WISCONSIN RIGHT TO LIFE, INC., and WISCONSIN RIGHT TO LIFE STATE POLITICAL ACTION COMMITTEE, Plaintiffs-Appellants,
THOMAS BARLAND, [*] in his official capacity as Chair and Member of the Wisconsin Government Accountability Board, et al., Defendants-Appellees
Argued January 18, 2013.
[Copyrighted Material Omitted]
Appeals from the United States District Court for the Eastern District of Wisconsin. No. 10-C-0669 -- Charles N. Clevert, Jr., Judge.
For WISCONSIN RIGHT TO LIFE STATE POLITICAL ACTION COMMITTEE, WISCONSIN RIGHT TO LIFE, INCORPORATED (12-2915, 12-3046, 12-3158), Plaintiffs - Appellants: James Bopp, Jr., Attorney, BOPP LAW FIRM, Terre Haute, IN; Michael D. Dean, Attorney, Brookfield, WI; Randy Elf, Attorney, Lakewood, NY.
For GERALD NICHOL, THOMAS BARLAND, in his official capacity as chair and member of the Wisconsin Government Accountability Board, MICHAEL BRENNAN, HAROLD FROELICH, in his official capacity as vice chair and member of the Wisconsin Government Accountability Board, TIMOTHY L. VOCKE, JOHN T. CHISHOLM, in his official capacity as Milwaukee County district attorney (12-2915, 12-3046, 12-3158), Defendants - Appellees: Christopher J. Blythe, Attorney, Clayton P. Kawski, Attorney, OFFICE OF THE ATTORNEY GENERAL, Wisconsin Department of Justice, Madison, WI.
For CAMPAIGN LEGAL CENTER (12-2915, 12-3046, 12-3158), Amicus Curiae: Paul M. Smith, Attorney, JENNER & BLOCK LLP, Washington, DC.
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 (" Barland 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, 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 mé lange.
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, 2012 WI 27, 339 Wis.2d 243, 810 N.W.2d 356 (Wis. 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.
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 furtherance
of 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. See Wis. 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 analysis.
Bear with us. The sweep of this case is very broad. To decide it requires a legal and political history of minor epic proportions and a good deal of regulatory detail. We will radically simplify, but significant length cannot be avoided.
B. Wisconsin's Campaign-Finance System
The statutory requirements of Wisconsin's campaign-finance system are found in
Chapter 11 of the Wisconsin Statutes, adopted in 1973 following the enactment of the Federal Election Campaign Act of 1971 (" FECA" ), 2 U.S.C. § § 431 et seq . Like its federal counterpart, Chapter 11 establishes an elaborate regulatory regime for campaign finance in state elections, imposing organizational, registration, recordkeeping, reporting, attribution, and disclaimer duties on political speakers; the law also sets limits on contributions and expenditures for election-related activities and communications. The statutory scheme broadly applies to candidates, their campaign committees, political parties, independent groups, and individuals alike.
" To a lay reader, both statutes [FECA and Chapter 11] require almost any group that wants to say almost anything about a candidate or election to register as a political committee." Wis. Right to Life, Inc. v. Paradise, 138 F.3d 1183, 1184 (7th Cir. 1998); see also Wis. Stat. § 11.12(1) (flatly prohibiting contributions and spending for election-related speech except to, through, or by an individual or committee that has registered with and is regulated by the state elections agency). But the Supreme Court's decision in Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976), limits what campaign-finance regulators may do. In Buckley, " [the] Court construed (some would say rewrote) the federal statute to avoid some of the many constitutional problems that arise when regulating political speech, the core of the [F]irst [A]mendment's domain." Paradise, 138 F.3d at 1184. " [M]any elements of the Buckley approach are required by the [F]irst [A]mendment, which means that they apply to the states." Id.
1. Buckley v. Valeo
We take our first detour into the caselaw to highlight the doctrine established in Buckley, which addressed a comprehensive challenge to the 1971 federal law and remains the Supreme Court's baseline campaign-finance decision. We start with the broad foundational principles. Because free-flowing political debate is " integral to" our system of government, " 'there is practically universal agreement that a major purpose of th[e] [First] Amendment was to protect the free discussion of governmental affairs, ... of course includ[ing] discussions of candidates.'" Buckley, 424 U.S. at 14 (quoting Mills v. Alabama, 384 U.S. 214, 218, 86 S.Ct. 1434, 16 L.Ed.2d 484 (1966)). This agreement " reflects our 'profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.'" Id. (quoting N.Y. Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964)). The right to speak freely about political issues, public policy, and candidates for public office has both individual and associational aspects and " 'has its fullest and most urgent application precisely to the conduct of campaigns for political office.'" Id. at 15 (quoting Monitor Patriot Co. v. Roy, 401 U.S. 265, 272, 91 S.Ct. 621, 28 L.Ed.2d 35 (1971)).
To implement this vital constitutional protection, Buckley narrowed the reach of FECA and announced some limiting principles applicable to all campaign-finance laws. First, the government's authority to regulate in this area extends only to money raised and spent for speech that is clearly election related ; ordinary political speech about issues, policy, and public officials must remain unencumbered.
See id. at 42-44; see also id. at 78-80.
Second, because political speech is at the core of the First Amendment right, overbreadth and vagueness concerns loom large in this area, especially when the regulatory scheme reaches beyond candidates, their campaign committees, and political parties. To protect against an unconstitutional chill on issue advocacy by independent speakers, Buckley held that campaign-finance regulation must be precise, clear, and may only extend to speech that is " unambiguously related to the campaign of a particular federal candidate." Id. at 80. To put the point differently, " '[b]ecause First Amendment freedoms need breathing space to survive, government may regulate in [this] area only with narrow specificity.'" Id. at 41 n.48 (quoting NAACP v. Button, 371 U.S. 415, 433, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963)).
The 1971 law was both too uncertain and too broad to satisfy the constitutional requirements of clarity and precision; Buckley held that the " constitutional deficiencies [of vagueness and overbreadth] ... can be avoided only by reading [the federal statute] as limited to communications that include explicit words of advocacy of election or defeat of a candidate." Id. at 43 (emphasis added). In other words, the First Amendment forbids the government from regulating political expression that does not " in express terms advocate the election or defeat of a clearly identified candidate." Id. at 44.
Applying this limiting principle to FECA's disclosure requirements for independent political expenditures, the Court gave the federal statute a narrowing construction, holding that the disclosure duties could be triggered only when " funds [are] used for communications that expressly advocate the election or defeat of a clearly identified candidate." Id. at 80. In a famous footnote, the Court listed some examples of express advocacy: " vote for," " elect," " support," " cast your ballot for," " Smith for Congress," " vote against," " defeat," and " reject." Id. at 44 n.52. These are the Buckley " magic words."
The Court also narrowed the scope of " political committee" status to reach only groups that engage in election advocacy as their major purpose. Id. at 79-80. This, too, was an application of the constitutional-avoidance doctrine to address vagueness and overbreadth concerns. Political-committee status carries a complex, comprehensive, and intrusive set of restrictions and regulatory burdens. See 2 U.S.C. § § 433, 434(a)-(b), 441a(a)(1)(C), 441b(a). Buckley held that " [t]o fulfill the purposes of the Act[,] [the definition of political committee] need only encompass organizations that are under the control of a candidate or the major purpose of which is the nomination or election of a candidate." 424 U.S. at 79. Expenditures by political committees " so construed" clearly " fall within the core area sought to be addressed by Congress. They are, by definition, campaign related." Id.
Finally, the Court drew a distinction between restrictions on expenditures for election-related speech and restrictions on contributions to candidates. Buckley held that limits on contributions are reviewed under an intermediate standard of scrutiny and may be permissible based on the public interest in preventing quid pro quo corruption, but limits on expenditures get strict scrutiny and usually flunk. See id. at 25-27, 55-56; see also Barland I, 664 F.3d at 152-53. The distinction drawn in Buckley between expenditures and contributions may be eroding--and with it the different standards of review--but for now these categories remain.
See McCutcheon, 134 S.Ct. at 1445 (opinion of Roberts, C.J.) (" [W]e see no need in this case to revisit Buckley 's distinction between contributions and expenditures and the corollary distinction in the applicable standards of review." ); see also id. at 1462-65 (Thomas, J., concurring in judgment) (calling for strict scrutiny of contribution limits).
* * *
As originally enacted, Chapter 11 of the Wisconsin Statutes contained many of the same constitutional infirmities as the federal statute. Soon after the Buckley decision was released, the Attorney General of Wisconsin issued an opinion to the State Elections Board--the predecessor to the GAB--advising it that some parts of Chapter 11 were unconstitutional and others must be narrowly construed. See 65 Op. Att'y Gen. Wis. 145 (1976); see also Paradise, 138 F.3d at 1185. Chapter 11 was thereafter amended to incorporate Buckley 's express-advocacy limiting principle. See Elections Bd. v. Wis. Mfrs. & Commerce, 227 Wis.2d 650, 597 N.W.2d 721, 727-28 (Wis. 1999).
2. Chapter 11
The various prescriptions and proscriptions in Chapter 11 apply to candidates, individuals, and political committees, broadly defined. A " committee" or " political committee" (the terms are used interchangeably) is " any person other than an individual and any combination of 2 or more persons, permanent or temporary, which makes or accepts contributions or makes disbursements, whether or not engaged in activities which are exclusively political." Wis. Stat. § 11.01(4) (emphasis added). Like its federal counterpart, Chapter 11 is structured so that political-committee status is determined indirectly, by the making or acceptance of " contributions" or the making of " disbursements" (called " expenditures" in the federal law). See id.; see also 2 U.S.C. § 431(4) (defining " political committee" ). In state law, as in FECA, this status triggers complicated and ...