[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED ________________________ U.S. COURT OF APPEALS ELEVENTH CIRCUIT No. 10-13211 JULY 30, 2010 ________________________ JOHN LEY CLERK D. C. Docket No. 4:10-cv-00283-RH-WCS
RICHARD L. SCOTT,
Plaintiff-Appellant,
versus
DAWN K. ROBERTS, In Her Official Capacity as Interim Secretary of State of the State of Florida,
Defendant-Appellee,
IRA WILLIAM McCOLLUM, JR., Intervenor-Defendant-Appellee.
________________________
Appeal from the United States District Court for the Northern District of Florida _________________________
(July 30, 2010)
Before DUBINA, Chief Judge, PRYOR and MARTIN, Circuit Judges. PRYOR, Circuit Judge:
In this emergency appeal from the denial of a motion for a preliminary
injunction, Richard Scott, who is a candidate for the Republican Party for
Governor of the State of Florida, asks that we preliminarily enjoin the enforcement
of a provision of the Florida Election Campaign Financing Act that he contends
violates his rights, under the First and Fourteenth Amendments, to spend unlimited
sums of his personal funds and private donations to his campaign in furtherance of
his candidacy. To date, Scott, who has never run for public office and is largely
self-funding his campaign, has spent more than $21 million in the Republican
primary to defeat his main opponent, Bill McCollum, the current Attorney General
of Florida, who is participating in the public campaign financing system of Florida,
which provides participating candidates with matching public funds to spend on
their campaigns. That system also provides participating candidates like
McCollum with a subsidy when a nonparticipating opponent spends in excess of
$2 for each registered Florida voter, which for this election means almost $25
million. Fla. Stat. §§ 106.34, 106.355.
On July 7, as his campaign expenditures were rapidly approaching the $25
million threshold, Scott filed a complaint in the district court and asked the court to
enjoin preliminarily the operation of the excess spending subsidy. Scott argued
2 that, under Davis v. Federal Election Commission, 554 U.S. - - , 128 S. Ct. 2759
(2008), the excess spending subsidy severely burdened his First Amendment rights
and was not justified by a compelling state interest. The Interim Secretary of State,
as the defendant in her official capacity, and McCollum, as an intervenor in his
individual capacity, defended the excess spending subsidy.
The district court promptly convened a hearing for Scott’s motion,
carefully weighed the competing arguments, and agreed with the first part of
Scott’s complaint, but the district court concluded that the excess spending subsidy
indirectly furthered the interest of Florida in preventing actual or apparent
corruption by encouraging participation in the Florida public campaign financing
system and was narrowly tailored to serve that end. We agree with the district
court that Davis requires Florida to justify its excess spending subsidy by reference
to the anticorruption interest, but conclude that Florida cannot satisfy its burden of
establishing that its subsidy furthers that interest in the least restrictive manner
possible. We reverse the judgment of the district court and preliminarily enjoin the
Secretary of State of Florida from releasing funds to McCollum under the excess
spending provision.
I. BACKGROUND
To explain the background of this appeal, we first address the campaign for
3 the Republican nomination for governor of Florida. We then discuss the Florida
campaign finance laws. Finally, we discuss the procedural history of this appeal.
A. The 2010 Campaign for the Republican Nomination for Governor of Florida
Richard Scott is a candidate for Governor of the State of Florida and is
currently seeking the nomination of the Republican Party for that office. Despite
having never held or campaigned for public office, Scott announced his candidacy
for governor in April 2010. Scott is wealthy and describes himself as a former
“health care executive and businessman.” Last year, he founded an organization,
Conservatives for Patients’ Rights, to “promote free market principles in health
care reform.” Regarding his candidacy, Scott states that he is “running as a
conservative outsider who is a successful businessman with the experience to
create jobs, hold government accountable, and turn the state around.”
Scott’s main opponent in the Republican primary is Ira William (“Bill”)
McCollum Jr., the current Attorney General of Florida. Mike McCalister is the
other candidate for the Republican nomination, is not a party to this appeal, and is
described in the record as a nominal candidate. Unlike Scott, McCollum has a long
history in Florida politics. Before the voters of Florida elected McCollum attorney
general in 2006, McCollum had served for nearly 20 years as a Member of
Congress from Florida. McCollum had also twice campaigned unsuccessfully as a
4 candidate for United States Senator from Florida. By his own admission,
McCollum has substantial “experience running a campaign for statewide office in
Florida.” Consequently, he also has “substantial experience in raising the funds
necessary to finance . . . a political campaign in a state such as Florida in which the
election law limits the amount that individuals can contribute to a candidate.”
McCollum is also familiar with the Florida Election Campaign Financing Act, and
he “consider[ed] the benefits of the Act, as well as the restrictions placed on a
candidate by the Act,” when he decided to participate in the Florida public
campaign financing system.
McCollum elected to participate in the Florida system of public campaign
financing, but Scott did not. Scott contends that he “believe[s] it is unfair to ask
the taxpayers of Florida to subsidize the campaigns of politicians, especially in
these difficult economic times.” Rather than rely on public financing, Scott has
decided to fund his campaign “substantially” with his own money.
Scott has funded a substantial campaign. According to Scott, he has
compensated for his “relatively late entry into the race” and the fact that his
principal opponent is “a politician who has been a fixture in Florida politics since
1980” by spending, between April 9 and July 7 of this year, approximately $21
million in support of his candidacy. Scott maintains that he has spent this money
5 on televison, radio, and mail advertising; travel; and “other voter education
efforts.” He explains that these expenditures have permitted him to “introduce
[him]self to Florida voters, convey [his] political positions, and articulate [his]
policy differences with Mr. McCollum and other gubernatorial candidates in a
relatively short period of time.”
Not surprisingly, these large expenditures, in Scott’s words, “have proven to
be extremely successful” in assisting his candidacy. According to a poll of likely
voters in the Republican primary conducted by Quinnipiac University, on June 10,
2010, Scott led McCollum 44 percent to 31 percent. But opinion polls of random
selections of voters are snapshots with margins of error, and campaigns are, to say
the least, dynamic projects.
After McCollum’s campaign manager, Jack Williams, “observed Mr. Scott’s
extensive radio and television campaign advertising throughout Florida,” the
McCollum campaign responded to Scott’s expenditures by altering its advertising
strategy. The McCollum campaign purchased advertising “many weeks before
originally planned.” According to Williams, McCollum spent $1 million on radio
and television advertising through May 2010 and another $2.2 million through July
10, 2010. As of July 10, McCollum had $800,000 left to spend on his campaign,
but McCollum is still scheduled to receive (if he has not already received) upwards
6 of $2 million in public funds to match private qualified contributions he has raised.
Notwithstanding the apparent success of his expenditures, Scott alleges he
has recently curtailed his campaign spending to avoid triggering a public subsidy
afforded to his opponent under the public financing system. The Florida public
financing system provides a subsidy to a participating candidate when an opposing
candidate who has chosen not to participate in public financing exceeds the
statutory expenditure limit, which for this election is $24,901,170, or $2 for each
registered voter. Fla. Stat. §§ 106.34, 106.355. Under the public financing system,
if Scott spends over this amount, any participating opponent in the Republican
primary for the nomination of governor is entitled to one public dollar for every
dollar Scott spends over the limit. Id. § 106.355.
In his declaration, Scott alleged that, as he has approached this limit, he has
reduced his campaign spending “in a drastic manner” to ensure that he is enabling
McCollum’s campaign for as few days as possible. He stated that from June 25 to
July 2, he “cut by roughly half” the total amount of television time purchased for
certain advertisements and limited the markets in which he ran those ads. Scott
alleged that he halted all television and radio advertisements from July 3 to July 6.
Scott asserted that he also cut by 40 percent the total amount of television time that
he purchased for certain advertisements from July 7 to July 13. Scott stated that he
7 relied more on advertising purchased by a section 527 organization that he controls
because the spending of that section 527 organization does not count as a campaign
expenditure. The advertising purchased by the section 527 organization could not
by law directly advocate Scott’s election and was more expensive than
advertisements that Scott could have purchased through his campaign because
campaigns receive a discount under Florida law. Scott also alleged that he had
reduced campaign travel for the two weeks preceding July 7. Scott also stated that
he reduced spending on his absentee ballot program from approximately $1 million
to $500,000. Scott asserted that he reduced voter-contact mail; limited staff hiring;
reduced the use of paid callers to contact potential voters; and curtailed fundraising
efforts.
Despite these reductions, Scott estimates that he will exceed the expenditure
threshold “well before” the Republican primary on August 24. Scott does not
expect that his reluctance to spend money on his campaign will abate when he
exceeds that threshold. After he exceeds the threshold, Scott will “engage in less
campaign speech than would be the case if [his] opponents were not eligible to
receive subsidies under section 106.355.” Scott explains that he has a
constitutional right to avoid providing his opponents “with a competitive
advantage and in turn permitting them to counteract and diminish [his] campaign
8 speech.”
B. The Florida Laws Regarding the Financing of Election Campaigns
Florida laws regulate campaign financing for all candidates, political
committees, committees of continuous existence, electioneering communication
organizations, and political parties. Id. §§ 106.011–106.36. A candidate may not
accept a contribution in excess of $500 from any person, political committee, or
committee of continuous existence during an election. Id. § 106.08(1)(a). The
statute defines a “person” as “an individual or a corporation, association, firm,
partnership, joint venture, joint stock company, club, organization, estate, trust,
business trust, syndicate, or other combination of individuals having collective
capacity.” Id. § 106.011(8). For the purpose of contribution limits, the statute
considers primary and general elections separate elections for all opposed
candidates. Id. § 106.08(1)(c). By law, a candidate for statewide office may not
accept contributions that exceed $250,000 in the aggregate from national, state, or
county executive committees of a political party. Id. § 106.08(2)(b). Florida law
does not limit the amount that a candidate may contribute personally to his
campaign. Id. § 106.08(1)(b)(1). All candidates must file regular reports of all
contributions received and all expenditures made by or on behalf of such candidate
with the Division of Elections. Id. §§ 106.07, 106.075.
9 Florida law does not consider “an expenditure made for, or in furtherance of,
an electioneering communication . . . a contribution to or on behalf of any
candidate.” Id. § 106.011(18)(c). An electioneering communication is defined as
any communication that is publically distributed by television, radio, satellite,
newspaper, magazine, direct mail, or telephone, and that “clearly identifie[s] [a]
candidate for office without expressly advocating the election or defeat of a
candidate.” Id. § 106.011(18)(a). The parties understand Florida law to permit a
candidate to further his campaign by coordinating electioneering expenditures with
organizations commonly known as section 527 organizations, which draw their
name from the Internal Revenue Code that grants them tax-exempt status. See
I.R.C. § 527. Section 527 of the Internal Revenue Code provides that an
organization “operated primarily for the purpose of directly or indirectly accepting
contributions or making expenditures” need not declare contributions, dues or
fundraising proceeds as income if the money is used for “the function of
influencing or attempting to influence the selection, nomination, election, or
appointment of any individual to any Federal, State, or local public office.” Id.
§ 527(c), (e). Unlike political action committees that directly advocate for the
election or defeat of a candidate, most section 527 organizations indirectly support
a candidate by electioneering communications and thus avoid regular disclosure of
10 expenditures and contributions to the Federal Elections Commission. See id.
§ 527(j).
In 2005, the Florida Division of Elections interpreted Florida law to mean
that expenditures of section 527 organizations that were coordinated with
candidates did not constitute contributions to those candidates. Electioneering
Communications, DE 05-04 (Fla. Div. of Elections June 28, 2005). The Secretary
informed the district court that electioneering expenditures also do not constitute
candidate expenditures. A recent federal court decision that invalidated the
provision of Florida election law upon which that interpretation is based calls into
question whether this coordination remains legal. See Broward Coal. of Condo.,
Homeowners Ass’n & Cmty. Orgs. Inc. v. Browning, No.4:08-cv-445-SMP (N.D.
Fla May 22, 2009). Regardless, the parties agree that candidates continue to
coordinate with section 527 organizations.
In 1986, the Florida Legislature passed the Florida Election Campaign
Financing Act, 1986 Fla. Sess. Law Serv. ch. 86-276 (codified at Fla. Stat.
§§ 106.30–106.36). The Act establishes a system that provides matching public
funds to candidates for state political offices who agree to certain conditions. To
be eligible to participate in the system, a gubernatorial candidate must submit an
application for matching funds, Fla. Admin. Code Ann. r. 1S-2.047(1); be an
11 opposed candidate, Fla. Stat. § 106.33; agree to abide by an expenditure limit,
which for the 2010 election is $24,901,170, id. § 106.34; raise an initial $150,000
in qualified contributions from Florida residents before receiving any public funds,
id. § 106.33(2)(a)(1); agree to limit loans or contributions from his personal funds
to $25,000, id. §106.33(3); limit contributions from national, state, and county
executive committees of a political party to $250,000 in the aggregate (this limit
applies to all candidates participating or not), id.; submit disclosure and reporting
statements of each qualified contribution, id. § 106.35(3)(a); and submit a post-
election audit of the campaign account, id. § 106.33(4). The Secretary represented
to the district court that a participating candidate, like a nonparticipating candidate,
remains free to coordinate electioneering expenditures with section 527
organizations, and these expenditures do not count toward the participating
candidate’s expenditure limit. See id. § 106.011(18)(c).
After the Division of Elections for the State of Florida certifies a candidate
as eligible to participate in the system, the candidate is entitled to receive matching
funds for certain qualifying contributions. Id. § 106.35. Participating candidates
remain subject to the $500 cap on campaign contributions from persons or
committees, id. § 106.08(1)(a), but become eligible as participants in the public
financing system to receive matching state funds, up to $250, for each contribution
12 made by a Florida resident after September 1 of the calendar year before the
election, id. § 106.35(2)(b). The state matches only $250 for aggregate
contributions from an individual that exceed $250. For each dollar of a qualifying
contribution that makes up all or part of the initial $150,000 in contributions a
gubernatorial candidate must initially raise, the state provides the participating
candidate $2 in public funds. Id. § 106.35(2)(a)(1). After the participating
candidate raises the initial $150,000 in contributions, the state matches qualifying
contributions dollar for dollar. Id. § 106.35(2)(a)(2).
In 1991, the Florida Legislature adopted section 106.355, which includes the
excess spending subsidy that is the focus of this appeal. Section 106.355 provides
a subsidy to a participating candidate when an opposing candidate who does not
participate in public financing exceeds the statutory expenditure limit, which for
this election is $24,901,170. 1991 Fla. Sess. Law Serv. ch. 91-107 § 24 (codified
at Fla. Stat. § 106.355). Unlike the public funds that a participating candidate
receives from the state that match private contributions to that candidate, the
excess spending subsidy is tied to the spending of the participating candidate’s
opponent; Florida provides the participating candidate a dollar for every dollar his
nonparticipating opponent expends above the statutory expenditure limit. Fla. Stat.
§ 106.355. This dollar-for-dollar subsidy is not a matching fund because the
13 participating candidate receives the subsidy regardless of any effort that he makes
to raise funds for his campaign. See id. (“[These] funds shall not be considered
matching funds.”). This section also provides that a participating candidate is
released from the expenditure limit to the extent that his nonparticipating opponent
exceeds the limit. Id. Participating candidates remain eligible for matching funds
up to the statutory expenditure limit for qualified private contributions and are
released from a penalty that would require reimbursement of funds for
contributions that exceed the expenditure limit. Id. Additionally, in enacting this
subsidy, the legislature declared that “[i]f any provision of the [1991 A]ct, or the
application thereof . . . is held invalid, the invalidity shall not affect other
provisions . . . of the [A]ct which can be given effect without the invalid
provision.” 1991 Fla. Sess. Law Serv. ch. 91-107 § 36.
The Florida Legislature declared that it created the public financing system
out of concern that the cost of running “an effective campaign for statewide office
. . . discourage[s] persons from becoming candidates” and “limit[s] the persons
who run for such office to those who are independently wealthy,” or those who are
supported by political committees or special interest groups that are capable of
generating substantial contributions. Fla. Stat. § 106.31. According to the
enabling statute, “the purpose of public campaign financing is to make candidates
14 more responsive to the voters of the State of Florida and as insulated as possible
from special interest groups,” and to dispel “the misperception [that] government
officials [are] unduly influenced by those special interests to the detriment of the
public interest.” Id. That statute also provides that the public campaign financing
system is intended to “encourage qualified persons to seek statewide elective office
who would not, or could not otherwise do so and to protect the effective
competition by a candidate who uses public funding.” Id. The legislature declared
its “interest in strengthening the integrity of, and public confidence in, the electoral
process.” 1991 Fla. Sess. Law Serv. ch. 91-107, pmbl.
C. Procedural History
On July 7, after Scott decided that his expenditures would trigger the public
subsidy, Scott filed a complaint against Dawn Roberts, the Interim Secretary of
State of Florida. Scott asked the district court to declare unconstitutional the
provision of section 106.355 that creates the excess spending subsidy and to enjoin
the Secretary from enforcing it. Scott’s complaint asserted two counts: count one
alleged that the excess spending subsidy “chills free speech by imposing a
substantial burden on Mr. Scott’s well-established right to spend his own funds in
support of his own candidacy” in violation of the First and Fourteenth
Amendments; and count two alleged that the excess spending subsidy “treats
15 candidates differently with respect to campaign expenditures based solely on
whether the candidate has elected to participate in the public financing system.”
According to count two of the complaint, the excess spending subsidy requires
Florida to subsidize the campaign of a participant, but not of a nonparticipant, after
a nonparticipant exceeds the expenditure threshold, in violation of the Equal
Protection Clause of the Fourteenth Amendment. Scott did not pursue count two
in the district court and has not pursued it in this appeal.
Also on July 7, Scott moved the district court for a preliminary injunction
and requested a hearing on his motion by July 16. In a memorandum of law that he
filed with his motion, Scott argued that the decision of the Supreme Court of the
United States on June 8, 2010, to stay the mandate in an appeal from the United
States Court of Appeals for the Ninth Circuit, which involved a materially similar
subsidy provision, and to lift the stay that the district court had entered after
enjoining the provision, suggested that he was likely entitled to preliminary relief.
See McComish v. Bennett, - - S. Ct. - -, No. 09A1163 (June 8, 2010); see also
McComish v. Bennett, - - F.3d - - , Nos. 10-15165, 10-15166, slip op. 9139 (9th
Cir. June 23, 2010); McComish v. Brewer, No. CV-08-1550-PHX-ROS (D. Ariz.
Jan. 20, 2010). Scott also argued that the harm caused by the excess spending
subsidy to his constitutional rights had become “ongoing and irreparable.”
16 On July 14, the district court held a hearing about Scott’s motion for a
preliminary injunction. Scott, the Secretary, and McCollum, whom the district
court permitted to intervene under Federal Rule of Civil Procedure 24(b),
participated in the hearing, and the district court permitted each side about one
hour to make arguments.
The record before the district court consisted of five affidavits and the
parties’ briefs. Scott and McCollum submitted affidavits consistent with the facts
above. Jack Williams, McCollum’s campaign manager, submitted an affidavit
opposing the motion for a preliminary injunction that is consistent with the facts
above. Stephen Hazelton, the president and director of a media placement
company, submitted an affidavit on behalf of McCollum’s memorandum in
opposition that explains, in his opinion, the costs associated with television
advertisements in Florida and the importance of establishing a strategic media plan
early in a campaign. Sarah Bradshaw, the Assistant Director of the Florida
Division of Elections, who is responsible for overseeing the Florida public
financing system, submitted an affidavit that explains the system and verifies the
applicable expenditure limit.
Before the district court, Scott argued that the First and Fourteenth
Amendments guarantee him the right to “spend unlimited amounts” of his personal
17 funds to support his campaign and guarantee his campaign the right to spend an
unlimited amount to secure his election. See Buckley v. Valeo, 424 U.S. 1, 55–59,
96 S. Ct. 612, 652–54 (1976). He argued, based on Davis v. Federal Election
Commission, 128 S. Ct. 2759, that the excess spending subsidy severely burdened
his exercise of that First Amendment right and was thus subject to strict scrutiny,
which it could not survive. Scott did not contest that Florida could release
McCollum from the expenditure limit affecting participating candidates after Scott
exceeded that spending limit. Scott urged the district court to grant a preliminary
injunction because he was likely to prevail later on the merits, the injury he was
experiencing and would be experiencing is irreparable, and the equities and public
interest do not counsel against relief.
The Secretary and McCollum responded that Scott’s claims were unlikely to
succeed on the merits because the subsidy did not burden Scott’s speech rights.
They argued that the subsidy only permitted Scott’s opponents to speak. They
asserted that any burden was justified by the interest of the state in “preventing
corruption and the appearance of corruption as well as encouraging participation in
the public campaign financing system as a means of preventing corruption.” They
argued that Davis is inapposite because the Florida system for public financing of
campaigns does not at any point impose asymmetrical contribution limits on
18 participating and nonparticipating candidates. Finally, they urged the district court
not to grant preliminary relief because Scott was unlikely to prevail later on the
merits and had unnecessarily delayed filing suit. Moreover, they argued that it
would be inequitable to force McCollum to rearrange his campaign strategy, which
anticipated the subsidy, and deprive the public of two powerful and competing
voices during the final weeks of the campaign.
After hearing from the parties, the district court stated, on the record, its
thorough findings of “the facts that deal with these candidates and this election.”
The district court found that McCollum had opted to participate in the public
financing system, would receive public funds based upon his qualifying
contributions, and was not going to exceed the expenditure cap governing
participating candidates. The district court also found that Scott had opted not to
participate and that he would exceed the expenditure threshold and entitle
McCollum to receive excess spending subsidies. The district court also found that
McCollum would have participated in the public funding system and raised as
much money as he had even if there had been no provision for an excess spending
subsidy. It found that McCollum “probably would have spent the same amount he
has spent, or very nearly the same amount that he has spent, with or without” a
provision for an excess spending subsidy. McCollum “probably spent mostly in
19 response to Mr. Scott’s expenditures, and not so much in reliance on the
availability of [a subsidy] later on.” The district court also found that McCollum
could not reasonably have planned his campaign in reliance on the subsidy because
the issue of its legality “was out there, and it has been out there . . . and will be
after today.”
The district court found that Scott would have “done just as he has done with
or without” the excess spending subsidy. The district court explained that there is
“no reason to conclude that [Scott] has changed his behavior up to this point for
fear that the [subsidy] would be triggered,” but the district court found that the
excess spending subsidy “will make a substantial difference going forward. If [the
excess spending subsidy] remains in place, Mr. Scott probably will reduce his
direct spending, either because he does not want to make funds available to Mr.
McCollum, or because Mr. Scott will be able to get his message out through 527s,
or in some indirect way.” The district court stated that, if “that happens, voters will
hear only indirectly rather than directly from Mr. Scott, which, of course, is a First
Amendment issue.”
The district court denied Scott’s motion for a preliminary injunction. The
district court concluded that Scott had established irreparable harm and that the
equities and the public interest did not clearly favor one side over the other. For
20 this reason, the district court stated that, if Scott were likely to prevail on the
merits, it would grant preliminary relief. With regard to the merits, the district
court concluded that the subsidy provision was probably constitutional. The
district court agreed with Scott that, under Davis, the subsidy provision imposed a
substantial burden on Scott’s right to free speech and could be justified only by a
compelling government interest. According to the district court, “The provision at
issue [in Davis] raised the cap for the opponent, so that the opponent could go out
and raise money and possibly spend it against the candidate. Here, it’s not just a
potential dollar. It’s a certain dollar.” The district court recognized that whether
the excess spending subsidy was narrowly tailored to the anticorruption interest
was a “very close issue” and it offered, under considerable time pressures, its “best
analysis of the law as it stands.”
The district court concluded that Florida had a compelling interest in
preventing actual and apparent corruption that justified the excess spending
subsidy. It adopted a theory that neither party had suggested and that the district
court conceded had no basis in the statutory language or the legislative history.
According to the district court, the legislature adopted a $500 contribution limit
applicable to all candidates to combat corruption or the appearance of corruption.
“But the legislature may not have wanted to hamstring a candidate.” The district
21 court posited that the legislature could have addressed that concern by raising “the
limit when a nonparticipant went over the cap.” The court stated that such a
solution would be permissible under Davis because “Davis expressly said that, if
the provision raised the contribution limit for both candidates, for all candidates, it
would be constitutional.” The district court, however, explained that the legislature
may not have wanted to adopt that solution because “keeping the $500 limit fights
corruption better.” Additionally, “raising the limit late in the game isn’t very
workable” because it would be difficult for “candidates [to] go back to his or her
contributors and seek more money.” The district court concluded that the
legislature “could reasonably decide, I’m not going to raise the limit; I don’t want
to hamstring the candidate who has opted in; and, thus, promoting the
anticorruption goal.” “And so the legislator can reasonably say, what I’m going to
do is match the expenditures by the candidate that goes over. That way, I have
offset the effect of the $500 cap on contributions.” The district court conceded that
it could find “no legislative history that sets it out quite like that,” but stated that it
found “it telling that the $500 cap came in at the same time as public financing,
and that the [excess spending subsidy] came in as part of it.”
II. STANDARD OF REVIEW
We review the decision to deny a preliminary injunction for abuse of
22 discretion. Solantic, LLC v. City of Neptune Beach, 410 F.3d 1250, 1253–54
(11th Cir. 2005). In so doing, we review the findings of fact of the district court
for clear error and legal conclusions de novo. This That & the Other Gift &
Tobacco, Inc. v. Cobb Cnty., Ga., 285 F.3d 1319, 1321 (11th Cir. 2002).
A party seeking a preliminary injunction bears the burden of establishing its
entitlement to relief. Citizens for Police Accountability Political Comm. v.
Browning, 572 F.3d 1213, 1217 (11th Cir. 2009). In considering the propriety of
preliminary relief, we consider four factors: (1) whether there is a substantial
likelihood that the party applying for preliminary relief will succeed later on the
merits; (2) whether the applicant will suffer an irreparable injury absent
preliminary relief; (3) whether the harm that the applicant will likely suffer
outweighs any harm that its opponent will suffer as a result of an injunction; and
(4) whether preliminary relief would disserve the public interest. E.g., Burk v.
Augusta-Richmond Cnty., 365 F.3d 1247, 1262–63 (11th Cir. 2004). When the
state is a party, the third and fourth considerations are largely the same. Garcia-
Mir v. Meese, 781 F.2d 1450, 1455 (11th Cir. 1986).
III. DISCUSSION
Scott contends that he is entitled to a preliminary injunction because his
complaint under the First and Fourteenth Amendments is likely to succeed, the
23 burden on his right to free speech is irreparable, and, as the district concluded, the
balance of the harms and the public interest do not counsel against an injunction.
The Secretary and McCollum disagree with all of those statements. We agree with
Scott.
We address the propriety of preliminary relief in four parts. First, we
explain that Scott is highly likely to succeed on his claim that the excess spending
subsidy severely burdens his constitutional rights. Second, we explain why Scott’s
injury is irreparable. Third, we explain that the balance of the harms and
considerations of the public interest do not counsel against relief. Fourth, we
conclude by addressing the propriety of preliminary relief in the light of our
analysis in the first three sections.
A. Scott’s First Amendment Claim Is Likely to Succeed on the Merits.
Scott argues that the excess spending subsidy is unconstitutional because it
severely burdens his right to spend in support of his candidacy and is thus subject
to strict scrutiny, which it cannot survive. He argues that Davis compels this
conclusion. The Secretary and McCollum respond that the subsidy does not
substantially burden Scott’s right to spend in support of his candidacy and is not
subject to strict scrutiny. They argue that Davis is inapposite, but even if it applies,
they argue that the subsidy survives strict scrutiny because it furthers the legitimate
24 interest of Florida in preventing corruption and the appearance of corruption in
politics. They contend that the subsidy encourages participation in the public
campaign financing system and the public financing system prevents corruption
and the appearance of corruption.
We agree with Scott that Davis requires us to subject the excess spending
subsidy to strict scrutiny. We conclude that, even if the subsidy encourages
participation in the public financing system and indirectly prevents corruption or
the appearance of corruption, the excess spending subsidy is not the least
restrictive means of doing so.
Like the district court, we think it is obvious that the subsidy imposes a
burden on nonparticipating candidates, like Scott, who spend large sums of money
in support of their candidacies. When a nonparticipant vying for public office in
Florida spends more than $2 for each registered voter in support of his candidacy,
Florida provides direct financial support to his opponents. These participating
opponents use this money to further their own candidacies and attempt to defeat
the candidacy of the nonparticipant. When the participating candidates speak in
support of their own candidacies, they raise the cost of their nonparticipating
opponent’s speech in support of his candidacy. Neither McCollum nor Scott
disagrees with this fact. Indeed, that is why Scott is seeking to invalidate the
25 subsidy and McCollum is defending it. Moreover, we know of no court that
doubts that a subsidy like the one at issue here burdens nonparticipants, apart from
whether it is a substantial burden under the First Amendment. See Green Party of
Conn. v. Garfield, - - F.3d - - , Nos. 09-3760-cv(L), 09-3941-cv(CON), slip op. 1,
at 49 (2d Cir. July 13, 2010); McComish, slip op. at 9164 (acknowledging but not
finding constitutionally significant the loss of “competitive advantage in
elections”); N.C. Right to Life Comm. Fund for Indep. Political Expenditures v.
Leake, 524 F.3d 427, 437 (4th Cir. 2008) (same); Daggett v. Comm’n on
Governmental Ethics & Election Practices, 205 F.3d 445, 464–65 (1st Cir. 2000)
(same).
We agree with Scott and the district court that, under Davis, the burden of
Scott’s right of free speech is substantial. Davis, a candidate for the United States
House of Representatives, sued to enjoin enforcement of section 319(a) of the
Bipartisan Campaign Reform Act of 2002, otherwise known as the “Millionaire’s
Amendment.” 128 S. Ct. at 2766–67. Section 319(a) provided that, if Davis spent
enough of his own personal funds in support of his candidacy so that he could be
described as self-financing, his opponent could accept campaign contributions of
up to $6,900. Id. at 2766 & n.5. Davis would still have been limited to accepting
campaign contributions of $2,300 or less. Id. at 2766. Davis alleged that the
26 asymmetrical contribution limits that applied when he self-funded his campaign
unconstitutionally burdened his right to make unlimited expenditures in support of
his campaign “because making expenditures that create the imbalance has the
effect of enabling his opponent to raise more money and to use that money to
finance speech that counteracts and thus diminishes the effectiveness of” his own
speech. Id. at 2770. The Supreme Court agreed with this argument and
invalidated the Millionaire’s Amendment because it did not satisfy a compelling
government interest. Id. at 2772–74. Davis described as an “unprecedented
penalty,” a “special and potentially significant burden,” a “drag,” an “abridgment,”
and a “substantial burden” the grant of the right to an opponent to raise funds under
a relaxed contribution cap. Id. at 2771–72. That is, a candidate exercising his right
to spend without restriction his personal funds on his campaign is burdened
substantially when his opponent is permitted the opportunity to raise more money
than he otherwise would have been permitted to raise.
Like both the district court and the Second Circuit, we conclude that the
burden that an excess spending subsidy imposes on nonparticipating candidates “is
harsher than the penalty in Davis, as it leaves no doubt” that the nonparticipants’
opponents “will receive additional money.” Green Party, slip op. at 49 (emphasis
omitted). Although Davis concerned a discriminatory contribution system that
27 burdened a self-funding candidate, what triggered strict scrutiny was the grant of a
competitive advantage—an increase in the ability of Davis’s opponent to speak.
128 S. Ct. at 2772 (“[T]he vigorous exercise of the right to use personal funds to
finance campaign speech produces fundraising advantages for opponents in the
competitive context of electoral politics.”). Davis also cited Day v. Holahan, 34
F.3d 1356, 1359–60 (8th Cir. 1994), which involved a subsidy to publicly financed
candidates that was tied to independent expenditures against those candidates, for
the proposition that the Millionaire’s Amendment imposed a “special and
potentially significant burden.” 128 S. Ct. at 2772. That is, the Supreme Court
equated the Millionaire’s Amendment with a statute that enabled the opponent of a
complaining candidate. Moreover, we doubt that the Court would describe as such
a significant burden the relaxation of a contribution limit that only ever applies to
candidates who, by definition, are mostly not relying on contributions. Finally, the
majority opinion in Davis, after establishing that the Millionaire’s Amendment
warranted strict scrutiny, all but stated that it was not thinking about the law in
terms of contribution limits. See id. at 2772 n.7 (“Even if § 319(a) were
characterized as a limit on contributions rather than expenditures, it is doubtful
whether it would survive.”).
Although under Davis the subsidy must be “justified by a compelling state
28 interest,” id. at 2772 (internal quotation marks omitted), the Secretary and
McCollum insist that the subsidy satisfies that test. They argue that the excess
spending subsidy furthers the interest of the state in fighting corruption and the
appearance of corruption, which the Supreme Court has suggested is probably the
only compelling interest that can justify a substantial burden on expenditures. See
id. at 2773 (citing Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377, 428, 120 S. Ct.
897, 926 (2000) (Thomas, J., dissenting) (“[P]reventing corruption or the
appearance of corruption are the only legitimate and compelling government
interests thus far identified for restricting campaign finances.” (internal quotation
marks omitted))). The Secretary and McCollum contend that the subsidy furthers
the anticorruption interest by encouraging participation in the public campaign
financing system of Florida, which in turn prevents corruption or the appearance of
corruption. This argument is not novel. See Gable v. Patton, 142 F.3d 940, 947
(6th Cir. 1998); cf. Fed. Election Comm’n v. Nat’l Conservative Political Action
Comm., 470 U.S. 480, 514–18, 105 S. Ct. 1459, 1477–79 (1985) (White, J.,
dissenting). We are willing to assume, for the sake of argument, that the subsidy
encourages participation in the public financing system of Florida. See Gable, 142
F.3d at 950.
The parties have not sufficiently explained how the Florida public financing
29 system furthers the anticorruption interest. As we understand the system, it enables
candidates who are willing to accept limits on personal expenditures and campaign
expenditures, and it grants participating candidates public money. In all other
respects, the system enables candidates who run campaigns that are
indistinguishable from the campaigns of nonparticipants like Scott. At this early
stage, we outline our concerns as follows.
The limit that the public campaign financing system imposes on the personal
expenditures of participating candidates does not appear to reduce corruption or the
appearance of corruption. The Supreme Court has explained that “the use of
personal funds reduces the candidate’s dependence on outside contributions and
thereby counteracts the coercive pressures and attendant risks of abuse” of
campaign contributions. Buckley, 424 U.S. at 53, 96 S. Ct. at 651. The Supreme
Court reaffirmed this principle in Davis when it held that discouraging the use of
personal funds by wealthy candidates for federal office “disserves the
anticorruption interest.” 128 S. Ct. at 2773. Thus, by encouraging individuals to
accept a limit on personal expenditures, the subsidy does not appear to reduce
corruption.
The limit on general campaign expenditures also does not appear to enable
candidates who are, or may be perceived as being, less corrupt than their
30 nonparticipating peers. As we have explained, in Florida, every candidate for
public office, whether participating or not, is subject to a $500 limit on campaign
contributions. Fla. Stat. § 106.08(1)(a). And when contributions are so limited,
the Supreme Court has told us that a limit on general campaign expenditures does
not serve the anticorruption interest. “The major evil associated with rapidly
increasing campaign expenditures is the danger of candidate dependence on large
contributions.” Buckley, 424 U.S. at 55, 96 S. Ct. at 652. And “[t]he interest in
alleviating the corrupting influence of large contributions is served by . . .
contribution limitations.” Id. Indeed, in a state like Florida that aggressively limits
campaign contributions, general campaign expenditures, excepting those of self-
funding candidates, reflect “the size and intensity of the candidate’s support.” Id.
at 56, 96 S. Ct. at 652.
At bottom, the Florida public campaign financing system appears primarily
to advantage candidates with little money or who exercise restraint in fundraising.
That is, the system levels the electoral playing field, and that purpose is
constitutionally problematic. Id. at 56–57, 96 S. Ct. at 652–53. The Supreme
Court explained in Davis, “[d]ifferent candidates have different strengths” and
“[l]eveling electoral opportunities means making and implementing judgments
about which strengths should be permitted to contribute to the outcome of an
31 election.” 128 S. Ct. at 2773–74; see also Buckley, 424 U.S. at 56–57, 96 S. Ct. at
653 (“[T]he equalization of permissible campaign expenditures might serve not to
equalize the opportunities of all candidates, but to handicap a candidate who lacked
substantial name recognition or exposure of his views before the start of the
campaign.”). The Supreme Court has explained that a state cannot burden a
candidate’s First Amendment rights for the reason that, in Scott’s words, “he is a
newcomer to the political scene who has the financial resources to mount a
credible challenge to entrenched career politicians.”
None of this is to say that the public financing system of Florida does not
benefit the people of Florida or that public financing generally is not a system
worthy of public resources. Buckley, 424 U.S. at 92–93, 96 S. Ct. at 670
(explaining that a federal system of public financing of election campaigns
represents a legislative effort “not to abridge, restrict, or censor speech, but rather
to use public money to facilitate and enlarge public discussion and participation in
the electoral process, goals vital to a self-governing people” and thereby “furthers
. . . pertinent First Amendment values”). In some circumstances, public financing
may serve an anticorruption interest by “eliminating the improper influence of
large private contributions.” Id. at 96, 96 S. Ct. at 671. It is only to say that
Florida, in the light of the election laws it has adopted, cannot impose a “special
32 and potentially significant burden,” Davis, 128 S. Ct. at 2772, on the First
Amendment rights of nonparticipating candidates who do not wish, for whatever
reason, to accept public money and its attendant limitations on the theory that its
public financing system reduces actual or apparent corruption. Perhaps the parties,
under the supervision of the district court, may want to develop the record more
about this matter.
Even if we were certain that the public financing system of Florida furthers
an anticorruption interest, we agree that Scott has proved a likelihood that the
excess spending subsidy is not the least restrictive means of encouraging that
participation. Scott argues that Florida can effectively encourage participation in
“innumerable ways.” Scott contends that Florida could provide a larger initial
grant of public funds to participating candidates, increase the amount of its
matching contributions on qualifying fundraising, or institute progressively higher
matching ratios for participating candidates who prove able to raise money from
contributors. Scott also does not object to the provision that releases McCollum
from the expenditure ceiling that applies to publicly funded candidates after Scott
exceeds that same ceiling. Although at some point even enticements not tied to
protected speech might render a “voluntary” public financing system that includes
expenditure limits compulsory in violation of the First Amendment, e.g., N.C.
33 Right to Life Comm., 524 F.3d at 436, we accept for purposes of this appeal
Scott’s concession that Florida could implement these rules.
We agree with Scott that Florida could encourage participation to virtually
the same degree that it maintains it currently does by doing no more than releasing
participating candidates from the expenditure ceiling. This release would place
participating and nonparticipating candidates on equal footing, except that
participating candidates could not spend as much of their own personal resources
in support of their campaigns. So the only prospective candidates who would
resist participating under this system would be the wealthy, who already have less
incentive to join. Consequently, this system would be no less effective than the
system currently in place, but would burden nonparticipating candidates to a lesser
degree. Florida has given us no reason to think that this system would be less
effective, which is its burden when one of its laws is subject to strict scrutiny under
the First Amendment. E.g., United States v. Playboy Entm’t Grp., Inc., 529 U.S.
803, 816–17, 120 S. Ct. 1878, 1887–88 (2000).
In sum, Davis requires that Florida justify the excess spending subsidy by
establishing that it furthers a compelling state interest. Florida has stated that the
excess spending subsidy furthers its anticorruption interest by encouraging
participation in its public financing system. Florida has not, however, proved that
34 the excess spending subsidy furthers the anticorruption interest in the least
restrictive manner. Scott is likely to prevail on the merits of his claim.
B. Scott’s Injury Is Irreparable.
Scott argues that the harm he stands to suffer if we do not grant preliminary
relief is “irreparable.” Scott contends that when he triggers the excess spending
subsidy, he will speak less than he wants. Moreover, he states that he will direct
more of his speech through section 527 organizations, which cannot speak
unfettered in favor of his candidacy. The district court credited these claims.
Neither the Secretary nor McCollum denies that these harms will accrue if we do
not enjoin enforcement of the excess spending subsidy. Instead, they argue that
Scott has no right, under the First Amendment, to avoid those harms, but that
argument is about whether Scott is likely to succeed later on the merits.
Scott’s alleged injury is obviously irreparable. An injury is irreparable “if it
cannot be undone through monetary remedies.” Cunningham v. Adams, 808 F.2d
815, 821 (11th Cir. 1987). Even when a later money judgment might undue an
alleged injury, the alleged injury is irreparable if damages would be “difficult or
impossible to calculate.” Fla. Businessmen for Free Enter. v. City of Hollywood,
648 F.2d 956, 958 n.2 (5th Cir. Unit B June 1981). We have repeatedly held that
harms to speech rights “‘for even minimal periods of time, unquestionably
35 constitute[] irreparable injury’” supporting preliminary relief. Id. at 958 (quoting
Elrod v. Burns, 427 U.S. 347, 373, 96 S. Ct. 2673, 2690 (1976)); see also KH
Outdoor, LLC v. City of Trussville, 458 F.3d 1261, 1271–72 (11th Cir. 2006);
Let’s Help Fla. v. McCrary, 621 F.2d 195, 199 (5th Cir. 1980). “The rationale
behind these decisions [is] that chilled free speech . . . , because of [its] intangible
nature, could not be compensated for by monetary damages; in other words,
plaintiffs could not be made whole.” Ne. Fla. Chapter of the Ass’n of Gen.
Contractors of Am. v. City of Jacksonville, Fla., 896 F.2d 1283, 1285 (11th Cir.
1990). Scott has established irreparable injury.
C. Each Candidate Will Suffer if He Loses This Appeal, and a Preliminary Injunction Would Not Be Adverse to the Public Interest.
The parties have opposite views of the relative magnitude of the harms
likely to befall them if we grant or deny preliminary relief. Scott argues that the
harm so far inflicted upon his ability to speak in support of his campaign is
“significant” and “will only deepen” if we do not enjoin operation of the excess
spending subsidy. Scott argues that the Secretary has no interest in enforcing the
subsidy and that McCollum would not be harmed by an injunction because he
would remain free to fundraise and spend money in support of his candidacy free
of the expenditure cap under which he is currently operating. McCollum responds
that he would be seriously harmed by an injunction because it would “leave him at
36 a severe disadvantage for the crucial homestretch of the campaign and would
impede his ability to convey his message to the electorate.” The Secretary, for her
part, contends that an injunction would generate chaos in the final weeks of the
campaign and disserve the anticorruption interest of the state. McCollum echoes
the concern that an injunction would “thwart the State from running a fair and
orderly gubernatorial election.” The Secretary and McCollum also maintain that
we should consider that Scott could have filed suit to enjoin the excess spending
subsidy at least three months ago and that participating candidates like McCollum
have developed campaign strategies in reliance on the subsidy, but we doubt that
an earlier complaint would have been ripe so as to satisfy the constitutional
requirements of a justiciable controversy. Texas v. United States, 523 U.S. 296,
300, 118 S. Ct. 1257, 1259–60 (1998). Scott replies that his opponents could not
reasonably have relied on the subsidy in the light of the legal cloud that has long
surrounded such laws.
No party to this appeal is obviously worse served by a preliminary
injunction. On this record, we think that each candidate will speak less if he loses
this appeal. Scott will avoid aiding his opponent and McCollum will have less
money to support his campaign. We cannot say that the public has an interest in
hearing more or less from either party.
37 We also cannot say that enjoining the subsidy will disrupt the looming
election. An injunction would require the Secretary to do nothing and permit Scott
and McCollum to carry on campaigning as they have for the last several months.
This appeal is not a case in which preliminary relief would require the state to
cancel or reschedule an election, discard ballots already cast, or prepare new
ballots or other election materials. Cf. Nader v. Keith, 385 F.3d 729 (7th Cir.
2004); Sw. Voter Registration Educ. Project v. Shelley, 344 F.3d 914 (9th Cir.
2003) (en banc).
The equities similarly do not clearly counsel against or in favor of
preliminary relief. The district court found that McCollum has not planned his
campaign spending in reliance on the subsidy, but has instead spent what he has to
avoid falling even farther behind his main opponent. McCollum contends that his
affidavit, and the affidavit of his campaign manager, directly contradict that
finding. Whether or not this finding is clearly erroneous, it is not inequitable to
upset this reliance.
McCollum should have known that the excess spending subsidy was
vulnerable to legal challenge. On the day that the Supreme Court decided Davis, a
leading scholar of election law wrote that the decision “calls all [asymmetrical]
provisions in public financing systems into question.” Rick Hasen, Initial
38 Thoughts on FEC v. Davis: The Court Primes the Pump for Striking Down
Corporate and Union Campaign Spending Limits and Blows a Hole in Effective
Public Financing Plans, Election Law Blog (June 26, 2008, 7:55 AM),
http://electionlawblog.org/archives/011095.html (all Internet materials as visited
July 30, 2010, and available in the Clerk of the Court’s case file). After Davis and
before Scott entered the Florida Republican primary, two federal district courts had
declared similar state laws unconstitutional. See McComish, slip op. 9139; Green
Party of Conn. v. Garfield, 648 F. Supp. 2d 298 (D. Conn. 2009). We agree with
the district court that if McCollum did not know that he could not comfortably rely
on a subsidy under section 106.355 in the event that an opponent ran an expensive
campaign it cannot be said that his reliance was reasonable.
Moreover, the finding of the district court that Scott did not purposefully
delay filing suit is not clearly erroneous. For the reasons that McCollum should
have known that the excess spending subsidy was possibly illegal, so should have
Scott. But the record supports a finding that Scott, who had never run a campaign
of any sort in Florida, may not have understood until he began campaigning just
how expensive the campaign he hoped to run would prove. That Scott also
apparently stated publicly that he would not exceed the Florida expenditure limit is
probably a reflection of that inexperience, instead of the result of calculated
39 misdirection.
In sum, each candidate stands to suffer if he loses this appeal and it is not
obvious who stands to suffer more. The public is similarly harmed to a small
degree no matter the outcome, as it is likely to hear less from one or the other
candidate, but there is no danger of disrupting the looming election. We cannot
say that granting preliminary relief would be unfair to McCollum.
D. Scott Is Entitled to a Preliminary Injunction.
Scott has persuaded us that he is entitled to preliminary relief. For the
reasons we have stated, Scott is exceedingly likely to prevail on the merits of his
claim that the excess spending subsidy violates the First Amendment. Davis
compels this conclusion. Moreover, as we have explained, preliminary relief
would not be adverse to the public interest.
On this record, because Scott is highly likely to prevail after a full trial on
the merits, we must enjoin the operation of the excess spending subsidy. Courts
have often treated the likelihood of success on the merits as dispositive where, as
here, difficult to quantify and apparently similar harms are at issue. 11A Charles
Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure
§ 2948.3 (2d ed. 1995). “[T]he less certain the district court is of the likelihood of
success on the merits, the more plaintiffs must convince the district court that the
40 public interest and balance of hardships tip in their favor.” Sw. Voter Registration
Educ. Project, 344 F.3d at 918. We have even treated the merits as influencing our
view of the relative severity of the harms. Most relevant here, when assessing the
severity of burdens on speech, we have held that “even a temporary infringement
of First Amendment rights constitutes a serious and substantial injury.” KH
Outdoor, 458 F.3d at 1272. Similarly, we have held that the public, when the state
is a party asserting harm, has no interest in enforcing an unconstitutional law. See
id. (“[T]he city has no legitimate interest in enforcing an unconstitutional
ordinance.”); Fla. Businessmen for Free Enter., 648 F.2d at 959 (“Given
appellants’ substantial likelihood of success on the merits, however, the harm to
the city from delaying enforcement is slight.”). So we are in complete agreement
with the view of the district court that Scott is entitled to relief if his claim is likely
to succeed. Although we appreciate the careful consideration the district court
accorded these difficult issues, we disagree with the final step of its reasoning.
One final point about severance, because the district court raised the issue.
The district court suggested that, in the light of its view of the manner in which the
excess spending subsidy encouraged participation in the public financing system,
invalidating the subsidy might also require invalidating the $500 contribution limit.
It is not clear whether the district court thought that it might have to strike the
41 contribution limit as it applied to all candidates or only participating candidates.
No party, however, suggests that we cannot preliminarily enjoin enforcement of
the excess spending subsidy without also preliminarily enjoining enforcement of
other provisions of the Act, and Scott argues that consideration of the severance
issue is premature anyway.
Consideration of the issue of severance might be premature because we will
not invalidate—only preliminarily enjoin—the excess subsidy provision, but we
have no problem concluding that the excess spending subsidy is severable. Florida
“clearly favors (where possible) severance of the invalid portions of a law from the
valid ones.” Solantic, 410 F.3d at 1269 n.16 (internal quotation marks omitted).
Florida employs a well-established four-part test to determine whether severance is
appropriate: (1) the unconstitutional provision can be separated from the remaining
valid provisions; (2) the legislative purpose of the act can be achieved without the
invalid provision; (3) the valid and invalid features are not so inseparable that the
legislature could only have wanted them to exist together; and (4) a complete act
remains after severance. Women’s Emergency Network v. Bush, 323 F.3d 937,
948–49 (11th Cir. 2003). Here, as is “in almost any case,” we can easily separate
the excess spending subsidy from the remainder of the Act and the Act remains
complete even after severance. Id. at 949. We disagree with the district court that,
42 because the legislature adopted a $500 limit on private contributions when it
created the excess spending subsidy, the two provisions are tied so that we could
not enjoin the operation of only the subsidy. The $500 limit on private
contributions is generally applicable so that it burdens all candidates even when
none accept public funds. Moreover, we have little trouble concluding that the
Florida Legislature would want to sever the subsidy because the Act contains a
severability provision that applies to “any provision of [the] act,” 1991 Fla. Sess.
Law Serv. ch. 91-107 § 36. See Smith v. Dep’t of Ins., 507 So. 2d 1080, 1090
(Fla. 1987). For the reasons that we concluded that the subsidy was not narrowly
tailored to the goal of encouraging participation in the public financing system, we
also conclude that the legislative purpose of the Act can be served without the
subsidy.
IV. CONCLUSION
The judgment of the district court is REVERSED. Because Scott has
established his entitlement to a preliminary injunction, it is ordered that the Interim
Secretary of State of Florida, Dawn K. Roberts, and all officers, agents, and
employees of the office of the Secretary of State are PRELIMINARILY
ENJOINED from releasing funds to Ira William (“Bill”) McCollum Jr., under the
excess spending subsidy of section 106.355 of the Florida Election Campaign
43 Financing Act, Fla. Stat. § 106.355. Our jurisdiction over this appeal, 28 U.S.C.
§ 1292(a)(1), “does not defeat the power of the trial court to proceed further with
the case.” 16 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal
Practice and Procedure § 3921.2, at 53 (2d ed. 1996). “It was not intended that the
cause as a whole should be transferred to the appellate court prior to the final
decree.” Ex parte Nat’l Enameling & Stamping Co., 201 U.S. 156, 162, 26 S. Ct.
404, 406 (1906).
REVERSED AND PRELIMINARY INJUNCTION ENTERED.