REPUBLICAN PARTY OF NEW MEXICO; Republican Party of Bernalillo County; Republican Party of Dona Ana County; New Mexico Turn Around; New Mexicans for Economic Recovery Pac; Harvey Yates; Rod Adair; Conrad James; Howard James Bohlander; Mark Veteto, Plaintiffs-Appellees,
Gary K. KING, in his official capacity as New Mexico Attorney General; Kari E. Brandenburg; Janetta Hicks; Angela R. Pacheco, in their official capacities as District Attorneys, Defendants-Appellants. and Dianna J. Duran, in her official capacity as New Mexico Secretary of State; Amy Orlando, in her official capacity as District Attorney, Defendants. State of Vermont; State of Hawaii; State of Iowa; State of Montana; State of Rhode Island; State of West Virginia, Amici Curiae.
Phillip Baca, Assistant Attorney General (Gary K. King, Attorney General, with him on the briefs) Office of the Attorney General, Albuquerque, NM, for Appellants.
Randy Elf, James Madison Center for Free Speech, Terre Haute, Indiana (James Bopp, Jr., James Madison Center for Free Speech, Terre Haute, IN, and Paul M. Kienzle III, Scott & Kienzle, P.A., Albuquerque, NM, with him on the brief) for Appellees.
William H. Sorrell, Attorney General of Vermont, and Eve Jacobs-Carnahan, Assistant Attorney General of Vermont, Montpelier, Vermont, David M. Louie, Attorney General of Hawaii, Honolulu, HI, Steve Bullock, Attorney General of Montana, Helena, MT, Darrell V. McGraw, Jr., West Virginia Attorney General, Office of the Attorney General, Charleston, WV, Tom Miller, Attorney General of Iowa, Des Moines, IA, and Peter F. Kilmartin, Attorney General, State of Rhode Island, Providence, RI, filed an Amici brief on behalf of Appellants.
Before TYMKOVICH, McKAY, and O'BRIEN, Circuit Judges.
TYMKOVICH, Circuit Judge.
This case requires us to consider state campaign finance regulations in light of the Supreme Court's ruling in Citizens United v. FEC, 558 U.S. 310, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010). Citizens United held that federal election law violated the First Amendment by restricting independent political spending because the speaker was a corporation— the holding allowed corporate entities to make unlimited independent expenditures supporting or opposing issues or candidates as long as the expenditures were not coordinated with a candidate for federal office.
Before the Court's decision in Citizens United in 2010, however, New Mexico had introduced a new state campaign finance law that imposed a host of contribution and other limitations on political parties, political action committees, and donors to such entities. In particular for purposes of this appeal, the state limited the amount an individual may contribute to a political committee. Potential donors, political parties, and political committees mounted an as-applied challenge to the law in federal district court, contending several of its provisions violated the First Amendment.
The district court agreed and issued a preliminary injunction, enjoining the enforcement of two provisions: (1) limits on contributions to political committees for use in federal campaigns, and (2) limits on contributions to political committees that
are to be used for independent expenditures, i.e., expenditures not authorized by or coordinated with a candidate or candidate committee. See Republican Party of N.M. v. King, 850 F.Supp.2d 1206, 1216 (D.N.M.2012). New Mexico appealed the latter ruling, contending that the limit on contributions furthers the state's compelling interest in preventing corruption or the appearance of corruption in campaign spending.
As we explain below, the district court was correct that the challenged provision cannot be reconciled with Citizens United and, as a result, did not err in entering a preliminary injunction.
New Mexico enacted in 2009 a measure that imposed campaign contribution limits for statewide and nonstatewide elections. New Mexico's law, N.M. Stat. § 1-19-34.7, targets contributions to political committees and candidates in several ways.
The statute caps contributions from individuals to political committees at $5,000, contributions to candidates for nonstatewide office at $2,300, and contributions to candidates for statewide office at $5,000. Id. § 1-19-34.7(A)(1). The statute also prohibits accepting or soliciting a contribution that violates one of these limits. Id. § 1-19-34.7(C). Though " political committee" is defined broadly to include political parties, id. § 1-19-26(L), in this case only non-party political committees have challenged the constitutionality of the law as applied to them. Both groups want to solicit and accept contributions for independent expenditures in excess of the statutory maximum of $5,000. New Mexico defends the law on the grounds that Supreme Court precedent permits restrictions for contributions and such restrictions further the state's anti-corruption interests. The appellees contend that Citizens United changes the analysis and mandates the law's invalidation.
The Plaintiffs— an assortment of state and local political parties, political action committees (PACs), and individuals— contend that these campaign finance provisions are unconstitutional as applied to them. The challengers include both state and local party organizations: the Republican Party of New Mexico (NM-GOP), the Republican Party of Dona Ana County, and the Republican Party of Bernalillo County. The PACs include the New Mexicans for Economic Recovery Political Action Committee (NMER) and New Mexico Turn Around (NMTA), two entities organized to engage in express advocacy. NMER is registered as a political committee with the New Mexico Secretary of State. Its stated purpose is to make independent expenditures but not contributions to candidates' campaigns. NMTA has a broader purpose: to make both independent expenditures and contributions to candidates' campaigns.
Claiming an infringement on their First Amendment right to engage in protected political speech, the organizations sought in district court a preliminary injunction. The district court ultimately enjoined two provisions but only one is on appeal: a
provision which prevents individuals from making contributions to political committees in excess of $5,000. N.M. Stat. § 1-19-34.7(A)(1). In enjoining the enforcement of this provision, the district court found that under Citizens United, the Supreme Court held there was no anti-corruption interest in limiting independent expenditures. Consequently, the court concluded, as has nearly every circuit court since Citizens United, there could be no anti-corruption interest in limiting contributions to be used for such expenditures. The district court also reasoned that even if NMER and NMTA had interests closely aligned with a political party, this alignment would not change the analysis because, under Supreme Court precedent, political parties could also make unlimited independent expenditures. And as long as funds contributed to NMTA for independent expenditures were kept segregated from funds that would be given to candidates, the statute could not restrict those contributions.
New Mexico timely appealed the district court's grant of the preliminary injunction, and we exercise jurisdiction under 28 U.S.C. § 1292(a)(1).
To obtain a preliminary injunction the moving party must demonstrate: (1) a likelihood of success on the merits; (2) a likelihood that the moving party will suffer irreparable harm if the injunction is not granted; (3) the balance of equities is in the moving party's favor; and (4) the preliminary injunction is in the public interest. Winter v. NRDC, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). We review the grant of a preliminary injunction for abuse of discretion. RoDa Drilling Co. v. Siegal, 552 F.3d 1203, 1208 (10th Cir.2009).
This appeal centers on the first prong, the plaintiffs' likelihood of success on the merits.
A. Legal Framework— Campaign Finance Regulation
The First Amendment " has its fullest and most urgent application to speech uttered during a campaign for political office." Ariz. Free Enter. Club's Freedom Club PAC v. Bennett,
__ U.S. __, 131 S.Ct. 2806, 2817, 180 L.Ed.2d 664 (2011) (internal quotation marks omitted). A " major purpose of the First Amendment was to protect the free discussion of governmental affairs" especially of candidates and their beliefs and performance. Id. at 2828. And as the Supreme Court explained in its seminal campaign regulation decision, Buckley v. Valeo, 424 U.S. 1, 14, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (per curiam), political speech is the lifeblood of democracy— it is the means by which citizens learn about candidates, hold their leaders accountable, and debate the issues of the day.
But speech comes in many forms, and the Supreme Court in Buckley recognized that the financing and spending necessary to enable political speech receives substantial constitutional protection. See id. at 19, 96 S.Ct. 612. In fact, the Court observed that restrictions on money spent on speech are the equivalent of restrictions on speech itself: " 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 ...