BAPAC v. Baldwin

• Decision Date: 23 June 1999
• Docket Number: No. 94S00-9803-CQ-144.,94S00-9803-CQ-144.
• Citation: 714 N.E.2d 135
• Parties: BROWNSBURG AREA PATRONS AFFECTING CHANGE and John Patten, Plaintiffs-Appellants, v. Patricia BALDWIN, Prosecuting Attorney for Hendricks County, Indiana, et al., Defendants-Appellees.
• Court: Indiana Supreme Court

714 N.E.2d 135

BROWNSBURG AREA PATRONS AFFECTING CHANGE and John Patten, Plaintiffs-Appellants, v. Patricia BALDWIN, Prosecuting Attorney for Hendricks County, Indiana, et al., Defendants-Appellees.

No. 94S00-9803-CQ-144.

Supreme Court of Indiana.

June 23, 1999.

James Bopp, Jr., John K. Abegg, Terre Haute, Indiana, Attorneys for Appellants.

Jeffrey A. Modisett, Attorney General of Indiana, Jon Laramore Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellees.

SHEPARD, Chief Justice.

Brownsburg Area Patrons Affecting Change (BAPAC), and its founder John Patten sought a preliminary injunction from the United States District Court for the Southern District of Indiana. The court denied the request, and BAPAC filed an interlocutory appeal for the Seventh Circuit.

Before resolving BAPAC's claims, the Seventh Circuit certified a question of state law for this Court's consideration, pursuant to Seventh Circuit Rule 52 and Indiana Appellate Rule 15(O). The question reads:

Does the Indiana Code's definition of a "political action committee," i.e., any organization which "accepts contributions or makes expenditures . . . to influence the election of a candidate . . . or the outcome of a public question . . . that in aggregate exceed one hundred dollars ($100)," include only those organizations which make contributions or expenditures for communications that in express terms advocate the election or defeat of a clearly identified candidate for office or the victory or defeat of a public question?

Brownsburg Area Patrons Affecting Change v. Baldwin, 137 F.3d 503, 510 (7th Cir.1998). We answer this question in the affirmative.

Background¹

BAPAC is a small, voluntary, non-partisan association of citizens in Hendricks County, Indiana, founded by John Patten. The organization has no membership requirements, nor any officers or directors. BAPAC's mission is "to educate the citizens of Brownsburg and its environs on political, economic, and social issues and to serve as an organ for members of the community to advise public officials of citizens' views on issues." (Appellant's Br. at 4.) To accomplish its goals, BAPAC disseminates information on a telephone hotline recording and distributes flyers. BAPAC, 137 F.3d at 504. The telephone recordings state candidates' positions on issues and sometimes indicate whether these views accord with those of BAPAC. Id.

On June 6, 1996, following a primary election in May, William Daily, chairman of the Hendricks County Election Board, sent Patten a letter suggesting that BAPAC might be subject to the rules governing political action committees, including some registration and reporting requirements. Id.; (App. to Appellant's Br. at 27-28). Two months later, BAPAC responded to the Board's inquiry with a letter explaining that it could not be considered a political action committee "because BAPAC's major purpose is not to expressly advocate the election or defeat of any candidate." (App. to Appellant's Br. at 31.)

On August 28th, Daily sent BAPAC another letter explaining that while the Board had not reached a final decision about whether BAPAC was a political action committee under Indiana law, it appeared as though their activities fell under the statute. (App. to Appellant's Br. at 33.) According to Daily, the statute covers organizations that spend more than $100 to influence the outcome of an election, and BAPAC's hotline message appeared to be an attempt to influence an election. (Id.) As such, Daily asserted that if BAPAC spent over $100 on the hotline message, it would be required to follow the rules for political action committees.

BAPAC did not respond to the second letter from Daily. Instead, in September 1996, it filed a complaint in District Court and moved for a preliminary injunction against the Attorney General of Indiana, four members of the Indiana Election Commission, the Hendricks County Prosecuting Attorney, and three members of the Hendricks County Election Board. The complaint alleged that the Indiana Code's definition of "political action committee" is unconstitutionally overbroad because it impermissibly regulates "issue advocacy" in violation of Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (per curiam). BAPAC, 137 F.3d at 505. Issue advocacy involves discussion of issues as opposed to express advocacy for or against certain candidates or electoral outcomes. Id. BAPAC also challenged the statute on the ground that it regulates groups which do not have the "major purpose" of engaging in express advocacy, a limitation it maintains is also required by Buckley. Id. BAPAC sought the injunction to prohibit enforcement of the allegedly unconstitutional election provisions.

The District Court denied the motion, concluding that BAPAC did not demonstrate a likelihood of success on the merits. BAPAC, 943 F.Supp. at 993. More specifically, the court found that Indiana's statute did not regulate issue advocacy, based on the Buckley Court's interpretation of similar language contained within the Federal Election Campaign Act of 1971. Id. at 986-89. Because the court concluded that BAPAC engaged only in issue advocacy,² it held that BAPAC was not a PAC under Indiana law. Thus, the statute did not apply to BAPAC, and a preliminary injunction was unnecessary. Id. at 989.³

On appeal, BAPAC contended that the District Court erred in holding that the Indiana definition of a PAC applied only to express advocacy groups. BAPAC, 137 F.3d at 505. Rather than speculate about how we would interpret a state statute, and given that our answer would be outcome determinative, see id. at 509, the Court of Appeals certified a question to us.

As the Seventh Circuit points out, this case possesses an odd procedural posture. Id. at 505. BAPAC brought the case to escape the application of Ind.Code § 3-5-2-37. The District Court held that the statute did not apply to organizations that engaged only in issue advocacy. Because BAPAC, by its own contentions, engaged only in issue advocacy, it successfully avoided the statute. Undeterred by winning, BAPAC pushes on.

Analysis

Indiana Code § 3-5-2-37(a), provides in pertinent part:

"[P]olitical action committee" means an organization located within or outside Indiana that satisfies all of the following:

(1) The organization is not:

(A) affiliated with a political party; or

(B) a candidate's committee.

(2) The organization proposes to influence:

(A) the election of a candidate for state, legislative, local, or school board office; or

(B) the outcome of a public question.

(3) The organization accepts contributions or makes expenditures during a calendar year to influence the election of a candidate for state, legislative, local, or school board office or the outcome of a public question that will appear on the ballot in Indiana that in the aggregate exceed one hundred dollars ($100).

(emphasis added).⁴ BAPAC maintains that the District Court's narrow construction of "influence" as covering only express advocacy was untenable, and that a proper construction of the language would cover BAPAC's activities. BAPAC argues that the legislature's decision to regulate groups that seek "to influence" elections impermissibly regulates issue advocacy in violation of Buckley. We disagree.

I. Buckley's Express Advocacy Test

In Buckley, the Supreme Court addressed constitutional challenges to the Federal Election Campaign Act of 1971 (FECA) similar to those we face here. The Court noted that the Act touched an area of paramount importance:

Discussion of public issues and debate on the qualifications of candidates are integral to the system of government established by our Constitution. The First Amendment affords the broadest protection to such political expression in order to "assure [the] unfettered interchange of ideas for the bringing about of political and social changes desired by the people."

Buckley, 424 U.S. at 14,96 S.Ct. 612 (quoting Roth v. United States, 354 U.S. 476, 484, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957)). On the

other hand, "[t]he constitutional power of Congress to regulate federal elections is well-established.. . ." Buckley, 424 U.S. at 13,96 S.Ct. 612. Thus, "the critical constitutional questions presented here go not to the basic power . . . to legislate in this area, but to whether the specific legislation . . . enacted interferes with First Amendment freedoms.. . ." Id. at 13-14, 96 S.Ct. 612.

Assessing these competing interests, the Court divided political speech into two parts. "Express advocacy" is that speech which "in express terms advocate[s] the election or defeat of a clearly identified candidate.. . ." Id. at 44, 96 S.Ct. 612.⁵ Speech that does not expressly advocate the election or defeat of a clearly identified candidate, but does involve political ideas or social commentary, is now generally called "issue advocacy." See, e.g., BAPAC, 943 F.Supp. at 977. As phrased by the District Court: "[T]he government may impose certain organizational and reporting requirements and expenditure and contribution limits on express advocacy, but any power to regulate the broader category of issue advocacy is far more limited." BAPAC, 943 F.Supp. at 977.⁶

The question before us is whether the "influence" language in the Indiana statute violates Buckley's express advocacy test.

II. Dueling Canons of Construction

Both sides point to canons of construction they maintain control the outcome of this question. As we have noted, "[t]he rules or maxims of construction are flexible aids to the search for meaning." A Woman's Choice—East Side Women's Clinic v. Newman, 671 N.E.2d 104, 107 (Ind.1996) (plurality opinion).

A. Clear on Its Face?

If a statute is unambiguous, then "courts must apply the plain language . . . despite perhaps strong policy or constitutional reasons to construe the statute in some other way." BAPAC, 943 F.Supp. at 986 (citing Indiana Dep't. of State Revenue v. Horizon Bancorp,...