Koerber v. Federal Election Com'n
| Decision Date | 29 October 2008 |
| Docket Number | No. 2:08-CV-39-H(1).,2:08-CV-39-H(1). |
| Citation | 583 F.Supp.2d 740 |
| Court | U.S. District Court — Eastern District of North Carolina |
| Parties | Holly Lynn KOERBER and Committee for Truth in Politics, Inc., Plaintiffs, v. FEDERAL ELECTION COMMISSION, Defendant. |
Paul Stam, Jr., Stam, Fordham & Danchi, Apex, NC, for Plaintiffs.
David B. Kolker, Claire N. Rajan, Harry J. Summers, Federal Election Commission, Washington, DC, R.A. Renfer, Jr., U.S. Attorney's Office, Raleigh, NC, for Defendant.
Anita S. Earls, Southern Coalition for Social Justice, North Carolina, NC, for Amicus.
This matter is before the court on the following motions filed by plaintiffs: (1) motion to expedite [DE # 4]; (2) motion for a preliminary injunction [DE # 3]; and (3) motion to consolidate the hearing of plaintiffs' motion for a preliminary injunction with a trial on the merits [DE # 5]. Appropriate memoranda have been filed by the parties and amici curiae Democracy 21 and Campaign Legal Center, and the court heard arguments at a hearing on October 16, 2008. This matter is ripe for adjudication.
Plaintiff Committee for Truth in Politics, Inc. ("CTP") is a nonprofit, North Carolina corporation incorporated in September 2008 and organized pursuant to 26 U.S.C. § 501(c)(4) as an organization primarily devoted to social welfare. CTP has produced two television advertisements that discuss Senator Barack Obama's voting record on certain issues (partial birth abortion and punishment of sex offenders) and invite viewers to "Call Senator Obama." CTP has spent over $10,000 airing the first advertisement, entitled "Basic Rights," in several states, including North Carolina. CTP intends to broadcast this advertisement, as well as a second advertisement, entitled "Tragic, but True," prior to the general election in November.
Defendant Federal Elections Commission ("FEC") is an independent regulatory agency of the United States Government. The FEC is vested with the authority to administer and enforce the federal campaign finance laws and to oversee the public funding of Presidential elections.
Plaintiff Holly Lynn Koerber ("Koerber") resides in Elizabeth City, North Carolina, one of the areas targeted by CTP's advertisements. She wishes to continue receiving CTP's broadcasts and is suing to enjoin the FEC from exercising its enforcement powers against CTP.
CTP and Koerber filed this action on October 3, 2008, challenging §§ 201 and 311 of the Bipartisan Campaign Reform Act of 2002 ("BCRA") (collectively referred to as "the disclosure requirements")1 and FEC's enforcement policy concerning the determination of political action committee ("PAC") status. Section 201 is a reporting provision and requires corporations spending more than $10,000 on electioneering communications2 to file a report with the PEC disclosing the names and addresses of anyone who contributes $1,000 or more for the purpose of furthering electioneering communications. See 2 U.S.C. § 434(f)(1), (2). Section 311 is a disclaimer provision and requires electioneering communications not authorized by a candidate to bear the statement "[name of sponsor] is responsible for the content of this advertising" and to include the name, address and telephone number or website address of the sponsor. See 2 U.S.C. § 441d(a)(3). Although CTP has apparently complied with the disclaimer requirements of § 311, it has not filed a report in compliance with § 201 and has no intention of doing so.
Plaintiffs allege that the disclosure requirements are unconstitutional as applied, (Compl. ¶ 12), and that the FEC's PAC-status enforcement policy is unconstitutional, both facially and as applied to CTP and its activities, and is void as unauthorized, (Compl. ¶ 15). CTP requests preliminary and permanent injunctive relief enjoining the FEC from enforcing §§ 201 and 311 and its PAC-status policy against CTP and its activities. (Compl. ¶ 17.)
A preliminary injunction is "an extraordinary remedy involving the exercise of very far-reaching power, which is to be applied `only in [the] limited circumstances' which clearly demand it." Direx Israel, Ltd. v. Breakthrough Med. Corp., 952 F.2d 802, 811 (4th Cir.1992) (quoting Instant Air Freight Co. v. C.F. Air Freight, Inc., 882 F.2d 797, 800 (3d Cir. 1989)). Consolidation Coal Co. v. Disabled Miners of S.W. Va., 442 F.2d 1261, 1267 (4th Cir. 1971).
In determining whether a preliminary injunction should issue, the court is guided by the hardship balancing test set forth in Blackwelder Furniture Co. v. Seilig Mfg. Co., 550 F.2d 189 (4th Cir. 1977). This test requires the court to consider four factors:
(1) the likelihood of irreparable harm to the plaintiff if injunctive relief is denied;
(2) the likelihood of harm to the defendant if injunctive relief is granted;
(3) the likelihood that the plaintiff will succeed on the merits; and
(4) the public interest.
Rum Creek Coal Sales, Inc. v. Caperton, 926 F.2d 353, 359 (4th Cir.1991). The "`[p]laintiff bears the burden of establishing that each of these factors supports granting the injunction.'" Direx, 952 F.2d at 812 (alteration in original) (quoting Technical Publ'g Co. v. Lebhar-Friedman, Inc. 729 F.2d 1136, 1139 (7th Cir.1984)).
The hardship balancing test "correctly emphasizes that, where serious issues are before the court, it is a sound idea to maintain the status quo ante litem, provided it can be done without imposing too excessive an interim burden upon the defendant." Blackwelder, 550 F.2d at 194-95. Thus, the most important factors are the likelihood of irreparable harm to the plaintiff and the likelihood of harm to the defendant. Rum Creek, 926 F.2d at 359, "If, after balancing those two factors, the balance `tips decidedly' in favor of the plaintiff, a preliminary injunction will be granted if `the plaintiff has raised questions going to the merits so serious, substantial, difficult and doubtful, as to make them fair ground for litigation and thus for more deliberate investigation,'" Id. (citations omitted) (quoting Blackwelder, 550 F.2d at 195). Where, as here, however, "the irreparable harm ... alleged is inseparably linked" to a First Amendment claim, a "[d]etermination of irreparable harm ... requires analysis of [the plaintiffs] likelihood of success on the merits." Newsom ex rel. Newsom v. Albemarle Co. School Bd., 354 F.3d 249, 254-55 (4th Cir. 2003). Therefore, the court will consider that factor first. See id.
A determination of plaintiffs' likelihood of success on the merit s requires the court to first decide the appropriate standard of review for the regulations at issue. Plaintiffs contend that strict scrutiny applies because §§ 201 and 311 restrict core political speech protected by the First Amendment. . The FEC, on the other hand, argues that intermediate scrutiny applies.
In Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976), and again in McConnell v. FEC, 540 U.S. 93, 124 S.Ct. 619, 157 L.Ed.2d 491 (2003), the Supreme Court refused to apply strict scrutiny to campaign finance laws limiting the amount of political contributions and imposing certain reporting and record-keeping requirements. Reasoning that "a limitation upon the amount that any one person or group may contribute to a candidate or political committee entails only a marginal restriction upon the contributor's ability to engage in free communication," the Court held that "a contribution limit involving even `significant interference' with associational rights is nevertheless valid if it satisfies the `lesser demand' of being `closely drawn' to match a `sufficiently important interest.'" McConnell, 540 U.S. at 136, 124 S.Ct. 619 (internal quotation marks omitted) (quoting FEC v. Beaumont, 539 U.S. 146, 162, 123 S.Ct. 2200, 156 L.Ed.2d 179 (2003)).
As in Buckley and McConnell, the provisions involved here have only a marginal impact on the ability of contributors to engage in effective political speech. As such, they are not subject to strict scrutiny, but to the lesser standard of intermediate scrutiny applied in Buckley and McConnell. See Ohio Right to Life Society, Inc. v. Ohio Elections Comm'n, No. 2:08-CV-492, 2008 WL 4186312 (S.D.Ohio Sept. 5, 2008) ().
Under the intermediate scrutiny standard, plaintiffs would prevail on their claim if it is determined that there is no "`relevant correlation' or `substantial relation' between the governmental interest and the information required to be disclosed." Buckley, 424 U.S. at 64, 96 S.Ct. 612. Plaintiffs do not address whether a relevant correlation or substantial relation exists, but instead argue that CTP's advertisements are not "unambiguously campaign related" and therefore may not be constitutionally regulated. This argument is, for all intents and purposes, the same argument made and rejected by the Supreme Court in McConnell.
In McConnell, the plaintiffs challenged BCRA's disclosure requirements, arguing that "Congress cannot constitutionally require disclosure of ... ...
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