Judge Sykes Strikes (Down A Law) Again

December 12th, 2011

This time the 7th Circuit found a campaign finance law unconstitutional under Citizens United, per Judge Sykes in Wisconsin Right to Life v. Barland:

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. Accordingly, applying the $10,000 aggregate annual cap to contributions made to organizations engaged only in independent spending for political speech violates the First Amendment.

Here is the key construction of Citizens United:

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 contributions to candidates—cannot be used to justify restrictions 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.”).

And she said it again!

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 appearance of favoritism and undue political access or influence— but the Court has repudiated them all. . . . As such, afterCitizens 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 Wisconsin’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 political speech. No other justification for limits on political speech has been recognized, and none is offered here.

So in case you didn’t read it earlier, anticorurption rationale won’t cut it.

Judge Sykes noted the D.C. Circuit’s opinion in SpeechNow:

The D.C. Circuit reached just this conclusion in a decision 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 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 corruption,” 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 government 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” standard. As the D.C. Circuit aptly put it, “ ‘something . . . outweighs nothing every time.’ ”

Oh and this paragraph is going to PISS OFF liberals:

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 government’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 candidates to take public financing, does not establish the constitutionality of the matching funds provision.”). That’s the unmistakable upshot of the Court’s categorical holding in Citizens United that independent expenditures do not corrupt or appear to corrupt.

And nothing else from Judges Posner or Flaum (a feat in itself).