Iowa Right to Life Comm., Inc. v. Tooker

717 F.3d 576

IOWA RIGHT TO LIFE COMMITTEE, INC., Plaintiff–Appellant

v.Megan TOOKER,^* in her official capacity as Iowa Ethics and Campaign Disclosure Board Executive Director; James Albert; John Walsh; Mary Rueter ^**; Jonathan Roos ^**; Saima Zafar; Carole Tillotson, in their official capacities as Iowa Ethics and Campaign Disclosure Board Members, Defendants–Appellees.

No. 12–1605.

United States Court of Appeals, Eighth Circuit.

Submitted: Feb. 13, 2013.

Filed: June 13, 2013.

Rehearing and Rehearing En Banc Denied July 19, 2013.

Held Unconstitutional

I.C.A. § 68A.404(5)(g)

Unconstitutional as Applied

I.C.A. §§ 68A.402B(3), 68A.404(3)(a), (3)(a)(1); Iowa Admin. Code r.351–4.9(15)Randy Elf, argued, Terre Haute, IN, James Bopp, Jr., Terre Haute, IN, Sean P. Moore, Brian P. Rickert, Des Moines, IA, Richard Eugene Coleson, Terre Haute, IN, Adam C. Gregg, Des Moines, IA, on the brief, for Appellant.

Jeffrey S. Thompson, AAG, argued, Des Moines, IA, for Appellee.

Before SMITH, MELLOY, and BENTON, Circuit Judges.

BENTON, Circuit Judge.

Iowa Right To Life Committee, Inc., challenges the constitutionality of several Iowa campaign-finance laws, an administrative rule, and two forms. The district court found IRTL lacked standing to challenge several provisions, but found others constitutional. IRTL appeals, raising facial and as-applied challenges under the First and Fourteenth Amendments. Having jurisdiction under 28 U.S.C. § 1291, this court affirms in part, reverses in part, and remands.

I.

IRTL is a non-profit corporation that promotes right-to-life positions. It is not under the control of a candidate. It claims to spend less than half its annual disbursements on “election-related speech” but wants to make independent expenditures and contributions supporting certain candidates.

After Citizens United v. Federal Election Commission, 558 U.S. 310, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010), Iowa amended its campaign-finance laws. See Campaign Disclosure—Income Tax Checkoff Act, Iowa Code § 68A.101 et seq. For the 2010 election, IRTL wanted to, but did not, make an independent expenditure over $750 to support the election of a candidate for Attorney General. IRTL also wanted to, but did not, make a $100 contribution to the same candidate. Before the election, IRTL sought to enjoin various provisions of Iowa's new laws.

IRTL's complaint has four counts:

Count 1. The definitions of “political committee” and “permanent organization” may apply to IRTL, violating the First Amendment by imposing political committee (“PAC”) status and burdens without regard to whether IRTL's “major purpose” is expressly advocating the nomination or election of candidates. SeeIowa Code §§ 68A.102(18), 68A.402(9).

Count 2. Iowa's campaign-finance laws impose “PAC-style” burdens on IRTL, in violation of the First Amendment. See id.§§ 68A.402B(3), 68A.404(3), (4)(a); Iowa Admin. Code r. 351–4.9(15); Independent Expenditure Statement (Form Ind–Exp–O), https:// webapp. iecdb. iowa. gov/ Ind Expend/ Org_ Independent_ Expend. aspx; Statement of Dissolution (Form DR–3), http:// www. iowa. gov/ ethics/ forms_ brochures/ forms/ forms_ download/ sch_ dr 3. pdf.

Count 3. Iowa's ban on direct corporate contributions to candidates and committees violates the First and Fourteenth Amendments. SeeIowa Code § 68A.503.

Count 4. Iowa's requirements that a corporation's board of directors authorize independent expenditures in advance, and that an officer of the corporation certify the authorization, violate the First and Fourteenth Amendments. See id.§ 68A.404(2)(a)–(b), (5)(g); Form Ind–Exp–O.

The district court denied IRTL's request for preliminary injunction. Iowa Right To Life Committee, Inc. v. Smithson, 750 F.Supp.2d 1020, 1049 (S.D.Iowa). IRTL did not appeal that ruling.

Both parties moved for summary judgment. On Counts 2 and 3, the district court found constitutional the challenged provisions, administrative rule, and forms. On Count 4, the court found IRTL lacked standing to bring its First Amendment challenge and part of its Fourteenth Amendment challenge, and found the provisions otherwise constitutional under the Fourteenth Amendment. The court granted summary judgment to Iowa on Counts 2 through 4.

On Count 1, the court certified two questions to the Iowa Supreme Court:

1) If a corporation that has not previously registered as a political committee makes independent expenditures aggregating over $750 in a calendar year, does that corporation become, by virtue of such expenditures: (1) an “independent expenditure committee,” as that term is defined in Iowa Admin. Code r. 351–4.1(1)(d); (2) a “political committee,” as that term is defined by Iowa Code § 68A.102(18); or (3) both?

2) If a corporation that has not previously registered as a political committee and that “was originally organized for purposes other than engaging in election activities” makes independent expenditures aggregating over $750 in a calendar year, does that corporation become, by virtue of such expenditures, a “permanent organization” pursuant to Iowa Code § 68A.402(9)?

The Iowa Supreme Court answered:

1. An independent expenditure committee.

2. No.

Iowa Right To Life Comm., Inc. v. Tooker, 808 N.W.2d 417, 418 (Iowa 2011). Based on those answers, the district court found IRTL lacked standing to challenge the provisions, and granted summary judgment to Iowa.

II.

This court reviews de novo a grant of summary judgment. Minnesota Citizens Concerned for Life, Inc. v. Kelley, 427 F.3d 1106, 1109 (8th Cir.2005). “This court affirms where there are no genuine issues of material fact, and judgment is appropriate as a matter of law.” Id.

A.

In Count 1, IRTL challenges the terms “political committee” and “permanent organization” as applied to it and other groups whose “major purpose” is not “the nomination or election of a candidate.” See Buckley v. Valeo, 424 U.S. 1, 79, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976).

“Political committee” means ... [a] person, other than an individual, that accepts contributions in excess of seven hundred fifty dollars in the aggregate, makes expenditures in excess of seven hundred fifty dollars in the aggregate, or incurs indebtedness in excess of seven hundred fifty dollars in the aggregate in any one calendar year to expressly advocate the nomination, election, or defeat of a candidate for public office, or to expressly advocate the passage or defeat of a ballot issue.

Iowa Code § 68A.102(18). A PAC has several requirements: filing a “statement of organization,” id. § 68A.201(1), filing disclosure reports, id.§§ 68A.401, 68A.402, 68A.402A, appointing a chair and treasurer, id. § 68A.203(1)(a)–(b), properly receiving, depositing, and remitting funds, id. § 68A.203(1)–(3), segregating PAC funds, id. § 68A.203(2)(d), maintaining records, id. § 68A.203(3)–(4), and dissolving after “it will no longer receive contributions or make disbursements,” id.§ 68A.402B.

“ ‘[P]ermanent organization’ means an organization that is continuing, stable, and enduring, and was originally organized for purposes other than engaging in election activities.” Id.§ 68A.402(9). “A permanent organization temporarily engaging in activity described in section 68A.102, subsection 18, shall organize a political committee.” Id. Then, it is subject to PAC requirements. Id.

Alternatively, an entity that makes an “independent expenditure” may become an “independent expenditure committee.”

“[I]ndependent expenditure” means one or more expenditures in excess of seven hundred fifty dollars in the aggregate for a communication that expressly advocates the nomination, election, or defeat of a clearly identified candidate or the passage or defeat of a ballot issue that is made without the prior approval or coordination with a candidate, candidate's committee, or a ballot issue committee.

Id.§ 68A.404(1). “A person, other than a committee registered under this chapter, that makes one or more independent expenditures shall file an independent expenditure statement,” id.§ 68A.404(3), an “initial report,” and “[s]ubsequent reports,” id.§ 68A.404(3)(a). A person required to file such reports “due to the filing of an independent expenditure statement” is an “independent expenditure committee.” Iowa Admin.Code r. 351–4.1(1)(d).

According to IRTL, if it makes independent expenditures over $750, Iowa could deem it a PAC or “permanent organization”—and impose PAC burdens—without applying Buckley 's major-purpose test (and thus violate its First Amendment rights). In Buckley, the Supreme Court construed the federal definition of a PAC only to “encompass organizations that are under the control of a candidate or the major purpose of which is the nomination or election of a candidate.” Buckley, 424 U.S. at 79, 96 S.Ct. 612. The Court has “suggested two methods to determine an organization's ‘major purpose’: (1) examination of the organization's central organizational purpose; or (2) comparison of the organization's independent spending with overall spending to determine whether the preponderance of expenditures are for express advocacy or contributions to candidates.” Colorado Right to Life Comm., Inc. (CRLC) v. Coffman, 498 F.3d 1137, 1152 (10th Cir.2007), citing Fed. Election Comm'n v. Massachusetts Citizens for Life, Inc. (MCFL), 479 U.S. 238, 252 n. 6, 107 S.Ct. 616, 93 L.Ed.2d 539 (1986) (plurality opinion), and id. at 262, 107 S.Ct. 616. This “so-called major-purpose test ... limits the reach of the statutory triggers ... for [PAC] status.” Minnesota Citizens Concerned for Life, Inc. (MCCL) v. Swanson, 692 F.3d 864, 872 (8th Cir.2012) (en banc) (alteration in original) (citations and internal quotation marks omitted).

Answering the district court's certified questions, the Iowa Supreme Court held that a corporation not previously registered as a PAC—such as IRTL—that makes independent expenditures over $750 in a calendar year, becomes an independent expenditure committee, not a PAC or permanent organization. I...