Wisconsin Right to Life State Political Action Comm. v. Barland

• Decision Date: 12 December 2011
• Docket Number: No. 11–2623.,11–2623.
• Parties: WISCONSIN RIGHT TO LIFE STATE POLITICAL ACTION COMMITTEE, Plaintiff–Appellant, v. Thomas BARLAND, et al., Defendants–Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

664 F.3d 139

WISCONSIN RIGHT TO LIFE STATE POLITICAL ACTION COMMITTEE, Plaintiff–Appellant,

v.Thomas BARLAND, et al., Defendants–Appellees.

No. 11–2623.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 22, 2011.Decided Dec. 12, 2011.

Unconstitutional as Applied

W.S.A. 11.26(4)

Michael D. Dean, Attorney, Brookfield, WI, Randy Elf, James Bopp, Jr. (argued), Attorneys, Bopp, Coleson & Bostrom, Terre Haute, IN, for Plaintiff–Appellant.

Clayton P. Kawski (argued), 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.

In anticipation of the 2010 general elections, Wisconsin Right to Life and its State Political Action Committee filed a broad-spectrum federal lawsuit challenging various Wisconsin campaign-finance laws under the First Amendment. At issue here is a statute that limits the amount individuals may contribute to state and local candidates, political parties, and political committees to a “total of $10,000 in any calendar year.” Wis. Stat. § 11.26(4).

When the lawsuit was filed, the November elections were looming, so the plaintiffs sought a preliminary injunction enjoining enforcement of the laws they had challenged, including section 11.26(4). The defendants—members of the Government Accountability Board (“GAB”) and the Milwaukee district attorney—asked the district court to abstain and stay the case pending resolution of Wisconsin Prosperity Network v. Myse, No. 2010AP001937 (Wis. filed Aug. 9, 2010), an original action in the state supreme court challenging a newly amended campaign-finance rule that dramatically expanded the scope of political speech subject to Wisconsin's regulatory regime. The new rule, GAB 1.28, is implicated in this suit as well.

The district court agreed that Pullman abstention was appropriate and put the entire case on hold. See R.R. Comm'n of Tex. v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). The November 2010 elections came and went. A few months later, a stunning off-year political phenomenon occurred: Nine state senators were forced into recall elections to be held during the summer of 2011. The Right to Life PAC returned to court and asked the judge to lift the stay and enjoin enforcement of section 11.26(4) so that it could raise unlimited funds for independent expenditures during the recalls. The judge denied this request. The Right to Life PAC appealed and sought an injunction pending appeal. A motions panel held that the First Amendment challenge was likely to succeed and issued the injunction.

On full appellate review, we agree with that preliminary assessment and now vacate the abstention order and remand with instructions to enter a permanent injunction enjoining enforcement of section 11.26(4) on the terms specified in this opinion. First, Pullman abstention was unwarranted; the constitutionality of section 11.26(4) does not depend on whether GAB 1.28 survives review in the Wisconsin Supreme Court. On the merits, after Citizens United v. FEC, ––– U.S. ––––, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010), section 11.26(4) is unconstitutional to the extent that it limits contributions to committees engaged solely in independent spending for political speech. Citizens United held that independent expenditures do not pose a threat of actual or apparent quid pro quo corruption, which is the only governmental interest strong enough to justify restrictions on political speech. Id. at 909–11. Accordingly, applying the $10,000 aggregate annual cap to contributions made to organizations engaged only in independent spending for political speech violates the First Amendment.

I. Background

The Right to Life PAC is a Wisconsin political committee engaged in independent expenditures for political speech—specifically, independent spending for speech advocating the election of candidates for Wisconsin state and local public office. It does not make contributions to political candidates, and as an independent political committee, its activities are not coordinated with any candidate or political party.

In 2010 Terry and Mary Kohler wanted to donate $5,000 to the Right to Life PAC, but because of other political contributions they planned or had already made, their contributions would violate section 11.26(4), which imposes a $10,000 cap on the aggregate annual amount individuals may contribute to state or local candidates, political parties, and political committees. Wis. Stat. § 11.26(4). In August 2010 the Right to Life PAC filed a verified complaint in federal court alleging that section 11.26(4) and various other Wisconsin campaign-finance statutes and regulations violate the First Amendment. As relevant here, the suit contends that section 11.26(4) is unconstitutional to the extent that it limits contributions to committees, like the Right to Life PAC, that only engage in independent spending for political speech.

Because the November 2010 elections were fast approaching, the Right to Life PAC moved for a preliminary injunction enjoining the enforcement of the statutes and regulations it was challenging. The district court did not rule on the motion. Instead, the defendants—members of the GAB, which implements Wisconsin's election laws, and the Milwaukee County District Attorney, who prosecutes violations—asked the court to abstain under Pullman and stay the entire action to await the outcome of Wisconsin Prosperity Network, a case then pending in the Wisconsin Supreme Court. Wisconsin Prosperity Network is an original action challenging GAB 1.28 of the Wisconsin Administrative Code , a newly amended campaign-finance rule published by the GAB on July 31, 2010. Among other things, GAB 1.28 substantially expanded the reach of Wisconsin's campaign-finance regulatory apparatus to cover the political speech of individuals and organizations other than candidates and political committees.

The district court agreed that Pullman abstention was appropriate “as a matter of comity.” Because the state supreme court was considering the validity and scope of GAB 1.28 in the Wisconsin Prosperity Network litigation, the judge thought he should wait for that court's views on “the viability of its state's regulatory regime” before ruling on the federal constitutional questions. See Pullman, 312 U.S. at 500, 61 S.Ct. 643; Int'l Coll. of Surgeons v. City of Chicago, 153 F.3d 356, 365 (7th Cir.1998) (explaining that Pullman abstention is appropriate when the meaning of state law is uncertain and the state court's clarification might eliminate the need for a federal constitutional ruling). On September 17, 2010, the court granted the defendants' motion and stayed the case in its entirety.

The November 2010 elections dramatically changed the political landscape in Wisconsin. Republicans won the governor's office and both houses of the state legislature, and picked up a U.S. Senate seat and two in Congress. ¹ When the new governor and his allies in the state legislature began to make use of their electoral advantage in early 2011, Wisconsin found itself at the center of a political storm. The flashpoint was the governor's budget- repair bill, which included measures curbing public-employee collective-bargaining rights.² Democrats in the State Senate fled the state to thwart a vote on the bill and remained in hiding in Illinois for weeks.³ Mass protests were staged on the grounds of the State Capitol, and protesters encamped in the Capitol rotunda.⁴ In the meantime the Wisconsin Supreme Court scheduled oral argument in Wisconsin Prosperity Network for March 9, 2011, but later postponed the hearing until September 6, 2011.

The controversial budget-repair bill passed on March 10, but that did not end the political turmoil.⁵ Sixteen state senators were targeted for recall, and by summer 2011 nine senators—six Republicans and three Democrats—were forced to stand in recall elections scheduled for July and August. ⁶ In response to this unprecedented off-year political activity, ⁷ the Right to Life PAC returned to the district court and asked the judge to partially lift the stay to hear its claim that the aggregate contribution limit in section 11.26(4) is unconstitutional. The Right to Life PAC hoped to win an injunction against the enforcement of the statute so that it could accept contributions from persons who would otherwise exceed the statutory limit in order to finance its political speech during the recall elections. The district court summarily denied the motion. The judge thought the rationale for Pullman abstention still applied “with equal force today.”

The Right to Life PAC appealed and moved for an injunction pending appeal. On August 1, 2011, a motions panel granted the motion. The panel reasoned that the fate of GAB 1.28 in the Wisconsin Prosperity Network litigation would not affect the question whether section 11.26(4) is unconstitutional as applied to groups that engage in independent expenditures for political speech. See Wis. Right to Life State Political Action Comm. v. Vocke, et al., No. 11–2623, at 3 (7th Cir. Aug. 1, 2011). The panel also concluded that the constitutional claim was reasonably likely to succeed on the merits, and because First Amendment violations “ ‘are presumed to constitute irreparable injuries,’ ” Christian Legal Soc'y v. Walker, 453 F.3d 853, 867 (7th Cir.2006) (citing Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976)), entered an order enjoining the enforcement of section 11.26(4) pending appeal. Wis. Right to Life State PAC, No. 11–2566, at 3. This interim order blocks enforcement of the statute to the extent that it applies to contributions to organizations, like the Right to Life PAC, that engage in independent (i.e., “noncoordinated”) expenditures for political speech. Id. We expedited the appeal.

II. Analysis

Although the Right to Life PAC challenged a number of...