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. § 1291based 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