New York Progress and Protection PAC v. Walsh, et al., No. 13-3889 (2d Cir. 2013)
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NYPPP filed suit against election officials and others to enjoin enforcement of New York State Election Law 14-114(8) and 14-126(2). Section 14-114(8) imposed a $150,000 aggregate annual limit on certain political contributions by any person in New York State. Section 14-126(2) made it a misdemeanor to fail to file required statements or to knowingly and willfully violate any other provision of the Election Law. NYPPP would be prevented from receiving more than $150,000 from any individual contributor in any calendar year. The court concluded that NYPPP had a substantial likelihood of success on the merits; there were important public interests at stake which were weighed against the hardships suffered by NYPPP; and the hardships faced by NYPPP and its donors from the denial of relief was significant. Accordingly, the court reversed the district court's order denying the preliminary injunction.
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13-3889-cv New York Progress and Protection PAC v. Walsh, et al. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2013 (Argued: October 18, 2013 Decided: October 24, 2013) Docket No. 13-3889 - - - - - - - - - - - - - - - - - - - -x New York Progress and Protection PAC, Plaintiff-Appellant, - v.James A. Walsh, et al., Defendants-Appellees. - - - - - - - - - - - - - - - - - - - -x Before: JACOBS and LOHIER, Circuit Judges, KOELTL,* District Judge. New York Progress and Protection PAC appeals from an 30 order entered in the United States District Court for the 31 Southern District of New York (Crotty, J.), denying a 32 preliminary injunction. 33 reverse. * For the following reasons, we Judge John G. Koeltl, of the United States District Court for the Southern District of New York, sitting by designation. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 TODD R. GEREMIA, Jones Day, New York, New York (Michael A. Carvin, Louis K. Fisher, Warren Postman, Jones Day, Washington, DC, and Michael E. Rosman, Center for Individual Rights, Washington, DC, on the brief), for Appellant. JUDITH VALE, (Richard P. Dearing, on the brief), for Eric T. Schneiderman, Attorney General of the State of New York, for Appellees. DENNIS JACOBS, Circuit Judge: New York Progress and Protection PAC ( NYPPP ), an 18 unauthorized political committee formed to advocate in 19 favor of candidates in New York elections, brought suit 20 against election officials in the State and City of New 21 York, as well as the Board of Elections, to enjoin 22 enforcement of New York State Election Law §§ 14-114(8) and 23 14-126(2). 24 annual limit on certain political contributions by any 25 person in New York State. 26 misdemeanor to fail to file required statements or to 27 knowingly and willfully violate any other provision of the 28 Election Law. 29 NYPPP from receiving more than $150,000 from any individual 30 contributor in any calendar year. Section 14-114(8) imposes a $150,000 aggregate Section 14-126(2) makes it a The effect of these provisions is to prevent 2 NYPPP is a political 1 committee that engages solely in independent expenditures, 2 that is, expenditures made without prearrangement or 3 coordination with a candidate. 4 waiting to contribute $200,000 to its cause, alleges that, 5 as applied to NYPPP, the cap violates its core First 6 Amendment right to advocate in favor of Joseph Lhota in the 7 upcoming New York mayoral election, and seeks declaratory 8 and injunctive relief. 9 NYPPP, which has a donor The New York City mayoral Republican primary was held 10 September 10, 2013. NYPPP filed suit two weeks later, on 11 September 25, 2013, and the following day made a motion for 12 a preliminary injunction. 13 for the Southern District of New York (Crotty, J.) ordered 14 briefing and set oral argument for Tuesday, October 8. 15 Friday, October 11, NYPPP filed a letter reiterating the 16 urgency of the matter in light of the approaching November 5 17 mayoral election. 18 a writ of mandamus with this Court to compel the district 19 court to rule on the pending motion. 20 the mandamus petition was scheduled for Friday, October 18, 21 the district court issued an opinion and order denying 22 NYPPP s motion. The United States District Court On On October 16, NYPPP filed a petition for Soon after argument on N.Y. Progress & Prot. PAC v. Walsh, No. 13- 3 1 cv-6769 (PAC), 2013 WL 5647168 (S.D.N.Y. Oct. 17, 2013) 2 ( Op. & Order ). 3 mandamus petition and appealed from the district court s 4 order, and we agreed to hear argument as originally 5 scheduled. 6 7 In quick succession, NYPPP withdrew its The appeal was heard on the merits at oral argument on October 18. 8 I 9 10 The district court s denial of a preliminary injunction 11 is reviewed for abuse of discretion. WNET, Thirteen v. 12 Aereo, Inc., 712 F.3d 676, 684 (2d Cir. 2013). 13 abuse occurs when the district court bases its ruling on an 14 incorrect legal standard or on a clearly erroneous 15 assessment of the facts. 16 of Educ. of City of N.Y., 331 F.3d 342, 348 (2d Cir. 2003). 17 A finding is clearly erroneous when although there is 18 evidence to support it, the reviewing court on the entire 19 evidence is left with the definite and firm conviction that 20 a mistake has been committed. United States v. U.S. Gypsum 21 Co., 333 U.S. 364, 395 (1948). Although we must defer to 22 the district court s factual findings, in First Amendment Such an Bronx Household of Faith v. Bd. 4 1 cases, an appellate court has an obligation to make an 2 independent examination of the whole record in order to 3 make sure that the judgment does not constitute a forbidden 4 intrusion on the field of free expression. 5 Consumers Union of U.S., Inc., 466 U.S. 485, 499 (1984) 6 (quoting N.Y. Times Co. v. Sullivan, 376 U.S. 254, 284 286 7 (1964)). 8 Bose Corp. v. A plaintiff seeking a preliminary injunction must 9 establish that he is likely to succeed on the merits, that 10 he is likely to suffer irreparable harm in the absence of 11 preliminary relief, that the balance of equities tips in his 12 favor, and that an injunction is in the public interest. 13 Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 14 (2008). 15 will alter the status quo must demonstrate a substantial 16 likelihood of success on the merits. 17 v. McDonald, 362 F.3d 17, 24 (2d Cir. 2004). A plaintiff who seeks a preliminary injunction that Sunward Elecs., Inc. 18 II 19 20 The loss of First Amendment freedoms, even for minimal 21 periods of time, unquestionably constitutes irreparable 22 injury. Elrod v. Burns, 427 U.S. 347, 373 (1976). 5 The 1 harm is particularly irreparable where, as here, a plaintiff 2 seeks to engage in political speech, as timing is of the 3 essence in politics and a delay of even a day or two may be 4 intolerable. 5 1208 (9th Cir. 2009) (internal quotation marks and 6 alterations omitted). 7 presumed in First Amendment cases unless the challenged law 8 directly limits speech, 9 and that no such presumption arises in this case because the Klein v. City of San Clemente, 584 F.3d 1196, The State argues that injury is not Bronx Household, 331 F.3d at 349, 10 limits are imposed indirectly. But Bronx Household 11 identified a category of indirect limits on speech by 12 reference to Latino Officers Ass n v. Safir, 170 F.3d 167, 13 171 (2d Cir. 1999), which dealt with a policy requiring 14 police officers to notify their department about their 15 speaking engagements and to provide a written summary of the 16 speech the day after the engagement. 17 331 F.3d at 350 (discussing Latino Officers). 18 found the theoretical possibility of a chilling effect on 19 officers speech too conjectural and insufficient to 20 establish irreparable harm. 21 Latino Officers bears no resemblance to the direct 22 restriction on political expression at issue here. Id. 6 See Bronx Household, There we The policy at issue in 1 Although we express no opinion on the ultimate outcome, 2 the plaintiff here has a substantial likelihood of success 3 on the merits. 4 FEC that the government has no anti-corruption interest in 5 limiting independent expenditures. 6 (2010). 7 expenditure committee such as NYPPP is even further removed 8 from political candidates and may not be limited in his 9 ability to contribute to such committees.1 10 The Supreme Court held in Citizens United v. 558 U.S. 310, 357-61 It follows that a donor to an independent All federal circuit courts that have addressed this issue have so held. 1 This result obtains regardless of the standard of review. After Buckley v. Valeo, political contribution limits are subject to heightened scrutiny, which requires that they be closely drawn to match a sufficiently important interest. 424 U.S. 1, 25 (1976). Expenditure limits are subject to even higher scrutiny, requiring that they be narrowly tailored to meet a compelling government interest. See Citizens United, 558 U.S. at 340. In this case, the effect of the restrictions is to limit contributions that can be made to a committee that seeks to make independent expenditures. It is unnecessary to decide which level of scrutiny should apply, because preventing quid pro quo corruption is the only government interest strong enough to justify restrictions on political speech, see id. at 357-61, and the threat of quid pro quo corruption does not arise when individuals make contributions to groups that engage in independent spending on political speech, see Wis. Right to Life State Political Action Comm. v. Barland, 664 F.3d 139, 154 (7th Cir. 2011). See also SpeechNow.org v. FEC, 599 F.3d 686, 694 (D.C. Cir. 2010); Long Beach Area Chamber of Commerce v. City of Long Beach, 603 F.3d 684, 696 (9th Cir. 2010). 7 1 See Texans for Free Enterprise v. Tx. Ethics Comm n, No. 13- 2 50014, 2013 WL 5639542, at *2 (5th Cir. Oct. 16, 2013) ( We 3 adopt the reasoning of our sister courts and hold that the 4 challenged law is incompatible with the First Amendment. ); 5 Wis. Right to Life State Political Action Comm. v. Barland, 6 664 F.3d 139, 143 (7th Cir. 2011) ( On the merits, after 7 Citizens United ..., [the Wisconsin campaign finance law] is 8 unconstitutional to the extent that it limits contributions 9 to committees engaged solely in independent spending for 10 political speech. ); Long Beach Area Chamber of Commerce v. 11 City of Long Beach, 603 F.3d 684, 696 (9th Cir. 2010) ( Nor 12 has the City shown that contributions to the Chamber PACs 13 for use as independent expenditures raise the specter of 14 corruption or the appearance thereof. ); SpeechNow.org v. 15 FEC, 599 F.3d 686, 695 (D.C. Cir. 2010) (en banc) ( Given 16 this analysis from Citizens United, we must conclude that 17 the government has no anti-corruption interest in limiting 18 contributions to an independent expenditure group .... ); 19 N.C. Right to Life, Inc. v. Leake, 525 F.3d 274, 293 (4th 20 Cir. 2008) (declaring unconstitutional, pre-Citizens United, 21 contribution limit to independent expenditure political 22 committees because no anti-corruption interest was 8 1 furthered). 2 of a motion for a preliminary injunction, was heard en banc 3 in the first instance and was decided unanimously. 4 federal district courts across the country have struck down 5 analogous laws.2 6 The D.C. Circuit appeal, taken from the denial Numerous Few contested legal questions are answered so 7 consistently by so many courts and judges. 8 court, however, conducted no analysis of NYPPP s likelihood 2 The district See, e.g., Stay the Course W. Va. v. Tennant, No. 12-cv-01658, 2012 WL 3263623, *6 (S.D. W. Va. Aug. 9, 2012) ( The government has no interest in maintaining the contribution limit as applied to [independent expenditure groups] ); Lair v. Murry, 871 F. Supp. 2d 1058, 1068 (D. Mont. 2012) ( [U]nder Citizens United ... governments cannot ban corporate contributions to political committees that the committees then use for independent expenditures ); Yamada v. Weaver, 872 F. Supp. 2d 1023, 1041 (D. Haw. 2012) ( [C]ontribution limitations to [independent expenditure] organizations violate the First Amendment ); Pers. PAC v. McGuffage, 858 F. Supp. 2d 963, 969 (N.D. Ill. 2012) ( [R]egulations imposing limits on fundraising by independent expenditure organizations cannot be justified ); Republican Party of N.M. v. King, 850 F. Supp. 2d 1206, 1215 (D.N.M. 2012) ( New Mexico does not have an anti-corruption interest capable of justifying contribution limits if those contributions are to be used exclusively for independent expenditures ); Fund for Jobs, Growth, & Sec. v. N.J. Election Law Enforcement Comm n, No. 13-CV-02177-MAS-LHG (D.N.J. July 11, 2013) (consent order permanently enjoining the New Jersey Election Law Enforcement Commission from enforcing New Jersey s contribution limits so long as expenditures are not coordinated with candidates or political party committees). 9 1 of success.3 2 address whether NYPPP can establish a substantial likelihood 3 of success on the merits or irreparable harm. ). 4 Consideration of the merits is virtually indispensable in 5 the First Amendment context, where the likelihood of success 6 on the merits is the dominant, if not the dispositive, 7 factor. 8 613, 620 (7th Cir. 2004) ( When a party seeks a preliminary 9 injunction on the basis of a potential First Amendment 10 violation, the likelihood of success on the merits will 11 often be the determinative factor. (citing Connection 12 Distrib. Co. v. Reno, 154 F.3d 281, 288 (6th Cir. 1998))). 13 This was reversible error. See Op. & Order at *14 ( [T]he Court need not See, e.g., Joelner v. Vill. of Wash. Park, 378 F.3d 14 III 15 16 The district court combines its analysis of the balance 3 The district court posits that so-called independent expenditure-only committees that have only one purpose advancing a single candidacy at a single point in time - are not truly independent as a matter of law. Op. & Order at *9. Not so. Under Buckley and Citizens United, absence of prearrangement and coordination with a candidate are the hallmarks of committee independence. See Citizens United, 558 U.S. at 345; Buckley, 424 U.S. at 47. An independent committee s choice to advocate on behalf of a single candidate, and its formation after that candidate is nominated, are irrelevant. 10 1 of hardships and the public interest, and assumes that by 2 definition the interests of the State are aligned with those 3 of the public. 4 Defendants represent the public, there are important public 5 interests at stake, which must be weighed against the 6 hardships suffered by NYPPP if an injunction is not 7 granted. ). 8 the public interest. 9 Ashcroft, 322 F.3d 240, 247 (3d Cir. 2003) ( [T]he Op. & Order at *7 ( Since the State However, securing First Amendment rights is in See Am. Civil Liberties Union v. 10 Government does not have an interest in the enforcement of 11 an unconstitutional law. (internal quotation marks 12 omitted)). 13 The hardship faced by NYPPP and its donors from the 14 denial of relief is significant. 15 forbidden to contribute to NYPPP because of this statute 16 reduces constitutionally protected political speech. 17 of the district court s analysis of hardship focuses on 18 hardship to the election system arising from the timing of 19 this suit and this motion for a preliminary injunction. 20 as the Supreme Court has emphasized, the value of political 21 speech is at its zenith at election time: 22 23 Every sum that a donor is Much But It is well known that the public begins to concentrate on elections only in the weeks immediately before they 11 1 2 3 4 5 6 7 8 9 10 11 12 are held. There are short timeframes in which speech can have influence. The need or relevance of the speech will often first be apparent at this stage in the campaign. The decision to speak is made in the heat of political campaigns, when speakers react to messages conveyed by others. A speaker's ability to engage in political speech that could have a chance of persuading voters is stifled if the speaker must first commence a protracted lawsuit. Citizens United, 558 U.S. at 334. The district court found that granting NYPPP a 13 preliminary injunction would create confusion over whether 14 other committees were covered by the injunction and, [e]ven 15 more troubling, that an injunction would amplify NYPPP s 16 voice over the voices of other political committees because 17 the State would still be free to prosecute others who may 18 violate the statute. 19 quotation marks omitted). 20 that we direct be entered frees only NYPPP. 21 described by the district court, these concerns are neither 22 sufficiently severe disruptions to the election process 23 itself nor sufficiently particularized to outweigh the 24 irreparable harm that stems from restrictions on political 25 speech. 26 27 Op. & Order at *10-11 (internal True, the preliminary injunction But as The State relies on cases such as Reynolds v. Sims, 377 U.S. 533 (1964), for the proposition that denial of the 12 1 preliminary injunction should be affirmed because of the 2 disruption the preliminary injunction would cause to the 3 election process. 4 process of legislative reapportionment, and there is no 5 comparable showing of what burdens would be imposed on the 6 State by freeing NYPPP from the limit on individual 7 contributions that it can receive in connection with the 8 upcoming election. But Reynolds involved the complicated 9 IV 10 11 The district court thought that the plaintiff created 12 an artificial urgency by waiting until forty-one days 13 before the ... election before filing suit. 14 *12. 15 for fair consideration ... before deciding a constitutional 16 issue of such importance, Op. & Order at *9, we should not 17 mak[e] unnecessary distinctions ... between speech that we 18 find to be urgent and that which we think can bide its 19 time, 20 (Sack, J., concurring). 21 what speech is pressing and what can suffer the law s delay. 22 That, like deciding what speech is important and what Op. & Order at Although the district court cited insufficient time Tunick v. Safir, 209 F.3d 67, 95 (2d Cir. 2000) We ought not to be determining 13 1 unimportant, is not for the courts. Id. Tunick treated as 2 pressing a public display of nudity; political speech is not 3 a lesser order of expression. 4 CONCLUSION 5 6 For the foregoing reasons, the order denying the 7 preliminary injunction is reversed, and the district court 8 shall forthwith enter a preliminary injunction enjoining the 9 application and enforcement of N.Y. Elec. Law §§ 14-114(8) 10 and 14-126 against NYPPP and its individual donors for the 11 use of the contributions of those donors only for 12 independent expenditures. 13 immediately. The mandate shall issue 14
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