INDIANA – On Thursday, James Bopp, counsel for Indiana Right to Life Victory Fund (“IRTL Victory Fund”), a PAC that makes only independent expenditures, argued in the Indiana Supreme Court that Indiana’s Election Code unconstitutionally prohibits corporations from contributing to PACs for independent expenditures.
The Supreme Court, in recent cases such as Citizens United v. Federal Election Commission, has repeatedly made clear that political contribution limits are constitutional only if they aim to prevent quid-pro-quo corruption (that is, the exchange of dollars for political favors). It has also made clear that independent expenditures, which are not coordinated or planned in any way with candidates, cannot create a threat of such corruption. The result is that the government may not impose any source or amount limits on contributions to independent expenditure-only PACs, such as IRTL Victory fund.
Nonetheless, a plain reading of Indiana law shows that it requires any corporate contribution to a PAC to be designated for disbursement to particular candidates or candidate’s committees. This acts as a complete prohibition on contributions to PACs for independent expenditures. Both civil and criminal penalties may be assessed for violations of this complete prohibition.
IRTL Victory Fund challenged this unconstitutional statutory scheme, pointing out the plain and unambiguous nature of the prohibition. In support of this argument, it pointed to the Indiana Election Division’s own statements, including a statement that a corporation would violate the Election Code if it designated a contribution to a PAC for an independent expenditure.
IRTL Victory Fund also pointed out the cold comfort and illusory nature of two affidavits Indiana relied on in defense of the statutory scheme. Although two election officials, in these affidavits, claimed they would not enforce these laws as IRTL Victory Fund fears, such affidavits are meaningless since they may not be enforced by a court, nor do they have any effect on future officeholders—meaning IRTL Victory Fund is only one change of office (or of mind) away from being right back at square one as far as “official promises” are concerned.
“Our First Amendment rights do not and cannot hinge on whether government bureaucrats promise to let us have them,” said Bopp. “Nor should plainly unconstitutional statutes be allowed to stand by judges who believe the claims of bureaucrats that the intent of such statutes is something other than what they plainly say. Our Constitutional rights would constantly shift in such a framework, and our ability to know what we may and may not legally do would be eviscerated.”
The court will announce its decision in the coming weeks.
Watch the oral arguments here.
