rights of challengers, minority party or independent candidates, and candidates who do not have substantial personal wealth, family-owned newspapers, or similar advantages.
In Buckley, the Supreme Court rejected the appellants' equal protection claim and upheld the contribution limitations at issue because "the Act applied the same limitations on contributions to all candidates regardless of their present occupations, ideological views, or party affiliations." 424 U.S. at 31. The Court found no evidence to support the claim that the contribution limitations discriminated against challengers as a class. Id. at 31-32. Although the Court found the charge of discrimination against minor-party and independent candidates "more troubling" than that against major-party candidates, it found no basis in the record to conclude that the Act invidiously discriminated against either candidate. Id. at 33. The Court stated that the fact that "the limitations may have a significant effect on particular challengers or incumbents," did not justify invalidating the legislation. Id. The Act was evenhanded in that it treated all candidates equally with regard to contribution limitations. In addition, the Court speculated that, for a variety of reasons, the restriction would benefit minor-party and independent candidates relative to their major party opponents. Id. at 33-34.
To support their equal protection claim, plaintiffs rely heavily on Service Employees International Union v. Fair Political Practices Comm'n, 955 F.2d 1312, cert. denied, 120 L. Ed. 2d 922, 112 S. Ct. 3056, 3057, 112 S. Ct. 3057 (1992), a case in which the Ninth Circuit upheld a decision by the lower court to strike a statute ("Proposition 73") that had been adopted by popular initiative and limited the amount individuals and groups could contribute each fiscal year.
See 747 F. Supp. 580 (E.D.Cal. 1990). Similar to plaintiffs in this case, plaintiffs in Service Employees International Union (labor organizations, elected officials, and individual campaign contributors) argued that Proposition 73 discriminated in favor of incumbents and against challengers because challengers do not typically decide to run for office years in advance of an election. As a result, challengers cannot engage in fundraising during the fiscal years between elections as incumbents commonly do.
Citing Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 108 L. Ed. 2d 652, 110 S. Ct. 1391 (1990), the Ninth Circuit applied a heightened standard of judicial scrutiny and considered whether the contribution limits were necessary to achieve a substantial government interest. Recognizing that the government has a legitimate interest in preventing corruption and the appearance of corruption, the court nonetheless held (2-1) that the interest did not support a discriminatory formula for limiting contributions. 955 F.2d at 1321.
The court answered "the crucial question, . . . whether there [was] an appropriate governmental interest suitably furthered by the differential treatment" in the negative. 955 F.2d at 1321 (quoting Police Dep't of Chicago v. Mosley, 408 U.S. 92, 95, 33 L. Ed. 2d 212, 92 S. Ct. 2286 (1972)).
Service Employee International Union is distinguishable from the instant case. Unlike the contribution limitations imposed by Initiative 41, which follow the federal model in limiting the amount of money contributors can give during each election cycle, the contribution limitations imposed by Proposition 73 limited the amount contributors could give during each fiscal year. The majority in Service Employee International Union placed great emphasis on this fact in reaching its decision. See 955 F.2d at 1321; id. at 1325-26 (Wiggins, J., dissenting).
The contribution limitations imposed by Initiative 41 are analogous to those imposed by the Federal Election Campaign Act and upheld in Buckley. Initiative 41's contribution limitations do not distinguish between candidates based upon party affiliations or ideological viewpoint; moreover, like the contribution limitations at issue in Buckley, one of the primary stated purposes behind Initiative 41's contribution limitations is to limit corruption and the appearance thereof.
As the Supreme Court suggested in Buckley, opponents in this case have produced data which suggests that Initiative 41 will tend to reduce, not benefit, the advantages of incumbency.
For example, opponents assert that the limitations will prevent incumbents from raising money in large increments in the future. Four non-incumbent candidates have moved to intervene in support of the constitutionality of this statute. Moreover, opponents point out that incumbent members of the City Council have worked consistently to repeal Initiative 41.
Opponents in this case recognize, as did the Supreme Court in Buckley, that in some cases contribution limitations may favor incumbents. See Buckley, 424 U.S. at 33 n.38. In fact, four non-incumbent candidates are plaintiffs in this action. Nonetheless, opponents argue that there is little indication that the contribution limitations will consistently harm challengers relative to incumbents. Noting the many built-in advantages of incumbency (such as taxpayer-funded newsletters, television programs, and citizen-service initiatives), opponents maintain that Initiative 41's limitations will help mitigate, rather than exacerbate, inequalities between major and minor party candidates.
As in Buckley, the Court does not believe that the plaintiffs in the instant case have met their burden of showing that Initiative 41 invidiously discriminates against a particular and cognizable class, or that Initiative 41 was passed with discriminatory intent.
However, because the contribution limitations imposed by Initiative 41 pose an additional equal protection concern the Supreme Court has not yet considered, this Court's equal protection analysis cannot end here. The Court must also consider whether the "window" between the date the District of Columbia voters passed Initiative 41 (November 3, 1992) and the date the law became effective (March 17, 1993) makes Initiative 41 constitutionally infirm on equal protection grounds. During this interim period, some incumbents who planned to campaign in future elections compiled large "war chests" which consisted primarily of contributions exceeding the $ 50 and $ 100 limits imposed by Initiative 41.
Opponents minimize this infirmity as a one-time, "start up" problem that is not a feature of the Initiative 41 itself. In addition, Intervenor District of Columbia maintains that a decision by this Court enjoining Initiative 41 will not necessarily remedy the "start up" problem because if the Court strikes Initiative 41, incumbents who wish to run for re-election in 1996 will take advantage of a "newly-created window" (between present day and election day) to raise funds for 1996, just as candidates running for re-election in 1994 took advantage of the November, 1992 - March, 1993 window.
Plaintiffs contend that the realities of the political campaign process are such that this scenario would not occur. Similarly, while plaintiffs admit that no formal or informal barriers prohibited current challengers from also raising funds in excess of $ 50 and $ 100 during the "window" of opportunity, they assert that such tactics were unrealistic because at the time District of Columbia voters passed Initiative 41, the current elections were two years away, and the plaintiff candidates had not yet decided to run for office.
The United States District Court for the Eastern District of Louisiana rejected a similar equal protection challenge in Mintz v. Barthelemy, 722 F. Supp. 273, 280 (E.D. La. 1989), aff'd, 891 F.2d 520 (5th Cir. 1989). In that case, a candidate argued that contributions received prior to the implementation of a contribution limitation violated his equal protection rights as a "latecomer." Id. at 281. Judge Patrick E. Carr rejected the plaintiff candidate's argument on the grounds that he was not prohibited from raising money prior to the contribution cut-off, the contributions raised were not a product of incumbency, and there was no evidence that the legislature intended the law to favor incumbents in such a fashion. Id. at 280-81.
Although the Court is greatly troubled by the significant advantage Initiative 41's "window" of opportunity has afforded incumbents who had the foresight to exploit the timing loophole, plaintiffs have not convinced the Court that there is a substantial likelihood that they can succeed on the merits of their claim at this time. This Court agrees with Judge Patrick E. Carr's analysis in Mintz and believes the Supreme Court implicitly rejected plaintiffs' equal protection argument in Buckley. See Mintz, 722 F. Supp. at 282.
3. Doctrine of Laches
Opponents argue that plaintiffs' action is barred by laches because plaintiffs waited until after legislation to amend Initiative 41 was stalled in the Government Operations Committee of the Council before they decided to file this action.
The Court declines to rule that plaintiffs are barred by laches from asserting their constitutional claims. Plaintiffs filed this action soon after the contribution limits began to affect them. In this Circuit, the burden rests on the defendant to prove inexcusable delay and undue prejudice. Daingerfield Island Protective Co. v. Lujan, 287 U.S. App. D.C. 101, 920 F.2d 32, 37 (D.C. Cir. 1990) (D.C. Cir. 1990). In the Court's view, opponents have failed to meet their burden.
C. IRREPARABLE INJURY TO PLAINTIFFS
Plaintiffs have presented considerable evidence to support their claim that they will suffer irreparable harm if defendants are not enjoined from enforcing the contribution limitations imposed by Initiative 41. The date of the primary election is September 13, 1994, just over six weeks away, and the 1994 election campaign is now well underway. Candidates for the 1994 elections have already begun raising and spending funds.
The Court does not accept plaintiffs' contention that the contribution limitations imposed by Initiative 41 harm challengers as a class. However, plaintiffs have convinced the Court that in certain instances, non-incumbent, minor and independent party candidates may be significantly harmed by the limits imposed by Initiative 41. Because Republican, Statehood, Libertarian and Independent Party candidates, for example, operate from a relatively small base of supporters in the District of Columbia, it may be necessary for these candidates to receive contributions in excess of $ 50 and $ 100 to achieve financial parity, or a "level playing field," in their campaigns against other incumbent, major-party and wealthy candidates.
D. HARM TO OTHER PARTIES
Opponents claim that a number of third parties will suffer grave harm if the Court enjoins the Board of Elections from enforcing Initiative 41. These third parties include: candidates who have raised and spent funds for more than half of the election cycle, running successful "low cost" campaigns under the contribution limitations established under Initiative 41;
contributors who have limited their contributions in accordance with the limits imposed by Initiative 41; the Office of Campaign Finance which has altered its regulations and technology to enforce the new contribution limitations;
and District of Columbia voters who passed Initiative 41 by a 2-1 margin.
Plaintiffs assert that the only real harm will accrue to those incumbent office holders who have amassed "war chests" with contributions greater than $ 50 or $ 100 before Initiative 41 became effective. Furthermore, plaintiffs point out that enjoining the new limits imposed by Initiative 41 will not leave this area unregulated because Initiative 41 did not repeal the District's prior campaign contribution limit law.
Evaluating the evidence before the Court at this time, the Court concludes that harms that various third parties will incur if the Court enjoins the Board of Elections from enforcing Initiative 41 are substantial and weigh in favor of denying plaintiffs' application for a preliminary injunction.
E. PUBLIC INTEREST
This case poses strong conflicting public interests. On the one hand, it is in the public's interest to protect the infringement of plaintiffs' constitutional rights. Balanced against this interest, however, is the public's interest in sustaining a law which was passed by an overwhelming margin by the voters of the District of Columbia "to limit campaign contributions so as to prevent improper influence over elected officials and to foster public confidence in the integrity of the government." See Initiative 41. Had plaintiffs demonstrated a substantial likelihood of success on the merits, the Court would hold that they have met the public interest criterion as well because there can be no public interest in enforcing an unconstitutional law, even one enacted by the voters. See Citizens Against Rent Control v. Berkeley, 454 U.S. at 295 ("the voters may no more violate the Constitution by enacting a ballot measure than a legislative body may do so by enacting legislation."). However, given that plaintiffs have failed to establish at this juncture a strong likelihood of success on the merits, the Court concludes that the public interest is best served by denying a preliminary injunction and awaiting further development of the record.
Although plaintiffs have demonstrated that they may be irreparably harmed if the contribution limitations imposed by Initiative 41 continue in effect, weighing the other equitable factors, as this Court must, the Court concludes that plaintiffs have failed to carry their burden of showing they are entitled to injunctive relief. Reviewing plaintiffs' constitutional claims on plaintiffs' application for a preliminary injunction, the Court is not convinced that plaintiffs' constitutional rights are being infringed by Initiative 41. The Court recognizes, however, that it may reach a different outcome when it review plaintiffs' constitutional claims on the merits, either at the summary judgment stage or at trial.
For the reasons stated in this Memorandum Opinion, the Court concludes that the balance of equities favors defendants. Accordingly, the Court denies plaintiffs' application for preliminary injunction.
29th July, 1994.
Thomas F. Hogan
United States District Judge
Upon consideration of plaintiffs' application for a preliminary injunction, defendants', intervenor's and amici's oppositions thereto, the supplemental filings, and the arguments of counsel at the hearing held in open court on July 21, 1994, it is this 29th day of July, 1994,
ORDERED that plaintiffs' application is denied for the reasons stated in the accompanying Memorandum Opinion.
Thomas F. Hogan
United States District Judge