OPINION and ORDER

"Michigan Chamber 2"

PAUL L. MALONEY, Chief Judge.

Rejecting Defendant's Ripeness, Administrative Exhaustion, Abstention, and Laches Arguments; Granting in Part and Denying in Part the Application for Preliminary Injunctive Relief:

Preliminarily Enjoining the Defendant from Enforcing MICH. COMP. LAWS § 169.254 against Corporations/Unions' Paying Money to a PAC or Other Conduit for the Purpose of the PAC Making Expenditures Which Are Not in Any Degree Coordinated with a Candidate or Candidate-Related Entity and against the PAC's Solicitation, Receipt and Expenditure of Such Monies

Permitting the Defendant to Enforce MICH. COMP. LAWS § 169.254 against The Plaintiff Corporations Paying Money to a PAC or other Conduit for the Purpose of the PAC Making Expenditures Which Are in Any Degree Coordinated with a Candidate or Candidate-Related Entity, and against the PAC's Solicitation, Receipt and Expenditure of Such Monies

Declining to Stay the Preliminary Injunction Pending Appeal

This is a civil-rights action under 42 U.S.C. § 19831 to enjoin the Michigan Secretary of State ("Secretary")'s alleged ongoing violation of the plaintiffs' First Amendment rights to freedom of political speech and association.2 Specifically, the plaintiffs lodge an as-applied challenge to the Secretary's interpretation and application of a provision of the Michigan Campaign Finance Act ("MCFA"), MICH. COMP. LAWS § 169.254(1). See generally New Mexico Youth Organized v. Herrera, No. 09-2212, 611 F.3d 669, 677 n. 5 (10th Cir. 2010) ("The `as-applied' challenge acknowledges may have some potentially constitutionally permissible applications, but argues that the law is not constitutional as applied to these organizations."); US v. Stephens, 594 F.3d 1033, 1039 (8th Cir. 2010) (the distinction between facial challenge and as-applied challenge is "`both instructive and necessary' insofar as it `goes to the breadth of the remedy employed by the Court'") (quoting Citizens United v. FEC, 558 U.S. at ___, 130 S.Ct. 876, 893 (2010)). The court has uncontested federal-question jurisdiction pursuant to 28 U.S.C. § 1343(a)(3), which confers original jurisdiction on the federal district courts over § 1983 actions.

The Secretary contends that the court should deny preliminary injunctive relief and dismiss the complaint on four independent grounds: ripeness, laches, failure to exhaust state administrative/judicial remedies, and abstention. In the alternative, the Secretary urges the court to deny preliminary injunctive relief by rejecting plaintiffs' claims under a standard less demanding than strict scrutiny. For the reasons that follow, the court will reject these arguments, consider the merits of the complaint under the strict-scrutiny standard, and issue preliminary injunctive relief (though not of the scope requested by the plaintiffs). The court will also decline to stay the injunction pending appeal.

The plaintiffs are the Michigan Chamber of Commerce ("the Chamber"), Chamber member Sterling Consulting Corporation ("Sterling"), and the Michigan Chamber Political Action Committee ("PAC"). The Chamber is a non-profit organization, organized under Internal Revenue Code § 501(c)(6), whose membership is open to persons, corporations or other entities who subscribe to its mission statement, pay dues, and are accepted for membership, Complaint filed July 12, 2010 ("Comp") ¶ 21 and Ex D-Affidavit of Michigan Chamber of Commerce CEO and President Richard Studley executed July 12, 2010 ("Studley Aff.") ¶¶ 1 and 3. Sterling is a for-profit corporation and Chamber member which "lacks the resources to finance a meaningful amount of independent expenditures on its own behalf" and thus "intends to associate with other similarly situated corporations . . . to pool resources" with other corporations "in order to amplify their own voices with respect to independent expenditures on behalf of or in opposition to candidates for political office." Comp. ¶ 23 and Ex F-Affidavit of Sterling Consulting Corporation President Stephen Linder executed July 9, 2010 ("Linder Aff."). Critical to the resolution of the instant case, the PAC's sole purpose is to make independent expenditures under MCFA, and it would receive contributions for this purpose from corporations and other entities, including the Chamber and Sterling. See Comp. ¶ 22 & Ex. E-Affidavit of Michigan Chamber PAC III Treasurer Robert LaBrant executed July 12, 2010 ("Labrant Aff.").

The Chamber, the PAC, and Sterling intend to engage in corporate independent expenditures supporting and opposing candidates for political office, including advertisements in newspapers and on billboards, television, radio and the Internet; endorsing candidates and informing businesses of those endorsements; placing endorsements on websites; using blogs to post messages of support or endorsement; encouraging Chamber members to endorse or support certain candidates; coordinating rallies; and organizing and staffing telephone banks, see Comp. ¶ 24. The three plaintiffs have refrained from engaging in these independent corporate expenditures when they would seem to be prohibited by the defendant Michigan Secretary of State Terri Lynn Land ("Secretary")'s interpretation of the MCFA, see Comp. ¶ 29.3

Plaintiffs instituted this action on July 12, 2010 by filing a complaint and ex parte applications for temporary restraining order, preliminary and permanent injunctive relief, and declaratory relief. Defendant Land is named only in her official capacity as Secretary of State and therefore chief elections officer for the State of Michigan. See Comp. ¶¶ 9-12. The Chamber complains that Secretary Land's interpretation of the Michigan Campaign Finance Act, MICH. COMP. LAWS § 169.201 et seq.,4 violates their First Amendment rights to freedom of speech and freedom of association by restricting their right to make certain "independent" political expenditures during and in connection with campaigns for state elective office. The Chamber persuasively contends that the need to remove the putatively unconstitutional restrictions is urgent given the approach of Michigan's upcoming party primary elections on August 3, 2010 and the general election on November 2, 2010. Specifically, the Chamber attacks the Secretary's interpretation and application of section 54, subsection 1 of the MCFA, which provides as follows:

MICH. COMP. LAWS § 169.254(1) (emphasis added).5 In turn, MCFA section 4(1) defines a contribution to mean

MICH. COMP. LAWS § 169.204(1) (emphasis added).6 "[W]hen a statute specifically defines a given term, that definition alone controls." Tryc v. Michigan Veterans' Facility, 451 Mich. 129, 136, 545 N.W.2d 642 (Mich. 1996) ("Applying these principles, the definition of `hospital' supplied in the statute, being clear and unambiguous, controls. Judicial construction is not permitted.") (citing, inter alia, Butterfield Theatres, Inc. v. Revenue Dep't, 353 Mich. 345, 91 N.W.2d 269 (Mich.1958)) (footnote omitted).

An individual who knowingly violates MCFA section 54(1) by making such a contribution is guilty of a felony punishable by a fine up to $5,000 and/or a prison sentence up to three years; a corporation or labor union which knowingly does so is guilty of a felony punishable by a fine up to $10,000. See MICH. COMP. LAWS § 169.254(4). The Chamber, the PAC, and Sterling Consulting all propose and intend to engage in campaign activities and expenditures which are prohibited by MICH. COMP. LAWS § 169.254 as interpreted by the Secretary, and they fear that the Secretary will initiate criminal prosecution against them and their officers, employees and agents if they do so. See Comp. ¶ 16.

After the United States Supreme Court issued its opinion in Citizens United v. Federal Election Commission, ___ U.S. ___, 130 S.Ct. 876, ___ L.Ed.2d ___ (2010), the Chamber on February 19, 2010 wrote a letter to Secretary Land requesting a declarative ruling or interpretive statement of portions of the MCFA. The Chamber's request stated the following facts:

Complaint filed July 12, 2010 ("Comp."), Exhibit ("Ex.") A (May 21, 2010 Declaratory Ruling and Interpretive Statement of Michigan Secretary of State Terri Lynn Land) at 1-2.

Secretary Land issued her declaratory ruling on May 21, 2010, construing the Chamber's request as "focus[ing] on the applicability of the Act's registration and reporting requirements to corporate independent expenditures." Comp. Ex. A at 2. In pertinent part, the Secretary's ruling answered the Chamber's questions as follows:

Comp. Ex. A at 1 (First ¶ break added) and 4. A June 20, 2010 newspaper editorial by Secretary Land further illustrates her interpretation of Citizens United:

Comp. Ex. B (Lansing State Journal of June 20, 2010 at 11A, unnumbered ¶¶ 2-7).

In other words, Secretary Land interprets MICH. COMP. LAWS § 169.254(1) to prohibit the Chamber, Sterling or any other corporation from making a monetary payment to the PAC for the purpose of the PAC making independent expenditures, (2) prohibit the Chamber from soliciting anyone to contribute to the PAC for that purpose, and (3) thereby prevent the PAC from making independent expenditures, because it could not receive "contributions" from the Chamber, Sterling Consulting, a Chamber member, or any other corporation. See Comp. at 1-2. The plaintiffs maintain that such payments by itself or its corporate members do not constitute "contributions" (through the PAC) to the candidate benefitted by the independent expenditures. This is a significant, potentially dispositive disagreement, because Supreme Court case law permits a State to prohibit corporations and labor unions from making "contributions" to candidates. Conversely, that same case law does not permit a State to abridge a corporation or labor union's right to make "independent expenditures", which are intended to benefit and presumably do benefit particular candidates but are not given directly to the candidate or his candidate or party committee (nor coordinated with or controlled by the candidate).

This Controversy is Ripe for Adjudication.

The Secretary contends that this as-applied challenge to MICH. COMP. LAWS § 169.254(1) is not ripe for adjudication for the following reasons:

Secretary's Opp. (Doc. 11) at 20 (paragraph break added). The court disagrees.

Designed to ensure that the federal courts resolve "existing, substantial controversies," Norton v. Ashcroft, 298 F.3d 547, 554 (6th Cir.2002), not disputes "anchored in future events that may not occur as anticipated" or may not occur at all, Nat'l Rifle Ass'n of America v. Magaw, 132 F.3d 272, 284 (6th Cir. 1997), the ripeness doctrine ensures that a dispute is concrete and real before the judicial branch resolves it. See Carey v. Wolnitzek, Nos. 08-6468 and 08-6538, 614 F.3d 189, 195-96 (6th Cir.2010) (J. Sutton, joined by J. Batchelder, with D.J. Wiseman concurring in pertinent part). The doctrine, "drawn both from Article III limitations on judicial power and from prudential reasons for refusing to exercise jurisdiction," the ripeness doctrine seeks to avoid premature adjudication of legal questions, thus preventing courts from "entangling themselves in abstract debates that may turn out differently in different settings." Warshak, 532 F.3d at 525. It is the plaintiffs' burden to show that their as-applied challenge is ripe for review. See Connection Dist'g Co. v. Holder, 557 F.3d 321, 342 (6th Cir.) (J. Sutton for the Court, joined by J. Griffin and nine others) (en banc), cert. denied, ___ U.S. ___, 130 S.Ct. 362, 175 L.Ed.2d 30 (2009).

As the Secretary notes, Opp at 20, three considerations inform the doctrine: Is the alleged injury likely to occur? Is the factual record sufficiently developed to resolve the question? And what kinds of hardships, if any, will the parties if the court delays resolution of the question? Carey, 614 F.3d at 195-96 (citing Warshak v. US, 532 F.3d 521, 525 (6th Cir.2008) (en banc)). The Secretary neglects to mention, however, that "[i]n the context of a free-speech . . . challenge like this one, a relaxed ripeness applies to steer clear of the risk that the law `may cause others not before the court to refrain from constitutionally protected speech or expression.'" Carey, 614 F.3d at 195-96 (quoting Broadrick v. Oklahoma, 413 U.S. 601, 612, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973)). The court intimates no opinion as to whether this complaint could meet the customary ripeness standard, finding only that it satisfies the relaxed ripeness standard governing free-speech cases.

Essentially, the Secretary would have the plaintiffs either not exercise what they colorably believe to be their First Amendment rights, or exercise those rights and take their chance on being prosecuted for a felony offense under Michigan law, see MICH. COMP. LAWS § 169.254(4). In a very similar Free Speech context, Justice Scalia respond to the FEC's assurance that enforcement of a statute was an uncertain prospect:

Transcript of Oral Argument in Citizens United v. FEC, 558 U.S. ___, 130 S.Ct. 876, ___ L.Ed.2d ___ (2010), attached as P's Reply Ex N.

It is undisputed that all three plaintiffs are ready to engage in activities which are arguably protected by the First Amendment, see Comp. ¶¶ 16-31; Comp. Ex. D (Studley Aff.) ¶¶ 5-6 and 8; Comp. Ex. E (LaBrant Aff.) ¶¶ 5-6 and 10; Comp. Ex. F (Linder Aff.) ¶¶ 2-3 and 6, but are not doing so due to their fear of prosecution under the Secretary's interpretation of MICH. COMP. LAWS § 169.254(1), see Comp. Ex. D ¶¶ 9 & 11, Comp. Ex. E ¶¶ 7 & 9, and Comp. Ex. F ¶¶ 5 & 7. Thus this matter is ripe for decision. See Carey, 614 F.3d at 195-96 ("In future judicial elections, as in prior ones, he claims an interest in engaging in protected speech that implicates, if not violates, each clause. He wants to let voters know his party affiliation. He wants to solicit campaign funds directly, as opposed to indirectly via an election committee. And he wants to answer judicial questionnaires propounded by a local right-to-life organization. These aspects of the canon at least chill, and in some instances prohibit, these forms of communication, and in the course of the November 2006 election, at least until the entry of the October 2006 injunction, Carey censored himself on each topic. All of this establishes a `credible fear of enforcement,' Norton, 298 F.3d at 554, sufficient to overcome any ripeness concerns.").

Plaintiff Chamber's Failure to Exhaust Its State Administrative Remedies Does Not Require or Counsel this Court to Decline Jurisdiction over this Section 1983 Action.

Under state law, "[a] declaratory ruling is subject to judicial review in the same manner as an agency final decision or order in a contested case." MICH. COMP. LAWS § 24.263. Namely, the plaintiffs had sixty calendar days to notice an appeal from the Secretary's interpretive ruling, first to the circuit court and then, if necessary, to the Michigan Court of Appeals and Michigan Supreme Court. See MICH. COMP. LAWS §§ 24.263 and 24.301 and 24.304(1). Parties dissatisfied with the Secretary's interpretation of the MCFA have availed themselves of this route before. See, e.g., MEA v. Michigan SOS, 280 Mich.App. 477, 483, 761 N.W.2d 234, 237 (Mich.App.2008) (P.J. Wilder, O'Connell, Whitbeck) ("Respondent Secretary of State appeals by leave granted the trial court order setting aside as arbitrary and capricious respondent's declaratory ruling interpreting § 57 of the Michigan Campaign Finance Act."), app. granted on other grounds, 486 Mich. 952, 782 N.W.2d 507 (Mich.2010). It is undisputed that the plaintiffs have not pursued such an appeal. The Secretary contends that

State's Opp. at 19-20.

Under Michigan law, the presence of constitutional issues does not necessarily relieve a party aggrieved by an SOS declaratory ruling of its duty to appeal through the state courts as specified by Michigan statute. As the Michigan Court of Appeals stated in a recent published decision,

Huron Valley Schs. v. Michigan Sec'y of State, 266 Mich.App. 638, 653, 702 N.W.2d 862, 870 (Mich.App.2005) (quoting WA Foote Mem. Hosp. v. Dep't of Pub. Health, 210 Mich.App. 516, 524, 534 N.W.2d 206 (Mich.App.1995)), app. den., 474 Mich. 1085, 711 N.W.2d 336 (Mich.2006).

The Michigan courts do hold that "[e]xhaustion of administrative remedies is not an inflexible condition precedent to judicial consideration . . . and will not be required if review of the agency's final decision would not provide an adequate remedy. . . ." Citizens for Common Sense in Gov't v. Michigan Atty. Gen., 243 Mich.App. 43, 53, 620 N.W.2d 546, 552 (Mich. App.2000) (quoting IBM Corp. v. Dep't of Treasury, 75 Mich.App. 604, 610, 255 N.W.2d 702, 707 (Mich.App.1977) (P.J. Bashara, Cavanagh, Riley) (citing MICH. COMP. LAWS § 24.3018 and M.S.A. § 3.560(201))). In this vein, the complaint asserts that "Plaintiffs are seeking relief that could not be granted by the Defendant in a declaratory ruling, and therefore, could not be granted by a State Court in an appeal of a declaratory ruling." Comp. ¶ 19.

To the extent that plaintiffs rest on the notion that the Secretary of State—or state courts reviewing the Secretary's ruling—cannot address constitutional claims, the court must reject that notion. Michigan's state courts are perfectly well qualified to consider and rule intelligently on federal constitutional claims. See Nevers v. Killinger, 169 F.3d 352, 371 (6th Cir. 1999) ("`State courts are fully qualified to identify constitutional error. . . .'") (C.J. Rehnquist for the majority) (quoting Brecht v. Abrahamson, 507 U.S. 619, 636, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993)), abrogated o.g. by Harris v. Stovall, 212 F.3d 940 (6th Cir.2000); Morris v. Bell, No. 96-5510, 124 F.3d 198, 1997 WL 560055, *2 (6th Cir. Sept. 5, 1997) (Batchelder, Moore, Cole) ("The Supreme Court has consistently recognized that the state courts are fully empowered to adjudicate federal rights adequately, and federal courts may not assume that the state courts will fail to carry out that responsibility.") (citing Ex Parte Royall, 117 U.S. 241, 251, 6 S.Ct. 734, 29 L.Ed. 868 (1886) (stating that, under our federal system, the federal and state courts are "equally bound to guard and protect rights secured by the Constitution")).

Experience shows that in appropriate cases, the Michigan courts can consider such federal constitutional issues on appeal from an SOS ruling. For example, in Swinehart v. Michigan Sec'y of State, 27 Mich.App. 318, 183 N.W.2d 397 (Mich.App. 1970) (P.J. Quinn, Brennan, Cir. J. Ziem), Swinehart appealed from the Secretary of State's determination that the procedure for challenging non-renewal of driver's license did not violate his constitutional rights. The Michigan Court of Appeals would have entertained the appeal if not for the fact that the Secretary had issued Swinehart a license and the situation was unlikely to recur, rendering the appeal moot. Swinehart, 27 Mich.App. at 320-21, 183 N.W.2d at 398-99.

Nonetheless, as a matter of federal law, exhaustion of administrative remedies is simply not required in non-prisoner actions under 42 U.S.C. § 1983. In other words, the exhaustion of administrative remedies is not a jurisdictional prerequisite for non-prisoner section 1983 actions as it is with some other types of federal-court actions. The Secretary cites Patsy v. Board of Regents of State of Florida, 457 U.S. 496, 516, 102 S.Ct. 2557, 73 L.Ed.2d 172 (1982) for the proposition that "[w]hile the exhaustion of state administrative remedies is generally not required as a prerequisite to bringing an action pursuant to 42 U.S.C. § 1983, this Court has discretion to require exhaustion." State's Opp. at 17-18 with n. 48. Patsy stands for no such proposition. Rather, Patsy merely recognized that Congress has "created a specific, limited exhaustion requirement for adult prisoners bringing actions pursuant to § 1983." Patsy, 457 U.S. at 508, 102 S.Ct. 2557 (discussing The Civil Rights of Institutionalized Persons Act, particularly 42 U.S.C. § 1997e). Far from recognizing or intimating a district court's discretion to require other section 1983 plaintiffs to exhaust state administrative remedies, Patsy declared that

Patsy, 457 U.S. at 508, 102 S.Ct. 2557; see, e.g., Cramer v. Vitale, 359 F.Supp.2d 621, 628 (E.D.Mich.2005) (John Corbett O'Meara, J.) (in First Amendment free-speech action, court stated, "To require plaintiff to exhaust state judicial remedies before proceeding on a 1983 claim is contrary to the Supreme Court's holding in both Patsy and Williamson [Cty. Reg. Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985)]."). Thus, the Secretary has presented no authority, binding or persuasive, in support of her assertion that this court has discretion to decline jurisdiction solely due to the plaintiffs' failure or refusal to seek review of the Secretary's decision in the Michigan state courts. The court finds no such authority9, but need not decide this issue today in any event.

To the extent that this court might have discretion to decline jurisdiction due to lack of exhaustion, whether under Younger, under Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943) as urged by the Secretary (Gov's Opp. at 20-21), or under Colorado River the court chooses to exercise jurisdiction and reach the merits of this important controversy, which clearly favor the plaintiffs. See generally Wright v. Morris, 111 F.3d 414, 421 (6th Cir.1997) ("Sending these plaintiffs back to exhaust their administrative remedies would, of course, lighten this court's docket, at least temporarily. However, `policy considerations alone cannot justify judicially imposed exhaustion unless exhaustion is consistent with congressional intent.'") (quoting Patsy, 457 U.S. at 513, 102 S.Ct. 2557).

As a final note on the exercise of jurisdiction, the Secretary contends that plaintiffs' federal section 1983 cause of action is defeated as a matter of law by the MCFA, which provides as follows:

MICH. COMP. LAWS § 169.215. The Secretary also relies on decisions holding that "`[a] declaratory judgment action cannot be maintained to resolve disputes which are within the exclusive jurisdiction of an administrative agency.'" State's Opp. at 18 (quoting Huron Valley Schs. v. Michigan SOS, 266 Mich.App. 638, 646, 702 N.W.2d 862 (Mich.App.2006) (quoting St. Paul Fire & Marine Ins. Co. v. Littky, 60 Mich.App. 375, 378, 230 N.W.2d 440 (Mich.Ap.1975))) and citing Citizens for Common Sense in Gov't v. Atty. Gen., 243 Mich.App. 43, 50, 620 N.W.2d 546 (Mich.App.2000) ("if the Legislature has expressed an intent to make an administrative tribunal's jurisdiction exclusive, then the circuit court cannot exercise jurisdiction over those same areas.").

The Secretary's argument on this score lacks merit for at least two reasons. First, it is not at all clear that the Michigan Legislature intended to commit federal constitutional claims to the exclusive jurisdiction of the Secretary. Indeed, that would be an odd and counterintuitive move, as there is no reason to believe that the Secretary has any particular expertise, compared to the federal and state courts, in interpreting the U.S. Constitution. Second, even if the Michigan Legislature through the aforementioned provisions intended to commit federal constitutional issues to the exclusive jurisdiction of the Secretary (with an appeal to the state courts), the Legislature lacked authority to do so. Although the Tenth Amendment's text and the very structure and history of the Constitution reserve substantial powers to the States rather than the federal government, there is no precedent suggesting that a State may presume to effectively block federal courts from entertaining federal constitutional challenges to state regulatory action and interpretation. The federal courts and the state courts of Michigan generally have concurrent jurisdiction to adjudicate federal constitutional claims, and the Secretary proffers no authority that this situation presents an exception.

Having decided to exercise jurisdiction, the court must address one more issue before turning to the merits: the Secretary's laches defense. The Secretary contends that the plaintiffs

Gov's Opp. at 21-22. The court disagrees with the Secretary and will not dismiss the complaint on the basis of laches. The Secretary shows that the first element of laches is satisfied (lack of reasonable diligence by the plaintiffs), but she fails to satisfy the second element (material prejudice to the Secretary and/or the State of Michigan or its voters).

Preliminarily, "[a] constitutional claim can become time-barred just as any other claim can", US v. Clintwood Elkhorn Min. Co., 553 U.S. 1, 9, 128 S.Ct. 1511, 170 L.Ed.2d 392 (2008) (Roberts, C.J., for a unanimous Court) (citation omitted), and the determination of whether laches applies is a question for the court, not a jury, see Bonner Farms v. Fritz, 355 Fed.Appx. 10, 18 (6thCir.2009) (citing, inter alia, Int'l Union v. Cummins, Inc., 434 F.3d 478, 487 (6th Cir.2006)). "Laches arises from an extended failure to exercise a right to the detriment of another party," Ottawa Tribe of Oklahoma v. Logan, 577 F.3d 634, 639 n. 6 (6th Cir.2009). A party asserting laches must show10 (1) lack of diligence by the party against whom the defense is asserted, here the plaintiffs, and (2) prejudice to the party asserting the defense. See Bridgeport Music, Inc. v. Justin Combs. Pub., 507 F.3d 470, 493 (6th Cir.2007) (citing Chirco v. Crosswinds Communities, Inc., 474 F.3d 227, 231 (6th Cir.2007) (citation omitted)).

Whether the party confronted with a laches defense has been sufficiently diligent is a fact-dependent inquiry. In other words, how quickly a party must seek judicial review of a challenged statute or state action depends on all the circumstances. As Judge Lioi recently stated, "[i]t is well established that in election-related matters, extreme diligence and promptness are required." McClafferty v. Portage Count Bd. of Elections, 661 F.Supp.2d 826, 839 (N.D.Ohio 2009). Thus, the court must evaluate the plaintiffs' diligence, or lack thereof, in the context of a rapidly approaching election, the party primaries on August 3, 2010. That primary election (1) has been scheduled for many months according to predictable, known law, which apparently has not changed this year, and (2) can be expected to involve hundreds of thousands, if not more than a million voters across an entire, sizeable State. This is even more true of the general election, with its likely greater voter participation compared to the primaries. Even when asserting a colorable constitutional claim, a party reasonably can be expected to act more quickly than the plaintiffs did here. The plaintiffs certainly knew, or should have known, of the logistical difficulty, inefficiency, and confusion that may result if the Secretary's statutory interpretation is struck down or judicially modified close in time to the elections. After filing the complaint, a TRO/PI application, and a reply brief, the plaintiffs have not identified a persuasive reason for waiting until July 12 to file this action.

Accordingly, the court finds that the plaintiffs did not act with reasonable diligence in bringing this action nearly two full months after the Secretary issued her declaratory interpretive ruling on May 21, 2010.11

For these reasons, the court determines that the Secretary has established the first element of laches. But the Secretary does not come close to establishing the second element of laches: she fails to show how her office, or the State of Michigan or its voters or citizens or corporations generally, have been meaningfully prejudiced by the plaintiffs' undue delay. It is true that "[t]he state has a compelling interest in the orderly process of elections. Court[s] can reasonably endeavor to unnecessarily precipitate changes that would result in immense administrative difficulties for election officials." New Democratic Coalition v. Austin, 41 Mich.App. 343, 356-57, 200 N.W.2d 749 (Mich.1972) (per curiam) (citing Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964)). In our case, however, the Secretary has not alleged, let alone provided evidence of, some substantial administrative or logistical difficulties, confusion, disorganization, or expense which would be caused if the court allowed the plaintiffs to press these admittedly delayed constitutional claims. See Bogaert v. Land, 572 F.Supp.2d 883, 897 (W.D.Mich.2008) (Robert Holmes Bell, J.) ("The injunctive relief sought by Plaintiff does not pose the same potential for creating `immense administrative difficulties for election officials' as the injunctive relief sought by the plaintiffs in New Democratic Coalition. Moreover, Wayne County Intervenors have not articulated what change of material condition warrants the application of laches. Therefore, the doctrine of laches does not bar Plaintiff's lawsuit."), recon. denied, 2008 WL 4155338 (W.D.Mich. Aug.29, 2008), app. dismissed, 543 F.3d 862 (6th Cir.2008) (government's appeal was moot, given that the specific steps ordered by the preliminary injunction it challenged had already been done and could not be un-done).

Having decided to exercise jurisdiction and rejected the Secretary's laches defense, the court turns now to the propriety of preliminary injunctive relief. On Tuesday, July 13, 2010, this court denied the Chamber's application for a TRO, but took under advisement its application for a preliminary injunction. See Michigan Chamber of Commerce et al. v. Michigan Sec'y of State, 2010 WL 2757975 (W.D.Mich. July 13, 2010) (Maloney, C.J.) ("Chamber 1"). The court provided the following preliminary analysis:

A. Likelihood of Success on the Merits

B. Irreparable Harm

C. Balance of Harm to Defendant and Others

D. Public's Interest

Michigan Chamber 1, 2010 WL 2757975 at *2-3 (some paragraph breaks added). As the Court anticipated, the Secretary has interposed an aggressive defense of Michigan's statutes in light of Citizens United. However, since the denial of the TRO, the court has had the benefit of full briefing, oral argument, and time for fuller consideration, which leads the court to conclude that preliminary injunctive relief is warranted.

Test for Preliminary Injunctive Relief.

"The level of proof required for the Plaintiff to obtain a preliminary injunction or TRO `is much more stringent than the proof required to survive a summary judgment motion.'" Luckett v. U.S. Bank Nat'l Ass'n, 2009 WL 22858, *2 (E.D.Mich. Jan. 5, 2009) (quoting Leary v. Daeschner, 228 F.3d 729, 739 (6th Cir.2000)); see also Mazurek v. Armstrong, 520 U.S. 968, 972, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997) ("[W]hat is at issue is not even a defendant's motion for summary judgment, but a plaintiff's motion for preliminary injunctive relief, as to which the requirement for substantial proof is much higher.").

To obtain preliminary injunctive relief, the plaintiff must show that he is being threatened with a legally cognizable irreparable injury for which there is no adequate legal remedy (such as monetary damages). Audi AG v. D'Amato, 469 F.3d 534, 550 (6th Cir.2006) (citing eBay, Inc. v. MercExchange, LLC, 547 U.S. 388, 391, 126 S.Ct. 1837, 164 L.Ed.2d 641 (2006) (Thomas, J.)). When deciding whether to issue a PI, this court considers (1) whether the plaintiffs have shown a substantial likelihood that they will prevail on the merits, (2) whether there is a threat of irreparable harm to the plaintiffs if the injunction does not issue, (3) whether issuance of the injunction would substantially harm others, and (4) whether issuance of the injunction would serve the public interest. Essroc Cement Corp. v. CPRIN, Inc., 593 F.Supp.2d 962, 967 (W.D.Mich.2008) (Maloney, C.J.) (citing, inter alia, Warshak v. US, 490 F.3d 455, 465 (6th Cir. 2007)). The standard is the same whether the applicant seeks an injunction which requires the adversary to do something (a mandatory injunction) or an injunction which forbids the adversary to do something (a prohibitive injunction). See PACCAR, Inc. v. TeleScan Techs., LLC, 319 F.3d 243, 249 n. 4 (6th Cir.2003) (citing United Food & Commercial Workers Union, Local 1099 v. S.W. Ohio Reg. Transit Auth., 163 F.3d 341, 348 (6th Cir.1998)), abrogated on other grounds by KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc., 543 U.S. 111, 125 S.Ct. 542, 160 L.Ed.2d 440 (2004).

The failure to show any likelihood of success on the merits—let alone a strong or substantial likelihood of success—is enough, by itself, to warrant denial of preliminary injunctive relief. See Abney v. Amgen, Inc., 443 F.3d 540, 547 (6th Cir.2006) ("a finding of no likelihood of success `is usually fatal'") (quoting Gonzales v. Nat'l Bd. of Med. Exam'rs, 225 F.3d 620, 625 (6th Cir.2000)); see also Essroc Cement Corp. v. CPRIN, Inc., 593 F.Supp.2d 962, 967 n. 1 (W.D.Mich.2008) (Maloney, C.J.) ("Our Circuit has not yet expressly called the likelihood of success on the merits [a] sine qua non of preliminary injunctive relief. It has held, however, that it [i]s not error to dispense with analysis of the other three factors where the movants ma[k]e a weak showing on the merits.") (citing Leary v. Daeschner, 228 F.3d 729, 739 (6th Cir.2000) and Jones v. City of Monroe, 341 F.3d 474, 476 (6th Cir.2003)).

DISCUSSION: FIRST AMENDMENT AND ELECTION LAW

Likelihood of Success on the Merits of the First Amendment Claim.

The first of the four factors strongly favors the issuance of preliminary injunctive relief.

The United States Supreme Court recently reaffirmed that "speech and association for political purposes is the kind of activity to which the First Amendment ordinarily offers its strongest protection. . . ." Holder v. Humanitarian Law Project, ___ U.S. ___, 130 S.Ct. 2705, 2732, 177 L.Ed.2d 355 (2010) (Roberts, C.J., for the majority) (citing, inter alia, N.Y. Times Co. v. Sullivan, 376 U.S. 254, 259, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) (the Founding Fathers fashioned the First Amendment "`to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.'") (quoting Roth v. US, 354 U.S. 476, 484, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957))) (emphasis omitted). The Court has gone so far as to declare that instruments articulating or disseminating ideas and opinions in the political arena are "weapons in the defense of liberty." Lovell v. City of Griffin, 303 U.S. 444, 452, 58 S.Ct. 666, 82 L.Ed. 949 (1938) (rejecting licensing scheme for pamphlets and leaflets). See also Siefert v. Alexander, 608 F.3d 974, 983-84 (7th Cir.2010) (Tinder, joined by Flaum, with Rovner dissenting in part on other grounds) ("`Speech about the qualifications of candidates for public office' is `at the core of our First Amendment freedoms.'") (quoting Republican Party of Minnesota v. White, 536 U.S. 765, 774, 122 S.Ct. 2528, 153 L.Ed.2d 694 (2002) (Scalia, J., for the majority)).

The court determines that the independent expenditures proposed by the plaintiffs—and the solicitation and pooling of funds they propose in order to make those expenditures both larger and more effective—qualify as core political speech. That speech must be protected to the fullest extent possible, because "the First Amendment creates an open marketplace where ideas, most especially political ideas, may compete without government interference." NY State Bd. of Elections v. Lopez Torres, 552 U.S. 196, 209, 128 S.Ct. 791, 169 L.Ed.2d 665 (2008) (J. Scalia, for the Court, joined by all JJ. except Kennedy) (emphasis in original).

Applicable Level of Scrutiny.

If a statute regulates conduct and only incidentally burdens freedom of speech and expression, it is subject only to intermediate scrutiny; under that standard, "a content-neutral regulation will be sustained under the First Amendment if it advances important governmental interests unrelated to the suppression of free speech and does not burden substantially more speech than necessary to further those interests." Holder v. Humanitarian Law Project, ___ U.S.___, 130 S.Ct. 2705, 2723, 177 L.Ed.2d 355 (2010) (Roberts, C.J., for the majority) (quoting Turner Broadcasting Sys., Inc. v. FCC, 520 U.S. 180, 189, 117 S.Ct. 1174, 137 L.Ed.2d 369 (1997) (citing US v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968) (rejecting draft-card burner's First Amendment challenge to a conviction under a general prohibition on destroying conscription identification card))). The court determines that the challenged provision— MICH. COMP. LAWS § 169.254(1) as interpreted by the Secretary of State—is not such a provision.

Rather than only "incidentally" burdening the freedoms of speech and association, that section as interpreted by the Secretary directly, substantially, and purposefully burdens those freedoms. As a law that burdens political speech, MICH. COMP. LAWS § 169.254(1) (as interpreted by the Secretary) is "`subject to strict scrutiny', which requires the Government to prove that the restriction `furthers a compelling interest and is narrowly tailored to achieve that interest.'" Citizens United v. Federal Election Commission, ___ U.S. ___, 130 S.Ct. 876, 898, ___ L.Ed.2d ___ (2010) (quoting Federal Election Comm'n v. Wisconsin Right To Life, Inc., 551 U.S. 449, 464, 127 S.Ct. 2652, 2664, 168 L.Ed.2d 329 (2007) (Roberts, C.J., for the Court, joined by JJ. Alito, Scalia, Kennedy and Thomas) (citations omitted)). See also Green Party of Connecticut v. Garfield, Nos. 09-0599-cv(L) and 09-0609-cv(Con), 616 F.3d 189, 198, 2010 WL 2737134, *5 (2d Cir.2010) (contribution restrictions need only be "closely drawn" to serve a "sufficiently important" government interest, while restrictions on non-contribution campaign expenditures and campaign-related speech are subject to strict scrutiny).

The Supreme Court's Recent Decision in Citizens United (Jan. 2010)

The plaintiffs rely heavily on the Supreme Court's recent decision in Citizens United v. Federal Election Commission, ___ U.S. ___, 130 S.Ct. 876, ___ L.Ed.2d ___ (2010), and rightly so. There, a nonprofit corporation, Citizens United, collected voluntary donations from individuals and for-profit corporations and used some of the funds to create a highly critical documentary film entitled "Hillary: The Movie", with the apparent purpose of lowering the public's esteem for then-Senator Hillary Rodham Clinton and diminishing her chance of winning her party's presidential nomination. See Citizens United, 130 S.Ct. at 886-87. Having released the film in movie theaters and on DVD, Citizens United wanted to increase distribution by making it available to digital-cable-television subscribers through "video on demand" free of charge, and by promoting the video on demand version by running advertisements on broadcast and cable television. Id. at 887. Citizens United sued the FEC for declaratory and injunctive relief, stating that it feared being subjected to civil and criminal penalties for violating the Bipartisan Campaign Reform Act of 2002, 2 U.S.C. § 441b ("BCRA"), if it took those actions to express its opposition to the candidacy of Senator Clinton. Id. at 887. To understand the particular prohibition of which Citizens United feared running afoul, it is useful to consult the Court's explanation of federal statutory campaign-finance law before and after the enactment of the BCRA in 2002.

Before the BCRA, federal law prohibited corporations and unions from (1) using general-treasury funds to make direct contributions to candidates12 or (2) using general-treasury funds to make independent expenditures that expressly advocated the election or defeat of a candidate, through any form of media, in certain specified federal elections. Citizens United, 130 S.Ct. at 887, 130 S.Ct. 876. The BCRA continued those prohibitions on corporate/union campaign activity, and added a third: it prohibited corporations and unions from making any "electioneering communication", defined as "any broadcast, cable, or satellite communication" that "refers to a clearly identified candidate for Federal office" made within thirty days of a party primary election or within sixty days of a general election. Citizens United, 130 S.Ct. at 887, 130 S.Ct. 876.

While the law post-BCRA prohibited corporations and unions from using general-treasury funds for these three types of payment, it permitted them to establish a "separate segregated fund," i.e., a PAC, for those three purposes. Id. PACs, however, were permitted to receive funds only from the PAC's corporation's shareholders and employees (or, in the case of a union, from union members). Id. at 888. Citizens United feared that both the documentary film and the ads for the video-on-demand version would violate BCRA's ban on corporate independent expenditures from the corporation's own general-treasury funds. Citizens United, 130 S.Ct. at 888, 130 S.Ct. 876.

Speaking through Justice Anthony Kennedy, a majority of five Justices expressly overruled McConnell v. FEC, 540 U.S. 93, 124 S.Ct. 619, 157 L.Ed.2d 491 (2003), which had upheld limits on corporate/union electioneering communications, as well as the decision on which it rested, Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 110 S.Ct. 1391, 108 L.Ed.2d 652 (1990). See Citizens United, 130 S.Ct. at 886, 130 S.Ct. 876.

The Court first noted that a corporation's legal right to create a PAC to "speak" through independent expenditures, was not equivalent or tantamount to the corporation itself being legally allowed to speak through such independent expenditures. Id. at 897. For one thing, the Court reasoned, PACs are expensive to administer and subject to burdensome regulations, which may account for the fact that fewer than 2,000 of the nation's millions of corporations have established PACs. Id. at 897-98. Therefore, as a logical and a practical matter, the fact that a corporation may create a PAC which "speaks" politically through independent expenditures, does not eliminate the burden which BCRA's independent-expenditure prohibition imposed on corporations/unions' right to speak through such expenditures, nor does it obviate the need to decide whether such restriction on the corporations/unions' right to make independent expenditures is constitutional. The Court stated as follows:

Citizens United, 130 S.Ct. at 898-99 (other internal citations omitted). After reviewing political-speech precedents from the 1930s through the 1960s, see id. at 899-901, the majority discussed the purported governmental interests which more recent Supreme Court decisions had found sufficient to justify restrictions on corporate/union political speech and activity. The Citizens United Court reviewed Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) as follows:

Citizens United, 130 S.Ct. at 901-902 (other internal citations and alterations omitted). In other words, the Citizens United majority considered Buckley's reasoning, its citation of certain authorities, and its choice not to cite certain authorities, as suggesting that the Buckley Court would have invalidated the prior statute's ban on corporate/union independent expenditures—and that ban was later recodified at 2 U.S.C. § 441b, the very provision challenged in Citizens United. The Court then noted that two years after Buckley, the decision in First Nat. Bank of Boston v. Bellotti, 435 U.S. 765, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978)

Citizens United, 130 S.Ct. at 902-903 (other internal citations and alterations omitted).

Having thus characterized and reaffirmed Buckley (1974) and Bellotti (1976), the Citizens United Court turned a very critical eye to Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 110 S.Ct. 1391, 108 L.Ed.2d 652 (1990) for "uphold[ing] a direct restriction on the independent expenditure of funds for political speech for the first time in [our country's] history." Citizens United, 130 S.Ct. at 903, 130 S.Ct. 876. Specifically, the Austin Court upheld a state statute which criminalized corporate independent expenditures supporting or opposing any candidate for state office. Id. The rationale for the Court's rejection of Austin all but makes the plaintiffs' case.

Citizens United examined each of the purported governmental interests which Austin used, or which the government in Citizens United advanced, and found them all insufficient to justify the restrictions in each case. "To bypass Buckley and Bellotti," as Citizens United sees it, the Austin Court identified the government's supposed compelling "anti-distortion interest", i.e., its "interest in preventing `the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public's support for the corporation's political ideas.'" Citizens United, 130 S.Ct. at 903, 130 S.Ct. 876 (quoting Austin, 494 U.S. at 660, 110 S.Ct. 1391). The Court emphatically rejected the existence of any such legitimate governmental interest, let alone a compelling interest:

Citizens United, 130 S.Ct. at 904-905 (other internal citations, alterations & quote marks omitted); see, e.g., Long Beach Area Chamber of Commerce v. City of Long Beach, 603 F.3d 684, 693 (9th Cir. 2010).13

Having rejected the notion of a governmental interest in countering the allegedly distorting effects of corporate-funded political speech, Citizens United next considered the governmental interest in preventing corruption or the appearance of corruption connected with elections and campaigns. The Court left intact Buckley's holding that the government had an interest in preventing corruption or the appearance of corruption which was "sufficiently important" to justify monetary limits on the amount of direct contributions to candidates. See Citizens United, 130 S.Ct. at 908, 130 S.Ct. 876. It noted, however, that Buckley "did not extend this rationale to independent expenditures, and the Court does not do so here." Id. On the contrary, the Court held that "independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption", Citizens United, 130 S.Ct. at 909, 130 S.Ct. 876, and it explained why various prior Supreme Court decisions did not stand for a contrary view, id. at 909-910. The Court concluded its anti-corruption discussion as follows:

Citizens United, 130 S.Ct. at 910-11. After that, the Court rejected the notion that corporate independent expenditures may constitutionally be limited because of the government's supposed interest in protecting dissenting shareholders from being compelled to fund corporate political speech. Id. at 911.

It is very significant for our case that the Court broadly stated, without qualification, that "the Government may not suppress political speech on the basis of the speaker's corporate identity. No sufficient governmental interest justifies limits on the political speech of nonprofit or for-profit corporations." Citizens United, 130 S.Ct. at 913, 130 S.Ct. 876 (emphasis added).

Justice Scalia joined Justice Kennedy's majority opinion, and reinforced its thrust in his separate concurrence,

Citizens United, ___ U.S. at ___, 130 S.Ct. at 929 (Scalia, J., concurring, joined by J. Alito in full and by J. Thomas in pertinent part). While neither the majority nor Justice Scalia squarely addressed the precise question here, their rationale and language provide direct, strong guidance on our facts. Just as speech does not become "not speech" or constitutionally less-protected because it is funded by a corporation, it does not become "not speech" or constitutionally less-protected because it is funded by multiple corporations, either by donations from each corporation separately to directly defray the speech together or, as the plaintiffs propose, by gathering multiple corporations' funds through the instrument of a political action committee created solely for this purpose. Applying the majority and Justice Scalia's logic to this closely-related context, the character of the funding—or number of sources of funding—for an independent expenditure cannot eliminate or reduce the peak constitutional protection accorded to the political speech made possible by that expenditure.

In other words, the fact that the plaintiffs seek to cooperate and act collectively with other corporations to solicit, receive, and direct funds to independent political expenditures in no way undermines the First Amendment's recognition of their right to engage in those activities. As the Supreme Court flatly stated just weeks ago, "the simple fact of `coordination' alone cannot readily remove protection that the First Amendment would otherwise grant. That Amendment, after all, also protects freedom of association." Holder v. Humanitarian Law Project, ___ U.S. ___, 130 S.Ct. 2705, 2732, 177 L.Ed.2d 355 (2010) (Roberts, C.J., for the majority) (citing, inter alia, NAACP v. Claiborne Hardware Co., 458 U.S. 886, 911, 102 S.Ct. 3409, 73 L.Ed.2d 1215 (1982)) (the First Amendment's protections "of speech, assembly, association, and petition, `though not identical, are inseparable'") (quoting Thomas v. Collins, 323 U.S. 516, 530, 65 S.Ct. 315, 89 L.Ed. 430 (1945)) and DeJonge v. Oregon, 299 U.S. 353, 364, 57 S.Ct. 255, 81 L.Ed. 278 (1937) ("describing the right of peaceable assembly" as "a right cognate to those of free speech and free presses and... equally fundamental").

In short, if the State of Michigan has no constitutional authority to restrict the proposed independent expenditures when done or funded by one entity or person alone, it does not somehow magically acquire authority to restrict those expenditures merely because the spender joins together with other entities which also have the right to make or fund such expenditures-especially after Citizens United.

The Michigan Secretary of State concedes that "[b]y overruling Austin, the Citizens United Court declared that § 54 of the MCFA [MICH. COMP. LAWS § 169.254] is unconstitutional to the extent that it prohibits independent expenditures by corporations." Gov's Opp. at 3. Thus, the Secretary is left to argue that her interpretation of the challenged provision, MICH. COMP. LAWS § 169.254(1), survives Citizens United because it is a prohibition not on independent expenditures, but on "contributions." See Gov's Opp. at 4 ("However, because the Court's decision was limited to independent expenditures, it leaves intact § 54's prohibition against corporate contributions."). The Secretary's attempt to characterize MICH. COMP. LAWS § 169.254(1) as a prohibition on corporate/union contributions (permitted by Citizens United) rather than a prohibition on corporate/union collective action in furtherance of independent expenditures, is accurate as to one type of corporate/union payments to PACs for the purpose of the PAC making an independent expenditure. The Secretary's argument is wholly untenable, however, as to other such payments from corporations/unions to PACs.

The Secretary argues as follows:

Gov's Opp. at 9-10 (n. 1 omitted).

The Secretary makes a colorable argument that the MCFA definition of "independent expenditure" is not entirely coterminous with the federal statutory definition of "independent expenditure." The MCFA defines "independent expenditure" to mean "an expenditure by a person if the expenditure is not made at the direction of, or under the control of, another person and if the expenditure is not a contribution to a committee." MICH. COMP. LAWS § 169.209(2) (emphasis added). Federal election law, by contrast, defines "independent expenditure" as an expenditure by a person—

2 U.S.C. § 431(17) (emphasis added).

The Secretary accurately notes that the MCFA's definition of independent expenditure does not include the "in concert or cooperation with or at the suggestion of" language of the federal definition. So long the corporation/union's payment to the PAC (and the PAC's subsequent expenditure of those funds) are "not made at the direction of, or under the control of, another person", they will qualify as an independent expenditure under the MCFA. It is unclear whether an expenditure which is "not made at the direction of, or under the control of, another person" (making it an independent expenditure as defined by the MCFA) is also necessarily "not made in concert or cooperation with or at the request or suggestion" of the specified persons/entities. Perhaps some expenditures will meet both the federal and state definitions of independent expenditure; other expenditures will meet one definition but not the other; and other expenditures still will meet neither definition of independent expenditure.

If so, then an expenditure by Chamber PAC III could qualify as independent under the MCFA but not under the federal statute. Certainly neither party has identified any precedent foreclosing this possibility, and the court has not located any. So far, so good, for the Secretary's argument. After this point, however, the Secretary tries to take the argument too far, asserting that no corporate/union payments qualify as independent expenditures entitled to Citizens United protection unless those payments satisfy the federal statutory definition of independent expenditure. This does not appear logical. While Citizens United happened to deal with expenditures which met the federal statutory definition of "independent expenditure", there is no reason to believe that its reasoning does not apply to expenditures which do not meet that definition but nonetheless do not lend the appearance of corruption because the candidate and his agents/party did not have sufficient say over the expenditure to raise the specter of a quid pro quo. So long as a corporation/union payment to a PAC (which then works to support or oppose a candidate's election) does not pose a realistic risk of corruption or the appearance of corruption, the payment will be not a corporate/union "contribution" subject to prohibition, but conceptually an independent expenditure entitled to constitutional protection under Citizens United.14

In the face of the Secretary's novel and partially meritorious argument, the court must strive to maintain fidelity to the First Amendment as interpreted by Citizens United. The Secretary argues as follows:

Gov's Opp. at 14-15 (other footnotes omitted, second paragraph break added). This argument is confusing because it conflates a meritorious argument with a meritless one. The proper inquiry is not whether the conduit for the corporate funds (Chamber PAC III) "may" coordinate the expenditure of the corporate funds for the specific advantage of a particular candidate, but whether the PAC in fact did, in a given case, coordinate with the candidate or his party or committee in such a way as to raise the specter of quid pro quo corruption.

Under Citizens United, the First Amendment does not prevent the State of Michigan from prohibiting corporations/unions from donating to a PAC which then uses the funds in a manner directed or controlled by a candidate (the definition of independent expenditure under MICH. COMP. LAWS § 169.209(2)), or in a manner coordinated, -controlled, or in concert or cooperation with or at the request or suggestion of such candidate (the definition of independent expenditure under 2 U.S.C. § 431(17)), or in any other manner, regardless of the exact terms used, which raises the appearance, to reasonable people, of quid pro quo corruption.

Conversely, if the PAC does not coordinate the expenditure of its funds (which it received, say, from Sterling Corporation or the Chamber itself) with the candidate in a way which raises the risk of actual quid pro quo corruption or the appearance of such corruption, Citizens United forbids the State from denying the corporations/unions their constitutional right to give those funds to the PAC. If a PAC makes only these latter expenditures—i.e., expenditures that do not carry a risk of quid pro quo corruption or the appearance thereof—the State constitutionally may not punish or interfere with these corporations if they choose to donate to the Chamber III PAC for that purpose. As Chief Judge Sentelle held for the District of Columbia Circuit sitting en banc,

SpeechNow.org v. FEC, 599 F.3d 686, 694-95 and 696 (D.C.Cir.2010) (C.J. David Sentelle for unanimous en banc Court); see also Long Beach Area Chamber of Commerce v. City of Long Beach, 603 F.3d 684, 693 (9th Cir.2010) ("It is `[t]he absence of prearrangement and coordination of an expenditure with the candidate or his agent [that] alleviates the danger that expenditures will be given as a quid pro quo for improper commitments from a candidate.' * * * It necessarily follows that the City may not impose financial limits on the Chamber PAC's [non-candidate-coordinated] independent expenditures.") (quoting Citizens United, 130 S.Ct. at 908, 130 S.Ct. 876 (quoting Buckley, 424 U.S. at 37, 96 S.Ct. 612) and citing FEC v. Colorado Republican Fed. Campaign Comm., 533 U.S. 431, 452, 121 S.Ct. 2351, 150 L.Ed.2d 461 (2001)); Minnesota Chamber of Commerce, 710 F.Supp.2d 868, 2010 WL 1838362 (D.Minn. May 7, 2010) (Minnesota statute prohibiting corporations from making indirect payments for the ultimate benefit of a political party, committee or individual to promote or defeat a candidacy for nomination, election or appointment to government office violated the First Amendment as interpreted by Citizens United).

To conclude the analysis of the merits factor, the court addresses the Secretary's attempt to avoid the clear import of Citizens United for this as-applied challenge by emphasizing that Citizens United involved the federal definition of independent expenditures, rather than the Michigan statutory definition of independent expenditures which is at issue here. The Secretary believes that the federal definition is materially different from the state definition for our purposes. Primarily, the Secretary noted, particularly at oral argument, that her office has interpreted and applied the state definition of independent expenditures to include, i.e., allow, PACs to make such an expenditure with some degree of candidate coordination which falls short of rendering the expenditure at "the direction of, or under the control of, another person" (which MICH. COMP. LAWS § 169.209(2) excludes from the definition of permissible independent expenditures). The Secretary points to a 2003 declaratory interpretive ruling which her office issued at the request of Robert Labrant, who happens to be the current treasurer of plaintiff Chamber III PAC.

Relying on this premise, the Secretary confronts these plaintiffs' written pledge that the Chamber III PAC will not make any independent expenditures which employ any degree of candidate/party coordination, even if some such coordination allegedly would be allowed under the Secretary's interpretation of MICH. COMP. LAWS § 169.209(2). Noting that realism demands cynicism in the context of hard-fought political campaigns, the Secretary contends that no matter what these plaintiffs say, the Chamber III PAC may nonetheless go on to coordinate the independent expenditure with a candidate— under what defense counsel called "a wink and a nod" arrangement—in contravention of its pledge. If the PAC does so, the Secretary alleges, it will be difficult and often impossible for the Secretary to discover that fact. Consequently, the Secretary claims that this potential for dishonesty and undiscovered candidate-PAC coordination justifies her prohibition on these corporations donating funds to the Chamber III PAC for the purpose of the PAC making expenditures which otherwise would seem to qualify as permissible independent expenditures under Michigan statute.

At oral argument, the Secretary's counsel conceded, in so many words, that her concern about such PAC and corporate dishonesty was "speculative." This court determines that the First Amendment, as interpreted by Citizens United, does not permit the Secretary to abridge the free-speech and free-association rights of these plaintiffs based on such speculation. The powerful deference and broad interpretation which must be accorded to Constitutional rights, counsels in favor of requiring the Secretary to risk the speculative occurrence of such conduct. However undesirable such a state of affairs may seem to some as a matter of public policy, it is far preferable to permitting the Secretary's certain and ongoing impairment of these corporations' right to solicit, make, receive, and spend these corporations' general-treasury funds for the purpose of constitutionally protected "true independent expenditures."

Factors 2, 3 and 4 of the Test for Preliminary Injunctive Relief

As for the second factor, the court finds that the plaintiffs, and all other corporations, labor unions, or other voluntary associations restricted by the Secretary's interpretation, are being irreparably harmed every day that they are deterred from exercising their full First Amendment rights to political speech and association by fear of prosecution for violating the MCFA as interpreted. As the court previously noted, the loss of First Amendment freedoms, "even for minimal periods of time, unquestionably constitutes irreparable injury." Jones v. Caruso, 569 F.3d 258, 277 (6th Cir.2009) (citing, inter alia, G & V Lounge, Inc. v. Michigan Liquor Control Comm'n, 23 F.3d 1071, 1079 (6th Cir.1994) and Newsom v. Norris, 888 F.2d 371, 378 (6th Cir.1989)). As for the third factor, neither the Secretary of State's office nor the State of Michigan will suffer any harm by merely being required to obey the Constitution as interpreted by the Supreme Court. As for the fourth factor, the public interest always strongly favors the vindication of constitutional rights and the invalidation of any state action which infringes on those rights or chills their confident and unfettered exercise. See Moore v. Brunner, 2008 WL 2323530, *5 (S.D.Ohio June 2, 2008) ("It is axiomatic that adherence to constitutional protections is always in the public interest.").

In short, the balance of the four factors solidly favors issuance of a preliminary injunction against the Michigan Secretary of State's enforcement of MICH. COMP. LAWS § 169.254 against any corporations or labor unions pooling their funds (e.g., through a PAC) for the purpose of independent expenditures, i.e., expenditures made by the PAC or other conduit without coordination, direction, control, or suggestion by or from any candidate. Indeed, none of the factors counsels against preliminary injunctive relief as to that type of corporate/union payment.15

As a final note on the merits, this is an as-applied challenge only, and the plaintiffs aver in writing that the Chamber III PAC will not coordinate any of its independent expenditures with any candidate or candidate-related organization. Accordingly, the court intimates no opinion as to whether Citizens United might permit a government to restrict or prohibit corporate/union payments to a PAC for expenditures which are coordinated, controlled, directed, or suggested by a candidate or candidate-related organization. Accordingly, preliminary injunctive relief will not issue to prevent the enforcement of MICH. COMP. LAWS § 169.254 against PAC expenditures which are in any way, to any degree, coordinated with a candidate- or candidate-related organized.

The Court Declines to Issue a Stay Pending Appeal.

Finally, in light of the urgent nature of these proceedings, judicial efficiency and fairness to these litigants counsels the court to sua sponte consider whether to stay today's order pending Secretary's appeal. Federal Rule of Civil Procedure 62(c) provides that "x The standard for a stay pending appeal is akin to the one used in deciding whether to issue a preliminary injunction." Thalheimer v. City of San Diego, 2010 WL 1201885, *2 (S.D.Cal. Mar. 23, 2010) (citing Witner v. Natural Resources Defense Council, Inc., 555 U.S. 7, 129 S.Ct. 365, 376, 172 L.Ed.2d 249 (2008) (C.J. Roberts)), mot. to vacate stay den., 2010 WL 1734952 (S.D.Cal. Apr. 28, 2010). A court may issue a stay pending appeal on consideration of four factors: (1) whether the party which seeks or would benefit from a stay has made a strong showing that he is likely to succeed on the merits; (2) whether the party favoring a stay will be irreparably injured if the stay does not issue; (3) whether issuance of a stay will substantially injure other parties to the proceeding; and (4) where the public interest lies. Nken v. Holder, ___ U.S. ___, 129 S.Ct. 1749, 1761, 173 L.Ed.2d 550 (2009) (quoting Hilton v. Braunskill, 481 U.S. 770, 776, 107 S.Ct. 2113, 95 L.Ed.2d 724 (1987)). The first two factors, likelihood of success on the merits of the appeal and irreparable injury to the appealing party, are the most critical. See Nken, ___ U.S. at ___, 129 S.Ct. at 1761.

As to the first factor, the constitutionality post-Citizens United of restrictions on corporate/union payments to a PAC for the purpose of the Pac making candidate-coordinated expenditures, might present a difficult question. The only matter at issue today, however, is the constitutionality of the Secretary's prohibition on these corporations' payments to a PAC for the purpose of the PAC making "true independent expenditures", i.e., those which involve absolutely no such coordination. On this issue, the court finds that the Secretary is unlikely to succeed on appeal.

As to the second factor, neither the Secretary's office nor the State of Michigan generally will suffer any irreparable harm from being compelled to allow election payments and activity which are clearly constitutionally protected under Citizens United. As to the third factor, staying today's injunction would irreparably harm these plaintiffs by leaving them unable to engage in the proposed First Amendment activity without a very realistic fear of felony prosecution. The irreparable harm to these plaintiffs would be especially egregious given that they wish to exercise their First Amendment rights in this fashion in advance of the party primary elections which take place on August 3, 2010, just eleven days from now. The fourth factor likewise does not favor a stay, because the public interest invariably favors the vindication of constitutional rights and the invalidation of impermissible restrictions on those rights. See Jones v. Caruso, 569 F.3d 258, 278 (6th Cir.2009) (citing Connection Distrib., 154 F.3d at 288).

Consequently, the court declines to issue a stay pending appeal. Cf. U.S. Student Ass'n v. Michigan Sec'y of State, 546 F.3d 373, 377-78 (6 th Cir.2008) (declining to stay order which preliminarily enjoined Secretary from rejecting voter registrations whenever a voter identification card was returned to the Secretary as undeliverable and directed the Secretary to reinstate all voters whose registrations were thus rejected).

ORDER

The court DECLARES as follows: as applied by the Michigan Secretary of State to these three plaintiffs, MICH. COMP. LAWS § 169.254 violates these plaintiffs' First and Fourteenth Amendment rights to freedom of speech and freedom of association.

The application for preliminary injunction [# 2] is GRANTED in part & DENIED in part.16

The application for a preliminary injunction is granted to the following extent:

The Michigan Secretary of State may not enforce MICH. COMP. LAWS § 169.254 to restrict or prohibit the plaintiff corporations from making payments to the plaintiff political action committee for the purpose of the political action committee making expenditures in connection with a campaign for government office where those expenditures are in no way directly or indirectly coordinated with any candidate or the candidate's campaign committee, political party, or political party committee.

The application for a preliminary injunction is denied to the following extent:

The Michigan Secretary of State may enforce MICH. COMP. LAWS § 169.254 to restrict or prohibit the plaintiff corporations from making payments to the plaintiff political action committee for the purpose of the political action committee making expenditures in connection with a campaign for government office where those expenditures are in any way coordinated with any candidate or the candidate's campaign committee, political party, or political party committee.

For purposes of this order, an expenditure by the plaintiff political action committee will be considered to be "coordinated" if:

Plaintiffs are NOT REQUIRED to post bond to secure this preliminary injunction. See Moore v. Brunner, 2008 WL 2323530, *5 (S.D.Ohio June 2, 2008).

This is an interlocutory order, but it is immediately appealable. See Stanton v. Hutchins, 2010 WL 882822, *12 (W.D.Mich. Mar. 8, 2010) (citing Overstreet v. Lexington-Fayette Cty. Urban Gov't, 305 F.3d 566, 572 (6th Cir.2002)) (citations omitted).17 The Sixth Circuit reviews de novo the question of whether the laches doctrine applies, but applies only abuse-of-discretion review to the resolution of the laches question. See Cunningham v. Interlake S.S. Co., 567 F.3d 758, 763 (6th Cir.2009) (citing Chirco v. Crosswinds Communities, Inc., 474 F.3d 227, 231 (6 th Cir.2007)).

The court DECLINES to issue a stay pending appeal.