Wis. Right to Life, Inc. v. Barland

• Decision Date: 14 May 2014
• Docket Number: 12–3158.,12–3046,Nos. 12–2915,s. 12–2915
• Citation: 751 F.3d 804
• Parties: WISCONSIN RIGHT TO LIFE, INC., and Wisconsin Right to Life State Political Action Committee, Plaintiffs–Appellants, v. Thomas BARLAND, in his official capacity as Chair and Member of the Wisconsin Government Accountability Board, et al., Defendants–Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

751 F.3d 804

WISCONSIN RIGHT TO LIFE, INC., and Wisconsin Right to Life State Political Action Committee, Plaintiffs–Appellants,

v.Thomas BARLAND,^* in his official capacity as Chair and Member of the Wisconsin Government Accountability Board, et al., Defendants–Appellees.

Nos. 12–2915, 12–3046, 12–3158.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 18, 2013.

Decided May 14, 2014.

Held Unconstitutional

W.S.A. 11.38(1)(a); Wis. Admin. Code § GAB 1.28(3)(b)

Unconstitutional as Applied

Wis. Admin. Code §§ GAB 1.42(5), 1.91

Limited on Constitutional Grounds

W.S.A. 11.01(16)

James Bopp, Jr., Attorney, Bopp Law Firm, Terre Haute, IN, Michael D. Dean, Attorney, Brookfield, WI, Randy Elf, Attorney, Lakewood, NY, for Plaintiffs-Appellants.

Clayton P. Kawski, Attorney, Christopher J. Blythe, Attorney, Office of the Attorney General Wisconsin Department of Justice, Madison, WI, for Defendants-Appellees.

Before POSNER, FLAUM, and SYKES, Circuit Judges.

SYKES, Circuit Judge.

This is a sweeping challenge to Wisconsin's campaign-finance law in light of Citizens United v. FEC, 558 U.S. 310, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010). Wisconsin Right to Life, Inc., and its State Political Action Committee—its “PAC” for state elections—sued to block the enforcement of many state statutes and rules against groups that spend money for political speech independently of candidates and parties. The complaint alleges that the challenged laws are vague and overbroad and unjustifiably burden the free-speech rights of independent political speakers in violation of the First Amendment.

This is our second encounter with the case. When it was last here, we addressed a single claim by the Wisconsin Right to Life State PAC: a challenge to section 11.26(4) of the Wisconsin Statutes, which caps at $10,000 the aggregate annual amount a donor may give to state and local candidates, political parties, and political committees. See Wis. Right to Life State Political Action Comm. v. Barland (“ Borland I ”), 664 F.3d 139, 143 (7th Cir.2011). Applying Citizens United, we held that the aggregate contribution limit is unconstitutional as applied to organizations that independently spend money on election-related speech and permanently enjoined its enforcement against independent-expenditure groups and their donors. Id. at 155. Our ruling anticipated the Supreme Court's recent decision in McCutcheon v. FEC, ––– U.S. ––––, 134 S.Ct. 1434, 188 L.Ed.2d 468 (2014), which more broadly invalidated the aggregate contribution limit in federal law.

The case returns on the remaining claims, which target a dizzying array of statutes and rules, from Wisconsin's ban on political spending by corporations to the interlocking definitions that determine state “political committee” status to the “noncoordination” oath and disclaimer requirements for independent political messages, to name just a few. The case comes to us from a decision granting in part and denying in part the plaintiffs' motion for a preliminary injunction. The district court enjoined the ban on corporate political spending, partially enjoined a regulatory disclaimer rule, and denied the rest of the motion. The plaintiffs appealed.

We vacate the court's order and remand with instructions to enter a new injunction. First, the present injunction order is improper in form and must be reentered to conform to the specificity requirements of Rule 65(d) of the Federal Rules of Civil Procedure. On the merits, in the domain of campaign-finance law, the First Amendment requires a heightened degree of regulatory clarity and a close fit between the government's means and its end, and some forms of regulation are categorically impermissible.

Like other campaign-finance systems, Wisconsin's is labyrinthian and difficult to decipher without a background in this area of the law; in certain critical respects, it violates the constitutional limits on the government's power to regulate independent political speech. Part of the problem is that the state's basic campaign-finance law—Chapter 11 of the Wisconsin Statutes—has not been updated to keep pace with the evolution in Supreme Court doctrine marking the boundaries on the government's authority to regulate election-related speech. In addition, key administrative rules do not cohere well with the statutes, introducing a patchwork of new and different terms, definitions, and burdens on independent political speakers, the intent and cumulative effect of which is to enlarge the reach of the statutory scheme. Finally, the state elections agency has given conflicting signals about its intent to enforce some aspects of the regulatory mélange.

Whether the agency has the statutory authority to regulate in this way is a serious question of state administrative law on which no state court has weighed in. As we explained in Barland I, the district judge initially abstained in this case to await a ruling from the Wisconsin Supreme Court on the scope of the agency's authority and a possible limiting construction on one of the rules challenged here. 664 F.3d at 143–45. But the state high court split evenly, with one justice recused, and the original action was dismissed without decision. See Wis. Prosperity Network v. Myse, 339 Wis.2d 243, 810 N.W.2d 356 (2012) (per curiam). So we must take the regulatory scheme as we find it, testing it against federal constitutional standards.

Certain statutory provisions—the ban on corporate political spending and the cap on the amount a corporation may spend to raise money for an affiliated PAC—are obviously unconstitutional under Citizens United and our decision in Barland I. Other statutes and rules fail First Amendment standards as applied to independent political speakers. Some of the challenged provisions withstand constitutional scrutiny. We will identify the constitutional infirmities as we move through our analysis, and on remand a new, permanent injunction should be entered in accordance with this opinion. One statute—the 24–hour–reporting requirement for late contributions and expenditures—was recently amended to enlarge the reporting time to 48 hours. If the plaintiffs want to challenge the amended statute, they will have to do so in the first instance in the district court.

I. Background

A. The Parties

Wisconsin Right to Life is a nonprofit corporation with tax-exempt status as a social-welfare organization under 26 U.S.C. § 501(c)(4). Its mission is to advance pro-life positions—opposition to abortion, euthanasia, and the destruction of human embryos—in the spheres of ethics, law, and civil society, and to promote alternatives to these procedures. See The Mission and Vision of Wisconsin Right to Life,Wis. Right to Life, http:// wrtl. org/ mission (last visited May 9, 2014). In furtheranceof this purpose, Wisconsin Right to Life engages in a range of political speech and public outreach on issues connected to its mission, including (among other things) mailings, fliers, information posted on its website, and various forms of advertising. It also occasionally seeks to participate in political advocacy in state elections, but Wisconsin law flatly prohibits it from doing so. SeeWis. Stat. § 11.38(1)(a) 1 (banning corporations from making contributions and disbursements for political purposes).

To avoid violating the statutory ban on election-related speech by corporations, Wisconsin Right to Life formed an affiliated PAC that engages in express advocacy in elections for state offices. Wisconsin law prohibits the corporation from contributing to its PAC. See id. § 11.38(1)(a)2.

Neither the organization nor its state PAC contributes to candidates or other political committees, nor are they connected with candidates, their campaign committees, or political parties. That is to say, they operate independently of candidates and their campaign committees. We refer to the plaintiffs collectively as “Wisconsin Right to Life” unless the context requires us to distinguish between the organization and its PAC.

The Government Accountability Board was created in 2007 to replace the State Elections Board as the agency responsible for administering Wisconsin's campaign-finance and election laws. See 2007 Wis. Act 1 § 1. Its members are former state judges appointed by the governor from a nonpartisan slate nominated by a committee of sitting appellate judges. Wis. Stat. § 15.60. The Government Accountability Board is not itself the named defendant: The individual board members are sued in their official capacities, which amounts to the same thing. We refer to them collectively as “the GAB” or “the Board.”

The GAB has joint enforcement authority with elected district attorneys to investigate violations of the state election laws and to prosecute civil violations; district attorneys in each county have exclusive authority to prosecute criminal violations. Id. § 5.05(2m). John Chisholm, the Milwaukee County District Attorney, is also named as a defendant because Wisconsin Right to Life has its headquarters in Milwaukee County. Because this is a preenforcement suit, however, our focus is on the challenged statutes, rules, and other regulatory activity of the GAB, not on any specific action taken by the district attorney. So we need not mention Chisholm further, though he is, of course, bound by the injunction.

* * *

Wisconsin Right to Life brought this suit as a comprehensive challenge to Wisconsin's campaign-finance law in the wake of Citizens United. The case is sprawling and the briefing unwieldy, but we have managed to isolate the core constitutional claims. To understand them requires a grasp of the intricacies of Wisconsin's campaign-finance system and some familiarity with its statutory, regulatory, and litigation history. The chronicle roughly corresponds to important developments in the Supreme Court's campaign-finance caselaw, so we'll include a discussion of the relevant cases along the way and come back to them later in the...