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NATIONAL BLACK POLICE ASSN. v. DISTRICT OF COLUMBI

July 29, 1994

NATIONAL BLACK POLICE ASSOCIATION, et al., Plaintiffs,
v.
DISTRICT OF COLUMBIA BOARD OF ELECTIONS AND ETHICS, Defendants.



The opinion of the court was delivered by: THOMAS F. HOGAN

 This case is now before the Court on plaintiffs' motion for a preliminary injunction. On July 13, 1994, the Court denied plaintiffs' motion for a temporary restraining order. Having considered the arguments and authorities presented in the briefs filed by the parties, the intervenor and the amici,1 the supplementary filings, and the oral arguments presenting at the July 21, 1994 hearing, the Court denies plaintiffs' motion for the reasons that follow.

 BACKGROUND

 In this action, a number of plaintiffs challenge the constitutionality of a District of Columbia law ("Initiative 41") on the ground that it imposes unprecedented limitations on the rights of individuals and groups to contribute, and of political candidates to accept contributions, in support of campaigns for elected public office. The registered voters of the District of Columbia voted to enact Initiative 41 on November 3, 1992. Initiative 41 became effective as D.C. Law 9-204 on March 17, 1993. The law limits contributions to $ 100 per election cycle for candidates for city-wide office, including Mayor, City Council Chair, and at-large council members. It limits contributions for ward offices to $ 50. In addition, the law aggregates contributions made during the primary and general elections and provides that a person may not contribute more than $ 600 to all candidates. *fn2"

 Plaintiffs in this action include citizens, and associations of citizens, who wish to participate in the political process by making publicly-disclosed contributions to political candidates they favor; candidates who need to receive such contributions; and citizens and associations of citizens who wish to receive information.

 Defendant District of Columbia Board of Elections and Ethics is an independent agency of the District of Columbia. Pursuant to D.C. Code § 1-1431, it is responsible for the implementation and enforcement of Initiative 41, and is authorized to maintain and defend, in its own name, any civil action relating to the enforcement of the provisions of Initiative 41.

 DISCUSSION

 A. STANDARD

 The granting of injunctive relief rests with the discretion of the court. Foundation on Economic Trends, et al. v. Heckler, 244 U.S. App. D.C. 122, 756 F.2d 143, 151 (D.C. Cir. 1985). Applying the standards for preliminary injunctive relief, as set forth in Virginia Petroleum Jobbers Assoc. v. Federal Power Comm'n, 104 U.S. App. D.C. 106, 259 F.2d 921, 925 (D.C. Cir. 1958), and WMATC v. Holiday Tours, Inc., 182 U.S. App. D.C. 220, 559 F.2d 841, 844 (D.C. Cir. 1977), a court should consider whether plaintiffs have demonstrated (1) that they are likely to succeed on the merits, (2) that they will suffer irreparable injury if an injunction is not issued, (3) that the defendants will not suffer substantial harm if the injunction is issued, and (4) that the public interest favors the granting of immediate relief.

 B. SUCCESS ON THE MERITS

 Plaintiffs argue that the contribution limitations imposed by Initiative 41 violate the rights of freedom of speech and freedom of association as guaranteed by the First Amendment and the equal protection of the laws as guaranteed by the Fifth Amendment of the Constitution of the United States.

 Opponents argue that plaintiffs' challenges are foreclosed by the Supreme Court's decision in Buckley v. Valeo, 424 U.S. 1, 96 S. Ct. 612, 46 L. Ed. 2d 659 (1976), and its progeny. Opponents also argue that equitable considerations, including the doctrine of laches, bar plaintiffs' action.

 Plaintiffs present three main arguments to support their claim that the campaign contribution limitations imposed by Initiative 41 violate the First Amendment. First, plaintiffs argue that the limitations are not narrowly tailored to advance the government's interests of preventing government corruption or the appearance thereof. Second, plaintiffs argue that Initiative 41 will impair certain individual voters' abilities to receive information from political candidates because the candidates will not be able to raise money to issue mailings and circulate information to the voters. Third, plaintiffs Libertarian Party and the District of Columbia Chapter of the Republican National African-American Council ("DC-RNAC") argue that Initiative 41 abridges the First Amendment rights of political parties to decide for themselves what contribution limits, if any, should apply to intra-party campaigns for party nominations.

 The Supreme Court's decision in Buckley v. Valeo, 424 U.S. 1, 96 S. Ct. 612, 46 L. Ed. 2d 659 (1976), provides the starting point for plaintiffs' First Amendment challenges. In Buckley, candidates for federal office, political parties and organizations brought an action challenging the constitutionality of various provisions of the Federal Election Campaign Act of 1971 ("the Act"). Most relevant to the instant action was a provision limiting individual political contributions to any single candidate to $ 1,000 per election. *fn3" The Buckley appellants claimed the $ 1,000 contribution limitation was unconstitutional because it unjustifiably burdened their First Amendment freedoms, was overbroad, and discriminated against challengers and minor-party candidates, in violation of the Fifth Amendment.

 Rejecting the Buckley appellants' First Amendment challenge to the Act's contribution limitations, the Supreme Court drew a clear distinction between contribution and expenditure limitations. While the Court recognized that both types of limits implicated fundamental First Amendment interests, *fn4" the Court found that the Act's expenditure ceilings imposed significantly more severe restrictions on the protected First Amendment freedoms of political expression and association than did its limitations on financial contributions. 424 U.S. at 20-21. Nonetheless, the Court acknowledged that "contribution restrictions could have a severe impact on political dialogue if the limitations prevented candidates and political committees from amassing the resources necessary for effective advocacy. " Id. at 21 (emphasis added). Considering the evidence before the Court, however, the Court found no indication that the $ 1,000 contribution limitation would have a dramatic adverse effect on the funding of campaigns and political associations.

 Applying "the rigorous standard of review established by [its] prior decisions," *fn5" the Court held that "the weighty interests served by restricting the size of financial contributions to political candidates [were] sufficient to justify the limited effect upon First Amendment freedoms caused by the $ 1,000 contribution ceiling." 424 U.S. at 29. Although the defenders of the $ 1,000 ceiling argued that three separate governmental interests, *fn6" justified the Act's restrictions on large campaign contributions, the Court found it "unnecessary to look beyond the Act's primary purpose - to limit the actuality and appearance of corruption resulting from large individual financial contributions - in order to find a constitutionally sufficient justification for the $ 1,000 contribution limitation. " Id. at 26. The Court determined that the Act's contribution limitations had only a limited effect on First Amendment freedoms because they left "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." Id. at 28. The Court specifically noted that the Act's contribution ceilings did not foreclose special interest groups' substantial contributions to candidates through the combined effect of individual contributions and that the Act did not limit the number of funds that could be formed through the use of subsidiaries, corporations, or of local and regional units of a national labor union. Id. n.31.

 Opponents in this action contend that Buckley precludes plaintiffs' First Amendment claims. Like the contribution limitations in Buckley, opponents claim the limitations imposed by Initiative 41 do not prevent candidates from disseminating their political messages. Opponents maintain that despite the $ 50 and $ 100 limits, candidates can still raise sufficient funds, or get their messages out through less costly means, such as increasing the use of volunteers, appearing at public meetings, or participating in group forums among candidates.

 Plaintiffs argue that the instant case is distinguishable from Buckley because unlike the Federal Election Campaign Act's contribution limitations provisions, Initiative 41's contribution limitations provisions are not narrowly tailored to serve a legitimate compelling governmental interest. Relying on the Buckley Court's statement that "contribution restrictions could have a severe impact on political dialogue if the limitations prevent candidates and political committees from amassing the resources necessary for effective advocacy," id. at 21, plaintiffs assert that the $ 50 and $ 100 contribution limitations at issue in the instant case are so low that they prevent challengers, independent and minor party candidates from mounting effective campaigns for public office. *fn7" In other words, the limits are so low that some candidates are unable to "amass[] the resources necessary for effective advocacy." Buckley, 424 U.S. at 21. Plaintiffs note that the limitations imposed by Initiative 41 are 1/10th and 1/20th the size of the $ 1000 limitations upheld in Buckley, or less than 4% and 2%, taking inflation into account. Additionally, plaintiffs contend the $ 50 /$ 100 limits have a much greater impact on political dialogue in the District of Columbia election races because the vast majority of political campaign contributions in the District of Columbia exceed $ 50 and $ 100, whereas in Buckley the $ 1000 limit affected only 5.1% of all contributions. *fn8"

 Plaintiffs have attached several declarations to support their assertions. For instance, the declarations of current challengers, including James Caviness, John T. Harvey, III, Ron L. Magnus, and Vincent Orange, *fn9" indicate that they need to receive large contributions to run successful campaigns. Other declarations reveal that individuals are willing to give such challengers contributions above the $ 50 /$ 100 limits. Moreover, plaintiffs' expert contends that Initiative 41's low contribution limits will operate as a de facto limit on expenditures. See Curtis Gans Declaration.

 Plaintiffs further argue that Initiative 41 violates the First Amendment because it is not narrowly tailored to serve a legitimate compelling governmental interest. Plaintiffs contend that the new contribution limits do no more to limit corruption than did the District's prior limits which restricted contributions to $ 2,000 for Mayor, $ 1,000 to At-Large Members of the School Board, $ 200 to Ward School Board Members and political party officials; the aggregate contribution permitted for all candidates under the prior law was $ 4,000. Moreover, plaintiffs contend that the other alleged purposes opponents advance to justify Initiative 41's contribution limitations (such as equalizing the relative ability of citizens, regardless of wealth, to affect the election process; bringing down the high costs of campaigns; changing the nature of campaigns away from advertisements, television commercials and mailings toward candidate forums, debates, and direct voter-candidate contact) are illegitimate. Quoting the Supreme Court's opinion in Citizens Against Rent Control/ Coalition for Fair Housing v. City of Berkeley, plaintiffs maintain that the only justifiable compelling state interest behind ...


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