Ctr. for Individual Freedom, Inc. v. Tennant

• Decision Date: 18 July 2011
• Docket Number: 1:08–cv–01133.,Civil Action Nos. 1:08–cv–00190
• Court: U.S. District Court — Southern District of West Virginia
• Parties: CENTER FOR INDIVIDUAL FREEDOM, INC., Plaintiff, v. Natalie TENNANT, et al., Defendants, West Virginians For Life, Inc., and Zane Lawhorn, Plaintiffs, v. Natalie Tennant, et al., Defendants.

849 F.Supp.2d 659

CENTER FOR INDIVIDUAL FREEDOM, INC., Plaintiff,

v.Natalie TENNANT, et al., Defendants,West Virginians For Life, Inc., and Zane Lawhorn, Plaintiffs,

v.Natalie Tennant, et al., Defendants.

Civil Action Nos. 1:08–cv–00190, 1:08–cv–01133.

United States District Court, S.D. West Virginia.

July 18, 2011.

Held Unconstitutional

West's Ann.W.Va.Code, 3–8–1a(11), (11)(B)(viii), (12)(C)Jan Witold Baran, Thomas W. Kirby, Wiley Rein, Washington, DC, William C. Porth, Robinson & McElwee, Charleston, WV, James Bopp, Jr., Randy Elf, James Madison Center for Free Speech, Terre Haute, IN, Shirley J. Stanton, Stanton Law Firm, Fairmont, WV, for Plaintiffs.

Christie S. Utt, Silas B. Taylor, Thomas W. Smith, Office of the Attorney General, Charleston, WV, Nicholas S. Preservati, Charleston, WV, for Defendants.

MEMORANDUM OPINION AND SUMMARY JUDGMENT ORDER

THOMAS E. JOHNSTON, District Judge.

Pending before the Court are Plaintiff Center for Individual Freedom, Inc.'s (CFIF) Renewed Motion for Summary Judgment [Docket 210] and Plaintiffs Zane Lawhorn and West Virginians for Life, Inc.'s (WVFL) Second Motion for Summary Judgment [Docket 209]. On February 11, 2011, the parties argued both motions at a hearing before the Court. (Docket 225.) The parties agree that no issues of fact remain outstanding and that the Court can properly dispose of the case on summary judgment.

I. SUMMARY OF HOLDINGS

1. PAC and Related Definitions. The Court finds no reason to depart from its preliminary injunction order. The reach of W. Va.Code § 3–8–1a(19) is limited to committees organized “for the purpose of supporting or opposing the election or nomination of one or more candidates.” Id. (emphasis added). This language is equivalent to “the sole purpose of supporting or opposing a candidate,” and it is narrower than “the major purpose” test approved by the Supreme Court in Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976). WVFL's Second Motion for Summary Judgement [Docket 209] is DENIED on this issue.

2. “Expressly Advocating” Definition. Subsection (B) of the “expressly advocating” definition, W. Va.Code § 3–8–1a(12), is not constitutionally overbroad, as Plaintiffs suggest. Likewise, after examining Citizens United and other relevant case law, the Court concludes that Plaintiffs cannot demonstrate that subsection (C) is constitutionally overbroad either. However, relying on the opinions in WRTL II authored by Chief Justice Roberts and Justice Scalia, the Court finds that subsection (C) is unconstitutionally vague for employing the “appeal to vote” test as a freestanding test. In WRTL II, two justices upheld the “appeal to vote” test only within the “bright-line” context of electioneering communications, and three justices indicated their disapproval of the test's constitutionality in any context. The motions for summary judgment [Dockets 209, 210] are therefore GRANTED IN PART on this issue, and subsection (C) is SEVERED from the remainder of the “expressly advocating” definition.

3. Corporate Expenditure Ban. In the wake of Citizens United, the West Virginia Legislature repealed the ban on certain corporate speech. There being no live issue for the Court to resolve, Plaintiffs' motions for summary judgment [Dockets 209, 210] are DENIED AS MOOT on this issue.

4. “Electioneering Communication” Definition. The West Virginia Legislature's failure to justify the inclusion of non-targeted print media sources renders the definition of “electioneering communication” unconstitutionally overbroad. Pursuant to W. Va.Code § 2–2–10(cc), the definition's reference to communications appearing in newspapers, magazines, and other periodicals is SEVERED, and the motions for summary judgment [Dockets 209, 210] are therefore GRANTED IN PART. The Court is unable to determine whether the definition of “targeted to the relevant electorate”—one element of the “electioneeringcommunication” definition—is unconstitutionally vague, and the motions for summary judgment are DENIED IN PART on that issue.

5. “Electioneering Communication” Exemptions. The “grassroots lobbying” exemption to the “electioneering communication” definition, W. Va.Code § 3–8–1a(11)(B)(v) is neither vague nor insufficiently tailored to withstand constitutional scrutiny. The “voter guide” exemption contained in W. Va.Code § 3–8–1a(11)(B)(viii) contains two clauses that impermissibly depend on “intent-and-effect” tests of the kind criticized in WRTL II. The phrases “intended as nonpartisan public education” and “appearance of” are therefore SEVERED from the exemption. CFIF lacks standing to challenge the “bona fide news account” exemption in W. Va.Code § 3–8–1a(11)(B)(I). Finally, the “501(c)(3) organization” exemption is sufficiently tailored to meet West Virginia's interest in regulating election-related speech, and CFIF lacks standing to challenge the “operating under” language. In sum, CFIF's Renewed Motion for Summary Judgment [Docket 210] is DENIED as to the “grassroots lobbying,” “bona fide news account,” and “501(c)(3) organization” exemptions, and it is GRANTED as to the “voter guide” exemption. Accordingly, portions of the “voter guide” exemption are SEVERED.

6. Reporting Requirements. CFIF's Renewed Motion for Summary Judgment [210] is GRANTED IN PART as to W. Va.Code § 3–8–2b(b)(5), such that the names and other information of corporate contributors must only be disclosed pursuant to that subsection if the individuals contributed in response to a solicitation or earmarked the funds for use in electioneering communications. As to the Plaintiffs' other challenges to the reporting requirements, the motions for summary judgment [Dockets 209, 210] are DENIED. None of the remaining provisions are unconstitutionally vague or overbroad.

7. Preliminary Injunction Dissolution. The Court's preliminary injunction order, entered on October 17, 2008, is DISSOLVED upon entry of this summary judgment order.

II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

A. Center for Individual Freedom and Judge Faber's Preliminary Injunction

This action is the consolidation of two similar actions, Center for Individual Freedom, Inc. v. Tennant et al., Case No. 1:08–cv–00190, and West Virginians for Life, Inc. v. Tennant et al., Case No. 1:08–cv–01133. CFIF is a non-partisan, non-profit organization organized under § 501(c) of the Internal Revenue Code. (Docket 1 ¶¶ 3, 3(b) in Case No. 1:08–cv–00190.) ¹ CFIF's stated mission “is to protect and defend individual freedoms and individual rights guaranteed by the U.S. Constitution.” ( Id. ¶ 3.) It plans to “speak to the public in the Southern District of West Virginia on matters of litigation reform and related justice issues, including criminal law enforcement and sentencing, legal reform, and judicial decision-making [using] various media, including broadcast, print, and telephone banks.” ( Id. ¶ 17.) That speech “will refer to West Virginia candidates to illustrate its points and ask members of the public to contact the candidatesand petition them to take or maintain certain positions.” ( Id.) For fear of prosecution and litigation, CFIF suspended its plans pending judicial intervention, allegedly resulting in an unconstitutional chill on its speech. ( Id. ¶ 23.)

CFIF filed its initial action on March 21, 2008, seeking to invalidate a number of provisions of West Virginia's campaign finance laws as unconstitutionally vague and/or overbroad.² Specifically, CFIF challenged West Virginia's prohibition on corporate spending, W. Va.Code §§ 3–8–8(a), 3–8–8(b)(2)(H), 3–9–14,³ and W. Va.Code R. § 146–1–3, and reporting and disclosure requirements for expenses incurred for “advocating or opposing the nomination, election or defeat of any candidate,” W. Va.Code § 3–8–5, for independent expenditures “in support of or opposition to the nomination or election” of a candidate, §§ 3–8–1a(14), 3–8–2(b), and for “electioneering communications,” §§ 3–8–1a(11), 3–8–2b.

In anticipation of the May 13, 2008, primary election, CFIF filed a motion for a preliminary injunction holding those laws unconstitutional facially and as applied to a number of communications CFIF intended to publish in the days leading up to the primary. By order, the West Virginia Association for Justice (WVAJ), West Virginia American Federation of Labor and Congress of Industrial Organizations (WV AFL–CIO), West Virginia Council of Churches (WVCOC), West Virginia Education Association (WVEA), West Virginia Citizens Action Group (WVCAG), Ohio Valley Environmental Coalition (OVEC), (Docket 13), West Virginia Employment Lawyers Association (WVELA) and West Virginia State Democratic Executive Committee (WVSDEC), (Docket 45), were permitted to participate as amici curiae. Also by order, Robert M. Bastress, Jr., Margaret L. Workman, Menis E. Ketchum,⁴ WVEA and WV AFL–CIO were permitted to intervene as defendants. (Docket 25.)

Judge Faber heard argument on the motion for a preliminary injunction on April 9, 2008. On April 22, 2008, 2008 WL 1837324, Judge Faber entered an order granting in part and denying in part CFIF's motion. More specifically, Judge Faber enjoined defendants Betty Ireland and Timothy D. Boggess ⁵ “from applying West Virginia Code sections 3–8–1a(14), 3–8–2(b), 3–8–5(a), 3–8–8(a), 3–8–8(b)(2)(H), and 3–9–14, and West Virginia Code of State Rules section 146–1–3, to anything other than communications that expressly advocate the election or defeat of a clearly identified candidate.” (Docket 38 at 1–2.) In that ruling, Judge Faber adopted “the bright-line definition” of express advocacy set forth in Buckley v. Valeo, 424 U.S. 1, 44 n. 52, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (per curiam). Judge Faber also restricted the definition of “electioneering communications” to certain forms of broadcast media and enjoined Defendants “from applying [West Virginia's] reporting and disclosure requirements to the following forms of political advocacy: mailings, faxes, emails, phone...