     13-3889-cv
     New York Progress and Protection PAC v. Walsh, et al.

 1                       UNITED STATES COURT OF APPEALS
 2
 3                           FOR THE SECOND CIRCUIT
 4
 5                              August Term, 2013
 6
 7
 8     (Argued: October 18, 2013              Decided: October 24, 2013)
 9
10                              Docket No. 13-3889
11
12   - - - - - - - - - - - - - - - - - - - -x
13
14   New York Progress and Protection PAC,
15
16                     Plaintiff-Appellant,
17
18               - v.-
19
20   James A. Walsh, et al.,
21
22                     Defendants-Appellees.
23
24   - - - - - - - - - - - - - - - - - - - -x
25

26         Before:           JACOBS and LOHIER, Circuit Judges,
27                           KOELTL,* District Judge.
28
29         New York Progress and Protection PAC appeals from an

30   order entered in the United States District Court for the

31   Southern District of New York (Crotty, J.), denying a

32   preliminary injunction.         For the following reasons, we

33   reverse.


           *
           Judge John G. Koeltl, of the United States District
     Court for the Southern District of New York, sitting by
     designation.
 1                               TODD R. GEREMIA, Jones Day, New
 2                               York, New York (Michael A.
 3                               Carvin, Louis K. Fisher, Warren
 4                               Postman, Jones Day, Washington,
 5                               DC, and Michael E. Rosman,
 6                               Center for Individual Rights,
 7                               Washington, DC, on the brief),
 8                               for Appellant.
 9
10                               JUDITH VALE, (Richard P.
11                               Dearing, on the brief), for Eric
12                               T. Schneiderman, Attorney
13                               General of the State of New
14                               York, for Appellees.
15
16   DENNIS JACOBS, Circuit Judge:

17       New York Progress and Protection PAC (“NYPPP”), an

18   “unauthorized political committee” formed to advocate in

19   favor of candidates in New York elections, brought suit

20   against election officials in the State and City of New

21   York, as well as the Board of Elections, to enjoin

22   enforcement of New York State Election Law §§ 14-114(8) and

23   14-126(2).   Section 14-114(8) imposes a $150,000 aggregate

24   annual limit on certain political contributions by any

25   person in New York State.   Section 14-126(2) makes it a

26   misdemeanor to fail to file required statements or to

27   knowingly and willfully violate any other provision of the

28   Election Law.   The effect of these provisions is to prevent

29   NYPPP from receiving more than $150,000 from any individual

30   contributor in any calendar year.   NYPPP is a political

                                     2
 1   committee that engages solely in independent expenditures,

 2   that is, expenditures made without prearrangement or

 3   coordination with a candidate.    NYPPP, which has a donor

 4   waiting to contribute $200,000 to its cause, alleges that,

 5   as applied to NYPPP, the cap violates its core First

 6   Amendment right to advocate in favor of Joseph Lhota in the

 7   upcoming New York mayoral election, and seeks declaratory

 8   and injunctive relief.

 9       The New York City mayoral Republican primary was held

10   September 10, 2013.   NYPPP filed suit two weeks later, on

11   September 25, 2013, and the following day made a motion for

12   a preliminary injunction.   The United States District Court

13   for the Southern District of New York (Crotty, J.) ordered

14   briefing and set oral argument for Tuesday, October 8.    On

15   Friday, October 11, NYPPP filed a letter reiterating the

16   urgency of the matter in light of the approaching November 5

17   mayoral election.   On October 16, NYPPP filed a petition for

18   a writ of mandamus with this Court to compel the district

19   court to rule on the pending motion.   Soon after argument on

20   the mandamus petition was scheduled for Friday, October 18,

21   the district court issued an opinion and order denying

22   NYPPP’s motion.   N.Y. Progress & Prot. PAC v. Walsh, No. 13-


                                   3
 1   cv-6769 (PAC), 2013 WL 5647168 (S.D.N.Y. Oct. 17, 2013)

 2   (“Op. & Order”).   In quick succession, NYPPP withdrew its

 3   mandamus petition and appealed from the district court’s

 4   order, and we agreed to hear argument as originally

 5   scheduled.

 6       The appeal was heard on the merits at oral argument on

 7   October 18.

 8

 9                                 I

10       The district court’s denial of a preliminary injunction

11   is reviewed for abuse of discretion.   WNET, Thirteen v.

12   Aereo, Inc., 712 F.3d 676, 684 (2d Cir. 2013).    “Such an

13   abuse occurs when the district court bases its ruling on an

14   incorrect legal standard or on a clearly erroneous

15   assessment of the facts.”   Bronx Household of Faith v. Bd.

16   of Educ. of City of N.Y., 331 F.3d 342, 348 (2d Cir. 2003).

17   “A finding is ‘clearly erroneous’ when although there is

18   evidence to support it, the reviewing court on the entire

19   evidence is left with the definite and firm conviction that

20   a mistake has been committed.”    United States v. U.S. Gypsum

21   Co., 333 U.S. 364, 395 (1948).    Although we must defer to

22   the district court’s factual findings, in First Amendment


                                   4
 1   cases, “an appellate court has an obligation to ‘make an

 2   independent examination of the whole record’ in order to

 3   make sure that ‘the judgment does not constitute a forbidden

 4   intrusion on the field of free expression.’”    Bose Corp. v.

 5   Consumers Union of U.S., Inc., 466 U.S. 485, 499 (1984)

 6   (quoting N.Y. Times Co. v. Sullivan, 376 U.S. 254, 284–286

 7   (1964)).

 8       “A plaintiff seeking a preliminary injunction must

 9   establish that he is likely to succeed on the merits, that

10   he is likely to suffer irreparable harm in the absence of

11   preliminary relief, that the balance of equities tips in his

12   favor, and that an injunction is in the public interest.”

13   Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20

14   (2008).    A plaintiff who seeks a preliminary injunction that

15   will alter the status quo must demonstrate a “substantial”

16   likelihood of success on the merits.    Sunward Elecs., Inc.

17   v. McDonald, 362 F.3d 17, 24 (2d Cir. 2004).

18

19                                  II

20       “The loss of First Amendment freedoms, even for minimal

21   periods of time, unquestionably constitutes irreparable

22   injury.”    Elrod v. Burns, 427 U.S. 347, 373 (1976).   “The


                                    5
 1   harm is particularly irreparable where, as here, a plaintiff

 2   seeks to engage in political speech, as timing is of the

 3   essence in politics and a delay of even a day or two may be

 4   intolerable.”   Klein v. City of San Clemente, 584 F.3d 1196,

 5   1208 (9th Cir. 2009) (internal quotation marks and

 6   alterations omitted).   The State argues that injury is not

 7   presumed in First Amendment cases unless the challenged law

 8   “directly limits speech,”   Bronx Household, 331 F.3d at 349,

 9   and that no such presumption arises in this case because the

10   limits are imposed indirectly.     But Bronx Household

11   identified a category of indirect limits on speech by

12   reference to Latino Officers Ass’n v. Safir, 170 F.3d 167,

13   171 (2d Cir. 1999), which dealt with a policy requiring

14   police officers to notify their department about their

15   speaking engagements and to provide a written summary of the

16   speech the day after the engagement.     See Bronx Household,

17   331 F.3d at 350 (discussing Latino Officers).     There we

18   “found the theoretical possibility of a chilling effect on

19   officers’ speech too conjectural and insufficient to

20   establish irreparable harm.”     Id.   The policy at issue in

21   Latino Officers bears no resemblance to the direct

22   restriction on political expression at issue here.


                                    6
 1       Although we express no opinion on the ultimate outcome,

 2   the plaintiff here has a substantial likelihood of success

 3   on the merits.   The Supreme Court held in Citizens United v.

 4   FEC that the government has no anti-corruption interest in

 5   limiting independent expenditures.   558 U.S. 310, 357-61

 6   (2010).   It follows that a donor to an independent

 7   expenditure committee such as NYPPP is even further removed

 8   from political candidates and may not be limited in his

 9   ability to contribute to such committees.1   All federal

10   circuit courts that have addressed this issue have so held.



          1
            This result obtains regardless of the standard of
     review. After Buckley v. Valeo, political contribution
     limits are subject to heightened scrutiny, which requires
     that they be “closely drawn” to match a “sufficiently
     important interest.” 424 U.S. 1, 25 (1976). Expenditure
     limits are subject to even higher scrutiny, requiring that
     they be narrowly tailored to meet a compelling government
     interest. See Citizens United, 558 U.S. at 340. In this
     case, the effect of the restrictions is to limit
     contributions that can be made to a committee that seeks to
     make independent expenditures. It is unnecessary to decide
     which level of scrutiny should apply, because preventing
     quid pro quo corruption is the only government interest
     strong enough to justify restrictions on political speech,
     see id. at 357-61, and the threat of quid pro quo corruption
     does not arise when individuals make contributions to groups
     that engage in independent spending on political speech, see
     Wis. Right to Life State Political Action Comm. v. Barland,
     664 F.3d 139, 154 (7th Cir. 2011). See also SpeechNow.org
     v. FEC, 599 F.3d 686, 694 (D.C. Cir. 2010); Long Beach Area
     Chamber of Commerce v. City of Long Beach, 603 F.3d 684, 696
     (9th Cir. 2010).
                                   7
 1   See Texans for Free Enterprise v. Tx. Ethics Comm’n, No. 13-

 2   50014, 2013 WL 5639542, at *2 (5th Cir. Oct. 16, 2013) (“We

 3   adopt the reasoning of our sister courts and hold that the

 4   challenged law is incompatible with the First Amendment.”);

 5   Wis. Right to Life State Political Action Comm. v. Barland,

 6   664 F.3d 139, 143 (7th Cir. 2011) (“On the merits, after

 7   Citizens United ..., [the Wisconsin campaign finance law] is

 8   unconstitutional to the extent that it limits contributions

 9   to committees engaged solely in independent spending for

10   political speech.”); Long Beach Area Chamber of Commerce v.

11   City of Long Beach, 603 F.3d 684, 696 (9th Cir. 2010) (“Nor

12   has the City shown that contributions to the Chamber PACs

13   for use as independent expenditures raise the specter of

14   corruption or the appearance thereof.”); SpeechNow.org v.

15   FEC, 599 F.3d 686, 695 (D.C. Cir. 2010) (en banc) (“Given

16   this analysis from Citizens United, we must conclude that

17   the government has no anti-corruption interest in limiting

18   contributions to an independent expenditure group ....”);

19   N.C. Right to Life, Inc. v. Leake, 525 F.3d 274, 293 (4th

20   Cir. 2008) (declaring unconstitutional, pre-Citizens United,

21   contribution limit to independent expenditure political

22   committees because no anti-corruption interest was


                                  8
1   furthered).   The D.C. Circuit appeal, taken from the denial

2   of a motion for a preliminary injunction, was heard en banc

3   in the first instance and was decided unanimously.   Numerous

4   federal district courts across the country have struck down

5   analogous laws.2

6       Few contested legal questions are answered so

7   consistently by so many courts and judges.   The district

8   court, however, conducted no analysis of NYPPP’s likelihood




         2
           See, e.g., Stay the Course W. Va. v. Tennant, No.
    12-cv-01658, 2012 WL 3263623, *6 (S.D. W. Va. Aug. 9, 2012)
    (“The government has no interest in maintaining the
    contribution limit as applied to [independent expenditure
    groups]”); Lair v. Murry, 871 F. Supp. 2d 1058, 1068 (D.
    Mont. 2012) (“[U]nder Citizens United ... governments cannot
    ban corporate contributions to political committees that the
    committees then use for independent expenditures”); Yamada
    v. Weaver, 872 F. Supp. 2d 1023, 1041 (D. Haw. 2012)
    (“[C]ontribution limitations to [independent expenditure]
    organizations violate the First Amendment”); Pers. PAC v.
    McGuffage, 858 F. Supp. 2d 963, 969 (N.D. Ill. 2012)
    (“[R]egulations imposing limits on fundraising by
    independent expenditure organizations cannot be justified”);
    Republican Party of N.M. v. King, 850 F. Supp. 2d 1206, 1215
    (D.N.M. 2012) (“New Mexico does not have an anti-corruption
    interest capable of justifying contribution limits if those
    contributions are to be used exclusively for independent
    expenditures”); Fund for Jobs, Growth, & Sec. v. N.J.
    Election Law Enforcement Comm’n, No. 13-CV-02177-MAS-LHG
    (D.N.J. July 11, 2013) (consent order permanently enjoining
    the New Jersey Election Law Enforcement Commission from
    enforcing New Jersey’s contribution limits so long as
    expenditures are not coordinated with candidates or
    political party committees).
                                  9
 1   of success.3   See Op. & Order at *14 (“[T]he Court need not

 2   address whether NYPPP can establish a substantial likelihood

 3   of success on the merits or irreparable harm.”).

 4   Consideration of the merits is virtually indispensable in

 5   the First Amendment context, where the likelihood of success

 6   on the merits is the dominant, if not the dispositive,

 7   factor.   See, e.g., Joelner v. Vill. of Wash. Park, 378 F.3d

 8   613, 620 (7th Cir. 2004) (“When a party seeks a preliminary

 9   injunction on the basis of a potential First Amendment

10   violation, the likelihood of success on the merits will

11   often be the determinative factor.” (citing Connection

12   Distrib. Co. v. Reno, 154 F.3d 281, 288 (6th Cir. 1998))).

13   This was reversible error.

14

15                                III

16       The district court combines its analysis of the balance


          3
            The district court posits that “so-called independent
     expenditure-only committees that have only one purpose -
     advancing a single candidacy at a single point in time - are
     not truly independent as a matter of law.” Op. & Order at
     *9. Not so. Under Buckley and Citizens United, “absence of
     prearrangement and coordination” with a candidate are the
     hallmarks of committee independence. See Citizens United,
     558 U.S. at 345; Buckley, 424 U.S. at 47. An independent
     committee’s choice to advocate on behalf of a single
     candidate, and its formation after that candidate is
     nominated, are irrelevant.
                                   10
 1   of hardships and the public interest, and assumes that by

 2   definition the interests of the State are aligned with those

 3   of the public.   Op. & Order at *7 (“Since the State

 4   Defendants represent the public, there are important public

 5   interests at stake, which must be weighed against the

 6   hardships suffered by NYPPP if an injunction is not

 7   granted.”).   However, securing First Amendment rights is in

 8   the public interest.   See Am. Civil Liberties Union v.

 9   Ashcroft, 322 F.3d 240, 247 (3d Cir. 2003) (“[T]he

10   Government does not have an interest in the enforcement of

11   an unconstitutional law.” (internal quotation marks

12   omitted)).

13       The hardship faced by NYPPP and its donors from the

14   denial of relief is significant.     Every sum that a donor is

15   forbidden to contribute to NYPPP because of this statute

16   reduces constitutionally protected political speech.     Much

17   of the district court’s analysis of hardship focuses on

18   hardship to the election system arising from the timing of

19   this suit and this motion for a preliminary injunction.     But

20   as the Supreme Court has emphasized, the value of political

21   speech is at its zenith at election time:

22       It is well known that the public begins to concentrate
23       on elections only in the weeks immediately before they

                                     11
 1       are held. There are short timeframes in which speech
 2       can have influence. The need or relevance of the
 3       speech will often first be apparent at this stage in
 4       the campaign. The decision to speak is made in the
 5       heat of political campaigns, when speakers react to
 6       messages conveyed by others. A speaker's ability to
 7       engage in political speech that could have a chance of
 8       persuading voters is stifled if the speaker must first
 9       commence a protracted lawsuit.
10
11   Citizens United, 558 U.S. at 334.

12        The district court found that granting NYPPP a

13   preliminary injunction would create “confusion” over whether

14   other committees were covered by the injunction and, “[e]ven

15   more troubling,” that an injunction “would amplify NYPPP’s

16   voice over the voices of other political committees” because

17   the State would still be “free to prosecute others who may

18   violate the statute.”   Op. & Order at *10-11 (internal

19   quotation marks omitted).   True, the preliminary injunction

20   that we direct be entered frees only NYPPP.   But as

21   described by the district court, these concerns are neither

22   sufficiently severe disruptions to the election process

23   itself nor sufficiently particularized to outweigh the

24   irreparable harm that stems from restrictions on political

25   speech.

26       The State relies on cases such as Reynolds v. Sims, 377

27   U.S. 533 (1964), for the proposition that denial of the


                                   12
 1   preliminary injunction should be affirmed because of the

 2   disruption the preliminary injunction would cause to the

 3   election process.    But Reynolds involved the complicated

 4   process of legislative reapportionment, and there is no

 5   comparable showing of what burdens would be imposed on the

 6   State by freeing NYPPP from the limit on individual

 7   contributions that it can receive in connection with the

 8   upcoming election.

 9

10                                  IV

11          The district court thought that the plaintiff created

12   an “artificial urgency” by waiting until “forty-one days

13   before the ... election” before filing suit.    Op. & Order at

14   *12.    Although the district court cited insufficient time

15   for “fair consideration ... before deciding a constitutional

16   issue of such importance,” Op. & Order at *9, we should not

17   “mak[e] unnecessary distinctions ... between speech that we

18   find to be urgent and that which we think can bide its

19   time,”    Tunick v. Safir, 209 F.3d 67, 95 (2d Cir. 2000)

20   (Sack, J., concurring).    “We ought not to be determining

21   what speech is pressing and what can suffer the law’s delay.

22   That, like deciding what speech is important and what


                                    13
 1   unimportant, is not for the courts.”     Id.   Tunick treated as

 2   pressing a public display of nudity; political speech is not

 3   a lesser order of expression.

 4

 5                               CONCLUSION

 6       For the foregoing reasons, the order denying the

 7   preliminary injunction is reversed, and the district court

 8   shall forthwith enter a preliminary injunction enjoining the

 9   application and enforcement of N.Y. Elec. Law §§ 14-114(8)

10   and 14-126 against NYPPP and its individual donors for the

11   use of the contributions of those donors only for

12   independent expenditures.    The mandate shall issue

13   immediately.




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