Iowa Right to Life v. Williams

• Decision Date: 17 June 1999
• Docket Number: No. 98-4078,98-4078
• Citation: 187 F.3d 963
• Parties: (8th Cir. 1999) Iowa Right to Life Committee, Inc.; Iowa Right to Life State Political Action Committee, Appellees, v. Kay Williams, in her official capacity as Executive Director of the Iowa Ethics and Campaign Disclosure Board; Bernard McKinley; James Albert; Gwen Brooks; Marie Thayer; Michael Forrest, in their official capacities as members of the Iowa Ethics and Campaign Disclosure Board; Thomas Miller, in his official capacity as Iowa Attorney General; John Sarcone, in his official capacity as County Attorney for Polk County, Iowa, and as a representative of the class of County Attorneys in the State of Iowa, Appellants. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 963

187 F.3d 963 (8th Cir. 1999)

Iowa Right to Life Committee, Inc.; Iowa Right to Life State Political Action Committee, Appellees, v. Kay Williams, in her official capacity as Executive Director of the Iowa Ethics and Campaign Disclosure Board; Bernard McKinley; James Albert; Gwen Brooks; Marie Thayer; Michael Forrest, in their official capacities as members of the Iowa Ethics and Campaign Disclosure Board; Thomas Miller, in his official capacity as Iowa Attorney General; John Sarcone, in his official capacity as County Attorney for Polk County, Iowa, and as a representative of the class of County Attorneys in the State of Iowa, Appellants.

No. 98-4078

United States Court of Appeals FOR THE EIGHTH CIRCUIT

Submitted: June 17, 1999

Decided: August 13, 1999

Appeal from the United States District Court for the Southern District of Iowa. [Copyrighted Material Omitted] Before BEAM and MORRIS SHEPPARD ARNOLD, Circuit Judges, and KYLE,¹ District Judge.

BEAM, Circuit Judge.

The State of Iowa (Iowa, or the State) appeals from the grant of a preliminary injunction enjoining the enforcement of one provision of Iowa's Campaign Disclosure-Income Tax Check-off Act, Iowa Code 56.13(1), which establishes reporting requirements for independent expenditures, and a related provision of the Iowa Administrative Code, Iowa Admin. Code r. 351-4.100(1)(b), that defines express advocacy. Iowa Right to Life State Political Action Committee (IRLSPAC) and Iowa Right to Life Committee, Inc. (IRLC), maintain that the provisions are unconstitutional and therefore the grant of preliminary injunctive relief was appropriate. We affirm.

BACKGROUND

IRLSPAC and IRLC are affiliated organizations that have as one of their purposes, political speech. They attempt to highlight, support, and inform the public about issues relevant to their interests, and the positions and records of candidates on those issues. IRLSPAC makes direct contributions to candidates and independently devotes money and resources to advocate the election or defeat of particular candidates. In the 1996 Iowa elections, IRLSPAC produced several mailings that encouraged people to vote for certain candidates because they supported issues of concern to IRLSPAC. The mailings contained the admonition to "vote for" a specific candidate. The mailings were reported to the Iowa Ethics and Campaign Disclosure Board (the Board), and otherwise complied with campaign and election laws.

IRLC, on the other hand, serves a more purely informative role. One of IRLC's primary expenditures of money is for the publication of "voter guides" that articulate the voting records and public policy positions of various candidates. IRLC proposes to continue publishing voter guides that will contain no language such as "vote for," "elect," or any other express words of advocacy for the election or defeat of a clearly identifiable candidate.

In July 1998, IRLSPAC and IRLC together challenged four Iowa campaign and election statutes and several related Iowa administrative regulations, under 42 U.S.C. 1983, as violative of their rights protected by the First and Fourteenth Amendments. They sought a preliminary injunction, which the district court ² granted. The State appeals the district court's decision only as to Iowa Code 56.13(1), and Iowa Administrative Code r. 351-4.100(1)(b).

The district court found that IRLSPAC's constitutional challenge to section 56.13(1), regulating independent expenditures that expressly advocate the election or defeat of a candidate, is likely to be successful on the merits because it is not narrowly drawn to serve a compelling state interest. As to rule 351-4.100(1)(b), which defines express advocacy, the district court concluded that IRLC would likely succeed on the merits in its action to have the regulation declared unconstitutionally overbroad because it chills legitimate First Amendment rights to public discussion of issues.

II. DISCUSSION

We review a grant of a preliminary injunction for abuse of discretion, see National Credit Union Admin. Bd. v. Johnson, 133 F.3d 1097, 1101 (8th Cir. 1998), and consider four factors: (1) probability of success on the merits; (2) threat of. candidate approves the action if the candidate had knowledge of it and failed to file a statement of disavowal with the commissioner or board and take corrective action within seventy-two hours of the action. A person, candidate's committee or political committee taking such action irreparable harm; (3) the balance between this harm and potential harm to others if relief is granted; and (4) the public interest. See Kirkeby v. Furness, 52 F.3d 772, 774 (8th Cir. 1995); Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 113 (8th Cir. 1981) (en banc). We consider first whether the district court abused its discretion by granting a preliminary injunction for the statutory provision, section 56.13(1), regulating independent expenditures.

As indicated, IRLSPAC makes independent expenditures, such as direct mailings, that expressly advocate the election or defeat of candidates. Section 56.13(1) of the Iowa Code regulates those independent expenditures. It provides that when an organization makes an independent expenditure expressly advocating the election or defeat of a candidate, the organization must notify the Board and the candidate within twenty-four hours. This notification gives the candidate knowledge of the independent expenditure. The section then requires the candidate to essentially make one of two choices: (1) file a statement of disavowal including an indication of the "corrective action" taken within seventy-two hours, or (2) do nothing and have the independent expenditure presumed to be "approved" by the candidate and deemed an expenditure by the candidate.³

The Constitution protects independent expression of views through independent expenditures, as "core" First Amendment activity. See Colorado Republican Fed. Campaign Comm. v. Federal Election Comm'n, 518 U.S. 604, 616 (1996). Thus, restrictions on independent spending requires more compelling justification than restrictions on ordinary contributions. See Federal Election Comm'n v. Massachusetts Citizens for Life, Inc., 479 U.S. 238, 259-60 (1986). Indeed, governmental regulations that "'suppress, disadvantage, or impose differential burdens upon speech because of its content'" are subjected to the "'most exacting scrutiny'" and thereby must be narrowly tailored to a compelling state interest. Day v. Holahan, 34 F.3d 1356, 1361 (8th Cir. 1994) (quoting Turner Broad. Sys., Inc. v. Federal Communications Comm'n, 512 U.S. 622, 642 (1994)).

In Day, we found that a content-based restriction exists when a regulation "singles out particular political speech-that which advocates the defeat of a candidate and/or supports the election of her opponents-for negative treatment." Id. at 1360. Section 56.13(1) also singles out this particular kind of speech-that which expressly advocates the election or defeat of a candidate-for negative treatment. The State not only disputes that the speech is subjected to negative treatment, but also justifies the regulation as narrowly tailored to a compelling state interest. IRLSPAC argues that the negative treatment arises from what section 56.13(1) requires of a candidate. According to the IRLSPAC, the candidate must either disparage the independent expenditure through a statement of disavowal and corrective action, or have the independent expenditure presumed to be their own-i.e. coordinated.

The State contends that a statement of disavowal and of the corrective action taken is not a disparagement or a statement of disagreement with the independent expenditure, but merely an expression that there was no prior knowledge of the independent expenditure. We cannot agree with the State's spin on this requirement, particularly in the framework of our "cherished right to political speech." Federal Election Comm'n v. Christian Action Network, Inc., 110 F.3d 1049, 1051 (4th Cir. 1997). Disavowal is "a disowning; repudiation; denial." Random House Webster's Unabridged Dictionary 561 (2d ed. 1997). To the ordinary reader, the implications of requiring a candidate to file a statement of disavowal along with a statement of corrective action taken against an independent expenditure, has a strong negative connotation. Cf. Day, 34 F.3d at 1362 ("[T]he statute's negative impact on political speech must be a violation of the First Amendment rights of those who wish to make the independent expenditures at issue.").

Conversely, if a candidate fails to file a statement of disavowal and corrective action, then the independent expenditure is presumed approved and deemed an expenditure by the candidate. The negative impact IRLSPAC imports to this is that an entirely independent expenditure is automatically presumed to be a coordinated expenditure, eliminating the independent nature of the speech and thus diminishing its value. We agree. The Supreme Court in Colorado Republican, considered "whether the Government may conclusively deem independent party expenditures to be. coordinated," Colorado Republican, 518 U.S. at 625 and concluded that simply calling an independent expenditure a "coordinated expenditure," or presuming such, cannot make it so. See id. at 621-22.

There is a fundamental constitutional difference between independent and coordinated expenditures. The difference is that independent expenditures, by their nature, do not involve prearrangement or coordination. And without the prearranged or coordinated nature of expenditures, the danger that the expenditure is given as a quid pro quo for improper commitments is alleviated. See id. at 614-15. Based upon what section 56.13(1) requires candidates to do, we agree with the district court that it is a content-based restriction that must be "narrowly drawn to serve a compelling state interest." Day, 34 F.3d at 1361.

The State seeks to justify ...