# Indiana Right to Life Victory Fund v. Diego Morales

> Indiana Supreme Court · September 25, 2023

URL: https://www.frixlaw.com/law-library/cases/9897208

## Case

- **Court:** Indiana Supreme Court
- **Decided:** September 25, 2023
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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,

Indiana Supreme Court | Case No. 23S‐CQ‐108 | September 25, 2023 Page 2 of 12
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

Indiana Supreme Court | Case No. 23S‐CQ‐108 | September 25, 2023 Page 3 of 12
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;

Indiana Supreme Court | Case No. 23S‐CQ‐108 | September 25, 2023 Page 5 of 12
(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”).

Indiana Supreme Court | Case No. 23S‐CQ‐108 | September 25, 2023 Page 6 of 12
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

Indiana Supreme Court | Case No. 23S‐CQ‐108 | September 25, 2023 Page 7 of 12
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).

Indiana Supreme Court | Case No. 23S‐CQ‐108 | September 25, 2023 Page 8 of 12
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

Indiana Supreme Court | Case No. 23S‐CQ‐108 | September 25, 2023 Page 10 of 12
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.

Indiana Supreme Court | Case No. 23S‐CQ‐108 | September 25, 2023 Page 11 of 12
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.

Indiana Supreme Court | Case No. 23S-CQ-108 | September 25, 2023 Page 4 of 4

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9897208. Public record. Not legal advice.