Brownsburg Area Patrons Affect. Change v. Baldwin

• Decision Date: 23 October 1996
• Docket Number: No. IP 96-1357-C H/G.,IP 96-1357-C H/G.
• Parties: BROWNSBURG AREA PATRONS AFFECTING CHANGE, and John Patten, Founder and Leader of Bapac, Plaintiffs, v. Patricia BALDWIN, in her official capacity as Prosecuting Attorney for Hendricks County, Indiana, Pamela Carter, in her official capacity as Attorney General for the State of Indiana, William E. Daily, in his official capacity as the Chairman of the Hendricks County Election Board, Connie Lawson, in her official capacity as the Secretary of the Hendricks County Election Board, Dolly Starnes, in her official capacity as a Member of the Hendricks County Election Board, Jeffrey M. Mallamad, in his official capacity as the Chairman of the Indiana Election Commission, Butch Morgan, in his official capacity as a Member of the Indiana Election Commission, Joseph M. Perkins, Jr., in his official capacity as a Member of the Indiana Election Commission, and Dudley Cruea, in his official capacity as a Member of the Indiana Election Commission, Defendants.
• Court: U.S. District Court — Southern District of Indiana

943 F.Supp. 975

BROWNSBURG AREA PATRONS AFFECTING CHANGE, and John Patten, Founder and Leader of Bapac, Plaintiffs, v. Patricia BALDWIN, in her official capacity as Prosecuting Attorney for Hendricks County, Indiana, Pamela Carter, in her official capacity as Attorney General for the State of Indiana, William E. Daily, in his official capacity as the Chairman of the Hendricks County Election Board, Connie Lawson, in her official capacity as the Secretary of the Hendricks County Election Board, Dolly Starnes, in her official capacity as a Member of the Hendricks County Election Board, Jeffrey M. Mallamad, in his official capacity as the Chairman of the Indiana Election Commission, Butch Morgan, in his official capacity as a

Member of the Indiana Election Commission, Joseph M. Perkins, Jr., in his official capacity as a Member of the Indiana Election Commission, and Dudley Cruea, in his official capacity as a Member of the Indiana Election Commission, Defendants.

No. IP 96-1357-C H/G.

United States District Court, S.D. Indiana, Indianapolis Division.

October 23, 1996.

As Corrected November 21, 1996 nunc pro tunc.

John K. Abegg and James Bopp, Jr., Bopp, Coleson & Bostrom, Terre Haute, IN, for plaintiffs.

Beth H. Henkel and James A. Joven, Office of the Attorney General, Indianapolis, IN, for defendants Baldwin, Carter, Mallamad, Morgan, Perkins and Cruea.

Paul A. Hadley and Michael G. Worden, Danville, IN, for defendants Daily, Lawson, and Starnes.

ENTRY ON PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION

HAMILTON, District Judge.

Introduction

In Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976), the Supreme Court held that the First Amendment imposes significant restrictions on the powers of state and federal government to regulate contributions and expenditures for political purposes. The Supreme Court drew a bright line in Buckley between what it called "express advocacy," which is speech that uses express words to advocate the election or defeat of a clearly identified candidate for office, such as "vote for," "elect," "support," "defeat," or "reject," and what is often called "issue advocacy," meaning political speech about issues and candidates that does not amount to express advocacy. See 424 U.S. at 44 & n. 52, 96 S.Ct. at 646-47 & n. 52. Under Buckley v. Valeo, the 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. Plaintiffs Brownsburg Area Patrons Affecting Change and John Patten challenge the constitutionality of Indiana's statutes regulating political action committees. Indiana election laws define a "political action committee" ("PAC") so as to include an organization that accepts contributions or makes expenditures of more than $100 a year "to influence" elections. Ind.Code § 3-5-2-37(a)(1)(C). Plaintiffs contend that this definition is unconstitutionally broad because it imposes PAC regulatory requirements on organizations engaged only in "issue advocacy." Plaintiffs also object to the absence of language limiting the definition to organizations whose "major purpose" is to engage in express advocacy.

Plaintiffs seek a preliminary injunction to prevent enforcement of Indiana's laws regulating PACs against them. They assert that the overly broad statute is chilling their ability to engage in constitutionally protected speech in connection with the general election scheduled for November 5, 1996. Defendants are state and county officials who argue that the Indiana statute is constitutional when properly interpreted. They also assert that plaintiffs present no case or controversy within the meaning of Article III of the United States Constitution, and argue that this court should abstain from deciding the merits of plaintiffs' claims under the abstention doctrines of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and Railroad Comm'n of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). Plaintiffs' motion for preliminary injunction is before the court on a factual record that consists of plaintiffs' verified complaint (with exhibits), plaintiffs' responses to requests for admissions and to interrogatories, the deposition of plaintiff Patten, and the testimony of defendant William E. Daily. The court heard Mr. Daily's testimony and argument by counsel on October 11, 1996, and the motion for preliminary injunction is now ripe for decision.

For the reasons explained below, plaintiffs' motion for preliminary injunction is denied. When properly interpreted, the Indiana definition of a "political action committee" simply does not apply to plaintiffs because they have engaged and intend to engage only in "issue advocacy." This entry sets forth the court's findings of fact and conclusions of law pursuant to Fed.R.Civ.P. 52 and 65.

Findings of Fact

I. The Parties

Plaintiff Brownsburg Area Patrons Affecting Change, known as "BAPAC," is a small and loosely organized association of persons who live in and around Brownsburg, a town in Hendricks County, Indiana. BAPAC has no membership requirements, no officers, and no directors. It is not associated with any political candidate, political party, or campaign committee. BAPAC initially formed to organize opposition to the proposed construction of a steel mill in the Brownsburg area. Currently, its major purpose is to educate people in the Brownsburg area about political, economic, and social issues, and to serve as a means for people to express their views to public officials. Plaintiff John Patten is the "founder and leader" of BAPAC and is the principal agent of BAPAC.

All defendants are state or county officials who are sued in their official capacities. Defendant Patricia Baldwin is the Prosecuting Attorney for the 55th Judicial Circuit in Indiana, which is Hendricks County. Defendant Pamela Carter is the Attorney General of the State of Indiana. Defendants William E. Daily, Connie Lawson, and Dolly Starnes are the members of the Hendricks County Election Board. Defendants Jeffrey M. Mallamad, Butch Morgan, Joseph M. Perkins, Jr., and Dudley Cruea are the members of the Indiana Election Commission.¹

II. BAPAC Activity

To educate residents in the Brownsburg area about various issues, BAPAC has distributed printed flyers and has used a telephone "hotline." The hotline consists of recorded messages on a telephone answering machine describing candidates' positions on issues and sometimes stating whether those positions coincide with BAPAC's views. In particular, BAPAC distributed flyers and used hotline messages in the days leading up to the primary election held on May 7, 1996. Those flyers and messages identified candidates for office and described the ways in which several candidates had agreed with or actively supported positions taken by BAPAC. The messages also encouraged callers to vote, informed callers that Democrats could vote in the Republican primary if they wanted to do so, and invited callers to add their names to BAPAC's mailing list. The BAPAC flyers and messages at the time of the May 1996 primary were all intended to "influence" the elections, at least in the broad sense of that term. However, all BAPAC flyers and hotline messages at the time of the primary election stopped short of "express advocacy," i.e., they did not use express terms advocating the election or defeat of clearly identified candidates for office.

BAPAC spent approximately $464 to engage in "issue advocacy" in connection with the May 1996 primary election. This amount includes $250 for producing 4,000 flyers and $100 to pay an artist for designing a logo for BAPAC. The total also includes pro-rated amounts totaling $114 for use of plaintiff Patten's home, including his telephone line, computer, fax machine, office space, utilities, and insurance. BAPAC treats these last items as in-kind contributions from Mr. Patten.

III. Indiana Statutes on PACs

The Indiana election code imposes substantial organizational and reporting requirements on political action committees. See generally Ind.Code § 3-9-1-1 et seq. (organizational requirements); § 3-9-2-1 et seq. (regulation of contributions); § 3-9-3-1 et seq. (regulation of expenditures); § 3-9-4-1 et seq. (role of election boards); § 3-9-5-1 et seq. (reports required). For example, a political action committee must have a chairman and treasurer, § 3-9-1-2, and must file a statement of organization within ten days after its organization or after it becomes a committee subject to regulation, § 3-9-1-3. The statement of organization must provide identifying information, including a listing of banks and other financial depositories used. A number of provisions restrict the flow of money and property to ensure accountability. For example, no one may make an expenditure or accept a contribution on behalf of a committee without authorization from the chairman or treasurer. Ind.Code § 3-9-1-2. All money or other property collected must pass through the hands of the committee's treasurer, and money and property disbursed must be disbursed by the treasurer. Ind. Code §§ 3-9-1-20, -21. The treasurer must keep detailed accounts of contributions and expenditures. Ind.Code §§ 3-9-1-22, -23. The committee must then file detailed financial reports with either a county election board or the Indiana Election Commission, and those reports are available for public inspection. Ind.Code §§ 3-9-5-1, -2, -4, -6, -10. The required contents of the financial reports are set forth in § 3-9-5-14, and include the names and addresses of each person who contributes more than $100 in a year, and all expenditures of more than $100 in the aggregate in a year.

Plaintiffs assert that failure to comply with the reporting or other requirements can subject the committee and its officers or principals to civil and criminal penalties....