Scott v. Roberts

Decision Date30 July 2010
Docket NumberNo. 10-13211.,10-13211.
Citation612 F.3d 1279
PartiesRichard L. SCOTT, Plaintiff-Appellant,v.Dawn K. ROBERTS, In Her Official Capacity as Interim Secretary of State of the State of Florida, Defendant-Appellee,Ira William McCollum, Jr., Intervenor-Defendant-Appellee.
CourtU.S. Court of Appeals — Eleventh Circuit

Enu Mainigi, George Williams Hicks, Jr., Carl Rowan Metz Kannon Kumar Shanmugam, Williams & Connolly, Washington, DC, Henry D. Fellows, Jr., Eugenia W. Iredale, Fellows La Briola LLP, Atlanta, GA, Charles M. Trippe, Moseley, Pritchard, Parrish, Knight & Jones, Jacksonville, FL, for Scott.

John R. Beranek, Richard Edward Doran, Daniel Nordby, Ausley & McMullen, Tallahassee, FL, for Roberts.

Christopher B. Lunny, Harry O. Thomas, Radey, Thomas, Yon & Clark, Tallahassee, FL, Carl J. Nichols, Annie L. Owens, Wilmer Hale, Washington, DC, for McCollum.

Appeal from the United States District Court for the Northern District of Florida.

Before DUBINA, Chief Judge, and PRYOR and MARTIN, Circuit Judges.

PRYOR, Circuit Judge:

In this emergency appeal from the denial of a motion for a preliminary injunction, Richard Scott, who is a candidate for the Republican Party for Governor of the State of Florida, asks that we preliminarily enjoin the enforcement of a provision of the Florida Election Campaign Financing Act that he contends violates his rights, under the First and Fourteenth Amendments, to spend unlimited sums of his personal funds and private donations to his campaign in furtherance of his candidacy. To date, Scott, who has never run for public office and is largely self-funding his campaign, has spent more than $21 million in the Republican primary to defeat his main opponent, Bill McCollum, the current Attorney General of Florida, who is participating in the public campaign financing system of Florida, which provides participating candidates with matching public funds to spend on their campaigns. That system also provides participating candidates like McCollum with a subsidy when a nonparticipating opponent spends in excess of $2 for each registered Florida voter, which for this election means almost $25 million. Fla. Stat. §§ 106.34, 106.355.

On July 7, as his campaign expenditures were rapidly approaching the $25 million threshold, Scott filed a complaint in the district court and asked the court to enjoin preliminarily the operation of the excess spending subsidy. Scott argued that, under Davis v. Federal Election Commission, 554 U.S. ----, 128 S.Ct. 2759, 171 L.Ed.2d 737 (2008), the excess spending subsidy severely burdened his First Amendment rights and was not justified by a compelling state interest. The Interim Secretary of State, as the defendant in her official capacity, and McCollum, as an intervenor in his individual capacity, defended the excess spending subsidy.

The district court promptly convened a hearing for Scott's motion, carefully weighed the competing arguments, and agreed with the first part of Scott's complaint, but the district court concluded that the excess spending subsidy indirectly furthered the interest of Florida in preventing actual or apparent corruption by encouraging participation in the Florida public campaign financing system and was narrowly tailored to serve that end. We agree with the district court that Davis requires Florida to justify its excess spending subsidy by reference to the anticorruption interest, but conclude that Florida cannot satisfy its burden of establishing that its subsidy furthers that interest in the least restrictive manner possible. We reverse the judgment of the district court and preliminarily enjoin the Secretary of State of Florida from releasing funds to McCollum under the excess spending provision.


To explain the background of this appeal, we first address the campaign for the Republican nomination for governor of Florida. We then discuss the Florida campaign finance laws. Finally, we discuss the procedural history of this appeal.

A. The 2010 Campaign for the Republican Nomination for Governor of Florida

Richard Scott is a candidate for Governor of the State of Florida and is currently seeking the nomination of the Republican Party for that office. Despite having never held or campaigned for public office, Scott announced his candidacy for governor in April 2010. Scott is wealthy and describes himself as a former “health care executive and businessman.” Last year, he founded an organization, Conservatives for Patients' Rights, to “promote free market principles in health care reform.” Regarding his candidacy, Scott states that he is “running as a conservative outsider who is a successful businessman with the experience to create jobs, hold government accountable, and turn the state around.”

Scott's main opponent in the Republican primary is Ira William (Bill) McCollum Jr., the current Attorney General of Florida. Mike McCalister is the other candidate for the Republican nomination, is not a party to this appeal, and is described in the record as a nominal candidate. Unlike Scott, McCollum has a long history in Florida politics. Before the voters of Florida elected McCollum attorney general in 2006, McCollum had served for nearly 20 years as a Member of Congress from Florida. McCollum had also twice campaigned unsuccessfully as a candidate for United States Senator from Florida. By his own admission, McCollum has substantial “experience running a campaign for statewide office in Florida.” Consequently, he also has “substantial experience in raising the funds necessary to finance ... a political campaign in a state such as Florida in which the election law limits the amount that individuals can contribute to a candidate.” McCollum is also familiar with the Florida Election Campaign Financing Act, and he “consider[ed] the benefits of the Act, as well as the restrictions placed on a candidate by the Act,” when he decided to participate in the Florida public campaign financing system.

McCollum elected to participate in the Florida system of public campaign financing, but Scott did not. Scott contends that he “believe[s] it is unfair to ask the taxpayers of Florida to subsidize the campaigns of politicians, especially in these difficult economic times.” Rather than rely on public financing, Scott has decided to fund his campaign “substantially” with his own money.

Scott has funded a substantial campaign. According to Scott, he has compensated for his “relatively late entry into the race” and the fact that his principal opponent is “a politician who has been a fixture in Florida politics since 1980 by spending, between April 9 and July 7 of this year, approximately $21 million in support of his candidacy. Scott maintains that he has spent this money on television, radio, and mail advertising; travel; and “other voter education efforts.” He explains that these expenditures have permitted him to “introduce [him]self to Florida voters, convey [his] political positions, and articulate [his] policy differences with Mr. McCollum and other gubernatorial candidates in a relatively short period of time.”

Not surprisingly, these large expenditures, in Scott's words, “have proven to be extremely successful” in assisting his candidacy. According to a poll of likely voters in the Republican primary conducted by Quinnipiac University, on June 10, 2010, Scott led McCollum 44 percent to 31 percent. But opinion polls of random selections of voters are snapshots with margins of error, and campaigns are, to say the least, dynamic projects.

After McCollum's campaign manager, Jack Williams, “observed Mr. Scott's extensive radio and television campaign advertising throughout Florida,” the McCollum campaign responded to Scott's expenditures by altering its advertising strategy. The McCollum campaign purchased advertising “many weeks before originally planned.” According to Williams, McCollum spent $1 million on radio and television advertising through May 2010 and another $2.2 million through July 10, 2010. As of July 10, McCollum had $800,000 left to spend on his campaign, but McCollum is still scheduled to receive (if he has not already received) upwards of $2 million in public funds to match private qualified contributions he has raised.

Notwithstanding the apparent success of his expenditures, Scott alleges he has recently curtailed his campaign spending to avoid triggering a public subsidy afforded to his opponent under the public financing system. The Florida public financing system provides a subsidy to a participating candidate when an opposing candidate who has chosen not to participate in public financing exceeds the statutory expenditure limit, which for this election is $24,901,170, or $2 for each registered voter. Fla. Stat. §§ 106.34, 106.355. Under the public financing system, if Scott spends over this amount, any participating opponent in the Republican primary for the nomination of governor is entitled to one public dollar for every dollar Scott spends over the limit. Id. § 106.355.

In his declaration, Scott alleged that, as he has approached this limit, he has reduced his campaign spending “in a drastic manner” to ensure that he is enabling McCollum's campaign for as few days as possible. He stated that from June 25 to July 2, he “cut by roughly half” the total amount of television time purchased for certain advertisements and limited the markets in which he ran those ads. Scott alleged that he halted all television and radio advertisements from July 3 to July 6. Scott asserted that he also cut by 40 percent the total amount of television time that he purchased for certain advertisements from July 7 to July 13. Scott stated that he relied more on advertising purchased by a section 527 organization that he controls because the spending of that section 527 organization does not count as a campaign expenditure. The advertising purchased by the section 527 organization could not by law directly advocate Scott's election and was more...

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