New Ga. Project, Inc. v. Carr

647 F.Supp.3d 1325

NEW GEORGIA PROJECT, INC., et al., Plaintiffs, v. Christopher M. CARR, in his official capacity as the Attorney General of Georgia, et al., Defendants.

Civil Action No. 1:22-cv-03533-VMC

United States District Court, N.D. Georgia, Atlanta Division

Signed December 14, 2022

Aria Christine Branch, Meaghan E. Mixon, David Robert Fox, Elias Law Group LLP, Washington, DC, Bryan Ludington Sells, The Law Office of Bryan L. Sells, LLC, Atlanta, GA, for Plaintiffs.

Elizabeth T. Young, Department of Law - Division 5, Atlanta, GA, Lee M. Stoy, Jr., Office of Georgia attorney General, Atlanta, GA, for Defendants.

OPINION AND ORDER

Victoria Marie Calvert, United States District Judge

Before the Court is the Motion of Plaintiffs New Georgia Project, Inc. and New Georgia Project Action Fund, Inc. for a Preliminary Injunction ("Motion," Doc. 13). Defendants filed a Response to the Motion ("Response," Doc. 22). Plaintiffs filed a Reply in Support of the Motion ("Reply," Doc. 23). The Court held oral argument on the Motion on October 13, 2022. On October 28, 2022, the Court entered an Order requesting supplemental briefing on certain issues. ("October 28 Order," Doc. 26). The Parties filed their supplemental briefs on November 14, 2022. ("Pls.' Supp'l Br.," Doc. 27; "Defs.' Supp'l Br.," Doc. 28). Based on the foregoing briefs and argument of counsel as well as all matters properly of record, the Court enters the following Order.

Background

I. The Parties

Plaintiff New Georgia Project, Inc. ("NGP") is a nonprofit corporation that was incorporated in Delaware. (Verified Complaint ¶ 11, Doc. 1). NGP is headquartered in Georgia and registered with the Secretary of State of Georgia to conduct business as a foreign nonprofit corporation. (Id.). NGP is exempt from federal income taxation under section 501(c)(3) of the Internal Revenue Code. (Id. ¶ 20). NGP asserts that its major purpose

is not the nomination or election of candidates, but rather voter registration and civic engagement. Its mission "is to build power with and increase the civic participation of the New Georgia Majority—Black, Latinx, AAPI, and young Georgians—and other historically marginalized communities through nonpartisan voter registration, organizing, and advocacy on the issues important to [its] communities.

(Id. ¶ 21).

Plaintiff New Georgia Project Action Fund, Inc. ("NGPAF") is a nonprofit corporation that was incorporated in Delaware. (Id. ¶ 12). NGPAF is headquartered in Georgia and registered with the Secretary of State of Georgia to conduct business as a foreign nonprofit corporation. (Id.). NGPAF is exempt from federal income taxation under section 501(c)(4) of the Internal Revenue Code. (Id. ¶ 22). NGPAF asserts that its major purpose "is not the nomination or election of candidates, but rather engagement in issue advocacy that increases the civic participation of underrepresented and underserved communities of color in Georgia." (Id. ¶ 23).

Defendants are Christopher M. Carr, Attorney General of Georgia, as well as the Chair, Vice Chair, members, and Executive Secretary of the Georgia Government Transparency and Campaign Finance Commission ("Commission"). (Id. ¶¶ 13-15). The Commission was established by the Georgia Government Transparency and Campaign Finance Act (the "Act"), O.C.G.A. §§ 21-5-1 to -76.

Under the Act, members of the Commission have duties which include "mak[ing] investigations . . . with respect to the statements and reports filed under [the Act] and with respect to alleged failure to file any statements or reports required under [the Act]"; "issu[ing] orders, after the completion of appropriate proceedings, directing compliance with [the Act] or prohibiting the actual or threatened commission of any conduct constituting a violation"; and "carry[ing] out the procedures, duties, and obligations relative to the commission set forth in [the Act]." O.C.G.A. § 21-5-6(b)(9), (14), (18). Moreover, under the Act, Defendant Carr "shall, upon complaint by the [C]ommission, or may, upon [his] own initiative . . . , bring an action in the superior court in the name of the [C]ommission for a temporary restraining order or other injunctive relief or for civil penalties for a violation of any provision of [the Act]." O.C.G.A. § 21-5-6(b)(14)(C)(iii)." (Id. ¶ 13).

II. Relevant Provisions of the Act

This case concerns a challenge to the Commission's allegations against Plaintiffs that they failed to register and file disclosure reports as "independent committees" with respect to Georgia's 2018 statewide election and as "campaign committees" with respect to a 2019 municipal election. (Verified Compl. ¶ 34).The disclosure reports in question primarily concern what the Act defines as "contributions" and "expenditures," which the Court addresses next.

A. Contributions and Expenditures

Under the Act, "contribution" means

a gift, subscription, membership, loan, forgiveness of debt, advance or deposit of money or anything of value conveyed or transferred for the purpose of influencing the nomination for election or election of any person for office, bringing about the recall of a public officer holding elective office or opposing the recall of a public officer holding elective office, or the influencing of voter approval or rejection of a proposed constitutional amendment, a state-wide referendum, or a proposed question which is to appear on the ballot in this state or in a county or a municipal election in this state. The term specifically shall not include the value of personal services performed by persons who serve without compensation from any source and on a voluntary basis. The term "contribution" shall include other forms of payment made to candidates for office or who hold office when such fees and compensation made can be reasonably construed as a campaign contribution designed to encourage or influence a candidate or public officer holding elective office. The term "contribution" shall also encompass transactions wherein a qualifying fee required of the candidate is furnished or paid by anyone other than the candidate.

O.C.G.A. § 21-5-3(7) (emphasis added). And "expenditure" means

a purchase, payment, distribution, loan, advance, deposit, or any transfer of money or anything of value made for the purpose of influencing the nomination for election or election of any person, bringing about the recall of a public officer holding elective office or opposing the recall of a public officer holding elective office, or the influencing of voter approval or rejection of a proposed constitutional amendment, a state-wide referendum, or a proposed question which is to appear on the ballot in this state or in a county or a municipal election in this state. The term specifically shall not include the value of personal services performed by persons who serve without compensation from any source and on a voluntary basis. The term "expenditure" shall also include the payment of a qualifying fee for and on behalf of a candidate.

O.C.G.A. § 21-5-3(12) (emphasis added). Because "contribution" and "expenditure" are both defined with respect to the election-related purpose of the transaction, determining whether a given transaction qualifies as a contribution or expenditure thus requires some determination of the knowledge and intent of the transferor. See Caldwell v. Bateman, 252 Ga. 144, 312 S.E.2d 320, 323-24 (1984) ("[S]hould an employer compensate his employee for personal services rendered by the employee to a candidate, the amount of such compensation would be a contribution from the employer for which disclosure would be required. If an employee should absent himself from his employment in order to render personal services to a candidate there would be no contribution by the employer.").

Broadly speaking, contributions are funds raised and expenditures are funds spent with respect to a given entity, though the distinction breaks down when one entity makes a "contribution" to another. See, e.g., O.C.G.A. § 21-5-34(e)(2) (referring to "[p]ersons other than individuals making aggregate contributions and expenditures to or on behalf of candidates of $25,000.00 or less in one calendar year) (emphasis added). Understanding these basic definitions is vital to comprehending the remainder of the Act, as the Act not only uses these terms to describe what transactions a regulated entity must report, but also uses the terms to define the entities themselves. The Court next provides a brief description of these entities.

B. Campaign Committees and Independent Committees

The Act regulates a number of different campaign finance entities, but the relevant entities here are "campaign committees" and "independent committees."

The Act defines "[c]ampaign committee" to mean

the candidate, person¹, or committee which accepts contributions or makes expenditures designed to bring about the nomination or election of an individual to any elected office. The term "campaign committee" also means any person or committee which accepts contributions or makes expenditures designed to bring about the recall of a public officer holding elective office or to oppose the recall of a public officer holding elective office or any person or any committee which accepts contributions or makes expenditures designed to bring about the approval or rejection by the voters of any proposed constitutional amendment, a state-wide referendum, or a proposed question which is to appear on the ballot in this state or in a county or a municipal election in this state.

O.C.G.A. § 21-5-3(2) (emphasis added).

As the Court has emphasized in the above block quote, a "campaign committee" is defined by reference to an entity's acceptance of contributions or making of expenditures. The term also creates an internal distinction between three types of campaign committees: those "designed to bring about" the election or nomination of a candidate (which the Court will refer to as "candidate committees"), those "designed...