Weiser v. Benson
| Decision Date | 09 September 2022 |
| Docket Number | 22-1014 |
| Citation | 48 F.4th 617 |
| Parties | Ronald WEISER; Michigan Republican Party, Plaintiffs-Appellants, v. Jocelyn BENSON, in her official capacity as Secretary of State, Defendant-Appellee, Whitmer for Governor Committee, Intervenor-Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
ARGUED: Edward M. Wenger, HOLTZMAN VOGEL BARAN TORCHINSKY & JOSEFLAK PLLC, Washington, D.C., for Appellants. Erik A. Grill, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellee Benson. Christopher M. Trebilcock, CLARK HILL PLC, Detroit, Michigan, for Appellee Whitmer.
ON BRIEF: Edward M. Wenger, Jason B. Torchinsky, HOLTZMAN VOGEL BARAN TORCHINSKY & JOSEFLAK PLLC, Washington, D.C., for Appellants. Erik A. Grill, Heather S. Meingast, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellee Benson. Christopher M. Trebilcock, Carly O. Machasic, CLARK HILL PLC, Detroit, Michigan, for Appellee Whitmer.
Before: WHITE, BUSH, and READLER, Circuit Judges.
WHITE, J., delivered the opinion of the court in which BUSH, J., joined. READLER, J. (pp. 628-32), delivered a separate opinion concurring in part and in the judgment.
Plaintiffs-Appellants—Ronald Weiser, a Republican donor and chair of the Michigan Republican Party (MRP), and the MRP—filed this action against Defendant-Appellee, Michigan Secretary of State Jocelyn Benson, alleging that an interpretative statement and a declaratory ruling issued by the Michigan Secretary of State in the 1980s (the recall exception) violates the First and Fourteenth Amendments because it allows supporters of Governor Gretchen Whitmer to make or receive contributions on more favorable terms than Weiser or the MRP with respect to the 2022 gubernatorial election. The district court dismissed the action for lack of standing after concluding that neither Weiser nor the MRP had suffered an injury in fact. Because Weiser and the MRP fail to plausibly demonstrate that the recall exception prevents Weiser or the MRP from equally supporting their preferred gubernatorial candidate, we AFFIRM.
The Michigan Campaign Finance Act (MCFA) limits the amount of money individuals and groups may donate to candidates vying for publicly elected offices during each election cycle. See Mich. Comp. Laws § 169 et seq. The general-election cycle begins "the day following the last general election in which the office appeared on the ballot" and ends "on the day of the general election in which the office next appears on the ballot." Id. § 169.205(3)(a). During this period, individuals may contribute up to $7,150 to any candidate committee of a candidate running for statewide elective office, including the office of governor; and state central committees of a political party, like the MRP and the Michigan Democratic Party (MDP), may contribute up to twenty times this amount. Id. § 169.252(1)(a), (4).1 The MCFA places no limitations on when someone may become a general-election candidate; it requires only that a candidate committee be formed to manage contributions and expenditures within ten days after one becomes a candidate. See id. §§ 169.203(1), 169.221.
A "recall vote" is also an "election," id. § 169.205(2), but different rules apply. In 1983, the Michigan Secretary of State issued an interpretative statement to clarify that the general-election contribution limits established in section 169.252 of the MCFA do not apply to contributions made to an officeholder to defend against a recall effort. R. 1-1 PID 19. The interpretative statement offers two rationales. First, although "contributions to a candidate committee of a candidate for state elective office" are capped by the MCFA at various amounts, because "a recall vote does not fill a public office ... the candidate committee of an officeholder subject to a recall vote is not a ‘candidate committee of a candidate for state elective office.’ " R. 1-1- PID 20. More simply, a recall election is not a general election. Second, because proponents of a recall measure must organize a political committee and contributions to political committees are not subject to any cap, capping contributions made to an officeholder facing recall would allow "the political committee advocating the recall to engage in unlimited fundraising, while severely limiting the officeholder's ability to raise money." R. 1-1 PID 21. Therefore, if there is a recall effort actively underway, the officeholder's committee may "accept contributions in excess of section [169.252's] contribution limitations." R. 1-1 PID 21.
The interpretative statement further provides that contributions to an officeholder to oppose an active recall effort must be so designated and must be deposited into the committee's account. R 1-1 PID 19–20. If a recall election never materializes, the officeholder's committee must divest itself of these contributions. R 1-1 PID 21. A recall donor may choose to allow the officeholder to retain a portion of the contribution for her next election—but only up to the MCFA's $7,150 cap—by expressly stating this in writing; any portion of the recall contribution exceeding the cap must be returned to the donor. R. 1-1 PID 21. "Any contribution, or portion of a contribution, not otherwise designated by a contributor in the instance where a recall election is not called, shall be given by the candidate committee to a political party committee or to a tax exempt charitable organization."2 R. 1-1 PID 21.
In 1984, the Michigan Secretary of State issued a declaratory ruling affirming the 1983 interpretative statement, including the statement's conclusion that contribution limits during a recall cycle must apply equally to "contributors to the proponents of a recall" and "contributors to the committee of the state official who is the subject of the recall," meaning that both sides must be able to raise unlimited funds. R. 1-2 PID 25. The reasoning, again, was that because a political committee promoting a recall effort is not subject to contribution caps, an officeholder facing an active recall effort also should not be. R. 1-2 PID 24–25.
In 2020 and 2021, apparently in response to Governor Whitmer's various measures to combat the spread of COVID-19 in the state, twenty-seven recall efforts were launched by Michigan voters. R. 41-2 PID 289–297. The recall cycle—the time during which an officeholder may accept recall funds—began on May 12, 2020, when the first recall petition was filed, and ended on July 26, 2021, when the last recall petition became invalid for submission and no other recall effort remained pending. See Letter from Adam Fracassi, Mich. Bureau of Elections, to Tori Sachs, Michigan Freedom Fund, 6–11 (Dec. 21, 2021), https://www.michigan.gov/sos/-/media/Project/Websites/sos/25delrio/MFF_v_Whitmer_File_744164_7.pdf?rev=9446770e067%1F64b3bac1b3d9%1F3a0b82833 & hash=73C55FB1A93%1FAFA14478D0CE%1F1992A877D ( how recall cycles begin and end) [hereinafter Fracassi Letter ].3 During this time, the Whitmer for Governor Committee (Whitmer's committee) raised over $3.7 million in recall funds from 157 donors. Appellants Br. at 8.
In December 2021, the Michigan Bureau of Elections (Bureau) ordered Whitmer's committee to disgorge all recall-designated funds, as directed by Mich. Comp. Laws § 169.245, except those being used to defend the committee in litigation related to the many recall petitions. Fracassi Letter at 9–10. Section 169.245, which normally applies upon termination of a candidate committee, provides that "unexpended funds in the candidate committee that are not eligible for transfer to another candidate committee of the person ... shall be disbursed as follows":
Mich. Comp. Laws § 169.245(2). When ordering Whitmer's committee to disgorge leftover recall funds, the Bureau stated that the committee had not expended any portion of them on "campaign advertising." Fracassi Letter at 11. On December 29, 2021, Whitmer's committee disgorged the leftover recall funds, refunding $250,000 to an individual donor and disbursing over $3.5 million to the MDP. Appellants Br. at 9; Defendant-Appellee Br. at 8; Intervenor-Appellee Br. at 7.
On September 20, 2021, Weiser and the MRP filed suit against Benson, in her official capacity, alleging that Whitmer's committee had "decided to suborn, accept, and retain contributions from her supporters in excess of the [MCFA's] legal limits" by using the recall exception to "circumvent[ ] the contribution limits that apply to all other candidates in the [2022] gubernatorial race." R. 1 PID 1–2. Weiser and the MRP claimed they are prevented from "supporting their candidates to the same level and extent as that enjoyed by their Democrat counterparts" in violation of the First and Fourteenth Amendments, and asked for declaratory and permanent injunctive relief to enjoin Benson from "applying or implementing" the recall exception in the "upcoming gubernatorial election," and temporary injunctive relief to "ensure an equitable application of the MCFA to all parties involved in the gubernatorial race." R. 1 PID 8, 15–16. Whitmer's committee filed an unopposed motion to intervene in mid-October. R. 8; R. 11.
On November 15, Whitmer's committee informed the Michigan Board of Canvassers that it intended to disburse all...
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