ROBERT W. PRATT, Chief Judge.
On September 7, 2010, Iowa Right to Life Committee, Inc. ("IRTL") filed a "Verified Complaint for Declaratory and Injunctive Relief against the above-captioned government officials (collectively, "Defendants"), alleging that several provisions of Iowa's campaign finance laws violate the First and Fourteenth Amendments of the United States Constitution. Clerk's No. 1. On the same date, IRTL also filed a Motion for Preliminary Injunction, which is currently before the Court.
Prior to January 2010, the Iowa Code banned corporations from making both independent expenditures and campaign contributions. It provided that:
Iowa Code § 68A.503(1) (2009).
However, while corporations were banned from using their own general treasury funds to make independent expenditures and contributions directly, they were allowed to do these things indirectly through political committees.
Id. § 68A.102(18)(b). If an organization "was originally organized for purposes other than engaging in election activities," but temporarily engaged in activities covered by § 68A.102(18), that organization was deemed a "permanent organization" and required to organize a political committee. Id. § 402(9). Both political committees and permanent organizations were required to segregate their election-related funds. See id.; id. § 68A.203(2)(d).
In addition to these provisions, § 68A.404(3) required disclosure from any "person, other than a committee registered under this chapter" who made independent expenditures. The statute defined an independent expenditure as "one or more
In January 2010, the United States Supreme Court issued its opinion in Citizens United v. Federal Election Commission. See ___ U.S. ____, 130 S.Ct. 876, 886, 175 L.Ed.2d 753 (2010). The federal statute at issue in Citizens United barred corporations "from using general treasury funds to make direct contributions to candidates or independent expenditures that expressly advocate the election or defeat of a candidate" in certain federal elections. Id. at 887 (citing 2 U.S.C. § 441b). The statute, however, allowed corporations to establish "a `separate segregated fund' (known as a political action committee, or PAC) for these purposes." Id. Although § 441b applied to contributions and independent expenditures, the Supreme Court limited its discussion to independent expenditures. See id. at 909 ("Citizens United has not made direct contributions to candidates, and it has not suggested that the Court should reconsider whether contribution limits should be subjected to rigorous First Amendment scrutiny.").
The Supreme Court stated that, as it pertained to independent expenditures, § 441b was a ban on corporate speech. Id. at 897. The Court reasoned that a PAC is a separate entity from the corporation itself; therefore, even though the statute allowed PACs to speak, it still did not allow the corporations themselves to speak. Id. Because the statute was a ban on speech, the Supreme Court analyzed it under strict scrutiny. Id. at 888. A previous Supreme Court case, Austin v. Michigan Chamber of Commerce, had upheld restrictions based on the fact that a speaker was a corporation. See id. at 903 (citing Austin v. Mich. Chamber of Commerce, 494 U.S. 652, 695, 110 S.Ct. 1391, 108 L.Ed.2d 652 (1990)). But in Citizens United, the Supreme Court overruled that portion of Austin and concluded that "the Government may not suppress political speech on the basis of the speaker's corporate identity" because "[n]o sufficient governmental interest justifies" banning speech on that basis. See id. at 913. Accordingly, the Court held that the federal ban on corporate independent expenditures was invalid. Id.
Notably, although the Supreme Court struck down the federal ban on independent expenditures, it upheld federal disclosure and disclaimer requirements for independent expenditures. Id. at 913-14. The Supreme Court stated that "the public has an interest in knowing who is speaking about a candidate shortly before an election," and concluded that this informational interest alone was sufficient to justify the federal disclosure requirements. Id. at 915-16. The Supreme Court also touted the benefits of prompt disclosures:
Id. at 916 (internal quotation marks and citations omitted).
Therefore, under Citizens United, "[t]he Government may regulate corporate political speech through disclaimer and disclosure requirements, but it may not suppress that speech altogether." Id. at 886.
In response to Citizens United, the Iowa Legislature passed several amendments to Iowa's campaign-finance laws. Defs.' Resp. to Pl.'s Mot. for Prelim. Inj. (hereinafter "Defs.' Br.") at 3 (Clerk's No. 20); Smithson Aff. ¶ 5 (Clerk's No. 20-1); Prelim. Inj. Hr'g Tr. (hereinafter "Hr'g Tr.") 37:3-7 (Clerk's No. 35); Senate File 2354, 83rd G.A., 2d. Sess., as reprinted in 2010 Iowa Legis. Serv. S.F. 2354 (West) (hereinafter "S.F. 2354"). Most significantly, the Iowa Legislature deleted the text of § 68A.503 in its entirety and replaced it with new language, eliminating the ban on corporate independent expenditures and narrowing the scope of banned contributions. See S.F. 2354 § 5. The new text of § 68A.503 also exempted the use of corporate "funds for independent expenditures as provided in section 68A.404." Iowa Code § 68A.503(4)(d).
The Iowa Legislature made other notable changes. It amended the definition of an "independent expenditure" to change the threshold from one hundred dollars to seven hundred fifty dollars. S.F. 2354 § 3 (amending Iowa Code § 68A.404(1)). The Iowa Legislature also added a requirement that organizations "other than an individual or individuals" obtain approval by "a majority of the entity's board of directors, executive council, or similar organizational leadership body" before using general treasury funds for independent expenditures. See id. (amending Iowa Code §§ 68A.404(2)(a)-(b)). Finally, the Iowa Legislature also made a number of changes related to independent expenditure reporting, including a requirement that persons covered by § 68A.404(3) file a "termination report" if they decide to stop making independent expenditures. See id. §§ 2-3. All of these amendments became effective on April 8, 2010. Id. § 7.
In particular, the Iowa Legislature did not make any changes to § 68A.102. See id. §§ 1-7. Section 68A.102 provides definitions to be used in Chapter 68A "unless the context otherwise requires." Iowa Code § 68A.102. Therefore, the definitions of "political committee" and "permanent organization" remain the same. See S.F. 2354 §§ 1-7. The Iowa Legislature also did not change the portions of § 68A.404(3) that limited that section's applicability to any "person, other than a committee registered under this chapter" or that expressly excluded political committees from its scope. See id. § 3. Therefore, it is still clear, from the plain text of the statute, that the persons covered by § 68A.404(3) are a separate category from committees, including political committees. See Iowa Code §§ 68A.404, 404(3).
However, by removing the ban on corporate independent expenditures and not amending the definitions, the Iowa Legislature unearthed some previously latent ambiguity as to the proper interplay between § 68A.404(3) and § 68A.102(18). See S.F. 2354 § 5 (striking the former version of § 68A.503 in its entirety). That ambiguity stems from the overlap between the scope of § 68A.404(3) and the definition of a "political committee" in § 68A.102(18). If an organization has not yet "registered as a committee," but
In addition to amending the text of the statute, the Iowa Legislature authorized the Iowa Ethics & Campaign Disclosure Board (the "Board") to promulgate emergency rules to implement the new provisions in time for the June 2010 primary. S.F. 2354 § 6. Accordingly, the Board made a number of changes to the existing rules, and added a number of new provisions, effective May 17, 2010. Vol. XXXII Iowa Admin. Bulletin, No. 25 (hereinafter "IAB") at 2706-14, June 6, 2010; see also Smithson Aff. ¶ 6; Defs.' Br. at 3. Two of these changes are particularly relevant to the instant case.
First, the Board created a new category of regulated entities called "independent expenditure committees." IAB at 2707, Item 1 (adding "new paragraph 4.1(1)'d'"). Although the Board decided to call this new category of entities "independent expenditure committees," it did not make them a subset of "committees." See Iowa Admin. Code r. 351-4.1(1).
The Board defined an "independent expenditure committee" as an organization that is required to file an independent expenditure statement under § 68A.404(3). See id. r. 351-4.1(1)(d) ("A person that is required to file campaign disclosure reports pursuant to 2009 Iowa Code Supplement section 68A.404(3) 'a' as amended by 2010 Iowa Acts, Senate File 2354, section 3, due to the filing of an independent expenditure statement (Form Ind-Exp-O) shall be referred to as an `independent expenditure committee.'"); see also id. at 2708, Item 7 (amending rule 351-4.27(68A) to provide that organizations making independent expenditures must file Form Ind-Exp-O, while individuals making independent expenditures must file Form Ind-Exp-I). Strikingly, the term "independent expenditure committee" does not appear in the statute. See Iowa Code §§ 68A.404, 68A.102. However, the Court adopts the Board's definition of an independent expenditure committee for the purposes of this opinion.
IRTL is a "non-stock, nonprofit Iowa corporation" that is classified as a social welfare organization under 26 U.S.C. § 501(c)(4). Compl. ¶¶ 6, 15. IRTL is the Iowa affiliate of the National Right to Life Committee, Inc. Id. ¶ 14. According to IRTL, its "primary purpose" is "to present factual information" on various social issues, including abortion and euthanasia and "its major purpose is not and will never be the nomination or election of candidates." Id. ¶¶ 14-15. Defendants are various governmental officers who have the power to enforce the challenged provisions of Iowa's campaign-finance laws.
At some point in August, "an attorney from the office of IRTL's lead counsel contacted [the Board's] Legal Counsel, Charles Smithson, regarding the issue of ongoing reporting" Compl. at 14 n. 12; Smithson Aff. ¶ 7. But IRTL's counsel did not mention IRTL in that call. Smithson Aff. ¶ 7. And IRTL has not sought a formal advisory opinion from the Board. Id.
IRTL alleges that, prior to October 14, 2010, it wants to: (1) "make a single independent expenditure totaling more than $750, to support the election of Brenna Findley, candidate for Attorney General," specifically, IRTL wants to create a "mailer expressing support of Ms. Findley's pro-life beliefs" to be "sent to IRTL's general mailing list"; and (2) make a $100 contribution to Ms. Findley. Compl. ¶¶ 16, 19. IRTL also alleges that it plans to engage in unspecified, but "materially similar" activities in the future. Pl.'s Br. in Supp. of Mot. for Prelim. Inj. (hereinafter "Pl.'s Br.") at 2 (Clerk's No. 2-1); see also Compl. ¶ 20. IRTL argues that it is "chilled from doing [these things] due to the burdens imposed by the restrictions challenged here and the potential civil and criminal penalties for violating the challenged provisions." Pl.'s Br. at 1.
IRTL requests that the Court issue a preliminary injunction enjoining the Defendants from enforcing several provisions of Iowa election law against IRTL. Mot. at 1-2 (Clerk's No. 2); Pl.'s Br. at 2, 31. This Court believes that the power to grant a preliminary injunction is an awesome power vested in the district court, recognizing that it is an extraordinary form of relief and must be carefully considered. See Calvin Klein Cosmetics, Corp. v. Parfums de Coeur, Ltd., 824 F.2d 665, 667 (8th Cir.1987).
The test for a preliminary injunction involves consideration of four factors: (1) the probability that the movant will succeed on the merits; (2) the threat of irreparable harm to the movant; (3) the state of the balance between this harm and the injury that granting the injunction will inflict on other parties and litigants; and (4)
The first factor the Court must consider in deciding whether to issue a preliminary injunction is the likelihood that Plaintiff will succeed on the merits. Because IRTL seeks a preliminary injunction against the enforcement of a state statute, it must "demonstrate more than just a `fair chance' that it will succeed on the merits." See Planned Parenthood Minn. v. Rounds, 530 F.3d 724, 731-32 (8th Cir.2008) (en banc). Instead, IRTL must meet a more rigorous standard, demonstrating that it is "likely to prevail on the merits." Id. at 732 (quoting Doran v. Salem Inn, Inc., 422 U.S. 922, 931, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975)). This more "rigorous standard `reflects the idea that governmental policies implemented through legislation or regulations developed through presumptively reasoned democratic processes are entitled to a higher degree of deference and should not be enjoined lightly.'" Id. (quoting Able v. United States, 44 F.3d 128, 131 (2d Cir. 1995)). "If the party with the burden of proof makes a threshold showing that it is likely to prevail on the merits, the district court should then proceed to weigh the other Dataphase factors." Id. The Eighth Circuit has stated that "[b]y re-emphasizing this more rigorous standard for demonstrating a likelihood of success on the merits in these cases, we hope to ensure that preliminary injunctions that thwart a state's presumptively reasonable democratic processes are pronounced only after an appropriately deferential analysis." Id. at 733.
"Article III of the Constitution limits federal jurisdiction to cases and controversies, and the `core component of standing is an essential and unchanging part of the case-or-controversy requirement.'" Advantage Media, L.L.C. v. City of Eden Prairie, 456 F.3d 793, 799 (8th Cir.2006) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). Therefore, "[a] federal court bears the burden of examining standing at all stages of litigation, even if the parties do not raise the issue themselves." Harmon v. City of Kansas City, 197 F.3d 321, 327 (8th Cir.1999).
Nat'l Right to Life Political Action Comm. v. Connor, 323 F.3d 684, 689 (8th Cir.2003) (citing Lujan, 504 U.S. at 560-61, 112 S.Ct. 2130). "[S]tanding cannot be inferred argumentatively from averments in the pleadings, but rather must affirmatively appear in the record." FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990) (internal citation marks and quotation omitted), overruled on other grounds by City of Littleton
Zanders v. Swanson, 573 F.3d 591, 593 (8th Cir.2009).
Therefore, in order to demonstrate standing to challenge a particular provision of Iowa law, IRTL must "allege[ ] an actual and well-founded fear that the law will be enforced against" it. See Virginia v. Am. Booksellers Ass'n, 484 U.S. 383, 393, 108 S.Ct. 636, 98 L.Ed.2d 782 (1988); see also Wis. Right to Life, Inc. v. Paradise, 138 F.3d 1183, 1185 (7th Cir.1998) ("We may assume that WRTL has genuine apprehension about what lies ahead. But is its concern objectively `Well-founded'? If not, Article III of the Constitution precludes a federal court from ruling.").
IRTL has alleged four counts in its complaint. A number of IRTL's claims raise standing concerns. The Court will consider each count in turn.
In Count 1 of its complaint, IRTL challenges Iowa Code §§ 68A.102(18) and 68A.402(9), which define "political committee," and "permanent organization," respectively. Compl. ¶ 23. IRTL also asks the Court to enjoin enforcement of these sections in the instant motion. Mot. at 1.
IRTL's main contention is that if IRTL makes $750.00 in independent expenditures, it will be "defined by statute as a political committee."
"Political committee" means any of the following:
Iowa Code § 68A.102(18). Even if IRTL is correct that it falls under this definition, IRTL cannot be covered by § 68A.102(18) unless Iowa interprets it in an unconstitutional manner.
In Citizens United, the Supreme Court held that a federal ban on corporate independent expenditures was unconstitutional. 130 S.Ct. at 913. The federal statute at issue in Citizens United allowed corporations to set up a "separate segregated fund" to make independent expenditures. Id. at 887-88 (citing 2 U.S.C. § 441b(b)(2)). The Supreme Court held that this was unconstitutional because the PAC option did not allow corporations to speak for themselves. Id. at 897. Thus, under Citizens United, Iowa may not constitutionally require corporations to use segregated funds in order to make independent expenditures. See id. Under Iowa law, both political committees and permanent organization must keep their election-related funds segregated from their general treasury funds.
There is no indication in the record, however, that Iowa "intends to interpret its own [statute] in contradiction to this established law." See W. Tradition P'ship v. City of Longmont, No. 09-cv-2303, 2009 WL 3418220, at *7 (D.Colo. Oct. 21, 2009). And "there is nothing on the face of the statute to prevent it from being construed and enforced in a constitutional manner." Cf. Nat'l Right to Life Political Action Comm. v. Lamb, 202 F.Supp.2d 995, 1012 (W.D.Mo.2002), aff'd sub nom. Nat'l Right to Life Political Action Comm. v. Connor, 323 F.3d 684 (8th Cir.2003) (finding that a challenged statute was amenable to a narrowing construction). To the contrary, all of the evidence currently before the Court indicates that Iowa already interprets these provisions to exclude corporations that make only independent expenditures. See, e.g., Advisory Op. 2010-03 (Clerk's No. 20-1 at 13) ("[A]n independent expenditure committee will not be subject to the same registration and reporting requirements as a PAC."); id. at 12 (stating that "corporations may make independent expenditures so long as the disclosure provisions of Iowa Code section 68A.404 [which govern independent expenditure committees] are followed"); see also Iowa Admin. Code r. 351-4.1(1) (providing different rules for independent expenditure committees, permanent organizations and political committees).
The Court also finds that IRTL's alleged fears that those provisions will be enforced against IRTL are not objectively well-founded in light of the statute, regulations, and the evidence in the record. IRTL offers two arguments in support of the proposition that its speech has been chilled, one based on the statutory text and one based on the Board's application of that text. See Pl.'s Br. at 6. First, IRTL argues that, no matter how the relevant officials interpret the statute, IRTL is still a political committee under the plain text of the statute. Hr'g Tr. 9:1-7; see also Pl.'s Br. at 6; Compl. ¶ 18. As discussed above, there is some ambiguity in the statute on this point.
Second, IRTL argues that the Board uses a "vague we-know-it-when-we-see-it approach" to determine whether an organization qualifies as a political committee. See Pl.'s Br. at 6. However, the only support IRTL cites for this assertion is Advisory Opinion 2010-03.
For all of these reasons, the Court concludes that IRTL has not demonstrated that it has standing to challenge Iowa Code § 68A.102(18) or § 68A.402(9). Therefore, on the current record, IRTL is not likely to succeed on the merits of its constitutional challenges to these provisions.
In Count 2 of its complaint, IRTL challenges Iowa Code §§ 68A.402B(3), 68A.404(3), 68A.404(4), Iowa Administrative Code Rule 351-4.9(15), Form Ind-Exp-O and Board Form DR-3.
IRTL also asks this Court to enjoin enforcement of Iowa Code § 68A.503. Mot. at 1. As amended in April 2010, § 68A.503 provides that, subject to some exceptions, "an insurance company, savings and loan association, bank, credit union, or corporation shall not make a monetary or in-kind contribution to a candidate or committee except for a ballot issue committee." Iowa Code § 68A.503(1). Section 68A.503 clearly targets IRTL's intended conduct—making a campaign contribution. Compl. ¶ 19. Defendants do not dispute that this ban applies to IRTL. See generally Defs.' Br. at 13-15; Smithson Aff. ¶ 15. Therefore, IRTL has standing to challenge § 68A.503.
In Count 4 of its complaint, IRTL challenges Iowa Code §§ 68A.404(2)(a)-(b), 68A.404(5)(g), and Form Ind-Exp-O. Compl. ¶ 45. IRTL has asked the Court to enjoin these provisions. Mot. at 1-2.
Section 68A.404(2) provides:
Section 68A.404(5)(g) states that an independent expenditure statement must include,
inter alia:
IRTL also objects to the "Statement of Certification" on Form Ind-Exp-O, which states, in relevant part:
See Form Ind-Exp-O (Clerk's No. 1-1).
IRTL argues that these provisions are unconstitutional both "facially and as applied to IRTL," in violation of the First and Fourteenth Amendments. Compl. ¶ 53. The Court will address whether IRTL has standing to make arguments under each of these Amendments in turn.
"[W]hen a party brings a pre-enforcement challenge to a statute that both provides for criminal penalties and abridges First Amendment rights, `a credible threat of present or future prosecution itself works an injury that is sufficient to confer standing.'" Minn. Citizens Concerned for Life v. Fed. Election Comm'n, 113 F.3d 129, 131 (8th Cir.1997) (quoting N.H. Right to Life Political Action Comm. v. Gardner, 99 F.3d 8, 13 (1st Cir.1996)). The Iowa campaign-finance statute does provide for criminal penalties. See Iowa Code § 68A.701 ("Any person who willfully violates any provisions of this chapter shall upon conviction, be guilty of a serious misdemeanor."). Therefore, IRTL "suffers Article III injury when it must either make significant changes to its operations to obey the regulation, or risk a criminal enforcement action by disobeying the regulation." See Minn. Citizens Concerned for Life, 113 F.3d at 131. But IRTL has not alleged either of these things.
First, IRTL has not alleged that it must make any changes to its current operating procedures, let alone any significant changes. See Compl. ¶¶ 44-53. IRTL alleges only that these requirements "burden[] IRTL's ability to select the
Second, IRTL has not alleged that it plans to make any expenditures without complying with the challenged provisions. See Compl. ¶¶ 44-53. Therefore, IRTL has not alleged that it will "risk criminal enforcement action by disobeying the regulation." See Minn. Citizens Concerned for Life, 113 F.3d at 131; see also Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 298, 99 S.Ct. 2301, 60 L.Ed.2d. 895 (1979) (stating that a claim is justiciable "[w]hen the plaintiff has alleged an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder. . . .").
IRTL has not pled sufficient facts to allow the Court to conclude that it has suffered a First Amendment "injury in fact" caused by the challenged provisions. Therefore, IRTL has failed to demonstrate that it has standing to challenge these provisions based on the First Amendment. See Lamb, 202 F.Supp.2d at 1003.
IRTL also alleges that the challenged provisions violate the Fourteenth Amendment. Compl. ¶ 52. In its brief, IRTL only argues that these provisions violate the Fourteenth Amendment because they violate the First Amendment. See Pl.'s Br. at 29-30 ("As demonstrated above in the First Amendment argument section, Iowa is unable to prove that the prior-board-approval requirement is narrowly tailored to a compelling state interest (or substantially related to any state interest). For the same reasons, the requirement fails strict (or lesser) scrutiny under equal protection."). It is true that "[t]he Equal Protection Clause requires that statutes affecting First Amendment interests be narrowly tailored to their legitimate objectives." Police Dep't of City of Chicago v. Mosley, 408 U.S. 92, 101, 92 S.Ct. 2286, 33 L.Ed.2d. 212 (1972). But Article III's requirements "appl[y] with as much force in the equal protection context as in any other." See United States v. Hays, 515 U.S. 737, 743, 115 S.Ct. 2431, 132 L.Ed.2d 635 (1995). As discussed above, IRTL has not alleged a First Amendment injury. Therefore, IRTL has not demonstrated that it has standing to bring a Fourteenth Amendment claim based only on a violation of the First Amendment.
To the extent, however, that IRTL is stating a separate disparate treatment claim, the Court is satisfied that IRTL has standing. In its complaint, IRTL alleges that the challenged provisions "unconstitutionally burden[ ] the speech-related activities of corporations while not similarly regulating labor unions and other entities, such as LLCs and general partnerships, that are similarly situated." Compl. ¶ 52. This is sufficient to demonstrate standing. See Russell v. Burris, 146 F.3d 563, 572 (8th Cir.1998)
Having concluded that IRTL has demonstrated that it has standing to maintain some of its claims, the Court proceeds to consider the merits of those remaining claims.
IRTL argues that Iowa Code §§ 68.402B(3), 68A.404(3), 68A.404(4), Iowa Administrative Code rule 351-4.9(15), Form Ind-Exp-O, and Form DR-3 are all unconstitutional, both facially and as applied to IRTL. Pl.'s Br. at 11-12. These provisions create a number of obligations for groups that are classified as independent expenditure committees.
IRTL does not seriously dispute that the government has valid interests in disclosure. See Hr'g Tr. 49:16-19 ("We are not asking you to take away disclosure, we think disclosure is good. We think disclaimers are important. We think that does serve the informational interest, and we think that is important to the public to know who is speaking."). Rather, IRTL focuses its attack on the "fit" of Iowa's regulations to those interests. In doing so, IRTL makes two categories of arguments—broad, generalized arguments that it apparently aims at all of the challenged provisions as well as specific arguments against particular provisions. The Court will address each of these groups of arguments in turn.
IRTL makes two generalized arguments against all of the challenged provisions. However, the Court finds neither of these arguments to be persuasive.
IRTL's main argument is that Iowa's regulations are onerous because they are not the least-restrictive means for meeting the state's interests. Hr'g Tr. 49:5-6; see also Pl.'s Br. at 8-9 ("In analyzing the constitutionality of Iowa's scheme, it is important to compare it to the less-restrictive, independent-expenditure federal scheme. . . ."). The least restrictive means test applies only to a strict scrutiny analysis. See N.C. Right to Life, Inc. v. Leake, 525 F.3d 274, 331 (4th Cir.2008) (Michael, J., dissenting); see also Nixon v. Shrink Mo. Gov't PAC, 528 U.S. 377, 400, 120 S.Ct. 897, 145 L.Ed.2d 886 (2000) (Breyer, J., concurring) (noting that "least restrictive means" is a test associated with strict scrutiny review). IRTL argues that these requirements are subject to strict scrutiny because they are "PAC-style" requirements that "impose the kind of burdens imposed on PACs." Id. at 8. The Court does not agree. Unlike the federal ban that was at issue in Citizens United, the requirements contested here "impose no ceiling on campaign-related activities and do not prevent anyone from speaking." See Citizens United, 130 S.Ct. at 914 (quoting Buckley v. Valeo, 424 U.S. 1, 64, 96 S.Ct. 612, 46 L.Ed.2d. 659 (1976) and McConnell v. Fed. Election Comm'n, 540 U.S. 93, 201, 124 S.Ct. 619, 157 L.Ed.2d 491 (2003)) (internal quotation marks omitted); see also Iowa Code §§ 68.402B(3), 68A.404(3), 68A.404(4); Iowa Administrative Code rule 351-4.9(15); Form Ind-Exp-O; Form DR-3. Therefore, although they "may burden the ability to speak," they are not subject to strict scrutiny. Citizens United, 130 S.Ct. at 914. Instead, they are subject to exacting scrutiny.
Under exacting scrutiny, Iowa is not required to employ the "least-restrictive means to meet a compelling government interest." See Citizens United, 130 S.Ct. at 914 (requiring only a "substantial relation" to a "sufficiently important" interest). Therefore, even if less-burdensome alternatives do exist, that fact does not, contrary to IRTL's contentions, render these provisions unconstitutional.
IRTL argues that the challenged provisions "violate Buckley's mandate that burdensome PAC-style regulations may be imposed only on `organizations that are under the control of a candidate or the major purpose of which is the nomination or election of a candidate." Pl.'s Br. at 11 (citing Buckley, 424 U.S. at 79, 96 S.Ct. 612). But the Court reads no such "mandate" in Buckley.
In the portion of Buckley relied upon by IRTL, the Supreme Court considered federal disclosure requirements and specifically approved of such disclosures, as long as they were limited to "spending that is unambiguously related to the campaign of a particular federal candidate." Buckley, 424 U.S. at 80, 96 S.Ct. 612. The Supreme Court reasoned that expenditures made by organizations that were "under the control of a candidate or the major purpose of which is the nomination or election of a candidate" were, "by definition, campaign related." Id. at 79, 96 S.Ct. 612. Therefore, Congress could require such organizations to disclose all of their expenditures, i.e., they could be regulated as "political committees." See id. For other organizations, however, Congress could only require disclosure of "spending that is unambiguously related to the campaign of a particular . . . candidate." Id. at 80, 96 S.Ct. 612. When limited in this way, the Supreme Court concluded that the disclosure requirements had "a sufficient relationship to a substantial governmental interest." Id.
Therefore, the Court concludes that "Buckley's statement—that defining groups with `the major purpose' of political advocacy as political committees is sufficient `to fulfill the purposes of the Act[ ]'— does not indicate that an entity must have that major purpose to be deemed constitutionally a political committee." Human Life of Wash. Inc. v. Brumsickle, 624 F.3d 990, 1009-10 (9th Cir.2010) (internal citation omitted). Indeed, "Buckley . . . only defined the outer limits of permissible political committee regulation" and "left room for legislative judgment within these limits, so long as the resulting regulation does not prohibit a substantial amount of non-electoral speech." See Leake, 525 F.3d at 327 (Michael, J., dissenting).
Because Buckley simply does not categorically "prohibit[ ] the government from designating a group as a `political committee' unless the group's sole, primary purpose is political advocacy," it also does not categorically prohibit Iowa from subjecting entities to disclosure requirements simply because those requirements may be characterized as "PAC-style regulations."
In addition to its generalized arguments, IRTL makes particularized arguments against the provisions challenged in Count 2. See Pl.'s Br. at 7-12. At the hearing, IRTL's counsel summarized its main complaints as follows:
Hr'g Tr. 49:5-11.
As discussed above, these provisions are subject to exacting scrutiny. See Citizens United, 130 S.Ct. at 914. This standard "requires a `substantial relation' between the disclosure requirement and a `sufficiently important' governmental interest." Id. The Court will address IRTL's specific contentions in turn.
IRTL first objects to the initial filing requirements contained in Iowa Code §§ 68A.404(4)(a), 68A.404(3)(a), and Form Ind-Exp-O. See Pl.'s Br. at 7, 9 & n. 3.
As an initial matter, IRTL's counsel repeatedly insisted at the hearing that Iowa requires corporations to register before they speak. Hr'g Tr. 12:12-13, 49:5-7; see also id. at 19:24-25. However, the statute contains no such requirement. Section 68A.404(3)(a) provides that "[a]n initial report shall be filed at the same time as the independent expenditure statement." Section 68A.404(4)(a) further provides:
Although the statute requires both an "independent expenditure statement" and an "initial report," the Board allows independent expenditure committees to file a single form, Form Ind-Exp-O, to satisfy both requirements. See Smithson Aff. ¶ 8 (citing Iowa Admin. Code r. 351-4.27(2)); Pl.'s Br. at 7 n. 3.
For the purposes of § 68A.404, "an independent expenditure is made at the time that the cost is incurred." Iowa Code § 68A.404(4)(c). Therefore, it is possible that a corporation would have to make its initial filing before it actually disseminates its speech to the public. See Iowa Code § 68A.404(4)(a). However, the fact that this possibility exists is very different from a blanket requirement that corporations "register before they speak." See Hr'g Tr. 49:7.
In its brief, IRTL argues that §§ 68A.404(3)(a) and 68A.404(4)(a) are unconstitutionally burdensome because an independent
Because these provisions pass exacting scrutiny, the Court concludes that IRTL is unlikely to succeed on the merits of its claims against the initial filing requirements contained in Iowa Code §§ 68A.404(4)(a), 68A.404(3)(a) and Form Ind-Exp-O.
IRTL argues that Iowa's subsequent reporting requirements for independent expenditure committees, as contained in Iowa Code §§ 68A.404(3)(a), 68A.404(3)(a)(1), and Iowa Administrative Code rule 351-4.9(15), are unconstitutionally burdensome. See Pl.'s Br. at 7-8, 8 n. 6. First, IRTL objects to the fact that § 68A.404(3)(a) and rule 351-4.9(15) require periodic disclosures instead of "event-driven" disclosures. See Pl.'s Br. at 9. Both the statute and the rule require independent expenditure committees to file reports "according to the same schedule as the office or election to which the independent expenditure was directed." Iowa Code § 68A.404(3)(a); Iowa Admin. Code r. 351-4.9(15). Defendants argue that this periodic reporting requirement serves the state's informational interest, allowing Iowa to help its citizens "make informed choices in the political marketplace." Defs.' Br. at 11-12 (quoting Citizens United, 130 S.Ct. at 914). The Court agrees, and finds that the periodic reporting requirement is substantially related to this important informational interest. See Citizens United, 130 S.Ct. at 915-16; see also SpeechNow.org, 599 F.3d at 696 (noting that "[t]he Supreme Court has consistently upheld organizational and reporting requirements against facial challenges," based on this informational interest); Minn. Citizens Concerned for Life v. Swanson, No. 10-2938, 741 F.Supp.2d 1115, 1130-31, 2010 WL 3768041, at *11 (D.Minn. Sept. 20, 2010) (slip copy) (upholding periodic reporting requirements). Iowa "is entitled to conclude that its electorate needs to know, on an ongoing basis, the source of financial support for those who are taking positions" in support of a candidate for state office. Cf. Nat'l Org. For Marriage v. McKee, 666 F.Supp.2d 193, 208 (D.Me.2009) (upholding reporting requirements in the context of ballot-initiative advocacy). Therefore, the periodic reporting requirements pass exacting scrutiny.
Second, IRTL objects to the fact that Iowa "requir[es] supplemental reports from groups simply raising over $1,000 in contributions earmarked for making independent
Because both of these requirements pass exacting scrutiny, the Court concludes that IRTL is unlikely to succeed on the merits of its claims against the periodic and supplemental requirements contained in Iowa Code §§ 68A.404(3)(a), 68A.404(3)(a)(1) and Iowa Administrative Code rule 351-4.9(15).
IRTL argues that Iowa requires independent expenditure committees to formally dissolve in a manner that "effectively requires the entity to cease to exist." Pl.'s Br. at 10; see also Hr'g Tr. 11:19-20. IRTL also argues that an independent expenditure committee may not terminate its status as such without the Board's approval. Pl.'s Br. at 10-11; Hr'g Tr. 11:21-23. According to IRTL, these requirements are unconstitutionally burdensome and are imposed on independent expenditure committees by Iowa Code § 68A.402B(3), Iowa Administrative Code rule 351-4.9(15), and Form DR-3. See Pl.'s Br. at 8, 10-11 & n. 6; see also Mot. at 1 (challenging these provisions). However, none of these three challenged provisions actually impose such requirements on independent expenditure committees.
First, there is simply no requirement in § 68.402B(3) that "effectively requires [a covered] entity to cease to exist." Pl.'s Br. at 10; see also Mot. at 1 (challenging only subsection (3) of § 68A.402B). Section 68A.402B provides, in its entirety, that:
Thus, the statute clearly distinguishes between requirements for committees (including political committees) and independent expenditure committees. Section 68A.402B requires both committees and independent expenditure committees to notify the Board if they determine that they will no longer participate in covered election-related activities. See Iowa Code §§ 68A.402B(1), (3). However, the required reports are not the same. Committees (which, as noted above, include political committees) must file a "dissolution report," while "a person who files an independent expenditure statement and a disclosure report, pursuant to section 68A.404" (i.e., an independent expenditure committee) must file a "termination report." Compare Iowa Code § 68A.402B(1) with Iowa Code § 68A.402B(3). Additionally, the statute indicates that committees must formally dissolve and seek Board approval before their reporting requirements are extinguished. Iowa Code § 68A.402B(2). But there is no such requirement for independent expenditure committees. See Iowa Code § 68A.402B. Therefore, § 68A.402B simply does not require independent expenditure committees to formally dissolve or obtain Board approval before their reporting requirements are extinguished.
Second, IRTL points to the use of the term "notice of dissolution" in Iowa Administrative Code rule 351-4.9(15). See Pl.'s Br. at 8 n. 6 (citing that rule in support of its dissolution requirements). The rule states, in relevant part, that an independent expenditure committee must "file reports according to the same schedule as the office or election to which the independent expenditure was directed until the committee files a notice of dissolution pursuant to Iowa Code section 68A.402B(3)...." Iowa Admin. Code r. 351-4.9(15) (emphasis added). Although this rule uses the term "dissolution," the same term used in §§ 68A.402B(1)-(2), it clearly incorporates only the requirements of § 68A.402B. Id. Because § 68A.402B does not contain any financial dissolution or Board-approval requirements, neither does rule 351-4.9(15).
A committee may end its filing obligation by filing a Notice of Dissolution when it has
Form DR-3 (Clerk's No. 1-2). However, Form DR-3 imposes no such requirements on independent expenditure committees.
Because IRTL purports to challenge requirements that simply do not exist in Iowa Code § 68A.402B(3), Iowa Administrative Code rule 351-4.9(15), and Form DR-3, the Court concludes that IRTL is unlikely to succeed on the merits of its termination-related claims against these provisions.
IRTL alleges that Iowa Code § 68.503, which bans corporate campaign contributions, is unconstitutional, both facially and as applied to IRTL. Compl. ¶ 19. IRTL argues that this provision violates both the First and Fourteenth Amendments. Pl.'s Br. at 13, 22. The Court will consider each of these contentions in turn.
As an initial matter, IRTL argues that § 68A.503 is subject to strict scrutiny. Pl.'s Br. at 13. IRTL concedes that "[s]ince Buckley, courts have subjected contribution limits to less demanding review." Id. at 14. However, IRTL argues strict scrutiny should apply in this case because: (1) Iowa bans contributions, instead of limiting them; (2) the ban "impermissibly singles out certain speakers, e.g. corporations and banks"; and (3) the ban is "a content-based regulation." Id. at 14 n. 2, 15, 18-19. The Court does not agree.
IRTL's first two arguments have already been rejected by the Supreme Court. See Fed. Election Comm'n v. Beaumont, 539 U.S. 146, 162, 123 S.Ct. 2200, 156 L.Ed.2d 179 (2003) ("It is not that the difference between a ban and a limit is to be ignored; it is just that the time to consider it is when applying scrutiny at the level selected, not in selecting the standard of review itself."); id. at 161, 123 S.Ct. 2200 (rejecting the argument "that application of the ban on its contributions should be subject to a strict level of scrutiny, on the ground that § 441b does not merely limit contributions, but bans them on the basis of their source"). Therefore, this Court must reject these arguments as well.
IRTL also argues that strict scrutiny applies because § 68A.503 is a content-based restriction on speech. Pl.'s Br. at 18. "As a general rule, laws that by their terms distinguish favored speech from disfavored speech on the basis of the ideas or views expressed are content based." Bartnicki v. Vopper, 532 U.S. 514, 526, 121 S.Ct. 1753, 149 L.Ed.2d 787 (2001) (quoting Turner Broad. Sys., Inc. v. Fed. Commc'ns Comm'n, 512 U.S. 622, 642-43, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994)). "In determining whether a regulation is content based or content neutral, we look to the purpose behind the regulation; typically, government regulation of expressive activity is content neutral so long as it is justified without reference to the content of the regulated speech." Id. (quoting Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989)) (internal quotation marks omitted); see also Fraternal Order of Police, N.D. State Lodge v. Stenehjem, 431 F.3d 591, 596 (8th Cir.2005) ("The principal inquiry in determining content neutrality is whether the government has adopted a regulation of speech because of disagreement with the message the speech conveys."). This is true "even if [the regulation] has an incidental effect on some speakers or messages but not others." See Ward, 491 U.S. at 791, 109 S.Ct. 2746.
In this case, there is no indication in the record that Iowa enacted § 68A.503 because it disagrees with the message conveyed by contributions.
Under closely-drawn scrutiny, the Iowa contribution ban must be "closely drawn to match a sufficiently important interest." Beaumont, 539 U.S. at 161, 123 S.Ct. 2200 (internal quotation marks omitted). This is a "relatively complaisant review." Id. A contribution limit fails this standard if it prevents candidates "from amassing the resources necessary for effective campaign advocacy." Randall v. Sorrell, 548 U.S. 230, 248, 126 S.Ct. 2479, 165 L.Ed.2d 482 (2006) (quoting Buckley, 424 U.S. at 21, 96 S.Ct. 612). "Where there is strong indication in a particular case, i.e., danger signs, that such risks exist, courts must review the record independently and carefully to assess the statute's tailoring." Thalheimer v. City of San Diego, 706 F.Supp.2d 1065, 1073 (S.D.Cal. 2010) (quoting Randall, 548 U.S. at 249, 126 S.Ct. 2479) (internal quotation marks omitted).
In this case, Defendants argue that the government has compelling interests in preventing corruption or the appearance of corruption. See Smithson Aff. ¶ 15 ("The state has a compelling interest in protecting the public trust in the conduct and fairness of the election of state officers, and the ban on corporate contributions serves that interest by protecting against corruption or the appearance of corruption...."). The Court agrees. See First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765, 788 n. 26, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978) ("The importance of the governmental interest in preventing [corruption] has never been doubted."); see also Beaumont, 539 U.S. at 154, 123 S.Ct. 2200 (noting that the federal ban on corporate contributions "was and is intended to prevent corruption or the appearance of corruption") (quoting Fed. Election Comm'n v. Nat'l Conservative Political Action Comm., 470 U.S. 480, 496-497, 105 S.Ct. 1459, 84 L.Ed.2d 455 (1985) (internal quotation marks omitted)).
"Whether the limit is unconstitutionally low because it prevents candidates from amassing the resources necessary for effective campaign advocacy is a fact intensive inquiry." Thalheimer, 706 F.Supp.2d at 1073. However, IRTL has provided this Court with few facts in support of its challenge. IRTL argues that § 68A.503 is not closely drawn because it applies to
Additionally, § 68A.503 is not, as IRTL argues, "an outright ban on corporate political speech" or "a prohibition on political association." Pl.'s Br. at 21, 15. Section 68A.503 "does not prevent [IRTL] from expressing support in other ways such as making independent expenditures, volunteering services to a campaign, or endorsing a candidate." See Minn. Citizens Concerned for Life, Inc. v. Kelley, 427 F.3d 1106, 1115 (8th Cir.2005); see also Iowa Code § 68A.404 (setting no cap on independent expenditures). Nor does it prevent IRTL from associating with its favored
For all of these reasons, IRTL has failed to show that it is likely to succeed on the merits of its First Amendment claims against § 68A.503.
IRTL also argues that § 68A.503 violates its rights under the Fourteenth Amendment because: (1) it is a content-based restriction; and (2) it treats corporations differently than other associations, such as labor unions. Pl.'s Br. at 22-23. IRTL's first argument fails at the outset because, as discussed above, § 68A.503 is not a content-based restriction. IRTL's second argument fails because IRTL has not made the requisite threshold showing.
In order to prevail on its equal protection claim, IRTL must show that it is "similarly situated to those who allegedly receive favorable treatment." Arnold v. City of Columbia, 197 F.3d 1217, 1220 (8th Cir.1999). IRTL avers that "corporations and other organized associations are similarly situated." Pl.'s Br. at 23; see also Compl. ¶ 42 (suggesting that "labor unions, LLCs, and general partnerships" are similarly situated to corporations). However, IRTL does not identify any relevant similarities or provide any evidence at all to support this generalized assertion.
IRTL argues that Iowa Code §§ 68A.404(2)(a)-(b), 68A.404(5)(g), and Form Ind-Exp-O "unconstitutionally burden[] the speech-related activities of corporations while not similarly regulating labor unions and other entities, such as LLCs and general partnerships, that are similarly situated." Compl. ¶ 52. Section 68A.404(a) provides that:
This section, on its face, does not discriminate between corporations and the other entities identified by IRTL. See id.; Compl. ¶ 52. IRTL argues, however, that this section really only targets corporations because, among other things, § 68A.404(5)(g) and Form Ind-Exp-O refer only to corporations. See Pl.'s Br. at 26-27. Section § 68A.404(5)(g) provides that:
Form Ind-Exp-O includes a "Statement of Certification" that states, in relevant part, that "[i]f this expenditure was made by a corporation that the board of directors, executive council, or similar organizational leadership body expressly authorized the expenditure by resolution or other affirmative action this year." See Form Ind-Exp-O.
However, even if this requirement only applies to corporations, IRTL offers nothing more than a bare assertion that corporations are "similarly situated" to "labor unions and other entities, such as LLCs and general partnerships." Compl. ¶ 52. For all of the reasons discussed above in Section A(3)(b), the Court finds that such naked allegations are insufficient to carry IRTL's threshold burden. Therefore, IRTL is unlikely to succeed on the merits of its disparate treatment claim.
Because IRTL has not made a threshold showing that it is likely to succeed on the merits of its claims, the Court is not required to consider the remaining Dataphase factors. Rounds, 530 F.3d at 732. However, the Court finds IRTL has also failed to show that it will suffer irreparable harm if a preliminary injunction is not issued, that the balance of harms favors IRTL, or that the public interest would be served by granting an injunction.
"The basis of injunctive relief in the federal courts has always been irreparable harm and inadequacy of legal remedies." Adam-Mellang v. Apartment Search, Inc., 96 F.3d 297, 299 (8th Cir. 1996) (quoting Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 506-07, 79 S.Ct. 948, 3 L.Ed.2d 988 (1959)). Therefore, "a party moving for a preliminary injunction is required to show the threat of irreparable harm." Baker Elec. Co-op., Inc. v. Chaske, 28 F.3d 1466, 1472 (8th Cir.1994) (citing Modern Computer Sys., 871 F.2d at 738; Dataphase, 640 F.2d at 114). A "failure to demonstrate irreparable harm is a sufficient ground to deny a preliminary injunction...." Gen. Motors Corp. v. Harry Brown's, LLC, 563 F.3d 312, 320 (8th Cir.2009). IRTL's only argument on this factor is that it is entitled to a presumption of irreparable harm because it has demonstrated that its rights have been violated. See Pl.'s Br. at 30. However, IRTL has not made such a demonstration. Therefore, it is not entitled to any such presumption and has failed to show that it will suffer irreparable harm absent an injunction.
The balance of harms must "tip decidedly and clearly in [IRTL's] favor" to justify issuing a preliminary injunction. See Lynch Corp. v. Omaha Nat'l Bank, 666 F.2d 1208, 1212 (8th Cir.1981). IRTL argues that it "has demonstrated that the challenged provisions unconstitutionally infringe on its speech, association, and equal protection rights" and that the Defendants have no interest in "enforcing a law that is likely unconstitutional." Pl.'s Br. at 30-31. But, for all the reasons discussed above, IRTL has not demonstrated either that the challenged provisions violate IRTL's rights or that the challenged provisions are likely unconstitutional. Furthermore, Defendants have a valid interest in facilitating transparency in Iowa elections. See Citizens United, 130 S.Ct. at 916. This interest would be impaired if the Court granted IRTL's requested relief.
Even if IRTL had shown that it was likely to succeed on the merits, IRTL has failed to show that the public interest weighs in favor of granting a preliminary injunction. Once again, IRTL makes no argument on this factor beyond its own assertion that it will succeed on the merits. Pl.'s Br. at 31. Because IRTL is not likely to succeed on the merits, IRTL has failed to show that the public interest would be served by granting a preliminary injunction. Furthermore, "the public has an interest in knowing who is speaking about a candidate shortly before an election," an interest which would be impaired—not served—by the broad relief requested by IRTL. See Citizens United, 130 S.Ct. at 915; see also Swanson, 741 F.Supp.2d at 1134-35, 2010 WL 3768041, at *15. Therefore, the Court finds that the public interest weighs against the granting of a preliminary injunction.
IRTL has asked this Court to enjoin the enforcement of a duly-enacted statute and radically change Iowa's campaign finance rules mid-stream during an election. IRTL has failed to meet the burden required to obtain this extraordinary relief. After considering all of the Dataphase factors, the Court concludes that the balance of the equities do not support a preliminary injunction. Specifically, the Court finds that IRTL has failed to make the required threshold showing that it is likely to succeed on the merits of its claims. But even if it had made such a showing, IRTL would not be entitled to a preliminary injunction because it has failed to show that it will suffer irreparable harm if the preliminary injunction is not issued. Additionally, IRTL has failed to show that the balance of harms weighs in favor of issuing a preliminary injunction or that the public interest weighs in favor of issuing a preliminary injunction. Therefore, IRTL's motion for a preliminary injunction (Clerk's No. 2), is DENIED.
IT IS SO ORDERED.
First, contrary to IRTL's suggestion, the result in Beaumont did not depend on the availability of a PAC option. See Pl.'s Br. at 12-13. Rather, the Supreme Court stated that its decision was based on the differences between independent expenditures and contributions. See Beaumont, 539 U.S. at 159, 123 S.Ct. 2200 ("[A]lthough we have never squarely held against NCRL's position here, we could not hold for it without recasting our understanding of the risks of harm posed by corporate political contributions, of the expressive significance of contributions, and of the consequent deference owed to legislative judgments on what to do about them.").
Second, IRTL is simply wrong when it argues that Beaumont's reasoning has been "discredited" by Citizens United. See Pl.'s Br. at 13. IRTL argues that "Beaumont found three state interests supporting the ban: an antidistortion interest, a shareholder-protection interest, and an anticircumvention interest. Citizens rejected all three." Id. at 12. This is a mischaracterization of Beaumont. In Beaumont, the Supreme Court stated that the ban's major purpose was to prevent corruption or the appearance of corruption. Beaumont, 539 U.S. at 154, 123 S.Ct. 2200 ("[T]he ban was and is intended to prevent corruption or the appearance of corruption.") (internal quotation marks omitted). The Supreme Court did discuss the three interests listed by IRTL as additional interests served by the ban, but it never suggested that the government's interest in preventing corruption was not itself sufficient to support the ban. See id. at 154-59, 123 S.Ct. 2200. And, importantly, Citizens United dealt with independent expenditures, not contributions. See Citizens United, 130 S.Ct. at 909. In arguing that Beaumont's reasoning is "discredited," IRTL is really arguing that a rationale utilized "to declare prohibitions on independent expenditures unconstitutional as applied to [corporations] is equally applicable in the context of direct contributions"—a proposition the Supreme Court has already rejected. See Beaumont, 539 U.S. at 151, 123 S.Ct. 2200 (quoting Beaumont v. Fed. Election Comm'n, 278 F.3d 261, 275 (4th Cir.2002)).
