Center for Individual Freedom v. Charles Scott, et

Case: 13-31273 Document: 00512708690 Page: 1 Date Filed: 07/23/2014

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
July 23, 2014
No. 13-31273
Lyle W. Cayce
Summary Calendar Clerk

CENTER FOR INDIVIDUAL FREEDOM,

Plaintiff-Appellant
v.

CHARLES R. SCOTT; M. BLANK MONROSE; SCOTT SCHNEIDER;
TERRY BACKHAUS; JULIA E. BLEWER; CHARLES EMILE BRUNEAU,
JR.; JEAN INGRASSIA; LOUIS LEGGIO; STEVE LEMKE; BOB
MCANELLY; ASHLEY KENNEDY SHELTON; GROVE STAFFORD,

Defendants-Appellees

Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:13-CV-2715

Before HIGGINBOTHAM, DENNIS, GRAVES, Circuit Judges.
PER CURIAM:*
Plaintiff-appellant Center for Individual Freedom appeals from the
district court’s denial of its motion to preliminarily enjoin enforcement of the
Louisiana Campaign Finance Disclosure Act in a manner inconsistent with
this court’s prior ruling in Center for Individual Freedom, Inc. v. Carmouche,

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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No. 13-31273
449 F.3d 655 (5th Cir. 2006). Defendants-appellees are various officials of the
State of Louisiana. Before the district court, the Center contended that the
State was enforcing the Campaign Finance Disclosure Act impermissibly
under Carmouche, which upheld the constitutionality of the statute against a
First Amendment “vagueness” challenge by applying a limiting construction to
the statute’s reach. The district court struggled, understandably, with how to
interpret the Center’s claim, whether as contending that the statute is
unconstitutional on its face, that the statute is being enforced in an
unconstitutional manner, or otherwise. The district court concluded, however,
that, under any interpretation of the claim, the motion for a preliminary
injunction should be denied. For the reasons that follow, we affirm.
Under the Campaign Finance Disclosure Act,
[a]ny person, other than a candidate or a political
committee, who makes any expenditure . . ., shall file
reports if . . . said expenditures . . . exceed five hundred
dollars in the aggregate during the aggregating period
as defined for committees.
La. Rev. Stat. § 18:1501.1(A)(1). An “expenditure” means generally a use of
money or property “for the purpose of supporting, opposing, or otherwise
influencing the nomination or election of a person to public office.” Id.
§ 18:1483(9). If an organization’s expenditures “exceed five hundred dollars in
the aggregate” during the statutory “aggregating period,” the organization
“shall file reports” containing, among other things, the name and address of
the organization and the organization’s donors that funded the expenditures.
Id. § 18:1491.7. Failure to file the reports could result in civil or criminal
sanctions. Id. §§ 18:1505.4, 18:1505.6.

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In Carmouche, the Center claimed that the statute’s definition of
“expenditure” (which includes the use of money or property “for the purpose of
. . . otherwise influencing the nomination or election of a person to public office,”
§ 18:1483(9) (emphasis added)) was impermissibly “vague and overbroad”
under the First Amendment because it could be read to cover (and thus trigger
corresponding disclosure requirements enforced by civil and criminal
sanctions) both the use of money and property for “express advocacy” (i.e.,
endorsement of a candidate) and “issue advocacy” (i.e., espousal of a particular
viewpoint on a given issue that may have an indirect relation to an election).
449 F.3d at 663. This court upheld the statute by applying a limiting
construction derived from Buckley v. Valeo, 424 U.S. 1 (1976), which addressed
federal campaign finance statutes requiring similar disclosures. Carmouche,
449 F.3d at 665-66.
In Buckley, the plaintiffs challenged, on First Amendment grounds, the
constitutionality of various provisions of the Federal Election Campaign Act of
1971 (“FECA”). That statute, at the relevant time, defined an “expenditure”
as including the use of money or property “for the purpose of . . . influencing
. . . the nomination for election, or the election, of any person to Federal office.”
2 U.S.C. § 431(f)(1)(A) (1970 ed., Supp. IV). If sufficient expenditures were
made, the statute required similar disclosures as at issue here. See id. § 434(e)
(1970 ed., Supp. IV). As we explained in Carmouche:
Rather than striking [the statutory disclosure
requirements] down as unconstitutional, however, the
[Buckley] Court imposed a limiting construction on the
statute, bringing it within constitutional bounds by
drawing a line between express advocacy and issue
advocacy. The Court stated that “we construe
‘expenditure’ for purposes of [the disclosure

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No. 13-31273
requirement] to reach only funds used for
communications that expressly advocate the election
or defeat of a clearly identified candidate.”
449 F.3d at 664. In a footnote, Buckley stated, by way of illustration, that
words such as “vote for,” “elect,” “support,” “cast your ballot for,” “Smith for
Congress,” “vote against,” “defeat,” and “reject,” would constitute “express
words of advocacy.” 424 U.S. at 44 n.52. In Carmouche, we referred to these
as “well-known ‘magic words.’” 449 F.3d at 664.
Thus, this court in Carmouche upheld the constitutionality of the
Louisiana Campaign Finance Disclosure Act against the Center’s “vagueness”
challenge by, per Buckley, construing the statute’s disclosure requirements to
be invoked only by “express advocacy,” i.e., “communications that expressly
advocate the election or defeat of a clearly identified candidate,” and not by
“issue advocacy.” See id. at 665. Under such a reading, we held, the challenged
provisions are “facially constitutional.” Id. at 665-66.
Turning to the present case, the Center now contends that, per
Carmouche, disclosure under the Campaign Finance Disclosure Act cannot be
required unless a particular communication includes “magic words,” and, the
Center further contends, the State is no longer limiting enforcement of the
statute to communications including “magic words” and is thus violating
Carmouche. The Center seeks a declaration that “magic words” are a
prerequisite to disclosure and an injunction against enforcement otherwise.
A plaintiff seeking a preliminary injunction must show: (1) a substantial
likelihood of success on the merits; (2) a substantial threat of irreparable harm
if the injunction is not granted; (3) that the threatened injury outweighs any
harm that the injunction might cause to the defendant; and (4) that the

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No. 13-31273
injunction will not disserve the public interest. Opulent Life Church v. City of
Holly Springs, 697 F.3d 279, 288 (5th Cir. 2012); Tex. Med. Providers
Performing Abortion Servs. v. Lakey, 667 F.3d 570, 574 (5th Cir. 2012). We
agree with the district court that the Center cannot satisfy the first
requirement, a substantial likelihood of success on the merits.
The Center insists that its claim is a “facial” attack, but what precisely
the Center means is unclear. Insofar as the Center’s claim is that the statute
is unconstitutionally vague on its face, this court has already denied that claim
in Carmouche and the Center neither contends that new law should change
that outcome nor that the statute’s text has been amended since we decided
Carmouche. Accordingly, Carmouche controls and we are impelled to once
again deny the Center’s claim of facial infirmity. See, e.g., In re Pilgrim’s Pride
Corp., 690 F.3d 650, 663 (5th Cir. 2012) (rule of orderliness).
The Center contends that circumstances have changed since Carmouche
because, while previous State officials enforced the Campaign Finance
Disclosure Act in accordance with Carmouche, the officials currently in office
do not, and thus, the Center faces the risk of an unconstitutional application
of the statute against it. We agree with the district court’s conclusion that it
lacked jurisdiction to adjudicate this claim. Federal courts may adjudicate
claims only when they are based on “concrete” injuries that are “actual” or
“imminent,” not merely “conjectural” or “hypothetical.” Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560 (1992) (citations omitted). To enjoin government
conduct that has not yet occurred, there must be a showing that unlawful
conduct is sufficiently likely to occur. City of Los Angeles v. Lyons, 461 U.S.
95, 111 (1983). Here, the record is entirely devoid of, one, any indication of
what sort of political speech the Center intends to create, and two, any reason

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No. 13-31273
to think that the State will unconstitutionally burden or suppress that speech.
In other words, the record is devoid of relevant facts suggesting a real dispute
between the parties. See Jordahl v. Democratic Party, 122 F.3d 192, 198 (4th
Cir. 1997) (declining to adjudicate First Amendment challenge to campaign
finance disclosure statute because there was “no evidence” of “actual or
threatened [enforcement] of the [statute]”); Protectmarriage.com-Yes on 8 v.
Bowen, No. 11-17884, 2014 WL 2085305, at *9 (9th Cir. May 20, 2014)
(declining to adjudicate First Amendment challenge to statute requiring
certain disclosures because the plaintiff could not demonstrate any “concrete
plan to engage in protected conduct” that could fall within the ambit of the
statute); Full Value Advisors, LLC v. S.E.C., 633 F.3d 1101, 1106 (D.C. Cir.
2011) (declining to adjudicate First Amendment challenge to certain disclosure
provisions of the Securities and Exchange Act of 1934 when “it is not yet
certain [the company would] be required to comply with [the disclosure
provisions]”); cf. Elend v. Basham, 471 F.3d 1199, 1211 (11th Cir.
2006) (declining to adjudicate First Amendment claim involving protest rights
because the “analysis depends so critically on the location and circumstances
of the protest zone” and “we don’t know when [the plaintiffs] will protest, we
don’t know where they will protest, and we don't know how they will protest”).
“A court is not permitted to prescribe how a state must deal with disputes
that have never arisen and may never do so.” Wis. Right to Life, Inc. v.
Paradise, 138 F.3d 1183, 1187 (7th Cir. 1998). “Such a foray is the paradigm
of an advisory opinion.” Id.
AFFIRMED.

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