Wisconsin Right to Life State Political Action Committee v. Barland

In the

United States Court of Appeals

For the Seventh Circuit

No. 11-2623

W ISCONSIN R IGHT TO L IFE S TATE

P OLITICAL A CTION C OMMITTEE,

Plaintiff-Appellant,

v.

T HOMAS B ARLAND, et al.,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 10-C-0669—Charles N. Clevert, Jr., Chief Judge.

A RGUED S EPTEMBER 22, 2011—D ECIDED D ECEMBER 12, 2011

Before P OSNER, F LAUM, and SYKES, Circuit Judges.

S YKES, Circuit Judge. In anticipation of the 2010 general

elections, Wisconsin Right to Life and its State Political

Action Committee filed a broad-spectrum federal lawsuit

challenging various Wisconsin campaign-finance laws

under the First Amendment. At issue here is a statute

that limits the amount individuals may contribute to

state and local candidates, political parties, and political

committees to a “total of $10,000 in any calendar year.”

W IS. S TAT. § 11.26(4).

2 No. 11-2623

When the lawsuit was filed, the November elections

were looming, so the plaintiffs sought a preliminary

injunction enjoining enforcement of the laws they had

challenged, including section 11.26(4). The defendants—

members of the Government Accountability Board

(“GAB”) and the Milwaukee district attorney—asked

the district court to abstain and stay the case pending

resolution of Wisconsin Prosperity Network v. Myse,

No. 2010AP001937 (Wis. filed Aug. 9, 2010), an original

action in the state supreme court challenging a newly

amended campaign-finance rule that dramatically ex-

panded the scope of political speech subject to Wis-

consin’s regulatory regime. The new rule, GAB 1.28,

is implicated in this suit as well.

The district court agreed that Pullman abstention

was appropriate and put the entire case on hold. See R.R.

Comm’n of Tex. v. Pullman Co., 312 U.S. 496 (1941). The

November 2010 elections came and went. A few

months later, a stunning off-year political phenomenon

occurred: Nine state senators were forced into recall

elections to be held during the summer of 2011. The

Right to Life PAC returned to court and asked the judge

to lift the stay and enjoin enforcement of section 11.26(4)

so that it could raise unlimited funds for independent

expenditures during the recalls. The judge denied this

request. The Right to Life PAC appealed and sought an

injunction pending appeal. A motions panel held that

the First Amendment challenge was likely to succeed

and issued the injunction.

On full appellate review, we agree with that prelim-

inary assessment and now vacate the abstention order

No. 11-2623 3

and remand with instructions to enter a permanent

injunction enjoining enforcement of section 11.26(4) on

the terms specified in this opinion. First, Pullman absten-

tion was unwarranted; the constitutionality of section

11.26(4) does not depend on whether GAB 1.28 sur-

vives review in the Wisconsin Supreme Court. On the

merits, after Citizens United v. FEC, 130 S. Ct. 876 (2010),

section 11.26(4) is unconstitutional to the extent that it

limits contributions to committees engaged solely in

independent spending for political speech. Citizens

United held that independent expenditures do not pose

a threat of actual or apparent quid pro quo corruption,

which is the only governmental interest strong enough to

justify restrictions on political speech. Id. at 909-11. Ac-

cordingly, applying the $10,000 aggregate annual cap

to contributions made to organizations engaged only

in independent spending for political speech violates

the First Amendment.

I. Background

The Right to Life PAC is a Wisconsin political com-

mittee engaged in independent expenditures for political

speech—specifically, independent spending for speech

advocating the election of candidates for Wisconsin state

and local public office. It does not make contributions to

political candidates, and as an independent political

committee, its activities are not coordinated with any

candidate or political party.

In 2010 Terry and Mary Kohler wanted to donate $5,000

to the Right to Life PAC, but because of other political

4 No. 11-2623

contributions they planned or had already made, their

contributions would violate section 11.26(4), which im-

poses a $10,000 cap on the aggregate annual amount

individuals may contribute to state or local candidates,

political parties, and political committees. W IS. S TAT.

§ 11.26(4). In August 2010 the Right to Life PAC

filed a verified complaint in federal court alleging

that section 11.26(4) and various other Wisconsin cam-

paign-finance statutes and regulations violate the First

Amendment. As relevant here, the suit contends that

section 11.26(4) is unconstitutional to the extent that it

limits contributions to committees, like the Right to Life

PAC, that only engage in independent spending for

political speech.

Because the November 2010 elections were fast ap-

proaching, the Right to Life PAC moved for a preliminary

injunction enjoining the enforcement of the statutes

and regulations it was challenging. The district court

did not rule on the motion. Instead, the defen-

dants—members of the GAB, which implements Wiscon-

sin’s election laws, and the Milwaukee County District

Attorney, who prosecutes violations—asked the court to

abstain under Pullman and stay the entire action to

await the outcome of Wisconsin Prosperity Network, a case

then pending in the Wisconsin Supreme Court. Wisconsin

Prosperity Network is an original action challenging

GAB 1.28 of the Wisconsin Administrative Code, a newly

amended campaign-finance rule published by the

GAB on July 31, 2010. Among other things, GAB 1.28 sub-

stantially expanded the reach of Wisconsin’s campaign-

finance regulatory apparatus to cover the political

No. 11-2623 5

speech of individuals and organizations other than candi-

dates and political committees.

The district court agreed that Pullman abstention was

appropriate “as a matter of comity.” Because the state

supreme court was considering the validity and scope

of GAB 1.28 in the Wisconsin Prosperity Network litigation,

the judge thought he should wait for that court’s views

on “the viability of its state’s regulatory regime” before

ruling on the federal constitutional questions. See Pullman,

312 U.S. at 500; Int’l Coll. of Surgeons v. City of Chicago, 153

F.3d 356, 365 (7th Cir. 1998) (explaining that Pullman

abstention is appropriate when the meaning of state law

is uncertain and the state court’s clarification might

eliminate the need for a federal constitutional ruling).

On September 17, 2010, the court granted the defen-

dants’ motion and stayed the case in its entirety.

The November 2010 elections dramatically changed

the political landscape in Wisconsin. Republicans won

the governor’s office and both houses of the state legisla-

ture, and picked up a U.S. Senate seat and two in

Congress.1 When the new governor and his allies in the

state legislature began to make use of their electoral

advantage in early 2011, Wisconsin found itself at the

center of a political storm. The flashpoint was the gov-

ernor’s budget-repair bill, which included measures

1

See Craig Gilbert, River of Red Buries the Blue, M ILWAUKEE

J. S ENTINEL , Nov. 3, 2010, http://www.jsonline.com/news/

statepolitics/106589258.html.

6 No. 11-2623

curbing public-employee collective-bargaining rights.2

Democrats in the State Senate fled the state to thwart a

vote on the bill and remained in hiding in Illinois for

weeks.3 Mass protests were staged on the grounds of the

State Capitol, and protesters encamped in the Capitol

rotunda.4 In the meantime the Wisconsin Supreme

Court scheduled oral argument in Wisconsin Prosperity

Network for March 9, 2011, but later postponed the

hearing until September 6, 2011.

The controversial budget-repair bill passed on March 10,

but that did not end the political turmoil.5 Sixteen state

senators were targeted for recall, and by summer 2011

nine senators—six Republicans and three Demo-

crats—were forced to stand in recall elections scheduled

for July and August. 6 In response to this unprecedented

2

See Jason Stein, Patrick Marley & Lee Bergquist, Assembly

Passes Union Measure After Bitter Debate, M ILWAUKEE J. S ENTINEL ,

Mar. 10, 2011, http://www.jsonline.com/news/statepolitics/

117735163.html.

3

See Bill Glauber, Jason Stein & Patrick Marley, Democrats

Flee State To Avoid Vote on Budget Bill, M ILWAUKEE J. S ENTINEL ,

Feb. 17, 2011, http://www.jsonline.com/news/statepolitics/

116381289.html; Stein, Marley & Bergquist, supra note 2.

4

See Bill Glauber & Don Walker, Protesters Jam Capitol Square,

Deriding Budget Bill, M ILWAUKEE J. S ENTINEL , Feb. 26, 2011,

http://www.jsonline.com/news/statepolitics/116982223.html.

5

See Stein, Marley & Bergquist, supra note 2.

6

See Craig Gilbert, Recall Drives Could Make History, M ILWAUKEE

J. S ENTINEL , Mar. 6, 2011, http://www.jsonline.com/news/

(continued...)

No. 11-2623 7

off-year political activity, 7 the Right to Life PAC

returned to the district court and asked the judge to

partially lift the stay to hear its claim that the aggregate

contribution limit in section 11.26(4) is unconstitutional.

The Right to Life PAC hoped to win an injunction

against the enforcement of the statute so that it could

accept contributions from persons who would otherwise

exceed the statutory limit in order to finance its political

speech during the recall elections. The district court

summarily denied the motion. The judge thought the

rationale for Pullman abstention still applied “with equal

force today.”

The Right to Life PAC appealed and moved for

an injunction pending appeal. On August 1, 2011, a mo-

tions panel granted the motion. The panel reasoned that

the fate of GAB 1.28 in the Wisconsin Prosperity

Network litigation would not affect the question

whether section 11.26(4) is unconstitutional as applied to

groups that engage in independent expenditures for

political speech. See Wis. Right to Life State Political Action

6

(...continued)

statepolitics/117501513.html; Tom Tolan, Recalls Can Proceed,

Dane County Judge Rules, A LL P OLITICS B LOG , M ILWAUKEE J.

S ENTINEL , July 8, 2011, http://www.jsonline.com/blogs/news/

125236849.html.

7

See Craig Gilbert, State Recall Movement Stands Alone in U.S.

History, N EWS AND O PINION B LOG , M ILWAUKEE J. S ENTINEL ,

M ar. 12, 2011, http ://w w w .json line.com /blo g s/new s/

117804138.html.

8 No. 11-2623

Comm. v. Vocke, et al., No. 11-2623, at 3 (7th Cir. Aug. 1,

2011). The panel also concluded that the constitutional

claim was reasonably likely to succeed on the merits, and

because First Amendment violations “ ‘are presumed

to constitute irreparable injuries,’ ” Christian Legal Soc’y

v. Walker, 453 F.3d 853, 867 (7th Cir. 2006) (citing Elrod v.

Burns, 427 U.S. 347, 373 (1976)), entered an order

enjoining the enforcement of section 11.26(4) pending

appeal. Wis. Right to Life State PAC, No. 11-2566, at 3. This

interim order blocks enforcement of the statute to the

extent that it applies to contributions to organizations,

like the Right to Life PAC, that engage in independent

(i.e., “noncoordinated”) expenditures for political

speech. Id. We expedited the appeal.

II. Analysis

Although the Right to Life PAC challenged a number

of Wisconsin’s campaign-finance statutes and regula-

tions, this appeal is limited to section 11.26(4), which

provides:

No individual may make any contribution or con-

tributions to all candidates for state and local offices

and to any individuals who or committees which are

subject to a registration requirement under s. 11.05,

including legislative campaign committees of a politi-

cal party, to the extent of more than a total of

$10,000 in any calendar year.

W IS. S TAT. § 11.26(4). Before the recall elections last sum-

mer, the Right to Life PAC sought relief from the district

No. 11-2623 9

court’s abstention order for the limited purpose of pur-

suing its motion for an injunction against the enforce-

ment of section 11.26(4). The district court declined to

lift the stay.

The court’s order had the effect of denying an

injunction, so immediate appeal is proper under 28 U.S.C.

§ 1292(a)(1). Carson v. Am. Brands, Inc., 450 U.S. 79, 83-84

(1981); Clean Air Coordinating Comm. v. Roth-Adam Fuel Co.,

465 F.2d 323, 325 (7th Cir. 1972) (court order imposing

a stay “in effect constituted the refusal of a preliminary

injunction within the meaning of 28 U.S.C. § 1292(a)(1),”

permitting interlocutory appeal). In addition, abstention

orders are immediately appealable under 28 U.S.C. § 1291

based on the collateral-order doctrine. Quackenbush

v. Allstate Ins. Co., 517 U.S. 706, 714-15 (1996); Med. Assur-

ance Co. v. Hellman, 610 F.3d 371, 376-77 (7th Cir. 2010);

In re Doctors Hosp. of Hyde Park, Inc., 337 F.3d 951, 954

(7th Cir. 2003).

There are some preliminary procedural hurdles to

clear before we address the merits. The defendants

have lodged jurisdictional objections based on standing,

ripeness, and mootness. They also maintain that Pullman

abstention was proper, which if correct is a nonjuris-

dictional barrier to our reaching the merits.

A. Standing, Ripeness, Mootness

We begin with the jurisdictional issues, which we would

examine independently even if the defendants had not

raised them. See Dexia Credit Local v. Rogan, 602 F.3d 879,

10 No. 11-2623

883 (7th Cir. 2010). The defendants have identified three

possible jurisdictional defects—lack of standing, unripe-

ness, and mootness—but on each point they are mistaken.

1. Standing

First up is standing. Article III of the Constitution limits

the judicial power to “Cases” and “Controversies,” U.S.

C ONST. art. III, § 2, a limitation that confines federal

courts “to the traditional role of Anglo-American

courts, which is to redress or prevent actual or

imminently threatened injury to persons caused by

private or official violation of law.” Summers v.

Earth Island Inst., 555 U.S. 488, 492 (2009). The doctrine

of standing enforces this constitutional limitation. Ezell

v. City of Chicago, 651 F.3d 684, 695 (7th Cir. 2011). To

establish standing, a plaintiff must show

(1) it has suffered an “injury in fact” that is (a) concrete

and particularized and (b) actual or imminent, not

conjectural or hypothetical; (2) the injury is fairly

traceable to the challenged action of the defendant; and

(3) it is likely, as opposed to merely speculative, that

the injury will be redressed by a favorable decision.

Friends of the Earth v. Laidlaw Envtl. Servs. (TOC), Inc., 528

U.S. 167, 180-81 (2000).

This is a pre-enforcement challenge; the Right to Life

PAC need not risk prosecution or otherwise await en-

forcement of the statute in order to establish its standing

to sue. See Schirmer v. Nagode, 621 F.3d 581, 586 (7th

Cir. 2010). “Pre-enforcement challenges . . . are within

No. 11-2623 11

Article III.” Brandt v. Vill. of Winnetka, Ill., 612 F.3d 647, 649

(7th Cir. 2010). The “existence of a statute implies a threat

to prosecute, so pre-enforcement challenges are proper

[under Article III], because a probability of future injury

counts as ‘injury’ for purposes of standing.” Bauer v.

Shepard, 620 F.3d 704, 708 (7th Cir. 2010). Section 11.26(4)

restricts political speech and may be challenged prior

to enforcement based on the chill it places on the exercise

of First Amendment rights and the corresponding risk of

self-censorship. See Virginia v. Am. Booksellers Ass’n, Inc.,

484 U.S. 383, 392-93 (1988); Bauer, 620 F.3d at 708-09. “ ‘The

freedom of speech . . . guaranteed by the Constitution

embraces at the least the liberty to discuss publicly and

truthfully all matters of public concern without previous

restraint or fear of subsequent punishment.’ ” First Nat’l

Bank of Bos. v. Bellotti, 435 U.S. 765, 776 (1978) (quoting

Thornhill v. Alabama, 310 U.S. 88, 101-02 (1946)).

The defendants contend that because the Right to

Life PAC does not itself make political contributions,

section 11.26(4) does not apply to its conduct and

therefore it does not have standing to sue. This argument

is way off the mark. The statute imposes an aggregate

$10,000 cap on the amount individuals may contribute

to political candidates, parties, and political committees

in any calendar year. Anyone who contributes to the

Right to Life PAC is bound by this limitation, so section

11.26(4) operates to limit the contributions the com-

mittee may lawfully receive. To the extent that a contribu-

tor wants to donate more than the statute allows but

refrains from doing so in order to avoid violating the

statute, the committee itself is injured.

12 No. 11-2623

The Right to Life PAC has identified two contributors

in this category and plausibly claims there are more. Terry

and Mary Kohler filed declarations attesting to their

continuing intention to contribute to the Right to Life

PAC in amounts larger than the statutory aggregate

limit—not just in 2010, when this lawsuit was filed, but

also in the future. But for the operation of section 11.26(4),

they would do so. These injuries are easily sufficient

to give the Right to Life PAC standing to bring this pre-

enforcement challenge to the statute.8 See EMILY’s List v.

FEC, 581 F.3d 1, 4-5 & n.1 (D.C. Cir. 2009) (Contribution

limits can injure “contributee” organizations that are

forbidden from receiving contributions in excess of

the statutory limit.).

8

Section 11.60(1) of the Wisconsin Statutes subjects anyone who

violates Wisconsin election laws to a civil penalty of up to

$500. Section 11.60(3) provides that any person or group

violating contribution limitations may be required to forfeit

three times the amount of the contribution or three times the

portion that was illegally contributed. Section 11.61(1)(b)

provides that anyone who intentionally violates section 11.26

is guilty of a Class I felony if the amount is over $100. These

statutes subject contributors to potential civil and criminal

penalties for violating the contribution limit, and the Right

to Life PAC may be subject to liability for conspiracy to

violate Wisconsin’s election laws. See, e.g., In re Disciplinary

Proceedings Against Chvala, 730 N.W.2d 648, 649-50 (Wis. 2007)

(disciplinary proceeding involving attorney who previously

pleaded guilty to a conspiracy to violate the contribution

limitations in section 11.26).

No. 11-2623 13

In addition to its own Article III injury, the Right to

Life PAC has standing to sue to vindicate the political-

speech rights of its contributors. See, e.g., U.S. Dep’t of

Labor v. Triplett, 494 U.S. 715, 720-21 (1990) (allowing

attorney to challenge fee restrictions based on black-lung

claimants’ due-process right to legal representation);

Craig v. Boren, 429 U.S. 190, 195 (1976) (allowing beer

vendor to challenge alcohol regulation based on patrons’

equal-protection rights); Pierce v. Soc’y of Sisters, 268

U.S. 510, 536 (1925) (allowing private schools to assert

parents’ rights to direct the education of their children);

Ezell, 651 F.3d at 696 (allowing supplier of firing-

range facilities to bring Second Amendment challenge

to firing-range ban); Majors v. Abell, 317 F.3d 719, 722 (7th

Cir. 2003) (candidate for public office may bring suit

on behalf of the free-speech rights of his supporters).

2. Ripeness

The defendants also contend that the First Amendment

claim is unripe. Ripeness doctrine is based on the Con-

stitution’s case-or-controversy requirements as well as

discretionary prudential considerations. 13B C HARLES

A LAN W RIGHT, A RTHUR R. M ILLER & E DWARD H. C OOPER,

F EDERAL P RACTICE AND P ROCEDURE § 3532, at 365 (3d ed.

2008). Ripeness concerns may arise when a case involves

uncertain or contingent events that may not occur as

anticipated, or not occur at all. Id.; see also Bauer, 620 F.3d

at 708-09. Whether a claim is ripe for adjudication

depends on “ ‘the fitness of the issues for judicial decision’

and ‘the hardship to the parties of withholding court

14 No. 11-2623

consideration.’ ” Pac. Gas & Elec. Co. v. State Energy

Res. Conservation & Dev. Comm’n, 461 U.S. 190, 201 (1983)

(quoting Abbott Labs. v. Gardner, 387 U.S. 136, 149 (1967)).

Claims that present purely legal issues are normally

fit for judicial decision. Abbott Labs., 387 U.S. at 149. And

in challenges to laws that chill protected speech, the

hardship of postponing judicial review weighs heavily

in favor of hearing the case. Commodity Trend Serv., Inc. v.

Commodity Futures Trading Comm’n, 233 F.3d 981, 985-86

(7th Cir. 2000) (“CTS is . . . being chilled from engaging

in speech . . . . Thus, the second part of the ripeness test

is satisfied.” (internal citation omitted)); Commodity

Trend Serv., Inc. v. Commodity Futures Trading Comm’n, 149

F.3d 679, 689 (7th Cir. 1998) (“This kind of self-censorship

is a substantial hardship within the meaning of the

Abbott Laboratories test.”).

This appeal focuses on a single merits question: Is the

aggregate contribution cap in section 11.26(4) uncon-

stitutional as applied to contributions to independent-

expenditure committees? This is a legal issue and does

not depend on contingent factual developments. As we

explain in more detail later, the Supreme Court’s deci-

sion in Citizens United resolves the First Amendment

question as a matter of law. And because section 11.26(4)

limits political speech, delaying a decision would leave

in place a law that strikes at the heart of the First Amend-

ment free-speech right. See Ariz. Free Enter. Club’s Freedom

Club PAC v. Bennett, 131 S. Ct. 2806, 2817 (2011) (“[T]he

First Amendment has its fullest and most urgent applica-

tion to speech uttered during a campaign for political

No. 11-2623 15

office.” (internal quotation marks omitted)); Citizens United,

130 S. Ct. at 892 (“[P]olitical speech . . . is central to the

meaning and purpose of the First Amendment.”).

The defendants’ argument about unripeness goes

something like this: Under the terms of the injunction

pending appeal, the Kohlers were permitted to make

unlimited contributions to the Right to Life PAC during

the recall elections last summer; their generalized desire to

continue to do so in the future is too remote a contingency

to support a ripe claim. But “in the future” is fairly under-

stood to include the next election cycle, which is a scant

few months away. Indeed, the body politic in Wisconsin is

experiencing something of a perpetual campaign; efforts

are currently underway to force the governor and four

state senators to stand in recall elections.9 And whether or

not special recall elections are held, Wisconsin will hold

general elections for state and local offices in April and

November 2012. See generally W IS. C ONST. art. VII, § 1; W IS.

S TAT. §§ 10.51 et seq. There is nothing uncertain or contin-

gent about that. The First Amendment challenge to section

11.26(4) is ripe for judicial resolution.

9

See Jason Stein & Patrick Marley, Walker Recall Effort Kicks Off,

M ILWAUKEE J. SENTINEL, Nov. 15, 2011, http://www.jsonline.com/

news/statepolitics/133810473.html; Patrick Marley, Elections

Panel Estimates $650,000 State Cost for Recall Efforts, M ILWAUKEE

J. S ENTINEL , Nov. 17, 2011, http://www.jsonline.com/news/

statepolitics/134087043.html.

16 No. 11-2623

3. Mootness

Relatedly, the defendants contend that the claim is

moot because the summer 2011 recall elections are over.

Mootness doctrine is also premised on constitutional

requirements and prudential considerations. 13B W RIGHT

ET AL., supra, § 3533, at 716. A case must present a live

controversy at the time of filing, contain a live dispute

through all stages of litigation, and the parties must

continue to have a personal stake in the outcome of the

lawsuit throughout its duration. See Arizonans for Official

English v. Arizona, 520 U.S. 43, 67-68 (1997); Lewis v. Cont’l

Bank Corp., 494 U.S. 472, 477-78 (1990).

An established exception to mootness, often invoked

in election-law cases, permits an otherwise moot claim

to be heard if it is capable of repetition, yet evades re-

view. The exception applies where: “ ‘(1) the chal-

lenged action is in its duration too short to be fully

litigated prior to cessation or expiration, and (2) there is

a reasonable expectation that the same complaining

party will be subject to the same action again.’ ” FEC v.

Wis. Right to Life, 551 U.S. 449, 462 (2007) (quoting Spencer

v. Kemna, 523 U.S. 1, 17 (1998)); see also Davis v. FEC, 554

U.S. 724, 736 (2008); Wis. Right to Life, 551 U.S. at 463;

Lee v. Keith, 463 F.3d 763, 777 (7th Cir. 2006).

We need not take up the exception here. The conclu-

sion of the 2011 recall elections does not moot this claim.

As we have explained, the Right to Life PAC has at least

two contributors who want to make contributions in

excess of the $10,000 aggregate annual limit on a con-

tinuing basis in future elections. That’s enough to

support an ongoing live controversy.

No. 11-2623 17

B. Abstention

The district court abstained and stayed this case to

await the outcome of pending litigation in the state su-

preme court, a decision normally reviewed for abuse

of discretion. Int’l Coll. of Surgeons, 153 F.3d at 360 (dis-

cussing Pullman abstension). Whether abstention ap-

plies, however, is a legal issue subject to de novo re-

view. See, e.g., Med. Assurance Co., 610 F.3d at 378. If the

district court made an error of law in applying

abstention, it necessarily abused its discretion by

refusing to lift the stay. Cf. United States v. Freeman, 650

F.3d 673, 678 (7th Cir. 2011) (“The district court abuses

its discretion when it makes an error of law . . . .”).

Pullman abstention is appropriate “only when (1) there

is a substantial uncertainty as to the meaning of the

state law and (2) there exists a reasonable probability

that the state court’s clarification of state law might

obviate the need for a federal constitutional ruling.” Int’l

Coll. of Surgeons, 153 F.3d at 365. The purpose of Pullman

abstention is to “avoid the waste of a tentative decision

as well as the friction of a premature constitutional ad-

judication.” Pullman, 312 U.S. at 500. The doctrine is

based on considerations of comity and federalism and

applies when “the resolution of a federal constitutional

question might be obviated if the state courts were

given the opportunity to interpret ambiguous state law.”

Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 716-17 (1996).

The district court stayed this case in its entirety based

on the Wisconsin Prosperity Network litigation before the

state supreme court. As we have noted, Wisconsin Pros-

18 No. 11-2623

perity Network challenges GAB 1.28, a newly amended

campaign-finance rule that substantially expands the

reach of Wisconsin’s regulation of political speech. Wis.

Right to Life Comm., Inc. v. Myse, No. 10-C-0669, 2010 WL

3732300 (E.D. Wis. Sept. 17, 2010) (order granting stay

pending decision in Wisconsin Prosperity Network). The

rule was controversial when promulgated in 2010 and

immediately became the subject of several lawsuits.1 0 The

petition in Wisconsin Prosperity Network was filed on

August 9, 2010, less than two weeks after GAB 1.28

was published. W ISCONSIN C OURT S YSTEM , S UPREME

COURT AND COURT OF APPEALS ACCESS,

http://wscca.wicourts.gov/ (enter “2010AP001937” in the

“Appeal Number” field and select “Case History” button).

On August 13, 2010, the Wisconsin Supreme Court ordered

preliminary injunctive relief blocking enforcement of the

new rule while the petition is pending. On November 30,

2010, the state supreme court took original jurisdiction

over the case. Oral argument, initially scheduled for

March 9, 2011, was postponed to September 6, 2011. The

case was argued on that date and is now under advise-

ment.

10

In addition to this case in the Eastern District of Wisconsin

and Wisconsin Prosperity Network in the state supreme court, an

action challenging the rule was filed in federal court in the

Western District of Wisconsin; that case, too, was stayed

pending the outcome in Wisconsin Prosperity Network. See Wis.

Club for Growth, Inc. v. Myse, No. 10-CV-427-WMC, 2010

WL 4024932 (W.D. Wis. Oct. 13, 2010) (order staying all pro-

ceedings).

No. 11-2623 19

Abstention questions under Pullman require a compari-

son of the substance of the federal- and state-court litiga-

tion. The petitioners in Wisconsin Prosperity Network

have challenged the validity of GAB 1.28 on several

grounds. They argue as an initial matter that the GAB

lacked the authority to promulgate the rule. Their other

claims are based on the First Amendment and its free-

speech analog in the state constitution. See W IS. C ONST.

art. 1, § 3. In brief, they contend that GAB 1.28 impermis-

sibly expands the categories of political speech (and by

implication, the speakers) that are subject to the state’s

campaign-finance regulatory regime. They maintain

that the new rule “extend[s] regulation to virtually any

form of communication” and treats “a significant swath

of issue advocacy as express advocacy.” Pet’r Br. 5-6,

available at http://wscca.wicourts.gov/ (select “filed docu-

ments” and enter “10AP1937” in the “Appeal Number”

field). They advance several free-speech theories: that

GAB 1.28 is unconstitutionally overbroad; that it im-

permissibly creates favored categories of speakers; and

that it is not a narrowly tailored means of reducing

quid pro quo corruption.

Some of the claims in this case also implicate GAB 1.28

and thus overlap with Wisconsin Prosperity Network. But

the challenge to section 11.26(4) does not. Contributors

to the Right to Life PAC will remain subject to section

11.26(4) and its aggregate annual contribution cap

whether or not GAB 1.28 survives scrutiny in the

Wisconsin Supreme Court. The $10,000 aggregate annual

cap limits contributions to state and local candidates,

political parties, and political committees. W IS. S TAT.

20 No. 11-2623

§ 11.26(4). The Right to Life PAC is a political committee

as defined in Wisconsin campaign-finance law. Id.

§ 11.01(4). A “contribution” for purposes of the ag-

gregate limit means “[a] gift, subscription, loan, advance,

or deposit of money or anything of value . . . made for

political purposes.” Id. § 11.01(6)(a)(1). A contribution

is considered made for “political purposes” when it is

made “for the purpose of influencing the election or

nomination for election of any individual to state or local

office, for the purpose of influencing the recall from or

retention in office of an individual holding a state or

local office,” including the “making of a communication

which expressly advocates the election, defeat, recall or

retention of a clearly identified candidate.” Id. § 11.01(16),

(16)(a)(1).

The new GAB rule may have impermissibly expanded

the reach of these and other statutes (that’s the

question before the state supreme court), but it certainly

did not narrow their application. As such, the outcome in

Wisconsin Prosperity Network will have no effect on

the federal constitutional question raised here. Whether

GAB 1.28 is invalidated or upheld, section 11.26(4) will

continue to apply to the contributions the Right

to Life PAC may receive. Because the challenge to the

statutory aggregate contribution limit will be unaffected

by the Wisconsin Supreme Court’s decision in Wisconsin

Prosperity Network, there is no “reasonable probability

that the state court’s clarification of state law might

obviate the need for a federal constitutional ruling.”

Int’l Coll. of Surgeons, 153 F.3d at 365. Accordingly,

No. 11-2623 21

the district court’s reliance on Pullman abstention was

an error of law and necessarily an abuse of discretion.

C. Wisconsin’s Limit on Contributions to Independent-

Expenditure Committees

We come at last to the merits. Does the First Amendment

prohibit Wisconsin from applying section 11.26(4), the

$10,000 aggregate annual contribution limit, to contribu-

tions to organizations engaged only in independent

expenditures for political speech?1 1 As we have noted,

this is a legal issue, and resolving it does not require an

evidentiary record. So although the district court did not

address the question, we may decide it here.

“There is practically universal agreement that a major

purpose of the First Amendment was to protect the

free discussion of governmental affairs, includ[ing] discus-

sion[] of candidates.” Ariz. Free Enterprise, 131 S. Ct. at 2828

(internal quotation marks omitted). The free flow

of political speech “is central to the meaning and purpose

of the First Amendment.” Citizens United, 130 S. Ct. at

892. In our system the individual free-speech right has

structural significance; unencumbered discussion about

political candidates and issues is “integral to the opera-

11

The First Amendment provides that “Congress shall make no

law . . . abridging the freedom of speech,” U.S. C ONST . amend.

I, and applies to the states through Section 1 of the Fourteenth

Amendment, U.S. C ONST . amend. XIV, § 1. See Near v. Minnesota

ex rel. Olson, 283 U.S. 697, 707 (1931).

22 No. 11-2623

tion of the system of government established by our

Constitution.” Buckley v. Valeo, 424 U.S. 1, 14 (1976). “The

right of citizens to inquire, to hear, to speak, and to

use information to reach consensus is a precondition to

enlightened self-government and a necessary means to

protect it.” Citizens United, 130 S. Ct. at 898. For these

reasons, most laws that burden political speech are

subject to rigorous judicial review. “Laws that burden

political speech are ‘subject to strict scrutiny,’ which

requires the Government to prove that the restriction

‘furthers a compelling interest and is narrowly tailored

to achieve that interest.’ ” Id. (quoting Wis. Right to Life,

551 U.S. at 464).

Ever since Buckley, however, the Supreme Court has

drawn a distinction between restrictions on expenditures

for political speech and restrictions on contributions to

candidates. See Ariz. Free Enterprise, 131 S. Ct. at 2817;

Citizens United, 130 S. Ct. at 901-02; FEC v. Colo. Republican

Fed. Campaign Comm., 533 U.S. 431, 437 (2001); Buckley, 424

U.S. at 20-21. Although “[s]pending for political ends

and contributing to political candidates both fall within

the First Amendment’s protection of speech and political

association,” Colo. Republican, 533 U.S. at 440, the Court

has generally applied a more lenient standard of review

to campaign-finance limits on contributions.

Buckley held that limits on contributions to a candidate’s

campaign do not burden speech and political-associa-

tion rights to the same degree as limits on election ex-

penditures; this kind of campaign-finance regulation

need only satisfy a form of intermediate scrutiny.

No. 11-2623 23

424 U.S. at 23-25. Campaign contribution limits are gener-

ally permissible if the government can establish that they

are “closely drawn” to serve a “sufficiently important

interest.” Id. at 25; see also Ariz. Free Enterprise, 131 S. Ct.

at 2817; Davis, 554 U.S. at 737; Randall v. Sorrell, 548 U.S.

230, 247 (2006); Colo. Republican, 533 U.S. at 446. Applying

this less-demanding standard of review, Buckley upheld

limits on direct contributions to candidates based on

the strength of the government’s interest in preventing

quid pro quo corruption or the appearance of corrup-

tion. Buckley, 424 U.S. at 26-27; see also Colo. Republican,

533 U.S. at 456 (applying the intermediate standard to

uphold caps on coordinated party expenditures on the

theory that expenditures coordinated between party and

candidate function like contributions to candidates).

Political expenditures stand on a different footing.

Expenditure limits “impose significantly more severe

restrictions on protected freedoms of political expression

and association.” Buckley, 424 U.S. at 23. “A restriction on

the amount of money a person or group can spend on

political communication during a campaign necessarily

reduces the quantity of expression by restricting the

number of issues discussed, the depth of their exploration,

and the size of the audience reached.” Id. at 19. Because

“[p]olitical speech is indispensable to decisionmaking in

a democracy” and “[a]ll speakers . . . use money amassed

from the economic marketplace to fund their speech,”

government-imposed burdens on political expenditures

suppress speech quite directly and raise core First Amend-

ment concerns. Citizens United, 130 S. Ct. at 904-05

(internal quotation marks omitted). Accordingly, laws

24 No. 11-2623

that burden spending for political speech—whether candi-

date spending or independent spending—get strict

scrutiny and usually flunk. See, e.g., Ariz. Free Enterprise,

131 S. Ct. at 2817-18 (collecting cases); Citizens United, 130

S. Ct. at 896-99; Davis, 554 U.S. at 740-44; Colo. Republican,

533 U.S. at 441-42; Buckley, 424 U.S. at 55-56.

Finally, the Court has observed that “preventing cor-

ruption or the appearance of corruption [is] the only

legitimate and compelling government interest[] thus far

identified for restricting campaign finances.” FEC v. Nat’l

Conservative Political Action Comm., 470 U.S. 480, 496-97

(1985). Importantly for our purposes here, Citizens

United made it clear that the government’s interest in

preventing actual or apparent corruption—an interest

generally strong enough to justify some limits on con-

tributions to candidates—cannot be used to justify re-

strictions on independent expenditures. 130 S. Ct. at 909

(“[W]e now conclude that independent expenditures,

including those made by corporations, do not give rise

to corruption or the appearance of corruption.”).

As we have explained, there is a “fundamental constitu-

tional difference between money spent to advertise one’s

views independently of the candidate’s campaign and

money contributed to the candidate to be spent on his

campaign.” Nat’l Conservative PAC, 470 U.S. at 497 (empha-

sis added); Randall, 548 U.S. at 241-42. When Buckley

“identified a sufficiently important governmental

interest in preventing corruption or the appearance of

corruption, that interest was limited to quid pro quo cor-

ruption.” Citizens United, 130 S. Ct. at 909-10 (citing

No. 11-2623 25

McConnell v. FEC, 540 U.S. 93, 296-98 (opinion of Kennedy,

J.)); see also Nat’l Conservative PAC, 470 U.S. at 497.

The threat of quid pro quo corruption does not arise

when independent groups spend money on political

speech. “By definition, an independent expenditure

is political speech presented to the electorate that is not

coordinated with a candidate.” Citizens United, 130 S.

Ct. at 910. “The separation between candidates and

independent expenditure groups negates the possibility

that independent expenditures will result in the sort of

quid pro quo corruption with which [the Court’s] case law

is concerned.” Ariz. Free Enterprise, 131 S. Ct. at 2826-27. In

short, “[t]he candidate-funding circuit is broken.” Id.

at 2826. Citizens United thus held as a categorical matter

that “independent expenditures do not lead to, or

create the appearance of, quid pro quo corruption.” 130

S. Ct. at 910.

It’s worth pausing here to reiterate that preventing

actual or apparent quid pro quo corruption is the only

interest the Supreme Court has recognized as sufficient

to justify campaign-finance restrictions. Over time,

various other justifications for restricting political speech

have been offered—equalization of viewpoints, combating

distortion, leveling electoral opportunity, encouraging

the use of public financing, and reducing the appear-

ance of favoritism and undue political access or influ-

ence—but the Court has repudiated them all. See, e.g., Ariz.

Free Enterprise, 131 S. Ct. at 2825-29 (collecting cases); see

also Citizens United, 130 S. Ct. at 902-11 (same); Nat’l

Conservative PAC, 470 U.S. at 496-97. As such, after

26 No. 11-2623

Citizens United there is no valid governmental interest

sufficient to justify imposing limits on fundraising

by independent-expenditure organizations.

It follows, then, as a matter of law and logic, that Wis-

consin’s $10,000 aggregate annual contribution limit is

unconstitutional as applied to organizations, like the

Right to Life PAC, that engage only in independent

expenditures for political speech. This is true even

though the statute limits contributions, not expenditures.

Whether strict scrutiny or the intermediate “closely

drawn” standard applies, the anticorruption rationale

cannot serve as a justification for limiting fundraising

by groups that engage in independent spending on politi-

cal speech. No other justification for limits on political

speech has been recognized, and none is offered here.

The D.C. Circuit reached just this conclusion in a deci-

sion invalidating a federal aggregate contribution limit

as applied to contributions made to “independent

expenditure-only organizations.” SpeechNow.org v. FEC,

599 F.3d 686, 695-96 (2010). The court noted that where

contributions to independent-expenditure groups are

concerned, Citizens United “effectively held that there is

no corrupting ‘quid’ for which a candidate might in

exchange offer a corrupt ‘quo.’ ” Id. at 694-95. This

rather simplified the task of weighing the competing

interests. Id. at 695. To justify limiting contributions

to independent-expenditure groups, the government

needed “a countervailing interest that outweighs the

limit’s burden on the exercise of First Amendment

rights.” Id. at 692. Only one such interest has ever been

No. 11-2623 27

recognized: preventing corruption or the appearance

of corruption. Id. Because Citizens United held “as a

matter of law that independent expenditures do not

corrupt or create the appearance of quid pro quo corrup-

tion,” it followed inexorably that “contributions to

groups that make only independent expenditures also

cannot corrupt or create the appearance of corruption.”

Id. at 694. Without an anticorruption rationale, the gov-

ernment was left empty-handed; the court held that

as applied to independent-expenditure groups, the

federal contribution limit was unjustified under either

strict scrutiny or the more relaxed “closely drawn” stan-

dard. As the D.C. Circuit aptly put it, “ ‘something . . .

outweighs nothing every time.’ ” Id. at 695 (quoting Nat’l

Ass’n of Retired Fed. Emps. v. Horner, 879 F.2d 873, 879

(D.C. Cir. 1989)).

Other circuits are in accord. For example, in Long Beach

Area Chamber of Commerce v. City of Long Beach, 603 F.3d

684, 687 (9th Cir. 2010), the Ninth Circuit considered a

challenge to a city ordinance prohibiting persons or

groups engaged in independent expenditures from ac-

cepting contributions above specified limits. The court

invalidated the ordinance, relying on Citizens United to

hold that contributions for independent expenditures

pose no threat of corruption. Id. at 698-99; see also

Thalheimer v. City of San Diego, 645 F.3d 1109, 1121

(9th Cir. 2011) (applying Long Beach to invalidate a mu-

nicipal ordinance limiting contributions to independent-

expenditure committees). The Fourth Circuit reached

a similar conclusion even before Citizens United. See

N.C. Right to Life, Inc. v. Leake, 525 F.3d 274, 293 (4th

28 No. 11-2623

Cir. 2008) (holding a statute limiting contributions to

independent-expenditure political committee uncon-

stitutional); see also EMILY's List v. FEC, 581 F.3d 1, 16-19

(D.C. Cir. 2009) (holding, pre-Citizens United, that

because “[d]onations to and spending by a non-profit

[independent-expenditure organization] cannot corrupt

a candidate or officeholder,” federal regulatory limits

on contributions to such organizations are unconstitu-

tional (emphasis omitted)).

The defendants have no valid response to this line of

authority. They argue only that large contributions to

independent-expenditure groups create the appearance

of corruption “in more indirect ways”—for example,

through “the proverbial ‘wink or nod’ between donor

and candidate regarding the donor’s ‘uncoordinated’

beyond-limits contribution to an independent ex-

penditure political committee.” They maintain that pre-

venting the indirect appearance of corruption is enough

to satisfy the intermediate standard of review. This argu-

ment is foreclosed by Citizens United. As a categorical

matter, independent expenditures “do not give rise to

corruption or the appearance of corruption.” Citizens

United, 130 S. Ct. at 909. Moreover, to the extent that

the defendants’ “wink or nod” hypothetical implies

collusion between a candidate and an independent com-

mittee, it suggests only that the independent committee

is not truly independent. If that’s true, the committee

would not qualify for the free-speech safe harbor

for independent expenditures; the First Amendment

permits the government to regulate coordinated expendi-

tures. Colo. Republican, 533 U.S. at 465 (“[A political]

No. 11-2623 29

party’s coordinated expenditures, unlike expenditures

truly independent, may be restricted to minimize

circumvention of contribution limits.”).

Furthermore, the Supreme Court has firmly rejected the

argument that burdens on political speech might be

justified based on their tendency to indirectly serve the

governm ent’s anticorruption interest. Ariz. Free

Enterprise, 131 S. Ct. at 2827 (“[T]he fact that burdening

constitutionally protected speech might indirectly serve

the State’s anticorruption interest, by encouraging candi-

dates to take public financing, does not establish the

constitutionality of the matching funds provision.”).

That’s the unmistakable upshot of the Court’s cate-

gorical holding in Citizens United that independent ex-

penditures do not corrupt or appear to corrupt.

Accordingly, we conclude that applying section 11.26(4),

the $10,000 aggregate annual contribution cap, to con-

tributions to independent-expenditure committees like

the Right to Life PAC violates the First Amendment.

We therefore V ACATE the district court’s abstention

order for the limited purpose of allowing this challenge

to section 11.26(4) and R EMAND with instructions to

enter a permanent injunction enjoining the enforce-

ment of section 11.26(4) as applied to contributions to

independent-expenditure committees.

12-12-11