Indiana Right to Life Victory Fund v. Diego Morales

FILED

Sep 25 2023, 1:41 pm

CLERK

Indiana Supreme Court

Court of Appeals

and Tax Court

IN THE

Indiana Supreme Court

Supreme Court Case No. 23S‐CQ‐108

Indiana Right to Life Victory Fund and

Sarkes Tarzian, Inc.,

Plaintiffs‐Appellants,

–v–

Diego Morales, et al.,

Defendants‐Appellees.

Argued: September 7, 2023 | Decided: September 25, 2023

Certified Question from the

United States Court of Appeals for the Seventh Circuit

No. 22‐1562

Opinion by Justice Molter

Chief Justice Rush and Justices Massa and Slaughter concur.

Justice Goff dissents with separate opinion.

Molter, Justice.

Pursuant to Indiana Rule of Appellate Procedure 64, we exercised our

discretion to accept the following certified question from the United States

Court of Appeals for the Seventh Circuit: “Does the Indiana Code—in

particular, §§ 3‐9‐2‐3 to ‐6—prohibit or otherwise limit corporate

contributions to [political action committees] or other entities that engage

in independent campaign‐related expenditures?” In short, our answer is:

Yes.

Facts and Procedural History

Plaintiff Indiana Right to Life Victory Fund is registered with the

Indiana Election Division as a political action committee (“PAC”)

headquartered in Indianapolis, Indiana. It is organized as an independent‐

expenditure‐only PAC, known as a “Super PAC.” “Independent

expenditure” is a term of art under federal law that refers to

disbursements “for a communication expressly advocating the election or

defeat of a clearly identified candidate that is not made in cooperation,

consultation, or concert with, or at the request or suggestion of, a candidate, a

candidate’s authorized committee, or their agents, or a political party

committee or its agents.” 11 C.F.R. § 100.16 (emphasis added). As

independent‐expenditure‐only PACs, Super PACs are barred under

federal law from making contributions to candidates or their campaign

committees. Richard Briffault, Super PACs, 96 Minn. L. Rev. 1644, 1647

(2012) (explaining that “a Super PAC can only make independent

expenditures and is barred from making direct candidate contributions”).

Plaintiff Sarkes Tarzian, Inc. is registered with the Indiana Secretary of

State as a domestic for‐profit corporation, with its principal office in

Bloomington, Indiana. It wants to make a $10,000 contribution to the

Victory Fund earmarked for the fund’s independent expenditures, but it

has not done so because it believes Indiana Code sections 3‐9‐2‐4 and 3‐9‐

2‐5 prohibit corporate contributions to Super PACs like the Victory Fund.

The Victory Fund and Sarkes Tarzian filed a lawsuit in the U.S. District

Court for the Southern District of Indiana against several state officials

responsible for enforcing Indiana’s election laws—the Secretary of State,

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the Indiana Election Commission, the Indiana Election Division, the

Indiana Attorney General, and Indiana county prosecutors. The plaintiffs

requested a declaratory judgment that Indiana Code sections 3‐9‐2‐4 and

3‐9‐2‐5 are unconstitutional as applied to contributions like the $10,000

donation Sarkes Tarzian wishes to make to the Victory Fund. They argue

these statutes run afoul of the United States Supreme Court’s decision in

Citizens United v. Federal Election Commission, 558 U.S. 310, 365, 130 S. Ct.

876, 175 L. Ed. 2d 753 (2010), which held that the First Amendment forbids

the government from restricting corporate contributions for independent

expenditures. They also asked the district court to enjoin the election

officials from enforcing the statutes to prohibit Sarkes Tarzian’s proposed

contribution and other contributions like it.

The district court dismissed the plaintiffs’ suit for lack of standing. The

court concluded the plaintiffs have not suffered an injury because the

statutes at issue have never been enforced against corporate contributions

for independent expenditures, and the election officials have disclaimed

any intention to do so, both because they do not interpret the statutes as

prohibiting the contributions, and because they agree with the plaintiffs

that Citizens United precludes any such legislative restriction. Ind. Right to

Life Victory Fund v. Sullivan, No. 1:21‐cv‐02796‐SEB‐TAB, 2022 WL 683645,

at *7–8 (S.D. Ind. Mar. 8, 2022). The plaintiffs appealed, and the Seventh

Circuit reasoned that it “cannot decide whether the Fund has standing to

challenge the Indiana Election Code without first determining the Code’s

meaning,” and that “inquiry entails its own complexity, as Indiana courts

have not yet interpreted the provisions at issue.” Ind. Right to Life Victory

Fund v. Morales, 66 F.4th 625, 627 (7th Cir. 2023). Mindful of important

principles of federalism and the need for an authoritative answer to a

potentially dispositive question, the Seventh Circuit certified the question

to our Court under Seventh Circuit Rule 52, and we exercised our

discretion to accept that certification under Indiana Appellate Rule 64.

Discussion and Decision

The Seventh Circuit asks whether Indiana Code sections 3‐9‐2‐3 to ‐6

prohibit corporate contributions to Super PACs like the Victory Fund.

When we interpret a statute, we “give its words their plain meaning and

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consider the structure of the statute as a whole.” ESPN, Inc. v. Univ. of

Notre Dame Police Dep’t, 62 N.E.3d 1192, 1195 (Ind. 2016). As we do that,

we are mindful of both what the statute says and what it does not say. Id.

Here, both sides agree that none of the relevant statutes say anything

about corporate contributions to Super PACs for independent

expenditures, but the parties disagree about what conclusion follows from

that silence. The plaintiffs argue that silence means the contributions are

prohibited, and the election officials argue that silence means the

contributions are permitted. We agree with the plaintiffs that the plain,

unambiguous meaning of the text is that the contributions are prohibited.

I. Corporate contributions to PACs are limited to

contributions that are statutorily authorized, which

do not include contributions to Super PACs for

independent expenditures.

Indiana used to ban all corporate political contributions. See State v.

Terre Haute Brewing Co., 186 Ind. 248, 115 N.E. 772, 772 (1917) (“No

contributions, payments or favors of any kind shall be made, extended by

or solicited from any private corporation to promote the success or defeat

of any candidate for public office or of any political party or principle or

for any other political purpose whatever.” (quoting Act of Mar. 10, 1913,

ch. 180, 1913 Ind. Acts 489, 494)). Now, the Indiana Code permits a

corporation to “make a contribution to aid in the . . . election or defeat of a

candidate,” as well as the success or defeat of political parties and public

questions, Ind. Code § 3‐9‐2‐3(a), but only to the extent authorized by

sections 4, 5, and 6 of Title 3 (Elections), Article 9 (Campaigns), Chapter 2

(Campaign Contributions), id. § ‐3(b) (“Contributions by a corporation or

labor organization are limited to those authorized by sections 4, 5, and 6 of

this chapter.”).

“Contribution” is a statutorily defined term that turns on the donation’s

recipient and purpose. A donation to a candidate, a candidate committee,

a regular party committee, a political action committee, or a legislative

caucus committee “for the purpose of influencing . . . [the] election to

office of a candidate” qualifies as a “contribution.” Id. § 3‐5‐2‐15(a).

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“Political action committee” is also a statutorily defined term. It covers an

organization which “accepts contributions or makes expenditures . . . to

influence the election of a candidate” and which is not an auxiliary party

organization, a legislative caucus committee, a regular party committee, or

a candidate’s committee. Id. § 3‐5‐2‐37(a). A PAC’s disbursement to

influence a candidate’s election is an “expenditure.” Id. § 3‐5‐2‐23(a).

Sarkes Tarzian’s $10,000 donation would qualify as a contribution. Its

recipient—the Victory Fund—is a PAC because the Victory Fund intends

to receive contributions from donors like Sarkes Tarzian and then make

expenditures to advocate for the election of political candidates who share

Indiana Right to Life’s views. See App. Vol. II at 54 (describing in the

plaintiffs’ complaint that the Victory Fund’s sole purpose is to “receive,

administer, and expend funds in connection with independent

expenditures regarding candidates for Indiana offices”). And the purpose

of Sarkes Tarzian’s contribution is to support the Victory Fund in its

efforts to elect candidates with aligned views.

Sarkes Tarzian’s contribution would only be legal under Indiana law if

it were authorized by sections 4, 5, and 6. I.C. § 3‐9‐2‐3(b). Section 4 sets

annual limits on corporations’ direct contributions to candidates and party

committees, with those limits ranging from $2,000 to $5,000 for an

aggregate annual limit of $22,000:

(1) an aggregate of five thousand dollars ($5,000) apportioned

in any manner among all candidates for state offices (including

a judge of the court of appeals whose retention in office is

voted on by a district that does not include all of Indiana);

(2) an aggregate of five thousand dollars ($5,000) apportioned

in any manner among all state committees of political parties;

(3) an aggregate of two thousand dollars ($2,000) apportioned

in any manner among all candidates for the senate of the

general assembly;

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(4) an aggregate of two thousand dollars ($2,000) apportioned

in any manner among all candidates for the house of

representatives of the general assembly;

(5) an aggregate of two thousand dollars ($2,000) apportioned

in any manner among regular party committees organized by a

legislative caucus of the senate of the general assembly;

(6) an aggregate of two thousand dollars ($2,000) apportioned

in any manner among regular party committees organized by a

legislative caucus of the house of representatives of the general

assembly;

(7) an aggregate of two thousand dollars ($2,000) apportioned

in any manner among all candidates for school board offices

and local offices; and

(8) an aggregate of two thousand dollars ($2,000) apportioned

in any manner among all central committees other than state

committees.

Id. § 3‐9‐2‐4. Section 4 does not mention contributions to PACs.

But section 5 does. It says corporations like Sarkes Tarzian “may make

a contribution to a political action committee” so long as the contribution

(a) “is designated for disbursement to a specific candidate or committee

listed under section 4 of this chapter,” and (b) does not exceed section 4’s

dollar limits. Id. § 3‐9‐2‐5(c). The contribution Sarkes Tarzian wants to

make would violate section 5’s requirement that Sarkes Tarzian earmark

its contribution for a specific candidate or committee. Sarkes Tarzian

wants to do just the opposite, earmarking its contribution for the Victory

Fund’s independent expenditures. Indeed, a key organizing principle of

the independent‐expenditure‐only PAC is that it will not disburse its

funds to candidates and party committees. See App. Vol. II at 61 (directing

in the Victory Fund’s board resolution that the “Victory Fund is

prohibited from making contributions to any candidate or any political

party”).

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Section 6 provides exceptions to these restrictions. It says sections 4 and

5 do not apply to certain nonpartisan registration and get‐out‐the‐vote

campaigns, to transfers from incorporated nonpartisan PACs to other

committees, and to contributions supporting or opposing the approval of

a public question. I.C. § 3‐9‐2‐6. But both sides agree none of those

exceptions apply here.

Because section 3 only permits corporate contributions that sections 4,

5, or 6 authorize, and those sections do not authorize Sarkes Tarzian’s

contribution to the Victory Fund, the Indiana Code prohibits the

contribution.

II. The statutes are unambiguous.

The election officials argue that because the Indiana Code is silent

about corporate contributions to independent‐expenditure‐only PACs, it

does not prohibit them, and it does not regulate them at all. But the

Indiana Code directs that silence is prohibition by saying that

“[c]ontributions by a corporation or labor organization are limited to those

authorized by sections 4, 5, and 6 of this chapter.” Id. § 3‐9‐2‐3(b) (emphasis

added).

To that point, the election officials respond that closer scrutiny reveals

the statutes are ambiguous, and we should construe them to comport with

Citizens United, which held that limits on a corporation’s independent

election‐related expenditures violate the First Amendment. 558 U.S. at 365.

This is an invocation of the “familiar canon of statutory interpretation that

statutes should be interpreted so as to avoid constitutional issues.” City of

Vincennes v. Emmons, 841 N.E.2d 155, 162 (Ind. 2006). But while the

election officials argue that three features of the relevant statutes make the

statutes ambiguous, we disagree.

First, the election officials point out that while section 3(b) limits

corporate contributions to those authorized in sections 4, 5, and 6, section

3(a) says that corporations may make contributions to aid in electing

candidates “[n]otwithstanding . . . any other statute.” I.C. § 3‐9‐2‐3. The

election officials believe that section 3(a)’s statement of a “broadly granted

right would be self‐defeating and inherently contradictory if Sections 3

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and 5 are read to permit only one possible way for corporations to

contribute to PACs that is practically very similar to contributing to the

candidates or party committees directly.” Appellees’ Principal Br. at 21.

That argument is a non‐sequitur. Whether the limit on corporate

contributions to PACs seems too constricting says nothing about whether

there are multiple ways to reasonably interpret the text. Fix v. State, 186

N.E.3d 1134, 1139 (Ind. 2022) (“But when a statute permits more than one

reasonable interpretation, we consider that statute ambiguous.”).

Moreover, the limit on contributions to PACs does not defeat section 3(a)’s

more general statement authorizing corporate contributions because

section 4 leaves plenty of other avenues for corporate contributions that

are unrelated to PACs. And in any event, there is nothing surprising or

self‐contradictory about a statutory interpretation that reads the relevant

provisions as not authorizing contributions to Super PACs because Super

PACs did not exist when the statutes were enacted.1

Second, the election officials argue the statutes are ambiguous because

the Indiana Code does not distinguish between “expenditures” and

“independent expenditures.” That argument is circular. The question is

whether the statutory silence about “independent expenditures” means

corporations can contribute to independent‐expenditure‐only PACs. It is

no answer to repeat back the premise of the question, which is that the

Indiana Code is silent about independent expenditures.

Third, and relatedly, the election officials point out that the Indiana

Code does not distinguish between PACs and Super PACs. That is the

same sort of circular argument. Again, the question is whether the

1The election officials also deride the plaintiffs’ interpretation of section 3(b) as “requir[ing]

special authorizing language for a corporation to make any political donation to any entity and

that this magic language must be contained in Sections 4, 5, and 6.” Appellees’ Resp. Br. at 8

(emphasis added). Nobody is advocating that interpretation. As we explained above,

“contribution” is a statutorily defined term that turns on the purpose and recipient of the

donation. I.C. § 3‐5‐2‐15. The only covered purposes are to influence the nomination or

election of candidates to office, the election of delegates to a state constitutional convention,

and the outcome of a public question. Id. § ‐15(a)(1). The only covered recipients are

candidates, candidates’ committees, regular party committees, PACs, and legislative caucus

committees. Id. § ‐15(a)(2).

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statutory silence about Super PACs means corporate contributions to

them are permitted or prohibited, and again, it is no answer to repeat back

the premise of the question, which is that the statutes are silent about

Super PACs.

We do acknowledge one statutory ambiguity, but it does not bear on

the outcome of this case. The statute defining a PAC says that a

“corporation or labor organization that makes a contribution in

accordance with IC 3‐9‐2 or makes an expenditure is not considered a

political action committee.” I.C. § 3‐5‐2‐37(b). But the statutory definition

of expenditure covers only disbursements by an individual, a candidate’s

committee, a regular party committee, or a PAC. Id. § 3‐5‐2‐23(a)(2). So if

section 3‐5‐2‐37 says a corporation making an expenditure cannot be a

PAC, and section 3‐5‐2‐23(a)(2) says the only way a corporation’s

disbursements could be an expenditure is if the corporation is a PAC,

those two provisions seem to cancel each other out.

The State does not propose an interpretation reconciling those

provisions. But we need not resolve the ambiguity to answer the certified

question because the State concedes the Victory Fund is a Super PAC, and

it does not suggest there is a reasonable interpretation of those two

provisions that would distinguish between PACs and Super PACs. So as

the parties have framed the case, the question remains whether the

Indiana Code prohibits corporate contributions to Super PACs, not

whether the Victory Fund is a PAC in the first place.

Relatedly, we cannot definitively answer the part of the certified

question asking whether the Indiana Code “otherwise limit[s] corporate

contributions to . . . other entities that engage in independent campaign‐

related expenditures.” Ind. Right to Life Victory Fund, 66 F.4th at 633.

Because the Victory Fund is a PAC, the facts of this case do not present a

context in which to examine potential limits on corporate contributions to

other entities making independent expenditures. We merely note that

“contribution” is a statutorily defined term, and that definition only

covers donations to a candidate, a candidate’s committee, a regular party

committee, a PAC, and a legislative caucus committee. I.C. § 3‐5‐2‐15(a)(2).

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In short, the election officials have failed to identify any statutory

ambiguity that could reasonably permit an interpretation that authorizes

the contribution Sarkes Tarzian would like to make.

III. We cannot revise unambiguous statutes through

judicial interpretation to avoid a constitutional

defect.

Underlying the election officials’ analysis seems to be an

understandable frustration that “Plaintiffs’ federal case is a solution in

search of a problem.” Appellees’ Principal Br. at 12. The election officials,

at least in their briefing and supporting affidavits, have committed to not

enforcing the statutes as preventing the plaintiffs’ proposed contribution,

and the officials agree with the plaintiffs that Citizens United clearly

protects the right to make that contribution and other contributions like it.

So the plaintiffs are suing to stop the election officials from doing

something they say they have no intention of ever doing. As a shortcut to

the Seventh Circuit enjoining the statutes’ application to a corporate

contribution to a Super PAC, why not just interpret the statutes as

allowing the contribution?

We might do that if the statutes were ambiguous, but we cannot resort

to the constitutional avoidance canon of statutory construction if there is

no ambiguity to resolve. See Rogers v. Martin, 63 N.E.3d 316, 327 (Ind.

2016) (“When those words are clear and unambiguous, we simply apply

their plain meaning, without resorting to other canons of statutory

construction.”). Otherwise, rather than interpreting an ambiguous statute,

we would be rewriting an unambiguous one. See Jennings v. Rodriguez, 138

S. Ct. 830, 836, 200 L. Ed. 2d 122 (2018) (“[A] court relying on that canon

still must interpret the statute, not rewrite it.” (emphasis in original)). And

that would run afoul of our constitutional separation‐of‐powers because it

is the legislature that writes and revises statutes while we merely interpret

and apply them. Ind. Wholesale Wine & Liquor Co. v. State ex rel. Ind.

Alcoholic Beverage Comm’n, 695 N.E.2d 99, 108 n.21 (Ind. 1998) (“On the

other hand, separation of powers prevents a court from effectively

rewriting a statute to save it from constitutional infirmity.”); see also United

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States v. Stevens, 559 U.S. 460, 481, 130 S. Ct. 1577, 176 L. Ed. 2d 435 (2010)

(“We will not rewrite a law to conform it to constitutional requirements,

for doing so would constitute a serious invasion of the legislative domain,

and sharply diminish Congress’s incentive to draft a narrowly tailored

law in the first place.” (cleaned up)).

The election officials explain that PACs have evolved over the last

thirty‐five years, and they demonstrate that by pointing to a series of

statutory changes reflecting that evolution. Here, both sides agree the

United States Supreme Court changed the landscape for PACs in its

Citizens United decision, paving the way for the invention of Super PACs

like the Victory Fund. So it is no doubt time for the General Assembly to

again update its statutes to account for this change in constitutional law.

But we cannot provide a shortcut through judicial interpretation of

unambiguous statues.

Conclusion

We hold that Indiana Code sections 3‐9‐2‐3 to ‐6 prohibit corporate

contributions to PACs earmarked for independent campaign‐related

expenditures. We are mindful that the parties expect this holding will lead

the federal courts to enjoin the election officials’ enforcement of those

statutes as applied to contributions like the one Sarkes Tarzian wishes to

make to the Victory Fund. But we must leave it to the General Assembly

to update its statutes to remedy any such constitutional defect, as

statutory revision is beyond our authority.

Chief Justice Rush and Justices Massa and Slaughter concur.

Justice Goff dissents with separate opinion.

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ATTORNEYS FOR PLAINTIFFS‐APPELLANTS

James Bopp, Jr.

Richard E. Coleson

Courtney Turner Milbank

Joseph D. Maughon

The Bopp Law Firm, PC

Terre Haute, Indiana

ATTORNEYS FOR DEFENDANTS‐APPELLEES

Theodore E. Rokita

Attorney General of Indiana

Kyle Hunter

Assistant Section Chief, Civil Appeals

Indianapolis, Indiana

Indiana Supreme Court | Case No. 23S‐CQ‐108 | September 25, 2023 Page 12 of 12

Goff, J., dissenting.

I respectfully disagree with the majority and would answer the certified

question, “no.” I reach this conclusion by inferring what the legislature

most likely intends the Indiana Election Code to mean in the aftermath of

Citizens United.

The General Assembly originally enacted Election Code sections 3-9-2-3

to -6, regulating corporate campaign contributions, in 1986. See Pub. L. No.

5-1986, § 5, 1986 Ind. Acts 25, 129–30. Various amendments have been

made over the years, but only minor ones since 2010. The plain statutory

language seems to prohibit corporate contributions to fund a PAC’s

independent campaign-related expenditures. Today’s majority, finding no

ambiguity in the text, interprets it as doing just that—although there is no

sign that the legislature had such contributions in mind.

All questions of statutory interpretation begin, of course, with the

statute’s text. Powell v. State, 151 N.E.3d 256, 265 (Ind. 2020). We read the

“words in their plain and ordinary meaning, taking into account the

structure of the statute as a whole” and the legislature’s “underlying

policy and goals.” Town of Linden v. Birge, 204 N.E.3d 229, 237 (Ind. 2023)

(internal quotation marks omitted). Our Court has, thus, adopted a

predominantly textualist approach. This method of statutory

interpretation will, in most cases, promote consistency and predictability

in the law. In rare cases, however, too great a focus on the text can

undermine our objective to “determine and give effect to the legislature’s

intent.” See id. (internal quotation marks omitted). Here, two primary

considerations make it especially appropriate to do more than

mechanically interpret the text: the historical context in which the case

arises and this Court’s role in Indiana’s system of government.

First, when the General Assembly initially drafted the relevant

provisions in the 1980s, the Citizens United decision lay far in the future.

See Citizens United v. Fed. Election Comm’n, 558 U.S. 310 (2010). At that

time, corporate-funded PACs had “not engaged extensively in

independent campaign spending.” Roberta Romano, Metapolitics and

Corporate Law Reform, 36 Stan. L. Rev. 923, 988 n.197 (1984). It was Citizens

United that sparked the emergence of “Super PACs,” i.e., organizations

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“capable of unlimited fundraising for independent expenditures and

unlimited non-coordinated spending.” Joel M. Gora, In Defense of “Super

PACs” and of the First Amendment, 43 Seton Hall L. Rev. 1185, 1200 (2013).

This history explains, perhaps, why Indiana’s statutes nowhere expressly

contemplate corporate contributions for a PAC’s independent

expenditures.

Today, in this post-Citizens United era, all parties here agree that the

First Amendment prohibits limitations on corporate contributions to

independent-expenditure PACs. And it has been clear for well over a

decade that, should an Indiana official seek to enforce such a restriction,

they would likely subject themselves to civil damages, including

attorney’s fees, for violating the aggrieved corporation’s federally

protected rights. See Wisconsin Right to Life State PAC v. Barland, 664 F.3d

139, 154 (7th Cir. 2011). The defendant officials, charged with

responsibility for enforcing Indiana’s Election Code, have therefore

interpreted the relevant provisions to avoid First Amendment problems.

They regard the statutes’ silence on corporate independent-expenditure

contributions as implicitly setting them outside the scope of the law. And,

by taking no action to amend these provisions, our colleagues in the

Indiana General Assembly have apparently acquiesced in the executive

branch’s interpretation. In short, our colleagues in both political branches

have wisely chosen not to act in violation of constitutional law. We, too,

should be wary of imposing on the Code a meaning perhaps not

contemplated by its authors and manifestly unreasonable in light of

today’s law and policy.

This is a case, then, where the meaning of “the statutory text is not clear

and the original legislative expectations have been overtaken by

subsequent changes in society and law.” William N. Eskridge, Jr., Dynamic

Statutory Interpretation, 135 U. Pa. L. Rev. 1479, 1484 (1987). As a result,

“the pull of text and history” is weakened and the importance of “current

policies and societal conditions” is greater. Id. Yet, in a highly unusual

move, it is the plaintiff PAC and a prospective contributor who ask us to

turn the clock back and interpret the law as forbidding what they wish to

do.

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In giving an answer to this request, we must consider our own Court’s

responsibilities. I see our duty as broader than merely to expound the

meaning of texts. We represent one of three branches of government in a

state that is itself bound into a wider national union. Our rulings should,

where possible, support coherence in this constitutional order. That means

offering the “cooperation that should be practiced between the

independent branches of our government” and minimizing unnecessary

inter-branch conflict. See State v. Bridenhager, 257 Ind. 699, 703, 279 N.E.2d

794, 796 (1972). We can do this when interpreting statutes by favoring “a

construction of the text that will make it consistent with the larger system

of law in which it is embedded.” Eric S. Fish, Constitutional Avoidance As

Interpretation And As Remedy, 114 Mich. L. Rev. 1275, 1295 (2016).

Here, conflict is needless because we can supply a workable remedy for

an entirely hypothetical constitutional violation. We don’t have to upset

the apple-cart by substituting our own rigid textualism for everybody

else’s practical, commonsense understanding of the law. Rather than

giving the statute an interpretation that all parties, including the enforcing

officials, deem unconstitutional, a better way forward is to ask what the

General Assembly “would have intended in light of the [Supreme] Court’s

constitutional holding.” See United States v. Booker, 543 U.S. 220, 246 (2005)

(opinion of Breyer, J.) (internal quotation marks omitted). We can presume

that the legislature, in leaving the statute unchanged following Citizens

United, did not intend to lock horns with the Supreme Court. Rather, it

must have meant the statute to be read in a way that accommodated the

new constitutional framework—namely, by confining the statute’s scope

to contributions not intended to fund independent expenditures, so that

its operation does not transgress clearly established constitutional limits.

This interpretation may not be “the most accurate account of the

particular text’s meaning when read in isolation,” nor can we be sure

whether it accords with “the intentions of the particular text’s authors.”

See Fish, supra, at 1295. But it does “fix a contradiction” between the

statute and the Constitution and harmonize with the way the law is

universally understood to apply today. See id. at 1296.

This is an unusual case, calling for interpretive flexibility and

sensitivity to this Court’s role in helping state government to function.

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Given the historical context, a focus on the plain statutory text leads us not

towards but away from understanding the legislature’s intent and policy

and frustrates our aim of bringing consistency and predictability to the

law. Ultimately, I don’t believe that we have to throw a wrench into

Indiana’s campaign-finance system. For these reasons, I respectfully

dissent.

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