Perdue v. Kemp

584 F.Supp.3d 1310

David PERDUE ; and Perdue for Governor, Inc., Plaintiffs,

v.Brian KEMP, in his personal capacity and in his official capacity as the Governor of Georgia; Christopher M. Carr, in his official capacity as the Attorney General of Georgia; James D. Kreyenbuhl, in his official capacity as Chairman of the Georgia Government Transparency and Campaign Finance Commission ; Eric L. Barnum, in his official capacity as Vice Chair of the Georgia Government Transparency and Campaign Finance Commission; Robert A. Watts, in his official capacity as a Member of the Georgia Government Transparency and Campaign Finance Commission; Darryl Hicks, in his official capacity as a Member of the Georgia Government Transparency and Campaign Finance Commission; Rick Thompson, in his official capacity as a Member of the Georgia Government Transparency and Campaign Finance Commission; and Georgians First Leadership Committee, Inc., Defendants.

CIVIL ACTION FILE NO. 1:22-CV-0053-MHC

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

Signed February 7, 2022

Brandis L. Zehr, Pro Hac Vice, Jeremy Joseph Broggi, Pro Hac Vice, Krystal Brunner Swendsboe, Pro Hac Vice, Michael Eugene Toner, Pro Hac Vice, Stephen J. Obermeier, Pro Hac Vice, Wiley Rein LLP, Washington, DC, Douglas A. S. Chalmers, Jr., Heather Lynn Wagner, Chalmers & Adams, LLC, Johns Creek, GA, for Plaintiffs.

Annika M. Boone, Pro Hac Vice, Brian Field, Pro Hac Vice, Erik Scott Jaffe, Pro Hac Vice, Gene C. Schaerr, Pro Hac Vice, H. Christopher Bartolomucci, Pro Hac Vice, Schaerr | Jaffe LLP, Washington, DC, Edward Bedard, Robbins Alloy Belinfante Littlefield LLC, Elizabeth Marie Wilson Vaughan, Department of Law, Atlanta, GA, for Defendant Brian Kemp.

Annika M. Boone, Pro Hac Vice, Brian Field, Pro Hac Vice, Erik Scott Jaffe, Pro Hac Vice, Gene C. Schaerr, Pro Hac Vice, H. Christopher Bartolomucci, Pro Hac Vice, Schaerr | Jaffe LLP, Washington, DC, Elizabeth Marie Wilson Vaughan, Department of Law, Atlanta, GA, for Defendants Christoper M. Carr, James D. Krevenbuhl, Eric L. Barnum, Robert A. Watts, Darryl Hicks, Rick Thompson.

Edward Bedard, Vincent Robert Russo, Jr., Robbins Alloy Belinfante Littlefield LLC, Atlanta, GA, for Defendant Georgians First Leadership Committee, Inc.

ORDER

MARK H. COHEN, United States District Judge

This matter is before the Court on Plaintiffs David Perdue ("Perdue") and Perdue for Governor, Inc.’s Motion for a Preliminary Injunction and Amended Motion for a Preliminary Injunction. Pls.’ Mot. for a Prelim. Inj. and Incorporated Mem. of Law ("Pls.’ Mot.") [Doc. 2]; Pls.’ Am. Mot. for a Prelim. Inj. and Incorporated Mem. of Law ("Pls.’ Am. Mot.") [Doc. 54].

I. BACKGROUND

A. The Law Authorizing the Creation of Leadership Committees

On July 1, 2021, a state law became effective which provides a new mechanism by which certain Georgia public office holders may obtain contributions for elective office. Ga. Laws 2021, Act 219, eff. July 1, 2021. The new law, codified at O.C.G.A. § 21-5-34.2, provides, in pertinent part, that "[a] leadership committee may accept contributions or make expenditures for the purpose of affecting the outcome of any election or advocating for the election or defeat of any candidate ...." O.C.G.A. § 21-5-34.2(d). A "leadership committee" is defined as follows:

[A] committee, corporation, or organization chaired by the Governor, the Lieutenant Governor, the nominee of a political party for Governor selected in a primary election in the year in which he or she is nominated, or the nominee of a political party for Lieutenant Governor selected in a primary election in the year in which he or she is nominated. Such term shall also mean up to two political action committees designated by the majority caucus of the House of Representatives, the minority caucus of the House of Representatives, the majority caucus of the Senate, and the minority caucus of the Senate. No person may chair more than one leadership committee.

O.C.G.A. § 21-5-34.2(a). A leadership committee is required to disclose contributions or expenditures in excess of $500.00 and may accept contributions without monetary limitation:

A leadership committee which accepts contributions or makes expenditures in excess of $500.00 shall register with the [Georgia Government Transparency and Campaign Finance] commission within ten days of such accepted contribution or such expenditure and, thereafter, shall file disclosure reports pursuant to the schedule defined for candidates and campaign committees in subsection (c) of Code Section 21-5-34. Such disclosure reports shall be made pursuant to subsection (b) of Code Section 21-5-34. The contribution limits in Code Section 21-5-41 shall not apply to contributions to a leadership committee or expenditures made by a leadership committee in support of a candidate or a group of named candidates.

O.C.G.A. § 21-5-34.2(e). A leadership committee is considered "a separate legal entity from a candidate's campaign committee and shall not be considered an independent committee."¹ Id. § 21-5-34.2(f).

B. Distinctions Between Contributions and Expenditures Made by a Leadership Committee and a Campaign Committee

There are some significant differences between contributions and expenditures that are made to and from a campaign committee and a leadership committee under Georgia law:

• A campaign committee can be established to raise money for any candidate for statewide public office, but a leadership committee can be chaired only by a sitting Governor or Lieutenant Governor, or a political party's nominee for Governor or Lieutenant Governor; additionally, up to two such committees also can be established by the majority and minority caucuses of the Georgia Senate and Georgia House of Representatives. Compare O.C.G.A. § 21-5-34(a) with O.C.G.A. § 21-5-34.2(a).

• Candidates for statewide office and their campaign committees are limited in the amount of contributions they may obtain from an individual contributor.² O.C.G.A. § 21-5-41(a). Prior to the enactment of O.C.G.A. § 21-5-34.2, sitting Governors and Lieutenant Governors and their campaign committees, and party nominees for those positions, had the same maximum limit on the amount of contributions as other candidates for statewide office; however, based upon O.C.G.A. § 21-5-34.2(e), those contribution limits no longer apply to those individuals should they collect money through a leadership committee.

• Candidates for statewide office and their campaign committees may not seek or accept a campaign contribution during a legislative session, O.C.G.A. § 21-5-35(a), but no such restriction is imposed upon a leadership committee chaired by a sitting Governor or Lieutenant Governor.

Both prior to and after the enactment of O.C.G.A. § 21-5-34.2, independent committees could raise and expend funds to influence the election of a candidate for statewide office without any limitation on the amount of contributions or expenditures, with the restriction that the independent committees cannot coordinate their activities with an individual candidate or his or her campaign committee. See O.C.G.A. § 21-5-3(15) (defining an "independent committee" as one which expends funds "either for the purpose of affecting the outcome of an election for any elected office or to advocate the election or defeat of any particular candidate."); Ga. Comp. R. & Regs. r. 189-6-.04 ("Campaign contribution limits on contributions to candidates do not apply to independent expenditures made to influence candidate elections. An independent expenditure is an expenditure for a communication which expressly advocates the election or defeat of a clearly identified candidate but which is made independently of any candidate's campaign.").

In other words, under the Georgia law in existence prior to the enactment of O.C.G.A. § 21-5-34.2, the maximum amount of a contribution to an incumbent holding the office of Governor of Georgia or to his or her campaign committee for a primary election is $7,600, and the law prohibits the Governor from seeking or accepting any such contributions during a session of the Georgia General Assembly, Other candidates for Governor who are not current statewide office holders or members of the General Assembly have the same maximum contribution limit of $7,600 for a primary election but may seek and accept contributions during the legislative session. Under the provisions of O.C.G.A. § 21-5-34.2, the sitting Governor, through his leadership committee, may seek and accept contributions for a primary election in an unlimited amount both during and after the legislative session. It is undisputed that, for the 2022 Georgia primary election, the application of O.C.G.A. § 21-5-34.2 results in Governor Kemp being the only incumbent running for statewide office who chairs a leadership committee that is not subject to the campaign contribution limits of O.C.G.A. §§ 21-5-41(a)(1) and (2) or the prohibition of seeking or receiving campaign contributions during the 2022 regular session of the Georgia General Assembly.³

C. Governor Kemp Establishes the Georgians First Leadership Committee and Perdue Announces His Gubernatorial Bid

On July 8, 2021, or seven days after the effective date of O.C.G.A. § 21-5-34.2, the Georgians First Leadership Committee, Inc., ("Georgians First") was established, with Governor Kemp as its chairperson. Verified Compl. ("Compl.") [Doc. 1] ¶ 7. On December 6, 2021, former United States Senator David Perdue announced his intent to run for Governor of Georgia in 2022. Id. ¶ 8.

D. The Complaint

On January 6, 2022, one month after Perdue's announcement that he intended to run for Governor, Perdue and Perdue for Governor, Inc. filed their Complaint seeking declaratory and injunctive relief. Compl. The Complaint alleges that O.C.G.A. § 21-5-34.2 "undermines the even-handed campaign contribution regime" previously established under Georgia law, and that Governor Kemp, through Georgians First, can now...