Good Signs for First Amendment in Judge William Pryor’s Rulings on Tax-Financing, Political Sign Cases
Editor’s note: Judge William Pryor is reportedly one of the leading candidates to be nominated to the Supreme Court by President-elect Donald Trump. The Center for Competitive Politics is reviewing the major First Amendment decisions of all the candidates to assess whether they can be trusted to defend free speech at the Supreme Court. Below is the CCP’s report on Pryor.
JUDGE WILLIAM PRYOR wrote or joined an opinion in two First Amendment cases of note while on the Eleventh Circuit: Scott v. Roberts, (2010); and Beaulieu v. City of Alabaster (2006). In both these cases, Judge Pryor supported the First Amendment’s rights of political expression.
Scott v. Roberts
Scott presented Republican gubernatorial candidate Rick Scott’s challenge to a tax-financed campaign scheme the state enacted in 1986 and amended in 1991. The program generally operated as a matching funds program. It matched contributions by Florida residents up to $250 per person by a factor of two-to-one for the first $150,000 a candidate raised. Thereafter, the match was one-to-one. However, once an opponent to a tax-financed candidate spent over $2/registered voter, the subsidized candidate received a dollar-for-dollar match of his opponent’s spending. The subsidized candidate no longer needed to raise any private funds to receive the subsidy. The law also allowed subsidized candidates to exceed expenditure limits. Judge Pryor held the scheme was likely unconstitutional, and the opinion overturned a district court’s denial of a preliminary injunction.
This opinion preceded Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, a 2011 Supreme Court decision. The U.S. Supreme Court had signaled it may reverse the Ninth Circuit as it stayed a similar mandate in that case. Still, Arizona Free Enterprise Club presented a law that posed burdens on speech by independent groups, not just candidates.
Writing for the panel, Pryor relied on Davis v. FEC (2008), which invalidated the so-called Millionaire’s Amendment to the Bipartisan Campaign Reform Act (2002). The Millionaire’s Amendment had increased contribution limits for candidates running against self-funding candidates whose spending reached a certain threshold.
From the opinion:
We agree with Scott that Davis requires us to subject the excess spending subsidy to strict scrutiny. We conclude that even if the subsidy encourages participation in the public financing system and indirectly prevents corruption or the appearance of corruption, the excess spending subsidy is not the least restrictive means of doing so […] .
[W]e think it is obvious that the subsidy imposes a burden on nonparticipating candidates, like Scott, who spend large sums of money in support of their candidacies […] . [Taxpayer-funded] opponents use [the subsidy] to further their own candidacies and attempt to defeat the candidacy of the nonparticipant. When the participating candidates speak in support of their own candidacies, they raise the cost of their nonparticipating opponent’s speech in support of his candidacy.
[W]e conclude that the burden that an excess spending subsidy imposes on nonparticipating candidates “is harsher than the penalty in Davis, as it leaves no doubt” that the nonparticipants’ opponents “will receive additional money.” Although Davis concerned a discriminatory contribution system that burdened a self-funding candidate, what triggered strict scrutiny was the grant of a competitive advantage – an increase in the ability of Davis’s opponent to speak […] . [Internal citations omitted.]
Judge Pryor determined the state’s “anticorruption” interest could not withstand scrutiny:
The Secretary and McCollum contend that the subsidy furthers the anticorruption interest by encouraging participation in the public campaign financing system of Florida, which in turn prevents corruption or the appearance of corruption.
The parties have not sufficiently explained how the Florida public financing system furthers the anticorruption interest. As we understand the system, it enables candidates who are willing to accept limits on personal expenditures and campaign expenditures, and it grants participating candidates public money. In all other respects, the system enables candidates who run campaigns that are indistinguishable from the campaigns of nonparticipants like Scott.
The limit that the public campaign financing system imposes on the personal expenditures of participating candidates does not appear to reduce corruption or the appearance of corruption. The Supreme Court has explained that “the use of personal funds reduces the candidate’s dependence on outside contributions and thereby counteracts the coercive pressures and attendant risks of abuse” of campaign contributions. The Supreme Court reaffirmed this principle in Davis when it held that discouraging the use of personal funds by wealthy candidates for federal office “disserves the anticorruption interest.” Thus, by encouraging individuals to accept a limit on personal expenditures, the subsidy does not appear to reduce corruption.
At bottom, the Florida public campaign financing system appears primarily to advantage candidates with little money or who exercise restraint in fundraising. That is, the system levels the electoral playing field, and that purpose is constitutionally problematic. The Supreme Court explained in Davis, “[d]ifferent candidates have different strengths” and “[l]eveling electoral opportunities means making and implementing judgments about which strengths should be permitted to contribute to the outcome of an election.”
In some circumstances, public financing may serve an anticorruption interest by “eliminating the improper influence of large private contributions.” It is only to say that Florida, in the light of the election laws it has adopted, cannot impose a “special and potentially significant burden,” on the First Amendment rights of nonparticipating candidates who do not wish, for whatever reason, to accept public money and its attendant limitations on the theory that its public financing system reduces actual or apparent corruption.
Even if we were certain that the public financing system of Florida furthers an anticorruption interest, we agree that Scott has proved a likelihood that the excess spending subsidy is not the least restrictive means of encouraging that participation.
We agree with Scott that Florida could encourage participation to virtually the same degree that it maintains it currently does by doing no more than releasing participating candidates from the expenditure ceiling. This release would place participating and nonparticipating candidates on equal footing, except that nonparticipating candidates could spend as much of their own personal resources in support of their campaigns.
In sum, Davis requires that Florida justify the excess spending subsidy by establishing that it furthers a compelling state interest. Florida has stated that the excess spending subsidy furthers its anticorruption interest by encouraging participation in its public financing system. Florida has not, however, proved that the excess spending subsidy furthers the anticorruption interest in the least restrictive manner. [Internal citations omitted.]
Beaulieu v. City of Alabaster
In Beaulieu, Judge Pryor joined an opinion that held a city’s sign-usage ordinance unconstitutional. The ordinance placed different burdens on commercial and political signs. Ms. Beaulieu advertised her candidacy for a judgeship with a sign outside her office. Under the ordinance, citizens could place political signs in residences without city preapproval or use them as “substitutes” for existing signs in commercial areas, but only after going through a city permit process. The ordinance generally exempted real estate signs from permitting mandates.
Applying strict scrutiny, the panel affirmed the district court ruling, which overturned the ordinance. The panel determined that the city’s interests in aesthetics and safety did not overcome the core political speech at issue.
From the opinion:
This case involves the broadest of First Amendment rights because it concerns the right of a political candidate to publicize her candidacy during the heat of a campaign.
If we determine that the ordinance discriminates among political messages or discriminates in favor of commercial messages over political ones, it is content-based and we apply strict scrutiny.
The City would have us believe that its sign ordinance is content-neutral because the substitution clause allows “any sign […] [to] contain, in lieu of any other message or copy, any lawful noncommercial message.”
Although a substitution clause may turn an otherwise content-based regulation into a content-neutral, constitutional one, that is not the case here. Even if political signs can be substituted for real estate signs in the City of Alabaster, they are still not treated equally. Under the City’s interpretation of its sign ordinance, a person who wants to post a real estate sign can simply post the sign on her property. But a person who wants to substitute a campaign sign for a real estate sign under section 12.0 must visit Alabaster City Hall, complete an application for the substitution, pay the permit fee, and wait at least a week for a response.
In sum, under the sign ordinance it is easier, cheaper, and faster for Beaulieu to post a real estate sign than a campaign sign. Because political signs are subject to more regulatory burden than real estate signs, the sign ordinance discriminates against political speech in favor of commercial speech.
[The] sign ordinance cannot survive strict scrutiny. The City’s interests in aesthetics and traffic safety are substantial but they are not compelling for present purposes.
Even if the City’s interests were compelling, the sign ordinance is not narrowly tailored. The ordinance abstractly recites its interests in aesthetics and traffic safety without explaining how the regulations further those interests generally, or how its discrimination in favor of real estate signs promotes those interests specifically.
The sign ordinance’s exemption of real estate signs from the permit requirement may further the City’s interest in nurturing the real estate market, but it will not make the City of Alabaster shine more brightly or make it a safer place to drive or stroll […] . [Internal citations omitted.]
Mr. Keating is the President of the Center for Competitive Politics. This article was originally published by the Center for Competitive Politics on January 18.