Justia.com Opinion Summary:
Appellants, three Minnesota corporations seeking to advance their respective social and commercial interests, filed suit to enjoin Minnesota election laws on independent expenditures and corporate contributions to candidates and political parties and moved for a preliminary injunction. At issue was whether the district court erred in failing to grant a preliminary injunction because appellants failed to show a likelihood of success. The court held that the district court did not abuse its discretion in denying appellant's request for an injunction where appellants were unlikely to prevail on the issue of whether Minnesota functionally retained a ban on corporate independent expenditures; appellants were unlikely to prevail on their claim of improper tailoring; and appellants were unlikely to prevail on the direct-contribution issue or the independent-expenditure issue.Receive FREE Daily Opinion Summaries by Email
Civil case - Elections and Campaign Contributions. In an action seeking to invalidate Minnesota's ban on corporations making direct contributions to candidates and political parties and Minnesota's regulation of how corporations may make independent expenditures, the district court did not err in denying plaintiff's motion for a preliminary injunction as plaintiffs were unlikely to prevail on the merits of their claims; Minnesota's provisions of corporate independent expenditures are similar in purpose and effect to the disclosure laws the Supreme Court upheld in Citizens United v. Federal Elections Commission, 130 S. Ct. 876 (2010) and, as a result, plaintiffs are unlikely to prevail on the issue of whether Minnesota impermissibly retained a ban on corporate independent expenditures; nor are plaintiffs likely to prevail on the claim that the laws are not sufficiently tailored given the heightened level of constitutional scrutiny or the claim that the state's ban on direct corporate contributions is unconstitutional. Chief Judge Riley, concurring in part and dissenting in part.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
Minnesota Citizens Concerned for
Life, Inc.; The Taxpayers League of
Minnesota; Coastal Travel Enterprises,
Lori Swanson, Minnesota Attorney
General, in her official capacity; Bob
Milbert; John Scanlon; Terri Ashmore;
Hilda Bettermann; Felicia Boyd; Greg
McCullough, Minnesota Campaign
Finance and Public Disclosure Board
Members, in their official capacities;
Raymond Krause, Chief Administrative
Law Judge of the Minnesota Office of
Administrative Hearings, in his official
capacity; Eric Lipman, Assistant Chief
Administrative Law Judge of the
Minnesota Office of Administrative
Hearings, in his official capacity;
Manuel Cervantes; Beverly Heydinger;
Richard Luis; Steve Mihalchick;
Barbara Neilson; Kathleen Sheehy,
Administrative Law Judges of the
Minnesota Office of Administrative
Hearings, in their official capacities;
Appeal from the United States
District Court for the
District of Minnesota.
Michael Freeman, Hennepin County
Attorney, in his official capacity,
Campaign Legal Center; Democracy
21; and The Brennan Center for Justice, *
NYU School of Law,
Amici on Behalf of Appellee.
Submitted: January 11, 2011
Filed: May 16, 2011
Before RILEY, Chief Judge, BYE and MELLOY, Circuit Judges.
MELLOY, Circuit Judge.
Minnesota Citizens Concerned for Life, Inc., The Taxpayers League of
Minnesota, and Coastal Travel Enterprises, LLC, (collectively "Minnesota Citizens")
are Minnesota corporations challenging several provisions of Minnesota's corporate
election laws. Specifically, Minnesota Citizens seeks to invalidate (1) Minnesota's
ban on corporations making direct contributions to candidates and political parties
and (2) Minnesota's regulation of how corporations may make independent
expenditures, as defined in the next section. Minnesota Citizens brings this challenge
in response to the Supreme Court's recent decision in Citizens United v. Federal
Election Commission, 130 S. Ct. 876 (2010). At the outset of the proceeding below,
Minnesota Citizens moved for a preliminary injunction. The district court1 denied the
motion, and Minnesota Citizens appeals this denial. We affirm.
The First Amendment provides in part that "Congress shall make no law . . .
abridging the freedom of speech." Interpreting this provision, the Supreme Court in
Citizens United overruled its prior precedent and held that the government may not
ban corporations from making independent expenditures, that is, "political speech
presented to the electorate that is not coordinated with a candidate," advocating the
election or defeat of a candidate. 130 S. Ct. at 910, 913. The Supreme Court further
held that the government may not force corporations wishing to make independent
expenditures to speak through "separate segregated fund[s]," known as political
action committees ("PACs"), at least where the PACs are "separate association[s]
from the corporation" and where the PACs are subject to "burdensome" regulations.
Id. at 897. The Supreme Court, however, upheld a federal disclaimer and disclosure
law at issue and did not expressly overrule its prior precedent allowing the
government to prohibit direct corporate contributions to candidates and other entities,
like political parties, that work in conjunction with candidates. Id. at 886, 917.
In response, Minnesota amended portions of its election laws. Minnesota
retained a longstanding prohibition on direct corporate contributions to candidates
and affiliated entities. Minn. Stat. Â§ 211B.15, subdiv. 2. At most, according to
Minnesota Citizens, Minnesota permits corporations to establish conduit funds to
which others may contribute. See id. subdiv. 16. In contrast, Minnesota amended
its regulations on corporate independent expenditures and created two means by
The Honorable Donovan W. Frank, United States District Judge for the
District of Minnesota.
which corporations could make such expenditures. Id., subdiv. 3; Minn. Stat. Â§
10A.12, subdiv. 1a. Minnesota first defined an independent expenditure as:
an expenditure expressly advocating the election or defeat of a clearly
identified candidate, if the expenditure is made without the express or
implied consent, authorization, or cooperation of, and not in concert
with or at the request or suggestion of, any candidate or any candidate's
principal campaign committee or agent.
Minn Stat. Â§ 10A.01, subdiv. 18. Minnesota then required corporations wishing to
make such expenditures to either "form and register an independent expenditure
political fund if the expenditure is in excess of $100 or [contribute to an] existing
independent expenditure political committee or political fund." Id. Â§ 10A.12, subdiv.
1a; see also Minn. Stat. Â§ 211B.15, subdiv. 3.
If a corporation chooses to establish a political fund, then the corporation and
its political fund are subject to a series of statutory requirements. Under the revised
Minnesota law, the corporation must first appoint a treasurer for the political fund,
and the treasurer must then register the fund within fourteen days by filling out a twopage form disclosing, among other things, a listing of all of the fund's depositories
and the names and addresses of the fund, treasurer, and any deputy treasurers. Id. Â§Â§
10A.12, subdiv. 3, 10A.14, subdivs. 1, 2. The political fund must also segregate its
funds from any other funds. Id. Â§ 10A.12, subdiv. 2. If a corporation is the sole
donor to its fund, a corporation can segregate funds with an internal bookkeeping
device, such as a spreadsheet. Once established, the political fund must further file
periodic, detailed reports. As the district court explained:
The fund must file five reports during a general-election year and one
report during a non-general-election year. Minn. Stat. Â§ 10A.20. The
report must disclose the amount of liquid assets at the beginning of a
reporting period; the name and address of each individual or association
whose contributions within the year exceed $100; the amount and date
of such contributions; the sum of contributions during the reporting
period; each loan made or received that exceeds $100; the name and
address of the lender; receipts over $100 during the reporting period not
otherwise listed; the sum of those receipts; the name and address of each
individual or association to whom the reporting entity made
expenditures within the year exceeding $100; the sum of all
expenditures made by the reporting entity during the reporting period;
the name and address of each political committee, political fund,
principal campaign committee, or party unit to which contributions in
excess of $100 were made; the sum of all contributions; the amount and
nature of any advance of credit incurred; the name and address of each
individual or association to whom noncampaign disbursements have
been made that aggregate in excess of $100 and the purpose of each
noncampaign disbursement; the sum of all noncampaign disbursements;
and the name and address of a nonprofit corporation that provides
administrative assistance to the political committee or political fund.
Minn. Stat. Â§ 10A.20.
Moreover, the treasurer for a political fund must keep certain records and make them
available for an audit. Id. Â§ 10A.13. Finally, if a political fund wants to dissolve,
then it must settle its debts, dispose of its remaining assets, and file a termination
report. Id. Â§ 10A.24. One method in which a political fund can dispose of its assets
is by returning contributions to their sources. Id. Â§ 211B.12; Â§ 10A.01, subdiv. 26(2).
If, on the other hand, a corporation chooses to contribute to an existing political
fund, then the corporation is subject to fewer statutory requirements. A for-profit
corporation need only provide its name and address for contributions made from its
general treasury. A non-profit corporation, by contrast, would also need to disclose
information regarding the underlying source of the contribution if the corporation
contributed more than $5,000 to a political fund or committee. Similarly, a
corporation that solicits and receives contributions for a political fund must disclose
the source of the contributions.
In this case, appellants are three Minnesota corporations seeking to advance
their respective social and commercial interests. Minnesota Citizens Concerned for
Life is a non-profit corporation seeking to "secure protections for innocent human life
from conception until natural death through effective education, legislation, and
political action." The Taxpayer League of Minnesota is a non-profit corporation
advocating for "lower taxes, limited government, and full empowerment of taxpaying
citizens." Finally, Coastal Travel Enterprises, LLC, is a for-profit, limited-liability
corporation that provides "retail travel industry services." Each corporation exists for
a purpose other than nominating or electing specific candidates, but each corporation
wishes to make independent expenditures and to contribute directly to candidates and
political parties.2 The companies filed suit to enjoin Minnesota elections laws on
independent expenditures and corporate contributions to candidates and political
parties and moved for a preliminary injunction. The district court denied the motion
to enjoin primarily because the corporations failed to show a "likelihood of success."
This appeal followed.
Minnesota Citizens argues that the district court erred in failing to grant a
preliminary injunction. According to Minnesota Citizens, it is likely to prevail on the
merits with respect to the issue of corporate independent expenditures because
Minnesota regulates such expenditures in a manner Citizens United prohibits.
Minnesota Citizens maintains that Minnesota effectively retained its ban on corporate
independent expenditures by requiring corporations to use separate entitiesâ€”i.e.,
political fundsâ€”to speak and by imposing "burdensome" regulations on political
funds similar to those that the Supreme Court found to constitute a de facto ban in
If the "major purpose" of the corporations were to "influence the nomination
or election of a candidate or to promote or defeat a ballot question," then Minnesota
law would require the corporations to register as political action committees. Minn.
Stat. Â§ 10A.01, subdiv. 27.
Citizens United. Minnesota Citizens also argues that it is likely to prevail on the
issue of direct corporate contributions because Citizens United broadly holds that the
First Amendment proscribes any governmental ban on corporate political speech.
Minnesota Citizens alternatively asserts that prior Supreme Court precedent, when
properly interpreted, allows the government to limit direct contributions to candidates
and affiliated entities only when corporations have another means of speaking, which
Minnesota Citizens does not have because Minnesota functionally banned all forms
of direct corporate contributions. Moreover, Minnesota Citizens claims that
Minnesota's disputed election laws are not properly tailored in light of the
constitutionally heightened level of scrutiny. Finally, Minnesota Citizens argues that
it satisfied the remaining requirements for issuing an injunction. We disagree and
address each of Minnesota Citizens's arguments in turn.
When evaluating whether to issue a preliminary injunction, a court should
consider four factors: (1) the probability that the movant will succeed on the merits;
(2) the threat of irreparable harm to the movant; (3) the state of balance between this
harm and the injury that granting the injunction will inflict on other parties; and (4)
the public interest. Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 114 (8th Cir.
1981). A party seeking to challenge the validity of a duly enacted state statute must
meet a more rigorous standard of success, however, and show that it is "likely to
prevail on the merits" because of the deference owed to laws which are the product
of the democratic process. Planned Parenthood Minn., N.D., S.D. v. Rounds, 530
F.3d 724, 733 (8th Cir. 2008). Nevertheless, as to the merits of a specific issue, "the
burdens at the preliminary injunction stage track the burdens at trial." Gonzales v.
O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 429 (2006).
Additionally, a court's determination regarding the ability of a moving party to prevail
will often be determinative of the matter, especially in First Amendment cases where
a party is seeking to enjoin a law that restricts speech. Phelps-Roper v. Nixon, 545
F.3d 685, 690 (8th Cir. 2008); see also Planned Parenthood, 530 F.3d at 732 ("If the
party with the burden of proof makes a threshold showing that it is likely to prevail
on the merits, the district court should then proceed to weigh the other Dataphase
factors."). Finally, we review the denial of a preliminary injunction for an abuse of
discretion, which may occur when "the district court rests its conclusion on clearly
erroneous factual findings or erroneous legal conclusions." Planned Parenthood, 530
F.3d at 733 (internal quotation marks omitted).
Minnesota Citizens first argues that Minnesota impermissibly preserved its ban
on corporate independent expenditures when amending its election laws. Minnesota
Citizens asserts that Minnesota still bans corporations from making independent
expenditures because corporations can only contribute to political funds, which are
separate entities. This runs afoul of the Supreme Court's "clear" holding in Citizens
United, which, according to Minnesota Citizens, mandates that "corporations must
be allowed to make their own, general-fund independent expenditures." Minnesota
Citizens alternatively argues Minnesota's extensive regulation of political funds
serves as a de facto ban even if a corporation could theoretically speak through a
political fund. For support, Minnesota Citizens argues the regulations Minnesota
imposes are materially indistinguishable from the PAC regulations the Supreme Court
found to be unconstitutionally burdensome in Citizens United. Minnesota Citizens
specifically takes issue with Minnesota's requirement of periodic reports, segregated
funds, and the appointment of a treasurer. We disagree, finding that Minnesota's
provisions on corporate independent expenditures are similar in purpose and effect
to the disclosure laws that the Supreme Court upheld in Citizens United.
To address Minnesota Citizen's arguments, we first turn to the Supreme Court's
decision in Citizens United. In Citizens United, the Supreme Court considered the
constitutionality of a federal law that prohibited "corporations and unions from using
their general treasury funds to make independent expenditures for speech defined as
an 'electioneering communication' or for speech expressly advocating the election or
defeat of a candidate."3 130 S. Ct. at 886 (quoting 2 U.S.C. Â§ 441b). Related
provisions of federal law, though, permitted corporations and unions to establish and
administer "separate segregated fund[s] (known as . . . political action committee[s],
or PAC[s]) for these purposes," but limited "moneys received by the segregated
fund[s] . . . to donations from stockholders and employees of the corporation[s] or,
in the case of unions, members of the union[s]." Id. at 887â€“88 (citation omitted)
(internal quotation marks omitted). The Court further considered the constitutionality
of a federal disclaimer law and a federal disclosure law. The disclosure law is most
relevant and mandated in part that:
any person who spends more than $10,000 on electioneering
communications within a calendar year must file a disclosure statement
with the [Federal Election Commission]. That statement must identify
the person making the expenditure, the amount of the expenditure, the
election to which the communication was directed, and the names of
Id. at 914 (citing 2 U.S.C. Â§ 424(f)). Finally, the Supreme Court considered these
laws in the context of a non-profit corporation that wished to release a film critical
of then-Senator Hillary Clinton, who was a candidate for the 2008 Democratic
presidential primary, and wished to do so without complying with the applicable
federal disclaimer or disclosure laws. Id. at 887, 913.
In resolving the case, the Supreme Court struck down Â§ 441b's restrictions on
corporate independent expenditures but upheld the federal disclaimer and disclosure
Federal law defines an electioneering communication as any publicly available
"broadcast, cable, or satellite communication that refers to a clearly identified
candidate for Federal office and is made within 30 days of a primary or 60 days of a
general election." Citizens United, 130 S. Ct. at 887 (internal quotation marks
laws, stating: "The Government may regulate corporate political speech through
disclaimer and disclosure requirements, but it may not suppress that speech
altogether." Id. at 886. More specifically, the Court held that corporations have a
First Amendment right to make independent expenditures; any governmental ban on
corporate independent expenditures will trigger the highest level of constitutional
scrutiny, namely "strict scrutiny"; and "[n]o sufficient governmental interest" exists
to justify a ban under this constitutionally heightened level of scrutiny. Id. at
897â€“913. The Court then proceeded to strike down Â§ 441b as an impermissible ban
on independent expenditures by corporations, despite the ability of corporations to
form PACs under Â§ 441b. Id. This is because such PACs are separate entities from
their founding corporations and burdensome to administer, both of which effectively
prevent corporations from speaking. Id. at 914. As the Court explained:
Section 441b is a ban on corporate speech notwithstanding the fact that
a PAC created by a corporation can still speak. A PAC is a separate
association from the corporation. So the PAC exemption from Â§ 441b's
expenditure ban, Â§ 441b(b)(2), does not allow corporations to speak.
Even if a PAC could somehow allow a corporation to speakâ€”and it
does notâ€”the option to form PACs does not alleviate the First
Amendment problems with Â§ 441b. PACs are burdensome alternatives;
they are expensive to administer and subject to extensive regulations.
For example, every PAC must appoint a treasurer, forward donations to
the treasurer promptly, keep detailed records of the identities of the
persons making donations, preserve receipts for three years, and file an
organization statement and report changes to this information within 10
And that is just the beginning. PACs must file detailed monthly reports
with the FEC, which are due at different times depending on the type of
election that is about to occur: These reports must contain information
regarding the amount of cash on hand; the total amount of receipts,
detailed by 10 different categories; the identification of each political
committee and candidate's authorized or affiliated committee making
contributions, and any persons making loans, providing rebates, refunds,
dividends, or interest or any other offset to operating expenditures in an
aggregate amount over $200; the total amount of all disbursements,
detailed by 12 different categories; the names of all authorized or
affiliated committees to whom expenditures aggregating over $200 have
been made; persons to whom loan repayments or refunds have been
made; the total sum of all contributions, operating expenses, outstanding
debts and obligations, and the settlement terms of the retirement of any
debt or obligation.
Id. at 897 (citations omitted) (internal quotations marks omitted). The Supreme Court
also expressly overruled its prior decisions to the contrary, namely portions of Austin
v. Michigan Chamber of Commerce, 494 U.S. 652 (1990), and McConnell v. Federal
Election Commission, 540 U.S. 93 (2003). Id. at 913. By contrast, the Court upheld
the federal disclaimer and disclosure laws at issue under the "exacting scrutiny"
standard of review in part because while such "requirements may burden the ability
to speak, . . . they impose no ceiling on campaign-related activities and do not prevent
anyone from speaking." Id. at 914 (citation omitted) (internal quotation marks
In this case, we do not believe Minnesota Citizens is likely to prevail on the
specific issue of whether Minnesota impermissibly retained a ban on corporate
independent expenditures. Under Minnesota law, a corporation does not need to be
a separate association from a political fund it establishes. A corporation can retain
full control over the operations of a political fund it creates, including by appointing
a corporate employee or officer as the fund's treasurer and by directing the political
fund to return any excess contributions and dissolve. Additionally, unlike the PACs
the Supreme Court considered, a corporation can contribute an unlimited amount
directly to its political fund, and the political fund can use these contributions to make
expenditures. Citizens United, 130 S. Ct. at 887â€“88 (citing 2 U.S.C. Â§ 441b(b)(2)).
Moreover, a corporation can use a bookkeeping device as simple as an internal
spreadsheet to separate a political fund's assets from general corporate assets. Thus,
while a corporation can choose to create a political fund that may constitute a separate
association, a corporation need not do so in order to speak. As such, we conclude
Minnesota Citizens is not likely to show that Minnesota retained a per se ban on
corporate independent expenditures.
Likewise, Minnesota Citizens is not likely to prevail on its theory that
Minnesota retained a functional ban on corporate independent expenditures. The
Supreme Court held that PACs are "burdensome alternatives," noting PACs: (1)
must appoint a treasurer and forward donations to the treasurer; (2) keep detailed
records and receipts for an extended period of time, including information on the
identity of donors; (3) file and update an organizational statement; and (4) file
monthly reports, detailing the PACs operating expenses, receipts, assets,
contributions, expenditures, and debt amongst other things. Citizens United, 130 S.
Ct. at 897. The Supreme Court, however, based its holding on the cumulative effects
of the federal regulations and not the existence of any specific regulation. See id.
("PACs are burdensome alternatives; they are expensive to administer and subject to
extensive regulations." (emphasis added)). Indeed, the Supreme Court upheld a
federal disclaimer law that required detailed disclosures and extensive recordkeeping.
Id. at 914. The federal disclosure law at issue required anyone who spent more than
$10,000 on electioneering communications within a calendar year to file a report
indicating: (1) the identity of the individual or entity making the expenditure; (2) the
"custodian of the books and accounts of the person making the disbursement"; (3)
"[t]he amount of each disbursement of more than $200 during the period covered by
the statement and the identification of the person to whom the disbursement was
made"; (4) "[t]he elections to which the electioneering communications pertain and
the names (if known) of the candidates identified or to be identified"; and (5) the
names and address of anyone who contributed $1,000 or more to the person or entity
that paid for the electioneering communication. 2 U.S.C. Â§ 434(f). Consequently, we
must evaluate Minnesota's provisions on independent expenditures as a whole.
Collectively, Minnesota's provisions on corporate independent expenditures
are significantly less burdensome than the federal regulations on PACs. As stated
earlier, a corporation can appoint an employee or officer as treasurer of its political
fund and can use simple, internal bookkeeping devices to separate and track
contributions and expenditures, which significantly limits the cost of complying with
Minnesota's regulations. Moreover, a corporation can easily create and dissolve a
political fund, thereby allowing a corporation to limit its exposure to Minnesota's
regulations only to the time period it is actively engaging in political speech. Minn.
Stat. Â§Â§ 10A.14, 10A.24. Additionally, Minnesota places fewer reporting
requirements on political funds, as political funds do not have to file reports as
frequently as federal PACs and do not have to provide the same level of detail.4
Indeed, in a political fund's simplest form, where a corporation is controlling the
fund's activities, using an employee as a treasurer, and using an internal bookkeeping
Minnesota Citizens and the dissent single out Minnesota's periodic reporting
requirement as definitive proof of an impermissible burden on corporate independent
expenditures. They argue that requiring corporations to file periodic reportsâ€”even
if the corporations did not make any expenditures during a reporting periodâ€”creates
a PAC-like burden that effectively bans corporate speech, or at least chills it. We
disagree. In Buckley v. Valeo, the Supreme Court approved a periodic reporting
requirement for entities other than PACs or candidates, necessarily holding that such
requirements are not per se invalid. 424 U.S. 1, 80â€“81, 160 (1976) (upholding a law
that provides: "Every person (other than a political committee or candidate) who
makes contributions or expenditures, other than by contribution to a political
committee or candidate, in an aggregate amount in excess of $100 within a calendar
year shall file with the Commission [statements] on the dates on which reports by
political committees are filed"); Human Life of Wash. Inc. v. Brumsickle, 624 F.3d
990, 1012â€“14 (9th Cir. 2010) (upholding a state law mandating periodic reporting).
Indeed, we must consider the impact of a reporting requirement as a necessary step
in discerning its validity. Here, where the evidence before the district court indicates
that corporations can easily file short statements to create and dissolve political funds,
we can discern no constitutional infirmity. The burden on corporations appears light,
and the reporting requirement greatly facilitates the government's informational
interest in monitoring corporate independent expenditures.
device, Minnesota's law imposes no materially greater burden than the federal
disclosure law upheld in Citizens United. The treasurer in such cases acts as little
more than the custodian of the records, and the information to be disclosed about the
corporation's contributions and expenditures is similar to the disclosure requirements
upheld in Citizens United. See 2 U.S.C. Â§ 434(f)(2). Consequently, while
Minnesota's provisions on corporate independent expenditures do bear some
resemblance to federal PACs, the Minnesota provisions place a much more limited
burden on corporations. Accordingly, Minnesota Citizens is unlikely to prevail on
the issue of whether Minnesota functionally retained a ban on corporate independent
Minnesota Citizens further argues that Minnesota's laws governing corporate
independent expenditures are not sufficiently tailored given the heightened level of
constitutional scrutiny. Continuing from its previous argument, Minnesota Citizens
asserts that strict scrutiny, "which requires the Government to prove that the
restriction furthers a compelling interest and is narrowly tailored to achieve that
interest," should apply because Minnesota banned corporate political expenditures.
130 S. Ct. at 898 (internal quotation marks omitted). Minnesota Citizens maintains
that the government does not possess any compelling interest in banning such
expenditures for the reasons stated by the Supreme Court in Citizens United.
Minnesota Citizens also argues that even if Minnesota possessed a significant
governmental interest, Minnesota's requirements, including its requirements of
appointing a treasurer and filing periodic reports, are not narrowly tailored.
Alternatively, Minnesota Citizens argues that Minnesota's regulations fail under any
standard of review, claiming in part that, if a political fund is not a separate
association from its founding corporation, then the government cannot justify forcing
corporations to incur the cost associated with utilizing a political fund.5 We disagree.
Unlike outright bans on corporate independent expenditures, which are viewed
with great suspicion and subjected to strict scrutiny, courts generally view corporate
disclosure laws as beneficial and subject such regulations to the less-rigorous
exacting-scrutiny standard. Citizens United, 130 S. Ct. at 914. This is because
disclosure laws do not materially prevent anyone from speaking and because:
prompt disclosure of expenditures can provide shareholders and citizens
with the information needed to hold corporations and elected officials
accountable for their positions and supporters. Shareholders can
determine whether their corporation's political speech advances the
corporation's interest in making profits, and citizens can see whether
elected officials are in the pocket of so-called moneyed interests.
Id. at 916 (internal quotation marks omitted); see also Buckley, 424 U.S. at 66â€“68
("The governmental interests sought to be vindicated by the disclosure requirements
. . . fall into three categories. First, disclosure provides the electorate with
information as to where political campaign money comes from and how it is spent by
the candidate in order to aid the voters in evaluating those who seek federal office.
. . . Second, disclosure requirements deter actual corruption and avoid the appearance
of corruption by exposing large contributions and expenditures to the light of
publicity. . . . Third, and not least significant, recordkeeping, reporting, and disclosure
requirements are an essential means of gathering the data necessary to detect
violations of the contribution limitations described above." (internal quotation marks
Minnesota Citizens further contends that only organizations whose "major
purpose" is to nominate or elect candidates can be subject to "PAC-style burdens,"
citing Buckley, 424 U.S. at 79. We see no need to address this argument because we
have already concluded that Minnesota did not impose "burdensome" PAC
regulations on corporations making independent expenditures.
omitted)). Consequently, under exacting scrutiny, the government must only show
a "'substantial relation' between the disclosure requirement" and the government's
important interest in providing information to the electorate. Citizens United, 130 S.
Ct. at 914 (quoting Buckley, 424 U.S. at 64). "To withstand this scrutiny, the strength
of the governmental interest must reflect the seriousness of the actual burden on First
Amendment rights." John Doe No. 1 v. Reed, 130 S. Ct. 2811, 2814 (2010) (internal
quotation marks omitted).
As we concluded in the preceding section, Minnesota did not ban corporate
independent expenditures. Instead, based upon the lower court's findings, as strongly
supported by the record, we find that Minnesota created a statutory scheme designed
to require corporations to disclose certain information when making independent
expenditures. Since the provisions at issue are disclosure laws, we apply exacting
scrutiny, just as the Supreme Court did in Citizens United, and review Minnesota's
provisions on corporate independent expenditures to ensure that the regulations are
substantially related to Minnesota's important interest in providing information. 130
S. Ct. at 915â€“16. Based upon the record before the district court, Minnesota appears
to have adequately tailored its laws because, as we found in the previous section,
Minnesota's provisions collectively impose no materially greater burden on
corporations than the disclosure laws at issue in Citizen United. Even Minnesota's
specific requirements for a treasurer, periodic reporting, and a separate fund are
sufficiently tailored because, within the context of the entire Minnesota regulatory
scheme, each requirement greatly enhances the transparency of corporate
expenditures while imposing only reasonable burdens. See Buckley, 424 U.S. at 80
(holding that a periodic reporting statute that applied to entities other than political
committees or candidates because the requirement bore "a sufficient relationship to
a substantial governmental interest"); Nat'l Right to Life Political Action Comm. v.
Connor, 323 F.3d 684, 695 (8th Cir. 2003) (holding that a treasurer requirement
preserved "the integrity of the electoral process" through providing "an individual
who is accountable for compliance with the provisions of the disclosure law and can
be easily reached by judicial process" (internal quotation marks omitted)).
Accordingly, while we do not deny there are administrative costs to Minnesota's
disclosure law on corporate independent expenditures, we conclude that, based upon
the record before the district court, Minnesota Citizens is unlike to prevail on its
claim of improper tailoring.
Minnesota Citizens also challenges Minnesota's decision to retain its ban on
direct corporate contributions to candidates and affiliated entities, such as political
parties. Minnesota Citizens argues that any ban on direct corporate contributions
violates the First Amendment pursuant to the Supreme Court's holding in Citizens
United that the government may not suppress political speech by corporations.
Minnesota Citizens further maintains that the Court's holding and reasoning in
Citizens United implicitly overruled its prior decision to the contrary on corporate
contributions in Federal Election Commission v. Beaumont, 539 U.S. 146 (2003).
Alternatively, Minnesota Citizens argues that Beaumont only permitted the
government to restrict corporate contributions when corporations possessed another
means of speaking, which in Beaumont, was through establishing PACs. Since
Citizens United held that such PACs do not permit corporation to speak, Minnesota
Citizens asserts that even if Beaumont remains controlling, Minnesota's ban on direct
corporate contributions is impermissible because corporations have no other means
of speaking, as corporations can only establish PAC-like conduit funds. Finally,
Minnesota Citizens argues that even if Minnesota possesses an interest in restricting
direct corporate contributions, Minnesota failed to adequately tailor its prohibition,
given that strict scrutiny would apply to this ban on political speech.6 We disagree.
"At least since the latter part of the 19th century, the laws of some States and
of the United States imposed a ban on corporate direct contributions to candidates."
Citizens United, 130 S. Ct. at 900. In Buckley, the Supreme Court "explained that the
potential for quid pro quo corruption distinguished direct contributions to candidates
from independent expenditures" and justified greater governmental restrictions on
contributions. Id. at 901â€“02. Later, in Beaumont, the Supreme Court held that the
government could prohibit even non-profit, advocacy corporations from making
direct contributions not only because of the danger of quid pro quo corruption
stemming from the potential to turn corporate earnings into political "war chests" but
also because of the need to protect minority shareholders in corporations and the need
to hedge against corporations being used as conduits for circumventing otherwise
constitutional, individual contribution limits. See 539 U.S. at 154â€“55 (stating, in
part: "Quite aside from war-chest corruption and the interests of contributors and
owners, however, another reason for regulating corporate electoral involvement has
emerged with restrictions on individual contributions, and recent cases have
recognized that restricting contributions by various organizations hedges against their
use as conduits for circumvention of valid contribution limits." (alterations omitted)
Minnesota Citizens also argues that Minnesota's ban on direct corporate
contributions violates the Equal Protection Clause of the Fourteenth Amendment
because no legitimate governmental interest exists to justify imposing more stringent
regulations on corporations than unions and other similar associations, especially
since the Supreme Court's decision to the contrary in Austin was overruled by
Citizens United. We disagree because the Supreme Court in Austin held that "crucial
differences" existed between the structure and functioning of corporation and unions
that justified differential treatment under election laws, 494 U.S. at 665â€“68, and
because the Supreme Court in Citizens United did not consider this issue, and thus,
did not overrule this portion of Austin. See Citizens United, 130 S. Ct. at 913; but
see Dallman v. Ritter, 225 P.3d 610, 634â€“35 (Col. 2010).
(internal quotation marks omitted)). While the federal laws at issue allowed
corporations to create PACs under Â§441b for political activity, the Supreme Court's
decision did not hinge on the ability of corporations to speak through PACs.7 See id.
at 156â€“61; Green Party of Conn. v. Garfield, 616 F.3d 189, 204â€“05 (2d Cir. 2010)
(concluding that "laws banning contributions by a discrete group" may be
constitutional); Iowa Right To Life Comm., Inc. v. Smithson, ___ F. Supp. 2d ___,
2010 WL 4277715, at *25 n.20 (S.D. Iowa Oct. 20, 2010) (noting that "the result in
Beaumont did not depend on the availability of a PAC option" but rather "on the
differences between independent expenditures and contributions"). Instead, the Court
considered the ability of corporations to establish PACs as an additional factor in
favor of upholding the federal laws at issue under the "closely drawn" scrutiny
standard the Court applied. Beaumont, 539 U.S. at 162â€“63.
While the Supreme Court's decision in Citizens United implicates the holding
and rationale in Beaumont, we do not believe the Court overruled Beaumont. As an
initial matter, the Supreme Court in Citizens United expressly declined to reconsider
its jurisprudence on direct corporate contributions, stating in part: "Citizens United
has not made direct contributions to candidates, and it has not suggested that the
Court should reconsider whether contribution limits should be subjected to rigorous
First Amendment scrutiny." 130 S. Ct. at 909. Additionally, the Supreme Court's
rationale in Citizens United did not fully undercut the Court's reasoning in Beaumont.
Prior to Citizens United, in Austin, the Supreme Court upheld a federal restriction on
corporate independent expenditures because the Court found that the government
possessed a compelling governmental interest in preventing "the corrosive and
distorting effects of immense aggregations of wealth that are accumulated with the
help of the corporate form and that have little or no correlation to the public's support
Indeed, "[a] ban on direct corporate contributions leaves individual members
of corporations free to make their own contributions, and deprives the public of little
or no material information." Beaumont, 539 U.S. at 162 n.8.
for the corporation's political ideas." Austin, 494 U.S. at 660. In Citizens United, the
Supreme Court rejected this anti-distortion rationale and overruled Austin in part
because the government lacks a sufficient interest in "equalizing the relative ability
of individuals and groups to influence the outcome of elections." 130 S. Ct. at 904
(internal quotation marks omitted). The Supreme Court in Citizens United went
further, however, and rejected the federal ban on corporate independent expenditures
because independent expenditures do not materially involve the government's interest
in preventing quid pro quo corruption, as independent expenditures are not
coordinated with candidates, and because any governmental interest in protecting
dissenting shareholders in corporations could be protected by less-restrictive means.
Id. at 908â€“12. In deciding the case, the Supreme Court in Citizens United never
doubted the government's strong interest in preventing quid pro quo corruption or
materially questioned the ability of corporations to serve as conduits for
circumventing valid contributions limits. See id. Thus, Beaumont remains
controlling. See Green Party, 616 F.3d at 199 (concluding that Beaumont is "good
Moreover, even assuming that the Supreme Court implicitly overruled portions
of Beaumont in Citizens United, we must still follow Beaumont until the Supreme
Court holds to the contrary. See Agostini v. Felton, 521 U.S. 203, 237 (1997) ("We
do not acknowledge, and we do not hold, that other courts should conclude our more
recent cases have, by implication, overruled an earlier precedent. We reaffirm that
if a precedent of this Court has direct application in a case, yet appears to rest on
reasons rejected in some other line of decisions, the Court of Appeals should follow
the case which directly controls, leaving to this Court the prerogative of overruling
its own decisions." (internal quotation marks and alteration omitted)).
Having concluded that Beaumont remains controlling precedent, we find that
Minnesota Citizens is unlikely to prevail on its challenge to Minnesota's ban on direct
corporate contributions. As the Supreme Court held in Beaumont, a restriction on
direct contributions will pass constitutional muster if the limit is "closely drawn to
match a sufficiently important interest."8 Beaumont, 539 U.S. at 162 (internal
quotation marks omitted). This holds true even if the law under review bans all
corporate contributions because the "degree of scrutiny turns on the nature of the
activity regulated," not the extent of the regulation. Id. Indeed, "[i]t is not that the
difference between a ban and a limit is to be ignored; it is just that the time to
consider it is when applying scrutiny at the level selected, not in selecting the
standard of review itself." Id. In this case, Minnesota possesses the same important
governmental interest in avoiding quid pro quo corruption and the circumvention of
its other limits on direct contributions as the federal government did in Beaumont.
Additionally, based upon the record before the district court, Minnesota appears to
have properly tailored its restriction because, pursuant to Beaumont, Minnesota can
generally ban all direct corporate contributions.9 Accordingly, since Minnesota
Minnesota Citizens additionally argues that, regardless of Beaumont's holding,
strict scrutiny should apply because Minnesota's ban on direct corporate contributions
is a content-based restriction, as Minnesota singles out political speech for further
regulation. For support, Minnesota Citizens cites Iowa Right to Life Comm., Inc. v.
Williams, 187 F.3d 963 (8th Cir.1999). We disagree because, based upon the record
before the district court, Minnesota's ban on direct corporate contributions serves a
purpose unrelated to the expressive content of the contributions, namely the
prevention of corruption and the circumvention of other election laws. See Fraternal
Order of Police, N.D. State Lodge v. Stenehjem, 431 F.3d 591, 596 (8th Cir. 2005)
("A regulation that serves purposes unrelated to the content of expression is deemed
neutral, even if it has an incidental effect on some speakers or messages but not
others." (internal quotation marks omitted)). Minnesota Citizens's reliance on
Williams is misplaced because, in Williams, we found that the challenged law
distinguished disfavored speech on the basis of its content, unlike here. 187 F.3d at
967â€“68. Additionally, we are not at liberty to disregard the Supreme Court's decision
to apply "close scrutiny," not strict scrutiny, to bans on direct corporate contributions.
Minnesota Citizens does not meaningfully argue, and the record before the
district court does not show, that Minnesota's ban on direct corporate contributions
is interfering with the ability of candidates to mount effective campaigns. See
Citizens cannot show that it is likely to prevail on the direct-contribution issue or the
independent-expenditure issue, we find it unnecessary to consider the remaining
Dataphase factors and find that the district court did not abuse its discretion in
refusing to enjoin Minnesota's election laws.
For the foregoing reasons, we affirm the district court's denial of Minnesota
Citizens's request for an injunction.
Randall v. Sorrell, 548 U.S. 230, 248â€“63 (2006) (striking down a contribution limit
as too low because the limits prevented candidates from "amassing the resources
necessary for effective advocacy" (internal quotation marks omitted)).
RILEY, Chief Judge, concurring in part and dissenting in part.
Because I believe Minnesotaâ€™s independent expenditure law impermissibly
burdens political speech, I respectfully dissent from Part II.B. of the majority
Under Minnesotaâ€™s relatively complex web of regulations, corporations10
wishing to make an independent expenditure must comply with burdensome recordkeeping and reporting requirements associated with creating and maintaining a
political fund. See ante at 3-5 (describing relevant portions of the challenged law).
Corporations and responsible individuals failing to comply with Minnesotaâ€™s
regulatory scheme are subject to substantial civil and criminal penalties, ranging from
fines to imprisonment of up to five years. See Minn. Stat. Â§Â§ 10A.12, subdivs.1b and
6; 10A.121, subdiv. 2; 10A.13, subdiv. 1; 10A.14, subdiv. 4; 10A.15, subdiv. 4;
10A.16; 10A.17, subdiv. 5; 10A.20, subdiv. 12; 211B.15, subdivs. 6-7. The
provisions manifestly discourage corporations, particularly corporations with limited
resources, from engaging in protected political speech, and hinder their participation
in the political debate and their access to the citizenry and the government. See
Citizens United v. Fed. Election Commâ€™n, U.S. ,130 S. Ct. 876, 907-08 (2010).
The restrictions at issue are much broader than just regulating corporations
and indeed affect nearly all associations. Not only does Minnesotaâ€™s Fair Campaign
Practices Act expressly treat limited liability companies the same as corporations, see
Minn. Stat. Â§ 211B.15, the requirement that only permits political funds (or political
committees) to make independent expenditures is even broader, reaching almost
every â€œassociation.â€ See Â§ 10A.12, subdiv. 1a. Even the smallest partnership is
regulated. See Â§ 10A.01, subdiv. 6 (â€œâ€˜Associationâ€™ means a group of two or more
persons, who are not all members of an immediate family, acting in concert.â€ )
Perhaps most onerous is the ongoing reporting requirement. Once initiated, the
requirement is potentially perpetual11 regardless of whether the corporation ever again
makes an independent expenditure. See Â§10A.20, subdivs. 2 and 7 (requiring
political funds to file five reports during a general election year and one report during
a non-general election year, even if the political fund has been inactive during that
period). The majority draws comfort from the fact Minnesota allows corporations to
mitigate this burden by â€œeasily creat[ing] and dissolv[ing] a political fund.â€ Ante at
12. The trouble with this solution is the corporationâ€™s constitutional right to speak
through independent expenditures dissolves with the political fund. To speak again,
the corporation must initiate the bureaucratic process again.
In Citizens United, the Supreme Court instructed, â€œthe Government may not
suppress political speech on the basis of the speakerâ€™s corporate identity. No
sufficient governmental interest justifies limits on the political speech of . . .
corporations.â€ Citizens United, 130 S. Ct. at 913. Because political â€œ[s]peech is an
essential mechanism of democracy,â€ â€œthe means to hold officials accountable to the
people,â€ â€œa precondition to enlightened self-government and a necessary means to
protect it,â€ â€œpolitical speech must prevail against laws that would suppress it, whether
by design or inadvertence.â€ Id. at 898. Therefore, â€œ[l]aws that burden political
speech are â€˜subject to strict scrutiny,â€™ which requires the Government to prove that
the restriction â€˜furthers a compelling interest and is narrowly tailored to achieve that
Minnesotaâ€™s Campaign Finance and Public Disclosure Board (Board) may,
with notice, force dissolution of an â€œinactiveâ€ political fund if â€œtwo years have
elapsed since the end of a reporting period during which the political . . . fund made
an expenditure or disbursement requiring disclosure under [the Campaign Finance
and Public Disclosure Act].â€ Â§ 10A.242, subdivs. 1-2. Until the Board provides such
notice, a corporation presumably must continue to file reports on its inactive political
fund. The statute is unclear as to what mechanism triggers the process of dissolving
inactive political funds. Regardless, a corporation wishing to retain its First
Amendment right to make independent expenditures must continue reporting on an
interest.â€™â€ Id. (quoting Fed. Election Commâ€™n v. Wis. Right to Life, Inc., 551 U.S.
449, 464 (2007) (plurality opinion of Roberts, C.J.)).
Independent expenditures are indisputably political speech. See Buckley v.
Valeo, 424 U.S. 1, 39 (1976) (explaining independent expenditures constitute
expression â€œat the core of our electoral process and of the First Amendment
freedoms.â€) (quoting Williams v. Rhodes, 393 U.S. 23, 32 (1968) (internal quotation
marks omitted)); Iowa Right to Life Comm., Inc. v. Williams, 187 F.3d 963, 967 (8th
Cir. 1999) (recognizing communication â€œthrough independent expenditures, as â€˜coreâ€™
First Amendment activityâ€). Under Minnesotaâ€™s scheme, a corporation is compelled
to decide whether exercising its constitutional right is worth the time and expense of
entering a long-term or even perpetual morass of regulatory red tape. Some
corporations will decide the exercise is simply not worth the trouble. Because the
burdens associated with Minnesotaâ€™s independent expenditure law chill corporate
political speech, I would subject the challenged provisions to strict scrutiny analysis.
It is unlikely Minnesota would be able to prove aspects of the law, particularly the
ongoing reporting requirements, are the least restrictive means of accomplishing a
Despite recognizing the challenged law burdens corporate political speech, see
ante at 13, the majority forgoes strict scrutiny analysis, opting instead for â€œexacting
scrutinyâ€ because the majority classifies the provisions as disclosure laws â€œdesigned
to require corporations to disclose certain information when making independent
expenditures,â€ ante at 15. According to the majority, Minnesotaâ€™s laws â€œare similar
in purpose and effect to the disclosure laws that the Supreme Court upheld in Citizens
United.â€ Ante at 8. I disagree with this classification because certain requirements
Minnesota imposes on corporations have nothing or very little to do with disclosure.
The federal law challenged in Citizens United, 130 S. Ct. at 913-16 (analyzing
2 U.S.C. Â§Â§ 441d(d)(2), 434(f)(1)), required filing a disclosure report only when a
corporation (or anyone else) spent more than $10,000 on electioneering
communications (e.g., a television commercial) during any calendar year. See
Â§ 434(f). Then, when a communication disclosed â€œ____ is responsible for the content
of this advertising,â€ as required by Â§ 441d(d)(2), a citizen could identify the
responsible party in public records and discover relevant information. See Citizens
United, 130 S. Ct. at 916. This event-driven reporting requirement ended as soon as
the report was filed. See Â§ 434(f). The effect of the lawâ€”requiring one-time
disclosure only when a substantial amount of money was spentâ€”logically matched
the governmentâ€™s disclosure purpose. In contrast, the effect of Minnesotaâ€™s ongoing
reporting requirement, which is initiated upon a $100 aggregate expenditure, and is
untethered from continued speech, does not match any disclosure interest. Other
requirements, such as requiring a treasurer, segregated funds, and record-keeping,
also are only tangentially related to disclosure.
The majority explains that â€œ[i]n Buckley v. Valeo the Supreme Court approved
a periodic reporting requirement for entities other than PACs or candidates,
necessarily holding that such requirements are not per se invalid. 424 U.S. 1, 80-81,
160 (1976).â€ Ante at 13, n.4 (discussing Buckleyâ€™s analysis of 2 U.S.C. Â§ 434(e)
(1970 ed., Supp. IV), Pub. L. No. 92-225 Â§ 305, 86 Stat. 3 (current version at 2 U.S.C.
Â§ 434(c)). But the Court in Buckley was not addressing the periodic nature of the
requirements. Instead, the Court was construing the meaning of the word
â€œexpenditureâ€ in the statute to ensure it â€œprecisely further[ed]â€ the governmentâ€™s goal
â€œto promote full disclosure of campaign-orientated spending,â€ id. at 78, and did not
violate constitutional due process rights because of vagueness concerns, see id. at 76.
Regardless, the law at issue in Buckley only required periodic reporting, which at
most would require filing statements through the end of the calender year in which
a qualifying independent expenditure was made. See Â§ 434(e). The concern here is
not that Minnesotaâ€™s reporting requirement is periodic; the concern is the reporting
requirement is ongoing unless the political fund is terminated or forced to dissolve.
Periodic reporting requirements are not per se invalid; but are subject to strict
scrutiny, at least when the duration of those requirements is ongoing and indefinite.
A state should not be able to sidestep strict scrutiny analysis simply by labeling
burdensome regulations as a â€œdisclosure law,â€ when the effect, if not the design, is
to discourage corporate speech. See generally Fed. Election Commâ€™n v. Mass.
Citizens for Life, Inc., 479 U.S. 238, 262 (1986) (engaging in strict scrutiny when
reviewing a federal campaign law even though the government claimed the law
implicated a disclosure interest); Natâ€™l Right to Life Political Action Comm. v.
Connor, 323 F.3d 684, 694-95 & n.11 (8th Cir. 2003) (discussing strict scrutiny for
a law implicating the stateâ€™s disclosure interest because â€œstate election laws that
severely restrict the right of association by attempting to regulate the internal affairs
of political organizations must be narrowly drawn to serve a compelling state
interestâ€). Allowing such a characterization of our review process risks transforming
First Amendment jurisprudence into a legislative labeling exercise.
Assuming arguendo exacting scrutiny is appropriate, the law still fails because
Minnesota is unable to show a substantial relation between its ongoing reporting
requirement and any important governmental interest. Though less rigorous than
strict scrutiny, exacting scrutiny is more than a rubber stamp. See Buckley, 424 U.S.
at 64, 66 (describing exacting scrutiny as a â€œstrict testâ€ requiring more than â€œa mere
showing of some legitimate governmental interestâ€); Elrod v. Burns, 427 U.S. 347,
362-63 (1976) (noting the â€œ[s]tate may not choose means that unnecessarily restrict
constitutionally protected libertyâ€ nor choose a regulatory scheme broadly stifling
speech if the state has available a â€œless drastic way of satisfying its legitimate
interestsâ€) (quoting Kusper v. Pontikes, 414 U.S. 51, 59 (1973) (internal quotation
marks omitted)). Provisions â€œno more than tenuously related to the substantial
interests disclosure serves . . . fail exacting scrutiny.â€ Buckley v. Am. Constitutional
Law Found. (ACLF), 525 U.S. 182, 204 (1999) (internal marks omitted).
Each of Minnesotaâ€™s provisions should first be reviewed separately to
determine whether each regulation is substantially related and necessary to
accomplish the identified disclosure interests, see ACLF, 525 U.S. at 201-203
(concluding certain aspects of Coloradoâ€™s law governing disclosure requirements for
ballot-initiative proponents failed exacting scrutiny because the stateâ€™s important
interests were adequately met through other valid aspects of the law), and it is
Minnesotaâ€™s burden to establish the required relationship, see Elrod, 427 U.S. at 362
(â€œThe interest advanced must be paramount, one of vital importance, and the burden
is on the government to show the existence of such an interest.â€). For the reasons
discussed above, it is doubtful Minnesota can justify the ongoing reporting
Under either strict or exacting scrutiny, I would hold Minnesota Citizens is
likely to prevail on the merits of its challenge to Minnesotaâ€™s corporate independent
expenditure law, and I would reverse the district courtâ€™s denial of the preliminary
injunction. See Phelps-Roper v. Nixon, 545 F.3d 685, 690 (8th Cir. 2008) (reasoning
that likely success on the merits in a First Amendment challenge often establishes
irreparable harm, a balance of equities in favor of freedom of expression, and public
interest). I respectfully dissent from Part II.B. of the majorityâ€™s opinion.
I concur with the majorityâ€™s judgment in Part II.C., affirming the district courtâ€™s
refusal to enjoin Minnesotaâ€™s ban on direct corporate contributions to candidates and
affiliated entities. See Â§ 211B.15, subdiv. 2. In Citizens United, the Supreme Court
did not explicitly overrule Fed. Election Commâ€™n v. Beaumont, 539 U.S. 146 (2003),
or the Courtâ€™s equal protection holding in Austin v. Mich. Chamber of Commerce,
494 U.S. 652 (1990), overruled in part by Citizens United, 120 S. Ct. at 913. Because
the Supreme Court has instructed courts to wait for it to overrule its own decisions,
see Agostini v. Felton, 521 U.S. 203, 237-38 (1997), the district court did not abuse
its discretion in determining Minnesota Citizens is unlikely to win on the merits of
I write separately to make two observations. First, Citizen Unitedâ€™s outright
rejection of the governmentâ€™s anti-distortion rationale, see id. at 130 S. Ct. at 904, as
well as the Courtâ€™s admonition that â€œthe State cannot exact as the price of [stateconferred corporate] advantages the forfeiture of First Amendment rights,â€ Id. at 905
(quoting Austin, 494 U.S. at 680 (Scalia, J., dissenting) (internal quotation marks
omitted)), casts severe doubt on Beaumont and Austin, leaving the casesâ€™ respective
precedential value on shaky ground. See Beaumont, 539 U.S. at 164-65 (Thomas, J.,
dissenting) (articulating the belief that all campaign finance laws are subject to strict
scrutiny and that the Colorado contribution ban was â€œnot narrowly tailored to meet
any relevant compelling state interestâ€); id. at 164 (Kennedy, J., concurring) (â€œWere
we presented with a case in which the distinction between contributions and
expenditures under the whole scheme of campaign finance regulation were under
review, I might join Justice Thomasâ€™ dissenting opinion.â€); Austin, 494 U.S. at 66566 (incorporating much of the Courtâ€™s now-overruled First Amendment analysis into
its equal protection analysis); see also Dallman v. Ritter, 225 P.3d 610, 634-35 (Colo.
2010) (holding a state law allowing corporations to contribute to candidates, but
forbidding labor unions from doing the same violated the Equal Protection Clause of
the Fourteenth Amendment).
Second, the fact the district courtâ€™s conclusion does not rise to an abuse of
discretion does not mean Beaumont and Austin compel an ultimate holding in favor
of Minnesota on this issue. Minnesota Citizens may develop a factual record
demonstrating Minnesotaâ€™s ban on corporate expenditures is not â€œclosely drawnâ€ to
a â€œsufficiently important interest.â€ See Beaumont, 539 U.S. at 162 (quotation
omitted). The district court should also be mindful that even under Austin, strict
scrutiny is appropriate when reviewing the merits of Minnesota Citizensâ€™ equal
protection challenge, and it is Minnesotaâ€™s burden to prove the differences between
corporations and unions articulated in Austin apply under the facts of this case. See
Austin, 494 U.S. at 666.
I would reverse the district courtâ€™s denial of a preliminary injunction, because
I believe Minnesota Citizens is likely to prevail on the merits of its claim that
Minnesotaâ€™s corporate independent expenditure law violates Minnesota Citizensâ€™
First Amendment rights.