of State of its existence and of the purposes for which it was
formed. During the two-year election cycle, a [PAC] may not accept contributions
totaling more than $1,000 from any one person prior to the primary election and
contributions totaling more than $1,000 from any one person after the primary and
before the general election.
....
(n) Any person violating any provision of this section is guilty of a misdemeanor
and, upon conviction thereof, shall be fined not more than $1,000, or confined in
jail for not more than one year, or, both fined and confined.
....
(p) The limitations on contributions established by subsection (g) of this section
do not apply to contributions made for the purpose of supporting or opposing a
ballot issue, including a constitutional amendment.
W. Va. Code § 3-8-12 (emphasis added).
Although Plaintiffs will ultimately seek a declaratory judgment from this Court, they
currently seek only a preliminary injunction to preclude the enforcement of § 3-8-12. Plaintiffs
and Secretary Tennant appeared before the Court by counsel on August 1, 2012, to argue the
pending motions. (Docket 24.)
II. PRELIMINARY INJUNCTION STANDARD
A preliminary injunction is an extraordinary remedy never awarded as of right. In each
case, the Court must balance the competing claims of injury and consider the effect of granting or
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withholding the requested relief, paying particular regard to the public consequences.
Weinberger v. Romero-Barcelo, 456 U. S. 305 (1982).
“A plaintiff seeking a preliminary injunction must establish [1] that he is likely to succeed
on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3]
that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.”
Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008) (citing Munaf v. Geren, 553 U.S.
674, 689-90 (2008)). The plaintiff must demonstrate a likelihood of irreparable harm without a
preliminary injunction; a mere possibility of harm will not suffice.
Id. at 21.
And “[i]n
exercising their sound discretion, courts of equity should pay particular regard for the public
consequences in employing the extraordinary remedy of injunction.” Romero-Barcelo, 456 U. S.
at 312.
Regarding likelihood of success, prior law in the Fourth Circuit was that there is a
“‘flexible interplay’ among all the factors considered . . . for all four [factors] are intertwined and
each affects in degree all the others.” Blackwelder Furniture Co. of Statesville v. Seilig Mfg. Co.,
550 F.2d 189, 196 (4th Cir. 1977) (citations omitted). Accordingly, plaintiffs were not strictly
required to demonstrate likelihood of success on the merits; rather, “it [was] enough that grave or
serious questions on the merits are presented.” Id. But in the wake of the Supreme Court
decision in Winter v. NRDC, the Blackwelder balancing approach “may no longer be applied in
granting or denying preliminary injunctions in the Fourth Circuit.” Real Truth About Obama, Inc.
v. FEC, 575 F.3d 342, 347 (4th Cir. 2009) (RTAO I), vacated on other grounds, 130 S. Ct. 2371
(2010) and adhered to in part sub nom. Real Truth About Obama, Inc. v. FEC, 607 F.3d 355 (4th
Cir. 2010) (RTAO II). Instead, the Fourth Circuit has held that a party seeking the preliminary
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injunction must demonstrate by “a clear showing that it is likely to succeed at trial on the merits.”
RTAO I, 575 F.3d at 351. The Fourth Circuit has not expressly required that a movant prove
success on the merits is “more likely than not” in order to meet the requirement of a clear showing,
but the new requirement “is far stricter than the Blackwelder requirement that the plaintiff
demonstrate only a grave or serious question for litigation.” Id. at 345-46.
III. DISCUSSION
A.
Likelihood of Success on the Merits
Plaintiffs argue that they are likely to succeed in their as-applied First Amendment
challenge to West Virginia Code § 3-8-12 because a logical extension of Citizens United prohibits
any limitation on monetary contributions to independent expenditure PACs. (Docket 16 at 5-7.)
Secretary Tennant responds that West Virginia’s contribution limit withstands constitutional
scrutiny in this case as a valid effort by the Legislature to combat corruption and the appearance of
corruption in statewide elections. (Docket 21 at 2-5.)
Since Buckley v. Valeo, the Supreme Court has distinguished between restrictions on
political contributions and restrictions on expenditures for political speech. 424 U.S. 1, 15
(1976).
Although limitations on campaign contributions “operate in an area of the most
fundamental First Amendment activities,” they generally entail “only a marginal restriction upon
the contributor’s ability to engage in free communication.” Id. at 15, 20. Consequently, courts
considering the validity of contribution limitations should apply “closely drawn scrutiny,” which
asks whether the law is “closely drawn” to match a “sufficiently important government interest.”
Randall v. Sorrell, 548 U.S. 230, 247 (2006) (citing Buckley, 424 U.S. at 25). Although the
Buckley Court upheld the contribution limitations at issue in that case, it recognized that
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“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.” 424 U.S. at 24.
To determine whether West Virginia’s contribution limitation survives “closely drawn
scrutiny,” the Court first endeavors to identify a “sufficiently important government interest” at
play in the statute. In Citizens United, the Supreme Court determined that there exists only one
government interest sufficiently important to outweigh the First Amendment interests implicated
by contributions for political speech: preventing corruption or the appearance of corruption. See
130 S. Ct. at 904-08, 911 (considering and rejecting other asserted government interests); see also
Davis v. FEC, 554 U.S. 724, 740-41 & n.7 (2008) (rejecting so-called “anti-distortion rationale”).
And the Citizens United Court, although dealing with expenditures rather than contributions,
squarely held that the government has no anti-corruption interest in limiting independent
expenditures. Id. at 909-10. Specifically, the Court rejected a provision of the Bipartisan
Campaign Reform Act of 2002 that made it unlawful for any corporation or union to use general
treasury funds to make independent expenditures or expenditures for “electioneering
communications,” which are defined as political ads airing shortly before a general or primary
election. Id. at 897, 911. The Supreme Court declared the expenditure ban unconstitutional,
holding “that corporations may not be prohibited from spending money for express political
advocacy when those expenditures are independent from candidates and uncoordinated with their
campaigns.” SpeechNow.org v. FEC, 599 F.3d 686, 693 (D.C. Cir. 2010) (summarizing Citizens
United decision). In no uncertain terms, the Citizens United Court stated: “[W]e now conclude
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that independent expenditures, including those made by corporations, do not give rise to
corruption or the appearance of corruption.” 130 S. Ct. at 909.
From this holding, the D.C. Circuit, since joined by the Seventh and Ninth Circuits, has
held that “because Citizens United holds that independent expenditures do not corrupt or give the
appearance of corruption as a matter of law, then the government can have no anti-corruption
interest in limiting contributions to independent expenditure-only organizations. . . . [T]he limits
on contributions to [independent expenditure PACs] cannot stand.” SpeechNow, 599 F.3d at 696;
see also Wis. Right to Life State PAC v. Barland, 664 F.3d 139, 154 (7th Cir. 2011) (“[A]s a matter
of law and logic, Wisconsin’s . . . contribution limit is unconstitutional as applied to . . .
[independent expenditure PACs]. This is true even though the statute limits contributions, not
expenditures. Whether strict scrutiny or the intermediate ‘closely drawn’ standard applies, the
anticorruption rationale cannot serve as a justification for limiting fundraising by groups that
engage in independent spending on political speech. No other justification for limits on political
speech has been recognized, and none is offered here.”); Long Beach Area Chamber of Commerce
v. Long Beach, 603 F.3d 684, 696-98 (9th Cir. 2010) (rejecting government’s proffered interests in
similar contribution limits).
The Fourth Circuit reached this same conclusion, although in a pre-Citizens United
decision. The relevant excerpt speaks for itself:
Importantly, however, the [Supreme] Court has never held that it is constitutional
to apply contribution limits to political committees that make solely independent
expenditures. In fact, Justice Blackmun stressed in his Cal-Med concurrence that
“contributions to a committee that makes only independent expenditures pose no . .
. threat” of corruption or the appearance thereof. See Cal. Med. Ass’n v. FEC, 453
U.S. 182, 203 (1981) (Blackmun, J., concurring). This makes perfect sense:
independent expenditures are made without candidate consultation, rendering it
unlikely that such expenditures would be made in exchange for “improper
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commitments from the candidate.” Buckley, 424 U.S. at 47 (noting that
“independent expenditures may well provide little assistance to the candidate's
campaign and indeed may prove counterproductive”).
Moreover, McConnell specifically emphasized the difference between political
parties and independent expenditure political committees, which explains why
contribution limits are acceptable when applied to the former, but unacceptable
when applied to the latter. To begin, the Court noted that independent expenditure
committees “do not select slates of candidates for elections,” “determine who will
serve on legislative committees, elect congressional leadership, or organize
legislative caucuses.” McConnell v. FEC, 540 U.S. 93, 188 (2003). Conversely,
“[p]olitical parties have influence and power in the Legislature that vastly exceeds
that of any interest group.” Id. Furthermore, “party affiliation is the primary way
. . . voters identify candidates,” and therefore parties “have special access to and
relationships with” those who hold public office. Id. It is thus not an
exaggeration to say that McConnell views political parties as different in kind than
independent expenditure committees.
Thus, while the state’s power to impose contribution limits is well-established, that
power exists only when the contribution limits are “closely drawn” to the state’s
interest in preventing corruption. As the state attempts to regulate entities further
and further removed from the candidate, the state interest in preventing corruption
necessarily decreases. At the extreme, the entities furthest removed from the
candidate are political committees that make solely independent expenditures. As
such, it is “implausible” that contributions to independent expenditure political
committees are corrupting. N.C. Right to Life, Inc. v. Leake, 344 F.3d 418, 434
(2003).
N.C. Right to Life, Inc. v. Leake, 525 F.3d 274, 292-93 (2008).
The Seventh Circuit aptly explained how this conclusion, now reached by four courts of
appeals, short-circuits such laws and simplifies the Court’s analysis: “Without an anticorruption
rationale, the government [is] left empty-handed; . . . as applied to independent expenditure
groups, the . . . contribution limit [is] unjustified under [any standard of review] because
‘something . . . outweighs nothing every time.’” Barland, 664 F.3d at 154 (quoting SpeechNow,
599 F.3d at 695). In other words, the Court need go no further. The government has no interest
in maintaining the contribution limit as applied to Plaintiffs, and Plaintiffs certainly have some
level of First Amendment interest in soliciting, receiving, and making contributions for
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independent expenditures. The Court therefore FINDS that Plaintiffs are very likely to succeed
in their as-applied challenge to § 3-8-12 of the West Virginia Code.
B. Likelihood of Suffering Irreparable Harm
Plaintiffs assert that they are likely to suffer irreparable harm without the entry of a
preliminary injunction, citing the loss of First Amendment freedoms as per se irreparable harm.
(Docket 16 at 7-8.) Secretary Tennant responds that, even if they are likely to succeed on the
merits, Plaintiffs are unlikely to suffer any real harm without a preliminary injunction. (Docket
21 at 4.) She reasons that “[t]he West Virginia law does not block the Plaintiffs’ ability to show
support for, or opposition to, one or more candidates in the upcoming election,” and they will
therefore suffer no harm from enforcing the contribution limit. (Id.) The Court disagrees.
“The loss of First Amendment freedoms, for even minimal periods of time, unquestionably
constitutes irreparable injury.” Legend Night Club v. Miller, 637 F.3d 291, 302 (4th Cir. 2011)
(quoting Elrod v. Burns, 427 U.S. 347, 373 (1976) (plurality opinion)). And “monetary damages
are inadequate to compensate for the loss of First Amendment freedoms.” Id. (citing Joelner v.
Vill. of Wash. Park, 378 F.3d 613, 620 (7th Cir. 2004)). It is a “cardinal tenet” of the Supreme
Court’s campaign finance jurisprudence that political spending is constitutionally protected
speech. See Emily’s List v. FEC, 581 F.3d 1, 5 (D.C. Cir. 2009). More particularly, contribution
limitations encroach upon First Amendment liberties because they “entail[ ] . . . restriction upon
the contributor’s ability to engage in free communication.”
Buckley, 424 U.S. at 20.
Contributions “permit[ ] the symbolic expression of support,” and they therefore fall within the
realm of First Amendment protection. Id. at 21. To address the Secretary’s response, the
availability to Plaintiffs of other, less effective means of political expression does not entitle the
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State of West Virginia to foreclose Plaintiffs’ First Amendment right to pool their resources for the
purpose of making concerted independent expenditures. Accordingly, the Court FINDS that
Plaintiffs are likely to suffer irreparable injury to their First Amendment rights absent an
injunction.
C. Balance of Equities
As to the third preliminary injunction factor, Secretary Tennant argues that, on balance,
West Virginia’s interest in maintaining the integrity of its elections by eliminating actual and
perceived corruption in elections outweighs any First Amendment interest Plaintiffs have in
making contributions to independent expenditure PACs. (Docket 21 at 4-5.) As set forth above,
West Virginia Code § 3-8-12 serves no anti-corruption interest. Thus, the Secretary’s perceived
harm to the State of West Virginia is illusory, and the balance of equities favors Plaintiffs’ free
speech rights. Further, the State of West Virginia is “in no way harmed by issuance of an
injunction that prevents the state from enforcing unconstitutional restrictions.” Legend Night
Club, 637 F.3d at 302-03 (citing Joelner, 378 F.3d at 620). The Court FINDS that the balance of
equities tips decidedly in favor of issuing a preliminary injunction.
D. Public Interest
Finally, there is a significant public interest in upholding the free speech principles that are
integral to our democratic society.
Secretary Tennant argues that the state’s interest in
maintaining the legitimacy of its statewide elections is also in the public interest, and it justifies the
burdens placed on Plaintiffs by the challenged statute. (Docket 21 at 5-6.) She relies a great deal
on the Caperton decision to illustrate bias in West Virginia elections. However, Caperton dealt
with the Fourteenth Amendment and recusal rules, not the First Amendment’s free speech
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guarantees. See Citizens United, 130 S. Ct. at 910 (distinguishing Caperton). Moreover, while
ensuring the integrity of elections may be in the public interest, application of the statute at issue to
independent expenditure PACs such as STCWV and its contributors does not further that goal.
The Court FINDS that issuance of a preliminary injunction will serve the public interest.
IV. CONCLUSION
For the reasons stated above, Plaintiffs are likely to succeed on the merits of their challenge
to West Virginia Code § 3-8-12 and the corresponding regulations. Further, the balance of harms
tips decidedly in favor of Plaintiffs and according them relief would serve the public interest.
They are entitled to a preliminary injunction, and \the Motion for Preliminary Injunction [Docket
15] is hereby GRANTED.
A separate Preliminary Injunction Order will enter this day
implementing the ruling contained in this opinion.
IT IS SO ORDERED.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
unrepresented party.
ENTER:
August 9, 2012
_________________________________________
THOMAS E. JOHNSTON
UNITED STATES DISTRICT JUDGE
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