The article below by Greene Espel attorneys John Baker and Katherine Swenson first appeared on Law.com on March 11, 2020. 

The court affirmed a preliminary injunction against enforcement of an Arkansas statute that prohibits campaign contributions from being made during a two-year “blackout” period well before an election.

While much of the country has been focused on the upcoming November 2020 election, the Eighth Circuit issued an opinion affecting those who are looking even further ahead when it comes to elections and campaign contributions. Specifically, on Jan. 27, 2020, the court affirmed a preliminary injunction against enforcement of an Arkansas statute that prohibits campaign contributions from being made during a two-year “blackout” period well before an election. Jones v. Jegley, 947 F.3d 1100 (8th Cir. 2020).

The statute in question—§7-6-203(e) of the Arkansas Code—makes it illegal “for any candidate for public office, any person acting in the candidate’s behalf, or any exploratory committee to solicit or accept campaign contributions more than two (2) years before an election at which the candidate seeks nomination or election.” The statute was part of a package of amendments to Arkansas’ campaign-finance laws approved by popular vote in 1996.[1]

In April 2019, Arkansas resident Peggy Jones brought an action against various state and county officials for injunctive relief, claiming that she wants to donate to candidates running for state office in 2022 but is prohibited from doing so by the statute. Jones argued that the blackout period violates her rights under the First Amendment. Judge James Moody of the Eastern District of Arkansas granted Jones a preliminary injunction, holding that Jones had standing and had established a likelihood of success on the merits of her case.

The Eighth Circuit—Judge Stras, joined by Judge Kelly and Judge Malloy—affirmed the district court on both grounds. First, with regard to standing, the Eighth Circuit held that Jones had sufficiently alleged an injury-in-fact. That is, she met the minimum requirements of pleading (1) that she has “an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute,” and (2) “a credible threat of prosecution thereunder.” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 159 (2014). Specifically, Jones alleged that she would donate to candidates running in the 2022 election if it were legal. She also filed an affidavit stating that she wanted to donate to a particular state senator, as she had in the past. The panel rejected the argument that Jones was required to violate the statute to attain Article III standing (something the Eighth Circuit noted it has done “repeatedly”[2]). The Eighth Circuit also rejected the argument that the state legislator in question was not a “candidate” because he had not publicly announced that he will run for re-election in 2022, concluding that the legislator’s telling Jones that he intended to run was sufficient.

Second, on the merits of Jones’s First Amendment claim,[3] the panel applied “exacting scrutiny” to the blackout statute. Under that standard, the state bears the burden of establishing that the statute “advances a sufficiently important state interest and employs means closely drawn to avoid unnecessary abridgment of First Amendment freedoms.” Jones, 947 F.3d at 1105 (quotation omitted).[4] With regard to the state’s purpose, the panel acknowledged that “in the abstract” the prevention of corruption or the appearance of corruption “is a sufficiently important state interest,” but that the government can only target quid pro quo corruption.[5] Id. at 1105. Arkansas did not produce any evidence showing that a ban on early contributions advanced that interest to the degree required for “exacting scrutiny”—that is, evidence that contributions made more than two years before an election present a greater risk of actual or apparent quid pro quo corruption than those made within the two-year window.

The panel also interpreted Supreme Court precedent as looking with disfavor on anticircumvention, “prophylaxis-upon-prophylaxis” justifications—that is, arguments that show that a limitation furthers another limitation and not necessarily the anti-corruption interest itself. Id. at 1107 (citing McCutcheon v. Fed. Election Comm’n, 572 U.S. 185, 221 (2014)). For example, the state could not justify the two-year blackout as a way of preventing post-election bribery because bribe offers are already illegal. See, e.g., Arkansas Code §7-6-203(f)(1) (banning candidates from using “campaign funds as personal income”).

The panel relied heavily on the Supreme Court’s McCutcheon decision, in which the court struck down aggregate contribution limits (which capped the total amount a donor could give to all candidates in a particular election cycle).[6] In a footnote, the panel rejected the state’s argument that McCutcheon’s plurality opinion (written by Chief Justice Roberts and joined by three other justices, with Justice Thomas concurring in the result), was not binding. The panel explained, citing Marks v. United States, 430 U.S. 188, 193 (1977), that when “no single rationale explaining the result enjoys the assent of five Justices,” the holding of the court is the “position taken by those Members who concurred in the judgments on the narrowest grounds.” Because the Chief Justice’s plurality opinion “is the narrowest in support of the judgment, it is binding.” Jones, 947 F.3d at 1106 n.3 (citing Thompson v. Hebdon, 140 S. Ct. 348 (2019) (per curiam); Holmes v. Fed. Election Comm’n, 875 F.3d 1153, 1157 (D.C. Cir. 2017)).

Endnotes:

[1] The Eighth Circuit has held that several other provisions of the 1996 initiated act are unconstitutional. See Russell v. Burris, 146 F.3d 563 (8th Cir. 1998); see also Ark. Right to Life State Political Action Comm., 146 F.3d 558 (8th Cir. 1998).

[2] Jones, 947 F.3d at 1104 (citing Telescope Media Grp. v. Lucero, 936 F.3d 740, 749 (8th Cir. 2019); 281 Care Comm. v. Arneson, 638 F.3d 621, 627 (8th Cir. 2011); St. Paul Area Chamber of Commerce v. Gaertner, 439 F.3d 481, 485 (8th Cir. 2006); and Ark. Right to Life, 146 F.3d at 560).

[3] The “merits” factor was the only contested equitable-relief factor before the Eighth Circuit.

[4] “Exacting scrutiny” is a form of intermediate scrutiny, between the rational-basis test and strict scrutiny.

[5] “The hallmark of corruption is the financial quid pro quo: dollars for political favors.” Fed. Election Comm’n v. Nat’l Conservative Political Action Comm., 470 U.S. 480, 497 (1985).

[6] Base limits, by contrast, restrict how much money a donor may contribute to a particular candidate or committee. McCutcheon, 572 U.S. at 192 (citing 2 U.S.C. §441a(a)(1)). The Supreme Court has upheld the constitutionality of base limits “as serving the permissible objective of combatting corruption.” Id. at 192-93.

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