mn campaign limit lawsuit response

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA Douglas P. Seaton, Van L. Carlson, Linda C. Runbeck, and Scott M. Dutcher, Plaintiffs,

vs. Deanna Wiener, George Beck, Jon Stafsholt, Ed Oliver, Neil Peterson, and Christian Sande, in their official capacities as Chair and members of the Minnesota Campaign Finance and Public Disclosure Board, and Tony Palumbo and Chad Larson, in their official capacities as county attorneys for Anoka and Douglas Counties, Defendants.

Civil File No. 0:14-CV-01016 DWF/JSM

DEFENDANT BOARD MEMBERS’

MEMORANDUM IN OPPOSITION

TO PLAINTIFFS’ MOTION FOR

TEMPORARY RESTRAINING

ORDER AND PRELIMINARY

INJUNCTION

INTRODUCTION

Plaintiffs’ motion should be denied for several reasons. First, they have failed to

show concrete injury with respect to the 2014 election and therefore they lack standing

and the case is not ripe for decision by the Court.

Second, Plaintiffs cannot satisfy their threshold requirement of establishing a

likelihood of success on the merits. The Supreme Court’s plurality opinion in

McCutcheon v. FEC, 134 S. Ct. 1434 (2014) dealt with a law prohibiting contributions,

whereas Minn. Stat. § 10A.27, subd. 11 allows contributions subject to certain limits.

The Supreme Court in McCutcheon did not overturn Buckley v. Valeo, 424 U.S. 1, 96

CASE 0:14-cv-01016-DWF-JSM Document 18 Filed 04/22/14 of 26

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S. Ct. 612 (1976), which declared that dollar limits on contributions to candidates are

constitutional. See Buckley, 424 U.S. 1, 29, 96. S. Ct. at 640. As reasoned by the

Supreme Court in Buckley, “[a] limitation on the amount of money a person may give to

a candidate . . . involves little direct restraint on his political communication, for it

permits the symbolic expression of support evidenced by a contribution but does not in

any way infringe the contributor’s freedom to discuss candidates and issues.” Id. at 21,

96 S. Ct. at 636. The Eighth Circuit has upheld the validity of section 10A.27, subd. 11

based on the precedent of Buckley and its progeny. See Minn. Citizens Concerned for

Life, Inc. v. Kelley, 427 F.3d 1106, 1116 (8th Cir. 2005) (stating “the district court

properly found [section 10A.27,] subdivision 11 constitutional”).

The remaining Dataphase factors, including the substantial harm to the electorate

and public interest, also weigh heavily in favor of denying Plaintiffs’ motion.

BACKGROUND

A. Minnesota’s Campaign Finance Reform In The Early 1990’s To

Prevent Quid Pro Quo Corruption And Its Appearance.

In the early 1990s, Minnesota’s campaign finance system suffered from serious

problems regarding quid pro quo corruption and/or the perception of such corruption.

The Star Tribune reported that Minnesota’s wealthiest political contributors, so-called

“fat cats,” accounted for half of the $3.3 million raised by the five primary election

candidates for governor in 1990. (Affidavit of Jacob Campion (“Campion Aff.”), Ex. 1 at

1.) Dozens of individuals and special interest groups contributed $10,000 or more. (Id.)

Reform advocates identified the State’s $60,000 gubernatorial contribution limit for


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individuals and special interest groups as a “scandalous loophole” that “increase[d] the

coziness between candidates and major contributors.” (Id.)

A nine-month investigation conducted by the Pioneer Press in 1991 and 1992

uncovered very troubling evidence regarding the impact of large campaign contributions

to candidates. (Campion Aff., Ex. 2 at 1.) The Pioneer Press investigation found that:

• Members of the legislature protected their biggest benefactors’ interests, granted them special privileges, and helped them earn more money.

• The ten biggest spending special interest contributors during the 1990 election were rewarded in 1991 by prevailing in 41 of the top 50 items on their legislative “wish list,” even though the State of Minnesota was facing a $1 billion budget deficit at that time.

• More than one-third of the members of the legislature accepted so much special interest money in 1990 that a watch-dog group considered them to be in a political “danger zone” where they were in peril of becoming obligated to special interests.

(Id. at 1, 4.)

Senator John Marty was quoted in one of the Pioneer Press articles as stating that

“[p]eople aren’t just going to dump thousands of dollars into the system just for the feel-

good benefit of it . . . . They are doing it for the payback.” (Id. at 2.) The Pioneer Press

investigation similarly reported that if a legislator voted against the interests of large

donors, “the money can quickly disappear.” (Id. at 3.) David Renner, a lobbyist, was

quoted in one of the Pioneer Press articles as stating that they “try to weed those people

out.” (Id.) The Star Tribune reported that “[v]oters, by all accounts, [were] suspicious

that the political system [was] rigged in favor of special interests and wealthy people

. . . .” (Campion Aff., Ex. 4 at 1-2.) The Star Tribune also ran an article with the

headline: “For Rent: St. Paul Office, Politician Included,” which indicated that political


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power had shifted to “candidates in the best position to take advantage of large campaign

contributions.” (Campion Aff., Ex. 5.)

A poll conducted in April 1992 by the Star Tribune and WCCO-TV found that

about three-fourths of those surveyed believed that “government is pretty much run by a

few big interests looking out for themselves.” (Campion Aff., Ex. 3 at 1.) Only one-fifth

of respondents believed that government was run “for the benefit of all the people.” (Id.)

The poll was consistent with national polls at the time. (Id.) As reported in the Star

Tribune:

Evidence is piling up, both nationally and in Minnesota, that ordinary people, and not just idealistic reformers, are beginning to view money as a lethal pollutant of the political system. This money comes chiefly in the

form of campaign contributions but extends also to wining and dining and countless forms of indirect cash transfers that help politicians win elections and stay in power.

(Id.) (emphasis added). The article included the following quotes from Minnesota

citizens:

• “The whole system is totally corrupt.”

• “(Campaign contributors) are not doing it for a tax write-off; they put money into it

for some kind of gain . . . . (Politics) is a dirty business . . . .”

• I honestly feel that in this day and age my vote doesn’t count as much because there are these other powers that neutralize it.”

(Id.) (emphasis added).

In May 1992, a blue-ribbon task force was assembled by Common Cause of

Minnesota to discuss campaign finance reform measures and submit recommendations to

the Legislature. (Campion Aff., Ex. 6 ¶ 2.) The task force was comprised of a broad-


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based bipartisan group of individuals, including legislators, lobbyists, representatives of

the Campaign Finance and Public Disclosure Board (then known as the Ethical Practices

Board), Common Cause, the Minnesota League of Women Voters, the Joint Religious

Legislative Coalition, the Citizens League, and other groups. Id. The task force met

regularly for several months and adopted a number of recommendations which it

subsequently presented to the Minnesota legislature. (Id. ¶ 3.) In 1993, sweeping

changes were made to Minnesota’s campaign finance laws. 1993 Minn. Laws ch. 318,

art. 2; 1993 Minn. Laws 1st Spec. Sess. ch. 3.

B. Section 10A.27, Subd. 11.

As part of its comprehensive campaign finance reform in 1993, and in response to

the extensive concerns regarding quid pro quo corruption and its appearance, the

Legislature enacted section 10A.27, subd. 11 to place new limits on campaign

contributions to candidates. 1993 Minn. Laws ch. 318, art. 2, § 30; 1993 Minn. Laws 1st

Spec. Sess. ch. 3, § 2. Section 10A.27, subd. 11 restricts the total amount a candidate can

receive from so-called “large contributors” and other “special sources.” If and when that

limit is reached, the statute allows the candidate to continue to receive contributions from

other individual contributors, but at a reduced limit.1

1 Section 10A.27, subd. 11 reads as follows:

A candidate must not permit the candidate’s principal campaign committee to accept a contribution from a political committee, political fund, lobbyist, large contributor, or association not registered with the board if the contribution will cause the aggregate contributions from those types of contributors during an election cycle segment to exceed an amount equal to

(Footnote Continued on Next Page)


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Section 10A.27, subd. 11 was explicitly intended to address quid pro quo

corruption and the appearance of such corruption. According to the affidavit of the then-

Executive Director of Common Cause, one of the primary goals of this provision was to

“decrease the perception and reality of the corrupting effects of money on the political

process.” (Campion Aff., Ex. 6 ¶¶ 4, 8.) Similarly, Jim Ketchum of Common Cause,

testified to the Legislature regarding section 10A.27, subd. 11 and stated that “[w]e think

that large contributions from individuals or special interest groups help to create the

cynicism that we’ve seen in the general public, that you’ve seen in your races among the

general public, and they help to create at least a perception that loyalties of our public

officials are sometimes money driven.” (Desmond Aff., Ex. 1.)

In his legislative testimony, Wyatt Spano, a lobbyist, expressed great concern that

the “public perceives . . . that vote buying is going on.” (Desmond Aff., Ex. 3.) He also

testified that “I am afraid that to the public the whole thing is the flavor of an auction. . . .

We should not feel as an electorate that that process is for sale.” (Id.) (emphasis added).

_________________________________ (Footnote Continued from Previous Page)

20 percent of the election cycle segment expenditure limits for the office sought by the candidate, provided that the 20 percent limit must be rounded to the nearest $100. For purposes of this subdivision, “large contributor” means an individual, other than the candidate, who contributes an amount that is more than one-half the amount an individual may contribute during the election cycle segment.

The “amount an individual may contribute during an election cycle segment” was increased during the 2013 legislative session. 2013 Minn. Law ch. 138, art. 1, § 44. For example, the contribution limit for state house and senate candidates was increased from $500 to $1,000. Compare Minn. Stat. § 10A.27, subd. 1 (2012) with Minn. Stat. § 10A.27, subd. 1 (Supp. 2013).


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Barb Sykora, testifying on behalf of the Republican party, stated “it’s becoming very

much a public perception [that legislators] can all be bought and that our whole system is

for sale and I think that this is the year to do something to change that perception.” (Id.,

Ex. 2.)

C. The Eighth Circuit Decision Upholding The Constitutionality of

Section 10A.27, Subd. 11.

In 2002, a political committee and an unsuccessful candidate for the Minnesota

Senate filed suit in the United States District Court for the District of Minnesota seeking

to enjoin the enforcement of section 10A.27, subd. 11. Minn. Citizens Concerned for

Life, Inc. v. Kelley, 291 F.Supp.2d 1052, 1057-58, 1063-64 (D. Minn. 2003) (Kyle, J.).

The plaintiffs asserted that section 10A.27, subd. 11 violated their First Amendment

rights. Id. at 1057.

After reviewing the record evidence, including the Pioneer Press articles, the

affidavit of the then-Executive Director of Common Cause, and Mr. Spano’s testimony

referred to above, Judge Kyle found that section 10A.27, subd. 11 was adopted to prevent

quid pro quo corruption and its appearance. Id. at 1063-64. Judge Kyle held that the

statute “passe[d] constitutional scrutiny.” Id. at 1064.

The Eighth Circuit Court of Appeals affirmed, concluding that section 10A.27,

subd. 11 was intended to prevent corruption and its appearance. 427 F.3d at 1115. In so

doing, the court relied on and quoted from two of the same Pioneer Press and Star

Tribune articles referred to above. Id.; see supra at 3-4. The court further stated:

“[T]here is little reason to doubt that sometimes large contributions will work actual


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corruption of our political system and no reason to question the existence of a

corresponding suspicion among voters.” Id. (quoting Nixon v. Shrink Missouri Gov’t

PAC, 528 U.S. 377, 395, 120 S. Ct. 897, 908 (2000)). The court held that “the district

court properly found [section 10A.27,] subdivision 11 constitutional.” Kelley, 47 F.3d at

1116.

D. Plaintiffs’ Complaint.

On April 9, 2014, Plaintiffs filed their complaint asserting, like the plaintiffs in

Kelley, that section 10A.27, subd. 11 violates the First Amendment.

Plaintiffs Seaton and Carlson state that they intend to make contributions as a

“large contributor” within the meaning of section 10A.27, subd. 11, to candidates running

in 2014 and future elections. (Complaint ¶¶ 4, 5.) Plaintiffs do not allege that they are

currently unable to contribute to their chosen candidates as a “large contributor.”

Plaintiff Runbeck is the Minnesota state representative for District 38A, who was

elected to her current position in 2010 and 2012. (Id. ¶ 63.) She is running for reelection

in 2014. (Id.) Plaintiff Dutcher was an unsuccessful candidate for the Minnesota House

of Representatives in the 2012 election. (Id. ¶¶ 72, 73.) He asserts that he may run for a

state office in 2014 or some other time in the future. (Id. ¶ 72.) Both Plaintiffs Runbeck

and Dutcher received public financing for the 2012 election and Plaintiff Runbeck will

receive public campaign financing for her 2014 election. (Goldsmith Aff., Exs. 1-3.)

They do not allege that section 10A.27, subd. 11, prevents candidates from raising

sufficient funds to wage an effective campaign for state office or even that the statute

prevents Plaintiffs from receiving adequate funds for that purpose.


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Defendants Wiener, Beck, Stafsholt, Oliver, Peterson, and Sande, are the Chair

and the other members of the Minnesota Campaign Finance and Public Disclosure Board

(the “Board”), respectively. They are sued in their official capacity. (Complaint,

¶¶ 9-10, 13.) The Board is charged with enforcing Minnesota Statutes Chapter 10A. See

Minn. Stat. § 10A.02 (2012). Defendants Palumbo and Larson are sued in their official

capacities as the County Attorneys for Anoka and Douglas counties, respectively. (Id.,

¶¶ 11-12, 13.)

On April 9, 2014, Plaintiffs’ brought a motion for interim injunctive relief

regarding section 10A.27, subd. 11, to allow individual contributors to make campaign

donations “up to the individual contribution limit without regard to the special sources

limit.” (Plfs.’ Mem. at 36.) For the reasons stated in this memorandum, Plaintiffs’

motion should be denied.

ARGUMENT

I. PLAINTIFFS LACK STANDING AND THEIR LAWSUIT IS NOT RIPE FOR

ADJUDICATION BECAUSE THEY CANNOT SHOW THE NECESSARY CONCRETE

INJURY.

Standing and ripeness requirements are based in the Article III standards for

federal court jurisdiction. See, e.g., Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1146,

1150 (2013) (stating that standing doctrine arises from Article III’s jurisdictional

limitations, and concluding that standing cannot be based on a “speculative chain of

possibilities”); Minn. Pub. Utils. Comm’n v. FCC, 483 F.3d 570, 582 (8th Cir. 2007)

(recognizing that ripeness doctrine arises from Article III limits on federal court

jurisdiction and concluding that a case is not ripe if it rests on “contingent future events


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that may not occur as anticipated”) (quotations and citations omitted). Plaintiffs bear the

burden of establishing both standing and ripeness. Clapper, 133 S. Ct. at 1148 (stating

that “[t]he party invoking federal jurisdiction bears the burden of establishing standing”)

(quotations and citations omitted); Renne v. Geary, 501 U.S. 312, 316, 111 S. Ct. 2331,

2336 (1991) (holding that the burden of proving jurisdiction, including ripeness, rests

with the party invoking federal jurisdiction).

A plaintiff lacks standing unless the alleged injury-in-fact is “concrete” and

“actual or imminent, not conjectural or hypothetical.” Whitmore v. Arkansas, 495 U.S.

149, 155, 110 S. Ct. 1717, 1723 (1990) (quotation omitted). Issues of ripeness similarly

focus on “whether the harm asserted has matured sufficiently to warrant judicial

intervention.” Warth v. Seldin, 422 U.S. 490, 499 n.10, 95 S. Ct. 2197, 2205 n.10 (1975).

A claim is not ripe if it is dependent on events that may or may not occur in the future.

See, e.g., Minn. Pub. Utils. Comm’n, 483 F.3d at 582 (recognizing that “[a] claim is not

ripe for adjudication if it rests upon contingent future events that may not occur as

anticipated, or indeed may not occur at all”).

Plaintiffs have not established the requisite harm. Section 10A.27, subd. 11 allows

Plaintiffs to contribute money to any candidate’s campaign. The complaint fails to

establish that the two Plaintiffs, Seaton and Carlson, who allegedly plan in 2014 to make

campaign donations as a “large contributor,” have not been able to do so.

They merely state a desire “to make contributions to candidates for Minnesota

state office in amounts greater than half the individual contribution limit for the relevant

office in the 2014 election cycle, the 2016 election cycle, and in other future election


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cycles.” (Complaint ¶¶ 52, 60.) Such allegations do not constitute a concrete injury and

they are based on speculative future events. By their own admission, Plaintiffs are

currently able to contribute to their preferred candidates as large contributors, but they

have chosen not to do so. (See, e.g., Complaint ¶¶ 5, 52-53, 60.) Since Plaintiffs are

presently able to donate as a large contributor, there is no justiciable controversy.

The absence of an Article III injury is highlighted by the fact that a monetary limit

on Plaintiffs’ campaign contributions is only a “marginal restriction” on Plaintiffs’

political speech. Buckley, 424 U.S. at 20, 96 S. Ct. at 635. As explained by the U.S.

Supreme Court in Buckley: “The quantity of communication by the contributor does not

increase perceptibly with the size of his contribution, since the expression rests solely on

the undifferentiated symbolic act of contributing.” Id. at 21, 96 S. Ct. at 635.

Plaintiffs Runbeck and Dutcher, as a current and possible candidate, respectively,

in 2014 have also failed to plead an Article III injury. A contribution limit violates the

First Amendment rights of candidates only if it prevents candidates “from amassing the

resources necessary for effective advocacy.” Id. at 21, 96 S. Ct. at 636; see also, e.g.,

Shrink PAC, 528 U.S. at 397, 120 S. Ct. at 909 (stating the test “must go to the power to

mount a campaign with all the dollars likely to be forthcoming.”).

Neither Plaintiff alleges that section 10A.27, subd. 11 denies candidates the

resources to wage an effective campaign. They do not even assert that the statute

prevents Plaintiffs from obtaining the funds to mount an effective campaign. Such a

claim is also implausible. They both previously have been able to wage effective

campaigns in compliance with section 10A.27, subd. 11, (Complaint ¶¶ 63, 73), and the


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individual contributor limit was increased during the 2013 legislative session. See note 1,

supra.

Moreover, in addition to direct contributions, Plaintiff Runbeck will receive public

campaign financing. See supra at 8. Plaintiff Dutcher received public funding when he

ran for election in 2012, see supra at 8, and would, in addition to private contributions,

presumably again accept public financing if he decides to run this year. Even if either of

the Plaintiffs could show that the statute prevents him or her from obtaining the necessary

monies to mount an effective campaign, “a showing of one affected individual does not

point up a system of suppressed political advocacy that would be unconstitutional under

Buckley.” Shrink PAC, 528 U.S. at 396, 120 S. Ct. at 909.

The complaint should be dismissed because Plaintiffs’ claims do not present the

necessary Article III case or controversy.

II. PLAINTIFFS’ MOTION FOR INTERIM INJUNCTIVE RELIEF SHOULD BE DENIED.

Even if the Court has jurisdiction over this case, Plaintiffs’ motion for a temporary

restraining order and a preliminary injunction is without merit. When deciding a motion

for interim injunctive relief, a court must consider: (1) the moving party’s probability of

success on the merits; (2) the threat of irreparable harm to the moving party; (3) the

balance between this harm and the injury that granting the injunction will inflict on other

interested parties; and (4) the public interest in the issuance of the injunction. Dataphase

Sys., Inc. v. CL Sys., Inc., 640 F.2d 109, 114 (8th Cir. 1981). None of these factors favors

granting the requested relief.


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Contrary to Plaintiffs’ contention (Plfs.’ Mem. at 20), the burden of establishing

the need for extraordinary relief in the form of a temporary restraining order or a

preliminary injunction is on the movant. Baker Elec. Coop. Inc. v. Chaske, 28 F.3d 1466,

1472 (8th Cir. 1994); see also Mazurek v. Armstrong, 520 U.S. 968, 972, 117 S. Ct. 1865,

1867 (1997) (citation omitted) (“It frequently is observed that a preliminary injunction is

an extraordinary and drastic remedy, one that should not be granted unless the movant, by

a clear showing, carries the burden of persuasion.”); Gelco Corp. v. Coniston Partners,

811 F.2d 414, 418 (8th Cir. 1987) (movant bears the burden of proof on all four

[Dataphase] factors). This principle applies in the First Amendment context. See, e.g.,

Planned Parenthood of Minn., N.D., S.D. v. Rounds, 530 F.3d 724, 727, 730-37 (8th Cir.

2008) (requiring plaintiffs moving to preliminarily enjoin state statute to show a

likelihood of success on their First Amendment claim).

A. Plaintiffs Cannot Show That They Are Likely To Prevail On The

Merits.

In a case such as this, Plaintiffs bear a particularly heavy burden of establishing as

a threshold matter that they are likely to succeed on the merits. The Eighth Circuit in

Planned Parenthood stated:

[A] more rigorous standard ‘reflects the idea that governmental policies implemented through legislation or regulations developed through presumptively reasoned democratic processes are entitled to a higher degree of deference and should not be enjoined lightly.’ If the party with the burden of proof makes a threshold showing that it is likely to prevail on the

merits, the district court should then proceed to weigh the other Dataphase

factors.


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530 F.3d at 732 (emphasis added; citation omitted). Plaintiffs have not and cannot meet

their burden.

1. Section 10A.27, subd. 11 is constitutional.

The constitutionality of contribution limits is well-established. See Buckley, 424

U.S. at 23-29, 96 S. Ct. at 637-40 (holding that “the weighty interests served by

restricting the size of financial contributions to political candidates are sufficient to

justify the limited effect upon First Amendment freedoms caused by the . . . contribution

ceiling”).

As noted above, the U.S. Supreme Court held in Buckley that “a limitation upon

the amount that any one person or group may contribute to a candidate or political

committee entails only a marginal restriction upon the contributor’s ability to engage in

free communication.” Buckley, 424 U.S. at 20, 96 S. Ct. at 635 (emphasis added). In so

doing, the Court reasoned as follows:

[a] contribution serves as a general expression of support for the candidate

and his views, but does not communicate the underlying basis for the support. The quantity of communication by the contributor does not

increase perceptibly with the size of his contribution, since the expression rests solely on the undifferentiated, symbolic act of contributing. At most, the size of the contribution provides a very rough index of the intensity of the contributor’s support for the candidate. A limitation on the amount of money a person may give to a candidate or campaign organization thus involves little direct restraint on his political communication, for it permits the symbolic expression of support evidenced by a contribution but does

not in any way infringe the contributor’s freedom to discuss candidates and

issues.

Id. at 21, 96 S. Ct. at 635-36 (emphasis added); see also Shrink PAC, 528 U.S. at 387,

120 S. Ct. at 904 (citing Buckley and stating that limiting contributions leaves


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communication “significantly unimpaired”). Individuals who have reached their

contribution limit are also “free to become a member of any political association and to

assist personally in the association’s efforts on behalf of candidates.” Buckley, 424 U.S.

at 22, 96 S. Ct. at 636.

“To the extent that large contributions are given to secure a political quid pro quo

from current and potential office holders, the integrity of our system of representative

democracy is undermined.” Id. at 26-27, 96 S. Ct. at 638. “Of almost equal concern as

the danger of actual quid pro quo arrangements is the impact of the appearance of

corruption stemming from public awareness of the opportunities for abuse inherent in a

regime of large individual financial contributions.” Id. at 27, 96 S. Ct. at 638-39; see

also, e.g., Shrink PAC, 528 U.S. at 390, 120 S. Ct. at 905-06 (“[W]e spoke in Buckley of

the perception of corruption ‘inherent in a regime of large individual financial

contributions’ to candidates for public office, as a source of concern ‘almost equal’ to

quid pro quo improbity.”) (quoting Buckley, 424 U.S. at 27, 96 S. Ct. at 638-39); supra at

2-8.

Section 10A.27, subd. 11 is part of comprehensive legislation enacted in 1993 to

prevent quid pro quo corruption and the appearance of such corruption. See supra at 2-8;

Kelley, 427 F.3d at 1114-16. It limits the total amount a candidate can receive from

so-called “large contributors” and other “special sources” that present the greatest risk of

quid quo pro corruption and its appearance. See id. at 1114-15. If and when that limit is

reached, the law allows the candidate to continue to receive contributions from other

individual contributors, but at a reduced monetary limit per contributor. Minn. Stat.


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§ 10A.27, subd. 11 (setting reduced limit at 50% of the large contribution limit).2 The

reduced limit therefore effectuates the statute’s central purpose of restricting the total

amount a candidate receives from all special sources.

Plaintiffs seek to invalidate the reduced limit, and accordingly, the 20% limit on

special sources as it relates to large contributors. (Plfs.’ Mem. at 1-2, 32-33.) As a

limitation on campaign contributions, section 10A.27, subd. 11 is subject to “relatively

complaisant review under the First Amendment, because contributions lie closer to the

edges than the core of political expression.” FEC v. Beaumont, 539 U.S. 146, 161, 123

S. Ct. 2200, 2210 (2003). As long as a contribution limit serves a sufficiently important

governmental interest and is closely drawn for that purpose, the statute is constitutional.

See, e.g., Buckley, 424 U.S. at 25, 96 S. Ct. at 638; Kelley, 427 F.3d at 1114.

In addition, Buckley recognized that if a court “is satisfied that some limit on

contributions is necessary, [it] has no scalpel to probe whether, say, a $2,000 ceiling

might not serve as well as $1,000.” 424 U.S. at 30, 96 S. Ct. at 640. In the end, the test

is whether a contribution limit is “so radical in effect as to render political association

ineffective, drive the sound of a candidate’s voice below the level of notice, and render

contributions pointless.” Shrink PAC, 528 U.S. at 397, 120 S. Ct. at 909 (emphasis

added) (quoted in Kelley, 427 F.3d at 1115).

2 Minn. Stat. § 10A.01, subd. 26(2) (2012) allows a candidate’s principal campaign committee to return a contribution to the source as a noncampaign disbursement. See

also Advisory Opinion 271 (recognizing that contributions can be returned to the source) (available at http://www.cfboard.state.mn.us/ao/AO271.pdf); Kelley, 427 F.3d at 1115 (noting that a candidate who reaches the 20% special source limit under section 10A.27, subd. 11 may return contributions).


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Section 10A.27, subd. 11, easily satisfies the applicable standard. There is no

dispute that the prevention of quid pro quo corruption and its appearance is a sufficient

government interest warranting limits on campaign contributions. Like the record in

Kelley, the evidence here establishes that the 1993 campaign finance reform legislation,

including section 10A.27, subd. 11, was intended to prevent quid pro quo corruption and

its appearance. Section 10A.27, subd. 11 is also closely drawn to further the purpose of

the statute.

a. Section 10A.27, subd. 11 and its inclusion of large

contributors as a special source, was enacted to prevent quid pro quo corruption and its appearance.

The record in this case, like the record in Kelley, overwhelmingly establishes that

section 10A.27, subd. 11, and its inclusion of large individual contributors as a special

source, was enacted to prevent quid pro quo corruption and its appearance. As discussed

above, newspaper articles, polls and the legislative history provide substantial support for

the conclusion that such corruption and its appearance led to the enactment of

section 10A.27, subd. 11. See supra at 2-8.

For example, a report on election reform referred to a shift in political power “to

those candidates in the best position to take advantage of large campaign contributions.”

For Rent: St. Paul Office, Politician Included, STAR TRIBUNE, Aug. 10, 1992, at 14A

(Campion Aff., Ex. 5.) In a Pioneer Press article, State Senator John Marty stated that

“[p]eople aren’t just going to dump thousands of dollars into the system just for the feel-

good benefit of it. . . . They are doing it for the payback.” (Campion Aff., Ex. 2 at 2.)


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Legislative testimony regarding the 1993 reform legislation likewise reveals that

there was a public perception that votes were being sold to the highest bidder. For

instance, lobbyist Wyatt Spano testified that:

I am afraid that to the public the whole thing is the flavor of an

auction. . . . We should not feel as an electorate that that process is for sale. . . . The public perceives though I think that vote buying is going

on . . . .

(Desmond Aff., Ex. 3) (emphasis added). Similarly, Barb Sykora, testifying on behalf of

the Republican party, stated “it’s becoming very much a public perception [that

legislators] can all be bought and that our whole system is for sale and I think that this is

the year to do something to change that perception.” (Id.)

To address these “corrupting effects,” the Common Cause task force

recommended, and the legislature adopted, section 10A.27, subd. 11. (Campion Aff.,

Ex. 6 ¶¶ 4, 8; see also Desmond Aff., Ex. 1 (“We think that large contributions from

individuals or special interest groups help to create the cynicism that we’ve seen in the

general public, that you’ve seen in your races among the general public, and they help to

create at least a perception that loyalties of our public officials are sometimes money

driven.”).)

Thus, section 10A.27 was clearly enacted to address a legitimate governmental

interest. See Shrink PAC, 528 U.S. at 391, 120 S. Ct. at 906 (indicating that the required

“quantum of empirical evidence” is low when the asserted rationale is preventing “the

dangers of large, corrupt contributions and the suspicion that large contributions are

corrupt”); id. at 395, 120 S. Ct. at 908 (“[T]here is little reason to doubt that sometimes


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large contributions will work actual corruption of our political system, and no reason to

question the existence of a corresponding suspicion among voters.”); Buckley, 424 U.S. at

27, 96 S. Ct. at 639 (stating the appearance of corruption stems from “public awareness

of the opportunities for abuse inherent in a regime of large individual financial

contributions” (emphasis added).)

Judge Kyle has already reached the same conclusion based largely on the same

evidence. Kelley, 291 F. Supp.2d at 1063. He determined that section 10A.27, subd. 11

“addresses the compelling government interest of preventing corruption and the

appearance of corruption.” Id. (quotation omitted).

The Eighth Circuit affirmed, likewise concluding that Minnesota’s established

interest in preventing actual corruption or the appearance of corruption through the

enactment of section 10A.27, subd. 11 is “constitutionally sufficient.” Kelley, 427 F.3d

at 1114-15. It noted that the record the Supreme Court found sufficient in Shrink PAC

included newspaper articles detailing concerns with corruption and its appearance as the

record did in Kelly. Id. Two of the articles the Eighth Circuit found most significant

have been submitted in this matter, (Campion Aff., Exs. 2, 5.), in addition to the other

extensive evidence.

The record in this case, as well as the previous determinations by the Eighth

Circuit and Judge Kyle, compels the conclusion that section 10A.27, subd. 11, and its

inclusion of “large contributors,” was enacted to address the legitimate governmental

interest in preventing quid pro quo corruption and its appearance. See also Bendet v.

Sandoz Pharm. Corp., 308 F.3d 907, 911 (8th Cir. 2002) (relying on facts from prior case


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and stating “stare decisis means that like facts will receive like treatment in a court of

law.”) (citation omitted).

b. Both the 20% limit on special sources and the reduced

limit on individual contributions are closely drawn.

In Kelley, the Eighth Circuit, as well as Judge Kyle, also held that the

section 10A.27, subd. 11 twenty percent limit on special sources is closely drawn to

further the purpose of the statute. See Kelley, 427 F.3d at 1115; Kelley, 291 F.Supp.2d at

1063. That same conclusion applies here because all of the special sources subject to the

20% limit were included in the statute to prevent quid pro quo corruption and its

appearance. See supra at 2-8.

Similarly, the reduced individual contribution limit is closely drawn because it

effectuates the statutory purpose of limiting the special sources, including the largest

contributors, to 20% of the total amount received by a candidate. A reduced contribution

limit is necessary to distinguish between the special source and other individual

contributions so that the 20% limit is workable. Indeed, without a reduced limit, the 20%

restriction on special source contributions would not apply to any individual

contributions, contrary to the purpose of the statute. The reduced limit’s cap on any

continuing individual contributions also furthers the statute’s purpose of preventing quid

pro quo corruption and its appearance.

Contrary to Plaintiff’s claim, the natural consequence of the statute on a

candidate’s fundraising is constitutionally permissible. See, e.g., Buckley, 424 U.S. at 21-

11, 96 S. Ct. at 636. (“The overall effect of the Act’s contribution ceilings is merely to


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require candidates . . . to raise funds from a greater number of persons.”) Buckley also

recognized the ability of “people who would otherwise contribute amounts greater than

the statutory limits to expend such funds on direct expression rather than to reduce the

total amount of money potentially available to promote political expression.” Id. at 22,

96 S. Ct. at 636.

The Minnesota Legislature is afforded deference in setting the amount of the

reduced limit. See Davis v. Federal Election Com’n, 554 U.S. 724, 737, 128 S. Ct. 2759,

2771 (2008) (“When contribution limits are challenged as too restrictive, we have

extended a measure of deference to the judgment of the legislative body that enacted the

law.”). Plaintiffs’ attempt to take a scalpel to the reduced limit (Plfs.’ Mem. at 15-17) is

improper as Buckley held. 424 U.S. at 30, 96 S. Ct. at 640; supra at 16.

The 20% special source and reduced individual contribution limits clearly satisfy

the applicable “relatively complaisant” standard of review. Beaumont, 539 U.S. at 161,

123 S. Ct. at 2210. Plaintiffs have not shown that the limits are “so radical in effect as to

render political association ineffective, drive the sound of a candidate’s voice below the

level of notice, and render contributions pointless.” Kelley, 427 F.3d at 1115 (quoting

Shrink PAC, 528 U.S. at 397, 120 S. Ct. at 909). Neither Plaintiffs’ complaint nor their

motion even makes that assertion.

Plaintiffs’ attempt to exclude large individual contributions from the 20% special

source limit undermines the purpose of section 10A.27, subd. 11 to prevent quid pro quo

corruption and its appearance. If Plaintiffs’ requested relief is granted, a candidate’s

funding could consist of an unlimited amount from large contributors, as well as a


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substantially increased amount from PAC’s and/or the remaining special source

contributors than permitted by the Legislature.

In upholding the contribution limit in Buckley, the Court concluded as follows:

[The] contribution limitation focuses precisely on the problem of large

contributions – the narrow aspect of political association where the actuality and potential for corruption have been identified – while leaving persons free to engage in independent political expression to associate

actively through volunteering their services and to assist to a limited but

nonetheless substantial extent in supporting candidates and committees

with financial resources. Significantly, the Act’s contribution limitations in themselves do not undermine to any material degree the potential for

robust and effective discussion of candidates and campaign issues by

individual citizens, associations, the institutional press candidates, and

political parties.

424 U.S. at 28-29, 96 S. Ct. at 639-40 (emphasis added). Section 10A.27, subd. 11 is

constitutional for the same reasons as articulated in Buckley.

Section 10A.27, subd. 11 is constitutional as Judge Kyle and the Eighth Circuit

held in Kelley.

2. McCutcheon is inapplicable.

Plaintiffs’ reliance on McCutcheon is misplaced. McCutcheon invalidated a

statute that prohibited any contribution to certain candidates by restricting “how many

candidates and committees an individual may support through contributions.” 134 S. Ct.

at 1448 (emphasis in original). McCutcheon did not consider a limit on the amount of

contributions to a candidate. See, e.g., id. at 1442.

Unlike McCutcheon, this case involves a limit on the amount that can be donated

to a candidate. McCutcheon therefore is inapposite. It is also significant that in

McCutcheon Justice Thomas wrote separately advocating for the plurality to overrule


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Buckley, id. at 1464, (Thomas, J., concurring in the judgment), but the plurality failed to

do so. As discussed above at 14-22, Buckley and its progeny, including Kelley, set forth

the pertinent law for assessing the constitutionality of section 10A.27, subd. 11.

Application of that precedent demonstrates that the statute is constitutional.

Moreover, Plaintiffs are simply wrong to suggest that McCutcheon somehow

implicitly overruled Buckley. See Agnostini v. Felton, 521 U.S. 203, 237, 117 S. Ct.

1997, 2017 (1997) (reiterating that lower courts should not “conclude our most recent

cases have, by implication, overruled an earlier precedent”); see also Rodriguez de Quijas

v. Shearson/American Express, Inc., 490 U.S. 477, 484, 109 S. Ct. 1917, 1921-22 (1989)

(“If a precedent of this Court has direct application in a case, yet appears to rest on

reasons rejected in some other line of decisions, the Court of Appeals should follow the

case which directly controls, leaving to this Court the prerogative of overruling its own

decisions.”).

B. Plaintiffs’ Alleged Harm Is Far Outweighed By The Substantial Harm

To The State.

The remaining Dataphase standards also support denial of Plaintiffs’ motion.

Plaintiffs are not precluded from making or receiving contributions because

section 10A.27, subd. 11 only limits the amount of their contribution. See, e.g., Buckley,

424 U.S. at 21, 96 S. Ct. at 635 (“The quantity of communication by the contributor does

not increase perceptibly with the size of the contribution, since the expression rests solely

on the undifferentiated, symbolic act of contributing.”). The two Plaintiffs who desire to

make donations as large contributors have not shown that they have been unable to give


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such contributions to their chosen candidates for purposes of the upcoming election. See

supra at 10-11. The statute also does not prevent Plaintiffs “from expressing support in

other ways such as making independent expenditures, volunteering services to a

campaign or endorsing the candidate.” Kelley, 427 F.3d at 1115 (citation omitted).

Nor is there any claim that the contribution limits preclude the Plaintiffs who are

an actual and a possible candidate in 2014 from obtaining adequate funding for their

campaign or potential campaign. See, e.g., Buckley, 424 U.S. at 22, 96 S. Ct. at 636

(recognizing that “[t]here is no indication . . . that the contribution limits imposed by the

Act would have any dramatic adverse effect on the funding of campaigns and political

associations.”). In any event, there is no basis for such a claim by either of the Plaintiffs.

See supra at 11-12.

In contrast, the harm to the State is substantial and concrete. The State oversees

the process for the election of its public officials. Section 10A.27, subd. 11 is an

important part of the process providing for dollar limits on contributions that can be made

to candidates. As discussed supra at 17-22, it reflects a careful balance duly enacted by

the Minnesota Legislature to prevent quid pro quo corruption and its appearance. The

State, including the electorate, benefits greatly from the limits imposed on campaign

contributions. See, e.g., Buckley, 424 U.S. at 21-22, 96 S. Ct. at 635-36; supra at 2-8.

Moreover, the fairness of an election is furthered by the use of standards that apply

to the entire election season. To change those standards in the midst of the election year

would be unfair to the electorate and candidates. This is especially true here because

Plaintiffs did not expeditiously commence this case. See, e.g., Hubbard Feeds, Inc. v.


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Animal Feed Supplement, Inc., 182 F.3d 598, 603 (8th Cir. 1999) (holding that plaintiff’s

delay in seeking preliminary injunction “belies any claim of irreparable injury pending

trial,” and recognizing that delay in seeking injunction, standing alone, may justify

denying request); Aviva Sports, Inc. v. Fingerhut Direct Mktg., Inc., Civ. No. 09-1091,

2010 WL 2131007, at *1 (D. Minn. May 25, 2010) (Ericksen, J.) (“[T]he failure to act

sooner undercuts the sense of urgency that ordinarily accompanies a motion for

preliminary relief and suggests that there is, in fact, no irreparable injury.”) (internal

quotation marks and citations omitted).

Section 10A.27, subd. 11 was enacted over twenty years ago. Plaintiffs’ challenge

to the statutory provision is based on the claim that no government interest is served by

the law. Such a claim, although without merit, could have been asserted long ago as the

plaintiffs did in Kelley. The McCutcheon decision does not change the constitutional

standard set forth in Buckley, and subsequently reiterated by other U.S. Supreme Court

decisions. See, e.g., Shrink PAC, 528 U.S. 377, 120 S. Ct. 897 (quoting Buckley); see

supra at 22-23.

C. The Public Interest Weighs Heavily In Favor Of Denying Plaintiffs’

Motion.

For the same reason, the public interest is furthered by denying Plaintiffs’ motion.

Plaintiffs seek, contrary to the judgment of the Minnesota Legislature, the infusion of

even more money into political campaigns that severely undermines the campaign

finance reforms enacted in 1993. See supra at 2-8, 17-25. The public interest is served

by compliance with the contribution limits imposed by section 10A.27, subd. 11.


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CONCLUSION

Defendant Board Members respectfully request that the Court deny Plaintiffs’

motion.

Dated: April 22, 2014 Respectfully submitted,

LORI SWANSON Attorney General State of Minnesota s/ Alan I. Gilbert ALAN I. GILBERT Solicitor General Atty. Reg. No. 0034678 [email protected] JACOB CAMPION Assistant Attorney General Atty. Reg. No. 0391274 [email protected] 445 Minnesota Street, Suite 1100 St. Paul, Minnesota 55101-2128 (651) 757-1450 (Voice) (651) 296-1410 (TTY) ATTORNEYS FOR DEFENDANTS DEANNA WIENER, GEORGE BECK, JON STAFSHOLT, ED OLIVER, NEIL PETERSON, AND CHRISTIAN SANDE


mn campaign limit lawsuit response

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